Government

featured:

Fuchs v. Prime Minister

Case/docket number:

HCJ 5261/04

Date Decided:

Tuesday, October 26, 2004

Decision Type:

Original

Topics:

Abstract:

Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held.

The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial majority in the Cabinet in favour of the plan.

Held: The Supreme Court held that the discretion of the prime minister when exercising his power to remove ministers from office was very broad, and that the removal of ministers from office in order to further a political plan that the prime minister regarded as essential for the welfare of the State of Israel fell within the zone of reasonableness for his action in removing the ministers from office.

Petitions denied.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Mazza, Eliahu

majority opinion

Beinisch, Dorit

majority opinion

Procaccia, Ayala

Author

concurrence

Turkel, Jacob

Author

concurrence

Cheshin, Mishael

Author

dissent

Levy, Edmond E.

Author

dissent

Full text of the opinion:

HCJ 5261/04

Advocate Yossi Fuchs

Prime Minister of Israel, Ariel Sharon

HCJ 5262/04

Advocate Naftali Gur-Aryeh and another

Prime Minister of Israel and another

HCJ 5263/04

Yitzhak Vazana and others

Prime Minister of Israel and another

HCJ 5264/04

Advocate Ben-Zion Gispan

Prime Minister of Israel, Ariel Sharon and others

HCJ 5317/04

Minister of Tourism, Binyamin Elon

Prime Minister of Israel, Ariel Sharon

The Supreme Court sitting as the High Court of Justice

[26 October 2004]

Before President A. Barak, Vice-President E. Mazza
and Justices M. Cheshin, J. Türkel, D. Beinisch, A. Procaccia, E.E. Levy

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

Petitions denied.

Legislation cited:

Basic Law: the Government, 5728-1968, s. 21A.

Basic Law: the Government (Amendment no. 3) (5741-1981).

Basic Law: the Government, 5752-1992, ss. 35(b), 35(c).

Basic Law: the Government, 5761-2001, ss. 1, 3, 4, 5(a), 7(a), 13(c), 13(d), 14(d), 15, 16(a), 19, 20, 22, 22(b), 24(b), 25, 28, 29(a), 31, 31(f), 39, 40, 40(c).

Basic Law: the Knesset, ss. 1, 4.

Government Law, 5761-2001, ss. 1(a), 2, 9(6).

Interpretation Law, 5741-1981, s. 10(c).

Transition Law, 5709-1949, s. 11(g).

Israeli Supreme Court cases cited:

[1] HCJ 621/76 Segal v. Government of Israel [1977] IsrSC 31(2) 8.

[2] HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[3] HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673.

[4] HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(2) 481; [1998-9] IsrLR 139.

[5] HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204.

[6] HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [2001] IsrSC 55(2) 602.

[7] HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258.

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

[9] HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR 363.

[10] HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441.

[11] HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46.

[12] HCJ 1635/90 Jerzhevski v. Prime Minister [1991] IsrSC 45(1) 749.

[13] HCJ 502/99 Cohen v. Prime Minister (unreported).

[14] HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[15] HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800.

The petitioner in HCJ 5261/04 represented himself.

For the petitioners in HCJ 5262/04 — N. Gur-Aryeh.

For the petitioners in HCJ 5263/04 — A. Nof.

For the petitioners in HCJ 5264/04 — S. Samina, B.Z. Gispan.

For the respondents — O. Mendel, A. Helman, High Court of Justice Department at the State Attorney’s Office.

JUDGMENT

President A. Barak

The prime minister wishes to promote a national-political plan. He considers this plan to be vital to the future of the State of Israel. It has serious ramifications in terms of the foreign and defence policies of the State of Israel. The prime minister gives instructions that the plan should be submitted to the Cabinet for its approval. Shortly before the time of the vote, the prime minister decides to exercise the power given to him in s. 22(b) of the Basic Law: the Government, and to remove from office two of the Cabinet ministers who oppose the plan and are working to prevent its approval. He does this in order to obtain a majority vote in the Cabinet. Is this decision lawful? That is the question before us.

The facts

1. During 2004, the prime minister, Mr Ariel Sharon, began to promote a political plan that is called the ‘disengagement plan.’ The plan includes the evacuation of all of the settlements in the Gaza Strip and several settlements in Samaria. The prime minister decided to submit the plan to the Cabinet for approval. A discussion of the matter was scheduled for Sunday, 6 April 2004. On Friday, 4 April 2004, the prime minister sent letters to two Cabinet ministers, MK Avigdor Lieberman (the Minister of Transport) and MK Binyamin Elon (the Minister of Tourism), both from the National Union faction, removing them from office. The removal from office was carried out by virtue of the prime minister’s power in s. 22(b) of the Basic Law: the Government. The grounds for the decision to remove the ministers from office were the fact that both of the ministers had said and made it clear that they were vehemently opposed to the ‘disengagement plan’ and that they would do everything they could to prevent it from being approved by the Cabinet, and the assumption that, in view of this opposition, the two ministers would in any case not remain in the Cabinet, if the plan were approved. The prime minister was of the opinion that this was a political plan ‘of historic significance’ (s. 2 of the Attorney-General’s response), that it was essential for ‘ensuring the future welfare of the State of Israel’ (ibid.) and that it was of decisive importance in the context of international relations between the State of Israel and other countries’ (ibid.). For this reason, in the prime minister’s opinion, ‘the rejection of the plan by the Cabinet would have had very grave implications for the foreign relations of the State of Israel’ (ibid.). Therefore, the removal of the ministers from office was intended to ensure that the ‘disengagement plan’ would be approved by a majority of the Cabinet and would be implemented.

2. The letters removing the ministers from office were signed as aforesaid on Friday, 4 June 2004. When they had been signed, but before they were delivered to the ministers who were removed from office, the members of the Cabinet were notified by telephone of the prime minister’s decision to remove the Minister of Tourism and the Minister of Transport from office. The letter to the Minister of Transport was delivered by a messenger from the prime minister’s office on the same morning. The prime minister informed the Minister of Tourism of his removal from office in a telephone conversation between them. Meanwhile, the efforts that were made to ascertain the physical location of the Minister of Tourism in order to deliver the letter removing him from office were unsuccessful. The Minister of Tourism refused to divulge his location to the Cabinet secretary in conversations that they had during that day. A messenger, who was sent to the home of the Minister of Tourism as well as to his office, did not find him at those locations. Finally it was decided — after the Cabinet received guidelines from the Attorney-General in this respect — that in the circumstances it was sufficient to send the notice by facsimile and by messenger to the home and office of the Minister of Tourism, together with notice by telephone. Notice as aforesaid was given to the minister’s assistant, but the attempt to speak with the minister himself was unsuccessful. Equally unsuccessful was the attempt to send the notice by facsimile to the minister’s home. A driver was sent to the minister’s home, and he tried to leave the letter concerning the removal from office in the mailbox, but, according to what the Cabinet secretary was told by the security officer at the Ministry of Tourism, the sentry on duty had received orders from the minister himself not to accept the letter. Finally, on Friday afternoon the letter removing him from office was placed on the reception desk of the office of the Minister of Tourism.

3. On Sunday, 6 June 2004, petitions were filed in this court, asking that we make an order nisi and an interim order, to the effect that the letters removing the ministers from office should be suspended and not come into effect. In the decision of this court (the honourable Justice E.E. Levy) on 6 June 2004, it was decided to deny the application for an interim order, and it was held that, at this stage of the proceedings, it appeared that the procedure that was followed for delivering the letters to the ministers was prima facie lawful, as was the notice to the Cabinet ministers of the prime minister’s decision in this regard.

4. The Cabinet meeting took place as planned on 6 June 2004. The Minister of Tourism came to this meeting, but when it became clear to him that the application for an interim order was denied by this Court, he left the meeting. It was decided in the Cabinet meeting to approve the ‘disengagement plan’ that the prime minister presented, by a majority of seven for and four against.

The arguments of the parties

5. In the five petitions that were filed in this court, two main arguments were raised against the legality of the action of the prime minister, with respect to the removal of the Minister of Tourism and the Minister of Transport from office. The first argument was mainly a procedural one, according to which the procedure for removing the Ministers from office was unlawful, in view of the provisions of s. 22(b) of the Basic Law: the Government, for the following reasons: the period of forty-eight hours until the letters came into effect as intended included the hours of the Sabbath; the letter was not delivered to the Minister of Tourism himself; the telephone notice of the prime minister’s decision that was given to the ministers did not, according to the petitioners, comply with the conditions prescribed by law. The second argument argued before us — and this is the main one —was that the decision to remove the ministers from office was not in itself a lawful one. The petitioners argued that the prime minister is not authorized to remove a minister from office in circumstances where the reason for this decision is a political position that is held by that minister and that is opposed to a position or plan of the prime minister. This is especially the case in view of the fact that the Cabinet had not yet reached a decision on the matter, and there had been no claim that the minister concerned lacked the necessary abilities or qualifications, or had run his ministry improperly. A minister should not be dismissed merely for political reasons. This is especially so when the government and its basic principles won the confidence of the Knesset and also when the prime minister does not have unlimited powers but is primus inter pares. Alternatively, it was argued before us that even if the prime minister was authorized to remove a minister from office because his positions conflicted with the positions and plans of the prime minister, the decision to remove the ministers from office was extremely unreasonable, in the circumstances of the case, and therefore the court ought to intervene therein, since the purpose of the removal from office was to ensure an ‘artificial’ majority in the vote at the Cabinet meeting, and the use of the power to remove a minister from office merely in order to obtain a majority by uprooting the position of that minister ab initio is improper and extremely unreasonable. It was further argued that the removal from office was unlawful, since the ministers of the National Union faction had not departed from what was agreed in the coalition agreements and in the basic principles of the Government.

6. In their response, the respondents asked us to deny the petitions. According to them, the prime minister’s decision was lawful, both from a procedural point of view and on the merits. With regard to the procedural aspect, the letters of dismissal were lawfully delivered to the two ministers, and the failure to deliver the letter physically to the Minister of Tourism did not undermine the validity of the removal from office, both in view of the reasons in the Attorney-General’s guideline in this matter, and in view of the purpose of the Basic Law: the Government and the fact that the minister knew that he had been removed from office. There was also no defect in the fact that the period of time from the decision to remove the ministers from office until it came into effect included the Sabbath, nor in the fact that the notice of the removal from office was given to the other Cabinet ministers by telephone. On the merits, the respondents argued that the prime minister’s discretion pursuant to the Basic Law also includes circumstances in which he is seeking to promote an important political plan to which one of the ministers is opposed and wishes to frustrate. The prime minister may remove a minister from office for this reason even when there is no argument with respect to the qualifications of the minister or the manner in which he carries out his job. This can also be seen from the purpose of the Basic Law: the Government and from the broad discretion given to the prime minister by virtue of his special status in the system of government in Israel. Moreover, the decision to remove the Ministers from office, in the circumstances of this case, does not warrant the intervention of this court, since it is reasonable on the merits. We are speaking of an important and essential political plan, whose approval by the Cabinet was of extreme importance, in defence and policy contexts. The removal of the two ministers from office was reasonable and even necessary, and it certainly does not warrant the intervention of this court, particularly in view of the broad discretion that the prime minister has in this context.

7. On 20 June 2004 a hearing took place on the petitions. Two days later (22 June 2004), it was unanimously decided to deny all of the petitions, with a stipulation that the reasons would be given separately. The following are our reasons.

8. As can be seen from the dispute between the parties, there are two issues before us. One is whether the removal from office was lawful, in the procedural sense. The other is whether the decision to remove the ministers from office was lawful on the merits. The question of the intervention of this court will be determined by these. Let us begin with the first question.

The procedural aspect

9. Consideration of the petitioners’ arguments and the procedural issues that they raised has led us to the conclusion that they are insufficient in order to undermine the validity of the decision to remove the ministers from office. Section 22(b) of the Basic Law: the Government provides that ‘The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that.’ There is no dispute that the written notice of dismissal was delivered to the Minister of Transport. With respect to the Minister of Tourism, we accept the position of the respondents that it is possible, in the circumstances, to regard the Minister of Tourism as someone to whom written notice of removal from office ‘has been delivered,’ within the meaning of this term in the Basic Law: the Government. There is no dispute that the Minister of Tourism was, in fact, aware of the prime minister’s decision, since the prime minister himself notified him of this by telephone. Messengers were sent both to the home and the office of the Minister of Tourism. At the same time, the Minister of Tourism refused to divulge his physical location and so in practice he frustrated the possibility of physically delivering the written notice of removal from office. There is no dispute that the requirement of delivery in s. 22(b) of the Basic Law: the Government must be satisfied in accordance with the letter of the law, not only because of the rule of law (and the rule of the constitution), but also in order to preserve the status of a Cabinet minister, his ability to know with certainty whether it has been decided to remove him from office, and the ability to calculate the forty-eight hours from the time of delivery of the written notice of removal from office until the removal from office comes into effect. As we shall clarify below, this period has an importance of its own, particularly in the context of the prime minister’s power to remove a minister from office, but the requirement of delivery ‘to’ the minister who is being removed from office must be interpreted not only ‘in accordance with the letter of the law,’ but also ‘in accordance with its purpose.’ This purpose concerns, as aforesaid, clarity and certainty, and a clear allocation of forty-eight hours from the moment of delivery until the removal from office comes into effect. We are satisfied that, in such circumstances where the minister was notified of his removal from office by telephone, messengers searched for him at his home and his office, and mainly where the Minister himself refused to divulge his location, the written notice of removal from office may be regarded as having been ‘lawfully’ delivered, within the meaning of s. 22(b) of the Basic Law: the Government.

10. An additional argument of the petitioners concerned the period of time between the delivery of the letter of removal from office and the coming of the removal from office into effect. According to s. 22(b) of the Basic Law: the Government, the removal from office comes into effect forty-eight hours after it has been delivered to the minister. In the case before us, the delivery took place on Friday morning and the Cabinet meeting was on Sunday, a little more than forty-eight hours later. The argument is that the Sabbath should not be included within the framework of these forty-eight hours, and therefore when the Cabinet voted the removal from office had not yet come into effect. The Attorney-General asked us to reject this argument, so we must ask whether the Sabbath should be included in the case before us in the calculation of the forty-eight hours. Our answer to this question is yes, and therefore the petitioner’s argument in this regard should be rejected.

11. This position of ours is based on the interpretation and purpose of the provision according to which the removal from office comes into effect only forty-eight hours later, as stated in s. 22(b) of the Basic Law: the Government. Indeed, this provision has a double purpose: first, the right to change one’s mind. Removal from office is not an insignificant matter; it is a special step that has broad ministerial and political implications. The forty-eight hours are therefore intended to allow the person who decided upon the removal from office — the prime minister — to change his mind (see and cf. HCJ 621/76 Segal v. Government of Israel [1], at p. 12). Second, giving time to the various parties and institutions to act — should they wish to do so — with respect to the decision of the prime minister. A decision to remove a minister from office does not merely affect the minister himself: it affects the party on behalf of which he was appointed, and the faction of which he is a member; it concerns the entire government and its internal balance of power; it concerns the relationship between the Knesset — which expressed confidence in the government and its composition — and the government, as well as the relationship between the Knesset and the prime minister. Therefore the forty-eight hours constitute a kind of balancing mechanism, which is intended to suspend the removal of office from coming into effect to allow other parties and institutions to take action. At the same time, this period was set at forty-eight hours only, in order to allow the prime minister to make effective use of this power and to carry out his role as head of the government. Upon examination of the circumstances of the case, and in view of this double purpose, we have reached the conclusion that the Sabbath, which fell in the middle of the forty-eight-hour period, is a part of the period and therefore the removal from office became effective on Sunday morning, before the Cabinet meeting. As to the right of changing his mind, we have not heard any argument that the prime minister wished to change his mind or that he was unable to do so because of the Sabbath. As to ensuring sufficient time for the action of other parties and institutions, there was in fact sufficient time for this purpose. The prime minister’s decision concerning the removal from office was conveyed to the two ministers on Friday morning. There were several hours before the Sabbath began. An additional twelve hours passed from the end of the Sabbath until the time when the removal from office came into effect. During this time, petitions were filed in this Court and even an application to grant an interim order was heard. Admittedly, we are not speaking of a long or significant period of time, but it is a sufficient period of time for the purpose of realizing the various purposes underlying s. 22(b) of the Basic Law: the Government.

12. We could have reached a similar conclusion not only on the basis of the purpose of s. 22(b) of the Basic Law: the Government, but also in view of s. 10(c) of the Interpretation Law, 5741-1981. This section provides that ‘when calculating a period of time, rest days, court vacation or statutory holidays shall also be included, unless they are the last days of the period.’ It follows that according to this provision, the calculation of the period should also include the Sabbath. I should mention, in passing, that even if this is the case, it does not constitute a basis for the interpretation of s. 22(b) of the Basic Law: the Government. The Interpretation Law is an ordinary statute, whereas s. 22(b) of the Basic Law: the Government is a constitutional super-legislative provision. There is a basis for the argument that this provision cannot — in the absence of another provision in the basic law itself — define terms in the basic law (see HCJ 1384/98 Avni v. Prime Minister [2], at pp. 210-211). This provision can, of course, assist in the interpretation, but it is not binding within the framework of interpreting the term ‘forty-eight hours’ in s. 22(b) of the Basic Law: the Government.

13. The last argument — from the procedural viewpoint — that was presented to us was that the notice to the Cabinet of the removal from office was not delivered to the Cabinet ministers lawfully. Indeed, it is provided in s. 22(b) of the Basic Law: the Government that the removal of a minister from office takes place ‘after the [prime minister] has given notice to the Cabinet of his intention of doing so.’ The petitioners argue that the notice must be given by the prime minister personally and certainly not by telephone. Therefore the alleged defect is that the notice was given by the Cabinet secretary, on Friday morning, by telephone, to the Cabinet ministers and not to the Cabinet itself at its meeting. We have found no merit in this argument. Indeed, notice to the Cabinet of the intention of removing a minister from office is a condition for carrying out the removal from office lawfully. This is not merely a formal requirement, but it reflects the status of the whole Cabinet as a collective entity and the balance between the status of the Cabinet and the Cabinet ministers on the one hand, and the status of the prime minister on the other. But we have not found in either the language or the purpose of the section a requirement that the notice should be conveyed specifically in writing, or by the prime minister personally. What is important is the notice and the knowledge, and in this context no claim has been brought before us that any of the Cabinet ministers was not notified of the intention or that the manner in which the notice was given was unlawful. We have found no basis for the argument that the notice must be given to the Cabinet, as distinct from the ministers, and specifically at a Cabinet meeting, particularly in view of what is stated in the Basic Law: the Government, according to which the government is composed of the prime minister and other ministers (s. 5(a)). It follows that this argument too should be rejected.

14. The conclusion is therefore that there were no procedural defects in the decision to remove the Minister of Tourism and the Minister of Transport from office that justify its being set aside, and it follows that there is no ground for our intervention on this basis. Consequently, it becomes necessary to examine the main argument in the petitions before us, that the prime minister unlawfully exercised the power given to him under s. 22(b) of the Basic Law: the Government. Let us therefore turn to examine this aspect, which is the substantive one.

The normative framework

15. The power of the prime minister to remove a minister from office is found in s. 22(b) of the Basic Law: the Government:

‘The prime minister may, after notifying the Cabinet of his intention to do this, remove a minister from office; the office of a minister is terminated forty-eight hours after the written notice of removal from office has been delivered to him, unless the prime minister changes his mind before that time.’

The provision gives the prime minister power to remove a minister from office. It does not set out the scope of the discretion that the prime minister has when making a decision of this kind. We learn from the basic principles of our legal system that the discretion is not absolute. ‘Israeli law does not recognize “absolute” discretion’ (per Justice M. Cheshin in HCJ 6741/99 Yekutieli v. Minister of Interior [3], at p. 682). There is no public official in Israel who has absolute discretion. This is the rule, and it also applies to the prime minister. All executive discretion is limited, by its very nature. What are the limits that apply to the discretion of the prime minister when removing a minister from office? The decision in this regard is based on the purpose of s. 22(b) of the Basic Law: the Government (see, for example, Avni v. Prime Minister [2]). Within this framework, we should take into account the basic principles of the structure of government in Israel, as reflected in the relevant provisions of the various Basic Laws and the fundamental principles of our legal system.

16. The power of the prime minister to remove a minister from office is founded upon two conflicting aims. The first aim concerns the strengthening of the status and the independence of a Cabinet minister and the Cabinet as a whole, as these derive from the system of government in Israel, the relationship between the Knesset and the Cabinet and the relationship between the prime minister and the Cabinet as a whole and the ministers in it. The second aim concerns the strengthening of the status, authority and powers of the prime minister, vis-à-vis the other members of the Cabinet, vis-à-vis the Cabinet as a whole and vis-à-vis the Knesset. The prime minister’s power to remove a minister from office — just like the scope of this power and the discretion underlying it — are the product of a balance between these two conflicting aims.

The status of a Cabinet minister and of the Cabinet as a whole

17. Several fundamental principles that can be seen from the Basic Law: the Government in particular and from the Israeli legal system in general indicate the status of a Cabinet minister and of the Cabinet as a whole. First, Israel is a parliamentary democracy. This is a system of government in which the executive authority — which is the government (s. 1 of the Basic Law: the Government) requires the confidence of the Knesset in order to hold office (s. 3 of the Basic Law: the Government). Moreover, the Knesset can pass a vote of no confidence in the government and thereby terminate its office (s. 28 of the Basic Law: the Government). According to s. 5(a) of the Basic Law: the Government, ‘The government is composed of the prime minister and other ministers.’ Admittedly the prime minister is the person who forms the government (s. 7(a) of the Basic Law), but once the government has been formed, it must appear before the Knesset and notify it of its basic principles, its composition and the distribution of portfolios between the ministers, and ask for the confidence of the Knesset (s. 13(d) of the Basic Law). These provisions, when taken together, show that the Knesset votes confidence in a particular composition of the government. A minister who has been included as a member of the government at the beginning of its term of office has received the confidence of the Knesset. This is of special importance. The Knesset is the legislature of the State (s. 1 of the Basic Law: the Knesset) and the representative organ of state that is elected by the sovereign, which is the people (HCJ 3267/97 Rubinstein v. Minister of Defence [4], at p. 508 {172-173}). The Knesset expressed confidence in a particular composition of the government, including the holding of office by every minister therein. In addition, if a minister is included in the government after confidence has already been expressed, although the renewed confidence of the Knesset is not required and a Cabinet decision is sufficient, nonetheless the notice of this decision must be given to the Knesset and the office of the minister becomes effective only when the Knesset has approved the notice (s. 15 of the Basic Law). The significance of this is that the Knesset is involved in the formation of the government, and is concerned therein both at the beginning of its term of office — within the framework of the vote of confidence — and subsequently — within the framework of the approval of the government’s notice about the addition of a minister to the Cabinet. Second, the government in Israel is a collective entity. The Basic Law: the Government distinguishes between powers given in the Basic Law to the government and those given to the prime minister (see, for example, ss. 24(b), 31 and 39 of the Basic Law). Thus, for example, the Basic Law: the Government provides that ‘the Cabinet shall determine the procedures for its meetings and work, the manner of its deliberations and the way in which it makes its decisions, whether on a permanent basis or for a particular matter’ (s. 31(f) of the Basic Law). The powers given to the government are given to the prime minister and the other ministers jointly, since ‘the government is composed of the prime minister and other ministers” (s. 5(a) of the Basic Law: the Government). Cabinet decisions are therefore decisions of the government as a whole, i.e., a decision of the various ministers who comprise it. A Cabinet minister —like the Cabinet as a whole — is in this sense a ‘constitutional organ.’ The collective responsibility of the Cabinet before the Knesset (s. 4 of the Basic Law: the Government) also establishes the status of the Cabinet as a collective entity, as well as the status of each of the ministers who comprise it. Third, the proportional method of elections in Israel (s. 4 of the Basic Law: the Knesset) usually leads to the governments in Israel being coalitions of various factions that represent several parties that contested the election for the Knesset (see HCJ 1601/90 Shalit v. Peres [5], at p. 363 {218-219}). In general, appointing someone as a minister does not merely reflect the ministerial aspect of his position. It also reflects the party political aspect of giving executive power to representatives of the various factions that are members of the government (cf. HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [6], at p. 612). ‘A minister who sits at the Cabinet table as a representative of a party or a movement undoubtedly fulfils a political function. He expresses opinions and outlooks, a political and social approach, that are espoused by the public that elected him and by the movement that regards him as its representative in the government’ (per Justice D. Levin in HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [7], at p. 426 {289}). This coalition aspect establishes and strengthens the status of a Cabinet minister as well as the status of the government as a whole as a coalition of factions, which wields executive power in Israel.

The status of the prime minister

18. The prime minister is a minister (s. 5(a) of the 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 the 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 the 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 the Basic Law: the Government). ‘… The prime minister has the main power with respect to forming the government, determining the identity of the ministers who hold office in it and the positions that they hold…’ (per Justice E. Rivlin in HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [8], at p. 833 {326}). 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 the 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 the 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 the 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 the 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 the 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.

The authority to remove a minister from office

19. These conflicting aims — both the one concerning the status of the government and its ministers and the one concerning the status of the prime minister — are manifested in a series of arrangements that all serve to balance the importance of upholding the status of the prime minister and his ability to lead the government, on the one hand, and the recognition of the status of the Cabinet ministers and the government as a whole, on the other. The Basic Law: the Government recognized the status of a Cabinet minister and of the government as a whole, but at the same time it recognized the special status of the prime minister. It created various mechanisms that are intended to preserve both the status of a Cabinet minister and the government as a whole, and the status of the prime minister. Thus, for example, the confidence of the Knesset upon the formation of a government is given to the government as a whole, and not merely to the prime minister (s. 13(d) of the Basic Law). The prime minister cannot appoint a minister to the initial composition of the government without this appointment receiving the confidence of the Knesset; should there be a need to add a minister to the Cabinet after its initial formation, this is done in accordance with a proposal of the prime minister, but the decision in this regard is within the purview of the entire Cabinet, and notice of this must be given to the Knesset, which has the power to approve the notice or not (s. 15 of the Basic Law: the Government); the appointment of deputy ministers is made by the minister in charge of the ministry, but the consent of the prime minister and the approval of the Cabinet as a whole is required for this (s. 25 of the Basic Law: the Government). Indeed, the common factor in these and other provisions is the desire to ensure that the prime minister is able to fulfil his role as the head of state, including his ability to direct and manage government business, while at the same time preserving the status of the government as a whole and the other ministers who compose it.

20. Section 22(b) of the Basic Law: the Government, which concerns the power of the prime minister to remove a minister from office should be interpreted against this background. Indeed, the Basic Law: the Government gives the prime minister the power to remove a minister from office. This is a special power that indicates the power of the prime minister to decide the composition of his government. It reflects the special status of the prime minister and preserves his ability to manage the government and to allow it to achieve its goals (see and cf. W.I. Jennings, Cabinet Government (1947), at p. 163). The Basic Law: the Government could have provided a different arrangement with respect to this issue of the authority to remove a minister from the government after its formation. In systems of government such as the presidential system that exists in the United States, it is accepted that the status of the president as the head of the executive branch is much stronger. The ministers (‘the secretaries’) are appointed and dismissed by the president without any de facto intervention on the part of the legislature (see B. Schwartz, A Commentary on the Constitution of the United States — The Powers of Government, vol. II, (1963), at p. 39). By contrast, the Basic Law: the Government, in its original 1968 version, did not include any provision with respect to the removal of a minister from office and a removal of this kind could only take place upon a vote of no confidence in the government as a whole or the resignation of the whole government. In 1981, the Basic Law: the Government was amended by adding a provision that allows the prime minister to remove a particular minister from office without any connection to the question of a vote of confidence in the Knesset (section 21A of the Basic Law: the Government; the Basic Law: the Government (Amendment No. 3). 5741-1981). The Basic Law: the Government of 1992 included two arrangements concerning the removal of a minister from office. The first gave the prime minister the power to remove a minister from office (s. 35(b)) and the second gave the Knesset the power to remove a minister from office, with a majority of seventy members, after a majority of the members of the Knesset Committee so recommended and the minister in question was given a right to state his case before the Knesset Committee and before the Knesset (s. 35(c)). In the current version of the Basic Law: the Government, the arrangement that was finally chosen is that the power to remove a minister from office is given to the prime minister. The Knesset no longer has the power to dismiss an individual minister, but only the power to vote confidence or no confidence in the government as a whole. Alongside all these, s. 11(g) of the Transition Law, 5709-1949, has remained in force, and this provides that the government can remove a minister from his office if the minister or his faction votes against the government (see A. Rubinstein, The Constitutional Law of the State of Israel, vol. 2, (fifth edition, 1996), at pp. 742-743). So we see that the various arrangements, both in Israel and in comparative law, are all based upon different balancing points between the status of the prime minister and the status of a minister in his government. Therefore the question before us is what are the parameters of the prime minister’s discretion when exercising his power to remove from office one of the ministers in his government, as stated in s. 22(b) of the Basic Law: the Government.

The parameters of the prime minister’s discretion when removing a minister from office

21. The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality. Therefore the power to remove someone from office should be exercised ‘… fairly, without irrelevant considerations and for the public good’ (per President Shamgar in Movement for Quality Government in Israel v. Government of Israel [7], at p. 417 {276}). Like any power involving discretion, the prime minister also has a zone of reasonableness, within the framework of which he can select one of several reasonable options. In so far as each option is legal, this court will not intervene in this decision nor will it replace the prime minister’s discretion with its own (see Movement for Quality Government in Israel v. Prime Minister [8], at pp. 840-848 {336-348}). But the prime minister’s discretion is not unlimited; it is delineated by those situations of extreme unreasonableness. If a decision of the prime minister to remove a minister from office is extremely unreasonable — or a decision not to remove a minister from office is extremely unreasonable — it would be an unlawful decision, and the court would exercise its power of judicial review. Indeed, the grounds for judicial review and the substantive law are united (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [9]).

22. When will there be grounds to hold that the removal of a minister from office is unlawful, that it is unreasonable in the extreme? The answer to this question can be derived from the balance between the two different goals that underlie the purpose of the Basic Law: the Government. On the one hand, it is clear that the Basic Law: the Government did not give the prime minister unlimited power that would negate the status of a government minister, and the role of the government as a whole, as a collective entity with powers of its own. It follows that we should interpret the power of the prime minister in such a way that reflects the role of the government as a whole, with its various members, the fact that the appointment of the minister won the confidence or the approval of the Knesset, and the coalition-based form of government that is practised in Israel, where, in effect, the ministers — especially those who are not from the prime minister’s party — are chosen by their parties and not by the prime minister. It is natural that ‘when he is required to exercise his discretion, the prime minister may also address party-political considerations…’ (Justice D. Levin in Movement for Quality Government in Israel v. Government of Israel [7], at p. 427 {291}). On the other hand, it is clear that the Basic Law: the Government sought to maintain the status and the independence of the prime minister, as well as his ability to change the composition of the government in accordance with various needs that may arise during its term of office, while giving expression to the ability of the prime minister to manage and lead the government, and the responsibility of the ministers to him (s. 4 of the Basic Law: the Government). What is the proper balance between these two conflicting goals?

23. In our opinion, the proper balance is reflected in the approach that the prime minister is authorized to remove a minister from office only if the prime minister is convinced that this will promote the ability of the government to function properly as the executive branch of the State and to realize the policy goals which have been set. ‘The powers granted to the prime minister to appoint ministers and removing them from office are therefore a means for advancing the aforesaid purposes of improving the government’s image and functioning and public confidence in it’ (Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This balance properly reflects the status of the government as a collective body that has won the confidence of the Knesset, on the one hand, and the prime minister’s need to adapt the composition of the government to various changes and developments, while preserving its ability to function properly, on the other. This criterion provides a proper solution in those cases where a minister is at odds with government policy or acts contrary to the principles of collective responsibility (see Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}, and Z. Segal, Israeli Democracy (1991), at pp. 130-131). It also includes an assessment of the minister’s functioning and his success in his office (see and cf. HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). Furthermore, this criterion includes those cases in which removal from office is required in order to maintain public confidence in the government, which is an important and relevant consideration within the framework of the ability of the government to function as the executive branch of the State. Indeed, maintaining public confidence in the government is a substantial and important consideration when scrutinizing the discretion in the removal from office (see Movement for Quality Government in Israel v. Prime Minister [8], at p. 898 {419}; Rubinstein and Medina, Constitutional Law of the State of Israel, at p. 708). Therefore, the criterion that removal from office will be deemed lawful only if the prime minister is persuaded that it is capable of promoting the government’s ability to function properly as the executive branch of the State and to realize the policy goals that have been set, properly addresses the cases where a member of the government is involved in a grave incident that affects the standing and image of the government, public confidence in it and its ability to lead and serve as an example, as well as its capacity to inculcate proper forms of conduct (see Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 460-461; Movement for Quality Government in Israel v. Government of Israel [7], at p. 423 {282}). This criterion — according to which the removal of a minister from office will be lawful if it is based upon the prime minister’s belief that it will promote the government’s ability to function properly as the executive branch of the State and to realize the policy goals that it has set — allows the prime minister to take account of ‘political’ considerations, which include the ‘need to preserve a coalition and to ensure the continued confidence of the Knesset…’ (my remarks in Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It also includes situations where the conduct of a particular minister may ‘… cause irreparable national harm,’ because it impairs ‘… the proper functioning of the government and increases the chance that an erroneous decision may be made, which may have disastrous consequences for the State’ (Justice E. Goldberg in HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [11], at p. 65).

24. Indeed, this criterion reflects the special standing of the prime minister as the person responsible for the proper and effective management of the work of the government as a whole. It emphasizes the idea that ‘the main consideration in exercising the powers of the government and the prime minister is the public interest’ (my remarks in HCJ 1635/90 Jerzhevski v. Prime Minister [12], at p. 848). It expresses the principle in the Basic Law: the Government, that the ministers are responsible to the prime minister for the performance of their office. This criterion focuses on the prime minister’s discretion and assumes as its premise that the prime minister must have this discretion. It reflects the prime minister’s ability to remove a minister from office, even though the minister may have won the confidence of the Knesset when it expressed its confidence in the government as a whole, and irrespective of the fact that usually he will be the representative of a faction and party that contested the elections. It gives the prime minister a tool that allows, in certain circumstances, a change in the composition of the government. ‘The power, under this section, is unique both because of the standing of the prime minister concerning the composition of the government and because of the political nature of the government’ (per Justice Y. Zamir, in Movement for Quality Government in Israel v. Government of Israel [11], at p. 58). It is therefore a criterion that reflects the need to prevent ‘… “disruptions” to the functioning of the government’ (Movement for Quality Government in Israel v. Government of Israel [11], at p. 59).

25. But at the same time this criterion reflects the caution that the prime minister must show when removing a minister from office. The government and its ministers are not subordinate to the prime minister. They constitute a collective, constitutional organ. The executive branch of the State is the government, not the prime minister. When a minister has been appointed, and certainly when this appointment has won the confidence or the approval of the Knesset, it is not possible to remove him from office over a trifling matter. The decision to remove him from office must be supported by a basis of fact, as well as an objective reason that is capable of furthering the government’s ability to function properly and to fulfil its constitutional role as the executive branch of the State (s. 1 of the Basic Law: the Government). An objective reason of this kind is also required in order to preserve public confidence in the government and its actions. Since a minister is responsible to the prime minister (s. 4 of the Basic Law: the Government), when the prime minister is considering whether the minister should continue to hold office, it is appropriate that he should take into account the manner in which he has carried out his office. This criterion therefore reflects a proper balance between the status of a minister in the government and the government as a whole, and the need to preserve the ability of the government to function and to be managed by the prime minister, while realizing its constitutional role.

Removal from office on political grounds

26. Can the prime minister remove a minister from office because of his political opinions and because of his opposition to a political initiative that the prime minister is advancing? The answer to this question must be examined in accordance with the aforesaid criterion. The answer is yes, if the prime minister is persuaded that the removal from office will further the ability of the government to function properly as the executive branch of the State, and to realize the policy objectives that it has set. Therefore political considerations per se, within the framework of the prime minister’s decision to remove a minister from office, are not improper. They should be examined within the framework of all of the circumstances. It has been held that ‘… regarding a matter involving party politics, one cannot rule out taking into account considerations that are the product of political circumstances… party political considerations may be legitimate, in certain circumstances, but they should be examined with a proper balancing of the other considerations…’ (per President Shamgar, in Movement for Quality Government in Israel v. Government of Israel [7], at pp. 420, 423 {280, 285}; see also Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 463). It has also been held that ‘… no one will dispute the fact that the variety of considerations that the prime minister may take into account with respect to the appointment of a minister or his removal from office may include, inter alia, political considerations concerning the stability of the government, forming a lasting coalition and other considerations of a political nature, which are legitimate, and even essential, considerations in the process of forming a government and appointing ministers’ (per Justice D. Beinisch, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 939 {469}). These political considerations can also include policy issues. ‘… the constitutional authority for the appointment and removal of ministers is mainly intended to realize policy objectives, and even policy objectives of a political nature — including the need to appoint ministers with the proper skills and experience —which is the responsibility of the prime minister’ (per Justice D. Dorner in Movement for Quality Government in Israel v. Prime Minister [8], at p. 949 {482}). It follows that the mere fact that the removal from office was based upon policy opinions of that minister does not invalidate the removal from office, just as it does not validate it. We must examine whether, in the circumstances of the case, the prime minister was persuaded that the removal of the minister from office — because of the policy positions of that minister and because of the difference between them and the government’s positions — might further the government’s ability to function properly as the executive branch of the State, and to realize the policy goals that have been set.

Removal from office before a Cabinet vote

27. Some of the petitioners’ arguments were devoted to the question whether the prime minister can remove a minister from office in order to obtain a majority for a Cabinet vote. Their answer was no, on account of the importance of the principle of majority decision and preserving the independence of the discretion of Cabinet ministers. We cannot accept this position. If it is determined that the prime minister has indeed removed a particular minister from office, because he thought that the removal from office was required in order to further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it had set, this should not be prevented merely because it was done before a Cabinet vote and in order to influence the outcome of the vote. This is because the proper functioning of the government is manifested, inter alia, in its ability to make decisions that reflect policy objectives and national interests. What therefore is the point of waiting to see how things turn out, if the purpose of the removal from office is to further the activity of the government? It is possible that the impropriety in the minister’s actions — for which the prime minister wishes to remove him from office — is his actual vote and opposition to the policy that the prime minister wishes to advance. In these circumstances, if it is accepted that the removal from office was carried out by the prime minister after he was persuaded that this was required in order to further the activity of the government and its ability to meet the policy challenges that face it, it should not be held that the prime minister’s decision is lawful if — and only if — it was made after that minister expressed his opposition to a proposal within the framework of a Cabinet meeting or its decisions. Not only is such an interpretation not implied by the Basic Law: the Government itself, which merely requires notice to the government of the removal from office (s. 22(b) of the Basic Law) — but it also conflicts with the purpose of the Basic Law: the Government and the need to give the prime minister, as required by his special position, a tool to adapt the composition of the Cabinet to the constitutional role of the government.

The status of the basic principles

28. Is the prime minister bound by the basic principles of the government when he wishes to exercise his power under s. 22(b) of the Basic Law: the Government? Our response to this question is no. Indeed, the basic principles of the government have importance. This is not merely because they generally express the outcome of various coalition agreements that were signed and so, de facto, they constitute the government, but mainly in view of the constitutional role of these basic principles, as can be seen in s. 13(d) of the Basic Law: the Government, according to which ‘When the government has been formed, it shall appear before the Knesset, give notice of the basic principles of its policy, its composition and the distribution of portfolios between the ministers, and seek a vote of confidence…’ Therefore the confidence of the Knesset in the government is not merely personal but it also addresses the basic principles of its policy. This means, in practice, the realization of the concept of the confidence of the Knesset in the government, as well as the right of the public to know the principles and the objectives of the government, as it has been formed (cf. s. 1(a) of the Government Law, 5761-2001, and Shalit v. Peres [5]). But this importance of the basic principles does not limit the prime minister’s discretion when he is about to decide a question of removing a minister from office. There are two main reasons for this. First, we have discussed the fact that the Basic Law: the Government gave the prime minister, rather than the Knesset, the power to remove a minister from office. Restricting the prime minister to the basic principles of the government means de facto restricting him to the Knesset’s vote of confidence as it was expressed when the government was first formed (s. 14(d) of the Basic Law: the Government). As we have seen, this is not the arrangement that was chosen in the Basic Law: the Government, with respect to the power of the prime minister and his relationship with the Knesset. Second, it is inappropriate to regard the basic principles as boundaries of the prime minister’s power under s. 22(b) of the Basic Law: the Government. This power — according to the provision in the Basic Law itself — is a power involving discretion. The basic principles — like a political or coalition agreement that establishes them (see s. 2 of the Government Law, 5761–2001, and Jerzhevski v. Prime Minister [12], at pp. 846-848) — are incapable of limiting this discretion, not merely because the aforesaid discretion is stipulated in the Basic Law, but also because of the nature of goals and objectives, which require modification with the passing of time. Limiting the discretion of the prime minister to the basic principles means uprooting his ability to steer the government as the executive branch of the State, in accordance with changing needs. This is not what the Basic Law: the Government says, nor is it its purpose. Therefore we cannot accept the petitioners’ argument in this context, and we do not need to decide the question whether the prime minister did, in fact, act contrary to the basic principles or not, either in his policy or in his decision to remove from office ministers who acted in accordance with what is stated in the aforesaid basic principles.

The scope of the intervention of this court in the decision of the prime minister

29. Indeed, it is natural that the spectrum of cases, in which the prime minister may be persuaded that the removal of a minister from office may further the ability of the government to function properly as the executive branch of the State and to realize the policy goals that it has set, is very broad. This is especially so in view of the fact that we are speaking, in the final analysis, about a tool that has been given to the prime minister so that he can guide the ship of State to safety, while maintaining its cohesion and its ability to rise to the various goals and challenges that it faces. This breadth of the spectrum of cases, just like the purpose of giving discretion precisely to the prime minister, sheds light on the scope of the discretion entrusted to him. This is very broad discretion (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 460; HCJ 502/99 Cohen v. Prime Minister [13]), or ‘broad in the extreme’ (per Justice E. Rivlin, in Movement for Quality Government in Israel v. Prime Minister [8], at p. 846 {345}). This cannot be restricted in a sweeping manner that will undermine the position of the prime minister, as it appears from the provisions of the Basic Law: the Government. This broad scope of the discretion in the Basic Law also determines the scope of the intervention of this court in the decision of the prime minister to remove a minister from office or not to do so. It should be noted that the scope of judicial review of the decisions of the prime minister concerning the removal of a minister from office is a mirror image of the scope of the power of the prime minister. The judicial review is narrow in nature because of the broad spectrum of considerations that the prime minister may take into account within the framework of the discretion given to him when deciding to remove a minister from office. This broad spectrum is what determines the question when removal from office is lawful and when it is not lawful. Its breadth is what limits the scope of judicial review. In this sense, it is true that ‘the zone of reasonableness is as broad as the power itself’ (per Justice M. Cheshin in Movement for Quality Government in Israel v. Prime Minister [8], at p. 916 {439}; Litzman v. Knesset Speaker [9]; and cf. Movement for Quality Government in Israel v. Government of Israel [11], at p. 68). Moreover, we should remember that the parliamentary system of government in Israel means that review of the actions of the government and the prime minister is usually the purview of the Knesset, which votes its confidence in the government and also has the power to vote no confidence in it. This review of the Knesset — and the political establishment as a whole — also affects the breadth of the prime minister’s discretion and consequently the degree of intervention of this court (see and cf. HCJ 5167/00 Weiss v. Prime Minister [14]; HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [15]). Notwithstanding, it should be recalled that the power of the prime minister is not absolute. There are situations in which he is not entitled to make use of the power that is given to him, and in any case there exists judicial review — as distinct from parliamentary review — if he has exercised his power and removed a minister from office. Does the case before us fall within this framework?

From the general to the specific

30. The prime minister wished to advance a national political plan, and in his opinion this is a plan ‘that is vital for the future of the State of Israel, a plan that has serious implications, inter alia, for foreign affairs and the security of the State of Israel’ (para. 62 of the response of the Attorney-General). No one denies that the prime minister clearly exercised his power on the basis of national political considerations, namely his desire to advance the ‘disengagement plan.’ In these circumstances, we are persuaded that the removal from office falls within the scope of considerations whose main purpose is to further the ability of the government to function properly as the executive branch of the State and to realize the political goals that it has set, while maintaining public confidence in the government. The existence of political negotiations, while addressing international and defence issues of the State, certainly falls within the framework of the role of the government in Israel and is included in the framework of its policy goals. The prime minister thought that the positions and the opposition of the Minister of Transport and the Minister of Tourism would frustrate this process, and for this reason it was correct to remove them from office. The response of the Attorney-General also shows the importance of the timing that was chosen. A vote of no confidence in the government was scheduled for 7 June 2004, because of the failure to approve the ‘disengagement plan.’ On 8 June 2004, the prime minister was obliged to take part in a political debate in the Knesset. These reasons were added to the position of the prime minister, that there was special importance to the timing of the government’s decision (on 6 June 2004) with respect to the approval of the ‘disengagement plan,’ because of serious aspects of foreign affairs of the State of Israel and undertakings that the prime minister had given in the international arena. It should be further noted that Justice Levy proposed, when he heard the application for an interim order in this case, that the Cabinet meeting should be postponed to a later date, but the prime minister was unwilling to postpone the date of the meeting, for the aforesaid reasons. It need not be said that we are not expressing any position on the question whether the political plan is an appropriate one or not. The only issue that we are discussing is whether the removal of the ministers from office by the prime minister, for the purpose of facilitating the adoption of the plan by the government — at the time and in the circumstances when it was done — is constitutional or not. In this respect, we are satisfied that the removal from office falls within the prime minister’s zone of reasonableness, as stated in s. 22(b) of the Basic Law: the Government. In any event, and in consequence thereof, there are no grounds for our intervention in this decision.

31. For these reasons, we have decided to deny the petition.

Justice M. Cheshin

Section 22(b) of the Basic Law: the Government (5761-2001) tells us the following:

‘Termination of the office of a minister

22.(a) …

(b) The prime minister may, after notifying the Government of his intention to do so, remove a minister from office; the office of a minister ends forty-eight hours after the written notice of his removal from office has been delivered to him, unless the prime minister changes his mind before that time.

The question relevant to our case is this: what considerations may the prime minister take into account when he decides to remove a minister from office? More precisely, what considerations may the prime minister not consider as a basis for removing a minister from office? The law does not tell us either the former or the latter considerations, and, as is our wont, we will learn and discover the nature of those considerations from the matter at hand. We are speaking of the composition, structure and management of the government, and everyone knows and understands that we are dealing here with an issue that is replete with policy and politics. The material is the material of policy and politics; the substance of which the government is made is the substance of policy and politics; the atmosphere is an atmosphere of policy and politics; everywhere you turn, the environment of the government is policy and politics, and the prime minister and the Cabinet ministers live and breathe policy and politics from morning to evening, every day, continuously. And just as issues of policy and politics lead to the formation of a government, the same is true with regard to the continuation of the government’s existence and management, both outwardly and inwardly. All of this implies, and it can be understood from the context, that when removing a minister from office the considerations of the prime minister will mainly be considerations of policy and politics.

2. What is the scope of the prime minister’s discretion when removing a minister from office? Indeed, ‘absolute’ discretion is neither known nor found in our legal system. No one holds unlimited office or power. An authority that holds power by law — any authority — holds its power in trust for the public, and there is no trustee whose power knows no limits. But it is also true that we will find it difficult to describe an example from life — from our life — where by removing a minister from office the prime minister’s discretion will overstep its limits. The power of the prime minister extends far and wide, as far as the eye can see; his power is so broad — ‘broader than broad’ — that it resembles a ‘black hole’ which sucks in almost all considerations. This does not include or justify considerations based on corruption, God forbid, or considerations bordering on corruption. But apart from these considerations of a corrupt nature, we will have difficulty in finding considerations that are irrelevant. This is true of national considerations and political considerations, as well as of personal considerations.

So much for the scope of the discretion.

3. As to the scrutiny of the court with regard to the removal of a minister from office — and this is the other side of the coin — it has been said that the discretion of the prime minister in this regard moves in the stratosphere, where the legal atmosphere is weak and rarefied. Such is the legal atmosphere, and such is the scrutiny of the Court. Indeed, the strength of the court’s scrutiny is determined, inter alia, by the breadth and the depth of the power of the competent authority, naturally in inverse proportion. And since we know that the power of the prime minister to remove a minister from office is all-embracing, we also know that the strength of the court’s scrutiny is small. Admittedly, it is possible that in certain circumstances — for example, because of overwhelming national considerations — the court will compel a prime minister to remove a minister from office. See, for example, Movement for Quality Government in Israel v. Government of Israel [7] (the Deri case); Amitai, Citizens for Good Government and Integrity v. Prime Minister [10] (the Pinhasi case); Movement for Quality Government in Israel v. Prime Minister [8] (the Hanegbi case, minority opinion at pp. 881 {393} et seq. and 939 {468} et seq.). But our case is one where the prime minister himself wishes to remove a minister from office, and in this context we will find it difficult, as aforesaid, to find a consideration that will escape from the gravitational force of the prime minister’s authority.

4. When the prime minister decides to remove a minister from office, and all the preliminary conditions required by statute are fulfilled, we will have difficulty finding a court that will order him — contrary to his decision — to sit at the Cabinet table with a minister whom he does not want. Indeed, the solution to the issue of the removal of a minister from office is not to be found in the court. The solution is to be found in the standing of the prime minister in his party, in the mutual relationships between the parties, in the standing of the government in the Knesset, in public opinion. Just as the power and the strength of the prime minister derive from his party, from the coalition agreements, from the confidence of the Knesset and from public support, so too that party, those agreements and with them the confidence of the Knesset and public support will also determine the limits of his power to remove a minister from office. In other words, when we consider the nature of the material, we will know — in principle — that the authority and power of the prime minister to remove a minister from office stops with his party, the coalition agreements, the confidence of the Knesset and public support. In general, it may be said that considerations that lead to the formation of a government are also the ones that will determine the government’s path, and they are considerations that a prime minister can and may take into account when he decides to remove a minister or ministers from office. I repeat that this is the case when the prime minister wishes to exercise his power to remove a minister or ministers from office. It is not the case when the prime minister refuses to exercise his power and thereby harms a value of great importance in national life.

5. Finally, my colleague President Barak says in his opinion that when the prime minister wishes to remove a minister from office, it is incumbent upon the prime minister to act reasonably and proportionately, to consider only relevant issues, to act without partiality and without arbitrariness, to act in good faith and with equality. Within the limits of rhetoric, I agree with my colleague, but pitfalls await us in these guidelines. Take, for example, the principle of reasonableness. How will this principle further us if we believe — as I do — that with the exception of considerations that can be regarded as considerations of a corrupt or quasi-corrupt nature, the prime minister is entitled and authorized to consider (almost) every consideration that exists: national considerations, political considerations, personal considerations? And if this is the case with respect to reasonableness, it certainly applies to proportionality. The same applies with respect to the guideline of relevant considerations, the guideline prohibiting partiality and arbitrariness, etc.. In fact, as I have expressed my opinion above, with the exception of considerations of a corrupt or quasi-corrupt nature, I will have difficulty seeing a court intervene in the proceeding of removing a minister from office. This proceeding is for the Knesset and the coalition partners to judge, for their judgment — in the main — and not for the judgment of the court.

Vice-President E. Mazza

The reasons of my colleague, the President, explain well the constitutional outlook that served as a basis for our decision, on 22 June 2004, to deny the petition.

Justice E.E. Levy

1. I accept the approach of my colleague, Justice M. Cheshin, that the power of the prime minister to remove a minister from office ‘is all embracing,’ and this determines, inversely, the scope of the power of review of this court. Therefore I have joined in denying the petitions, but I found it necessary to add several comments.

2. Amendment no. 3 of the Basic Law: the Government, which gave the prime minister the power to dismiss a minister who holds office in his government and was incorporated in the Basic Law: the Government of 2001, was preceded by a draft law in the same spirit, which was debated in the Knesset in 1981 and was intended, according to the explanatory notes, to help the prime minister contend, inter alia, with what were defined as ‘small, extortionist parties’ (see the draft Basic Law: the Government (Amendment no. 3)). During the debate on the draft law, MK Amnon Rubinstein grimly described the status of the prime minister at that time, as someone who ‘… is leading a strange alliance of independent, semi-feudal ministers, each of whom has his own domain that may not be touched… the result, of course, is that it is impossible to put any real national policy into effect, there are no priorities, there is no possibility of shaping economic policy, which clearly, primarily and absolutely requires national priorities’ (Divrei HaKnesset (Knesset Proceedings) (5741) 2693, session dated 13 May 1981, at p. 2694).

Similar remarks were made by Knesset Member Moshe Shahal: ‘… It is impossible to replace ministers, and they have almost taken possession of private estates. From the moment that a minister is appointed to the position, it is difficult, almost impossible, for the prime minister to do his job and to say to a particular minister: you have not succeeded in your job, I want to replace you with someone else’ (ibid., at p. 2695). Later on in his remarks, Knesset Member Shahal did not conceal the main target of his criticism:

‘The problem of the prime ministers is with the ministers in their party, with whom they cannot work and whom they cannot dismiss, and this power, which the law intends to give to the prime minister is a power that will allow him power inside his party, which will enable him to conduct the business of his government in an orderly manner.’

3. The picture that emerges from the debate in the Knesset, to someone who tries to understand the purpose of Amendment no. 3 of the Basic Law: the Government is that the Amendment greatly extended the power of the prime minister in the relationship between him and his ministers, mainly in the following areas:

a. The creation of direct accountability of each minister to the prime minister, for the performance of the special portfolios given to him (s. 4 of the Basic Law: the Government (2001)). It follows that a failure of a minister in carrying out his job can serve as a ground for removing him from office, by virtue of the power that was given to the prime minister in s. 22(b) of the Basic Law.

b. Preventing ‘extortion’ by small parties.

c. Giving the prime minister tools to deal also with the lone minister who ‘casts off all restraint’ and makes it difficult for the government to implement its policy.

Let us examine the conduct of the prime minister in the current case, and how it fits with the purpose of Amendment no. 3 of the Basic Law: the Government.

4. No complaints were made against Ministers Elon and Lieberman, with regard to their personal conduct, nor were there any objections to their performance as ministers. Moreover, they did not take action against Cabinet decisions that had already been made and that were effective before their dismissal, and consequently they had not caused any difficulties for the implementation of government policy. On the contrary, the positions of the two ministers with respect to the withdrawal from the territories held by Israel and with regard to the evacuation of Jewish settlements were known to the prime minister from the day when the government was formed, since the National Union faction made it clear in the coalition agreement that it objected to the establishment of a Palestinian state west of the Jordan, regardless of its borders. It follows that it is also clear that Ministers Elon and Lieberman in particular, and the National Union faction in general, did not breach the coalition agreement and therefore they are not to be included among those rebellious ministers or among the ‘small, extortionist parties’ that led to the amendment to the law, so that the prime minister would be able to deal with them. In these circumstances, we cannot fail to reach the conclusion, which in practice is agreed by all, that the gulf that was created between the two ministers and their faction and the prime minister arose from the decision of the latter to adopt a new political policy, which was different from the one that formed the basis of the coalition agreement, namely the advancement of the plan that he conceived and that is known as the ‘disengagement plan.’ Here it should be clarified that the prime minister is certainly entitled to abandon one political policy and to adopt another policy, when he thinks that the change in circumstances and the welfare of the State of Israel require this. But to the same extent it is also the right of the ministers, if not their duty, to state their opinion in the Cabinet and to give expression to the outlook of their voters, for if one says otherwise, only persons who blindly follow the proposals of the prime minister and are prepared on a permanent basis to abandon their own opinions and espouse his will hold office in the government. I think that it is unnecessary to say how distant such a scenario is from the practice of democracy of which we are proud.

Notwithstanding, the new outlook of the prime minister is, with all due respect, primarily his own outlook, and it remains such, as long as the government has not adopted it and given it validity in one of its decisions. In view of the aforesaid, logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter. This leads to a further conclusion, that the prime minister acted as he did because of a concern that the vote of the two ministers against his plan would, when joined with the vote of additional ministers who opposed it, lead to the creation of a majority against his plan. He decided to prevent this outcome by dismissing two of the opposing ministers and in this way he intended to bring about a change in the balance of power in the Cabinet. And if further evidence is needed of the fact that the dismissals were intended solely in order to obtain a technical majority, it is sufficient to point out the fact that once the majority in the Cabinet was assured, the prime minister saw no further need to raise the threat of removal from office against other ministers who opposed his plan, including ministers from his own party.

This is an example of how the objectives that Amendment No. 3 of the Basic Law: the Government was intended to achieve (namely, dealing with rebellious ministers and with ‘small, extortionist parties’) were entirely abandoned, and how that amendment was used for purposes that the initiators of the amendment probably never imagined.

5. I saw fit to make my comments because I fear that even in the fifty-sixth year of Israel’s independence, the parliamentary democratic system and especially the culture of government that requires restraint, even when the legislature has given the executive branch a broad power whose limits have not been clearly defined, have not yet been fully developed. The government has been given fields of operation that are very broad in scope, and their effect on the State in general, and on each of its citizens in particular, is great, and sometimes fateful. An example of this is the power to declare war (see s. 40 of the Basic Law). Imagine the possibility that a prime minister, for objective reasons or for improper internal considerations, initiates a move of the latter type (a declaration of war), in which it is apparent from the outset that he will not win a majority in the Cabinet. But the prime minister can circumvent this obstacle easily, just as it was done in the case before us, by dismissing ministers and creating an artificial majority. It need not be said that the ramifications of such a decision are likely to be fateful, and I ask myself whether this is merely an illusion that the Israel system of government is sufficiently resilient to prevent. Regrettably, I find it difficult to answer this question in the affirmative.

6. Therefore, I think that it would be proper if the legislature formulated more efficient means of control over powers of the type that s. 22 of the Basic Law addresses. I am not unaware of the fact that the actions of the government are already subject to the scrutiny of the Knesset. Thus, for example, s. 40(c) of the Basic Law requires the government to notify the Foreign Affairs and Defence Committee of the Knesset of its decision to declare war. Moreover, the prime minister himself has a duty to give notice to the plenum of the Knesset in this regard. However, the time framework for giving the notices was defined in s. 40(c) of the Basic Law to be ‘as soon as possible,’ and one may wonder what the benefit of such a notice would be, even if in consequence the Knesset passes a vote of no confidence in the government, when that war, with all its horrors, is already being waged with full force (in this respect, cf. s. 9(6) of the Government Law).

7. The appointment of ministers is the final link in the lengthy process of forming a government. This process ends only when the government and the person who heads it appear before the Knesset and win its confidence, after they present to it the basic principles of their policy. A similar process is also involved in bringing a new minister into the government. He too does not enter into his office until the Knesset approves the notice of the prime minister about his joining the Cabinet. It follows that both the government as an entity and the individual minister derive their power from the Knesset (s. 13(d) of the Basic Law). Against the background, I wonder whether it would not be appropriate that the process of removing ministers from office should be done in the same manner and with the same seriousness, since we are speaking of removing from office persons in whom the Knesset has expressed its confidence, and who are members in the central executive body, and there is no need to elaborate upon the decisive impact of its decisions on each of us. The removal of Ministers Lieberman and Elon from office — in a hasty proceeding, on the eve of the holy Sabbath, when the purpose was that the forty-eight hours required for the dismissal to come into effect, as stated in s. 22(b) of the Basic Law, would pass by the time that the Cabinet meeting convened on Sunday, thus creating a majority for the proposal of the prime minister — is, in my view, far from being a process that should exist in a democracy.

8. However, and this is the main point, notwithstanding my reservations as to the proceeding that was carried out and my concerns as to its future repercussions, we should also emphasize the following: the prime minister did not make use of a provision of law that he created for his own needs, but of a power that the Knesset gave him. This power in s. 22(b) of the Basic Law: the Government is broad in the extreme, and the lacuna in the work of the legislature — defining the limits of the power and determining processes for controlling the use thereof — cannot be filled by the court in case law. This is particularly the case when dealing with a Basic Law. Therefore as long as s. 22(b) of the Basic Law continues to exists in this form, it seems to me that the approach of my colleagues, that the prime minister acted within the scope of the power given to him, is correct, and there is no basis for the intervention of this court.

Justice D. Beinisch

I agree with the opinion of my colleague, President Barak.

Justice J. Türkel

The question before us is whether the decision of the prime minister to make use of the power given to him in s. 22(b) of the Basic Law: the Government and to remove from office two of the government ministers who oppose the plan that he wishes to promote in order to obtain a majority in the Cabinet vote is lawful. My answer to the question is this: it is lawful, but it is not right. In other words, according to the language of the section, as it has been interpreted by my honourable colleague, President Barak, the prime minister was competent to do it, but he ought not to have done it.

In this respect, I agree with the comment of my honourable colleague, Justice Levy in his opinion, that ‘logic dictates that the decision to remove ministers from office on the ground that their beliefs will make it difficult to implement government policy cannot be made before the Cabinet vote on that policy, but only thereafter.’ I also accept his recommendation that the Knesset should have control mechanisms over the use of the power. I further feel myself obliged to point out that this case deals with the dismissal of only two government ministers; would this apply to a decision to dismiss a larger number of ministers? I am not certain, and we will leave this question until its time comes.

Notwithstanding, for the reasons set out by my colleague the President, I am of the opinion that there is no alternative to denying the petitions.

Justice A. Procaccia

I agree with the opinion of my colleague, President Barak.

I wish to add the following comment.

The basic principles of democracy in Israel govern, inter alia, the procedural rules of decision-making in the various collective administrative bodies. Underlying these rules is the principle that decisions are made by a majority of those participating in the vote, that a member of the body making the decision is free, and even obliged, to express his opinion in matters being discussed, according to his outlook and conscience, and that in general he need not fear dismissal or removal as a result of an objective position that he holds with respect to an issue that is being discussed and decided. This process of freedom of expressing an opinion in a decision making body is vital for reaching a decision after considering a wide variety of points of view, relevant information and different ways of weighing conflicting interests and values. Freedom to express an opinion in the decision making process is also consistent with general values of freedom of expression, which run through every facet of life and human activity. This procedure of decision-making is accepted in executive institutions of various public bodies, local authorities, boards of directors of statutory corporations, planning and building authorities and, to a large extent, also on boards of directors of commercial enterprises. This mechanism of decision making is accepted, in the main, also in the government. The ongoing activity of the government is founded upon decision-making that is preceded by a discussion among the government ministers, in which the positions of the participants are raised, and the decision is made by a majority of the participants in the vote, while abstainers are not included in the count. This is the case in the Cabinet as a whole, as well as in Cabinet committees. This proceeding is expressed in the Cabinet Work Rules (ss. 19 and 35 of the Rules, revised as of 27 July 2003). The freedom to express an opinion and the free flow of objective positions and outlooks of the members of the decision-making body advance the decision-making process and shape its content, and they constitute a central and vital component of the way in which every administrative body operates, including the Cabinet. This is the case when we are referring to a professional issue that is to be decided by the administrative body, and also when we are referring to a minister who has a political role in the government, and expresses within this framework political opinions and views with respect to the political and social path that he deems fit. Strict adherence to this procedure of decision-making is vital for the proper functioning of public administration, including the government. Moreover, it promotes an important public interest.

Against this background, the power given to the prime minister under s. 22(b) of the Basic Law: the Government to dismiss a minister is far-reaching when it is exercised in the context of an objective position that the minister espouses with respect to a matter that is to be decided by the Cabinet, even when it is related to a matter that lies at the heart of a political issue that the prime minister wishes to promote. The interpretation of President Barak extends the power of the prime minister to dismiss a minister on the basis of a political opinion that he expresses in good faith on an issue of policy, where this opinion conflicts with the policy that the prime minister wishes to promote. This power is unparalleled in other collective bodies, and it is inconsistent with the procedure of decision-making that is commonly practiced therein, nor should it be applied in any way to their work procedures. It is also unacceptable and undesirable in the day-to-day, routine work of the government. It is a unique power that should be exercised only when it is absolutely essential to promote, in the words of the President, the proper functioning of the government as the executive branch and to realize the policy goals that it has set.

The exceptional and unique nature of this power of dismissal that is given to the prime minister with respect to a minister in the government requires that it is exercised very rarely, and only in special and exceptional contexts where the public interest, which requires the furthering of the government’s ability to function properly, and the realization of the national policy goals that it has set, clearly overrides the conflicting public interest that aims to protect the stability of the government and the integrity of its accepted decision-making process, including the right of every minister to express his objective opinion freely, without fear of dismissal or removal. I agree therefore with the position of the President, that the spectrum of cases in which the prime minister may exercise this power is broad and varied. Nonetheless, in my opinion the broad variety of grounds for exercising this power does not derogate from the duty to refrain from adopting this measure except when, in the prime minister’s opinion, there exists a need of supreme national importance that justifies it, even at the price of harming the stability of the government and the accepted and proper decision-making process, and this assessment falls within the zone of reasonableness according to the accepted criteria of public law. The strength of the need justifying the dismissal of a minister because he holds a controversial opinion must be clear, unique and of very great weight, when considered against the conflicting interest that seeks to protect the stability of the structure of the government, the propriety of its actions and the maintenance of its work routine in accordance with its procedures. When applying this criterion to the exercising of the prime minister’s power, the control mechanisms that exist in the sphere of political forces and parliamentary scrutiny of government activity are insufficient. The rules of public law apply and have their say.

In the case before us, the prime minister wished to promote a political plan to which he attributes fateful significance for society and the State. The promotion of the plan necessitated, in his opinion, the dismissal of the two ministers who opposed it, in order to obtain the majority that was required in order to adopt it as a government decision. In view of the centrality of the plan underlying the matter, the measure that was adopted in order to promote it, by way of dismissing the opposing ministers, did not depart, in this case, from the extreme and rare criterion that is required in order to exercise the power of dismissal, and in the balance of conflicting public interests, the action of the prime minister does not fall outside the zone of reasonableness, in accordance with the rules of public law.

On this basis, I agree that the petitions against the prime minister should be denied.

Petition denied.

11 Heshvan 5765.

26 October 2004.

Full opinion:

Fuchs v. Prime Minister.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/04/610/052/A11/04052610.a11.pdf

The Movement for Quality in Government v. State of Israel

Case/docket number:

HCJ 3094/93

HCJ 4319/93

HCJ 4478/93

AHC 4409/93

Date Decided:

Wednesday, September 8, 1993

Decision Type:

Original

Topics:

Abstract:

These petitions concern the continued tenure in office of the fourth respondent as a Minister in the Government, after he was charged with accepting a bribe, breach of trust on the part of a public servant, obtaining something by deceit under aggravating circumstances, false entry in corporate documents and stealing by a director

The petitioner in H.C. 4319, 3094/93, argued that proper legal and public norms demand an immediate end to the 4th respondent's tenure of office as a Minister. This petitioner's approach is similar to that of the third respondent, as expressed in his application to the second respondent. In the opinion of the second respondent he is not in duty bound by law to use the powers vested in him by section 2lA of the Basic Law: the Government in order to remove the 4th respondent from his office as a Minister. The second respondent drew attention to the letter which the fourth respondent had deposited with him before the fifth respondent had joined the Government, in which he undertook that "if and when an indictment be brought "against him in court, he would suspend himself from the Government of his own accord. The second respondent saw, and sees, this arrangement, as expressed in the said letter, not only as a unilateral undertaking by the 4th respondent, but also as a parallel undertaking on his part not to exercise his power under section 21A of the Basic Law: The Government unless the circumstantial conditions laid down in the letter are fulfilled.

According to the argument, the suspicions raised in the past against the fourth respondent, despite which he was elected to the Knesset, were no less serious than those contained in the indictment. It was argued, therefore, inter alia, that there was no real change of circumstances which justified the exercise of the power under the above section 21A, which is a discretionary power. It was argued further that the arrangment in the Basic Law: The Government with respect to Ministers and Deputy Ministers is a negative one - that is, there is no obligatory provision of law there.

The High Court held as follows:

A. (1) In section 21 A of the Basic Law: The Government the 3rd respondent was given the power to transfer a Minister from office without being bound by any extraneous obligations while exercising his power in accordance with its legislative purpose.

(2) An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, a State service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government and would also not be consistent with the general principles of administrative law.

B. (1) Section l3A of the Basic Law: the Government was intended, from the point of view of legislative purpose, to prevent agreement and undertakings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

(2) Section 13A(b) is intended to preserve and ensure the freedom of discretion of the holder of a statutory power in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations and all the more so when the law demands it. It is intended to prevent negation and cancellation in advance of the power of the authority, within the framework of a political deal.

(3) Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power was under consideration. A promise in advance not to exercise a power means that the holder of the power cannot exercise it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.

(4) Where there are considerations which, in the light of all the data, require the exercise of the power to remove someone from office, it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.

(5) In the present circumstances the 4th respondent's undertaking, which can be seen to be an agreed bilateral arrangement, drastically defies the prohibitions in section 13A(2) of the Basic Law: The Government and should be deemed to be absolutely invalid.

C. (1) The power conferred by section 21A(a) of the Basic Law: The Government is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution.

(2) Insofar as exercising discretion is concerned there is no difference between exercising a power and refraining from exercising that power: not only can the unreasonable exercise of a power be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.

(3) Even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weight up also the very need and justification for exercising it.

D. (1) When examining the possibility of exercising a power the statutory authority must take account of all the relevant elements: that is, of all the subjects which create a mosaic of the data before it, it being obvious that it cannot take account of extraneous circumstances.

(2) Where parliamentary-political life is concerned, one cannot rule out taking account of circumstances which arise due to political considerations.

(3) The question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations.

E. (1) Discretionary power becomes a power which it is a duty to exercise when the factual circumstances are such that the basic values of our constitutional and legal system make failure to exercise it so unreasonable as to go to the root of the matter.

(2) The power granted by section 21A of the Basic Law: The Government can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in the web of government policy or who defies the principle of collective responsibility. The power is vested also in order to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide, and serve as, an example, on its capacity to ingrain proper standards of conduct, land, mainly, when it has repercussions on the public's confidence in the system of government, on the values upon which the system of government and law is built, and on the duties of the ordinary citizen which arise from them.

(3) This has no reference to moral norms which have no basis in law. The reference is to the law of the country according to which failure to exercise a power vested in a functionary converts the omission, in certain circumstances, into something extremely unreasonable.

F. (1) The fact that the Government depends on the confidence of the Knesset, and that this gives transcendental expression to the broad public's confidence, does not make the exercise of the power under section 21 A of the Basic Law: The Government when the circumstances demand it, redundant.

(2) Suspending a decision, following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset- if in fact it does - brings a vote of no-confidence in the Government in order to effect, indirectly, the dismissal of the minister, would amount to interpreting the very meaningful legal provision in section 21A as a minor provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the second respondent under this section.

(3) In the present case the indictment against the fourth respondent includes allegations of corruption of an extremely serious nature. Even though it only reflects the prima facie evidence collected by the prosecution and even though it is not a judgment, insofar as continued office in the Government is concerned even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of significance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for establishing the nature of the acts attributed in the indictment.

G. (Per Justice E. Mazza):

(1) The second respondent sought to take issue with the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office and did not give expression to an independent public stand with the aid of his reasons.

(2) The approach is contrary to the constitutional principle according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive.

(3) Even after it has been explained to the second respondent that the agreement which he had made with the forth respondent was invalid ab initio, he had stuck to his original stand, while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the third respondent:

H. (Per Justice D. Levin):

(1) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions had points of view and to the political and social path of the public which elected him and of the movement which regards him as its representative in the government set-up.

(2) When the minister fulfills an administrative function he is subject to review by the High Court of Justice. Within the framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice. If he sins against any of these principles then his political function should, generally, not serve as a defence. If that be the position in general, how much more so would it be the case when a minister errs and becomes tainted with the stain of an offence against the law.

(3) If an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy, it would not be proper or reasonable for him to continue in office. It would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he be convinced of his own innocence and clean hands.

(4) If the minister does not do this then the second respondent must weight up whether circumstances have not arisen which would demand the exercise of his power under section 21A(a) of the Basic Law: The Government to remove the minister from office.

(5) When a demand that the exercise his discretion be made he may take into consideration parliamentary-political aspects, as it is only natural and understandable that the second respondent will seek to preserve his government and save it from collapsing. But the implications of the indictment cannot be ignored and the minister cannot be left in office as though nothing had occurred for the sake of the Government's survival and because of the desire to further government policy, however important this may be.

I. (Per Justice E. Goldberg):

(1) One cannot deny the existence of a political aspect in the matter under consideration. But this aspect must not be regarded as divorced from public administration.

(2) In any clash between the two aspects one cannot say that the public administration norm will not apply at all only because the functionary is a minister or deputy minister.

(3) A balance between the two aspects makes it obligatory that the court's power to intervene in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be limited to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office.

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Barak, Aharon

majority opinion

Mazza, Eliahu

Author

concurrence

Levin, Dov

Author

concurrence

Goldberg, Eliezer

Author

concurrence

Full text of the opinion:

H.C.J 3094/93

H.C.J 4319/93

H.C.J 4478/93

A.H.C. 4409/93

1. The Movement for Quality in Government in Israel

(H.C. 3094/93, H.C. 4319/93).

2. Moshe Kirstein

(H.C. 4478/93)

3.Adv. Zeev Trainin

(A.H.C. 4409/93)

1. State of Israel

2. Prime Minister

3. Attorney General

4. Rabbi Arye Deri

5. Shas, International Organization of Tora Observant Sepharadic Jews

In the Supreme Court Sitting as High Court of Justice

[September 8, 93]

Shamgar P., Barak J., D. Levin, J. Goldeberg J., Mazza J.

Editor's Summary*

The High Court held as follows:

A. (l) In section 21 A of the Basic Law: The Government the 3rd respondent was given the power to transfer a Minister from office without being bound by any extraneous obligations while exercising his power in accordance with its legislative purpose.

B. (l) Section l3A of the Basic Law: the Government was intended, from the point of view of legislative purpose, to prevent agreement and undertakings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

C. (I) The power conferred by section 21A(a) of the Basic Law: The Government is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution.

D. (l) When examining the possibility of exercising a power the statutory authority must take account of all the relevant elements: that is, of all the subjects which create a mosaic of the data before it, it being obvious that it cannot take account of extraneous circumstances.

(2) Where parliamentary-political life is concerned, one cannot rule out taking account of circumstances which arise due to political considerations.

(3) The question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations.

E. (I) Discretionary power becomes a power which it is a duty to exercise when the factual circumstances are such that the basic values of our constitutional and legal system make failure to exercise it so unreasonable as to go to the root of the matter.

F. (l) The fact that the Government depends on the confidence of the Knesset, and that this gives transcendental expression to the broad public's confidence, does not make the exercise of the power under section 21 A of the Basic Law: The Government when the circumstances demand it, redundant.

G. (Per Justice E. Mazza):

(l) The second respondent sought to take issue with the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office and did not give expression to an independent public stand with the aid of his reasons.

(2) The approach is contrary to the constitutional principle according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive.

H. (Per Justice D. Levin):

(I) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions had points of view and to the political and social path of the public which elected him and of the movement which regards him as its representative in the government set-up.

I. (Per Justice E. Goldberg):

(1) One cannot deny the existence of a political aspect in the matter under consideration. But this aspect must not be regarded as divorced from public administration.

(2) In any clash between the two aspects one cannot say that the public administration norm will not apply at all only because the functionary is a minister or deputy minister.

Israel Supreme Court Cases Cited:

[1] Election Appeals 2,3/84 Neimann v. Chairman of Central Elections Committee for the llth Knesset; Avni v. The Same 39 (2) P.D. 225.

[2] H.C. 1523, 1540/90 Levi v. The Prime Minister 44 (2) P.D. 213.

[3] H.C. 1635/90 Jarjevsky v. The Prime Minister 45 (1) P.D. 749.

[4] H.C. 142/70 Shapira v. The Israel Bar, Jerusalem 25 (1) P.D. 325.

[5] H.C. 4566/90 Dekel v. The Minister of Finance 45 (1) P.D. 28.

[6] F.H. 16/61 Register of Companies v. Kardosh 16 P.D. 1209.

[7] H.C. 297/82 Berger v. Minister of the Interior 37 (3) P.D. 29.

[8] H.C. 156/75 Daka v. Minister of Transport 30(2) P.D. 94.

[9] H.C. 190/57 Asaig v. Minister of Defence 12 P.D. 52.

[10] H.C. 2/80 Bat v. Minister of Religious Affairs 34(3) P.D. 144.

[11] H.C. 596/75 Maccabi Tel-Aviv v. Broadcasting Authority 30 (1) P.D. 772.

[12] H.C. 542/76, 103/77 Int. Consortium v. Director General, Ministry of Communications 31 (3) P.D. 477.

[13] H.C. 653/79 Azriel v. Director of Licensing Department 35 (2) P.D. 85

[14] H.C. 376/81 Lugassi v. Minister of Communications 36 (2) P.D. 499.

[15] H.C. 4267, 4287, 4634/93 "Amitay" v. The Prime Minister 47 (5) P.D. 441.

[16] H.C. 6177, 6163/92 Eisenberg v. Minister of Construction and Housing 47 (2) P.D. 229.

English Cases Cited:

[17] Rex v. Robert. Ex parte Scurr [1924] 2 K.B. 695 (C.A.)

E. Shraga, E. Shapira - for the petitioners in H.C. 3094/93 and H.C. 4319/93;

The Petitoner in H.C. 4478/93 - appeared on his own behalf;

D. Beinish, N. Arad- For the First three respondents in H.C. 3094/93, H.C. 4319/93 and H.C. 4478/93.

Z. Agmon, Y. Hirch - for the 4th, 5th respondents in H.C. 3094/93, H.C. 4319/93 and H.C. 4478/93;

The Applicant in A.H.C. 4409/93 - appeared on his own behalf.

JUDGMENT

The President:

The petitions

1. These petitions are aimed against Rabbi Arye Deri's continuing to serve as a member of the Government in his capacity as the Minister of the Interior.

The petition in H.C. 4319/93 evolves directly from the fact that an indictment was filed against Minister Arye Deri; that in H.C. 3094/ 93, which preceded the former petition, deals with the chain of events before the indictment. In the course of proceedings the petition in H.C. 3094/93 was waived, as the petition in H.C. 4319/93 took its place. The petition in H.C. 3094/93 is therefore cancelled.

The petitions in A.H.C. 4409/93 and H.C. 4478/93 are applications to be joined as respondent and petitioner, respectively, in the main petition.

2. (a) The indictment against Minister Arye Deri was submitted to the Knesset on August 2, 1993. It was accompanied by a request that the question of lifting Minister Deri's immunity in accordance with the provisions of section 13 of the Immunity, Rights and Duties of Knesset Members Law, 1951, be considered. The Knesset Committee discussed the said request already on 3.8.93 and decided to continue their deliberations on 26.9.93.

(b) The Indictment

The indictment contains the following offences against the law:

(1) Accepting a bribe contrary to section 290 of the Penal Code, 1977 (hereinafter "the Code").

(2) Breach of trust on the part of a public servant, contrary to section 284 of the Code.

(3) Obtaining by deceit under aggravating circumstances, contrary to the last part of section 415 of the Code.

(4) False entry in corporate documents, contrary to section 423 of the Code.

(5) Stealing by a director, contrary to section 392 of the Code.

Each of the above provisions of the Code embrace a substantial number of acts and not only an isolated one.

(c) The facts, whose legal headlines appear above, and which reflect the prima facie evidence in the hands of the prosecution, are described in detail in an indictment which consists of 50 pages. The events dealt with in the indictment concern Minister Deri's exploitation of his office and standing, at first when he served as an assistant to the Minister of the Interior and in charge of his office, in his capacity as the Director-General of the Ministry of the Interior, and afterwards as Minister of the Interior. He fraudulently caused money to flow from state funds to various societies in which he was either active himself or was otherwise involved; these societies transferred to him, either directly, or by making payments to others on his behalf, over a long period of time and on many occasions, bribe money, in exchange for his assistance in getting funds for them. The sum total of these bribes was NIS 135,000 (at the time of payment their value was about $ 71,000). In addition there were sums of money, whose value then was about $95,000, which were transferred in other ways, as well as other gratuities.

Another section deals with the use of the respondent's position and connections, as an official of the Interior Ministry, in order to further the granting of a sum of NIS 500,000 to a society in which he was active, by moving the Ministry of Religious Affairs through false representations. This money was used in a deceitful manner and not for the declared purpose, with the aid of fraudulent records and various misrepresentations.

A third section deals with conspiring to move government bodies to grant land to persons, who had bought plots in Nebi Samuel from one of the above societies, when it transpired that the society in question could not fulfil its obligations towards them. The respondent acted in a manner involving an absolute clash of interests, concealed facts and made false representations in order to receive privileges and money - for his societies - and through them for himself.

Within the framework of his activities for the purpose of forwarding the affairs of the societies which paid him bribe money in exchange for his services, the respondent initiated a grant of NIS 200,000 from the Jerusalem Municipality to one of these societies. For this purpose an extraordinary sum was budgeted, contrary to Interior Ministry practices.

An additional matter concerns the appointment of Moshe Weinberg, his accomplice in most of the above offences, to the post of chairman of the appointed Local Council of Lehavim, in order to enable him to draw a salary and have an official car. This Weinberg had previously been a real estate and haulage agent and for some time had been the respondent's driver. Weinberg was heavily debt-ridden and his appointment to public office was intended to rescue him from his troubles.

3. The Parties' Arguments

From the parties 'written and oral arguments before us it would appear that the petitioners maintain that proper legal and public norms demand an immediate end to Minister Arye Deri's tenure of office. This approach is consistent with that of the Attorney General who told the Prime Minister, both in writing and verbally, that once the above indictment had been submitted to the Knesset, on August 2, 1993, it was only proper that Minister Deri's tenure of office be terminated. Mr. Harish, the Attorney General, said the following in a letter dated August 6, 1993:

"From now and until the end of his trial it would be contrary to the basic principles of law and government, and also unethical, for Mr. Deri to continue to serve as a Minister in the Government."

In written arguments the Attorney General added further details and summed up his stand as follows:

"(a) The letter containing the undertaking which Minister Deri deposited with the Prime Minister (a document to which we shall refer later - M.S.) made his tenure of office as a Minister in the Government and a member thereof basically conditional; and, therefore, nothing is being taken away from him today, only the question of granting a conditional right to his very tenure as Minister of the Interior in the Government, being at issue.

(b) From the moment that Minister Deri signed his letter the circumstances changed, mainly because the suspicions and evidence that had not been thoroughly examined before then became embodied, in a clear and concrete indictment, into offences involving ignominy for the person accused of them.

(c) As long as there is a weighty suspicion that Minister Deri committed these offences, his trustworthiness as a person in charge of public money on behalf of the government is questionable; and in this I find even the fear of a conflict of interests insofar as his function as Minister of the Interior is concerned, mainly with respect to the manner in which he exercises his discretion in matters connected to subjects bound up with the suspicions against him.

(d) Insofar as the allegations in the indictment and the offences of which he is suspected are concerned, the indictment which is before the Knesset today must be seen as having progressed beyond the corridors of the court, and Minister Deri must therefore immediately honour his undertaking to suspend himself from the Government. In this matter the process of lifting his immunity will not serve as a stumbling-block in the way of the duty to terminate his tenure of office as a Minister in the Government."

4. Minister Arye Deri informed the court , through the learned counsel for the International Organization of Torah Observant Sepharadic Jews (Shas) (the 5th respondent), that he saw no room for appearing and putting his case before us personally as expression would be given to his stand in the arguments brought on behalf of the 5th respondent, whom he represents in the Government. He added that he would of course honour any decision of the court.

5. The stand of the Prime Minister, as conveyed to us by the Attorney General and which can also be gathered from the written material submitted by the Attorney General, is that he is not obliged by force of law to exercise the power vested in him by section 21A of the Basic Law: The Government to remove Minister Deri from office .

In this context the Prime Minister referred, in his letter of August 22, 1993, to the Attorney General, to the course of events in the matter before us which accompanied the formation of the Government in July, 1992: about a year ago, in a letter dated July 2, 1992, the Attorney General brought the Prime Minister's attention to the fact that an investigation was being conducted by the police against Minister Deri. In his letter the Attorney General spoke of "heavy suspicion of criminal acts which have not yet been thoroughly examined and clarified" and mentioned the use to which Minister Deri had put his right to remain silent. On July 6, 1992, there was a meeting between the Prime Minister and the Attorney General, and on the strength of what was agreed there, with the consensus of the Attorney General, Minister Deri deposited a letter with the Prime Minister in the following language:

"If Shas joins the Government which you will head, and if Shas decides that I should be a member of the Government, and in the light of the Attorney General's letter to me concerning my affairs, and on the strength of your request to me, I hereby inform you that if and when an indictment is brought against me in court I will suspend myself from the Government of my own accord."

The Prime Minister saw, and sees, in the arrangement to which expression is given in the above letter, not only a unilateral undertaking by Minister Deri but a parallel undertaking on his part not to exercise his power under section 2IA of the Basic Law: The Government, unless the circumstantial conditions laid down in the above letter ("...when and if an indictment is brought...in court") are fulfilled.

In July, 1992, a Government was formed which included Minister Deri. His letter was brought at the time to the notice of the Knesset, as required by section 13B of the Basic Law: The Government, and exposed openly to the public.

In the Prime Minister's letter of August 22, 1993, to the Attorney General, which is in the nature of a reply to the detailed and reasoned opinion of the Attorney General, of August 6, 1993, a substantive part of which was quoted above, he notes that he does not accept the Attorney General's approach, in accordance with which, since July, 1992, there had occurred a change of circumstances expressed centrally in the submission of the indictment to the Knesset, for the following reasons: in the meantime Minister Deri had abandoned his right of silence and answered his interrogators' questions; the suspicions of July, 1992, were no less serious than those embodied now in the indictment, and perhaps even the opposite was the case; the fear of a conflict of interests raised by the Attorney General in his above letter was exposed and known at the time the Government was formed.

It was argued further that cognisance should be taken of the fact that in the matter of removal from office the legislature had laid down express provisions for electees and for functionaries other than ministers or deputy ministers, as can be seen in the State Service (Discipline) Law, 1963, in section 42B of the Basic Law: the Knesset, in section 20 of the Local Authorities (Election and Tenure of Head and Deputy Heads) Law, 1975, etc. On the other hand, the Basic Law: The Government makes no provision for the suspension of ministers and deputy ministers or their removal from office because of suspicions, investigations or criminal charges. Which means that when the legislature saw fit to enact obligatory provisions for the removal from office on account of criminal acts, it did so by law. The arrangement in the Basic Law: The Government, in respect of ministers and deputy ministers, is a negative one, which means that there is no similar obligatory provision of law there.

As stated in the Prime Minister's letter of 22.8.93:

"In this serious matter there exists, according to the law, a fundamental and substantive difference between electees and functionaries. And it was not only incidentally that the legislature enacted different provisions for these two categories. The electee serves by virtue of the confidence of the public which elected him in a democratic process, and which has the power to remove him from office in the same manner if he is found to be tainted. There must, therefore, be very serious reasons for removing an electee from office or suspending him, such as a criminal conviction of an ignominious nature, a prison sentence, etc. - which does not apply to ordinary functionaries."

The Prime Minister also referred to the precedent which was created, in his opinion, in the case of Aharon Abuhazeira, who continued to serve in the Government while two criminal actions were being conducted against him, and the then Attorney General, Professor I. Zamir, took no action whatsoever.

As noted, it is argued that there is no legal norm for the matter before us, and that the opinion of the Attorney General is based on public norms pertaining to the confidence of the public in the system of government. But according to the Prime Minister this should be countered by a norm of no less public importance - that is, confidence in the Prime Minister, who formed a Government on the strength of an undertaking which received the approval of the Attorney General, and who is now asked to breach his undertaking on a public and personal plane without any real change in the circumstances. The Prime Minister sums this up in the following manner:

"The matter before us is unique and special, as it has nothing whatsoever to do with the question of interpreting a law but concerns a confrontation between two public norms. And this is particularly so after I made an undertaking in this matter, and even acted upon it, on the strength of your opinion given me only about a year ago, and for dishonouring which undertaking I can find no possibility, reason or justification."

6. The 5th respondent, in a written declaration and in the arguments before us by its learned counsel, Advocate Zvi Agmon, also supported the idea that there is no binding law concerning the removal of a minister from office because he has been indicted. Insofar as a member of the Knesset who is also a member of the Government is concerned, he was of the opinion that what was operative here was the Knesset's confidence in the Government. Section 21A of the Basic Law: The Government was enacted only in 1991 and until then the Prime Minister had no power to dismiss a minister, the termination of whose tenure of office could be effected only by his resignation or by the resignation of the whole Government. This section, he argued further, was intended mainly for the purpose of preventing "irregularities" in the Government's actions. At any rate its application in any particular instance came entirely within the discretion of the Prime Minister.

Advocate Agmon, whose arguments paralleled to a great extent the stand of the Prime Minister, as apparent from his letters and from the speeches of the State Attorney who appeared on his behalf before us, referred also, for the purpose of comparison, to express laws concerning removal from office of other functionaries and sought thereby to bolster his conclusion that the absence of legislation concerning ministers is not coincidental. He found this interpretational conclusion to be logical for the following reason: according to the constitutional construction of the regime in Israel, the Government rules by virtue of the confidence of the Knesset, and is collectively responsible to the Knesset. The Knesset is the elected representative of the people as a whole and it can decide when a minister's tenure of office should be terminated, and when not, by using its sovereign power to express a lack of confidence in the Government and, indirectly, in a minister serving in the Government.

In the course of proceedings before us the learned counsel for the 5th respondent agreed that the above section 21A could possibly be applied in the case before us, but added that just as its application should be reasonable so could a decision concerning its non-application be reasonable.

7. Advocate Zeev Trainin, the petitioner in A.H.C. 4409/93, argued before us that the court should take into account the party-political repercussions of any decision concerning Minister Deri's removal from office. Mr. Moshe Kirstein, the petitioner in H.C. 4478/93, who asked to be joined as an additional petitioner, and in whose case no order nisi was given, argued that this court must not intervene in the dismissal of a minister as long as there is no express provision of law on the subject.

8. The Legal Subjects On Which The Proceedings Were Based

We shall now proceed to analyse the arguments before us. Two central legal problems were raised before us. The first is the legal validity of the undertaking which the Prime Minister claimed he had imposed upon himself when Minister Arye Deri signed the letter of July 6, 1992, (the contents of which were given in full above) before him.

The second question bears on the nature of the Prime Minister's powers under section 21A of the Basic Law: The Government, which deals with removal of a minister from office.

We shall commence with the question of the undertaking of July 6, 1992.

9. Undertaking not to Remove a Minister from Office

According to the simple wording of the letter of July 6, 1992, it contains a declaration by Minister Arye Deri, dressed as an undertaking on his part, that in the given circumstances, as set out there, he would suspend himself of his own accord from the Government. This declaration was bound up with negotiations for forming a Government , and came following upon a letter from the Attorney General in which he sought to inform the Prime Minister of the existence of an investigation against Minister Deri and of the general substance of the investigation. The Attorney General's letter did not only convey information, but it also contained expressions of doubt concerning the advisability of including in the Government someone concerning whom, at the time, investigations, as described in the said letter, were being conducted. In this context the letter said that it was advisable that the Prime Minister take account of the facts described when weighing up - if at all - the question of the candidacy of Minister Deri for office in the Government which he (the first respondent) was about to form.

After the first respondent had given due consideration to the contents of the Attorney General's letter and had decided to include Minister Deri in the Government, on the basis of the written undertaking of July 6, 1992, and following upon it, it is reasonable to conclude that what was contained in the above undertaking was acceptable to both parties: that is, that the yardstick provided for in the undertaking would guide both Minister Deri and the Prime Minister. In other words, just as the one undertook to leave the Government in given circumstances, as described in the undertaking, so did the other, who had decided to include Minister Deri in the Government, take it upon himself to honour the condition concerning the timing of the resignation from office contained in the undertaking. From a legal point of view the conclusion is, therefore, that the Prime Minister agreed not to remove Minister Deri from office as long as the conditions laid down in the above undertaking of Minister Deri had not been met.

10. An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, state service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government, and would also not be consistent with the general principles of administrative law. Fettering the power clashes with the legislative purpose of vesting the power, in accordance with which the Prime Minister may remove (a person) from office when the circumstances brought to his attention justify or demand this, and there is no reservation or condition attached to this save for the substantive necessity to exercise this power for its legislative purpose.

11. (a) The relevant provision of enacted law is contained in section 13A(b) of the Basic Law: The Government, which states that:

"Where, by law, power is given to remove a person from office in the Knesset, in the Government, in state service, in an association established by law, in a government company or in any other public body - no agreement and no undertaking concerning the non-removal of that person from office may be made."

The "power to remove a person from office" is, in the case under consideration, the power of the Prime Minister by virtue of section 21A of the Basic Law. The prohibition against giving an undertaking in connection therewith, as contained in section 13A, is unequivocal.

In other words, while section 21A of the Basic Law: The Government vests the Prime Minister with the power to remove a minister from office, without being tied to any extraneous undertaking and while exercising his power within the confines of the aim of the law (see E.A. 2,3/84 [1], at p. 252, opposite A) an undertaking not to exercise this power to remove from office, unless the conditions contained in the above letter have been met, is equivalent to an undertaking on the part of the Prime Minister to limit in advance his statutory power, whatever the factual circumstances which might occur.

The said section 13A was added to the Basic Law: The Government on the strength of the Basic Law: The Knesset (12th amendment) which came into force on 22.2.91; that is, only one-and-a-half years before the above undertaking, signed by Minister Deri, was given. The amendment to the law came at the initiative of the Constitution, Law and Justice Committee of the Knesset and it is patently clear from its content, including what is contained in sections 13A (a) and (c), that this addendum to the law is a sequel to what was held by this court in H.C. 1523, 1540/90 [2], and an echo of the problems raised in the proceedings in H.C. 1635/90 [3].

(b) From the point of view of legislative purpose, section 13A , with all three of its sub-sections, is intended to prevent agreements and undertakings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.

(c) Subsection 13A(a) deals with an agreement containing an undertaking concerning the office of a minister or deputy minister, and is intended to prevent the acquisition of support from a member of the Knesset who belongs to another party, in exchange for a promise to appoint a minister or deputy minister.

(d) Subsection 13A(b), with which we are concerned here, is intended to preserve and ensure the freedom of discretion of the holder of a statutory power, in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations, and all the more so when the law requires it. It is intended to prevent negation and cancellation in advance, in the framework of a political deal, of the power of the authority.

The legal power to appoint and the legal power to remove from office were granted by law to any particular functionary in order to enable him to carry out the administrative duties within his charge, in accordance with the law which granted him the power and subject to the conditions, if any, attached to it by the legislature. Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power is weighed up. A promise in advance not to exercise a power means that the holder of the power cannot use it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.

What is said above flows from the standing and duties of a public functionary, either elected or appointed, and is encompassed in them. The powers of a functionary in public service are intended to be used for the general good. Every electee and every holder of office is a servant of the general public (H.C. 4566/ 90,[5]). As we have explained on more than one occasion , this means that the power to appoint or to remove from office should be exercised fairly, without extraneous considerations and for the good of the public.

In every instance when the exercise of such power is required it is only right that the said exercise be reviewed in the light of the circumstances and of all the factors, and while striking a proper and reasonable balance between the various considerations. But, according to the provisions of section 13A(b), the holder of the power is forbidden, inter alia, to fetter his considerations in advance in order to give preference thereby to the political-party consideration whatever the weight of the other factors may be. That is to say, where considerations arise which, in the light of all the data, require the exercise of the power to remove (a person) from office (a subject to which we will return and discuss later) it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.

(e) The last subsection of section 13A - subsection(c) - deals directly with the circumstances which were examined and disqualified by this court in H.C. 1523, 1540/90, [2], above, (financial guarantees) and there is no need to discuss it in detail here.

(f) To sum up, section 13A as a whole comes to prohibit limitation of freedom of action on the part of an authority. It demarcates the boundaries of what is permissible and what is forbidden in the matters described here, in order to cultivate public integrity and to limit the things which can be used, lawfully, as rewards in political deals. Section I3A seeks to ensure that a statutory power conferred on a functionary for the purpose of carrying out his duties will be used by him for the general good. Furthermore, section 13A clothes in legal-statutory dress desirable and obligatory public norms and the prohibitions laid down by law which complement them.

As mentioned above, it was already held by this court, before the enactment of section 13A, that the acts described in it are contrary to the general principles of law.

12. In the light of the thesis propounded by the first and fifth respondents, in accordance with which it is not a unilateral obligation on the part of Minister Deri which we are dealing with, but a bilateral agreement - which is a reasonable conclusion, per se, in the light of all the circumstances - the bilateral obligation which emerges from Minister Deri's letter of July 6, 1992, quoted above, should be seen as an obligation which drastically defies the prohibition in the above section 13A(b). It must, therefore, be deemed to be absolutely invalid: it does not contain any valid limitation of the Prime Minister's power to exercise the right vested in him by section 21A of the Basic Law.

13. It must be understood that the question of whether the parties to the agreement had been aware of the existence of section 13A(b), or not, is irrelevant insofar as the validity of the obligation is concerned. The question of this validity depends entirely on the clear wording of section 13A(b) and nothing further need be added.

In the course of proceedings we were asked to draw the Prime Minister's attention to the provisions of the above section 13A(b), and following upon this the State Attorney informed us that the Prime Minister had in fact not been aware at the time of the existence of the above provision in the Basic Law: The Government, but that this did not affect his stand on the substance of the matter. In his opinion he was not in duty bound to exercise the power vested in him by sections 20 and 21A(a) of the Basic Law, for the reasons already quoted above , without there being any connection with the legality of the above undertaking.

We must, therefore, proceed to examine the second question, which is that of a Prime Minister's exercise of his power to remove a Minister from office, within the meaning of section 21A(a) of the Basic Law.

14. The Power to Remove a Minister from Office

(a) Section 21A(a) provides that:

"The Prime Minister may, after informing the Government of his intention to do so, remove a Minister from office; the Minister's tenure of office is terminated 48 hours after the notice of removal from office has been handed to him , save if the Prime Minister changes his mind before then."

The power conferred by section 21A(a) is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary and change from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution. (F.H. 16/61 [6], at p. 1215).

But, even when the power is a discretionary one it still has a normative framework. The usual rules regarding reasonability, fairness, good faith, integrity, absence of arbitrariness and discrimination, etc., apply to every exercise of administrative discretion (see my esteemed colleague, Justice Barak, in H.C. 297/82 [7], at p. 34).

(b) Furthermore, as already noted in the past, there is no difference for purposes of the matter before us - that is for purposes of the exercise of discretion - between exercising a power and refraining from exercising that power: where the preliminary conditions required for exercising the power exist it is incumbent upon the statutory authority to act. It follows that even when the authority refrains from exercising its discretionary power its decision to do so is subject to the usual criteria applicable to statutory powers, that is, it can be reviewed to discover whether it was based on reasonable considerations or whether the combination of circumstances did not in fact demand the exercise of the power.

The decision can also be reviewed to see whether it was not unreasonable or was not based on arbitrariness or discrimination, which could disqualify the acts or omissions of the authority. That is to say, not only the unreasonable exercise of a power can be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.

(c) In this context I said, in the above H.C. 297/82 [7], that laying down initial arrangements in a law which vest a particular functionary with the ability to exercise a power in certain defined circumstances, does not only mean giving power and authority, but also means ascribing fundamental meanings to the power which include a duty with respect to the manner in which it is used.

So that attached to the grant of power there is, inter alia, the duty to weigh up whether it is necessary to exercise it and the proper measures to be taken in this context. Secondly, it is understandable and well-known that from the grant of power to a particular functionary there evolves the duty to deal with petitions and requests aimed at moving the holder of the power to exercise it in one way or another. Finally, insofar as examining and dealing with requests in the context of exercising a power is concerned, the nature and content of the manner in which this is done must be consistent with the basic standards laid down in judgments of this court, and any departure therefrom could have repercussions on the validity of any decision. In other words, even when the "may" is not necessarily "must", that is, even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weigh up also the very need and justification for exercising it.

(d) I will add that the holder of a power has the discretion to decide on a matter despite the existence of a decision in principle on the subject-matter of the power. For this latter decision may require re-evaluation in general or with respect to the concrete case. H.W.R. Wade, in discussing this subject, had the following to say, under the heading "Over Rigid Policies" (Administrative Law, p. 330):

"An authority can fail to give its mind to a case, and thus fail to exercise its discretion lawfully, by blindly following a policy laid down in advance".

That does not mean that a fundamental decision, which provides for a desirable policy or method of operation, should not be adopted, but that decision must also be the fruit of an orderly process, and even then every concrete case deserves substantive consideration in order to examine whether to apply to it, either positively or negatively, the guiding rule according to which the authority acts.

Till now we have discussed what was said in H.C. 297/82 [7] in connection with the duty to weigh up , in every ordinary case, all the data and circumstances, before deciding whether to exercise a power or refrain from doing so.

15. When there is a possibility of exercising a power, the statutory authority must give its mind to all the relevant elements, that is to all the subjects which create a mosaic of the data before it. But it is obvious that it cannot take account of extraneous circumstances. However, in order to remove all doubt I will add that where parliamentary-political life is concerned one cannot deny taking account considerations which arise due to political considerations. But, as my esteemed colleague, Justice Goldberg, pointed out in H.C. 1635/90 [3], quoted above, (at p. 866) it should be remembered that we are not dealing, in the context of the case before us, with the binding validity of a political agreement, but with the question of whether an act carried out, or due to be carried out, following upon an agreement, is unlawful or invalid according to the norms of administrative law recognised by us: that is, whether the content of the act is consistent with the basic principles of an enlightened State.

Therefore, the question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations. When certain considerations are given preference over others to an unreasonable extent, a decision would be invalid. In other words, as long as every element is given due and reasonable weight, in the circumstances of the case, there can be no complaints. But, when one consideration is preferred over another, despite the fact that the weight, substance or content of the rejected consideration clearly and obviously indicated that it should have been the preferred one, or that the scales were weighted in its favour, then the decision would be stamped with unreasonableness.

I said, in H.C. 156/75 [8], at p. 105, that there could be circumstances in which the statutory authority did not give weight to any extraneous consideration and only took relevant considerations into account, but nevertheless gave the latter so little weight as to make the final conclusion invalid.

That is the rule with respect to "good faith" on the part of a statutory authority. Unreasonableness can be discovered even when there was good faith at the basis of a decision. As Judge Scrutton remarked: "Some of the most honest people are the most unreasonable" (R. v. Roberts, Ex Parte Scurr (l924) [17], at p. 719).

16. In the framework of the arguments before us some of the respondents referred repeatedly to other laws dealing with functionaries other than ministers and deputy ministers, containing detailed provisions concerning their removal from office. They sought to learn from the positive arrangements in other laws that there is a negative arrangement in the case of ministers and deputy ministers: that is, that for them there is no provision of law laying down in advance the circumstances in which the power to remove them must be exercised. There is no legal basis for this argument. There are laws which detail the circumstances in which removal from office is allowed or required. But there is nothing in that to indicate a negative arrangement for removal from office of a minister or deputy minister. The matter of removal from office of a minister is anchored today in the above section 21A of the Basic Law and the absence of any detailed circumstances in which this is permitted or required only goes to show that the law, for this purpose, is the general law concerning statutory powers. The main rules for exercising such powers have already been explained above, and will still be enlarged upon. Furthermore, the absence of detailed provisions permits of the removal from office in a wider diversity of cases than those detailed in the laws dealing with other electees or appointed functionaries. At a later stage we shall deal with those circumstances in which there is a legal duty to exercise the power of removal.

17. Against the background of a general description of the relevant provisions of the law we shall now deal directly with the case before us. There are occasions when discretionary power becomes a power which it is a duty to exercise. (H.C. 190/57 [9]; H.C. 2/80 [10], at p. 146, and see also Professor B. Bracha, "Administrative Law" (Schocken Publications, 1986), 149). That is, there are circumstances in which the conclusion may be drawn - with respect also to a discretionary power - that refraining from exercising a power is so unreasonable as to descend to the roots of the matter (H.C.596/75 [11]; H.C. 542/76, 103/77 [12], at p. 483). In order to adapt this to the case before us: an authority is in duty bound to exercise a power when the factual circumstances are such that the basic values of our constitutional and legal system make the failure to exercise it so unreasonable as to go to the root of the matter.

Unreasonableness which goes to the root of the matter invalidates a decision of an administrative authority (see H.C. 297/82 [7] above; H.C. 653/79 [13]; H.C. 376/81, [14]).

It is true that the power under section 21A above can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in with the web of government policy or who defies the principle of collective responsibility. Those are, of course, only examples of what is commonly known as "irregularities". But this does not amount to a comprehensive description of the borderlines of the power under section 21A, the general nature of which points to its breadth and depth. This also does not constitute a description of the complete legislative purpose of the provision in this section of the law. The said provision of law is intended also to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide and serve as an example, on its capacity to ingrain proper standards of conduct and, mainly, when it has repercussions on the public's confidence in our system of government, on the values upon which our system of government and law is built and on the duties of the ordinary citizen which arise from them.

In order to remove all doubt I will add that what is said here has no reference to moral norms which have no basis in law. We are talking here about the law which exists here and according to which failure to exercise a power vested in a functionary converts the omission, in certain given circumstances, to something extremely unreasonable. This is a conclusion based on law and not one which is anchored only on abstract values without any legal basis, as could have been imagined from some of the arguments propounded before us.

It was argued at length before us that the Government depends on the confidence of the Knesset and that this gives transcendental expression to the broad public's confidence in the Government. I am prepared to accept this. I am also prepared to accept the distinction between a public servant and a public electee (see H.C. 4287/93 [15], in the case of Deputy Minister Pinchasi). But the confidence of the Knesset does not make the exercise of the power under section 21A, when the circumstances demand it, redundant. Furthermore, the constitutional reciprocal bond between the Government and the Knesset, and from there to the public, is a two-way one. The Government must also serve as a drafter of norms of governmental behaviour and must act in a manner which creates confidence. Suspending a decision following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset - if in fact it does - brings a vote of no-confidence in the government in order to effect, indirectly, the dismissal of the minister, would amount to interpreting the very meaningful legal provision in section 21A as a minor key provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the Prime Minister under section 21A and constitutes unreasonable refrainment from exercising a power granted by the legislator.

18. At this stage a short pause in the presentation of the legal background is called for, in order to return to the facts of the case. We described above the main points of the indictment presented to the Knesset. The indictment includes extremely serious allegations concerning corruption. The indictment is not a judgment. It only reflects the prima facie evidence collected by the prosecution. But, insofar as continued office in the Government is concerned, even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of significance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for judging the acts attributed to an individual, as clothed in the official dress of an accusation ready for presentation to the judicial instances.

In the case under consideration the lifting of immunity is also required as it affects a member of the Knesset. But the proceedings for lifting immunity do not change the content and significance of the indictment and what is alleged in it. If a minister who is charged with receiving hundreds of thousands of shekels in bribes and of abuse, in other ways, of government office, continues to serve in the Government this would reflect in a far-reaching manner on the image of government in Israel, and on its good faith and integrity. This has a direct effect on the question of reasonability according to the provisions of law (for changes flowing from the differentiation between a public servant and a minister - see also H.C. 6177, 6163/92 [6]).

19. It was pointed out in the arguments before us that there is a precedent for the continued service of a minister in the Government despite the fact that indictments containing serious charges against him were brought.

In my opinion no precedent was established. There was in the past an invalid omission which does not consecrate the system. A past invalid act or omission only demonstrates to what extent each individual act of political convenience becomes harmful, from the aspect of obligatory standards of conduct, as people will seek to learn from it, to imitate it and to regard it, for some reason or other, as a precedent.

In our constitutional history there are more esteemable instances of reactions following upon criminal allegations which it would be preferable to copy.

20. I can now sum up my opinion in the case before us:

(a) The power under section 21A is a discretionary power.

(b) A government promise not to remove a functionary from office has no validity.

(c) The authority must weigh up whether to exercise its power, when this is demanded or is obligatory, in an orderly and systematic manner, and must use it for the purpose for which it is granted while refraining from applying extraneous considerations.

(d) Parliamentary-political considerations can be legitimate in certain circumstances, but they must be examined with an eye to finding a fine balance with other considerations. When the fact that there is prima facie evidence that a criminal offence has been committed by a member of the Government is one of the other considerations, then the seriousness of the (alleged) offence is a relevant factor. The more serious the offence the less weighty would the other considerations be. I will add that in the context of the matter before us I saw no cause for dealing with the more general subjects discussed in the judgment of my esteemed colleague, Justice D. Levin.

(e) Whoever exercises discretion must keep in mind all the relevant and influential components and factors and must find a reasonable balance amongst them. Giving undue weight to one component or another, can invalidate a decision.

(f) There are circumstances which make the exercise of a discretionary power obligatory. Failure to exercise the power in such circumstances can be found to be so unreasonable as to go to the root of the matter.

(g) An invalid act in the past demands prevention of perpetuation, and not imitation. A blunder in the past does not give a license for the future.

(h) The offences attributed to Minister Deri are outstandingly serious and failure to exercise the power to remove him from office is unreasonable to an extreme extent. Reliance in this case on an undertaking which is inconsistent with the provisions of section 13 A of the Basic Law, has no place.

The damage to confidence in the government as a result of the failure to remove from office a person accused of the crime of corruption is far more serious than the damage to confidence as a result of failure to honour an undertaking which is prohibited by law. As already explained, we are not dealing here with the question of confidence as a moral norm, but with the provisions of law which deal with the reasonableness of failure to exercise a power.

21. I am of the opinion, therefore, that we should declare that the Prime Minister is required by law to exercise his power under section 21A of the Basic Law: The Government to terminate the tenure of office of Minister Deri. In this sense the order nisi should be made absolute.

Justice A. Barak: I concur.

Justice A. Mazza:

I concur with the judgment of my esteemed colleague, the President.

The stand adopted by the Prime Minister in the matter before us was based, for the main part, on the existence of a political agreement with Minister Deri, made at the advice of the Attorney General, on the eve of the formation of the Government. And having failed to be convinced of the justice of the Attorney General's argument that there had been a substantive change in the circumstances since the agreement was reached, the Prime Minister decided that he had to choose between two norms of at least equal weight: one, on the basis of which the Attorney General had argued that as long as Minister Deri was not cleared of the suspicions levelled against him with the tabling of the indictment against him in the Knesset he could not continue in office in the Government; and the other, which is connected with the fear of a blow to his trustworthiness, as Prime Minister, in the eyes of the public, of he did not honour his part of the agreement with the Minister. There was, therefore, a basis for assuming that unless the Prime Minister was mistaken in thinking that his obligation to Minister Deri was a valid one and that his credibility in the eyes of the public depended upon his honouring it, he would have refrained from taking the stand which led to the petititoners' application to this court for a remedy on behalf of the public. But this was not the case.

From the Prime Minister's letter of 22. 8. 93 to the Attorney General, a copy of which was submitted to us during the course of proceedings, it appears that even after his attention was called to the provisions of section 13A(b) of the Basic Law: The Government, his stand remained substantively the same, on the basis of other reasons enumerated in the letter, in which he takes issue with the Attorney General's approach (as detailed in the letter of 6.8.93 to the Prime Minister). In his letter the Prime Minister indicated that there was, in his opinion, a difference between elected functionaries and appointed public servants and he referred also to the case of Minister Abu-Hazeira, as though this were a precedent. But the main reason given by the Prime Minister for not acting on the opinion of the Attorney General was his reliance on his obligation towards Minister Deri, upon the honouring of which his credibility in the eyes of the public ostensibly depended.

The distinction between the principal and the secondary in the Prime Minister's reasons can be seen from a reading of his letter. But there is also a fundamental difference in the content of the reasons: a fear of harm to his credibility in the eyes of the public is a reason with public significance. In presenting this reason the Prime Minister relied on the assumption (albeit a mistaken one) that there existed a political agreement by which he was bound. This reason, even though not legally admissible, is at least understandable. This is not the case insofar as the Prime Minister's other reasons are concerned. The Prime Minister did not give expression to an independent public stand with the aid of these reasons, but sought to take issue with the opinion of the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office.

This approach is contrary to the constitutional principle, long since accepted in our system of law, according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive (see paragraph 42 of the judgment of my esteemed colleague, Justice Barak, in the Pinhasi case, H.C. 4287/93 [15]). And the Prime Minister, with all due respect, could not be heard at all on the grounds of these reasons. I was, therefore, sorry to learn that even after it had been explained to the Prime Minister that the agreement which he had made with Minister Deri had been invalid ab initio, he had stuck to his original stand while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the Attorney General.

As to the question of what is the legal norm applicable to the case before us, the decision lies clearly with the Attorney General. There is, therefore, no cause for enlarging on it. Only recently did Justice Barak explain what the proper legal norm is, in H.C. 6163/92 [16] and again in the Pinhasi case [15]. And also from the reasons contained in the judgment of my esteemed colleague, the President, the conclusion must be drawn that the law applicable to the continued tenure in office of Minister Deri is no different, if not even more apt.

Justice D. Levin:

I agree with the conclusions of the President and I am party to the main points in his legal analysis and to the approach taken towards the central matters at the focus of the proceedings before us, on the basis of which the required result is obvious and obligatory in the circumstances of the case.

However, I would like to add some comments on the subjects which were under discussion and which, in my opinion, call for further enlargement and emphasis.

(a) I agree that a member of the Knesset earns his status by virtue of the confidence placed in him by the voting public, which saw in him someone who faithfully represents its sentiments and viewpoints - either politically or because of his attitude to social and economic matters and his approach to matters of faith and culture. Once he has been elected by this particular public, then it is only natural that he should regard himself as being in duty bound to remain faithful to his electors. If, heaven forbid, he should disappoint them, if the confidence which they placed in him should be shattered, for any reason, then when the time comes he would have to face, politically, the judgment of the electors.

(b) The situation is different when an elected member of the Knesset takes upon himself, on behalf of the faction to which he belongs and which he represents, an official duty within the framework of the executive, as a member of the Government and a minister in charge of a government office, or as a deputy minister.

He then owes a duty of loyalty and a greater degree of responsibility to his electors, to the Knesset which gave him its confidence and to an even greater extent to the general public which he is called upon to serve faithfully.

For, whoever is given executive power by force of law will be found to influence by his acts, or, heaven forbid, by his omissions, for good or for bad, the rights of the general body of citizens and residents of the country. He is their trustee and he must behave towards all of them with fidelity, honesty and fairness and without discrimination. That is the challenge and he will be judged in accordance with how he meets it.

(c) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions and points of view, and to the political and social paths of the public which elected him and of the movement which regards him as its representative in the governmental set-up. But, in my opinion, when fulfilling his administrative function, as a minister or even as a deputy minister, as one in charge of a government office and directing its operation, then his political function must give precedence to his administrative function, which has its own rules of conduct.

When fulfilling this function he is subject to review by the High Court of Justice, when moved to do so. Within tile framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents, and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice.

If he sins against any of these principles then his political function should, generally, not serve as a defence. He would have to face the said review and, if the circumstances warrant it, be indicted and stand trial.

If that is the position in general, how much more so is it the case when, heaven forbid, a minister errs and becomes tainted with the stain of an offence against the law. The nature of the offence and of the circumstances in which it was committed could make the possibility of his continuing in office questionable.

I do not suggest that we lay down any hard and fast rules on this subject and decide in a sweeping manner when and how conclusions should be drawn. For, first and foremost, it is the political system which must react, within the framework of the proper political-democratic process. But there may be exceptional situations, such as the one before us, when our intervention is required in order to lay down specific, obligatory norms of behaviour.

(d) It seems to me, for example, that if, heaven forbid, an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy - such as, for example, if a minister is charged with accepting bribes, with fraud, with cheating state authorities, with lying or making false entries in documents - then it would not be proper or reasonable for him to continue in office.

I would think, if this should unfortunately occur, that it would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he is convinced of his own innocence and clean hands. He should allow the process of establishing the truth to be exhausted and await comprehensive clarification of the matter.

(e) If he does not do this then the Prime Minister must weigh up whether circumstances have not arisen which would demand the exercise of his power, under section 21A(a) of the Basic Law: The Government, to remove a minister from office. As this power is a discretionary one, the Prime Minister may exercise it but is not, on the face of it, in duty bound to do so.

When a demand that he exercise his discretion be brought, he can take into consideration parliamentary-political aspects, since, as already noted, a minister has a twofold function, both political and administrative. It is only natural and understandable, in my opinion, that the Prime Minister will seek to preserve his government and save it from collapsing. For the sake of ensuring so important and vital a need he can, on an appropriate occasion, forgive "irregularities" in the conduct or pronouncements of a minister, and even opposition to binding decisions of the Government, as all this would come within the confines of the minister's political function, which would be examined and criticised on the credibility plane before the Knesset and the voters.

This is not the case, in my opinion, when the question is one of a minister who sinned against integrity, and who committed offences involving ignominy, such as the examples given above, especially when the offences attributed to him were allegedly committed in the process of fulfilling his office. In such cases the credibility of the Government and its ministers in the eyes of the public must take precedence over any other consideration.

I dismiss out of hand the argument that for the sake of the survival of the Government and the coalition at its base, and because of the desire to further government policy, however important it may be, the implications of the presentation of the above indictment can be ignored, everyday proceedings can be continued, and the minister can be left in office as though nothing occurred.

(f) I think that in our case, too, the Prime Minister actually realised that if Minister Deri should be indicted on the charges being investigated when he was appointed, he would have to suspend himself, and that if he did not do so, he, the Prime Minister, would have to exercise his authority to suspend him.

I would like to assume that the Prime Minister saw this as an inevitable consequence, not only because he faced coalition pressure, but also because, as someone responsible for the existence of an enlightened regime, he thought, to the best of his conscience, that that was what he had to do.

I do not think that there is any difference, or that there should be any difference, from the normative aspect, between an indictment which has already been brought before a court and one which, at some stage, has only been presented to the Knesset Committee for purposes of lifting immunity.

(g) In the course of proceedings before us we heard from counsel for the fifth respondent (Shas), albeit in muted terms, that Minister Arye Deri had earned the confidence of his electors despite the lengthy police investigation conducted against him, and despite the suspicions which hovered above him. It can be assumed that this occurred because they honestly believed that the candidate whom they favoured was innocent, clean and pure of the suspicions against him.

One cannot know if they would have behaved similarly if, heaven forbid, the charge against him had been proved in a court of law or even if the indictment against him, containing allegations of serious offences, was pending in court.

But I do not see any importance in this and there is nothing in it to indicate anything, as this is not the main issue, the main issue being the need for our democratic and enlightened "camp" to remain pure and that persons tainted with corruption and crimes of the nature indicated above do not harm government morality.

It should be emphasised, in order to avoid any misunderstanding, that what I have said on this last subject is purely theoretical. There is nothing in what I have said which can, heaven forbid, establish facts and hand down judgment in the case of Minister Arye Deri, which must still be decided within the framework authorised to do so and be thoroughly cleared up, so that the factual truth may come to light.

As already stated, I concur with the conclusion suggested by the President in his judgment.

Justice E. Goldberg:

In contradistinction to public servants, to whom the State Service (Appointments) Law, 1959, applies, a minister and a deputy minister are not appointed to office only because of their skills, qualities and personal standards. Party and coalition interests are at the centre of their appointments, and the texture of public life is not affected by the appointment of a minister or deputy minister who is not exactly blessed with characteristics of the highest quality. The question is whether the confidence of the public in the government is harmed when a minister or deputy minister, against whom an indictment containing an offence involving ignominy has been framed, remains in office.

The answer to this question is not simple or unambiguous. For if we should say that in every such case the confidence of the public in government institutions would inevitably be harmed, we should also have to say that such harm would be caused when a member of the Knesset is found guilty of an offence involving ignominy and is sentenced to imprisonment. For such member of the Knesset would not only participate in legislation, and serve in a quasi-judicial capacity when considering the lifting of another Knesset member's immunity, but it is possible that he would also be a member of one of the Knesset committees, be it the Finance Committee, which deals with the public's money, or the Knesset Control Committee, whose task it is to fix norms of proper management, or any other committee, which deals with public matters of first importance. And, nevertheless, the legislature was not afraid that the public's confidence in the Knesset would be harmed because of this, and provided, in section 6 of the Basic Law: The Knesset, that every citizen is entitled to be elected to the Knesset save "if a court denies him this right by law, or if he is given a prison sentence of five years or more for an offence against the security of the State, as laid down in the Elections to the Knesset Law, and five years have not elapsed since the day he completed this sentence."

Is it not a fact that when a person elected by the public is the issue then the democratic principle takes precedence over any other public interest, even though a Knesset member also fulfills a public service and the Knesset is one of the authorities of the State.

As a minister and deputy minister fulfil political functions, as already stated, could it not be said, in a case where an indictment containing an offence involving ignominy is brought against one of them, that it is the "price of democracy" and that criticism of his appointment belongs to the Knesset, which can pass a vote of no-confidence in the Government for making an appointment which in its, the Knesset's, opinion is not proper.

Furthermore, would not our (the High Court's) intervention in such a matter be interference in "the composition" of the Government and upset the balance between the authorities? One cannot, therefore, deny the existence of a political aspect in the matter before us. But, on the other hand, this aspect must not be regarded as divorced from public administration. I am of the opinion that in any clash between the two aspects we cannot say that the public administration norm, which we have already held is applicable to a public servant (see H.C. 6163/92 [16]), will not apply at all, only because the functionary is a minister or deputy minister. Such a consequence would not only constitute a 'double standard", but would also mean the application of double and conflicting legal norms - one for the ordinary public servant and another for the politician who holds office - which is a violation of the principle of equality before the law.

The clash between the two aspects does not mean that the one must supersede the other. All that is required is that a balance should be found between them. This balance makes it obligatory that the court's intervention in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be in small measure, and that it be restricted to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office. In other words, our intervention would occur, save in such cases, only when the administrative authority, which has been given the discretionary power, departs, in the circumstances of the case, radically from reasonability by leaving the minister, or deputy minister, in office.

I am of the opinion that the seriousness of the circumstances, in the case before us, as is evident from the indictment, tips the scales and makes the removal from office of the minister obligatory. I therefore concur with the judgment of the President, on all counts.

Decided as held in the President's judgment.

Judgment handed down on 8.9.93.

* Edited by Prof. A. Enker

Full opinion:

Movement for Quality in Government in Israel v. State of Israel.pdf

The Movement for Quality Government in Israel v. The Prime Minister, Mr. Ariel Sharon

Case/docket number:

HCJ 1993/03

Date Decided:

Thursday, October 9, 2003

Decision Type:

Original

Topics:

Abstract:

Facts: The Prime Minister appointed respondent 3 to the position of Minister of Public Security. Petitioner asks that the High Court of Justice order the Prime Minister to refrain from making the appointment.

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

Voting Justices:

Rivlin, Eliezer

Primary Author

majority opinion

Mazza, Eliahu

Author

concurrence

Turkel, Jacob

Author

concurrence

Dorner, Dalia

Author

concurrence

Or, Theodor

Author

concurrence

Beinisch, Dorit

Author

dissent

Cheshin, Mishael

Author

dissent

Full text of the opinion:

HCJ 1993/03

The Movement for Quality Government in Israel

The Prime Minister, Mr. Ariel Sharon
The Attorney-General, Mr. Elyakim Rubenstein
The Minister for Public Security, Mr. Tzahi Hanegbi

The Supreme Court Sitting as the High Court of Justice

[October 9, 2003]

Before Vice-President T. Or, Justices E. Mazza, M. Cheshin, D. Dorner, J. Türkel, D. Beinish, and E. Rivlin

Objection to an order nisi.

Held: The Court, by majority vote, held that it would not intervene in the Prime Minister’s decision to appoint respondent 3 to the position of Minister of Public Security.

Basic Laws Cited:

Basic Law: The Government, 2001

Basic Law: The Government, 1992

Basic Law: The Government, 1968

Statutes Cited:

Police Ordinance (New Version), 1971, § 7

Criminal Register and Rehabilitation of Offenders Law, 1981, §§ 14, 16

Knesset Members Immunity Law (Rights and Duties), 1951

Israeli Supreme Court Cases Cited:

[1]HCJ 3846/91 Maoz v. The Attorney-General, IsrSC 46(5) 423

[2]HCJ 2534/97 MK Yona Yahav v. State Attorney, IsrSC 51(3) 1

[3]HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel, IsrSC 51(3) 46

[4]HCJ 2624/97, 2827/97, 2830/97Yedid Ronal, Adv. v. The Government of Israel, IsrSC 51(3) 71

[5]HCJ 4267/93, 4287/93 and 4634/93Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, IsrSC 47(5) 441

[6]HCJ 6163/92 Eisenberg v. Minister of Construction & Housing, IsrSC 47(2) 229

[7]HCJ 727/88 Awad v. The Minister of Religious Affairs, IsrSC 42(4) 487

[8]HCJ 5167/00 Weiss v. The Prime Minister of Israel, IsrSC 55(2) 455

[9]HCJ 325/85 MK Muhammad Miari v. Knesset Speaker Shlomo Hillel, IsrSC 39(3) 122

[10]HCJ 1843/93 Pinhasi v. Knesset Israel, IsrSC 49(1) 661

[11]428/86 Barzilai v. The Government of Israel, IsrSC 40(3) 505

[12]HCJ 73/85 Kach Faction v.The Knesset Speaker, IsrSC 39(3) 141

[13]HCJ 306/81 Platto-Sharon v. Knesset Committee, IsrSC 35(4) 118

[14]HCJ 403/71 Alcourdi v. The National Labor Court, IsrSC 26(2) 66

[15]HCJ 222/68 Chugim Le’umiyim Agudah Reshuma v. Police Minister, IsrSC 24(2) 141

[16]HCJ 758/88 Kendel v. The Minister of Internal Affairs, IsrSC 46(4) 505

[17]HCJ 9070/00 MK Livnat v. Chairman of the Constitution, Law and Justice Committee, IsrSC 55(4) 800

[18]HCJ 971/99 The Movement for Quality Government in Israel v. The Knesset Committee, IsrSC 56(6) 117

[19]HCJ 652/81 MK Yossi Sarid v. Knesset Speaker Menachem Svidor, IsrSC 36(2) 197

[20]HCJ 2136/95 Gutman v. Knesset Speaker Prof. Shevach Weiss, IsrSC 49(4) 845

[21]HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and Minister of Religious Affairs, IsrSC 47(5) 485

[22]HCJ 935/89 Uri Ganor, Adv. v. Attorney-General, IsrSC 44(2) 485

[23]HCJ 4140/95 Superpharm (Israel) Ltd. v. Customs and Excise Administration, IsrSC 54(1) 49

[24]HCJ 620/85 Miari v. Knesset Speaker Shlomo Hillel, IsrSC 41(4) 169

[25]CA 6821/93 United Mizrahi Bank v. Migdal Agricultural Cooperative, IsrSC 49(4) 221

[26]HCJ 3434/96 Dr. Menachem Hoffnung v. The Knesset Speaker, IsrSC 50(3) 57

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

[28]CA 492/73 Schpeizer v. Israeli Sports Betting Council, IsrSC 29(1) 22

[29]HCJ 162/72 Dr. Kinross v. The State of Israel, IsrSC 27(1) 238

[30]APP 7440/97, LCA 6172 State of Israel v. Golan, IsrSC 52(1) 1

[31]RAP 1088/86 Mahmud v. Local Council for the Planning and Construction of the Eastern Galilee, IsrSC 44(2) 417

[32]HCJ 98/54 Lazerovitz v. Food Inspector, Jerusalem, IsrSC 10 40

[33]HCJ 4769/90 Zidan v. The Minister of Labor and Social –Welfare, IsrSC 47(2) 147

[34]CA 184/80 Eigler v. Magen Insurance Company, IsrSC 35(3) 518

[35]HCJ 3687/00 Ashkenazi v. Prime Minister Ehud Barak, IsrSC (unreported decision)

[36]HCJ 6029/99 Jonathan Pollard v. Prime Minister and Defense Minister Ehud Barak, IsrSC 54(1) 241

[37]HCJ 4769/95 Ron Menachem v. The Minister of Transportation, IsrSC

[38]HCJ 561/75 Ashkenazi v. The Minister of Defense, IsrSC 30(3) 309

[39]HCJ 4354/92 Temple Mount Faithful v. The Prime Minister, IsrSC 47(1) 37

[40]HCJ 8666/99 Temple Mount Faithful Movement v. The Attorney-General, IsrSC 54(1) 199

[41]HCJ 46/00 Ayalon Jordan, Adv. v. The Prime Minister, (unreported decision)

[42]HCJ 6057/99 Victims of Terror Staff v. The Government of Israel (unreported decision)

[43]HCJ 7307/98 Pollack v. The Government of Israel (unreported decision)

[44]HCJ 2455/94 “B’tzedek” Organization v. The Government of Israel (unreported decision)

[45]HCJ 4877/93 Victims of Arab Terror v. State of Israel (unreported decision)

[46]HCJ 65/51 Jabotinsky v. The President of Israel 5 801

[47]3094/93 Movement for Quality in Government in Israel v. State of Israel, IsrSC 47(5) 404

[48]HCJ 194/93 MK Gonen Segev v. Minister of Foreign Affairs, IsrSC 49(5) 57

[49]HCJ 251/88 Wajia Udeh v. The Head of the Jaljulia Local Council, IsrSC 42(4) 837

[50]Dis.App. 4123/95 Or v. State of Israel – Civil Service Commissioner, IsrSC 49(5) 184

[51]HCJ 7367/97 The Movement for Quality Government in Israel v. Attorney-General, IsrSC 52(4) 547

[52]CA 6763/98 Ram Carmi v. State of Israel, IsrSC 55(1) 418

[53]HCJ 531/79 Likud Faction of Petah Tikva v. City Council of Petah Tikva, IsrSC 34(2) 566

[54]HCJ 244/86 Revivo v. The Head of the Ofakim Local Council, IsrSC 42(3) 183

[55]CA 6983/94 Shimon Pachima v. Michael Peretz, IsrSC 51(5) 829

[56]HCJ 7805/00 Roni Aloni v. Comptroller of the Jerusalem Municipality, IsrSC 57(4) 577

[57]HCJ 3975/95 Prof. Shmuel Caniel v. The Government of Israel, IsrSC 53(5) 459

[58]HCJ 4566/90 Dekel v. Minister of Finance, IsrSC 45(1) 28

[59]HCJ 6673/01 The Movement for Quality Government v. The Minister of Transportation, IsrSC 56(1) 799

[60]HCJ 142/70 Shapira v. Local Committee of Chamber of Advocates, IsrSC 25(1) 325

[61]HCJ 2671/98 Women’s Lobby v. The Minister of Labor and Welfare, IsrSC 52(3) 630

[62]HCJ 103/96 Pinchas Cohen, Adv. v. The Attorney-General, IsrSC 50(4) 309

[63]HCJ 7256/95 Fishler v. The Inspector General of the Israel Police, IsrSC 50(5) 1

[64]HCJ 2682/98 Appel v. The State Attorney, IsrSC 55(3) 134

[65]HCJ 4539/92 Kablero v. The Attorney-General, IsrSC 50(3) 50

[66]HCJ 442/71 Lanski v. Minister of the Interior, IsrSC 26(2) 337

[67]CA 5709/95 Ben-Shlomo v. Director of The Value Added Tax Authority, IsrSC 52(4) 241

[68]HCJ 164/97 Kontram Ltd. v. Ministry of Finance, IsrSC 52(1) 289

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

[70]HCJ 1227/98 Malevsky v. Minister of the Interior, IsrSC 52(4) 690

[71]HCJ 932/99 The Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments, IsrSC 53(3) 769

[72]HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon, IsrSC 56(2) 265

[73]HCJ 5795/97 MK Yossi Sarid v. Minister of Defense, IsrSC 51(4) 799

[74]HCJ 1635/90 Zersevsky v The Prime Minister, IsrSC 45(1) 749

[75]HCJ 5364/94 Velner v. Chairman of the Israeli Labor Party, IsrSC 49(1) 758

[76]CA 4012/96 Benny Shachaf Freights and Investments (1976) Ltd v. First International Bank of Israel, IsrSC 55(1) 492

[77]CA 3602/97 Income Tax and Property Tax Commissioner, Minister of Finance, State of Israel v. Daniel Shachar, IsrSC 56(2) 297

[78]HCJ 7279/98 MK Sarid v. The Government of Israel, IsrSC 55(1) 740

[79]HCJ 595/89 Shimon v. Appointee of Ministry of the Interior, Southern District, IsrSC 44(1) 409

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

[81]HCJ 288/00 Israel Union for Environmental Defense v. Minister of the Interior, IsrSC 55(5) 673

[82]CrimA State of Israel v. Zeguri, IsrSC 56(4) 401

[83]CrimA 6251/94 Ben-Ari v. State of Israel, IsrSC 49(3) 45

[84]HCJ 3679/94 National Association of Directors and Authorized Signatories of the First International Bank of Israel v. Tel Aviv-Jaffa District Labor Court, IsrSC 49(1) 573

[85]HCJ 279/60 Gil Theaters v. Ya’ari, IsrSC 15 673

[86]HCJ 6499/99 The National Religious Party v. Rabbi Shlomo Ben-Ezra, IsrSC 53(5) 606

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

[88]HCJ 320/96 Yael German v. The Municipal Council of Herzliya, IsrSC 52(2) 222

[89]CrimApp 8087/95 Za’ada v. The State of Israel, IsrSC 50(2) 133

[90]HCJ 3132/92 Mushlav v. The District Committee for Planning and Building, Northern District, IsrSC 47(3) 741

United States Cases:

[91]Marbury v. Madison

[92]Rostker v. Goldberg, 453 U.S. 57 (1981)

[93]INS v. Chadha, 462 U.S. 919 (1983)

Israeli Books Cited

[94]Aharon Barak, Interpretation in Law – Statutory Interpretation (1995)

[95]I Itzchak Zamir, Administrative Authority (1996)

[96]Aharon Barak, Interpretation in Law – Constitutional Interpretation (1995)

[97]II Amnon Rubinstein, Constitutional Law in the State of Israel 687 (5th ed. 1997)

Israeli Articles Cited:

[98]Aharon Barak, Judicial Review of the Constitutionality of Law, 3 Mishpat Umimshal 408 (1996)

[99]Aharon Barak, Judicial Review of Regulations , 21 HaPraklit 463 (1965)

[100]Itzchak Zamir, Law and Politics, in Klinghoffer, Public Law 209 (1993)

[101]Itzchak Zamir, Political Appointments, 20 Mishpatim 23 (1990)

[102]Avigdor Klagsbald, Public Duty, ‘Criminal Past’ and Administrative Evidence, 2 HaMishpat 93 (1995)

[103]Daphne Barak-Erez, The High Court of Justice as Attorney-General, 5(2) Plilim 219 (1997)

[104]Aharon Barak, On Power and Values in Israel, in I A Collection of Writings 382 (H. H. Cohen & Y. Zamir ed. 2000)

[105]Aharon Barak, Conflict of Interest in the Performance of Office, 10 Mishpatim 11 (1980)

[106]Itzchak Zamir, Ethics in Politics, 17 Mishpatim 255-58 (1988)

Foreign Books Cited:

[107]Glanville Williams, Criminal Law 22 (2d ed. 1961)

Jewish Law Sources Cited:

[108]Babylonian Talmud, Tractate Shabbat 114A

[109]Maimonides, Laws of the Sanhedrin, 10:1

[110]Exodus 31:2, 35:30

[111]Babylonian Talmud, Tractate Berakhot 55a

[112]Shulkhan Arukh, Choshen Hamishpat, 3:4

[113]Arukh Hashulkhan, Choshen Hamishpat, 3:8

[114]Ribash, Responsa 271

[115]Rabbi A.Y. Kook, Be’er Eliyahu

[116]Babylonian Talmud, Tractate Sanhedrin 7b

[117]Maimonides, Laws of Temple Vessels, 4:21

[118]Maimonides Reponsa, Chapter 111

[119]Shulkhan Arukh, Chosen Hamishpat, 53:25

[120]Zaken Abraham Responsa, Yoreh Deah, 30

JUDGMENT

Justice E. Rivlin

1. This petition was submitted by the Movement for Quality Government in Israel. Petitioner seeks to prevent the appointment of respondent 3, Mr. Tzahi Hanegbi, to the office of Minister of Public Security. Petitioner’s central assertion is that, because of his connection to four specific affairs, Hanegbi is unfit to serve in this capacity. The details of these affairs are described below.

The Facts and the Petition

2. The elections to the Sixteenth Knesset took place at the beginning of 2003. After the elections, respondent 1, in his capacity as Prime Minister, was charged by the President with the task of forming a new government. Respondent 1 decided to appoint respondent 3 as Minister of Public Security. Once the intentions of respondent 1 were made public, but before the new government had been sworn in, this petition was submitted. The petition asked that we order the Prime Minister not to appoint respondent 3. Petitioner further sought an interim order against this appointment.

The petition details several affairs in which respondent 3 was involved and which, it is asserted, make him unfit to serve as Minister of Public Security.

The first affair occurred in 1982. The affair culminated in the filing of an indictment against Hanegbi, who was subsequently convicted. At the time, Hanegbi was a student at the Hebrew University of Jerusalem and was involved in an altercation on campus. The Magistrate Court convicted Hanegbi of brawling in a public place, and imposed a suspended prison sentence and a fine.

The details of the second affair were described at length in HCJ 3846/91 Pinchas Maoz v. The Attorney-General [1], at 423. In 1982, Hanegbi, together with three others, filed a complaint with the police. The complaint alleged that several members of the Student Union and the International Israel Youth and Student Travel Company (ISTA) had carried out “the greatest fraud in the history of Israeli aviation.” After the police investigation, a number of people were criminally charged, including Pinchas Maoz, who had been serving as external legal advisor to ISTA. Maoz was subsequently acquitted by the Magistrate Court. Hanegbi had been a witness in the case and, according to the court’s opinion, “factual truth was not always a guiding light” in his testimony. The court noted that “the witness did not provide precise answers and avoided topics that did not square with his version of the events.” After this court case, Maoz and others attempted to have Hanegbi indicted for perjury, relaying misleading information, or presenting conflicting testimonies. The Attorney-General decided that the chance of conviction was too small to warrant an indictment. Similarly, this Court decided, “after a great deal of hesitation – literally by a hairsbreadth,” that it would not intervene in the decision of the Attorney-General.

The third affair concerns Hanegbi’s appointment of Roni Bar-On to the office of Attorney-General. At the time, Hanegbi was serving as Minister of Justice. It was alleged that Hanegbi had misled the Government and the Prime Minister about the opinion of the President of the Supreme Court regarding the appointment. The police recommended that Hanegbi be prosecuted for fraud and breach of trust. However, the Attorney-General decided to close the case for lack of evidence. A memorandum of the State Attorney’s Office criticized Hanegbi’s conduct and characterized it as “a deviation from acceptable standards of behavior.” The State Attorney’s Office, however, did not believe that Hanegbi’s actions amounted to a criminal offense. For a more extensive treatment of this affair and its ramifications, see HCJ 2534/97 MK Yona Yahav v. The State Attorney’s Office [2], at 1; HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [hereinafter – Bar-On [3]], at 46; HCJ 2624/97, 2827/97, and 2830/97 Yedid Ronal, Adv. v. The Government of Israel [4], at 71.

At this point it is important to mention that, in Bar-On [3], petitioner requested that Hanegbi be removed from his position as Minister of Justice. That petition made claims that are very similar to those asserted here. That petition was rejected, and we shall expand on the significance of that case and its ramifications for the current petition.

Finally, we come to the fourth affair, and the most important. It constitutes the chief addition to the facts already laid out in Bar-On [3]. The affair involved the actions of Hanegbi who, at the time, was serving as the head of the “Derech Tzleha” association. As in the previous affairs, here, too, a decision was made not to indict Hanegbi. The Attorney-General, however, saw fit to publish a “public report” on the issue detailing the findings of the police investigation. It described how, in 1994, Hanegbi and MK Avraham Burg prepared a private bill in the Knesset, entitled “The National Campaign Against Traffic Accidents Bill.” The purpose of the draft legislation was to improve road safety and, to further this goal, government body would be established to spearhead the campaign against traffic accidents. The bill was placed before the Knesset and passed a preliminary reading. It was then transferred to the Knesset Finance Committee for consideration. The Committee established a subcommittee, with Hanegbi at its head, with the task of preparing the bill for the next stages of legislation.

While he worked for the enactment of the National Campaign Against Traffic Accidents Bill, Hanegbi founded a non-profit organization called Derech Tzleha. At first he served as chairman of the organization, and later he became its director-general. He received a salary and benefits for his work. According to the police findings detailed in the report, “MK Hanegbi received from the organization, directly or indirectly, the vast majority of the sum [raised by the organization – amounting to approximately NIS 375,000] in the form of his salary, a company car, reimbursement of expenses, a cellular phone, as well as in the form of a notice of support which was published three days before the Likud primaries.” After his appointment to the office of Health Minister in 1996, Hanegbi resigned as director-general of the organization.

Hanegbi was examined by the Knesset Ethics Committee regarding his involvement in the Derech Tzleha affair. The Committee concluded that Hanegbi had placed himself in a situation involving a conflict of interests, and had benefited from work performed outside of his work at the Knesset. Hanegbi was censured by the Committee and his pay docked for two months.

3. Hanegbi’s actions in the Derech Tzleha affair were fully investigated by the police. The police recommended prosecuting Hanegbi for accepting a bribe, fraud, breach of trust, and other offenses. Even the State Attorney’s Office held initially that, while Hanegbi could not be indicted for accepting a bribe, he could be indicted for fraud and breach of trust, fraud and breach of trust by a corporation, obtaining by fraud, and falsifying corporate documents. A hearing was held and, following a chain of events not relevant to this case, the Attorney-General decided that, lack of evidence, and in line with the opinion of the State Attorney, no indictment could be filed against Hanegbi. In the report, the Attorney-General summarized his opinion:

In summary, we believed that the circumstances warranted an investigation, and we even considered filing an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied.

The Attorney-General became aware of Hanegbi’s possible appointment to the post of Minister of Public Security. At this point, he presented his opinion to the Prime Minister:

Although according to statute and judicial precedent there appears to be no legal impediment to the appointment, the appointment itself is prima facie problematic from a civic perspective.

Despite the Attorney-General’s counsel, the Prime Minister decided to follow through with Hanegbi’s appointment to the office of Minister of Public Security. It should be noted that, during his previous term as Prime Minister, after the elections to the Fifteenth Knesset, Sharon had resolved not to appoint Hanegbi to serve as a minister in any office responsible for law enforcement. This was in accordance with “advice mainly from a civic perspective,” which he had received from the Attorney-General.

4. Petitioner asserts that, in all of the above affairs, as well as in other situations of lesser significance, Hanegbi fell afoul of the law and of ethical principles. It is true that, aside from the brawling affair in 1982, Hanegbi was never actually served with an indictment. However, petitioner believes that Hanegbi’s involvement in each of the above affairs, certainly when these are viewed in aggregate, makes the Prime Minister’s decision to appoint him to the office of Minister of Public Security unreasonable in the extreme. In this context, it is necessary to give added weight to the decision of the Ethics Committee regarding Hanegbi and the reports published by the State Attorney’s Office and the Attorney-General regarding the role Hanegbi played in the Bar-On and Derech Tzleha affairs. Petitioner argues that the facts that emerge from all the above affairs establish grounds for intervening in the decision of the Prime Minister in keeping with the “rule of administrative evidence.” In relation to Hanegbi’s appointment to the position of Minister of Public Security, the provisions of criminal law are not the only parameter. Petitioner further argues that Hanegbi’s appointment would damage the effectiveness of the police and its public image.

Petitioner further argued that Hanegbi was investigated on more than one occasion by the police, who recommended that he be served with an indictment. This being the case, petitioner alleges, it is reasonable to expect that “innumerable situations involving a conflict of interest will arise should Hanegbi serve in that capacity.” In particular, a conflict of interest would undoubtedly arise in considerations of promotion for any police officers responsible for investigating him in the past, or when setting budgets for various divisions of the police.

5. Respondents, by contrast, are of the opinion that there are no grounds for interfering with the Prime Minister’s decision to appoint Hanegbi to the office of Minister of Public Security. The Prime Minister acted within the parameters of his authority, and the affairs raised by petitioner do not establish that his decision was unreasonable in the extreme. The Prime Minister, they point out, diligently weighed all of the pertinent issues. He considered Hanegbi’s professional abilities, his vast experience, his suitability for the job, as well as the view of the Attorney-General concerning the appointment. The Prime Minister also took into account parliamentary and political factors relating to the formation of the government. Respondents argued that the balance struck by the Prime Minister among these various considerations does not deviate from the decisions of this Court.

Respondents emphasize the wide “range of reasonableness” afforded by the courts to a decision of the Prime Minister in a case of this sort. They point out that, as opposed to earlier cases where this Court did order the Prime Minister to remove a minister or deputy-minister from office, in our case no indictment has been filed against Hanegbi since 1982. With regards to the Derech Tzleha affair, as with the other affairs in Bar-On [3], the case was closed for lack of evidence. Therefore, Respondent 3 is presumed innocent until proven guilty. In any event, there is no justification for arriving at a conclusion different than the one reached by the Court in Bar-On [3]. This is especially pertinent in light of the fact that the current version of Basic Law: The Government, as opposed to the previous version of that law, contains an explicit provision for terminating the office of a minister convicted of an offense involving moral turpitude. The respondents further point out that the decision to appoint Hanegbi as Minister of Public Security was approved by a vote of confidence in the Knesset.

Regarding the petitioner’s concerns that the appointment will raise a conflict of interest concerning the police officers who investigated him, Hanegbi stresses that he bears no grudge against those officers. Respondents maintain that there are no conflicting interests whatsoever. It cannot be claimed that the hypothetical fear of negative sentiments between Hanegbi and his investigators warrants intervention in a decision of the Prime Minister. Furthermore, Israel Police is an autonomous body, and the decisions of the minister regarding the appointment of senior officers are subject to the rules of administrative law.

The petition asks us to order the Prime Minister not to appoint respondent 3 to the office of Minister of Public Security. Petitioner requested an injunction to prevent Hanegbi from serving in this capacity. This was rejected. The petition concentrates on his eligibility for such appointment. However, since Hanegbi has been serving in this function for some time now, the petition actually focuses on whether he should continue to hold the office. There is a difference between appointment and termination of office. However, this difference is in fact irrelevant when examining the Prime Minister’s discretion, as we shall explain. See also HCJ 4267/93, 4287/93 and 4634/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel [hereinafter – Pinhasi], [5] at 469.

On March 10, 2003, a panel of three judges heard the parties’ arguments and an order nisi was issued against the Prime Minister. On August 11, 2003 we decided to expand the panel hearing the case, and final arguments were heard by the expanded bench on August 26, 2003.

In my opinion, the petition should be denied.

The Normative Framework

6. The Government is composed of a Prime Minister and other ministers – section 5(a) of Basic Law: The Government. Section 7(a) of the Basic Law sets down that:

When a new Government has to be constituted, the President of the State shall, after consultation with representatives of party groups in the Knesset, assign the task of forming a Government to a Knesset Member who has notified him that he is prepared to accept the task.

Once the Government has been formed, it presents itself to the Knesset, announces the basic lines of its policy, its composition and the distribution of functions among the ministers, and asks for a vote of confidence from the Knesset. After the vote of confidence, the Government has been formed, and the ministers assume office. Section 13(d) of the Basic Law. The Knesset Member who formed the Government becomes its head. Section 13(c) of the Basic Law.

We see from here that the task of forming the Government is assigned by the President to the Knesset Member who is the designated Prime Minister. We further see that the Government is formed once the Knesset approves it.

The Basic Law adds that the Government may appoint an additional minister. The Government must notify the Knesset of this and, upon receiving the approval of the Knesset, the additional minister assumes office. Section 15 of the Basic Law. The Prime Minister is further authorized to remove a minister from his post, as stated in section 22(b) of the Basic Law:

The Prime Minister may, after notifying the Government of his intention to do so, remove a minister from his post.

7. Section 6 of the Basic Law lists a number of criteria for ministers to be considered fit to hold office. These include:

(c)(1) A person who was convicted of an offense and sentenced to imprisonment, and seven years have not yet passed since the day on which he finished serving his term of imprisonment or since the handing down of his sentence – whichever was later, shall not be appointed minister, unless the Chairman of the Central Elections Committee rules that the circumstances of the offense do not involve moral turpitude.

(2) The Chairman of the Central Elections Committee shall not so rule if a court has determined that the offense involved moral turpitude.

Likewise, we find in section 23(b):

Should a minister be convicted by a court, it shall state in its verdict whether the offense involves moral turpitude; should the court so state, the minister’s tenure shall cease on the date of such verdict.

We find a similar provision for the service of a deputy-minister in section 27 of the Basic Law. It should be noted that section 16(b) of the 1992 version of the Basic Law: The Government, provided that:

A person convicted of an offense involving moral turpitude, and ten years not having passed since the date on which he finished serving his period of imprisonment, may not be appointed as a minister.

However, the 1992 Basic Law contained no provision requiring the removal of a minister convicted of an offense involving moral turpitude.

A careful examination of the provisions of the Basic Law reveals, therefore, that the Prime Minister is given the principal authority in the formation of the Government. He has the responsibility of choosing the Government’s ministers, of adding ministers and removing them. Nonetheless, the ministers assume their offices only after an expression of confidence in the Government. A conviction may prevent the appointment of a minister, or his continuation in office, as per sections 6(c) and 23(b) of the Basic Law, as detailed above.

Returning to the case at hand, no one disputes that none of the criteria that would render Hanegbi unfit for office, set out in sections 6(c) and 23(b), have been met. These criteria, as we have seen, deal with a person who has been convicted of a crime. Hanegbi, however, was never convicted – or even indicted – except for the brawling affair in 1982. This affair does not constitute an impediment to assuming office according to the Basic Law. As such no issue of authority or “statutory eligibility” is at stake here. The only issue is Prime Ministerial discretion: Was there a flaw in the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security which warrants the intervention of this Court? On this question this Court has previously ruled:

We must distinguish between questions of competence, (or authority), and questions of discretion. The absence of an express statutory provision regarding the fitness of someone with a criminal past establishes the candidate’s competence. However, it does not preclude the possibility of considering his past within the framework of exercising the administrative discretion given to the authority making the appointment. Indeed, the criminal past of a candidate for public office is a relevant consideration, which the authority making the appointment is entitled and even obligated to take into account before making the appointment.

See HCJ 6163/92 Eisenberg v. Minister of Construction & Housing [6], at 256-57.

8. As such, even though there is no legal impediment to the appointment of Hanegbi as Minister of Public Security, this alone does not render superfluous the need to examine the Prime Minister’s discretion to choose Hanegbi. “Fitness is one issue; discretion quite another.” See Pinhasi [5], at 457; see also HCJ 727/88 Awad v. The Minister of Religious Affairs [7], at 491, and HCJ 5167/00 Weiss v. The Prime Minister of Israel [8], at 477. Nevertheless, it is appropriate to note that the criteria for eligibility laid down by the legislature are not irrelevant to the discretion granted to the Prime Minister. The more we depart from the statutory criteria, the more difficult it will be to find justification for interfering with the Prime Minister’s discretion. Indeed, the legislature has established that it is specifically the conviction of a minister of an offense involving moral turpitude which renders him unfit to continue in office. It would not be a simple matter, therefore, for the Court to rule that the minister should also be rendered unfit in situations where he was acquitted of wrongdoing, or when it was even decided not to indict him. We shall return to this point later.

The petition calls for an examination of the Prime Minister’s judgment in appointing Hanegbi to the position of Minister of Public Security. However, before undertaking this examination, we must first delineate the criteria for judicial review of such decisions.

Judicial Review

9. All organs of government are subject to judicial review. See HCJ 325/85 MK Muhammad Miari v. Knesset Speaker Shlomo Hillel [9], at 127-28. The power of judicial review over decisions of the Knesset, the Government, and the other governing institutions is the cornerstone of a democracy which upholds the rule of law. It reflects the formal rule of law, meaning that all of the organs of government are subordinate to the law. It also means that everything is subject to judicial review, which is intended to guarantee that the law is kept. See HCJ 1843/93 Pinhasi v. Knesset Israel [10], at 698. The law governs all matters. “The reach of Government is high, but the law reaches higher than all.” 428/86 Barzilai v. The Government of Israel [11], at 585. The rule of law prevails, not the rule of man. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) [91]. The rule of law requires us to balance the diverse values, principles, and interests of a democratic society. The government is empowered to exercise its discretion in a manner that ensures a just balance of the appropriate considerations. See Eisenberg [6].

This perception of the purpose of judicial review is reflected in the ideal relationship between the three branches of government. Each branch is separate and enjoys freedom to fulfill its role. However, each branch is also framed by – and subordinate to – the constitution and the law.

The function of the judicial branch is to ensure that none of the other branches overstep their bounds, and that they act in accordance with the normative provisions by which they are bound.

See HCJ 1843/93, [10] at 699; HCJ 73/85 Kach Faction v.The Knesset Speaker [12], at 141.

The doctrine of the separation of powers does not imply that each branch may act as it wishes. Separation of powers means that each branch is independent in dealing with its own affairs, so long as it operates within the bounds of its authority.

Aharon Barak, Judicial Review of the Constitutionality of Law, 3 Mishpat Umimshal 408 (1996) [98]. See also II Aharon Barak, Interpretation in Law: Constitutional Interpretation 256-57 (1993) [96]; HCJ 306/81 Platto-Sharon v. Knesset Committee [13], at 141. The Court’s power to review other government bodies is a corollary of the fact that it is the branch responsible for the interpretation of the law, see Kach [12], at 152.

All of these principles – the rule of law, the separation of powers, the checks and balances that accompany this separation, the power of judicial review, and the other mechanisms of democracy – form the central pillars of a democratic society. They constitute the essential conditions for the preservation of human rights. They form the nucleus of any democratic society that strives to promote human welfare.

In light of the above, it has been stated on more than one occasion that this Court is charged with overseeing the legality and reasonableness of the activities of the State. See HCJ 403/71 Alcourdi v. The National Labor Court [14], at 72. The Court’s powers of judgment and judicial review of government authorities constitute “an integral part of a truly democratic society, and anyone undermining this is liable to topple one of the pillars of the state.” HCJ 222/68 Chugim Le’umiyim Agudah Reshuma v. Police Minister [15], at 172. This is because:

Absolutism, however benevolent, is the enemy of freedom. We are free people, and one who is born free or knows freedom will subjugate himself neither to another person nor to an absolute opinion.

See HCJ 758/88 Kendel v. The Minister of Internal Affairs [16], at 528 (Cheshin, J).

10. At the same time, care must be taken to distinguish between the power of the Court to exercise judicial review over other branches of the government – a power which, as stated above, is extremely broad in nature – and the Court’s readiness to interfere with the decisions of the other branches within the spheres of their authority. The question of the actual existence of judicial review is separate from the issue of when judicial review should be exercised. See Miari [9], at 128; HCJ 9070/00 MK Livnat v. Chairman of the Constitution, Law and Justice Committee [17], at 809. This Court has adopted different principles in a variety of cases pertaining to the judicial review of actions and decisions of government authorities. The common denominator among these principles is an attempt to exhibit judicial self-restraint. Among these principles we may specify the “range of reasonableness,” the “presumption of suitability,” the “presumption of lawfulness,” the principle that the Court will not overrule the discretion of one branch of government, and the limits set by administrative law. These principles are not mere lip service to the limitations on judicial review. Rather, they are an indivisible and necessary part of it. Their application depends on the type of body under review and the power that has been exercised.

11. To be sure, the decision whether to exercise judicial review will depend on an examination of the authority being reviewed. See Livnat [17], at 809. To this end one must take into account the status of the body in question, its position in the system of government, the extent and nature of the powers granted to it, whether the body was elected or appointed, and other similar factors. Thus, for example, when the Court proceeds to review decisions of the Knesset, it takes into account the special status of this body, and acts with the required caution and self-restraint necessitated by this status. After all, the Knesset is the elected body of the State. It is elected by the citizens of the State, and it has the power to legislate laws and enact a constitution for the State. See HCJ 971/99 The Movement for Quality Government in Israel v. The Knesset Committee [18], at 548; and HCJ 652/81 MK Yossi Sarid v. Knesset Speaker Menachem Svidor [19], at 197.

The special status of the Knesset, as set forth in the Basic Laws and in the structure of our democracy, requires that the Court exercise its discretion in performing judicial review of its actions with caution and self-restraint.

See Livnat [17], at 809. See also 2136/95 Gutman v. Knesset Speaker Prof. Shevach Weiss [20], at 851. Similar sentiments have been voiced regarding decisions of the Government:

The status of the Government as the executive branch of the State is special, for it executes the will of the State, as provided in section 1 of Basic Law: The Government.

See HCJ 3872/93 Mitrael Ltd. v. The Prime Minister and Minister of Religious Affairs [21], at 497.

12. The criteria for the exercise of judicial review are derived not only from the identity of the body subject to review. They are also derived from the character of the decision under scrutiny. See Livnat [17], at 809. The nature of the power which was or was not exercised is especially significant for setting the limits of judicial review. See Sarid [19], at 201. In one case, Justice Zamir expanded on this:

The question of whether an administrative decision is unreasonable in the extreme depends on the limits of the range of reasonableness. This delineates the extent to which the administrative authority may employ its discretion for the purpose of making decisions. The range of reasonableness of every administrative authority depends on the nature of its power, the language and purpose of its authorizing law, the identity of the authorized body, the issue addressed by the power, and whether the power is exercised mainly on the basis of factual considerations, policy considerations, or professional criteria, such as medical or engineering evaluations. The range of reasonableness varies according to these factors: it may widen or narrow depending on the circumstances.

Bar-On [3], at 57. Similar sentiments were expressed by Vice-President (then Justice) Or:

The range of reasonableness delineates the area within which the decisions of an authority are reasonable, meaning that there are no grounds for the intervention of the Court. Yet this area is not uniform in all cases. It may change in accordance with the circumstances of the specific case. It is derived from the nature of the subject being judged. It is derived from the nature of the relevant values in any given matter.

See Yahav [2], at 28.

In other words, the “range of reasonableness” is influenced by the “bounds of deference.” Reasonableness is a normative concept. It may be defined as the identification of the relevant considerations and the balance which is struck between these considerations according to their weight. See HCJ 935/89 Uri Ganor, Adv. v. Attorney-General [22], at 513. When reviewing an act of the executive branch, the Court determines whether a reasonable authority would have been permitted to act in a similar manner. Often enough there is more than one decision which a reasonable authority could make. In these circumstances, the authority may act within the “range of reasonableness.” Any decision that comes within the range of reasonableness will not be subject to the Court’s intervention. The Court may only intervene in those decisions which deviate in an extreme manner from the range of reasonableness. Ganor [22], at 514.

Deference, by contrast, is an institutional concept. Deference means that, in examining decisions of other authorities acting within the boundaries of their authority, the Court will not evaluate the wisdom of these decisions or overrule their discretion. The Court does not regard itself as a supra-governing body. See 1843/93 [10], at 499; see also Rostker v. Goldberg, 453 U.S. 57, 68 (1981) [92]; INS v. Chadha, 462 U.S. 919, 944 (1983) [93]. This Court recognizes the fact that:

The Knesset and the Government were elected by the public. They were allocated certain areas within which they are empowered to act in the name of the public. The Court recognizes that these areas were allocated to the Knesset and the Government, and not to the Court. It is also cognizant of the fact that in these areas preference was given to the Knesset and the Government over the Court. The body entrusted with the promulgation of laws is the Knesset. Likewise, the authority to determine social and economic policies, as well as the authority to execute laws, was given to the Government. The underlying principles of democracy, among them the separation of powers, require that the Court not trespass the boundaries of the Knesset and the Government.

See I Itzchak Zamir, Administrative Authority 89-90 (1996) [95].

13. Judicial review thus requires striking a balance between respecting decisions of government authorities within their area of power and the need to preserve the rule of law and protect human rights. This is one of the axioms of democracy. This balance is not static, but changes according to the character of the power under discussion.

While the Court has determined that it holds the power to scrutinize the legality of the decisions of the Knesset, it has itself curtailed this power: It does not intervene in the decisions of the Knesset, even when these run contrary to law, unless they are capable of harming the fabric of parliamentary life or the foundations of the constitution. Likewise, the Court is generally reluctant to substitute its own discretion for the discretion of the Government or any other administrative authority. For the most part, the Court refrains from intervening in matters of policy. This includes not only foreign policy, but also social and economic policy. Only in extreme circumstances is the Court willing to invalidate administrative decisions due to a lack of reasonableness.

See [95], at 90. See also HCJ 4140/95 Superpharm (Israel) Ltd. v. Customs and Excise Administration [23], at 69.

Based on the above, this Court held, in HCJ 971/99 [18] that, in determining the character of judicial review, a thorough analysis of the act of government under review should be undertaken. In that judgment we dealt with the judicial review of Knesset decisions. We defined three broad categories of decisions: completed acts of legislation; intra-parliamentary processes; and quasi-judicial decisions. The Court held that, when dealing with quasi-judicial activity of the Knesset, its judicial review will be “ordinary.” In such situations, the Knesset does not differ from any other quasi-judicial body. See HCJ 1843/93, [10] at 701; HCJ 652/81, [19] at 202; HCJ 620/85 Miari v. Knesset Speaker Shlomo Hillel [24], at 195. In quasi-judicial decisions, the Knesset is involved neither in “political” activity nor in its own internal legislative processes, and the need to preserve the basic fairness of the parliamentary process prevails.

The situation is different when we review intra-parliamentary processes of the Knesset – decisions affecting the Knesset’s own internal guidelines and working procedures. Judicial review may be exercised here only with caution. A balance must be struck between the rule of law, which requires every political entity to respect the law, and the principle that the internal workings of the Knesset are its own affairs, that “belong to the legislative authority under the separation of powers doctrine.” See Sarid [19], at 202-03. Therefore, the Court will intervene in such decisions only where significant harm is caused to the fabric of parliamentary life and the foundations of the constitution. HCJ 652/81 [19] at 204; HCJ 1843/93, [10], at 700.

In reviewing the constitutionality of a law passed by the Knesset, however, additional principles also come into play. Ordinary legislation must respect those human rights enshrined in the Basic Laws, and may not violate these except according to the guidelines of those Basic Laws. Legislation will be presumed to be constitutional; this is a consequence of the requirement not to blur the boundaries between the authorities. See CA 6821/93 United Mizrahi Bank v. Migdal Agricultural Cooperative, [25] at 574. This presumption of constitutionality, however, does not apply to the issue of whether a law that does infringe a constitutional right fulfills the requirements of the Limitations Clause. See Aharon Barak, Interpretation in Law – Constitutional Interpretation (1995) [96]. This Court must respect the law, as an expression of the will of the people. Therefore, before this Court strikes down a law, it must thoroughly scrutinize its language as well as its purpose. It must be stringent and must be completely convinced that the law is irreparably flawed. See HCJ 3434/96 Dr. Menachem Hoffnung v. The Knesset Speaker [26], at 57. This Court will only strike down a law in a clear case of significant damage to fundamental rights or values. See HCJ 7111/95 The Center for Local Government v. The Knesset [27], at 485.

Therefore, when reviewing the decisions of other government authorities, this Court takes into account the status and function of the body under review, along with the character of its decision. These, in turn, influence how we exercise judicial review and the criteria that guide it. Our statements in HCJ 971/99 [18] regarding the Knesset and its committees can also be applied to decisions of the executive branch and the Prime Minister.

14. Judicial Review of Decisions of the Government and the Prime Minister

Any government is subject to judicial review… Therefore the Court must ask itself – when reviewing the reasonableness and proportionality of the government’s decisions – whether the decision is one that a reasonable government would be permitted to make. The Court should not ask itself what decision it would have made had it been in the government’s place.

See Weiss [8], at 470.

We review decisions of the government and the Prime Minister, just as we review decisions of any other administrative body.

The government’s discretion, like the discretion of any minister within the government or any other authority, is constrained by legal guidelines, and the Court is charged with upholding these guidelines. Among other things, the government must exercise its authority based on relevant considerations, not on external factors. These must fall within the range of reasonableness and proportionality.

Id, at 477-78. Any authority may at some point make a decision which is not reasonable or is not in line with administrative law. The government is no exception. See CA 492/73 Schpeizer v. Israeli Sports Betting Council [28], at 22, 26.

Much authority is vested in the hands of the government. The exercise of its powers is examined by the Court, pursuant to the principles of administrative and public law. As with the legislature, here too the extent of our review depends both on the status of the body under review as well as on the character of the decision being scrutinized.

With regard to the status of the body under review: This Court must be mindful of the status of the government. This is especially true when speaking of the “core” meaning of the term “government” – “government in the sense of ‘Cabinet,’ or group of ministers; the body that is responsible for defining the policy of the executive branch.” See II Amnon Rubinstein, Constitutional Law in the State of Israel 687 (5th ed. 1997) [97]. The government is the executive arm of the State. See section 1 of Basic Law: The Government. In examining the discretion of the government, the Prime Minister, and other ministers, this Court must consider their status at the highest tier of the executive branch. See Mitrael [21], at 497; HCJ 162/72 Dr. Kinross v. The State of Israel [29], at 238. Similarly, this Court must delve deeply into the nature of the action or decision under judicial review. The bounds of the “range of reasonableness” regarding decisions of the government or any of its members widen or narrow depending on the type of the power exercised. See APP 7440/97, LCA 6172 State of Israel v. Golan [30], at 17-18. Indeed, at the outset of any judicial review of decisions or actions of the government, this Court adjusts its sights according to the act. Hence, in certain contexts, the power of judicial review is exercised with great caution.

Thus, for example, all governmental acts enjoy a presumption of legality, see RAP 1088/86 Mahmud v. Local Council for the Planning and Construction of the Eastern Galilee [31], at 417. This assumption applies with even greater force to regulations. See HCJ 98/54 Lazerovitz v. Food Inspector, Jerusalem [32], at 48; compare Aharon Barak, Judicial Review of Regulations , 21 HaPraklit 463 (1965) [99]. The courts have developed different principles for review.

The purpose of these principles, at the heart of judicial policy, is to protect the constitutional standards laid down by an administrative authority. Their purpose is also to protect the expectations of the general public which created these standards.

See HCJ 4769/90 Zidan v. The Minister of Labor and Social –Welfare [33], at 171-2.

The Court will not rush to strike down regulations as unreasonable, and will not usurp the place of another authority. Therefore, this Court will strike down regulations only if they are found to be totally unreasonable. Id. See also CA 184/80 Eigler v. Magen Insurance Company [34], at 523; Kinross [29].

On another level, when this Court examines the working methods of the government and its committees, it must act similar to when it reviews the Knesset’s intra-parliamentary processes. Regarding the working methods of the government, see section 31(e) and (f) of the Basic Law. See also Rubinstein, [99] at 720-24. This being an internal matter of the government, and in light of the political implications that the issue may have, this Court only exercises judicial review with the utmost caution.

15. Such caution is also employed when dealing with basic matters of policy. The Court is not accustomed to intervening in “patently political matters.” See HCJ 3687/00 Ashkenazi v. Prime Minister Ehud Barak [35], at 1040. The Court is not a part of the government, and it will not manage its affairs. See HCJ 6029/99 Jonathan Pollard v. Prime Minister and Defense Minister Ehud Barak [36], at 241. This is especially true concerning the power of the government to manage foreign policy and the security of the State.

The strength of the government’s authority, and the nature of the issue at hand – foreign relations and security, war and peace – imply that the judiciary must grant the government wide latitude in such areas. Within that range the Court will not substitute the government’s discretion with its own.

See Weiss [8], at 471-72.

With respect to decisions on political matters, or decisions pertaining to economic policy, the Court will intervene only in very exceptional circumstances. For the most part it will leave these matters to the political arena.

The choice between different policies is a matter for the government, and policy is clearly the Knesset’s domain. A choice which falls within the range of reasonableness is not a matter for the Court .

See Weiss [8]. Therefore,

The Court will not instruct the Prime Minister or the members of his government to adopt a policy of privatization or nationalization. A matter that lies within the government’s power is a matter for the government and its ministers to decide, not for the Court.

Id. See HCJ 4769/95 Ron Menachem v. The Minister of Transportation [37], at 235; HCJ 561/75 Ashkenazi v. The Minister of Defense [38], at 309; HCJ 4354/92 Temple Mount Faithful v. The Prime Minister [39], at 37; HCJ 8666/99 Temple Mount Faithful Movement v. The Attorney-General [40], at 199; HCJ 46/00 Ayalon Jordan, Adv. v. The Prime Minister [41], at 5; HCJ 6057/99 Victims of Terror Staff v. The Government of Israel [42], at 284; HCJ 7307/98 Pollack v. The Government of Israel [43], at 424; HCJ 2455/94 “B’tzedek” Organization v. The Government of Israel [44], at 292; HCJ 4877/93 Victims of Arab Terror v. State of Israel [45], at 257; Itzchak Zamir, “Law and Politics,” in Klinghoffer’s work on Public Law 209 (1993) [100].

16. This brings us to another matter, where this Court has only limited powers of intervention. I refer to the formation of a government. This includes the building of a coalition, the appointment of ministers and deputy-ministers, the addition and removal of ministers, the distribution of tasks among the ministers, the transfer of power from one minister to another, the consolidation, division, termination and formation of ministries, and the transfer of responsibilities from one ministry to another. See section 31 of the Basic Law. Compare HCJ 65/51 Jabotinsky v. The President of Israel [46], at 814 (Smoira, J.). We will focus on one of these powers – the power of the Prime Minister to choose ministers and assign them roles.

Judicial Review of Decisions Relating to the Formation of the Government

17. The discretion of the Prime Minister regarding the appointment of a minister is certainly subject to the review of this Court. This applies to any kind of appointment. In terms of the fundamental power of judicial review, the selection of a minister is no different from any decision made by the Prime Minister, or any other minister or public authority. All these decisions are examined in light of the principles of administrative law. It should be noted that:

Not only the exercise of authority in unreasonable circumstances, but also the failure to exercise a discretionary power due to unreasonable considerations, can lead to the conclusion that the decision is invalid.

See 3094/93 Movement for Quality in Government in Israel v. State of Israel [hereinafter: Deri [47]], at 419-20. Therefore, both the Prime Minister’s decision to appoint a person and his decision not to remove one from office are subject to the accepted standards of reasonableness, integrity, proportionality, good faith, and the absence of arbitrariness or discrimination.

The importance of judicial review in this context stems from the fact that the Prime Minister’s decision that a particular individual shall serve in a particular position, or that one person shall replace another, may have a large influence both on the functioning of a public authority and the public’s confidence in that authority. With respect to the latter, it has already been held that:

The key to the existence of a public service worthy of the title is the public’s confidence in its integrity… Public confidence is the backbone of public authorities, and it enables them to fulfill their function.

See Eisenberg [6], at 261 (Barak, P.); see also Itzchak Zamir, Political Appointments, 20 Mishpatim 23 (1990) [101]. It was therefore held that:

The appointment of a person with a criminal past – especially a serious criminal past, such as a person who committed an offense involving moral turpitude – harms the essential interests of the public service. It undermines its proper functioning. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the confidence that the general public has for the organs of government.

See Eisenberg [6], at 261. It is therefore clear that a person’s criminal past is an important consideration concerning his suitability for public office. Eisenberg [6] addressed the government’s decision to appoint Yosef Ginosar as director-general of the Ministry of Construction & Housing, despite his involvement in the “Bus 300” and Nafso affairs. The judgment referred to the trustee status of public authorities, and their duty to consider the criminal past of a potential public servant.

A public authority is a trustee and it has a duty to consider the criminal past of a candidate before making an appointment. The appointment of a public servant with a criminal past affects the functioning of a public authority and the attitude of the public to it. It has both direct and indirect ramifications on the public’s confidence in the authority. The authority making the appointment must take these considerations into account … A public authority does not run like a business, and it has a duty of trust to the public. It may employ workers with a criminal past, and the consideration of rehabilitating the criminal should be taken into account. Nonetheless, it is not the only consideration. The public authority must review an intricate and complex array of considerations, including the consideration relating to the effect of the appointment on the civil service and the public’s confidence in it.

Id. at 258 (Barak, P). In another case, which dealt with the appointment of Itamar Rabinovitz as Israeli ambassador to the United States, the Court ruled:

A criminal past does not disqualify the candidate. It merely influences the decision of the appointing authority. See HCJ 727/88 Awad v. Minister of Religious Affairs [7], at 491. When exercising its discretion, the appointing authority – the Prime Minister in the present case – must take into account a host of factors. Assuming that the candidate is fit for the post in all other respects, the appointing authority must also give weight to the criminal past of the candidate.

The weight given to a criminal past is not set in stone. It varies according to the nature of the criminal past and its circumstances on the one hand, and the nature of the office and its essential objectives on the other. When the different considerations point in different directions, balance must be sought according to the basic axioms of Israeli law… Sometimes the case is a borderline one. The criminal past is weighed against all the other considerations. In such cases, any decision made by the appointing authority is legitimate, and this Court will not substitute the discretion of the public authority with its own.

See HCJ 194/93 MK Gonen Segev v. Minister of Foreign Affairs [48], at 61-62.

18. The same applies when considering the candidacy of an publicly elected official for the office of minister or deputy-minister. There, too, the Prime Minister is entitled – and at times even required – to take into account the candidate’s involvement in criminal proceedings. This was noted in Pinhasi [5]:

We accept that an elected public official is not the same as a civil servant. The elected official is chosen by the people and is subject to their evaluation. The civil servant is chosen by the people’s representatives and is subject to their evaluation. However, this does not mean that the elected official is accountable to the voter alone and is not bound by the law. The opinion of the voters does not influence the evaluation of the courts, and it is unable to change this evaluation. The very fact that he is chosen by the people requires him to act in a more exacting and ethical manner than a ‘regular’ civil servant. Someone elected by the people must be a model citizen. He must be accountable to the public and deserving of the trust the people place in him. Therefore, when a government authority is granted the power to terminate an office, it must exercise this power where the official undermines the public’s trust in the authority. This applies whether the official is elected – as in a Member of Knesset serving as a deputy-minister – or is a public servant who may be dismissed by a minister.

Id. at 470 (Barak, P). Therefore:

The differentiation between an elected official and a public servant, though important, does not grant the elected official immunity against the termination of his tenure if he is suspected of committing serious crimes.

Id. at 472. The efficient functioning of the government, the integrity of its members, and the confidence of the public in them, are all cornerstones of Israel’s system of governance.

In an enlightened democratic society, public officials, who are elected by the people and enjoy the confidence of the people, are required to conform to a high standard of ethical behavior – both on the personal and public planes – to enable them to continue to serve in office.

See HCJ 251/88 Wajia Udeh v. The Head of the Jaljulia Local Council [49], at 839. These fundamental concepts also received expression in the words of President Shamgar, regarding the objectives of the version of the Basic Law: The Government which was current at that time, which granted the Prime Minister the power to remove a minister from office.

The provisions of the said law are also intended to facilitate a proper response – through removal from office – to a serious affair in which the minister was involved. This applies when the incident, being an act or a failure to act, has ramifications for the status of the government or the public’s perception of it. It also applies if the affair undermines the government’s ability to lead and serve as an example, or its ability to instill fitting modes of conduct. Most importantly, the provisions apply when the affair has ramifications for the public’s trust in the system of governance and law, its values, and the duties which the average citizen must fulfill as a result.

See Deri [47], at 404.

The powers granted to the Prime Minister to appoint and dismiss ministers thus serve to improve the government’s image and functioning, and public confidence in it. A radical deviation from the range of reasonableness in the exercise or non-exercise of these powers constitutes grounds for judicial intervention.

19. There is no doubt that the range of reasonableness afforded to Prime Minister when determining the composition of his government is very wide. This is due both to the status of the Prime Minister as head of the executive branch and the nature of the power with which we are dealing. The wide leeway afforded to the Prime Minister in this regard is a direct result of the lack of legal principles which are effective tools in the administration of the executive branches in the modern state.

The power of the Prime Minister to determine the composition of his government is a:

[S]pecial type of power, due to both the Prime Minister’s role in the formation of the government and to the political character of the government. It encompasses a vast array of considerations and spans a wide range of reasonableness.

Bar-On [3] at 58 (Zamir, J.). After all, who could be better placed than the Prime Minister to divide up the appointments in the government he is forming? Who other than the Prime Minister could take into account all the delicate balances and differing needs of forming a government? Who other than the Prime Minister could weigh all the parliamentary, political, and factional considerations which are an inextricable part of the process? On the last question, it has been remarked:

Parliamentary and political considerations may be legitimate under certain circumstances, though they must be examined as part of a proper balance of the other considerations.

Deri [47], at 423 (Shamgar, P). To these words, Justice Levin added:

When the Prime Minister is required to exercise his discretion [regarding the dismissal of a minister – E.R.], he may consider parliamentary and political aspects. As stated above, the function of a minister is both political and administrative. I consider it natural and self-evident that the Prime Minister will seek to preserve his government from disintegration. For the sake of this vital aim he may, in an appropriate case, overlook ‘deviations’ in the conduct of his ministers, such as outbursts against the binding decisions of the government and even antagonism towards such decisions. These things are a function of politics whose credibility is examined by the Knesset and the voter.

Id. at 427. In the same case it was noted:

As distinct from civil servants, who are subject to the State Service Law (Appointments), 1959, ministers and deputy-ministers are not appointed solely on the basis of their abilities, talents and personal qualities. Rather, party and coalition interests are at the basis of these appointments. The structure of public life is not weakened by the appointment of a minister or deputy-minister who is not endowed with especially superior character traits, or who is not appropriate for the position.

Id. at 428 (Goldberg, J). In a similar vein:

The discretion granted in the Basic Law: The Government regarding the dismissal of a deputy-minister is extremely wide. Among other considerations, the authority holder is permitted, and even obligated, to consider the deputy-minister’s performance and success in the job. “Political” considerations, which may be invalid in other contexts, are appropriate reasons for dismissing a deputy-minister. The need to form a coalition and to guarantee the continuing confidence of the Knesset is certainly a pertinent consideration.

See Pinhasi [5], at 463 (Barak, P).

20. The Prime Minister is thus empowered with the authority to form the government. This is the law, as evidenced clearly by sections 7, 13 and 22 of the Basic Law, and it is also the natural state of affairs. The power to appoint and dismiss ministers is a discretionary one. This discretion is wide, as it encompasses a host of considerations and a significant political dimension. It is regarding such discretion that the Court recognizes a wide “range of deference.”

Accordingly, the Court must set itself a narrow range of intervention regarding the Prime Minister’s decisions on the formation of his government, and exercise its powers of judicial review with caution.

The balance necessitates that this Court’s intervention in the discretion of those authorized to remove a minister or deputy-minister from office should be sparing and limited to those situations where the gravity of the offense cannot be reconciled with his continued service.

See Deri [47], at 429 (Goldberg, J.). This is how the appropriateness of intervention should be decided. The Prime Minister’s discretion, so long as there is no radical deviation from the standard of reasonableness, should not be scrutinized by the Court. The public should examine the Prime Minister’s discretion using the means available to it in a democratic society, as should the Knesset, via the powers granted it by law. Justice Zamir noted this in Bar-On [3]:

The section which grants the Prime Minister the power to remove a minister from office is intended mainly to prevent “corruption” in the government. For this purpose the law has afforded the Prime Minister discretion so wide that any decision to dismiss a minister whose conduct has deviated from the norm will fall, generally speaking, within the range of reasonableness. The Court will not intervene in such a decision. Similarly, the Prime Minister’s decision not to remove a minister from office will also generally fall within the range of reasonableness. In such cases the Court will also not intervene in this decision. Both of these decisions were entrusted by law to the Prime Minister, and not to the Court. The Prime Minister will be held accountable for his decision by the Knesset and by the public, and they may respond, should they so desire, via avenues which the law opens to them.

Id. at 59-60.

It should be emphasized that appointments of government ministers must be approved by the Knesset, as provided in section 13(d) of the Basic Law. This states that:

The government is constituted when the Knesset has expressed confidence in it, and the ministers shall then assume office.

The fact that every minister’s appointment has received parliamentary approval should not be discounted.

Improper Conduct of a Minister

21. We stated above that the range of prime ministerial discretion with regard to the formation of a government is wide. In contrast, the place for judicial intervention in this discretion is narrow. Nevertheless, the Court’s powers of intervention in a decision of the Prime Minister to appoint or dismiss a minister whose conduct has been improper are not limited to a case where the minister has actually been convicted of an offense. Nor are they limited to cases where an indictment was filed against the minister or where he was the subject of a police investigation. The Court has held:

The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case may be so serious that it would be extremely unreasonable to permit him to continue his tenure. This could apply even in cases when no criminal offense was actually committed.

Bar-On [3], at 64. However, it is clear that a conviction of a serious crime cannot be compared to a conviction of a minor crime. It is also clear that being convicted is not the same as being indicted, and being indicted is not the same as being investigated by the police. Finally, none of these are comparable to situations in which it is found that no grounds exist for prosecuting an individual, or where the actions attributed to that individual are within public ethical norms. The balance between the various considerations depends on the severity of the acts attributed to the candidate, and whether the suspicion is sufficient to warrant a charge or conviction. As was noted in Eisenberg [6]:

Someone who committed an offense in his childhood cannot be compared with someone who committed an offense as an adult; someone who committed one offense cannot be compared with someone who committed many offenses; someone who committed a minor offense cannot be compared with someone who committed a serious offense; someone who committed an offense in mitigating circumstances cannot be compared with someone who committed an offense in aggravating circumstances; someone who committed an offense and expressed regret cannot be compared with someone who committed an offense and did not express any regret for it; someone who committed a ‘technical’ offense cannot be compared with someone who committed an offense involving moral turpitude; someone who committed an offense many years ago cannot be compared with someone who committed an offense only recently; someone who committed an offense in order to further his own agenda cannot be compared with someone who committed an offense in the service of the State.

Id. at 261 (Barak, P.). In the two cases where this Court determined that the Prime Minister had an obligation to dismiss a minister or deputy-minister, an indictment alleging serious crimes had been filed against that minister or deputy-minister. Thus, in Deri [47], it was determined that the Prime Minister’s failure to remove Arye Deri from the post of Minister of the Interior constituted extreme unreasonableness. An indictment had in fact been filed against Deri, accusing him of corruption which was “extremely severe.” In that case, the Court noted that a guilty verdict had not yet been handed down against Deri.

An indictment is not a judgment. It only reflects the prima facie evidence collated by the prosecution. However, as far as continued office in the government is concerned, even the prima facie evidence collated in the indictment, which has now become public knowledge, is of significance. There are circumstances which are significant in terms of the reasonableness [of continuing office], not just a conclusive judicial ruling but also the nature of the actions attributed to someone, since they wear the official dress of an accusation ready for presentation to the court.

[I]f a minister who is charged with receiving hundreds of thousands of shekels in bribes, and other forms of abuse of public office, continues to serve in the government, this could have serious ramifications for the image of government in Israel, and for its good faith and integrity. This has a direct effect on the question of reasonableness pursuant to the provisions of law.

Id. at 422-23. Justice Levin commented on this issue:

There are situations in which, due to the nature of the offense and the circumstances in which it was committed, it must be asked whether [the minister] should continue serving in his position.

I do not suggest that we lay down any hard and fast rules on this subject and decide in a sweeping manner when and how conclusions should be drawn. For, first and foremost, it is the political system which must react, within the framework of the proper political-democratic process. But there may be exceptional situations, such as the one before us, when our intervention is required, in order to lay down specific standards of conduct.

It seems to me, for example, that if, heaven forbid, an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offenses ignominious in nature and circumstance – such as, purely for illustration purposes, if a minister is charged with accepting bribes, with fraud, with cheating state authorities, with lying or with making falsifying documents – then it would not be proper or reasonable for him to continue in office.

Id. at 426-27.

22. The Pinhasi case [5] also concerned the continuation of tenure of a deputy-minister who was indicted for allegedly making false entries in corporate documents, false testimony, and an attempt to receive goods by fraud. The Court related to the impact of an indictment upon the discretion of the Prime Minister:

Clearly a public servant who has been convicted of an offense is not the same as one who has only been indicted. The difference is expressed in the weight to be attached to considerations of public confidence, but not in the actual requirement to take such a consideration into account.

Id. at 462 (Barak, P). Furthermore:

Weight must be attached to the consideration of the public’s confidence in the public authorities when a public servant is convicted or confesses to the deeds attributed to him. But this differs from the weight attached when the issue is merely the filing of an indictment in a case where the accused insists on his innocence. Nonetheless, this should not be the deciding consideration. The issue at hand concerns the act of termination of office by the government authority. No criminal conviction is necessary to substantiate this act. The pressumption of innocence granted to every accused does not prevent the termination of tenure of a government official. The only condition is that the government authority making the decision must have evidence which, in light of the circumstances, is such that “any reasonable person would see its probative value and would rely on it.”

Id. at 467-68. Indeed, in that case, it was determined that the offenses allegedly committed by the deputy-minister indicated a “moral defect” in his conduct. Therefore, it was held, the offenses could be classified as “offenses of moral turpitude in the particular circumstances.” In light of this, it was concluded that for the deputy-minister to continue in his tenure, after being charged with such serious offenses, would harm both the respect that the citizen feels towards the government and the public’s confidence in the government authorities. The government’s paradigm of leadership would be undermined, and the credibility of the deputy-minister would be significantly damaged. The Court therefore determined that the only reasonable recourse was to terminate the deputy-minister’s tenure. Id. at 469. See also Avigdor Klagsbald, Public Duty, ‘Criminal Past’ and Administrative Evidence, 2 HaMishpat 93 (1995) [102].

The conclusion which follows from all this is that, even though an indictment carries less weight than a conviction, indictment for a serious offense may obligate the Prime Minister to dismiss a minister or deputy-minister. Deri and Pinhasi show that the existence of an indictment alleging serious offenses, based on prima facie evidence, is sufficient to harm the public’s trust and the integrity of the public service and, as such, necessitates the dismissal of the minister or deputy-minister.

23. What, therefore, would the law be in those cases in which no indictment was filed? This Court could be required to review the Prime Minister’s discretion concerning the tenure of an individual guilty of unacceptable, but not criminal, conduct. Before us we have a case in which the law enforcement authorities have decided not to press charges against a minister due to the lack of a reasonable chance of a conviction. To the best of their professional knowledge, the defendant would be acquitted in court if there was an indictment. In such cases, I am of the opinion that it would require truly extreme and exceptional circumstances in order for the Court to obligate the Prime Minister to refrain from making an appointment or to terminate one.

It is worth pointing out here that, as we have already detailed, the Basic Law: The Government outlines, in subsections 6(c) and 23(b), the concerning the appointment and dismissal of a minister. These sections explicitly provide the ramifications of a minister’s conviction of an offense. The Deri and Pinhasi cases also set out the law governing the termination of tenure. When those cases were decided, the 1997 version of the Basic Law, which contained no provision requiring the dismissal of a minister convicted of a crime involving moral turpitude, was in effect. The Court, in making these rulings, acted without recourse to any of the statutory criteria which now exist. Sections 6(c) and 23(b) of the Basic Law of 2001 pertain to the fitness of a minister to serve. As we have seen, these sections do not rule out judicial review of the Prime Minister’s discretion even in cases that do not fall within the categories mentioned. Therefore, the precedents of Deri and Pinhasi still stand.

In this manner, the court has created a fine balance between the obligation of deference which applies to situations such as these, and the other considerations with which this Court is charged. However, the further we depart from the statutory criteria of fitness, the harder it will be, according to the existing law, to regard the appointment of a minister, or the non-termination of his tenure, as an extreme deviation from the range of reasonableness. The loss inherent to expanding the limits of the precedents set by this Court is liable to be greater than the gain.

24. In examining the Prime Minister’s discretion to appoint a minister who was investigated but not indicted, we need not look far for a precedent. Respondent 3, Mr. Tzahi Hanegbi, was himself the subject of a ruling of this Court approximately six years ago, in Bar-On [3]. At that time, the same petitioner requested that we order the Prime Minister to dismiss Hanegbi from the post of Minister of Justice. As explained above, Hanegbi’s name was at that time linked to three out of the four affairs which petitioner brings against him today, namely: the “brawling affair” of 1982; the ISTA affair, which lasted from 1982 to 1992; and the Bar-On affair of 1997. No one argues that there is any material difference between the Ministry of Justice, which Hanegbi led during Bar-On [3], and the Ministry of Public Security, which he now heads. Therefore we can shed light on the case at hand using the previous ruling.

In Bar-On [3] this Court determined that:

There never was and never will be a situation in which a sullied reputation is enough to obligate the Prime Minister by law to remove a minister from his position.

Id. at 57 (Zamir, J.). The Court further expounded:

There is no doubt that it is legitimate to demonstrate disapproval of a minister’s conduct if it diverges from the standards of what is right and proper. The public expects that every minister, as a leader of the public, shall set an example of proper conduct. This applies even more to the public’s expectations of the Minister of Justice.

Id. at 59 (Zamir, J.). As emphasized by Justice Zamir, the power to appoint ministers belongs to the Prime Minister and it is an undeniably broad power. The Prime Minister may decide to dismiss a minister whose conduct diverges from acceptable standards, or he may decide to retain such a minister. Both decisions will generally be within the range of reasonableness.

The responsibility for either of these decisions was entrusted by the law to the Prime Minister, and not to the Court. The Prime Minister is held accountable for his decisions by the Knesset and by the public, and these bodies may respond, if they so desire, using the means provided by law.

Id. at 60. Moreover:

The Court may refrain from intervening in the Prime Minister’s decision on whether or not to remove a minister on account of unacceptable conduct. However, by so doing the Court does not imply that the Prime Minister’s decision is correct and appropriate, any more than it implies that the minister’s conduct itself is appropriate. The Court merely affirms that the Prime Minister’s decision and the minister’s conduct have not broken the law. It does not mean that they are not unethical. It is certainly possible that were the Court in the Prime Minister’s shoes, it would made a different decision, and it is also possible that the Court does not approve of the minister’s conduct. However, the ethical responsibility for the administrative authority, as well as the responsibility for its efficiency and wisdom, as distinct from its legal responsibility, is not entrusted to the Court.

Id. at 61 (Zamir, J.). Furthermore:

The court system aspires, by means of legislation and precedent, to raise the ethical standards of society, and also improve the conduct of the public administration. This is its purpose. It is a worthwhile purpose and one it performs well. It has succeeded in promoting values and inculcating the standards of a civilized society.

However, the law cannot and should not replace ethics – except to a limited extent, on a case-by-case basis, in a controlled and cautious manner…

The same applies regarding the conduct of publicly elected officials. The law does not respond to the conduct of elected public officials except in very serious situations, where unethical conduct is likely to become illegal conduct…

The Court’s decision that a minister or deputy-minister is unfit for service creates tension between the law and the democratic system. The law is built, to a large extent, on values, whereas democracy is built, first and foremost, on representation… The Court is required to achieve a balance between these two interests.

Id. at 62-63. In a different context Justice Zamir emphasized:

The Court must also take into account the fact that every so often the public desires to be represented by an individual who is known not to be of sterling character.

See Dis.App. 4123/95 Or v. State of Israel – Civil Service Commissioner [50], at 190.

25. Similar sentiments were expressed by Justice Dorner, in a separate case concerning the eligibility of MK Pinhasi to serve as chairman of the Knesset Committee. Pinhasi had been convicted of crimes involving moral turpitude. Justice Dorner pointed out that:

It is indeed legitimate for there to be a review of the reasons why respondent, who has been convicted of crimes involving moral turpitude, was elected chairman of a committee which possesses quasi-judicial powers.

It is possible that this choice carries an undesirable message. But this is a matter of taste, which is given over to the discretion of the Knesset Committee. And when the time comes this discretion will be subject to the public’s approval.

See HCJ 7367/97 The Movement for Quality Government in Israel v. Attorney-General [51], at 557-58. It was also noted:

The issue is not whether the Knesset Committee’s decision to appoint MK Pinhasi as its chairman was a good one or not. This is a matter of rights and obligations, authorities and powers. It is true that the Knesset Committee’s decision sent shockwaves beyond the realm of the Knesset; but these shockwaves are still too weak to require the exercise of power in the judicial realm.

Id. at 562-63 (Cheshin, J).

26. It is clearly no simple matter for the law to deal with conduct that is improper but not illegal. It is even more of a stretch to impose an obligation on the Prime Minister, on grounds of reasonableness, to remove a minister accused of such conduct from office. As Justice Zamir pointed out in Bar-On [3], the balance that must be struck is substantive and not mechanical in nature. Therefore, we must not ignore the possibility – albeit a remote one in my eyes – that even conduct of a minister or deputy-minister that does not amount to a criminal offense, can obligate the Prime Minister to remove him from office. However, in order for this Court to rule in this manner, the conduct of this minister must be

[S]o extremely severe as to be extremely unreasonable to permit him to continue in office.

Id. at 63-64. In order for the Court to conclude that it must order the Prime Minister to remove a minister from office, despite the fact that the latter has not been convicted or even indicted, the circumstances must be exceptional and extreme.

There exists a vast difference between an extreme situation like this, which forms an exception to the law, and a broad ruling which would render unfit any minister or deputy-minister whose conduct deviates from acceptable standards. The proposal to expand the existing ruling so that such conduct would obligate the Prime Minister to dismiss the minister or deputy-minister, even though it has good intentions, is not appropriate. It is likely to do more harm than good.

Id. And in the same case, it was also noted:

Only in the most extreme cases would the Court require the Prime Minister to exercise his power [to remove a minister from his position]. These cases would involve the existence of administrative evidence of serious criminal offenses. Such a situation would constitute a serious risk to public confidence in the government authorities. To this might also be added cases of extreme deviation from the integrity required of individuals in the high office of minister.

Id. at 68 (Or, V.P.).

Do Tzahi Hanegbi’s actions constitute such extreme circumstances?

Hanegbi’s Actions

27. I have repeated dicta from Bar-On [3] concerning the Prime Minister’s decision to retain Hanegbi as Minister of Justice. I did so because I believe that there is no alternative other than to reach a similar conclusion in the case at hand.

As stated above, four affairs have been cited to discredit Hanegbi. The brawling affair resulted in Hanegbi’s conviction in 1982 for brawling in a public place, for which he received a suspended prison sentence and a fine. There is no doubt that for our purposes this is a trivial and ancient affair. The events at the basis of the “ISTA affair” also occurred more than twenty years ago, and culminated in the Attorney-General’s decision not to prosecute Hanegbi. The Court did not see fit to intervene in this decision. See Maoz [1], at 423. With regard to these two affairs, the words of President Barak in Eisenberg [6] are enlightening:

The lapse of time between the offense and the proposed appointment is an important factor. The more years that have passed, the weaker the link between the person and his crime. His appointment to public office will therefore not harm its functioning and the public’s confidence in him and the civil service. Indeed, a criminal past, even with regard to a serious offense, is not an absolute bar to appointment to public office. This applies even to a senior position. Time heals wounds. The candidate is rehabilitated. The “enlightened public” will no longer feel that his appointment harms the integrity of the service and its ability to function, but rather [that his disqualification is] a vindictive and inappropriate execution of “judgment.” In such circumstances, there can be no basis for regarding the appointment of such a candidate to public office as unreasonable. The period of time that must pass between the crime and serving the sentence and the appointment varies according to the circumstances.

Id. at 267. The third affair, the Bar-On affair, also did not culminate in an indictment against Hanegbi, due to lack of evidence. The State Attorney’s Office published its opinion, in which it condemned Hanegbi’s behavior, calling it “a deviation from the accepted standards of conduct.” Nonetheless, it concluded that such conduct did not amount to a criminal offense.

The point is that all three affairs were presented to the Court in Bar-On [3]. Yet the Court concluded that there was no reason to intervene in the Prime Minister’s decision not to remove Hanegbi from the office of Minister of Justice.

28. This leaves us with the fourth affair, the “Derech Tzleha” affair. We should recall that Hanegbi faced a Knesset Ethics Committee hearing on this matter, and as a result he was censured and his pay docked for two months. In terms of the criminal investigation, it was decided not to prosecute Hanegbi since the Attorney-General believed that there was no reasonable chance of a conviction, not even for breach of trust. In his report, the Attorney-General revealed that:

The scenario did, in our opinion, justify an inquiry, and we even considered that grounds existed for an indictment. However, there had to be a reasonable likelihood of a conviction, which, with the completion of the file, was ultimately not the case.

It should also be noted that the Derech Tzleha investigation of Hanegbi took place while he was still Minister of Justice. For our purposes, the major differences between then and now are the final decision not to prosecute Hanegbi and the passage of time since the affair.

Under these circumstances, I believe that there is no justification whatsoever for differing from the conclusions of Bar-On [3]. It is true that the Derech Tzleha affair occurred since then, but this affair, like the Bar-On affair, did not culminate in an indictment. It may therefore be stated that the only thing that has changed since the ruling on Bar-On [3], is that once again the decision was made not to indict Hanegbi. This fact alone, based on the previous judgment concerning Hanegbi, is not sufficient to render a candidate unfit to serve as a minister. It seems to me, therefore, that if we are to follow the course charted by this Court – not so long ago and in a case pertaining to Hanegbi himself – in this case we must not intervene in the Prime Minister’s decision.

The Derech Tzleha affair concluded with a “public report” published by the Attorney-General. The question must be asked: How else should the conclusions of the public report be acted upon, if not through the voter’s discretion in casting his vote, and the Prime Minister’s discretion to appoint the members of his government? The Derech Tzleha affair did not culminate in an indictment. It is therefore fitting that Hanegbi’s involvement in it should be resolved on the political level.

In any event, this affair does not constitute the necessary “extreme and exceptional circumstances” which would obligate the Court to intervene and order the Prime Minister to remove the minister. It should be emphasized that we do not turn a blind eye to the affairs in which Hanegbi has been involved. Not everything that we have seen pleases us. However, we must always remember that the public is also watching. Hanegbi’s actions, and the Prime Minister’s decisions regarding these, are under public scrutiny. The public will ultimately have its say about all it has seen.

29. Petitioner alleges that the cumulative force of these affairs is enough to push the Prime Minister’s decision regarding Hanegbi outside the range of reasonableness. This claim raises the question – what is this “cumulative force” which can topple the appointment of a minister? The cumulative force of the brawling affair, the ISTA affair and the Bar-On affair was not enough to render Hanegbi unfit to serve as Minister of Justice. Why then, when the weight of the Derech Tzleha affair is added, are the scales tipped towards the invalidation of Hanegbi’s appointment as Minister of Public Security? No one can claim that this fine line is clearly demarcated. And it is apparent that in such cases we should aspire to find a guiding line. This line should, on the one hand, be flexible and enable a substantive examination of cases which arise in the future. On the other hand, its criteria must be as clear as possible, so that they may be applied in the future and acted upon accordingly. It is wrong to send a message which is unclear. Rather we ought to strive for a general precedent which will pave the way for future rulings. Therefore, we must be fully convinced that the situation requires the candidate be disqualified in order to interfere with the Prime Minister’s power to appoint ministers. The Court is not required to give its stamp of approval to the appointment of every public official who has behaved improperly or is suspected of such conduct. Nor is the candidate required to seek this approval before assuming the office designated by the Prime Minister.

30. It is noteworthy that the circumstances of Hanegbi’s involvement in the Derech Tzleha affair, as well as the Attorney-General’s opinion regarding his appointment as a minister, were brought to the Prime Minister’s attention after the elections for the Fifteenth Knesset. At that time the Prime Minister accepted the Attorney-General’s counsel – “counsel which was mainly from a civic perspective” – and refrained from appointing Hanegbi as a minister in any ministry responsible for law enforcement. After the elections for the Sixteenth Knesset, the Attorney-General once again offered his opinion to the Prime Minister. He stated that even though there existed no legal impediment to the appointment of Hanegbi as Minister of Public Security, from a civic perspective, “the appointment itself is prima facie problematic.” After weighing all the considerations, the Prime Minister did decide to appoint Hanegbi to that office, and the reasons for his decision are detailed in his affidavit. The Prime Minister believed that Hanegbi had a number of points in his favor, including natural talents, vast knowledge and experience amassed during many years in senior public and state positions, and professional accomplishments. Additionally, the Prime Minister believed that Hanegbi’s personal philosophy and the nature of the position, besides the political and coalition considerations, made him the preferred candidate for Minister of Public Security.

The Prime Minister explained that he considered the various affairs to which Hanegbi’s name was linked, as well as allegations of the danger of a conflict of interest were Hanegbi to serve as Minister of Public Security. According to his affidavit, the Prime Minister also considered the Attorney-General’s position regarding the prima facie problem with the appointment. According to the Attorney-General, this problem remains from a civic perspective. Compare Daphne Barak-Erez, The High Court of Justice as Attorney-General, 5(2) Plilim 219 (1997) [103]. According to the Prime Minister, the scales were ultimately tipped in favor of appointing Hanegbi as Minister of Public Security. The appointment was then approved by the Knesset, as provided in section 13(d) of Basic Law: The Government.

31. It is true, of course, that that the Court’s scales could have tipped the other way. The weight attached by the Court to the various considerations taken into account by the Prime Minister could have been different. But this Court is not a “supra-prime minister.” It is not for the Court to decide those matters which the Prime Minister is authorized to decide. The Court will not substitute its own discretion for that of the authorized power. The Court will not ask itself whether it would have acted in the same manner if the power were in its hands. The Court does not scrutinize the wisdom of the other government authorities, only the legality of their actions. See also Aharon Barak, On Power and Values in Israel, in I A Collection of Writings 382 (H. H. Cohen & Y. Zamir ed. 2000) [104]. When the Court examines the reasonableness of the Prime Minister’s decisions regarding the formation of his government, it recognizes that only in exceptional and rare cases should the Prime Minister’s discretion be replaced by that of the Court. The case at hand does not fall into that category.

32. Petitioner focuses on two reasons why Hanegbi should be dismissed: first, the possible damage to public confidence as a result of his appointment as minister in charge of public security and the police; and second, the risk of a conflict of interest in performing certain duties of the minister. With regard to the first reason, this is not enough to constitute grounds for intervention in the Prime Minister’s decision. We related to this above, and we would only add here that petitioner takes issue specifically with Hanegbi’s appointment as Minister of Public Security. As far as this line of reasoning is concerned, there is nothing to stop Hanegbi from being appointed as a minister in a different ministry – except, perhaps, the Ministry of Justice. This position raises a difficulty. It is hard to imagine that an individual whose appointment as Minister of Public Security would cause such severe damage to the public’s trust that we must strike down the Prime Minister’s decision to appoint him, would be able to head another ministry – such as the Ministry of Education or the Finance Ministry. It is difficult to accept that an individual who is so patently unfit to serve in a ministry responsible for law enforcement could, without any hindrance, serve in a ministry entrusted with the state’s foreign policy or its security.

We thus come to the second part of this petition, the concern regarding a conflict of interest. We shall assume that petitioner’s only claim against Hanegbi’s appointment specifically as Minister of Public Security is the fear of a conflict of interest in context of the minister’s role. Petitioner takes issue with Hanegbi’s ability to function as Minister of Public Security in light of his drastic change in status – from being interrogated by the police to leading the police as Minister of Public Security. Petitioner is of the opinion that ill will may remain between Hanegbi and those who investigated him. This being the case, the appointment of Hanegbi as overseer of his investigators may do irreparable harm to the functioning of the police, along with the public’s faith in it. Petitioner raises the possibility of a conflict of interest if and when the minister exercises his power regarding senior appointments in the Investigations Branch, as pursuant to section 7 of the Police Ordinance (New Version), 1971.

33. We would first state that respondents have raised doubts as to whether petitioner’s claim actually constitutes a conflict of interest. Indeed, this category is usually reserved for cases in which an individual has been entrusted with a certain interest, and there exists a substantial possibility of conflict between this interest and another. This could be either a proprietary or personal interest of his own, or another interest with which he has been entrusted. See CA 6763/98 Ram Carmi v. State of Israel [52], at 427-28; HCJ 531/79 Likud Faction of Petah Tikva v. City Council of Petah Tikva [53], at 566; Aharon Barak, Conflict of interest in the Performance of Office, 10 Mishpatim 11 (1980) [105].

The principle regarding conflicts of interest, as interpreted by the courts, prohibits a public servant from being in a situation of conflict between a government interest and a personal interest, or between two different government interests. See HCJ 244/86 Revivo v. The Head of the Ofakim Local Council [54], at 183. Apparently, in our case, petitioner’s allegation does not relate to an interest in conflict with the minister’s public duty. Rather, it relates to the possibility that Hanegbi may harbor a grudge against his investigators. Such feelings might influence decisions made by him concerning those investigators.

It should be made clear that the prohibition against conflicts of interest is intended to prevent decisions which are influenced by conflicting interests:

The fundamental purpose of the prohibition of conflict of interest is to guarantee public duty’s are fulfilled out of relevant considerations of the public good alone, and not out of outside influences and considerations. It also aims to ensure that the public’s confidence in the public authority is not damaged because the latter’s actions are liable to be influenced by outside considerations.

CA 6983/94 Shimon Pachima v. Michael Peretz [55], at 835. The following explains the reasoning behind the rule concerning conflicting interests:

First of all, there is a pragmatic reason. The public servant who has been entrusted with a certain power is required to exercise that power after reviewing all relevant considerations – and only these considerations. When the public servant is put into a situation of a conflict of interest, there is a concern that he may also take into account the conflicting interest when exercising his power. This may result in an improper use of the power. The law is designed to prevent this risk. Secondly, there is a matter of values. The existence of an orderly, fair and responsible public service requires the public’s faith that decisions taken by civil servants are germane and honest. A civil servant found in a situation of conflicting interests damages the public’s faith in the system of governance. The public begins to suspect that outside considerations are influencing civil servants and his faith in the system of governance is shaken. The law is designed to prevent this.

See Likud [53] at 571. It is clear that there exists a link between a conflict of interests and outside considerations.

When a public official is involved in a conflict of interest, the concern is raised that outside considerations may be guiding him. These outside considerations are likely to influence the functioning of the body he leads; to sway his decisions through irrelevant considerations; and cause him to stray from the path of proper administration.

HCJ 7805/00 Roni Aloni v. Comptroller of the Jerusalem Municipality [56], at 1121. The prohibition against conflicting interests comes, in other words, to prevent the damage caused by outside considerations, which stem from the conflicting interest. Situations of possible conflicts of interests are frequently examined, and when there exists a reasonable concern of such a conflict, the result tends to be termination of office. “The goal is to prevent the trouble before it occurs.” See Likud [53], at 572.

On the other hand, there are situations where there is no concern of a conflict of interests, but only of an outside consideration which does not flow from a conflicting interest. In such cases, a post factum check will be performed. In general, we do not speak of a “concern (in advance) of outside considerations,” but rather of a post factum examination of whether the considerations behind the decision or action were appropriate or extraneous. See, Ron Menachem [37], at 235; HCJ 3975/95 Prof. Shmuel Caniel v. The Government of Israel [57], at 459. Regarding appointments to the civil service the Court has stated:

When a public official appoints a civil servant out of extraneous considerations of party-political interests, this appointment is invalid. It constitutes a betrayal of the public which authorized the appointing power.

HCJ 4566/90 Dekel v. Minister of Finance [58], at 35; see also HCJ 6673/01 The Movement for Quality Government v. The Minister of Transportation [59], at 808-9. The same applies with respect to outside considerations of vengefulness or grudges. There exists a dichotomy between the prevention of conflicting interests and the post factum inquiry into extraneous considerations. And the case at hand would apparently fall into the category of extraneous considerations.

However, regardless of whether we classify the case before us as a conflict of interests or a more general concern for outside considerations influencing the decisions of a minister – the end result will be the same. This is because it is clear to us that, in this case, petitioner’s claim does not carry the required weight to render the Prime Minister’s decision unreasonable.

We are not saying that vengefulness or a personal grudge, which influences the decision of an authority to appoint an individual to a particular position, does not constitute an extraneous consideration. It certainly is an extraneous consideration, and may thus cause the decision to be struck down. It is true that Hanegbi was investigated in the past by the police, who recommended he be tried. However, it is also true that the Attorney-General did not adopt the recommendation because he concluded that there was no reasonable chance of a conviction. This being the case, the facts are unable to substantiate a genuine concern – which is not merely theoretical – of any outside considerations guiding Hanegbi’s actions. We are not entitled to assume the existence of such a concern, which would render the Prime Minister’s decision unreasonable in the extreme.

A person’s anger can fester into a grudge, and a grudge into to feelings of vengefulness towards the object of the anger. By the same token, satisfaction with the conduct of a person or body can result in gratitude, which could lead to partiality and favoritism. But this is a mere possibility, and not a certainty. We have determined that the circumstances of this petition are not substantial enough to establish a factual presumption of any real concern that future actions of respondent 3 , will be tainted by extraneous considerations. In the absence of any evidence to substantiate the petitioner’s concern, there is no reason for this Court’s intervention.

Respondent 3 wishes to reinforce this conclusion with a theoretical example. Assume that the police investigated a case and reach the conclusion that there was nothing untoward in the actions of the individual under investigation. It would be ludicrous to argue, claims Hanegbi, that this person should not be appointed as the minister in charge of his former investigators, due to the concern that he might show partiality towards them. This example is somewhat divorced from the case at hand. It could be more closely likened to a case where an individual was prosecuted by the Public Prosecutor and was acquitted. The appointment of the acquitted individual to the position of Minister of Justice, the minister in charge of the Public Prosecutor, is not merely a theoretical example. It has happened. And no one claimed that the appointment could not stand.

Hanegbi was not prosecuted. The reason for this was that the Attorney-General believed that he would have been acquitted. He notified the Prime Minister of his opinion. He also informed the Prime Minister that there was no legal impediment to the appointment of Hanegbi to the position of Minister of Public Security. The Prime Minister refused to adopt the Attorney-General’s “civic” recommendation. This was his prerogative and does not constitute a cause for intervention under the circumstances.

We have already stated that the considerations which play a part in the decision to appoint a minister to a particular governmental position are many and varied. A sizeable portion of these are political considerations. The Court does not put itself in the Prime Minister’s shoes. It does not scrutinize the wisdom of the decision, it merely reviews its legality. In the circumstances of the case at hand, pursuant to the law as interpreted in previous rulings, we find it difficult to point to any illegality.

34. This decision also takes into account the nature of the minister’s powers in the matter at hand. We must not demean or belittle the importance of these powers. However, the Minister of Public Security is not a “supra-director-general,” and in the context relevant to this case he has powers of supervision, authorization and the determination of policy. In its response to the petition, the state points out that with regard to the process of appointing high-ranking police officers, the minister’s exercise of his power is:

[S]ubject to the principles of administrative law. As such it is contingent on obligatory consultation, and consideration of the opinion the inspector-general of the police and additional professional bodies, prior to the appointment. As a rule, it is the police inspector-general who makes recommendations to the minister with respect to the

candidates for each and every position. This is because the inspector-general, as the head of the police system, will need to work with the officer who is appointed. The minister may only reject the inspector-general’s candidate, or the appointment of an individual to a position against the inspector-general’s recommendation, for very serious reasons. Such reasons are subject to judicial review.

It goes without saying that if, in the future, anyone should feel that a certain decision of Hanegbi regarding a particular officer was tainted by an administrative defect, such as a conflict of interest, partiality, or extraneous considerations, the doors of this Court are open to him.

35. In conclusion, we have not been convinced that the Prime Minister’s decision regarding Hanegbi’s appointment as Minister of Public Security was extremely unreasonable to a degree that would warrant the Court’s intervention. As a result, we have no choice but to reject the petition. Under the circumstances, I would make no order for costs.

Vice-President T. Or

I have studied the opinion of my colleague, Justice Rivlin, in depth, and I concur with his conclusion. My colleague set forth a broad thesis addressing the principles guiding the exercise of judicial review over administrative bodies. I agree with the majority of his findings. However, I wish to condense the scope of his thesis and apply it to the case at hand.

1. The petition before us was filed by the Movement for Quality Government in Israel. The petition is directed against the decision of respondent 1, the Prime Minster, to appoint respondent 3, Mr. Tzahi Hanegbi, to the position of Minister of Public Security in the government formed after the elections for the Sixteenth Knesset. The central question of the petition is whether this Court should intervene in the Prime Minister’s decision and annul the appointment. It should be emphasized that the key word here is “intervention.” Our purpose here is not to decide whether the appointment of Hanegbi as Minister of Public Security was appropriate. That role is entrusted by law to the Prime Minister. Our task is to decide whether the appointment was flawed, in which case we have no choice other than to intervene and revoke it.

Factual Basis and Essence of the Petition

2. The facts as the basis of the petition have been detailed in the opinion of my colleague, Justice Rivlin. For sake of convenience, I shall briefly review these. Petitioner alleges that Hanegbi’s involvement in the four main affairs described in the petition makes him unfit to serve as Minister of Public Security.

The first affair occurred in 1979. Respondent 3 was involved in a skirmish between students, as a result of which he was convicted, in 1982, of brawling in a public place. Hanegbi was fined and given a suspended prison sentence.

The second affair pertains to a complaint filed with the police in 1982 by Hanegbi and others. The complaint alleged that a number of leaders of the Student’s Union and of the International Israel Youth and Student Travel Company (ISTA) had perpetrated an act of fraud. As a result, a number of individuals were prosecuted, among them advocate Pinchas Maoz, who at the time served as external legal advisor to ISTA. Maoz was acquitted of all charges. In its judgment, the court related to the lack of credibility of Hanegbi’s testimony. As a result, Maoz and others asked that respondent 3 be charged with perjury. The Attorney-General decided not to file an indictment due to the small chance of a conviction. A petition against this decision was dismissed by this Court “after a great deal of hesitation – literally by a hairsbreadth.” See HCJ 3846/91 Maoz v. The Attorney-General [1], at 439.

The third affair relates to the appointment of advocate Roni Bar-On to the position of Attorney-General. Respondent served at the time as Minster of Justice. As a result of allegations against Hanegbi regarding his involvement in this appointment, the police recommended that that Hanegbi be prosecuted for fraud and breach of trust. The Attorney-General decided to close the file for lack of evidence. The State Attorney’s Office issued a public report on the matter, criticizing respondent’s conduct. Nevertheless, it too maintained that his actions did not constitute a criminal offense. As a result of this affair, petitioner petitioned this Court requesting respondent’s removal from his position as Minister of Justice. The petition was rejected. See HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [Bar-On [3]], at 46.

The fourth affair focuses on a non-profit organization by the name of Derech Tzleha which was headed by respondent. In a public report, the Attorney-General summarized the affair as follows: In 1994, respondent and MK Avraham Burg prepared a private bill aiming to enhance road safety. The draft legislation was placed before the Knesset and passed a preliminary reading, and was then transferred to the Finance Committee for deliberation. The committee put together a sub-committee, headed by Hanegbi, to work on the bill. While working to enact the National Campaign Against Traffic Accidents Law, respondent established Derech Tzleha, which also promoted road safety. Initially, respondent served as chairman of the organization and at later became its director-general. For this he received a salary and other benefits from the organization. Directly and indirectly he ultimately pocketed most of the funds it had raised – some NIS 375,000. Hanegbi’s conduct in this matter was the subject of a hearing by the Knesset Ethics Committee. The committee decided that respondent had placed himself in a situation of conflicting interests and had benefited from work outside the Knesset while serving as an MK. Hanegbi was accordingly censured and his salary was frozen for two months.

Respondent’s actions were also investigated by the police, who recommended Hanegbi be indicted on several counts. Initially, the Attorney-General and the State Attorney maintained that respondent should be prosecuted for other offenses as well. However, following a further chain of events, the Attorney-General decided, with the consent of the State Attorney, not to file an indictment due to a lack of evidence.

In an amendment to its petition, petitioner detailed two further affairs in which the respondent was allegedly involved. One pertained to an advertisement in a propaganda newspaper disseminated to members of the Likud Party in the run-up to the elections for the Sixteenth Knesset. The ad praised Hanegbi’s efforts to appoint members of the Likud Party and Likud Central Committee to senior positions in the Ministry of the Environment. The other affair concerned a proposal which respondent brought before the government, while serving as Minister of Justice, regarding the appointment of members of the National Estates Commission. This proposal was adopted by the government. Petitioner maintains that respondent concealed the fact that those candidates had been declared unfit by the Appointments Review Committee. No order nisi was issued in either of the above two affairs. Furthermore, the factual basis that was presented before us was not sufficient to justify a detailed examination of the affairs.

3. Based on the above affairs, petitioner makes two central arguments against respondent’s appointment to the office of Minister of Public Security. Its first claim is that through his involvement in these affairs, respondent violated principles of ethics and sound administration, and therefore the Prime Minister’s decision to appoint him as Minister of Public Security was extremely unreasonable. Petitioner points to the affairs as a whole, alleging that their cumulative weight attests to respondent’s unfitness for the post of Minister of Public Security.

Its second claim is that as Minister of Public Security, respondent may find himself in a conflict of interest. He was investigated on more than one occasion by the police, who actually recommended that he be prosecuted – though this recommendation was not adopted by the Attorney-General. A conflict could arise if the minister were to find himself deciding the question of promotion for any of his former investigators. It would also arise when he has to allocate funds to various police departments and divisions under the charge of his investigators.

The Normative Framework

4. The normative framework for evaluating petitioner’s claims has been elucidated by my colleague, Justice Rivlin. In this matter too, I do not intend to repeat all that has been said, but only the essential parts necessary for a decision in this matter.

The task of forming a government is assigned by the President to the Member of Knesset who is the designated Prime Minister. The constitution of the government and the assumption of office by the ministers take effect when the Knesset expresses its confidence in the government. See sections 7(a), 13(c) and, 13(d) of Basic Law: The Government. Section 6 of Basic Law: The Government lists a number of criteria for the eligibility of ministers. See also section 23(b). None of the criteria for unfitness provided by the law have been found to apply to respondent. Nevertheless, the statutory criteria provided by law do not constitute an exhaustive list of causes for rendering a person unfit to be a minister. The appointing body must take into account a candidate’s criminal history and past conduct when considering whether or not to appoint them as minister, or to any other public position. See HCJ 6177, 6163/92 Eisenberg v. Minister of Construction and Housing [6], at 261-67. Should the appointing body ignore the relevant considerations, or ascribe inappropriate weight to all or some of them, this may be indicative of extreme unreasonableness, and the decision may be struck down by the Court on grounds of unlawfulness.

Whether the Court intervenes in an administrative decision or refrains from such intervention depends on the status and role of the body under review. The nature of the decision under scrutiny is also a consideration. The Court addressed this in Bar-On [3], where it stated:

The range of reasonableness of every administrative authority depends on the nature of its power, the language and purpose of its authorizing law, the identity of the authorized body, the issue addressed by the power, and whether the power is exercised mainly on the basis of factual considerations, policy considerations, or professional criteria, such as medical or engineering evaluations. The range of reasonableness varies according to these factors: it may widen or narrow depending on the circumstances. In accordance with this the judicial review varies as well. Even though the principle of reasonableness which governs the exercise of judicial review is the same with respect to each and every authority, the application of the principle may vary from authority to authority, depending on the range of reasonableness. The wider the range of reasonableness, the more limited will be the review.

Id. at 57; see also HCJ 2534/97 MK Yona Yahav v. State Attorney [2], at 28-32; HCJ 2624/97 Ronel Yedid. v. State of Israel [4], at 71.

5. No one disputes that the Prime Minister’s authority to form a government is discretionary in character and thus subject to the review of this Court. See HCJ 4267/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, at 441 [Pinhasi [5]]; HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]], at 404. However, there is also no dispute that when the Prime Minister exercises his discretion to appoint a minister, there exists an extremely wide range of reasonableness within which the Court will not intervene. This is due both to the Prime Minister’s status as a publicly elected official and the head of the executive body, and the nature of this authority.

The unique character of a prime ministerial decision on the makeup of the government and its ramifications for the scope of judicial review were discussed in Bar-On [3] in connection to the dismissal of a minister. That case determined that the Prime Minister’s authority is one-of-a-kind, both due to the status of the Prime Minister in forming the government and the political character of the government. When exercising this authority, a plethora of considerations are taken into account. Id. 58-59. See also Yahav [2], at 28-32; and Deri [47] (Shamgar, P. and Levine, J. ).

We further note that, in the present case, the appointing authority was elected by the public and stands on the top rung of executive ladder. Additionally, his appointment of a minister requires the approval of the Knesset. In the case at hand, the Knesset expressed confidence in the government and caused the appointment to take effect. The judicial review is thus applied to a decision of the Prime Minister that has received the approval of the Knesset. As a result, the scope of the judicial review of this decision is narrow and restricted. Nonetheless, in cases where this Court is convinced that the Prime Minister’s decision showed extreme lack of reasonableness, it will not hesitate to exercise its powers of review.

Moving from the general to the specific, we will first evaluate the reasonableness of the Prime Minister’s decision in light of the past affairs in which respondent 3 was involved. We will then discuss the claim that respondent could find himself in a conflict of interest while occupying the position of Minister of Public Security.

Reasonableness of the Decision – Previous Affairs

7. In order to evaluate the reasonableness of the decision in the case at hand, we will first present the Prime Minister’s reasons for appointing Hanegbi as Minister of Public Security. These considerations, detailed in his affadavit, were as follows:

16. My decision to appoint Minister Hanegbi to the office of Minister of Public Security was made after I had evaluated all the relevant considerations, including the advice of the Attorney-General and the basis of this advice… and I struck a proper balance among these considerations. Among other factors, I took into account the minister’s many talents, his many years of experience in various demanding public and state offices, the gravity of the role of head of the Ministry of Public Security, as well as other coalition-related considerations, all of which are now detailed.

17. Minister Tzahi Hanegbi has served, over a continuous period of many years, in a number of high-ranking and demanding public and governmental offices. These have included: Director-General of the Prime Minister’s Office; Minister of Health; Minister of the Environment; Minister of Transportation; Member of the Twelfth through Sixteenth Knessets inclusive; Chairman of the Knesset Finance Committee; Member of the Foreign Affairs and Defense Committee; and Member of the Constitution, Law and Justice Committee.

In addition, for a period of approximately three years, between 1996 and 1999, Hanegbi served as Minister of Justice, within which framework he served as a member of the Ministerial Committee for National Security Affairs – the so-called “State Security Cabinet”; as Chairman of the Ministerial Committee for Legislation and Law Enforcement; as Chairman of the Committee for the Selection of Judges; as a Member of the Committee for the Selection of Military Judges; and as a Member of the Ministerial Committee for Privatization.

Over the last two decades, I have become personally acquainted with the abilities and talents of Minister Hanegbi. In view of Hanegbi’s many professional achievements in all of the offices in which he served as minister, I have chosen him to serve as the Minister of Public Security, an office which currently faces unique and extremely important challenges.

Minister Hanegbi has a broad national perspective, which was expressed during his years as Minister of Justice, notwithstanding his investigation during that term regarding the Derech Tzleha affair. He has a wealth of experience in the management of complex ministries; and a broad knowledge in the field of security, which he gained in a variety of public roles, as listed above. It is my belief that all this qualifies him to successfully run the Ministry of Public Security.

…

At the time of making the decision, I considered the position of the Attorney-General with respect to the Derech Tzleha affair. The Attorney-General regarded Hanegbi’s appointment as being prima facie problematic from a civic perspective, though from the strictly legal standpoint, according to statutes and case law, there appears to be no legal impediment to the appointment.

In this regard, it should be noted that the actions attributed to Minister Hanegbi occurred between 1994 and the beginning of 1996. When Minister Hanegbi was interrogated, he did not take advantage of his right to silence. Rather he cooperated in full with his investigators. In my view, these facts were significant to the decision not to indict Hanegbi and for public confidence in him.

18. I have taken into account all of the relevant considerations, which include the qualifications and abilities required of the Minister of Public Security, the Attorney-General’s position, and Minister Hanegbi’s actions in the Derech Tzleha affair and the other affairs, Hanegbi’s capabilities and his experience, as well as political and coalition considerations. After giving these considerations their appropriate weight,, it cannot be said that the decision to appoint Hanegbi deviates in an extreme manner from the standard of reasonableness (emphasis not in the original).

As such, we see that the Prime Minister did not ignore respondent’s involvement in the various affairs cited by petitioner, including the Derech Tzleha affair. However, after he weighed respondent’s role in these affairs against other considerations, which included respondent’s qualifications, coalition-related needs, and other considerations mentioned by him, he decided to appoint respondent.

8. Among the considerations that an administrative authority, including the Prime Minister, must take into account when appointing a public official is the candidate’s criminal past. Clearly a criminal conviction is not required in order to justify a decision not to appoint a particular person. Convincing administrative evidence of serious crimes which pose a genuine risk to public confidence is all that is required. Moreover, an administrative authority must also consider behavior of the candidate that deviates from the norms of sound administration and ethics, even if these do not amount to a criminal offense. Nonetheless, the existence of administrative evidence of a crime, or of conduct that deviates from public norms or ethical principles, is not necessarily enough to force the administrative authority to not to make the appointment. The authority must consider the nature and severity of the acts attributed to the candidate and balance this against other considerations, such as the abilities of the candidate and his suitability for the position. See para. 17 of the decision of my colleague, Justice Rivlin.

There may be situations in which evidence exists of serious criminal offenses committed by a candidate and, as a result, his abilities or qualifications, manifold as these may be, do not justify his appointment as a minister. Therefore, the central question in this case is whether, in light of the evidence submitted by petitioner regarding the conduct of respondent 3, the Prime Minister’s decision to appoint him as Minister of Public Security is marred by an extreme lack of reasonableness and requires our intervention.

My answer to this is negative. I will now examine each piece of evidence adduced by petitioner. Later I will examine whether the cumulative weight of all the evidence should have caused the Prime Minister to decide against the appointment.

9. With respect to the decision of conviction in the brawling affair, I concur with the conclusion of my colleague, Justice Rivlin, that it is an “ancient and trivial affair.” The crime which respondent was convicted of took place 24 years ago and he has served his sentence. The offense did not involve moral turpitude or lack of integrity. This conviction has been erased from legal memory. See sections 14 and 16 of the Criminal Register and Rehabilitation of Offenders Law, 1981.

Similarly, more than twenty years have elapsed since the ISTA affair, and it has been relegated to the history books. As stated above, the Attorney-General decided at the time not to prosecute respondent over the affair, and we did not see fit to intervene with his decision. In light of more than two decades of wide and varied public activity by respondent since then, including his appointment as Minister of Justice, I believe that the affair does not invalidate respondent’s appointment as Minister of Public Security.

10. We now consider the Bar-On affair. As was stated above, due to respondent’s involvement in this affair the police recommended that Hanegbi be charged with fraud and breach of trust. Ultimately the Attorney-General decided not to indict respondent. The State Attorney issued an opinion on the matter, noting that “even among us [in the State Attorney’s Office] there were those who maintained that there were grounds for prosecuting the Minister of Justice.” However, in the end, after evaluating the evidence, the final conclusion was that “respondent’s conduct did not amount to a criminal offense.” Nevertheless, the State Attorney saw fit to express her own opinion regarding one of the affairs examined, saying that it was not a crime “even though it was a deviation from the norms of proper conduct.”

All of the evidence presented by petitioner in the case at hand was examined by this Court in Bar-On [3]. Yet, the Court decided, in light of the circumstances, that the Prime Minister’s decision not to dismiss respondent as Minister of Justice did not deviate from the range of reasonableness, and did not justify intervention.

As an interim conclusion, we note that none of the three affairs discussed until this point, whether viewed individually or cumulatively, disqualify respondent from service as a minister, not even as Minister of Justice or Public Security. This is clear in light of this Court’s decision in Bar-On [3].

We have yet to evaluate the fourth affair, the Derech Tzleha affair. This affair is most relevant to the case at hand, being the only addition to the factual basis which was previously presented to this Court in Bar-On [3]. Regarding this affair, petitioner adduces two pieces of administrative evidence which the Prime Minister should have considered when evaluating respondent’s candidacy for a ministerial position in his government. These are the opinion of the Attorney-General and the decision of the Knesset Ethics Committee. Is this evidence sufficient to justify respondent’s removal from the office of Minister of Public Security? We shall first consider the opinion of the Attorney-General.

12. At a certain point during the Derech Tzleha affair, the relevant bodies maintained that grounds existed for indicting respondent. The police recommended that respondent be charged with taking bribes, fraud, breach of trust, and other offenses. The evidence was examined by the State Attorney who decided to prosecute respondent for the offenses of fraud and breach of trust, fraud and breach of trust by a corporation, and falsifying corporate documents. After hearing respondent’s version of events, the Attorney-General, with the State Attorney’s consent, decided to prosecute respondent for fraud and breach of trust, as well as other offenses. The file was transferred to the Jerusalem District Attorney for the final preparation of the charge sheet. At this point, difficulties arose in proving the various elements of the crime and a decision was made not to prosecute respondent. In the report written by the Attorney-General on this matter, he summarizes his opinion as follows:

13. At the end of the day, the evidence was insufficient to prove to the degree required in a criminal case, that the conflict of interest was strong enough to amount to a “corrupt” breach of trust which damages public confidence according to the criteria provided in the clause on the need for proof of suspected crimes. This is especially true regarding proof of the criminal intent required in these offenses, that MK Hanegbi was aware that he was acting in a corrupt manner which was detrimental to the public.

14. These evidentiary difficulties are primarily the result of the fact that the organization from which Hanegbi received benefit, which he had established with the aid of his friends and long-time associates, had no interests independent of his own, and certainly none which conflicted with his own. During the period of its operations, Hanegbi served as its chairman and subsequently as its director-general, and he dictated the agenda. Similarly, there is no evidence at all which indicates that the organization ever pressured Hanegbi regarding his activities as an MK nor was there even a suspicion of such pressure, which could have indicated the existence of a corrupt conflict of interest. On the contrary, it was MK Hanegbi who directed the other members of the organization in different activities.

15. In particular, an evidential doubt still remains regarding the criminal intent. The question is whether, by receiving benefits from the organization, Hanegbi was aware that he was placing himself in a conflict of interest which amounted to a corrupt breach of trust, in connection with the Campaign Against Traffic Accidents Law, which Hanegbi initiated and promoted over a long period of time. Furthermore, assuming that the suspicion is that Hanegbi had “bribed himself” using the organization, it is impossible to prove beyond all reasonable doubt that it fulfills the criteria of a crime by an MK in a matter related to advancing legislation in the Knesset. There is evidence of breach of trust, but it is weak…

19. All of the above deals with suspicions against MK Hanegbi even though the evidence was insufficient to substantiate a blatant conflict of interest – a criminal conflict of interest – in order to prove the crimes of fraud and breach of trust. An MK established an organization for an important public cause. He raised money which, as director-general of the organization, he was supposed to channel towards that public cause. Instead, with the consent of the organization’s members – who are his friends – he used most of the funds raised by the organization for his own benefit, in order to fund activities he performed in his capacity as an MK… Even so, regarding the aspect of intent of the offense, this was not the only organization that served as a tool for earning salary or benefits in the public sector. Moreover, MK Hanegbi reported his income from the organization to both the Knesset Speaker and the Knesset legal advisor, and this creates difficulties in proving the necessary criminal intent.

20. It should be noted that at that time, pursuant to the Knesset Members Immunity Law (Rights and Duties), 1951, a Knesset Member was permitted to receive a salary for “an additional occupation” provided that it did not exceed half of his salary as an MK. The law stipulated that such payment should not engender “a potential conflict of interest between the additional occupation and his role as an MK.” In 1998, the section was amended and today it is prohibited for an MK to engage in any additional occupation for remuneration.

21. In summary, we believed that the circumstances warranted an investigation, and we even considered filing an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied. (emphasis not in the original).

The facts of the affair demonstrate the shifting position of the prosecution regarding whether to prosecute respondent 3 for his involvement in the Derech Tzleha affair. This indicates that the case was reviewed and reconsidered by the prosecuting bodies. No doubt it was a difficult decision. But at the end of the day it was decided not to indict respondent. Petitioner is not challenging this decision –not even indirectly. Nor is petitioner arguing that, the Prime Minister, based on the facts he was presented, should have concluded that respondent had committed crimes during this affair. In any event, it is not likely that the Court would accept a claim that the Prime Minister should have reached a conclusion different from the Attorney-General. After all, the Prime Minister is not expected to study all of the complex investigative material in order to reach an independent conclusion in this matter. He was entitled to rely on the opinion of the Attorney-General, who possesses the authority and the appropriate tools to analyze the evidence and draw the necessary legal conclusions. The Attorney-General’s report indicates that the difficulty in proving that a crime was committed stemmed primarily from the need to show criminal intent. It is presumed that the Attorney-General’s decision not to prosecute respondent was grounded in the evidence – which he reviewed in full, unlike this Court. Under those circumstances he decided that the small chance of proving criminal intent meant that an indictment was unjustified.

It seems to me, therefore, that based on the facts before us we must assume that respondent committed no crime in the Derech Tzleha affair. Petitioner does not claim otherwise. But this does not mean the case is closed. Petitioner claims that the conduct attributed to respondent in the Derech Tzleha affair, as reflected in the Attorney-General’s public report and in the decision of the Knesset Ethics Committee, violated the principles of sound administration and ethics. Despite this, the Prime Minister maintained that respondent was fit for office. In my opinion, this conclusion does not warrant the Court’s intervention. I shall now explain why.

13. The case at hand is similar to Pinhasi [5] and Deri [47]. All these cases deal with setting the boundaries between law and ethics. In this matter I refer to Bar-On [3] which explained that “the law cannot and need not replace ethics, except in part, on a case by case basis, in a cautious and controlled way.” Id. at 62 (Zamir, J.). The same applies to the conduct of publicly elected officials. A judicial decision whether to intervene in the discretion of a public body depends on the balance between the interest of representation – allowing the public to be represented as it wishes – and the ethical interest of preserving appropriate ethical standards among elected officials. See Or v. State of Israel – Civil Service Commissioner [50], at 191. This balance is not technical but rather substantive in nature. See Bar-On [3], at 63; Pinhasi [5], at 474 (Barak, J.).

In Bar-On, it was added:

Because the test is substantive and not merely formalistic in nature, it cannot be stated categorically that that only an indictment for a serious crime, or at least an investigation into such a crime, will justify termination of office. The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case, even if it does not amount to a criminal offense, may be so very severe that it would be extremely unreasonable to allow him to remain in office. However it is still a long way between an extreme case of this sort, which would be exceptional, and a comprehensive rule which rendered unfit any minister or deputy-minister in case of conduct that deviated from proper behavioral norms. The proposal to expand the existing law, so that such conduct would obligate the Prime Minister to dismiss a minister or deputy-minister, although well-intentioned, is inappropriate and liable to do more harm than good.

Id. at 63-64 (Zamir, J.).

14. It is true that when deciding whether or not to appoint respondent as Minister of Public Security the Prime Minister should have considered respondent’s conduct in the Derech Tzleha affair, even if it did not amount to a criminal offense. However, in my opinion, the conduct was not severe enough for us to declare the Prime Minister’s decision to appoint respondent as Minister of Public Security extremely unreasonable, and strike it down. It should be recalled that the Attorney-General’s report determined: “At the end of the day, the evidence was insufficient to prove, to the degree required in a criminal case, that the conflict of interest was strong enough to amount to a ‘corrupt’ breach of trust which damages public confidence according to the criteria provided in the clause on the need for proof of suspected crimes.” See para. 13.

Furthermore, the Attorney-General makes it clear that respondent, in his capacity as MK, had no conflicting interest, and certainly none that conflicted with the interests of the organization which he headed. It was also noted that respondent reported his activities and income to the relevant authorities. The Attorney-General also emphasized that, at that time, a Member of Knesset was not barred from having an additional occupation. In terms of this report, it cannot be concluded that respondent’s conduct was severe enough to render him unfit, to assume the office of Minister of Public Security. There may be pros and cons regarding a particular individual’s appointment as minister. However, unless, that appointment deviates from the range of reasonableness in an extreme way, the decision is left to the Prime Minister, and the Court should not intervene. Only in extreme cases is it appropriate for the Court to intervene in the Prime Minister’s task of forming a government.

15. To this we add that the reasonableness of the Prime Minister’s decision is supported by the position presented to him by the Attorney-General prior to respondent’s appointment. It was the Attorney-General’s opinion that “despite the fact that according to statute and case law there appears to be no legal impediment to the appointment, the appointment is still problematic from a civic perspective...” See para. 15 of the Prime Minister’s affidavit. This may be understood to mean that, legally speaking, there is no impediment to respondent’s appointment, even though his conduct warrants criticism. The point is that the Attorney-General informed the Prime Minister that, in terms of the law, the appointment was legitimate. The Attorney-General reiterated this stance before the Court. The Prime Minister ultimately relied on the Attorney-General’s opinion, regarding both the lack of “sufficient evidence of a criminal offense by respondent in the Derech Tzleha affair,” and the legality of respondent’s appointment in light of his conduct. Obviously if we were to conclude that the Attorney-General’s opinion was inappropriate and without basis, things would be different. However this is not our position.

16. The Knesset Ethics Committee addressed this case as follows:

20.A. MK Hanegbi served simultaneously as chairman, and subsequently director-general, of the Derech Tzleha organization and as Chairman of the Economics Committee. This created the possibility of a conflict of interest between the additional occupation and the his role as a Knesset Member, in violation of the provisions of section 13A(a)(3) of the Knesset Members Immunity (Rights and Obligations) Law, 1951, as worded at that time.

B. MK Hanegbi received material benefit as chairman, and subsequently director-general, of Derech Tzleha, which had as one of its principle objectives the advancement of a law which Hanegbi himself had initiated. In doing so, he violated section 4 of the Rules of Ethics for Knesset Members, which prohibits a Member of Knesset from receiving any material benefit for an activities performed outside of the Knesset in his capacity as Knesset Member.

C. Towards the end of the term of the Thirteenth Knesset, MK Hanegbi returned to his position as Chairman of the Finance Committee. As such, a potential conflict of interest was created relating to the Fuel Economy Law, since MK Hanegbi was receiving benefits from Derech Tzleha, which had accepted contributions from major fuel corporations. In this situation, MK Hanegbi should have transferred the bill to another MK and, by failing to do so, violated the provisions of section 13A(a)(3) of the Immunity Law, as worded at that time.

D. As a result of the above, the Ethics Committee reprimands MK Tzahi Hanegbi and deprives him of his salary for a period of two months…

See The Decision of the Knesset Ethics Committee regarding the complaints of MKs Eli Goldschmidt and Haim Oron, and regarding the complaint of Justice Minister Tzahi Hanegbi against MK Eli Goldschmidt, dated May 24, 1999.

It is my opinion that the above decision does not justify our intervention in the Prime Minister’s decision. This decision concerns the realm of ethics. Respondent’s conduct as described by the Ethics Committee is clearly unsatisfactory and deserving of criticism. However, it does not constitute the kind of severe deviation that would justify the intervention of this Court in the respondent’s appointment as Minister of Public Security.

17. Does the cumulative weight of the four affairs involving Hanegbi render the Prime Minister’s decision extremely unreasonable, even though no affair on its own is sufficient? Petitioner asserts that respondent’s conduct, as reflected in all the affairs put together, shows that he is unfit to serve as Minister of Public Security.

It is true that when an administrative authority considers a public appointment, it must weigh not only each individual piece of administrative evidence that the candidate committed a crime, but also the cumulative weight of the evidence. It is possible in certain cases that the sum total of the evidence will be greater than its parts. The appointing authority must take this extra weight into account during its deliberations. The Court will intervene in an authority’s decision only if the cumulative weight of all of the evidence undoubtedly has extra weight which, if ignored, renders its decision extremely unreasonable. This is not true of the present case. The brawling and ISTA affairs were too long ago to have any bearing on the later affairs. Regarding the Bar-On affair, this Court has already decided that it is no impediment to respondent’s remaining in the position of Minister of Justice. In my opinion, the cumulative evidence in the Derech Tzleha affair does not justify the intervention of the Court in the Prime Minister’s decision under the stated criteria for such intervention. I reiterate that the key term in this case is “intervention.” The question is not what the Court would have done in the Prime Minister’s stead. Rather it is whether the Court is obligated to intervene in the Prime Minister’s decision to appoint respondent as Minister of Public Security in light of the four affairs. Under the circumstance, my answer is no.

Claim of Conflict of Interest

18. As stated above, petitioner claims that respondent should not be appointed as Minister of Public Security for the additional reason that his appointment will create a potential conflict of interest. The source of this claim is that respondent was investigated by the police regarding the Bar-On affair and the Derech Tzleha affair. In both of these cases, the police recommended that Hanegbi be prosecuted, though this course was not adopted by the Attorney-General. In petitioner’s opinion, a conflict of interest is liable to arise with respect to promotions for high-ranking police officers who have previously investigated him. A conflict may also arise when the minister allocates budgets to police departments under the charge of his former investigators. In other words, petitioner claims that respondent may not handle certain promotions or budgets objectively. He may not base his decisions only on the relevant and legitimate considerations and the best interests of the police. Instead he is liable to be swayed by his own personal “interest” which is to “get even” with his former investigators and to avenge himself on them.

Before we evaluate this claim, we note that respondents raised doubts as to the correct classification of this claim. They say that there is no conflict of interest since a “desire for revenge” does not constitute an interest that conflicts with Hanegbi’s public duties as minister. The concern is rather that extraneous considerations will play a part in Hanegbi’s decisions. On the other hand, it could be argued that if a minister wishes to get even with his investigators this can be construed as an interest in the broad sense of the word. Anyone serving in a public office is forbidden to enter a situation involving potential conflict of interest. This is to ensure that the official will be able to fulfill his duties according to those considerations and interests which are relevant to his role. He must not be influenced by potentially conflicting considerations, such as personal interests or those pertaining to another public post occupied by him. Therefore, a conflict of interest could arise where the official is prejudiced against certain people, where there exists a genuine risk that he will act on this prejudice, and where this conflicts with the interest of fulfilling his role properly. This would be a known and foreseeable risk that the official will be unable to ignore extraneous considerations in certain situations.

Returning to our case, at issue here is whether there is a genuine risk that respondent will find himself in a conflict of interest as Minister of Public Security. The person who fills this role wields considerable power over police appointments and budgets. Is a genuine risk posed by the fact that he was investigated by the police and his investigators recommended he be prosecuted? Is there a real concern that his decisions will not be based exclusively on relevant considerations, since they will directly affect his investigators?

19. My answer to this is no. Generally speaking, investigators do not embark on “crusades” against their subjects. They are not interested in harming them. Investigators do not deliberately choose, for non-material reasons, to investigate any particular individual. While conducting their investigation they perform their duties pursuant to the law. They exercise their professional discretion. In general, if they recommend that a suspect be prosecuted this stems not from their desire to unjustly or cruelly maltreat him, but to exercise their professional judgment to the best of their ability. Everyone, including respondent, presumably understands this situation. A suspect is presumed to understand that his investigators are just doing their job, and are fulfilling duties which must be performed. Therefore, the concern that a suspect will bear a grudge against his investigators is remote and weak. It does not justify the disqualification of the appointment.

Needless to say, the situation could be different if, during the investigation of the potential Minister of Public Security, the suspect had developed animosity towards his investigators. Such a case could be if the suspect claimed, during or following the investigation, that his investigators treated him in an unlawful manner or harassed him, or other similar claims. Under such circumstances, the risk of a conflict of interest is real, and various solutions would have to be considered for neutralizing that concern.

According to the evidence before us, this is not the case with respect to respondent. Despite the passage of years since his investigation, no such claim was ever made by him against his investigators, either prior to or following his appointment as Minister of Public Security. On the contrary, respondent states the following in his affidavit:

4. The concern that I might interfere with the appointment of one of my investigators, impede his advancement, or plot against him, is spurious. I have made it clear on more than one occasion, including to my investigators themselves, that I have no complaints about them, and that I respect their duty to fully investigate every case. This is certainly true since the Attorney-General instructed the police to open an investigation. Moreover, my investigators treated me in a sensitive and respectful manner.

5. The concern that due to a conflict of interest I will deprive any particular division of the Ministry of Public Security of its budget is neither reasonable nor realistic. The budget proposal is prepared by the ministry’s planning department, in conjunction with National Headquarters, under the supervision of the Police Inspector-General and in coordination with the Budgets Division of the Finance Ministry. The ministry’s budget requires the approval of the government, the Finance Committee and the Knesset plenum. Therefore, there is no basis for the concern that I might use the budget in order to “get even” with one division or other. Neither could I consider any extraneous factors whatsoever in connection with the ministry’s budget, whose preparation, approval, and execution are handled by so many bodies.

Petitioner fails to bring any evidence whatsoever to refute this claim, or to point to any action or statement of respondent that contradicts his stated position. Under these circumstances, there is no cause for intervention in the Prime Minister’s decision to appoint respondent as Minister of Public Security. No genuine concern of a conflict of interest or extraneous considerations can be inferred solely from the fact that he was investigated in the past by the police.

In conclusion, I concur with the position of my colleague, Justice

Rivlin, according to which the petition is denied.

Justice M. Cheshin

1. I have read the opinions of my colleagues Justice Rivlin and Vice President Or. The comprehensive opinion of my colleague, Justice Rivlin, elucidates the basic principles governing the relationship between the judicial branch, the legislative branch, and the executive branch. It focuses on judicial intervention – specifically that of the High Court of Justice – in acts of the Knesset and the government. My description of some of these principles might have been structured differently, but on the substantive level I concur with my colleague and my reservations are secondary. Apparently, this was also the position of my colleague, the Vice President. However, I was unable to concur with my colleagues’ application of these principles to the case before us, and I therefore decided to write my own opinion.

2. This petition seeks to prevent the appointment of respondent 3, Mr. Tzahi Hanegbi, to the office of Minister of Public Security, due to his involvement in four separate affairs, especially the Derech Tzleha affair. Hanegbi was indicted in only one of these four affairs, the earliest and the least serious of the four. Petitioner claims, however, that the effect of the cases must be considered cumulatively and points out that, as Minister of Public Security, Hanegbi will be in charge of the police officers who investigated his involvement and who recommended his indictment. They also note that the Attorney-General recommended that the Prime Minister withhold the appointment. All of these factors create a “critical mass” that render Hanegbi unfit to serve as minister in charge of the system of investigation and law enforcement in Israel. Petitioner therefore requests that we order the Prime Minister to not appoint Hanegbi to the position of Minister of Public Security.

The Principal Facts

3. Following the election of the Sixteenth Knesset on 28 January, 2003, and pursuant to section 7 of Basic Law: The Government, 2001, the President charged the incumbent Prime Minister and Knesset Member, Ariel Sharon, with the formation of a government. Once the ministers of the new government had been designated, the public was informed that Hanegbi, who had served as the Minister of Justice between 1996 and 1999, and as the Minister of the Environment in the previous government, was to be Minister of Public Security – the minister in charge of the Israeli Police.

4. When the planned appointment of respondent as Minister of Public Security became public knowledge – prior to the establishment of the government – this petition was filed. Petitioners requested this Court to issue an order nisi and an injunction instructing the Prime Minister to abstain from making the appointment. Petitioner further requested an order instructing the Attorney-General to direct the Prime Minister not to make the appointment. The Court did not issue an injunction but, on March 10, 2003, several days after the formation of the government and Hanegbi’s induction as Minister of Public Security, the Court issued an order nisi against the Prime Minister instructing him to justify Hanegbi’s appointment. No order was issued against the Attorney-General.

5. Petitioner argues that Hanegbi is not fit to serve as Minister of Public Security, primarily due to his involvement in four separate affairs. Petitioner also cites two additional dealings that came to light while the respondent was serving as Minister of Justice and as Minister of the Environment. Neither had criminal implications. These are of secondary importance, however, and we will not lump them together with the other four affairs upon which we now focus.

6. The first affair takes us back to 1982, when respondent stood trial and was convicted of brawling in a public place following a fight that he was involved in as a student. The Court imposed a suspended prison sentence and a fine. Today, the case is of marginal importance, due to both the passage of time as well Hanegbi’s age at the time of the offense. Notably, this is the only case in which Hanegbi stood trial and was convicted or sentenced.

7. The second case, known as the “ISTA Affair,” began in 1980 and continued until 1992. It is described at length in HCJ 3846/91 Pinchas Maoz v. The Attorney-General [1], at 423. For our purposes, these are the relevant facts: Respondent and others filed a complaint with the police that certain leaders of the Students Union and of the International Israel Youth and Student Travel Company (ISTA) had committed “the greatest act of fraud in the history of Israeli aviation.” [1], at 426. The complaint led to a police investigation, which culminated in the indictment of seven people, including Pinchas Maoz, an experienced advocate and law lecturer who also served as the external legal advisor to ISTA at the time. Maoz was acquitted of all charges by the Magistrate’s Court, and in its judgment the court noted with regard to Hanegbi that “factual truth was not always a guiding light in his testimony … the witness did not provide precise answers and avoided topics that did not square with his version of the events.” [1], at 428. Advocate Maoz then asked the Attorney-General to indict Hanegbi for lying under oath, for relaying misleading information, and for presenting contradictory testimonies, but the Attorney-General decided that the chances of conviction were too low to warrant a trial. Maoz petitioned the decision of the Attorney-General to the High Court of Justice. On December 7, 1992, the Court ruled “after a great deal of hesitation – literally by a hairsbreadth” that while an indictment could reasonably have been filed against respondent, it would not intervene in the Attorney General’s decision:

The Attorney-General weighed all of the facts and, in deciding whether or not to indict Hanegbi, and concluded that the small chance of a conviction did not warrant an indictment. On the basis of our comments above, it is easy to form the impression that, had he decided to indict Hanegbi, we would have regarded this as reasonable. But the question before us is not what this Court, or any of its judges, would have decided in the Attorney-General’s place.

Id. at 439 (Or, J).

8. The third affair, known as the “Bar-On affair,” concerned the appointment of Advocate Roni Bar-On to the position of Attorney-General. It is alleged that respondent, then Minister of Justice, behaved unlawfully during the appointment process, and even misled the government and the Prime Minister regarding the position of the President of the Supreme Court on the appointment. The facts of the case were described at length in three Supreme Court judgments. See HCJ 2534/97 MK Yona Yahav v. State Attorney [2]; HCJ 2533/97 The Movement for Quality Government in Israel v. The Israeli Government [hereinafter: Bar-on [3]]; HCJ 2624/97 Ronal v. The Government of Israel [4].

For our purposes we will content ourselves with a brief account of the principal elements. Respondent was suspected of fraud and breach of trust. The police recommended that an indictment be filed against him. The Attorney-General, however, with the consent of the State Attorney, recommended that the investigation file be closed for lack of evidence. The affair also dealt with the appointment of Bar-On as Attorney-General, and we shall now cite part of the State Attorney’s opinion on this matter, as quoted in Bar-on [3]:

The Minister of Justice [the respondent here] was aware that Bar-On’s name had been mentioned in the Prime Minister’s Office, prior to Michael Ben-Yair’s [the previous Attorney-General] notice of resignation. The Minister of Justice also knew that, within the Prime Minister’s Office, Bar-on was not considered the natural candidate, due his factional affiliation in the Likud.

No doubt the Minister of Justice had an interest in the appointment of Bar-On, who was his mentor and friend. Hanegbi also claims that, in his opinion, Bar-On was qualified for the position.

The Minister of Justice’s engineering of Bar-On’s appointment was concealed from the public eye at the time. Government ministers were apprised of it at a cabinet meeting, leaving them no time to conduct any discussions or investigation. The Minister of Justice repeatedly emphasized that, in the past, Attorney-Generals had been appointed in a similar manner, without the name of the candidate being presented to the cabinet.

The Minister of Justice received information from the President of the Supreme Court, A. Barak, that could have disqualified Bar-On, information that required consideration. He failed to present the true significance of these comments to the Prime Minister and merely informed the cabinet that President Barak was aware of the appointment. His manner of mentioning the subject could have led to the conclusion that President Barak had nothing to say about the appointment, and perhaps even assented to it. The truth, of course, was otherwise.

Id. at 50-51. It was further noted:

In our case, the Minister of Justice [the respondent here] failed to inform the cabinet of the Supreme Court President’s negative view of the appointment of Bar-On as Attorney-General. In this context, the State Attorney stated:

“During the Cabinet meeting, Minister Kahalani asked the Minister of Justice whether the Prime Minister had approved the appointment. Hanegbi replied, saying: ‘Yes. I also brought it to the attention of the President of the Supreme Court, and, naturally, also to the Attorney-General, who gave his approval’

Minister David Levi was asked how he had understood these words. He reported that his understanding was that the Minister of Justice had mentioned the names of Barak and Ben-Yair in order to show that the appointment had passed through conventional channels.

Considering what President Barak actually said about Bar-On’s appointment, merely mentioning that Barak had been informed of it, without reporting what he had actually said about it, is problematic. This statement creates the impression that President Barak had nothing to say about the appointment, or at least that he did not say anything which mattered one way or another.”

Id. at 65-66 (Goldberg, J.). As stated, the Attorney-General and the State Attorney decided that this evidence was insufficient to charge respondent with a criminal offense. But, at the same time, the State Attorney criticized respondent’s conduct, writing that this constituted a “deviation from appropriate norms of conduct” and that it was not “above criticism.” Id. at 52. Nonetheless, the State Attorney did not believe that respondent’s conduct amounted to a criminal offense.

These harsh words triggered a public outcry, which led to the filing of three petitions with the High Court of Justice. We will complete our review of the Bar-On affair by noting that the arguments made in Bar-On [3] – a petition which sought to remove respondent from the office of Minister of Justice – bear a striking resemblance to the arguments raised in the petition before us. The main difference lies in the addition of the Derech Tzleha affair to the previous three affairs.

9. The Derech Tzleha affair began in July 1997. The case concerned respondent’s actions as the head of the non-profit organization known as Derech Tzleha. The facts were detailed at length in an opinion of the Attorney-General, which was published on March 6, 2001, following his decision not to indict respondent. We will present some of the comments stated in the report:

The Findings of the Investigation

h. In 1994, MK Hanegbi and MK Abraham Burg prepared a private bill in the Knesset entitled “The National Campaign Against Traffic Accidents Law.” The purpose of the draft legislation was to improve road safety, particularly by the establishment of a government body, which would consolidate all of the authorities, units and governmental bodies involved in the battle against traffic accidents. The bill was placed before the Knesset on July 25, 1994 and, on October 12, 1994, it passed a preliminary reading. It was then transferred to the Finance Committee for deliberation. A sub-committee was established, with Hanegbi as its chairman, with the task of preparing the bill for the next stages.

i. Concurrently, and in the framework of his public activities for the enactment of the Campaign Against Traffic Accidents Law, MK Hanegbi established Derech Tzleha, which he and his colleagues registered as a non-profit organization on October 12, 1994. The object of the organization, according to its by-laws, was to reduce the carnage on the roads through education, public activism, and legislation. In practice, its principal and perhaps chief object was the promotion of the Traffic Accidents Law by public activism and enlisting the support of Knesset Members and ministers.

j. The organization’s activities were limited, comprising the following: sending letters to MKs, cabinet ministers, council heads, and other public figures, persuading them to support the Traffic Accidents Law; the production of three advertisements in support of the law; the publication of a pamphlet which brought together the protocols of the sub-committee headed by Hanegbi, and its dissemination among the Knesset Members; one-time correspondence with a medical organization regarding the establishment of a fund for road-accident victims; planning demonstrations; setting up a signing booth; initiating and organizing a special meeting of the Knesset Finance Committee on the Modi’in road; sending requests to hundreds of “famous” people from a number of fields, asking them to add their names to an advertisement in support of the law; and publication of a newspaper advertisement in support, after the law had passed the first reading.

The rules of the organization prohibited the distribution of profits or benefits to members, whose activities were supposed to be voluntary. Hanegbi initially served, until September 12, 1995, as chairman of the organization. On October 1, 1995, he resigned his membership of the organization, and was appointed as director, and began receiving a salary and other benefits. As a result, the vast majority of the organization’s resources went to his wages, company car, and expenses, all of these being related to Hanegbi’s public activities as an MK. After his appointment as Minister of Health following the elections to the Fourteenth Knesset in 1996, Hanegbi resigned from his position as director. A short time later, the organization entered into voluntary liquidation.

k. The organization raised approximately NIS 375,000. The findings of the investigation indicated that MK Hanegbi received the vast majority of this amount through his salary, company car, expenses, and cellular phone, as well as in the form of a notice of support which was published three days before the Likud primaries.

The report continues with a chapter entitled “Suspicions” where we read the following:

Suspicions

13. The investigation raised suspicions that MK Hanegbi received these benefits as payment for his activities as a Member of the Knesset, and especially for his efforts in promoting the Traffic Accidents Law. If this was found to be true, he would have been guilty of bribery, fraud, and breach of trust, and offenses connected to the management of a corporation.

After examining the evidence, we found that, while serving as an MK, Hanegbi functioned both as the chairman of the Finance Committee of the Knesset, and as the chairman of the sub-committee that was engaged in the promotion of a law. Concurrently, he also held a central position in the organization, whose main object was the enactment of the Traffic Accidents Law. This situation created a prima facie conflict of interests. While he did declare his income from the organization to the Knesset Speaker, Hanegbi failed to inform the committee members that he was both one of the founders of the organization and its chief. And, as we already stated, while serving as chairman of the sub-committee charged with the advancing the Traffic Accidents Law, and in his capacity as a Member of the Knesset, he was receiving a salary and significant benefits from the organization that he had established. Nonetheless, at the end of the day, the evidence was insufficient to prove, to the degree required in a criminal case, that the conflict of interest amounted to a “corrupt” breach of trust. This is especially true regarding proof of the criminal intent required in these offenses: that MK Hanegbi was aware that he was acting in a corrupt manner which was detrimental to the public.

14. These evidentiary difficulties result primarily from the fact that the organization from which Hanegbi received benefits, which he had established with the aid of his friends and long-time associates, had no interests independent of his own, and certainly none which conflicted with his own. During the period of its operations, Hanegbi served as the organization’s chairman and subsequently as its director-general, and he dictated the agenda. Similarly, there is no evidence at all that the organization ever pressured Hanegbi regarding his activities as an MK, nor was there even a suspicion of such pressure, which could have indicated the existence of a corrupt conflict of interest. On the contrary, it was MK Hanegbi who directed the other members of the organization in its different activities.

15. In particular, an evidentiary doubt still remains regarding the criminal intent. The question is whether, by receiving benefits from the organization, Hanegbi was aware that he was placing himself in a conflict of interest which amounted to a corrupt breach of trust, in connection with the Campaign Against Traffic Accidents Law, which Hanegbi initiated and promoted over a long period of time. Furthermore, assuming that the suspicion is that Hanegbi had “bribed himself” using the organization, it is impossible to prove beyond all reasonable doubt that this fulfills the criteria of a crime by an MK in a matter related to advancing legislation in the Knesset. The case law regards the offence of “breach of trust” as a consciously corrupt conflict of interests. In the case at hand, however, there is insufficient evidence of that kind of conflicting interest. Moreover, the organization did not represent any particular, sectarian-interest group; its purpose was rather to rouse public interest in the battle against road accidents.

16. Fuel Economy Law – MK Hanegbi served in rotation with MK Gideon Pat as the chairman of the Knesset Finance Committee. This committee dealt, among other things, with the Fuel Economy Law. During the period in which MK Pat served as committee chairman, two months before MK Hanegbi became committee chairman, the organization received contributions from fuel companies. The sum received amounted to about 10% of the total contributions received by the organization. According to the findings of the investigation, the overwhelming majority of the representatives of the fuel companies were unaware of Hanegbi’s involvement in the organization. None of them knew that Hanegbi was receiving benefits from the association to which they were contributing. Under these circumstances, it is impossible to prove that Hanegbi felt any sense of obligation to these companies. The intensity of the conflict of interests is therefore considerably weakened. Furthermore, during the relevant period, there was no chance of promoting the enactment of the Fuel Economy Law in view of the government’s opposition to that law. No evidence was found of Hanegbi having influenced the handling of the law.

17. The Knesset Ethics Committee reviewed two complaints concerning the benefits that Hanegbi received from the organization. It was alleged that the salary he received from the organization created a conflict of interest. This was in violation of the provisions of the Knesset Members Immunity Law, which forbids a Knesset Member from engaging in any occupation or additional occupation which creates a possible conflicting interests. It also contravened the Rules of Ethics for Members of the Knesset, which prohibit a Knesset Member from receiving, whether directly or indirectly, any material benefit for an act that he has performed within the framework of his duties or his status as a Member of the Knesset. On May 24, 1999, following its deliberations, the Ethics Committee found Hanegbi guilty. It ruled that the chairman of a Knesset Committee could not preside over deliberations of a particular issue while simultaneously occupying a key position in an organization whose chief aim was to promote that issue. This is true even if his duties in the organization were voluntary. The Committee further determined that the fact that MK Hanegbi was chairman and director-general of the organization while also serving as the chairman of the Finance Committee created the possibility of a conflict of interest between his additional occupation and his role as a Knesset Member. The Ethics Committee accordingly censured Hanegbi and docked his salary for two months.

18. However, the criteria for conviction in criminal proceedings differ from those governing disciplinary proceedings. People are frequently the target of disciplinary proceedings even when the allegations against them are not overtly criminal. The findings of the Ethics Committee, in accordance with the facts upon which they were based and the additional evidence gathered by the police, are insufficient to prove the offenses of fraud and breach of trust. Here, an MK dealing with the legislative arrangement for a particular cause was simultaneously the recipient of a salary and benefits from an organization which spearheaded the same cause, albeit with the association’s approval. It has long been our opinion that these facts may involve a breach of trust. However this is difficult to prove. We now confront the issue again, in view of the report given to the Knesset Speaker and his legal advisor, as detailed below.

19. The evidence against Hangebi was insufficient to substantiate a criminal conflict of interest in order to prove the crimes of fraud and breach of trust. An MK established an organization for an important public cause. He raised money for that cause which, as director-general of an organization, he was supposed to channel towards that public cause. Instead, with the consent of the organization’s members – who were his friends – he used most of the funds raised for his own benefit, in order to fund activities he performs in his capacity as an MK. All of this occurred after Hanegbi had submitted a private bill, which he believed to be tremendously important, as he admitted during investigations, and while he was receiving a salary in his capacity as an MK. Even so, regarding the mens rea of the offense, this was not the only organization that served as a tool for earning salary or benefits in the public sector. Moreover, MK Hanegbi reported his income from the organization to both the Knesset Speaker and the Knesset legal advisor, and this creates difficulties in proving the necessary criminal intent.

20. It should be noted that, at that time, pursuant to the Knesset Members Immunity Law (Rights and Duties), 1951, a Knesset Member was permitted to receive salary for “an additional occupation” provided that it did not exceed half of his salary as an MK. The law stipulated that such payment should not engender “a potential conflict of interest between the additional occupation and his role as an MK.” In 1998, the section was amended and today it is prohibited for an MK to engage in any additional occupation for remuneration.

10. As stated in the Attorney-General’s report, respondent’s actions in the Derech Tzleha affair led to disciplinary proceedings in the Knesset Ethics Committee. The committee determined that Hanegbi had placed himself in a conflict of interest, in contravention of the Ethics Rules, and therefore imposed two penalties on him: a reprimand and a two-month salary freeze. In its decision of May 24, 1999, the committee wrote:

20.A. MK Hanegbi served simultaneously as chairman, and subsequently as director-general, of the Derech Tzleha organization, and as chairman of the Economics Committee. This created the possibility of a conflict of interest between the additional occupation and his role as a Knesset Member, in violation of the provisions of section 13A(a)(3) of the Knesset Members Immunity (Rights and Obligations) Law, 1951.

C. Towards the end of the term of the Thirteenth Knesset, MK Hanegbi returned to his position as chairman of the Finance Committee. This gave rise to a potential conflict of interest concerning the Fuel Economy Law, since MK Hanegbi was receiving benefits from Derech Tzleha, which had accepted contributions from major fuel corporations. In this situation, MK Hanegbi should have transferred the bill to another MK, and by failing to do so, violated the provisions of section 13A(a)(3) of the Immunity Law, as worded at that time.

11. Hanegbi’s actions in the Derech Tzleha affair were investigated by the police. In June 1999, they recommended to the State Attorney’s Office that Hanegbi be indicted for accepting a bribe, fraud, breach of trust, and related offenses. The evidentiary material gathered by the police was examined and considered by the Attorney-General and the State Attorney. At the beginning of 2000, the decision was taken to indict respondent for fraud and breach of trust, fraud and breach of trust by a corporation, and falsifying corporate documents, all subject to a preliminary hearing. The Attorney-General decided, with the consent of the State Attorney, that “after extensive legal deliberation … grounds exist to indict MK Hanegbi for fraud, breach of trust and additional offenses.”

In anticipation of the proceedings to remove Hanegbi’s immunity as a Member of Knesset, the file was transferred to the Jerusalem District Attorney’s Office. It was here that the tables turned. In the words of the Attorney-General in his report: “At this stage of the process, difficulties arose once again regarding proof of the components of the various offenses, primarily regarding fraud and breach of trust. In view of our doubts regarding the reasonable probability of a conviction, the State Attorney and I decided to close the file.”

As such, no indictment was filed; instead, a public report was issued. This report gave a detailed account of the circumstances of the case. Its first section stated: “We would emphasize that the events, for which MK Hanegbi was both convicted and penalized by the Knesset Ethics Committee in 1999, indicated impropriety which, in our view, reached the level of an offense. However, we ultimately decided that there was no reasonable chance of obtaining a conviction.” In conclusion, the Attorney-General wrote:

In summary, we believed that the circumstances warranted an investigation, and we even considered that there ought to be an indictment. However, there must be a reasonable likelihood of a conviction, and this requirement, with the final preparation of the file, was ultimately not satisfied.

12. This concludes our review of the four cases upon which this petition is based.

13. The Attorney-General’s view was that respondent’s involvement in the Derech Tzleha affair made it inappropriate to appoint him as Minister of Public Security or to other positions connected with law enforcement. Accordingly, when he became aware of the intention to appoint Hanegbi as Minister of Public Security, the Attorney-General advised the Prime Minister to refrain from making the appointment, because “[a]lthough, according to statute and case law there appears to be no legal impediment to the appointment, the appointment itself is prima facie problematic from a civic perspective.” Notwithstanding this advice, the Prime Minister decided that it was appropriate to appoint Hanegbi as Minister of Public Security. Notably, when the previous government was appointed in 2001, and in the direct aftermath of the Derech Tzleha case, the Attorney-General also advised the Prime Minister against appointing respondent to any ministry entrusted with law enforcement. The advice was given “primarily from a civic perspective” and, on that occasion, the Prime Minister accepted the advice.

The Dispute

14. We are confronted with three principal affairs: the ISTA affair, the Bar-On affair and Derech Tzleha affair. In all of these cases, Hanegbi was suspected of criminal offenses and, in the latter two, the police recommended that he be indicted. However, he was never actually indicted and, as such, he was not convicted. The question therefore arises: Can a person be prevented from serving as a cabinet minister on account of suspected criminal offenses? If so, can Hanegbi be prevented from serving as a cabinet minister because of his involvement in these affairs? Petitioner does not contest Hanegbi’s appointment as a cabinet minister per se. Rather, the claim is that he is unfit for service as a minister charged with law enforcement and, for our purposes, as Minister of Public Security. This, in turn, raises the following question: Assuming that Hanegbi is fit to serve as a member of the cabinet and a minister, is he nonetheless unfit to be Minister of Public Security? Is the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security so unreasonable as to require this Court’s intervention? Even at this early stage I would state that there is no dispute between the parties regarding facts or the law. They dispute, however, the application of the law to Hanegbi.

15. Petitioner’s claim, in brief, is that, under the circumstances, there is a legal impediment to Hanegbi’s appointment as Minister of Public Security. Though Hanegbi was not indicted in any of the three cases, his involvement in them makes the Prime Minister’s decision to appoint him as the “Police Minister” blatantly unreasonable. Petitioner argues that the appointment irreparably damage the public’s confidence in the system of government and the police. Furthermore, there is also a serious chance that the appointment will cause irreversible damage to the functioning of the police, even if only because of the “bad blood” between Hanegbi and the police officers who investigated him and recommended his indictment. Furthermore, the Police Ordinance (New Version), 1971, grants the Minister of Public Security extensive powers over the police. For example, the appointment and promotion of senior officers (section 7 of the ordinance), which includes the ability to appoint the Inspector-General of Israel Police. See section 8A (stating that the government appoints the Inspector-General pursuant to the recommendation of the Minister of Public Security). Respondent may frequently find himself in a serious conflict of interest when handling the promotion of those who investigated him and who recommended his indictment. The latter will fear, and rightly so, that he will take revenge even if they have discharged their duties properly. Therefore, maintains petitioner, the Prime Minister’s decision to appoint Hanegbi as Minister of Public Security, is unreasonable.

16. Respondents to the petition – the Prime Minister, Mr. Hanegbi, and the Attorney-General – oppose petitioner’s request. In their view, Basic Law: The Government grants the Prime Minister particularly broad discretion regarding the appointment and removal of ministers. Furthermore, there is an inverse relationship between the breadth of the Prime Minister’s discretion and the constraints upon the High Court’s power to instruct him how to act. It is true that, in special circumstances, the Court can order the Prime Minister to remove a minister from his post, but an examination of the case law indicates that the Court can only exercise that power in rare and exceptional cases. See HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel, at 404 [hereinafter: Deri [47]]; HCJ 4267/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel, at 441 [hereinafter: Pinhasi [5]]; and Bar-On [3]. These are cases where indictments – indictments alleging particularly serious offenses – were filed against a minister.

The Prime Minister and Attorney-General on the one hand, and Hanegbi on the other, continue to assert, each in their own way, that this is not one of those rare cases in which the Court will intervene with the Prime Minister’s discretion. How so? Hanegbi was not even indicted and, as such, was certainly not convicted. Consequently, there are no legal grounds for preventing him serving as a cabinet minister. Hanegbi is presumed innocent until proven guilty. To prevent him from serving in any particular position without having stood trial violates the principles of justice, even if only because he has never been given the opportunity to prove his innocence (and especially since he is under no obligation to do so). The appointment may indeed be “problematic on the civic level” (in the words of the Attorney-General). However, the Prime Minister was aware of this, and having considered all of the pertinent factors, he decided that Hanegbi, with his variety of talents and experience, was the best candidate for the job. With regard to concerns over conflicting interests in relation to those police officers who interrogated him, we have Hanegbi’s assurance that that he bears against them no grudge. Furthermore, adds Hanegbi, his power to intervene in the professional decisions of the police is limited. The conclusion dictated by all of the above is that the Prime Minister exercised his powers lawfully; his decision was a reasonable one, and, in any event, it does not deviate from the range of reasonableness.

17. This concludes our review of the basic issues in dispute and the central claims of the parties.

The Legal Framework

18. We must first establish the legal point of reference from which to begin our investigation. We were requested to order the Prime Minister to remove respondent from his position as Minister of Public Security. Two questions present themselves in this regard. First: is the Prime Minister empowered to remove Hanegbi from acting as the Minister of Public Security? Second: if so, should the Court, under the circumstances, order the Prime Minister to remove Hanegbi from his position? These questions raise the issue of fitness to serve as a minister. We will now address the concept of “fitness” in its broadest sense.

19. The current version of Basic Law: The Government, the 2001 version, contains provisions concerning the fitness – or, more precisely the unfitness – of persons with a criminal record to serve as ministers. These provisions address a person’s non-appointment as a minister, as well as their dismissal. The unfitness of a person with a criminal past is regulated by section 6(c) of the Basic Law:

Fitness of Ministers	6. (a) …
	…………….
	(c) (1) A person who was convicted of an offense and sentenced to prison, and seven years have not yet passed since the day on which he finished serving his term of imprisonment or since the handing down of his sentence – whichever was later – shall not be appointed minister, unless the Chairman of the Central Election Committee states that the circumstances of the offense do not involve moral turpitude.
	(2) The Chairman of the Central Elections Committee shall not so rule if a court has determined that the offense involved moral turpitude.

As such, where a person was imprisoned for a crime involving moral turpitude, and seven years have not yet passed since the completion of the sentence (or the sentencing) – the conviction will prevent his appointment as a minister. Parenthetically, we would add that this provision replaced section 16(b) of Basic Law: The Government, 1992, which was even more stringent about membership in the cabinet.

Furthermore, pursuant to section 23(b) of the Basic Law: The Government, 2001, the office of a minister is terminated when he is convicted of an offense of moral turpitude.

Termination of the Tenure of a Minister Pursuant to an Offense	23. (a) …
	(b) Should a minister be convicted by the court, it shall state in its verdict whether the offense involves moral turpitude; should the court so state, the minister’s tenure shall cease on the day of such verdict.

The language of the statute is unequivocal: Conviction of an offense involving moral turpitude means the termination of tenure, with no reservation or discretion. The statutory provision acts as a guillotine: once certain “objective” conditions exist, the law itself prevents the minister from continuing to serve in that capacity.

These are the explicit statutory provisions governing unfitness to serve as a minister due to criminal involvement.

20. Together with the above explicit statutory provisions, there are also provisions regulating the Prime Minister’s power to terminate the tenure of a minister. Section 22(b) of Basic Law: The Government, 2001 provides:

Termination of the Tenure of a Minister	22. (a) …
	(b) The Prime Minister may, by way of written notification, remove a minister from his post; the removal of a minister will take effect 48 hours after the letter notifying thereof was given to the minister, unless the Prime Minister retracts it prior to such time.

This statutory provision, with minor differences, was also contained in section 21A of Basic Law: The Government, 1968, following its amendment of 1981, and in section 35(b) of Basic Law: The Government of 1992.

In light of these statutory provisions, the question is whether the unfitness provisions of sections 6(c) and 23(b) of Basic Law: The Government, 2001, limit the discretion afforded to the Prime Minister under section 22(b) of the Basic Law? In other words, with respect to a minister or ministerial candidate with a criminal past, do sections 6(c) and 23(b) of the Basic Law provide the sole and exclusive framework for the Prime Minister’s authority? It could be argued, for example, that the legislature went out of its way to specify certain preconditions to disqualify a minister with a criminal past from office. Can a negative inference be drawn from this that a minister will not be regarded as unfit to serve unless the statutory preconditions for unfitness are satisfied? Also, regarding a minister’s criminal past which does not fulfill the statutory conditions of unfitness specified in section 23(b) of Basic Law: The Government, 2001, does the Prime Minister have no authority to terminate a minister’s tenure? If so, does it not follow that the person is a fit candidate for a ministerial post?

The above questions were discussed at length in Deri [47] and in Bar-On [3]. Pinhasi [5] discussed the same issues in relation to a deputy-minister. The Court’s answer was clear and unequivocal: the explicit statutory provisions cited above in no way restrict the Prime Minister’s discretion or the Court’s discretion to review the Prime Minister’s decision. It will be recalled that those cases involved the judicial review of the Prime Minister’s decision not to terminate the tenure of a minister. The Court ruled as follows: the Prime Minister is vested with the power to terminate, or retain, the tenure of a minister (or deputy-minister); the statutory provisions do not restrict the Prime Minister’s discretion to dismiss a minister; the additional statutory provisions do not limit the scope of section 21A of Basic Law: The Government (1968-1981; currently section 22(b) of Basic Law: The Government, 2001); and no negative inference can be drawn from the absence of provisions governing the termination of tenure. See Deri [47], at 421; Pinhasi [5], at 456-57.

In this context the Court distinguished between unfitness for a particular office and discretion concerning an appointment to office or removal from office. Sections 6(c) and 23(b) of the Basic Law deal with “fitness” and, as such, do not restrict the Prime Minister’s discretion regarding the non-appointment of a person to a particular office, or his removal:

We must distinguish between questions of fitness (or authority), and questions of discretion. The absence of any express statutory provision regarding the unfitness of someone with a criminal past establishes the candidate’s fitness. However, it does not preclude the possibility of considering his past within the framework of exercising the administrative discretion given to the authority making the appointment. Indeed, the criminal past of a candidate for public office is a relevant consideration, which the authority making the appointment is entitled and even obligated to take into account.

HCJ 6163/92, 6177 Eisenberg v. Minister of Construction and Housing, at 256-57 [6]. This rule was actually established prior to the enactment of section 23(b) of Basic Law: The Government, 2001. However, not only does this statutory provision not touch on the issue of discretion – the wording of the law makes clear that the termination of tenure occurs automatically under certain circumstances – but the logic behind the law sheds light on our case.

22. The general principle is, therefore, that the Prime Minister is empowered to refrain from appointing a person as a minister, or to dismiss a minister, even in cases not covered by the stringent conditions expressly stated in the law. Once it has been established that the Prime Minister has the power to remove a minister from office, it follows automatically, as a matter of principle, that this discretion is subject to the judicial review of the High Court of Justice.

The Exercise of Discretion

The Prime Minister and Cabinet Ministers as Public Trustees

23. This brings us to the main point. There is no explicit statutory provision (not even in section 22(b) of Basic Law: The Government) that sets out criteria governing prime ministerial discretion in determining the composition of the government. This is true of both appointments and dismissals. Nor is there any statutory restriction of the Prime Minister’s discretion. The discretion of the Prime Minister may therefore be based upon a variety of pertinent considerations. But, like any other legal discretion, it is constrained by the basic principles of administrative law, which form the foundation of public administration and inform it at all levels. First and foremost among these principles is the principle of trusteeship. All those empowered on behalf of the state are believed to exercise their powers for the good of all, and their status obligates them to act as trustees in the exercise of their powers. In the canonical words of Justice Cohen:

[T]he private sector differs from the public sector, for while the former acts as it pleases, giving and taking at will, the latter exists solely for the purpose of serving the public, and possesses nothing of its own. Whatever it has it owns as a trustee, and it has no rights or obligations in addition to, or distinct from, the rights of the trusteeship or those conferred or imposed by statutory provisions.

HCJ 142/70 Shapira v. Local Committee of Chamber of Advocates [60], at 331. See also Deri [47], at 417; Pinhasi [5], at 461-63; Bar-On [3], at 55-56; HCJ 4566/90 Dekel v. Minister of Finance [58], at 33.

24. In other words: Those exercising authority on behalf of the state or any other public authority – in our case, the Prime Minister and the Minister of Public Security – must constantly be aware that their affairs are not their own. They are dealing with matters that concern others and are obligated to conduct themselves with fairness and integrity, in strict compliance with the principles of public administration. Within the area of private law the individual can behave with a measure of the “caprice,” though such “caprice” is not what it used to be, nor should it be. But in the realm of public law – constitutional and administrative law – caprice is a terminal illness. Those who wield authority conferred on them by law, however insignificant that authority may be, must strictly scrutinize all their decisions and actions. They must never forget that all their decisions and actions are on behalf of others, not their own interests. Fortunate is the community whose leaders understand not only the prerogatives but also the limitations of their power. As the High Court recently stated:

When acting in the domain of public law, the appointing authority operates in the capacity of a public trustee. Just as a trustee possesses nothing of his own, so too, the appointing authority possesses nothing of its own. It must conduct itself in the manner of the trustee: acting with integrity and fairness, considering only relevant factors, acting with reasonableness, equality, and without discrimination.

Those with the power to appoint or decide must therefore act with integrity and fairness, without considering irrelevant factors, guided by principles of reasonableness and equality, and without discrimination. Any failure to discharge this duty opens the door to inappropriate appointments or decisions. The wrong people are appointed and the right people overlooked, and the public good is harmed. But the necessity of imposing these obligations on persons with the powers to make appointments or decisions relating to particular individuals extends beyond the propriety or legality of particular appointments or choices. The scourge of inappropriate appointments must be stopped, in order to preserve the very existence of the public service. Moreover, those appointed illegally are liable to adopt similarly illegal methods when they have to make appointments themselves. The fathers have eaten sour grapes and the sons who witnessed their fathers will also eat sour grapes. Cf. Ezekiel 18:2. And, we all know where this path leads.

HCJ 2671/98 Women’s Lobby v. The Minister of Labor and Welfare, [61] at 649-50. These words deal with appointments to the public service (specifically the deputy director-general of the National Insurance Institute), but also they also apply, under different circumstances, to the case before us.

25. We have seen that the Prime Minister and all ministers are in fact trustees, holding their offices in trust for the public. We can further infer from this that, when considering the appointment, or the continued service, of a minister with a criminal past, the Prime Minister must conduct himself as a trustee dealing with the public’s affairs. How does a trustee ensure the propriety of his conduct? My colleagues have elucidated the guiding principles, wisely and at length; adding to their comments would be superfluous. I will cite just a few of the comments made by them in this context, which will be instructive for our purposes. For example:

The statutory provision [empowering the Prime Minister to dismiss a minister] is also intended to constitute a response, in the form of removal from office, to a serious incident involving a minister. This applies when that occurrence, whether act or omission, affects the stature of the government, its public image, its ability to lead and serve as a role model and its capacity to inculcate proper behavioral norms. It applies primarily when the incident impacts the public’s confidence in our system of government, on the constitutive values of our system of government and law, and on the duties of the ordinary citizen which arise from them.

Deri [47], at 422 (Shamgar, P). Furthermore:

The Prime Minister, the government, and all of its ministers are in the position of trustees. This position requires them to consider whether to terminate the tenure of a deputy-minister against whom an indictment has been filed, the offenses being particularly grave. The Attorney-General may decide that there is sufficient evidence for an indictment. Under these circumstances, the continued service of this minister is liable to diminish public confidence in the ruling authorities. The authorities must therefore consider the matter with the utmost gravity. For it must be remembered: the government’s ability to rule is based on the confidence of the public. Without public confidence, the government cannot function.

Pinhasi [5], at 461 (Barak, J). Similarly:

An elected public official is like a cantor leading the prayers. The cantor is the community’s mouthpiece. He presents himself as impoverished in deeds, humble and frightened. So, too, the public servant. Like the prayer leader, he possesses nothing of his own. What he has belongs to the community he serves. Decency, honesty, and purity of heart are the hallmark of a worthy cantor, and this is the pillar of fire which guides the public servant in his path. This is the only way in which he can properly serve the community that chose him as its leader, and the only way for him to win the public’s confidence. It is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates. The higher they ascend the ladder of leadership, the greater our demand for honesty and integrity from our leaders.

HCJ 103/96 Pinchas Cohen, Adv. v. The Attorney-General [62], at 326.

The same applies to the government, which enjoys a particular status and image in the public eye. It must maintain public confidence in the Israeli system of governance and in our constitutive values. There is an inherent need for the government and the administration to conduct themselves in a manner that is ethical, decent and dignified. Hence, under certain circumstances, the duty of the Prime Minister to remove a minister from office becomes a duty, a power that the Prime Minister is obligated to exercise. What then are the particular circumstances that transform the Prime Minister’s power to dismiss a minister into a duty?

Indictment of a Public Trustee: Trusteeship and Public Confidence

26. In Deri [47], an indictment was filed against the Minister of the Interior, Aryeh Deri, for the offenses of bribery, breach of trust by a public servant, the fraudulent receipt of goods in aggravated circumstances, and falsifying corporate documents and theft by a director. See Deri [47], at 410. In Pinhasi [5] an indictment was filed against the Deputy-Minister of Religious Affairs, Raphael Pinhasi, for falsifying corporate documents, false testimony and attempting to receive goods by fraud. See Pinhasi [5], at 447. In both cases the Court was required to decide whether the indictments were sufficiently grave to compel the Prime Minister to remove the minister and the deputy-minister from office. The Court decided in the affirmative in both cases:

In summary, based on the Deri and Pinhasi cases, the rule is that where an indictment for a serious offense is filed against a minister or a deputy-minister, the Prime Minister is duty-bound to remove the minister or deputy-minister from their post. Under these circumstances, the Prime Minister’s refusal to discharge that duty will be regarded as unreasonable in the extreme. Consequently, in the event of such a refusal, the Court can order the Prime Minister to exercise his power to remove the minister or deputy-minister from his position. Today, too, the Prime Minister’s refusal to remove a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.

See Bar-On [3], at 56 (Zamir, J.). The rule is crystal clear: “The Prime Minister’s refusal to remove from office a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.”

27. The duty of trusteeship owed by the Prime Minister and other ministers is inextricably linked to public confidence in the government. A trustee who behaves appropriately wins trust; a trustee who does not live up to the required standards will not enjoy the public’s confidence. The government needs the trust both of the Knesset and of the public as a whole. If it behaves as a trustee should, it becomes the repository of public confidence. Where the government betrays its trusteeship, public confidence in the government is shattered, and the Court will intervene. This is what the Court did when it forced the Prime Minister to dismiss Minister Deri and Deputy-Minister Pinhasi.

One might ask: why should the Court trouble itself with the question of public confidence in the government by directing the Prime Minister to remove officials from their positions, as it did in Deri [47] and Pinhasi [5]? The public will presumably express its loss of confidence in the government at the ballot box. Why then should the Court issue orders concerning the relationship between the people and the government? Furthermore, the principle of decentralization and the relationship of respect owed by the judiciary to the executive and legislative branches, especially with respect to the internal management of these branches, obligates the Court to distance itself from the question of the composition of the government. This is the government’s exclusive domain, and it ought to remain that way, subject to the express provisions of the law.

28. This narrow conception of the relationship between the judiciary and the other authorities is one possible view – possible but undesirable. The Supreme Court rejected it – and rightly so – in Deri [47], Pinhasi [5], and Bar-On [3]. The Court premised its decisions on the issue of public confidence, and this too was the right path. The Court explained its position as follows:

Without public confidence in the public authorities, the latter become an empty vessel. Public confidence is the mainstay of the public authorities and enables them to discharge their functions.

Eisenberg [6], at 262 (Barak, J.). Later, in discussing public confidence in the government, the Court dealt with past actions that may tarnish the image of a candidate to public office:

Public confidence in the organs of government is one of the most important assets of the governing authority and of the state. When the public loses confidence in the ruling authorities, it also loses its belief in the social contract of communal life. Paramount importance ought to be given to maintaining, preserving, and promoting the feeling that public servants are not masters and that they discharge their duties for the sake of the public, honestly and incorruptibly. The purity of the service and of its members is the foundation of the civil service and the basis of our social structure …. This consideration is central and must therefore be accorded significant weight in the overall decision regarding the appointment of a candidate with a criminal past.

Id. at 262. This ruling was reaffirmed in Deri [47], Pinhasi [5], and Bar-On [3]. As stated in Pinchas Cohen [62]: “[I]t is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates.” Therefore, when confronted with a concern that a particular act or omission will severely impair the public’s confidence in its leadership, the Court cannot stand idly by, claiming that this matter is not its concern. Judicial intervention in such cases is a form of self-defense – the self-defense of the entire state, of which the judiciary itself is part. How would this Court respond if it was accused of being silent in the face of such a travesty? This was our holding in both Deri [47] and Pinhasi [5], and we will be guided by it.

Indictment and Evidence in Support of the Indictment; Evidence without an Indictment

29. As we have already observed, the law provides that where an indictment for a serious offense is filed against a minister, the Prime Minister is obligated to remove that minister from office. By extension, his refusal to remove the minister under those circumstances is considered to be unreasonable in the extreme and warrants judicial intervention. Now, it could be asked: is this, in fact, the correct interpretation of the law?

30. An indictment is no more than a document bearing the signature of an attorney, the Attorney-General, or any other authority. The signatory affirms that to the best of his understanding, the police file contains prima facie evidence that the accused committed the offenses in the indictment. An indictment effectively amounts to an expert opinion of its signatory that, prima facie, the defendant has committed the offenses specified in the indictment. And the question necessarily arises: Is this sufficient? In other words, is the understanding of the signatory – however elevated his status may be – that a person has, prima facie, committed various offenses, sufficient to compel the minister or deputy-minister to step down, without giving them the chance to present their case? Were this to be provided by statute, we would accept it (subject, of course, to the basic principles of fair procedure). However, should we make this our holding: that an indictment for serious offenses obligates the Prime Minister to remove a minister and deputy-minister from office? Was this the impact of the ruling in Deri [47] and Pinhasi [5]? It is clear to us that this is not the law and that this was not the Court’s intention in those cases.

31. In our opinion, a correct understanding of those cases is that we cannot rely upon an indictment, even if it bears the signature of so exalted a personage as the Attorney-General himself. Rather, the indictment is a document that consolidates the evidence collected in the police file, evidence that prima facie incriminates the accused of the offenses ascribed to him. The indictment may be likened to a container with a label that attests to its contents. Its essence is the evidence gathered in the police file, and the basic assumption is that the indictment is a proper summation of that evidence. In both the Deri [47] and Pinhasi [5], the Court was careful to emphasize this point. In Deri [47] the Court enumerated the offenses of which Deri was suspected, declaring immediately afterward that: “The facts, which reflect the prima facie evidence in the hands of the prosecution, are described at length in the indictment spanning 50 pages.” Id. at 410. The Court added:

We described the main points of the indictment presented to the Knesset in the case at hand. The indictment includes particularly serious allegations of corruption, but it is not a judgment. It only reflects the prima facie evidence collected by the prosecution. But, for the purpose of continued service in the government, significance is also attached to prima facie evidence collected in the indictment, which has now become public knowledge. In terms of the reasonableness of certain actions, circumstances are not assessed solely in terms of their ability to generate a hard and fast judicial determination. It is also significant what type of actions have been attributed to an individual, when clad in the official dress of an indictment ready for filing before the courts.

Id. at 422-23. It was added:

[A]nd if, heaven forbid, an indictment is filed against a minister, based on prima facie evidence, which ascribes to the minister serious offenses that involve moral turpitude both by definition and under the circumstances – e.g. where a minister is charged with accepting bribes, fraud, deceiving state authorities, lying, or making false reports – then it would be neither appropriate nor reasonable for him to continue in office.

Id. at 427 (Levin, J.). In both Deri [47] and Pinhasi [5], the basic assumption was that there was prima facie evidence in support of the accusations. The import of Deri [47] and Pinhasi [5] is that, where there is evidence in the police file in support of an indictment filed against a minister or deputy-minister for serious offenses, then such evidence may obligate the Prime Minister to remove the minister or deputy-minister from office. The salient element is not the indictment as such, but rather the prima facie evidence that has crystallized into an indictment.

32. This interpretation of the ruling is unavoidable. The other interpretation – that an indictment alone is sufficient to remove a minister from office – would deviate from basic legal principles of fairness and justice. Consider the case of a minister who is a candidate for removal exclusively because of the indictment filed against him for serious offenses. He wishes to argue that the indictment was based upon a mistaken understanding of the evidence collected in the police file, and that the charges against him are groundless. The most basic principles of justice require the Court to listen to his claims, and not to refer him to the criminal proceedings to assert his claims. Any other response would undermine the fundamental respect enjoyed by the Court. Furthermore, to confer on an indictment the status of a conclusive document, in terms of the termination of a minister’s office, is tantamount to divesting the Court of its discretionary power, and transferring this power to the attorney who signed the indictment. Such a divestment of judicial power is unacceptable. The Court cannot divest itself of its power to adjudicate and rule in accordance with the evidence submitted to it. Discretion in judicial proceedings belongs exclusively to the Court and the fundamental principle in that context is that the Court cannot delegate its discretion to others, be it to the Attorney-General, or to any of the attorneys in the State Attorney’s Office. By extension, it will not regard an indictment as an irrefutable, conclusive document. The indictment per se will not determine the fate of a minister.

33. To summarize: the rule is that an indictment for serious offenses may lead to a minister’s removal from office. The proper interpretation of this rule is that an indictment constitutes an expert opinion that the police file contains evidence which adequately supports the charges against the minister. It is the supporting evidence behind the indictment that weighs against the minister, and not the indictment itself. Concededly, the indictment adds a certain degree of weight to the probative power of the evidence in the police file, but it is by no means conclusive. An indictment for serious offenses, even particularly serious offenses, does not tip the scales against the minister. But, as we shall shortly observe, the reverse true is not true either – the absence of an indictment does not tip the scales in his favor.

34. We have established that the conclusive element – whether to the minister’s detriment or to his advantage – is not the indictment per se. Consequently, we must examine the evidence itself, and assess its importance for the case at hand. And we must also discharge another duty: an examination of the reasons and circumstances that convinced the Attorney-General, or the State Attorney’s Office, not to file an indictment. Consider a case in which the evidence collected justified an indictment for a particularly serious offense, but the key witness absconded from the country, as a result of which the Attorney-General refrained from filing an indictment. In that kind of case, can one say that the Court may in good conscience refuse to address the matter, and release itself from all responsibility, for the simple reason that no indictment was filed? I think not.

35. The above would also apply to a decision not to file an indictment, and even to a decision to close a police file. It will be recalled that police files are closed for a variety of reasons, and closing a police file without filing an indictment in no way indicates that no offense was committed, or that there is no evidence attesting to guilt. Thus, for example, the category of closing a file “for lack of evidence,” includes cases in which the prosecutor has evidence that connects a particular person with the commission of an offense, only that such evidence is insufficient to prove the commission of an offense beyond all reasonable doubt, the requirement in criminal law. This Court addressed this question in HCJ 7256/95 Fishler v. The Inspector General of the Israel Police [63]:

[F]iles which are closed for lack of sufficient evidence also include investigations of serious and even extremely serious offenses. There are cases in which the investigative bodies have information that leads to the re-opening of a file which was previously closed. This was referred to in the memorandum on the Crime Register and Rehabilitation of Offenders (Various Amendments) Law, 1996, which wasrecently disseminated by the Ministry of Justice:

Where prosecuting authorities close a file for lack of evidence, this does not mean that they have concluded that the suspect did not commit the offense. Closing a file on those grounds may occasionally be purely the result of technical factors, such as a doubt as to whether particular evidence will constitute corroboration, or where the key witness has left the country or otherwise absconded. Accordingly, information contained in these files may still be relevant for those bodies entitled to receive information on closed files, just as information regarding files closed on other grounds is relevant to such bodies.

Id. at 9-10, (Goldberg, J.). A similar argument was expressed in a later case:

On January 2, 1994, the State Attorney issued guidelines regarding the exercise of discretion (Guideline No. 1.3 “The Closure of Files Due to Insufficient Evidence and Due to Lack of Guilt.” The Guidelines clarify the procedure of closing a file due to insufficient evidence. Within the basic framework which governs the closure of files on the statutory grounds of “insufficient evidence,” the guidelines establish a secondary category – the grounds of “lack of guilt.” According to the Guidelines, when a prosecuting attorney concludes “…that there is evidence in the investigation file which raises the suspicion that a person has committed a certain offense, but the evidence is not sufficient for proof of guilt, and is therefore insufficient for indictment – the file regarding that suspect will be closed on the grounds of ‘insufficient evidence,’ and the reason for closing the file will be recorded accordingly.” (para. 2). Where, however, the attorney is convinced “that no offense was committed in the same matter, or that there is no trace of evidence as to its commission, the file will be closed due to a ‘lack of guilt,’ and not due to ‘insufficient evidence’” (para. 6). The Guidelines clarify that the closure of a file due to a lack of guilt – a category not mentioned in the statute – is intended “to prevent the perception of there being any element of doubt as to the innocence of a person suspected of a particular matter, which would cause him unjustified harm” (para. 7). This Court adopted the distinction between a file closed due to “insufficient evidence” and a file closed due to “lack of guilt,” and has ruled that it is justified to close a file for “insufficient evidence” and not “lack of guilt” when the existing evidence leaves a reasonable doubt regarding the suspect’s innocence.

HCJ 2682/98 Appel v. The State Attorney [64], at 137-38 (Strasbourg-Cohen, J.). Compare HCJ 4539/92 Kablero v. The Attorney-General [65], at 56. As stated above: the Court will decide, based on the evidence before it, and not merely because an indictment was filed. Similarly, the Court will examine the reason for not filing an indictment, and this reason will be an apposite consideration in its examination of the entirety of considerations, but no more than that.

36. The rule is that the power to remove a minister from office – which may occasionally become mandatory – is not restricted to cases in which an indictment was filed against the minister. As stated in Pinhasi [5]:

[C]ircumstances may arise in which the mere opening of an investigation justifies the termination of tenure. By contrast, circumstances may arise in which even a conviction does not justify the termination of tenure. In this respect, the particular section under which the indictment is filed is not conclusive. The determinative factors are the circumstances surrounding the commission of the offense and the other circumstances of the case.

Id. at 474 (Barak, J.). In Bar-On [3] it was noted:

Because the test is substantive and not merely formalistic in nature, it cannot be stated categorically that that only an indictment issued with respect to a serious crime, or at least an investigation with respect to the performance of such a crime, are capable of justifying termination of office. The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case, even if it does not amount to a criminal offense, may be so very severe, to the point that it would be extremely unreasonable to allow him to continue in office.

Id. at 63-64 (Zamir, J.). But these comments were soon qualified:

But there exists a vast difference between an extreme situation like this, which forms an exception to the law, and a broad ruling which would render unfit any minister or deputy-minister whose conduct deviates from acceptable standards. The proposal to expand the existing ruling so that such conduct would obligate the Prime Minister to dismiss the minister or deputy-minister, even though that proposal is motivated by good intentions, is not appropriate. It is likely to do more harm than good.

Id. (Zamir, J.). We unreservedly concur with these comments, but every case must be determined according to its particular circumstances. We must distinguish between two different types of cases. The first is of a minister or deputy-minister “whose conduct deviates from acceptable standards.” On this basis alone, he cannot be allowed to remain in office. The second is of a minister who has not been indicted due to lack of evidence, even though there exists reliable administrative evidence that he committed a particularly serious offense. The reason he was not indicted was because in the offense could not be proved beyond all reasonable doubt.

Administrative Discretion; Administrative Evidence; “Criminal Past”; Presumption of Innocence

37. Our position is that the evidence in the police file is the primary determinant of the parameters of discretion. This places us firmly in the realm of administrative discretion and judicial review of the discretion exercised by a competent authority. To avoid any suspicion of intentional disregard, we would hasten to add the following: we are aware that the procedure confronting us is not a regular administrative procedure, like the denial of a license to grow cabbage (a subject of great importance to the applicant). And yet, the guiding principles are identical, whether the case is momentous or trivial in nature. The manner of implementation may change, as we will shortly show, but the principles are the same.

38. It is well known that the rules of evidence in administrative law differ from the rules of evidence in criminal and civil law. An administrative authority is entitled, and indeed obligated, to consider evidence that would not be admissible in a criminal or civil proceeding. For example, where a person’s candidacy is being considered for an office or a job, the reasonableness of the appointment will be assessed in accordance with the rules of administrative evidence. These rules of evidence are less strict than their counterparts in civil and criminal judicial procedures. Administrative evidence is evidence which “any reasonable person would regard as having probative value and would rely upon to any particular degree.” See HCJ 442/71 Lanski v. Minister of the Interior [66], at 357. The well of potential evidence is bottomless, and clearly includes evidence that is not admissible in criminal or civil judicial proceedings. Compare Lanski [66]; CA 5709/95 Ben-Shlomo v. Director of The Value Added Tax Authority [67], at 251; II Itzchak Zamir, Administrative Authority 751 (1996).

This type of framework is capable of accommodating findings in a judgment made against a third party, to which the candidate himself was not a party. Compare Eisenberg [6], at 272. This includes findings of a police investigation, and decisions of the State Attorney which did not crystallize into an indictment. Compare Fishler [63], Kablero [65], and Appel [64]. The question is whether the competent authority was presented with “sufficient evidence on which a reasonable person could rely, under the circumstances, in order to adopt the decision in question.” See HCJ 164/97 Kontram Ltd. v. Ministry of Finance [68], at 332.

In the administrative realm, therefore, the litmus test is neither technical-legal nor mechanical in nature. The test is one of reasonableness, of common sense. This applies both to the selection of the information on which the authority chooses to rely, and to the weight of the various factors under consideration. This point has been noted by the Court:

In order for an authority to rely on a particular piece of information, the latter must satisfy the test of admissibility for administrative evidence. This test is a flexible one. It allows the administrative authority to consider evidence that is not admissible in court, such as hearsay. Even so, not every wild rumor provides sufficient basis to substantiate a finding. The test is therefore one of reasonableness: the administrative authority is entitled to rely on information that relates to a matter on which a reasonable person (or more precisely – a reasonable authority) would rely in order to reach a decision regarding the matter in question.

The relevant information, which is the information that satisfies the test of administrative evidence, becomes the foundation of the decision. This foundation must be sufficiently sturdy to support the decision. What is the meaning of “sufficiently” for this purpose? Here, too, the determination of what constitutes sufficient evidence is a question of reasonableness. In other words, the nature of the facts must be such that a reasonable authority would rely upon it in order to adopt the decision.

HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, [69] at 424-25 (Zamir, J.). Regarding the distinction between the filing of an indictment and a conviction, compare Deri [47], at 422-23, and Pinhasi [5], at 462.

39. The boundaries of administrative evidence also cover a person’s “criminal past.” As is well known, in criminal proceedings, at the crucial sentencing stage importance is often attached to the offender’s past criminal convictions in order to show his “criminal past.” This is not the case in administrative procedure: a person’s “criminal past” can also be proven on the basis of administrative evidence, not just a judicial conviction. This point was made in Bar-On [3]:

Only in the most extreme cases will the Court compel the Prime Minister to exercise this power [to remove a minister from office]. These are cases in which there is administrative evidence of the commission of serious criminal offenses and a threat of serious damage to public confidence in the government authorities. One could perhaps add cases of extreme deviation from the moral integrity required of a person serving as a minister.

Id. at 68 (Or, J.). The Court related to this again more recently:

Generally, an administrative authority establishes facts on the basis of administrative evidence. Administrative evidence is evidence that a reasonable person (or reasonable administrative authority) would rely upon under the circumstances. This rule was established long ago and is now generally applied in all matters. The Court has also affirmed its application in various contexts with regard to the proving a person’s criminal past or criminal conduct. The Court has affirmed its application regarding decisions of the Parole Boards to revoke a prisoner’s leave pass, due to the commission of an offense; regarding the decision of a military commander to destroy a building following a murder; regarding the President’s power to pardon “criminals;” and similarly regarding the appointment of a person with a criminal past to public office.

HCJ 1227/98 Malevsky v. Minister of the Interior [70], at 715-16.

As we have already determined, these rules fully apply to an appointment to a public office, and in this context, ex hypothesi, there is no room for a strict application of the “presumption of innocence.” This presumption informs us that a person is presumed innocent until convicted. It applies to the criminal procedure and to the punishment of an offender in the manner set out by law. As for the administrative procedure when an authority is required to rule regarding a person’s “criminal past,” it can do so on the basis of administrative evidence, without a criminal conviction. This rule was dealt with at length in Eisenberg [6], where the Court distinguished between a criminal conviction, and a person’s “criminal past” under administrative law. The Court stated:

A criminal past for purposes of a particular appointment is not to be identified with a criminal conviction. We are dealing with an administrative decision of the government to appoint a particular person to a public position. This is not a decision to a statutory penalty. While there can be no criminal punishment without a conviction, this does not apply to an appointment. With respect to an appointment, it is the factual picture with which the appointing authority was presented that is relevant. The relevant question is, therefore, given the facts as presented to the authority, could a reasonable authority have deduced the commission of a criminal offense? If so, this would be sufficient in order to establish “a criminal past” for purposes of deciding the reasonableness of the appointment. Of course, for purposes of determining the reasonableness of the administrative decision, the commission of the criminal offenses attributed to the candidate is the decisive factor. A criminal conviction is clearly sufficient “evidence” of this, but there are other forms of evidence, such as a confession before a competent authority.

The applicable rule in the case before us is the “principle of administrative evidence.” A governmental authority is permitted to base its findings upon evidence which, under the circumstances, is such that “any reasonable person would have regard to its probative value and would have relied upon it.” An administrative finding may be based upon “material whose evidential value is such that reasonable people would regard it as sufficient to draw conclusions regarding the nature and occupations of the persons concerned.”

Id. at 268. This ruling has embedded itself deep within Israeli law. See HCJ 932/99 The Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments [71], at 769; HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon [hereinafter: Bus 300 [72]], at 265; HCJ 5795/97 MK Yossi Sarid v. Minister of Defense [73], at 799. And, in accordance with Deri [47] and Pinhasi [5], this is also the rule for the examination of appointments and the tenure of ministers and deputy-ministers:

[W]e must consider the fact that we are only concerned with an indictment prepared by the Attorney-General. Deputy-Minister Pinhasi has not been convicted, and continues to protest his innocence. The weight attached to the concern for the public’s confidence in the authorities when a public figure has been convicted or admits to an offense is not the same as the weight of that consideration when there is only an indictment, and when the accused protests his innocence. Even so, this consideration should not be given conclusive weight. Our concern is with a governmental act of termination of office. In order to justify such an act, there is no need for a criminal conviction. While every accused person enjoys a presumption of innocence, that presumption does not prevent the termination of the office held by the accused. The only condition is that the governmental authority making the decision must have evidence, which under the circumstances is such that “any reasonable person would regard it as having probative weight and would rely upon it.” Justice Shamgar also made this point, ruling that an administrative finding can be based on:

“ [M]aterial whose evidential value is such that reasonable people would regard it as sufficient for drawing conclusions regarding the character and conduct of the persons concerned.”

And Justice Sussman commented in a similar vein:

“[T]he rule that a person is presumed innocent in the absence of evidence to the contrary, does not imply – and nor am I aware of any other legal principle which implies – that an administrative authority which must be convinced of a person’s criminal past may only determine that he has a criminal past if he was convicted by the courts.

Should we strike down the commissioner’s refusal to appoint a candidate as a civil servant when such refusal was based on reasonable evidence of a criminal past, simply due to the lack of a conviction? Let us assume that this applicant desired to be accepted into the public service, and the Commissioner refused to accept him for the above reasons. Would we force the Commissioner to accept him due to the lack of a conviction?

An administrative authority is empowered to make a decision regarding an individual’s personal history, but is not empowered to swear in witnesses and collect evidence in the manner that it is collected in court. Therefore there it is appropriate that its decision be based on evidence which would persuade a reasonable person as to the applicant’s past. This will apply even where the evidence is not admissible in a court of law, and even where it lacks significance in judicial proceedings.”

I also addressed this issue in Eisenberg, at 268:

“[W]hen assessing the reasonableness of a decision of an appointing governmental authority, the decisive factor is the criminal offenses attributed to the candidate. A criminal conviction is certainly an appropriate “proof,” but there are other means of proof.

The relevant principle in our case is the “principle of administrative evidence.”

Pinhasi [5] at 467-69.

40. In this context we would do well to recall respondent’s claim regarding the presumption of innocence. Respondent informs us:

The presumption of innocence is one of the most basic rights conferred on all citizens in any democratic regime. It is intended to protect a person who has not yet been convicted from restrictions and sanctions which express his status as a criminal. The principle is well-known and well-established. Any determination regarding Hanegbi’s unfitness to serve in particular positions necessarily expresses at least a limited presumption of his guilt, and diminishes the presumption of his innocence.

Moreover, respondent claims that it is an elementary human right that a person be allowed to defend himself against an accusation. Respondent claims:

[T]his elementary right, “a person’s lawful right to defend himself,” was effectively denied to Minister Hanegbi due to the decision not to file an indictment or try him. Paradoxically, if petitioner’s claim is accepted, the result will be that this decision was the most damaging of all, because he no longer has the legal means to prove his innocence.

Respondent here confuses two distinct issues, and hence his conclusion is mistaken. A clear distinction must be made between respondent as a private individual, and respondent as a minister. Furthermore, he is not just any minister, but the Minister for Public Security, in charge of law enforcement. The presumption of innocence resembles the right to silence. Both are granted to a person as a private individual. Consequently, as long as a person’s guilt has not been proven beyond all reasonable doubt, and with due legal process, he is presumed to be innocent of any crime, and no penal sanction may be imposed upon him. But there is no connection between criminal proceedings – the object of which is the imposition of sanctions – and a person’s appointment as a public official. Is the mere fact that a person has not been indicted sufficient, in and of itself, to render him “fit” to be a minister? From the legal standpoint, surely more is required? If this is respondent’s view, then it contradicts the law. “The presumption of innocence – enjoyed by every accused person – does not prevent the termination of service of a public official.” See Pinhasi [5], at 468. Following this holding, I declare that, for our purposes, there is no requirement for evidence beyond all reasonable doubt in order to render a person unfit for service as a minister. As noted in Bar-On:

It cannot be stated in an unequivocal manner that a person’s removal from office can only be justified where an indictment has been filed or an investigation has begun.

Id. at 63. Even evidence of less import than that obtained in a criminal investigation may be sufficient. This is even more true in our case, especially when we consider two elements. First, the cumulative effect of the accumulated cases against respondent. Second, the fact that the Prime Minister insists that respondent not only be a minister, but specifically the Minister of Public Security, the minister in charge of the police and law enforcement.

“Political” Considerations; Intervention in the Prime Minister’s Discretion

41. Until now we have referred to considerations of a person’s “criminal past.” But these are just a small part of the whole picture that the Prime Minister must consider when making a ministerial appointment, or when considering whether to remove a person from office. We all know that a person’s “criminal past” is not the only factor which the Prime Minister is permitted and obligated to consider when deciding whether a particular person will be a minister, or will be removed from office. Furthermore, in the political reality with which all are familiar, these are not even the main considerations. The parameters of the Prime Minister’s discretion are very broad, and take in a wide array of considerations, among them the candidate’s suitability for the office, the best interests of the public in the broad sense, and others.

42. In this question – whether to appoint or dismiss a minister – the Prime Minister is entitled to consider a wide range of factors. Furthermore, the political context of the appointment means that the Prime Minister’s considerations also include “political” considerations such as the formation of a stable and viable coalition. For our purposes, these considerations are entirely legitimate. In fact, these considerations are central to the establishment of a government and its continued existence. In this regard, Justice Barak stated the following:

“Political” considerations – which may be illegitimate in other contexts – are appropriate when considering the removal of a deputy-minister from office. The need to maintain a coalition and to secure the continued confidence of the Knesset is certainly a relevant consideration. Similarly, weight must be given to the fact that the deputy-minister has not been convicted in court. All that there is against him is an indictment, and an indictment does not amount to a conviction.

Pinhasi [5], at 463. See also Deri [47], at 423, 427, 429.

43. The range of reasonableness is as broad as the power itself, and the court’s power to intervene in the Prime Minister’s discretion is limited to the same degree. Accordingly, deciding whether the Prime Minister deviated from the range of reasonableness is particularly difficult. In fact, it is only in rare and exceptional cases that the Court will see fit to intervene in the acts of the executive regarding cabinet appointments.

The breadth of the Prime Minister’s discretion requires our special attention. His power is unique. Compare Bar-On [3], at 57-59. The scope of judicial intervention is inversely related to the scope of the Prime Ministerial discretion; the latter expands as the former contracts. The fact that we do not agree with the Prime Minister’s decision to appoint a particular individual as a minister or to a particular ministry is not enough to strike down the decision. It is not our role, nor is it within our power, to evaluate the merits of a decision. We must confine ourselves to the question of its legality. Accordingly, the Court may only strike down a prime ministerial decision concerning the removal or retention of a minister allegedly involved in criminal acts in unusual and exceptional circumstances.

44. It is certainly conceivable that the Court might be averse to a particular decision of the executive branch. But it is incumbent upon us to make a clear distinction between those acts and omissions which belong to the ethical realm and do not enter the realm of the law, and those that belong to both the ethical and legal realms. The latter are acts and omissions flawed by extreme unreasonableness which may thus be subject to judicial annulment. Particular acts or omissions of the executive branch may be ethically problematic, but the Court will not interfere with them unless they are also illegal. “[T]he law cannot, and should not replace ethics, except to limited extent, on a case-by-case basis, in a controlled and cautious process.” See Bar-On [3], at 62. Hence, where a decision is unethical, but remains a matter of ethics, we are not empowered to intervene. Compare also Itzchak Zamir, Ethics in Politics, 17 Mishpatim 255-58 (1988) [106].

We must remember that the judicial branch is charged exclusively with upholding the law and of those ethical areas that have been incorporated into the law. See Bar-On [3], at 61; HCJ 1635/90 Zersevsky v The Prime Minister [74], at 764; HCJ 1843/93 Pinhasi v. Knesset Israel [10], at 698-99; HCJ 5364/94 Velner v. Chairman of the Israeli Labor Party [75], at 818; HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney-General [51], at 561.

“It’s Not Done”

45. All the same, it must be remembered that the intensity and the scope of judicial intervention in acts of the executive depends on the executive’s conduct. Ideally, a government is meant to operate in compliance with the principle that “it’s not done.” This is essentially a concept of governmental culture as distinct from a legal concept. What it means is that there are certain things that the executive should not do simply because they are not done, according to the appropriate norms of conduct in society. A person who is act in contravention of these norms is to be condemned. As the scope of “it’s not done” expands, the scope for judicial intervention contracts. Fortunate is the society whose government has internalized the culture of “it’s not done.” Fortunate is the Court that is not required to decide matters relating to the culture of “it’s not done.”

From the General to the Specific

46. This completes our discussion of the basic legal framework. Applying these principles to respondent’s case, we ask ourselves the following question: was his appointment as Minister of Public Security so flawed that it must be regarded as an invalid appointment, or an appointment which should be invalidated? Was the respondent’s appointment as Minister of Public Security so extreme a deviation from the range of reasonableness as to warrant a ruling that, from the legal standpoint, respondent is not worthy of continuing to hold that office?

47. This Court issued an order nisi directing the Prime Minister to explain his reasons for appointing respondent as Minister of Public Security despite the fact that, from a legal standpoint, the appointment was fundamentally flawed. Both the Prime Minister and respondent replied to the order nisi, but the Prime Minister’s response is the crucial one. In our comments above we surveyed the principle factors that should govern the Prime Minister’s discretion when deciding on the appointment of a minister, or on his removal from office. We will now examine the considerations that led the Prime Minister to appoint Hanegbi as Minister of Public Security, and why, in his opinion, Hanegbi is fit to continue serving in that capacity. However, instead of describing and summarizing the Prime Minister’s comments, we will let the Prime Minister speak for himself, and we will simply listen. In his affidavit to the Court, the Prime Minister informed us as follows:

16. My decision to appoint Minister Hanegbi to the office of Minister of Public Security was made after I had evaluated all the relevant considerations, including the advice of the Attorney-General and the basis of this advice, as detailed above, and I struck a proper balance among these considerations. Among other factors, I took into account the minister’s many talents, his many years of experience in various demanding public and state offices, the gravity of the role of head of the Ministry of Public Security, as well as other coalition-related considerations, all of which are now detailed.

17. Minister Tzahi Hanegbi has served, over a continuous period of many years, in a number of high-ranking and demanding public and governmental offices. These have included: Director-General of the Prime Minister’s Office; Minister of Health; Minister of the Environment; Minister of Transportation; Member of the twelfth through sixteenth Knessets inclusive; Chairman of the Knesset Finance Committee; Member of the Foreign Affairs and Defense Committee; and Member of the Constitution, Law and Justice Committee.

In addition, for a period of approximately three years, between 1996 and 1999, Hanegbi served as Minister of Justice, within which framework he served as a member of the Ministerial Committee for National Security Affairs – the so-called “State Security Cabinet”; as Chairman of the Ministerial Committee for Legislation and Law Enforcement; as Chairman of the Committee for the Selection of Judges; as a member of the Committee for the Selection of Military Judges; and as a member of the Ministerial Committee for Privatization.

Over the last two decades, I have become personally acquainted with the abilities and talents of Minister Hanegbi. In view of Hanegbi’s many professional achievements in all of the offices in which he served as minister, I have chosen him to serve as the Minister of Public Security, an office currently faces unique and extremely important challenges.

In my view, the nature of the position offered to Minister Hanegbi and the particular powers exercised by the Minister of Public Security do not create any significant concern of conflicts of interest which might affect the minister’s conduct or impair his professionalism and the integrity of his discretion when exercising his authority … We need to remember that the Minister of Public Security is not a “supra-Inspector-General” who wields direct control over all matters pertaining to Israel Police, and this is true especially insofar as the Investigations Branch is concerned. The minister’s powers consist of broad powers of supervision, approval, planning, and the provision of guidance where necessary. In discharging his duties it is essential that there be a close and ongoing connection with police bodies. The decisions and actions of the Minister of Public Security are not the product of his personal preferences; they are the product of cautious and calculated discretion, backed up by extensive data provided by the police bodies. With respect to investigations, the minister is not involved in specific cases; his concern is exclusively with matters of policy.

At the time of making the decision, I considered the position of the Attorney-General with respect to the Derech Tzleha affair. The Attorney-General regarded Hanegbi’s appointment as being prima facie problematic from a civic perspective, though from the strictly legal standpoint, according to existing statutes and case law, there appears to be no legal impediment to the appointment.

In this regard, it should be noted that the events relating to Minister Hanegbi occurred between 1994 and the beginning of 1996. When Minister Hanegbi was interrogated, he did not take advantage of his right to silence. Rather he cooperated in full with his investigators. In my view, these facts were significant to the decision not to indict Hanegbi and for public confidence in him.

18. I have taken into account all of the relevant considerations, which include the qualifications and abilities required of the Minister of Public Security, the Attorney-General’s position, and Minister Hanegbi’s actions in the Derech Tzleha affair and the other affairs, Hanegbi’s capabilities and his experience, as well as political and coalition considerations. After giving these considerations their appropriate weight, it cannot be said that the decision to appoint Hanegbi deviates in an extreme manner from the standard of reasonableness.

48.The Prime Minister thus informs us that he considered Hanegbi’s manifold talents, his many years of experience in demanding public and government offices, and his professional achievements in all of his roles. The Prime Minister expresses his confidence that there is no real concern of a conflict of interest in Hanegbi’s duties as Minister of Public Security, and in this context he also explains that the Minister of Public Security, is not a “supra-Inspector-General.” The Prime Minister also informs us took the Derech Tzleha case into consideration, but he did not find it to be an impediment to Hanegbi’s appointment as Minister of Public Security. As for the concern that Hanegbi will face a conflict of interest as Minister of Public Security, the Prime Minister refers to the numerous statutory supervisory mechanisms, and faithfully assures us that this fear has no basis. Once again, we will let the Prime Minister speak for himself:

21. Regarding the claim of conflicting interests: petitioner is concerned that a possible conflict of interest will arise whenever the promotion of any of Hanegbi’s investigators is on the agenda, when allocating budgets for certain branches or departments, and in relation to the disciplinary powers conferred upon the minister. In this context, it should be mentioned that during the entire period of Hanegbi’s service as Minister of Justice, no claim was ever made which could have substantiated the fear raised by petitioner.

First, it should be made clear that ever since the 1988 Amendment to the Police Ordinance (Amendment No. 9), the Minister of Public Security does not have any powers in matters of disciplinary adjudication.

It should be emphasized that, notwithstanding the minister’s overall ministerial responsibility, which finds expression in various provisions of the Police Ordinance, the Israel Police and those at its helm are managerially independent. This is evidenced both in explicit provisions, such as section 9 of the Ordinance, and on a practical level – in working procedures which express the principle of the independence of the police.

Regarding the appointment process, section 7 of the Police Ordinance establishes and regulates the minister’s power to appoint a senior police officer, i.e. an officer from the rank of deputy commander upwards. The manner of exercising the power is subject to the rules of administrative law, including the duty of consultation with the Inspector-General of the police and additional professional bodies, prior to making the appointment. As a rule, the Inspector-General of the police submits his own candidates to the minister for each particular role; for as head of the system, it is the Inspector-General who has to work with the particular officer who is chosen. Rejection of the Inspector-General’s candidate and appointments that are made against the Inspector-General’s judgment, require weighty considerations, all of which are subject to judicial review in accordance with the principles of administrative law.

Regarding the budgetary issue, section 9 of the Ordinance makes the Inspector-General responsible for all expenditures connected to the administration and operation of the police. Besides this section, the provisions of the Foundations of the Budget Law, establish the responsibility of the Minister of Public Security, like any other minister, for the budget of the ministry over which he is charged. For our purposes, this also includes responsibility for the budgets of auxiliary units – Israel Police and the Prison Services.

The Ministry of Public Security’s Director-General, through the Planning, Budgeting and Inspection Department, is charged with the formulation of the ministry’s budget. Before preparing the budget proposal, the minister and the Inspector-General determine the priorities and policies for the coming year. They work closely together on this task. On the basis of these policies, the budget proposal is prepared by the planning division in coordination with the various police departments. The budget proposal is then presented for the approval of the Inspector-General, the Director-General and the minister.

Like the Director-General and the Inspector-General, the minister does not interfere with the budget’s particulars. Their role is to assess whether the budget proposal that was prepared in fact expresses the policies and the priorities determined by them.

Once the budgetary framework for each department has been fixed, the head of each police branch is responsible for the allocation of the budget within his branch, and within its auxiliary and subordinate units, down to the level of the individual police station and the individual policeman. In this respect, the head of a police branch has independent discretion.

The coordination required between the Inspector-General and the minister at the level of policy and priorities, together with the independent discretion of the police in budgetary details, remove any basis for concerns of conflicts of interest, or inappropriate considerations.

Therefore, there exists an array of internal mechanisms governing all matters relating to the minister’s functions. Respondents wish to reiterate that with respect to investigations, the Minister of Public Security deals exclusively with matters of policy, and does not interfere with specific investigations.

49. Hangebi also made various declarations similar to those of the Prime Minister and, like the Prime Minister, he stresses that his role is to set out policy. He does not regard himself as authorized to interfere with the decisions of the police taken at the professional level. In the words of his affidavit:

The internal management of the Israel Police and its head [the Inspector-General] is totally independent of the Minister of Public Security has ministerial responsibility for the police, but he is not a “supra-Inspector-General”; he has no disciplinary powers of adjudication, and no power to intervene in particular investigations. The police budget proposal is drawn up by the planning division in cooperation and coordination with headquarters and the budget division of the Finance Ministry. In addition to the minister’s approval, the ministry budget also requires the approval of the Finance Committee and the Knesset.

50. Respondents’ claims – both those of the Prime Minister and of Hanegbi himself – aim to minimize respondent’s authority as the Minister of Public Security as much as possible. In support of their position they cite the lack of authority for disciplinary adjudication, the Inspector-General’s independence with respect to the management of the police, the fact that ministerial powers are subject to consultation, consideration of the views of the Inspector-General and other professional bodies, and the extreme difficulty of making any appointment without the Inspector-General’s consent. Regarding the budget, the planning division handles its preparation, with the cooperation of the other police departments; the Inspector-General is responsible for supervision of expenditure; and he does not intervene in the details of the budget. On the policy level, there must be coordination between the minister and the Inspector-General. Regarding investigations, the minister deals exclusively with determinations of policy. These claims attempt to demonstrate that there is no fear that the minister will act illegally.

Hanegbi further informed us that he bears no grudge against those police officers who investigated him, and that he has no intention of impeding their promotion or harming them in any other way. In his own words:

The concern that I might interfere with the appointment of one of my investigators, impede his advancement, or plot against him, is spurious. I have made it clear on more than one occasion, including to my investigators themselves, that I have no complaints about them, and that I respect their duty to fully investigate every case. This is certainly true since the Attorney-General instructed the police to open an investigation. Moreover, my investigators treated me in a sensitive and respectful manner.

51. Do the Prime Minister’s words, reinforced by Hanegbi’s own comments, place Hanegbi’s appointment as Minister of Public Security within the legal range of reasonableness? Do Hanegbi’s virtues, combined with his accumulated achievements in public office, tip the scale in his favor? When assessing pros and cons, duties and responsibilities, we must remember that the scope of discretion here is particularly broad, comprising a wide range of legitimate considerations, including “political” considerations, such as the candidate’s electoral power and the ability to put together a coalition and establish a government. In Bar-On [3] we stated:

Petitioner claims that the Justice Minister’s “was found to have behaved in contravention of the standards of proper public administration by applying defective criteria which violate the principles of integrity.” Petitioner claims that “a minister may have no blot on his character,” especially the Minister of Justice. Petitioner concludes, therefore, that since the Minister of Justice is tainted, the Prime Minister is obligated to remove him from office.

Without deciding whether petitioner’s presentation reflects the desirable law, it is definitely an incorrect presentation of the existing law. In our less-than-ideal world, the mere fact that a minister’s record is blemished is not sufficient to legally obligate the Prime Minster to remove him from office. The Prime Minister is only obligated to dismiss a minister, under section 35(b) of Basic Law: The Government, when his refusal to do so would be unreasonable in the extreme.

Id. at 57 (Zamir, J.). Evidently, a blemished record is not sufficient in this case. The blemish must be serious, perhaps even a permanent stain, in order to obligate the Prime Minister to refrain from appointing a minister or to remove a minister from office. Personally, I am not certain I can give my unreserved agreement to this formulation. “A respected scholar whose cloak is stained – is liable to the death penalty.” Babylonian Talmud, Tractate Shabbat 114A [108]. A minister must be above reproach. In this context we should recall that not just a conviction, or a pending indictment, but also less severe circumstances may obligate the Prime Minister to refrain from appointing that person as a minister, or to remove a minister from office. See para. 22 above.

52.The Prime Minister’s affidavit (and also Hanegbi’s) contains a lengthy description of Hanegbi’s virtues and merits, and only relates sparingly to his faults and failures. Regarding the Derech Tzleha case, the Prime Minister informs us as follows:

15. As indicated in the Attorney-General’s opinion of 2001, which is appended in full to this affidavit, the events at the basis of the Derech Tzleha case, occurred between 1994 and 1996. In 1999, the Knesset Ethics Committee found Hanegbi to be at fault, and he was punished. The Attorney-General claimed that these acts indicated impropriety, which according to those concerned, constituted an offense. At the end of the day, the decision was made that there was no reasonable chance of conviction, and it was decided to close the file for lack of evidence. Notably, the entire investigation was conducted at a time when Hanegbi was serving as Minister of Justice.

In March 2001, immediately prior to the formation of the government (following the elections of February 2001), the Attorney-General informed the Prime Minister of Minister Hanegbi’s involvement in the Derech Tzleha case. He advised the Prime Minister, for reasons primarily from a civic perspective, not to appoint Hanegbi to any of the ministries dealing with law enforcement. The reason for this was that the file had been closed relatively recently. At that time, I did not appoint Minister Hanegbi to one of these offices.

This time around, immediately after being informed, post factum, of the decision to appoint Hanegbi as the Minister of Public Security, the Attorney-General appraised Dov Weisglas, Director-General of the Prime Minister’s Office, of his position regarding the appointment. The Attorney-General said that while strictly speaking there was no legal impediment to the appointment, it was nonetheless problematic, prima facie, from a civic perspective. The Attorney-General also discussed the matter with Minister Hanegbi, and heard his position that there were no grounds for blocking the appointment, since the closure of the file for lack of evidence had prevented him from proving his innocence. He further stressed that the Minister of Public Security is not responsible for specific investigations and does not interfere with them.

It should be clarified here that, it is part of the role of the Attorney-General to express his opinion about governmental deliberations, orally or in writing, regarding public ethical issues, including non-legal matters. It is then up to the executive branch to take this position into consideration.

The other three affairs are only mentioned in the Prime Minister’s affidavit, in the context of an assortment of legally related claims. One can only wonder, is a police recommendation to indict a minister a regular every-day situation? Does the Attorney-General make a habit of writing long and detailed opinions regarding his decision not to indict a minister? It would have been appropriate for the Prime Minister to elaborate and explain his decision to ignore the Attorney-General’s recommendation, just as he elaborated on Hanegbi’s talents and merits. Ultimately, this matter is not a formal legal issue. Rather it is a matter of basics principles, running deep to the very foundations of our self-image. Our way of life as individuals and as a society depends on such a decision.

53. All agree that the realm of politics differs from the realm of law. The considerations may be the same in each realm, but the weight given to these considerations. “We accept that the Court should be guided by the formula of what is ”just and efficienct,” except that justice must precede efficiency.” See CA 4012/96 Benny Shachaf Freights and Investments (1976) Ltd v. First International Bank of Israel [76], at 505; CA 3602/97 Income Tax and Property Tax Commissioner, Minister of Finance, State of Israel v. Daniel Shachar [77], at 331-32. This principle holds in the realm of law, but not in the realm of politics. This is clearly evidenced in the Prime Minister’s affidavit, which elaborates on the appointment, while devoting minimal attention to the principle of justice in its broader sense. Here we must add that a person’s efficiency and his broad experience in government service are certainly valid and appropriate considerations. However, they do not necessarily tip the scales when weighed against serious considerations concerning improper actions on a public-ethical level. The Court made this point in Bus 300 [72]:

Where there is a clear and direct connection between past offenses committed by the candidate, and the post he is designated to fill, the conclusion may be that his criminal past renders him absolutely unfit for that particular position. Under these circumstances, considerations that might have been regarded as supporting his appointment had he been a candidate for another position (for example the passage of time since the execution of the offense, his regret, his efficient functioning since the offense, and his professional talents) will be of no avail, and his candidacy will be rejected. In determining whether such a connection exists, the considerations cannot be limited to the essence of the offenses and their circumstances, the position in which he committed the offenses and the position now designated for him. Consideration must also be given to the gravity of the moral blemish of the offense. In other words, a connection which renders a candidate unfit is not only a function of the weight ascribed to his criminal past in assessing his professional ability to serve in the new position, but also of his moral stature in respect to the position. Where a close connection exists between the candidate’s criminal past and the position for which he is a candidate, his candidacy should be disqualified, unless there is a real and pressing state of emergency that necessitates his appointment as a uniquely qualified candidate.

See also HCJ 7279/98 MK Sarid v. The Government of Israel [78], at 762.

54. I confess that respondent’s case bothers me deeply. I cannot agree with the Prime Minister and the Attorney-General, and certainly not with respondent, that the matter is clear from a legal standpoint. I cannot agree that judicial intervention in the Prime Minister’s decision is forbidden by law. At the same time, even if our intervention is permitted, we will not rush to instruct the Prime Minister what to do and what not to do. During these proceedings it has been mentioned on a number of occasions that a “cloud” hovers over respondent’s appointment as Minister of Public Security. But a single cloud is insufficient to strike down a person’s appointment as minister. A gathering of many dark and threatening clouds is necessary.

55. Are there dark clouds gathered over respondent? Regarding his manifold and proven executive talents, as manifested by his years in the public service, I have no quarrel with the Prime Minister. The Prime Minister believes that respondent has proven himself as an effective executive figure. Petitioner did not contest this assertion, and we too can accept it. This assessment, however, relates only to his executive capabilities; it does not reflect the ethical problems with respondent’s actions, which we dealt with at length above. When assessing the undisputed acts of respondent, even if the Attorney-General does not consider them sufficient for a criminal conviction, I have difficulty in agreeing with my colleague, Justice Rivlin, that there is absolutely no justification for interfering with the Prime Minister’s discretion. We can accept the Attorney-General’s determination that there was insufficient evidence in the police file for a conviction in court, but we have difficulty in accepting that there is no hard and convincing administrative evidence for the purposes of this case. In this context, it is appropriate for us to recall comments made in Eisenberg [6]:

For this purpose, the gravity of the offence is determined not by its ”position” in the Penal Law, but by its implications on considerations that underlie the appointment. Consequently, an offence should be regarded as serious where its very essence and the circumstances of its commission not only undermine law and order in general (such as murder, robbery, or rape) but also the foundations of government structure (such as bribery, fraud and breach of trust, perjury, fabricating evidence, or obstructing the course of justice). A candidate who has committed these offences and holds a senior office in the civil service undermines the public trust in the executive authority and the civil service. He will have difficulty in serving as an example and a model for his subordinates. He will have difficulty requiring of them what is required of every civil servant but which he himself has profaned. He will have difficulty in radiating fairness, trust, prestige, honesty and integrity to the general public. All of these will affect, to a large degree of certainty, the status, functioning and position of the civil service in a democratic society.

Id. at 266.

56. This is the general rule guiding the judicial assessment of respondent’s actions. And it is even more true when applied to the complex relationship between respondent and the police. In this respect, we should recall the police investigations that led to the recommendations to indict him.

The cases against respondent, and their cumulative weight in particular, enjoin us from ignoring the “critical mass” that was created by the Derech Tzleha affair, which came to light after the Bar-On case was closed. Even if we ignore the first affair (the brawling), the cumulative weight of the other three cases, and especially the last two, removes the question of respondent’s appointment from the realm of ethics and public morality, and places it squarely in the realm of law. There exist considerations which may necessitate the termination of a minister’s service in the government, such as the stature of the government and its public image, public confidence in the government, and the need for the government and the administration to conduct itself in a manner which is honorable, fair and worthy of respect. The more we examine these cases, the harder it is to understand how respondent can function as Minister of Public Security. In making these comments we also take into consideration the gradual deterioration of the standards of conduct of public figures and leaders, a decline that has led to desensitization and the lowering of national standards of public morality.

57.We are also witness to a conflict between considerations of efficiency and executive abilities on the one hand, and the morality of respondent’s actions, his stature and his dealings with the police, on the other hand. Which of these considerations outweighs the others? Is there a possibility for some kind of compromise between the conflicting considerations? We should remember that the Court is not empowered to decide; that role belongs to others. The Court’s role rather is to supervise and review compliance with principles of law and justice.

58. As for the judicial evaluation of respondent’s actions, we will not add any further explanations of the affairs. We will concentrate primarily on the relations between respondent and the upper echelons of Israel Police, particularly with the Investigations Branch. As noted above, the police investigated respondent and, on more than one occasion, recommended that he be indicted. Respondent informs us that he bears no grudge against the investigators. Regarding the future, respondent adds that all of his actions will be closely watched, and that there will be no abatement of public scrutiny. Respondent declares in his affidavit:

In the event that any of my future actions provide any substantial concern regarding a conflict of interest or the involvement of extraneous considerations in my decisions, I am absolutely certain that the doors of this Court will be open to petitioners. My actions will be the test. I see no reason for discussing hypothetical and far-fetched possibilities at this time. We will cross each bridge as we come to it. From that perspective, the petition is premature and theoretical, and should be dismissed.

This is a fine declaration, and it is correct, on the whole. Nevertheless, the fact remains that respondent was until recently the subject of a police investigation, in which evidence was collected, and which culminated in the investigators’ recommendation to indict him for offenses involving moral turpitude. This being the case, we cannot agree that he should now be placed in charge of the police, including his investigators and their superiors. Presumably, police investigators are uncomfortable when requested to investigate a minister suspected of committing an offense, whether by act or omission. I need not explain why. However, the entire matter becomes surreal when the subject of the investigation, shortly after the investigators recommend his indictment, becomes their superior. Yesterday, the investigator sat in the director’s chair, interrogating the minister. Today, the former suspect sits in the director’s chair and the interrogator is subordinate. My colleague, Justice Rivlin referred to the “bounds of deference” that inform the relationship between the authorities. I would sooner talk in terms of human dignity. Does not this role reversal, where the suspect has so soon become the boss and the investigator his subordinate, thoughtlessly trample on the dignity that should inform the relationship between people? Both the investigator and the suspect are human beings. Should we deal such a blow to the dignity of the police investigator?

59. In the Derech Tzleha affair, the police investigation culminated in 1999 in a recommendation to indict respondent. At the beginning of 2000, the prosecution, headed by the Attorney-General, decided to indict respondent for a number of offenses, subject to a preliminary hearing (see para. 11 above). The preliminary hearing was conducted in September 2000. While justifying the investigation, the Attorney-General decided in March 2001 against an indictment, given that there was no reasonable chance of conviction. The Bar-On affair occurred in January through April 1997, with the judgments on the petitions that challenged the Attorney-General’s decision being handed down in June 1997. In addition to these two cases, we should also mention the ISTA case, which was closed in 1992. Parenthetically, it could be said that a person who holds himself up as a trustee – and ministers all have this status, as we have seen – should voluntarily declare himself unfit to act as the superior of those who recently investigated him for criminal offenses. All the more so in light of the fact that the investigators recommended that he be indicted. After all, human beings are not angels.

60. The conflict of interest between respondent and the higher echelons of Israel Police, particularly the upper ranks of the Investigations Branch, cannot be ignored. The Minister of Public Security is empowered to appoint police officers from the rank of deputy commander upwards (section 7 of the Police Ordinance). The Inspector-General of the Police is appointed by the government, on the recommendation of the Minister of Public Security (section 8A of the Police Ordinance). Of course, the minister’s power in making appointments is subject to particular conditions (as claimed by the Prime Minister): administrative law, hearing the position of the Inspector-General, and others. Still, we find it difficult to accept that these factors alone obviate all concerns regarding conflicts of interest in the relations between respondent and the Police Investigations Branch. In light of all this, we find it difficult to understand how respondent is capable of being unbiased in making senior appointments, promotions of officers, and dismissals in the Investigations Branch.

61. Respondent claims that his investigators numbered no more than five or six, and he therefore asks: can he be prevented from serving as Minister of Public Security because of five or six people. There are two answers. First, as we observed, our concern here is not with a conflict of interest alone, but rather with respondent’s behavior in general. Second, and most importantly: indeed there were five or six people who directly interrogated respondent, but what about their superiors? And the superiors of their superiors? Each rank has a rank above it, to which it is answerable and subordinate. We know that respondent was a minister at the time of both the Bar-On and Derech Tzleha investigations. Presumably, his interrogation was authorized by the upper echelons of the Investigations Branch. In other words, the tension between respondent and the police is not confined to only five or six police personnel.

62. The Investigations Branch of the Police forms a central part of the Ministry of Public Security and, by definition, the Minister of Public Security is in charge of this branch. We agree that the minister is not personally involved in particular investigations being conducted by the branch. Respondent explicitly declared that he has “no power to intervene in particular investigations.” However, respondent is neither able nor empowered to divest himself of the power to make appointments in the Investigations Branch, and this is the pitfall. On the one hand, respondent is both empowered and obligated to appoint officers in the Investigations Branch. On the other hand, the past relations between the Investigations Branch and respondent make it difficult to accept that respondent is capable of making totally unbiased appointments. The conflict of interest is inescapable. We must add to this equation the considerations, detailed above, which disqualify a person from appointment to a particular office. The combination of all of these leads us to the conclusion that, from a legal standpoint, respondent’s service as Minister of Public Security is inappropriate and unacceptable.

63. This conclusion, based on the law and the facts presented to us, was difficult one and, even in writing this judgment, I wavered. For example, it was extremely difficult to weigh the conflicting considerations – efficiency on the one hand and morality on the other – because these considerations are not comparable. Like oil and water – they do not mix. Ultimately I decided that we should be guided by legal principles, which have long been firmly entrenched in our system. The first and most important rule is that the Court will not invalidate an executive-administrative act unless all other alternatives have been exhausted, and there is no other option. Accordingly, where there is a request to render a person unfit for a public office, “the tendency is to initially consider more moderate means, and only to implement the extreme measure as a last option.” See MK Sarid [78], at 758 (Or, J.). The tendency is to “try to limit the use of the extreme measure of disqualification, save as a last resort, if there is no other more moderate way of neutralizing the fear of conflicting interests.” Id. at 762-63. Furthermore:

The rule [concerning conflicting interests] should be implemented in a responsible and cautious manner, because to use it recklessly, without the proper balance, may deter talented and capable people from seeking offices that they are qualified to fill, even when there is no serious threat to their honesty and integrity.

CA 6983/94 Pachima v. Peretz [55], at 835 (Strasbourg-Cohen, J.). As such, “it is better to eliminate the potential conflict of interest and limit activity or prevent it in a particular area, and not remove a person from office.” Id. at 838.

This was also the opinion of Justice Beinisch (whose opinion was the minority view):

The mere determination that there is a conflict of interest does not automatically necessitate the person’s removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediate solutions between removal from office and full service in an office, and the decision should be based on the degree of the conflict, its intensity and its centrality to the role of the public official.

Id. at 854. In a similar vein:

The picture is not entirely “black and white.” The solution to a conflict of interest is not necessarily disqualification from a particular office. There are a number of other options that can be exercised at different levels, ranging from full service in a particular office to outright disqualification from that office. Removal from office should not be the first solution, but rather the last resort. Prior to disqualifying a person, there must be an assessment whether other less drastic measures might not fulfill the criteria at the basis of the laws against conflicting interests.

HCJ 595/89 Shimon v. Appointee of Ministry of the Interior, Southern District [79], at 418 (Barak, J.).

In this sense, the Court’s role is to “find the cure that fits the disease,” which each problem having its own solution. See also CA 6763/98 Carmi v. State of Israel [52] (Rivlin, J.).

64. It is obvious that this rule has the same basis as other legal principles. The “blue pencil rule,” for example, directs us, wherever possible, to differentiate between the diseased organs and the healthy organs of a body. The same rule applies to law, contracts and all other legal mechanisms. After the differentiation, we proceed to ignore the diseased parts, and emphasize the healthy parts. See HCJ 1715/97 The Israel Association of Investment Managers v. The Minister of Finance [80], at 413-14. This is similar to the legal principle of ut res magis valeat quam pereat, which means that where a text containing a legal norm allows two interpretations, then the interpretation supporting the norm is chosen over the interpretation negating it. See HCJ 288/00 Israel Union for Environmental Defense v. Minister of the Interior [81], at 696-97. These principles are almost self-evident and may also contain elements of natural law. On an abstract level they are all derived from the principle of proportionality, a principle that guides us in all our paths.

65. Having considered these principles, I initially thought that the solution to the question at hand lay between two polar opposites. The first is petitioner’s position, which would have respondent disqualified outright. The second is respondents’ position, which maintains respondent is perfectly fit for the office. I thought that the appropriate solution could be a differential one, which means making a rough distinction between Hanegbi’s various activities, the aim being to avoid having to disqualify him from service as Minister of Public Security. I did attempt to differentiate between the activities, but this proved impossible. The different roles of the Minister of Public Security are interdependent, and the various departments of the Ministry of Public Security are closely intertwined. Any separation between the areas would effectively create a new system, which we have no power to establish. There is no escaping the conclusion that respondent cannot properly fulfill the role of Minister of Public Security.

66. I would not be doing my job faithfully if I did not now briefly relate to three additional issues which arose during the proceedings.

Appointment and Election

67. Respondent and the state claim that, by expressing confidence in the government in office, the Knesset also expressed its confidence in respondent, and we must therefore refrain from interfering with the Knesset’s discretion. I cannot accept this claim. First, the Knesset expressed its confidence in the government in general. Second, it is not disputed that the Prime Minister is currently empowered to remove respondent from office without receiving Knesset approval. It is his exercise of that discretion which we review. Consequently, the Knesset is not involved in the case before us.

68. In this context we will add that we are not speaking of respondent as an elected Member of the Knesset. We have not been asked to interfere with respondent’s status as an MK, and it is doubtful whether we have any power in that respect. HCJ 7367/97 See The Movement for Quality Government in Israel v. The Attorney-General [51], at 547 which deals with the appointment of MK Pinhasi as the chairman of the Knesset Committee. Our concern here is with respondent’s appointment as Minister of Public Security and not with his status as an elected Member of Knesset. As Minister of Public Security, respondent is subject to the same rules that would apply to a minister who is not a Member of the Knesset.

The Difference between the Minister of Public Security and Other Ministers

69. Petitioner’s claims focus on respondent’s fitness as Minster of Public Security specifically. It has no issue with him serving in any other ministerial role, except perhaps as Minister of Justice, who is charged with law enforcement, like the Minister of Public Security. My colleague Justice Rivlin takes issue with this proposition. For if indeed respondent is unworthy of serving as Minister of Public Security, how can he serve as a minister in charge of any other area? In the words of my colleague (para. 32 of his opinion):

Petitioner focuses on two reasons why Hanegbi should be dismissed. First, the possible damage to public confidence as a result of his appointment as minister in charge of public security and the police. Second, the risk of a conflict of interest in performing certain ministerial duties. As to the first reason, this is not enough to constitute grounds for intervention in the Prime Minister’s decision. We related to this above, and we would only add here that petitioner takes issue specifically with Hanegbi’s appointment as Minister of Public Security. As far as this line of reasoning is concerned, there is nothing to stop Hanegbi from being appointed as a minister in a different ministry – except, perhaps, the Ministry of Justice. This position raises a difficulty. It is hard to imagine that an individual, whose appointment as Minister of Public Security would cause such severe damage to the public’s trust that we must strike down the Prime Minister’s decision to appoint him, would be able to head another ministry – such as the Ministry of Education or the Finance Ministry. It is difficult to accept that an individual who is so patently unfit to serve in a ministry responsible for law enforcement could, without any hindrance, serve in a ministry entrusted with the state’s foreign policy or its security. We thus come to the second part of this petition, the concern regarding a conflict of interest (emphases in the original – M.C.).

There are three answers to this question. First, petitioner confined itself to the role of Minister of Public Security because respondent is currently serving in that capacity. Neither this self-imposed limiting of the petition nor our judgment can determine that respondent is able to serve in a different ministerial role. The question was not asked, and as such, we will not rule on it. Second, in our case there is the additional concern of conflicting interests due to the particular relationship between respondent and the police (a point dealt with by my colleague). Finally, according to the principle of proportionality, there must be a correlation between the substance of the claims that render a person unfit for a particular public office, and the office that he actually holds, or for which he is a candidate. Each office is different, and the principle of proportionality obliges us to limit the harm caused to a particular person. A “balance” must be struck between conflicting considerations, and the considerations themselves differ from case to case. According to Eisenberg [6]:

[T]he nature of the position to be filled by the public servant will also influence the weight accorded to a criminal past in the filling of the post. A junior position is not comparable to a senior position. A position that does not involve the control, supervision, direction and guidance of others is not comparable with a position involving authority and responsibility for other people and responsibility for discipline. The job of a leader cannot be compared with the jobs of those being led. An office with no special ethical requirements cannot be compared to an office whose essence demands high ethical standards.

Id. at 263. The Minister of Public Security is the minister in charge of law enforcement. As such, comments made regarding the Minister of Justice are also applicable to him:

Clearly, there is room for reservations regarding the minister’s conduct, to the extent that it diverges from the norm of appropriate conduct. The public expects that any minister, being a public leader, will provide an example of appropriate conduct. This is especially true in the case of the Minister of Justice, from whom the public expects this kind of conduct. More than any other minister, the Minister of Justice is responsible for the rule of law and the values of the law. In his personality and in his conduct he symbolizes not only the preservation of the law, but also that which is good and honest beyond the letter of the law.

Bar-On [3], at 59 (Zamir, J.).

Differences of Opinion Regarding the Scope of the Range of Reasonableness

70. Respondent has made the following argument: The question here is whether, by refusing to dismiss respondent as Minister of Public Security, the Prime Minister deviated from the range of reasonableness in an extreme manner. Some of the justices on this panel feel that the Prime Minister acted reasonably; at the very least they consider that there was insufficient proof to warrant intervening in his discretion. This view inevitably influences the decisions of other justices. Judicial intervention in the discretion of an authority is only warranted when that discretion is an extreme deviation from the range of reasonableness. If some of the justices maintain that the discretion does not deviate from the range of reasonableness, then how can other justices on the same panel rule that his discretion is an extreme deviation? Under these circumstances the rulings of the other justices could themselves be regarded as unreasonable. Alternatively, it indicates that those rulings based on the judgments of the other justices are unreasonable. Hanegbi claims that this reasoning is not applicable in a criminal procedure. He agrees that where one judge has doubts regarding the guilt of the accused, that doubt should not affect his colleagues on the panel. However, he claims that the rule is different in an administrative procedure.

71. I see no reason for distinguishing between a criminal procedure and an administrative procedure. In both, doubt and reasonableness are given over to the individual discretion of each judge, within the bounds of the overall legal context. Administrative law and assessments of reasonableness have often been a source of dispute between judges. See CrimA State of Israel v. Zeguri [82], at 427. Furthermore:

Every judge decides individually; and his decision in a trial is the product of his own conviction and his own conscience.

Every judge decides individually. The fact that my colleagues on the panel have doubts regarding whether the accused committed the offense of which he is accused does not cause me to have doubts too. It is forbidden for me to doubt solely because my colleagues doubt. My colleague’s doubt is not infectious, and does not pass from one heart to another, from one conscience to another, even if my colleague is greater, wiser, older, or more experienced than me. This is the independence of a judge in its deepest sense, the inner independence of the judge.

CrimA 6251/94 Ben-Ari v. State of Israel [83], at 107-8. In the words of the Court, “[e]ach and every judge is a lone knight wandering the plains of law and justice.” See HCJ 3679/94 National Association of Directors and Authorized Signatories of the First International Bank of Israel v. Tel Aviv/Jaffa District Labor Court [84], at 593. It is true that:

The judge must always be receptive to the opinions of others, and be prepared to listen to other people. However, the simple fact that another person has a different opinion, however important this dissenter may be, must not affect his own discretion (all subject to explicit legal provisions, such as binding precedents).

As Maimonides taught (Laws of the Sanhedrin, 10:1 [109]):

A judge in a capital case who rules guilty or not guilty not due to his own reasoning, but because he followed the view of his colleague, has transgressed. Of this the Torah said: Do not respond to grievance by yielding to the majority to pervert the law. From tradition we learn that at the moment of deciding you must not say, it is sufficient that I am like another – rather you must say what you believe.

In Conclusion

72. In considering Hanegbi’s appointment as Minister of Public security, or his removal from the position, the Prime Minister was presumably confronted with two conflicting categories of considerations. On the one hand: public considerations against the appointment due to the concern that his past would conflict with his role as Public Security Minister and lead to the improper management of the police, and the loss of public confidence in the government. And on the other hand: political considerations relating to the need to establish a stable coalition to support the government and preserve its structure, including respondent’s proven executive talents. The Prime Minister chose the latter considerations over the former, and decided to appoint respondent to the office, and, later on, to allow him to remain in office. In my colleagues’ view, having regard for the political nature of the case before us, the Prime Minister’s decision did not deviate from the legal boundaries of reasonableness. I cannot agree.

When the President charges a Knesset Member with the formation of a government with himself at its head, the Knesset Member will do his best to fulfill that task by forming a stable government that can weather the storms. The consideration of forming a government that will win the Knesset’s confidence becomes a primary consideration for the Prime Minister-elect, after having agreed upon the policies acceptable to prospective coalition partners. Generally, the other relevant considerations play a secondary role in the forming of a government. In other words:

As distinct from public servants, who are subject to the provisions of the State Service Law (Appointments) 1959, a minister and deputy-minister are not appointed to their positions exclusively by virtue of their qualifications, talents and personal virtues. Party and coalition interests form the basis of these appointments.

Deri [47], at 428 (Goldberg, J.). These comments were made regarding the formulation and appointing of the government. Nonetheless, in conducting a judicial review of the final composition, the Court must assess whether the considerations which were secondary in the eyes of the Prime Minister were in fact given appropriate weight. If these considerations were overlooked to a great extent it could render the decision a deviation from the boundaries of discretion. If the Court does not uphold the basic principles of public law and morality, then who will?

73. Under these circumstances, our concern is with the candidate’s moral suitability to be a minister, as well as his relations with the police over whom he has been appointed. Were these considerations given the weight they deserve? We have observed that, in reality, these considerations were allocated but a small part of their deserved weight. We also observed that these factors ought to have been given far more consideration. The unavoidable conclusion is therefore that the Prime Minister’s discretion was fatally flawed.

74. Judicial invalidation of the Prime Minister’s discretion does not make the Court a “supra-Prime Minister,” as my colleague Justice Rivlin put it. The Court did not attain that status in Deri [47], Pinhasi [5] and Eisenberg [6], and in a not insignificant number of other cases. Striking down a prime ministerial decision falls within the boundaries of legitimate judicial review of the administration’s activities. It is part of the “checks and balances” which exist in a democratic system characterized by the principle of the separation of powers between the authorities. I think that it is our duty, the duty of the Court, especially in these times, to protect the police in general, and the Investigations Branch in particular. This is the reasoning for my conclusion.

Epilogue

75. Our decision in this case has been far from simple and straightforward. Of this, I am well aware. Yet I could not allow myself to just let things slide, to avert my gaze and pretend nothing has happened.

76. On the basis of the above, I propose to my colleagues that we make the order final, and declare that the Prime Minister is obligated to exercise his power under section 22(b) of Basic Law: The Government, 2001, and remove Minister Tzahi Hanegbi from his position as Minister of Public Security.

Justice D. Beinisch

1. We have been asked to deal with the question of whether the appointment of respondent 3 to the position of Minister of Public Security is so unreasonable as to warrant the Court’s intervention to strike down this decision. This is a very important question. We must be very sensitive when interfering in the decisions of the executive authority and of the Prime Minister, who have been granted broad discretion. The utmost caution and a meticulous examination of the legal issues is necessary in ruling in this petition. This is especially true since this petition concerns the process of forming the government and appointing its ministers.

Prior to reaching my own conclusions on the subject, I reviewed the opinions of my colleagues, Justice Rivlin, Vice-President Or and Justice Cheshin. The first opinion deals with the rather broad topic of deference between the authorities. My opinion will deal exclusively with the question the Vice-President posed in his opinion – judicial intervention in the circumstances here. My colleague, Justice Cheshin, thoroughly analyzed the issues raised by the appointment, as well as the normative legal framework, and concluded that the decision to appoint respondent 3 as Minister of Public Security should be struck down due to the fact that it is unreasonable in the extreme. It should be mentioned, at the outset, that I agree with my colleague, Justice Cheshin: under the circumstances and at the present time, respondent’s appointment is not compatible with the rule prohibiting conflicts of interest.

2. From a reading of the opinions in this case, it becomes clear that there exists no fundamental dispute as to the nature or quality of the statutory power granted the Prime Minister to appoint ministers and dismiss them, pursuant to Basic Law: The Government. This is also true regarding the extent to which this Court can review this power. The statutory discretion granted to the Prime Minister to fill cabinet posts and remove the occupants of these posts is extremely broad. Our rulings have already established, undisputably, that the factors the Prime minister may consider when deciding whether to appoint or dismiss ministers include political considerations such as the stability of the government and the formation of a viable coalition. These and other political considerations are legitimate, and even essential, in the process of establishing a government and appointing ministers.

Accordingly, and in light of the nature of the Prime Minister’s power to appoint and dismiss ministers, it would take a radical deviation from the range of reasonableness for the Court to intervene in these decisions. Having said that, my colleague Justice Rivlin, who emphasizes the limits of intervention and their narrow scope, also notes that:

The discretion of the Prime Minister regarding the appointment of a minister is certainly subject to the review of this Court. This applies to any kind of appointment.

He further stated that:

The powers granted to the Prime Minister to appoint and dismiss ministers serve to improve the government’s image and functioning, and public confidence in it. A radical deviation from the range of reasonableness in the exercise or non-exercise of these powers constitutes grounds for judicial intervention.

See paras. 17 and 18 of Judge Rivlin’s ruling. There is obviously nothing innovative about these findings; they merely reflect the precedents set forth by this Court in a number of rulings that deal with judicial intervention to remove ministers. The primary cases are: HCJ 3094/93, 4319/93, 4478/93; HCApp 4409/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]]; HCJ 4267/93, 4287/93, 4634/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel [Pinhasi [5]]; HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [Bar-On [3]].

We also agree that the question is not whether the Court feels comfortable with the Prime Minister’s appointment of a certain person to a specific post. Such a question does not constitute a cause for judicial review. It is not the Court’s role to examine the wisdom of the appointment, the suitability of the person for the post, or his likelihood of success. These considerations are entrusted to the elected Prime Minister, and it is up to the Knesset and the voter to redress such decisions. Therefore, we will act with much caution and restraint when considering the disqualification of an appointment. Disqualification can only be justified in exceptional and extraordinary circumstances, where there was a legal defect either in the appointment process or the appointment itself. This defect must be at the core of the administrative discretion afforded to the authority, no matter how broad his powers may be.

My colleagues, each in their own way, have laid out the factual details of this petition. This mainly concerns the criminal affairs in which Hanegbi has been involved as a suspect or subject of investigation despite the fact that, at the end of the day, he was not tried concerning these affairs. So, too, my colleagues have already discussed the normative framework in which the Prime Minister exercises his power to appoint ministers or to remove them from their posts, as well as the grounds which would enable this Court to exercise judicial review. Therefore, I will refrain from expanding on these matters and will instead limit myself to a discussion of the flaw which I see in the appointment here.

3. The petition is based on two principal claims. The first claim is that Hanegbi is not fit to act as Minister of Public Security due to his involvement in a number of criminal affairs, the latest and most central being the so-called Derech Tzleha affair. In a previous petition filed by petitioner – Bar-On [3] – it was already determined that that there was nothing in the first three affairs to render respondent unfit for the post held by him at the time – that of Minister of Justice. This includes the affair in which Bar-On was appointed to the position of Attorney-General. Petitioner now claims that the latest affair, which concerns Hanegbi’s involvement in the Derech Tzleha organization, when added to the previous affairs, tips the balance and renders him unfit to serve as Minister of Public Security.

The other grounds for the intervention of the Court, according to petitioner, are that the appointment of respondent as Minister of Public Security contravenes the rule against conflicts of interest. As a result, petitioner asserts he is not fit for the office.

4. As to petitioner’s first claim, regarding the criminal affairs Hanegbi was allegedly involved in, or investigated about, I take issue with those who feel this is insufficient to warrant judicial review of the decision to appoint him as Minister of Public Security.

I agree with my colleague Justice Cheshin, that one must distinguish between the presumption of innocence to which a person who has neither been tried nor convicted of a crime is entitled, and the question of whether he is suited for public office in light of such allegations. I also agree that, in appointing someone to public office, the authorities are permitted and even required to take into account a person’s “criminal past” based on administrative evidence. It should not be said that this decision rests solely on whether the public prosecutor’s office filed an indictment. The discretionary power exercised by the public prosecutor’s office when deciding whether or not to indict someone serves a different purpose than that exercised to prevent an appointment or remove a person from public office. See HCJ 6163/92, 6177/92 Eisenberg v. The Minister of Housing and Construction [6], at 268; Pinhasi [5], at 467-69.

This Court has already determined that there are no hard and fast rules pertaining to when it is appropriate to bar a person from public office. On one hand, it would be erroneous to hold that an indictment automatically renders a person unfit for such a post. At the same time, however, the lack of an indictment is not the hallmark of fitness. There are a host of factors which must be taken into account when considering disqualification. These include the type of office, the type of misconduct attributed to the official, how strongly such behavior reflects on the person’s fitness, and the strength of the evidence for the alleged wrongdoing. See Bar-On [3], at 62-63 (Zamir, J.).

We must take into account that the other criminal affairs in which Hanegbi was allegedly involved, as well as the impact these affairs on his role as Minister of Justice, have already been examined by this Court in Bar-On [3]. The Court expressed its opinion on the issue, and did not see fit to interfere with Hanegbi’s tenure as Minister of Justice.

As to the Derech Tzleha affair, this should not be viewed as my colleague Justice Rivlin sees it, as yet another chapter in the affair that was already judged by this Court in Bar-On [3]. This affair involved an extensive investigation. From the outset, the police recommended the indictment of respondent, and even the Attorney-General was in favor of this after an initial examination of the evidence. The evidence was then once again examined by the Attorney-General himself, as well as by a contingent of attorneys. It is apparent from the report that the evidence was repeatedly inspected with great thoroughness. At the end of the day, however, the evidence was not deemed sufficient to indict respondent. The close examination of the evidence, as detailed in the Attorney-General’s report, and the high professional caliber of those who performed the examination, begs the conclusion that there is no evidentiary basis for the criminal involvement of respondent in this affair. Under the circumstances, and after having examined the opinion of the Attorney-General and the decision of the Knesset Ethics Committee, I have not been convinced that the factual basis presented to me is sufficiently grave as to render respondent unfit to serve as Minister of Public Security. It is true that the largely undisputed facts, which are apparent in the opinions of the Attorney-General and the Knesset Ethics Committee, indicate unethical behavior by respondent. Nevertheless, I do not believe that, based on the Derech Tzleha affair, the decision to appoint respondent 3 as Minister of Public Security is extremely unreasonable on the legal level.

5. The petition’s second claim troubled me. According to this claim, following the investigation in the Derech Tzleha affair, there exists a conflict of interest between respondent’s ability to fulfill his position as Minister of Public Security, charged with the public interest in the investigative field, and his relationship with the Investigations Branch of the police. After much deliberation, I have arrived at the conclusion that respondents did not supply a satisfactory answer to why this does not constitute a conflict of interest.

First, it must be stated that respondents did not convince us that petitioner’s claim should not be classified as a conflict of interest. The rule prohibiting conflicts of interest is predicated on the principle that a person in a public role should avoid the “prejudice” or “bias” which results from the conflict between the faithful execution of his public duties and an interest of his own. There is a substantive and foreseeable a priori concern regarding the existence of an extraneous consideration and this concern falls under the rule prohibiting conflicts of interest. If such a concern exists on the basis of objective criteria, respondent need not actually be put to the test in order to determine if an actual conflict of interest exists. For a comprehensive discussion of this subject, see HCJ 531/79 The Likud Faction of the Petach Tikva Municipality v. The City Council of Petach Tikva [53], at 569-76; see also CA 6983/94 Pachima v. Peretz [55], at 835-36.

In his affidavit, the Prime Minister expanded at length on respondent’s fitness for senior and demanding public offices. He emphasized his vast experience in the administration of complex departments and the “broad knowledge of the field of security.” All of these qualify respondent 3, in the Prime Minister’s opinion, to “lead the Ministry of Public Security in the best possible manner.” The Prime Minister’s statement focuses a considerable amount of attention on Hanegbi’s organizational skills and his ability to cope with the security roles entrusted to the Ministry of Public Security. All these considerations are part of the Prime Minister’s discretion and it is not our place to interfere with them. Nonetheless, the Minister of Public Security is responsible to the public on behalf of the government concerning all aspects of Israel Police; security operations constitute only one facet of this post, albeit an important one, especially nowadays. It is well-known that the Israel Police is also empowered to carry out investigations and to enforce the law in Israel. In this respect, petitioner claims that respondent 3 is liable to find himself in a conflict of interest when placed in charge of the very people who investigated him not so long ago in the Derech Tzleha affair and who recommended that he be brought to trial. Respondents countered this by pointing out that the minister is not a “supra-Inspector-General,” “with direct control or authority over everything that happens in the Israel Police, and this is especially true regarding everything that occurs in its Investigations Branch.”

It is true that the minister is not in charge of individual police investigations and is not even involved in them. He is also not a “supra-Inspector-General,” as respondents maintain. Yet the import, stature, and influence of the minister on the structure of the police and its budget should not be ignored. After all, the minister is responsible for setting the working priorities of the police and, most importantly, for the appointment and dismissal of senior officers. According to the Police Ordinance (New Version), the minister is in charge of appointing every senior police officer from the rank of deputy commander upwards. Accordingly, the minister appoints the senior officers of the Investigations Branch, including the head of this branch, and he also has the power to fire them. He is also responsible for recommending who should fill the office of Inspector-General. Indeed, respondents are correct in their assertion that a duty of consultation applies to the minister pursuant to the rules of administrative law, prior to deciding who will fill the senior ranks of the Investigations Branch. However, this duty is not sufficient, by itself, to negate the existence of a conflict of interest.

As part of his role as Minister of Public Security, it is necessary for respondent 3 to set police policy, including policy for the Investigations Branch, and it is in his power to influence the stature of this branch, its standards, and its work assignments. Yet, only a short while ago he himself was the subject of a series of investigations which, despite being essential and permitted by the law, were substantially damaging for him. It should be recalled that, at the conclusion of the previous two investigations, the Investigations Branch recommended that respondent be indicted.

To this, we note that the the situation in which the senior officers involved in the investigation of respondent find themselves in. Even though there is no doubt these people have no personal grudge against respondent, since they were merely doing their job, respondent still has significant powers to decide their fate and influence their rank and place in the police hierarchy. How will this conflict affect their trust in respondent’s decisions, and how will he exercise the hierarchical authority he wields over them?

This is not to infer that we believe that respondent seeks vengeance against his interrogators. Not in the least. He has declared that this is not the case and I am willing to assume that he will make every effort to ignore his personal feelings. However, an actual conflict of interest exists when there a near certainty of “prejudice” or “bias,” even “unintentionally and unknowingly.” As stated by Justice Cohen:

We will state at once that we have not had even a shred of evidence presented to us that would cause us or petitioner to have even the slightest doubt as to whether respondent has not or will not carry out his role of Chairman of the Appeals Committee in absolute good faith and objectivity, to the best of his knowledge and capabilities. Even according to petitioner, there is no requirement that the “corrupt viewpoint” or bias actually exist or be proven. The claim is that even though these do not actually exist, “a reasonable person would consider that, under the circumstances, there exists a real possibility of bias or prejudice.”

HCJ 279/60 Gil Theaters v. Ya’ari [85], at 675-76. Furthermore:

When we apply the term bias, this should not be taken to mean that respondent will knowingly or intentionally favor a certain side. When we talk of a corrupt viewpoint, this should not be misconstrued as implying that respondent’s viewpoint has been corrupted through the accepting of actual bribes. The intention is that bias, by its very nature, is inevitable or probable, even if it is not willful or intentional, since every person favors his own interests.

Likud Faction [53], at 570.

6. I am aware that the rule prohibiting conflicts of interest should be interpreted with prudence and moderation. I can accept that, just because a person has been investigated, this should not necessarily prevent him from subsequently serving as the minister in charge of the Investigations Branch. Yet in the case of respondent 3 we are not talking about events that occurred in the dim and distant past. Respondent’s encounter with the Investigations Branch ended only in June 1999, at which point it was recommended to the prosecuting authorities to indict him. This case was only closed in March 2001. The investigation of respondent by officers of the Investigations Branch has not yet been relegated to the history books of the Israel Police. Respondent also possesses no small amount of prior experience with the investigators of the Investigations Branch. Can it be said that he is so divorced from the past that he would be capable of fulfilling his post with complete objectivity? According to the rule prohibiting conflicts of interest, a person should not be placed in a situation in which he is liable to be influenced by extraneous considerations in the line of duty.

I would also like to add that we have already noted that the rule against conflicts of interest will not necessarily bring about a person’s disqualification from a post, provided that less drastic means can be found to circumvent the specific problem. There is a tendency to utilize such extreme measures only as a last resort, when there is no other way to neutralize the concern about a conflict of interest. As I mentioned elsewhere:

The mere determination that there is a conflict of interest does not automatically necessitate removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediary solutions between removal and full service in an office, and the decision should be based on the degree of the conflict, its intensity, and its centrality to the role of the public official.

In general, conflicts of interests can only be isolated when they appear in an institutional setting, in which it is possible to pinpoint where the interests overlap and to prevent this. Indeed, it is possible to neutralize a conflict of interest even when the conflicting interest is personal. For this to be the case, however, the public servant’s interest must be one that can be avoided or which can be isolated from those areas of overlap with his public role.

Pachima [55], at 854.

In light of the above, I, like my colleague, Justice Cheshin, considered the possibility of keeping respondent 3 in his post as Minister of Public Security, while eliminating the conflict of interest. Had respondents shown me such a way, it is possible I would have avoided the decision that Hanegbi is unfit to continue as Minister of Public Security. In its place, I may have considered it sufficient to merely ban him from serving in ministerial roles pertaining to the Investigations Branch, in a manner that would ensure there were no conflicts of interest. However, no such solution was presented to me. Moreover, as stated above, it is difficult to find such a solution. The Minister of Public Security’s powers over the Investigations Branch are, in part, statutory; an example of this is his authority to appoint the upper echelon of police officers. The investigations system is an integral part of the Israel Police, and the minister is in charge of setting general policy, priorities, and budget for the police. In light of this, to take away the control of investigative matters from the Minister of Public Security is liable to be harmful both to the minister and to his general ability to function in his role. It seems difficult, therefore, to separate him from these issues so long as he is an acting minister. In any event, such a course would apparently require a shift in the division of the labor and the intra-governmental responsibilities of ministers. This is something we will refrain from interfering with.

It should be noted that, in the main arguments of respondent 3, he reiterated that the claim of a conflict of interest should be rejected. At the conclusion of his argument, in para. 20.12., he stated: “[e]ven if there does exist a conflict of interest, there are much less drastic ways of neutralizing it and these should be preferred.” Despite searching, I could not find what alternative means were being referred to here which would properly address the problem of the conflict of interest. Had my colleagues shared in my opinion, there may conceivably have been room to ask respondent 3 to set forth arguments regarding this issue, and to propose a solution which would neutralize the conflict of interest without the need to remove him from his office. As long as no such solution is found, I feel that there is no way to avoid removing Hanegbi from his office as Minister of Public Security.

Justice E. Mazza

Like my colleagues Justice Rivlin and Vice-President Or, I feel that petitioner did not present us with a clear justification for intervening in the Prime Minister’s decision to appoint respondent 3 to the office of Minister of Justice. Based on their well explained and properly detailed reasons – in most of which, if not all, I concur – I hereby join them in concluding that this petition should be denied.

Justice Y. Türkel

1. In my opinion, the petition should be denied. I concur with the opinion of my esteemed colleague, Justice Rivlin, who laid out the appropriate reasoning. I also concur with the reasons laid out by my esteemed colleague, Vice-President Or. In my opinion, it would have been sufficient to predicate the denial of this petition on two grounds:

a) The first ground is that approximately six years ago this Court, in a panel of five Justices, dealt with a petition requesting that respondent be removed from his post as Minister of Justice. It decided, by a majority of four, to reject the petition without granting an order nisi. See HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [3], at 46. That petition concerned three out of the four affairs raised by the petition here – the “brawling affair,” the “ISTA affair,” and the “Bar-On affair” – and it dealt with the fundamental questions currently under discussion. In that petition, the Court found no adequate reason to remove respondent 3 from his post. The only new factor here is the fourth affair – the “Derech Tzleha affair” – and the appointment of respondent to the post of Minister of Public Security. I believe that this fourth affair, per se, and even in conjunction with the previous affairs, does not amount to a justification for respondent’s removal from office. It should also be mentioned that the distinction that petitioner draws between the office of the Minister of Justice and the office of the Minister of Public Security is, unfortunately, erroneous.

b) There is a midrash in the Talmud that can shed light on the second reason, which is more at the heart of the dispute than the first one. This midrash states that no appointments to high offices can be made unless the public is consulted first. This midrash is based on the two biblical verses: “And the Lord spoke unto Moses saying: See, I have called by name Bezalel the son of Uri, the son of Hur, of the tribe of Judah.” (Exodus 31:2) [110], and “And Moses said unto the children of Israel: See, the Lord hath called by name Bezalel the son of Uri” (Exodus, 35:30) [110].

Said Rabbi Isaac: A public appointment is not made without first consulting the public, in accordance with the text: “See, the Lord hath called by name.”

Said the Holy One, Blessed be He, to Moses: Moses! Is Bezalel acceptable to you? He answered: Lord of the Universe! If he is acceptable to Thee, all the more so to me! The Lord replied: Even so, go and tell the Israelites. He went and asked the Israelites: Is Bezalel acceptable to you? They answered him: Moses, our teacher! If he is acceptable to the Almighty and to you, he is certainly acceptable to us!

Babylonian Talmud, Tractate Berakhot 55a [111]. On the requirement to consult with the public, see also Shulkhan Arukh, Choshen Hamishpat, 3:4 [112]; Arukh Hashulkhan, Choshen Hamishpat, 3:8 [113]; Ribash, Responsa 271 [114]; Rabbi A.Y. Kook, Be’er Eliyahu, commentary on the Biur HaGra [115], as well as other sources. See also my comments in HCJ 6499/99 The National Religious Party v. Rabbi Shlomo Ben-Ezra [86], at 624.

It seems, therefore, that no appointment could be made unless the public was consulted, despite the fact that both the Lord and Moses expressed their views about the appointment. Regarding the removal of officials who have been the subject of defamation, compare Exodus 18:21 [110]; Babylonian Talmud, Tractate Sanhedrin 7b [116]; Maimonides, Laws of Temple Vessels, 4:21 [117]; Maimonides Reponsa, Chapter 111 [118]; Shulkhan Arukh, Chosen Hamishpat, 53:25 [119]; Zaken Abraham Responsa, Yoreh Deah, 30 [120].

Respondent 3 was elected to the first slot in his party’s primary elections. He placed third on his party’s list for the elections to the Knesset, and was nominated by the Prime Minister to serve as Minister of Public Security. This appointment was ratified by the Knesset. Therefore, “consultation” with the public did occur and the public had its say. Is our power greater than that of the people? I believe that we can overrule the choice of the people, as expressed through elections to the Knesset, only in rare and extraordinary circumstances. Save with respect to the legality of the appointment, it is not our place, but the public’s, to take issue with the wisdom and ethics of the administrative authority making the appointment. This is not to say that I wish to detract from the Court’s power to speak its mind on issues of ethics and morality. See Bar-On [3], at 61-64 (Zamir, J.). Sometimes it is appropriate that it should do so. But the proposal to expand the rule so that respondent 3’s conduct, as discussed in that case, would “obligate the Prime Minister to remove a minister or deputy-minister from his post, though well-intentioned, would be improper and likely to cause more harm than good.” Id. at 64. There is much to be said for the view that the morals and

character of public representatives should be subject to painstaking scrutiny. But in the world in which we live, this goal is unattainable.

Therefore, the petition should be denied.

Justice D. Dorner

I agree with the rulings of my colleagues, Justice Rivlin and Vice-President Or, who hold the petition should be denied. I wish to add three comments to the rulings of my two colleagues.

1. Indeed, the discretionary authority for appointing and removing ministers (and deputy-ministers) is not absolute. In addition to the grounds for removal expressly provided in the Basic Law: The Government, there are also the grounds established by HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]] and HCJ 4267/93 Amitai v. The Prime Minister of Israel [Pinhasi [5]]:

When a minister or deputy-minister has been indicted for a serious crime, it is incumbent upon the Prime Minister to remove him from his post. The failure of the Prime Minister to do so will be regarded, under such circumstances, as extremely unreasonable.

HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel, at 56 [Bar-On [3] (Zamir, J.). The Court added that:

There is a possibility that, even if a minister’s behavior does not amount to criminal conduct, it may still be so serious that it would be extremely unreasonable to allow him to continue in his post. Even so, this possibility is still far from constituting a sweeping rule that a minister must be removed from office in every instance of behavior that deviates from the norms of appropriate conduct.

Id, at 63.

As mentioned in my colleagues’ opinions, the fact that legal grounds for removal are limited is a result of the fact that the constitutional authority for the appointment and removal of ministers enables the implementation of policy objectives, including policies that are political in nature. This includes the need to appoint ministers with the proper skills and experience – which is the Prime Minister’s responsibility. From this it follows that it is, first and foremost, the responsibility of the Knesset and the public to review these political appointments. Moreover, restraint is necessary due to the damage that removal from a senior political position causes to a public figure, to his presumption of innocence, and to his ability to accomplish his life’s work. Of course, this fear does not supersede the prohibition against appointments which severely impair the public’s trust in the government. However, there is no room to expand the grounds for removal beyond those already set down in Deri [47] and Pinhasi [5].

2. The grounds of removal established in Deri [47] and Pinhasi [5] are based on two elements. The first element is that there must be sufficient evidence to justify an indictment, such as evidence that creates a reasonable chance of conviction:

An indictment is not a verdict. It only reflects the prima facie evidence that has been collected by the public prosecutor’s office. Yet, continued tenure in the government is impacted even by the prima facie evidence of the indictment. Under certain circumstances, the nature of the individual’s alleged offenses – in addition the final legal ruling – is also significant, as these offenses have been officially presented in the indictment ready for filing with the courts.

Deri [47], at 422-23 (Shamgar, P.). The second element is that the evidence must point to the commission of a serious crime, one which involves moral turpitude. Such crimes, including the receipt of bribes, acts of fraud, defrauding state authorities, and the filing of false reports, caused Minister Aryeh Deri and Deputy-Minister Raphael Pinhasi to be declared unfit for office, As stated there:

[I]f, heaven forbid, an indictment is filed against a minister, which charges the minister with serious offenses that involve moral turpitude – such as the acceptance of bribes, acts of fraud, deceiving state authorities, lying or with making false reports – then it would be neither proper nor reasonable for him to continue in office.

Id. at 427 (Levin. J). Minister Tzahi Hanegbi’s part in the Derech Tzleha affair is the decisive affair in the petition before us. As my colleagues have already indicated, the legality of Hanegbi’s appointment, as affected by the other three affairs, was already dealt with by this Court in Bar-On [3]. In that case, not only was there no indictment, but Hangebi’s file was closed due to the lack of a reasonable chance of a conviction.

Indeed, the facts of the crimes Hanegbi is alleged to have committed are not in dispute. Proving the criminal intent, however, turned out to be the primary difficulty. This intent is usually what determines the nature of the behavior and the level of moral turpitude associated with it. See Glanville Williams, Criminal Law 22 (2d ed. 1961) [107]; compare also CrimA 2831/95 Elba v. The State of Israel [87], at 319. This intent particularly influences the anti-social element of the crimes of fraud and breach of trust, which are attributed to the minister. As Justice Goldberg stated:

The crime of breach of trust is a general offence, yet its factual basis is not adequately defined. As a result, moral guilt is one of the mechanisms for defining the boundaries of this crime. Since moral guilt constitutes a main element of the crime, there are instances where it is necessary for the Court to investigate the defendant’s motives.

See HCJ 2534/97 Yahav v. The State Attorney [2], at 16.

The Prime Minister saw the Attorney-General’s report, including its conclusion that the file against the minister should be closed due the fact that there was no reasonable chance of a conviction. Certainly, he was obligated to make use of the Attorney-General’s conclusion – and its reasoning – even if the report did not detail the evidence on which this conclusion was founded. Compare HCJ 320/96 Yael German v. The Municipal Council of Herzliya [88], at 239. In any event – and this is the significant factor – petitioner did not attack this report and we have no choice, therefore, other than to accept the Attorney-General’s conclusion.

An indictment does not require evidence that guarantees a conviction. When an indictment is filed, the chance of conviction can only be estimated. Moreover, an indictment is only based on the evidence obtained by the police – the defense does not cross examination or present its own evidence. See CrimApp 8087/95 Za’ada v. The State of Israel [89], at 148-49; and Yahav [2], at 12-13. Most significantly, it is possible to indict a suspect even when existing evidence does not prove guilt beyond reasonable doubt. That is to say, there may be a reasonable chance for conviction, which is what justifies the filing of the indictment, even if the evidence does not rule out every reasonable doubt. It goes without saying, therefore, that the decision not to file an indictment due to the lack of a reasonable chance of conviction possesses, as a rule, an “acquittal value” greater than an acquittal in court. Furthermore, it is difficult to imagine a scenario in which the appointment of a minister would be proscribed on account of an act for which he was acquitted in court, even if only due to the existence of reasonable doubt. In any event, such a proscription would be all the more inappropriate where the Attorney-General – whose discretion has not been assailed here – has not even filed an indictment, due to the lack of a reasonable chance of conviction.

3. It is the conclusion of my colleague, Justice Beinisch, that the petition should be accepted, because of the conflict of interest that exists between Hanegbi’s post as Minister of Public Security and his alleged desire to get revenge on his interrogators and the Investigations Branch. In this regard, I am in agreement with my colleagues, Justice Rivlin and Vice-President Or, that it is extremely doubtful that a conflict of interest actually exists. Even if there is some type of conflict of interest, it is very slight and does not give rise, under the circumstances, to any reasonable concern that extraneous considerations will hamper the functioning of the Ministry of Public Security and of the police. See HCJ 3132/92 Mushlav v. The District Committee for Planning and Building, Northern District [90], at 747, for an explanation of what constitutes a reasonable concern of an extraneous consideration.

Yet, even if the case had been borderline, there would be cause for great hesitation before granting the petition. Granting the petition would mean harming a public figure merely on the basis of a police recommendation to put him on trial, a recommendation rejected by the Attorney-General. The result would be that the very fact of a police recommendation, even if unfounded, would be sufficient to render a person unfit for office or to remove him from a ministerial post. Certainly, had a clear-cut case of conflict of interest been created, due to the police recommendation, it is possible there would be no way of escaping this result. Yet, this is not so in a borderline case.

As such, I join the opinion of my colleagues, Justice Rivlin and Vice-President Or, that this petition be denied.

*******

Petition denied according to the majority opinions of Justices Rivlin, Or, Mazza, Turkel and Dorner, against the dissenting opinions of Justices Cheshin and Beinisch.

Under the circumstances, no party was ordered to bear costs.

October 9, 2003

Full opinion:

Movement for Quality Government in Israel v. Sharon.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/03/930/019/P26/03019930.p26.pdf

Association for Civil Rights in Israel v. State of Israel

Case/docket number:

HCJ 6924/98

Date Decided:

Monday, July 9, 2001

Decision Type:

Original

Topics:

Administrative Law

Discretion

Constitutional Law

Basic Law: The Government

Equality Before the Law

Freedom of Expression

Government

Abstract:

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

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

Voting Justices:

Zamir, Itzchak

Primary Author

majority opinion

Cheshin, Mishael

majority opinion

Beinisch, Dorit

majority opinion

Full text of the opinion:

HCJ 6924/98

Association for Civil Rights in Israel

1. State of Israel

2. Minister of National Infrastructures

3. Minister of Finance

The Supreme Court sitting as the High Court of Justice

[9 July 2001]

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

Objection to an order nisi issued March 14, 1999.

Basic Laws cited:

Basic Law: Israel Lands ss. 1, 2.

Basic Law: Human Dignity and Liberty s. 1.

Legislation cited:

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

Israel Lands Law, 5720-1960.

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

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

Women’s Equality of Rights Law 5711-1951.

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

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

Authority for Advancement of Women Law, 5758-1998.

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

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

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

Patient’s Rights Law 5756-1996, s. 4.

Draft legislation cited:

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

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

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

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

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

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

Israeli books cited:

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

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

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

Israeli articles cited:

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

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

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

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

Foreign books cited:

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

Other:

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

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

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

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

For the petitioner – Hadas Tagari.

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

JUDGMENT

Justice I. Zamir

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

The Law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Composition of the Council

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The petition

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

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

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

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

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

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

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

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

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

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

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

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

Principle of equality

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

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

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

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

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

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

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

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

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

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

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

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

The duty of appropriate representation

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appropriate representation for Arabs

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The present case

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

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

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

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

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

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

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

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

Summary

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

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

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

Justice M. Cheshin

I agree.

Justice D. Beinisch

I agree.

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

18 Tamuz 5761

9 July 2001

Full opinion:

Association for Civil Rights in Israel v. State of Israel.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/98/240/069/I26/98069240.i26.pdf

Beilin v. Prime Minister

Case/docket number:

HCJ 6204/06

Date Decided:

Tuesday, August 1, 2006

Decision Type:

Original

Topics:

State of Emergency and National Security

Abstract:

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was constitutionally required to make a declaration of war and that it should have taken action to compensate the residents in the north of Israel for the economic losses that they suffered from the Hezbollah attacks.

Held: What constitutes ‘starting a war’ is a complex question. The definition of ‘war’ cannot be separated from the foreign affairs of the state. A government decision that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations. In any case, the government complied with all the constitutional formalities that would be required by a declaration of war.

The Knesset and the government have enacted legislation to address the compensation of the residents of the north of Israel. There has therefore been a change in the legal position since the petitions were filed. In so far as these arrangements do not satisfy the petitioners, the doors of the court will be open to them.

Petition denied.

Voting Justices:

Beinisch, Dorit

Primary Author

majority opinion

Arbel, Edna

majority opinion

Procaccia, Ayala

majority opinion

Full text of the opinion:

HCJ 6204/06

Dr Yossi Beilin

1. Prime Minister of Israel

2. Government of Israel

HCJ 6235/06

Guy Yoren

and 25 others

1. Ehud Olmert, Prime Minister

2. Government of Israel

3. Minister of Finance

HCJ 6274/06

Movement for Quality Government in Israel

1. Government of Israel

2. Minister of Defence

3. Minister of Finance

4. Finance Committee of the Knesset

5. Foreign Affairs and Defence Committee of the Knesset

The Supreme Court sitting as the High Court of Justice

[1 August 2006]

Before Justices D. Beinisch, A. Procaccia, E. Arbel

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

Petition denied.

Legislation cited:

Basic Law: the Army, s. 2(a).

Basic Law: the Government, ss. 4, 40, 40(a), 40(b), 40(c).

Civil Defence Law, 5711-1951, ss. 9C(b)(1), 9C(b)(3).

Customs Ordinance [New Version], s. 211(c).

Declaration of Death Law, 5738-1978, s. 1.

Penal Law, 5737-1977, s. 99.

Property Tax and Compensation Fund Law, 5721-1961, ss. 35-38B.

Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973.

Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006.

Protection of Workers in a State of Emergency Law, 5766-2006.

Israeli Supreme Court cases cited:

[1] CrimA 6411/98 Manbar v. State of Israel [2001] IsrSC 55(2) 150.

[2] HCJ 5128/94 Federman v. Minister of Police [1994] IsrSC 48(5) 647.

[3] HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[4] HCJ 3975/95 Kaniel v. Government of Israel [1999] IsrSC 53(5) 459.

[5] HCJ 963/04 Laufer v. State of Israel [2004] IsrSC 58(3) 326.

For the petitioner in HCJ 6204/06 — H. Ashlagi, H. Peretz.

For the petitioners in HCJ 6235/06 — Y. Goldberg.

For the petitioner in HCJ 6274/06 — T. Medadluzon.

For the respondents in HCJ 6204/06 and HCJ 6235/06 and respondents 1-3 in HCJ 6274/06 — E. Ettinger.

For respondents 4-5 in HCJ 6274/06 — R. Scherman-Lamdan.

JUDGMENT

Justice D. Beinisch

The three petitions before us were filed against the background of the state of hostilities in which Israel has found itself since 12 July 2006, when the hostilities began between Israel and the Hezbollah organization, which is operating against the IDF and against the citizens of the State of Israel from the territory of Lebanon.

The background to the petitions

1. On the morning of 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight IDF soldiers were killed and two other soldiers were kidnapped and taken over the border. Following this attack, the government adopted a decision on the same day, in which, inter alia, it decided the following:

‘Israel must respond with the severity required by this offensive operation, and it will indeed do so. Israel will respond in a forceful and determined manner against the perpetrators of the operation and the parties responsible for it, and it will also act to frustrate efforts and activity directed against Israel’ (government decision no. 258).

Within the framework of that decision, the government approved the recommendations presented to it by the security establishment, and it also authorized the prime minister, the Minister of Defence, the various deputy prime ministers and the Minister of Public Security to approve the specific operations presented by the security establishment for implementation. Since 12 July 2006, the IDF has been carrying out massive military operations in the territory of Lebanon, and the State of Israel has been attacked at the same time with thousands of missiles and Katyusha rockets, which have caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property. On 13 July 2006, the Minister of Defence appeared before the Foreign Affairs and Defence Committee of the Knesset, and at that session descriptions were given by the minister and by intelligence and operations officers. It should also be stated that on 15 July 2006 the Minister of Defence decided to make use of the power given to him under s. 9C(b)(1) of the Civil Defence Law, 5711-1951 (hereafter: the Civil Defence Law) and he declared the existence of a ‘special situation on the home front.’ This declaration has significance with regard to granting powers to give orders concerning defence of the home front against military attacks. On 16 July 2006, the government convened a second time to discuss the security position and it also considered, inter alia, the special situation on the home front. The government decided, inter alia, that it would consider extending the order made by the Minister of Defence within 48 hours of the date of the declaration after it had received the recommendations of an inter-departmental committee chaired by the director-general of the Prime Minister’s Office (government decision no. 273). The next day, on 17 July 2006, the prime minister made a statement with regard to the security situation before the Knesset. In his statement in the Knesset he announced, inter alia, that:

‘Extreme, terrorist, violent elements are disrupting the life of the whole area and putting its stability in jeopardy. The area in which we live is threatened by these murderous terrorist groups; it is an interest of the whole area — and an international interest — to control them and to stop their activity… We will continue to act with all our power until we achieve this… In Lebanon we will fight in order to achieve the conditions that the international community has determined, and this was given a clear expression only yesterday in the decision of the eight leading nations of the world:

The return of the hostages Ehud (Udi) Goldwasser and Eldad Regev.

An absolute cessation of hostilities.

The deployment of the Lebanese army throughout Southern Lebanon.

The removal of Hezbollah from the area by implementing United Nations resolution no. 1559.

Until then, we will not cease to act.

On both fronts we are speaking of self-defence operations in the most fundamental and basic sense. In both cases we have an interest whose importance and significance go far beyond the scope of the individuals concerned.’

On the same day, the government also adopted decision no. 282, in which it was decided, inter alia, to extend the declaration of the Minister of Defence concerning ‘a special situation on the home front’ in accordance with the power given to the government under s. 9C(b)(3) of the Civil Defence Law. The government also decided ‘to apply to the Foreign Affairs and Defence Committee of the Knesset and to ask for its approval to extend the period during which the declaration is valid until the date on which the government will decide to cancel the declaration.’ It should also be pointed out that the Foreign Affairs and Defence Committee of the Knesset held two additional sessions with regard to the situation. At the session that took place on 18 July 2006, the chief of staff, the Home Front Commander and the Head of the Research Division in the Intelligence Branch appeared before the committee. At the session that took place on 26 July 2006 the prime minister gave the committee a report concerning the security position. An additional government decision that is relevant to the petitions before us is decision no. 309 that the government adopted on 23 July 2006. This decision approved the draft Protection of Workers in a State of Emergency Law, 5766-2006 (hereafter: the Protection of Workers in a State of Emergency Law), which was intended to prevent the dismissal of workers who are unable to go to work during the period of the hostilities. With regard to the economic loss caused to Israeli residents as a result of the current security position, we were told in the response to the petitions that was filed on behalf of the attorney-general that on 27 July 2006 an agreement was signed between government representatives, the General Federation of Labour and the Manufacturers Association of Israel. This agreement was intended, inter alia, to regulate matters concerning employment relations that were affected by the security position and the directives of the security forces. The aforementioned agreements in the sphere of labour relations were enshrined in an agreement that the government regards as a collective agreement, and the government also gave notice of its intention to table a draft law in order to apply the provisions of the aforesaid agreement to all the workers in the economy. The Minister of Finance also announced, within the framework of the agreement of 27 July 2006, that he intended to submit, for the approval of the Finance Committee of the Knesset, the Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006 (hereafter: the Property Tax Regulations, 2006), which would provide, inter alia, a mechanism that would allow compensation to be given to towns that were not considered border towns under the Property Tax and Compensation Fund Law, 5721-1961 (hereafter: the Property Tax Law) and the regulations enacted thereunder. The Property Tax Regulations would also determine the areas and periods in which employers would be entitled to compensation from the state for indirect damage, and would also determine the amount of the indirect damage. On 31 July 2006, the Finance Committee of the Knesset did indeed approve the aforesaid regulations, and on the same day the Knesset also passed the Protection of Workers in a State of Emergency Law, whose purpose, as aforesaid, was to protect workers who were absent from their work because of the security situation.

The petitions

2. As stated, three petitions were filed against the background of the events arising from the hostilities, and these were heard jointly before us on 30 July 2006. All of them concern the legal steps required by the situation that has arisen. In the petition filed by the petitioner in HCJ 6204/06, MK Dr Y. Beilin argues that the government of Israel acted unlawfully in that it did not make a decision to start a war in accordance with s. 40(a) of the Basic Law: the Government, even though Israel has de facto been in a state of war since 12 July 2006. The petitioner also argues that, contrary to the provisions of s. 40(c) of the Basic Law: the Government, the government did not deliver a notice of its intention to start a war to the Foreign Affairs and Defence Committee of the Knesset, nor did the prime minister give such a notice to the plenum of the Knesset. The petitioner emphasizes that the matter at issue in the petition is not the question whether the decisions made by the political leaders concerning the war were justified, but whether they complied with the constitutional obligations imposed on them with regard to the manner of making the decision to start a war. The petitioner also addresses in his petition the economic ramifications that he claims are the result of not making a declaration of war. The petitioner therefore requests that the respondents make use of the power given to them in s. 40(a) of the Basic Law: the Government, and that the government should decide to make a declaration of war. The petitioners in HCJ 6235/06, who are business owners in Haifa and Tiberias, request that a state of emergency should be declared in Israel that will have immediately effect in the area of Haifa and the north, and that the government shall be liable to enact emergency regulations in order to prevent the collapse of the petitioners’ businesses and to enable them to continue to survive from an economic viewpoint during the emergency period. The petitioner in HCJ 6274/06, the Movement for Quality Government in Israel, requests that the respondents should exercise the powers given to them under the law in order to give real financial compensation to the workers and their employers, especially in the north of Israel, who have been harmed economically by the military hostilities taking place at this time. According to the petitioner, the respondents are liable to compensate financially those citizens who have been harmed economically by the war and the refusal of the respondents to exercise their powers amounts to a shirking of the state’s duty to the residents in the line of fire, which is unreasonable and results in an unequal division of the economic burden, as well as undermining the values of solidarity and collective responsibility.

Deliberations

3. Let us first consider the arguments of the petitioner in HCJ 6204/06 with regard to the relief he is seeking that a state of war should be declared. These arguments are based on the provisions of s. 40 of the Basic Law: the Government, which states the following:

‘Declaration of war 40. (a) The state shall not begin a war other than by virtue of a government decision.

(b) Nothing in this section shall prevent military operations that are required for the purpose of the defence of the state and the security of the public.

(c) A notice of a government decision to start a war under subsection (a) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity; the prime minister shall also deliver the notice at the earliest opportunity to the plenum of the Knesset; a notice of military operations as stated in subsection (b) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity.’

Section 40(a), which according to the petitioner is the relevant section in this case, was intended to ensure that the State of Israel would not begin a war without a decision of the government, which has collective responsibility to the Knesset (see s. 4 of the Basic Law: the Government). Section 40(c) of the Basic Law: the Government provides that the government should give notice of a decision that it makes under s. 40(a) of the Basic Law to the Foreign Affairs and Defence Committee of the Knesset, and that the prime minister should also give the notice at the earliest opportunity to the plenum of the Knesset. These provisions are a tangible expression of the responsibility of the government to the Knesset.

In his arguments before us, counsel for the petitioner, Advocate Ashlagi, discussed at length the constitutional importance of the aforesaid s. 40(a), and how important it is that the government should act according to law and carry out the constitutional processes required by the Basic Laws, which are the basis for the government’s collective responsibility to the Knesset. The state argued before us, in so far as the current conflict between Israel and Hezbollah is concerned, that the government saw no reason in the present situation why it should make use of its power under s. 40(a) of the Basic Law: the Government; according to its outlook, it is carrying out military operations in accordance with s. 40(b) of the Basic Law: the Government, and the government decision of 12 July 2006 was made accordingly.

4. The constitutional propriety of the proceedings whereby a government decision is made with regard to starting military activity in Lebanon is what lies at the heart of the petition of MK Y. Beilin. According to the Basic Law: the Government, the government is the executive authority of the state and it has collective responsibility to the Knesset. By virtue of its role as the executive authority of the state, the government is responsible for managing the foreign affairs of the state and by virtue of its status and according to s. 2(a) of the Basic Law: the Army, the army is subservient to it. Part of the democratic character of our system of government is that all the security authorities are subservient to the government, whereas the government, as aforesaid, is responsible to the Knesset (see, in this regard, A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel — the Organs of Government and Citizenship (sixth edition, 2005), at pp. 979-981; M. Kremnitzer and A. Bendor, The Basic Law: the Army (Commentary on the Basic Laws edited by I. Zamir, 2000), at pp. 44-45). Indeed, in order to uphold the principles of our system of government, it is very important that no significant military operations are carried out without a government decision and without parliamentary scrutiny. This is also the premise underlying the provisions of s. 40 of the Basic Law: the Government; the provisions of the section are intended to ensure that there is no departure from the basic principles concerning the responsibility of the government on behalf of the state for military operations and also to ensure that the government is responsible to the Knesset for carrying out such operations. The provisions of ss. 40(b) and (c) of the Basic Law: the Government were also enacted to this end; these provide the exception to the rule in s. 40(a) and the duty of reporting to the Knesset. It should be emphasized that s. 40(a) of the Basic Law did not define what constitutes ‘starting a war’ within the meaning of the section. This is a complex question that is multi-faceted. The definition of the concept of ‘war,’ when we are speaking of the government’s powers with regard to military operations, cannot be separated from the foreign affairs of the state and the functioning of the government in the sphere of international relations. Therefore, the interpretation of the concept of ‘war’ in this context, which has ramifications in the international sphere, is based mainly on the rules of international law. A decision of the government that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations, and indeed in the international sphere formal declarations of war have not been customary in recent decades. It is not superfluous to add that according to international law a formal declaration of war is not a condition for the existence of a state of war or an armed conflict, nor is it required for the application of the rules of international law concerning the manner of conducting the fighting (see C. Greenwood, ‘Scope of Application of Humanitarian Law’ in D. Fleck, Handbook of Humanitarian Law in Armed Conflicts (1999), at p. 43; I. Detter, The Law of War (second edition, 2004), at pp. 9-17; R. Sabel, International Law (2003), at pp. 423-424).

It should be noted that in Israeli law there is also no binding connection between the existence of a state of war, with all of its legal ramifications, and an official declaration of the government to start a war. The expression ‘war’ appears in various pieces of legislation and the interpretation given to it depends on the purpose of the legislation and the legislative environment in which the expression appears, rather than on the formal proceeding of a declaration of starting a war (see, for example, s. 99 of the Penal Law, 5737-1977, concerning the offence of aiding an enemy in a war; s. 1 of the Declaration of Death Law, 5738-1978, concerning the definition of the term ‘killed’; s. 211(c) of the Customs Ordinance [New Version], concerning the commission of an offence of smuggling during a state of war. See also CrimA 6411/98 Manbar v. State of Israel [1], at pp. 194-197). In support of his arguments, counsel for the petitioner contends that in the last few days steps have been taken to effect a large-scale call-up of reserve forces. He also argued that the Minister of Defence said publicly that we are at war and all of these show that we are indeed speaking of a war within the meaning of s. 40(a). This argument is not convincing, because it has no legal foundation. Large-scale military operations, firing by hostile forces (including a terrorist organization) on a civilian population, the civil population’s feeling of emergency and threat and the casualties suffered as a result of military operations on both sides of the border all lead to a security situation in which the State of Israel is regarded by the public as in a state of war. It should be emphasized that even from a legal perspective, for the purpose of various laws, the current security position may be considered a state of war. But this is insufficient to establish a basis for making a declaration to start a war for the purpose of the provisions of s. 40(a) of the Basic Law: the Government. The provisions of s. 40(a) say that ‘The state shall not begin a war other than by virtue of a government decision’ (emphasis supplied). In the circumstances that have arisen, the government is entitled to determine that the military operations that it decided to carry out do not constitute ‘starting a war’ but merely military operations that constitute self-defence in response to aggression. The government acted in this regard within the framework of its clear authority in accordance with the broad discretion given to it with regard to all matters of foreign and defence policy (see and cf. HCJ 5128/94 Federman v. Minister of Police [2]; see also HCJ 5167/00 Weiss v. Prime Minister [3], at pp. 471-472, and the references cited there).

We should also add that the concern expressed by counsel for the petitioner with regard to a violation of the constitutional purpose of the provisions of the section has no foundation. Even though the government decided that the military activity in Lebanon falls within the scope of the provisions of s. 40(b) of the Basic Law, de facto it also carried out all of the procedures stipulated in the law that are relevant to a decision under s. 40(a). The decision to carry out military operations against the Hezbollah organization was made by the government as a whole. The Foreign Affairs and Defence Committee was given a report about this decision, and several reports were also given to the committee with regard to the developments that took place. These reports satisfy the requirement that the government’s decision is subject to parliamentary scrutiny. In this way, the government de facto discharged its duty even in accordance with the more stringent requirements of s. 40(a). We should also add that the fact that no use was made of s. 40(a) of the Basic Law is of no significance for the purpose of the economic compensation and aid required by the residents of the north of the country. For this reason, the manner in which the government acted in making the decisions under discussion is consistent with its powers and the scope of discretion given to it, and it does not give rise to any ground for our intervention (cf. HCJ 3975/95 Kaniel v. Government of Israel [4], at p. 493; HCJ 963/04 Laufer v. State of Israel [5], at pp. 334-335).

5. The question of determining the method of compensating the residents of the north of the country, which was raised in all the petitions before us, is a serious question that deserves the immediate consideration of the government and the Knesset. There is no doubt that the residents of the areas that lie within range of the continual shooting carried out by the Hezbollah without respite are entitled to be compensated by the state for the direct and indirect damage suffered by them. A large sector of the population has been harmed and is confined to reinforced rooms and shelters. Ordinary life — business, trade, agriculture and industry — has been disrupted. Workers have been prevented from going to their places of work and employers have been reduced to economic difficulties. All of this requires the special attention of the government and the Knesset in order to find appropriate solutions. We see from the statement of counsel for the Attorney-General that at the very moment steps are being taken by the government, which will also be submitted for the approval of the Knesset, and these will include various compensation arrangements for the residents of the north. It can also be seen from this statement that there are also proper legal tools in existing legislation (see ss. 35-38B of the Property Tax Law, and the Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973), and in so far as adjustments are required for the current situation the government will take steps to initiate legislation and to enact regulations immediately. The Knesset has notified us that there are private bills pending before the Knesset, and these are intended for the same purpose. The government also gave notice, as we said above, that on 27 July 2006 it reached an agreement with the General Federation of Labour and the Manufacturers Association of Israel with regard to the regulation of employment relations between workers and employers that are affected by the current security position. The agreement also contains a mechanism that will allow compensation for towns that are not currently considered ‘border towns’ under the Property Tax Law and the regulations enacted thereunder. It should be noted, however, that this agreement is valid for a period that ended on 31 July 2006 and it was argued before us that the agreement does not encompass all of the problems that have arisen as a result of the military operations. In any case, in view of the statements given to us with regard to the steps being taken for this purpose, it can be assumed that the government will indeed act as quickly as possible in order to ensure an immediate reduction of the damage caused to the residents of the north and proper compensation for the severe economic harm caused to them. And so, as we said above, on 31 July 2006 the Knesset passed the Protection of Workers in a State of Emergency Law, which concerns the protection of workers’ rights in the current security situation. On the same date, the Finance Committee of the Knesset also approved the Property Tax Regulations, 2006, whose purpose is to regulate the compensation for certain aspects of the economic loss of residents of the north resulting from the military operations. The provisions of the law and the regulations enshrine the provisions of the agreement that was signed on 27 July 2006. Therefore, in so far as the petitions relate to the lack of compensation arrangements, there has been a change in the legal position since the petitions were filed. In so far as the arrangements that have been made do not satisfy the petitioners and their dissatisfaction is well-founded, the doors of this court will be open to them. In concluding our judgment, we should point out that with regard to the claims of the petitioners in HCJ 6235/06, who are requesting that a state of emergency should be declared and that emergency regulations should be enacted, there is no need for the relief sought by them. The Knesset already decided on 31 May 2006 to extend the state of emergency that has existed in Israel since it was founded by another year, by virtue of the power given to the Knesset in s. 38 of the Basic Law: the Government. Moreover, the petitioners also did not succeed in showing any reason why the measure of enacting emergency regulations should be adopted in order to regulate the granting of compensation to which they claim they are entitled.

For these reasons the petitions should be denied.

Justice A. Procaccia

I agree.

Justice E. Arbel

I agree.

Petition denied.

7 Av 5766.

1 August 2006.

Full opinion:

Beilin v. Prime Minister.pdf

Link to original Hebrew text of decision on official ISC website:

http://elyon1.court.gov.il/files/06/040/062/N04/06062040.n04.pdf

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