Government

Yesh Atid Party v. Prime Minister

Case/docket number: 
HCJ 3132/15
Date Decided: 
Wednesday, April 13, 2016
Abstract: 

The petition challenged the authority of the Prime Minister to serve simultaneously as a minister responsible for a ministry under Basic Law: The Government. The Petitioners argued that the Basic Law does not empower the Prime Minister to serve simultaneously as a minister, due to the omission of sec. 33(d), which was part of the prior Basic Law: The Government of 1992, from the current Basic Law established in 2001 (hereinafter: the current Basic Law). The said provision expressly stated that “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which provides for situations in which the Prime Minister may temporarily serve as an acting minister.

 

The High Court of Justice (President Naor, with Deputy President Rubinstein and Justices Joubran and Hendel concurring, and Justice Melcer dissenting) denied the Petition, holding:

 

Per President Naor: Purposive interpretation of the current Basic Law shows that the Prime Minister has the authority to serve simultaneously as a minister. The current Basic Law is silent on the issue of the Prime Minister’s authority to serve as a minister responsible for a ministry. The Basic Law’s silence does not constitute a negative constitutional arrangement that denies the Prime Minister authority for parallel service, but rather constitutes a positive constitutional implication. The silence of the current Basic Law is not intended to deny the Prime Minister authority to serve simultaneously as a minister. This interpretive conclusion is required by the purposes grounding the current Basic Law.

 

The Knesset, as a constituent authority, cannot be ascribed the desire to prevent the Prime Minister from serving as a minister. The practice of the Prime Minister appointing himself as a minister has been adopted since the earliest days of the State. It was invoked even after the Basic Law of 1992 entered into force, and even after its repeal and the entry into force of the current Basic Law. The language of the current Basic Law also provides no support for the Petitioner’s approach. The arrangement under sec. 24 of the current Basic Law, which concerns the temporary appointment of an acting minister, does not indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry, nor does it indicate any material change in the accepted practice. The provision in regard to serving as a temporary acting minister was also included in the prior Basic Law. It treats of a focused, specific aspect that does not affect the issue of a permanent appointment of the Prime Minister as a minister. Moreover, the full range of the Prime Minister’s authority should be examined from a broad perspective, and in a manner that acknowledges the Prime Minister’s authority to make a permanent appointment, along with other particular powers established by the legislature. In addition, when the Basic Law sought to exclude the Prime Minister from the scope of the term “minister”, it did so expressly.

 

It is difficult to ascribe to the framers of the current Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister. In any case, in interpreting Basic Laws, it is not the subjective purpose, but rather the objective purpose of the current Basic Law that is decisive. That purpose requires an interpretation by which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. One of the objective purposes underlying the current Basic Law: The Government is the Prime Minister’s status as “first among equals” in his government, and as possessing the power to shape his government and assign the roles therein. This is a fundamental concept of our democratic regime, which reflects the constitutional value of the separation of powers.

 

Justice Melcer (dissenting) was of the opinion that Basic Law: The Government does not grant the Prime Minister authority to serve simultaneously as a minister responsible for a ministry, except in the situation provided for under secs. 24(b) and (c) of Basic Law: The Government.

 

In conclusion, in light of the holding that the Prime Minister possesses the authority to hold additional ministerial portfolios, the Petition was denied by the Court majority, subject to the condition (per Deputy President Rubinstein, Justices Melcer and Hendel concurring) that the Court issue a “warning of voidance” granting the Government a period of eight months for an in-depth examination of the subject of parallel service.

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

HCJ 3132/15

 

 

Petitioner:                    Yesh Atid Party led by Yair Lapid

 

                                                            v.

 

Respondents:              1. Prime Minister of Israel

                                    2. Attorney General

                                    3. 34th Government of the State of Israel

                                    4. Deputy Minister of Health

                                    5. Deputy Minister of Regional Cooperation

                                    6. Deputy Minister of Foreign Affairs

                                    7. Likud Faction

                                    8. Torah Judaism Faction

 

Attorneys for the Petitioner: Adv. Guy Busy, Adv. Ronen Aviani

Attorneys for Respondents 1 - 6: Adv. Sharon Rotshenker, Adv. Yonatan Berman

Attorney for Respondent 7: Adv. Avi Halevi

Attorney for Respondent 8: No appearance

 

Dates of Hearings: 26 Av 5775 (Aug. 11, 2015); 28 Heshvan 5776 (Nov. 10, 2015)

 

 

The Supreme Court sitting as High Court of Justice

 

Petition for an order nisi

 

Before: President M. Naor, Deputy President E. Rubinstein, Justice S. Joubran, Justice H. Melcer, Justice N. Hendel

 

Abstract:

The petition challenged the authority of the Prime Minister to serve simultaneously as a minister responsible for a ministry under Basic Law: The Government. The Petitioners argued that the Basic Law does not empower the Prime Minister to serve simultaneously as a minister, due to the omission of sec. 33(d), which was part of the prior Basic Law: The Government of 1992, from the current Basic Law established in 2001 (hereinafter: the current Basic Law). The said provision expressly stated that “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which provides for situations in which the Prime Minister may temporarily serve as an acting minister.

The High Court of Justice (President Naor, with Deputy President Rubinstein and Justices Joubran and Hendel concurring, and Justice Melcer dissenting) denied the Petition, holding:

Per President Naor: Purposive interpretation of the current Basic Law shows that the Prime Minister has the authority to serve simultaneously as a minister. The current Basic Law is silent on the issue of the Prime Minister’s authority to serve as a minister responsible for a ministry. The Basic Law’s silence does not constitute a negative constitutional arrangement that denies the Prime Minister authority for parallel service, but rather constitutes a positive constitutional implication. The silence of the current Basic Law is not intended to deny the Prime Minister authority to serve simultaneously as a minister. This interpretive conclusion is required by the purposes grounding the current Basic Law.

The Knesset, as a constituent authority, cannot be ascribed the desire to prevent the Prime Minister from serving as a minister. The practice of the Prime Minister appointing himself as a minister has been adopted since the earliest days of the State. It was invoked even after the Basic Law of 1992 entered into force, and even after its repeal and the entry into force of the current Basic Law. The language of the current Basic Law also provides no support for the Petitioner’s approach. The arrangement under sec. 24 of the current Basic Law, which concerns the temporary appointment of an acting minister, does not indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry, nor does it indicate any material change in the accepted practice. The provision in regard to serving as a temporary acting minister was also included in the prior Basic Law. It treats of a focused, specific aspect that does not affect the issue of a permanent appointment of the Prime Minister as a minister. Moreover, the full range of the Prime Minister’s authority should be examined from a broad perspective, and in a manner that acknowledges the Prime Minister’s authority to make a permanent appointment, along with other particular powers established by the legislature. In addition, when the Basic Law sought to exclude the Prime Minister from the scope of the term “minister”, it did so expressly.

It is difficult to ascribe to the framers of the current Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister. In any case, in interpreting Basic Laws, it is not the subjective purpose, but rather the objective purpose of the current Basic Law that is decisive. That purpose requires an interpretation by which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. One of the objective purposes underlying the current Basic Law: The Government is the Prime Minister’s status as “first among equals” in his government, and as possessing the power to shape his government and assign the roles therein. This is a fundamental concept of our democratic regime, which reflects the constitutional value of the separation of powers.

Justice Melcer (dissenting) was of the opinion that Basic Law: The Government does not grant the Prime Minister authority to serve simultaneously as a minister responsible for a ministry, except in the situation provided for under secs. 24(b) and (c) of Basic Law: The Government.

In conclusion, in light of the holding that the Prime Minister possesses the authority to hold additional ministerial portfolios, the Petition was denied by the Court majority, subject to the condition (per Deputy President Rubinstein, Justices Melcer and Hendel concurring) that the Court issue a “warning of voidance” granting the Government a period of eight months for an in-depth examination of the subject of parallel service.

 

 

 

Supplemental Judgment[1]

 

President M. Naor:

Does Basic Law: The Government grant the Prime Minister authority to serve simultaneously as a minister responsible for a government ministry? That is the question before this Court.

The Proceedings in a Nutshell

1.         The Petition before the Court was filed on May 6, 2015, and concerned the political institution of a “Deputy Minister with the status of a Minister”. On July 7, 2015, after hearing oral arguments, we granted the Petitioner’s request to file an amended petition. On July 12, 2015, an amended petition was filed, additionally requesting orders nisi on the question of the Prime Minister’s authority to simultaneously serve as a minister responsible for a government ministry – a fundamental issue not raised in the original petition. We therefore decided (on July 13, 2015) to split the proceedings such that a partial judgment would be issued in regard to the issue of the institution of  a “Deputy Minister with the status of a Minister”, and the proceedings on the additional issue would continue thereafter. On Aug. 23, 2015, we delivered our partial judgment in which we held that the institution of “Deputy Minister with the status of a Minister” was invalid. On Nov. 10, 2015, we heard oral arguments on the issue that now requires our decision, that of the authority of the Prime Minister to serve as a minister.

2.         The Petitioner argued that Basic Law: The Government does not authorize the Prime Minister to serve simultaneously as a minister. The Petitioner’s argument was premised primarily upon the omission of the provisions of sec. 33(d), which were comprised in Basic Law: The Government of 1992 (hereinafter: the Basic Law of 1992), from the current language of the Basic Law, as amended in 2001 (hereinafter: the current Basic Law). The aforesaid provision expressly stated: “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which addresses the instances in which the Prime Minister may temporarily serve as an acting minister.

            As opposed to this, Respondents 1 – 6 argued that a situation in which the Prime Minister assumes an additional ministerial role is consistent with the current Basic Law, as well as with customary constitutional practice since the founding of the State.

Discussion and Decision

3.         After carefully reading the arguments of the Parties, and further hearing their oral arguments, I have arrived at the conclusion that the Petition should be denied. In my opinion, purposive interpretation of the current Basic Law leads to the conclusion that the Prime Minister has the authority to serve simultaneously as a minister. Inasmuch as the focus of this matter is the interpretation of the Basic Law, I shall briefly describe the changes introduced in the Basic Law over the years.

4.         Basic Law: The Government was originally established in 1968 (hereinafter: the Basic Law of 1968). That law established the status of the Prime Minister as a minister who is the chief and first among the other ministers, stating that “The Government consists of the Prime Minister and other Ministers” (sec. 5(a) of the Basic Law of 1968; and see Elyakim Rubinstein, Basic Law: The Government in its Original Form – Theory and Practice, 3(2) Mishpat Umimshal 571, 590 (1996) (Hebrew)). This view changed with the establishment of the Basic Law of 1992, as part of a general change in the Israeli system of governance, which focused primarily upon the introduction of direct elections for the Prime Minister by the electorate. As part of that amendment, the status of the Prime Minister under the Basic Law changed to a distinct status, different from that of the other government ministers, and it was established that “The Government is comprised of the Prime Minister and Ministers”  (sec. 3(a) of the Basic Law of 1992). In 2001, pursuant to a decision to repeal the direct election of the Prime Minister, the Basic Law was again reestablished. This is the current Basic Law, which essentially adopts the arrangements of the Basic Law of 1968, inter alia, that the Prime Minister is “first among equals” in his government (Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel 834 (6th ed., 2005) (hereinafter Rubinstein & Medina) (Hebrew)). It, too, establishes, in sec. 5(a), that “The Government is composed of the Prime Minister and other Ministers”. The provisions of the aforementioned sec. 33(d), which did not appear in the Basic Law of 1968, is also entirely absent from the current Basic Law.

5.         The current Basic Law is, thus, silent in regard to the authority of the Prime Minister to serve as a minister responsible for government ministry. This Court addressed the significance of that silence, obiter dictum, and without deciding the issue, in HCJ 3002/09 Israel Medical Association v. Prime Minister (June 9, 2009) (hereinafter: the Medical Association case). In that case, my colleague Justice Melcer made several comments in regard to the question of the Prime Minister’s authority to serve simultaneously as a minister – a question that did not directly arise from the petition in that case. His position was that the Basic Law’s silence should be construed as a negative arrangement for two primary reasons anchored in the subjective purpose of the Basic Law: first, the deletion of the said sec. 33(d), which expressly addressed the Prime Minister’s authority also to serve as a minister, and second, the arrangement established for situations in which the Prime Minister may temporarily serve as an acting minister for a period of three months, under sec. 24 of the current Basic Law. President Beinisch disagreed with the position presented by my colleague Justice Melcer. My colleague Justice Rubinstein, who wrote the primary opinion in that case, left the question open, noting that it requires “clarification in the future” (ibid., para. 43).

6.         In my view, the Basic Law’s silence does not constitute a negative constitutional arrangement, but rather a positive constitutional implication (see and compare: Aharon Barak, Interpretation in Law – Constitutional Interpretation 429 (1994) (Hebrew); Aharon Barak, Purposive Interpretation in Law 440 (hereinafter: Barak, Purposive Interpretation) (Hebrew)). An implied meaning can be inferred from the express meaning of the text. Indeed, the implied meaning can be negative – a negative arrangement – meaning that the explicitly established arrangement will not apply to an issue not expressly addressed. But the implied meaning can also be positive, such that the explicitly established arrangement will apply to an issue that is not expressly addressed. That, I believe, is the case before us. The current Basic Law did not seek, by its silence, to deny the Prime Minister’s authority to serve simultaneously as a minister. This interpretative conclusion is required by the purposes grounding the current Basic Law, which I will now address.

Purposive Interpretation of the Current Basic Law

7.         The Petitioner argues that the omission of sec. 33(d) from the current Basic Law indicates a subjective purpose of preventing the Prime Minister from serving simultaneously as a minister responsible for a ministry. In my opinion, the interpretation advanced by the Petitioner is narrow, and is not appropriate to the uniqueness of the constitutional text. Indeed, the Basic Law must be interpreted “with a broad view” (ibid., 440). Constitutional interpretation “must be generous, not legalistic or pedantic” (ibid.), as is appropriate to the elevated status of the Basic Laws. In any case, in my opinion, this is the purpose that the drafters of the constitutional text intended to achieve.

8.         An examination of the legislative history of the current Basic Law shows that we cannot ascribe to the Knesset, as a constituent authority, an intention to prevent the Prime Minister from serving as a minister responsible for a ministry. This subject was not addressed in the Explanatory Notes of the current Basic Law. It also finds no expression the deliberations of the Knesset Constitution, Law and Justice Committee in preparing the current Basic Law for second and third readings, nor in the plenum debates (see: 15(3) Divrei HaKnesset 3145 (5761), and particularly the comments of the Chairman of the of the Constitution, Law and Justice Committee, Knesset Member Amnon Rubinstein, who pointed out the main changes introduced in the Basic Law, without mentioning the subject we are now discussing (Protocol of Hearing 258 of the Constitution, Law and Justice Committee of the 15th Knesset (Feb. 13, 2001); Protocol of Hearing 264 of the Constitution, Law and Justice Committee of the 15th Knesset (Feb. 20, 2001); ); Protocol of Hearing 266 of the Constitution, Law and Justice Committee of the 15th Knesset (Feb. 26, 2001); ); Protocol of Hearing 268 of the Constitution, Law and Justice Committee of the 15th Knesset (Feb. 27, 2001); Protocol of Hearing 272 of the Constitution, Law and Justice Committee of the 15th Knesset (March 5, 2001); Protocol of Hearing 273 of the Constitution, Law and Justice Committee of the 15th Knesset (March 6, 2001)).

9.         My conclusion is reinforced by an examination of the pre-constitutional history of the Basic Law. The pre-constitutional history is the social and legal background of the Constitution, “for it is a well-known axiom that the law of a people must be studied in the light of its national way of life” (HCJ 73/53 Kol Ha’am Co. v. Minister of the Interior, IsrSC 7 871, 884 (1953) [http://versa.cardozo.yu.edu/opinions/kol-haam-co-ltd-v-minister-interior]). The practice by which the Prime Minister is authorized to appoint himself as a minister goes back to the earliest days of the State, well before the establishing of the Basic Law of 1968 (see: 10 Divrei HaKnesset 233 (5716) (the Seventh Government); 23 Divrei HaKnesset 564 (5718) (the Eighth Government); 28 Divrei HaKnesset 92 (5720) (the Ninth Government); 32 Divrei HaKnesset 204 (5722) (the Tenth Government); 37 Divrei HaKnesset 2162 (the Eleventh Government); 41 Divrei HaKnesset 677 (5725) (the Twelfth Government); 44 Divrei HaKnesset 350 (5726) (the Thirteenth Government), and this is not an exhaustive list).

10.       The practice also continued after the establishment of the Basic Law of 1968, although it, too, lacks an express provision in this regard (see: 97 Divrei HaKnesset 3403 (5744) (the Twentieth Government); 12 (1) Divrei HaKnesset 215 (5749) (the Twenty-third Government); 12 (2) Divrei HaKnesset 421 (5750) (the Twenty-fourth Government); 13 (1) Divrei HaKnesset 11 (5752) (the Twenty-fifth Government), and this is not an exhaustive list). Thus, for example, Prime Minister Menachem Begin informed the Speaker of the Knesset of his successfully forming a Government, as follows:

                        To the Honorable Speaker of the Knesset, Mr. Yitzhak Shamir

                        Jerusalem.

                       

                        Mr. Speaker,

On 21 Sivan 5737, 7 June 1977, his Honor the President of the State was kind enough to appoint me to form a Government. I respectfully inform Your Honor that, in accordance with section 13 (b) of Basic Law: The Government, I have fulfilled that task, and I will duly present the Government, its composition and the distribution of functions, before the Knesset on 4 Tammuz 5737, 20 June 1977.

 

                        And this is the composition of the Government:

Menachem Begin – Prime Minister, Simcha Ehrlich – Minister of Finance, Aharon Abu-Hatzeira – Minister of Religion, Yosef Burg – Minister of the Interior, Moshe Dayan – Minister of Foreign Affairs, Yigal Horowitz – Minister of Commerce, Industry and Tourism, Zevulun Hammer – Minister of Education, Ezer Weizman – Minister of Defence, David Levy – Minister of Absorption, Yitzhak Moda’i – Minister of Energy and Infrastructure, Gideon Patt – Minister of Construction and Housing, Eliezer Shostak – Minister of Health, Ariel Sharon – Minister of Agriculture.

 

During a brief transition period, the Prime Minister will be responsible for the Ministries of Welfare, Justice, Transportation, and Communications.

 

Respectfully,

M. Begin

(As published in Arye Naor, Begin in Power – A Personal Testimony, 60 (1993) (Hebrew) (emphasis added – M.N.).

 

11.       Needless to say, the said practice has continued to this very day, even following the entry into force of the Basic Law of 1992 (see: 14(1) Divrei HaKnesset 13 (5756) (the Twenty-seventh Government); 15 (1) Divrei HaKnesset 251 (5759) (the Twenty-eighth Government); 15 (3) Divrei HaKnesset 3209 (5761) (the Twenty-ninth Government)), and even after its repeal and the entry into force of the current Basic Law (see: 16 (1) Divrei HaKnesset 124 (5763) (the Thirtieth Government); 18 (1) Divrei HaKnesset 486 (5769) (the Thirty-second Government); Protocol of the 16th session of the 20th Knesset, 19 (May 14, 2015) (the Thirty-fourth Government)). There was good reason for President Beinisch to note that this practice is rooted “deeply in the political tradition of the Israeli system of government”, and that “it is difficult to view the omission of section 33(d) of the former Basic Law: The Government as expressing the legislature’s desire to effect such a significant change in our accepted constitutional governmental regime” (the Medical Association case, para. 2).

12.       I have also found no support for the Petitioner’s approach in the language of the current Basic Law. The arrangement in regard to temporarily serving as an acting minister, under sec. 24 of the current Basic Law, does not, in my opinion, indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry. The arrangement in regard to serving as an acting minister is a special arrangement. The reason for limiting the term in that arrangement is related to the fact that serving as an acting minister does not require the Knesset’s consent (see: sec. 24 of the current Basic Law), whereas the Prime Minister’s serving as a minister responsible for a ministry requires that the Knesset express confidence (see: sec. 13(d) of the current Basic Law).

13.       Indeed, the existence of one authority does not deny the other authority:

Even the changes that the legislature effected in the arrangement regarding temporarily serving as an acting minister (now sec. 24 of the Basic Law) do not indicate a material change in the accepted, prevailing view.  This, firstly, because the arrangement in regard to serving as an acting minister was included in the previous version of the Basic law, alongside the aforesaid sec. 33(d); and secondly, because, in any case, this arrangement concerns a focused, specific aspect, and does not, in my opinion, concern the issue of the permanent appointment of the Prime Minister as a minister. Moreover, the overall powers of the Prime Minister must be viewed broadly, in a manner that allows for the existence of the authority of permanent appointment alongside other particular powers, as established by the legislature (the Medical Association case, para. 2 of the opinion of President Beinisch; and see and compare HCJ 6924/00 Shtenger v. Prime Minister, IsrSC 55 (2) 485, 494 (2001) (hereinafter: the Shtenger case)).

            14.       Moreover, when the current Basic Law sought to exclude the Prime Minister from the term “minister”, it did so expressly (see, for example: sec. 22 of the current Basic Law). This, as opposed to the Basic Law of 1992, in which – similar to the provision of the aforementioned sec 33(d) – there were provisions that expressly included the Prime Minister in the term “minister” (see, for example: secs. 41-42 of the Basic Law of 1992, concerning delegation and assumption of powers). The reason for this difference lay in the change to a system of direct election of the Prime Minister. That change led to a need to clarify that the Prime Minister was authorized to act simultaneously as a minister, in view of the change in the Prime Minister’s status relative to the ministers. The current Basic Law, similar to the Basic Law of 1968, includes the Prime Minister among the ministers without the said distinction – thus, as noted, “The Government is composed of the Prime Minister and other Ministers” (sec. 5(a) of the current Basic Law). That being the case, the need for an express provision in regard to the Prime Minister’s authority to serve as a minister responsible for a ministry became superfluous:

We would recall that the Basic Law of 1992 established that “The Government is comprised of the Prime Minister and Ministers”, i.e., the Prime Minister is not generally counted among the ministers. Therefore, it was necessary to clarify that the person serving as Prime Minister may simultaneously serve as the head of a government ministry. Upon return to the parliamentary system in the Law of 1992, there was no longer any need for the said provision of sec. 33(d), inasmuch as the Prime Minister is also included among the ministers (Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government (to be published) (Hebrew); and see, in general, ibid., pp. 233-235 of the manuscript).

15.       It is, therefore, difficult to attribute to the drafters of the Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister to serve as a minister. In any case, in the interpretation of Basic Laws, it is not the subjective purpose that is decisive, but rather the objective purpose (see: Barak, Purposive Interpretation, 456). The objective purpose reflects – at a number of abstract levels – the basic concepts, values and purposes that the constitutional text was intended to achieve in a democratic state (see: ibid., 444-445). The objective purpose of the current Basic Law leads to the interpretation according to which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry.

16.       One of the objective purposes grounding the current Basic Law is the status of the Prime Minister as “first among equals” in his government (Rubinstein & Medina, 834), and as having the authority to shape the composition of the Government and the distribution of duties therein. That is a basic concept of our democratic regime, which reflects the constitutional value of separation of powers. In this regard, the words of President A. Barak are apt:

The Prime Minister is a minister (s. 5(a) of Basic Law: The Government). Any law that derives from the status of a minister derives also from the status of the Prime Minister. Notwithstanding, the Prime Minister is a special kind of minister. He is first and foremost among the ministers. This is the case because of several provisions in Basic Law: The Government. First, it is the Prime Minister who forms the Government. The President of the State gives the task of forming the Government to a member of the Knesset (s. 7(a) of Basic Law: The Government). When the Government has been formed by that member of the Knesset, he becomes the Prime Minister (s. 13(c) of Basic Law: The Government). […] Second, the Cabinet owes collective responsibility to the Knesset, but the ministers are personally responsible to the Prime Minister for the offices to which they are appointed (s. 4 of Basic Law: The Government). This is personal responsibility of each minister to the Prime Minister in respect of his carrying out his office as a minister. Third, it is the Prime Minister who conducts the Cabinet meetings (see and cf. s. 16(a) of Basic Law: The Government). Fourth, the resignation or death of a Prime Minister means the resignation of the Government as a whole (ss. 19 and 20 of Basic Law: The Government). Moreover, the Prime Minister has the power, in certain circumstances and with the consent of the President of the State, to bring about the dissolution of the Knesset (s. 29(a) of Basic Law: The Government). Finally, if a minister ceases holding office, or he is temporarily incapable of carrying out his office, the Prime Minister or another minister designated by the Cabinet deputizes for him (s. 24(b) of Basic Law: The Government). It follows that the Prime Minister is a member of the Cabinet, but his status is a special one. He is the head of the Government. It is he who forms it. It is he who decides its composition and who will hold the various offices in it, and it is he that directs its main activities and objectives (HCJ 5261/04 Fuchs v. Prime Minister, IsrSC 59 (2) 446, 461 (2004) (hereinafter: the Fuchs case) [http://versa.cardozo.yu.edu/opinions/fuchs-v-prime-minister] (emphasis added – M.N.)).

17.       This purpose derives from the language of the constitutional text, and from the fundamental values of the system (see: Barak, Purposive Interpretation, 447, 449). It also derives from the case law (see: ibid., 448). On more than one occasion, this Court has emphasized the special status of the Prime Minister, and the broad discretion that he is granted in forming his government (see: the Fuchs case, 465; HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister, IsrSC 62 (3) 445, 476-478 (2007) [http://versa.cardozo.yu.edu/opinions/emunah-v-prime-minister] and the references there; also see and compare: HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel, IsrSC 51 (3) 46, 58 (1997); the Shtenger case, 492; and see: Rubinstein & Medina, 836).

18.       The Petition before us concerns only the question whether the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. To that, my answer is affirmative. I have not made any decision – one way or the other – in regard to what need not be decided for the instant case: the breadth of the Prime Minister’s discretion in such matters, and the scope of this Court’s intervention.

            Therefore, it is my position that the second part of the Petition should be denied, without an order for costs.

Afterward

19.       Following the above, I reviewed the opinion of my colleague Justice H. Melcer. My position has not changed, and I would like to emphasize several points.

            In my colleague’s opinion, interpretation of the current Basic Law shows that the Prime Minister lacks authority to serve simultaneously as a minister responsible for a ministry. My colleague basis his argument of the existence of a negative arrangement – which, according to his approach, derives from the omission of sec. 33(d) from the current Basic Law, and from the existence of an arrangement in regard to serving temporarily as an acting minister (sec. 24 of the current Basic Law) – and upon other provisions found in the current Basic Law, such as, the provision that a law may empower “the Prime Minister or a Minister” to make regulations (sec. 37(b) of the current Basic Law), and the provision regarding ministerial responsibility. As stated, I hold a different view. I found no basis for my colleague’s approach either in the language of the current Basic Law or in its purpose. I addressed that in detail, above, and I will not reiterate. But I would emphasize that, in my opinion, interpreting the Basic Law from a broad perspective that is neither legalistic nor pedantic, shows that the authority exists, and that we should not infer a “negative”, but rather an “affirmative”, from the omission of the provision that expressly provided for the Prime Minister’s authority to serve as a minister (sec. 33(d) of the Basic Law of 1992).

20.       I cannot accept my colleague’s argument that this interpretive approach yields practical difficulties. In any case, the vast majority are resolved by our customary interpretive rules and principles (such as, lex specialis derogat lex generali and ejusdem generis). I also do not agree with the statement that the current Basic Law “did not contemplate a situation in which, as a matter of course, the Prime Minister would also serve as a minister responsible for a ministry” (para. 15 of my colleague’s opinion), in view of the pre-constitutional history that I reviewed in my opinion, which serves as a source for ascertaining the purpose (and therefore, I see no need whatsoever to address the status of constitutional custom).

21.       As for comparative law, which my colleague addressed at length, as a rule, it is indeed an important source of interpretive inspiration, and fertile ground for broadening horizons. But such inspiration is not always appropriate. In addition to the need that the legal systems being compared have a common ideological basis and common loyalty to fundamental values, there must also be “nothing in the historical development and social circumstances of the local or foreign system that distinguishes it enough to challenge interpretational inspiration” (Barak, Purposive Interpretation, 452 [English: Barak, Human Dignity as a Constitutional Value, 92 (Cambridge, 2015)). I do not believe that such interpretive inspiration is appropriate to the circumstances of the matter before us, in view of the complex constitutional history and the material differences in the systems of governance. In any case, many of the examples adduced by my colleague in regard to the prevailing trends in Germany and England do not testify to an absence of authority, but rather to a custom of not exercising it. We are, therefore, concerned with the subject of discretion, which – as we should recall – did not arise in the matter before us.

22.       To my way of thinking, some of my colleague’s arguments, although raised in the context of authority, actually concern discretion. Thus, for example, my colleague pointed out that according to the proposed interpretation “the Prime Minister can also fill the roles of all of the ministers” (para. 9 of his opinion, emphasis omitted – M.N.), and he also noted the heavy burden borne by the Prime Minister, which might prevent him from devoting the necessary time and attention to his ministerial tasks (see para 17 of his opinion). My colleague further pointed out that, in certain circumstances, the Prime Minister’s serving as a minister responsible for a ministry might lead to a violation of basic rights (see paras. 38-40 of his opinion). Without expressing an opinion on the merits, these issues do not concern the Prime Minister’s authority to serve simultaneously as a minister, but rather the question of discretion in exercising that authority. As I stated above, it is not my intention to address issues that were not raised by the petition before us, and decide what does not require decision.

23.       I will now turn to the opinions of my colleagues Deputy President E. Rubinstein and Justice N. Hendel, and especially to their conclusion. My colleagues concurred with my conclusion that the Petition be denied inasmuch as the current Basic Law did not intend to deny the Prime Minister’s authority in principle to serve simultaneously as a minister. However, my colleagues held that, along with denying the Petition, we should issue a “warning of voidance” in the sense that if the currently prevailing situation does not materially change within eight months, it may be appropriate to revisit the question of authority and the exercise thereof. My colleagues arrived at this result in light of their conclusion that an extreme deviation from the margin of reasonableness in exercising the authority could color it in the future “with the colors of a deviation from authority”. In other words, my colleagues held that a “warning of voidance” would be appropriate in that the possible flaws that they identified in the area of discretion might justify a future finding that the Prime Minister is not authorized to serve in additional ministerial roles to a certain extent (see para. 10 of the opinion of my colleague Deputy President E. Rubinstein, and para. 3 of the opinion of my colleague Justice N. Hendel).

24.       My colleagues’ discussion of discretion, and the question whether flaws in the area of discretion might justify a future conclusion of lack of authority is one that deviates from the framework of the arguments raised before us in this petition. My colleagues did not suffice with a discussion of the issue of discretion. They went on to craft the remedy they propose for the petition, in view of the theoretical conclusions they reached in regard to discretion. In this regard, I would like to emphasize that the Parties did not raise any arguments in regard to the subject of discretion. The Respondents were not afforded an opportunity to argue this point. They were not afforded an opportunity to address the remedy of a “warning of voidance”. The Petitioner also made it unequivocally clear that its arguments were focused exclusively upon the subject of authority (the attorney for the Petitioner stated in the course of the hearing: “My arguments are only in regard to authority. In light of the amendment, the Prime Minister lacks authority to serve in additional ministries” (p. 2 of the protocol of Nov. 10, 2015). In any case, the Petitioner did not argue that flaws in regard to discretion might lead to a lack of authority.

25.       In my view, there is no room for addressing arguments that were not heard, and issues that were not raised by the Parties. Therefore, I do not believe that it was appropriate to consider questions in regard to discretion, and it was certainly not appropriate to grant relief in the form of a “warning of voidance” that was not requested, and regarding which the Respondents were not afforded an appropriate opportunity to respond. For my part, I refrain from expressing any opinion on subjects that were not raised before us. According to my approach, it is preferable to hold that “we will cross that bridge when we get to it” (see and compare: my opinion in CA 11120/07 Simhoni v. Bank HaPoalim (Dec. 28, 2009); my opinion in CA 11039/07 Eliahu Insurance Co. Ltd. v. Avner Road Accident Victims Insurance Association Ltd., (July 6, 2011); CA 1326/07 Hammer v. Amit, para. 2 of my opinion (May 28, 2012) [http://versa.cardozo.yu.edu/opinions/hammer-v-amit]).

            I have, therefore, refrained from expressing any opinion in regard to a petition or forms of relief that are not before the Court in the procedural framework as established.

 

Justice H. Melcer:

1.         After reviewing the opinion of my colleague President M. Naor, I am unable to concur with her position or proposed result.

            In my view, it would have been appropriate to issue an order nisi in this petition for the purpose of examining the issue whether Basic Law: The Government permits the Prime Minister, in normal circumstances (that are not addressed by sec. 24(b) and (c) of the said basic Law), to serve – alongside his high office – as a minister responsible for a ministry (and accordingly, appoint a deputy minister for himself). In my view, pursuant to the order nisi, if the Respondents could not present justifying arguments, it would have been appropriate to make the order absolute in regard to all the issues, and prohibit such a double role for the Prime Minister.

2.         I set out the basis for my above approach in a broad comment that I wrote in HCJ 3002/09 Israel Medical Association v. Prime Minister of Israel (June 9, 2009) (hereinafter: the Medical Association case). That case concerned a petition challenging the continued service of Knesset Member Rabbi Yaakov Litzman, who, on April 6, 2009, had been appointed to serve as Deputy Minister of Health, with the status of Deputy Minister with the status of a Minister. In our judgment in that case, we held that the said institution has no grounding in Basic Law: The Government. However, in light of the historical background, and in view of the quasi-reliance that had been created, we denied that petition, but made it clear that such a situation could not be repeated in the future, and we therefore issued a “warning of voidance” (see: para.41 of the opinion of my colleague (then) Justice E. Rubinstein, who wrote the primary opinion in that case, in which President D. Beinisch and I concurred).

            In the Medical Association case, I raised a possible reason for the “warning of voidance”. I presented the question whether, due to the rescission of the provision in the previous Basic Law: The Government (which was based upon the concept of direct, personal election of the Prime Minister in direct, equal, national general elections by secret-ballot), and which expressly permitted the Prime Minister to serve as a minister responsible for a ministry, we could not say that the provisions of the current Basic Law (established March 7, 2001) prohibited such parallel service (except under the circumstances of secs. 24(b) and (c) of Basic Law: The Government, and that the affirmative provisions of those sections implied a negative conclusion in regard to other situations), and that inasmuch as, in any case, the Prime Minister could not serve as a minister, as noted, he could not appoint a deputy for himself in that capacity (hereinafter: the new interpretation). In this regard, I listed a number of interpretive and constitutional considerations, inter alia, from comparative law, that support the new interpretation, while noting that there are a few reasons justifying the practice that had been followed until that time, by which the Prime Minister occasionally served as a minister responsible for a ministry (hereinafter: the old interpretation). In conclusion, I expressed the opinion that even if the new interpretation may appear preferable, the constitutional system should be allowed to internalize this alternative, and either conform to it or respond to it. I added in this regard:

What is required here is that if the constituent authority is of the view that the said interpretation should not be accepted, then it will surely know how to express its position – either by clarification or amendment of the relevant Basic Law (ibid., para. 6(b) of my opinion).

            President D. Beinisch opposed my said approach, although noting that my examination was: “comprehensive and interesting”, and “raises new – and perhaps appropriate – thought about our system”. However, she was of the opinion – on the basis of an examination of former case law and practice – that the change that I pointed out required express reference in the Basic Law, that she believed was lacking (ibid., para. 2 of her opinion).

            As opposed to this, my colleague (then) Justice Rubinstein responded to my opinion as follows:

It would seem to me that, at present, we remain in the framework of the existing constitutional custom, which was not rescinded by the current Basic Law, and which was approved by the Knesset. Therefore, no one questioned the Prime Minister’s fulfilling additional ministerial roles. Deciding the questions raised by my colleague was left, by him as well, for a later date. However, as for myself,  I find the approach that my colleague  proposed to be persuasive on its face, but we do not live in an ideal world, and it requires future examination, as the Chinese proverb goes: a journey of a thousand miles begins with a single step (ibid., para 43 of his opinion).

3.         Merely six years have passed, and the problem has again arisen before us in all its ramifications, as in presenting his new government before the Knesset, on May 14, 2015,  Prime Minister Benjamin Netanyahu assumed the roles Minister of Foreign Affairs, Minister of Health, Minister of Communications, and Minister of Regional Coordination, and thereafter, appointed deputy ministers in the Ministry of Health (Knesset Member Yaakov Litzman), the Ministry of Foreign Affairs (Knesset Member Tzipora Hotoveli), and the Ministry of Regional Coordination (Knesset Member Ayoob Kara).

4.         In the framework of the petition filed by the Petitioner challenging the above conduct, we decided, on July 13, 2015, that the proceedings would be separated such that a partial judgment would be given in the matter of the institution of a “Deputy Minister with the status of a Minister”, and that the examination of the other issue, concerning the Prime Minister’s authority to serve simultaneously as a minister responsible for a ministry, would continue thereafter.

5.         On Aug. 23, 2015, after hearing the arguments of the Parties’ attorneys, we issued a partial judgment in which we held that the institution of a “Deputy Minister with the status of a Minister” no longer has legal force. Pursuant to that judgment, Prime Minister Benjamin Netanyahu ceased to serve as Minister of Health, and the Deputy Minister of Health, Knesset Member Yaakov Litzman, was appointed Minister of Health on Sept. 2, 2015.

6.         Thereafter, on Nov. 10, 2015, we heard arguments on the second issue that had remained pending. On that question, I arrived at the conclusion that it would appear that, under normal circumstances, the Prime Minister lacks authority to serve as a minister responsible for a ministry, alongside his high office, inasmuch as not only is the new interpretation that I presented in the Medical Association case preferable, but the changes since introduced to Basic Law: The Government require the conclusion that it is the only possible interpretation.

            I will, therefore, now present the reasoning. My arguments will be set out as follows: In Chapter I, I will consider the interpretation of the constitutional text from within. In Chapter II, I will present the theory of implied constitutional interpretation, and the tools and elements that compose it and which will serve me thereafter. In Chapter III, I will address the relevant constitutional and case-law history. In Chapter IV, I will proceed to an examination of the constitutional values that ground my approach, as well as the imports to be learned from comparative law in this matter. In the course of these chapters, I will, where appropriate, refute the counter arguments presented by the Respondents. In Chapter V, I will examine the power of the constitutional custom that, as argued, applies to this matter. Finally, in Chapter VI, I will present a summary and conclusions. In view of the fact that after writing my opinion, I received the opinions of my colleagues, and the afterward written by my colleague the President, I will complete my examination with a brief afterward.

            I will now, therefore, present my arguments in order – first things first, and last things last.

Chapter I: Interpreting the Constitutional Text from Within

7.         Basic Law: The Government, and our other Basic Laws, as well, are chapters of our future Constitution. Their interpretation is based, first and foremost, upon their written text, on the assumption that we are treating of a formal constitution, and not an unwritten constitution, which has different rules of design and interpretation. In interpreting the text of a formal constitution (hereinafter: the express constitution), significance must be attributed to the express meaning of the written text, but also to its implied meaning (hereinafter: the implied constitution) (see: Prof. Aharon Barak, On Implication in a Written Constitution, 1-6 (to be published in 45 (3) Mishpatim (2016) (hereinafter: Barak, On Implication in a Written Constitution). The said interpretive framework is delimited: on the one hand, it does not treat of an “open fabric”, like an unwritten constitution that is often influenced by constitutional customs and conventions (see the references in fn. 20 of Barak, On Implication in a Written Constitution), while on the other hand, it does not address the constitution as a code, which is assumed to be comprehensive. This is especially true in our case, where the constitutional project has not yet been completed. Therefore, alongside the constitutional norms that can be derived from the express provisions of the Basic Law, we can also draw additional rules from what may be learned or inferred “between the lines”, as if it were written there – in President Barak’s metaphoric language – “in invisible ink” (see: HCJ 2257/04 Hadash-Ta’al Faction v. Chairwoman of the Central Elections Committee for the 17th Knesset, IsrSC 58 (6) 685, 703 (2004) (hereinafter: the Hadash Faction case); see and compare: Laurence H. Tribe, The Invisible Constitution (2008) (hereinafter: Tribe); Akhil Reed Amar, America’s Unwritten Constitution: The Precedents and Principles We Live Ny (2012) (hereinafter: Amar).

            This approach is also essentially consistent with Jewish heritage in regard to the relationship between the Written Torah and the Oral Torah, upon which I will not expand here.

8.         I will, therefore, commence with an examination of the relevant, express provisions of the current Basic Law: The Government, and their implications for the matter before us. In so doing, I will refer to the current text of Basic Law: The Government, while, inter alia, bearing in mind the constitutional principle that Basic Law: The Government, as such (like every Basic Law) is undated (for the implications of this, see: CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49 (4) 221, 560-561 (1995) per Justice M. Cheshin [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper... (hereinafter: the Mizrahi Bank case). Thereafter – in view of the arguments of the Parties’ attorneys and the position of my colleague the President – in Chapter III, I will separately address the influence of the vicissitudes in the “history” of Basic Law: The Government, and the case law that addresses it and its interpretation (and compare: HCJ 4031/94 B’Tzedek v. Prime Minister, IsrSC 48 (5) 1 (1994)).

            I will, therefore, now turn to a survey of the said provisions from the perspective of a jurist examining and interpreting the various provisions of an express constitution from within.

9.         Section 1 of Basic Law: The Government states as follows:

                        What the Government is

  1. The Government is the executive authority of the State.

This provision is of great significance, in that it presents (as a heading of the section) the substance of the collective body. On the basis of this section, the Government (as opposed to the Prime Minister) is considered the Executive Branch of the State (see: Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government, 100, 235 (to be published) (Hebrew) (hereinafter: Shetreet, The Executive Branch)). In this regard, our form of government differs, for example, form that of the presidential system of the United States (where the President is the Executive Branch). This fundamental principle must be borne in mind, inasmuch as in the hearing of Nov. 10, 2015, the State Attorney’s representative affirmed, on behalf of respondents 1-6, that according to the legal approach that she asserted, the Prime Minister can also fill the roles of all of the ministers (p. 5 of the protocol). That approach deprives sec. 1 of Basic Law: The Government of all meaning, as it does for sec. 5 of the Basic Law: The Government, which I will address in the following paragraph. It is worth noting in this regard that although, in his book, Prof. Shetreet supports leaving the old interpretation in place (inter alia, in accordance with the quote cited in para. 14 of the opinion of my colleague the President), he is of the opinion that a situation in which the Prime Minister is responsible for a only a few ministries “is inconsistent with the spirit of the Basic Law, according to which the Government, in its entirety, constitutes the Executive Branch” (Shetreet, The Executive Branch, p. 235).

10.       Section 5 of Basic Law: The Government states:

                        The Government is composed of the Prime Minister and other Ministers.

            From this provision we learn several things:

(a)        The collective body (the Government) comprises two elements: the Prime Minister, on one hand, and the Ministers, on the other (on the meaning of “other Ministers”, see subsec. (d), below). It would thus appear that each element of this definition stands on its own, and when it was necessary to view them in common, the framers referred to them as “Government members”. See sec. 5(f) of Basic Law: The Government, which instructs as follows:

The number of Government members, including the Prime Minister, shall not exceed 19, unless the Knesset has expressed confidence in the Government, or has decided to approve the addition of Ministers to the Government, by a majority of at least seventy Members of the Knesset.

            Here we should note that according to the approach presented by the Respondents, according to which the Prime Minister is also a minister, it would have been sufficient to say: “The number of Ministers shall not exceed 19”. Moreover, according to the approach asserted by the attorney for Respondents 1-6, the Prime Minister can himself assume all the roles of the ministers, such that sec. 5(a) would be a dead letter.

(b)        The term employed for the person who heads the Government is “Head of the Government” [Rosh HaMemshala] and not Head of the Ministers or First Minister.[2] I emphasize this because in England, from which we originally drew our constitutional system (see; the Mizrahi Bank case, p. 280; Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 1: Basic Principles 17 (6th ed., 2005) (Hebrew)), the role of the Prime Minister developed as a “constitutional convention” that was based upon an institution that came to England from France, where, after the death of Louis XIV (in 1715), the first person termed Premier Minister or Principle Minister was appointed. Pursuant to that, the English Sir Robert Walpole, who was appointed to a parallel position in Great Britain in 1722, was termed Premier Minister, and is thought of as the “First Prime Minister of England”, although his official ministerial title was “The First Lord of the Treasury” (see: Lord Robert Blake, The Office of Prime Minister 6 (1975); Rodney Brazier, Ministers of the Crown 5 (1997) (hereinafter: Brazier); Leopold O. Hood Phillips and Jackson Hood, Constitutional and Administrative Law 358-360 (8th ed., 2001) (hereinafter: Hood Phillips); A.W. Bradley and K.D. Ewing, Constitutional and Administrative Law 969 (14th ed., 2008) (hereinafter: Bradley)).

(c)        We would here note that, over the course of years, the British Prime Minister also assumed various ministerial roles (as, for example, Churchill in WWII; however, the last to do so in Britain were Clement Attlee, who also served as Minister of Defence during the first 17 months of his tenure (which continued from July 27, 1945 until Oct. 26, 1951), and Harold Wilson, who also took charge of the Department of Economic Affairs in 1967 – see: Brazier, p. 81 fn. 81, and Bradley, p. 970). This practice was not foreign to the English constitutional culture, inasmuch as the office of prime minister – as noted – developed from the role of a regular minister to whom the other minsters were subject. Formally speaking, to this day the British Prime Minister also carries the titles of First Lord of the Treasury and Minister for the Civil Service (even though that government agency was disbanded in 1981), but this anomaly can be explained by the fact that it is only by virtue of these titles, and British tradition, that the British Prime Minister (under the relevant laws) can receive a salary and a pension (see: Hood Phillips, 309).

            To complete the picture, I would further note that in the area with which we are concerned, even the British “constitutional convention” has been moving in the direction of the new interpretation, and the constitutional rule is now stated, with typical British understatement, as follows:

No Prime Minister, however, is likely to burden himself with another department nowadays (Brazier, p. 81).

            Moreover, in practice, in England (following the tenure of Harold Wilson as Prime Minister from 1964 to 1970), and in Canada (following the tenure of Jean Chrétien as Prime Minister from 1993 to 2003), the view that has developed is that, in principle, the Prime Minister serves only as the conductor of an orchestra, and as a rule, he should not also serve as one of the musicians (see: Harold Wilson, The Labour Government 1964-1970: A Personal Record (1971); Jean Chrétien, My Years as Prime Minister 33 (2010)). This is also the accepted model in Japan in regard to the status of the Prime Minister (see: Peter Gourevitch, Domestic Politics and International Relations, in Handbook of International Relations 309 (Walter Carlsnaes, Thomas Risse & Beth A. Simmons eds. (London: Sage, 2002).

            A similar approach would appear to be expressed in Israel – even in the title of the position (Head of the Government), which embodies a departure from the classic British concept under which the holder of the office is merely “first among equal (ministers)” – primus inter pares. This is also how the matter was interpreted by the Committee for the Examination of the Office of the Prime Minister (whose members were: Yossi Kuchik (chair), Yael Adorn, Prof. David Dry, Prof. Gideon Sapir, and Adv. Dror Strum), which, in its discussion of sec. 5 of Basic Law: The Government, expressed the following opinion:

We are not concerned with a first-among-equals model, but rather with a model of a prime minister who holds a different, preeminent role in relation to his ministers (Committee Report of April 2012, p. 28).

(d)       As noted, the Respondents seek to rely on the wording “The Government is composed of the Prime Minister and other Ministers”, and their emphasis of the word other, indicating that Prime Minister is also a minister. That may be a possible understanding for certain matters (for example, in regard to salary and pension – see: sec. 36 of Basic Law: The Government, and compare the English practice described in ss. (c), above), but I read the emphasis of the word other otherwise.

            In my opinion, what we should infer from sec. 5(a) of Basic Law: The Government is that the framers sought to emphasize that the ministers are different (other) than the Prime Minister – the latter characterized as being sui generis, while the remaining ministers are “other ministers”.

            The interpretation advanced by the Respondents is a two-stage statement: At the first stage, they infer from the fact that sec. 5(a) of Basic Law: The Government speaks of “other ministers” that the Prime Minister is also a minister. At the second stage, they seek to apply every provision of Basic Law: The Government that mentions a minister as referring to the Prime Minister, as well, unless the constitutional text expressly states otherwise (see, for example: secs. 22(a), 24(a) and 31(a) of Basic Law: The Government). In my opinion, this approach suffers from two flaws:

(1)        It “stretches” the “broad” approach to constitutional interpretation (adopted in HCJ 6924/00 Shtenger v. Prime Minister, IsrSC 45 (2) 485 (2001)) beyond what is legitimate, as constitutional interpretation – even if “broad” – must follow the middle path, faithful to the “constitutional spirit”, and be understood to all, without casuistry (and compare: “We the people” of the American Constitution, and see: Amar and Tribe; and Bruce Ackerman, We the People: Foundations (1991); Bruce Ackerman, We the People: Transformations (1998); Bruce Ackerman, We the People: The Civil Rights Revolution (2014); James E. Fleming, Fidelity to Our Imperfect Constitution: For Moral Reading and Against Originalisms, Chap. 7, Fidelity to Our Living Constitution: Honoring the Achievements of We The People (2015).

(2)        It deviates from the subject, inasmuch as the question is not whether the Prime Minister can be considered a minister at certain times and for specific purposes, but rather whether the Prime Minister can serve as the minister responsible for a government ministry alongside his said high office (on the distinction between the two concepts, see, for example: sec. 5(c) and 26(2) of Basic Law: The Government). According to my approach, the conclusion to be drawn in this regard, both from the express constitution and from the implied constitution (as I will demonstrate below), is negative, inasmuch as sec. 5(a) of Basic Law: The Government should be read as follows: “The Government is composed of the Prime Minister and others (who are) Ministers”.

            This approach is specifically expressed in many of the provisions of Basic Law: The Government (in Chap. III, concerning the relevant constitutional history, I will separately address the significance of the fact that the current wording of sec. 5(a) of Basic Law: The Government was found in the original Basic Law: The Government, was then changed in Basic Law: The Government of 1992, and returned to its original wording in Basic Law: The Government in 2001).

            I will demonstrate this presently.

11.       The conception of the uniqueness of the status and role of the Prime Minister gains additional weight to that presented above in sec. 5(b) of Basic Law: The Government, which states as follows:

The Prime Minister shall be a member of the Knesset. A Minister need not be a member of the Knesset [the Deputy Prime Minister, when one is appointed, must also be a member of the Knesset – see: sec. 5(d) of Basic Law: The Government] (emphasis added – M.C.).

            Moreover, sec. 5(c) of Basic Law: The Government, immediately following sec. 5(b), emphasizes and establishes:

A Minister shall be in charge of a Ministry; there may be Ministers without Portfolio.

            It would appear that, here, the term “minister” does not include the Prime Minister, inasmuch as complementary to and separate from what is established in sec. 5(c) of Basic Law: The Government, the provision of sec. 25(a) of Basic Law: The Government informs us that the Prime Minister is in charge of the Prime Minister’s Office. Therefore – by virtue of sec. 25(a) – a deputy minister appointed by the Prime Minister is titled: “a Deputy Minister in the Prime Minister’s Office”.

12.       A conclusion similar to that presented above can also be inferred from the special responsibility provision at the end of sec. 4 of Basic Law: The Government (“a Minister is responsible to the Prime Minister for the field of responsibility with which the Minister has been charged”), which precedes the provision of sec. 5(c) of Basic Law: The Government. This is the personal responsibility of each and every minister to the Prime Minister in regard to the fulfilling of his role as a minister (see: HCJ 5261/04 Fuchs v. Prime Minister, IsrSC 59 (2) 446, 461 (2009) [http://versa.cardozo.yu.edu/opinions/fuchs-v-prime-minister]). The said instruction thus makes it clear why, in general, the Prime Minister cannot serve as a minister responsible for a ministry, inasmuch as in such a case, whence the ministerial responsibility to him?

13.       The approach presented here is also required by the separate declaration of allegiance of the Prime Minister, as such, as opposed to that of all the other ministers, as such, under sec. 14 of Basic Law: The Government. That wording is not appropriate to a prime minister who is also a minister, and indeed, on May 14, 2015, the Prime Minister, Knesset Member Benjamin Netanyahu, only made a declaration of allegiance as a Prime Minister, and did not make  additional declarations of allegiance in his capacity as Foreign Minister, Minister of Health, Minister of Communications, and Minister of Regional Coordination (on the importance of the wording of the declaration of allegiance, see: HCJ 400/87 Rabbi Meir Kahane v. Speaker of the Knesset, IsrSC 41 (2) 729 (1987)).

            Moreover, the provision regarding an acting prime minister, in sec. 16(b) of Basic Law: The Government, does not provide an arrangement for an acting minister in a ministerial position held by the Prime Minister. This, too, would appear to show that such doubling-up is impossible.

14.       The Respondents’ approach is also contradicted by the provision of sec. 37(b) of Basic Law: The Government, which establishes:

A law may empower the Prime Minister or a Minister to make regulations in a matter decided by agreement (emphasis added – M.C.).

            Under the Respondents’ approach, the above “or” is apparently superfluous, inasmuch as they read “Minister” as including the Prime Minister, and it is, therefore, mystifying why, under their approach, the section is worded as it is.

15.       The Respondents’ approach also raises serious practical difficulties, as I will explain in detail:

(a)        Section 42(b) of Basic Law: The Government instructs as follows:

The Knesset may, at the request of at least forty of its members, conduct a session with the participation of the Prime Minister, pertaining to a topic decided upon; requests as stated may be submitted no more than once a month.

            (Section 45 of the Knesset Rules sets out the special arrangements that apply to such sessions).

            The reason for the provision is clear – to require the Prime Minister to appear before the Knesset in regard to a matter of importance to the public agenda, provided that the conditions of sec. 42(b) of Basic Law: The Government are met (see: Shetreet, The Executive Branch, pp 517-518).

            Alongside this provision, sec. 42(c) of Basic Law: The Government states:

The Knesset, and any of the Knesset committees within the framework of their tasks, may obligate a Minister to appear before it, and may obligate a Deputy Minister to appear before it, by means of, or with the knowledge of, the Minister who appointed him (emphasis added – M.C.).

            (For the interpretation of the section, see: Shetreet, The Executive Branch, p. 518).

            Now, when the Prime Minister also serves as a minster responsible for a ministry, can the Knesset, and any of its committees, obligate the Prime Minister to appear before it in his capacity as a minister, and not in accordance with the procedure established under sec. 42(b) of Basic Law: The Government? I would think that the answer must be in the negative, inasmuch as sec. 42(b) would appear to be a lex specialis for the Prime Minister. Thus, clearly, Basic Law: The Government did not contemplate a situation in which, as a matter of course, the Prime Minister would also serve as a minister responsible for a ministry, and therefore, sec. 42(b) of Basic Law: The Government is not only exclusive and exhaustive, but it also does not treat of a situation of the kind a double role that is the subject of this proceeding.

(b)        Neither Basic Law: The Government, nor The Government Law, 5761-2001, provides any provision concerning the voting of a prime minister who is also a minister responsible for a ministry. How, therefore, should his vote be counted? Once, or in accordance with the number of his ministerial appointments, in addition to his vote as Prime Minister? This is only because such a situation was not foreseen as a general possibility, and was not provided for by the framers and the legislature. Yet, such votes can be of critical importance for the Government, in the Ministerial Committee for National Security, and in other ministerial committees (the Attorney General addressed this matter in Directive no. 1.11.01 of Dec. 1, 1985, which was last updated in May 2015, in which he arrived at the conclusion that the number of votes in the Government is equal to the number of members of the Government, and are apportioned as one vote for each member of the Government).

(c)        Let us assume, for example, that the Prime Minister assumed the post of Minister of the Economy. As such, he is supposed to serve as a member of the Judges’ Election Committee for Labour Court Judges (see: sec. 4(b) of Basic Law: The Judiciary, and sec. 4 of the Labour Courts Law, 5729-1969). In such a case, would he serve under the Minister of Justice, who is meant to serve as chair of the Committee? Once again, it would appear that the law provides no solution for such a situation, inasmuch as the legislature’s assumption was that such a double role was not normally possible (the situation created by the operation of sec. 24(b) of Basic Law: The Government is different and resolvable due to its temporary nature under sec. 24(c) of Basic Law: The Government, which makes it possible to postpone the sessions of the Elections Committee for a period of up to three months, or by a transfer of authority under sec. 31(b) of Basic Law: The Government).

16.       To all the above provisions, we should add the sections in Basic Law: The Government that treat of the appointment of deputy ministers and their removal from office (secs. 25 and 26 of Basic Law: The Government), which condition the appointment upon the action of “the Minister in charge of the office” and the consent of the Prime Minister (as well as the approval of the Government), while in a case of termination by the Prime Minister, it is contingent upon prior notice of that intention to the Government and the minister who appointed the deputy minister. This, too, would seem to lead to the conclusion that the Prime Minister and the minister in charge of the ministry cannot usually “merge” into one personality.

17.       Up until now, I have presented various provisions of Basic Law: The Government that indicate that serving as Prime Minister is inconsistent with serving as the minister in charge of a government ministry. I will now attempt to show “the crooked from the straight”, inasmuch as Basic Law: The Government sets out exceptions to the rule cited at the outset, and this demonstrates that the Prime Minister can serve as the minister in charge of a ministry only in the framework of those exceptions. These provisions must be narrowly construed, and we must conclude in their regard that expressio unius est exclusio alterius (see: the opinion of my colleague the President in HCJ 10017/09 Dolev Foundation for Medical Justice v. Government of Israel (May 25, 2010) (hereinafter: the Dolev Foundation case), and my opinion in HCJ 2944/10, HCJ 8692/11 Avraham Kuritzky v. Labour Court (Oct. 13, 2015), and the petitions for a Further Hearing on that judgment (HCJFH 7730/15; HCJFH 7649/15) which were dismissed on Feb. 13, 2016; a further discussion of this principle will be presented in Chap. III).

            The provision under discussion is that established under sec. 24(b) of Basic Law: The Government, stating:

Should a Minister be temporarily incapable of discharging his duties, the Prime Minister or another Minister appointed by the Government will discharge his duties.

            Section 24(c) of Basic Law: The Government completes the said arrangement, stating:

The period of tenure of an Acting Minister under subsection (b) will not exceed three months.

            The two provisions, taken together, show that when a minister ceases to serve, or is incapable of discharging his duties, the default arrangement is that the Prime Minister assumes his duties (see: Shetreet, The Executive Branch, p. 362) for a period that shall not exceed three months, and without a need for Knesset approval, which would otherwise be required (but see sec. 10(b)(6) of The Government Law, 5761-2001, which requires that, in such a case, the Government publish notice of the appointment of an acting minister in the Official Gazette).

            From this we can infer that, in addition to his high office, the Prime Minister also holds a a potential office – to serve as an acting minister for a period of three months (if the Government has not decided otherwise) in place of a minister who has ceased or is temporarily unable to carry out his duties. Beyond that, it would appear that he cannot serve as a minister in charge of a ministry, inasmuch as such parallel service in other circumstances lacks grounding in Basic Law: The Government, as we held in regard to a “Deputy Minister with the status of a Minister” (the section that expressly authorized this in the past in the previous Basic Law: The Government was, as noted, rescinded, the consequences of which I will further address at greater length in Chapter III, below).

            At this point we should note that even recently (while this Petition was pending), the authority established under sec. 24(b) of Basic Law: The Government was employed twice: Once, after the Minister of the Economy, Knesset Member Aryeh Makhlouf Deri, resigned from that post on Nov. 1, 2015, and again after the Minister of the Interior, Knesset Member Silvan Shalom, resigned from his post on Dec. 24, 2015. Then, the Prime Minister assumed their places when their resignations went into effect (in addition to his then being Prime Minister, as well as the minister in charge of the following ministries: the Ministry of Foreign Affairs, the Ministry of Communications, and the Ministry of Regional Cooperation).

            This serves to show that further authority lacking statutory grounds should not be added to the potential authority imposed by law as a solution for the exigencies that may arise from time to time, which, not to mention,  places a burden upon the Prime Minister in the case of its (generally unforeseen) occurrence.

            In this regard, we hear the echo of Jethro’s warning to Moses:

The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you, you cannot do it alone (Exodus 18:17-18).

18.       A partial summary up to this point leads, in my opinion, to the conclusion that the express constitution (Basic Law: The Government) does not grant the Prime Minister authority, as such, to serve simultaneously as a minister in charge of a government ministry, except in the situations set out is secs. 24(b) and (c) of Basic Law: The Government (serving as an acting minister in place of a minister who has ceased or is temporarily unable to carry out his duties). The question remains whether the implied constitution, to the extent that it exists, might change that conclusion. I will focus on that question and what derives therefrom, below.

19.       My colleague the President sets out from a different point of departure than mine. She is of the opinion that the current Basic Law is silent on the question of the Prime Minister’s authority to serve as the minister in charge of a ministry in addition to his high office, as opposed to the view that I expressed, according to her analysis, in the Medical Association case in which, in her opinion, my position was that the silence of current Basic Law should be understood as a negative arrangement. According to her approach, the Basic Law’s silence does not represent a negative constitutional arrangement, but rather a positive constitutional implication, in the sense of the distinctions proposed in the writings of Prof. A. Barak (see paras. 5 and 6 of her opinion). Moreover, according to her opinion, we are not concerned with a question of authority, but rather a question concerning the Prime Minister’s broad discretion in forming a government (which, as we know, can be challenged separately on the grounds of unreasonableness and disproportionality, particularly when the quantity becomes a matter of quality).

            Thus, both my colleague and I agree that an implied meaning can be inferred from the express meaning of the constitutional text, but while I am of the opinion that we are concerned with a negative arrangement, my colleague the President is of the opinion that we are concerned with a positive implication. Thus, she holds the view that the explicit arrangement established in the Basic Law can also apply to a subject that is not expressly addressed by it, and in her opinion, that is the case before us (this approach must still answer the question of why the constitutional implication deviates from the three-month period established in sec. 24(c) of Basic Law: The Government). My colleague the President’s interpretive conclusion is required, under her approach, by the purposes grounding the current Basic Law, and by the customary practice in this regard. We are, therefore, in disagreement not on the very existence of the theory of implication, but rather on its application to the matter before us and its scope. I will, therefore, dedicate a few preliminary remarks to this subject before proceeding to examine the disagreement on its merits.

Chapter II: The Theory of Implied Constitutional Interpretation

20.       Implication theory has respectable philosophical, linguistic (in the field of pragmatics), logical, and legal roots (see: Barak, On Implication in a Written Constitution).

            I will now present two examples that illustrate the need for implication theory and its consequences – as a negative arrangement or a positive implication:

(a)        Grice, who developed the foundations of pragmatics, gives the following case as an example:

A philosophy professor is asked by one of his students to write a letter of recommendation for a teaching position; in his recommendation, he writes that the student has good command of English and that he has regularly attended classes. It seems that we should have no difficulty in inferring from this, by implication, that the professor does not think much of the student’s philosophical abilities. This meaning – a poor opinion of philosophical ability – is not learned directly from the language of the professor’s statement; it is implied from the context in which it was made (see: Paul Grice In the Way of Words 33 (1989); the above example is taken from its presentation in Barak, On Implication in a Written Constitution, p. 2 [English: Aharon Barak, On Constitutional Implication and Constitutional Structure, in Philosophical Foundations of Constitutional Law, David Dyzenhaus & Malcolm Thorburn, eds. (Oxford, 2016)]).

(b)        In his book (cited in para. 7, above), Professor Amar analyzes the procedure for the impeachment of the President of the United States under the American Constitution. The impeachment proceedings are conducted before the Senate, but while the person who generally presides over Senate sessions is the Vice President on the United States, the Constitution provides that when the President of the United States is tried, the Chief Justice of the Supreme Court shall preside. The reason is obvious – the Vice President has an interest in the result of the proceedings. However, the Constitution does not comprise special provisions for impeachment proceedings in regard to the Vice President, which are also conducted before the Senate. Is it conceivable that the Vice President would preside over the Senate at his own trial? The implied answer requires that we adopt an arrangement similar to that applying to the impeachment of the President, and we thus employ the doctrine of positive implication (see: Amar, pp. 5-13).

21.       We should note that the legislature’s “silence” can sometimes be understood in other ways. Sometimes, that “silence” constitutes a lacuna. At other times, the “silence” represents refraining from taking a stand on a legal issue, while leaving the matter to normative systems external to the express law (see: HCJ 4267/93 Amitai – Citizens for Good Governance and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, IsrSC 47 (5) 441, 457, 475 (1993)).

In light of the fact that the matter before us was already addressed in the past incarnations of Basic Law: The Government, we are not faced with a lacuna or a desire to refrain from taking a stand (compare: HCJ 2458/01 New Family v. Approvals Committee for Surrogate Pregnancies, IsrSC 57 (1) 419, 439 (2002)), but rather one of two possibilities: a “negative arrangement” or a “positive implication”, even if we are concerned with a chance omission. To which category must we assign the subject of the petition, and what tools will help us reach the correct conclusion? On the basis of these questions, we shall ground our conclusion.

22.       No one would appear to disagree in this regard that the internal and external context is decisive. In a constitutional environment, the internal context relies upon the wording, the structure of the constitution as whole, and upon the purposes of the constitution. The external context comprises the circumstances external to the language of the constitutional text. These extend, inter alia, to the constitutional and case-law history, constitutional values, and comparative law (see: Barak, On Implication in a Written Constitution, pp. 23 and 28; Stephen Breyer, Making Our Democracy Work, xii-xiv (2010)). Beyond that, the overall rationality is of great importance (see: Asa Kasher, Gricean Inference Revisited, 29 Philosophica 25 (1982)), or as my colleague Deputy President E. Rubinstein put it: “Common sense is also a member of the club” (see, for example: CrimFH 5852/10 State of Israel v. Shemesh, para 12 (Jan. 9, 2012); CrimA 6833/14 Nafa v. State of Israel, para. 68 (Aug. 31, 2015); CA 5884/08 Kfar Vitkin v. National Insurance Institute, para. 14 (Aug. 26, 2010)).

23.       By means of the above criteria, I will try to show that the matter before us indeed concerns a negative arrangement (and not a positive implication), and that the recent constitutional developments in in Israel and abroad, as well as our fundamental constitutional values, require this conclusion. Here it is apt to note that according to the approach of Prof. Barak in his aforementioned article:

Constitutional change may directly change the implied meaning by an explicit statement that alters it. Constitutional change may also change the implied meaning indirectly, inasmuch as adding constitutional text results in an interpretive conclusion that negates the existence of an implied meaning or that changes its content (Barak, On Implication in a Written Constitution, p. 14, fn 84).

            Such changes indeed took place in the context before us, and those changes transformed the new interpretation from merely preferable to the only interpretation that is now correct.

            I will now proceed to describe this in an orderly fashion.

 

Chapter III: The Relevant Constitutional and Case-Law History

24.       The relevant constitutional and case-law history would appear to support my approach. I will review it below, while relating to the Parties’ arguments:

(a)        The current Basic Law: The Government (Basic Law: The Government, 5761 Sefer HaHukim 158; above and hereinafter, the current Basic Law: The Government) was established by the Knesset on March 7, 2001, and applied to the elections and the formation of the government as of the elections for the 16th Knesset. It repealed the previous Basic Law: The Government (Basic Law: The Government, 5753 Sefer HaHukim 214; above and hereinafter: the previous Basic Law: The Government), which was established by the Knesset on March 18, 1992, and which was premised upon the concept of direct, personal election of the Prime Minister.

            Section 33(d) of the previous Basic Law: The Government clearly and unambiguously stated as follows:

                        The Prime Minister may also function as a Minister appointed over an office.

(b)        The same Basic Law included another provision (sec. 36 of the previous Basic Law: The Government), which addressed a special case – an acting Minister – and it, too, authorized the Prime Minister to serve as a minister, establishing as follows:

(a)        Should the Minister cease to serve, be absent from the country, or be temporarily incapable of discharging his duties, the Prime Minister or another Minister appointed by the Prime Minister will discharge his duties until the Minister resumes his regular duties or until the appointment of his replacement; the Prime Minister will give notification to the Government and to the Speaker of the Knesset regarding the appointed acting Minister, and the Speaker of the Knesset will give notice to the Knesset.

(b)        The period of tenure of an Acting Minister who ceased to serve as stated under subsection (a) will not exceed three months. At the end of that period, the Prime Minister, with the approval of the Government, may appoint a Member of Knesset as a Minister to the position vacated by the Minister as aforesaid, for a period not to exceed one year, and his appointment shall not require approval of the Knesset.

(c)        Without any prior discussion of the matter in the Knesset plenum or the Constitution, Law and Justice Committee, the current Basic Law: The Government entirely omitted the provision of sec. 33(d) of the previous Basic Law: the Government, and established that: “The Prime Minister may also function as a Minister appointed over an office”. It also changed the arrangement in regard to an acting minister, establishing, in sec. 24, as follows:

a) Should a Minister, except for the Prime Minister, be absent from the country, the Government can charge another Minister to take his place. The Acting Minister will discharge the Minister's duties, in all or in part, as determined by the Government.

(b) Should a Minister be temporarily incapable of discharging his duties, the Prime Minister, or another Minister appointed by the Government, will discharge his duties.

(c) The period of tenure of an Acting Minister under subsection (b) will not exceed three months.

            From the affirmative statement of this section, which positively states that the Prime Minister can serve as an acting minister under the conditions established in the section, it would appear that we can learn – as I showed in para. 17, above – a negative statement in regard to other situations, particularly after the repeal of the former section that permitted simultaneous service even under normal circumstances. (For a detailed discussion of the significance of an omission in the course of amending a Basic Law, including the inference expressio unius est exclusio altrius, I refer, without further discussion, to the Hadash Faction case, the Dolev Foundation case, as well as to HCJ 869/92 Nissim Zvili v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46 (2) 692, 706-707 (1992), in which (then) Justice A. Barak inferred a negative arrangement from the absence of any mention of a certain situation in the law, and ruled that in such a case:

                        In any case, a judge cannot compensate for what the legislature did not address.

            Prof. Goldsworthy, one of the great researchers in the field of constitutional implication theory, expressed the opinion that similar weight should be given to the framer’s decision to omit sections from the constitution (as in the case of sec. 33(d) of our previous Basic Law: The Government) as to the drafting of existing sections, their boundaries, and the structure of the constitution (see: Goldsworthy, Constitutional Implication Revisited, 30 Queensland L.J. 9, 21 (2011). As for a constitutional situation like that before us, he states the following:

When the provisions of a legal instrument expressly cover only some instances of a potentially broader class, it is usually more plausible to infer that its limited coverage was deliberate, and to ascribe to it an implication that it excludes members of the class not expressly covered. That implication is expressed by the maxim expresio unius est exclusio alterius.

Judges are surely bound not only by the framers’ ends, but by the means they selected to achieve those ends. That is why it has been said that the framers’ decisions to omit provisions from the Constitution are entitled to as much respect as their decisions to include provisions. Otherwise a constitution is just a set of abstract objectives, which the judges can choose to implement in any way they think fit (ibid., p. 24).

25.       The Respondents try to explain that sec. 33(d) was included in the previous Basic Law: The Government but omitted from the current Basic Law: The Government because, following the move to direct election of the Prime Minister, the Prime Minister constituted an institution materially different from other ministers, whereas, upon the repeal of direct elections, he returned to being merely “first among equals”. Therefore, according to their approach, the framers returned to the formulas they had adopted in the original Basic Law: The Government, according to which – under this approach – the Prime Minister is one among the ministers (thus in sec. 5(a) of the current Basic Law: The Government, and thus in the sections addressing delegation and assumption of powers – now secs. 33 and 34 of the current Basic Law: The Government).

            Unfortunately, this explanation does not answer the questions I raised in regard to this proposition in Chapter I (in the context of the interpretation of Basic Law: The Government from within). For example, how is this compatible with the personal responsibility of a minister in charge of a ministry to the Prime Minister (the end of sec. 4 of Basic Law: The Government). Moreover, this approach of the Respondents ignores the dramatic significance for the matter before us that must be afforded to the amendment of Basic Law: The Government of March 11, 2014 (Sefer HaHukim 2440 of 17 Adar II 5774 – March 19, 2014, p. 346) in regard to an expression of non-confidence in the Government, as I shall presently explain.

26.       In the said amendment (hereinafter: the Governance Amendment), the framers adopted the concept of full constructive non-confidence, which the proposers of the Amendment “imported” from the German and Belgian constitutional law systems, with certain changes (before that, we had a partial constructive non-confidence approach, by which the initiators of a no-confidence motion were not required to propose an alternative Government, or express confidence in it, but rather only propose a potential formateur, who might form a new Government, and pass a no-confidence motion against the reigning Government by a majority of the members of the Knesset (see: Basic Law: The Knesset (Enhancement of Governance) (Amendment) Bill, Hatzaot Hok HaKnesset 512 of 15 Av 5773, July 22, 2013, pp. 46-47; the statement of the Legal Adviser to the Knesset Constitution, Law and Justice Committee in its session of Nov. 25, 2013, at p. 29; on the history of the no-confidence apparatus in Basic Law: The Government, also see: Shetreet, The Executive Branch, 380-386)).

            The current wording, which comprises full constructive non-confidence, establishes as follows, under sec. 28(b) of the current Basic Law: The Government:

An expression of no-confidence in the Government shall be by means of a resolution of the Knesset, adopted by a majority of its Members, to express confidence in another Government that has announced its basic lines of policy, its composition and the distribution of functions among the Ministers, as stated in section 13(d). The Government is constituted when the Knesset has expressed confidence in it, and the Ministers shall thereupon assume office.

            This is a “mirror image” of the provisions of sec. 13(d) of the current Basic Law: The Government, which provide as follows:

When a Government has been formed, it shall present itself to the Knesset, shall announce the basic lines of its policy, its composition and the distribution of functions among the Ministers, and shall ask for an expression of confidence. The Government is constituted when the Knesset has expressed confidence in it, and the Ministers shall thereupon assume office.

            In view of the above provisions, if the Respondents’ proposition is correct, then after the establishment of full constructive non-confidence in the Governance Amendment, it should be sufficient – for the purposes of sec. 28(b) of Basic Law: The Government – that the initiator of a no-confidence motion name only a proposed alternative prime minister (who would also serve as the minister in charge of the other ministries, inasmuch as Respondents 1-6 declared, as noted, that, according to their approach, the Prime Minister can fulfil the roles of all the ministers (see para. 9, above)). We have thus – by means of the approach of Respondents 1-6 – returned to the former constitutional situation, under which it was sufficient that 61 Members of Knesset join together to topple the Government, and propose a potential prime minister, and the purpose of the Amendment will be frustrated.

            It would seem superfluous to say that we should not interpret the composition of an existing Government that receives the Knesset’s confidence differently from the formation of a proposed alternative Government in the course of a no-confidence vote under the Governance Amendment. Thus, the entire scaffolding upon which the Respondents built their arguments collapses, and the new interpretation stands alone and is as the necessary result.

            We should note that in German constitutional law – from which, as noted, we drew the principles of the concept of full constructive non-confidence – the interpreters arrived at a similar conclusion (in the German post-war period, as since the days of Chancellor Conrad Adenauer (in the 1950s and thereafter) the German Chancellor has not assumed the role of a minister in charge of a ministry). I will address this in Chapter IV.

27.       Moreover, in the framework addressed in this chapter, we consider not only changes introduced to the Basic Law, but also constitutional case law. Therefore, we should recall that, as the Petitioner noted in the hearing, objections against the Prime Minister’s serving as a minister in charge of an ministry were raised even before the Medical Association case, in petitions filed by (then)[3] Adv. Yariv Levin and the Movement for Quality Government in Israel against Prime Minister Ehud Olmert (HCJ 7375/06 and HCJ 9617/06 respectively). The petitions challenged Prime Minister Olmert’s serving as Minister of Welfare, and the petitioners argued that such parallel service was not legally possible under Basic Law: The Government, and that the such service was improper from a practical point of view due to the great importance of the Welfare portfolio.

            In his petition, (then) Advocate Levin argued, inter alia:

Can it be argued that this is a “negative arrangement” that prevents the Prime Minister from serving simultaneously as a minister? To the best of the Petitioner’s knowledge, this question has not yet been addressed by this Court. However, the Petitioner is of the opinion that a situation in which the Prime Minister holds a portfolio in addition to his role is undesirable, and inherently poses a situation of conflict of interests between his role and responsibility as Prime Minister, and the interests of the ministry of which he is in charge. This is so due to the nature of the job of the Prime Minister, which requires that he see “the big picture” and in many cases, decide upon the relative priorities among the interests of different government ministries. Clearly, it would be difficult for the Prime Minister to carry out this function when he must make such a decision in regard to a ministry over which he is in charge. Therefore, the Petitioner is of the opinion that there is good reason for the express provision of section 24 of Basic Law: The Government in regard to placing a government ministry in the hands of the Prime Minister by means of a temporary appointment, as opposed to the absence of such a provision for a permanent appointment. It would seem that even the legislature was of the opinion that a situation in which the Prime Minister also serves as a minister in a government ministry is not the desirable, appropriate situation for the proper functioning of the ministry and the government as a whole (pp 15-16 of the above petition in HCJ 7375, para. 44(c)).

            A preliminary hearing was held in those petitions on Jan. 29, 2007 (before President D. Beinisch, Deputy President E. Rivlin, and Justice D. Cheshin), during which the Government informed the Court that a Minister of Welfare would soon be appointed. Therefore, a brief judgment was issued that very day, in the following language:

In light of the State’s notice that a Minister of Welfare will soon be appointed, and at the suggestion of the Court, the Petitioners withdrew their petitions while reserving their arguments. The petitions are dismissed.

            Thereafter, on March 19, 2006, a Minister of Welfare was indeed appointed (Knesset Member Yitzhak Herzog).

            It would appear that the said sequence of events and the above quote speak for themselves. This chapter has thus proven that even the constitutional and case-law history lead to the conclusion that, in general, simultaneous service by the Prime Minister as a minister in charge of a ministry is prohibited.

            In the following chapter, I will show that even the relevant constitutional values and inspirations from comparative law all lead to the same conclusion.

 

Chapter IV: The Underlying Constitutional Values, and the Implications of Comparative Law for the Matter before Us

28.       In his book (above, para. 7), Professor Amar, one of the great constitutional jurists in the United States, and one of the developers of the theory of constitutional implication there, explained that a constitution should not be read literally, but rather faithfully to its framers and its beneficiaries (the citizens), and that this should be accomplished in light of the constitutional values that ground it. He writes in this regard (ibid., p. 6):

The key that unlocks the door is the simple idea that no clause of the Constitution exists in textual isolation. We must read the document as a whole. Doing so will enable us to detect larger structures of meaning — rules and principles residing between the lines. For example, although no single clause explicitly affirms a “separation of powers,” or a system of “checks and balances,” or “federalism,” the document writ large does reflect these constitutional concepts. This much is old hat.

            (Further on, he argues that it is sometimes possible to infer an implied meaning contrary to the explicit text of the Constitution, in which regard I agree with the opinion of Prof. Barak, who is of the view that that would be going too far, inasmuch as the implied meaning – even as analytically defined – cannot contradict the explicit meaning (see: Barak, On Implication in a Written Constitution, pp. 6 and 16)).

            I will now turn to an analysis of the relevant constitutional values, which all lead to the understanding that the Prime Minister cannot generally serve as a minister in charge of a ministry.

29.       What are those fundamental values underlying the existing Basic Laws that lead to the conclusion that the Prime Minister cannot generally serve as a minister in charge of a ministry? We are concerned with three such principles:

A.        The concept of checks and balances, and the principle of the separation of powers, which instruct us that the Prime Minister is precisely what his title states – no more and no less. The comparative law sources of inspiration are: Prime Ministers of Common Law countries, and more recently – following our adoption of the German apparatus of full constructive non-confidence – the status of the German Chancellor, developing a model of a “Democratic Prime Minister”, is worthy of note.

B.        The principle of legality, which holds that, as a rule, every governmental act requires legal authorization, without which there is no authority (as opposed to this, an individual may do anything, unless his liberty or rights have been lawfully restricted).

C.        Subservience of the institutional Basic Laws to the basic rights anchored in the value-based Basic Laws (Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation), and all that derives therefrom.

            I will now elaborate and explain.

A.        The Concept of Checks and Balances and the Principle of the Separation of Powers

30.       Various models have been developed in the democratic world – some more successful and some less – in regard to the person who stands at the head of the Executive Branch. In Israel – with the exception of the period of direct election of the Prime Minister – the Prime Minister is not directly elected by the public, but rather by the Knesset by means of a vote of confidence or no-confidence in the Government formed (after establishing a coalition). In this regard, the election of the Israeli Prime Minister is similar to that of the German Chancellor (see: Shetreet, The Executive Branch, p. 26), and to the procedure for electing the Prime Minister in England and most other Common Law countries. Thus, we can examine the models that determine the status and functions of the prime ministers of those countries, and draw inspiration in regard to the matter before us.

31.       As I showed in para. 10(c) above, the British Prime Minister serves, at the very least, as the conductor of an orchestra, and therefore, over the last decades, he does not, as a rule, assume any additional role of a minister in charge of another government ministry. This rule was the result of the development of British constitutional convention and the tremendous burden borne by the prime minister of a modern state, as well as in consideration of the need that the prime minister appear “neutral” in regard to the ministries, and decide the disagreements that arise among them without any personal involvement.

32.       In Germany, too – which unlike England, has a formal constitution – most constitutional interpreters are of the opinion that the new German constitution (established after the Second World War) does not permit such parallel roles. The matter arose for discussion there after Chancellor Konrad Adenauer also served as Foreign Minister in the years 1951-1955 (the matter was not challenged then in court), although it should be noted that since 1955, the practice was not repeated.

            In his book, Prof. Roman Herzog, who served as President of the German Constitutional Court and later as President of Germany, expresses the view that (by virtue of article 64 of the German Constitution) the German chancellor cannot serve as a minister in charge of a government ministry, as he must present to the German President “the list of his Ministers”, and he cannot include himself in that framework. Moreover, the chancellor is not supposed to trespass the boundaries of the Government, which is the Executive Branch (this reason is similar to the opinion of Prof. Shetreet that was cited above in para. 9) (see: Herzog, in Manuz/Durig. Grundgesetzkommentar, Band 1, May 2008, Art. 64 GG, para 1-7).

            A similar (if less decisive in regard to legality) view is expressed by Prof. Busse, who is of the opinion that the reason for the said position is that the chancellor must be “neutral” among his ministers and among the various ministries (see: Busse, in Berliner, Kommentar zum Grundgesetz, C art. 4 GG, p.10 et seq.).

            Prof. Schenke holds a view similar to that of Prof. Busse, but according to his approach, the reason is the burden borne by the chancellor (see Schenke, in Bonner Kommentar zum Grundgesetz, December 2014, Art. 64 GG, P.59 et seq., fn 134).

            Despite differences in nuance in their views, all the German scholars are united in the view that the model of the German chancellor is one of a “Democratic Prime Minister”. This model yields the following rules:

  1. The prime minister must always be conscious of the principles of democracy, and delineate the government’s policy for his ministers, while remaining “neutral” among them.
  2. The prime minister must avoid institutional conflicts of interest in his relationship with the various government ministries.
  3. The prime minister must perform optimally, such that the burden he bears not impair his ability to duly carry out his duties, and not impair the necessary relationship between authority and responsibility.

33.       A similar constitutional approach has also developed of late in the United States, expressed both in the written constitutions of the states and in constitutional implication, by which the principle of separation of powers must be enhanced and applied even to the personal separation between the holders of different offices (see: Steven G. Calabresi & Joan L. Larsen, One Person, One Office: Separation of Powers or Separation of Personnel?, 79 Cornell L. Rev. 1045, 1047 (1994)).

            In this regard, the authors write as follows:

[t]wo hundred years of American history have added their gloss, and today we largely understand the separation of powers to include a one person, one office codicil. Unwritten traditions disfavor plural office holding of any kind. These traditions, together with the Incompatibility Clause itself, now form a vital part of America's structural “Constitution” (ibid., pp. 1047-1048).

            Further on, they add:

These facts make clear that the rule of one person, one office is fast becoming the constitutional norm in America…America has progressed from a separation of powers to a separation of institutions to a separation of personnel (ibid., p. 1155).

34.       In view of the above comparative law sources, it can be said that even our concept of the prime minister, in accordance with Basic Law: The Government, should be conceived in light of the model of a “Democratic Prime Minister” who is a “conductor” of an “orchestra of ministers” (but is not one of them). In this regard, we should strictly ensure that conduct under the color of the current Basic Law: The Government not indirectly lead to the regime introduced by the former Basic Law: The Government, which approached, to some degree, a “presidential model”. Here we should note that “parallel tenure” also raises political science problems in the current regime, inasmuch as it “sends a message” both to serving ministers and to the opposition that they have a “chance”, so to speak, to be appointed to vacant offices, and this presents a latent impairment of their independence (see and compare: the statement of Advocate Sigal Kogut in the session of the Knesset Constitution, Law and Justice Committee on Oct. 21, 2013, concerning the Governance Amendment (pp. 13-14)).

35.       In our context, we should also bear in mind that the prime minister carries a burden that is unlike almost any other in the world. In addition to his tasks under Basic Law: The Government and the Government Law, 5761-2001, he is responsible for, runs and directs the National Security Council in accordance with the National Security Council Law, 5768-2008, he is responsible for the General Security Service under the General Security Service Law, 5762-2001, as well as in charge of the Mossad, the Atomic Energy Commission, and the Biological Institute. In addition, the prime minister is granted direct powers, inter alia, under the Secret Monitoring Law, 5739-1979, the Archives Law, 5715-1955, the Administrative Courts Law, 5752-1992, the Government Companies Law, 5735-1975, the Jerusalem Development Law, 5748-1988, the Statistics Ordinance [New Version], 5732-1972 (by virtue of which he is in charge of the Central Bureau of Statistics), and he is responsible for the implementation of the Anti-Drugs and Alcohol National Authority Law, 5748-1988 (see: Shetreet, The Executive Branch  p. 312).

            Thus we find that adding to the functions of the Prime Minister – who is already overburdened by law -- not on the basis of statutory provisions as above, but by his additional appointment as a minister in charge of government ministries (and here not one, but four!) impairs governance and goes to the very root of authority, as no person on earth, as gifted as he may be, can simultaneously perform so many tasks. Moreover, it is only natural that, under such circumstances, the deputy ministers who were appointed by the Prime Minister, were, in practice, granted the status of “Deputy Minister with the status of a Minister”, an institution that we abolished in our Partial Judgment.

            The above phenomenon also leads to an improper separation between authority and responsibility. My colleague Deputy President E. Rubinstein warned of such situations in the past in his article Basic Law: The Government in its Original Form – Theory and Practice, 3(2) Mishpat Umimshal 571, 589-590 (written in memory of the late Prime Minister Yitzhak Rabin), and saw them as “an absolutely improper situation from both a legal and public point of view”, which “empties the concept of responsibility of any material content” (ibid., p. 590).

            In his book Making Our Democracy Work (2010), Associate Justice of the United States Supreme Court, Prof. Stephen Breyer, asserts that in such situations, it is the role of the Court to put things right in order to allow democracy to function, as is required by the Constitution, and as is expected of leaders by the citizenry.

 

B.        The Legality Principle

36.       The legality principle states that an administrative authority has only the powers granted it by law (see: HCJ 5936/97 Dr. Oren Lam v. Mr. Ben Tzion Dal, Director General of the Ministry of Education, Culture and Sport, IsrSC 53 (4) 673 (1999) [http://versa.cardozo.yu.edu/opinions/lam-v-dal] (hereinafter: the Lam case); HCJ 1405/14 Prof. Shimon Slavin v. Deputy Director General of the Ministry of Health (Aug. 7, 2014) (hereinafter: the Slavin case); HCJ 6665/12 E-CIG Ltd. v. Director General of the Ministry of Health (Dec. 12, 2014) (hereinafter: the E-CIG case)).

            According to the approach presented by Prof. Itzhak Zamir in his book The Administrative Authority, vol. 1, 73 (2nd expanded ed., 2010) (Hebrew), the said principle derives from the very nature of democracy, stating:

Democracy grants sovereignty to the people. It is the people who grant the Government, and every other administrative authority, whatever authority they hold. It does so by means of laws. The powers that the law grants an authority are all the powers that the authority has. Thus, the law is not only the source but also the limit of every function and every power of every authority.

There are two aspects to the principle of legality in administrative law: the principle requires that every administrative act first be authorized by law, and second, be in accordance with the law [ibid., p. 73; and also see: CA 1644/04 Ramle Municipality v. Banks’ Clearing House Ltd., IsrSC 60 (3) 330 (2205); and see: Daphne Barak-Erez, Administrative Law, vol. 1, chap. 4 (2010) (Hebrew)].

            From a constitutional perspective, this principle has a number of exceptions, the most important of which for the matter before us is that which may legitimate an administrative action when, and only when, the action is required by constitutional implication, and the constitution does not expressly deny such authority (see: Barak, On Implication in a Written Constitution, pp. 18-19).

37.       In the matter before us, even the Respondents agree that after the repeal of sec. 33(d) of the former Basic Law: The Government, the Prime Minister does not have express authority generally to serve as a minister in charge of a ministry, as well, while on the other hand, as I believe I have adequately explained above, such authority is not only not required by any constitutional implication, but rather it is contrary to constitutional implication, inasmuch as we are concerned with a negative arrangement. It also impairs the principle of separation of powers. Moreover, even according to the alternative view – which holds that there is a positive implication – under the circumstances, it does not have the power to overcome the legality principle, nor does it fall within the exception to the principle. Moreover, the arrangement implied by analogy deviates from the original constitutional arrangement (which is restricted to situations of necessity, and limited to a period of only three months).

 

C.        The Subservience of Institutional Basic Laws to Basic Rights

38.       Basic Law: The Government (like the other Basic Laws) is a chapter in Israel’s constitution, pursuant to the approach delineated by the “Harrari Decision”.[4] As such, it is integrated with the other institutional Basic Laws (Basic Law: The Knesset and Basic Law: The Judiciary), from which we derive the principle of the separation of powers, as well as with the value-based Basic Laws (Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation), which ensure the individual’s basic rights (from which the various subsidiary rights are derived).

39.       Under sec. 11 of Basic Law: Human Dignity and Liberty, and sec. 5 of Basic Law: Freedom of Occupation, all governmental authorities are required to respect the rights granted by these Basic Laws. Thus, the prime minister and the government must respect, inter alia, freedom of speech and freedom of the press, which were recognized as constitutionally protected subsidiary rights that are of sufficient importance to void a law repugnant to them, insofar as the violation does not meet the requirements of the Limitation Clause (see: HCJ 5239/11 Avneri v. Knesset (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

            To continue the description and analysis, we would note that in the current Government, the Prime Minister also assumed the position of Minister of Communications, which is the only ministry for which he did not appoint a deputy minister.

This comprises two flaws:

(a)        As the head of the Executive Branch, the Prime Minister’s serving as Minster of Communications would appear to violate the separation of powers, inasmuch as the modern world views the communications media as a kind of fourth branch. This conduct presents an improper return to the days when the Israeli Prime Minister’s Office was in charge of the electronic media, and the matter was viewed as impairing democracy. It also ignores the fact that laws were passed to ensure the independence of the Public Broadcasting Authority, as well as of the Second Authority, which supervises private radio and television broadcasting.

(b)        The matter violates freedom of the press as a basic right without meeting the requirements of the Limitation Clause. In this regard, I would recall that from early on the press and journalists are not subject to, and do not require any material licensing for their occupation (see and compare: HCJ 5627/02 Saif v. Government Press Office, IsrSC 58 (5) 70, 76 (2004) [http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]); HCJ 10324/07 Shurat HaDin v. Government Press Office (July, 1, 2008); the Slavin case; the E-CIG case; also see: Yisgav Nakdimon, Journalist's Privilege, 165-174 (5773-2013); Shiran Yaroslavsky-Karni & Tehilla Shwartz-Altshuler, Regulating the Confidentiality of Journalistic Sources in Israel, 77 (Policy Papers 104 – Israel Democracy Institute, 2015) (Hebrew)).

40.       The above example is just one of many situations that could result from double roles, and I will not, therefore, provide further examples. Nevertheless, inasmuch as we now live in a “global village”, I deem it proper to refer to additional comparative law material, and the lessons learned therefrom. I shall do so in the following subchapter.

 

Additional Parallels from Comparative Law

41.       An examination of other democratic states in regard to a prime minister serving as a minister in charge of a ministry reveals that this is unacceptable in countries (like Australia and Denmark) in which there is no express authority (in the constitution) (as opposed to New Zealand and Poland, for example, where the constitution includes an express provision as we had in sec. 33(d) of the former Basic Law: The Government), for reasons similar to those that I presented above for prohibiting such a dual role. I would, however, note that in Nigeria, the head of the Executive Branch, Mr. Muhammadu Buhari (who is titled “President”) recently appointed himself (Sept. 2015) Minister of Energy (due to the turmoil in the world energy market), without express constitutional authority, but the matter led to a constitutional crisis that has not yet been resolved.

42.       The Respondents attempted to offer two replies to these arguments:

(a)        The Prime Minister’s appointment as a minister in charge of the ministries he assumed was ratified by the Knesset in voting confidence in the Government when it was presented by the candidate for prime minister.

(b)        The practice of the prime minister serving as a minister in charge of a ministry is a constitutional custom that should be recognized as valid.

            With all due respect, these arguments are unfounded, as I shall explain.

 

A Vote of Confidence by the Knesset cannot validate an Absence of Authority

43.       The accepted view in constitutional and administrative law is that a Knesset decision is not a law, and therefore, it cannot deprive this Court of its authority to review the constitutionality of the reviewed conduct in a case of deviation from authority (see: HCJ 157/63 Buchsbaum v. Minister of Finance, IsrSC 18 (1) 115, 131 (1964); and see: Baruch Bracha, Administrative Law, vol. 1, 244 (5747) (Hebrew)).

            We should note that it was held in the past that an absence of authority could be remedied by means of a law (see; HCJ 243/52 Bialer v. Minister of Finance, IsrSC 7 424 (1953)), however that holding was the subject of severe scholarly criticism (see: Hans Klinghoffer, On Emergency Regulations in Israel, in Haim Cohn (ed.), Pinchas Rosen Jubilee Volume, 86 (1962) (Hebrew); Benjamin Akzin, The Bialer Decision and the Israeli Legal System, 10 HaPraklit 113 (5714); on the entire issue, also see: Amnon Rubinstein & Barak Medina, Constitutional Law of the State of Israel, vol. 2, Government Authorities and Citizenship, 947 (2005); and recently: HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, paras. 123 and 128 of the opinion of my colleague Deputy President E. Rubinstein (March 27, 2016)).

            It should be further noted that, in any case, today, even ratification by means of legislation is not of decisive effect, inasmuch as a law can now be voided for repugnance to the Limitation Clause. However, there is some significance to a Knesset decision, as in consideration of the decision, the result will be one of relative voidness, which will prevent the annulling of actions taken prior to the declaration of voidness by the Court.

            44.       I will now proceed to examine whether the Respondents’ “last line of defense”, regarding the constitutional practice followed in the past, justifies their approach.

 

Chapter V: Rejecting the Argument that Constitutional Custom can authorize the Double Role

45.       The Respondents argue that prior to the various iterations of Basic Law: The Government, during the period it was in force, and after the entry into force of the current Basic Law: The Government, it was the constitutional practice that, from time to time, the prime minister also served as a minister in charge of various government ministries. That, in their opinion, is sufficient to sanction the said conduct.

46.       With all due respect, the Respondents do not accurately portray the legal situation in this regard. Where there is a written constitution, a constitutional custom does not have the power to add to the provisions of the constitution and create ab nihilo. A constitutional custom can, at most, lead to the ignoring of a constitutional provision that has become a dead letter due to lengthy disuse: see: Richard Albert, Constitutional Amendment by Constitutional Desuetude, 62 Am. J. of Comp. Law 641 (2104), where the author writes in this regard:

Statutory desuetude occurs when some combination of the sustained non-application of a law, contrary practice over a significant duration of time, official disregard and the tacit consent of public and political actors leads to the implicit repeal of that law. By analogy, constitutional amendment by constitutional desuetude occurs when an entrenched constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by preceding and present political actors [ibid., p. 644].

            To this end, the author cites with approval the approach of Prof. David Law, who referred to such constitutional provisions that have come to be ignored due by custom as “Zombie provisions” which “endure in a formal sense but are for all intents and purposes, dead” (see: David S. Law, The Myth of the Imposed Constitution, in Denis J. Galligan & Mila Versteegs (eds.), Social and Political Foundations of Constitution, 239, 248, 250 (2013); and see: Prof. Shimon Shetreet, Custom in Public Law, in Itzhak Zamir (ed.), Klinghofer Volume on Public Law, 375, 399 (1993) (Hebrew)).

47.       The decisive proof that the above is correct can be found in the Partial Judgment in regard to the institution of “Deputy Minister with the status of a Minister”, which we invalidated even though it was a constitutional custom.

            This applies here a fortiori, in view of both the repeal of sec. 33(d) of the former Basic Law: The Government, and the multiplicity of ministerial positions that the Prime Minister currently holds, which testify that we are on a slippery slope on which the increased quantity becomes qualitative and nullifying (and compare: HCJ 910/86 Ressler v. Minister of Defence, IsrSC 42 (2) 441 (1988) [English: http://elyon1.court.gov.il/files_eng/86/100/009/Z01/86009100.z01.pdf]); HCJ 5016/96 Horev v. Minister of Transportation, IsrSC 51 (4) 1 (1997) [http://versa.cardozo.yu.edu/opinions/horev-v-minister-transportation]); HCJ 3267/97 Amnon Rubintein v. Minister of Defence, IsrSC 52 (5) 481 (2001) [http://elyon1.court.gov.il/files_eng/97/670/032/A11/97032670.a11.pdf]; HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61 (1) 619 (2006); HCJ 6298/07 Ressler v. Knesset (Feb. 21, 2012) [http://versa.cardozo.yu.edu/opinions/ressler-v-knesset]); HCJ 6051/08 Rosh Pina Local Council v. Minister of Religious Services (May 8, 2012)).

            Moreover, in the past, the claimed constitutional custom was invoked (usually by prior declaration) for a limited period, whereas in the case before us, there was no undertaking by the Respondents to terminate the situation, as was the case, for example, in HCJ 7375/06 and HCJ 9617/06, above, and in the example cited by my colleague the President in para. 10 of her opinion.

            We have thus arrived at the summation and conclusion stage, which will briefly be presented in the following chapter.

 

Chapter VI: Summary and Conclusions

48.       What follows from all the above is:

(a)        Interpreting the constitutional text from within shows that the current Basic Law: The Government provided no basis for the possibility of the prime minister serving as a minister in charge of a ministry (and needless to say, appointing deputy ministers for himself, as such), while simultaneously serving as prime minister.

(b)        The theory of implied constitutional interpretation, and the indicators that serve to uncover the said implication, lead to the conclusion that we are not concerned with a negative arrangement in regard to serving in double roles, nor with a positive implication that would permit it. This can be derived from the constitutional history of the amendments to Basic Law: The Government, and was also echoed in the arguments of the Petitioners who first raised this matter before the Court, as well as in prior case law. In addition, the constitutional values grounding these matters, and the lessons learned from comparative law, all lead to the same understanding. Moreover, even if we were concerned with a positive implication, the present situation deviates from the “model arrangement” established under sec. 24 of the current Basic Law: The Government, which is limited to a period of only three months.

(c)        A constitutional custom does not have the claimed power to maintain the conduct challenged in the Petition.

(d)       The above conclusions are based, inter alia, on:

            (1)        The appropriate status of the prime minister in accordance with the current Basic Law: The Government, under which he is meant to act as a “Democratic Prime Minister”, and as a “conductor” of an “orchestra of ministers” (and not as one of the musicians);

            (2)        The burden borne by the prime minister by virtue of his statutory duties, and the need to ensure his “neutrality” in regard to the ministers and the ministries so as not to find himself in an improper institutional conflict of interests.

(e)        The above conclusions are supported by the principle of the separation of powers and by the legality principle, and are required by the necessary subservience to such basic constitutional values as freedom of the press.

49.       In the United States, the above truths were already clear in 1789, when President George Washington thought fit to observe:

The impossibility that one man should be able to perform all the great business of the State, I take to have been the reason for instituting the great Departments, and appointing officers therein, to assist the supreme Magistrate in discharging the duties of his trust [30 Writings of George Washington, 333-334 (May 25, 1789) (John C. Fitzpatrick ed., 1939)].

            Our own sources predate that in saying: “If you grasp a lot, you cannot hold it; if you grasp a little, you can hold it”.[5] Our leaders would do well to act accordingly.

 

Chapter VII: Responses and Comments to my Colleagues’ Opinions

50.       I have just received the opinions of my colleagues Deputy President E. Rubinstein, Justice S. Joubran, and Justice N. Hendel, as well as the additional comments that my colleague the President wrote in response to my approach and the positions of my colleagues. These important matters require comment, and I will do so briefly.

51.       My colleagues share the President’s view that Basic Law: The Government, in its current form, does not deny the Prime Minister authority to serve simultaneously as a minister in charge of a ministry. However, my colleagues Deputy President E. Rubinstein and Justice N. Hendel, and to a certain degree, my colleague Justice S. Joubran, as well, are of the opinion that the bounty of portfolios currently held by the Prime Minister could possibly lead to a situation of unreasonableness that could result in an absence of authority.

52.       After carefully reading all the above opinions, I have not changed my view that we are already confronting a situation of lack of authority, for the many reasons that I set out above. But in view of the position of my colleagues, I am willing to concur in the approach of Deputy President E. Rubinstein, which my colleague Justice N. Hendel also supports, that the Petition be denied subject to issuing a “warning of voidance” to the Respondents (as we did in the Medical Association case).

            My colleague Deputy President E. Rubinstein takes the view that the prime minister’s serving in the additional role of a minister (Minister of Defense, or Minister of Foreign Affairs, or any other ministry that requires his special attention) is possible in terms of authority and discretion, inasmuch as it is not unambiguously prohibited by the current Basic Law: The Government, and has precedent. My colleagues Justices N. Hendel and S. Joubran ask that we not take a decisive stand on the issue of the number of ministries that a prime minister may hold, inasmuch as the Petition concerns the prime minister’s authority to serve as a minister in charge of a ministry, in addition to his role as prime minister, and not the reasonableness of his appointment to a number of government ministries. However, they, too, are of the opinion that the scope of the use of that authority may justify this Court’s intervention in the future. Therefore, my colleague Justice N. Hendel thought as I that it would be proper to issue an order nisi in the Petition, and he is even willing to issue a “warning of voidance”, as proposed by my colleague the Deputy President.

53.       In light of the above – and due to the need to express the overall consensus of the different opinions – I am willing, in the alternative, to join in the approach of my colleague Deputy President E. Rubinstein that we issue a “warning of voidance” to the Respondents. A similar consensus approach was adopted in CFH 3993/07 Jerusalem Assessment Officer v. Ikafood Ltd. (July 14, 2011), in which my colleagues (then) Justices M. Naor and E. Rubinstein and Justice S. Joubran joined in the operative result proposed by my colleague Justice E. Hayut, without retracting their principled opinions in regard to the matter before the Court in that case.

            I would further note that some sub-constitutional support can be found for the approach of my colleague the Deputy President in the provision of sec. 8 of the Service in the Military Reserves Law, 5768-2008 (enacted before the decision in the Medical Association case, and prior to the recent amendments to Basic Law: The Government). The said provision assumes the possibility that the prime minister will also serve as Minister of Defense, and establishes as follows:

8. (a)    Notwithstanding the provisions of sections 6 and 7, in emergency circumstances and being convinced that State security requires it, the Minister [the Defense Minister – H.M.], with the approval of the Government, may –

(1)        Order the call-up of any reserve soldier for reserve duty, as established in the order, at a time and place indicated in the order, to report and serve in reserve duty for as long as the order remains in force;

(2)        Authorize, by order, a calling-up officer or appointee, to call up a reserve soldier to report and serve as aforesaid in paragraph (1).

(b)       (1)        If the Minister is convinced that, due to the urgency of the matter, a reserve soldier must be called up for service under subsection (a) before it is possible to obtain Government approval, he may, with the consent of the Prime Minister, issue a call-up in emergency circumstances without the said approval. If the Prime Minister is serving as Minister of Defense, he shall consult with the Deputy Prime Minister, if one has been appointed;

            (2)        If the Minister acted under the provisions of paragraph (1), he will immediately notify the Government, and it may approve the call up with or without changes, or not approve it. If the Government approve the call up for service, it will be deemed to have been approved in advance by the Government in accordance with the provisions of subsection (a). Such a service call-up shall terminate seven days after its issuance, unless approved by the Government before then.

(c)        As soon as possible, and no later than 48 hours from its issuance, an order in accordance with subsections (a) or (b) will presented by the Minister for the approval of the Committee, which may approve it with or without changes, not approve it, or bring it before the Knesset. Such an order will terminate after 14 days of the day of its issuance, unless approved by the Committee or by the Knesset before that [emphasis added – H.M.].

            I also find it appropriate to note – in regard to the orchestral conductor model that I mentioned earlier – that there are a few conductors who, in addition to conducting, also play one (and only one) instrument along with the orchestra, but these are a very rare exception that actually testifies to the rule.

54.       My colleague Justice N. Hendel is of the opinion that in the interim – while the “warning of voidance” is in force – the constituent authority can amend Basic Law: The Government, and state its opinion on the matter. I do not reject that approach, and I even expressed a similar view in the Medical Association case. I also agree that the call to the constituent authority to frame the basic structure of the Israeli regime in Basic Laws is not to be understood as an order. However, his further holding that, in any case, we do not have the authority to order the legislature to legislate should be restricted to certain exceptions (see: Aharon Barak, The Constitutional Right to Protection and the Duty to Respect It (to be published in 17 Mishpat uMimshal) (Hebrew); Ronen Poliak, The Court and the Duty to Legislate (paper presented at the conference in honor of the retirement of Supreme Court President (Emeritus) Asher Grunis, not yet published (Hebrew)).

15.       My colleague the President is of the opinion that we should not issue a “warning of voidance”, inasmuch as such relief was not requested, and the Respondents were not granted an appropriate opportunity to respond to it. To that my colleague the Deputy President responds:

“Woe is me because of my Creator [yotz’ri] and woe is me because of my evil impulse [yitzri]”,[6] but remaining silent would, in my view, render our decision as a sort of “certificate of approval” for the existing situation, which is not our intention. “Let me speak, then, and get relief” (Job 32:20) legally speaking, and perhaps also do some good. In any case, if the matter arise again, we will happily hear the arguments of the parties.

            In this regard, I add my voice to that of my colleague the Deputy President. There are two reasons for this:

(a)        If, for example, the parties do not raise a relevant legal provision, would our judgment ignore its existence and its consequences for the petition (while denying it), even if only in regard to the future? In my opinion, the rule should be similar in regard to unreasonableness or disproportionality that appears to be revealed before us.

(b)        In HCJ 7311/02 Association for Support and Defence of Bedouin Rights in Israel v. Beer Sheva Municipality (June 22, 2011) (hereinafter: the Association for Support case), the Court majority (Justices A. Procaccia and S. Joubran, Justice M. Naor dissenting) issued an order absolute that appeared to deviate from the order nisi granted in the petition.

That result was grounded, inter alia, upon the reason that the order absolute could be viewed as a “small part” comprised by the general “whole” of the original order nisi.

Without expressing a conclusive opinion as to the disagreement that arose in that regard in the Association for Support case, the matter before us follows that one a minore ad maius, as even here we are concerned with a “small part”, and moreover, here we are denying the Petition, subject to a “warning of voidance” regarding which – if the matter remains unchanged – the Petitioners can file a new petition in the future, and the rights of the Respondents are reserved for the future proceeding. That is also what we did in the Medical Association case, and the concatenation of events that led to the – unanimous – Partial Judgment shows this to be an appropriate approach.

 

Conclusion

56.       In closing, I believe it fitting to recall the lesson taught us by Rashi in his commentary to Genesis 18:2 (parashat VaYera), in explaining the reasons for three visiting angels appearing before our Patriarch Abraham, by citing Genesis Rabba 50:2:

                                    One angel cannot carry out two missions.

 

 

Deputy President E. Rubinstein:

1.         Is the Prime Minister permitted to hold one or more ministerial portfolios in addition to serving as Prime Minister? This is the burning question at the heart of the disagreement between my colleague the President and my colleague Justice Melcer. The Petitioner basis its argument that it is prohibited on the change in Basic Law: The Government that omitted the “historical” provision that permitted a prime minister to serve as a minister (the old sec. 33(d)), and the provision regarding a “temporary” acting minister (the current sec. 24). The Respondents are of the opinion that the world continues to spin on its axis, as it always has, the omission is of no consequence, and the current practice is not contrary to law. I will put the cart before the horse and say that, in my opinion, the current situation tends toward the position of my colleague the President, and thus would appear to rest on unsound footing if it were considered in terms of reasonableness, inasmuch at that might lead to an absence of authority, as my colleague [Justice Melcer] argues. I will not now set matters in stone, as we have not heard arguments on this aspect, but I would I would apply – and sooner rather than later – the “warning of voidance” issued in HCJ 3002/09 Israel Medical Association v. Prime Minister (2009) (hereinafter: the Medical Association case), in regard to the institution of a “Minister with the status of a Minister” (para. 41 of my opinion), as I shall briefly explain.

2.         My colleague the President presented the history of the subject, and arrived at the conclusion that the current silence of the Basic Law, as opposed to the previous situation “does not constitute a negative constitutional arrangement, but rather a positive constitutional implication” (para. 6), from a broad view of the pre-constitutional history that preceded Basic Law: The Government, constitutional history, and longstanding practice. In her opinion, the arrangement regarding a temporary acting minister does not preclude the “established” authority. In accordance with her approach, the objective purpose of the matter, which may be learned, inter alia, from the history, requires a fundamental view that a prime Minister is also authorized to serve as a minister in charge of a ministry.

3.         As opposed to this, my colleague Justice Melcer is of the opinion that the seeds of the present stage were planted in his opinion in the Medical Association case, reached fruition in our Partial Judgment, and in place of the “Deputy Minister with the status of a Minister” that has passed form the world, a redeemer has come to the Ministry of Health in all its glory. In the Medical Association case, my colleague expressed the opinion that the Prime Minister could not serve as a minister in charge of a ministry, except for a temporary period (under the said sec. 24), and in any case, could not appoint a deputy minister. My opinion in regard to that comment was, as my colleague noted, that the matter should be examined in the future, and “as the Chinese proverb goes, a journey of a thousand miles begins with a single step” (para. 43 of my opinion). In a wide-ranging survey of Israeli and comparative law, my colleague expressed the view that the very legal assumption (to which I would add: even if it is only theoretical in a rational reality) that the prime minister can fulfill the roles of all the ministers (as stated in response to a question posed to the Respondents’ attorneys in the hearing before us in this case), empties all content from the provisions of the Basic Law in regard to the nature of the Government as an Executive Branch (sec. 1), and in regard to the status of the prime minister in relation to the ministers (sec. 5(a)), as the prime minister, by his title and function, is not a “minister” like the others ministers, not “first among equals”, but holds a special status that is unlike that of a minister who is “in charge of a Ministry” (sec. 5(c)). My colleagues brings various proofs, which for the sake of brevity, I will refrain from repeating. As opposed to our colleague the President, he is of the opinion that our matter presents an implied negative arrangement, rather than a positive implication, and in his view, the omission of sec. 33(d) from Basic Law: The Government in its current form expresses a negative arrangement, in accordance with the provision in regard to full constructive non-confidence in sec. 28(b) of the current Basic Law. In his view, according to the fundamental values of our system, the heavy burden borne by the prime minister, and the legality principle, the “prime minister is the conductor of an orchestra”, and not one of the musicians. He is of the opinion that the customary practice that had been followed until now was limited in time, and in any case it should be declared void, as was the case of a “Deputy Minister with the status of a Minister”.

4.         My colleague the President replies that the pre-constitutional history that reflects the purpose does not support my colleague Justice Melcer’s position in regard to authority, and that we are, therefore, concerned with discretion, which is not part of the Petition and does not require our decision (such as the subject of the burden borne by the Prime Minister due to the large number of ministries for which he is responsible).

5.         Which path shall the interpreter choose? Two decades ago I wrote an article, which was also cited by my colleague Justice Melcer, called “Basic Law: The Government in its Original Form – Theory and Practice, 3(2) MISHPAT UMIMSHAL 571 (5756) (Hebrew), which was later reprinted in a slightly revised form in my book Paths of Governance and Law, 79 (5763-2003) (Hebrew). The article was written shortly after I completed seven-and-a-half years of service as Government Secretary in four governments, and included some of the lessons learned in the course of those years. In the meantime, for seven years I sat at the Government table as Attorney General (February 1997 until the end of 2003), and further lessons were learned, which did not change the main conclusions. In that article, I wrote at length about the “game of portfolios”, under the title “Responsibility: Distortion and Impropriety”, and gave examples of anomalous situations in the government that I will not revisit here (see my book at pp. 97-98). Among other things, here is what I wrote (p. 98 of the book):

Another type of impropriety, less in the formal sphere (but eventually, there as well) and more in substance, was reflected in the Prime Minister’s holding portfolios like the Ministries of Religion and Interior over an extended period, which prevented true ministerial administration of the ministries, and emptied the concept of responsibility of all material content…The above focuses attention on questions of the culture of governance and respect for the rule of law – a subject that, first and foremost, requires internalizing the values and principles in governmental practice, and is primarily an educational process to which it is doubtful that attention is being paid.

            What was thus some decades ago, has grown before our very eyes. Today, the Prime Minister also holds the portfolios of the Ministries Foreign Affairs, Economy, Communications, and Regional Development. Even according to the approach of my colleague the President, which would indeed appear to reflect the objective and subjective intents, to which I shall return, I would say that it is clear that we are concerned with an unhealthy process of problematic exercise of authority, even if the intentions are good and the exigencies substantial. The apparent theoretical possibility of multiple portfolios itself raises concerns. My longstanding opinion, as quoted above, is that in such a situation there is “impropriety, less in the formal sphere (but eventually, there as well) and more in substance…” (emphasis added – E.R.). The question is, even assuming authority, can “distortion and impropriety” (as the chapter heading of my article) in the exercise of authority eventually lead to an absence of authority? This is not a legal impossibility. As Justice Mishael Cheshin stated in HCJ 1730/96 Sabih v. Commander of IDF Forces, IsrSC 50 (1) 353 (1996), there can be a situation of “an unlawful decision…that is not supported by proper discretion, a decision that is tantamount to one made in deviation from authority” (emphasis added; also cited by Justice Mazuz in HCJ 6745/15 Khalid Abu Hashia v. Military Commander of the West Bank (2015) para. 16).

6.         I find myself confronting a dilemma. The reality, which has expanded before our very eyes since the filing of the Petition, is one in which the Prime Minister holds no fewer than four additional ministerial portfolios for an extended period, as opposed to the brief transition period permitted by the Basic Law, and shouts concern. It may be that the situation partly derives from real political exigencies of one type or another, but clearly, even if this is proper from a formal perspective, it is materially improper. Are we not approaching the “red line” where unreasonableness translates into an absence of authority? Can one person, no matter how talented – and there is no doubt as to the Prime Minister’s talents – who is “the busiest of the busy, the quintessence of busy” (see para. 23 of our Partial Judgment in this Petition) properly attend to such a bounty of roles, each of which, or at least the great majority of which, require the maximal attention of a “full-time position” and more – the Ministry of Foreign Affairs, the Ministry of the Economy, the Ministry of Communication, and the Ministry of Regional Cooperation? Is the public receiving the service it deserves from a minister? It would appear to me that even the Prime Minister – who is more knowledgeable than any other – would not say so, no matter how good and fit the civil servants who bear the day-to-day burden. It is, therefore, highly doubtful that the answer to the question could be in the affirmative. Indeed, there have been various precedents, particularly in regard to a single, important ministerial role, in our nation’s history – particularly in regard to the Ministry of Defence during the tenure of David Ben Gurion as the first Prime Minister and Minister of Defense (and Levy Eshkol, as well (until 1967), Yitzhak Rabin, Ehud Barak, and for brief periods, Menachem Begin and Yitzhak Shamir), and the second Prime Minister, Moshe Sharett, also served as Minister of Foreign Affairs. It may be that we should not preclude this possibility, even though times have changed, as have the burdens associated with each of these ministries – which is certainly the case in regard to the Ministry of Defence and the Ministry of Foreign Affairs, speaking from my own personal experience in those Ministries. In terms of what is desirable, my colleague Justice Melcer is correct in bringing examples from other important governments throughout the free world in which the prime minister is the “conductor of an orchestra” but does not also play one of the instruments. We are thus confronted with the question of how to address a situation in which the Prime Minister amasses portfolios, whatever the considerations may be, not merely for a brief transition period, but rather “for the duration”.

7.         In this regard, I cannot but recall the advice of Jethro to his son-in-law Moses, upon seeing him sit in judgment “from morning until evening” (Exodus 18:13), saying “…What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” (18:14). He then warns Moses: “…The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone” (18:17-18). He, therefore, offers the advice: “You shall also seek out from among the people capable men who fear God, trustworthy men who spurn ill-gotten gain. Set these over them as chiefs of thousands, hundreds, fifties and tens” (18:21).  Some see Jethro as the first organizational consultant, at least in Jewish law. How appropriate these words are for the situation before us. Jethro’s warning to Moses is not only about his own strength, but also about the influence upon the people, as Rashi notes in regard to the words “too heavy for you”: “Its weight is greater than your strength”. All of administrative theory in one chapter.

8.         Here, then, is the dilemma: The Petitioners limited their petition to the question of authority, rather than to that of reasonableness. Therefore, as noted, the issue of reasonableness was not argued before us at all. It is, therefore, problematic to justify the present use and implementation of the theory of unreasonableness evolving into a lack of authority in regard to so sensitive an issue.

9.         In the framework of this petition, it would appear that the old legal situation – supported by my colleague the President – must prevail at present. As opposed to my colleague Justice Melcer, I do not believe that the omission of the authorizing provision reflects the legislative intent of the constituent legislator. From my acquaintance with the system, I am of the opinion that we are concerned with an incidental omission of what seemed self-explanatory, as it had been the practice since the 5th of Iyyar 5708[7] that the prime minister fulfilled an additional ministerial role. I would, therefore, not currently view it as a negative arrangement, even though one may certainly be drawn in that direction when confronted with so long a train of ministries coupled to the Prime Minister’s engine, and perhaps I would not say so decisively if we were concerned with only one important ministry, and no more. I will not presume to enter into the lofty debate on “implication” of one sort or another. In simple terms, I think it very difficult to assume that anyone in the Knesset thought that the door to an additional ministerial portfolio was closed before the prime minister, and history also presents an “objective purpose”, and thus the opinion of my colleague the President. As opposed to this, I doubt that any of the legislators gave any thought to the possibility of a “slippery slope” of an abundance of portfolios, even as matter of common sense. In total, I am of the opinion that we must follow the legal approach of my colleague the President. However, and without setting matters in stone, I must add a clear warning of voidance in regard to “unreasonableness that evolves into a lack of authority”. I believe it necessary that this Court, dedicated to the desire for good governance, give notice of this possibility with a view to the not-so-distant future. As for myself, I am of the opinion that our duty to the lawfulness of the regime requires that we state that if the existing situation remains materially unchanged for a period of – let us say – some eight more months, and is again brought before us for judicial review, the arguments will, of course, be heard with an open heart, but the issue will be ripe for the full review that was not carried out in this petition.

10.       As brevity is appropriate following the fine words of my colleagues, I will not go on at length, but will reiterate that while authority appears to exist at present, it verges upon descending into unreasonableness that evolves into a lack of authority, and therefore I believe a “warning of voidance” is appropriate, and better that the situation be corrected earlier, so that it be reasonable, in one way or another, for proper governance. For the present, I concur with my colleague the President.

11.       In view of the opinion of my colleague Justice Hendel, I would add: there is justice to his comment (paras. 4 and 5) that a subject that is left largely ambiguous in the current Basic Law: The Government should be clarified legislatively. This also derives from the growing number of tasks placed upon each ministry (see para. 6 of my opinion). This also has consequences for governance and democracy, and in light of his experience and acquaintance with the many responsibilities at his doorstep, the Prime Minister is certainly the first to know this. I say this in the simple terms of the limits of human ability when confronted with mountains of decisions, even beyond the potential questions of conflicts of interests, in order to avoid reaching the “straw that breaks the camel’s back”. As Deputy President M. Cheshin wrote in CA 1761/02 Antiquities Authority v. Mifalei Tahanot Ltd., (2006) para 57, in regard to the implementation of the doctrine of relative voidness, “We should recall and observe: common sense and human wisdom are our best and most loyal friends. We will always have them in our quiver, and in interpreting the law and rendering judgment, we will always hold them in our grasp in order to see whether or not they are nodding in assent”.

12.       Finally, my colleague Justice Hendel noted (para. 5) the importance of legislation in Jewish law (or perhaps we should say – the importance of the clarity of legislation), and cited Rabbi A.I. HaKohen Kook in regard to the power of the nation in the absence of a monarchy in Israel – or if you like, the power of democracy. I cited this in my article Jewish Monarchy versus Dina DeMalkhuta: On Judge Dr. Gershon German’s Book “King of Israel: Permanent Sovereignty in light of Halakha and the Status of Knesset Legislation in Halakaha”, 22 Mekhkarei Mishpat 489, 494-493 (5766-2006) (Hebrew). Rabbi Kook’s ideas were further developed by Rabbi Shaul Yisraeli, one of the leading Zionist rabbinic scholars, editor of the HaTorah veHaMedina anthologies that addressed questions of statehood upon the founding of the State of Israel (see their reprints in BeTzomet HaTorah veHaMedina (Rabbi Y. Shaviv, ed.) (5751), and additional references in my article, and see the lecture of Prof. A. Edrei upon receiving the Zeltner Prize (March 22, 2016)). Democracy is a wonderful idea. Its implementation, and the prevention of its paralysis or disintegration will be achieved, inter alia, by a system of laws that enables its translation to a working reality, despite exigencies and difficulties, By this judgment, we hope to contribute to that effort.

13.       Lastly, I cannot avoid addressing my colleague the President’s comment in regard to a “warning of voidance”. “Woe is me because of my Creator [yotz’ri] and woe is me because of my evil impulse [yitzri]”, but remaining silent would, in my view, render our decision as a sort of “certificate of approval” for the existing situation, which is not our intention. “Let me speak, then, and get relief” (Job 32:20) legally speaking, and perhaps also do some good. In any case, if the matter arise again, we will happily hear the arguments of the parties.

 

Justice S. Joubran:

1.         I have read and reread the opposing opinions of my colleagues President M. Naor and Justice H. Melcer, and although the reasoning of my colleague Justice M. Melcer is enlightening, I concur in the opinion of my colleague the President.

2.         As my colleague the President explains, the practice of the prime minister serving simultaneously as a minister is an accepted practice in the Israeli governmental system (see paras. 9-11 of her opinion. And see HCJ 3002/09 Israel Medical Association v. Prime Minister, para. 2 of the opinion of President D. Beinisch (June 9, 2009)). I agree with her approach according to which the absence of an express provision granting this authority to the prime minister does not constitute a negative arrangement, but rather a quasi-positive constitutional arrangement. Without following the rich and enriching path of my colleague Justice H. Melcer, it would seem to me that viewing the omission of the authority in the amended Basic Law: The Government (of 2001) as a negative arrangement would require the concrete, knowing consideration of the legislature of the consequences of the change brought about by the amendment’s silence (see and compare: HCJ 43/16 Ometz – Citizens for Proper Administration and Social Justice in Israel v. Government of Israel, para. 70 of my opinion (March 1, 2016)). This, in particular, when we are concerned with a significant constitutional change that alters a practice deeply rooted in the Israeli system.

3.         However, in my opinion, the scope of the exercise of this authority is what might justify the intervention of this Court, particularly when we are concerned with an authority that is implied rather than express. While, in the past, the prime minister indeed served as a minister – as the Respondent detailed in Appendix R/7 of its response – this generally concerned serving in one, or at most two ministries – generally the Foreign Ministry and /or the Ministry of Defence. In the few instances in which the prime minister served as the minister responsible for three or more ministries, it was only for a limited time, rather than permanently. Thus for example, from the example cited by my colleague the President in para. 11 of her opinion, we can see that then Prime Minister Menachem Begin served as a minister responsible for the Ministries of Welfare, Justice, Transportation and Communications for a “brief transition period”. In practice, that period indeed continued only for a few months – four in total – from June 20, 1977 until Oct. 24, 1977.

4.         In my view, the present situation challenged in the petition, in which the Prime Minister is responsible for a number government ministries for an unlimited period – without express authority under the Basic Law – is problematic. At present, in addition to his broad authorities as first among equals, the Prime Minister also exercises the authorities of several ministries of no insignificant influence. Great, exceptional power is concentrated in his hands, such that in practice, his governance is “governance by the Prime Minister”. I would note that I am doubtful that such a situation is appropriate in a democratic regime. To that one might add doubts as to the effective performance of the government when one person amasses ministries, particularly when that person is, as my colleague the Deputy President noted, “the busiest of the busy” (see: Shimon Shetreet, The Government: The Executive Branch – Commentary to Basic Law: The Government 235 (to be published) (Hebrew)).

            These fears only increase in view of the fact that the authority is implied rather than express. This is so because, by nature, the borders of implied authority are unclear and are more susceptible to interpretation – a characteristic that, in my opinion, requires greater care in its exercise so it not result in a lack of authority. Similarly, my colleague the Deputy President was of the opinion that while there is authority, the situation threatens to degenerate into one that is unreasonable to the point of an absence of authority. However, as my colleague the President pointed out, we are concerned with a petition challenging the Prime Minister’s authority to serve as a minister in addition to his role as Prime Minister, and not with the reasonableness of his serving as a minister in charge of a number of government ministries. I am of the opinion that such authority – although only implied – indeed exists, and therefore, I see no need to broaden the scope of review at this time.

5.         In light of all the above, I concur in the opinion of my colleague President M. Naor.

 

Justice N. Hendel:

1.         On Aug. 23, 2015, a partial judgment was given in this petition, in the framework of which this panel held that the institution of a “Deputy Minister with the status of a Minister” lacked validity, and we ordered that Yaakov Litzman, who then served as Deputy Minister of Health with the status of a minister, cease to serve in that position within 60 days (hereinafter: the Partial Judgment). We are now concerned with another aspect of the petition, regarding the question of the Prime Minister’s authority to serve simultaneously as a minister in his own Cabinet.

            On May 14, 2015, the Knesset voted confidence in the 34th Government, led by Benjamin Netanyahu, who had decided to retain four government ministries in his own hands: the Ministries of Foreign Affairs, Communications, Health, and the Regional Cooperation. Pursuant to the Partial Judgment, the Ministry of Health was entrusted to Yaakov Litzman. Various ensuing developments led to the transfer of the Economy portfolio to the Prime Minister, such that at the time of this writing, the Prime Minister continues to fill four permanent ministerial positions. The Petitioner argues that Basic Law: The Government does not permit the Prime Minister to serve as the minister of a government ministry in parallel to his role as Prime Minister, regardless of the size of the ministry, the scope of his activities, or the number of portfolios (hereinafter: parallel service). Therefore, the Petitioner asks that we invalidate Netanyahu’s status as a minister in each of the four ministerial positions that he holds.

            A disagreement has arisen among my colleagues on this issue. According to the view of my colleague President M. Naor, the silence of Basic Law: The Government should not be deemed a negative arrangement that denies the Prime Minister authority for parallel service. On the contrary, the objective purpose of the Basic Law – as well as the practice’s deep roots in Israeli political tradition – show that the legislative silence creates a “positive constitutional implication”, and extends the general provisions regarding the appointment of ministers to the Prime Minister, as well. This view was joined by my colleagues Deputy President E. Rubinstein and Justice S. Joubran, each in his own way. As opposed to them, my colleague Justice H. Melcer is of the opinion that there is no avoiding the conclusion that Basic Law: The Government does not authorize the Prime Minister to serve simultaneously as a minister in charge of a government ministry. In his view, an analysis of the various provisions of the Basic Law shows that the prime minister is not deemed a minister, and thus the general arrangements that apply to other ministers cannot be applied to him. In view of the constitutional history and the fundamental principles of the legal system, such as the separation of powers and the legality principle, the Basic Law’s silence in the matter should be viewed as a negative arrangement.

            After reviewing the material, I am of the opinion that we are concerned with a complex, multifaceted issue. Therefore, were my opinion accepted, we would hereby issue an order nisi instructing the Respondents to explain their position, if only in order to allow for its thorough, comprehensive examination. However, this suggestion was not accepted by my colleagues. On the merits, I have decided to concur in the result arrived at by my colleague the President that the petition, in its present aspect, be denied. However, in my view, we should not suffice with a binary analysis of the status of parallel service. In other words, as I shall further explain, the answer in regard to this practice should not take the form of a red light or a green light, inasmuch as the factual circumstances may lead to a different conclusion in appropriate circumstances. In order that my position be understood properly, some expansion is necessary. At this point, I will state in a nutshell that my answer to the question of the legality of parallel service is rather a yellow light.

2.         Before addressing the implications of the concrete factual foundation, I will preface in stating that my conclusion that the petition be denied requires that we contend with two significant legal hurdles. The first and primary one is the omission of the express authorization provision that previously appeared in sec. 33(d) of Basic Law: The Knesset (1992), which stated: “The Prime Minister may also function as a Minister appointed over an office”. The current Basic Law, which was established in 2001, repealing its predecessor, does not comprise a similar provision, which would seem to indicate an intention to deviate from the prior arrangement, and deny authority for parallel service. However, the State’s attorney, Adv. Sharon Rotshenker, supplied a convincing response to this argument, explaining in the hearing that the omission should be viewed against the background of the broader revisions of Basic Law: The Government over the years. As she explained, the original Basic Law: The Government of 1968 also did not comprise an express authorization, as there was no need. As opposed to that, the Basic Law established in 1992 adopted the direct-election system, by which the prime minister was directly elected by the public. Due to that change, which introduced a material distinction between the prime minister, who was elected by the public, and the other government ministers, there was a need for the express anchoring of the prime minister’s parallel authority to wear a ministerial hat. However, upon the repeal of direct elections and a return to the old parliamentary system in the current Basic Law, the prime minister and his ministers once again stand on an identical normative plane. Therefore, express authorization for parallel service is no longer required. As a result, the omission should not be viewed as intending a negative arrangement. On the contrary, it reflects the idea that “what was”, prior to the short-lived transfer to direct elections, is “what will be”.

            As noted by my colleague the President (para. 8 of her opinion), this conclusion is supported by the fact that there was no reference whatsoever to the subject of parallel service either in the Explanatory Notes of the current Basic Law, or in the course of the its establishment by the Knesset. Inasmuch as we are concerned with a political practice that is nearly as old as the State, the argument that the legislature sought to uproot it offhandedly, without any consideration of the objectives and consequences of such a step, is far from convincing, particularly when there is an acceptable alternative explanation for the omission.

            The second hurdle is that of constitutional implication theory, which, according to my colleague Justice H. Melcer, shows that Basic Law: The Government intended to create a negative arrangement in regard to the matter before us. However, over and above the general complexity of implementing this theory – even in the American legal system where it was born – the following point is salient to its dismissal. My colleague compared the relationship between the constitutional text and its inferred interpretation to the relationship between the Written Torah and the Oral Torah. This comparison is, indeed, useful in explaining the doctrine, but precisely for that reason, and against the background of the accepted practice of Israeli political tradition, it serves to detract from the weight of the doctrine in the matter before us. In other words, the lack of harmony and congruence between the Oral Torah – i.e., the apparent constitutional implication – and the existing custom raises the question whether that Oral Torah is actually an appropriate interpretation of the Written Torah that is Basic Law: The Government, or whether we are concerned with an error by the decisors in understanding the legislative language. Indeed, my colleague impressively described the inherent problematics of the prime minister serving as the minister of a particular ministry – whether due to an erosion of the principle of the separation of powers, or the possible violation of basic rights, or due to various aspects of “practical perception” in regard to the status of a regular minister, and the problem that arises when he is also the prime minister. However, in my opinion, a long road separates a finding that parallel service is undesirable and concluding that there is a constitutional arrangement that prohibits it. In this sense, the existing practice by which prime ministers served as ministers in their governments provides a significant indication that the flaws pointed out by my colleague do not cross the threshold of illegality, and do not translate into a constitutional restriction upon parallel service. And note that I am not arguing that custom “overrides” a constitutional provision. On the contrary, in the spirit of the analogy to the Oral Torah, I believe that it would be appropriate to apply the Talmudic principle that “when any law is unclear before the court and you do not know what is right, go and see what the public does, and act accordingly” (Jerusalem Talmud, Peah 7,5). In the absence of an express provision in the matter – as we see from the disagreement among my colleagues – custom, even if not obligatory, may shed light on the situation and show us the law. That being so, and without taking a stand de lege ferenda, I cannot concur with the opinion of my colleague that the Prime Minister lacks authority to serve as a minister, regardless of the circumstances.

3.         The Petitioner chose to put all its eggs in the basket of lack of authority, and refrained from raising arguments against the manner of the Prime Minister’s exercise of discretion. The Petitioner’s attorney made this unequivocally clear in the hearing on Nov. 11, 2015, responding to a direct question that “I am arguing only in regard to the issue of authority”. That being the case, we could end the discussion of the petition at this point, in view of the holding that the appropriate interpretation of the arrangements under Basic Law: The Government, as a whole, point to there being authority, in principle, for parallel service.

            However, in light of the fundamental aspects of the issue, and in view of the partial factual grounds presented to the Court, I believe it proper to devote a few words to the grounds of reasonableness and proportionality, so that the result I reached – denial of the petition – not create a mistaken impression in regard to my reasons, and the full legal picture as I understand it. As I stated, in the context of this petition I held that the Prime Minister has the authority, in principle, to serve simultaneously as a minister in his Government. However, as I shall explain, that does not comprehensively permit parallel service. The extent and scope of the parallel service influences its reasonableness, and an extreme deviation from the margin of reasonableness may color it in the future with the colors of a deviation from authority (on the fine line between reasonableness and illegality, particularly in view of the implied nature of the authority for parallel service, also see paras. 5 and 9 of the opinion of Deputy President E. Rubinstein, and para. 4 of the opinion of Justice S. Joubran).

            Clearly, we cannot countenance a situation in which a prime minister appoints himself as a minister in all the government ministries, and effectively sit alone at the government table. Such a step would render the institution of the government devoid of all content. Even if, formally speaking, each such ministerial appointment would be valid, the final result would be unacceptable. That would also certainly be the case if the prime minister were to take responsibility for ten ministries. As opposed to this, some would argue that parallel service in one government ministry, in accordance with the longstanding practice, is firmly within the margin of reasonableness. Between these two extremes there is a gray area for which we cannot establish a hard-and-fast numerical formula. In any case, it is clear that the quantitative aspect is significant for the reasonableness of parallel service.

            Along with the number of ministries that a prime minister wishes to run, there is also considerable significance – from the perspective of reasonableness – to their quality, for example, the scope of activity involved in their regard, their centrality to the work of the government, and the extent of their influence upon basic rights. This is so in two aspects. First, it can influence the force of the legal problems involved in parallel service, such as the fear of institutional conflicts of interest among the various roles of the prime minister, harm to the status of the government as an independently functioning body, or a possible erosion of basic rights. Second, an analysis of reasonableness must also attribute importance to more practical considerations. The prime minister bears heavy responsibility for the security and welfare of the citizenry of Israel, and he fulfills a long list of roles by law. There are grounds to fear that adopting an additional heavy burden, in the form of a number of government ministries with a broad scope of activity, will impair his ability to dedicate himself to the tasks he faces, and require that he allocate his resources in a manner that is neither optimal nor efficient. This fear grows as the ministerial burden increases – both quantitatively and qualitatively.

            Even the most capable person, with the best intentions, is subject to the limits of time that we all share, and which cannot be modified or expanded. In this regard, it is worth recalling the Biblical story already mentioned by some of my colleagues: When Jethro, Moses’ father-in-law, saw that Moses sat alone in judgment, he said to him “What is this thing that you are doing to the people? Why do you act alone, while all the people stand about you from morning until evening?” […] The thing you are doing is not right; you will surely wear yourself out, and these people as well. For the task is too heavy for you; you cannot do it alone” (Exodus 18:13, 17-18). Moses accepted this criticism, proceeded to appoint additional judges, and no longer bore the burden of cases alone. The Hebrew expression “wear yourself out” [“navol tibol”, literally “wither away”] is borrowed from the plant world, but is true in regard to a person, and even to a person serving as a leader (see and compare the commentary of Rabbi Samson Raphael Hirsch on Exodus 18:18). Thus we find that even if it is hard to establish the limits of ability, there can be no doubt that such limits exists, and it would be best to take that into account both for the good of the country and of the leader.

            In summary, the parameters of the dispute set by the Petitioner do not make it possible for us to examine the reasonableness of the Prime Minister’s serving as Minister of Foreign Affairs, the Economy, Communications, and Regional Cooperation, and therefore we cannot make a finding as to whether that might constitute a deviation from authority. In any case, this is not the time for such a decision.

            In view of the problems presented by parallel service – particularly against the background of a multiplicity of hats with vast authority, and the responsibility and burden assumed by the Prime Minister – it would seem that the time has come to issue a “warning of voidance” in regard to the unclear legal future of this practice (see Liav Orgad and Shai Lavie, Judicial Directives: Normative and Empirical Assessment, 34 Tel Aviv University Law Review 437, 447-449 (2011) (Hebrew) (hereinafter: Orgad & Lavie). In other words:

The Governmental regime must consider that this judgment, even if it did not result in judicial intervention due to the background described, is a warning sign for the future. What the average person cannot accept as logical and reasonable, and that has another solution, should be resolved in the proper way, that is fair to all and that realizes the spirit of the law [HCJ 3002/09 Israel Medical Association v. Prime Minister, para 41 of the opinion of Deputy President E. Rubinstein (June 9, 2009) (hereinafter: the Medical Association case)].

            This is how this Court acted in the Medical Association case, when it explained that the institution of a deputy minister acting as a minister “is an institution that is approaching the end of the road”, and that there is no alternative to appointing a “minister in all its ways and means” (ibid.). As may be recalled, the warning given in that matter became an order in the Partial Judgment in this petition. In this case, we cannot hold that the Government must act in a specific way, such as the absolute rejection of parallel service, inasmuch as – as I noted above – the margins of reasonableness and proportionality may justify less comprehensive arrangements. In addition, here we are giving the authorities an opportunity to consider a legislative amendment that would arrange the matter of parallel service by filling in what is lacking, and not merely by relating to the existing law. In these ways, the issue of parallel service differs from that of the status of a deputy minister, regarding which the warning of voidance comprised a clear directive in regard to the desired action – absolutely annulling the institution. Nevertheless, there is more in common than what divides: in both cases it became clear that the conditions for granting operative relief had not yet ripened, the questions in regard to the legality of the practice could lead to future judicial intervention, and therefore it is appropriate that we grant the governmental authorities an opportunity to develop a balanced arrangement.

            I therefore concur with the position of my colleague Deputy President E. Rubinstein that “if the existing situation remains materially unchanged for a period of – let us say – some eight more months, and is again brought before us for judicial review […] the issue will be ripe for the full review” (para. 9 of his opinion). While the arguments of my colleague Justice Melcer do not, in my opinion, lead to a conclusion that the Basic Law entirely prohibits authority for parallel service, they ground and reinforce a cause of unreasonableness to the extent that, in certain circumstances, the unreasonableness of parallel service may be tantamount to a deviation from authority. Therefore, it is appropriate that we follow the course set in the Medical Association case, and issue a warning of voidance.

4.         Another significant reason for my decision is to be found in the general conception of the proper status of legislation in the State of Israel. In his book The Dignity of Legislation, New Zealand scholar Jeremy Waldron – one of the leading thinkers in the areas of political philosophy and the philosophy of law – argues that, normatively and conceptually, the institution of legislation should be viewed as a “dignified mode of governance and a respectable source of law” (p. 2). In his opinion, in view of the permanent lack of societal agreement on certain issues, decision-making by means of an elected body is “not just an effective decision-procedure, it is a respectful one” (ibid., p. 158). This is the case because it respects the existence of different views about the “truth” (even if it may be absolute), and grants them all equal standing.

            For my part, I would like to take the idea of “dignified” legislation in a different direction. The dignity of legislation can be viewed, to some extent, like a promissory note. Recognition of the dignity of legislation raises expectations for corresponding conduct by the legislature, i.e., recognition of the importance of its exercise of the decision-making process, and anchoring its decisions in clear, detailed legislation. Over 200 years ago, Thomas Jefferson – one of the Founding Fathers of the United States, the principal author of the Declaration of Independence, and the third President – addressed the vital need for establishing rules, regardless of their content, noting:

Whether these forms be in all cases the most rational or not, is really not of so great importance. It is much more material that there should be a rule to go by, than what that rule is that there may be an uniformity of proceeding in business, not subject to the caprice of the Speaker, or captiousness of the members. It is very material that order, decency and regularity, be preserved in a dignified public body [Thomas Jefferson, A Manual of Parliamentary Practice, Sec. I (2nd. Ed., 1812)].

            While this refers to the need for establishing a legislative procedure, it also points to the importance of establishing clear procedures that do not allow for fleeting caprice or changing needs, but rather provide for clear, dignified decisions upon the relevant questions.

            Other thinkers who have addressed the characteristics of legislation, among them Joseph Raz – a prominent philosopher of law, ethics and politics – have pointed to the basic need for creating clear legislation that enables people to plan their conduct intelligently:

All laws should be prospective, open, and clear. One cannot be guided by a retroactive law […] The law must be open and adequately publicized. If it is to guide people they must be able to find out what it is. For the same reason its meaning must be clear. An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it [Joseph Raz, The Authority of Law: Essays on Law and Morality (1979)].

            If that is the case in regard to ambiguous law, then absolute silence – which leaves the public and the courts in a fog – is all the more problematic. The disagreement among my colleagues on the question of interpreting the legislative silence in regard to parallel service, including the position that entirely rejects the authority, testifies to the importance of an explicit arrangement of the matter. In fact, in the matter before us, this is of even greater importance inasmuch as the issue of parallel service affects the foundations of the structure of the Israeli regime, and requires an in-depth examination of the relationship between the prime minister and the institution of the Government. As Israel approaches its 68th birthday, we can expect that the process of the development and maturing of Israeli law will lead to a clear, lucid institutionalization and arrangement of the structure, powers and relationships of the governmental authorities.

5.         I would add that Jewish law emphasizes the practical importance of legislation, and the need for establishing clear, detailed arrangements for guiding the public, and particularly the Executive authority. Thus, the Torah requires that a King of Israel “when he sits on the throne of his kingdom, he shall write for himself in a book a copy of this law […] and it shall be with him, and he shall read in it all the days of his life […] keeping all the words of this law and these statutes, and doing them” (Deut. 17:18-19; and see Sefer HaChinuch, Mitzva 503).

            “Translating” this into 21st century language shows us that Jewish law ascribed great importance to creating a detailed, obligatory legislative framework, for reasons similar to those noted by Jefferson: the need to ensure that the Executive Branch not act on the basis of passing whims, while exploiting its great power, but rather subjugate its discretion to transparent, clear, uniform rules. In effect, the requirement that the king always have the entire Torah with him, in all its 613 mitzvot – and not, for example, just the Ten Commandments – demonstrates that loosely anchored principles are insufficient. The Executive must be provided with detailed legislative protocols that define its path. Of course, the requirement that the king read the Torah all the days of his life shows the need for the Executive to internalize the legislative procedures.

            Another aspect of Jewish law relates to the role of the Knesset. About a hundred years ago, Rabbi Abraham Isaac HaKohen Kook – later the Chief Rabbi – established the rule that “because the laws of the realm also relate to the general situation of the public, in the absence of a king, those legislative rights revert to the people as a whole”. Rabbi Kook explains that the elected representatives of the people – which, I would add, now means the Knesset – fulfil the role of the king (Rabbi Abraham Isaac HaKohen Kook, Responsa Mishpat Kohen, 144, para. 15 (Hebrew)). The requirement that the king write and read the Torah, and keep it with him, thus emphasizes the “duty” of the Knesset not only to protect the rule of law, but also to establish it in appropriately detailed arrangements that will guide the public.

            Of course, the gap between the ideal and the real is unavoidable, and any expectation of the immediate, full arrangement of every matter in primary legislation is unrealistic – certainly in view of modern reality. However, the State of Israel is nearly seventy years old, but we have not yet been provided with a comprehensive legislative arrangement of the regime, the various governmental authorities and the relationships among them – as we see from the matter before us. Although I do not agree with the result that my colleague Justice H. Melcer reached, his thorough and enlightening opinion highlights the current deficiency, and demonstrates the ambiguity created by the silence of the constituent authority on an issue of primary importance. An examination of the current Basic Law: The Government shows that there is appropriate attention to detail in some matters. Thus, for example, the eligibility rules for ministers are defined (sec. 6), the number of ministers in the Government is limited (sec. 5(f)), there are arrangements for the termination of ministerial tenure and for replacing a minister (secs. 22-24). However, the above discussion demonstrates that, to a large extent, primary issues are absent. Can the prime minister serve as a minister? Can he serve as the only minister? Is there a minimum number of ministers?  Answers to these questions can be supplied by general legal doctrines, as we have done in the matter of this petition. However, as we approach the span of a life (Psalms 90:10), it would be fitting that the State address the matter of parallel service in clear, express legislation.

            I would emphasize that this is particularly so in regard to the matter at hand – delineating the fundamental character of the Executive Branch, including such basic elements as defining the status of the prime minister, and the relationship between him and the members of the Government. It is but proper that the fundamental structure of the Israeli regime be given express, coherent constitutional expression, rather than be created by ad hoc judicial precedents that are not founded upon the express directives of the Knesset.

6.         Indeed, as this Court has repeatedly explained, we do not have the authority to order the legislature to legislate (HCJ 4491/13 Academic Center for Law and Business v. Government of Israel, para. 48 of the opinion of President A. Grunis (July 2, 2014)). However, calling upon the legislature – or more precisely, upon the constituent authority – to anchor the fundamental structures of the Israeli regime in the Basic Laws is not an order. On the contrary, it is “judicial advice” intended to improve, advance and clarify the constitutional core (see Liav & Orgad, pp. 441-445) in an attempt to achieve a delineation  of a reasonable, balanced arrangement that will limit the gray area, and thereby lessen the extent of judicial intervention in regard to the matter of parallel service.

            There is nothing new in our holding in regard to the possible connection between extreme unreasonableness and deviation from authority, as the matter is well-founded in the case law. In this sense, implementing the warning of voidance relies upon a legal analysis of the issue. Along with this, we should emphasize that the warning does not order the legislative arrangement of the matter of parallel service. It is motivated by the desire to limit judicial intervention, and expresses both respect for the legislative institution (in the spirit of Waldron, cited above), and the value of mutual respect among the authorities – constituent, legislative, and executive. Exposing the warning signals that light up, permits the Knesset and the Government to make a timely choice of a course of action that may render future judicial intervention unnecessary.

            To state it more concretely, my opinion is that it is possible to contemplate judicial intervention in regard to the subject of parallel service on the basis of the quality and quantity of the ministries held by the Prime Minister, on the basis of unreasonableness that translates into a lack of authority. In the absence of an express constitutional arrangement, there is a vacuum that, as a rule, leads to a broadening of the Court’s discretion. In view of the importance of the issue of parallel service, we may have no choice but to conduct future judicial review of the matter. However, from my perspective, it would be better if the Knesset were to express its view, as comprehensively as possible, in order to clarify the legal situation, reduce the need for future review, and at the very least, reduce its scope. Thus, for example, an arrangement that would expressly address not only the general authority for parallel service, but also the number and nature of the portfolios that a prime minister may hold, and the conditions therefor, would contribute to directing the practice, and to governmental stability and development.

7.         Lastly, I would like to respond briefly to the opinion of my colleague President M. Naor (paras. 23-25 of her opinion), who is of the opinion that it would not be appropriate to issue a warning of voidance, and that an examination of the subject of the exercise of discretion, as opposed to the existence of authority for parallel service, deviates from the arguments presented in this petition. I will begin with the practical aspect. Even had a warning of voidance not been issued – and precisely because the ground of reasonableness was not addressed before us, as my colleague rightly emphasized – it would be possible to file a new petition focused upon this point immediately following the rendering of this judgment. That being the case, the warning of voidance serves as a kind of “stay of execution” before future petitioners, as it grants the Government a period of eight months for an in-depth examination of the issue of parallel service, including the possibility of addressing it in the Basic Laws, as I emphasized above.

            From a legal perspective, we should bear in mind that there are two aspects to the ground of reasonableness (see Margit Cohen, Unreasonableness in Administrative Law: Comparative Aspects and Some Normative Comments, in Theodor Orr Volume 773, 792, Aharon Barak & Ron Sokol eds. (2013) (Hebrew); for a different approach, see Itzhak Zamir, Judicial Review of Administrative Decisions: From Practice to Theory, 15 Mishpat Va’asakim 225, 262 (2012) (Hebrew)): one, sometimes referred to as “the new reasonableness”, requires that an authority weigh all the relevant considerations deriving from the purpose of the law, and only them, and grant each one its appropriate weight. However, there is another aspect to reasonableness, which might be termed “classic reasonableness”, and which is the central to the matter at hand. In referring to this aspect, the case law already stated sixty year ago “that the matter of reasonableness is actually but one of the forms of deviation from authority” (CA 311/57 Attorney General v. Dizengoff and Associates Ltd., IsrSC 13 1026, 1037 (1959)). That is the case where clearly extreme unreasonableness is concerned, which clashes with the objective of the relevant law and its purpose.

            It is true, as the President noted, that the Petitioner chose not to relate to the ground of reasonableness, including its classical aspect. Of course, it is its right to “bet the house” and argue that the Prime Minister is not authorized, in any case, to serve as a minister – an argument that was even accepted by my colleague Justice H. Melcer. However, we cannot ignore the fact that various arguments presented by the Petitioner – for example, the burden upon the Prime Minister, or the possible harm that parallel service presents to the principle of the separation of powers and the independent status of the Government – have direct impact upon the subject of reasonableness, at least in its classical sense. In practice, both sides related to the hypothetical possibility that the Prime Minister might chose to hold all the ministries – a subject that is certainly relevant to a consideration of the ground of reasonableness. Therefore, even though I found that the Petitioner’s arguments were insufficient to deny the authority for parallel service, it is appropriate to examine their potential weight in regard to the interpretation of the scope of the authority, such that it be consistent with the demands of reasonableness. Therefore, we are left no choice but to say that arguments that were considered in this Petition in regard to the interpretation of the silence of Basic Law: The Government in regard to parallel service underlie the warning of voidance. “Two hundred includes one hundred”, and the remedy of absolute denial of parallel service also comprises the remedy of partial denial, for the same reasons and upon the same grounds: the difficulties in realizing it, which may have consequences for the interpretation of the Basic Law.

            In summary, the ground of reasonableness was not directly raised before us, and therefore, I will not express an opinion as to the concrete, factual grounds that are the subject of the petition. Nevertheless, a principled, theoretical analysis of the issue leads me to the conclusion that we should not erect a wall separating reasonableness from authority, and that the issue of reasonableness constitutes a part of the examination of the question of authority. In my view, issuing a warning of voidance advances the full examination of the subject of parallel service, and is desirable form the perspective of the relevant bodies – from the Government to the constituent authority.

8.         In conclusion, I concur with my colleagues President M. Naor, Deputy President E. Rubinstein, and Justice S. Joubran that the petition should be denied, subject to a warning of voidance, as stated in the opinion of the Deputy President, with which Justice Melcer concurred in his alternative position.

 

Decided by a majority opinion, against the dissenting opinion of Justice Melcer, to deny the petition by reason of the fact that the Prime Minister has the authority to hold additional ministerial portfolios. This, subject to the position of Deputy President Rubinstein and Justices Melcer and Hendel in regard to a “warning of voidance”.

Given this 5th day of Nissan 5776 (April 13, 2016).

 

 

 

 

 

[1] This is a supplemental judgment following a partial judgment given on Aug. 23, 2015, “hereby granting an order absolute on the first head of the order nisi, viz., that the institution of ‘Deputy Minister with the Status of a Minister’ has no legal validity … I therefore recommend that we hereby grant an order absolute that Rabbi Litzman cease to serve as Deputy Minister of Health within 60 days from today (recess days inclusive). Of course, he can be appointed to serve as Minister of Health with all its legal ramifications” (per E. Rubinstein DP, S. Joubran, M. Melcer, N. Hendel JJ concurring, M. Naor P concurring with the holding, but dissenting as to the wording of the order absolute, being of the opinion that “I would not prevent Knesset Member Litzman from serving as a regular deputy minister, and not in accordance with the criteria established in the outline … If my opinion were accepted, we would permit Knesset Member Litzman to give notice within 60 days of whether he chooses to be a minister, or whether he chooses to be a deputy minister in the regular sense – without the outline that grants him special status relative to other deputy ministers – or whether he prefers to withdraw entirely”).

[2] Translator’s note: The term “Prime Minister”, employed as the English equivalent of the Hebrew term Rosh HaMemshala does not reflect the literal meaning of the Hebrew term, which is “Head of the Government”.

[3] Trans. note: Yariv Levin was elected to the Knesset in 2009, and was appointed Minister of Public Security and Minister of Tourism after the 2015 elections.

[4] Trans. note: On Israel’s constitution and the Harrari Decision, see: CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village: http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper....

[5] Translator:  TB Rosh HaShana 4b; Yoma 80a.

[6] Translator: see, e.g., TB Berakhot 61a. The rabbinic proverb is equivalent to the saying “damned if I do, and damned if I don’t”.

[7] Translator: The date of Israel’s independence.

Jabotinsky v. Weizmann

Case/docket number: 
HCJ 65/51
Date Decided: 
Saturday, July 21, 1951
Decision Type: 
Original
Abstract: 

The High Court will not issue an order of mandamus against the President of the State directing him as to the method of carrying out his duties under section 9 of the Law of Transition, 1949. Such a matter is not justiciable.

               

By section 11(d) of the above-mentioned Law "The Government which receives a vote of no-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to exercise its functions pending the constitution of a new Government in accordance with the provisions of this Law." Section 9 provides that "after consultation with representatives of the party groups in the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government." The Government having resigned on February 14, 1951, following upon a vote of no confidence, the President held consultations with the representatives of the parties and entrusted the Prime Minister with the task of forming a new government. When the latter declined to do so, the President notified the Speaker of the Knesset that as a result thereof and of the consultations he had held, he had reached the conclusion that pursuant to section 11(d) of the Law of Transition the Government which had resigned must remain in office until the formation of a new Government after general elections.

 

The petitioners, members of the Knesset, contended that under section 9 it was the duty of the President, once one member had declined to accept the task of forming a new government, to entrust it to any other of the remaining 119 members of the Knesset, before concluding that it was necessary to hold general elections. They applied for an order of mandamus.

               

Held: The President although in a sense the highest public officer in the State, is not semble a "public officer" for the purposes of that part of section 7 of the Courts Ordinance, 19401), which empowers the Supreme Court. sitting as a High Court of Justice to give orders to public officers in connection with the execution of their duties. Notwithstanding that the jurisdiction of the High Court under Article 43 of the Palestine Order in Council, 19222), "to hear... matters necessary to be decided for the administration of justice", is wider than that conferred by section 7, it does not extend to the subject of the petition, which raises a matter that is not amenable to judicial determination and decision, but is one affecting the executive and political, and not the ministerial, powers of the President.

 

Joint Anti-Fascist Committee v. Attorney-General of the United States (71 S. Ct. 673) referred to.

               

The Attorney-General appeared at the hearing of the petition to object to the issue of the order nisi by virtue of his powers under section 6 of the Law of Procedure (Amendment) Ordinance, 1934, which gives him the right to intervene in any matter pending before "any civil or criminal court" if it appears to him that the rights of the Government of Israel are involved or that it is necessary to do so in the public interest.

               

Held, overruling an objection to his appearance, that the High Court is a "civil court" within the meaning of section 6, and that rule 4 of the High Court Rules, 1947, which provides that an application for an order nisi will be heard ex parte, does not bind the court to hear the application in the presence of the petitioners alone. The very nature of the petition justified the intervention of the Attorney-General at the present stage in the proceedings.

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

H.C.J  65/51

 

 

JABOTINSKY AND KOOK

v.

WEIZMANN

 

 

 

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

[July 20, 1951]

Before: Smoira P., Dunkelblum J., Cheshin J., Agranat J., and Silberg J.

 

 

 

            Administration of Justice - Limits of judicial power - Failure by President of State to perform statutory duty as to formation of new Government - Not justiciable - Mandamus - Application for order nisi - Intervension by Attorney-General.

           

                The High Court will not issue an order of mandamus against the President of the State directing him as to the method of carrying out his duties under section 9 of the Law of Transition, 1949. Such a matter is not justiciable.

               

                By section 11(d) of the above-mentioned Law "The Government which receives a vote of no-confidence from the Knesset, or which has decided to resign, shall immediately tender its resignation to the President of the State, but it shall continue to exercise its functions pending the constitution of a new Government in accordance with the provisions of this Law." Section 9 provides that "after consultation with representatives of the party groups in the Knesset, the President of the State shall entrust a member of the Knesset with the task of forming a Government." The Government having resigned on February 14, 1951, following upon a vote of no confidence, the President held consultations with the representatives of the parties and entrusted the Prime Minister with the task of forming a new government. When the latter declined to do so, the President notified the Speaker of the Knesset that as a result thereof and of the consultations he had held, he had reached the conclusion that pursuant to section 11(d) of the Law of Transition the Government which had resigned must remain in office until the formation of a new Government after general elections.

 

                The petitioners, members of the Knesset, contended that under section 9 it was the duty of the President, once one member had declined to accept the task of forming a new government, to entrust it to any other of the remaining 119 members of the Knesset, before concluding that it was necessary to hold general elections. They applied for an order of mandamus.

               

                Held: The President although in a sense the highest public officer in the State, is not semble a "public officer" for the purposes of that part of section 7 of the Courts Ordinance, 19401), which empowers the Supreme Court. sitting as a High Court of Justice to give orders to public officers in connection with the execution of their duties. Notwithstanding that the jurisdiction of the High Court under Article 43 of the Palestine Order in Council, 19222), "to hear... matters necessary to be decided for the administration of justice", is wider than that conferred by section 7, it does not extend to the subject of the petition, which raises a matter that is not amenable to judicial determination and decision, but is one affecting the executive and political, and not the ministerial, powers of the President.

 

                Joint Anti-Fascist Committee v. Attorney-General of the United States (71 S. Ct. 673) referred to.

               

                The Attorney-General appeared at the hearing of the petition to object to the issue of the order nisi by virtue of his powers under section 6 of the Law of Procedure (Amendment) Ordinance, 1934, which gives him the right to intervene in any matter pending before "any civil or criminal court" if it appears to him that the rights of the Government of Israel are involved or that it is necessary to do so in the public interest.

               

                Held, overruling an objection to his appearance, that the High Court is a "civil court" within the meaning of section 6, and that rule 4 of the High Court Rules, 1947, which provides that an application for an order nisi will be heard ex parte, does not bind the court to hear the application in the presence of the petitioners alone. The very nature of the petition justified the intervention of the Attorney-General at the present stage in the proceedings.

 

English case referred to:

(1)        The Parlement Belge; (1879-80), 5 P.D. 197.

 

American cases referred to:

(2)        U.S. v. Aaron Burr; (1807), Robertson's Rep., I, 121.

(3)        Bandini Petroleum Co. v. Superior Court; 52 S. Ct. 103.

(4)        Allen-Bradley Local No. 1111 ect. v. Wisconsin E. R. Board; 62 S. Ct. 820.

(5)        Tennessee Pub. Co. v. American National Bank; 57 S.Ct. 85.

(6)   Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States; 71 S. Ct. 673.

(7)        Aetna Life Ins. Co. of Hartford, Conn. v. Haworth; 57 S. Ct. 461.

(8)        David Muskrat v. United States; 1911, 31 S. Ct. 250.

(9)        Mississippi v. Johnson; (1867), 4 Wall. 475, L. ed. 437.

(10)      McCulloch v. Maryland; (1819), 4 Wheat. 316, 4 L. ed. 579.

 

S. Fishelev for the first petitioner.

R. Nohimovsky for the second petitioner.

H. H. Cohn, Attorney-General (with Naomi Salomon) intervening.

 

SMOIRA P., giving the judgment of the court.

 

            This is an application for an order nisi against the President of the State, requiring him to appear and show cause why he should not call upon a member of the First Knesset1) to form a new government and, if he fail, why one member after another should not be called upon until one of them finally succeeds in constituting a government which will enjoy the confidence of the Knesset. The petition is based upon an expression of no-confidence by the Knesset on February 14, 1951, in the government headed by Mr. Ben-Gurion, and upon the submission to the President of the government's resignation on the same day.

            The following facts are set out in the petition.

           

            The Prime Minister submitted the resignation of the government to the President on February 14, 1951, and on February 18 and 19, 1951, the President held consultations with the representatives of the various parties in the Knesset. On February 21, 1951, the Prime Minister visited the President and on February 25, 1951, the President sent a letter to the Prime Minister which concluded as follows:

           

            "...I have decided, before invoking the final remedy - the remedy of elections - to request you to make a further effort to reach a stable and satisfactory solution, within the framework of the present Knesset, and to form a new government which will enjoy the support of the majority of its members.

           

            I know that this will not be easy to achieve in the present situation, but I am convinced that it is my duty to request it of you.

           

            I would ask you to inform the other parties with whom you will consult of my request, and to convey to them my hope that they will cooperate with you so that a stable and satisfactory arrangement may be reached. I pray that you may succeed."

 

            The Prime Minister, in his reply to the President's letter of February 27, 1951, wrote:

           

            "If, Mr. President, you see any prospect of the formation of a government which will enjoy the confidence of a majority of the Knesset, it is for you to approach the representatives of any of the parties which voted against the present government. If any one of them succeed in forming a government, I shall gladly hand over my office to him with my sincere good wishes for success in his task.

           

            If this should not be possible and the majority of Mapam Herut. the United Religious Front, the Communists and the General Zionists1) who voted against the government, are unable to form a government, even for a period of transition, then section 11(d) of the Law of Transition, 1949, will come into operation. This obliges the present government, of which I have the honor to be the head, to remain in office until the formation of a new government, after elections."

 

            On March 5, 1951, the President sent a note to Mr. Yosef Sprinzak, the Speaker of the Knesset, in which he wrote, inter alia : -

           

            "After reading the reply of Mr. Ben-Gurion and as a result of the consultations with representatives of the parties in the Knesset, I have reached the conclusion that the government which resigned should remain in office in accordance with the Law of Transition until the formation of a new government after the elections."

 

            On March 21, 1951, the petitioners requested an interview with the President. They were informed that his state of health did not permit him to receive them and on March 28, 1951, the petitioner, Eri Jabotinsky, sent a letter to the President's private secretary in these terms: -

           

            "We wished to try and convince the President that it is his duty to impose upon one of the members of the Knesset the task of forming a government which would function until the convening of the Second Knesset but which would in the meantime enjoy the confidence of the present Knesset. I do not think there is any point in stating my grounds to the President here. The majority of them are known from the debates in the Knesset and from the press - in particular Ha’aretz. The Law of Transition lays down the President's duty in this matter in clear terms. The letters of the President to Mr. Ben-Gurion and to the Speaker of the Knesset also show clearly that the President has not yet imposed the task of forming a government upon any member of the Knesset and that after his failure with Mr. Ben-Gurion, he discontinued his efforts. These points are all well known. As far as the political arguments which we wished to raise in our conversation with the President are concerned, his state of health will no doubt prevent him from considering them in the period permitted by the present circumstances.

 

            In view of the impossibility of discussing the matter fully with the President I am now considering bringing the case at the beginning of next week before the Supreme Court - the only body which can determine the legality of the position. I would ask you to convey to Dr. Weizmann that, in so doing, I have no intention of offending him personally in any way whatsoever. I have long been of opinion that our Supreme Court should gradually become the final arbiter in constitutional questions affecting the State. The seriousness of the matter now in issue and the need for its legal clarification create the opportunity for the Supreme Court to enter upon this task."

 

            On April 16, 1951, the petitioners lodged this application. They submit that the President of the State had no authority to approach the Knesset directly on a political or legal-constitutional question. Their main contention is that the President has contravened the provisions of section 9 of the Law of Transition, 1949, in that for a lengthy period of more than two months he has failed to discharge his legal and constitutional duty of imposing upon one of the members of the Knesset the task of forming a new government.

 

            The petition also contains the following submissions:

           

            The President infringed the rights of the Knesset when, without first finding out whether the member whom he called upon would accept the task, he charged that member of the Knesset with the task of forming a new government and did not see fit to charge any of the other 119 members of the Knesset with the same task.

           

            In consequence of the failure of the President to fulfill his duty, a situation has been created which is inconsistent with the law of the State. In addition, the government which has resigned - which is in fact continuing to function without enjoying the confidence of the First Knesset - is an illegal government. It is the duty of the President, no matter what the consequences may be, to bring about the formation of a new government which will enjoy the confidence of the Knesset. The present situation destroys parliamentary and democratic rule and violates the principle of the collective responsibility of the government towards the Knesset. If the same government in which the Knesset has no confidence, continue functioning, then the Knesset will he given no opportunity of expressing again its lack of confidence. It has done so once and no new vote will add anything. As a result, the government which has resigned has in fact the full power of doing what it likes, untrammeled by law or the opinion of the Knesset.

           

            The petitioners do not see a remedy for the situation in the fact that July 30, 1951, has been fixed by law as the date for the elections to the Second Knesset. They submit that for a period of approximately five months - until the formation of a new government after the elections and the convening of the Second Knesset - an illegal situation will continue.

           

            The Knesset cannot force the President to discharge his legal and constitutional duty. It is only the Supreme Court, sitting as the High Court of Justice, which can order the President to charge a member of the Knesset with constituting a new government.

           

            This is a summary of the petition.

           

            The Attorney-General, having learned of the presentation of this petition, appeared on the day of the hearing and asked leave, in terms of section 6 of the Law of Procedure (Amendment) Ordinance, 1934, to submit his arguments in the matter since it appeared to him that the rights of the Government of Israel were involved and it might be injurious to the public interest to hear the petition in his absence.

           

            He raised the preliminary point that no petition of any kind against the President of the State could be entertained by this court. Mr. Nohimovsky objected to the appearance of the Attorney-General at this stage - namely, before the issue of an order nisi. He submitted that although the Supreme Court, sitting as the High Court of Justice, is a "civil court" within the meaning of Article 38 of the Palestine Order in Council1), it is not a civil court within the meaning of section 6 above, where the expression is employed in contradistinction to a "criminal court." He further submitted that in terms of rule 4 of the High Court Rule, 1937, a petition for an order nisi is to be heard ex parte.

           

            The court rejects these arguments of Mr. Nohimovsky for two reasons.

           

            (a) Section 6 referred to above speaks of "any civil or criminal court," and there is no reason for excluding the High Court of Justice from the expression "civil court" in the comprehensive sense in which it is used in Article 38 of the Order in Council. In our opinion, the very nature of the petition brought before this court requires that the Attorney-General should be afforded the right of intervention, even at this stage.

           

            (b) It is true that the Rules of 1937 provide that an application for an order nisi should, as a general rule, be made ex parte. They do not, however, bind the court to hear such au application in the presence of the petitioner alone.

           

            The Attorney-General submitted two arguments: -

           

            (1) That this court will not entertain an application against the President of the State;

           

            (2) That this court has no jurisdiction to hear the petition.

           

            The first argument is that the President of the State enjoys general immunity and cannot be brought before the courts. The second argument is that in accordance with the existing law, this court has no jurisdiction to deal with the present petition.

 

(In the course of his argument counsel here referred to the Bible, the Talmud, and the works of Maimonides, but the court, holding that these sources were not relevant in the case, continued:)

 

            In passing to more mundane sources, the Attorney-General compared the position of the King of England and his immunity from all claims before the courts with that of our President. As authority for this proposition he relied upon Blackstone, as quoted in the case of the Parletment Belge (1). We there find statements such as these: "Our king", says Blackstone, "owes no kind of subjection to any other potentate on earth. Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him ...authority to try would be vain and idle without an authority to redress, and the sentence of a court would be contemptible unless the court had power to command the execution of it, but who shall command the king?" And in the same judgment Brett L.J., relying upon Blackstone, states that the real principle upon which the immunity is based is that the exercise of such jurisdiction would be incompatible with the king's regal dignity. The Attorney-General also wished to deduce from Article 46 of the Palestine Order in Council that the principle, precluding the bringing of the king before the courts as incompatible with his dignity, also applies to the President of the State of Israel and that this court may not therefore enquire into the actions of the President.

           

            These arguments moved Mr. Fishelev, counsel for the petitioners, to contend that these principles apply to an absolute monarchy and have no place in the democratic regime of the State of Israel.

           

            We too are of the opinion that the writings of Blackstone on the position of the King of England have no relevance here. An apt answer to this approach was given in the year 1807 by Chief Justice Marshall of the United States in his judgment in the case of United States v. Aaron Burr (2). The question that arose in that case was whether it was possible to summon the President of the United States as a witness for the defence and to order that he appear. Marshall C.J. said, inter alia: -

           

            "Although he (the King) may, perhaps, give testimony, it is said to be incompatible with his dignity to appear under the process of the court. Of the many points of difference which exist between the First Magistrate in England and the First Magistrate in the United States, in respect to the personal dignity conferred upon them by the constitutions of their respective nations, the court will only mention two. (1) It is a principle of the English Constitution that the King can do no wrong, that no blame can be imputed to him, that he cannot be named in debate. By the Constitution of the United States the President, as well as every other officer of the government, may be impeached and may be removed from office on high crimes and misdemeanors. (2) By the Constitution of Great Britain the Crown is hereditary and the monarch can never be a subject. By that of the United States, the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again. How essentially this difference of circumstances must vary the policy of the laws of the two countries in reference to the personal dignity of the executive chief, will be perceived by every one."

 

            I shall not add any comments of my own to these dicta of the distinguished Chief Justice of the United States. Every one will appreciate that in regard to the question of immunity before the courts, the position in this country is analogous to that in the United States and not to that in England.

           

            Whether the President is to enjoy immunity is not to be gathered by reference to the immunity of a monarch. In view, however, of the decision which we have reached on the question of jurisdiction, we need not decide in this case whether the President enjoys immunity or not.

           

            As I have said, the Attorney-General, in the course of his argument, placed the emphasis upon this court's lack of jurisdiction to deal with the petition and grant a mandamus against the President and it is, in our opinion, the answer to the question whether this court has jurisdiction which determines the fate of this petition.

           

            On this question too, lengthy arguments were addressed to us, and points raised which are irrelevant. It is our first task, therefore, to limit the scope of our consideration. The matter before us is a constitutional one. It is an accepted rule, as laid down also in the United States, that "Constitutional questions are not to be dealt with abstractly", Bandini Petroleum Co. v. Superior Court; (3), at p. 108. "It is a familiar rule that the court will not anticipate the decision of a constitutional question upon a record which does not appropriately present it", Tennessee Pub. Co. v. American National Bank; (5), at p. 87.

           

            In the light of this principle we shall confine our discussion:

           

            (a) to the subject-matter of the case, namely, the alleged contravention of section 9 of the Law of Transition, as argued by the petitioners;

           

            (b) to the prayer, namely, the granting of a writ of mandamus against the President.

           

            The basic provision defining the jurisdiction of this court in the matter before us is section 17 of the Law and Administration Ordinance, 1948, which lays down that: -

           

            "So long as no new law concerning law courts has been enacted, the law courts existing in the territory of the State shall continue to function within the scope of the powers conferred upon them by law."

           

            It follows that, in the absence of a law extending its jurisdiction, the High Court of Justice in the State of Israel has no wider powers than those which were enjoyed by it in the time of the Mandate. Counsel for the petitioners emphasised, in fact, that they do not ask us to assume powers wider than these, but they request that we exercise the jurisdiction conferred upon us by law. Their submission, so they say, is de lege lata.

           

            The law relating to the jurisdiction of this court is to be found in Articles 38 and 43 of the Order in Council of 1922 and section 7 of the Courts Ordinance of 1940. Nothing relevant to the present case can be learned regarding jurisdiction from Article 38, which merely provides that the courts "hereinafter described shall exercise jurisdiction in all matters and over all persons" in the country. This jurisdiction is defined, however, in Article 43 of the Order in Council and in section 7 of the Ordinance.

           

            As I shall explain later there is no necessity for us to determine the extent of our jurisdiction under section 7(b) of the Courts Ordinance. 1940, which confers jurisdiction upon this court to issue orders of mandamus and injunctions against public officers and public bodies. We are in fact of the opinion that the President of the State is not a "public officer" within the meaning of the definition in the Interpretation Ordinance of 1945, though he is, in a wider sense, the highest public officer in the State.

           

            As I have said, however, there is no need for us to determine our jurisdiction under section 7(b) of the Courts Ordinance since this court has decided on numerous occasions that the limits of its jurisdiction under Article 43 of the Order in Council are wider than the limits laid down in section 7 of the Ordinance.

 

            I agree with the submission of counsel for the petitioners that we must decide the question of our jurisdiction de lege lata. With this, however, we put an end to all their submissions based upon the constitutions of other countries. The doctrine of impeachment, in the various forms which it assumes in different countries, has no relevance for us in this case. It is inconceivable that this court would assume to itself a power such as that of impeachment without a specific provision in the law to that effect. Counsel for the petitioners conceded, moreover, that the purpose of impeachment is to remove the head of the State from his office by reason of the commission of an offence such us treason or some other serious offence. This is stated expressly in the constitution of the United States, and this is the interpretation given to the expression "haute trahison" in the French constitution. And the petitioners have stated repeatedly that they do not seek the removal of the President but an order of mandamus.

           

            We return to the only question before us, namely, whether this court has jurisdiction to issue a mandamus against the President of the State in respect of his alleged failure to act in accordance with section 9 of the Law of Transition, 1949. We can decide this question de lege lata only on the basis of Article 43 of the Order in Council. We do not accept the contention that us the President is not mentioned in the Law and Administration Ordinance of 1948, for that reason alone we have no jurisdiction to deal with the petition. The whole force of statute law - which provides for the norm and not for exceptions - lies in its power to create machinery for dealing with situations which do not yet exist when the law is promulgated. Section 11 of the Law and Administration Ordinance, 1948, provides expressly, moreover, that the existing law shall remain in force subject to such modifications as may result from the establishment of the State and its authorities. The fact, therefore, that the high office of President of the State did not actually exist when the Law and Administration Ordinance was enacted does not stand in the way of our applying the law today to the President. Had the petition on its merits fallen within the provisions of Article 43 of the Order in Council of 1922 it would have been possible and necessary to entertain it.

           

            The field of enquiry is narrowed down to this: is the subject-matter of the petition and the prayer among the "matters necessary to be decided for the administration of justice?" Is the present petition a matter which calls for judicial decision? Some assistance in clarifying this problem may be derived from an examination of authorities in the Supreme Court of the United States .

 

            In terms of Title 3 Section 2 of the American Constitution, "cases and controversies" are made amenable to judicial decision, and these expressions - and the limits of judicial power in general - have been defined in a long list of cases. The most recent judgment is that of Justice Frankfurter of April 30, 1951, in the case of Joint Anti-Fascist Refugee Committee v. Attorney-General of the United States (6). Let me cite some extracts from this judgment: -

           

            "...in a case raising delicate constitutional questions it is particularly incumbent first, to satisfy the threshold enquiry whether we have any business to decide the case at all. Is there, in short, a litigant before us who has a claim presented in a form and under conditions 'appropriate for judicial determination’?” Aetna Life Ins. Co. of Hartford , Conn. v. Haworth, (7).

 

            At first sight there is a distinction between the language of the American Constitution which makes "cases and controversies" amenable to judicial determination, and the language of Article 43 which employs the expression "matters." But it has been held in the United States that the expression "cases" is wider than the expression "controversies". See David Muskrat v. United States (8) at p. 954.

           

            "The judicial article of the Constitution mentions cases and controversies. The term "controversies", if distinguishable from "cases", is so in that it is less comprehensive than the latter, and includes only suits of a civil nature."

 

            Mr. Nohimovsky, counsel for the petitioner, emphasised the wide term "matters", from which he sought to derive our jurisdiction. Even if we assume that the term "matters" is wider than "cases and controversies" we have still to enquire what are the matters which are submitted to our jurisdiction. They are only those "matters... necessary to be decided for the administration of justice." By the addition of these words the legislature has set limits to the area of "matters" in the ordinary meaning of that expression. In regard to this it was submitted by counsel for the petitioners that we must interpret the expression "justice" by reference to philosophical, religious and moral sources. We are not prepared to adopt this system of interpretation which is completely unlimited in scope and obscures the limits of judicial power.

           

            Justice Frankfurter said the following in connection with this problem in his judgment referred to above: -

           

            "Limitation on 'the Judicial Power of the United States' is expressed by the requirement that a litigant roust have 'standing to sue', or more comprehensively, that a Federal Court may entertain a controversy only if it is 'justiciable'. Both characterizations mean that a court Grill not decide a question unless the nature of the action challenged, the kind of injury inflicted, and the relationship between the parties are such that judicial determination is consonant with what was generally speaking the business of the Colonial Courts and the Courts of Westminster when the Constitution was framed. The jurisdiction of the Federal Courts can be invoked only under circumstances which to the expert feel of lawyers constitute 'a case or controversy'. The scope and consequences of the review with which the judiciary is entrusted over executive and legislative action require us to observe these bounds fastidiously.''

 

            With all respect to the learned judge, I find in these remarks an excellent definition of the limits of judicial power. The reply to the question what are the matters which are necessary to be decided for the administration of justice cannot be drawn from the wide sea of philosophical, religious and moral relationships. To do w would be to widen those limits so as to include every matter necessary for human progress. On the other hand such limits cannot be defined by a purely geometrical formula. In leaving the matter to be decided by "the expert feel of lawyers" the learned judge readily concedes the intellectual impossibility of an accurate and absolute definition. We, as judges, must find the answer to the question whether the matter, in the language of the United States judgment, is "appropriate for judicial determination" or, in the language of our Article 43, is "necessary to be decided for the administration of justice", by bringing to bear our legal and judicial understanding.

           

            We also attach importance to the words of Justice Frankfurter relating to the "business of the Colonial Courts and the Courts of Westminster". We find in this remark the connecting link between the language of the American Constitution and that of Article 43 of the Order in Council.

           

            The question before us, therefore, is whether the petitioners have placed before the court a matter which is justiciable, a matter which is proper for judicial determination.

           

            The complaint of the petitioners is that the President of the State has failed to comply with section 9 of the Law of Transition or, at the least, that he has not exhausted the possibilities envisaged in that section by making repeated attempts to impose the task of forming a new government upon one of the remaining 119 members of the Knesset after the first member upon whom that task was imposed failed in his attempt. The petitioners ask us to order the President to continue imposing the task of forming a government upon members of the Knesset until one of them who undertakes this mission succeeds in forming a new government which enjoys the confidence of the Knesset.

 

            According to the reasoning which underlies the petition it will be the duty of this court to examine and determine whether, in his first or second or third attempt to do what is requested of him, the President of the State has discharged the duty imposed upon him by section 9 of the Law of Transition, or whether he must continue in his attempts. In order to decide the matter this court will have to consider the effectiveness of the imposition of the task in question upon one or other of the members of the Knesset. It is sufficient to point out the consequences of such a process in order to show that the present petition falls completely outside the limits of judicial determination.

           

            If the "expert feel of lawyers" is to be invoked, it may be said generally that the whole subject of the duty of forming a government in accordance with section 9 of the Law of Transition is non-justiciable and beyond the scope of judicial determination. The relationships involved are in their very nature outside the field of judicial enquiry; they are relationships between the President of the State, the government and the Knesset, that is to say, the executive and parliamentary authorities. If the question of a failure to comply with section 9 should arise, the remedy must be found through parliamentary means, that is to say, in the reaction of the Knesset to a government which, in its opinion, does not even possess the right to exist in transition in accordance with section 11(d) of the Law of Transition. That section provides that the government, after its resignation, shall continue in office until the formation of a new government in accordance with the provisions of that Law.

           

            It is highly significant that counsel for the petitioners did not cite a single authority from other countries in which a court directed the President of the State, in any form whatsoever, to follow a particular course in the discharge of his executive functions.

           

            We have reached the conclusion that the matter before us is not one which is amenable to judicial determination and decision. We point with satisfaction to the accord between our decision and those of the Supreme Court of the United States which, as is well known, has considerable experience in examining the boundaries between the respective functions of the three authorities of the State. Counsel for the petitioners invited us to follow in the footsteps of the Supreme Court of the United States, and strongly relied upon a saying that that court is in fact the Constitution. Just because of that, however, it is desirable to point to the care taken by the American Supreme Court not to overstep the boundary. Here are some examples.

 

            In the case of Mississippi v. Johnson (9), the court was asked to issue an injunction against the President of the United States restraining him from enforcing a law passed by Congress relating to the administration of the State of Mississippi. It was argued by the petitioners that the law in question was ultra vires the Constitution of the United States.

           

            Chief Justice Chase drew a distinction in his judgment between the ministerial and the executive and political duties of the President of the United States, and said:-

           

            "An attempt on the part of the judicial department of the Government to enforce the performance of such (executive and political) duties by the President might be justly characterized, in the language of Chief Justice Marshall, as 'an absurd and excessive extravagance' . . . It was admitted in the argument that the application now made to us is without a precedent and this is of much weight against it . . . The fact that no such application was ever before made in any case indicates the general judgment of the profession that no such application should be entertained."

 

            I may mention incidentally that there is in the last sentence quoted a hint of the conception mentioned by Justice Frankfurter in his recent judgment in which he speaks of the "expert feel of lawyers". In his judgment in the case of M'Culloch v. Maryland (10), Chief Justice Marshall deals with the boundaries between the functions of the legislative authority and the judicial authority, and we may say, following him, that were we to accede to the request of the petitioners in this case, we would exceed the limits of judicial authority and trespass upon the preserves of the political and executive authorities. In the language of Chief Justice Marshall, "this court disclaims all pretensions to such a power. ' '

           

            The question brought before us is one affecting the executive and political powers of the President, and is beyond the scope of judicial authority.

           

            We accordingly dismiss the petition for want of jurisdiction.

           

                                                                                            Petition for order nisi refused.

                                                                                            Judgment given on July 20, 1951.

 

1)              Courts Ordinance, 1940, s. 7:

The High Court of Justice shall have exclusive jurisdiction in the following matters:

                (a)           .......………

          (b)     Orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts;

2)              Palestine Order in Council, 1922, art. 43:

          .........The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice.

1) parliament or Congress.

1) Mapam and the Communists are left-Wing parties and the others Right-Wing parties.

1)       Palestine Order in Council, 1922 (as amended 1935), Article 38:

          Subject to the provisions of this part of this order or any Ordinance or rules, the civil courts hereinafter described, and any other courts or tribunals constituted by or under any of the provisions of any ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine.

Bergman v. Minister of Finance

Case/docket number: 
HCJ 98/69
Date Decided: 
Thursday, July 3, 1969
Decision Type: 
Original
Abstract: 

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

           

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

           

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

               

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

           

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

 

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

 

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

 

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

 

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

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

HCJ 98/69

           

A. BERGMAN

v.

MINISTER OF FINANCE AND STATE COMPTROLLER

 

 

The Supreme Court Sitting as the High Court of  Justice

 

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

 

 

Editor's synopsis -

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

           

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

           

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

               

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

           

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

           

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

 

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

 

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

 

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

           

Israel case referred to:

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

 

The Petitioner appeared in person.

 

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

 

 

 

 

 

JUDGMENT

 

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

           

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

 

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

         

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

         

          And section 4 of the Basic Law reads:

         

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

         

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

         

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

 

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

           

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

           

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

 

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

 

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

           

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

 

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

           

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

           

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

           

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

 

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

           

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

 

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

           

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

           

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

           

            Judgment given on July 3, 1969

Wael & Co. v. National Water and Sewage Authority

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

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

The Supreme Court sitting as a Court of Civil Appeals

CA 4926/08

 

Before:                                                The Honorable Justice E. Rubinstein                                                                                                 

The Honorable Justice S. Joubran                                                      

The Honorable Justice N. Hendel

 

The Appellants:                      1.    Nashef Wael & Co.

                                               2.    Abd Elkader Nashef

                                               3.    Tibi Muneer

                                               4.    Munder Haj Yichye

                                               5.    Hadran Ltd.

 

v.

 

The Respondent:                    The National Water and Sewage Authority

 

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

 

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

 

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

 

On behalf of the Respondent:    Adv. Limor Peled

 

JUDGMENT

 

Justice S. Joubran:

 

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

 

Normative and Factual Background

 

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

 

Extraction 116.
Levy

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

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

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

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

 

 

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

 

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

 

The Dispute between the Parties and the Litigation To Date

 

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

 

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

 

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

 

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

 

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

 

And now, to the appeal before us.

 

The Parties' Arguments

 

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

 

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

 

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

 

Discussion

 

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

 

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

 

The Duty to Hear the Water Extractors and Consumers

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

The Duty of Informing and its Manner of Performance

 

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

 

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

 

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

 

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

 

Duty to Inform in Arabic

 

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

 

The Arabic Language in Israel

 

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

 

Official 82.
Languages

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

 

 

 

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

 

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

 

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

 

Interpreting Section 82

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

A.The Special Purposes

 

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

 

B.The General Purposes

 

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

 

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

 

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

 

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

 

C.Striking a Balance between the Purposes

 

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

 

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

 

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

 

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

 

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

 

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

 

Interim Summary

 

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

 

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

 

The Relief

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Before Summation

 

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

 

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

 

Summary

 

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

 

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

 

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

 

Justice

 

Justice E. Rubinstein:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Justice

 

Justice N. Hendel:

 

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

 

 

Justice

 

 

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

 

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

 

 

Justice                                     Justice                                     Justice

United Mizrahi Bank v. Migdal Cooperative Village

Case/docket number: 
CA 6821/93
Date Decided: 
Thursday, November 9, 1995
Decision Type: 
Appellate
Abstract: 

The Family Agricultural Sector (Arrangements) Law was adopted by the Knesset in 1992, as part of an attempt to rehabilitate Israel’s agricultural sector following a severe economic crises. To that end, the law established a body called the “rehabilitator,” which was granted broad authority to settle, restructure and cancel debts that had been created up to the end of 1987. In 1993, the Knesset found it necessary to intervene again, and amended the law. Among other changes, the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993, redefined the debts subject to the law, and extended the applicable time period so that debts incurred until the end of 1991 also fell within the scope of the law and the authority of the rehabilitator.

 

Following the adoption of the Primary Law, but prior to the adoption of the Amending Law, the Knesset enacted Basic Law: Human Dignity and Liberty. Section 10 of the Basic Law stated that the Basic Law “shall not affect the validity of any Law in force prior to the commencement of the Basic Law.

 

CA 6821/93 concerned a suit brought by the appellant in the District Court against the respondents who had guaranteed the debt of the Cooperative Agricultural Fund Ltd. The respondents requested that the matter be transferred to the jurisdiction of the rehabilitator, in accordance with the Amending Law. The Court granted the request. The appellants argued on appeal that the Amending Law violated their property rights under s. 3 of Basic Law: Human Dignity and Liberty, and was contrary to s. 8 of that Basic Law, which establishes that there shall be no violation of rights under the Basic Law except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required, or by regulation enacted by the virtue of express authorisation of such Law.”

 

LCA 1908/94 concerned debts incurred by the appellants for the rental of agricultural equipment. The District Court held that the provisions of the Amending Law that extended the period of debts were incompatible with s. 8 of the Basic Law and were void. While the Amending Law served a proper purpose, the Court found that it applied selectively to a part of the public and was therefore incompatible with the values of the State of Israel.

 

LCA 3364/94 addressed the District Court’s decision to reject the request of the appellants to transfer their matter to the jurisdiction of the rehabilitator. The Court found that the debt had been incurred in 1988 and thus did not fall within the scope of the Primary Law. The stay of proceedings and the transfer of the debt to the jurisdiction of the rehabilitator were a result of the Amending Law. The Court held that the Amending Law infringed creditors’ rights beyond what was established in the Primary Law. While the Primary Law was immune to review under the provisions of s. 10 of the Basic Law, those provisions did not apply to the Amending Law, which was, therefore, subject to review under s. 8.

 

The three cases represented the first instances in which Israeli courts annulled a law passed by the Knesset on the grounds of unconstitutionality due to a violation of fundamental rights established in a Basic Law. Inasmuch as the three cases raised the same fundamental questions of constitutional law, the appeals were heard together before an expanded bench of nine judges of the Supreme Court.

 

In deciding the appeals, the Supreme Court was called upon to address the questions of whether or not the Knesset possessed constituent authority to frame a constitution and limit its own legislative authority thereby, and whether Basic Laws enacted by the Knesset enjoy supra-legislative status. After establishing the place of Basic Laws in the legislative hierarchy and the ramifications of a conflict between regular legislation and Basic Laws, the Court addressed the specific issue of whether the Amending Law violated rights established under Basic Law: Human Dignity and Liberty and whether the violation was incompatible with s. 8 of that law, and the consequences of such a violation.

 

Each of the nine judges wrote a separate opinion. The primary approach of the Court is set out in the opinion of President Barak. According to President Barak, the Knesset’s authority to frame a constitution derives from the doctrine of constituent authority. The Knesset derives its constituent authority from the First Knesset by means of constitutional continuity. This view of the Knesset’s constituent authority best reflects the national consciousness and legislative history of the State of Israel. The Knesset, therefore, acts in two capacities. It enacts laws as a regular legislature, and it adopts Basic Laws in its capacity as constituent assembly. Basic Laws so enacted enjoy supra-legislative, constitutional status. Judges Bach, Goldberg, Levin, Mazza, Tal, and Zamir concurred in their separate opinions.

 

Former President Shamgar based the Knesset’s authority to frame a constitution upon constituent authority deriving from the Knesset’s unlimited sovereignty. It is the Knesset’s unlimited sovereignty that underlies its authority to frame a supra-legislative constitution that can limit the legislative power of future Knessets.

 

In his dissenting opinion, Justice Cheshin agreed that the First Knesset was granted the power to frame a constitution, but argued that the First Knesset’s constituent authority was not transferable, and it was not transferred to subsequent Knessets. Moreover, According to Cheshin, J., constituent authority must be unequivocal, yet Court precedent and Israel’s legislative history do not reflect such a clear view of the Knesset’s authority, and the legislative history of the Basic Laws does not support a conclusion that the Knesset believed it was adopting legislation of a constitutional nature in enacting them.

 

The Court unanimously held that although the Amending Law violated the property rights of creditors, the provisions of the Amending Law were consistent with the requirements of s. 8 of Basic Law: Human Dignity and Liberty. The appeal in CA 6821/93 was therefore dismissed, and the appeals in CLA 1908/94 and CLA 3363/94 were upheld and the decisions of the District Court were set aside.

 

(Per Shamgar, P.) The Basic Law did not infringe pre-existing laws, but applies only to laws adopted following its entry into force. The Amending Law was adopted following the entry into force of the Basic Law.

 

Two primary theories explain the Knesset’s power to enact legislation of a constitutional nature: The theory of unlimited sovereignty and the theory of constituent authority. Of theses two theories, that of unlimited sovereignty more accurately expresses Israel’s legislative history, its accepted legal concepts, and the case law of the Supreme Court.

 

The Knesset has the power to enact laws of every type and content, and can formally or substantively entrench the fundamental values of the State of Israel, and thereby limit its own power and that of subsequent Knessets. The extent of the Knesset’s power to limit itself is a question of constitutional policy. Both the theory of unlimited sovereignty and that of constituent authority recognize the Knesset’s power to limit itself.

 

In terms of preferred law, a Basic Law should be changed only by another Basic Law. In this regard, a distinction must be drawn between changing a right as opposed to infringing it. An infringement does not change the basic right.

 

(Per Barak, P.) The Knesset’s power to adopt a constitution derives from its constituent power. The source of the Knesset’s constituent power is the sovereign, that is, the people. This approach can be grounded upon three models: 1) constitutional continuity, 2) the recognition rule, 3) the best explanation for the socio-historical and legal history of the system.

 

Regardless of the legal situation that existed following the dissolution of the First Knesset, and even if there never was a Constituent Assembly, Israeli law currently recognizes the power of the Knesset to adopt a constitution. This is supported by the Knesset’s understanding of its role, the platforms of the various political parties, the consensus of opinion of jurists and legal scholars, the decisions of the Supreme Court, and the Knesset’s reaction to those decisions.

 

Due to the fact that a Basic Law is of a higher normative level, it can only be changed by another Basic Law.

 

In wielding its constituent power, the Knesset can limit its authority to change Basic laws, and thus create “rigidity” of constitutional provisions. The Knesset’s power to limit itself and thus entrench the provisions of a Basic Law derives from its authority to adopt a formal constitution.

 

The theory of constituent power addresses the question of the Knesset’s authority to limit its own power when wielding constituent power, but it does not provide an answer to the question of whether the Knesset can limit itself when it employs its normal legislative power. This question can be left for further review. We can also leave for further review the question of whether there is a substantive difference between the entrenchment of a regular law that requires an absolute majority, as opposed to a provision requiring some greater majority.

 

True democracy recognizes the constitutional power to entrench basic human rights against the power of the majority. This limit upon majority rule does not infringe democracy, but rather realizes it. Granting the majority the power to harm the rights of the minority is undemocratic. Protecting the individual, the minority, and the fundamental values of the legal system against the power of the majority is the democratic act.

 

A democracy of the majority alone that is not accompanied by a democracy of values is but a formal, statistical democracy. True democracy limits the power of the majority in order to protect society’s values.

 

The human rights defined in the Basic Laws in absolute terms are relative rights. Human dignity, liberty, property, movement, privacy and freedom of occupation are not absolute rights, but can be infringed in order to preserve the social framework. The constitutionality of the infringement does not diminish the constitutional status of human rights. The constitutionality of an infringement means that a regular law that meets the conditions established by the constitution can infringe a constitutionally protected human right.

 

When the Basic Laws do not state the remedy for the infringement of a constitutional right, legal tradition provides the conclusion that the remedy for an unconstitutional law is abrogation by the courts.

 

A law is presumed to be constitutional, and a party seeking to challenge that presumption bears the burden of proof. As for the constitutionality of an infringement, the burden falls to the party arguing that the infringement is constitutional. This is the appropriate approach, as it places the burden upon the party best suited to bear it, viz. the state. However, inasmuch as the issue does not arise in the case before the Court, it can be left for further review.

 

(Per Cheshin, J.) In addressing the question of whether the Knesset possesses constituent power, a distinction must be drawn between the power to adopt a formal constitution and the power to adopt entrenched laws. The power to adopt entrenched laws does not, in and of itself, imply constituent power.

 

When the Constituent Assembly – the First Knesset – completed its term without adopting a constitution, the Knesset’s right to adopt a constitution in accordance with the Declaration of Independence ceased. The only continuity that was preserved was in regard to legislation, not constitutional issues. The Constituent Assembly’s authority to adopt a constitution was a one-time, non-transferable power.

 

The Knesset does not have constituent authority, nor does it enjoy unlimited sovereignty. The Knesset is the Knesset, and it possesses only legislative authority.

 

Insofar as the Knesset’s power to limit itself, a distinction must be drawn between procedural limitation by requiring a special majority, and substantive limitation.

 

Once the Knesset has established legislative procedures, it must follow those procedures until it expressly repeals them and replaces them with new procedures. The establishing of new procedures must be carried out in accordance with the old procedures. In other words, the Knesset is limited by the procedures that it establishes in regard to legislative procedure.

 

The question of quorum and that of voting are matters of organizational procedure. The voting rules are established in Basic Law: The Knesset, which establishes that the Knesset decides in accordance with the democratic principle of majority and minority, and that the votes of absent and abstaining members are not counted. In the absence of a constitution that establishes otherwise, the Knesset can decide upon any combination of the variables of quorum, absentees and abstainers, and any combination will be legitimate and legal. The one limitation is that of the principle of democracy. The basic democratic principle of “majority” must be preserved.

 

A requirement of an absolute majority of sixty-one votes is not only consistent with the majority principle it is the principle itself. An absolute majority is not a special or privileged majority, but rather it is the true majority derived from the democratic theory of majority. A requirement of an absolute majority is not an instance of self-limitation. Such a requirement limits the possibility of abstention or setting off, but the ability to abstain or to arrange a set off is not one of the elected representative’s rights.

 

In the current legal regime, and in the absence of the power to adopt a constitution, a provision requiring a majority greater than sixty-one votes is manifestly undemocratic. A sixty-one vote majority is the upper limit, and in establishing anything beyond that the Knesset deviates from its authority.

 

The power to abrogate Knesset legislation should be reserved exclusively to the High Court of Justice. The doctrine that applies to secondary legislation is not appropriate to primary legislation.

 

Once it has been shown that a law infringes a basic right, the burden of proof falls to the party claiming that the law is constitutional. The presumption that the law is constitutional applies to the secondary evidentiary burden, as opposed to the burden of proof that must be born by the governmental authorities.

 

(Per D. Levin, J.) The Basic Laws constitute chapters of the Israeli constitution. The framers of Israel’s Declaration of Independence intended that legislation be effected on two parallel levels: A constitution to be adopted by the constituent authority, which would express the fundamental human rights on the basis of the vision of Israel’s prophets, and the regular, day-to-day legislation to be conducted by the legislature.

 

The Declaration of Independence indicates that the source of the Knesset’s authority to adopt a constitution is its constituent power. The fact that there have been delays in the process of adopting a constitution since the election of the Constituent Assembly does not change or influence the source of the legislature’s authority in advancing constitutional legislation. Constituent power continues to exist until the task of adopting a constitution is completed.

 

The party claiming the infringement of a basic right or who challenges the lawfulness of a law due to such infringement bears the burden of showing that a constitutionally protected basic right was infringed. If that burden is met, then the burden of showing that the law meets the justifying conditions passes to the party seeking to uphold the law.

 

(Per Zamir, J.) The Knesset’s power to limit itself, both formally and substantively, derives from its status as a constituent assembly. The theory of constituent power provides an adequate theoretical explanation and a practical tool for the Knesset and the Court to address constitutional issues, and is the preferable theory.

 

(Per Bach, J.) In principle, there is no difference between a requirement of a sixty-one-vote majority to amend or repeal a law and a more extreme requirement. A law is adopted by a regular majority of those participating in the vote. Absence or abstention is the right of every Knesset member. If the Knesset is not empowered to adopt constitutional legislation, and if a subsequent Knesset can repeal any law by the normal means, then it is difficult to understand why a law requiring a sixty-one-vote majority would be an exception.

 

The fear of negative phenomena that may materialize in the future by recognition of the Knesset’s unlimited power to employ Basic Laws to limit the power of subsequent Knessets to change or amend Basic Laws is more theoretical than real. It may be assumed that in a proper democracy, certain things will not occur.

 

The question of who bears the burden of proof is very relevant to the question of whether the Amending Law meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty, and should be addressed. Once established that the law infringes the right to property, it is necessary to ask who must bear the burden of showing that the law meets the requirements of the Basic Law.

 

A law that infringes liberty or property or some other basic right is not presumed, a priori, to be void, and it will not be deemed void unless proven otherwise. The presumption must be that a law has been duly enacted, unless it is shown that it infringes a basic right and does not meet the requirements of s. 8 of the Basic Law. Anyone claiming that a law should be declared void must convince the court of the facts of the infringement and show that the law does not meet the conditions set out in the Basic Law.

 

(Per Tal, J.) The case before the Court does not require that the Court decide upon the fundamental questions regarding the powers of the legislature and its status, and they may be left for the appropriate time. For the purpose of the matter before the Court, it is sufficient to establish the normatively superior status of the Basic Laws by which the Knesset’s regular legislation is reviewed.

 

(Per Goldberg, J.) Harmony amongst the branches of government requires drawing a “red line” between judicial review of legislation and involvement in legislation. The court must be careful not to cross the line. The court is not a substitute for the legislature, and it does not supplant the legislature’s discretion with its own. Therefore, only a finding that the legislature did not meet the conditions of s. 8 of Basic Law: Human Dignity and Liberty requires that a law be declared unconstitutional. Any other intervention by the court would blur the borders required by the separation of powers.

 

In examining the constitutionality of a law, the presumption is that the law is constitutional, and any doubt must weigh in favor of upholding the law rather than voiding it. Therefore, the party arguing against the law must bear the burden of proof that the law is unconstitutional. That party must show that the law extremely deviates from the scope of a reasonable infringement intended for a proper purpose. The burden also includes the secondary evidentiary burden of showing that there is a specific alternative that would realize the proper purpose while inflicting substantially lesser harm to the protected right.

 

(Per Mazza, J.) In terms of the burden of proof, the state bears the burden of convincing the court that the infringement is intended for a proper purpose, and that the means chosen are appropriate to achieving that purpose. The party claiming that the infringement is unconstitutional bears the burden of showing that the government should have chosen a less harmful alternative. However, it is not clear that this must always be the case. It may be that this is the correct approach only in regard to economic harm, whereas the infringement of other basic rights may justify placing the entire burden upon the state.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
concurrence
Author
dissent
Full text of the opinion: 
CA 6821/93

LCA 1908/94

LCA 3363/94

 

United Mizrahi Bank Ltd.

 

v.

1.         Migdal Cooperative Village

2.         Bostan HaGalil Cooperative Village

3.         Hadar Am Cooperative Village Ltd

4.         El-Al Agricultural Association Ltd.                                                 CA 6821/93

 

1.         Givat Yoav Workers Village for Cooperative Agricultural Settlement Ltd

2.         Ehud Aharonov

3.         Aryeh Ohad

4.         Avraham Gur

5.         Amiram Yifhar

6.         Zvi Yitzchaki

7.         Simana Amram

8.         Ilan Sela

9.         Ron Razon

10.       David Mini                                                                            

 

v.

 

1.         Commercial Credit Services (Israel) Ltd

2.         The Attorney General                                                                      LCA 1908/94

 

1.         Dalia Nahmias

2.         Menachem Nahmias

 

v.

 

Kfar Bialik Cooperative Village Ltd                                                           LCA 3363/94

 

The Supreme Court Sitting as the Court of Civil Appeals

[November 9, 1995]

Before: Former Court President M. Shamgar, Court President A. Barak, Justices D. Levine, G. Bach, A. Goldberg, E. Mazza, M. Cheshin, Y. Zamir, Tz. E Tal

Appeal before the Supreme Court sitting as the Court of Civil Appeals

 

Appeal against decision of the Tel-Aviv District Court (Registrar H. Shtein) on 1.11.93 in application 3459/92,3655, 4071, 1630/93 (C.F 1744/91) and applications for leave for appeal against the decision of the Tel-Aviv District Court (Registrar H. Shtein) dated 6.3.94 in application 5025/92 (C.F. 2252/91), and against the decision of the Haifa District Court (Judge S. Gobraan), dated 30.5.94 in application for leave for appeal 18/94, in which the appeal against the decision of the Head of the Execution Office in Haifa was rejected in Ex.File 14337-97-8-02. The applications were adjudicated as appeals.

The appeal in CA. 6821/93 was rejected. The appeals in LCA 1908/94 and 3363/94 were accepted, and the files were returned to the District Courts to continue adjudication.

 

 

Editor’s Synopsis

 

The Family Agricultural Sector (Arrangements) Law was adopted by the Knesset in 1992, as part of an attempt to rehabilitate Israel’s agricultural sector following a severe economic crises. To that end, the law established a body called the “rehabilitator,” which was granted broad authority to settle, restructure and cancel debts that had been created up to the end of 1987. In 1993, the Knesset found it necessary to intervene again, and amended the law. Among other changes, the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993, redefined the debts subject to the law, and extended the applicable time period so that debts incurred until the end of 1991 also fell within the scope of the law and the authority of the rehabilitator.

 

Following the adoption of the Primary Law, but prior to the adoption of the Amending Law, the Knesset enacted Basic Law: Human Dignity and Liberty. Section 10 of the Basic Law stated that the Basic Law “shall not affect the validity of any Law in force prior to the commencement of the Basic Law.

 

CA 6821/93 concerned a suit brought by the appellant in the District Court against the respondents who had guaranteed the debt of the Cooperative Agricultural Fund Ltd. The respondents requested that the matter be transferred to the jurisdiction of the rehabilitator, in accordance with the Amending Law. The Court granted the request. The appellants argued on appeal that the Amending Law violated their property rights under s. 3 of Basic Law: Human Dignity and Liberty, and was contrary to s. 8 of that Basic Law, which establishes that there shall be no violation of rights under the Basic Law except “by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required, or by regulation enacted by the virtue of express authorisation of such Law.”

 

LCA 1908/94 concerned debts incurred by the appellants for the rental of agricultural equipment. The District Court held that the provisions of the Amending Law that extended the period of debts were incompatible with s. 8 of the Basic Law and were void. While the Amending Law served a proper purpose, the Court found that it applied selectively to a part of the public and was therefore incompatible with the values of the State of Israel.

 

LCA 3364/94 addressed the District Court’s decision to reject the request of the appellants to transfer their matter to the jurisdiction of the rehabilitator. The Court found that the debt had been incurred in 1988 and thus did not fall within the scope of the Primary Law. The stay of proceedings and the transfer of the debt to the jurisdiction of the rehabilitator were a result of the Amending Law. The Court held that the Amending Law infringed creditors’ rights beyond what was established in the Primary Law. While the Primary Law was immune to review under the provisions of s. 10 of the Basic Law, those provisions did not apply to the Amending Law, which was, therefore, subject to review under s. 8.

 

The three cases represented the first instances in which Israeli courts annulled a law passed by the Knesset on the grounds of unconstitutionality due to a violation of fundamental rights established in a Basic Law. Inasmuch as the three cases raised the same fundamental questions of constitutional law, the appeals were heard together before an expanded bench of nine judges of the Supreme Court.

 

In deciding the appeals, the Supreme Court was called upon to address the questions of whether or not the Knesset possessed constituent authority to frame a constitution and limit its own legislative authority thereby, and whether Basic Laws enacted by the Knesset enjoy supra-legislative status. After establishing the place of Basic Laws in the legislative hierarchy and the ramifications of a conflict between regular legislation and Basic Laws, the Court addressed the specific issue of whether the Amending Law violated rights established under Basic Law: Human Dignity and Liberty and whether the violation was incompatible with s. 8 of that law, and the consequences of such a violation.

 

Each of the nine judges wrote a separate opinion. The primary approach of the Court is set out in the opinion of President Barak. According to President Barak, the Knesset’s authority to frame a constitution derives from the doctrine of constituent authority. The Knesset derives its constituent authority from the First Knesset by means of constitutional continuity. This view of the Knesset’s constituent authority best reflects the national consciousness and legislative history of the State of Israel. The Knesset, therefore, acts in two capacities. It enacts laws as a regular legislature, and it adopts Basic Laws in its capacity as constituent assembly. Basic Laws so enacted enjoy supra-legislative, constitutional status. Judges Bach, Goldberg, Levin, Mazza, Tal, and Zamir concurred in their separate opinions.

 

Former President Shamgar based the Knesset’s authority to frame a constitution upon constituent authority deriving from the Knesset’s unlimited sovereignty. It is the Knesset’s unlimited sovereignty that underlies its authority to frame a supra-legislative constitution that can limit the legislative power of future Knessets.

 

In his dissenting opinion, Justice Cheshin agreed that the First Knesset was granted the power to frame a constitution, but argued that the First Knesset’s constituent authority was not transferable, and it was not transferred to subsequent Knessets. Moreover, According to Cheshin, J., constituent authority must be unequivocal, yet Court precedent and Israel’s legislative history do not reflect such a clear view of the Knesset’s authority, and the legislative history of the Basic Laws does not support a conclusion that the Knesset believed it was adopting legislation of a constitutional nature in enacting them.

 

The Court unanimously held that although the Amending Law violated the property rights of creditors, the provisions of the Amending Law were consistent with the requirements of s. 8 of Basic Law: Human Dignity and Liberty. The appeal in CA 6821/93 was therefore dismissed, and the appeals in CLA 1908/94 and CLA 3363/94 were upheld and the decisions of the District Court were set aside.

 

 

(Per Shamgar, P.) The Basic Law did not infringe pre-existing laws, but applies only to laws adopted following its entry into force. The Amending Law was adopted following the entry into force of the Basic Law.

 

Two primary theories explain the Knesset’s power to enact legislation of a constitutional nature: The theory of unlimited sovereignty and the theory of constituent authority. Of theses two theories, that of unlimited sovereignty more accurately expresses Israel’s legislative history, its accepted legal concepts, and the case law of the Supreme Court.

 

The Knesset has the power to enact laws of every type and content, and can formally or substantively entrench the fundamental values of the State of Israel, and thereby limit its own power and that of subsequent Knessets. The extent of the Knesset’s power to limit itself is a question of constitutional policy. Both the theory of unlimited sovereignty and that of constituent authority recognize the Knesset’s power to limit itself.

 

In terms of preferred law, a Basic Law should be changed only by another Basic Law. In this regard, a distinction must be drawn between changing a right as opposed to infringing it. An infringement does not change the basic right.

 

(Per Barak, P.) The Knesset’s power to adopt a constitution derives from its constituent power. The source of the Knesset’s constituent power is the sovereign, that is, the people. This approach can be grounded upon three models: 1) constitutional continuity, 2) the recognition rule, 3) the best explanation for the socio-historical and legal history of the system.

 

Regardless of the legal situation that existed following the dissolution of the First Knesset, and even if there never was a Constituent Assembly, Israeli law currently recognizes the power of the Knesset to adopt a constitution. This is supported by the Knesset’s understanding of its role, the platforms of the various political parties, the consensus of opinion of jurists and legal scholars, the decisions of the Supreme Court, and the Knesset’s reaction to those decisions.

 

Due to the fact that a Basic Law is of a higher normative level, it can only be changed by another Basic Law.

 

In wielding its constituent power, the Knesset can limit its authority to change Basic laws, and thus create “rigidity” of constitutional provisions. The Knesset’s power to limit itself and thus entrench the provisions of a Basic Law derives from its authority to adopt a formal constitution.

 

The theory of constituent power addresses the question of the Knesset’s authority to limit its own power when wielding constituent power, but it does not provide an answer to the question of whether the Knesset can limit itself when it employs its normal legislative power. This question can be left for further review. We can also leave for further review the question of whether there is a substantive difference between the entrenchment of a regular law that requires an absolute majority, as opposed to a provision requiring some greater majority.

 

True democracy recognizes the constitutional power to entrench basic human rights against the power of the majority. This limit upon majority rule does not infringe democracy, but rather realizes it. Granting the majority the power to harm the rights of the minority is undemocratic. Protecting the individual, the minority, and the fundamental values of the legal system against the power of the majority is the democratic act.

 

A democracy of the majority alone that is not accompanied by a democracy of values is but a formal, statistical democracy. True democracy limits the power of the majority in order to protect society’s values.

 

The human rights defined in the Basic Laws in absolute terms are relative rights. Human dignity, liberty, property, movement, privacy and freedom of occupation are not absolute rights, but can be infringed in order to preserve the social framework. The constitutionality of the infringement does not diminish the constitutional status of human rights. The constitutionality of an infringement means that a regular law that meets the conditions established by the constitution can infringe a constitutionally protected human right.

 

When the Basic Laws do not state the remedy for the infringement of a constitutional right, legal tradition provides the conclusion that the remedy for an unconstitutional law is abrogation by the courts.

 

A law is presumed to be constitutional, and a party seeking to challenge that presumption bears the burden of proof. As for the constitutionality of an infringement, the burden falls to the party arguing that the infringement is constitutional. This is the appropriate approach, as it places the burden upon the party best suited to bear it, viz. the state. However, inasmuch as the issue does not arise in the case before the Court, it can be left for further review.

 

 

(Per Cheshin, J.) In addressing the question of whether the Knesset possesses constituent power, a distinction must be drawn between the power to adopt a formal constitution and the power to adopt entrenched laws. The power to adopt entrenched laws does not, in and of itself, imply constituent power.

 

When the Constituent Assembly – the First Knesset – completed its term without adopting a constitution, the Knesset’s right to adopt a constitution in accordance with the Declaration of Independence ceased. The only continuity that was preserved was in regard to legislation, not constitutional issues. The Constituent Assembly’s authority to adopt a constitution was a one-time, non-transferable power.

 

The Knesset does not have constituent authority, nor does it enjoy unlimited sovereignty. The Knesset is the Knesset, and it possesses only legislative authority.

 

Insofar as the Knesset’s power to limit itself, a distinction must be drawn between procedural limitation by requiring a special majority, and substantive limitation.

 

Once the Knesset has established legislative procedures, it must follow those procedures until it expressly repeals them and replaces them with new procedures. The establishing of new procedures must be carried out in accordance with the old procedures. In other words, the Knesset is limited by the procedures that it establishes in regard to legislative procedure.

 

The question of quorum and that of voting are matters of organizational procedure. The voting rules are established in Basic Law: The Knesset, which establishes that the Knesset decides in accordance with the democratic principle of majority and minority, and that the votes of absent and abstaining members are not counted. In the absence of a constitution that establishes otherwise, the Knesset can decide upon any combination of the variables of quorum, absentees and abstainers, and any combination will be legitimate and legal. The one limitation is that of the principle of democracy. The basic democratic principle of “majority” must be preserved.

 

A requirement of an absolute majority of sixty-one votes is not only consistent with the majority principle it is the principle itself. An absolute majority is not a special or privileged majority, but rather it is the true majority derived from the democratic theory of majority. A requirement of an absolute majority is not an instance of self-limitation. Such a requirement limits the possibility of abstention or setting off, but the ability to abstain or to arrange a set off is not one of the elected representative’s rights.

 

In the current legal regime, and in the absence of the power to adopt a constitution, a provision requiring a majority greater than sixty-one votes is manifestly undemocratic. A sixty-one vote majority is the upper limit, and in establishing anything beyond that the Knesset deviates from its authority.

 

The power to abrogate Knesset legislation should be reserved exclusively to the High Court of Justice. The doctrine that applies to secondary legislation is not appropriate to primary legislation.

 

Once it has been shown that a law infringes a basic right, the burden of proof falls to the party claiming that the law is constitutional. The presumption that the law is constitutional applies to the secondary evidentiary burden, as opposed to the burden of proof that must be born by the governmental authorities.

 

(Per D. Levin, J.) The Basic Laws constitute chapters of the Israeli constitution. The framers of Israel’s Declaration of Independence intended that legislation be effected on two parallel levels: A constitution to be adopted by the constituent authority, which would express the fundamental human rights on the basis of the vision of Israel’s prophets, and the regular, day-to-day legislation to be conducted by the legislature.

 

The Declaration of Independence indicates that the source of the Knesset’s authority to adopt a constitution is its constituent power. The fact that there have been delays in the process of adopting a constitution since the election of the Constituent Assembly does not change or influence the source of the legislature’s authority in advancing constitutional legislation. Constituent power continues to exist until the task of adopting a constitution is completed.

 

The party claiming the infringement of a basic right or who challenges the lawfulness of a law due to such infringement bears the burden of showing that a constitutionally protected basic right was infringed. If that burden is met, then the burden of showing that the law meets the justifying conditions passes to the party seeking to uphold the law.

 

 

(Per Zamir, J.) The Knesset’s power to limit itself, both formally and substantively, derives from its status as a constituent assembly. The theory of constituent power provides an adequate theoretical explanation and a practical tool for the Knesset and the Court to address constitutional issues, and is the preferable theory.

 

 

(Per Bach, J.) In principle, there is no difference between a requirement of a sixty-one-vote majority to amend or repeal a law and a more extreme requirement. A law is adopted by a regular majority of those participating in the vote. Absence or abstention is the right of every Knesset member. If the Knesset is not empowered to adopt constitutional legislation, and if a subsequent Knesset can repeal any law by the normal means, then it is difficult to understand why a law requiring a sixty-one-vote majority would be an exception.

 

The fear of negative phenomena that may materialize in the future by recognition of the Knesset’s unlimited power to employ Basic Laws to limit the power of subsequent Knessets to change or amend Basic Laws is more theoretical than real. It may be assumed that in a proper democracy, certain things will not occur.

 

The question of who bears the burden of proof is very relevant to the question of whether the Amending Law meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty, and should be addressed. Once established that the law infringes the right to property, it is necessary to ask who must bear the burden of showing that the law meets the requirements of the Basic Law.

 

A law that infringes liberty or property or some other basic right is not presumed, a priori, to be void, and it will not be deemed void unless proven otherwise. The presumption must be that a law has been duly enacted, unless it is shown that it infringes a basic right and does not meet the requirements of s. 8 of the Basic Law. Anyone claiming that a law should be declared void must convince the court of the facts of the infringement and show that the law does not meet the conditions set out in the Basic Law.

 

 

(Per Tal, J.) The case before the Court does not require that the Court decide upon the fundamental questions regarding the powers of the legislature and its status, and they may be left for the appropriate time. For the purpose of the matter before the Court, it is sufficient to establish the normatively superior status of the Basic Laws by which the Knesset’s regular legislation is reviewed.

 

 

(Per Goldberg, J.) Harmony amongst the branches of government requires drawing a “red line” between judicial review of legislation and involvement in legislation. The court must be careful not to cross the line. The court is not a substitute for the legislature, and it does not supplant the legislature’s discretion with its own. Therefore, only a finding that the legislature did not meet the conditions of s. 8 of Basic Law: Human Dignity and Liberty requires that a law be declared unconstitutional. Any other intervention by the court would blur the borders required by the separation of powers.

 

In examining the constitutionality of a law, the presumption is that the law is constitutional, and any doubt must weigh in favor of upholding the law rather than voiding it. Therefore, the party arguing against the law must bear the burden of proof that the law is unconstitutional. That party must show that the law extremely deviates from the scope of a reasonable infringement intended for a proper purpose. The burden also includes the secondary evidentiary burden of showing that there is a specific alternative that would realize the proper purpose while inflicting substantially lesser harm to the protected right.

 

(Per Mazza, J.) In terms of the burden of proof, the state bears the burden of convincing the court that the infringement is intended for a proper purpose, and that the means chosen are appropriate to achieving that purpose. The party claiming that the infringement is unconstitutional bears the burden of showing that the government should have chosen a less harmful alternative. However, it is not clear that this must always be the case. It may be that this is the correct approach only in regard to economic harm, whereas the infringement of other basic rights may justify placing the entire burden upon the state.

 

Basic Laws Cited:

 

Basic Law: Human Dignity and Liberty, ss. 1, 1A, 2, 3, 5, 8, 10, 11,12

Basic Law: Freedom of Occupation (1992)

Basic Law: Freedom of Occupation (1994), ss. 1, 4, 5, 7, 8, 11

Basic Law: The Knesset, ss. 4, 8, 9A, 9A(A), 19, 21 (c), 24, 25, 34, 44, 45, 45A

Basic Law: The Judiciary: ss. 10, 17, 22

Basic Law: The Government: ss. 42, 50 (c ), 50 (d), 56, 56 (d), 59

Basic Law: The Army

Basic Law: The President of the State: s. 25

Basic Law: The State Economy: ss. 3, 7

Basic Law: Israel Lands

Basic Law: The State Comptroller

Basic Law: The Knesset (Amendment No. 3)

Basic Law: Jerusalem, The Capital of Israel

 

Legislation Cited

 

Family Agricultural Sector (Arrangements) (Amendment) Law, 1993.

Family Agricultural Sector (Arrangements) (Amendment) Law, 1992,
ss. 7(b)(1),11,12,15, 16, 17, 19 (a), 20, 20 (b)(3)(a), 21, 22.

First Schedule, Second Sc hedule, Third Schedule.

Interpretation Ordinance [New Version] ss. 16 (4), 37.

Rules of the Knesset.

Holders of Public Office (Benefits) Law, 1969, s. 1.

Law and Administration Ordinance, 1948, ss, 2(b), 7 (a), 9, 9 (b), 10 (a), 11.  

Transition Law, 1949, ss. 1, 2 (a), 2 (d).   

1990 Supervision (Products and Services) (Amendment No.18) Law.

Transition Law, 5709-1949.

The Knesset (Number of Members in Committees) Law 5754-1994.

Knesset Elections Law [Consolidated Version] 1969, s. 86 (e).

Courts Law [Consolidated Version] 1984, ss. 64, 108.

Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law.

Constituent Assembly (Transition) Ordinance, 1949, ss. 1, 3.

Law of Return, 1950.

Women’s Equal Rights Law, 1951.

Constituent Assembly Elections Ordinance, 1948, ss. 1,2,(d), 3.

Constituent Assembly (Transition) Ordinance, ss. 1, 2(d), 3.

Second Knesset (Transition) Law, 1951, ss. 1, 5, 6, 9, 10.

Elections Financing Law, 1973.

Knesset (Confirmation of Validity of Laws), 1969.

Standards Law, 1953.

Protection of Investments by the Israeli Public in Financial Assets, 1984, s. 3.

Companies Ordinance (New Version) 1983.

Bankruptcy Ordinance, 1980.

Agency Law, 1965, s. 16.

Emergency Regulations (Jurisdiction Constitution) 1948.

Interpretation Law, 1981, ss. 15, 17 (a), 20.

Planning and Building Law, 1965.

Civil Wrongs Ordinance [New Version], s. 41.

 

Israeli Supreme Court cases cited:

  1. LCA 1759/93 Cohen v. Bank Hapoalim Ltd [1994] IsrSC 48(2) 143.
  2. HCJ 306/81 Flatto-Sharon v. Committee of the Knesset [1981] IsrSC 35(4) 118.
  3. HCJ 1/49 Bejerano v. Minister of Police [1948] IsrSC 2 80.
  4. HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.
  5. HCJ 75/76 ‘Hilron’ Ltd v. Fruit Production and Marketing Board (Fruit Board)  [1976] IsrSC 30(3) 645.
  6. CA 723/74 HaAretz Newspaper Ltd v. Israel Electric Corporation [1977] IsrSC 31(2) 281; IsrSJ 9 226.
  7. HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.
  8. EA 2/84 Neiman v. Chairman of Elections for Eleventh Knesset; Avneri v. Chairman of Central Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.
  9. HCJ 428/86; HCJApp 320/86; Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.
  10. HCJ 89/83 Levi v. Chairman of Knesset Finance Committee [1984] IsrSC 38(2) 488.
  11. HCJ 256/88 Medianwest Medical Center Herzliya Ltd v. Director of Ministry of Health [1990] IsrSC 44(1) 19.
  12. HCJ 107/73 ‘Negev’ – Automobile Service Stations Ltd v. State of Israel Ltd [1974] IsrSC 28(1) 640.
  13. HCJ 148/73 Kaniel v. Minister of Justice [1973] IsrSC 27(1) 794.
  14. HCJ 60/77 Ressler v. Chairman of Central Elections Committee for Knesset  [1977] IsrSC 31(2) 556.
  15. HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.
  16. FH 9/77 Israel Electric Corporation v. HaAretz Newspaper Ltd [1978] IsrSC 32(3) 337; IsrSJ 9 295.
  17. CF 27/76 Stein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.
  18. CA 228/63 Azuz v. Ezer [1963] IsrSC 17 2541.
  19. HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4)1; IsrSJ 8 21.
  20. HCJ 141/82 Rubinstein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.
  21. HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 259.
  22. HCJ 669/85 Kahana v. Knesset Speaker [1986] IsrSC 40(4) 393.
  23. HCJ 119/80, OM 224/80 HaCohen v. Government of Israel [1980] IsrSC 34(4) 281.
  24. HCJ 3385/93, 4746/92 G.P.S. Agro Exports Ltd v. Minister of Agriculture [1994] IsrSC 48(5).
  25. FH 13/60 Attorney-General v. Matana [1962] IsrSC 16(1) 430; IsrSJ 4 112.
  26. EA 1/88 Neiman v. Chairman of Central Elections Committee for Twelfth Knesset [1988] IsrSC 42(4) 177.
  27. CrimA 282/61 Yihye v. Attorney-General [1962] IsrSC 16 633.
  28. HCJ 4031/94 ‘Bezedek’ Organization v. Prime Minister of Israel [1994] IsrSC    48(5) 1.
  29. HCJ 131/65 Sevitzky v. Minister of Finance [1965] IsrSC 19(2) 369.
  30. LCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.
  31. FH 4/69 Noiman v. Cohen [1970] IsrSC 24(2) 229.
  32. HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.
  33. HCJ 620/85 Miari v. Knesset Speaker [1985] IsrSC 41(4) 169.
  34. LCA 3466/92 Artrekt Bankrupts v. Bankruptcy Trustee [1993] IsrSC 47(2) 573.
  35. HCJ 852/86; HCJApp 483/86; 1/87 Aloni v Minister of Justice [1987] IsrSC 41(2) 1.
  36. HCJ 1/81 Shiran v. Broadcasting Authority [1981] IsrSC 35(3) 365.
  37. HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.
  38. CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.
  39. HCJ 243/67 Israel Broadcasting Studios Ltd v. Gary [1962] IsrSC 16 2407.
  40. HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.
  41. HCJ 120/73 Tobis v. Government of Israel [1973] IsrSC 27(1) 757.
  42. HCJ 7/48 Al-Carbotelli v. Minister of Defense [1953] IsrSC 2 5.
  43. HCJ 10/48 Ziv v. Acting District Commissioner of Tel-Aviv [1948] IsrSC 1 85; IsrSJ 1 68.
  44. CA 239/92 Egged Israel Transport Cooperation Society v. Mashiah [1994] IsrSC 48(2) 66.
  45. HCJ 1225/94 ‘Bezeq’ – The Israeli Telecommunication Company Ltd v. Minister of Communications [1995] IsrSC 49(3) 661.
  46. CrimApp 6654/93 Binkin v. State of Israel [1994] IsrSC 48(1) 290.
  47. HCJ 5394/92 Huppert v. Yad VaShem Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.
  48. EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.
  49. HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.
  50. HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.
  51. HCJ 693/91 Efrat v. Director of Population Register, Ministry of Interior [1993] IsrSC 47(1) 749.
  52. HCJ 6163/92 Eisenberg v. Minister of Building and Housing [1993] IsrSC 47(2) 229.
  53. HCJ 732/84 Tzaban v. Minister of Religious Affairs [1986] IsrSC 40(4) 141.
  54. HCJ 287/69 Miron v. Minister of Labour [1970] IsrSC 24(1) 337.
  55. HCJ 2481/93 Dayan v. Wilk [1994] IsrSC 48(2) 456; [1992-4] IsrLR 324.
  56. HCJ 5510/92 Turkeman v. Minister of Defense [1994] IsrSC 48(1) 217.
  57. HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 412.
  58. HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.
  59. EA 2/88 Ben-Shalom v. Central Elections Committee for Twelfth Knesset [1989] IsrSC 43(4) 221.
  60. CA 673/87 Salah v. Liquidator for Peretz and Issar Construction and Investments Co. Ltd (in Liquidation) [1989] IsrSC 43(3) 57.
  61. CrimA 74/58 Attorney-General v. Hornstein [1960] IsrSC 14 365; IsrSJ 3 71.
  62. CA 549/75 A v. Attorney-General [1976] IsrSC 30(1) 459.
  63. HCJ 761/86 Miari v. Knesset Speaker [1988] IsrSC 42(4) 868.
  64. CA 450/70 Rogozinsky v. State of Israel [1972] IsrSC 26(1) 129.
  65. HCJ 889/86 Cohen v. Minister of Trade and Welfare [1987] IsrSC 41(2) 540.
  66. HCJ 7/55 Yanowitz v. Ohr [1953] IsrSC 9 1252.
  67. CA 219/80 Beit Hikiya, Workers’ Village for Cooperative Arrangement Ltd v. Efrati [1982] IsrSC 36(2) 516.
  68. CA 87/50 Liebman v. Lifshitz [1952] IsrSC 6 57.
  69. HCJ 65/51 Jabotinsky v. President of Israel [1951] IsrSC 5 801; IsrSJ 1 75.
  70. HCJ 180/52 Dor Heirs v. Minister of Finance [1952] IsrSC 6 908.
  71. HCJ 6290/93 Zilka v. General Manager of Ministry of Health [1994] IsrSC 48(4) 631.
  72. HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [1987] IsrSC 41(1) 757.
  73. HCJ 356/83 Lidor, Association for the Protection of Homeowners, Apartments and Private Property in Israel v. Minister of Construction and Housing [1984] IsrSC 38(1) 602.
  74. HCJ 108/70 Manor v. Minister of Finance [1970] IsrSC 24(2) 442.
  75. CA 511/88 Mandelbaum v. Local Planning and Building Committee, Rishon LeTzion [1990] IsrSC 44(3) 522.
  76. HCJ 311/60 Y. Miller, Engineer (Agency and Import) Ltd v. Minister of Transport [1961] IsrSC 15 1989.
  77. HCJ 49/83 Consolidated Dairies Ltd v. Israel Dairy Board [1983] IsrSC 37(4) 516.

 

Israeli District Court cases cited:

  1. OM (Jerusalem) 1635/92 – unreported.
  2. OM (Tel-Aviv) 1229/93 – unreported.
  3. OM (Tel-Aviv) 49299/88 – unreported.
  4. OM (Tel-Aviv) 1657/89 – unreported.

 

Australian cases cited:

  1. Clayton v. Heffron (1960) 105 C.L.R. 214.
  2. Australian National Airways Pty Ltd v. The Commonwealth (1945) 71 C.L.R. 29.
  3. Minister of State for the Army v. Dalziel (1943-44) 68 C.L.R. 261.

 

United States cases cited:

  1. Grosjean v. American Press Co. 297 U.S. 233 (1936).
  2. Louisville Bank v. Radford 295 U.S. 555 (1935).
  3. Wright v. Vinton Branch 300 U.S. 440 (1937).
  4. Ferguson v. Skrupa 372 U.S. 726 (1963).
  5. Williamson v. Lee Optical Co. 348 U.S. 483 (1955).
  6. Vance v. Bradley 440 U.S. 93 (1979).
  7. Ashwander v. Tennessee Valley Authority 297 U.S. 288 (1936).
  8. West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943).
  9. United States v. Baellin 12 S. Ct. 505 (1891).
  10. Marbury v. Madison 5 U.S. 137 (1803).
  11. United States v. Nixon 418 U.S. 683 (1974).
  12. McCulloch v. Maryland 17 U.S. 316 (1819).
  13. Kovacs v. Cooper 336 U.S. 77 (1949).
  14. New York Trust Co. v. Fisher 256 U.S. 345 (1921).
  15. Lochner v. New York 198 U.S. 45 (1905).
  16. Rio Rico Properties v. Santa Cruz County 834 P. 2D 166 (1992).
  17. Illinois Elections B.D. v. Socialist Workers Party 440 U.S. 173 (1979).

 

English cases cited:

  1. Factortame Ltd v. Secretary of State for Transport (No. 2) [1991] ALL ER 70  (C.J.E.C. and H.L. 1).
  2. MaCarthy Ltd v. Smith [1981] Q.B. 180 (C.J.E.C.).
  3. Bribery Comr. v. Ranasinghe [1965] A.C. 172 (P.C.).
  4. Akar v. Attorney-General of Sierra Leone [1969] ALL ER 384 (P.C.). 
  5. Minister of Home Affairs v. Fisher [1980] A.C. 319.

 

International cases cited:

  1. Sunday Times v. United Kingdom [1979] 2 E.H.R.R.
  2. Costa v. Enel (1964) E.C.R. 585.

.

German cases cited:

  1. 6 BverfGE 32 (1957).
  2. 7 BverfGE 377 (1958).

 

South African cases cited:

  1. Harris v. Minister of Interior (1952) 4 S.A.L.R. 428.
  2. S. v. Mekwanyana (1955) 6 B.C.L.R. 665.

 

Indian cases cited:

  1. Kesavande v. State of Kerala [1973] A.I.R. 146.

 

Canadian cases cited:

  1. R v. Oakes [1986] 1 S.C.R. 103.
  2. R v. Big M. Drug Mart. Ltd [1985] 1 S.C.R. 295.

 

  1. Jones v. The Queen [1986] 2 S.C.R. 284.

 

Jewish law sources cited:

 

  1. Leviticus 26, 10.
  2. Genesis 1, 27; 24, 27.
  3. Deuteronomy 15, 1-11; 27, 9.
  4. Exodus 1, 22; 19, 10-11, 14-20; 16.
  5. Shemot Rabba (on Exodus), 29.
  6. Isaiah 10, 15; 30, 15.
  7. Babylonian Talmud, Bava Metzia (Damages, second part) 106b.

 

.

 

For the appellant in HCJ 6821/93 — M. Asif.

For respondent 1 in LCA 6821/93 — A. Vinder, Z. Slilat.

For respondent 2 in LCA 6821/93 — Z. Moshe.

 

For respondent 3 in LCA 6821/93 — M. Cohen.

For respondent 4 in CA 6821/93 — Y. Amitai.

For petitioners in LCA 1968/94 — D. Dinai, M. Dinai.

For respondent 1 in LCA 1908/94 — A. Posner, E. Golan.

 

JUDGMENT

President (Ret) M. Shamgar

1.    The provisions of the Principal Law.

The central question in each of the appeals before this court is identical: Does the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993 (hereinafter – the Amending Law) violate the provisions of Basic Law: Human Dignity and Liberty, and should it therefore be regarded as void. Consequently, we have consolidated our hearing of the three appeals.

2.  As indicated by its title, the Amending Law amends the Family Agricultural Sector (Arrangements) Law, 5752-1992 (hereinafter – the Principal Law), which came into force on August 13, 1993.

 

As stated in the Explanatory Note cited in the draft law of the Family Agricultural Sector (Arrangements) Law, 5752-1991, the Principal Law purported to forge a new framework for alleviating the deep crisis that had already beset the agricultural sector a number of years earlier. Generally, its thrust was, on the one hand, to facilitate the rehabilitation of the agricultural sector, being premised on the preference of rehabilitation over liquidation, and on the other hand, it avoids the channeling of public funds for purposes of rehabilitation.

 

Legislative intervention in formulating arrangements for the agricultural sector is apparently unavoidable, given the failure of the various arrangements that preceded it.  Its proponents contend that “they left the agricultural sector in a deep crisis and at times even exacerbated the situation” (draft law of the Family Agricultural Sector (Arrangements) Law, p. 92).

 

(b)   The provisions of the Principal Law stipulate that a ‘rehabilitator’ may be appointed for ‘an agricultural organization,’ for agricultural corporations connected thereto, or for ‘agricultural associations’ included in the organization and its members, or for what the law refers to as ‘a rehabilitation zone.’ The ‘rehabilitator’ does precisely that. He is charged with compiling the data pertaining to the debts, ascertaining resources, and settling debts. An ‘agricultural association’ is a cooperative association classified as a moshav ovdim (=workers arrangement), a moshav shitufi (=cooperative arrangement) or a kfar shitufi (=cooperative village). The law further relates to all of the kibbutzim (=collective arrangements) in the Golan, the Jordan Valley, and in the other locations specified in the First Schedule, and the corporations specified in the Second Schedule. An ‘agricultural organization’ is a cooperative association whose members include agricultural associations, as specified in the Third Schedule of the Law.

 

(c )  The Principal Law provided that a proceeding dealing with a basic debt or the guarantee of a basic debt could neither be initiated nor continued save in accordance with the provisions of the aforementioned law (s. 7 of the Law). The rehabilitator was to determine both the basic debt and the total sum owed by each agricultural unit, in accordance with the all the information at his disposal. The terms ‘debt’ and ‘basic debt’ were defined in s. 1 of the Principal Law, as follows:

“‘debt’ – principal, linkage differentials, interest, compounded interest, commission and expenses’;

 basic debt – a debt incurred during the period that terminated on the determining date, or a debt incurred in order to pay a debt as stated, or a debt as stated, determined in a judgment, even if given after the determining date, and which is one of the following: (1) a debt of an agricultural association; (2) the debt of an agricultural organization; (3) the debt of an agricultural unit, apart from an agricultural association and an agricultural organization, which stems from his business as an agriculturalist”  emphasis mine – M.S.)

“the determining date” is the 10th Tevet 5748 - 31 December 1987. This means that, in essence, the Law dealt with debts incurred until that date.

 

(d) Where a proceeding was transferred to the rehabilitator as stated, other proceedings being conducted against the same debtor relating to the basic debt will also be transferred to the rehabilitator.

 

(e)   A creditor or debtor in a proceeding for collection of the basic debt or a guarantee for the basic debt may notify the person conducting the proceeding that the provisions of the aforementioned law are applicable to him. If such notice is given, the person conducting the proceeding will order the discontinuation of the proceeding and its transfer to the rehabilitator, if satisfied that the conditions for its discontinuation have been satisfied Where the debtor is an agriculturalist, or member of an agricultural association, he may inform the person conducting the proceeding that he does not desire the application of the provisions of the law.

 

3.    Section 15 of the Principal Law prescribes that if the rehabilitator determines the value of the basic debt of the agricultural unit, he shall deduct a sum equal to twenty percent of the debt. Should the rehabilitator determine in a reasoned decision that special, justifying circumstances obtain, he may reduce an additional sum which may not exceed ten percent of the debt.

 

Section 21 of the Principal Law both adds to and broadens the authority for cancellation of debts:

 

‘“21. Cancellation of Debts:  Where the rehabilitator deems that the debtor is unable to repay his debt even after the realization of his assets under section 20, he is authorized to cancel the additional debts, at a rate that does not exceed forty percent of the debt in arrangement. Where the debtor was an agricultural association which is a border arrangement, a member of the said association, or an agriculturalist resident on the border, the rehabilitator shall cancel the balance of the debt that the debtor is unable to repay.”

 

Regarding the handling of debts, s. 11 of the Principal Law completes the picture, providing the following determinations which the rehabilitator may make for each agricultural unit, in accordance with the provisions of the law: (1) the sum of his debts to the various creditors; (2) his repayment capacity; (3) the sum of the debt that will be paid, either in cash or installments; (4) the sum of the debt by reason of the replacement of the guarantee under section 16 of the Principal Law; (5) the sums of the reductions under the aforementioned s. 15; (6) whether assets are to be realized for payment of the debt; (7) whether part of the debt should be cancelled, and if so, at what rate; (8) the manner in which the debt is allocated between the various creditors, and the manner of allocating the consideration received from realization of assets.

 

Where the rehabilitator determines all of the above, it will be regarded as the arrangement of the agricultural unit’s debt, and the rehabilitator will notify the creditors and the debtors of the balance, to which they may object within thirty days after notice has been given. Where special circumstances obtain, the rehabilitator is permitted to extend the period.  Where an objection is filed, the rehabilitator rules on the debts and rights following a hearing, after which he informs the parties of his decision.

 

Provisions of the Law – The Amending Law

4.The explanatory note to the Amending Law of 5753 (Explanatory Note to Family Agricultural Sector (Arrangements) (Amendment) Law 5753-1993), which preceded the Amending Law, summarily states that “in the wake of judgments pertaining to the debt, it became necessary to clarify a number of matters that were stipulated in the proposal….” (ibid p.292)

 

Section 1 of the Amending Law prescribes new definitions for the terms “debt,” “tax debts,” and “total debt” (which in the wake of the amendment were included in section 1 [of the Principal Law], as follows:

“debt” – a financial obligation irrespective of whether its date of payment has arrived or not, including the principal, linkage differentials, interest, compound interest, commission, and expenses, including tax debts; “tax debt” – any sum owed by a person pursuant to any legislation concerning the imposition of tax or compulsory payment that the Finance Minister charged with implementation of collection thereof; “total debt” – the debt of a financial unit as of the 24th Tevet 5752 (31 December 1991) and with respect to an agriculturalist and a member of an agricultural association – any debt as stated, provided that it stem from his occupation as an agriculturalist, provided that regarding a debt owed by a member of an agricultural association to the agricultural association of which he is a member, any debt as stated, unless the agricultural association proves that a particular debt did not stem from his occupation as an agriculturalist

 

In the definition of the “basic debt” the concluding section was amended, and it now states that the aforementioned term includes “a debt that was incurred after the determining date for payment of the debt (in accordance with its definition in the opening part of the said definition – M.S), including as a result of an arrangement or the recycling of the debt.”

 

As mentioned above, s. 7 of the Principal Law deals with the freezing of proceedings, and by force of the Amending Law, it deals with the “total debt” – a term which as stated, was defined anew.  Instead of referring to the basic debt as referred to in the Principal Law, the components of the debt for arrangement were enumerated anew in section 17, as they were amended in the Amending Law, as follows:

 

“The debt for Arrangement:              17 (a)      the rehabilitator will fix the arrangement debt in accordance with the total debt, after having deducted, for purposes of the arrangement, the reductions stipulated in section 15, and having added the guarantee substitute pursuant to section 16, all of the above to be re-valued as of 24th Tevet, 5752 (31 December 1991) (hereinafter – “arrangement debt”).

 

(b)        The reduction will be re-valued in accordance with the consumer price index and the addition of 7% linked annual interest.

 

(c)        The arrangement debt will be re-evaluated until the arrangement date by being linked to the consumer price index, according to the rate of the increase in the index as known on the arrangement date, as opposed to the index for the month of November 1991, and the addition of linked interest as stated, at the rate of 5% per annum.

 

(d)       Where a arrangement debt was re-evaluated pursuant to sub-section (c), all other debts owed by reason of that debt, beginning as of 29 Tevet 5752 (31 December 1991), due to interest, linkage differentials, exchange rate differentials, commissions, and obligations for which any creditor customarily charges all of his debtors, apart from commission for issuing a credit line with those creditors who normally charge such commission – shall be void.”

 

The law also introduced many other additional adjustments that need not be enumerated here.

 

The thrust of the Amending Law is thus expressed in the extension of the period during which the debts incurred are to be handled by the rehabilitator - hence the date 31 December1997 was replaced by 31 December 1991.  It further provided for the reevaluation of debts as stated in the aforementioned definition of “the arrangement debt,” and it introduced additional changes that are not merely technical.

This brings us to the appeal at hand.

 

The Judgment of the Lower Court

5.    In LCA 1908/94, which we treated as if leave for appeal had been granted, application for leave for appeal was filed against the decision of the Tel-Aviv Jaffa District Court (CF 252/92; Motion 5025/92*). The appellants contest the lower court’s determinations as they relate to the provisions of the Amending Law, to the extent that they broaden the rehabilitator’s authority to clarify the debts defined as a “basic debt” and to settle them, while concurrently denying that authority to the court.  The claim is that these determinations do not satisfy the requirements of the limitation clause of section 8 of the Basic Law: Human Dignity and Liberty, and are therefore void; and that the appellants’ rental debts for which payment is due after the 31 December 1987 cannot be considered as a basic debt.

 

The proceedings began when the respondent (hereinafter – “Credit Services”) filed a monetary action against the appellants (the moshav and nine of its members), for a debt incurred for the renting of equipment, and a further request for the return of the equipment. The appellants filed an application for a stay of the proceedings and their transfer to the rehabilitator, pursuant to provision 7 (b)(1) of the Principal Law, as per its wording at the time, namely that a basic debt is a debt of an agricultural entity incurred during the period that terminated on 31 December 1987.

 

Credit Services opposed the request, arguing that the claim related to the balance of the debt as of 15 December 1991, as a result of which it could be not be considered as a “basic debt.” The Amending Law was published on 13 August 1993. The Amending Law broadened the provisions of s. 7 so that a stay of proceedings could be sought in respect of a debt that wholly or partly constituted a total debt or a guarantee for a total debt. As mentioned, a total debt is a debt of an agricultural entity as of 21 December 1991. In other words, the requirement to grant an application to transfer proceedings to the rehabilitator extends for an additional four years after time of the amendment. The claim in the case at hand relates to a debt dated 15 November 1991, hence it falls within the period to which the Amending Law applies. Credit Services argued that the provisions of the Amending Law were invalid, and that the court was not obliged to stay proceedings pertaining to the overall debt. Moreover, it was argued that the distinction between a basic debt and a non-basic debt was still valid and relevant for purposes of ruling on the application for a stay of proceedings.

 

Credit Services argued in the lower court and before this court that the Amending Law infringes a right protected by the Basic Law: Human Dignity and Liberty, and does not satisfy the requirements stipulated in s. 8 which provides that

 

‘There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law.’

As stated, the violated right is the right conferred by s. 3 of the Basic Law, which provides that there shall be no violation of a person’s property. In the instant case, the violation affects the creditors, including the Credit Services.

 

Section 10 of the Basic Law provides that the Basic Law will not affect the validity of any law (din) in effect prior to the commencement of the Basic Law, i.e. on 20 Adar Beth 5752 (25 March 1992). The preliminary question addressed by the lower court was, therefore, whether s. 10 also applied to amendments of a law already in effect before 25 March1992, if they came into force after the commencement of the Basic Law. The lower court opined that the legislation of new provisions for existing laws, following the commencement of the Basic Law, is subject to review in accordance with the provisions of the Basic Law; this was the legislative intention as evidenced in Basic Law. In this context, the court distinguished between provisions without which the existing law (protected by s. 10) could not be applied, and provisions that constituted a new arrangement, not essential for the continued activity under the existing law. 

 

The court noted that it was inconceivable that the Basic Law protected rights infringed by laws enacted after the Basic Law, but did not offer such protection if the later infringing law was enacted as an amendment of an existing law, and was not essential for the implementation of the existing law. Any other interpretation would render meaningless all the provisions of Basic Laws which restrict the scope for violating a Basic Law, such as s. 8 of Basic Law: Human Dignity and Liberty. According to this test, the Principal Law would be protected by force of s. 10, but that protection would not extend to the aforementioned amendment of 5753 [1993], which actually broadened the infringement of property rights.

 

The District Court further commented that the aforementioned s. 8 is not an entrenched provision of a Basic Law, but nonetheless, a Basic Law by definition enjoys normative supremacy, and all subsequent legislation must adapt itself to the provisions of the Basic Law, in accordance with its limitation clause. This premise yields the conclusion that the court is authorized to examine the consistency of the later law with the Basic Law, and to draw conclusions from its inconsistency with the provisions of the Basic Law. The Amending Law was enacted after the enactment of the Basic Law, and as such, the court is empowered to examine whether its provisions violate a right protected under the Basic Law. Should the answer be in the affirmative, it continues to examine whether the provisions of the Amending Law satisfy the requirements enumerated in s. 8 of the Basic Law. In accordance with that examination the court can determine the constitutionality of the Amending Law.

 

The lower court dismissed the argument of the appellant’s learned attorney, that the Amending Law did not infringe the right of property. He pointed out that the Amending Law broadened the range of creditors included in the purview of the law under discussion, and even broadened the scope of infringed property rights. In doing so, it abrogated the court’s authority to preside over proceedings concerning debts created during four years additional to those stipulated in the Principal Law, ordering instead that they be transferred to the rehabilitator.

 

According to the lower court, just as the Principal Law included far reaching provisions that infringe the property rights of creditors with respect to the basic debt by preventing them from litigating before the court and subordinating them to the rehabilitator’s authority, so too, the Amending Law contains similar, far reaching provisions that infringe the property rights of those creditors included within its purview, for debts created during the four years added on to the years stipulated in the Principal Law. In doing so, the Amending Law negated the right of these creditors to litigate with respect to their property rights in these debts, subordinating them to the rehabilitator’s authority. This is a violation of the creditor’s property rights (LCA 1759/93 Cohen v. Hapoalim Bank Ltd, [1])

 

The lower court held that the infringement of the creditor’s property rights in a debt other than a basic debt finds expression in the duty to transfer the debt for treatment by the rehabilitator, and denying him the option of having it adjudicated in court and of enforcing it in the Execution Office. The infringement is the result of the conferral of authority upon the rehabilitator to spread debt payments and to give instructions to foreclose on the debtor’s assets, thereby limiting the creditor’s right to foreclose on the asset, as he could have done in the Execution Office. The rehabilitator is also authorized to cancel part of the debtor’s debt.

 

This led the court to examine the provisions of s. 8 in order to examine whether the violation of the property right in the Amending Law satisfies the conditions of the limitation clause under s. 8. In doing so, the court erred in its description of the background facts. The District Court mistakenly thought that the Principal Law was not applicable to the entire kibbutz sector. It also deviated from examining the provisions of the Amending Law only, and instead examined the conformity of the Principal Law to the conditions of s. 8 of the Basic Law. The court concluded that comparison of the statute’s provisions to its declared purpose in the Explanatory Note reveals an unexplained and imbalanced preference for that part of the agricultural sector that is governed by the provisions of the Principal Law and the Amending Law, and discrimination against the sector to whom the provisions do not apply. The court ruled that, against the background of the Explanatory Note that presents the law as a panacea for the entire sector, the unexplained preference for a certain sector is inconsistent with the democratic principles of the State of Israel.

 

Instead of ensuring that the financial burden flowing from the provisions of the Principal Law and the Amending Law would be born by the entire public, it was only imposed on part of the public (i.e. on the creditors of debtors belonging to the agricultural sector, to whom the law applies). Placing the burden on only a part of the public creates inequality. The lower court contended that the derogation from contractual undertakings and the duty of keeping promises is anathema to an appropriate societal-value based arrangement. Legislation of this kind is inconsistent with the values of the State of Israel.

 

The legislature’s attempt to rescue and rehabilitate the agricultural sector is a commendable goal, but imposing this goal on just a part of the public amounts to the realization of that goal in a manner that is inconsistent with the values of the State of Israel. Regarding the question of whether the Amending Law serves an appropriate purpose, the lower court noted that there was nothing to indicate that broadening the violation of property rights by way of the Amending Law was done for an appropriate purpose, i.e. an objective that could not have been attained by way of the Principal Law.

 

No indication was given of the consideration of other alternatives for achieving that objective, apart from the arbitrary violation of private property. Consequently, it has been neither explained nor proved that the infringement of the Amending Law is to an extent that does not exceed that which is necessary. In the lower court’s view, the absence of balances in the Amending Law and the critical mass of violations of rights, warrant the conclusion that the law is inconsistent with the values of the State and that its infringement exceeds that which is necessary.  

 

Under the above analysis, the provisions of the Amending Law, to the extent that they broaden the rehabilitator’s exclusive authority to examine arrangement debts that are not considered as basic debts, do not fulfill the requirements of the limitation clause in s. 8 of Basic Law: Human Dignity and Liberty. Accordingly, these provisions are void. In view of this, the court ordered the respondents to present evidence showing that the debt at issue was a basic debt, as defined in the Principal Law (i.e. prior to the commencement of the Amending Law).

 

6.    In CA 6821/93, the lower court adjudicated an action against nine defendants, based on their guarantee to the bank for a debt of the Collective Agricultural Fund Ltd in liquidation). The five respondents filed notice regarding the discontinuation of the action and its transfer to the rehabilitator, in reliance on s. 7 of the Principal Law. In view of the section’s amendment and its coming into force on 13 August 1993, they argued that it would be improper to continue proceedings concerning the debt guarantee, save in accordance with the Amending Law, given that if it was proven to the court’s satisfaction that part of the debt was a guarantee for the total debt, then it would be bound to discontinue the proceedings regarding the guarantee and transfer them to the rehabilitator.

 

The court noted that whereas the debts of the farmers and the members of the agricultural association included in the purview of a total debt are only those which stemmed from the debtors’ work as farmers, this restriction did not apply to an agricultural entity not defined as a farmer and a member of an agricultural association. Any debt of an agricultural entity, which is not a farmer and member of an agricultural association, is a total debt, irrespective of its source and how it was created, provided that it existed on 31 December 1991.

 

It is not disputed that the respondents incurred their debt, the subject of the action, by force of their guarantee to a private company, which was not an agricultural company, and hence its debt was not a total debt. The question requiring our decision is whether the debt of an agricultural entity as of 31 December 1991, which arose from a guarantee for a debt that was not a total debt, is nonetheless a “total debt” for the purposes of the law. According to the definition of the term “total debt” in Amending Law, the answer is in the affirmative. As explained above, a total debt is any debt of an agricultural entity, apart from that of a farmer and a member of an agricultural association of 31 December 1991, regardless of its source.

 

What emerges is that the court’s view was that the statement of claim indicated that the proceeding related to the respondents’ total debt. The proceeding should therefore be discontinued and referred to the rehabilitator. This was the grounds of the appeal before us. It was only upon appeal that the appellant claimed that the Amending Law contravened the provisions of s. 8 of the Basic Law, and that this was grounds for invalidating it.  We therefore joined this appeal to the current litigation.

 

7.    In LCA 3363/94, an application for leave of appeal was filed against the District Court’s decision (LCA 18/94), in which the application for leave of appeal against the decision in Execution File (Haifa) 02-14337-978 was adjudicated as the appeal itself. We adjudicated the application as if it were the appeal itself.

 

In the lower court’s aforementioned decision, it decided not to stay the proceedings against the appellants, not to transfer them to the rehabilitator, and to overturn the decision of the Head of the Execution Office. The court held that the litigation related to a debt that was incurred in 1988. The need to establish a date resulted from the fact that the total debt in the main file was, in the lower court’s view, only vaguely defined. It will be recalled that it referred to “(1) the debt on a particular date, as determined by the rehabilitator…”; and in sub-section (2) “regarding an agricultural corporation – the debt on a particular date as established by the rehabilitator…”. In the lower court’s opinion this definition yielded an unsatisfactory result, because it would in fact lead to discrimination between different categories of debtors (as well as between the different creditors) inasmuch as one standard date was not fixed for all of them. The Amending Law accordingly fixed a standard date for all of the debtors.

 

The court noted that the actual fixing of the date on 31 December1991 in the definition of the total amended debt did not infringe the creditors’ property rights. The basis of the infringement derived from the fact that fixing this date forced the creditors to terminate the proceedings (or not to commence them) with respect to the debt, if it was proven to the satisfaction of the court, the head of the Execution Office, the Registrar or the arbitrator, that the debt under adjudication was either partially or entirely a total debt or a guarantee for a total debt. Under the Principal Law, the proceedings would only be frozen if it were proven that the basic debt was incurred after the period ending on 31 December1987.

 

The court mentioned that from the moment that the proceedings were frozen and transferred to the rehabilitator, the latter was authorized to do the following:

 

1) to rule that the debt would be spread out for payment over a period that would not exceed seventeen years and six months from the date of the arrangement (s. 19 (a) of the Principal Law after its amendment by the Amending Law). The court regarded this as infringing the creditors right to foreclose on their property during the period of debt installments because, had the adjudication not been transferred to the rehabilitator (under the Principal Law), the duration of the installments period would not have been fixed. 

 

(2) Under s. 20 of the Principal Law after its amendment by the Amending Law, the rehabilitator was entitled to order foreclosure on the non-agricultural assets of the debtor, apart from on his residential dwelling, providential funds, and assets for production as specified in ss. (b)(3)(a). The provisions of this section similarly infringe the creditor’s property when they are not consistent with the other rules governing foreclosure, receiving or execution proceedings.

 

There was a similar broadening of the authority to strike out debts at a rate that did not exceed forty percent of the settled debt, and there was a concurrent broadening of the basis for the debts to be settled, which also related to the total debt and not just to the basic debt. It therefore follows that the Amending Law infringes the creditors’ property, above and beyond the provisions of the Principal Law.

 

The commencement date of the Principal Law preceded that of the Basic Law. However, s. 10 of the Basic Law does not relate to legislative amendments enacted after the commencement of the Basic Law, and does not exclude them from the category of provisions that require examination and assessment in accordance with s. 8 of the Basic Law. The normative entrenchment appears in the “limitation clause” of the Basic Law, which restricts the legislature’s authority in accordance with the provisions established therein. Relying on the limitation clause, the court considered itself authorized to declare the invalidity of the law that postdated the Basic Law, and which in the court’s view did not satisfy the conditions stipulated in the limitation clause. In view of the invalidity of the Amending Law, the court ruled that the new final date should be ignored, i.e. 31 December1991, and that the provision in the Principal Law that allowed the rehabilitator to determine a specific date for each single debtor should be restored, (s. 12 of the Principal Law). Consequently, the lower court cancelled the decision of the Head of the Execution Office, and returned the file to the Execution Office instead of transferring it to the rehabilitator. This gave rise to the current appeal.

 

8.    In conclusion, each the three files, briefly summarized above, raise an identical question, namely: What is the legal validity of the Amending Law in view of the provisions of Basic Law: Human Dignity and Liberty, and is the infringement of property therein constitutional?

 

9.    Basic Law: Human Dignity and Liberty

 

(a) The examination of the three files forming the subject of our deliberations will proceed in the following order:

 

(1) Section 10 of the Basic Law provides that nothing in the Basic Law shall detract from the validity of the law that was in force prior to the commencement of the Basic Law. Accordingly, we will first examine the application of the Basic Law to an amendment of the existing law, in so far as the Basic Law is not applicable to the existing law itself. Should we conclude that s. 10 of the Basic Law applies to an amendment, it terminates our discussion of the question of constitutionality, because the import of such a conclusion would be that the Amending Law is protected by s. 10, and the substantive provisions of the Basic Law are not applicable to it. Should we conclude that the Amending Law does not fall within the purview of s. 10 then we will proceed to the following stages of examination:

 

(2) At the second stage we will examine the principles guiding constitutional legislation.

 

(3) At the third stage we will examine the application of s. 3 of the Basic Law (protection of property) to the Amending Law.

 

(4) Should we conclude that s. 3 of the Basic Law is applicable to the instant case in the sense that the Amending Law infringes the right of property, we will proceed to the final stage of the examination: We will have to decide whether the Amending Law satisfies the requirements of s. 8 of the Basic Law, which bears the title “Infringement of Rights,” and which enumerates the conditions for the validity of a law, notwithstanding its infringement of basic rights as evidenced by its provisions.

 

(b)   For clarification of the data, we reiterate that our concern is with an amendment to the Principal Law.

 

The Principal Law came into force on the 12 March 1992. The Basic Law came into force on 25 March 1992, and the Amending Law came into force on the 13 August 1993.

 

In other words, the Principal Law came into force prior to the Basic Law, but the Amending Law was enacted after the commencement of the Basic Law. Our first question will therefore be the question of the application of the Basic Law to the Amending Law.

 

The Application of the Basic Law to the Amendment of the Existing Law

 

(a) Section 10 of the Basic Law provides as follows:

 

     

Validity of Laws          This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law.

 

Regarding the applicable law before the effective date of the Basic Law, i.e. 25 March 1992, no question arises in the present context. The Principal Law came into effect on 12 March 1992, admittedly, just a few days before the commencement date of the Basic Law. Nonetheless, the unequivocal wording of s. 10 removes the Principal Law from the category of laws that might be influenced, for good and for bad, by the Basic Law’s provisions. 

 

The question that must occupy us concerns the implications and the influence of the Basic Law on the Amending Law in this case. In terms of the pertinent dates, the picture is simple. The Amendment came into force on the 13 August 1993, i.e. a date following the commencement of the Basic Law. Plainly, therefore, the Amendment is governed by the Basic Law. The Basic Law does not affect the validity of the law in existence prior to its own commencement, from which one can infer that it does apply to all legislation enacted after its commencement, and may even derogate therefrom. The Amending Law did not exist before the commencement of the Basic Law, and so, by the wording of s. 10, the Basic Law is applicable to the Amending Law. Needless to say, this still does not affect the validity of the Amending Law, for even if subject to the Basic Law, it is still necessary to conduct the examination in accordance with sections 3 or 8 of the Basic Law, or both of them.

 

(b)   Firstly, however we will dispose of the more far-reaching arguments, which attempt to support the respondents’ claim that the Amending Law is not governed by the Basic Law despite the fact that it was enacted after it. They claim that a legislative amendment follows the principal law; it relates to its provisions and does not deviate from the principles established therein, irrespective of whether its adjustments and changes are of a practical nature, or on the level of law or principle. The ancillary follows the principal, and an amendment should therefore be regarded as part of the principal law. Just as the principal law is not subject to the Basic Law, so too the amendment at issue before us should be exempt. 

 

Alternatively, it was claimed that there may be cases in which an amendment constitutes a substantive change and innovation in the law, and should be regarded independently. Thus, every amendment must be examined in accordance with its substance. The argument in our case is that the amendment is not a substantive one, and that the Amending Law treats of the same subjects as the Principal Law, of which it forms a part.

 

11.  From a legal standpoint, I cannot accept the arguments treating of the application of s. 10 to the Amending Law as cited above, that are intended to persuade us that the Basic Law does not apply to the Amending Law. Furthermore, the proposed hypothesis also raises numerous practical difficulties.

 

The innovation of the Basic Law was its establishment of criteria for the examination of the constitutionality and validity of a law. It created new, substantive criteria, unprecedented, apart from the beginning of s. 4 of Basic Law: The Knesset. It established norms for the examination of the contents of a law, and subjected all governmental agencies to the duty of abiding by those norms. Needless to say, the court, too, is a governmental agency, serving as the judicial branch, which is one of the three branches of government under our constitutional structure (HCJ Flatto Sharon v. Knesset Committee, (hereinafter the Flatto Sharon case, [2], at p. 141).

 

The legislature drafted s. 10 because it was aware that laws enacted prior to the Basic Law contradicted it. The legislature did not wish a sudden upheaval of the existing law, preferring legal stability. In its view, the existing law required systematic, cautious examination, assessment and screening, prior to subjecting it to the norms of the Basic Law. This process is not required with respect to a statutory amendment, just as it is not required with respect to a new law. The legislative stage is the appropriate stage for the examination and assessment of new legislation or statutory amendment, in terms of consistency with the protection of human rights afforded by the Basic Law, as is the legislature’s custom with draft laws. 

 

A principal law and a statutory amendment exist in their own right. The legislative authority deliberates over any statutory amendment from the time of its inception, just as it examines all primary legislation. Indeed, each of its provisions operates as primary legislation irrespective of its substantive connection to the provisions of the existing law. Adoption of a statutory amendment that refers to existing legislation, instead of enacting separate and independent legislation lacking a substantive connection to the existing legislation, results from the desire to organize the law in a rational, organized manner, concentrating all of the provisions treating of a particular matter in consolidated legislative frameworks, and preventing contradictions between them. The old and the new are connected both nominally by their title, and substantively, in terms of their content, but in terms of their validity, the law presenting the amendment is valid in its own right, as a separate, independent legislative act, deriving its power directly from the legislature’s act. The attachment of the amending statute to the amended statute is expressed primarily by the statute’s title, but does not reflect the essence of the amendment. An amendment may be technical or formal, effecting no substantive change, or it may amend – and change – the existing law. In other words, the title of the amendment does not attest to its content, but rather to the desire to create organized legislative frameworks, all dealing with a defined issue under the same rubric.

 

Establishing distinctions and differences in accordance with the contents of an amending law generally creates dilemmas and anomalies. Needless to say, even a seemingly technical, formal amendment may have far reaching consequences in terms of its substantive results. Consider, for example, emergency economic measures enacted for a period of three months, that have been extended by an amending law for a period of five years. There can be no doubt regarding the change in the meaning and implications of the amendment in comparison with the principal law, despite the fact that the change was ostensibly just an extension of validity of an existing provision.

 

13. Summing up: The above leads to a double conclusion that derives from the wording, the essence and purpose of the Basic Law: (a) In terms of its wording, we observed that the Basic Law states that its provisions do not affect the validity of the law in force prior to its coming into effect. This means that a law that was not in force prior to the coming into force of the Basic Law, but only thereafter, will not be subject to the reservation regarding the inapplicability of the Basic Law. If s. 10 does not apply, it means that the legislature’s plain and simple intention is that the criteria of the Basic Law, and the human rights safeguards therein, must be complied with..

 

(b)   In terms of its purpose, the Basic Law attempted to maintain the existing law, at this stage, but did not extend its aegis to new law, by which it would have divested itself of its content and purpose. Adoption of a rule that the application of s. 10 to new law would be assessed in accordance with the law that existed prior to the Basic Law would mean that the adornment of any new law with the title of a statutory amendment would suffice to exempt it from the application of the Basic Law. Needless to say, on a practical level, this would present no problem. The totality of laws is sufficiently broad to accommodate the placement of all new legislation in the formal framework of the existing law. However, this approach would be inconsistent with both intention and the act of the legislature, which created the Basic Law to be complied with, and not to be divested of content. The presumption is that the legislature does not waste words, nor enact a law, especially not a Basic Law, in vain.

 

The bottom line is that a statutory amendment, like any other statutory provision, is a separate, new legislative act, to which the non-application clause of s. 10 of the Basic Law does not apply.

 

14.  As a matter of practice too, we must establish clear demarcation lines, rather than be drawn into vague distinctions. An attempt to determine the degree of substantive innovation in a statutory amendment, and its new implications for the entire legal system would give rise to unending litigation and interpretation. Instead, a simple and unequivocal boundary must be established, based on the date of the amendment. The water-shed date is the date of adoption of the Basic Law.

 

In other words, as explained above, it would be a particularly onerous undertaking to conduct a separate substantive examination of the contents of each provision of each and every statutory amendment, and even of the component parts of each provision (because, conceivably, an innovation may derive from part of the provision). On a practical level, such a proposal would trigger endless legal debate and prevent establishing clear, sharp legal distinctions. It would contribute to legal uncertainty, rather than achieve the desired opposite result..

 

The import of legislation must be clear and readily intelligible in terms of its content and implications, and should not be complicated by leaving it open to a debate – which would be imperative in each and every case – upon the applicability of the normative limitations in the Basic Law.

 

15.  In view of this I think that the Amending Law is subject to the provisions of the Basic Law.

 

16.  Having ruled that the Basic Law applies to the Amendment, the first imperative is an examination of the classificatory principles governing the various forms of legislation. Inter alia, this involves discussion of the status of the Basic Law in our legal system, and the status of regular legislation in the light of the various forms of constitutional legislation. We will now proceed to examine the guiding principles that determine the various legislative formats and the distinctions among them.

 

The Connection Between a Regular Law and a Basic Law

17.  The need to examine legislative principles stems from our conclusion that the Amending Law – being a regular law rather than a Basic Law – is not exempt from the scope of application of the Basic Law. We must examine the question of the standing of a regular statute enacted after the Basic Law came into force, if its provisions appear to infringe rights protected under the Basic Law. As stated, our concern is with a statutory amendment that is a regular law, and not a Basic Law, and that does not specifically state that it violates a protected right.

 

Our examination will proceed from the general to the specific. In other words, the subject will first be addressed on a theoretical level, beginning with a discussion of the fundamental legislative structure. For the moment, I will avoid expressing an opinion on whether the specific statutory amendment under discussion contravenes the Basic Law.

 

Following this, we will proceed to the second stage, and examine the status and significance of the Basic Law applicable in the instant case – Basic Law: Human Dignity and Liberty.

At the third stage we will apply our conclusions and examine the Amending Law in terms of its relationship to the provisions of the Basic Law.

18.  The two Basic Laws enacted about three years ago – Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation – were intended to constitute an integral part of the Israeli bill of rights. Prior to the commencement of the Basic Laws, these basic rights were anchored in precedent that has formed part of positive Israeli law since the establishment of the State.  In the framework of statutory interpretation, the case law has repeatedly emphasized that the various basic rights included in our positive law enjoyed a unique status as criteria guiding the crystallization of the law’s political and legal conceptions, as the guiding light in the formulation of the law and as guidelines for judicial review of the acts of courts, secondary legislation, and the various agencies of the executive branch (see HCJ 1/49 HCJ 1/49 Bejerano v. Minister of Police [3]; HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [4] ; HCJ 75/76 ‘Hilron’ Ltd v. Fruit Production and Marketing Board (Fruit Board) [5], at p. 653 opposite letter E; CA 723/74 HaAretz Newspaper Ltd v. Israel Electric Corporation [6]. at p. 295 opposite letter E; HCJ 337/81 Miterani v. Minister of Transport [7]; EA 2/84 Neiman v. Chairman of Elections for Eleventh Knesset; Avneri v. Chairman of Central Elections Committee for Eleventh Knesset [8]. Today, some of these rights, belong to the constitutional section of our statutory law, by force of their inclusion in Basic Laws: Human Dignity and Liberty and Basic Law: Freedom of Occupation. In the determination of substantive criteria for primary legislation they were preceded by s. 4 of Basic Law: The Knesset. The two new Basic Laws took a broader approach in aiming to define basic rights in creating a statutory bill of human rights for Israel. Just as s. 4 of Basic Law: The Knesset established substantive conditions for future legislation in the matters regulated by s. 4, the two new Basic Laws establish guidelines for all regular legislation pertaining to the rights in their scope. Judicial review has thus been extended. It is now possible to review the lawfulness of primary legislation enacted after the commencement of the Basic Law, in accordance with the criteria established in the aforementioned Basic Laws.

This means that not only were basic rights defined as such in primary legislation, being upgraded from common to statutory law, but they were also endowed with supra-normative status, in relationship to both primary and secondary legislation, in the manner and to degree stipulated by the provisions of the Basic Law. The realization of the decision adopted by the First Knesset – the Harrari Decision – to which we shall shortly return, has thus proceeded from the stage of defining the sovereign authorities, their powers and their functions, to the formulation of a bill of rights.

For the first time, basic civil rights have been clearly and directly expressed in constitutional legislation.

Though there is still no complete, comprehensive bill of rights encompassing all basic rights, two initial, important chapters have now attained statutory status. An important part of the definition of liberty has been firmly established in the law in written constitutional form.

A fundamentally important conclusion is that it is now possible to judicially review the constitutionality of primary legislation in light of statutorily established constitutional norms, by examining the constitutionality of the legislation under the criteria of the Basic Laws.

The Normative Hierarchy: Basic Law, Statute, Secondary Legislation

19.  An understanding of the new Basic Laws requires reference to the principles for interpreting the relationships among various legislative acts. We will examine the relationship between statutes, between regulations and between regulations and statutes. The typical case is that in which the regular law establishes a provision that may protect a particular right. Let us imagine that a subsequent law stipulates that there is no protection for that right. In other words, it removes the protection or derogates from its scope or depth. The later law may absolutely negate the right or divest it of its content (i.e. a “variation” including the “annulment” of the right); Alternatively, the later law may restrict the protection conferred to the right without varying or annulling it (i.e. an “infringement” of the right). Incidentally, later on in our comments we will expand on the concepts of “variation” and “infringement” and the distinctions between them.

In both cases (“variation” and “infringement”) the later law may either vary or infringe the right protected in the earlier law. The earlier law recedes in the face of the later law, in the words of the dictum lex posterior derogat priori (“and bring forth the old because of the new”; Leviticus, 26:10) [117]. The most recent legislative pronouncement is usually the decisive one.

The analytical starting point is that when the legislature wishes to vary or infringe a protected right it does so either explicitly, or by way of a clearly contradictory stipulation in the wording of the new provisions, which is inconsistent with its predecessor. In any case, an attempt should be made to uphold laws dealing with the same subject matter and to reconcile them. Thus, the interpretative presumption is that a right protected by a regular law is not changed or infringed by later regular legislation, unless otherwise stated or implied (see HCJ 428/86; HCJ App 320/86; Barzilai v. Government of Israel, [9] at p.542). In other words, the interpretative presumption is that the two laws, one later and one earlier, are consistent with each other. The wording of the later law may refute this presumption, but if the presumption is refuted, the valid positive law is the law determined in the later law. The presumption is that the later law is the most up-to-date expression of the legislative intention and reflects the current objective of the legislative system. In other words, the prima facie rule is that statutes do not contradict each other (one statute versus another statute) but if that rule is contravened, either explicitly or implicitly, the later statute has the upper hand.

The aforementioned rule is qualified by an exception: If the earlier law is a specific law as opposed to a later more general one in terms of the issue at hand, then the specific law takes precedence over the general one: lex specialis derogat generali. This rule applies when dealing with two regular laws containing conflicting normative provisions, and the difference between them is expressed by the degree of specificity of their provisions. 

The rules described above are guidelines that elucidate the relationship between two legislative acts, but they are not exhaustive. Another presumption with roots in our system is that the legislature protects and promotes basic rights, and this is a guiding presumption in legislative construction (see e.g. HCJ 75/76 [5] supra, and CA 723/74 [6] supra). Together with that presumption, we are also assisted by the aforementioned doctrinal rules governing the relationships between statutes: an earlier statute versus a later statute, a specific statue versus a general statute.

20.  A conflict similar to the one described above may also arise between two provisions of secondary legislation, in the form of regulations enacted by administrative or other agencies competent to enact regulations. The presumption is that the regulation is legitimate from an administrative perspective. The question is what happens when two regulations conflict. The theoretical construct governing the decision in the case of contradictory regulations is identical to that of contradictory statutes. An effort must be made to reconcile them or to reach a conclusion as to their validity or invalidity, having reference to the particular laws by force of which the regulations were enacted. The rules outlined above are similarly applicable to secondary legislation: hence a later regulation supersedes an earlier regulation; a specific regulation supersedes a general regulation.

21.  Another, distinct question is what the law is when a regulation contradicts the provisions of a statute. The question becomes even more acute when dealing with the question of the law of a special and later regulation that contradicts a general law that preceded it. Prima facie, a simple application of the interpretative principles adumbrated above leads to the conclusion that the special provision should override the general provision. Moreover, later legislation should override earlier legislation. Reasoning a fortiori, a later, specific provision should therefore prevail over an earlier, general one. The conclusion is that any later, specific provision would unequivocally prevail over any earlier, general provision. However, this conclusion does not apply to circumstances in which a regulation contravenes statute, for a statute is always of superior normative status. A derivative question is what the rule is where a special or later regulation is in conflict with a statute. The answer is that the regulation is of inferior status. The rules pertaining to the primacy of later legislation over earlier legislation or the primacy of a special provision over a general one only apply within the same legislative framework, in other words, statute versus statute or regulation versus regulation.

The reason for this is that our legal system, like any system of law, is based on a normative hierarchy. The normative hierarchy results from and reflects various forms of power. We will proceed to clarify this point.

The legal structure is based on the axiomatic assumption of a stratified system of norms; each strata or level derives its validity from the power that engendered the norm, as in the case of primary and secondary legislation (i.e. regulation). A statute is positioned on a higher normative level than a regulation, and hence it need not surprise us that when in conflict, the statute prevails. Absent specific authorization in the primary law, secondary legislation can neither vary nor infringe statutory provisions. In this context it is irrelevant whether the regulation preceded the law or post dated it. It is similarly irrelevant if the regulation is specific or general with respect to the matter regulated therein. In any case, a regulation is normatively subordinate to a statute and therefore a regulation that contradicts a statute is subject to the remedies of administrative law, which provide for full or partial annulment. Logically, the regulation’s subordination to the statute, derives from the formal, fundamental conception of normative hierarchy in any legal system. To the extent that it relates to the connection between a regulation and a statute, the normative hierarchy is formally expressed in section 16 (4) of the Interpretation Ordinance [New Version], which provides that:

Enactment of Regulations:    “16: Where the law confers on the authority the power to enact regulations, the regulations enumerated in the following provisions shall apply to the enactment and the effect of such regulations unless another intention is implied:

…..     

    (4)    A regulation shall not contradict the provisions of any law.

The reference here is to “any law” (my emphasis M.S) and not just the law conferring the power to enact specific, conflicting regulations, the legal validity of which are being assessed. This is an additional expression of the general distinctions made under the legislative hierarchy.

In this context it bears special mention that even absent the provision in s. 16(4), a regulation purporting to vary or infringe a statute would be subject to the hierarchical principles explained above, which are the guiding principles in the examination of the validity of a law.

What is the source of the principle of the normative hierarchy of legal norms? As mentioned, the answer lies in the types of powers that confer authority to legislate or promulgate regulations, respectively. The legal system endows various authorities with the power to establish legal norms, in other words, legally binding rules of conduct. These powers are systematically organized, deriving their force from the essence of the empowerment. The power to enact primary legislation is not analogous to the power to promulgate secondary legislation, which can only stem from a specific empowering provision included in the primary legislation. The legislative branch – the Knesset – has the power to legislate laws of all kinds; the executive branch generally has the power to enact secondary legislation, by force of its empowerment in primary legislation. However, the Knesset, too, is empowered to enact secondary legislation, e.g. the Knesset Regulations (s. 19 of Basic Law: The Knesset) or decisions pertaining to pensions of office holders, which constitute secondary legislation (see HCJ 89/83 Levi v. Chairman of Knesset Finance Committee,[10]). In other words, there are cases in which the same authority is empowered to establish different legislative norms, belonging to different normative hierarchies. This means that the same institutional source is empowered to pass legislative acts of varying obligatory power, and it also establishes the connection between them and their subordination to one another

In view of the network of powers described, with all due respect, there is no foundation for the doctrine of the institutional pyramid developed during the sixties (Prof B. Akzin, The Doctrine of Governments at p.40) whereby each normative level of legislative authority has a sole and exclusive institutional coordinate, meaning that every stage on the normative hierarchy of legislation has a unique counterpart on the institutional ladder, and that in principle, different stages on the normative hierarchy can never flow the same level of the institutional hierarchy. As observed above, the same institution may be empowered to establish norms on different levels. Hence the Knesset’s power to enact secondary legislation, as mentioned above, is universally accepted. The existence of a mutually exclusive connection between each stage of the normative hierarchy and the institutional ladder empowered to create legislation, is a doctrine that is alien to our legal system, and is inconsonant with the allocation of powers among law- making institutions. The normative legislative hierarchy finds expression in the subordination of each level to the level above it, and not by reference to its correlate on the ladder of institutional sources. The same institution may establish both the supreme norm and the lower norm. Any theoretical doctrine that analyzes a functioning legal relationship must anchor itself in the legal reality; it cannot exist in a vacuum, but must have reference to the existing legal structure, which is an inescapable given. It cannot sever itself from the subject it seeks to analyze, and any thesis that ignores it is unrealistic. From this we can only conclude that the pyramid theory described by Professor Akzin, is contradicted here (and not only here) by the existing structure of the power network.

22.(a) The authority to enact secondary legislation is included in the primary legislation of the legislature. A minister cannot enact legislation in the absence of statutory empowerment; an authority cannot enact bylaws in the absence of statutory empowerment, and the Knesset is not authorized to make decisions pertaining to salary or pensions without an empowering clause such as s. 10 of Basic Law: Judiciary, s. 1 of the Holders of Public Office (Benefits) Law, 5729-1969 or similar laws.

Secondary legislation is the product of empowerment in primary legislation. A law enacted by the legislative authority is superior to a regulation of the Knesset itself, or of any other statutory or executive authority, because the regulation can only be enacted by force of the power conferred in the primary legislation. In other words, the conferral of differentiated legislative functions to the same institution does not create a situation in which all of the powers coexist, side by side, ostensibly on the same level. Conferral of a number of functions to the same institution leaves intact the need to establish a hierarchy that defines the legal or constitutional status of those powers above one another. The normative legislative hierarchy is the soul of an appropriate constitutional structure.

(b) As we noted, secondary legislation can neither vary nor infringe a statutory provision. To complete the picture we will add that the assertion pertaining to the hierarchical relations between a law and a regulation is prima facie contradicted by the existence of another form of regulations that can infringe a law, namely – emergency regulations. As stated in the law conferring the power to enact them, “An emergency regulation may alter any law, suspend its effect or modify it…” (s. 9 (b) of the Law and Administration Ordinance, 5708-1948). (An “ordinance” is a law passed by the Provisional Council of State, see s. 7 (a) of the Law and Administration Ordinance; and see also s. 2 (a) of the Transition Law, 5709-1949, and compare with what is now s. 50 of the new Basic Law: The Government, enacted in 1992). What this means is that the Minister’s authority to invalidate a law by force of emergency regulations is exceptional, but it too is explicitly conferred in primary legislation and qualified by the restrictions delineated therein. This power of secondary regulation to alter a law does not derive from the secondary legislation itself, but rather from the law that empowered the government or a minister to enact it. In the absence of explicit statutory empowerment to enact secondary legislation that infringes the law, secondary legislation cannot alter or infringe a law (in this context see the Supervision (Products and Services) (Amendment No.18) Law, 5750-1990, following our judgment in HCJ 256/88 Medianwest Medical Center Herzliya Ltd v. Director of Ministry of Health [11]. If it varies or infringes it, it will be subjected to the remedies granted by the judicial forum regarding secondary legislation that deviates from its defined boundaries.

23.  Summing up: The subordination of secondary legislation to the law flows from the secondary legislator’s subordination to the conditions of empowerment explicated by the primary legislative authority, i.e. the sovereign legislature – the Knesset. Incidentally, in using the term “sovereign” my intention is not to interpretations taken from public international law. In our conception, the sovereign is the people. In my understanding, the Knesset is “sovereign” i.e. independent and supreme, in the sense that no other authority, legislative or otherwise, prevails over it in its power and its authorities. The reason lies in the source of its power: It was elected by the people, which as stated, is the sovereign.

The hierarchy of norms thus derives from the nature of the powers. The normative system is not one-dimensional, but rather hierarchical – a ladder with different levels. Primary legislation is on a higher normative level than secondary legislation (i.e. “regulation,” “bylaw,” “order” and the like).

The Position of Constitutional Legislation

24.  On a normative scale, the constitutional act is on a higher level than the regular law. By its essence and purpose, it is designated to operate at a supreme normative level. In terms of constitutional theory, in a possible conflict between the constitution and a law, the constitution has the upper hand. It is inappropriate for a regular law to override a constitutional provision. A regular law cannot override a constitutional provision other than by way of an explicit constitutional provision included therein, or by way of a constitutional provision (constitution or Basic Law) that generally defines – not necessarily in relation to a specific constitutional provision – the possible forms of infringement. See for example, s. 12 of the proposal for Basic Law: The Judiciary (27 Hapraklit (5731) 140,141), which discusses “a claim against the validity of a law.” And see also s. 8 of Basic Law: Freedom of Occupation, of 1994, which states the following:

Effect of nonconforming law   8.    A provision of a law that infringes the freedom of occupation shall be of effect, even though not in accordance with section 4, if it was included in a law passed by a majority of the members of the Knesset, and which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein

This means that the general constitutional principle laid down in the Basic Law, Freedom of Occupation can be infringed by regular legislation, provided that it is done in the manner set forth in the aforementioned section 8. Section 8 is not only prescriptive – it is also proscriptive, in the sense of invalidating regular legislation that infringes freedom of occupation, if it does not satisfy the conditions of section 8. This is the import of the wording of s. 8, and this is the rule for a law that does not conform to its provisions. Subject to such changes as are necessitated by the transition from one specific subject to another, our comments here regarding Basic Law: Freedom of Occupation apply to the relationship between any regular law and a constitutional provision currently included in a Basic Law, which contains qualifying provisions regarding its variation or infringement, and regular legislation.

Summing up this point: Some Basic Laws lack qualifying provisions regarding regular legislation that changes or infringes their conditions. These laws do not fully express their supreme normative status vis-à-vis variation or infringement, and an entrenched or privileged status represents an appropriate and desirable ideal. Other Basic Laws, such as the two Basic Laws enacted in 1992, which include restrictions that entrench their normative hierarchy, are already a reality.

The Constitutional Norm – Structure and Form

25. (a) The basic assumption of our approach is that the primary legislator is the supreme source of authority in the legislative realm, by virtue of which he is authorized to enact laws of differential normative authority on the hierarchical scale. He is authorized to enact constitutional legislation and authorized to enact regular legislation. He is the direct source of all primary legislation, and in a small number of cases, as noted, he is also the source of secondary legislation; indirectly – he is the source of all secondary legislation.

(b)   As mentioned above, constitutional legal theory recognizes the existence of a normative legal level above that of the regular law, referred to variously as “constitution” or “Basic Law.” The Harrari Decision of 1950, to which we shall return, distinguished between a Basic Law and a constitution. In our comments below, for simplification, we will, as far as possible, use the word “constitution”

The people have the power to frame a constitution. This assertion derives from the accepted conception that sovereignty resides with the people. Constitutional legislation is the product of the people’s decision by way of its elected representative – the sovereign Knesset.

Incidentally, according to German constitutional interpretation, which naturally relates to the constitutional structure there, the absence of a direct, unmediated decision by the people to adopt a constitution by way of a referendum does not diminish the validity of a constitution enacted by way of legislation, and to that end it is sufficient that the constitution be enacted by the representative parliamentary body (see Von Muench/ Kunig, Grundgesetz-Kommentar, Band 1., 4, Verlag Beck (Muenchen, 1992) 11, but cf. V. Mangoldt, Klein, Starck, Das Bonner Grundgesetz, 3 Aufl. Band 1 Anm. Vl 11). Naturally, the approaches to this subject are not uniform and different countries have adopted a variety of approaches.

26. (a) All of our comments above regarding the nature of the normative hierarchy apply mutatis mutandis to the relationship between a regular law and the constitution. The power of regular law to alter or infringe constitutional provisions may be conferred by force of the constitutional provision itself, as for example, s. 8 of Basic Law: Freedom of Occupation, cited above. Arguably, the absence of any such provision may indicate that the legislature chose not to complement the creation of a supreme normative level with a provision qualifying the validity of any contradictory regular legislation. This was the case with the legislative proceedings of Basic Law: The Knesset, which designated the provisions limiting conflicting legislation to a small number of its sections only, leaving the majority of its sections with no substantive position on the validity of conflicting regular legislation. The same conclusion similarly arises from the wording of most of the other Basic Laws, which treat of the institutions of government and their branches, as well as with the judiciary.

As a result, the Knesset amended provisions in Basic Laws by way of a regular law (see e.g. The Knesset (Number of Members in Committees) Law 5754-1994, which repealed s. 21 (c ) of Basic Law: The Knesset; s. 86 (e) of the Knesset Elections Law [Consolidated Version] 5729-1969 which contradicts s. 17 of Basic Law: The Judiciary. This same is true for s. 64 of the Courts Law [Consolidated Version] 5744-1984. This court has also ruled on a number of occasions in the past that nothing prevents the amendment of a Basic Law by means of a regular law (see e.g. HCJ 107/73 ‘Negev’ – Automobile Service Stations Ltd v. State of Israel Ltd (hereinafter – the Negev case) [12]) (Justices Berinson, Witkon, H. Cohn); In HCJ 148/73 Kaniel v. Minister of Justice, (hereinafter – the Kaniel case) [13]), President Agranat, Justices Landau and Kister, addressing this point, stated: “We find no support in the language of the Basic Law… that an implied change under the concluding section of s. 46 (of Basic Law: The Knesset – M.S.) must be accomplished by means of a Basic Law or a special law” (ibid, at p. 796). In my view, this ruling should be seen in the context of its period, and as an interpretation that did not anticipate the legislative constitutional developments and the emergence of a comprehensive constitutional doctrine.

However, as we will presently see, the two new Basic Laws of 1992 provide a fuller expression of the normative constitutional hierarchy, as indicated by the Knesset’s general tendency in the legislation of the Basic Laws. Following the change in the Knesset’s legislative policy, as expressed in both of the Basic Laws, and which anchored a new, appropriate conception of the normative hierarchy, it is now possible to apply a standard legislative criterion by which there can no longer be any variation of any Basic Law other than by another Basic Law.

There are grounds for presuming that with the enactment of Basic Law: Legislation, this subject will be regulated comprehensively with respect to all of the Basic Laws. In view of the Knesset’s legislative policy as expressed in the two aforementioned Basic Laws, nothing prevents us from already laying down the appropriate legislative procedure, and in doing so to delineate the principles required to give commensurate expression to the legislative hierarchy manifested in the enactment of the constitutional provisions. Further on we will devote some attention to the import of the new Basic Laws, in terms of legislative policy and the basic constitutional conception of the Knesset.

(b)   Freedom of occupation has merited protection in our statute law insofar as it has been imbued with constitutional status in Basic Law: Freedom of Occupation. In the absence of a standard constitutional provision applicable to all Basic Laws, this Basic Law established certain provisions pertaining to a change or infringement of its provisions. The structure of Basic Law: Freedom of Occupation (which is the appropriate constitutional structure, that should be followed in all Basic Laws) prevents the possibility of an ordinary law changing or infringing a right that was established in Basic Law: Freedom of Occupation. The constitutional strictures were established in s. 4 of Basic Law: Freedom of Occupation, providing as follows:

‘There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law’

The wording of s. 8, treating of the validity of a law deviating from the aforementioned provisions, was cited above.

The import of this is that the validity of a regular law that infringes the freedom of occupation is conditional upon its fulfillment of the conditions enumerated in the aforementioned s. 8, and failure to fulfill those conditions renders the regular law invalid. Only where the regular law satisfies the necessary conditions (the required majority for the adoption of the law; an explicit qualification) can it suspend, for a fixed period, the validity of a constitutional provision with respect to the area of application of that law. Needless to say, the conclusion emerging from the aforementioned is that the Knesset recognized the existence of a normative hierarchy by the very adoption of sections 4 and 8 of Basic Law: Freedom of Occupation. These two sections of Basic Law: Freedom of Occupation enable the “infringement” of a protected right, subject to the conditions enumerated by the Basic Law, and therefore deny the validity of an infringement that fails to satisfy the conditions established by the Basic Law.

As opposed to this, a “variation” of a Basic Law – as opposed to an “infringement” of one of its provisions – requires the application of the proceeding under s. 7 of Basic Law: Freedom of Occupation.

   Entrenchment          7. (a) This Basic Law shall not shall not be varied except by a Basic Law passed by a majority of the members of the Knesset.

With respect to a variation, the normative hierarchy is expressly stated in the entrenchment of the provisions of the Basic Law.

The basic constitutional distinction between a “variation” and “infringement” is worthy of further in-depth examination, and we shall address it further on.

“Variation” versus “Infringement”

27. (a) In examining the arrangements of the supreme normative hierarchy, a distinction must be made between the “variation” of a protected right, and its “infringement.” Our concern is with a right protected in a Basic Law. Any variation of the right (restriction or expansion, supplementation or annulment) requires legislative action on the Basic Laws level. The requirement that a change or variation be effected in or by way of a Basic Law stems from the analytical basis of the legislation of Basic Laws in our legal system. By force of the normative legislative hierarchy, any variation of an act on a particular (normative) level must be effected by an act on the same or a higher normative level. Secondary legislation cannot change a law. Regular legislation cannot change a Basic Law, which is located at the apex of the normative scale.

The Basic Laws are the cornerstone of the Israeli Constitution. This was also the Knesset’s explicit position in its decision on 13 June 1950 (the Harrari Decision). As such, a distinction ought to be made, for purposes of constitutional and legislative clarity, between basic legislation, which provides the constitutional foundation, and regular legislation. This concludes our discussion in regard to “variation.” I am aware of the statements of this Court (Justice Berinson, Witkon, and H. Cohn) in the Negev case [12], the Kaniel case [13] (Justices Agranat, Landau, and Kister) and HCJ 60/77 Ressler v. Chairman of Central Elections Committee for Knesset (hereinafter – Ressler case [14]) (Justices Etzioni, Y. Cahn, and Asher), according to which Basic Law: The Knesset provided no grounds for the assertion that a (implied) change of a Basic Law must perforce be effected by the enactment of a Basic Law, and that it could also be effected in the form of regular Knesset legislation. They were expressing the existing situation in which many of the Basic Laws were not formally entrenched.

(b)   As the development of the constitution progresses, and with it the imperative of establishing an analytical basis for the adoption of constitutional legislation, it is appropriate, as emphasized above, that we adopt a new direction that expresses the existence of a normative legislative hierarchy. In other words, against the background of the two new Basic Laws that directly deal with the protection of fundamental rights, this expanded bench now has the opportunity to establish an entire system, adjusted to our present constitutional umbrella, as this Court did in a different context in HCJ 98/69 Bergman v. Minister of Finance (hereinafter “the Bergman case”) [15]). From now on, all Basic Laws should be governed by a legislative policy that expresses the doctrine of normative hierarchy, by which a Basic Law can be varied only by another Basic Law.

(c)   This brings us to the term “infringement.” An infringement does not purport to alter the scope of the right itself. The thrust of the infringement is that it ‘enables the normative existence of a legislative act that infringes the arrangements provided by the Basic Law’ (as per my honorable colleague, the President: A Barak, Interpretation in Law, vol.3, Constitutional Interpretation (Nevo, 5754) 48). By its very nature, an infringement is special and defined, i.e. localized.

According to this fundamental distinction between “variation” and “infringement,” the first Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law, 5729-1969, which was the subject of the Bergman case, included an “infringement” of the principle of equality entrenched in s. 4 of Basic Law: The Knesset, which states:

 Section 4: System of Elections: The Knesset shall be elected by general, national, equal, secret and proportional elections, in accordance with the Knesset Elections Law; this section shall not be amended, save by a majority of the members of the Knesset’ [emphasis mine– M.S.]

The Knesset and Local Authorities Elections (5730) Law did not purport to vary the aforementioned section 4. The purpose of the financing law was not to establish that there would no longer be equality in the electoral system. It infringed the principle of equality in a specific, clearly delineated area. In other words, the result of the Knesset and Local Authorities Elections (5730) (Financing, Limitation of Expenses and Audit) Law was an infringement of the principle of equality set forth in s. 4 of Basic Law: The Knesset. 

In the Bergman case [15], the Supreme Court gave a broad construction to the requirement of a special majority in Basic Law: The Knesset. Firstly, the Court’s unanimous view was that the requirement in the concluding part of s. 4 places a hurdle before any “variation” of s. 4 of Basic Law: The Knesset in the form of the requirement for a special majority. Accordingly, the principle of equality in elections cannot be annulled other than by a majority of the members of the Knesset, meaning that the election system can only be changed by force of special majority. Secondly, by implication the court inferred that the requirement of s. 4 also presents an obstacle to any “infringement” of the protected value in the Basic Law. In other words, s. 4 of Basic Law: The Knesset includes a quasi “override clause” with respect to a variation. Its essence is formal, and its form is the requirement of a special majority pursuant to s. 4 of Basic Law: The Knesset. This clause is anchored in the constitutional provision and inherently creates the constitutional tool governing cases of possible infringement of the principle from among those stipulated in the aforementioned s. 4. The override clause in the concluding part of s. 4 enables an infringement of the protected value, provided that it be effected by way of a special majority. Section 4 of Basic Law: The Knesset, as opposed to s. 8 of Basic Law: Freedom of Occupation, of 1998, and similar to s. 4 thereof, does not posit a requirement of specificity, as one of its conditions for the validity of an infringement of a protected value. The infringement will be valid even without explicitly derogating from the Basic Law (i.e. it may be done “implicitly,” provided that it is adopted by a special majority).

Summing up, theoretically speaking, a variation is distinct from an infringement. However, in the Bergman case [15], the Court also applied the limitations regarding the variation of a Basic Law to legislative provisions that contradicted the principle of equality in the Basic Law, in other words, that only infringed it. This point is of particular interest because in the context of retrospective constitutional critique it has often been argued that in the Bergman ruling [15] the Supreme Court attempted to curtail the scope of judicial intervention dictated by the normative constitutional hierarchy. However, the decision itself indicates that in viewing the Local Authorities (Elections) (Financing, Restriction of Expenses and Auditing) Law as invalid by reason of not having been adopted by the requisite majority, the Court not only adopted an innovative, broad approach, without any explicit authorization, but also broadened the scope of the aforementioned section 4, and included regard of any “infringement” as a “variation” referred to in the Basic Law. Needless to say, in my view, the Court acted lawfully and within the scope of its powers.

The Knesset was aware of the distinction between a variation and an infringement, which explains why Basic Law: Freedom of Occupation uses the term “there shall be no infringement” in its limitation clause. The purpose of the provision in s. 8 of Basic Law: Freedom of Occupation is to establish criteria for reviewing legislation that infringes the provisions of the Basic Law, in an attempt to circumvent the principles established in the Basic Law. The provision does not establish criteria for the variation or abrogation of a Basic Law. The variation of Basic Law: Freedom of Occupation is explicitly governed by s. 7.

What has been said thus far in regard to Basic Law: Freedom of Occupation demonstrates the general theses. Basic Law: Human Dignity and Liberty and its variation or infringement will be treated below, at the appropriate juncture.  

28. (a) The thesis presented regarding the normative legislative hierarchy indicates that the appropriate legal approach is that from now on, a regular law can neither vary nor infringe a constitutional provision, in the absence of explicit authorization in a constitutional provision. If the statutory provision varies or infringes a constitutional provision then the conflicting statutory provision will be subject to the counter remedies originating in constitutional law. Such a remedy may be the annulment of the conflicting statute. It may be a more restricted remedy than the extreme remedy of annulment, such as partial annulment (application of the “blue pencil” rule), where such a remedy is available, having consideration for the overall constitutional context. The remedy may also be of a relative character in terms of the time dimension (of retroactive, or prospective application), in terms of application, etc. At all events, we deem it settled law that where a normative provision of a lower status deviates from a higher normative provision, the court seized of the matter is authorized to conduct a procedure of judicial review, and to provide a constitutional remedy.

(b)   The judiciary shoulders the burden of upholding the rule of law, if a matter is submitted for its decision in the statutorily prescribed ways. Implementing the rule of law includes maintaining the sources of authority and the hierarchy of norms. It follows that if secondary legislation contradicts the law, the court is authorized to grant a remedy. Similarly, if a law contradicts a constitutional provision, the court is authorized to grant a remedy. As we mentioned, what was once the ideal situation with respect to constitutional legislation in general has largely become the real position with respect to the two Basic Laws enacted by the Knesset in 1992, Basic Law: Freedom of Occupation, and Basic Law: Human Dignity and Liberty.

29. We elaborated on the description of the appropriate constitutional structure, and it should be added that our concern is not merely with the demarcation of formal legal structures. A structure is designed for its contents. Division into normative hierarchies does not just express the distinction between a substantive legal rule (a law) and the methods of implementation and legal procedures (secondary legislation). The apex of the normative pyramid (the Basic Law) is the statutory expression of the institutional values of our fundamental political and social views. It is the repository not only of the definitions and power divisions among the central branches of government, but also for the bill of human rights. It proclaims and protects those rights that make us into a society premised on liberty, human dignity, and equality, and expresses the values of the State of Israel as a Jewish and democratic state. As such, the enactment of two new Basic Laws is an important stage in the development of a constitution, and in the transformation of values that constitute part of our common law, as an expression of precedent, into statutory law of privileged and unique status. In my minority opinion about twenty years ago in CA 723/74 [6], I addressed the issue of the meaning and interpretation of the basic rights that form part of our common law. As written there (ibid: ­294-295):

The absence in Israel of a unique piece of legislation of preferential legal status that embodies its constitutional principles does not mean that we have no statutes with constitutional content, or that constitutional legal principles defining the basic rights of man and the citizen are absent from our system of law. The law in Israel embraces, according to our understanding and concepts, basic rules concerning the existence and protection of the liberties of the individual, even before the proposed Basic Law: Human and Citizen’s Rights is enacted.

The new draft Basic Law is intended to formulate principles and to designate their boundary lines. Its central task is to fix them firmly in statute so as to ensure their protection against the ravages of time. Its purpose is to express the values by which the ordinary citizen should be educated and to stand in the way of those who would seek to trespass on his rights. But even now, basic rights are protected in our basic legal conception, and form a substantive part of Israeli law. First and foremost among these is freedom of expression. It is no secret that the integration of these rights into our law derives from the system of government that we covet (H.C. 73/53, 87/53, Kol Ha’Am Co. v. The Minister of the Interior [3], at p. 876), but the obligation to honor them in practice is not merely an expression of political or social morality, but has legal status.

Any limitation of the boundaries of such a right and of its scope, which arises from legislation, will be narrowly construed so as to give the aforesaid right maximum effect and not to restrict it in the slightest beyond what is clearly and expressly required by the legislature’s words (HCJ. 75/76, “Hilron” v. The Fruit Production and Marketing Board, at p. 653). Freedom of expression and a provision of law that limits it do not enjoy equal, identical status, but rather, to the extent consistent with the written law, one should always prefer the maintaining of the right over a provision of law that tends to limit it. In sum, the standard for protecting freedom of expression as the primary consideration when it clashes with another right should be given full expression not only when the legislature enacts the law’s provisions, but also in the interpretation of the law and the application of its provisions in circumstances in which its substance and effect are tested in practice.

See also FH 9/77 Israel Electric Corporation, Ltd., et al v. “Ha’aretz” Daily Newspaper Ltd, [16], following the earlier minority opinion in HCJ 75/76 [5] and in FH 27/76 Hilron” v. The Fruit Production and Marketing Board [17], which discussed a basic right similar to the subject under discussion – freedom of occupation.

 

The Source of Constituent Authority

30. (a) The question deriving from our comments above, and which now requires our attention is whether Basic Law: Freedom of Occupation, and similarly – Basic Law: Human Dignity and Liberty, are located at the apex of the normative hierarchy, commanding the power to define what is permitted and what is forbidden in regular primary legislation.

(b)   Methodologically, it would be appropriate to begin with a preliminary question of general application beyond these two specific Basic Laws, and that is fundamental to the entire doctrine of a normative hierarchy. The question asks what is the source of the Knesset’s authority to create acts of supra-legal standing, and to enact laws that limit the scope of the Knesset’s authority to enact regular laws in the future, or Basic Laws of specific content or significance. The principle of legality states that in the absence of the authority to enact a normative act of defined content, a body is powerless to create it. An administrative agency cannot enact a law. Were it to draft a normative act, which it calls a “law,” such an act would lack the normative effect of a law. The reason is that the administrative agency lacks the authority to enact laws. The Knesset alone is the legislative branch, and it enacts the laws. This brings us back to the original question: What is the source of the Knesset’s authority to create legislative acts of differing hierarchical levels, in other words, secondary legislation, primary legislation, and constitutional legislation. Is there any basis for the analytical thesis that the Knesset lacks the legal power to frame a constitution, or any other supra-legal legislation that is normatively superior to regular legislation? 

(c) The second question pertaining to the examination of the Knesset’s constitutional authority is whether the Knesset has the authority to limit its own authority and that of subsequent Knessets by passing legislation of a supra-legal character, applicable to constitutional and regular legislation of the Knesset, and thereby limit the Knesset’s legislative authority in the future.

(d) An examination of these issues requires at least a cursory review of our constitutional history, to which the following comments are devoted.

31. (a) The Declaration of Independence

The declaration of the establishment of the State of Israel on 5 Iyar 5708 (14 May1948) – the Declaration of Independence – was a political act of legal import, under both public international and municipal law. It was promulgated by the People’s Council that convened on the eve of the State’s establishment. The Declaration of Independence related to the establishment of initial governmental authorities, and stated, inter alia, that:

‘WE DECLARE [emphasis in source – M.S] that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, (emphasis mine – M.S ). The People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called Israel

The People’s Council became the Provisional Council of State and the People’s Administration became the Government until the establishment of elected bodies pursuant to the constitution which was to be adopted by the elected Constituent Assembly.

The Provisional Council of State became the first parliament of the independent state, and the Government was responsible to it (under s. 2 of the concluding section of the Law and Administration Ordinance). The Provisional Council of State was the supreme body, with unlimited authority. In the words of Prof. H. Klinghoffer “The Establishment of the State of Israel: Historical – Constitutional Survey” Klinghoffer Volume on Public Law, Y. Zamir, ed.(Harry and Mishael Sacher Institute for Legislative Research and Comparative Law, 1993) (hereinafter – Klinghoffer Volume), 53, 74-75:

‘The absence of any statement of its powers is evidence that those powers were not intended to be limited. From this we may conclude that the basic norm of the State of Israel can be found in this statement, which transforms the People’s Council into the Provisional Council of State.’  

Professor Klinghoffer noted (ibid, at p. 75) that a literal construction of the Declaration of Independence would lead to the simultaneous existence of the Provisional Council of State and the Constituent Assembly. In the author’s view this structure was the result of an oversight on the drafter’s part. In any event, the Constituent Assembly (Transition) Ordinance, 5709-1949 clearly stipulates that the Provisional Council of State was to dissolve immediately upon the convening of the Constituent Assembly. The result was that the Constituent Assembly remained as the exclusive body that was also responsible for regular legislation. Had the constitutional structure continued to exist in the format established in 1949, then the same institution, i.e. the Constituent Assembly, would have been charged with both constitutional legislation and regular legislation.

As it turned out, the First Knesset enacted all of the regular laws as well as laws which were constitutional in terms of content and substance (such as the Law of Return, 5710-1950, or Women’s Equal Rights Law, 5710-1951).

  1. The Constituent Assembly

The provisions of the Declaration of Independence regarding the establishment of a constituent assembly, pursuant to the United Nations resolution of 29 November 1947, lead to the enactment of the Constituent Assembly Elections Ordinance, 5709-1949. The Provisional Council of State correctly regarded itself as authorized to initiate constitutional deliberations, and even appointed a committee for that purpose.

The elections to the Constituent Assembly were not held on the date scheduled by the Declaration of Independence, and the date was deferred by the Provisional Council of State (s. 1 of the Constituent Assembly Elections Ordinance, 5709-1949). The elections were held at the beginning of 1949 and as mentioned, by force of the Constituent Assembly (Transition) Ordinance, the Provisional Council of State was dissolved.  

The Constituent Assembly immediately changed its name, and in the first law that it adopted – The Transition Law – it determined that the parliament of the State of Israel would be called the “Knesset” and that the Constituent Assembly would be called the “First Knesset.” From this statutory provision as well as from statements of Knesset members it can be inferred that a single legislative body was created, to which the authorities of the Constituent Assembly were also transferred.

What this means is that there was a single parliament that adopted the role imposed upon the Constituent Assembly in the Declaration of Independence, assumed all of its powers and authorities, which were never actually defined beyond what was stated in the Declaration of Independence and in s. 3 of the Constituent Assembly (Transition) Ordinance (‘The Constituent Assembly shall, so long as it not itself otherwise decide, have all the powers vested by law in the Provisional  Council of State’), and which simultaneously continued to carry out its regular legislative functions.

As Professor Klinghoffer describes in the aforementioned article, at p. 75-76.

…This deviation from the Declaration of Independence was effected by force of a special law enacted by the Provisional Council of State, in other words: by legally changing the arrangement set forth in the Declaration of Independence.  And finally, the most important question: Did the Constituent Assembly comply with the directive of enacting a constitution, and if not – did it abandon the conception of legal continuity that was grounded in the Declaration of Independence.  The Constituent Assembly, which after convening changed its name to the “First Knesset,” complied with that requirement at the very most by its adoption of laws with constitutional content, the legal status of which was not superior to that of regular laws…the Declaration of Independence did not specify a period of time within which the constitution must be enacted, and the transfer of the powers of the Constituent Assembly to the Second Knesset and every subsequent Knesset was authorized by a special legal arrangement. This is a sort of continuing transfer, which, so long as it remains in place, confers upon the Israeli legislature, as a perpetual inheritance, the authority to enact a constitution (emphasis mine – M.S)

Professor Klinghoffer was clearly expressing the idea of a continuing, direct chain of authority, by which the authority of the Constituent Assembly in its entirety was transferred to the Israeli parliament, i.e. the Knesset as such, endowing it with the authority to enact constitutional legislation, in addition to its authority to enact regular legislation.  As such, the Knesset was vested with the authority to enact a constitution.

(c)   The Transition Law and the Harrari Decision

Needless to say, the Transition Law itself, which was the only legislative act of the Constituent Assembly in that capacity, did not bear the title of “Basic Law,” being no different at all from regular legislation in terms of its name, its method of adoption, or any other relevant aspect.  Nonetheless, its contents are constitutional. Hence, having discarded the title expressing its constitutional nature and creating constitutional continuity, the legislative authority at that time failed to establish any clear expression indicating the distinction between regular and constitutional legislation.

(d)  At no stage did the Knesset abandon the task of enacting a constitution for the State. The preeminent expression of the Knesset’s power, and its aforementioned task is the Harrari Decision of 13 June 1950, which provided:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter comprising a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State (Knesset Proceedings, vol. 5, at p. 1743 (emphasis mine –M.S.).’

 

It is unlikely that the Knesset members assumed that all the chapters would be prepared during the tenure of the First Knesset. Presumably they understood that this was an ongoing enterprise. Returning to the legislative history as expressed in the Knesset protocols, there are grounds for assuming that most of them were interested in that continuity. This found expression in the provisions of s. 5 of the Second Knesset (Transition) Law, 5711-1951, that provided that the Second Knesset and its members were to have all the powers, rights, and duties which the First Knesset and its members had. This provision was supplemented by s. 10, which provided that the Transition Law would apply mutatis mutandis to the transition to the Third and any subsequent Knesset for as long as the Knesset does not adopt “another law” concerning the matters dealt with by the Transition Law. The question of whether Basic Law: The Knesset fits the definition of “another law” for purposes of the aforementioned s. 10 is disputed.

Since then, the Knesset has adopted eleven Basic Laws. It functioned as a legislative system with integrated goals, authorities and powers that enabled it to concurrently exercise legislative powers for constitutional and regular legislation. The legislative authority is also the constituent authority and the latter is also the legislative authority. The conception of an integrated legislative system wherein one institution operates both as a regular legislative authority, and a constitutional authority, is mentioned by Professor Kelsen.

Professor Kelsen wrote: (H. Kelsen, Pure Theory of Law, (Berkley, 1967) 223): 

It is possible that the organ specifically and formally authorized to create, abolish or amend ordinary statutes having the character of a constitution is different from the organ authorized to create, abolish or amend ordinary statutes. For example, the former function may be rendered by an organ different from the latter organ in composition and electoral procedure, such as a constituent national assembly. But usually both functions are performed by the same organ. [Emphasis mine - M.S]

In other words, according to Kelsen, the same institution is capable of fulfilling two distinct functions (regular and constituent). This view is also taken by Prof Uri Yadin, the first head of the legislation department of the Ministry of Justice, and thereafter  head of legislative planning, in a lecture given on 6 March 1949 (See “On the Transition Law,” Uri Yadin Volume:, The Man and His Work, vol. I, A. Barak and T. Shpanitz, eds.  (Bursi, 1990) (hereinafter – Uri Yadin Volume, at p. 93-94):

We now proceed to the sections of the Transition Law dealing with the rules governing the Knesset. The first section provides that the parliament of the State of Israel will be called the “Knesset” and that the constituent assembly will be referred to as the “First Knesset.”  While it would seem that these sections deal only with issues of language, in fact their import extends beyond conferring appellations. The Constituent Assembly, elected as a single-task institution, was given the same name as the parliament, which was a permanent institution to be elected on a periodic basis.  This largely divested the Constituent Assembly of its temporary character, and it was incorporated as the first link of the chain of parliaments that would operate as the legislative branch of the State [emphasis mine M.S.

In other words, the powers of the Constituent Assembly were subsumed within the powers of the legislative authority. In view of this, I unreservedly recognize the Knesset’s continuing authority to enact constitutional legislation.

The Doctrine of the Knesset’s Unlimited Sovereignty and the Doctrine of the Constituent Authority

32. (a) We now return to the question presented above: What was the source of Knesset’s authority to enact constitutional legislation? I will preface my remarks by mentioning that there are those who altogether deny the Knesset any authority to enact constitutional legislation. The unique element of a constitution is that it establishes the formats and the rules for what is permitted and forbidden in future legislation. According to this approach, the Knesset lacks the authority to establish limitations that are prospective, or even limitations that require the votes of more than a majority of the Knesset members.  I do not accept this approach.

I have read the opinion of my honorable colleague, Justice Cheshin, who attempts to establish a theoretical basis for his thesis that the Knesset lacks constituent authority, and that as a result, it is similarly powerless to enact statutory provisions that curtail the legislative branch with respect to its future legislation, as detailed and elaborated in his opinion. I cannot accept his approach.  Forty five years have elapsed since the aforementioned Harrari Decision, in which the Knesset charged its Constitution, Law and Justice Committee to prepare, in its own words, a proposed constitution for the State, which would be composed chapter by chapter. During the intervening years, the Knesset has enacted eleven Basic Laws in the framework of fulfilling its constitutional mission. To cast doubt today on the Knesset’s legislative-constitutional authority contradicts, in my view, the most reasonable legal interpretation of the State’s parliamentary development and the law that has developed in the interim. Furthermore, the view that all constitutions are formed in accordance with same, standard format, dictated exclusively by the nature of the subject at hand, cannot be reconciled with the facts of diverse constitutions emerging in each state as the product of its own discretion, considerations and specific circumstances. There are no standard formats in this matter.

 (a) The Knesset defines its own powers and capacities, in accordance with the mandate granted to it by the nation, a mandate renewed in periodic general elections, conducted in accordance with constitutional legislation. The demarcation of the powers and capacities of the Knesset is anchored in the life of the State and the law. The Knesset does not derive its power from any external supra-statutory legislation (cf. e.g. A.V. Dicey Introduction to the Study of the Law of the Constitution, 8th ed. (London, 1924) 106.  It is the Knesset that establishes the various categories and fields of legislative provisions from beginning to end. The critical views of Knesset members regarding the course and mode of the framing of Israel’s constitution, cited by my honorable colleague should be viewed against the background and in the context of the time and place in which they were expressed. One must not forget that the majority of Knesset members who were critical at the time of the slow pace of the framing of the complete constitution, or even of the failure to execute a single, immediate constitutional act, subsequently gave their full support to the enactment of Basic Law: The Knesset and the other Basic Laws, as chapters in the gradually emerging constitution, in their belief in the Knesset’s power to enact constitu­tional legislation, according to its choice and decisions.

 

To my mind there is, at the present stage, no legal justification to support either the diminution of the Knesset’s powers, or the assertion regarding any inherent limitation of their scope:

 

(b) On the other hand, there are approaches that view the Knesset as authorized to enact constitutional legislation. The constitu­ent authority of the Israeli legislature stems from the power consolidated in its hands during the course of its legislative history, from the basic norm that emerged in the early stages of the State’s existence, and from legislation that charted Israel’s constitu­tional path in framing a constitution, first as a single act and thereafter as a task to be executed in stages.

 

(c) Two principle doctrines acknowledge the Knesset’s authority to enact constitutional legislation. The first is the doctrine of the Knesset’s unlimited sovereignty. The second is the doctrine of constituent authority. The two doctrines are not exclusive. There are others, some variations of one of them, and some separate doctrines that stand alone. I will devote a few words to each of the two aforementioned theories.

 

(d) The doctrine of the Knesset’s unlimited sovereignty proceeds from the assumption that the Knesset is the supreme legislative authority and that its powers are unrestricted, barring such limitations as it may estab­lish for itself. No legislative body is superior to the Knesset, and it is empowered to enact any law, whether constitutional or regular. Its authority also comprises and integrates the authority to enact constitutional legislation that was not exhausted from the establishment of the State and subsequent to the elections for a Con­stituent Assembly.

 

In other words, the Knesset, as such, consolidates and merges all the powers of the Provisional Council of State, the Constituent Assembly, the legislature estab­lished according to the Transition Law, of the Second Knesset (Transition) Law, and of Basic Law: The Knesset. All of these were transferred to each and every Knesset and thus exist and are maintained.

 

Inter alia, all the powers of the constitutional legislature were transferred to the Knesset. Its legislation creates the various normative hierarchies. The Knesset operates in that capacity without any internal allocation or division into different institutions based on one body’s supremacy over another. The Knesset has discretion to decide whether its legislative product will belong to the supreme constitutive level or the regular legislative level, and in enacting constitutional legislation, by virtue of its unlimited powers, it also establishes the supremacy of the constitutional law over the regular law, and is authorized to determine conditions applicable to regular legislation for the purposes of adjusting it to the norms determined in the constitutional legislation.

 

All legislative acts are performed by the Knesset in that capacity. It is the supreme and all-powerful legislative authority of the State. This is the monistic conception of the Knesset’s powers, as a monolithic body capable of performing various categories of acts, at its own discretion.

 

The Knesset’s powers are not truncated and disjointed from constitutional developments, but have always faithfully represented and reflected them. Its great, multifaceted powers are the result of its unifying the entirety of the powers transferred to it in the course of our constitutional history. It is not required to divide itself up, or change its image, form or legal status in order to exercise its broad powers.

 

Justice Berenson’s description is most appropriate: 

 

‘There can be no doubt that under this state’s constitutional regime, the Knesset is sovereign. It is empowered to pass any law, and to determine its contents as it sees fit.’ (CA 228/63 Azuz v. Ezer [18], at p.2547.

 

Incidentally, Justice Berenson’s demurer in that judgment with respect to the Knesset’s authority to invalidate a law, did not relate to an entrenched statutory provision, such as s. 4 of Basic Law: The Knesset. See the Bergman case [15], decided by a panel of which Justice Berenson was a member. 

 

Consequently, the Knesset is authorized to enact laws on two legislative levels, both on the constitutional level (a complete constitution or Basic Laws) and on the regular legislative level. As noted above, it also assumed the authority to enact certain forms of secondary legislation. In the framework of its unlimited authority, the Knesset is at liberty to determine conditions and qualifications that are applicable to future legislation, whether constitutional or regular.  This is our “constitutional arrangement” as anchored in Israel’s constitutional history, in its actual legislative development, and in the case law of this Court. Constitutional continuity has never been interrupted, and the Knesset has the authority to continue to complete the task of the Constituent Assembly which was nipped in the bud, and which by force of the Harrari Decision became the continuing and ongoing mission of the Knesset.

 

In summary, in my view the Knesset has the authority to enact not only Basic Laws, but even a complete constitution.

 

I also think that it is appropriate for it to do so, and fervently support it. In the framework of a symposium debate on the subject with Lord Diplock (M. Shamgar “On the Written Constitution” 9 Israel Law Review (1974) 467 at p.471) I wrote the following:

 

 ‘…the consolidation of the position of the Knesset as a supreme law-giver and the merger of the Constituent Assembly and the Knesset, decided on by the First Knesset, enhanced the supremacy of the Knesset.’

(e) The doctrine of constituent authority asserts that the powers of the Constituent Assembly were transferred to the Knesset that, it follows, alternatively wears “two hats” or “two crowns.” There are times when it acts as a constituent authority, superior in terms of normative status to the Knesset as a regular legislative authority. As a constituent authority the Knesset is competent to enact constitutional legislation. There are times when it acts as a regular legislative body, and as such it is – in the hierarchy of authority – on a lower level than the Knesset when acting as a constituent authority [see e.g.: C. Klein “The Constituent Authority in the State of Israel” 2 Mishpatim, (1970) 51; C. Klein, “A New Era in Israel’s Constitutional Law,” 6 Israel Law Review (1971) 376; C. Klein, “Special Majority and Implied Change,” 28 Ha-Praklit, (1972-73) 563; C. Klein, “Semantics and the Rule of Law – Reflections and Appeals on HCJ 66/77 Y. Rassler v. Chairman of Central Knesset Elections Committee,   9 Mishpatim (1978) 79; C. Klein, “Human Dignity and Liberty – Initial Normative Assessment” 1 Hamishpat (1993) 123).]

 

The constituent assembly doctrine finds expression in academic literature in two forms, or perhaps with two point of emphasis: In other words, it is a single doctrine, with different versions that give primacy to different aspects. Among its proponents there are those who view the separation between the constituent authority and the legislative authority not just as a functional separation but also as an institutional separation. On the other hand, there are those for whom the doctrine is based on a functional separation, creating different levels on the normative hierarchy.

 

The conception of institutional division was first expressed in the writing of M. Sternberg, in his essay, “An Additional Law or a Supreme Normative Layer, 16 Molad (1958) 284, 287), where he wrote:

 

Consequently, the collective of persons known as the Knesset also functions as a body known as the constituent body, functioning parallel to the Knesset itself, its fundamental objective being to frame a constitution’ [emphasis mine – M.S].

 

Apparently, Professor Akzin took a similar view in the aforementioned book, at p.40 where he writes:

 

…When the same group of people fulfils these two roles, they should be viewed as operating as two separate institutions….if we are unwilling to adopt such a “formalistic” view of this process, the singular character of the constitution as opposed to the laws may lose its significance.

 

I used the term “apparently” because the examples that the learned author later provides for his thesis might give the impression that the abovementioned description is more sharply defined than the factual foundation on which it rests. At all events, Professor Akzin’s aforementioned description relies on his theory of the correlation between the scale of legislative authorities and the institutional scale. In other words, each authority has an exclusive institutional correlate authorized to exercise that authority.  As explained above, I reject that approach.

 

According to the thesis presented by Sternberg and Akzin, the two institutions exist in tandem, or one as part of the other, and operate alternately as legislative authorities. In terms of its essence and normative classification, a legislative act is classified in accordance with the cloak (or “hat”) worn by the legislative authority at that time. What this means is that from time to time there is an institutional metamorphosis, dictated by the nature of the legislative material being dealt with by the legislature.

 

As opposed to the conception premised upon institutional division, there is another approach, according to which there is no institutional division, but rather a functional legislative division, which affects the position of the legislation on the normative legislative hierarchy. Under the alternative conception of the analytical foundations of constituent authority, the Knesset is a single institution that provides the anchor for both constituent authority and regular legislative authority. By virtue of the Knesset’s standing as a constituent authority, the Basic Laws were enacted. Consequently, they constitute the supreme norm in the light of which the constitutionality of a regular law is examined. The normative level reflects the nature of the function performed by the Knesset when it enacts the relevant legislative provision.

 

(f)   Of these two principle doctrines - the doctrine of the unlimited sovereignty of the Knesset and the doctrine of constituent assembly - I definitely prefer the first, namely, the doctrine of the unlimited sovereignty of the Knesset. To my mind, it more accurately reflects the legislative history, the accepted, recognized legal approaches and this Court’s case-law (see M.Shamgar, “The Knesset’s Authority in the Constitutional Realm, 26 Mishpatim (1995) 3).

 

I considered whether it would be appropriate in this opinion to cite the reasons, and by implication also the arguments for and against each of these two doctrines. I decided in the end that such a discussion is unnecessary in the present circumstances, because it is not necessary in order to examine the conformity of the amending statute to the provisions of the Basic Law. The main point is that, in my opinion, each of the two doctrines answers the question that I posed above, namely, whence the authority of the Knesset to produce legislative acts of constitutional standing. Therefore I leave this matter to be dealt with at the appropriate place and time.

 Self-Limitation of the Knesset

33. This brings us to a second, separate question, namely, whether the Knesset is competent to enact legislative provisions that limit its own future legislative powers. In my opinion, the Knesset holds every authority including the authority to limit itself by means of legislation. This is essential for the creation of a sound constitutional framework. In order to confer entrenched, elevated status upon fundamental rights there is a need to limit the future regular legislative authority and-to subordinate its legislation to the normative values that constitute the various fundamental rights. In the absence of the power of limitation, constitu­tional provisions that define fundamental rights are left with no stable protection for the future. At least since the Bergman case [15], we have acknowledged that this Court is competent to decide on the validity of legislation that contradicts or violates a Basic Law

The question of whether parliament can bind itself by entrenching laws in either a procedural or a substantive manner derives primarily from the classic English constitutional doctrine, which at the time rejected the theory that Parliament could bind itself or any subsequent parlia­ment. The clear enunciation of the theory that Parliament cannot limit its own legislative authority is often demonstrated by citing from the comments made by Lord Bryce, one of the ministers in the Gladstone government in England, who explained in an address to Parliament in 1886:

There is no principle more universally admitted by constitutional jurists than the absolute omnipotence of parliament. This omnipotence exists because there is nothing beyond parliament, or behind parliament… There is one limitation and only one upon our omnipotence and that is that we cannot bind our successors. If we pass a statute purporting to extinguish our right to legislate on any given subject, or over any given district, it may be repudiated and repealed by any following parliament – aye even by this present parliament on any later day’  [emphasis mine – M.S.].

 

These comments from Parl. Deb. (4th Ser.) 1218-1219 (1886 305) were cited for example by Prof. B. Nimmer in his study “The Uses of Judicial Review in Israel’s Quest for a Constitution” 70 Colum.L.Rev (1970) 1217, 1227-1228, and remained a firmly entrenched tenet of English jurisprudence until the last two decades. They are the foremost hallmark of the doctrine of Parliamentary Supremacy in accordance with the Dicey school (see for example, in the tenth edition Introduction to the Study of the Law of the Constitution (10th ed. London (1959) by E.C. Wade; G. Phillips “Constitution and Constitutional Law, 7th ed. 1963 London) and many others.

Echoes of this approach in Israeli academic writing can be found in the article of A. Likovski, “The Court and the Legislative Supremacy of the Knesset,” 3 Isr.L.Rev. (1968) 345, 364; See also: A. Likovski, Can the Knesset Adopt a Constitution which will be the Supreme Law of the Land, 4 Isr.L.Rev. (1969) 61; Prof. A. Rubinstein, “Israel’s Piecemeal Constitution” 16 Scripta Hierosolymitana (1966) p.201; Prof. B. Akzin, “Problems of Constitutional and Administrative Law,” International Lawyers Convention in Israel  (Jerusalem 1959) 163;

My answer to this problem is anchored in the Knesset’s power – as the sovereign assembly – to enact all manner of legislation, of any content, including legislative entrenchment (procedurally or substantive) of fundamental values of the State of Israel, and in so doing, to bind itself and any subsequent Knesset, subject to the power to amend or revoke that limitation in the manner stipulated by the Knesset. The distinguishing characteristic of these values is a broad social consensus. On the face of it, this theory entails the diminution of the absolute legislative power of the Knesset, since by a single constitutional act one Knesset can limit both its own legislative power, and that of another Knesset. How­ever this is the classic constitutional paradox of the sovereignty of the legislature: assuming that the Knesset is sovereign, it is permitted to perform any act, including the imposition of limitations on the Knesset. In other words, the limitation of the Knesset detracts from the sovereignty of the Knesset. However, this effect is the result of the actions of the Knesset itself. It is the Knesset that legislates and in so doing it imposes limitations, and it is the Knesset that is authorized to remove the limitations on its power by means that it has established for itself.

From a logical perspective, the Knesset’s power to limit itself is a possible and logical solution (Prof. Y. Englard, Introduction to Jurisprudence (Yahalom, 1991) at p. 110)  In fact :

Nothing prevents a legal norm from relating not only to particular forms of conduct of people but also to its own validity and the manner of its change. Just as the legislature can determine the limits of applicability of a norm in terms of time and place, it can determine that a particular norm cannot be repealed or changed, whether by itself or by any other entity (ibid, at p. 110-111).

The issue was also addressed by Professor Hart in his book The Concept of Law (2nd ed. Oxford, 1994) at p.149, where he states:  

Under the in­fluence of the Austinian doctrine that law is essentially the product of a legally untrammelled will, older constitutional theorists wrote as if it was a logical necesssity that there should be a legislature which was sovereign, in the sense that it is free, at every moment of its existence as a continuing body, not only from legal limitations imposed ab extra, but also from its own prior legislation. That Parliament is sovereign in this sense may now be regarded as established, and the principle that no earlier Parliament can preclude its “successors” from repealing its legislation constitutes part of the ultimate rule of recognition used by the courts in identifying valid rules of law.

 

It is, how­ever, important to see that no necessity of logic, still less of nature, dictates that there should be such a Parliament; it is only one arrangement among others, equally conceivable, which has come to be accepted with us as the criterion of legal validity. Among these others is another principle which might equally well, perhaps better, deserve the name of ‘sovereignty’ This is the principle that Parliament should not be incapable of limiting irrevocably the legislative competence of its successors but, on the contrary, should have this wider self-limiting power. Parliament would then at least once in its history be capable of exercising an even larger sphere of legislative com­petence than the accepted established doctrine allows to it. The requirement should be that from the moment of its existence Parliament should be free from legal limitations including even those imposed by itself, is, after all, only one interpretation of the ambiguous idea of legal omnipotence. (emphasis mine – M.S.)

According to Professor Hart a system in which the parliament is authorized to limit itself is an even better reflection of the concept of “sovereignty,” which is the adjective he uses when relating to the [English] Parliament. In other words, according to Professor Hart, a parliament that is also authorized to limit its power by force of its own legislation gives expression thereby to its unlimited power and authorities, which stem from and within itself, and not by force of any other external abstract hierarchy.  According to Professor Hart, the Knesset’s power to limit itself need not flow from another body, of a higher institutional status, but rather can stem from the same institutional source, i.e. from the parliament as such.

 

The border line of the Knesset’s power to limit itself is a function of constitutional policy. The solution presented here is that the Knesset is permitted to limit itself in accordance with its own discretion. It can restrict both the form of the legislation and the content of legislation. The judicial branch has given legal effect to the Knesset’s desire to restrict its power.

 

Furthermore, Dicey’s classical doctrine that parliament cannot limit itself has lost ground even in the country of its conception (see P. Craig, “Unitary, Self-Correcting Democracy and Public Law,” 106 L.Q.Rev. (1990) 105). In other words, the English system – a constitutional system from which we have drawn extensively – imposed restrictions on the legislative power of the legislature. These restrictions were imposed in the framework of the United Kingdom ratifying the European Communities Act, 1972 and especially by reason of sections 3 (1) and 4 (2).  In case law, see: Factortame Ltd. v. Secretary of State for Transport (No. 2 (1991) [102], at 108; MaCarthy Ltd. v. Smith (1981) [103], at 200. English academic writing on the English law on this point is rich: see e.g.: G. Winterton, “The British Grundnorm. The Parliamentary Supremacy Re-Examined” 92 L.Q.Rev. (1976) 591.  Professor Akehurst provided the following summary of the legal position in England (“Parliamentary Sovereignty and the Supremacy of Community Law,” The British Yearbook of International Law – 1989 (Oxford, 1990) 351, 357, in the following words:

 

English courts will apply an act of Parliament which expressly states that it is intended to violate or repudiate a rule of community law, or to repeal, amend or limit the application of the European Communities Act; but in all other cases they will recognize the supremacy of community law over the sovereignty of the British Parliament. (emphasis mine – M.S.)

As stated, the subordination of the English legislature to normative provisions that curtail its legislative power was done by force of the Parliament’s own legislation. English law recognizes a provision of superior normative standing, its supremacy having been conferred by the legislature in the wake of England’s joining the European Community.  All the same, the supremacy is relative in the sense that the legislature can override it by force of explicit legislation.  Similarly, the Knesset, too, can override the standing and the content of a constitutional provision by force of later constitutional legislation, or legislation enacted by force thereof, that complies with the conditions and qualifications specified in the constitutional legislation. Naturally, the English constitutional arrangements are not the same as ours. Nonetheless, in this context I would like to draw attention to s. 8 of Basic Law: Freedom of Occupation.  Here, too, we find a situation in which if the language of the later legislation is explicit, the self-limitation of the legislation does not create a constitutional barrier. 

 

The source of the Knesset’s competence to submit its own legislative power to substantive limitations may be derived from the doctrine of the constituent assembly or it may be derived from the doctrine of the inherent unlimited authority of the legislature to enact any law, including a law whereby it limits itself. Both doctrines lead to the conclusion that our House of Representatives has authority in the constitutional realm, that is: in principle, it is within the Knesset’s power to frame a constitution and even to demarcate the contents of future legislation, and this circumscription complies with the principle of legality.

 

      I made my comments above to show that the doctrine by which the Knesset is unable to limit itself, for example by way of a requirement of an entrenched majority, also had its supporters in our own legislature and scholarly literature. The scholarly sources of the opponents of the Knesset’s power of self-limitation derive from the English legal tradition, which has itself changed in the interim in its own way..

 

Self – Limitation in Case Law

34.(a) Our constitutional tradition supports the proposition that the Knesset is empowered to limit itself with respect to fundamental issues. It can limit itself on a formal level in terms of the method of adopting a new law (such as a requirement of a special majority – s. 4 of Basic Law: The Knesset, and sections 9 (a) and 34 of Basic Law: The State Economy; s. 54 of Basic Law:  The Government of 1992; sections 44 and 45 of Basic Law: The Knesset; s. 42 of Basic Law: The Government of 1968, and s. 56 of Basic Law: The Government of 1992; s. 25 of Basic Law: The President of the State; s. 22 of Basic Law: The Judiciary). The limitation may occur on a substantive level (for example, s. 4 (opening words) of Basic Law: The Knesset or s. 4 of Basic Law: Freedom of Occupation).

(b)   Case-law has not challenged the proposition that the Knesset has the power to issue normative acts with supra-legal status.  This Court adjudicated the subject of the entrenched provisions of s. 4 of Basic Law: The Knesset in the Bergman case [15], and the subject arose again in HCJ 246/81 Derech Eretz Association v. Broadcasting Authority (hereinafter – the Derech Eretz case) [19]. Section 4 of Basic Law: The Knesset came to the fore once again in HCJ 141/82 Rubinstein v. Knesset Speaker (hereinafter – Rubinstein  [20]. In HCJ 142/89. Laor Movement v. Knesset Speaker,  on page 571 Deputy President Elon stated that by force of its constitutional sovereignty, the Knesset had the authority to pass any legislation that it deemed appropriate, and we have no license to question the legislative act.

In the Laor case [21], my distinguished colleague President Barak noted that the entrenchment bestowed on the provisions of s. 4 of Basic Law: The Knesset ‘is binding in our legal system, because we acknowledge the Knesset’s authority to act as a constituent authority and to prepare Basic Laws that will become the various chapters of the State Constitution’ (ibid,  at p. 539). Nothing in that paragraph contests the Knesset’s authority to establish entrenched provisions in the constitutional realm, or the Supreme Court’s power to invalidate a law that contravenes an entrenched provision (see my comments in HCJ 669/85 Kahana v. Knesset Speaker [22]). 

35.  In my view, based on all of the above we can conclude that our constitutional tradition has in fact endorsed the Knesset’s power to limit itself, and in fact the Knesset’s self-limitation has merited sovereign approval, in the first stage by formal self-limitation and at the second stage by substantive limitation.  With respect to formal self-limitation, the first guiding rule is the Bergman [15] rule. A law presuming to violate the principle of equality that was not adopted by the required majority is defective, and subject to a constitutional remedy. The legislative authority – the Knesset – accepted this Court’s ruling in Bergman[15]. It removed the inequality that affected the new lists participating in the elections, and passed the Elections Financing Law, 5733-1973, together with the Elections to the Knesset (Confirmation of Validity of Laws), 5729-1969. In the course of the years, a constitutional custom and understanding has been established that the Knesset is endowed with the power of self-limitation with respect to formal aspects. This constitutional custom has the merited seal of approval of all of Israel’s branches of government – the legislative branch, the executive branch and the judicial branch (Derech Eretz [19], Rubinstein [20], Laor [21]. 

The recognition of the Knesset’s ability to limit itself on the formal level led to the conclusion regarding the power of the Knesset to limit itself on the substantive level. Indeed, rationally, there is no room to distinguish between formal and substantive limitations. As Prof. Nimmer correctly pointed out in the article cited above, at p. 1231:

 

            Logically, there can be no ground for distinguishing between the powers to fetter future parliaments substantively and procedurally, either there is power to do both or there is power to do neither (emphasis mine – M.S.).

 

At the same time, the limitation is not unrestricted. Patently, boundaries must be imposed on the extent to which the legislature may be fettered. It is not necessary to delineate these boundaries here, as there is consensus that in relation to basic rights such as those found in Basic Law: Human Dignity and Liberty – no difficulty is posed by the fundamental recognition of substantive or content-related limitation. In other words, we do not need to delineate these boundaries for the purpose of the discussion before us, and we may leave this issue open. In any event, on one hand, it is possible to take into account fundamental principles of our system as a Jewish and democratic state. On the other hand, tension exists between the principle of protection and the stability of fundamental principles and the need for flexibility. These and other arguments are serious and persuasive. Thus, for example, there is a view which holds that broad and substantive fettering of the Knesset may violate the principle of majority rule to an inappropriate extent (for details see R. Gavison, “Controversy over Israel’s Bill of Rights,” 15 Isr. Y. H. R. (1985) 113, 127).

 

Summing up this point, there is no logical obstacle to the Knesset limiting itself procedurally or substantively. Likewise, in so far as concerns fundamental rights and the principles of our constitutional regime, there is currently no legal or substantive hindrance or indeed obstacle of a legal policy or constitutional nature precluding the Knesset from limiting itself procedurally or substantively.

 

Summary regarding constitutional legislation

 

36. In summary, the phenomenon of Basic Laws in our legal system, viewed precisely discloses the following: the Knesset pursues a constitutional program. This program is being executed on a chapter by chapter basis. The Basic Laws form the constitutional infrastructure of the State of Israel. Today, most of their provisions do not possess normative supremacy by virtue of their own status, albeit they are “constitutional laws” by nature and description. The Knesset may decide, even at present, that some of these Laws or parts of them will possess normative supremacy. It did so, for example, in Basic Law: Freedom of Occupation. It was also entitled to do so in Basic Law: Human Dignity and Liberty, which is the twin brother of Basic Law: Freedom of Occupation and some of the provisions of which (Section 1 and the amendment to Section 8) were adopted on 20th Adar 5724 (9.3.94) as part of Basic Law: Freedom of Occupation of 1994.

 

The methodology of constitutional legislation

 

 

 

 

37.  (a) Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty were born together, and it is possible to learn about one from the other, both in terms of similarities and in terms of disparities.

(b)   Basic Law: Human Dignity and Liberty does not contain a simple and direct entrenchment provision such as that found in s. 7 of Basic Law: Freedom of Occupation. In order to classify Basic Law: Human Dignity and Liberty we must consider the general interpretive sources that are ordinarily available to us. First, it is titled “Basic Law,” and as such it is directly connected to the Harrari decision. This per se is sufficient to categorize it.

Following the Harrari decision, legislation was formulated in this country bearing the title “Basic Law.” This heading clarifies the status of the law. In the absence of such a sign of recognition, is it possible to turn to an examination of the specific law in order to try and learn about its constitutional nature from its language and its contents, including from its status, purpose and objectives? Is it perhaps the case that there can be no constitutional provision save one that bears the title “Basic Law”? According to every legal and historical thesis, the Transition Law was enacted by the Constitutive Assembly. It does not bear the title “Basic Law.” Is it a constitutional provision?

What is the status of the Law of Return and the Women’s Equal Rights Law that were enacted by the First Knesset, which directly and expressly wielded the powers of the Constituent Assembly? Both are of a manifestly constitutional nature; however, do they form part of our constitutional legislation?

These are difficult questions, but I shall leave them aside as not pertinent to the present case. Nonetheless, it is appropriate to set out a number of guidelines for future constitutional legislation, as even if we assign the enactment of a constitution to a constituent authority, we are still left with the question of the line which that authority must follow when identifying appropriate issues for inclusion in a constitution and the method of legislation and substantive classification that it must adopt.

38.  (a) First, there are a number of principal characteristics which distinguish a constitution from an ordinary law. A constitution deals with fundamental principles. It seeks to accord the principles a guiding status in so far as concerns other legislation and the acts of the state authorities in general. This principle is known in German constitutional theory as Vorbehalt Des Gesetzes (see Sections 1(3), 20(3) and 79(3) of the German Basic Law; New Challenges to the German Basic Law, C. Starck, ed. (Nomos,   1991) 162; R. Herzog, Staat und Recht im Wandel (Keip, 1993) 150. The constitution is the outcome of the will of the nation, and accordingly it is generally adopted, in other legal systems, in a unique one-time process. A constitution is occasionally characterized by relative inflexibility in relation to ways of amending it. A constitution is occasionally characterized by limitations on the possibility of infringing rights protected by it (and on occasion even by the absence of any possibility of “infringement”). Nonetheless, there are systems, such as that of New Zealand, in which the bill of rights does not have special status compared to ordinary legislation.

Second, the language of a Basic Law itself should indicate that it has a special normative status. For example, if a law states unequivocally that it has special or entrenched constitutional status, then we are dealing with a law possessing formal constitutional status (i.e., possessing normative superiority relative to ordinary legislation). This is also true if the law establishes exact conditions for the validity of a law which seeks to infringe a protected right. In other words, a Basic Law’s attitude, revealed in its contents, regarding its own status carries paramount weight in determining the normative classification of the Basic Law.

Put differently, a constitution possesses certain substantive aspects (the structure of the regime, fundamental rights and principles) and certain fundamental aspects (such as the manner of adoption and amendment of the constitution, the name of the law, its language, style, formulation, concepts). A constitution is characterized by the conciseness of its formulation. A constitution is characterized by abstractness.

Third, it is possible to examine the manner in which the law is integrated into the constitutional structure of the system. Constitutional structure is examined in the light of the constitutional history. It is examined through the constitutional acts performed by the Knesset. A constitutional law serves a certain purpose – it is designed to alter a certain normative reality. Understanding the law requires that we examine the legal situation that the law is intended to change. We must aspire to realize its purpose. If it is a Basic Law, understanding it requires that it be situated logically and harmoniously within three primary circles. The broad, external circle is that of the fundamental principles of our system. The second circle is that of constitutional legislation – the “Basic Laws.” Our narrow specific circle is, in the present case, the integration of Basic Law: Human Dignity and Liberty with its twin – Basic Law: Freedom of Occupation – within our constitutional system.

These two Basic Laws are the first in the bill of rights (as distinct from the institutional Basic Laws). They entered our legal world in close proximity in terms of time and circumstances, and they were even amended concurrently. To a large extent, therefore, they coexist. It is particularly important that they be interpreted harmoniously.

Fourth, an understanding of the substance and purpose of Basic Law: Human Dignity and Liberty requires that appropriate weight be given to the legislative intent and the constitutional history of the Basic Law. The constitutional history and legislative intent are discerned from the legislative history and incarnations of the bill, from hearings in the Knesset, from the changes introduced into the Basic Law during the second and third readings in the Knesset, and from the law’s record after its enactment. Special importance must be attached to the legislative intent in the present circumstances. These remarks are not directed at the literal interpretation of any particular idea but to the overall concept.

The legislative will, in so far as it can be ascertained, should provide the starting point. The difficulties in ascertaining it are indeed many, but we should not be tempted to exaggerate them. In most cases, it is at least clear what the legislature did not want. (Prof. A. Levontin, “Interpretation: Climes and Synthesis,” Klinghoffer Volume, at pp. 269, 277-278).

From a determination of the characteristics of the legislation we now turn to the tests applicable to the Basic Law before us. Does it establish statutory arrangements that reflect its place on the normative hierarchy, or will its protections of fundamental rights sway in every wind in so far as variation or infringement of its provisions? Is it similar, in this sense, to the provisions of most of the Basic Laws that preceded it, which lack entrenchment clauses?

Basic Laws: Variation and Infringement

39. (a) The Basic Laws form the constitutional infrastructure of the State of Israel in the spirit of the Harrari decision and its realization. Had the issue of “variation” arisen in the present case, i.e., had the Amending Law been intended to change the Basic Law, I would immediately have presented the principle whereby, according to correct constitutional theory, variation of a Basic Law must always be effected by a Basic Law. The concept of a normative constitutional hierarchy presented above leads to the conclusion that a more highly positioned statute cannot be varied in form or content by legislation lower in the constitutional hierarchy. This is not true of the converse position. In other words, legislation higher in the constitutional hierarchy can amend a statutory provision lower in the constitutional hierarchy. In this context, the issue of “implied amendment” may arise. However, I shall not address that issue, and will leave it for the appropriate opportunity. The same conclusion emerges from the practice of the Knesset. In this regard, note should be taken of the amendment to Basic Law: Human Dignity and Liberty that was effected in 1994 by means of Basic Law: Freedom of Occupation.

As mentioned, we are not concerned here with a “variation.” The question arising concerns an “infringement.” Each of the Basic Laws sets out express provisions in regard to possible infringement of a fundamental right: Sections 4 and 8 of Basic Law: Freedom of Occupation and s. 8 of Basic Law: Human Dignity and Liberty. First, it is necessary to examine whether there is an infringement of a fundamental right. If the answer is affirmative, then did the law comply with the conditions of the limitation clause or not? What is the outcome where there is an infringement that is incompatible with the requirements of the relevant limitation clause, which establishes the limitations and conditions for valid legislation notwithstanding its infringement of a fundamental right?

(b) The issue of “infringement” is a complex one. There are numerous alternative theories regarding the distinction between an infringement that is contrary to law and one that complies with the requirements of the law. I shall present them and indicate the one that I believe should be preferred.

The first theory holds that every ordinary law of the Knesset may infringe a right protected by a Basic Law. According to this view, the relationship between a Basic Law and every ordinary law is no different than the relationship between any two ordinary pieces of legislation of the Knesset. This first possibility is based on the Negev case [12] (at p. 642, opposite letter G). It follows from the Negev case [12] that an ordinary law (Standards Law, 5713-1953) may infringe a principle established by a Basic Law (Basic Law: the Government), when the relationship between the two is a regular interpretive relationship between two pieces of legislation (such as a special law vis-à-vis a general law). As Justice Berenson stated there: “the fact that the Standards Law is a special law compared to Basic Law: the Government which is a general law, accords the special law priority over the general law” (see also the Kaniel case [13] and the Ressler case [14]).

Judgment was reserved concerning the Negev case [12] in later case-law: in HCJ 119/80 OM 224/80 HaCohen v. Government of Israel [23] at p. 283, the question of the possibility of a provision of a Basic Law infringing a later ordinary law was left open (ibid, at p. 283). In my view, the Negev judgment [12] was not intended to refer to normative constitutional hierarchy but to the status of a specialized statutory provision versus the provision of a general law, and no more. Further, the judgment referred to a Basic Law that was not accorded any entrenched status whatsoever, either directly or impliedly by virtue of its provisions.

To summarize, the first possibility holds that, in the absence of a qualifying provision, there is no normative difference between an ordinary law that seeks to infringe a Basic Law and a Basic Law that seeks to do the same.

The second thesis holds that a Basic Law enjoys limited normative priority. According to this view, an ordinary law may infringe a Basic Law, however, this should properly be done by the Knesset in an express manner. An infringement of a law that is not expressly made has no legal force. A law that infringes a right protected by a Basic Law, without an express statement to that effect, does not have the legal force to do so. Such a law is subject to constitutional remedies by virtue of its unconstitutionality. This thesis has been accepted by a number of scholars. It has been approved by former Deputy President Elon, who stated that “reason dictates that a statute that seeks to vary a provision of Basic Law: Human Dignity and Liberty should state that it is made notwithstanding the provisions of this Basic Law, or some similar expression, but no more” (M. Elon, “The Way of Law in the Constitution: The Values of the Jewish and Democratic State in Light of the Basic Law: Human Dignity and Liberty,” 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 659, 662). This view has been accepted by Ms. J. Karp, (J. Karp, “Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), 323, 332). She writes that the supremacy of the Basic Law is merely relative:

This does not mean complete negation of the legislature’s power to override a Basic Law and dismantle it. In the same way as formal entrenchment does not restrict the legislature in relation to the content of its legislation, but only in relation to the process of variation (the requirement of a special majority), so too implied entrenchment is capable of restricting the legislature only in relation to the procedure of the variation, i.e., on condition that there is an express statement by the legislature regarding its desire to override the Basic Law (ibid, at p. 324; emphasis mine – M.S.).

In her opinion:

The Basic Law embodies a compromise: the court is indeed accorded the power to adjudicate regarding the invalidity of the law. However, this power is limited and ends in the face of an express statement by the legislature regarding its desire to deviate from the Basic Law… (ibid).

These comments are prima facie also applicable to the case of “infringement” only. Prof. Weisman too, accepts the second possibility as the correct interpretation of the validity of the infringement enacted in a Basic Law: “as the provision in Section 8 (of Basic Law: Human Dignity and Liberty – M.S.) is not entrenched (in the same way as the other sections in this Basic Law were not entrenched) it follows that the Knesset is not precluded from enacting statutes in the future, the contents of which cannot be reconciled with the limitations established in Section 8 of the Basic Law, provided that this is done expressly and clarification of this intention is given” (Y. Weisman, Property Law The Institute (Sacker Institute for Legislative Research & Comparative Law, 1993) 38; emphasis mine – M.S.).

The third possibility acknowledges the supremacy of a Basic Law per se and strengthens it. According to this view, a lawful “infringement” of the Israeli bill of rights is possible only if it meets the requirements consistent with the theory of a normative hierarchy. This thesis is premised on the unitary nature of the bill of fundamental rights, i.e., of Basic Law: Human Dignity and Liberty, Basic Law: Freedom of Occupation and other Basic Laws that may be enacted by the Knesset in the future in regard to basic rights. These Basic Laws will form a unified whole. The Knesset expressed its desire regarding the normative classification of the Israeli bill of rights. Following the Harrari decision, it presented these rights in the form of Basic Laws. In so doing, it assigned them to a constitutional normative hierarchy. A variation or infringement outside the framework of the limitation clause, which too forms part of the Basic Law, may only be carried out by a law of equal status, i.e., by means of a Basic Law or on the basis of an authorization in a Basic Law (see s. 8 of Basic Law: Freedom of Occupation of 1994, which not only illustrates this interpretive approach but also shows that the Knesset adopted it in practice).

These are the three principal options relating to the normative classification of a Basic Law in relation to the possibility of an “infringement” of a protected right that does not satisfy the conditions of the limitation clause.

My choice is the third option. I have already mentioned above that in view of the constitutional policy of the Knesset, as expressed in the two new Basic Laws, it is appropriate from now on to hold that no variation of any Basic Law may be carried out save by a Basic Law, and it would be right to hold that no “infringement” of a Basic Law may be carried out save by a Basic Law or by virtue of an authorizing provision therein.

We must now turn from presenting the general approaches to an examination of the question before us regarding the application of the specific Basic Law with which we are presently concerned to the Amending Law. For this purpose, we shall examine a number of provisions in the Basic Law.

The Basic Law versus the Amending Law

The Supremacy Clause

40.  (a) Basic Law: Human Dignity and Liberty does not contain a supremacy clause, nor does Basic Law: Freedom of Occupation. Basic Law: Human Dignity and Liberty does not even contain an entrenchment clause, like s. 7 of Basic Law: Freedom of Occupation, which provides that:

This Basic Law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset.

The absence of a clear supremacy clause does not compel the conclusion that the status of a Basic Law is equivalent to that of an ordinary statute.

A supremacy clause, had one existed, would certainly have been persuasive of the fact that the law possesses supreme status. The Canadian Constitution stated that it was ‘the supreme law of Canada.’ Section 52(1) of the Constitution Act, 1982, declares unequivocally: ‘The Constitution of Canada is the supreme law of Canada.’ This normative supremacy engenders the constitutional remedy whereby: ‘any law that is inconsistent with the clauses of the Constitution is, to the extent of the inconsistency, of no force or effect’ (Section 52(1) – final clause of the Constitution Act). The Canadian Constitution was taken into consideration by the drafters of the Basic Law (Karp, in the article cited above, at p. 331).

The German Basic Law (the Grundgesetz) provides in Section 20(3) –

‘Die Gesetzgebung ist an die verfassungsmäßige Ordnung, die vollziehende Gewalt und die Rechtsprechung sind an Gesetz und Recht gebunden.’

Translated:

The legislature shall be bound by the constitutional order; the executive and the judiciary by law and justice.

By the way, the German legal commentary is aware of the tautology expressed in the words “law and justice.”

Section 1(3) of the German Basic Law, which is similar to Section 11 of Basic Law: Human Dignity and Liberty and Section 5 of Basic Law: Freedom of Occupation, provides:

Die nachfolgenden Grundrechte binden Gesetzgebung, vollziehende Gewalt und Rechtsprechung als unmittelbar geltendes Recht.

Translated:

The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.

The German constitution subjects the activities of the legislature, executive and judiciary directly to the provisions of the constitution. It is undisputed that the German Basic Law manifestly embodies the notion of supremacy.

It is possible to adduce numerous additional examples (for example, s. 140 of the Austrian constitution of 1920 – the Bundes-Verfassungsgesetz (B-VG)).

(b)   As noted, Basic Law: Human Dignity and Liberty does not contain a supremacy clause. The Basic Law does not incorporate a provision to the effect that it is a supreme law in the State of Israel.  The draft bill Basic Law: Legislation, as may be seen from its history since it was first published in 1971 (see (1971), 27 HaPraklit 140; the draft Basic Law: Legislation of 1976; the draft Basic Law: Legislation of 1978; the draft Basic Law: Legislation of 1992; the draft Basic Law: Legislation of 1993) was intended to establish the subservience of ordinary legislation to basic legislation, however, the proposal has not yet developed into law.

(c)   The Basic Law that we are examining also does not contain a provision, as proposed, to the effect that “a law will not contravene a Basic Law save if passed in the Knesset plenum by the votes of two-thirds of the members of the Knesset and unless it expressly states that it is valid notwithstanding the provisions of the Basic Law” (s. 5(d) of the draft Basic Law: Legislation of 1992).

Basic Law: Freedom of Occupation states that a statutory provision that infringes freedom of occupation will be valid in certain circumstances, even if it is incompatible with s. 4 (i.e., even if it does not meet the requirements of the limitation clause). The explicit affirmative also implies its negative, namely that ab initio, a statutory provision that is repugnant to sections 4 or 8 of the Basic Law is invalid. Basic Law: Freedom of Occupation therefore addresses the question of the validity of laws that infringe a provision in a Basic Law (similar to the European Union Convention, Article. 177(B), Costa v. Enel (1964) [108] at 590). As we shall see below, a similar conclusion follows from the provisions of sections 8, 10 and 11 of Basic Law: Human Dignity and Liberty.

To summarize this point, Basic Law: Freedom of Occupation does not contain a supremacy clause, albeit it refers to the manner of its variation and the validity of infringing legislation. Basic Law: Human Dignity and Liberty does not contain a supremacy clause, but it refers expressly to the validity of infringing legislation and thereby designates a mandatory route and binding standards. In s. 8, this Basic Law defines the boundaries of possible infringement and thereby impliedly establishes its supremacy relative to infringing legislation.

Rigidity

41. (a) Basic Law: Human Dignity and Liberty does not enjoy rigidity. There is no express provision that a special majority is needed to vary the Basic Law. The variation is a statutory act by virtue of which the scope of protection accorded to certain rights varies for good or for bad. Indeed, we have already repeatedly clarified that the “variation” is distinct from the “infringement.” Variation undermines the right itself. “Infringement” does not vary the protected right. It merely enables the infringing statute to circumvent the constitutional remedy in given circumstances.

As noted above, in consequence of the ‘variation’ it is conceivable that the protection accorded to a right will be more restricted; for example, by amending the Basic Law by restricting its scope, repealing a particular provision in it or repealing the entire Basic Law. On the other hand, the protection can also become broader by reason of the variation, for example, by the addition of protected rights or by elevating the normative supremacy of the protected values.

(b) We have seen that there is no requirement for a special majority or for a special process to vary the Basic Law before us.

Subject to future legislation (such as Basic Law: Legislation), the process for changing a Basic Law follows the same stages of legislation as an ordinary law, i.e., a draft Basic Law is published in the same way as an ordinary bill. The draft Basic Law is enacted in three readings. Every Knesset member may table a Basic Law through a private member’s bill, in the same way as every Knesset member may table any ordinary private bill. The Knesset Regulations apply to the enactment of a Basic Law, just as to the enactment of an ordinary statute. Indeed, this is “the unbearable lightness of legislating and amending Basic Laws” (Dr A. Bendor, “Flaws in Enacting Basic Laws” 2 Mishpat uMimshal (1994), 443, 444). The absence of any element of rigidity is of interpretive significance. My distinguished colleague the President referred to the inherent importance of rigidity as a distinctive feature of a constitution. The rigidity of a constitution demonstrates its supremacy over an ordinary law, “so that in the event of a contradiction between the provisions of a constitution and the provisions of an ordinary law, the constitution will prevail (A. Barak, Judicial Discretion (Papyrus, 1987) 319).

For an illustration of the frequency of rigid provisions in a constitution it is possible to turn, for example, to the Constitution of the United States (Article V); the Constitution of Canada (Art. 52(3) of the Constitution Act, and Part Five of that Act); the Constitution of Australia (Art. 128 of the Commonwealth of Australia Constitution Act); the German Constitution (Art. 79 of the Grundgesatz für die Bundesrepublik Deutschland – the Basic Law for the Federal Republic of Germany, which creates absolute rigidity in regard to its provisions ); the Constitution of Ireland (Art. 48). Were it not for considerations of space, it would be possible to list a number of articles in each of the existing constitutions in order to demonstrate the approach to rigidity that each employs, whether by way of entrenchment or some other approach.

d) Rigidity as a Recognized Constitutional Characteristic in Case Law

With the establishment of the right to freedom of occupation in a Basic Law, it has achieved supra-legislative status. One of the distinguishing characteristics of this special status ... is the relative entrenchment of that right even against the mighty hand of the legislature (HCJ 3385/93, 4746/92 G.P.S. Agro Exports Ltd v. Minister of Agriculture [24] at p. 259).

Indeed, Basic Law: Freedom of Occupation is a typical constitutional creation, as stated s.  7 of that law states: “This Basic Law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset.” No similar provision exists in Basic Law: Human Dignity and Liberty.

42.  The relative weight of the absence of rigidity generated either by formal entrenchment or otherwise, is strengthened in the light of three arguments:

 a) First, the absence of entrenchment was not an error on the part of the legislature. The absence of entrenchment is conscious and deliberate. The draft Basic Law: Human Dignity and Liberty included a provision regarding formal entrenchment. This provision was not approved. It failed by a single vote during the process of voting on reservations preceding the final adoption of the Basic Law. In contrast, as noted, Basic Law: Freedom of Occupation incorporates a formal entrenchment provision. Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation are closely related. This relationship is substantive and chronological. “Substantive” – because these two normative creations deal for the first time with protected basic rights. “Chronological” – because these two creations evolved within the framework of the first specific process of legislation of a charter of human rights in our legal system (what Karp termed the “atomization” of basic rights, in her article cited above at p. 338). These Basic Laws were debated in the Knesset at around the same time, and were subsequently addressed in the same legislative process in 1994. The normative reality is that the Knesset chose to reject the proposed entrenchment of the Basic Law. This is a fact – the situation was not one of an oblivious legislature. Nonetheless, as noted, the law does contain additional provisions that are of significance in regard to the effect of other legislation that infringes its provisions.

b) Second, we explained that “variation” of the protected right (including its repeal or nullification) is a graver and more serious act in terms of its significance than “infringement” of that right. This is undisputed. Reason dictates that the actions required to “vary” the protected right are of greater significance than the actions required to locally “infringe” that right. On the assumption that the legislature is consistent and logical, it is difficult to believe that the converse will become true, so that the grave (the variation) will become simple (ordinary majority) and the simple (infringement) will become grave (special majority and express). In other words, the absence of rigidity in relation to variation has ramifications for the absence of rigidity in relation to infringement.

This point is worthy of elaboration. We have considered the requirement for a clear distinction between “variation” of the right and the possibility of “infringing” it. The logical constitutional structure is that the process of “variation” be more complex and intricate. This is the most profound infringement of fundamental principles and the structure of the system. In contrast, the logical constitutional structure requires that the process of “infringement” of a protected constitutional right be simpler than that of “variation.” It is difficult to accept the interpretive solution that “infringement” requires more severe conditions than “variation.” In contrast, a proposition to the effect that identical conditions are required for “variation” and “infringement” may be reconciled with a coherent constitutional theory (see the Bergman case [15]). However, the higher the hurdle facing an “infringement” compared to that of a “variation,” the weaker the logic of the interpretive solution. In other words, the more severe the legal requirements for an “infringement” compared to those applicable to a “variation” – the more the interpretive approach loses internal strength.

Third, a possible conclusion regarding the absence of rigidity is tied to our constitutional tradition prior to the enactment of the Basic Laws in 1992. To my regret, our constitutional approach has not yet adopted the thesis that the very labelling of an act as a “Basic Law” vests it, per se, with normative supremacy. Our system takes the view that a Basic Law that is not formally entrenched is almost indistinguishable – in terms of its formal normative status – from an ordinary law. I used the word “almost” because the Knesset has seldom varied a Basic Law by means of an ordinary law. Nonetheless, we gave examples above of how it enacted provisions in an ordinary law that conflicted with a Basic Law. Moreover, from our current and developing constitutional perspective, it cannot be said that the fate of a non-entrenched Basic Law is identical to that of an ordinary law for all intents and purposes. On the contrary, our Basic Laws form the basis of the constitution of the State of Israel. The Basic Laws treat of the structure of the state regime and its powers. Following the enactment of Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, the Basic Laws also treat of fundamental human rights in Israel. Consequently, I take the view that ‘in our interpretive approach, we must refer to the Basic Laws as “constitutional laws”‘ (Barak, in his book cited above, Judicial Discretion, at p. 520). The “constitutional plan” of the State of Israel, as I termed the realization of the ideal of constitutionalization, is the consolidation of the Basic Laws into a general, uniform treatise – ‘all the chapters together will constitute the Constitution of the State’ (the Harrari decision, at p. 1743). On the path towards this consolidation, Basic Law: Legislation will be enacted, and this will “immediately vest preferred status upon all the constitutional provisions in the Basic Law relative to any other legislation and protected or entrenched status from the point of view of the constitutional possibility of varying them or indirectly curbing the scope of their application” (M. Shamgar, “Legislation, Adjudication and Civil Rights,” 37 HaPraklit (1987) 5, 6).

However, in the present situation, in the absence of a statutory provision, the Basic Law, ipso facto, has no entrenched status. It enjoys no formal or inherent rigidity or supremacy. In the absence of statutory entrenchment, the prevailing perception has been that a statutory provision does not possess special, privileged status merely because of its inclusion in a Basic Law. Provisions that enjoyed supremacy were characterized by rigidity. The classic example in shaping our constitutional thinking was Section 4 of Basic Law: The Knesset.

43.  To summarize, Basic Law: Human Dignity and Liberty lacks the typical feature that accords supremacy, namely, an express statutory provision, whether as a provision in the Basic Law itself or a general provision in a Basic Law of general application, such as Basic Law: Legislation, which is in preparation. A constitution reflects fundamental principles. Fundamental principles are guiding rules of policy. Accordingly, they are characterized by stability and do not lapse and vary. The constitution is characterized by being entrenched against the winds of change. The interpretive outcome whereby we have before us a constitution that is open to modification by any majority is disappointing, as it does not appropriately express the constitutional logic and purpose that it should comprise. In other words, there is no doubt that the Basic Law is a constitutional act that is a chapter in the constitution being developed according to the Harrari decision, however, this alone is insufficient to decide that it is possible to invalidate any law repugnant to its provisions.

Nonetheless, as we have shown and shall see, there are other provisions in the Basic Law before us that grant it privileged, special status, and that compensate for the absence of other constitutional traits, as described above. We shall now turn to a discussion of these.

 

The Limitation Clause

44.Section 8 of Basic Law: Human Dignity and Liberty (“violation of rights”) provides that:

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

Section 8 of the Basic Law before us is a principal provision that treats of the normative status of the Basic Law

It is undisputed that this provision is of great importance insofar as concerns preventing possible attempts to infringe a protected right by secondary legislation. Until the adoption of the Basic Law, fundamental rights were protected against infringement by secondary legislation, by means of the case law alone. In the Mitrani case [7] I stated that ‘the fundamental objective is clear, namely that it is right and appropriate, from the point of view of the existence of the right to freedom of occupation, that only the words of the primary legislature may restrict it’ (ibid, at p. 352). If this is true in relation to freedom of occupation, it applies a fortiori to human rights. No restrictions may be imposed upon a fundamental right that derives from our being a “free society” ‘except under an express provision of statute’ (ibid, at p. 353). This principle has become rooted in our legal approach. The Basic Law anchored it in a “constitutional” law – a Basic Law; ‘there shall be no violation’ except by law.

However, the dispute does not revolve around the significance of the limitation clause in connection with secondary legislation. Possible disputes may arise in connection with the significance of the limitation clause in relation to primary legislation. Primary legislation that meets the conditions of the limitation clause does not, of course, pose a problem. The potential difficulty, and the source of the dispute that I seek to address revolves around a law that does not comply with the limitation clause. In other words, what is the fate of a statute that is inconsistent with the values of the State of Israel as a Jewish and democratic state? Take a statute which is compatible with the values of the State of Israel, but the goal of which is to advance an improper purpose – what is its fate? Take a statute that is compatible with the values of the State of Israel and the purpose of which is proper, but at the same time is not “proportional” – it violates a protected right ‘to an extent greater than is required’ – what is it’s fate?

 The answer is unequivocal. A literal reading shows that a statute incompatible with the conditions of the limitation clause does not have the power to infringe a protected right. Accordingly, it should not be accorded operative significance, and its validity should not be recognized if it purports to infringe a protected right. This interpretation follows the “plain meaning.” From the “affirmative” (the possibility of a infringement if the statute complies with the conditions of the limitation clause), it infers the “negative” (the absence of the possibility of infringement if the limitation clause is not complied with). Expressio unius est exclusio alterius – the set of “affirmatives” comprises all the cases in which it is possible to infringe a protected right. The “negative” constitutes all those cases in which it is not possible to infringe a protected right.

The very enactment of the provisions of s. 8 elevates the Basic Law to a higher status, from which we may critically observe and examine other, non-Basic legislation that treats of issues addressed by the aforesaid Basic Law. The aforesaid interpretive rule grants the Basic Law its vitality. This is particularly true when we seek to utilize the interpretive rule to achieve the far-reaching result whereby an “ordinary” law – enacted after the commencement of the Basic Law, and which does not meet the conditions of the “limitation clause” – is of no effect. In view of the language of s. 8, it is immaterial in this regard if this “ordinary” law was enacted with an “ordinary” majority or a “special” one. Likewise, it is immaterial whether or not this ordinary law states expressly that it was enacted “notwithstanding the provisions of Basic Law: Human Dignity and Liberty.”

The following is unequivocal: Whatever the language of a later ordinary law may be, if the law does not satisfy the “validity condition” (“limitation clause”) of the Basic Law, or it is not legislation of the appropriate normative level, i.e., a Basic Law – it has no force. The creation of the aforesaid normative barrier to legislative variation reflects the adoption of a broad substantive interpretation of constitutional legislation. We are acquainted with the comments of the late President Agranat that, ‘when the issue relates to a document that determines the framework of the state regime, the court must take a “spacious view” of the powers that the document enunciates’ (FH 13/60 Attorney-General v. Matana [25] at p. 442). A constitutional text must be interpreted from a spacious view and with the intention of giving force to the constitutional imperative embodied in it. Its construction should not be narrow, technical or formalistic, but  as broad as the horizon. The view must embrace the substance, which is reflected in the human rights that are at the heart of our constitutional principles.

45.  According to the plain meaning, the aforesaid s. 8 carries great weight. It says ‘there shall be no violation.’ We are trying to specify the normative character of the Basic Law. On our scales, the section weighs heavily in countering the absence of rigidity in the Basic Law.

The Validity of Laws Provision

46. Section 10 of the Basic Law is the only provision in the Basic Law that employs the language “validity of any law.” It provides that ‘This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law’ (emphasis mine – M.S.). The negative implies the affirmative. It follows that s. 10 impliedly provides that this Basic Law can affect the validity of any law (din) enacted subsequently to the entry into force of the Basic Law. This means that the Basic Law has the power to affect the validity of a law enacted after the commencement of the Basic Law. The very existence of this provision shows that the Basic Law is capable of influencing the “validity of a law,” as were it not for the fact that the Basic Law could influence the validity of a law there would be no need whatsoever for a provision preserving the validity of certain laws. In other words, it is only the power of the Basic Law – by its nature and related consequences – that compelled the establishment of a qualifying provision regarding earlier laws, such as that contained in the aforesaid s. 10.

The provision in s. 10 informs us that the validity of a “law” which is enacted following the commencement of the Basic Law is subject to judicial review according to the standards set out in the Basic Law. If a person were to argue that the intention to preserve exiting law underlying s. 10 is more restrictive and the section is directed solely at the interpretive rule whereby “an earlier law retreats before a later law,”  the answer would be that it cannot possibly be the legislative purpose. First, there is no evidence of this in the legislative record (e.g.  the Knesset Proceedings). Second, it is difficult to assume that this is the objective purpose of the Basic Law, for if it were, the law would appear valueless. According to this reasoning, a law enacted prior to the Basic Law preserves its validity, under s. 10, notwithstanding any provision in the Basic Law, whereas a law subsequent to the Basic Law supersedes the Basic Law, according to this view, because it is later. What, then, did the Basic Law add by its enactment? In my view, the provision in s. 10 informs us that the Basic Law possesses normative supremacy, as it can affect the validity of a law. It does not define the scope of the supremacy and its degree; this is dealt with by another provision of the Basic Law. Section 10 does not delineate the boundaries of the possibility of violation that ensues from this supremacy, but it is difficult for a faithful interpreter to dispute that it indicates normative supremacy.

The Principal Law is shielded from judicial review by virtue of the Basic Law. The Amending Law, i.e., the amendment to the Principal Law, which is the subject of our review, is subject to review by virtue of the Basic Law, i.e., the Basic Law has the power to violate the Amending Law, which was enacted after the Basic Law.

A further lesson may be learned from the “validity of laws” provision: the application of the Basic Law is immediate. The law is not directed entirely at the distant future, i.e., the date of consolidation of all the Basic Laws into a single, complete constitution. It is not an interpretive pillar-of-fire. The Basic Law has immediate operative effect. This is the rule in our legal system: upon publication in the Official Gazette, the law enters into force, if not otherwise stated in the law itself. The validity of laws provision reinforces this clear, inevitable conclusion. The Basic Law has immediate effect. It is not merely declarative.

The Respect Clause

47. Section 11 of the Basic Law provides that: “All governmental authorities are bound to respect the rights under this Basic Law” (cf. s. 1(3) of the German Basic Law quoted above). The Basic Law refers to this provision by the marginal title “Application,” i.e., it defines the scope of application of the law. This provision is commonly referred to as “the respect clause.”

There are three “branches of government” – the legislature, the executive and the judiciary. In principle, the directives of the legislature will naturally fetter the executive and the judiciary. The application clause is unnecessary in order to achieve that result. The application clause is needed – apart from its didactic aspect – in order to clarify that the legislature, too, is subject to the provisions of the Basic Law in regard to ‘the rights under this Basic Law.’ It guides the legislature and in a way limits it.  The legislature cannot disregard the Basic Law, as it too is obliged to respect it.

This provision indeed requires that respect be accorded by ‘each of the governmental authorities,’ even if it is not as unequivocal and clear in terms of its wording as its counterparts in the German and Canadian constitutions. It does not refer expressly and in detail to the legislative, executive and judicial authorities. It does not state that the legislature is subordinate to it (in contrast to s. 32(1) of the Canadian constitution).

Respect requires, first and foremost, reference to the Basic Law and the rights protected in it. This obligation is embodied in the very duty to respect. This provision does not negate the power of the supreme legislature to enact laws, but it provides the conceptual and positive basis for the requirement that a violation of the provisions of the Basic Law must take a unique form. It is not possible to enact a law repugnant to the respect provision. Indeed, this could have been expressly stated, and in this regard see s.  8 of Basic Law: Freedom of Occupation.

To remove all doubt, I would add that the inferior drafting, in comparison to foreign legislation, does not detract from the weight that should be accorded to the statutory provision of s. 11.

48.  To summarize this point, the respect provisions set out in s. 1 (‘these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel’) and in s. 11 of the Basic Law with which we are concerned, guide the legislature to enact laws in the light of the rights protected in the Basic Law. This legislation should, appropriately, be conscious  and deliberate, express and not implied.

The Ceremonial Element – Basic Principles and Purpose

49.  A constitution is a ceremonial act. The Constitution of the United States begins with a ceremonial Preamble. This is true of most of the principal constitutions that can provide a basis for comparison. The ceremonial preamble of the constitution of the Fifth Republic of France is famous. The same is true of the constitutions of India, Germany and others.

       Section 1 of Basic Law: Human Dignity and Liberty provides, in ceremonial, historic language, that:

Fundamental human rights in Israel are founded upon recognition of the value of the human being, and the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.

Section 1A is supplements the above, setting out the purpose of the Basic Law, stating:

The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

This preamble is characteristic of a constitutional act that inherently determines not only the place of the law in the normative hierarchy, but also its internal force and the spirit in which other laws will be reviewed. An ordinary legislative act does not open with a general, ceremonial declaration. Section 1 instructs us to respect basic rights ‘in the spirit of the principles of the Declaration of the Establishment of the State of Israel., Before us is a constitutional act, both by reason of the festive, historical language of s. 1, and because of the referral to the Declaration of the Establishment of the State of Israel. This declaration is our “Declaration of Independence,” which is both the birth certificate and the identification card of the state as an independent, political, sovereign entity.

In this context, it is proper to recall that the Declaration of the Establishment of the State also included a reference to the intention to adopt a constitution. In other words, the principle of constitutionality was born with the establishment of the State, and the reference to the entire complex – i.e., the Declaration – in the final clause of s. 1 of the Basic Law also expresses the historical constitutional link to the details in the Declaration, and the intention to adopt a constitution.

50.  In conclusion: Section 1 of the Basic Law presents – in a substantive manner – the constitutional supra-statutory aspect of the Basic Law in two ways. First, s. 1 of the Basic Law is, by its title and content, a section of “basic principles.” It serves as a guide to the details of the constitutional act. It is clear that an ordinary law, possessing ordinary normative status, does not open with a ceremonial declaration of the basic principles of the State of Israel. There is no law or Basic Law that adopted this language apart from Basic Law: Freedom of Occupation. Indeed, there is consensus that Basic Law: Freedom of Occupation, too, possesses normative supremacy, and the legislation of the Knesset in 1994 emphasized this: The interpretive connection between these two Basic Laws is strengthened in the light of the incorporation of amendments to Basic Law: Human Dignity and Liberty within the enactment of the new version of Basic Law: Freedom of Occupation. It may conceivably be argued that the provisions that were added to Basic Law: Human Dignity and Liberty in s. 11 of Basic Law: Freedom of Occupation (the new s. 1 and the final clause of s. 8) are subject to s. 7 of Basic Law: Freedom of Occupation, which provides for rigidity in relation to variation of the Basic Law. However, this question, too, may be left open.

In any event, an act comprising a provision treating of the basic principles of the legal system possesses unequivocal constitutional ramifications. Second, it displays a clear, commonly accepted characteristic of every constitution around the world, i.e., the name and ceremonial preamble that presents the basic values of the State of Israel. Third, the reference to the Declaration of Independence provides an indication of the constitutional task imposed on the Knesset. As we have seen, we do not need further identification of the Basic Law as such, as its name testifies to its character. However, we are searching for provisions by which to discern that its force is superior to other primary legislation, and the declarative provisions at its beginning strengthen the ratio legis of these provisions, which we find in ss. 8, 10 and 11 of this Basic Law. To allay any misunderstanding: we are not seeking ratification of the constitutional identity of the Basic Law, but rather of its superior force.

51.  As earlier noted, alongside the section treating of basic principles (s. 1 of the Basic Law), we find the provisions of s. 1A,  which address the purpose of the law. Section 1A represents a shift from the general to the particular. The purpose of the Basic Law is to anchor “human dignity and liberty.” “Anchor” means establish, strengthen and create. The concept “human dignity and liberty” must be construed together with the name of the Basic Law (“Basic Law: Human Dignity and Liberty”). In other words, the protection is accorded to the basic principle of human dignity and liberty. This principle is divided into its components, i.e., into the basic rights themselves. The purpose provision – which is a general provision – must not be interpreted as if it merely applies to some of the provisions of the Basic Law, i.e., the last clause of s. 2 (“preservation of life, person and dignity”) and s. 5 (“personal freedom”). The protection of “human dignity and liberty” is understood in light of the title and substance of the law – as protection of the entire fabric of rights set out therein. The anchoring is not established in an ordinary law. It is carried out by means of the mechanism of a Basic Law (‘in order to anchor in a Basic Law’). The purpose provision – like its older sibling (the basic principles provision) – goes to the very foundations of our legal system: ‘the principles of the State of Israel as a Jewish and democratic state.’. The principles of our system are a synthesis between the State of Israel being a “Jewish state” and the State of Israel being a “democratic state” (see Elon, in the article cited above). The State of Israel is a Jewish state. The State of Israel is a democratic state. I will recall here what I said in a similar case, Election Appeal 1/88 Neiman et al v. Chairman of the Election Committee to the Twelfth Knesset [26] at p. 189, in connection with the integration of these two values:

‘There is no truth in the argument regarding an imagined contradiction between the different clauses of s. 7A.  The existence of the State of Israel as the state of the Jewish people does not negate its democratic nature, just as the French character of France does not negate its democratic nature. The great principle expressed in clause (1) does not negate the one in clause (2) and the two can coexist in perfect harmony.’

The absence of any contradiction, as claimed, was already emphasized in President Agranat’s remarks in the above Election Appeal 1/65 at p. 385:

There can be no doubt – as is clearly shown by the statements made in the Declaration of the Establishment of the State at the time  that not only is Israel a sovereign, independent nation that aspires to freedom, and  is characterized by the rule of the people, but that it has also been established as a Jewish state in the land of Israel, because the act of establishment was carried out, primarily, by virtue of the natural and historical right of the Jewish people to live like any other people, in its own right in its sovereign state, and this act represented a realization of the aspiration of generations for the redemption of Israel.

My esteemed colleague Deputy President Elon also referred to this in the above Election Appeal 2, 3/84, at p. 297:

The democratic nature of the State of Israel was expressed in the Declaration of Independence, which speaks of the complete equality of social and political rights for all citizens, without distinction of religion, race or sex, and guarantees freedom of religion, conscience, language, education and culture. These principles are our guiding light. The Jewish nature of the State of Israel was expressed in the Declaration of Independence by the very definition of the state as a Jewish state, and not merely a state of Jews, by opening its gates to Jewish immigration and the ingathering of the exiles (as manifested itself later in the Law of Return, 5710-1950, etc.). These principles too are guiding lights for us. The totality of these rights is the crucible in which the special image of the Jewish state was forged. The leading thinkers of Zionist philosophy, its movements and streams, Jews holding different points of view, citizens of the State of Israel, members of different ethnic groups and religions, all debated and continue to debate the significance and application of the totality of principles found in the Declaration of Independence to the practical life of the Jewish State.

Judaism’s perception of human dignity ensues from what is said in Genesis 1:27 [B], according to which man is created in the image of God, every human being is created in the Divine image, all are equal, and all are worthy of human dignity.

52. The provisions introducing the Basic Law embody, as aforesaid, a clear constitutional message. In this context, two points must be emphasized: the ceremonial opening is common to Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. Both contain a basic-principle provision and both contain the purpose provision. The language of the respective provisions is identical. This is clear, objective evidence of the conceptual similarity between the two Basic Laws. These two laws are cut from the same cloth. They are different organs of the same body. Thus, we must aspire to harmony between them, subject to variations clearly ensuing from the purpose – objective and subjective – of Basic Law: Human Dignity and Liberty. The second point concerns the nature of a constitution as a didactic document. A constitution possesses educational value. ‘A significant matter, – writes Deputy President Elon, referring to the provisions of the Basic Law, ‘for education and learning, educators and students, young and old’ (Elon in the article cited above, at p. 682). True, I wrote that ‘the proper protection of a certain freedom is not achieved solely by declaring its existence,’ however, I added that ‘we should not underestimate the didactic value of the declarative statement…’ (Miterani case [7], at p. 355). One of the principles of a constitution is its inherent educational value.

Protection Against Emergency Legislation

53.  The provision regarding the stability of the law (s. 12 of the Basic Law) states : -

This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708-1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than required.

The entrenching provision against emergency regulations is vital to a constitutional act. The constitutional act deals with the fundamental principles of each system. Emergency legislation (“emergency regulations”) may supersede protected rights if it is limited in terms of time, purpose and proportionality (relativity). The protection against emergency regulations is found in other provisions in our law (such as s. 42 of Basic Law: the Government of 1968, s. 44 of Basic Law: the Knesset, s. 25 of Basic Law: the President of the State. A constitutional provision is characterized by the fact that it also incorporates special protection against emergency legislation.

The aforesaid s. 12 must be read together with s. 50(d) of Basic Law: the Government of 1992, which regulates the promulgation of emergency legislation, repealing s. 9 of the Law and Administration Ordinance (s. 59 of Basic Law: the Government of 1992). Section 50(d) provides that: ‘(d) Emergency regulations may not prevent recourse to legal action, or prescribe retroactive punishment or allow infringement upon human dignity’ (emphasis mine – M.S.). In other words, following the entry into force of the new Basic Law, there is no possibility of violating “human dignity” by way of emergency legislation. The aforesaid s. 50(d) meshes in substance with the s. 12 before us. Clearly, the aforesaid s. 50(d) is intended to add to s. 8 of Basic Law: Human Dignity and Liberty and not to detract from it.

The Mission of the Basic Law

54.  A constitution is characterized by abstract, short, laconic provisions. A constitution does not treat of technical details. It is not tax legislation.

The normal legal structure of every system is characterized by the fact that the higher one climbs on the normative ladder, the more abstract and general the provisions, the lower one descends on the normative ladder, the more detailed and concrete the provisions (Englard, in the book cited above,  p. 13 et seq.). An ordinary law is of a less abstract character than a constitution. Secondary legislation (regulations) is less abstract than a law.

Basic Law: Human Dignity and Liberty is an example of a typical constitutional act in the declarative language of the Basic Law; the concise drafting of its provisions, and the degree of abstractness. The Basic Law indeed lacks some of the identifying characteristics included in its twin Basic Law, i.e., Basic Law: Freedom of Occupation. However, this does not detract from the fact that Basic Law: Human Dignity and Liberty is quintessentially constitutional: it concerns protected fundamental rights; it treats of the protection of the most basic values of our society. These values are of those of human dignity.

The values that the Basic Law protects are the basic value of the State of Israel as ‘a Jewish and democratic state.’

55.  A distinction must be drawn between hierarchical supremacy and a determination of the tools for implementing that supremacy. The supremacy of a Basic Law over ordinary legislation ensues from the status of this law in the normative hierarchy. However, its power to annul the validity of another law is effected by virtue of the provisions contained in it: the limitation provision (s. 8), the validity of laws provision (s. 10), and the respect provision (s. 11). These three are the principle cornerstones by virtue of which the principle of supremacy progresses from theory to practice. All have the power to show – on the level of objective interpretation – that notwithstanding the absence of formal rigidity, we are not confronting a legislative act that is similar to most of the provisions of the other Basic Laws. We are facing a new juridical phenomenon: a legal document that not only possesses hierarchical supremacy and priority in the normative hierarchy, but also contains mechanisms upon which the standards for implementing that supremacy are shaped. 

Legislative Intent

56.  The legislative intent can be learned from the language of the law, which includes an expression of the purpose established by the legislature. From inception and entry into legal force, the law – in its content, structure, place in the legal system, and relationship and approach to other laws – faithfully reflects the intention of the legislature. The purpose arises from the law and not from an external source. ‘What is important,’ in the words of the late Justice Silberg, ‘“is not what the legislature wanted to say but what it said’ (CrimA 282/61 Yihye v. Attorney-General [27] at p. 636). At the same time, it is possible to discover trends and reservations by reference to preparatory work or Knesset deliberations. In this regard, I wrote in HCJ 4031/94 ‘Bezedek’ Organization v. Prime Minister of Israel [28] at pp. 11-12:

5. (a) The contents of the deliberations in the Knesset provide a backdrop to the trends and doubts of the members of parliament. As will be recalled, the law must be interpreted in accordance with its language as adopted by the Knesset, however, the travaux preparatoires or the deliberations in the legislative chamber that preceded legislation, often provide aids to further understanding of the processes and trends driving the wheels of the legislation. (Civil Appeal 486/85 Manager of Purchase Tax and Compensation, Haifa v. Ethiopian Commerce Co. Ltd. et al, at p. 407; HCJ 151/82 Bar Ilan et al v. Manager of Land Betterment Tax, Netanya, at p. 659).

Legislation does not occur in a vacuum. (HCJ 58/68 Shalit v. Minister of the Interior et al, at p. 513; A. Barak, Interpretation in Law, Vol. B, Interpretation of Legislation (Nevo, 1993) 351). It grows and emerges from within the political, social or legal reality, or is designed to serve their needs. ‘The exigencies of the reality within  which legislation is enacted is important for the interpretation of the legislation’ (Barak, ibid.; see also HCJ 547/84 Ha’emek Poultry, Cooperative Agricultural Society v. Ramat Yishai Local Council et al, at p. 143). But note that when we turn to the legislative history, including the deliberations at the preparatory stage, we do not consider the personal interpretation of any particular member of Knesset regarding certain expressions contained in the law. The public utterances of the members of Knesset cannot replace the interpretive act of the court, which relies on the language of the law and its purpose. A review of the comments of a member of Knesset may illuminate the general purpose of the legislation. However, it is of less value than the meaning of the law as adopted at the conclusion of the legislative process (see also HCJ 142/89 Laor Movement v. Knesset Speaker, at p. 544).

The authoritative interpretation is not to be found in the comments of members of the Knesset but in the statements of the court, and relies first and foremost on the language of the law as enacted by the Knesset upon the conclusion of the deliberations and legislative process (FH 36/84 Y. Teichner et al v. Air France Airways, at p. 619).

Accordingly we said:

The ultimate, decisive construction of a law at  any given time is in the hands of the court…’ (HCJ 306/81 Flatto-Sharon v. Knesset House Committee at p. 141 opposite letter E)

57.  The legislative history is important. Yet, ‘from what was said (in the instant case – M.S.) in the Knesset it is difficult to reach any conclusions regarding the thought processes, agreements or consensus concerning the normative status of the Basic Law….’ (Karp, in the article cited above at p. 365). It is absolutely clear that the language of the Basic Law is the product of compromise. One of the architects of the Basic Law was the Chairman of the Constitution, Law and Justice Committee, MK U. Lynn. He noted that: ‘this law was prepared in the understanding that we must reach a consensus among all the parties in the house’ (Knesset Proceedings, vol. 125 (1992) at p. 3782). The message of compromise appears throughout the deliberations of the Knesset: ‘There were far reaching concessions compared to every other constitution in the world, because we wished to reach that general agreement that we indeed attained’ (ibid., at p. 3783). During the First Reading, the members of the Knesset voted on the status of the Basic Law as a constitution. However, this perception relied upon the rigidity provision that appeared in the draft law and was ultimately omitted from the Basic Law as enacted. MK E. Haetzni said: ‘actually we are starting a process of a written constitution. This is not a simple matter, and we must know what we are doing here’ (Knesset Proceedings, vol. 124 (1992) at p. 1528). The Minister of Justice, Dan Meridor, insisted during the First Reading that the proposed Basic Law ‘establishes protection against the arbitrariness of a law that is enacted and contravenes and violates human rights…’ (ibid., at p. 1531). The principal deliberations took place during the Second Reading. I have already mentioned that the Chairman of the Constitution, Law and Justice Committee opened by stating that the Basic Law was prepared over the course of many sessions of the Constitution Committee: ‘and I emphasize: the Constitution, Committee, that is the Constitution, Law and Justice Committee by virtue of its being the Constitution Committee of the Knesset of Israel’ (ibid., 125, at p. 3782). Prima facie, this is an unequivocal statement. However, later the Chairman of the Committee states:

We are not transferring the weight to the Supreme Court. We are not doing what was once proposed in Basic Law: the Legislature or in Basic Law: Human Dignity. We are not establishing a Constitutional Court, or a court with the power to invalidate laws (ibid., at p. 3783).

MKs Eitan and Haetzni question the Chairman of the Constitution Committee regarding the organ that would determine the compatibility of ordinary legislation to the Basic Law (s. 8 of the Basic Law). The Chairman of the Committee responds: “the legislature decides and the court decides.’ However, he immediately adds: ‘this is the system existing today and there is no other’ – ‘even today the court can interpret laws.’ To the question posed by MK Eitan regarding the invalidation of laws, the Chairman of the Constitution Committee responds:

There is no need to invalidate laws. One does not invalidate a law. The law must be made for a proper purpose, not merely an arbitrary law.

The question returns: What is the fate of an “arbitrary law”? MK Lynn concluded that:

The power has not been transferred to the court system.  The power remains in this House; and if, heaven forbid, it appears from our experience with this law that we made a mistake, and the interpretation given to the law does not coincide with the true intention of the legislature, the Knesset has the power to change the law (ibid., at p. 3788).

Minister of Justice Dan Meridor took a different stance, expressly asserting the normative supremacy of the Basic Law: ‘The power of the Knesset to legislate is not unrestricted because in every democratic regime there are limits on what it is permissible for the majority to do’ (ibid., at p. 3788). The bill – the Minister of Justice stated – ‘is very important because it establishes a balance among the branches in Israel, and it certainly establishes an area or boundary beyond which human rights cannot be violated’ (ibid.).

From the above it follows that the Basic Law was intended to be a compromise. Its contents do not reflect the optimum that it could have comprised. It was intended to be a more moderate act than the proposed Basic Law: The Legislature. That is the reason why the Knesset did not adopt the rigidity provision.

58.  In consequence of the comments made during the deliberations in the Knesset, I would add that clearly the creation of a constitution is not equal in theoretical significance to the transfer of competence to engage in judicial review to the Supreme Court. However, patently, a provision regarding the normative hierarchy which enables a decision to be made concerning the lack of validity of a law accords immediate jurisdiction to the court. The judicial branch is an important device for the practical existence of a constitution. It ensures that the constitution is not a purely declarative political document, as well as that the review of constitutionality will not be confined to self-review by the Knesset (autocontrole in the terminology of Prof. Nikilitz in L. Favoreu & J. A. Jolowicz, Le Controle Jurisdictionnel Des Lois ((Paris & Aix-en-Provence, 1986) 79). In view of the provisions of Basic Law: The Judiciary and in the absence of any other provision, there is no other entity – apart from the court (general or special) – which can decide upon the constitutionality of a law, i.e., its compatibility with norms and conditions set out in the Basic Law. I said in the Flatto-Sharon case [2] at p. 141:

Each of the branches of government is required, on occasion, to interpret a statute, because the implementation of primary legislation frequently – and in practice always – involves a position being taken on its substance and content. However, the final, conclusive interpretive decision regarding the law, like its validity at any given time, is within the province of the court, and regarding issues brought for examination within the court system, it is within the province of the supreme judicial instance.

The Supreme Court is the competent interpreter of the language of the law, as well as its condition at any given time.

The enactment of a constitution means the transfer of power to society, to its values and to its principles. The Supreme Court in a constitutional regime is a tool for enforcing the will of the legislature, which is the elected representative of the people, upon all those who continue to enact laws or perform governmental acts, including the primary legislature itself.

The distinction between the primary legislature and the other entities lies in the fact that the primary legislature is also empowered to determine ways for removing the fetters by which it chains itself. The court only places before the legislature a tablet upon which the legislature’s own words are engraved, accompanied by a competent interpretation. It is the function and competence of the court to indicate what is within the realm of the permissible and what is completely prohibited. As a judicial authority, the court is the faithful, competent construer of the words of the legislature.

In so doing, the court does not subordinate the legislature to values and principles that are separate from its own, since the values and principles of the court are the very ones that express the concepts of the state and society. These are in essence the values formulated by the legislature itself, or are formulated in the law since the establishment of the state in the Declaration of Independence and by virtue of s. 11 of the Law and Administration Ordinance. The court subordinates the legislation to the values and principles of the constitution, the one that has been written and the one that is essentially part of our positive law. The court is the principal tool for ensuring the existence and respect of the constitution.

59.  The draft bill Basic Law: Human Dignity and Liberty opens with an Explanatory Note, stating at p. 60: ‘This bill is intended to provide constitutional protection to the basic human right to life, freedom, integrity of the person and human dignity’ (ibid., at p. 60; emphasis mine – M.S.). I assume that the Knesset members were cognizant of the full significance of the explanatory remarks and of the Basic Law itself. Indeed, as is customary, from a procedural point of view, the Basic Law was adopted in accordance with the ordinary regulations of the Knesset. The Basic Law was not passed by a vote of the majority of the members of the Knesset but only by the vote of the majority of those participating. No public debate preceded the vote. In this, the Basic Law is distinct from other constitutions. Most constitutions are created upon the establishment of the state or in an open, public process following profound ideological debate. A constitution is formed in moments of “constitutional enlightenment.” A constitution is formed, generally, following an event of historic importance (independence and sovereignty; revolution, political change).

Some of the members of Knesset sought to accord the Basic Law formal constitutional status (like the sponsor of the Basic Law, MK Amnon Rubinstein, and the then Minister of Justice Dan Meridor). Some perhaps were not aware – at the time – of all the legal ramifications of the Basic Law that immediately arose from its provisions. It will never be possible to establish all the individual intentions of the members of Knesset so as to shape the collective will of the legislature from them. In practice, there is always a range of subjective desires in a democracy. Many are the thoughts in the mind of man [Proverbs 19:21]. Any subjective purpose does not negate the conclusion regarding the objective legislative purpose arising from and within the Basic Law, as explained above.

Integrating Basic Law: Human Dignity and Liberty in the Constitutional Structure

60. Fundamental human rights in Israel were entrenched in the case law of the Supreme Court from the dawn of the State of Israel, as is well known. The ordinary position is that the legislature drives the wheels of legislation in order to accomplish a particular social goal. This presumption provides the foundation for the supremacy of the Basic Law, even when it merely seeks to provide statutory approval to a normative reality. The change achieved by means of a Basic Law is the addition of a tier to the protection of human rights in the State of Israel. This is the protection against legislation. We have recognized human rights since the establishment of the state before the Basic Law. They were afforded broad interpretation before Basic Law: Human Dignity and Liberty. Their protection led to the invalidation of secondary legislation and administrative acts without the Basic Law. Prior to the Basic Law, their protection did not lead to any invalidation of primary legislation. This is a new possibility contributed by the Basic Law. Removing this contribution from it deprives it of its added value relative to the situation that preceded Basic Law: Human Dignity and Liberty. In other words, the immediate question that would arise is what does the Basic Law provide which did not exist prior to and without it.

61.  Recognition of the normative supremacy of the Basic Law is consistent with the affiliation of the State of Israel to the countries of the free world. The vast majority of the countries of the free world possess a constitutional structure, i.e., possess a supreme normative structure that regulates the basis of the regime and the fundamental rights of the citizen. Even Great Britain is now subject to a system of constitution review system within the European framework.

The State of Israel’s membership in this family of nations contributes to the conclusion that this time our legislature sought to realize the granting of supremacy to the Basic Law.

62.  A very important point for the interpretation and understanding of Basic Law: Human Dignity and Liberty, is to see it in the light of Basic Law: Freedom of Occupation. This view is anchored in the perception of the two Basic Laws as a single complex. Technically, we have before us two pieces of legislation. Substantively, we have before us a single act. Accordingly, these two pieces of legislation must be treated as statutory twins. The entrenchment provision (s. 7) in Basic Law: Freedom of Occupation grants a stable, well-protected status to the rights ensured by that Basic Law. Basic Law: Freedom of Occupation is a clear constitutional act. It is difficult to understand the rationale for the absence of a provision similar to the aforesaid s. 7 in Basic Law: Human Dignity and Liberty. The aspiration for statutory and constitutional harmony is an institutional cornerstone of our legal theory. This concept captivates us. It is right that there be appropriate constitutional harmony between these two Basic Laws. These two acts are two branches emerging from the same trunk. Their basic principles are identical; their purpose is identical; their language is almost identical; their application is identical; their substance is identical. Against this background, the inclusion of ss. 4 and 7 in Basic Law: Freedom of Occupation is logical. It enables moderate, temporary and limited violation of a protected right without the need to take the step of changing the Basic Law itself. Engaging in frequently repeated changes to the Basic Laws is an undesirable phenomenon. A developed state does not amend its fundamental normative frameworks on a daily basis. This possibility provides the appropriate breathing space to the Knesset.

The Basic Law before us does not contain a provision similar to s. 8 of Basic Law: Freedom of Occupation, which deals with a nonconforming law. It follows that no law may be enacted which violates rights in Basic Law: Human Dignity and Liberty that does not meet the conditions and limitations contained in s. 8 of Basic Law: Human Dignity and Liberty, save by means of varying the Basic Law. A Basic Law is varied by means of a Basic Law.

The Status of Basic Law: Human Dignity and Liberty - Summary

63.  The detailed examination set out above shows that in terms of its structure and character, the name, content and form of the Basic Law present a set of characteristics that accord it a special constitutional status as compared to the institutional Basic Laws. It is also clear that there is no basis for the thesis that the Basic Law does not belong to the supreme normative tier because it lacks the additional markers declaring supremacy or entrenchment. This also follows from a consideration of the legislative purpose within the customary legal meaning of that term (i.e., what follows from the language and purpose of the law, as distinct from the subjective motives of any particular member of the legislative branch).

I have pointed out that determining the status of the Basic Law as opposed to other legislation should properly be carried out by granting appropriate weight to the legislative purpose. I mentioned that the legislative purpose that was formulated by the legislature: ‘The public and the courts owe loyalty to “the legislative intent” as it appears in the statute books, and an intention that cannot be found expressed in the statute itself is not law’ (HCJ 131/65 Sevitzky v. Minister of Finance [29] at p. 378). Interpretation in accordance with the purpose of the law is carried out with loyalty to the intention of the legislature. Indeed, we are not entitled to grant a constitution the status of complete normative supremacy without this being anchored in the will of the Knesset. However, the same reverse is also true. We cannot deprive a constitution of its status in the normative hierarchy because this contravenes the will of the Knesset, as reflected in the Basic Law, its language and content. Loyalty to the will of the Knesset binds us, whether we believe the law to be good or bad. This is the empathic aspect of adjudication (Levontin, in the article cited above, Klinghoffer Volume, at p. 290).

Before us is a tier of the Israeli constitutional structure, whose place in the constitutional normative hierarchy finds concrete expression in the limitation that it imposes on other legislation.

Variation of a Basic Law: Summary

64. (a)         The time has come to summarize our view regarding both the manner of enacting constitutional legislation in general, and the manner of lawfully changing the two Basic Laws treating of human rights or infringing their provisions.

(b)   There are two aspects to the issue of the amendment of a basic right included in a Basic Law: the substantive theoretical aspect and the formal constitutional aspect. There can be no doubt that the substantive aspect has ramifications for the formal constitutional aspect, and that the two are intertwined. With regard to the substantive aspect, I said in the Mitrani case [7] (at p. 355, opposite letter C):

Establishing defined, special ways for amending a basic right is, to a great extent, the principle means, guaranteeing that the matter be examined properly from a substantive point of view. A right should not be restricted other than after careful consideration and debate, because curtailing the scope of the right may lead, as a consequence, to a degree of distortion of the character of the social or political regime. We have said that the place of a basic right in a given legal system mirrors the degree to which the substantive rule of law exists, and amending the scope of the right will inevitably affect the continued existence of the rule of law. From this ensues the importance of establishing defined statutory ways, through which alone it is possible to change the application and scope of the basic right.

From here we move to the constitutional rules. The starting point is that legislation entails a normative hierarchy. The hierarchy is built on three principle rungs, according to the order of their importance on the ladder of legislative values: secondary legislation, ordinary primary legislation, constitutional primary legislation (i.e., a Constitution or Basic Laws). Changes in legislation, from the point of view of content and form, may only be accomplished by means of statutory activity on the same or a higher normative rung. This means that a Basic Law cannot be changed by the enactment of an ordinary law; ordinary, primary law can be changed solely by ordinary, primary legislation or by a Basic Law (which, as noted, is at a higher normative rung in the normative constitutional hierarchy). “Change” for this purpose, includes repeal, amendment, addition or derogation.

(c)   Change generally refers directly to a provision that is to be changed. However, it is conceivable that a provision will be enacted in a Basic Law that contradicts an existing Basic Law or violates it, but is not expressed in the form of a direct amendment of the existing Basic Law (such as a provision in one Basic Law that effects changes in the Knesset electoral system, without providing for compatibility of language in s. 4 of Basic Law: the Knesset). Indeed it is preferable to have an express statement that the new contradictory provision changes the existing provision, however, this should not be seen as a legal requirement, inasmuch as the solution to the contradiction can be attained, in any event, and as is customary, by way of legal interpretation, for example, by adopting the guideline whereby later legislation is preferable to earlier legislation, and special legislation is preferable to general legislation, or by way of the rules governing implied repeal, or by other rules of construction that seek to examine the question whether the new can be reconciled with the old, and if not, what is the conclusion that must inevitably be derived from this. The remarks here concerning change apply to infringement of a provision in one Basic Law, by means of a provision in another Basic Law. There is no legal obstacle to the creation of circumstances of infringement, and the solution to a question such as this will be achieved by the customary modes of interpretation, as mentioned above.

(d) There is no need for a special majority of members of Knesset in order to vary a Basic Law, save if this is expressly required, as a precondition, in the Basic Law being amended or in another Basic Law that sets out general provisions regarding the variation of Basic Laws (such as Basic Law: Legislation, the enactment of which is now being considered). Limitations on the manner of varying a Basic Law can only ensue by virtue of legislation in a Basic Law.

So far we have considered the connection between one Basic Law and another. We now turn to the question of the relationship between an ordinary law and a Basic Law.

Violation of a Basic Law by an Ordinary Law Summary

65. (a)         We have made it clear that the adoption of the theory of the normative hierarchy leads to the conclusion that it is not possible to vary a Basic Law by means of ordinary primary legislation, i.e., by an ordinary law, but only by a Basic Law. Is it possible to infringe the provisions of a Basic Law by means of regular primary legislation?

(b) An infringement of a Basic Law can be the indirect outcome of the language of the Basic Law, and principally of its abstract character, expressed in general, broad language, that often require reconciling, and consideration of practical daily life and the concrete needs of the public and the individual. Let us take the example of arrests: every arrest contravenes the clear, unequivocal provision of s. 5 of Basic Law: Human Dignity and Liberty, whereby:

There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or by any other manner.

The meaning of this statement is clear – there is no arrest. Can an organized political framework exist without arrests in certain circumstances, even if these are of the most limited and narrow nature? The answer to this is – no. A statutory provision is required that enables arrests. However, a provision that enables arrests, which is not shaped in the form of a Basic Law, violates the provision of the said Basic Law. It violates the basic right defined in s. 5 of the Basic Law. The way to reconcile the general, broad provision of the Basic Law and the needs of state and society is to permit the violation of the principle set out in the Basic Law, in defined, contingent circumstances.

(c)   It follows from the above that, notwithstanding the existence of basic rights, in particular rights that are broadly defined, it is essential to preserve the possibility to enact laws in defined cases, while deviating from the important principle expressed in the definition of the basic right in the Basic Law. It is right to ensure that the violation of the Basic Law that is deemed to be lawful and permissible, will be cautious and circumspect in terms of the extent to which it infringes the great principle of protection of the basic right found in the Basic Law.

(d)   Creating the possibility for deviation from full, unqualified protection that ensues from the inclusion of a basic right in a Basic Law, can assume various forms. A violation of a basic right is only possible by virtue of law (see the Mitrani case [7] at p. 360 opposite letter A). There are constitutions that create basic rights together with  accompanying provisions whereby a law may determine otherwise. Thus, for example, s. 49 of the draft proposal of Basic Law: Bill of Human Rights, states that: ‘Every person is entitled to enter into a contract; this right shall not be violated save by law’ (emphasis mine – M.S.). The significance of this is that every law can vary or limit the scope of the basic right.

There are those who criticize the described, insufficiently restricted system, that attaches a provision to a basic right whereby every law can set out a different provision (see Dr P. Lahav and Dr D. Krezmer, “The Bill of Human and Civil Rights in Israel: A Constitutional Achievement or a Sham,” 7 Mishpatim (1976) 154; Dr Shiloh’s reply, “On ‘Absolute Rights’ in the Proposed Basic Law: Bill of Human and Civil Rights,” at p. 539, and the authors’ reply, “Who’s Afraid of ‘Absolute’ Rights?” at p. 541).

(e)   Another method – and I do not intend here to exhaust the alternatives – sets out detailed guidelines regarding the substance of the statutory provision in which, and by virtue of which, there may be a violation of a basic right contained in the Basic Law, which will be constitutional notwithstanding its violation of the Basic Law. An example of this is s. 8 of Basic Law: Human Dignity and Liberty, which provides:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

An identical provision may be found in s. 4 of Basic Law: Freedom of Occupation. In other words, it is not sufficient that the violation of the basic right be carried out in a statute or by virtue of explicit authorization therein, there is an additional substantive condition that the content of the law meet the additional conditions set out in s. 8 or s. 4 above, as appropriate.

(f)   Basic Law: Freedom of Occupation added an additional array of circumstances in which an ordinary law can violate a basic right and still be regarded as constitutional. Section 8 of Basic Law: Freedom of Occupation, titled “Effect of Nonconforming Law,” states:

A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4, if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement unless a shorter duration has been stated therein.

The two identical provisions – s. 4 of Basic Law: Freedom of Occupation and s. 8 of Basic Law: Human Dignity and Liberty – and s. 8 of Basic Law: Freedom of Occupation (which does not have an equivalent in Basic Law: Human Dignity and Liberty), are provisions that permit violations of a basic right. One (identical ss. 4 and 8, respectively) sets out substantive conditions for permitting the violation. The second (s. 8 of Basic Law: Freedom of Occupation) sets out conditions of form and length of duration of the nonconforming law.

(g)     A violation of a basic right which has been defined in a Basic Law is possible, therefore, according to conditions contained in the Basic Law and subject thereto.

Is it conceivable to have a violation in a manner not delineated in advance in a Basic Law? In other words, can an ordinary law violate a basic right defined in a Basic Law without meeting the conditions detailed, for example, in s. 4 and s. 8 above, or s. 8 of Basic Law: Freedom of Occupation, all of which deal with violations of rights in the Basic Law? The answer to this is no, as we shall explain.

The answer to this question follows from our previous remarks concerning the normative hierarchy, and indeed is inescapable – impliedly – by reason of the 1992 legislation. When the Knesset sought to add a statutory provision enabling a deviation from the provisions of Basic Law: Freedom of Occupation, and a deviation as noted goes beyond what is permitted according to the existing provisions of the said Basic Law, it believed that it had to amend the Basic Law: Freedom of Occupation and, by means of a new Basic Law, add an additional provision that would enable a deviation from the provisions contained in the initial version of the Basic Law of 1992. In other words, an amendment to the Basic Law is possible only by means of a Basic Law, and a deviation from the principles of a Basic Law requires the existence of provisions in the Basic Law enabling it. Accordingly, in 1994, the Knesset added the aforesaid s. 8 to Basic Law: Freedom of Occupation. The Knesset delineated the additional exclusive means by which it is possible to violate a basic right contained in a Basic Law, beyond what is stated in the aforesaid sections concerning violation already contained in the Basic Laws; this and no more. The Knesset does not lack competence to vary the Basic Laws, to add to them or detract from them, or, as we have seen, even to enact a provision (such as the one known in legal terminology as the “notwithstanding clause” in the Canadian constitution), whereby it is possible to violate a basic right even without meeting the requirements of ss. 4 and 8, respectively, in the two Basic Laws. However, such legislation is in the nature of a variation of the Basic Law, and requires the enactment of an authorizing provision in the Basic Law. An authorizing provision as aforesaid may be unique to a particular Basic Law or general for all the Basic Laws, and may enable the enactment of laws without limitation of number, provided only that they are enacted in the manner established by the authorizing provision and for the period set out therein (if such conditions are provided). It is also possible that the amendment to the law will authorize the Knesset to legislate on a specific matter while violating the Basic Law. However, amendments to the Basic Law must always be carried out by a Basic Law.

In conclusion, the violation of a basic right may only arise from a provision which authorizes such an enactment, set out in a Basic Law, and after the conditions set out by the Knesset in the Basic Law have been met. This means, expanding the possible types of violation of a basic right defined in a Basic Law, requires a variation of the Basic Law, and a variation of a Basic Law can only be carried out by a Basic Law. An ordinary law that does not meet the criteria of the limitation clause cannot violate a protected basic right, even if it is expressly states that it is doing so, if there is no express provision in a Basic Law permitting this method to be adopted.

(h)   The conditions set out in s. 8 of Basic Law: Freedom of Occupation point to the extent to which the Knesset is stringent when establishing additional conditions for deviating from a basic right defined in a Basic Law. It requires both a special majority and an express statement, and even limits the validity of the law to four years from the date of commencement.

So far we have referred to the general guidelines regarding variation of a Basic Law or violation of its provisions. We shall now turn to the two Basic Laws with which we are here concerned.

Application of the Rules to the Two Basic Laws

66. (a)         Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation are in the nature of constitutional legislation. These are laws that are titled Basic Laws. That is to say, these Basic Laws are directly connected to the constitutional mission of the Knesset according to the Harrari decision, and as such, join the array of Basic Laws adopted by the Knesset since then. This should be seen as integration into our constitutional system, i.e., legislation that has been enacted in accordance with the approach that has developed in our constitutional tradition. It is possible to learn from this that these Basic Laws constitute a link in a chain of constitutional acts on the way to the formulation of the complete constitution. From the point of view of their formal status, there is general agreement that these are Basic Laws that constitute chapters in what, in accordance with the Harrari decision, will ultimately form a single, complete constitution.

(b)   As opposed to Basic Law: Freedom of Occupation, Basic Law: Human Dignity and Liberty is not entrenched, and is similar to the majority of the Basic Laws and the majority of provisions contained therein. This does not detract from the formal, normative status of the Basic Laws per se, as were it we to say so – we would be disregarding the clear, manifest, declared activity of the Knesset since the Harrari decision.

(c)   We have already mentioned that consideration must be given, inter alia, to the constitutional coupling between Basic Law: Freedom of Occupation and the Basic Law before us. Both herald the transformation of basic rights into enacted constitutional norms. We have seen this, if such be necessary, as support for the normative status of Basic Law: Human Dignity and Liberty.

On the other hand, it would be wrong to disregard the express difference in the provisions of the two aforesaid Basic Laws at the point that is most relevant to our examination. Whereas one Basic Law: Freedom of Occupation, establishes an entrenchment provision in relation to the variation of its provisions (s. 7) and separately in its s. 8 regarding provisions that violate its provisions beyond what is stated in s. 4, the second refrains from doing so. This was because of the approval of a reservation at the time of voting on the Second Reading in the Knesset, which removed the entrenchment provision that had been included in the bill.

The coupling described at the time of original enactment and at the time of the amendment in 1994, thus, preserved a difference at a point material for our purposes. This does not alter the determination that a Basic Law cannot be varied save by a Basic Law and that its provisions cannot be violated save by virtue of a provision in a Basic Law delineating methods for doing so.

(d)   The constitutional nature that is emphasized – from the point of view of the content of the Basic Law before us – finds methodical expression, inter alia, in the chain of provisions that singles out the connection between the Basic Law and other statutory acts and grants special status to all the provisions contained in it. I am referring here to s. 8 (Violation of Rights), s. 10 (Validity of Laws), and s. 11 (Application) of the Basic Law. This series of provisions in the Basic Law (ss. 8, 10 and 11) shows that the law established provisions that directly impact upon the manner of legislation permitted in the future.

(e)   The very legislation of the Basic Law led to a change in the normative reality. As we have already noted, even before Basic Law: Human Dignity and Liberty, the freedoms it enumerates were part of our positive law, however, it was not possible, according to the decisions we had handed down until then, to engage in judicial review that would subject a statute (in contrast to secondary legislation or administrative acts) to judicial examination of its constitutionality, save if it contained an entrenchment provision that allowed an examination of the extent to which it was being formally respected in the concrete case before the court. Since the Bergman case [15] an examination of the legality or constitutionality of a statute is carried out by means of judicial review. Adoption of this process over many years, on repeated occasions, without objection, creates an accepted pattern of constitutional action.

(f) What conclusion must be drawn from the contents of the aforesaid ss. 8, 10 and 11 in Basic Law: Human Dignity and Liberty?

 Section 8 – to which we referred above in detail – limits legislation that violates a right protected in a Basic Law. This is a central provision in relation to the normative status of the Basic Law. It follows from it that a statute that violates a basic right among those enumerated in the Basic Law, and that does not meet the conditions set out in s. 8, is invalid. This conclusion is strengthened in light of the statement in s. 10, whereby the Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law. The significance of this is that the Basic Law can affect the validity of a law enacted subsequent to the commencement of the Basic Law. What can impugn the validity of a law? Failing to meet the provisions of the Basic Law. This conclusion is strengthened in light of the provisions of s. 11, whereby all the government branches, including the legislature, are required to respect the rights under this law. Respect for rights also includes refraining from violating them, save to the extent permitted under s. 8.

If we were to say that such an aforesaid law, which violates a basic right, can be valid without relying upon statutory authorization or a special pronouncement of the legislature, even if it does not meet the demands of the said s. 8, it would be as if we were to say that the aforesaid s. 8 is of a purely declarative nature. In other words, it is as if we were to hold that s. 8 is a statement that cannot be legally enforced or that it is, in practice, devoid of meaning. This conclusion contravenes the clear intention of the Knesset and contradicts the manifest statutory purpose. Such an interpretation is also contrary to the rules that apply in such cases. According to these rules, the utterances of the legislature must be upheld and given effect, and an attempt must even be made to reconcile provisions that prima facie contradict each other (ut res magis valeat quam pereat).

Accordingly, the aforesaid s. 8 may be seen as an effective restriction on legislation that seeks to violate those basic rights set out in the Basic Law before us. This restriction has legal ramifications, i.e., it has power to affect the validity of a law. The aforesaid s. 8 is a provision within the Basic Law. In other words, s. 8 is a provision that belongs to the constitutional normative tier. Accordingly, it cannot be repealed or varied save in the appropriate constitutional way, i.e., by means of a Basic Law.

(g)   It is not necessary to have a special majority in order to vary Basic Law: Human Dignity and Liberty, and no other procedural or substantive provisions dictate the manner of legislation, apart from the rule relating to legislation in accordance with the constitutional hierarchy mentioned above.

(h)   Can the Knesset enact a law that violates a basic right contained in Basic Law: Human Dignity and Liberty? The answer to this is affirmative, but subject to conditions, as will be explained below:

(1)The Knesset is competent to enact a Basic Law that violates a basic right: the question of a violation by a subsequent Basic Law will then be clarified through the customary means of interpretation applicable to the interpretation of two pieces of legislation at the same constitution level, or, in the alternative –

(2)The Knesset can enact ordinary legislation that violates a basic right, within the boundaries authorized by the Basic Law, enumerated in s. 8 of Basic Law: Human Dignity and Liberty, in s. 4 of Basic Law: Freedom of Occupation, or s. 8 of Basic Law: Freedom of Occupation, as appropriate. The Basic Law sets out the conditions for the validity of ordinary legislation as aforesaid.

A question that remains open is the extent to which the Knesset is entitled, either as a constituent assembly or as a monolithic legislative branch, to violate a fundamental right, even by way of a Basic Law, and the scope of judicial review over the same. We shall leave this question open.

The Basic Law and the Amending Law

67.  The Amending Law with which we are dealing in this judgment is not an amendment to the Basic Law. The Basic Law before us also does not contain a provision similar to s. 8 of Basic Law: Freedom of Occupation.

The significance of this is that the Amending Law will only be valid if it does not violate ab initio one of the basic rights protected in Basic Law: Human Dignity and Liberty. In the event that it does violate a right as aforesaid, it will only be valid if it meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty. Accordingly, we must now examine, first, whether the Amending Law violates the property of a person. If our conclusion is negative, then there was no room for the conclusions of the court of first instance in two of the cases being considered here jointly, and in the arguments of the appeal in the third case, the hearing of which we joined with the two applications for leave to appeal, in which we were asked to declare the invalidity of the Amending Law. If our conclusion is affirmative, i.e., that the Amending Law does infringe a protected basic right, we will be compelled to move to the next stage of the examination, in which we shall examine whether the Amending Law meets the conditions set out in s. 8 of the Basic Law, i.e., whether it should be regarded as valid and enforced, notwithstanding the violation of the property of a person stemming from it.

 

Protection of Property – Section 3 of the Basic Law

68.  Section 3 of the Basic Law provides as follows:

Protection of property    There shall be no violation of the property of a person.

Two questions arise in connection with this section. The first is general and concerns the nature of a violation of property; the second is particular, namely, whether the specific law before us, i.e., the Amending Law, violates the right to property. The question who is a “person” for the purpose of s. 3 does not arise in the case before us.

69.  Accordingly, we shall turn to the question of the violation of the right to property.

(a)   What is property for the purpose of the said s. 3? This question is prima facie difficult, because the Basic Law, consistent with its concise language, does not set out a definition of the term “property.” This concept has many facets, and one scholar has even drawn an analogy between the concept of “property” and an iceberg in which the invisible part exceeds the portion open to view (K. M. Minogue, “The Concept of Property and its Contemporary Significance,” XII (1980) Nomos 10). Thus, it is appropriate to interpret this concept in every case on the basis of the relevant purpose and context.

In order to establish the correct boundaries of the term we must balance its fundamental purposes:

On one hand, we are concerned with a constitutional provision. It is intended to protect private property and the individual’s right to property. It is significant in terms of the social concept upon which it is based. The right is one of the expressions of liberty. It is a type of guarantee of the right of ownership. The character of the protection of property, as an act guaranteeing human liberty is what connects this right with the right to human dignity, as a guiding principle in our worldview in general and in the Basic Law in particular: freedom to act in the area of property guarantees the right to self determination and prevents the individual from being transformed into a mere object (Muench/Kunig, Grundgesetz, supra, at 824). It is intended to prevent the deprival or dilution of the individual’s to property. It must be afforded effective protection. As a constitutional provision, it must be interpreted in a broad and general way.

Accordingly, the term “property” for the purpose of the issue before us, applies prima facie both to a right in rem and to a right in personam. For the purpose of preventing the deprival of an individual’s property right it is irrelevant whether one is a depriving a right in real property or in another appropriate right, whether one is negating a right in rem or whether one is suspending the right of a person against a defined debtor only. As my esteemed colleague Justice Cheshin stated in LCA 7112/93 Tzudler v. Yosef [30], “property” in the Basic Law also applies to rights that are not property rights in the classic sense (see the comprehensive and instructive article by Prof. Y. Weisman, “Constitutional Protection of Property,” 42 HaPraklit (1995) 258, 267).

The emphasis is, as noted, on the purpose, and focuses principally on preventing the deprivation of a person’s possessions. This is the violation that the Basic Law seeks to prevent. Accordingly, for the purpose of constitutional protection, the term “property” goes beyond the definition used in other areas of property law (see Prof. Y. Weisman, 16 Tel-Aviv University Law Review (Iyyunei Mishpat) (1990) 53). In my view, it also includes the denial of obligatory rights.

       (b)        As we are concerned with the first proceedings in this court in connection with s. 3 of the said law, I will make a number of general comments regarding the approach taken to this issue in other countries. When the term “violation” is used, the intention in this context is generally to the consequences of the economic and fiscal activities of the state that play a significant role in the implementation of the needs of the state. In this area, i.e., violation of property, it is customary, for example in the United States, to follow the guiding policy that has been adopted in recent years in the interpreting the Fifth and Fourteenth Amendments to the Constitution. Under this interpretative approach, at the stage of judicial review, great weight is given to the policy underlying the words of the legislature, provided that it is possible to show due process of law and a rational connection to the legislative purpose. Thus, for example, American case law generally restricts intervention in tax legislation (The Constitution of the U. S. of America, Analysis and Interpretation, Prepared by the Congressional Research Service (Washington, 1973) 1170, 1174; M. R. Cohen, “Property and Sovereignty,” 13 Cornell L. Q. Rev (1927-28) 8, 24; Grosjean v. American Press Co. (1936) [85]). According to the approach pursued in the United States, the court should not be transformed into a body that will act as the supreme overseer of the economic and fiscal policy expressed in statute. Voice has even been given to the extreme view that the only matters subject to review are ‘deprivations of property that are arbitrary in the sense that they serve no legitimate governmental objective or that they are viciously motivated’ (Frank I. Michelman, “Property as a Constitutional Right,” Wash. and Lee L. Rev (1981) 1097, 1098).

German constitutional interpretation, too, expresses reservations regarding intervention in tax law, save if extreme irregularities are found – Uebermaessige (Konfiskatorische) Besteuerung, i.e., excessive taxation of a confiscatory nature (see the comments of Muench / Kunig, supra at 839; Herzog, supra at 282).

However, it is clear that the reference to other constitutions and their implementation is comparative only. In the protection it extends to the rights under its aegis, every constitution expresses its own unique hierarchy of social values and the conceptions of its society. It is unnecessary to add that there is also an entire range of political considerations that accompany the formulation of a constitution. Thus, for example, in Canada it was decided to refrain from including a prohibition on infringing property in the Charter of Rights.

The drafters of the Canadian constitution refrained, at the conclusion of the deliberations, from including an express statement regarding the protection of the right to property in the Charter, because of the fear of the consequences of allowing judicial review over the substance of economic legislation.

The range of considerations that come before the courts in this context has been discussed in the foreign legal literature. Thus Allen stated:

Clearly, an extremely generous view of the constitutional provisions would severely hamper the ability of the legislature to govern. Property cannot extend to every right or interest, even of an economic nature; neither can every act which affects property be considered a deprivation of property. Nevertheless, the courts have generally advocated giving property a wide scope. Those limitations of the guarantees which have arisen are found in the interpretations of “deprivation” or “acquisition”‘ (T. Allen, “Commonwealth Constitutions and the Right Not to Be Deprived of Property” 42 Int. & Comp. L. Q. (1993) 523, 527 (emphasis mine – M.S.), and see also N. K. Komesar, “A Job for the Judges: The Judiciary and the Constitution in a Massive and Complex Society,” 86 Mich L. Rev. (1987-88) 657, 662).

Professor Hogg (Canada) states his view in the same spirit:

The reason that generosity should give way, rather than the stringent standard of justification, concerns the policy-making role of the courts. If the scope of the guaranteed right is wide, and the standard of justification is relaxed, then a large number of Charter Challenges will come before the courts and will fall to be determined under section 1. Since section 1 requires that the policy of the legislation be balanced against the policy of the Charter, and since it is difficult to devise meaningful standards to constrain the balancing process, judicial review will become even more pervasive, even more policy-laden, and even more unpredictable than it is now. While some judges will welcome such extensive powers, most judges will be concerned to stem the wasteful floods of litigation, to limit the occasions when they have to review the policy choices of legislative bodies, and to introduce meaningful rules to the process of Charter review. These purposes can be accomplished only by restricting the scope of Charter rights (P.W. Hogg, “Interpreting the Charter of Rights: Generosity and Justification,’ 28 Osgoode Hall L. J. (1990) 817, 819-820; emphasis mine - M.S.).

          German constitutional interpretation comments in connection with the legislature’s decisions regarding economic, social and welfare matters:

In Bezug auf Prognosenentscheidungen des Gesetzgebers belaesst das BVerfG dem Gesetzgeber im wirtschafts, sozial-und gesellschaftspolit. Bereich einen weiten (Prognose-) Spielraum: “Die Verfassung billigt dem Gesetzgeber bei der Einschaetzung der fuer die Allgemeinheit drohenden Gefahren einen Beurteilungsspielraum zu; er ueberschreitet ihn nur dann, wenn seine Erwaegungen so offensichtlich fehlsam sind, dass sie vernuenftigerweise keine Grundlage fuer gesetzgeberische Massnahmen abgeben koennen” (BVerfGE 38, 61)’ (Muench / Kunig, supra at 60).’

And in translation:

With regard to the decisions that include future assessments by the legislature, the Basic Law leaves the legislature broad room to maneuver, in relation to the economic, welfare and social areas: “The constitution grants the legislature wide room, in so far as relates to assessment of the anticipated risk to the public. It (the legislature) only exceeds its boundaries if its considerations are so clearly and visibly erroneous, that they cannot provide reasonable grounds for taking legislative steps” (judgment of the Constitutional Court 38, 61).

In other words, the court will intervene if the considerations of the legislation are so clearly and visibly erroneous that they cannot be regarded as providing a reasonable basis for statutory intervention.

So far we have referred to the views in a number of other countries that, in similar circumstances to ours, call for caution and restraint and for preserving the areas that are intended for judicial review as an outcome of the Basic Law.

(c)   On the issue of taxes here, see the different views as expressed in the articles of Prof. A. Yoran, “The Constitutional Revolution in Taxation in Israel,” 23 Hebrew Univ. L. Rev. (Mishpatim) 55, 60 (1992) and of Prof. Y. M. Edrey, “Constitutional and Normative Obstacles for the New Tax Legislation,” 8 Taxes Vol. 6 (1994) p. a20.

(d)   The form of examination acceptable here is one which marches one step at a time along the route delineated in ss. 3 and 8 of Basic Law: Human Dignity and Liberty. However, the application of the powers vested in the court should properly be exercised in a way that refrains from turning the court into a body that actively shapes the economic policy that it deems to be more correct or preferable.       

The court does not invalidate economic or other legislation by reason of the fact that it is incorrect in its view, or that its provisions seem to the court to have undesirable economic ramifications. The court examines the constitutional aspect, i.e., the aspect of human rights as translated into the conditions of ss. 3 and 8 of the Basic Law. I also accept the view taken by the interpreters of the German constitution whereby there will be no intervention save if the approach is so clearly and visibly erroneous that it is not possible to regard it as a reasonable basis for legislative intervention.

The main focus of the great rule in s. 3 is actually not the definition of the term “property” but the link between the object of the legislation and the activity applicable to it. In other words, the subject of the provision in s. 3 is “violation of property.” Violation of property for our purpose was illustrated by reference to constitutional acts possessing substantive personal repercussions, for example, those by virtue of which the property of a person is confiscated, without proper compensation, in an arbitrary or other substantive breach of his rights. It is not intended that the court will exercise its constitutional rights in respect of the imposition of every fee or stamp tax that is not onerous, merely because, in the nature of things, it imposes a duty to make some payment. If every marginal issue such as this were to be made the subject of examination under s. 8, the courts would become engaged in long, tiring debates in every case of insignificant changes of tax rates, the State would be required to adduce evidence justifying the tax, and the courts would, in practice, become seals of approval or disapproval for every fiscal act. Such a development is undesirable.

The implementation of the powers of the court should properly be carried out while preserving the balance between the principle of the separation of powers, on one hand, and the duty of the court to review constitutionality, on the other hand. Vesting of power to engage in judicial review must be exercised without any tendency to decide about all matters, lock, stock and barrel. On one hand, caution is necessary in order not to paralyze the wheels of the economy, and on the other hand openness is required to hear the cry of the injured individual. This requires professionalism and wisdom. The core of judicial review in relation to property is human rights, and not the reshaping of economic policy.

In conclusion, in my view, the tendency of constitutional legislation in the area of property is not for the court to turn into the supreme reviser of the economy and financial system and examiner of the wisdom of the economic policy. It is not intended that within the framework of constitutional supervision the court will reorganize the economic order in a manner that it deems more just or more sensible.

70.  We will now turn to questions that arise in relation to the Amending Law that is before the Court. As learned counsel for the state argued, the Amending Law was born in order to correct flaws and operating difficulties in the Principal Law:

The interpretation of the courts and the flawed language of the Principal Law created a complex, inefficient process, leading to duplicate proceedings, superfluous expenses, legal and economic uncertainty and the deferral of the issue of a final “rehabilitative judgment,” which is the goal of the Principal Law: comprehensive and swift ordering of the debts of the agricultural unit.

According to the argument of the State, the Amending Law was designed to remove the lack of clarity, in order to cast off the difficulties created by contradictory judgments of the courts and doubts regarding the proper interpretation of different definitions in the Principal Law. As described in the beginning of our comments, the definition of “basic debt” was expanded; inter alia the definition of the term “debt” was changed; it was clarified that no distinction should be drawn between “debt” and “obligation”; the definition of “total debt” was changed by expanding it and applying it to debts existing on 24 Tevet 5752 – 31 December 1991; a reformulation was enacted of s. 7 of the Principal Law which clarified the provisions regarding the cessation of any proceedings concerning a debt or guarantee.

Naturally, reference is not only to the elimination of uncertainties. The essence of the matter is not the language of the amendments but their substance and significance. They contain an expansion – both for the purpose of clarification and also primarily in consequence of lessons learned – of the arrangements in the agricultural sector to which the law applies, and discontinuation of every process to collect debts ordinarily applied in our system. The purpose is to replace the ordinary legal process with a statutory arrangement that includes the possibility of wiping out debts. According to the Amending Law, the latter possibility is broader than that established in the Principal Law. The right of a creditor may be cancelled completely or to a considerable extent.

In this regard it is unimportant that similar arrangements were in place prior to the Principal Law or prior to the Amending Law. We have clarified that the Amending Law stands on its own feet, for our purposes, because it was enacted following the commencement of the Basic Law. The establishment of an absolute duty to transfer processes regarding debts to the Rehabilitator, and the possibility of engaging in a wider elimination of debts than was previously available, comprises a violation of property. It is sufficient for this purpose to turn to the provisions of ss. 21 and 22 of the Principal Law, as amended by the Amending Law.

In this context, I said in LCA 1759/93 [1], at pp. 150-151:

In reducing and spreading the debt there is, of course, a violation of the property of a third party to whom the agriculturalist owes his debt, and this constitutes a change of the arrangement originally established between the parties. This violation is post-contractual and therefore is doubly serious. In this connection it is important to recall that a third party is not necessarily a bank or other financial body (as was intended in the beginning, as stated in the Explanatory Note: “a debt originating in credit given to an agricultural unit by a bank…” – M.S.) but may also be a private person who lent money to that agricultural unit for the purpose of his business as an agriculturalist or granted him any service, and now the amount of the debt to which he is entitled is being reduced: for example, a private person who performed any work for that agriculturalist or supplied him with commodities, such as transport or seed supplies, carried out for the purpose of the agricultural activities of the debtor – will receive only part of the consideration.

My opinion was a dissent. However, this was not the case in so far as concerned the above characterization of the Principal Law, or any other similar provision that amends and expands it. See also in this context Louisville Bank v. Radford (1935) [86] (hereinafter: the Radford case [86]) and cf. Wright v. Vinton Branch (1937) [87], there Justice Brandeis stated at pp. 456-457, summarizing the Radford case [86] (in which he also gave judgment):

‘The decision in the Radford case did not question the power of Congress to offer to distressed farmers the aid of a means of rehabilitation under the bankruptcy clause. The original Frazier-Lemke Act was there held invalid solely on the ground that the bankruptcy power of Congress, like its other great powers, is subject to the Fifth Amendment; and that, as applied to mortgages given before its enactment, the statute violated that Amendment since it effected a substantial impairment of the mortgagee’s security. The opinion enumerates five important substantive rights in specific property which had been taken. It was not held that the deprivation of any one of these rights would have rendered the act invalid, but that the effect of the statute in its entirety was to deprive the mortgagee of his property without due process of law’ (emphasis mine – M.S.).

The nature of the Amending Law as one similar to bankruptcy law does not detract from the conclusion stated above. The existing bankruptcy laws are protected by s. 10 of the Basic Law. Their nature as provisions enabling the debts to be wiped out, i.e., violation of the right to property, would have been the subject of examination had they been enacted following the commencement of the Basic Law. Naturally, this does not affect the examination under s. 8 of the Basic Law, an examination which is the outcome of our conclusion according to s. 3 of the Basic Law.

71.  A legal arrangement regarding the cancellation of debts of significant scope amounts to a taking of property from the holder of a debt and accordingly possesses the character of a violation of property. For this purpose, it is immaterial that even in the absence of this arrangement, the creditor would have had other legal measures available to him for collection that also would conceivably have included the possibility of a certain cancellation of debts – such as bankruptcy proceedings.

What is decisive in relation to s. 3 is the character and consequences of the legislation under examination, and not the question of the existence of similar legal alternatives. This is not the case in relation to s. 8 of the Basic Law, to which we shall return.

72.  The burden of persuasion regarding the existence of a violation of property is on the party claiming it, and he must prove his version of events on the balance of probabilities (FH 4/69 Noiman v. Cohen [31], at p. 290) and not beyond any reasonable doubt as is customary in criminal proceedings.

73.  The conclusion that follows from the aforesaid is that the Amending Law violates the right to property. As explained, the determination that particular legislation contains a violation of property is not the end of the story from the point of view of the constitutionality of the legislation. The door is still open to prove that notwithstanding the violation, the Amending Law falls within the range of cases in respect of which s. 8 of the Basic Law provides that the violation does not lead to the invalidation of the legislation. We shall therefore turn to the said s. 8.

Violation of Rights – Section 8 of the Basic Law

74.  Section 8 of the Basic Law provides as follows:

There shall be no violation of rights under this Basic Law except by a Law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than required or by regulation enacted by virtue of express authorization in such law.

These are the cumulative elements of the aforesaid constitutional provision:

(a)The violation is carried out by means of a law or under a law by virtue of express authorization in it;

(b)The law fits the values of the State of Israel;

(c)The law is designed for a proper purpose;

(d)The violation is to an extent no greater than required.

75.  Section 8 reflects a balance between the constitutional interests and the interests reflected in the legislation that is subject to constitutional review. The determination regarding the existence of the right in the Basic Law and the duty to safeguard and respect it does not create absolute conclusive protection, which one cannot exclude and to which there are no exceptions. Rights are not absolute. They are constructed on a reality of a balance between the rights and the needs of all the individuals making up society, and the right of the state and society in general to exist.

The significance of this is that in every discussion regarding a constitutional right, a balanced view is required that takes into account not only the right of the person complaining of the violation, but also the rights of others who might be harmed by the unique, unbalanced grant of the right. This does not mean that rights are always equal and that it is not possible to determine preferences and priorities among them. The cry to save human life has priority over the right of a person to enjoy his afternoon rest. There are circumstances in which freedom of speech supersedes the right of a person to his good name. The solution is obtained, as noted, by means of balances that play a substantive role in every constitutional theory. Section 8 presents the substantive and principal balance required for recognition of rights under the Basic Law before us.

Deputy President Elon referred to the relativity of a basic right in HCJ 153/87 Shakdiel v. Minister of Religious Affairs [32], at p. 242, stating:

… It is an important rule that a basic right is not absolute but relative, and its existence and preservation are maintained by finding the suitable balance between the various legitimate interests of the two individuals or of the individual and the public, interests that are all anchored and protected by law.

My esteemed colleague President Barak writes:

Human rights are not absolute. These are relative rights that are dependent on the existence of a social framework that maintains them. The limitation clause expresses the social character of human rights set out in the Basic Law. These rights do not look at the individual as an isolated island; they do not deal with the individual’s relationship with himself. Human rights set out in the Basic Law look at the individual as part of society. They deal with the individual and his relationship with others. They assume the existence of close connections between individuals. According to the view of the limitation clause, the individual is a social creature. Indeed, the very existence of human rights assumes the existence of human society, in which mutual relations exist among the individuals in it. However, the limitation clause goes a step further. It also assumes the existence of a state that needs to realize national goals. It is based on the existence of government, which is designed to promote national purposes. Its premise is that the power of government given to the state is essential to its existence and to the existence of human rights themselves. The limitation clause reflects a national compromise between the power of the state and the right of the individual (Barak, in the work cited above, Interpretation in Law, Vol. 3., at p. 745).

This is the reason why the aforesaid s. 8, which sets out conditions limiting the validity of legislation that violates a right set out in the said Basic Law, also limits thereby the protection afforded by the Basic Law, as it sanctions a violating provision and leaves it valid. In other words, it is possible to have a violation of a basic right that will be regarded as valid because it satisfies the conditions of s. 8.

Section 8 governs cases where there is a violation of a right – such as in the instant case where we have concluded from the substance of the law that it contravenes the provisions of s. 3 of the Basic Law. Section 8 prevents the invalidation of the law on constitutional grounds, if it meets the requirements of balance that it enumerates. Section 8 therefore contains a provision possessing a dual load: one negative and the other positive.

The limitation clause, in the words of my esteemed colleague President Barak, ‘assumes the violation of a human right that is intended to protect a human right’ (ibid., at p. 476). The components of the limitation clause must be interpreted in this spirit: the significance and purpose of the conditions that are intended to create a balance between contradictory legitimate rights and create a hierarchy of preferences among various interests, all of which are designed to safeguard the essential values needed to maintain human dignity and liberty. A legitimate social interest may also be included in this zone, because – as noted – there may be circumstances where the violation of the right of a person is an act that is essential to save or succor many others. By the way, from this point of view, the legal structure described has a certain similarity to the standards applicable to the defense of “necessity strictu senso” in criminal law.

Breach of Law or by Law

76.  A provision that seeks to restrict a basic right must rely on an express statement in a law or ensue from an act that relies on an express authorization in a law (see also the Mitrani case [7]). The reliance on a statutory provision or on a provision relying on an express statement in a law is intended to formally anchor the provision in the written words of the primary law in Israel, in contrast to the abstract legal rule learned from the law. This is a qualification as to form that envelops a trend relating to content. The issue of form embodies – by virtue of its nature – the formality that relies on legality, and strengthens it.

With regard to the law that we are examining here, i.e., the Amending Law, the answer to the above requirement is clearly visible: The Amending Law is a law of the Knesset, and as such it meets, without any shadow of a doubt, the first condition of s. 8.

A Law Befitting the Values of the State of Israel

77.  No rights under the Basic Law before us may be violated save by a law ‘befitting the values of the State of Israel.’ We learn of the values of the State of Israel for our purposes from ss. 1 and 1A of the Basic Law, which state:

Section 1 Basic Principles:             Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life and the principle that all persons are free; these rights shall be respected in the spirit of the principles of the Declaration of the Establishment of the State of Israel.

Section 1A Purpose:                       The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.’

The values of the State of Israel are the values of a Jewish and democratic state. A reminder of the principles underlying these values is set out in s. 1A, which is quoted above. Thus, the requirement that a violation of a basic right – in order for it to be regarded as a lawful violation – will rely on statute that is not general and vague. Not every law contains a limitation that exempts a violation of a basic right from its constitutional ramifications. Only a law that, from the point of view of its character and substance, meets the criteria embodied in s. 8 will satisfy the conditions of the aforesaid component of the statutory provision with which we are dealing.

   78. In my view, the Amending Law – like its predecessor the Principal Law – befits the values of the State of Israel. Everyone acknowledges that a very grave crisis has befallen the agricultural sector, a crisis that has already lasted a number of years. Faced with the possible collapse of thousands of agricultural household units, the human suffering entailed in this, many agriculturalists’ loss of property and future – and consequently also the potentially substantial harm to the entire agricultural sector – the legislature chose to implement the option of an arrangement accompanied by rehabilitation, which it regarded as preferable to mere bankruptcy. In creating the idea of an arrangement with creditors that involves injury to creditors and their property, the law is not innovative. This possibility already exists under the laws of bankruptcy and corporate liquidations. However, the existence of a similar earlier model is not sufficient per se to deprive the new legal measure of its character as violating property. The new, innovative elements in the Principal Law and in the Amending Law are those that deny the status of the court and establish the form of the rehabilitation arrangements. As an aside it may be said that the idea of rehabilitation also gradually entered the field of bankruptcy and liquidation law (in the meantime through practical court guidance and not through comprehensive legislation).

Legislative action to save an economic sector has also been undertaken in other democratic countries, so that here too, the law before us does not represent anything new, see for example, the American Bankruptcy Judges, U. S. Trustees and Family Farmer Act, 1986. The intervention of the legislature, in the words of the bill which preceded the Principal Law (Family Agricultural Sector (Arrangements) Draft Bill), in order to find arrangements for the agricultural sector became even more vital after earlier arrangements failed to prove themselves, and left the agricultural sector in a deep crisis, that, it has been argued, even aggravated that crisis.

The legislation before us reflects the values of a society that believes in the responsibility of the state for the fate of its citizens, and that nurtures the sense that the citizens of the state are also responsible for each other. Paying attention to the fate of the working person is a worthy and even essential attribute of a regime possessing humane values, which recognizes the equality of human beings and is willing to provide the legal tools needed to provide possible solutions to their problems. Clearly, a debt arrangement is often dependent upon the cancellation of some debts or putting in place a moratorium of a similar character, and these violate the rights of the creditors.

79.  It seems to me that the courts whose decisions stand before us within the framework of CLA 1908/94 and 3363/94 expanded the court’s role to a degree greater  than was necessary in  inquiring into the question whether the legislation befits the values of the State of Israel. The court does not sit in judgment in order to administer the State economy. It does not rewrite the law. It does not transform secondary into primary in order to determine that legislation that it deems defective or otherwise wanting is inconsistent with the values of the State of Israel. The court is not called upon to declare what, in its opinion, would be a more fitting or enlightened legislative solution. The court is called upon to determine, in the context of s. 8, whether the subject statute, according to its general purpose, grosso mondo, is consistent with a Jewish and democratic state. Justice Black of the Supreme Court of the United States said in this regard:

‘Under the system of government created by our Constitution, it is up to the legislatures, not courts, to decide on the wisdom and utility of legislation. There was a time when the Due Process Clause was used by this Court to strike down laws which were thought unreasonable, that is unwise or incompatible with some particular economic or social philosophy…’

The doctrine that prevailed in Lochner, Coppage, Adkins, Burns and like cases – that due process authorizes courts to hold laws unconstitutional when they believe the legislature has acted unwisely – has long since been discarded. We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws. As this Court stated in a unanimous opinion in 1941, “We are not concerned ... with the wisdom, need, or appropriateness of the legislation.” Legislative bodies have broad scope to experiment with economic problems, and this Court does not sit to “subject the State to an intolerable supervision hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to secure” (Ferguson v. Skrupa (1963) [88], at 729-730 (per Black, J., for unanimous Court) (The case references have been omitted – M.S.).

I am aware of the fact that the approach to the argument regarding the violation of property rights is not uniform in every country, and that the various constitutional systems reveal a range of approaches, beginning with Canada’s complete avoidance of the constitutional debate on this issue, through the determination of a low level of willingness to intervene in matters of violation of property in the Supreme Court of the United States, and ending in courts that are active and intervene more in the review of political economic measures.

The approach whereby there is room to expand the scope of intervention, by entrusting the court with the task of an economic and material examination of every detail, condition and qualification in a law, in contrast to a substantive examination of the law will, in my opinion, grant the court powers that should be reserved to other branches, i.e., it will place the court in the position of a quasi-supreme legislative chamber which conducts supreme supervision for the sake of it, and holds the power of veto over policy (as distinct from constitutionality) expressed in the law being considered by it.

   An example of the approach that I find unacceptable is the determination by one of the courts in the matter before us, that the Amending Law does not befit the values of the State of Israel by reason of the fact that it only applies to the moshavim (arrangements) (and not to the kibbutzim (collective arrangements)). This determination – which, by the way, is also imprecise factually – is an example of a misguided basic approach, according to which only if the scope of the general application of the law meets the court’s satisfaction, can it be concluded that it is consistent with the values of the State of Israel. Economic legislation resulting from economic policy determines the scope of its application in light of the legislature’s discretion and in light of various economic factors that are not within the court’s knowledge or expertise. It is not for this that the power to engage in constitutional review was granted to the court, whether in Israel or in any other place where constitutional review of this type is conducted. In this context we should recall the decision of the Canadian legislature not to include the subject of infringement of property in the Charter.

80.  Let us now turn from the general to the particular. The courts of first instance found a series of flaws in the law, which led them to conclude that it does not befit the values of a Jewish and democratic state:

(a)As noted, the law only regulates the problem of a part of the agricultural sector, i.e., the moshavim, and in the opinion of the court, this is a violation of equality.

(b)The burden is imposed only on what the court termed a “random” and “unidentified” section of the public, i.e., on the creditors of the agriculturists who participate in the arrangement, as distinct from the imposition of the burden on the public as a whole. According to the court, this too amounts to a violation of equality.

There is no substance to the view taken by the lower court in CLA 1908/94 to the effect that the operation of the program which the law seeks to serve, by the imposition of debts on the creditors alone, amounts to a process that is inconsistent with the values of the State of Israel. The belief that the values of the State of Israel require that the entire tax-paying public bear the burden of covering the insolvency of defined public sectors has no basis. Had the Principal Law and the Amending Law not been enacted, the execution laws or the bankruptcy laws or both would have applied to the collection of the debts and the attempts to reach an arrangement. Would the financial loss ensuing from partial or non-existent collection of the debts of those unable to pay what they owed been imposed under these laws upon the public as a whole? Clearly, the answer to this is – no; and no one has ever suggested that this be done.

The same is true in relation to the argument, which is factually wrong, concerning the failure to cover the debts of the kibbutzim. As mentioned, the law applies to the debts of a certain number of named kibbutzim. Moreover, other measures have been taken to deal with the debts of the kibbutzim, then and now. However, even if the issue of the debts of the kibbutzim had not been included in the arrangement before us, this would not have deprived the law of its character as a law befitting the values of the State of Israel. The question facing the court was whether the law, which sought to settle the debts of thousands of households within the agricultural sector, was compatible, in terms of purpose and substance, with a democratic and Jewish state. The answer to this is affirmative, because the arrangement of debts in a broad economic sector is a worthy activity, both here and in other democratic countries in which farmers encounter similar difficulties. The legislature saw fit to choose, from among the alternatives, a solution that is not applied to all the citizens who have encountered economic hardship. This does not lead to the conclusion that it is unconstitutional.

With regard to the covering of debts by way of partial cancellation or the covering of debts using public funds, a law may establish an arrangement with creditors on the basis of cancelling debts and violating property without this being regarded as a conclusion that does not befit the values of the State of Israel or of any other state in the free world. For example, Jewish law in relation to the cancellation of debts (Deuteronomy, 15, 1-11 [A]) of course harms only creditors and not the entire public. The same is true of the modern laws of bankruptcy throughout the world. This is an economic necessity.  Achieving rehabilitation by means of arrangement of debts, even if this involves cancelling some of those debts, is on occasion the only way out, but this still does not mean that all the tax payers, as distinct from those who maintained connections with the debtor as part of their livelihood, are required to cover the debts and be responsible for their arrangement.

In conclusion, the court was mistaken in its belief that only a law that settles the debts by imposing the burden on the entire public, and which encompasses in its provisions all types of agricultural debtors (and why only agricultural?), is a law befitting the values of the State of Israel, and that every other law is deprived of this attribute and so-to-speak violates equality. As mentioned, the approach of the court reveals, to a large extent, an incorrect assessment of the function of the court and its discretion in relation to the issue under discussion. Instead of a relevant and realistic assessment of the law that was enacted, the court decided that constitutionality attaches only to modes of enactment that are optimal in terms of their wisdom or justice, according to the court’s view; in so doing, the court did not act within the scope of s. 8, but beyond and outside it.

In this context I accept the comments of Prof. F. Raday (“Privatizing Human Rights and the Abuse of Power,” 23 Mishpatim (1994) 21, 52) as also cited in the Attorney General’s response:

… In the choice between the various concepts of justice in the privatization of human rights, different pictures are seen by the court and the legislature. This fact leads them to choose different versions of justice: the legislature – the macro-socio-economic version of justice and collective justice; and the court – the legal-formalistic and individualistic version of justice. According to the principles of constitutional democracy in Israel, when there is a clash between these versions, the court must respect the policy of justice chosen by the legislature, being the version of justice that cannot be accused of not being for a proper purpose or of being inconsistent with the values of the State of Israel.

See also Williamson v. Lee Optical Co. (1955) [89], 489, where it was held:

The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind…  The legislature may select one phase of one field and apply a remedy there, neglecting the others... The prohibition of the Equal Protection Clause goes no further than the invidious discrimination…

And at pages 487-488:

… the law needs not be in every respect logically consistent with its aims to be constitutional. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.

To summarize this point: a reasonable, non-arbitrary solution expressed in a law can befit the values of the state, even if the court would have chosen a solution that would have been more just or sensible, in its opinion, had it been given the choice. The error of the court in cases such as the one before us lies in the search for a single solution, which it views as optimal, and only in which, it identifies the law that befits the values of the State of Israel. The court must be cognizant of the fact that there may be a wide variety, in the nature of a zone or area, of possible alternative solutions, and that every type of provision contained therein may fit the values of the state. Only a law that completely exceeds the array of legal alternatives will be rejected as lacking the attribute of compatibility.

Intended for a Proper Purpose

81.  The words “proper purpose” describe a purpose that is positive from the point of view of human rights and the values of society, including the purpose of establishing a reasonable and fair balance between the rights of different people who hold interests that are sometimes inconsistent with each other. A proper purpose is one that creates a foundation for living together, even if entails a compromise in the area of granting optimal rights to each and every individual, or if it serves interests that are essential to the preservation of the state and society. In the event that the law possesses a number of intertwined purposes, great, albeit not decisive, weight will be accorded to its dominant nature. At the same time, the secondary purposes should not be disregarded and their ramifications for human rights should be examined.

Thus, in order to satisfy the condition of s. 8, it is necessary to examine whether the legislation that violates the basic right – and which is examined under s. 8 – is of sufficient importance and weight to justify the violation of the right. It is not possible to ascribe importance and weight to a trivial purpose, whose constructive value is negligible, if the outcome is a substantive violation of a basic right. In order to justify a violation of a right, appropriate importance and weight must attach to the sought for purpose. In other words, the desired purpose must be important and essential in order to justify a violation of a right (see also the Canadian judgment R. v. Oakes (1986) [114]).

The purpose that emerges from the law may become visible between its lines upon perusal and examination only; however, it must be discernable, even if it is not declared, in order for it to be weighed against the violation and its significance. As mentioned, the persuasive burden rests upon the party claiming the existence of a proper purpose.

Moreover, the proper purpose must emerge upon examination by the court. For this purpose, the court is not bound exclusively by purposes borne in mind by the legislature. Certainly, there is a presumption that the legislature acted in good faith, and in any event we must not search for the concealed motives of individuals making up the legislative branch, in contrast to the purpose considered by the legislature as a collective legislative organ (see HCJ 620/85 Miari v. Knesset Speaker [33], at p. 187). The court examines the purpose that guided the legislature, as expressed in the reasoning of the person who proposed the law and in the majority opinion as formulated. At the same time, it may also become apparent at the time of examination of the final draft of the law and its ramifications.

82. (a)         In CLA 1908/94 the court held that the purpose of the Amending Law is not proper. According to the court, there was no indication of the fact that broadening the violation of the property rights of the creditors by the Amending Law was done for a proper purpose that could not have been achieved and realized by the Principal Law. The court stated that the Explanatory Note to the bill did not contain any details regarding the reasons for the amendment, and also at the time of the presentation of the issue in the Knesset, no relevant details were given regarding the difficulties of operating the Principal Law.

In the words of the court:*

… there is no explanation in the Amending Law why, in order to save the agricultural sector, it is necessary to broaden the violation of the fundamental principles of our society and the basic rights of its citizens…

In consequence of this, the court concluded that, in addition to the above, it also had not been proved that the violation was “to the required extent,” an issue that we will address separately.

(b)   I find the argument that the purpose of the Amending Law is the same as the purpose of the Principal Law to be reasonable. Both treat of the same issue, i.e., the effort to resolve the crisis in the agricultural moshav sector. This purpose is not ‘a violation of the basic principles of our society.’ The Amending Law did not introduce anything new to the basic purpose, but sought to reconcile difference, remove doubts, perfect methods and make modes of operation more efficient, in the light of the lessons of the past. As we have explained, the non-application of the Basic Law to the Principal Law does not deprive the court of its ability to examine the compatibility of the Amending Law to the principles of the Basic Law, so as to determine whether the Amending Law has a different purpose than that espoused by the Principal Law, in respect of which the explanations were fuller and more detailed.

Indeed, provisions that are not invalidated in the Principal Law, by reason of the provision in s. 10 of the Basic Law, may be invalidated in the Amending Law, which does not enjoy a similar provision regarding non-application. However, a close examination of the provisions of the Amending Law does not lead to the conclusion in the present case that the purpose, i.e., the solution to the crisis in the agricultural sector, is unworthy or that the purpose which is worthy per se is nonetheless flawed by reason of the fact that no details are given of the problems and difficulties ensuing from the operation of the Principal Law that required it to be amended. It should be clarified – as guidance for the future – that it would have been appropriate to inform the court of the cases in which the various courts had handed down decisions that were not uniform or were restrictive and which made it difficult to implement the provisions of the law. In the hearing before us, the following decisions, inter alia, were mentioned: OM (Jerusalem) 1635/92 [78]; OM (Tel-Aviv) 1229/93 [79]; LCA 3466/92 Artrekt Bankrupts v. Bankruptcy Trustee [34]; OM (Tel-Aviv) 49299/88 [80]; OM (Tel-Aviv) 1657/89 [81].

The term “basic debt” was interpreted in different ways, the question of the interest led to dispute, there were decisions regarding the severance of the hearing between the court and the Rehabilitator and further derivative matters, which required a clearer and more precise statement of the solution to the disputes raised before the court, in order to allow the attainment of the purpose set out by the legislature in the Principal Law.

As noted, it would have been correct, from the point of view of the State, to have presented in greater detail to the lower court the vast case-law which, so it was claimed before us, was contradictory and problematic. However, even if, regrettably, this was not done (and in the future it would be appropriate to follow this course) this, on its own, does not render the single and unequivocal purpose invisible and outside the judicial knowledge of the court. Indeed, in this case the court itself had dealt with some of the previous disputes that turned the legislative wheels and led to the enactment of the Amending Law.

To summarize this point: the purpose that faced the legislature was proper. There was no room for the conclusion that the delineation of the measures chosen to deal with the purpose confronting the legislature was unreasonable or fell outside the “zone” of proper purposes and measures. A decision regarding non-intervention by the court need not rely on the ratification of the one-and-only optimal solution. There may be a number of solutions, each of which serves a proper purpose.

Violation to an Extent No Greater than is Required

83.  This component of s. 8 addresses proportionality. It examines if the degree of the violation of a right is reasonably proportional to the purpose ensuing from the legislation (see also Prof. Z. Segal, “The Grounds for Disproportionality in Administrative Law,” 39 Hapraklit (5760) 507).

The purpose deals with the idea, the basic policy and the violation per se; in contrast, the ‘extent no greater than is required’ deals with the scope of the violation, measures and modes. It should be recalled that s. 8 treats of cumulative conditions: the conclusion that the purpose is proper is not enough. In addition, the means adopted must be within the realm of proportionality.

What is examined is whether the means adopted are essential and required in order to achieve the purpose, and whether they are in reasonable proportion to the purpose. A number of alternative measures may be possible to achieve a certain purpose, each of which meets the conditions of being essential and required. The court will invalidate a means that exceeds what is required or is not suitable to achieve the desired purpose.

In this connection, Justice White of the Supreme Court of the United States put forward the following premise in the case of Vance v. Bradley (1979) [90] at 97:

The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted. Thus, we will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.

The German constitutional system describes the essential points of proportionality (Verhaeltnismaeszigkeit) in four stages:

1.         Der Eingriff darf nur im Interesse des Gemeinwohls und nicht zu sachfremden Zwecken erfolgen (Gemeinwohl);  2. Die im Gesetz angeordnete Masznahme musz ein brauchbares Mittel zur Erreichung des vom Gesetz angestrebten Zweckes sein (Eignung); 3. die im Gesetz angeordnete Masznahme darf sich durch keinen milderen Eingriff ereichen lassen, d.h. die Masznahme musz das schonendste Mittel zur Erreichung des Gesetzeszweckes sein (Erforderlichkeit); 4. Mittel und Zweck muesen in einem angemessenen Verhaeltnis zueinander stehen (Zumutbarkeit; Verhaeltnismaeszigkeit im engeren Sinne) (Muench / Kunig, supra, at 54).

 

And in translation:

1.         Intervention may only be carried out for the benefit of the public and not for extraneous purposes (the benefit of the public).

2.         Performing the step ordered by the law must be an efficient measure (efficacious, performable) in order to achieve the purpose to which the law aspires (compatibility).

3.         The step ordered by the law is not achievable by utilizing a less serious measure. In other words, the step must be the less harmful measure needed to achieve the purpose of the law (necessity).

4.         The measure and the purpose must have a suitable relationship to each other (compatibility, proportionality in the narrower sense).

In other words, the following conditions are required:

1.The legal measure adopted must be for the benefit of the public;

2.It must be a usable and suitable measure to achieve the purpose of the law;

3.It must be the least harmful measure to achieve the statutory purpose;

4.The measure and the purpose must be reasonably related to each other.

84.  In the above-cited work on Interpretation, my esteemed colleague President Barak suggested three sub-tests for examining proportionality (Interpretation in Law, Vol. 3, at p. 536). I shall set out their gist below:

(a)Is the measure suitable or unsuitable to achieve the purpose? A connection of suitability is required between the purpose and the measure.

(b)Is it possible to achieve the same purpose using other measures that are less harmful to the protected human right?

(c)Is the violation of the right so serious that we should relinquish the achievement of the full, proper purpose and adopt measures that are significantly less harmful to the protected human right (even though the full purpose will not be achieved)?

 Test (c) above is, in my view, more a conclusion than a standard. In any event, in my view, it raises difficult questions in the area of judicial review of economic legislation: Will the court decide, for example, that the proposed taxation is too high in order to achieve a particular purpose that is found to be proper, and cancel it completely? Or perhaps it will set a lower tax ceiling? Will it decide, for example, that a moratorium will only apply to 25% of the debts and not to 40% of them? The court faces a proper purpose. The measure is suitable to achieve it. There is no reasonable measure that is less harmful to achieve the proper purpose. Is it conceivable that, in such circumstances, the court will order a retreat from the proper purpose that has been adopted as the economic policy of the legislature, i.e., order that the achievement of the proper economic purpose be renounced in whole or in part?

 In my opinion, the court should examine whether the measure is  substantially related to the proper purpose and whether the measure adopted is rationally related to the proper purpose. The substantive test corresponds to subsection (b) above. The logical test corresponds to test (a) above. The court examines whether the measure chosen is related substantially and rationally to the proper purpose.

Put differently, in my opinion it is necessary to establish as a cumulative test by which a measure will be regarded as being of appropriate proportionality if it:

 (a) is related substantially to the purpose, i.e., the test of compatibility; and that

 (b) it is rationally related to the purpose; and

 (c) among the array of measures to achieve the purpose, there is no similar or close measure, which is included in the zone of reasonable possibilities, that can achieve that purpose.

85.  With regard to the aforesaid test (c) which is the product of the theory of stages (Stufentheorie) it should be added and clarified that we are referring to a search for a less harmful measure within a range or zone of similar or close possibilities, and it is not necessarily possible to stay at the bottom of the ladder, i.e., apply the most lenient option. Moreover, in order to search for the measure that is least harmful, the court does not redraft the purpose and does not redraft the program. Facing it is a purpose and measures as formulated by the legislature, and it examines them in terms of their substance, consequences and ramifications. If the purpose is proper, and if the measure is suitable to achieve the purpose and is substantially related to it, and if the measure is rationally related to the purpose, and if there is no measure less severe that falls outside the zone of admissible alternatives, then the court is entitled to regard it as a measure that does not exceed what is required.

This is the place to add a clarification regarding the burden of persuasion in connection with the “appropriate extent.” The sweeping duty to show the application of s. 8 rests on the party claiming its existence. However, within the framework of the specific examination of the element of the “appropriate extent” the evidentiary burden shifts to the party claiming the existence of a violation. What does this mean? The state adduced evidence regarding the existence of the other elements, namely, that the violation was carried out by means of a law or under a law; the law befits the values of the State and the law is intended for a proper purpose. The party claiming the existence of less severe alternatives beyond the zone of possibilities adopted by the legislation bears the burden of bringing the evidence. In other words, the State presents the path chosen by it, and of course the set of factors underlying that choice. However, it does not have to, and cannot, of its own initiative, lay out the entire range of endless other possibilities that could have been pursued to achieve the same objective. This is something that is completely unfeasible. The party asserting the existence of another course of action, which is less grave, fairer, more reasonable, and which can justify the intervention of the court to invalidate the conditions authorizing the legislation, as these arise from s. 8, bears the burden of bringing evidence, and if he does not show the existence of such alternatives, we will be compelled to conclude that the path chosen by the legislature does not exceed the appropriate degree.

To summarize the discussion of this element of s. 8, I would emphasize again that the court must not take upon itself the general function of reshaping purposes and economic or fiscal policies, respectively. This is not justified in a healthy constitutional relationship between the branches. The legislature determines the policy, and on that basis delineates the purposes and measures. In the words of my esteemed colleague the President, ibid., at p. 553, the question that the judge must ask himself is not what is the law that draws a proper balance between the needs of the individual and the needs of the whole which ‘I would have enacted had I possessed the power.’ The question that the judge must ask himself is: ‘does the law that was in fact enacted draw a balance between the needs of the individual and the needs of the whole in a manner that satisfies the requirements of the limitation clause.’ If the answer to this question is positive, the judge must acknowledge the validity of the law and its power to legally violate a protected human right, even if the choice of purpose or means does not seem desirable to the judge and he would have chosen a different mode of action. As already mentioned, the judge is not responsible for examining the wisdom of particular legislation but only for examining its constitutionality.

86.  We shall also consider the measures before us in accordance with these tests. I am not persuaded by the contention that the measure exceeds the degree necessary and required, is greater than required and that it is possible to achieve the required solution by another means. Every state arrangement of debts entails a search for exhaustive means of paying the debts, while attempting, in so far as possible, to preserve the economic unit to which the arrangement applies. Arrangement of debts often entails the relinquishment of some of the debts or suspension of collection. This is the general framework that was adopted here. It serves the purpose. It is consistent with the purpose that has been found to be proper, and there are no grounds for invalidating it.

87.  To summarize: The Amending Law satisfies the requirements of s. 8 of the Basic Law, and therefore the violation of property ensuing from the Amending Law must be regarded as a constitutional violation. Accordingly, in my view, there was no room for the declaration of the invalidity of the Amending Law.

88.  We have written at length. The primary reason for this is the need to try to present the guidelines that will serve us in the future when examining the constitutionality of laws under Basic Law: Human Dignity and Liberty.

In this context, it is proper to recall that in countries possessing a constitutional tradition longer than our own, it is customary to examine claims of unconstitutionality with caution and restraint. Unique rules have been shaped to serve the courts that are asked to decide upon the invalidity of legislation on constitutional grounds. Justice Brandeis dealt with this issue extensively in his judgment in Ashwander v. Tennessee Valley Authority (1936) [91].

The Ashwander case [91] concerned the purchase of facilities, land and stored energy by the Tennessee Valley Authority from the Alabama Power Company. Some of the stockholders in the Alabama Company brought an action for the invalidation of the contractual transaction, inter alia, on the grounds that it exceeded the constitutional powers of the Federal Government.

Justice Brandeis reiterated the rules requiring restraint when engaging in an examination of constitutionality, stating:

Considerations of propriety, as well as long-established practice, demand that we refrain from passing upon the constitutionality of an act of Congress unless obliged to do so in the proper performance of our judicial function, when the question is raised by a party whose interests entitle him to raise it.  Blair v. United States 250 U.S. 273, 279.

The Court has frequently called attention to the “great gravity and delicacy” of its function in passing upon the validity of an act of Congress’ (ibid., at 341, 345).

He added a series of guidelines (ibid., at pp. 345-346), which were based on previous extensive case law, and which can also provide us with material for thought, after independent sifting and harmonization.

89.  These are the guidelines set out by Justice Brandeis:

(a)The court will not pass upon the constitutionality of legislation in nonadversary proceedings, because deciding such a question is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between litigants. Inter alia, the judge noted that a party beaten in the legislature could not transfer to the courts an inquiry as to the constitutionality of the legislative act.

(b)The court will not customarily decide questions of a constitutional nature unless it is absolutely necessary to a decision of the case.

(c)The court will not formulate a rule of constitutional law broader than is required by the concrete facts before it to which it is to be applied.

(d)The court will not pass upon a constitutional question although properly presented, if there is some other ground upon which the case may be disposed. If a dispute can be decided on either of two grounds, one involving a constitutional question, the other a question based on statutory construction or general principles, the court will decide only on the basis of the ground of the second type.

(e)The court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.

(f)The court will not pass upon the constitutionality of a statute upon complaint of one who has availed himself of its benefits.

(g)When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that the court first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.

With regard to the fifth rule above, both here and in England and in the United States, the right of standing has been expanded in contemporary times, and it has also been granted in defined circumstances to persons who have not been directly injured by the action of the authority (see here: HCJ 852, 869/86; HCJApp 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87 Aloni v Minister of Justice [35]; HCJ 1/81 Shiran v. Broadcasting Authority [36]; HCJ 428, 429, 431, 446, 448, 463/86; HCJApp 320/86, [9]; and see also H. W. R. Wade, Administrative Law (Oxford, 5th ed., 1982) 583; Dr Z. Segal, Right of Standing in the High Court of Justice (Papyrus, 2nd ed., 1994).

90.  As noted, the fundamental approach expressed in the rules, and the spirit emerging from them are worthy of attention and thought, because the experience gathered in other places in the area under discussion here can assist us. We do not reject comparative study and research in any field of law, and generally it proves valuable.

91.  In CA 6821/93, the appellant raised an alternative argument whereby ‘even if the court decides that the amendment is valid and applies to these proceedings, under the law in its amended format the provisions of the Gal law should not be applied to the respondents.’ According to the appellant ‘the decisive question in this case is the identity of the principal debtor, and the fact that the guarantor is obliged to pay the debt by virtue of his guarantee does not turn the debt into the debt of the guarantor and thereby lose its connection to the principal debtor.’ The appellant adds that the construction whereby the debt of the guarantor who is an agricultural unit is deemed to be a “total debt,” contravenes the restrictive policy that the Supreme Court ascribes to the provisions of the law.

The appellant’s contentions must be dismissed. The purpose of the law, i.e., the attempt to resolve the severe crisis affecting the agricultural sector by way of creating a new framework that would enable the rehabilitation of the agricultural sector, and the clear language of the law (see the definition of “debt” and “total debt” in s. 1 of the Principal Law), show that whereas the debts of an agriculturalist and a member of an agricultural association, which are included within the definition of a “total debt,” are limited to those that stem from the business of these debtors as agriculturalists, no such restriction is placed in relation to an agricultural unit, that is not an agriculturalist and member of an agricultural association. Every debt of an agricultural unit, that is not an agriculturalist and member of an agricultural association, is a total debt, without distinction as to the source from which it stems and how it accrued, provided, however, that it existed on 31 December 1991.

Conclusion

92.  The principle findings in my judgment are as follows:

(1)Legislation in Israel is constructed on the basis of a normative hierarchy.

(2)At the top tier of the normative hierarchy stands constitutional legislation.

(3)Our constitutional legislation is expressed today in the Basic Laws. These will eventually be combined in a single, complete, unified constitution.

(4)Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty are constitutional legislation.

(5)The supreme sovereign legislature is the Knesset: it is the Knesset that is empowered to enact constitutional legislation and to enact ordinary legislation. It is also empowered to promulgate regulations if it so determines in law.

(6)No provision contained in one of the said Basic Laws may be varied or repealed, save in a Basic Law or by virtue of it. It is right to adopt this principle in relation to all the Basic Laws.

(7)A provision contained in one of the said Basic Laws cannot be violated save by a Basic Law or by virtue of it. It is right to adopt this principle in relation to all the Basic Laws.

(8)The Knesset is empowered, through its legislation, to place restrictions on future legislation whether that legislation be constitutional or ordinary. The self-limitation may be formal or substantive.

(9)An amendment to an existing law that was enacted after the commencement of Basic Law: Human Dignity and Liberty is subject to the provisions of the said Basic Law.

(10)The court is competent to engage in judicial review of the constitutionality of legislation.

(11)The Amending Law being considered in these appeals violates property; however, it meets the requirements of s. 8 of Basic Law: Human Dignity and Liberty and accordingly is valid.

93.  The Basic Laws are the defensive shield of the citizen’s rights. Their interpretation within the framework of this judgment will clarify and strengthen, preserve and entrench them. This was the intention of the legislature when enacting the Basic Law, and this is the purpose of the interpretation undertaken by the court.

94.  Accordingly, I would uphold the appeals in CLA 1908/94 and 3363/94 and set aside the judgment of the lower court and dismiss the appeal in CA 6821/93.

There is no order as to costs.

 

President A. Barak

In March 1992, the Knesset enacted Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of these two Basic Laws effected a substantive change in the status of human rights under Israeli law. Such rights became constitutionally protected and were accorded supra-legislative constitutional status. They cannot be changed by ‘regular’ legislation. A regular law cannot infringe a protected human right unless the constitutional requirements set forth in the Basic Law have been met. The failure of a regular law to meet those requirements renders it unconstitutional. Such a law is constitutionally flawed and the Court may declare it void.

 

Israel is a constitutional democracy. We have now joined the community of democratic countries (among them the United States, Canada, Germany, Italy and South Africa) with constitutional bills of rights. We have become part of the human rights revolution that characterizes the second half of the twentieth century. The lessons of the Second World War, and at their center the Holocaust of the Jewish people, as well as the suppression of human rights in totalitarian states, have raised the issue of human rights to the top of the world agenda. International accords on human rights have been reached. Israel has acceded to them. International tribunals have been established to address issues of human rights. The new constitutions include extensive sections treating of human rights – particularly at the head of those constitutions and in their unique entrenchment provisions. Judicial review of the constitutionality of laws infringing human rights has become the norm in most countries. This revolution has not passed us by. We joined it in March 1992.

 

A. The constitutional revolution in human rights

 

1. The constitutional revolution occurred in the Knesset in March 1992. The Knesset endowed the State of Israel with a constitutional bill of rights. This revolution was many years in the making and was the result of a multi-dimensional legislative process. At its foundation rests the recognition that the Knesset is the body that has the authority to enact a constitution for Israel. The Knesset is not only empowered to adopt ‘regular’ legislation; it is also empowered to adopt a constitution. The Knesset exercised this authority in enacting two Basic Laws on human rights. In so doing it created a supreme, supra-legislative constitutional norm. In the normative hierarchy that was thereby created, the two Basic Laws treating of human rights stand above regular legislation. A conflict between a provision of one of these two Basic Laws and a provision of a regular statute leads to the invalidation of the offending statute.

 

2. When it enacted the Basic Laws pertaining to human rights, the Knesset expressed its position with regard to the supreme legal-constitutional status of those laws. Today the Supreme Court expresses its legal position confirming that supreme status. Thus the legislative branch is in accordance with the judicial branch. The constituent authority coincides with the judicial authority. An order has been established regarding the constitution in general and regarding the human rights set forth in the Basic Laws in particular. The Knesset did not create the Basic Laws ex nihilo. Rather, the Knesset enacted the two Basic Laws in accordance with its constituent authority. This authority is granted to the Knesset, as is evident against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, and the ten Basic Laws that the Knesset has enacted from 1958 until the enactment of the Basic Laws dealing with human rights (Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Army; Basic Law: Jerusalem Capital of Israel; Basic Law: The Judiciary ; Basic Law: The State Comptroller). The Supreme Court did not create something ex nihilo. Our decision today is consistent with established precedent, beginning with the Bergman case (HCJ 98/69 Bergman v. Minister of Finance [15]). As recently as last year, we recognized the Knesset’s authority in this regard (see HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37]). Today we continue on the same path.

 

3. The constitutional revolution in the field of human rights is built upon the foundation of judicial precedent. The Knesset has used its constituent authority to endow a number of legally protected human rights with constitutional supra-legislative status. Without the established legal underpinning, the constitutional change could not have been effected. ‘We would not have arrived at the secure position that human rights occupy today without the strong foundation established by the judges who preceded us’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 414). It would not have been possible to construct a constitutional framework in the area of human rights had not the established judicial precedent been in place. Without judicially protected human rights, constitutionally protected human rights would be unknown to us. Without Israel’s democratic past there is no basis for Israeli constitutional democracy in the present or the future. The constitutional revolution in the area of human rights is the product of the jurisprudential developments in the protection of human rights. This constitutional structure is built upon a foundation of legal precedent. In this way, clear expression is given to the ‘ongoing cooperation’ between the Court and the Knesset (Justice Agranat, The Contribution of the Judiciary to the Legislative Enterprise, 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 233). Moreover, the new constitutional law must be interpreted against the backdrop of the general national experience. Constitutionally protected human rights must be understood in the context of established judicial precedent. This precedent does not diminish in power. It continues to be a source of interpretive insight in construing constitutionally protected human rights.

 

4. The constitutional revolution is not manifested by the simple recognition of human rights. This recognition has long been established in Israeli judicial precedent. Rather, the constitutional revolution is seen in the changed constitutional status of human rights; the constitutional revolution is seen in the establishment of constitutional status for ‘basic principles’ according to which ‘fundamental human rights in Israel are founded upon a recognition of the value of the human being, the sanctity of human life and the principle that all persons are free...’ The constitutional revolution is expressed in the determination that human rights ‘will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel’ (s. 1 of the Basic Law: Human Dignity and Liberty; s. 1 of the Basic Law: Freedom of Occupation). The constitutional revolution is expressed in the granting of constitutional status to the clause that a person’s honor and freedom must be protected ‘in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1A of the Basic Law: Human Dignity and Liberty; see also s. 2 of the Basic Law: Freedom of Occupation). Accordingly, the legal rights of a person in Israel are no longer unwritten (Justice Landau in HCJ 243/62 Israel Broadcasting Studios Ltd v. Gary [39] at p. 2415). They have become constitutional rights, engraved upon the pages of the constitution and enjoying normative supremacy. A regular law that infringes a constitutional right in a manner that is inconsistent with the values of the State of Israel as a Jewish and democratic state, that does not serve a proper purpose, and that violates the right to an extent greater than is required is an unconstitutional law and may be declared void. When a regular law infringes a constitutional right protected in the Basic Law: Human Dignity and Liberty, does not meet the requirements of the limitation clause and provides – expressly or implicitly – that it is intended to infringe a human right, such a law is unconstitutional and the Court may declare it void. This is the essence of the constitutional change. This is unprecedented. Until now the prevailing view in Israel was that ‘the all-powerful legislature may permit harm to citizens without any legal or judicial limits.’ (Justice Sussmann in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [40], at p. 1079; ‘This is the decree of the legislature; if it leads to discrimination, such discrimination is sanctioned by legislation and is therefore lawful and not invalid’ (Justice H.H. Cohn in HCJ 120/73 Tobis v. State of Israel [41], at p. 359). Justice Berinson has summarized this as follows:

 

It is beyond doubt that according to the prevailing constitutional rule of the State, the Knesset reigns supreme and it is within its power to enact any law and fill it with content at its whim. One may not consider the possibility that the clauses of a legally enacted law might be declared invalid for one reason or another. (HCJ 228/63 Azuz v. Ezer [18], at p. 2547).

 

This constitutional outlook has now changed. The Knesset is no longer all-powerful in exercising its legislative authority. In the area of human rights, the Knesset has limited its legislative powers by exercising its constituent authority. This is the basic constitutional change. For the first time, in March 1992, the Knesset established a range of constitutional human rights that limit the legislative power of the Knesset and that condition their infringement upon the realization of the values of the State of Israel as a Jewish and democratic state. For the first time the Supreme Court affirms the constitutional supra-legislative effect of the Knesset’s action. In light of the novelty of this issue, because of the different opinions on this matter and against the background of the comprehensive decision of my colleague President Shamgar, it is fitting that I address various questions that arose before us in an attempt to answer them.

 

In the first part of this decision I discuss the constitutional framework. In this section, I address the question of whether the Knesset is authorized to enact a constitution for Israel. I will answer this question in the affirmative, for the Knesset has not only legislative power, but also the power to enact a constitution for Israel; in other words, it is endowed with constituent authority. In the context of this section I address the question of how the Knesset makes use of its constituent authority and whether, in fact, it did so properly in enacting the two Basic Laws treating of human rights. I answer this question affirmatively as well. I examine the normative status of the two Basic laws and their relation to regular legislation. I then conclude the examination of the legislative framework with the question of whether, in light of the two Basic Laws, judicial review can lie of the constitutionality of regular legislation. The answer to this question is also affirmative.

 

In the second section I concentrate on the Basic Law: Human Dignity and Liberty. I begin with an examination of its constitutional implications. I briefly discuss the scope of the protected rights, and will concentrate primarily on the nature of the right of property, which the Appellants claim has been violated. I consider the Knesset’s power to infringe protected rights by analyzing the limitation clause.

 

In the third and final section of my decision I consider whether the provisions of the Family Agricultural Sector (Arrangements) (Amendment) Law infringe constitutionally protected rights. I answer this question in the affirmative. Against this background I consider whether the law, which infringes those rights, meets the requirements of the limitation clause. I answer this question affirmatively, as well.

 

B. The constitutional framework

 

I) The source of the Knesset’s authority to enact a constitution for Israel

 

a) The doctrine of constituent authority

 

5. The opening question is, of course, whether the Knesset is endowed with the authority to enact a constitution for Israel (‘constituent authority’) and, if so, what is the source of this authority. President Shamgar has proposed several views on this matter. Choosing between them is not necessary in order to decide the issue before us in this appeal. I will therefore present my opinion in this matter.

 

It seems to me that that most appropriate view is that the Knesset is endowed with constituent authority. This power derives from the central constitutional fact that Knesset was given the authority to enact a constitution for Israel. The Knesset does not create this authority for itself. It is not granted to the Knesset by a Basic Law or by any other law enacted by the Knesset. In order to frame a constitution, which will be placed above the law in the normative hierarchy, there must be an Archimedean foothold located outside the constitution or the law, which provides the Knesset with the authority to adopt a constitution. The constitution cannot create the authority by which it will be created. Statute cannot create a constitution to which statutes will be subject. Nor can legislation create the authority by which it will be created. The enactment of a constitution always requires a foothold outside the legislative body. This foothold must come from the people, whose will is supreme. Thus, the doctrine of the Knesset’s constituent authority is based upon the principle that this authority derives from the sovereign, i.e. the people. Constituent authority endows the Knesset with the power to enact a constitution for Israel (as embodied in the Basic Laws). This authority endows the Knesset with the power to enact regular laws as well as to act in other ways (for example, to supervise the government). Indeed, the Knesset wears a number of ‘hats’ or ‘crowns,’ among them the crown of constituent authority – under which the constitution is adopted (by enactment of the Basic Laws) –  and the crown of legislative authority,   under which legislation is adopted. Three legal models may illustrate this view. Each model stands alone as a basis for the doctrine of constituent authority. That all lead to the same conclusion lends that conclusion greater weight. I will begin with a brief introduction to each of the three models. I will then present the constitutional facts that sustain the models.

 

b) Presentation of the three models

(i) Constituent authority is derived from the basic norm

 

6. The first model is based upon the importance of constitutional continuity. Under this model, the basic norm for Israel (the Grundnorm, according to Kelsen, see H. Kelsen, Pure Theory of Law (Knight trans. 1967), at p. 193) is that the Provisional Council of State is the supreme authority of the State of Israel (see I.H. Klinghoffer, “The Establishment of the State of Israel: Constitutional History,” Klinghoffer Book on Public Law, (ed. I. Zamir, 1993), at p. 74). The Provisional Council of State declared in the Declaration of Independence that a constitution would be drawn up ‘by the elected Constituent Assembly’ In addition, the Provisional Council of State declared itself the legislative body (in the Law and Administration Ordinance, 5708-1948).

 

The Constituent Assembly was elected (on January 25, 1949), and with its establishment the Provisional Council of State was dissolved. Its powers passed to the Constituent Assembly (Transition Law, 5709-1949). The Constituent Assembly therefore had two main powers: constituent authority and legislative authority. The same entity was given two functions, two ‘crowns’ or ‘hats’ as it were: one constituent (to adopt a constitution), and the other legislative (to enact ‘regular’ legislation). This arrangement, in which constituent and legislative authority are granted to the same entity, is widely accepted (see Akzin, The Doctrine of Governments, vol. 2  (1966), at p. 35; Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Univ. L. Rev. (Mishpatim) 52 (1970)). The Constituent Assembly provided (in the Transition Law) that ‘the legislature of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” The delegates will be known as “Members of Knesset.”’
(s. 1). The First Knesset (i.e. the Constituent Assembly) devoted considerable time to debating the matter of the constitution. These debates concluded with a compromise decision (the “Harrari Decision”), according to which:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter comprising a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

Before it dispersed, the First Knesset provided that all of its powers would pass to subsequent Knessets (Second Knesset (Transition) Law, 5711-1951). To avoid doubt, it was emphasized that this transfer would also include all powers of the Constituent Assembly (see s. 9). The Second Knesset dealt with the preparation of Basic Law: The Knesset but did not succeed in adopting that law. Only the Third Knesset succeeded in adopting the first Basic Law: Basic Law: The Knesset. Since then, Basic Laws have been enacted by the various Knessets. From this brief survey, the first model concludes that the constituent authority of the Constituent Assembly has rested continuously in the hands of the Knesset.

 

(ii) Constituent authority is derived from the rule of recognition

7. The second model supporting the Knesset’s constituent authority is not based upon constitutional continuity. Rather, this model examines the constitutional structure as it exists at any given time. It is based upon the thesis of Professor Hart. Professor Hart distinguishes between primary and secondary norms. Secondary norms determine how the primary norms are created, how they may be changed and how disputes concerning them may be resolved. Among the secondary norms the “rule of recognition” occupies a preeminent position (see H. L. A. Hart, The Concept of Law (second edition, 1994), at p. 100). This rule determines how primary norms are created as well as their relative status – which is a superior norm and which is subordinate. The rule of recognition is determined by the Court, which does not make this determination at its own whim. Rather, it reflects the views of the community as to the way in which norms (including constitutional norms) are created. Under this model, one may determine that the rule of recognition of the State of Israel is that the Knesset is endowed with both constituent and legislative authority. This determination does not reflect a subjective judicial position. It reflects an objective position as to the “system of national life” of the State of Israel (Justice Agranat in HCJ 87/53 Kol HaAm Co. Ltd v. Minister of Interior [4], at p. 884). The basic understanding of today’s Israeli community – expressing our entire national experience – is our national consciousness that the Knesset is the body authorized to enact a constitution for Israel. This consciousness originated before the establishment of the State, and in the preparations for the framing of a constitution. This consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the socio-legal understanding that the Knesset is endowed with constituent authority. It became part of our political culture. Based on these factors the Justices of the Supreme Court determine today that according to the rule of recognition of the State of Israel, the Knesset was given constituent and legislative authority; that the Knesset is authorized, in using its constituent authority, to limit its regular legislative authority; and that the constituent acts of the Knesset stand above its legislative acts. The historic journey – upon which the first model is based – is an important factor in the second model as well. Constitutionality and the constitution are not merely formal instruments. They are not mere law. They are the product of the national experience, of society, education and culture. They reflect the national experience. Our national experience, in today’s comprehensive view, leads to the conclusion that the Knesset has the authority to enact the constitution.

 

(iii) Constituent authority is the best interpretation of social and legal history

 

8. The third model for the constituent authority of the Knesset is also an empirical model. It seeks the best interpretation of the entire social and legal history of a given system at a given time. This is Professor Dworkin’s model (see R. Dworkin, Law’s Empire, (Cambridge, 1986); R. Dworkin, A Bill of Rights for Britain (London, 1990)). Under this model one may conclude that a given body (such as the parliament) is empowered to enact the constitution for a country if that conclusion is the best interpretation of the body of social and legal history of that country. In applying this model to Israel, it appears that the interpretation that best fits the entirety of Israel’s social and legal history since its establishment is that the Knesset is empowered to enact a constitution for Israel. This conclusion is based upon the same factors as those underlying the first and second models. Thus the best interpretation of our constitutional history is not that the Knesset wasted its time by spending over forty years preparing a constitution; the best interpretation of our constitutional history is not that some of the entrenched provisions of the Basic Laws are unenforceable; the best interpretation of our constitutional history is not that the various judicial decisions dealing with the Basic Laws miss their mark. On the contrary: in interpreting our legal and social history, its ways and its traditions, as that history presents itself today – against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, the election campaigns in which the stated goal of the parties was the adoption of a constitution, the enactment of twelve Basic Laws that include entrenchment and limitation clauses, judicial precedent and the reaction of the Knesset thereto, and the position of the legal community – the inescapable conclusion is  that the most fitting interpretation of our history is that the Knesset is endowed with constituent authority. This is the most fitting explanation for the Knesset’s power to establish that a Basic Law may only be changed by another Basic Law, that the regime anchored in a Basic Law may be amended only by a law passed by a specified majority (a majority of the Members of Knesset or other greater majority) or by a law that meets substantive requirements, that the Knesset is empowered with constituent authority such that it may create a constitutional norm that limits the ways in which it may be changed and entrenches itself against regular legislation. Indeed, the most fitting interpretation of the entirety of the socio-legal history of the State of Israel is that deeply ingrained in the social and legal consciousness of the Israeli community is the perception that the Knesset is empowered to adopt a constitution for Israel. This is part of our political culture. This is the most fitting interpretation of our social and legal history from the establishment of the State until today.

 

c) The constitutional data underlying the three models

(i) Survey of the constitutional data

 

9. The three models do not derive from the judge’s subjective perception. They do not arise from his personal desire to recognize or refuse to recognize a constitution for Israel. They are the result of an objective analysis of the constitutional history of the State of Israel. They result from the constitutional recognition of the Israeli community against the background of our short legal history. They result from an understanding of the social facts upon which the Israeli system is built. These are the constitutional facts from which the three models derive, each from its own perspective. I will now present these factors. I open with those factors that evidence constitutional continuity (paragraphs 10-18). These factors are particularly important in the context of the first model, which sees constituent authority as derived from the basic norm. Of course they serve the other two models as well. I then move to the Knesset’s perception of itself (paragraphs 19-31). This is also an empirical factor that provides the basis for the Court’s conclusion according to each of the three models. From there I will focus on the understanding of scholars and commentators (paragraphs 32-34). This factor is an important one, for it presents the view of the Israeli legal community as to the Knesset’s authority to enact a constitution for Israel. This is important in all three models, particularly the second and third. Finally I will discuss the judicial caselaw of the Supreme Court (paragraphs 35-37). Two Supreme Court decisions have adopted the doctrine of constituent authority in its entirety. In the context of these constitutional factors, I will discuss the body of judicial precedent, which implicitly recognizes the normative supremacy of the Basic Laws. I will complete this analysis with a number of conclusions that are common to all three models and which arise from this objective data.

 

(ii) Constitutional continuity

 

10. May 15, 1948 is the point of departure for the view that the Knesset has constituent authority. On that day the State of Israel was established. The basic norm of the State – its superior norm, which is not itself part of the body of positive law, but provides a basis for the other legal norms of the state – is that the Provisional Council of State is the supreme legislative institution of the State (see Stemberg, “The Basic Norm of the Law In Israel,” 9 HaPraklit (1952) 129. Professor Klinghoffer suggested this in stating that:

 

In order to claim constitutional continuity in Israel’s present legal system, one may look at how authority was transmitted in the past. The Declaration of Independence does not refer to the powers of the Provisional Council of State until the statement in which the National Council declares itself the Provisional Council of State. There is, however, no doubt that the Provisional Council of State was seen as the supreme authority of the new state. The absence of any statement of its powers is evidence that those powers were not intended to be limited. From this we may conclude that the basic norm of the State of Israel can be found in this statement, which transforms the National Council into the Provisional Council of State’ (Klinghoffer, ibid., at p. 74).

In a similar vein, Professor Rubinstein states:

 

The Council’s authority to delegate to itself this power in the Declaration is without precedent. This is the beginning of the process of original creation that characterizes the inauguration of a new governmental regime which does not derive its existence from any previous or other regime’ (A. Rubinstein, The Constitutional Law of the State of Israel, (expanded fourth ed., vol. 1 (1991)), at p. 42).

 

The Provisional Council of State decreed in the Declaration of Independence that a constitution would be enacted by the Constituent Assembly, which in turn would be elected no later than October 1, 1948. It thus gave expression to the Resolution of the General Assembly of the United Nations of 28 November 1947, according to which ‘the constituent assembly of each State will enact a democratic constitution for its respective State.’ As stated in Israel’s Declaration of Independence:

 

We hereby declare that as of the termination of the Mandate at midnight, this night of the 14th and 15th May, 1948, and until the setting up of the duly elected bodies of the State in accordance with a Constitution, to be drawn up by a Constituent Assembly not later than the first day of October, 1948, the present National Council shall act as the provisional administration, and shall constitute the Provisional Government of the Jewish State, which shall be known as “Israel.”

 

The Provisional Council of State published the proclamation and enacted the Law and Administration Ordinance, 5708-1948. This statute provided, inter alia, that ‘the Provisional Council of State is the legislative authority’ (s. 7(a)). The Provisional Council of State similarly enacted the Constituent Assembly Elections Ordinance. In the course of its activity, it appointed a special committee on the constitution headed by Mr Z. Warhaftig. ‘The committee’s function was to collect, clarify and organize proposals and material and to prepare a draft constitution that would be submitted with comments and criticism by the minority of the committee for the use of the Constituent Assembly’ (Rubinstein, ibid., at p. 44). Indeed, the accepted view then was that the Assembly would prepare and draft a constitution for Israel. The Supreme Court expressed this view in the Al-Carbotelli case [42], in the context of a review of existing precedent as to the status of the Declaration of Independence (HCJ 10/48 Ziv v. Acting District Commissioner of Tel-Aviv [43], at p. 85). It stated that ‘the Court did not accept the claim that the Declaration of Independence is a constitution, against which the validity of legislation will be measured until the Constituent Assembly enacts a constitution as provided in the Declaration’ (HCJ 7/48 Al-Carbotelli v. Minister of Defense [42], at p. 13).

 

11. The Constituent Assembly was elected on January 25, 1949. As stated in the Declaration of Independence, its role was to draft a new constitution for the State. According to the original plan, and as envisioned by the Declaration, upon its election the Constituent Assembly was to have existed simultaneously with the Provisional Council of State. These two were to have been separate entities, each with its own composition and its own function. The Provisional Council of State was to have continued to exist in its role as legislative body. Its role was to enact the laws of the new State as they were needed. As evidenced by its name, this was to have been a provisional entity, which was to have been replaced by the ‘duly elected bodies of the State in accordance with a Constitution’ (Israel’s Declaration of Independence). The Constituent Assembly, whose only role was to enact a constitution for the State, was meant to operate alongside the Provisional Council. The Provisional Council of State was not elected by all the citizens and its composition was set by the Law and Administration Ordinance. The Constituent Assembly was chosen by a general election in which all the members of the Israeli community participated. In fact, the parallel existence of both of these bodies was not long lasting, for with the establishment of the Constituent Assembly, the Provisional Council of State was dissolved. This dissolution was not an unexpected step. It was planned in advance. It was clear to all that the Constituent Assembly would be engaged in both legislative and constituent activities. This was reflected in the campaigns and proposals of the candidates for election to the Constituent Assembly, which related to all the issues on the national agenda and not constitutional matters alone.

 

12. The next link in the chain of constitutional continuity was the decision of the Provisional Council of State to dissolve itself. Professor Yadin has discussed the factors on which this decision was based:

 

According to the Declaration, the tenure of the Council of State was to have ended on October 1, 1948. From that day, at the latest, the activities of the elected and regular authorities were to have commenced in accordance with the Constitution, which was to have been adopted in the meantime by the Constituent Assembly. However, the specified date passed without the adoption of a Constitution and without the establishment of regular, elected governmental bodies. According to the Declaration of Independence, the Provisional Council of State and the Provisional Government were to have continued to function not only until the election of the Constituent Assembly, but until the establishment of new governmental bodies in accordance with the new Constitution. The role of the Constituent Assembly was limited to the preparation and adoption of the Constitution, and the task of regular legislation was to have remained in the hands of the Provisional Council of State until after the Constituent Assembly completed its work. Until that time, the two entities were to have existed in tandem and the Provisional Government was to have continued to function until after the election of a parliament in accordance with the new Constitution. This plan was tied to the cut-off date of 1 October1948; all phases were intended to have been implemented within only four months (between 15 May 1948 and 1 October1948). The drafters of the Declaration cannot be criticized for this plan. They signed the Declaration before enemy aircraft appeared in the skies over Tel Aviv (albeit only one day earlier), before seven nations invaded the State, and they could not have foreseen the events of the next few months. In retrospect, in light of the events that took place following the establishment of the State, it is clear that the original plan could not have been implemented. The existence of the Provisional Council of State could no longer be reconciled with the simultaneous existence of the Constituent Assembly. It was therefore necessary to impose upon the Constituent Assembly all of the functions of the Council of State’ (Sefer Uri Yadin, Barak and Shefnitz, eds. (1990), at p. 80).

 

Together with its decision to dissolve, the Provisional Council of State decided that all of its powers would pass to the Constituent Assembly. This transfer was effected by the legislative action of the Provisional Council of State, in the form of the Constituent Assembly Transition Law, 5709-1949. This law provided that ‘the Provisional Council of State shall continue in office until the convening of the Constituent Assembly of the State of Israel; upon the convening of the Constituent Assembly the Provisional Council of State shall dissolve and cease to exist’ (s. 1). It was further provided that the Constituent Assembly ‘shall, so long as it does not itself otherwise declare, have all the powers vested by law in the Provisional Council of State’ (s. 3). Similarly it was provided that the Constituent Assembly would act ‘in accordance with the rules governing the meetings of the Provisional Council of State, with the necessary changes, as long as the Constituent Assembly has not otherwise decided’ (s. 2(d)). The Provisional Council of State debated whether or not to provide in advance that the Constituent Assembly was required to prepare a constitution and whether to prescribe the period within which such a constitution should be adopted. It was suggested that the law provide that ‘the Constituent Assembly will adopt a basic constitution for the State and, during the period of its operation, will be the legislative body of the State.’ A majority decided, however, not to issue any directives in this regard. ‘We will therefore leave the Constituent Assembly absolutely free as to both its function and its term’ (Sefer Uri Yadin, ibid., at p. 81). It should be emphasized that the decision regarding the dissolution of the Provisional Council of State and the passing of its authority to the Constituent Assembly was taken during the term of the Provisional Council of State. The members of the Provisional Council of State – and accordingly all Israeli citizens who voted in the elections for the Constituent Assembly – were aware that they were electing a body that would have both legislative and constituent authority, and would be authorized to oversee the government as well.

 

13. With the dissolution of the Provisional Council of State and the transfer of its powers to the Constituent Assembly, the latter was endowed with dual authority – legislative and constituent. Again, the original scheme of two entities with different powers was not realized. Henceforth, the constitutional basis would lie in a single entity – the Knesset – that acted with various powers (legislative and constituent, as well as others). The same body (the Knesset) therefore has two roles, or two main functions (‘two hats’). It is authorized to enact a constitution and it has the powers that were given to the Provisional Council of State. ‘Thus the Constituent Assembly, which was endowed by the Declaration with only one function – drafting the Constitution – took on the additional role of legislative authority’ (Rubinstein, ibid., at p. 43). ‘It was the Provisional Council of State that, upon its dissolution, presented the Constituent Assembly with an established fact: the unification of both functions within one framework’ (Rubinstein, at p. 448). There is no doubt that the Constituent Assembly (which has both constituent authority and regular legislative authority) was authorized to enact a Constitution. The fact that, with the dissolution of the Provisional Council of State, the Constituent Authority also became endowed with regular legislative authority does not negate its authority to enact a constitution. It should be noted that it is a common practice the world over for the Constituent Assembly to serve as a legislative authority as well (see Rubinstein, ibid., at p. 448). Professor Kelsen discussed this as follows:

 

It is possible that the organ specifically and formally authorized to create, abolish or amend statutes having the character of a constitution is different from the organ authorized to create, abolish or amend ordinary statutes. For example, the former function may be rendered by an organ different from the latter organ in composition and electoral procedure, such as a constituent national assembly. But usually both functions are performed by the same organ’ (H. Kelsen, Pure Theory of Law, (1967), at p. 223).

 

As Professor Akzin has stated:

 

Under the democratic model, even if a proposed constitution is destined to be approved by referendum, it is prepared by the constituent assembly, which is chosen by electoral procedures similar to those by which the members of the legislative body will be chosen, or – in the case of a revolution – according to the system preferred by the provisional authority. In such cases the constituent assembly acts as both the entity that prepares the constitution and, if the state is governed by a parliamentary system, as the legislative body and overseer of the government as well’ (Akzin, The Doctrine of Governments, vol. 2 (1966), at p. 35).

 

In a similar vein Professor Klein has noted:

 

The constituent body may continue to function for an extended period; during this period the constituent body functions as a legislative body as well. This may be described as a transitional period. The constituent body is not required to adopt the constitution as one document, and it may adopt a number of separate constitutional laws’ (Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Uni. L. Rev. (Mishpatim) (1970) 52).

 

Recently Professor Ackerman has reiterated:

 

There is nothing sacrosanct about a special constitutional convention. Although such a convention is likely to take the task of constitutional formulation seriously, many plausible texts have also been produced by constituent assemblies that have exercised plenary power on normal legislative matters as well’ (B. Ackerman, The Future of Liberal Revolution, (1992), at p. 59).

 

Thus the federal constitutional model of the United States, in which there are two separate institutions – a constitutional convention that adopts the constitution, and a regular legislature (Congress and the state legislatures) that enacts regular laws – is not the only way in which a constitution may be adopted. Even in the United States, state constitutions (as opposed to the federal constitution) have been adopted by constituent authorities that functioned as legislative authorities as well (see III Encyclopedia of the Social Sciences, (1953), at p. 245). It is interesting to note that in more than one Eastern European state that has recently undergone constitutional changes, constituent and regular legislative activities have been carried out by the same body. In most cases it was the regular parliament that was endowed with constituent authority. In Israel the Constituent Assembly was given the additional authority of regular legislation, as well as all the powers of the Provisional Council of State.

 

14. The next stage in constitutional continuity was the enactment of the Transition Law, 5709-1949. This was the most important piece of legislation enacted by the Knesset (now acting as both the constituent and legislative authority). This statute provided that ‘the legislative body of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” A delegate to the Constituent Assembly will be known as a “Member of Knesset”’ (s. 1). It also provided that an enactment by the Knesset would be denoted “law” (s. 2). The Transition Law 1949 did not affect the dual authority of the Constituent Assembly (now the “First Knesset”). Indeed the First Knesset engaged in lengthy debates on the subject of the Constitution (see Knesset Proceedings, vol. 5, at p. 714). No claim was made that the First Knesset was not empowered to do so. All agreed that the Knesset, as the constituent assembly, was authorized to enact a constitution for the State. The ensuing debate dealt with whether the Knesset was required to enact a constitution, and with the proposed content of the constitution. This debate continued for several months. It took place both in the Constitution, Law and Justice Committee and in the First Knesset plenum (for a report of these debates see The State Constitution – Report of the Constitution, Law and Justice Committee in the Matter of the Constitution for the State and the Debate in the First Knesset Plenum, published by the Knesset in 1952). It is common knowledge that the Prime Minister, David Ben-Gurion, opposed a constitution. Nonetheless, he did not deny the Knesset’s authority to enact one, stating as follows:

 

No one could, and even today no one can say that there will be no constitution. The matter depends upon the Knesset’s decision. If the Knesset decides that there will be a constitution – there will be a constitution. If the Knesset decides that for now there will be no constitution – there will be none’ (supra).

 

The First Knesset (i.e. the Constituent Assembly) concluded this debate with a compromise decision adopted on June 13, 1950. This decision was initiated by MK Harrari and is therefore called the Harrari Decision, which provides as follows:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter constituting a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

This was a compromise decision. It left several options open. On the one hand, it accepted the principle that there would be a formal constitution and that the idea of a constitution would not be abandoned. On the other hand, it accepted the principle that the constitution would not be enacted immediately as one discrete document, but rather chapter by chapter, over the course of time, which would certainly extend beyond the term of the First Knesset. Nevertheless, after this decision no one disputed the Knesset’s authority to enact a constitution for Israel. The Harrari Decision was not intended to negate the Knesset’s authority to enact a constitution and, as a “decision” of the Knesset, it could not negate this authority. Thus, the significance of the Harrari Decision was, as it stated, that the Constitutional Committee would prepare a constitution for the state in “installments.” It was clear to all that this would not be an immediate procedure. It was clear to all that it would not be completed by the First Knesset. Professor Rubinstein has rightly noted that:

 

There can be no doubt as to the First Knesset’s authority to enact a constitution or laws of a constitutional character that stand above regular legislation. The change in the name of the Constituent Assembly certainly did not constitute a change in its nature. Even the consolidation of its functions – legislative and constituent – did not change anything’ (Rubinstein, ibid., at p. 448).

 

The First Knesset dispersed without the Constitution, Law and Justice Committee having prepared a proposed constitution, and without any part of a constitution having been brought before the Knesset plenum.

 

15. During the term of the First Knesset – i.e. the Constituent Assembly – no constituent action was undertaken. The Knesset had to enact a special law to decide upon its dissolution. In so doing, the Knesset was aware that it had not only regular legislative powers, but also constituent powers. It sought to ensure that all powers with which it was invested would pass to subsequent Knessets as well. This act seems superfluous to me. The powers given to the Knesset were given to every Knesset. As the central organ of the State, the Knesset endures forever. There is no need for special provisions as to the Knesset’s continuity other than those dealing with issues of secondary character (such as the continuity of draft laws). The reference to the “First” and “Second” Knessets and so on is only theoretical and reflects the first steps of the Israeli parliamentary system. In principle, a change in the composition of the Knesset cannot be considered a change in the Knesset. The Knesset is one body; elections and changes in the members of the Knesset do not require a formal passing of authority from one body to the next. Apparently this matter had not yet been clarified in the early days of the State and therefore – purely for caution’s sake – the Second Knesset Transition Law was enacted in 1951. That law provided for continuity between the end of the First Knesset’s term and the beginning of the Second Knesset’s term (s. 1). Thus, ‘the Second Knesset and its members will have all the powers, rights and obligations as the First Knesset and its members’ (s. 5). It provided further that the Second Knesset would act in accordance with the charter, decisions, precedent and procedures of the First Knesset (s. 6). Moreover, it provided explicitly in s. 9 that:

 

Wherever in any law reference is made to the Constituent Assembly or the First Knesset, such reference shall, from the day of the convening of the Second Knesset, be deemed to refer to the Second Knesset, unless the context requires a different meaning.

 

Thus it was provided that ‘this law will also apply, with the necessary changes, to the Third and any subsequent Knesset, so long as the Knesset does not adopt a contrary law dealing with this matter’ (s. 10). It is interesting to note that a number of Members of Knesset suggested that the law expressly provide that the ‘role of the Second Knesset is to enact a basic constitution for Israel’ (see Knesset Proceedings, vol. 8, at p. 1576). MK Bar-Rav-Hai, in the name of the majority of the Constitution, Law and Justice Committee, opposed such a provision. He noted that ‘the suggested change is an empty declaration without any practical purpose. The legislative inheritance of the First Knesset is located in the records of the Knesset and is automatically transferred. The Second Knesset is sovereign. It will attend to matters at its own will ... Because there is no practical value to this change, and because the Second Knesset itself will decide whether to continue to enact Basic Laws where the First Knesset left off, or to begin this chapter anew – there is no place and no need to provide for this matter in the Transition Law’ (ibid., at p. 1579).

 

16. The First Knesset – which was also the Constituent Assembly elected for the express purpose of drafting the constitution – was dissolved. The Second Knesset was elected. Was the Second Knessset also invested with constituent authority, empowering it to enact a constitution for Israel? This is not a simple question. Had it been brought before the Supreme Court at the beginning of the Second Knesset’s term, the matter could have been decided either way. On the one hand it could have been argued that constituent authority was given to the Knesset, to every Knesset, regardless of its composition. The Constituent Assembly itself provided in the Second Knesset Transition Law that each Knesset is empowered with constituent authority. This edict of the Constituent Assembly must be heeded. It is not appropriate for the Court to declare that the Constituent Assembly itself deviated from its own authority in such a central matter. Similarly, it could have been claimed that the Harrari Decision – which was adopted by the Constituent Assembly – determined that the constitution was to have been enacted chapter by chapter; clearly this process would not have been completed during the term of the First Knesset. Constitutional continuity must be recognized in order to give effect to this decision of the Knesset. On the other hand it could have been contended that the Constituent Assembly derived its authority from the people – and therefore with the dispersal of the Constituent Assembly it was necessary to turn again to the people for its reelection. The Constituent Assembly was not “authorized” to transfer its authority. Thus it might have been argued that the Harrari Decision required that the powers of the First Knesset could only have been transferred to the Second Knesset by Basic Law and not by regular law.

 

Had I been asked to decide this constitutional question at the beginning of the Second Knesset’s term, I would have asked the following question: what are the underlying beliefs of the Israeli community at this time as to the enactment of a constitution and the power of the Knesset to adopt a constitution for Israel? I would have inquired as to the best interpretation of the legal and social history in the matter of the constitutional undertaking with the convening of the Second Knesset. In this context I would have examined the flow of constitutional continuity from the Declaration of Independence. Similarly, I would have asked whether the party platforms in the elections for the Second Knesset dealt with the continuation of the constitutional undertaking and with the continuation of the Knesset’s activities in endowing Israel with a constitution. An affirmative answer to these questions would have enabled me to determine even then that, despite strong assertions to the contrary, the Second Knesset was endowed with constituent authority, whether because of constitutional continuity (under Kelsen’s model), or because it had become generally recognized that the Knesset was invested with constituent authority (Hart’s model), or because that was the best interpretation of the legal practices of the Israeli community at that time (Dworkin’s model).

 

I have now undertaken this examination. Thus, for example, I have studied the election platforms of all the political parties that participated in the elections for the Second Knesset. Most of the platforms include statements regarding the constitution and its implementation. Often this is a central issue. The platform of the Workers of Israel Party (“Mapai”) stated that ‘the Second Knesset must see the completion of the enactment of the Basic Laws as one of its first objectives.’ This was followed by a long list of proposed constitutional arrangements, such as the division of powers among governmental bodies and various human rights. The platform of the Organization of General Zionists, the Centrist Party (“Z”), stated that ‘adoption of the Basic Laws for the State is an absolute necessity for the protection of the fundamental rights of every citizen.’ The platform of the United Labour Party (“Mapam”) provided that ‘the Second Knesset must correct what the First Knesset distorted and enact a Basic Law for the State, so as to ensure, inter alia…’ – and here follows a comprehensive list of matters that must be provided for in the constitution. The platform of the Herut Party (“H”) asserted that ‘Mapai and its supporters intentionally prevented the Constituent Assembly from fulfilling its first function: providing a basic constitution for the State. The Second Knesset must correct this dereliction.’ The platform then sets forth the content of the ‘basic constitution.’ The Progressive Party (“P”) platform stated that ‘in order to protect the democratic and popular nature of our State, a constitution must be enacted. The Progressive Party regretfully notes that the First Knesset did not complete this task. Even the First Knesset’s decision, as proposed by the Progressive Party representative, that the basic constitution would be constructed chapter by chapter, was not realized. The Progressive Party will fight in the Second Knesset for a constitution of deep social content, which will strengthen the rule of law in the State.’

 

The Platform of Agudath Yisrael provided that ‘as long as a majority of the representatives of the legislative institutions do not recognize the authority of the Torah as the supreme law, which may not be contravened, Haredi Judaism will oppose the adoption of a formalized basic constitution for the State.’ The platform of Mizrahi and the Nonaligned Religious Party (“B”) did not mention the issue of the constitution. The platform of the Israeli Communist Party (“C”) stated that ‘since the establishment of the State we have fought for a republican, democratic and secular constitution.’ The list of HaPoel Mizrahi (Torah Ve’Avoda) (“V”) provided that ‘HaPoel Mizrahi sees as the job of the Second Knesset the completion of the Basic Laws for the procedures of the government and its powers, the rights and obligations of the individual, the order of justice and the social foundations of the State. HaPoel Mizrahi will fight so that these laws will be an expression of a true democratic way of life in the spirit of the Torah of Israel.’ The list of the Sepharadim Ve’Edot HaMizrah (“SD”) stated that they supported the policy line of the Organization of General Zionists, the Centrist Party. The platform of Association of Yemenites for Israel (“L”) did not refer to the constitution.

 

17. It follows that there can be no doubt that the issues of the constitution and the Basic Laws were on the national agenda, were discussed in the elections, and were the subject of clear positions taken by the various parties. It is true that the matter of the constitution and the Basic Laws was not the only subject on the national agenda. But that is of no account. It is enough that the question was brought to the attention of the voter, who gave his opinion on the question of the constitution. If in the next Knesset election a constitution for the State were presented, and the people demanded, by electing the various parties, in light of their various platforms, to either approve or disapprove the constitution – would anyone contend that the people did not thereby express its will as to the constitution? The determining factor is clearly the understanding of the community and, consequently, the understanding of the Court. Such an understanding existed in the elections for the Second and subsequent Knessets. There is therefore no reason to negate constitutional continuity, and to deny the Second Knesset – on the basis of the arguments that we have brought – the authority to enact a constitution for Israel. Accordingly, with the convening of the Second Knesset (on December 22, 1952), the new government presented its outline plan. The first clause of the outline – before any other clause, including the clause referring to ‘the concern for the security of the state and the ingathering of exiles’ – provides that ‘with the series of the Basic Laws that will form the basic constitution of Israel, the democratic government of the State will be strengthened and secured.’ This is followed by a long list of subparagraphs, constituting approximately half of the outline, as to the content of the future constitution.

 

18. The question of the constitutional continuity of the Knesset’s power to enact a constitution did not come before the Supreme Court in 1951, with the convening of the Second Knesset. We do not have a judicial determination of this matter. The constitutional question arises before us today, in 1995 during the term of the Thirteenth Knesset. I have no doubt that our decision today must be unequivocal: constitutional continuity was not interrupted. The Second Knesset was given the powers of the Constituent Assembly. Any other conclusion is inconsistent with our national experience. Forty-four years have passed since the Second Knesset was convened. The matter of the constitution has appeared on the agenda and has been included in all the campaigns for each of the many elections that have been held since then. During all those years the Knesset continued in the constitutional undertaking and has enacted eleven Basic Laws; it has continued to see itself as authorized to enact a constitution for Israel; it has continued to entrench the clauses of the Basic Laws against infringement by regular legislation. During all those years teachers and scholars of law have continued to see the Knesset as the authority empowered to enact a constitution for Israel. They have raised generations of students and teachers of law who, in their turn, see the Knesset as empowered with both constituent and legislative authority.

 

In the intervening years the Supreme Court has ruled that the entrenchment provisions of the Basic Laws have constitutional power and may invalidate contrary provisions of regular legislation. In my opinion, these facts lead to the inescapable conclusion that constitutional continuity persists. By general recognition, the Knesset – the Second Knesset and each subsequent Knesset – is authorized to enact a constitution for Israel. Today’s Knesset has constituent authority. The Knesset has “two hats”: the hat of constituent authority and the hat of legislative authority.

 

My position relies, therefore, on all of the factors that attest to a continuous constitutional history, beginning with the convening of the Second Knesset. I will continue with a description of that constitutional continuity, the constitutional understanding of the legal community, and the position of the Supreme Court up until now. I am doing so for two reasons: first, because constitutional continuity links the constituent authority of today’s Knesset with that of the First Knesset (the Constituent Assembly); and second, because these objective normative facts support my conclusion that according to the rule of recognition of the Israeli legal system, our Knesset – every Knesset – is endowed with constituent authority. That is the best interpretation of the entirety of our legal and social history.

 

(iii) The Knesset’s understanding of itself as invested with constituent authority

 

19. As discussed above, the Knesset’s constituent authority is based upon the objective fact of constitutional continuity. This is not only the reasoned conclusion of the disinterested observer; it is the understanding of the Knesset itself. My claim is not, however, that the Knesset is endowed with constituent authority solely because it sees itself as so endowed. The Knesset may not empower itself with constituent authority by its own decision. My claim is that the Knesset’s – every Knesset’s – perception of itself is itself an objective factor that, in the context of the entirety of the evidence, supports the foundation on which the Court builds its legal structure. This construction is a judicial function, which is undertaken by the judge – and the judge alone. This is the great significance of the Knesset’s understanding of itself. I do not claim that there is a legal obligation to enact a rigid constitution. My only claim is that the Knesset saw itself as empowered to enact a rigid constitution. Of course, the Knesset was also entitled to refrain from using this authority and enact a non-rigid constitution or no constitution at all. Thus, the Second Knesset and each subsequent Knesset saw itself as empowered to enact a constitution. They based this authority primarily on the idea of the Constituent Assembly, on the Harrari Decision, and on the status of each Knesset as a body utilizing its constituent authority. I will begin with the Second Knesset, which, as mentioned, is the more problematic.

 

20. The Second Knesset dealt with the preparation of the first chapter of the Constitution of the State, Basic Law: The Knesset. The proposed law was published on October 23, 1953 by the Constitution, Law and Justice Committee of the Second Knesset. The proposal was debated by the Second Knesset plenum. In presenting the draft law for a first reading, the Chairman of the Subcommittee for Basic Laws, MK Bar Yehuda, referred to the Harrari Decision and the dissolution of the First Knesset and continued as follows:

 

But a relatively short time thereafter, in April 1951, came the decision to elect the Second Knesset. The Second Knesset began its work at the end of August 1951. More than two years have passed since then, while the gristmill of the Constitution, Law and Justice Committee ground the proposals sufficiently to enable presentation of the first in the series of the Basic Laws. During this period we have passed a number of laws that are clearly Basic Laws by their nature, even if not in form; I refer for example to the Law of Return and the Judges Law. But these laws were put forth by the government, and the work was done in the course of the Knesset’s regular routine and in the regular manner. From the point of view of fulfilling the obligation  that was imposed at the time on the First Knesset in its role as the Constituent Assembly of the State of Israel, and which was passed on to the Knesset together with the latter’s regular legislative work, this law is the first section of the Constitution of the State to be presented before the Knesset. It is now presented for a first reading and unfortunately I cannot know how long it will take until we reach a second reading – in other words, debate on the revised proposal – after which there will be a binding decision’ (Knesset Proceedings, vol. 15, at p. 57).

 

A review of the other speeches reveals that the speakers considered themselves – as members of a body endowed with constituent authority – empowered to enact a constitution. Basic Law: The Knesset was not enacted by the Second Knesset because the political will to do so was lacking. No one contended that the Knesset lacked the legal authority to enact such a law. All participants in the ‘political game’ of that period were aware that they were empowered to enact a constitution.

 

21. The Second Knesset finished the debate with a first reading of the proposed Basic Law. The proposal was passed to the Committee and the Second Knesset thereby finished its term without adopting any Basic Law. The debate on the proposed Basic Law: The Knesset was renewed in the Third Knesset. The proposed Basic Law: The Knesset was published anew and it was thoroughly debated. No one contended that the Third Knesset was not empowered to adopt a constitution. The Third Knesset’s debates were seen by all as fulfilling the Knesset’s role according to the Harrari Decision, which was the decision of the Constituent Assembly (the First Knesset) to adopt a constitution for Israel. MK Harrari himself reiterated this (on October 8, 1956) when he stated that:

 

In accordance with the decision of the First Knesset, we are not now dealing with individual laws, but rather with the chapters of the constitution of the State of Israel’ (Knesset Proceedings, vol. 21, at p. 4).

 

MK Harrari read the Harrari Decision before the Knesset plenum and added that ‘[we] are therefore debating today one of the chapters of the proposed constitution for the State – the chapter that deals with the Knesset’ (ibid., at p. 6). MK Harrari concluded his remarks by stating as follows:

 

I hope that despite the slow pace of the Knesset’s work, we will succeed in completing at least two articles of the constitution for the State in this, the Third Knesset. We must not forget that when the Knesset accepted the proposal to prepare a constitution for the State it was aware of the fact that other states worked for many years in preparing their constitutions. Eleven years passed before the complete adoption of the United States constitution, which has existed for so many years; preparation of the Soviet Russian constitution lasted for thirteen years. There is therefore no reason for us to despair or to feel that the extended period of preparation has diminished our chances for an organized, orderly constitution that will be the glory of the State of Israel’ (ibid., at p. 6).

 

Thus it is clear that the Knesset saw itself as authorized to enact a constitution, and that it considered the Basic Laws to be part of the constitution. Upon completion of the first reading debate, the proposal passed to the Constitution, Law and Justice Committee. The proposal was presented for a second reading on February 11, 1958. MK Nir-Refalkes presented the proposal in the name of the Constitution, Law and Justice Committee, noting that:

 

The Constitution, Law and Justice Committee takes particular satisfaction in presenting to the Knesset for a second reading Basic Law: The Knesset, which will be a chapter of our basic constitution, in accordance with the June 1950 decision of the First Knesset.’

 

In the course of the second reading the comments of several members of Knesset were adopted and a number of formal entrenchment provisions were inserted into the Basic Law. It was provided that section 4, which sets forth election procedures, ‘shall not be altered save by a majority of the members of the Knesset.’ Section 44 entrenched the Basic Law against the effect of emergency regulations. Section 45 provided that ‘Section 44, or this section, shall not be altered except by a majority of eighty members of the Knesset.’ During the debate on these entrenchment provisions, several opinions were expressed as to their meaning. No contention was made that the Knesset was not empowered to entrench provisions of a Basic Law. It must be noted that more than a year after the adoption of the Basic Law: The Knesset, on February 12, 1958, the Knesset debated Amendment (No. 3) to the Law. The purpose of this amendment was to provide that ‘The majority required by this Law to for a variation of section. 4, 44 or 45 shall be required for decisions of the Knesset plenary at every stage of law-making.’ This amendment was adopted. During the course of the debate, MK Zadok opposed the proposed amendment, arguing that the Knesset was not authorized to limit itself (Knesset Proceedings, vol. 27, at p. 2961). As mentioned above, the proposed amendment was adopted.

 

22. The Fourth Knesset did not enact any Basic Law. This concerned several Members of Knesset. MK Nir-Refalkes tabled a motion in this matter. He asked that the process of enacting a constitution be accelerated and referred to the Harrari Decision of the Constituent Assembly. He noted that ‘meanwhile ten years have passed, during which period the Committees on the Constitution, Law and Justice of the First, Second and Third Knessets have enacted only one Basic Law – Basic Law: The Knesset, which was enacted in 1958. Our experience proves that this method of enacting a constitution has led to an anomalous situation. Twelve years have passed since the establishment of the State and not only do we have no constitution, but there is no chance that we will have one in the next fifty years’ (Knesset Proceedings, vol. 28, at p. 585).

 

MK Nir-Refalkes noted that the government manifesto provided that ‘the Fourth Knesset should complete the enactment of the Basic Law, which will be consolidated to form the basic constitution of the State.’ He added that all factions of the house were united in this view and he requested that the preparation of the constitution be accelerated. The government response was given by the Minister of Justice, Mr Pinhas Rosen. The Minister also mentioned the Harrari Decision and the government platform. He expressed the hope that the Fourth Knesset would indeed complete the work of preparing the constitution. The debate passed to the Constitution, Law and Justice Committee. However, the Minister of Justice’s hopes were not realized. The Fourth Knesset enacted only the Basic Law: Israel Lands. The Fifth Knesset enacted Basic Law: The President of the State. In the Sixth Knesset, the focus on the enactment of Basic Laws was intensified. On November 23, 1965 the Constitution, Law and Justice Committee established a subcommittee that dealt solely with the constitution. This subcommittee was headed by MK Zadok and succeeded in preparing one Basic Law, Basic Law: The Government, which was passed by the Seventh Knesset.

23. Between the enactment of Basic Law: The Knesset in 1958 and the enactment of the two Basic Laws dealing with human rights, the Knesset passed another nine Basic Laws. Some of them included provisions (albeit minor) that formally entrenched certain provisions of the Basic Laws. The enactment of these provisions presented the Knesset with no legislative difficulty. When the Eighth Knesset was presented with a first reading of the proposed Basic Law: Legislation, 5736-1976 – the proposal that entrenched all of the Basic Laws and provided for judicial review of the constitutionality of regular legislation – it had no practical difficulty with this entrenchment. Aside from a few isolated Members of Knesset, all factions of the house were in agreement as to the Knesset’s authority to enact a constitution for Israel and its power to entrench provisions of the constitution. Many of the speakers expressly noted that the Knesset was thereby acting in accordance with the Harrari Decision (see Knesset Proceedings, vol. 76, at p. 1704; Knesset Proceedings, vol. 78, at p. 954). This was the case when the draft Basic Law: Legislation was presented to the Ninth Knesset for a first reading (Knesset Proceedings, vol. 83, at p. 3975). The third proposal of the Basic Law: Legislation was debated in a first reading in the Thirteenth Knesset (Knesset Proceedings, second session, at p. 4302; third session, at p. 936). Aside from several isolated members of Knesset, no objection was raised as to the entrenchment of the Basic Laws. There was a debate, of course, as to the strength of the entrenchment, but the common position of most members of the Knesset was that this was a political and not a legal question, since the Knesset was empowered to entrench the Basic Law if it so desired.

 

24. I will now address the question of continuity and the constituent authority of the Knesset as to the Basic Laws dealing with human rights. Proposals dealing with human rights were already included in draft laws presented to the Committee on the Constitution of the Provisional Council of State. However, legislation in this area did not proceed. With the completion of Basic Law: The Knesset, the Constitution, Law and Justice Committee announced that the next Basic Law would deal with human rights. This did not occur. Against this background, on January 15, 1964 MK Klinghoffer presented to the Fifth Knesset the proposed Basic Law: Charter of Basic Human Rights, 5724-1963. This was a comprehensive, impressive proposal for a constitutional settlement with regard to human rights in Israel. The proposal provided for substantive and formal entrenchment. It provided that ‘this law may be amended only by a majority of two thirds of all members of Knesset’ (s. 73). It provided for the possibility that human rights could be infringed by regular legislation, but only if that legislation met substantive standards. In the comments to the proposal that were submitted to the Knesset, MK Klinghoffer referred specifically to the Knesset’s constituent authority to enact a constitution for Israel:

 

In the matter of the authority to adopt a fixed constitutional law, it must be noted that this authority passed from the First Knesset (which was elected as the Constituent Assembly) to the Second Knesset, and thereafter from Knesset to Knesset’ (Second Knesset Transition Law, ss. 5 and 10) (Knesset Proceedings, vol. 38, at p. 801).

 

The government opposed this initiative. The Minister of Justice, Mr Dov Yosef, argued forcefully against MK Klinghoffer’s initiative. He noted, inter alia, that ‘I do not think that there is a law that stands “above the regular legislature.” We do not have two legislatures. We have only the Knesset, and in my opinion, a law of the Knesset cannot limit its right to legislate, and if there is such a provision in a law, the Knesset is entitled, in my opinion, to cancel the clause that ostensibly limits its rights’ (ibid., at p. 789). The Justice Minister added that it would be otherwise if we had a constituent assembly. MK Begin retorted that ‘We have a Constituent Assembly as well.’ (ibid., at p. 789).

MK Klinghoffer also responded to the Justice Minister as follows:

 

The Knesset is the heir to the Constituent Assembly. The Fifth Knesset is empowered with the authority of the Constituent Assembly to enact a constitution, and this is in accordance with the Constituent Assembly (Transition) Ordinance and the Second Knesset Transition Law’ (ibid., at p. 793).

MK Klinghoffer’s proposal failed (on January 15, 1964).

 

25. A number of years passed. The public climate changed (see Lahav and Kretzmer, “The Charter of Human and Citizen’s Rights in Israel: A Constitutional Achievement or Hocus-Pocus,” 7 Hebrew Univ. L. Rev. (Mishpatim) (1976) 154). The Constitution, Law and Justice Committee of the Seventh Knesset continued with the work of the Subcommittee on Basic Laws. The Committee was headed by MK B. Levy. The Committee held comprehensive debates. The draft Basic Law: Human and Citizen’s Rights was published by the Committee. The proposed law set forth certain human rights and limited the power of statue to infringe those rights except under certain conditions. It included provisions according to which ‘contradictory statutory provisions that are adopted after the effective date of this Basic Law – are void’ (s. 20(a)). At the same time, the Basic Law did not contain entrenchment provisions. The proposal was not substantively debated in the Seventh Knesset. With the convening of the Eighth Knesset the debate on the proposal continued in the Subcommittee for Basic Laws headed by MK B. Levy. It was submitted on June 4, 1974 for a first reading. In presenting the proposed Basic Law for a first reading, MK B. Levy referred to the Harrari Decision and noted that, in enacting the Basic Law, the Knesset was acting within its constituent authority:

 

Constituent authority, i.e. the authority to enact a constitution for the State, was transferred from the Constituent Assembly, i.e. the First Knesset, to the Second Knesset and every Knesset thereafter, including the Eighth Knesset. As the Second Knesset Transition Law provides ... In enacting the Basic Law: Human and Citizen’s Rights we are therefore acting in accordance with the constituent authority of the Knesset’ (Knesset Proceedings, vol. 70, at p. 1566). 

 

An extended debate on the draft law ensued. The Minister of Justice, MK Zadok, participated in the debate. He expressed his opinion that the Basic Law should be entrenched in order to prevent infringement of basic rights by regular legislation. MK Zadok noted that:

… I agree that the Knesset must be given broad latitude and room to maneuver in its legislative work, but this sovereignty should not be interpreted to permit arbitrariness as to basic principles. It seems to me that the doctrine of the rule of law, which we all espouse, means that everyone is subject to the law – the government, the administration, the President, the State Comptroller – and the Knesset as well. Just as the other state institutions are endowed with a limited array of authorities, so should the Knesset’s legislative powers be similarly limited, albeit with greater flexibility. The primary form taken by this limitation is the Citizen’s Rights Law, in which are anchored and expressed those basic principles that form the basis for government itself

(Knesset Proceedings, vol. 70, at p. 2485).

 

MK Zadok further insisted that the proposed law was intended to ‘raise the Basic Law on citizens’ rights to the level of a preferred norm against which the validity of regular laws will be tested’ and therefore it must be treated with great care (ibid., at p. 2485). As to entrenchment of the Basic Law against regular legislation that does not meet its requirements, MK Zadok noted that:

 

The laws that have been enacted before this Law takes effect have been enacted by the sovereign Knesset under its unlimited legislative power. They are the statutory regime under which we live and they cannot be called into question. This is not so as to laws that will be enacted by the Knesset in the future, after the establishment of the norms set forth in the Basic Law on Citizens’ Rights, with the Knesset aware of and restricted by those norms the validity of those future laws will be tested against the Basic Law.

 

The debate in the Knesset was comprehensive. The Knesset debated the question of whether to entrench the Basic Law – in the same way that s. 4 of the Basic Law: The Knesset was entrenched – so that the Law could be amended only by a special majority. The various rights were discussed as well. The draft law passed the first reading and was handed over to the Constitution, Law and Justice Committee. The debate in the Committee concentrated primarily on the question of whether to entrench the Basic Law. It was decided to defer the debate on this question until a decision was reached as to the fate of the Basic Law: Legislation – which was being studied by the Committee at the same time – and which included general entrenchment provisions. What is clear is that the Members of Knesset – the plenum as well as the committee – had no doubt as to the power of the Knesset to entrench the clauses of the Basic Law: Human and Citizens’ Rights. Many of the Members of Knesset referred to the Declaration of Independence, the Harrari Decision and the constitutional undertaking, and pointed to constitutional continuity. It occurred to none that the constitutional continuity was interrupted. No one contended that the Knesset was not entitled to entrench its instructions. The primary debate centered on the question of entrenchment as one of political policy  (was it desirable?), and not as a legal problem (was it possible?) (see Lahav and Kretzmer; see also B. Bracha, “The Protection of Human Rights in Israel,” 12 Israel Yearbook on Human Rights (1982) 110); R. Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 113).

 

26. The Eighth Knesset continued to debate the proposed Basic Law: Human and Citizens’ Rights. MK Aridor headed the subcommittee. The proposal prepared by the Committee provided that previously enacted statutes repugnant to the Basic Law would be invalidated. The proposal did not advance in the legislative process.

 

27. In the Tenth Knesset, MK Professor Rubinstein renewed Professor Klinghoffer’s proposal. It was put forth (on June 2, 1982) as a private draft law (Proposed Basic Law: Bill of Human Rights, 1982). In his comments on the proposal Professor Rubinstein wrote that:

 

Since (the dismissal of Professor Klinghoffer’s proposal – A.B.), it has become clear to various sectors of the community that there is a need for the enactment of a Basic Law dealing with human rights, for it is fitting that these substantive issues be entrenched in a Basic Law that stands above regular legislation.

 

In his speech before the Knesset plenum MK Rubinstein added that:

 

This draft law is intended to restrain the legislature. It is also intended to protect the citizen from legislation that infringes his basic rights, for this is the implicit meaning of the word constitution. The very word constitution means restraint of the omnipotence and sovereignty of the Knesset as a legislative body’ (Knesset Proceedings, vol. 94, at p. 2682).

 

Minister of Justice, MK Nissim – unlike his predecessor of eighteen years earlier, Minister Dov Yosef – agreed to pass the proposal to the Constitution, Law and Justice Committee. In his reply, Minister Nissim noted that:

 

Today, I too say that it is right for a constitution to be fixed and entrenched. There is no value whatsoever in laws, even those denoted Basic Laws, that are not fixed both as to their adoption and as to their amendment ... Since we are discussing a group of Basic Laws that will together form a constitution, they must be fixed and entrenched’ (ibid., at p. 2682).

 

The proposal passed to the Constitution, Law and Justice Committee. The subcommittee on Basic Laws that examined the proposal was headed by MK S. Aloni. The subcommittee held extensive debates. It examined the previous proposals that were debated by previous Knessets. It studied the European Convention on Human Rights. It examined the German Basic Law and the Canadian Charter of Rights and Freedoms. It heard from Professors Klinghoffer, Klein and Akzin. The Committee’s debates were published (Debates of the Committee on the Basic Laws of the Tenth Knesset). An examination of the Committee’s debates reveals that the participants shared the view that the Knesset is empowered and entitled to entrench human rights as constitutional supra-legislative rights. At the conclusion of the debates it was decided to present the proposal for a first reading. The proposed Basic Law: Bill of Basic Human Rights was tabled for a first reading (on March 1, 1983). The comments noted that ‘there is a need for the enactment of a Basic Law on the subject of human rights, for these substantive issues should be entrenched in a Basic Law that stands above regular legislation’ (ibid., at p. 111). In his words of introduction, MK Rubinstein emphasized that:

This proposed law is based upon the principle of entrenchment of basic human and civil rights. It also sets forth a program that, in conjunction with the proposed Basic Law: Legislation, will enable judicial review of violations of this entrenchment, of harm to the idea that human and civil rights stand above the desires of the majority and above regular and routine legislation.

 

At the conclusion of his comments, MK Rubinstein noted that the debate on this proposed Basic Law continues the constitutional undertaking:

 

This proposed law, if adopted, will come close to completing the task of adopting a constitution, which the Declaration of Independence imposed upon the Constituent Assembly, later the First Knesset. As we recall, Members of Knesset, the Constituent Assembly did not complete this important task. Instead of fulfilling its assignment the Constituent Assembly provided that the constitution would be given chapter by chapter by means of the Basic Laws that would be combined to form one constitution. It seems to me that when the Knesset adopts... this proposed law and the proposed Basic Law: Legislation, it will complete the work of composing the constitution. If this happens, our Knesset, the Tenth Knesset, will be remembered as the body that finally fulfilled the important task of enacting a constitution for the State of Israel, and this will be its honor and its glory, that it completed what the other Knessets did not’ (ibid., at p. 1514).

 

MK Aloni – the Chair of the Subcommittee – supported the proposed law. In her comments she referred to the Constituent Assembly (ibid., at p. 1515). MK Shahal also supported the proposed law. He emphasized that ‘the most important thing is the control exerted by these basic principles over the regular legislation of the Knesset ... The safeguarding of human rights in a Basic Law implies a normative preference for these principles over the clauses of a regular law of the Knesset’ (ibid., at p. 1518).

 

With the conclusion of the debate the proposal passed to the Committee on Constitution, Law and Justice to be prepared for second and third readings. The renewed debate before the Committee was comprehensive and fundamental (see Debates of the Committee on Basic Laws of the Tenth Knesset). The entire debate proceeded, of course, on the basic assumption – which was expressly repeated more than once – that in the context of the constitution in general, and in the case of human rights in particular, the Knesset is empowered to entrench the clauses of the constitution, whether by formal or substantive entrenchment. The proposal was not presented for second or third readings because early elections were called.

 

28. The debate on Rubinstein’s proposal continued in the Eleventh Knesset, following the applicable continuity rules. Nonetheless, the debate on the proposal did not conclude with the enactment of the law (for an analysis of the reasons, see Rubinstein, ibid., at p. 706). A significant change occurred in the Twelfth Knesset. The new Justice Minister, MK Dan Meridor, presented to the government the draft Basic Law: Human Rights. This proposal did not advance. Against this background, Members of Knesset Rubinstein and Aloni presented proposals of their own. MK Aloni presented the proposal of the subcommittee that she chaired, which had not reached the stage of second and third readings in the Tenth Knesset. In presenting her proposal, MK Aloni commented that:

 

In the Declaration of Independence we provided that there would be a constitution. The First Knesset decided to defer this issue chapter by chapter – and in the meantime, so that there would not be a vacuum, we adopted the laws that were previously in effect… and step by step we began to prepare the constitution of the State of Israel. However, the Basic Law: Human Rights was rejected. Still, with the passage of time, the need to adopt this law has grown’ (Knesset Proceedings, vol. 115, at p. 401).

 

MK Rubinstein adopted the Justice Minister’s proposal. This proposal provided for both formal and substantive entrenchment. The proposal provided for judicial review of the constitutionality of laws that improperly infringe protected human rights. The Justice Minister sought to set aside MK Aloni’s proposal. He announced that the government would permit discretionary voting for MK Rubinstein’s proposal. He himself – who had by his efforts advanced the Basic Laws as to human rights – explained the key points of his proposal and sought to unite the Members of the entire house in supporting it. MK Aloni’s proposal was set aside. MK Rubinstein’s proposal – which was also the Justice Minister’s proposal – passed to the Committee. The Committee did not submit the proposed law for second and third readings.

 

29. Towards the end of the term of the Twelfth Knesset, MK Rubinstein, who must be credited with advancing the efforts for constitutional human rights, took a new step. He “deleted” from Minister Meridor’s proposal – which had been debated by the Constitution, Law and Justice Committee – a number of rights, and submitted them for a preliminary reading as a separate Basic Law. He placed upon the Knesset table, inter alia, the draft Basic Law: Freedom of Occupation and the draft Basic Law: Human Dignity and Liberty. At the end of the Twelfth Knesset these two laws completed the legislative process. Thus were enacted the Basic Law: Human Dignity and Liberty (see the debates on the first reading in Knesset Proceedings, fourth session, at pp. 1235, 1527; on the second and third readings, ibid., at p. 3781) and the Basic Law: Freedom of Occupation (see the debates on the first reading in Knesset Proceedings, fourth session, at p. 2595; on the second and third readings, fourth session, at p. 3390); for an analysis of the Knesset debates, see Karp, “The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), 323). In presenting Basic Law: Human Dignity and Liberty for second and third readings, the Chairman of the Constitution Law and Justice Committee, MK A. Lin – who contributed greatly to the enactment of the Basic Laws in the Twelfth Knesset – emphasized that the Basic Law is part of the State constitution, noting that:

Basic Law: Human Dignity and Liberty was prepared in, the course of many meetings of the Committee on the Constitution, and I emphasize this: the Constitution, Law and Justice Committee in its capacity as the committee on the constitution for the Knesset of Israel’ (Knesset Proceedings, vol. 125, at p. 3782).

 

30. In March 1994 the Knesset voided the original Basic Law: Freedom of Occupation and enacted in its stead a new Basic Law: Freedom of Occupation. This Basic Law also revised several provisions of the Basic Law: Human Dignity and Liberty. In presenting draft Basic Law: Freedom of Occupation for second and third readings MK Zucker noted that the debate on the Basic Law took place in the context of the Knesset’s authority as a constituent assembly, stating that:

I would like to remind you that today’s debate is taking place while we sit as a constituent assembly. We thereby continue the long tradition of debates held in this house in its role as Constituent Assembly. We are thus continuing to fulfill the Harrari Decision, which states: we will complete the constitution of the State of Israel chapter by chapter, by means of the Basic Laws.... Since 1948 the Knesset has essentially neglected part of its duties by failing to complete the enactment of a constitution for Israel, an assignment that it undertook both in its role as Constituent Assembly and in its role as the body charged with fulfillment of the Harrari Decision. It is true that this Knesset has almost completed the institutional portion of the Israeli constitution – those Basic Laws that deal with the government and the Knesset, the army, the Israel Lands Administration, the State Comptroller, the President of the State, etc. Even though these laws are not yet entrenched and have no preferred status over regular laws, nonetheless, the Knesset, as Constituent Assembly, has taken significant strides forward in this area ... The greatest failing of the Knesset has been in the field of human rights. Only two years ago did the Knesset begin the work that was supposed to have been undertaken in 1949, the enactment of a bill of rights for the Israeli citizen. Two years ago, this Knesset, in a significant and revolutionary step forward, enacted two Basic Laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This step has aptly been called a constitutional revolution, which is only now beginning’ (Knesset Proceedings, vol. 136, at p. 5362).

 

MK Y. Katz attacked the Knesset’s work in its role as Constituent Assembly. He insisted that:

 

Every first year law student is told that we are a constituent assembly, from the First Knesset through all of the Knessets until today. We are a constituent assembly because we have the authority to enact a constitution and the Basic Laws are part of the same future constitution’ (ibid., at p. 5426).

 

In the course of the entire debate it was clear to the members of Knesset that the Knesset was exercising its constituent authority; that they were enacting a portion of the constitution, and that they were empowered to entrench it (with formal or substantive entrenchment). They debated whether it was desirable to enable a majority of the Knesset to change the Basic Law. MK Meridor suggested that the required majority be eighty members of Knesset (ibid., at p. 5426). His suggestion was rejected. No contention was made that the Knesset was not empowered to provide for such entrenchment.

 

31. Before completing this analysis of the Knesset’s understanding of its constituent authority, I will mention five points. First, in every Knesset election the matter of the constitution was included as part of the party platforms. I verified this as to the passage from First to Second Knesset. In their article, Lahav and Kretzmer note that in the elections for the Eighth Knesset most of the parties promised to work towards enactment of a Constitution or Basic Laws as to human rights (see Lahav and Kretzmer, ibid., at p. 153). I did not check the party platforms for other Knesset elections. It seems that this is a well-founded assumption, inasmuch as  the matter of the constitution in general, and human rights in particular, found a central place in the party platforms. This is very significant. It indicates that recognition of the Knesset’s constituent authority was an item on the national agenda, was debated in the political forum, and was determined by means of election results. When the Knesset dealt with the matter of the constitution and enacted the various Basic Laws, it drew its power from the people. The Basic Laws were not enacted without the people’s knowledge.

 

Second, in four instances the Supreme Court invalidated regular legislation that conflicted with entrenched provisions of the Basic Law: The Knesset (see paragraph 35, infra). In accordance with those decisions the Knesset subsequently revised its regular legislation to conform to the entrenched provisions of the Basic Law. We are therefore presented with a new aspect of the Knesset’s understanding of the matter. The Knesset, in exercising its legislative authority, understood well that it was bound by limitations it had imposed in accordance with its constituent authority.

 

Third, all of the entrenchment provisions were enacted within the framework of the Basic Laws, in the context of the constitutional process. Only in one case has a formal entrenchment provision been included in a regular law. This is in s. 3 of the  Investments by Public in Financial Assets in Israel (Protection) Law, 5744-1984. That section provides that ‘this law may not be changed nor may the appendix be revised unless by a majority of the Members of Knesset.’ It should be noted that during the debate on the first reading of this proposed law a number of Members of Knesset expressed the view that this self-limitation was not binding since it was not included in a Basic Law. MK Rubinstein took this position, noting that:

 

Previous Knessets have discussed the question of whether the Knesset can entrench laws against changes by simple majority, and the position has been more or less accepted – although it is still disputed – that when we are talking about the Knesset as a constituent authority,  i.e. when it is acting as the framer of the constitution, when it is enacting a section of the constitution, then it can deem a particular law of superior status. If we enact, for example, a law as to human rights ... then in such a law, which is a Basic Law in the constitution, it is appropriate to provide that the constitution stands above other laws. This is recognized by jurists. This has been implicitly recognized by the Supreme Court. However, is it possible that a regular financial law be accorded such status? How can it be provided that a financial law will stand above regular legislation in future Knessets? If so, then tomorrow or next week – at some date closer to elections – the Knesset may enact a law that will forbid any change to the State budget or salaries or investments or allotments to religious institutions or allotments to settlements, unless by a majority of eighty or ninety or one hundred and twenty Members of Knesset. Why not? After all, on the eve of elections “anything goes”; this is popular and may not be opposed. Does anyone believe that this will be upheld in court? Does anyone believe that such a law will be considered a constitutional Basic Law? Does anyone believe that this is serious? This section is not worth the paper on which it is written’ (Knesset Proceedings, at p. 2790).

 

The second and third readings took place on the same day. MK Rubinstein’s questions remained unanswered. They evidence an attitude that was well accepted in the Knesset, which distinguished between Basic Laws (fruit of the Knesset’s constituent authority) and regular laws (fruit of the Knesset’s legislative authority). I will note also – incidentally – that in the words of introduction of Members of Knesset S. Aloni (Chair of the Subcommittee on Basic Laws) and A. Kulas (Chair of the Constitution, Law and Justice Committee) to the pamphlet on the Debates of the Committee on Basic Laws of the Tenth Knesset (1984), the two noted that:

The Constituent Assembly elected in 1949 in accordance with the “Declaration of Independence” decided not to enact a constitution and not to dissolve itself. It declared itself the First Knesset, and the task of preparing the constitution was passed to it and to subsequent Knessets, which would prepare “Basic Laws” chapter by chapter. The Basic Laws would, upon their completion, be consolidated to form the constitution of the State. This decision gave the Knesset the status of the Constituent Assembly, and in this way the enactment of “Basic Laws” and their consolidation to form the constitution became subject to the initiative of the Members of Knesset and to the initiative of the government, or at least to its readiness to cooperate with the appropriate Knesset committee, the Constitution, Law and Justice Committee and the Committee on “Basic Laws.”’

 

All this is evidence for the widely held understanding of the Knesset that it is endowed with both constituent and legislative authority, and that the enactment of a constitution is the realization of the Knesset’s constituent authority. In the context of this authority a supra-legislative constitutional norm may be created.

 

Fourth, in the first years after establishment of the State there were many references to the Constituent Assembly, the Declaration of Independence, and the “Harrari Decision.” With the passage of time – and changes in the composition of the Knesset – the rhetoric changed. This is natural. A generation goes, and a generation comes, but the national memory did not change. The connection to the past was not severed. The Knesset continued to see itself as the heir of the Constituent Assembly, and as endowed with constituent authority.

 

Fifth, it is clear from the Declaration of Independence that the role (and authority) of the Constituent Assembly was to enact a constitution (‘in accordance with a Constitution, to be drawn up by a Constituent Assembly’). The intention underlying this provision was that a “formal constitution” would be adopted, in other words, that ‘the form of these norms would differ from that of other norms, particularly that of “regular” laws. This difference in form is expressed as a difference in the identity of the institution creating the norm (“constituent institution” as opposed to “legislature”) or at least in the process of its creation. Its goal is to emphasize the normative preference for the constitution over the other norms in the State’s system of positive law’ (Akzin, ibid., at p. 230). As to his understanding of the term “constitution” in the Declaration of Independence, Professor Akzin writes:

 

It is well known that the great majority of the founders of the State were convinced that at the apex of the legal system of Israel would stand a formal constitution that would provide a binding framework for the statutes and other legal norms of the State. This understanding was vividly expressed in the Declaration of Independence, and a first step in its implementation was taken by the Provisional Council of State, which on 1 Tamuz 5708 (July 8, 1948) established the Constitution Committee’ (Akzin, ibid., at p. 231).
 

In a similar vein, Professor Rubinstein notes that ‘the framers of the Declaration intended a formal constitution. We must also remember their clear objective that the Declaration accord with the resolution of the General Assembly of the United Nations’ (ibid., at p. 44). Professor Uri Yadin described this well in an article that appeared the day before elections took place for the Constituent Assembly:

 

Tomorrow, there will be elections for the Constituent Assembly of the State of Israel, the first elections since the State was established, and the most important for a long time to come. We are not about to elect a regular parliament, one of the many that will subsequently be elected to enact laws dealing with the many routine issues of our daily lives, but a special parliament, unique in its importance, which will be charged with endowing the State with one preeminent law that will stand as a cornerstone throughout the democratic life of the State – the Basic Law, the Constitution’ (Sefer Uri Yadin, ibid., at p. 82).

 

Thus the authority of the Constituent Assembly was not defined, but its task was clear: the enactment of a (formal) constitution for the State, i.e. the creation of a supra-legislative constitutional framework. At the same time, it seems to me that the Knesset was entitled not to enact any constitution, or to enact only a “substantive” constitution. This is a political question that is not determined by law.

(iv) The understanding of writers and commentators

 

32. I will now discuss the views of writers and commentators. I do so first and foremost because of the great importance that every legal system attributes to its scholars. Of course, the Court provides definitive interpretation. But it is natural for the judge to draw inspiration from the words of scholars. There is also a second and more compelling reason to turn to these views. From the understanding of writers and commentators one may learn about the basic approach of the Israeli legal community to constituent authority. Clearly this does not constitute decisive proof. Nonetheless, it is important evidence which, when seen together with other factors – the objective facts as to constitutional continuity, the political debates before the elections, the Knesset’s understanding of itself, the legal precedent and the Knesset’s reaction thereto – grounds the foundation upon which the Court may and should determine that the Knesset – every Knesset – is endowed with constituent authority; that by the principles of Israeli law, the Knesset – every Knesset – is empowered to enact a constitution for Israel; that this is the most appropriate interpretation of the social and political history of Israel.

 

33. Most of Israel’s scholars have viewed and continue to view the Knesset as endowed with constituent authority and therefore authorized to enact a constitution for Israel. It is true that in the past some disputed this position (see Nimmer, “The Use of Judicial Review in Israel’s Quest for a Constitution,” 70 Col. L. Rev. (1970) 1217. It is particularly fitting to mention Dr Likhovsky, who maintained that the Knesset – like the British Parliament – was not entitled to limit itself (see Likhovsky, “Can the Knesset Adopt a Constitution which will be the Supreme Law of the Land,” 4 Isr. L. Rev. (1969) 61; see also Hornstein, “Entrenchment of the Basic Laws,” 25 HaPraklit (1969) 648; Scheftler, “Reflections on Constitutional Questions,” 26 HaPraklit (1971) 6). These views were debated, analyzed and rejected. They remain the minority position. Since the end of the nineteen-fifties (with the enactment of the Basic Law: The Knesset) and the end of the nineteen-sixties (with the decision in the Bergman case [15]) the recurrent theme in Israeli constitutional literature has been that the Knesset has constituent authority, and that it is therefore authorized to adopt a constitution that will limit the Knesset in its role as legislature. Generations of law students have been inculcated with this view since the nineteen-sixties. First credit should be attributed to M. Sternberg (M. Sternberg, “A New Law or a Supreme Judicial Course,” 16 Molad (1958) 284). Sternberg’s essay was written shortly after the enactment of the Basic Law: The Knesset. The author wrote:

 

In approving the Basic Law, the Knesset functioned not merely as a legislative authority, but as a constituent assembly charged by the Declaration of Independence with adopting a constitution for the State. The Knesset always saw itself as a supreme institution as well, authorized to fulfill the function of enacting a constitution, and on several occasions expressly declared this to be so. In section 1 of the Transition Law the Knesset provided that the Constituent Assembly would be known as the “First Knesset” and that a delegate to the Assembly would be known as a “Member of Knesset.” This shows that the Knesset saw as its primary task the enactment of the constitution, and, it would seem, as its secondary task, the enactment of laws. The Second Knesset Transition Law provided that “wherever the law refers to the Constituent Assembly or the First Knesset it as if it referred to the Second Knesset.” Section 10 of that law provides that “this law will apply, with the necessary changes, to the Third Knesset and every subsequent Knesset.” Thus the group of people known as the Knesset constitutes another body as well, known as the Constituent Assembly, and it coexists, parallel to the Knesset itself, as a body whose purpose is construction of the constitution’ (p. 286).

 

A number of years afterward, with the enactment of the first two Basic Laws, Professor Akzin expressed his opinion on the matter before us (Akzin, “Basic Laws and Entrenched Laws in Israel,” 17 HaPraklit (1961) 230). Professor Akzin noted that in his opinion the Knesset exercises its constituent and legislative authority simultaneously. In his view, the Basic Laws are of a constitutional nature, in accordance with the Harrari Decision. Professor Akzin writes:

 

We do not maintain, as has been claimed from time to time in the Knesset and the press, that even if the Basic Law provided for preferential status it could not thereby tie the hands of a future Knesset: such a claim is pure sophistry and conceptual nihilism. While this claim may be true as to England, there it is consistent with the English rejection of a formal constitution superior to the regular legislature. It has already been decided that this claim cannot stand in a country where the idea of a formal constitution has gained currency. We are referring to South Africa, whose public law is based upon English law. The public law of the State of Israel has been based, since the Declaration of Independence, upon the proposition that a constitution may be established beside the regular laws. This proposition has never been rescinded; rather, it has been repeatedly reaffirmed by the decisions of the Knesset since 1950. If there is any significance to the term “constitution,” it is that the constitution itself authoritatively determines the relations between it and the other norms of the State’ (ibid., at p. 236).

 

In 1969, the first edition of A. Rubinstein’s seminal work The Constitutional Law of the State of Israel was published. In this book, Dr Rubinstein elaborates on the constituent and legislative authority of the Knesset and on its power, in exercising its constituent authority, to enact a constitution that will limit the regular legislation of the Knesset. The author writes:

 

The Constituent Assembly, after it changed its name to the “First Knesset,” extensively debated the question of the constitution. No doubt was cast on the fact that it was indeed authorized to enact a written, formal constitution. The great dispute revolved around the question of whether it was required to do so... There can therefore be no doubt as to the Knesset’s power to enact a constitution or laws of a constitutional character that stand above regular legislation… The First Knesset dissolved before its time, without adopting a single chapter of the constitution of the State in accordance with the Harrari Decision. The First Knesset’s powers passed to the Second Knesset ... From this it is clear that the powers of the Constituent Assembly passed from the First Knesset to the present Knesset and to every future Knesset... No defect in this continuity can be shown, nor has the power to enact a constitution disappeared; rather it is conferred upon every Knesset’ (ibid., pp. 167-168).

 

The author reiterated this position in all four editions of his work, and the young jurists of the State of Israel were inculcated with this view.

 

34. A significant contribution in the area of Israel’s constitution, the constituent authority of the Knesset and its parliamentary status, was made by Professor Klein (see, inter alia, Klein, “The Constituent Authority in Israel,” 2 Hebrew Univ. L. Rev. (Mishpatim) (1970) 51; Klein, “On the Legal Definition of the Parliamentary Government and Israeli Parliamentarism,” 5 Hebrew Univ. L. Rev. (Mishpatim) (1976) 308; Klein, “A New Era In Israel’s Constitutional Law,” 6 Isr. L. Rev. (1971) 373). The author wrote in 1970:

 

The concept of constituent authority undoubtedly exists in the constitutional law of Israel. Constituent authority was conferred upon the Constituent Assembly, i.e. the First Knesset. The First Knesset did not relinquish this authority, but transferred it to the Second and every subsequent Knesset’ (Klein, “The Constituent Authority in Israel,” II Hebrew Univ. L. Rev. (Mishpatim) (1970) 51, 53).

 

Professor Klinghoffer has expressed a similar view. We have discussed his position, as he expressed it in the Knesset. He reiterated this position in his above-mentioned article as well:

 

The Declaration of Independence did not specify a period of time within which the constitution must be enacted, and the transfer of the powers of the Constituent Assembly to the Second Knesset and every subsequent Knesset was authorized by a special legal arrangement. This is a sort of continuing transfer, which, so long as it remains in place, confers upon the Israeli legislature, as a perpetual inheritance, the authority to enact a constitution’ (Klinghoffer Book on Public Law, Y. Zamir, ed., (1993) at p. 763); the article itself was first published in 1961)).

 

This is also the position of Professor Gavison. In an article devoted to the dispute on the Basic Law: Human Rights, Professor Gavison writes as follows:

 

I accept the analysis suggested by both Klein and Rubinstein that even if the Knesset is not under such a duty, it maintains parallel powers – legislative and constituent – and that it may limit its own legislative powers while exercising its constituent powers. This analysis seems to be the most appropriate one, despite the undesirability of the length of the period for which these two kinds of distinct powers exist, and the fact that the Knesset itself is not keen on distinguishing between the kinds of power which it exercises’ (Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 118).

 

In a similar spirit, Dr Maoz noted that the Knesset enacted the Basic Laws as to human rights as an exercise of its constituent powers, and thence stems their primary normative status (see Maoz, “Constitutional Law,” Yearbook on Israeli Law, 1992-1993, A. Rosen-Tzvi, ed. (1994) 143). A similar position is expressed in numerous books and articles on this subject (see, e.g. Lahav and Kretzmer; ibid., at p. 158); it undoubtedly reflects the position of the legal community in Israel. It is sufficient to mention that the academic faculty of the Tel Aviv University Law Faculty proposed a draft “Constitution for Israel” to the Knesset. This proposal had great influence on the advancement of the constitutional undertaking in recent years. The proposed “Constitution for Israel” was based on the Knesset’s power to enact a constitution, entrench it and thereby limit the powers of the regular legislature. Note, however, that there were those who believed that there was no room for a fixed constitution. There were those who believed that it was not desirable for the constitution to include a chapter on human rights. President Landau’s position in this regard is well known (Landau, “A Constitution as the Primary Law for the State of Israel,” 27 HaPraklit (1971) 30). But even those voices did not base themselves upon a contention that the Knesset lacked the authority to enact a constitution. Rather, they were of the opinion that it was not wise to invest the Knesset with such power. Again, this short survey is not sufficient to show that only one conclusive position exists. I am aware that the judicial task is an independent one, which derives sustenance from the wisdom of others, but recognizes the personal responsibility of the judge to decide legal questions. The purpose of this survey is to show that the judicial determination, which recognizes the position that the Knesset is endowed with constituent powers, is not arbitrary, deriving from the subjective outlook of the judge, but rather is a reasonable conclusion, premised upon an objective outlook that reflects the basic opinions of the (legal) community in Israel. Another layer is therefore added to our ultimate conclusion that recognition of the constituent authority of the Knesset is the best, most fitting interpretation of Israel’s legal history.

 

(v) Judicial precedent of the Supreme Court

 

35. The Supreme Court recognized the power of the Knesset to entrench the clauses of a Basic Law against regular legislation, as set forth in four decisions rendered before the March 1992 enactment of the Basic Laws as to human rights (see HCJ 98/69 Bergman v. Minister of Finance [15], at p. 693; HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [19], at p. 7; HCJ 141/82 Rubinstein v. Knesset Speaker [20], at p. 141; HCJ 142/89 Laor Movement v. Knesset Speaker [21], at p. 529). At first, the matter was left for further review, but with time it was addressed clearly and explicitly. In the Laor Movement case [21], I noted as follows:

 

A law of the Knesset – whether a “regular” law or a Basic Law – that seeks to change an “entrenched” provision without having been adopted by the necessary majority contradicts the entrenchment provision of the Basic Law. In light of its legal effect, the “entrenchment” provision takes precedence. In this clash between the entrenchment provision and the clause that seeks to change it without meeting the necessary majority requirement, we do not apply the standard rules of construction, according to which a later enacted law invalidates an earlier enacted law. In this clash we apply the principle that gives normative precedence to the entrenched Basic Law’ (HCJ 142/89 [21], supra, at p. 539).

 

Thus the Court has recognized the Knesset’s power to ‘entrench’ the Basic Laws against change or infringement. Otherwise, we cannot explain the invalidation of four “regular” laws for violating the principle of election parity set forth in the Basic Law: The Knesset, when these invalidations stemmed from the failure of those laws to meet a formal requirement (the special majority) set forth in s. 4 of the Basic Law. It is true that in these decisions (except for the Laor Movement case [21]) the Court did not employ the rhetoric of constituent authority. We cannot conclude from these decisions that this specific doctrine was before the Court at that time. However, it is clear that the Court recognized the normative primacy of the entrenched Basic Laws. This primacy is certainly consistent – and as I will explain, only consistent – with the constituent authority of a Knesset empowered to enact a constitution for the State. In the fourth case in this series, I discussed the Knesset’s status as a constituent authority, noting as follows:

 

This “entrenchment” applies in our system, for we recognize the Knesset’s power to function as a constituent authority and to prepare Basic Laws that will constitute the various chapters of the State constitution. It is in this context that  we recognize the power of the Knesset,  acting as a constituent authority, to entrench provisions of a Basic Law against changes – whether by “regular” or Basic Law – that are adopted by a “regular” majority…’ (Laor Movement case [21], at p. 539).

 

36. Since the enactment of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, the question of the normative status of these Basic Laws has arisen in an incidental manner in the decisions of the Supreme Court. The Supreme Court has taken the position that these two Basic Laws enjoy constitutional supra-legislative status. Justice D. Levin concluded that this was so in the first decision to address the constitutionality of Basic Law: Freedom of Occupation. Justice Levin wrote:

 

In March 1992 a significant change occurred in Israeli law. Two Basic Laws were adopted and came into force that define and raise to a constitutional level basic civil rights .... These two Basic Laws were debated in the Knesset of Israel, as a constituent authority, and consequently, the revised version of Basic Law: Freedom of Occupation and a revision to Basic Law: Human Dignity and Liberty were enacted, and came into force on March 9, 1994 ... When these two Basic Laws came into being they erected, by their own force and in conjunction with various basic rights that had been scattered here and there throughout our case law, the foundations and walls of the Israeli constitutional edifice. This construction has not, however, been completed, and there remains more to be drafted and enacted so that the constitution may stand in its full glory, radiating its light on the institutions of government and law in Israel. Nonetheless, the work that has been done is the construction of a stable constitutional structure, protected under the aegis of the principle and values anchored in the Declaration of Independence’ (HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37], at pp. 463-464).

 

Thus, in the first decision to deal with the status of the Basic Laws, the Supreme Court decided – and in this regard the decision was unanimous (by Justices Levin, Strasberg-Cohen and Tal) – that the two Basic Laws on human rights were adopted by the Knesset in the exercise of its constituent authority, and they therefore enjoy constitutional supra-legislative status. In a similar vein, the Justices of this Court stated obiter dicta their position as to the constitutional supra-legislative status of the two new Basic Laws. My colleague Justice D. Levin so opined as to Basic Law: Freedom of Occupation and the right to freedom of occupation when he stated, in another case, as follows:

 

Basic Law: Freedom of Occupation ... endowed this right with formal constitutional recognition and supra-legislative status. It is transformed into a protected basic right and placed on a higher normative level than “regular” legislation or “Israeli” common law…’ (HCJ 239/92 Egged Israeli Transport Cooperation Society v. Mashiah [44], at p. 71).

 

In a similar spirit, my colleague Justice Mazza stated as follows in another case dealing with the Basic Law: Freedom of Occupation:

 

The safeguarding of the right to freedom of occupation in a Basic Law has conferred upon that right supra-legislative status. One of the distinguishing characteristics of this illustrious status ... is in the entrenchment of that right even against the mighty hand of the legislature. Again, it is not enough that a law that limits the right be explicit and unequivocal; rather, in order to effectively limit the freedom of occupation, the law must also meet the requirements of the last part of section 1, that is,. the limitation must be required for a “proper purpose and for the general good”...’ (HCJ 3385/93, 4746/92, G.P.S. Agro Exports Ltd v. Minister of Agriculture [24], at p. 259).

 

In another case, Justice Strasberg-Cohen decided as follows:

 

These laws changed the normative status of freedom of occupation in Israel. There were two primary changes: first, the possibility of invalidating a law that does not meet the criteria of the Basic Law, a possibility that did not previously exist; and second, a change in the relative status of the law, on the one hand, and the basic right on the other. If, prior to the Basic Law, it was possible to limit the basic right by means of a law that did so clearly and explicitly, and if, prior to the Basic Law, the basic right and its limitation were tested in light of the law limiting that right, now the right (for our purposes, freedom of occupation) has been given preferred status above the law that limits it, and requires an analysis into whether the limitation is consistent with the values of the State of Israel, was enacted to serve a proper purpose, and is not more restrictive than necessary’ (HCJ 1225/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications [45], at p. 679).

 

37. The Justices of the Supreme Court took a similar approach, obiter dicta, as to the constitutional supra-legislative status of Basic Law: Human Dignity and Liberty. In one of the cases, which dealt with the freedom of movement (protected by s. 6 of Basic Law: Human Dignity and Liberty) I noted as follows:

 

This right is invested with constitutional supra-legislative status. A regular law enacted after the effective date of the Basic Law that infringes the basic right and does not meet the requirements of the “limitation clause” (s. 8 of the Basic Law) is an unconstitutional law. The Court is entitled to apply the appropriate remedies. One of those remedies is to declare the law void, and set forth the effective date of the invalidity (retroactive, active or prospective)’ (CrimApp 6654/93 Binkin v. State of Israel [46], at p. 293).

 

In another case I noted:

 

With the enactment of the Basic Law, a significant change occurred in Israel. The normative status of a number of basic human rights has changed. They have become part of the State constitution. They have been accorded constitutional supra-legislative status’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 410).

 

In one of the cases, Justice Or analyzed the principle of equality. He determined that this principle may be safeguarded by Basic Law: Human Dignity and Liberty. Therefore, in his opinion, the following conclusion is required:

Such a safeguard signifies the elevation of the principle of equality to a normative constitutional supra-legislative level’ (HCJ 5394/92 Huppert v. Yad Vashem Holocaust Martyrs and Heroes Memorial Authority [47], at p. 362).

 

It must be emphasized that most of the decisions discuss the constitutional supra-legislative status of the Basic Laws. There is no express reference to the Knesset’s constituent power. There was no need for such an express reference, since this question was not at issue. I do not contend, therefore, that one may conclude from these decisions that the Court explicitly adopted the doctrine of constituent authority (aside from the decision in the Laor Movement case [21], and the unanimous decision in the case of Clal Insurance Co. Ltd [37]). My contention is that the Court recognized the normative supremacy of the Basic Laws, and their constitutional supra-legislative status. In so doing, the Court did not adopt those constructions that see the Basic Laws as occupying the same normative level as regular legislation.

 

(vi) The Knesset’s constituent authority: conclusions

 

38. The socio-historical journey is at an end. This journey was vital. Constitutionality and the constitution are not merely formal documents. They are not mere law. They are the product of the national experience. They are society and culture. A constitution is indeed a reflection of the national experience. The words of Justice Agranat still resonate:

 

For it is a well known axiom that a nation’s law must be viewed through the lens of its national experience’ (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [4], supra, at p. 884).

 

Our system of national life, our national experience, from the establishment of the State until today, is that the Knesset is perceived by our national consciousness as the body authorized to enact a constitution for Israel. That consciousness originated before the establishment of the State and the preparations for framing a constitution. That consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the social-legal understanding that the Knesset is endowed with constituent authority and is empowered to enact a constitution for Israel. The rhetoric of constituent authority and constituent power was particularly strong during the first years following the establishment of the State. This rhetoric weakened with the passage of time. That is natural. Nonetheless, the basic understanding that the Knesset is endowed not only with regular legislative authority but also with constituent authority accompanied the Knesset from its inception. This is evidenced by the repeated references to the Harrari Decision. The renewed rhetorical reference to the Knesset as endowed with constituent authority in the context of the enactment of the Basic Law: Freedom of Occupation in 1994 shows this as well. Indeed, the view that the Knesset is authorized to enact a constitution is deeply embedded in the social and legal consciousness of Israeli society. This is part of our political culture. On the basis of this view, we, the judges of Israel are entitled to declare today that according to the rule of recognition of the State of Israel, the Knesset is endowed with legislative and constituent authority, and that the Knesset may, in exercising its constituent authority, limit the exercise of its legislative authority.

 

In truth, the rule of recognition at the outset of the Second Knesset might have been different had the Supreme Court determined that constitutional continuity had been severed. But this did not happen. In my opinion this would not have happened even had the question arisen before the Court at that time. In any event, today’s socio-legal reality enables the Supreme Court – in whose hands rests consolidation of the rule of recognition (see H.L.A. Hart, The Concept of Law, at pp. 147-154 (2nd ed., 1994)) – to identify and declare that our Knesset is endowed with both constituent and legislative authority; that it wears ‘two hats’; that in enacting the constitution it may limit its regular legislative power; that its constituent actions stand above its legislative actions. Of course, while the Knesset’s lawmaking power (its “legislative hat”) is continuous and everlasting, its power to enact a constitution (its “constituent hat”) is temporary and will terminate when the Knesset, as a constituent authority, determines that the constitutional undertaking has been completed. The constitution itself will set forth the means by which it may be revised and amended. This conclusion – the product of the rule of recognition – is also the best interpretation of our socio-legal history from the establishment of the State until today.

 

39. The common denominator of these three models is that the constituent authority of the Knesset always rests with the people. A constitution is not a government act that bestows a constitution upon the people. A constitution is an act by the people that creates government. It is the people that determines – according to the social philosophy developed over the course of its history – who exercises the highest authority of the State, and its rule of recognition. The Court gives expression to this social determination. The Court is the faithful interpreter of the people’s will as expressed in the constitution. The Court attempts to give the best possible interpretation of the totality of the national experience. The existence of a constitution is not a logical matter but a social phenomenon. The Court interprets the ‘social facts’ and infers from them the constituent power of the Knesset. This interpretation is not the product of intellectual construction. It is an expression of the social reality. It reflects actual experience. It is an expression of the moral and political foundation upon which the system is based. It is the product of the historical, political, social and legal history of the system. It is the consequence of the social contract based upon the communal consensus in Israel (the Laor Movement case [21], supra, at p. 554). The Court attempts to give the best interpretation of the totality of the national experience. At times, the constituent authority remains in the hands of the people itself, which then acts directly and enacts a constitution by referendum. In most cases the nation delegates constituent authority to a governing body. At times this is a special governing body. Generally it is an existing governing body, which is also the body authorized to enact laws. That is the case in Israel.

 

 

d) Review and critique of Justice Cheshin’s position

 

40. My colleague Justice Cheshin rejects the Knesset’s constituent authority. In his view, a Basic Law is “regular” legislation to which the label “Basic Law” has been appended. The Knesset may not limit itself. The Knesset is not omnipotent, inasmuch as it is subject, inter alia, to the will of the majority. A statutory clause (including that set forth in a Basic Law) providing for a formal majority “limitation” is not binding, unless the required majority is 61 members of Knesset (which is not a true limitation). A statutory clause providing for a substantive limitation in regard to the content of the provision (such as that appearing in the limitation clause) may be changed by later legislation despite noncompliance with the limitation requirement, as long as the subsequent law expressly provides for the change. Essentially, this is the classic English position, which represents the accepted view of the Westminsterian model as it is understood today in England. The legal construction that my colleague proposes in requiring an express change was raised many years ago by Professor Klein, and I referred to it myself years ago. My colleague’s position that, in principle, limitation is not possible is the antithesis of the view held by my colleague President Shamgar, according to whom limitation is possible. My view – based upon the Knesset’s constituent authority – falls in the “middle.” It is opposed to Justice Cheshin’s position on entrenchment and self-limitation in the Basic Laws. We do share basic principles – which I would like to reserve for future review – as to the effect of limitation clauses in regular laws, but that is not now the issue before us.

 

41. I will state at the outset that I disagree with the position held by my colleague Justice Cheshin. I agree with the view of my colleague Justice Shamgar in this matter. Indeed, consider the result: there is no constitution and the Basic Laws are but regular laws; the constitutional undertaking of more than forty years has been, so far, an unsuccessful experiment; the provisions of s. 9A of Basic Law: The Knesset, according to which the Knesset may extend its term only by a law enacted by a majority of eighty members of Knesset, are invalid; the provisions of s. 45 of Basic Law: The Knesset (according to which ss. 9A, 44 and 45 may be amended only by a majority of eighty members of Knesset), are invalid; the limiting provisions included in all drafts of Basic Law: Legislation based upon the principle that a Basic Law may not be enacted or amended unless by a majority of two-thirds of the Knesset, will not be constitutional if adopted; the clauses set forth in the Basic Laws requiring a Knesset majority – which, in the view of my colleague Justice Cheshin, are lawful – are imperiled, for it seems to me according to his underlying premise they should be invalidated. If we wish to enact a constitution and Basic Laws, we will have to start again from the beginning. And, apparently, even such a beginning is not at all simple. Certainly we will not aspire to ‘blood and fire and pillars of smoke’ [Joel 3:3]. If we wish to adopt a constitution by non-violent means, we are faced with considerable difficulty. The Knesset would not be empowered to enact a law establishing a constituent assembly. Even presenting a proposed constitution to be adopted by the Knesset (or a body established by it) for a national referendum would pose problems that could not be easily surmounted. Indeed, my colleague places us in the same position in which England is found today – without our being part of the European community and without our being subject to the European Convention on Human Rights – and he places before our legal system the same difficulties facing England today. In my opinion all this is unnecessary, for our history is unlike England’s. Our Knesset has constituent authority, by means of which it may achieve constitutional arrangements not easily realizable in England. I say this not because I desire a constitution, just as my colleague does not take his position because he desires that we not have a constitution. I take this position because it accords with my best professional understanding; it is based upon my best efforts to be objective in light of the constitutional structure and contemporary constitutional understanding. Indeed, I would consider a Knesset decision to discontinue the constitutional undertaking as legitimate, imbued with the same force as a decision to continue the enterprise. However, as long as the Knesset has not decided to abandon the constitutional undertaking, the Court must give constitutional force to that enterprise without regard to the judge’s personal opinion.

 

42. Accordingly, the most important question remains whether the Knesset is endowed with constituent authority. My colleague’s claim rests upon the view that the Constituent Assembly’s constituent authority expired with the dissolution of the First Knesset. Most of his contentions have been made before. Professor Nemer, Dr Likhovsky, Mr Shefter and Mr Hornstein raised these arguments in the nineteen-fifties and sixties. My colleague returns to them. Some of these claims are stronger, some less so. As I mentioned in my opinion, had these questions arisen at the time that the Second Knesset convened (in 1951) they would have posed a problem that was “by no means simple.” I added that even then these problems could have been surmounted. Certainly these claims have weakened over the years. With the current reinforcement of the constitutional enterprise they lack real force.

 

43. I have addressed most of my colleague’s claims in the course of my opinion. I will therefore not repeat my answers but will address a number of points that merit further discussion.

(a) My colleague stresses that the First Knesset – which everyone agrees was empowered to adopt a constitution for Israel – was not authorized to transfer that power to the Second Knesset, and even if the First Knesset was so empowered, it did not intend to effect such a transfer. My simple answer is that the principle of transfer or agency, according to which an agent is not a principal does not apply here. The Knesset was given the power to enact a constitution by means of the basic norm and according to the basic understanding of the Israeli community. This power was given to every Knesset. The First Knesset did not pass powers to the Second Knesset, just as the Twelfth Knesset did not pass legislative power to the Thirteenth Knesset. A later Knesset is not the agent of an earlier Knesset. The Knesset is the central organ of the State, and according to our constitutional structure it is endowed with both constituent and legislative authority. In any event, even according to my colleague’s line of thinking, I have sought to show that the First Knesset intended (subjectively) to see the Second Knesset as its heir, and that intention was successfully implemented.

 

(b) My colleague has returned again to the old claims that the passage of constituent authority from the First to the Second Knesset was effected by regular laws and not by Basic Laws. This question does not arise as to the Transition Law, 5709-1949, which was enacted before the Harrari Decision. Personally, I see in this a constitutional provision, as it was indeed dubbed (“minor constitution”). Professor Yadin noted that the Transition Law was an ‘act of basic legislation in the sphere of the national constitution’ (Sefer Yadin, at p. 90). As to the Transition to the Second Knesset Law, it was enacted after the Harrari Decision, and should have been enacted as a Basic Law. It is unfortunate that this was not done. Does the entire constitutional structure therefore collapse? I have already noted that in my opinion this law was unnecessary; it was declarative in nature, emphasizing the passage from transitional to permanent status.

 

(c) My colleague Justice Cheshin cites as a weakness of the doctrine of constituent authority that it must distinguish between constituent and legislative acts, and that it is likely to require a determination as to whether certain provisions set forth in the Basic Law deviate from constituent authority. My answer is threefold. First, according to the doctrine of constituent authority the distinction between constituent and legislative acts is straightforward and clear, and is subject to a simple formal test. In this my position is similar to Justice Cheshin’s position, which is also subject to a simple test calling for a majority of 61 members of Knesset and no more than that. Second, indeed it may be necessary to test the constitutionality of the use of the term ‘Basic Law.’ I sought to leave this matter for further consideration and I maintain this position. I will note, however, that it is well accepted for courts to test the constitutionality of amendments. More than one such amendment has been invalidated as unconstitutional, and this has been not only for ‘formal’ reasons (such as a failure to meet majority requirements) but for substantive reasons as well (see the opinion of the Supreme Court of India in the case of Kesavande v. State of Kerala [113]). Consider, in this regard, the following words of the Constitutional Court of Germany:

 

Laws are not constitutional merely because they have been passed in conformity with procedural provisions... They must be substantively compatible with the highest values of a free and democratic order, i.e. the constitutional order of values, and must also conform to unwritten fundamental constitutional principles as well as the fundamental decisions of the Basic Law’ (6 BverfGE 32 [109]).

 

The literature on this matter is plentiful (see Barak, Parshanut BeMishpat, vol. 3, (1994), at p. 566, and also infra). Third, the need for judicial review under these circumstances is not unusual. It seems to me that even my colleague Justice Cheshin applies judicial review in similar circumstances. Thus, for example, in his view, the Constituent Assembly (the First Knesset) was unsuccessful in its attempt to transfer authority to the Second Knesset. Is this not an example of the Court setting constitutional limits? My colleague Justice Cheshin determines that the Knesset’s enactment of a law (even a Basic Law) extending its term beyond four years would be unconstitutional. Is this not a case in which the Court determines the boundaries of constituent authority? It is worth noting as well the words of my colleague President Shamgar, who noted that ‘there should be no doubt as to the existence of judicial review’ even as to the constitutionality of the constitutional legislation itself (see paragraph 46 of his opinion).

 

44. My conclusion is therefore that my colleague Justice Cheshin has presented the old arguments (some better, some less so) that were raised in the nineteen-fifties and sixties. All these contentions have been answered. The answers were sufficient when they were made. They are certainly sufficient today. As I have attempted to show, the Knesset’s constituent authority does not come to it merely by inheritance from the original Constituent Assembly (according to Kelsen’s view). I have reiterated that the recognition of the Knesset’s constituent authority reflects the general rule of recognition of Israeli law today (according to Hart’s view). This is the best interpretation of the entirety of the legal and national history of Israel, as it is understood today (according to Dworkin’s view). Indeed, regardless of the legal climate at the time the Constituent Assembly was dissolved, even had there been no Constituent Assembly at all, the question remains – what is the rule of recognition of Israeli law today? Does today’s Israeli law recognize the Knesset’s authority to endow Israel with a constitution? I have answered this question affirmatively. To support my position, I have presented the Knesset’s understanding of itself; the party platforms from various elections, which manifest the subjects on which the nation gave its opinion in those elections; the words of scholars and academics reflecting the pr