Judicial review

Movement for Quality Government in Israel v. The Knesset

Case/docket number: 
HCJ 5658/23
Date Decided: 
Monday, January 1, 2024
Decision Type: 
Original
Abstract: 

Movement for Quality Government v. Knesset concerns challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. We translate here Chief Justice Hayut's majority opinion.

 

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority. A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary represented an extreme deviation from the Knesset’s constituent authority that left no alternative but to declare the amendment void.

 

An abstract of the various opinions can be found here.

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

HCJ 5658/23

HCJ 5659/23

HCJ 5660/23

HCJ 5661/23

HCJ/5662/23

HCJ 5663/23

HCJ 5711/23

HCJ 5769/23

 

Petitioner in HCJ 5658/23:               Movement for Quality Government in Israel

Petitioners in HCJ 5659/23:             Tal Oron et al.

Petitioner in HCJ 5660/23:               The Smoke Free Israel Initiative

Petitioners in HCJ 5661/23:             The Civil Democracy Movement et al.

Petitioners in HCJ/5662/23:             Yehuda Ressler et al.

Petitioners in HCJ 5663/23:             Israel Bar Association et al.

Petitioner in HCJ 5711/23:               Ometz Movement – Movement for Good Governance, Social and Legal Justice

Petitioner in HCJ 5769/23:               Roni Numa

 

v.

 

Respondents in HCJ 5658/23:          1. The Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5659/23:          1.  Knesset Constitution, Law, and Justice Committee

2. Chair of the Knesset Constitution, Law, and Justice Committee

3.  Knesset

4.  Attorney General

5.  Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5661/23:          1. Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5662/23:          1. Knesset

                                                            2. Minister of Justice

 

Respondents in HCJ 5663/23:          1. Knesset

                                                            2. Government of the State of Israel

                                                            3. Knesset Constitution, Law, and Justice Committee

 

Respondents in HCJ 5711/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5769/23:          1. Prime Minister of Israel

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Knesset Foreign Affairs and Defense Committee

                                                            4. Knesset

 

Amici Curiae:                                    1.  Association for Civil Rights in Israel

2. Adam Teva V’Din – Israeli Association for Environmental Protection

 

                                               

The Supreme Court sitting as High Court of Justice

Before: President (emer.) E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice N. Sohlberg, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice D. Mintz, Justice Y. Elron, Justice Y. Wilner, Justice O. Groskopf, Justice A. Stein, Justice G. Canfy-Steinitz, Justice G. Kabub, Justice Y. Kasher, Justice R. Ronen

 

Israeli Supreme Court cases cited:

[1]        HCJ 21/51 Binenbaum v. Tel Aviv Municipality, IsrSC 6, 375 (1952)

[2]        HCJ 129/57 Manshi v. Minister of Interior, IsrSC 12, 209 (1958)

[3]        CA 311/57 Attorney General v. M. Dizengoff & Co., Ltd., IsrSC 13, 1026 (1959)

[4]        HCJ 332/62 Schpanier v. Minister of the Finance, IsrSC 17, 574 (1963)

[5]        CA 492/73 Speiser v. Sports Betting Board, IsrSC 29(1) 22 (1974)

[6]        HCJ 156/75 Dakka v. Minister of Transportation, IsrSC 30(2) 94 (1976)

[7]        HCJ 389/80 Dapei Zahav v. Broadcasting Authority, IsrSC 35(1) 421 (1980)

[8]        HCJ 73/53 Kol Ha’am Co., Ltd. v. Minister of the Interior, IsrSC 7, 871 (1953)

[9]        HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister, IsrSc 62 (3) 445 (2007)

[10]      HCJ 3823/22 Netanyahu v. Attorney General, (July 17, 2023)

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

[12]      HCJ 2624/97 Yedid Ronal, Adv. v. Government of Israel, IsrSC 51(3) 71 (1997)

[13]      HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, IsrSC 57(6) 817

[14]      HCJ 3997/14 Movement for Quality Government in Israel v. Minister of Foreign Affairs, (Feb. 12, 2015)

[15]      HCJFH 3660/17 General Association of Merchants and Self-Employed Persons v. Minister of the Interior, (Oct. 26, 2017)

[16]      HCJ 4999/03 Movement for Quality in Government in Israel v. Prime Minister, (May 10, 2006)

[17]      HCJ 3017/12 Terror Victims Association v. Prime Minister, Feb. 4, 2013)

[18]      HCJ 3975/95 Kaniel v. Government of Israel, IsrSC 53(5) 459 (1999)

[19]      6407/06 Doron, Tikotzky, Amir, Mizrahi, Advocates v. Minister of  Finance, (Sept. 23, 2007)

[20]      HCJ 8948/22 Sheinfeld v. Knesset, (Jan. 18, 2023)

[21]      CA 4276/94 Tel Aviv Stock Exchange, Ltd. v. Israeli Association of Publicly Traded Companies, IsrSC 50(5) 728 (1997)

[22]      HCJ 3017/05 Hazera (1939), Ltd. v. National Planning and Building Council, (March 23, 2011)

[23]      HCJ 6271/11 Delek – The Israel Fuel Corporation, Ltd. v. Minister of Finance, (Nov. 26, 2012)

[24]      HCJ 4769/90 Zidan v. Minister of Labor, IsrSC 47(2) 147 (1993)

[25]      HCJ 471/11 Chen Hamakom v. Ministry of Environmental Protection, (April 23, 2012)

[26]      HCJ 8396/06 Wasser v. Minister of Defense, IsrSC 62(2) 1908 (2007)

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

[28]      HCJ 5782/21 Leah Zilber v. Minister of Finance, (Jan. 12, 2022)

[29]      HCJ 6163/92 Yoel Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229 (1993)

[30]      HCJ 3894/93 Movement for Quality in Government v. State of Israel, IsrSC 47(5) 404 (1993)

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

[32]      HCJ 932/99 Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments, IsrSC 53(3) 769 (1999)

[33]      HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon, IsrSC 56(2) 265 (2001)

[34]      HCJ 5403/22 Lavi – Civil Rights, Proper Administration and Encouragement of Settlements v. Prime Minister, (Sept. 22, 2022)

[35]      AAA 812/13 Bautista v. Minister of the Interior, (Jan. 21, 2014)

[36]      AAA 662/11 Yehudit Sela v. Head of the Kfar Vradim Local Council, Sivan Yehieli, (Sept. 9, 2014)

[37]      AAA 5634/09 Jalal v. Jerusalem Municipality, (Aug. 25, 2009)

[38]      HCJ 7150/16 Israel Reform Action Center – The Progressive Movement in Israel v. Minister of Justice, (Sept. 21, 2020)

[39]      HCJ 5555/18 Akram Hasson v. Knesset, (July 8, 2021)

[40]      HCJ 5969/20 Stav Shafir v. Knesset, (May 23, 2021)

[41]      HCJ 10042/16 Quintinsky v. Knesset, (Aug. 6, 2017)

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

[43]      HCJ 5119/23 Anti-Corruption Movement v. Knesset, (Oct. 26, 2023)

[44]      HCJ 98/69 Bergman v. Minister of Finance, IsrSC 23(1) 693 (1969)

[45]      HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35(4) 1 (1981)

[46]      HCJ 141/82 M.K. Rubinstein v. Chairman of the Knesset, IsrSC 37(3) 141 (1983)

[47]      HCJ 4908/10 M.K. Ronnie Bar-On v. Knesset, IsrSC 64(3) 275 (2011)

[48]      HCJ 8260/16 Academic Center for Law and Business v. Knesset, Sept. 6, 2017)

[49]      HCJ 2905/20 Movement for Quality Government in Israel v. Knesset, (July 12, 2021)

[50]      CA 733/95 733/95 Arpal Aluminum, Ltd. v. Klil Industries, Ltd., IsrSC 51(3) 577 (1997)

[51]      HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 (2006)

[52]      HCJ 5744/16 Shachar Ben Meir, Adv. v. Knesset, (May 27, 2018)

[53]      EA 1/88 Neiman v. Chairman of the Central Elections Committee for the 12th Knesset, IsrSC 42(4) 177 (1988)

[54]      11280/02 Central Elections Committee for the 16th Knesset v. M.K. Ahmed Tibi, IsrSC 57(4) 1 (2003)

[55]      HCJ 466/07 M.K. Zahava Gal-On v. Attorney General, IsrSC 65(2) 1 (2012)

[56]      HCJ 971/99 Movement for Quality Government in Israel v. Knesset House Committee, IsrSC 56(6) 117 (2002)

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

[58]      HCJ 1368/94 Shay Porat v. State of Israel, IsrSC 57(5) 913 (1994)

[59]      HCJ 428/86 Y. Barzilai, Adv. v. Government of Israel, IsrSC 40(3) 505 (1986)

[60]      HCJ 2311/11 Sabah v. Knesset, (Sept. 17, 2014)

[61]      HCJ 3803/11 Association of Capital Market Trustees v. State of Israel, (Feb. 5, 2012)

[62]      HCJ 3429/11 Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance, (Jan. 5, 2012)

[63]      HCJ 1308/17 Silwad Municipality v. Knesset, (June 9, 2020)

[64]      HCJ 3166/14 Gutman v. Attorney General, (March 12, 2015)

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

[66]      HCJ 5026/04 Design 22 Shark Deluxe Furniture, Ltd. v. Tzvika Rosenzweig, Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs, IsrSC 60(1) 38 (2005)

[67]      EDA 1806/19 In re: Central Elections Committee for the 21st Knesset: Lieberman et al. v. Cassif et al., (July 18, 2019)

[68]      HCJ 1210/23 Arad v. Minister of Justice, (Feb. 14, 2023)

[69]      HCJ 1210/23 Oron v. Knesset Constitution, Law and Justice Committee, (Feb. 16, 2023)

[70]      HCJ 2144/20 Movement for Quality Government in Israel v. Speaker of the Knesset, (March, 23, 2020)

[72]      HCJ 6654/22 Kohelet Forum v. Prime Minister, (Dec. 13, 2022)

[73]      HCJ 4076/20 Shapira v. Knesset, (July 22, 2020)

[74]      HCJ 294/89 National Insurance Institute v. Appeals Committee under Section 11 of the Victims of Hostile Actions (Pensions) Law, 5730-1970, IsrSC 45(5) 445 (1991)

[75]      HCJ 4562/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793 (1996)

[76]      HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 59(4) 241 (2004)

[77]      HCJ 781/15 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements under the Embryo Carrying Agreements (Agreement Approval & Status of the Newborn Child) Law, 5756-1996, (Feb. 27, 2020)

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

[79]      CA 8569/06 Director of Land Taxation, Haifa Office v. Polity, IsrSC 62(4) 289 (2008)

[80]      CFH 5783/14 Tzemach v. El Al Israel Airlines, Ltd., (Sept. 12, 2017)

[81]      HCJ 212/03 Herut – The National Jewish Movement v. Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset, IsrSC 57(1) 750 (2003)

[82]      HCJ 403/71 Alkourdi v. National Labour Court, IsrSC 66 (1972)

[83]      HCJ 1260/19 Kramer v. Ombudsman of Public Complaints against State Representatives in the Courts, (May 14, 2020)

[84]      HCJ 243/62 Israel Film Studios, Ltd. v. Levi Geri, Chairman of the Film and Theater Review Board, 16 IsrSC 2407 (1962)

[85]      HCJ 910/86 Major (Res.) Yehuda Ressler, Adv. v. Minister of Defense, IsrSC 42(2) 441 (1988)

[86]      HCJ 581/87 Zucker v. Minister of the Interior, IsrSC 42(4) 529 (1989)

[87]      HCJ 320/96 Garman v. Herzliya City Council, 52(2) 222 (1998)

[88]      HCJ 5331/13 Tayib v. Attorney General, (Fb. 25, 2014)

[89]      CA 108/59 Pritzker v. “Niv” Agricultural Association, Ltd. (in liquidation), IsrSC 14 1545 (1960)

[90]      HCJFH 5026/16 Gini v. Chief Rabbinate of Israel, (Sept. 12, 2017)

[91]      HCJ 3267/97 Amnon Rubinstein v. Minister of Defense, IsrSC 52(5) 481

[92]      HCJ 5113/12 Friedman v. Knesset, (Aug. 7, 2012)

[93]      HCJ 7146/12 Adam v. Knesset, IsrSC 61(1) 717 (2013)

[94]      HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government, (Sept. 22, 2014)

[95]      HCJ 5469/20 National Responsibility - Israel My Home v. Government of Israel, (Apr. 4, 2021)

[96]      HCJ 76/63 Trudler v. Election Officers for the Agricultural Committees, IsrSC 17, 2503 (1963)

[97]      HCJ 68/07 Robinson v. State of Israel, (Aug. 9, 2007)

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

[99]      HCJ 1163/98 Sadot v. Prisons Service, IsrSC 58(4) 817 (2001)

[100]    HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister of Israel, IsrSC 61(1) 1 (2006)

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

[102]    HCJ 306/81 Shmuel Flatto Sharon v. Knesset House Committee, IsrSC 35(4) 118 (1981)

[103]    LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697

[104]    HCJFH 219/09 Minister of Justice v. Zohar, IsrSC 64(2) 421 (2010)

[105]    HCJ 6069/00 Association for Perpetuating the Memory of the Victims of the Helicopter Disaster in She’ar Yishuv v. Minister of Defense, IsrSC 55(4) 75 (2001)

[106]    HCJ 3840/13 Anonymous v. Minister of the Interior, (Nov. 30, 2015)

[107]    HCJ 176/90 Machnes v. Minister of Labor and Welfare, IsrSC 47(5) 711 (1993)

[108]    HCJ 1829/93 Nazareth Transportation and Tourism Co. v. Minister of Finance, IsrSC 48 (4) 42 (1994)

[109]    HCJ 5946/03 Keshet Prima Animal Feed Supplements v. Supervisor of Prices – Ministry of Industry and Welfare, (Feb. 25, 2007)

[110]    HCJ 8076/21 Selection Committee for the 1981 Israel Prize Computer Science Research v. Minister of Education, (March 29, 2022)

[111]    HCJ 8134/11 Moshe Asher, Adv. and Acct. v. Minister of Finance, Dr. Yuval Steinitz, (Jan. 29, 2012)

[112]    HCJ 5290/97 Ezra – National Hareidi Youth Movement v. Minister of Religious Affairs, 51(5) 410 (1997)

[113]    HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, (June 15, 2011)

[114]    HCJ 794/17 Ziada v. Commander of the IDF Forces in the West Bank, (Oct. 31, 2017)

[115]    HCJ 11437/05 Kav LaOved v. Minister of the Interior, IsrSC 64(3) 122 (2011)

[116]    HCJ 4988/19 Rosenzweig Moissa v. Public Utilities Electricity Authority, (Jan. 20, 2022)

[117]    HCJ 4500/07 Yachimovich v. Council of the Second Authority for Radio and Television, (Nov. 21, 2007)

[118]    HCJ 8756/07 “Mavoi Satum” Association v. Committee for the Appointment of Rabbinical Court Judges, (June 3, 2008)

[119]    AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, IsrSC 64(2) 1 (2010)

[120]    HCJ 986/05 Peled v. Tel-Aviv Yafo Municipality, (April 13, 2005)

[121]    AAA 1930/22 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, (Oct. 11, 2023)

[122]    LCrimA 1611/16 State of Israel v. Vardi, (Oct. 31, 2018)

[123]    HCJ 376/81 Lugasi v. Minister of Communications, IsrSC 36(2) 449 (1981)

[124]    HCJ 287/69 Meiron v. Minister of Labor, IsrSC 24(1) 337 (1970)

[125]    HCJ 5657/09 Movement for Quality Government v. Prime Minister, (Nov. 24, 2009)

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

[127]    AAA 867/11Tel-Aviv Yaffo Municipality v. A.B.C. Management and Maintenance, Ltd., (Dec. 28, 2014)

[128]    HCJ 8160/96 Abu Krinat v. Minister of the Interior, IsrSC 52(2) 132 (1998)

[129]    HCJ 7542/05 Portman v. Shitreet, (Feb. 11, 2007)

[130]    HCJ 1284/99 A v. Chief of General Staff, IsrSC 53(2) 62 (1999)

[131]    HCJ 3132/15 Yesh Atid Party led by Yair Lapid v. Prime Minister of Israel, Aug. 23, 2015)

[132]    HCJ 268/13 Chai v. Exceptions Committee for Appointments to Senior Positions in the Prime Minister’s Office, (March 20, 2013)

[133]    HCJ 1004/15 Movement for Governability and Democracy v. Minister of the Interior, (April 1, 2015)

[134]    HCJ 3884/16 A. v. Minister of Internal Security, (Nov. 20, 2017)

[135]    HCJ 8815/05 Landstein v. Spiegler, (Dec. 26, 2005)

[136]    HCJ 5167/00 Professor Hillel Weiss, Adv. v. Prime Minister of Israel, IsrSC 55(2) 455 (2001)

[137]    HCJ 7510/19 Yossi Or-Cohen, Adv. v. Prime Minister, (Jan. 9, 2020)

[138]    HCJ 9202/08 M.K. Limor Livnat v. Prime Minister, (Dec. 4, 2008)

[139]    HCJ 9577/02 Mafdal – The Mizrahi National Religious Party v. Speaker of the Knesset, IsrSC 57(1) 710 (2002)

[140]    HCJ 4065/09 Yosef Pinhas Cohen, Adv. v. Minister of the Interior, (July 20, 2010)

[141]    142/89 Laor Movement v. Speaker of the Knesset, IsrSC 44(3) 529 (1990)

[142]    HCJ 2060/91 Cohen v. Shilansky, IsrSC 46(4) 319 (1992)

[143]    HCJ 4128/02 Adam Teva V’Din – Israeli Association for Environmental Protection v. Prime Minister, IsrSC 58(3) 503 (2004)

[144]    HCJ 9409/05 Adam Teva V’Din – Israeli Association for Environmental Protection v. National Planning and Building Committee for National Infrastructure, IsrSC 64(2) 316 (2010)

[145]    HCJ 1756/10 Holon Municipality v. Minister of the Interior, Jan. 2, 2013)

[146]    HCJ 3758/17 Histadrut v. Courts Administration, (July 20, 2017)

[147]    HCJ 4838/17 Unipharm, Ltd. v. Director General of the Natural Gas Authority, (Jan. 4, 2018)

[148]    HCJ 4374/15 Movement for Quality Government in Israel v. Prime Minister, (March 27, 2016)

[149]    HCJ 6637/16 Levenstein Levi v. State of Israel, (April 18, 2017)

[150]    HCJ 217/80 Ze’ev Segal v. Minister of the Interior, IsrSC 34(4) 429 (1980)

[151]    HCJ 2605/05 Academic Center of Law and Business, Human Rights Division v. Minister of Finance, IsrSC 63(2) 545 (2009)

[152]    HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51(4) 367 (1997)

[153]    HCJ 2208/02 Salameh v. Minister of the Interior, IsrSC 56(5) 950 (20020

[154]    HCJ 3234/15 Yesh Atid Party led by Yair Lapid v. Speaker of the Knesset, (July 9, 2105)

[155]    HCJ 706/19 Deputy Speaker of the Knesset Esawi Frej v. Speaker of the Knesset, (March 28, 2019)

[156]    HCJ 4676/94 Mitral, Ltd. v. Knesset of Israel, IsrSC 50(5) 15 (1996)

 

English cases cited:

[157]    Associated Provincial Picture Houses Ltd. v. Wednesbury Corp. [1948] 1 KB 223 (CA)

[158]    Kennedy v The Charity Commission [2014] UKSC 20

[159]    Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 (HL)

[160]    R v Upper Tribunal (Immigration and Asylum Chamber) [2023] EWHC 791

Indian cases cited:

[161]    Minerva Mills v. Union of India, AIR 1980 S.C. 1789 (1980)

[162]    Supreme Court Advocates-on-Record Ass'n v. Union of India, (2016) 4 SCC 1

Australian cases cited:

[163]    Minister for Immigration & Citizenship v Li (2013) 249 CLR 332

Canadian cases cited:

[164]    Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653

 

 

Judgment

(January 1, 2024)

 

President (emer.) E. Hayut:

1.         Since the founding of the state, the courts have been conducting judicial review over all the bodies of the executive branch without exception, in accordance with the administrative causes for review developed in the case law over the years. A dramatic event occurred in Israeli law on July 24, 2023. On that day, in a second and third reading, the Knesset plenum approved Basic Law: The Judiciary (Amendment no. 3) (hereinafter, respectively: the Basic Law and the Amendment), according to which, sec. 15(d1) was added as follows:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not address the reasonableness of a decision by the Government, the Prime Minister or a Government Minister, and will not issue an order in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

            In other words, the amendment establishes that the courts – including the Supreme Court sitting as High Court of Justice – no longer hold jurisdiction to conduct judicial review of the reasonableness of decisions made by the Government, the Prime Minister, and the ministers.

2.         Shortly after the adoption of the Amendment, the eight petitions before us were filed. The primary relief requested is that we order that the Amendment is void. This, it is argued, in view of its severe harm to the core characteristics of the State of Israel as a democratic state, due to the abuse of the Knesset’s constituent authority, and due to defects in the legislative process. The Attorney General supports the position of the Petitioners and is also of the opinion that the Amendment should be declared void, while the other Respondents argue that the petitions should be dismissed. Given the importance of the issues raised in these petitions, we held an unprecedented en banc hearing by all fifteen justices of the Supreme Court.

            At the outset, prior to addressing the various issued raised by the petitions, I have decided to provide a brief survey of the development of the reasonableness standard in Israeli law, and to present the course of events that led up to the enactment of the Amendment that is the subject of the petitions.

 

Background

  1. The Reasonableness Standard in Israeli law

3.         The reasonableness standard has been one of the grounds for administrative review since the earliest days of Israeli law. The source of this standard is to be found in English administrative law, where it was originally employed primarily for examining the lawfulness of bylaws (Daphne Barak-Erez, Administrative Law, vol. II, 723 (2010) [Hebrew] (hereinafter; Barak-Erez, Administrative Law)). The English case generally referred to as the central one in this regard is Associated Provincial Picture Houses, Ltd. v. Wednesbury Corp. [157] (hereinafter: Wednesbury), which held that when an authority makes a decision that is so unreasonable that no reasonable authority could ever have come to it, the court will intervene. As was explained, this concerns decisions that cannot be seen as falling within the powers granted to the authority. Examples of such decisions were given in the judgment in regard to situations as, for example, a person being dismissed because of the color of her hair or where the authority considers extraneous matters in making its decision. In other words, in its original English version, the reasonableness standard was intended to contend with decisions that were illogical or arbitrary, or that comprised other serious flaws in the exercise of discretion, such as irrelevant considerations (see: Barak-Erez, Administrative Law, 723; Margit Cohn, “Unreasonableness in Administrative Law: Comparative Aspects and Some Normative Comments,” in Theodore Or Book 773, 778-782 (Aharon Barak & Ron Sokol, eds., 2013) [Hebrew] (hereinafter: Cohn, “Comparative Aspects”)).

4.         In the beginning, the reasonableness standard was applied in our legal system in a manner similar to that of traditional English law (I. Zamir, Administrative Power, vol. V, 3550-3551 (2020) [Hebrew] (hereinafter: Zamir, Administrative Power)). Thus, when the Court was asked to void a municipal bylaw for retroactivity, it was held that it should be done in accordance with the criterion that examines whether the retrospective provision “is illogical or unacceptable” to the point that it can be said that the legislature never empowered the authority to make it (HCJ 21/51 Binenbaum v. Tel Aviv Municipality [1] 385-386 (hereinafter: Binenbaum); and also see: HCJ 129/57 Manshi v. Minister of Interior [2] 215). Over the years, it was held that this standard also applies to the decisions of government ministers and to the Government as a whole (CA 311/57 Attorney General v. Dizengoff [3] 1031 (hereinafter: Dizengoff); HCJ 332/62 Schpanier v. Minister of the Finance [4]; CA 492/73 Speiser v. Sports Betting Board [5] 26).

5.         At that stage, the reasonableness standard was viewed as a cause that was strongly tied to that of deviation from authority, much as it had been in its English sources. Thus, in Dizengoff, it was noted that it is difficult to distinguish substantially between the test of reasonableness and other tests for examining an administrative act, such as lack of good faith, improper considerations, extraneous objectives. It was further noted that, in practice, all of these tests are nothing more than specific instances of abuse of power (ibid., 1038).

6.         The foundation for establishing reasonableness as an independent ground for review distinct from the other causes for review of administrative discretion was first laid in HCJ 156/75 Dakka v. Minister of Transportation [6]) (hereinafter: Dakka)). In that case, Justice M. Shamgar was willing, in principle, to recognize the unreasonableness of an administrative decision, even where it was not tainted by other administrative flaws, in cases in which a proper balance was not stuck among the necessary considerations in the matter, stating:

[…] unreasonableness can also appear alone: for example, there may be circumstances in which the ministerial authority did not weigh any consideration extraneous to the matter, and where only materially relevant considerations were assessed, but the relevant considerations were granted relative weight in such distorted proportions that the final conclusion was so entirely baseless as to be absolutely unreasonable (ibid., 105).

7.         This broader approach was adopted by this Court in HCJ 389/80 Dapei Zahav v. Broadcasting Authority [7] (hereinafter: Dapei Zahav)). In that case, Justice A. Barak set out four guiding principles in relation to the reasonableness standard, which in his opinion, reflected both the lege lata and the lege ferenda. First, he explained that the reasonableness standard “[…] stands on its own, and it can serve to invalidate unreasonable administrative discretion even if it is not the result of an arbitrary decision, and even if the decision was made in good faith while considering all of the relevant factors and only those factors” (ibid., 439). Second, relying, inter alia, upon Dakka, Justice Barak held that an administrative decision can be deemed unreasonable it did not grant appropriate weight to various interest that the authority had to consider in making the decision (ibid., 445-446). In that regard, Justice Barak pointed to several early judgments in which, although they did not use the word “reasonableness”, the Court intervened in an administrative decision when it found that the balance struck by the administrative authority among the various considerations was unreasonable (e.g., HCJ 73/53 Kol Ha’am v. Minister of the Interior [8] 892 (hereinafter: Kol Ha’am)). Third, he explained that unreasonableness had to be examined in accordance with objective criteria (“the reasonable public servant”), and that the reasonableness principle establishes a range of reasonable possibilities within which the Court will not intervene in a decision of an administrative authority and will not substitute its discretion for that of the authority (Dapei Zahav, 439-443). Fourth, it was noted that for the purpose of judicial intervention in an administrative decision, it is necessary to find material or extreme unreasonableness that goes to the very root of the matter (ibid., 444).

            Justice M. Ben-Porat concurred in the opinion of Justice Barak according to which reasonableness could serve as the sole justification for judicial intervention. President M. Landau was of the opinion that there was no need to broaden the reasonableness standard such that the balance among the various considerations in the administrative decision would also be examined. However, President Landau explained that, in practice, the difference between his position and that of Justice Barak was not significant, and that it was largely “a matter of terminology” (ibid., 432).

8.         Since Dapei Zahav, and for over four decades, it has been settled law that reasonableness is a distinct, independent ground, along with the other distinct grounds for examining administrative discretion (such as extraneous considerations, proportionality and discrimination), and that it “no longer signifies only arbitrariness or an absolute lack of sense in the decision” but rather “examines the internal balance struck by the authority among the considerations” (Barak-Erez, Administrative Law, 724-725). In this framework, the court examines whether the administrative authority weighed all of the materially relevant considerations, and whether it assigned the appropriate relative weight to each of the relevant considerations (see, among many: HCJ 5853/07 Emunah v. Prime Minister [9] 486-487 (hereinafter: Emunah); HCJ 3823/22 Netanyahu v. Attorney General [10] para. 4, per Justice Barak-Erez (hereinafter: Netanyahu); HCJ 935/89 Ganor v. Attorney General [11] 514-516 (hereinafter: Ganor)).

            This is the reasonableness rule that applied – until the Amendment that is the subject of these petitions – to all administrative authorities, including the Government and its ministers (see: HCJ 2624/97 Ronal v. Government [12] 77; HCJ 1993/03 Movement for Quality Government v. Prime Minister [13] 840 (hereinafter: Hanegbi 2003)).

9.         Over the years, there has been criticism of this form of reasonableness in both the case law and the literature. The main argument made in this regard is that the standard, in its format since Dapei Zahav, creates uncertainty as to the method of its application and that, in practice, it leads to the court substituting its discretion for that of the authority (see, in this regard, the opinion of Justice A. Grunis in Emunah, 521-514 and HCJ 3997/14 Movement for Quality Government v. Minister of Foreign Affairs [14] para. 29 of his opinion (hereinafter: Hanegbi 2014); and see the opinion of Justice N. Sohlberg in HCJFH 3660/17 General Association of Merchants v. Minister of the Interior [15] paras. 35-36 (hereinafter: Merchants Association) and his article “On Subjective Values and Objective Judges,” 18 Hashiloach 37 (2020) [Hebrew] (hereinafter: Sohlberg, “On Objective Values”) and “The Deri-Pinhasi Rule from the Reasonableness Perspective,” The Israel Law & Liberty Forum Blog (Jan. 16, 2022) [Hebrew]; and see: Yoav Dotan, “Two Concepts of Deference and Reasonableness,” 51 Mishpatim 673, 701-703 (2022) [Hebrew]).

            Nevertheless, even the standard’s critics did not recommend that it be abolished entirely and were of the opinion that the solution to the problems it presents lies in narrowing its scope. Thus, it was suggested, inter alia, that recourse to reasonableness be made only in extreme cases and as a last resort (see the opinion of Justice Grunis in Emunah, 524). Another suggestion was that the scope of incidence of “substantive” reasonableness be narrowed, and that it should be applied only to the decisions of the professional echelon, as opposed to decisions of the of the elected echelon that generally reflect a value-based worldview (Sohlberg, “On Objective Values”).

10.       In any case, over the long years in which the reasonableness standard was developed in the case law, this Court created “a comprehensive corpus of rules and criteria for its application that significantly limited the uncertainty of the rule in its initial abstract form” (Hanegbi 2014, para. 4 of my opinion). Thus, insofar as the identity of the decision maker, it was held that the more senior the authority, the greater the margin of discretion it is granted (HCJ 4999/03 Movement for Quality in Government v. Prime Minister [16] para. 18 of my opinion (hereinafter: HCJ 4999/03)). In particular, it was held that the Court must show greater restraint in all that concerns intervention in a Government decision, in view of “the status of the government as the head of the executive branch that is entrusted with establishing and implementing policy” (HCJ 3017/12 Terror Victims Association v. Prime Minister [17] para. 10).

            In regard to the characteristics of administrative authority, it was held that judicial intervention should be limited in regard to decisions that reflect broad policy (see, e.g., HCJ 3975/95 Kaniel v. Government [18] 497; HCJ 6407/06 Doron v. Minister of Finance [19] para. 66, per Justice E. Arbel); in regard to an exercise of authority that involves weighing political considerations (see, e.g., HCJ 8948/22 Scheinfeld v. Knesset [20], para. 52 of my opinion (hereinafter: Scheinfeld)); where the decisions reflect the expertise and professionalism of the authorized bodies (see, e.g., CA 4276/94 Tel Aviv Stock Exchange, Ltd. v. Israeli Association of Publicly Traded Companies [21] 739; HCJ 3017/05 Hazera (1939), Ltd. v. National Planning and Building Council [22] para. 38, per Justice A. Procaccia; HCJ 6271/11 Delek v. Minister of Finance [23] para. 11)). In addition, it has long been held that the Court must act with particular caution in examining the reasonableness of regulations, particularly in the case of regulations approved by one of the Knesset’s committees (see, e.g., HCJ 4769/90 Zidan v. Minister of Labor [24] 172; HCJ 471/11 Chen Hamakom v. Ministry of Environmental Protection [25] para 31).

11.       In accordance with these principles, the reasonableness standard has been employed by the Court in intervening in administrative decisions in which the balance struck among the various considerations reflected extreme unreasonableness. This, inter alia, in regard to certain policy decisions (see: HCJ 8396/06 Wasser v. Minister of Defense [26] (hereinafter: Wasser); HCJ 244/00 New Dialogue v. Minister of National Infrastructures [27]; HCJ 5782/21 Zilber v. Minister of Finance [28] (hereinafter: Zilber]); in regard to appointments in the public service (see: HCJ 6163/92 Eisenberg v. Minister of Building and Housing [29] (hereinafter: Eisenberg); HCJ 3894/93 Movement for Quality in Government v. State of Israel [30] (hereinafter: Deri); HCJ 4267/93 Amitai, Citizens for Good Administration and Integrity v. Prime Minister [31] (hereinafter: Pinhasi); HCJ 932/99 Movement for Quality Government v. Chairman of the Committee for the Examination of Appointments [32]; HCJ 4668/01 Sarid v. Prime Minister [33] (hereinafter: Sarid); Scheinfeld); in regard to decisions by an interim government (see, e.g.: HCJ 5403/22 Lavi v. Prime Minister [34] (hereinafter: Lavi)); in regard to specific decisions that infringed individual rights and interests (see, e.g.: AAA 812/13 Bautista v. Minister of the Interior [35] (hereinafter: Bautista); AAA 662/11 Sela v. Yehieli [36] (hereinafter: Sela); AAA 5634/09 Jalal v. Jerusalem Municipality [37]) and in regard to decisions concerning filing criminal or disciplinary charges (see, e.g.: Ganor; HCJ 7150/16 IRAC v. Minister of Justice [38]).

B. The Legislative Process of the Amendment

12.       On January 1, 2023, six days after the swearing in of the 37th Government, Minister of Justice Yariv Levin gave a speech in which he presented what he referred to as “the first stage of the reform of governance”. That plan comprised a number of elements: changing the composition of the Judicial Selection Committee, limiting judicial review of Knesset legislation, changing certain aspects of the work of the government legal advisors, and abolishing the reasonableness standard.

            About a week thereafter, the Minister of Justice sent the Attorney General a draft memorandum regarding  Basic Law: The Judiciary (Amendment – Reform in the Law) (hereinafter: the Draft Memorandum), which comprised recommendations for legislative changes in regard to the subjects he presented in his speech, among them the recommendation that the Court not void decisions by “the Government, its ministers, an agency under their responsibility, or anyone acting on their behalf” on the basis of their degree of reasonableness. In an opinion presented by the Attorney General’s on February 2, 2023, she explained that each of the recommended arrangements in the Draft Memorandum “raises material problems that strike at the heart of the principle of the separation of powers, the independence of the judiciary, protection of individual rights, the rule of law, and the ensuring of good governance”. In regard to abolishing the reasonableness standard, the Attorney General noted that this change might lead to significant harm to a citizen’s ability to “present the actions of an authority for independent, objective review and obtain relief from the court”.

13.       In the end, the Draft Memorandum did not advance, and no government bills were submitted on the subjects it comprised. However, in parallel to the Draft Memorandum, on January 11, 2023, the Knesset Constitution, Law, and Justice Committee (hereinafter: the Committee or the Constitution Committee) began a series of meetings to discuss the various recommendations for changes in the field of law under the rubric “Zion shall be redeemed with judgment – Restoring justice to the legal system” (hereinafter: the plan for changes in the legal system). In the session, the Chair of the Committee, Member of Knesset Simcha Rothman, (hereinafter: MK Rothman) noted that the amendments that would be addressed by the Committee would include government bills, private member’s bills, and bills by the Committee under sec. 80(a) of the Knesset Rules of Procedure, which states:

The House Committee, the Constitution, Law and Justice Committee, and the State Control Committee are entitled to initiate bills in the spheres of their competence as elaborated in these Rules of Procedure, on the following topics, and prepare them for the first reading: Basic Laws, matters that are required due to an amendment of a Basic Law, and are proposed side by side with it, the Knesset, Members of the Knesset, the elections to the Knesset, political parties, party financing, and the State Comptroller.

            MK Rothman explained that the first subject that would be brought up for debate concerned the government legal advice system, and that the Committee would be advancing a Basic Law bill in this regard.

14.       On January 16, 2023, the members of the Committee were presented with a Preparatory Document by the Committee’s legal advisors that explained that the legislative path of submitting a bill by the Committee was a relatively rare procedure and “in the overwhelming majority of cases, it was reserved by the Constitution Committee for subjects that were not controversial or to subjects with a strong connection to the Knesset and its activities” (also see: the statement of the Knesset Legal Advisor, Advocate Sagit Afik (hereinafter: Advocate Afik) in the Transcript of meeting no. 7 of the Constitution Committee of the 25th Knesset, 31 (Jan. 16, 2023) (hereinafter: Transcript of Meeting 7)). In her opinion of January 25, 2023, Advocate Afik explained that most of the elements in the plan for changing the legal system could advance as a Basic Law bill on behalf of the Committee, but that the Committee had to hold “a significant debate on all the issues and their ramifications”. However, in the matter of the legislation concerning the government legal advisors, Advocate Afik decided that the matter was one that should be arranged in regular legislation rather than in a Basic Law, and that it should not proceed as the Committee’s bill in view of the fact that it was a matter that clearly concerned the conduct of the Government. After that, the Committee ended its discussion of the bill in regard to the government legal advisors.

15.       In the meantime, on January 17, 2023, MK Rothman submitted the Basic Law: The Judiciary (Amendment – Strengthening the Separation of Powers) Bill (hereinafter: Basic Law Bill – Strengthening the Separation of Powers). The bill comprised provisions in regard to changing the composition of the Judicial Selection Committee and for restricting judicial review over Basic Laws and statutes. Section 2 of the bill concerned the reasonableness standard. It recommended adding the following provision to the Basic Law:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not hear and shall not issue an order against the Government, the Prime Minister, a government minister, or any other elected official as shall be established by law, in regard to the reasonableness of their decision.

16.       In the Committee’s meeting on January 22, 2023, MK Rothman presented the bill and noted that, as opposed to the draft published by the Minister of Justice, his bill in regard to the reasonableness standard focused only upon judicial review of the decisions of elected officials, which creates a “democratic problem” that, according to him, was also noted in Justice Sohlberg’s articles (Transcript of meeting no. 13 of the Constitution Committee of the 25th Knesset, 7 (Jan. 22, 2023)). Pursuant to that, the Committee held a number of additional meetings, which were followed by a vote on Basic Law Bill – Strengthening the Separation of Powers only in regard to the elements of the bill concerning changing the composition of Judicial Selection Committee and limiting judicial review of Basic Laws and statutes. These elements were approved in a first reading by the Knesset plenum on February 20, 2023, and March 13, 2023. On March 27, 2023, the Constitution Committee also approved the bill for changing the composition of the Judicial Selection Committee in a manner that would ensure the representatives of the Government and the coalition a majority on the committee. However, against the background of broad public protests against the plan to change the legal system, the Prime Minister announced that same day that advancing the bill would be delayed for the purpose of conducting negotiations with the representatives of the opposition.

17.       When a number of months passed without achieving agreements between the coalition and the opposition, the legislative proceedings for changing the legal system were renewed on June, 20, 2023, and at that stage, MK Rothman submitted the amendment that is the subject of the petitions to the Committee under the title “Basic Law: The Judiciary (Amendment – The Reasonableness Standard) Bill” (hereinafter: the Amendment Bill). The new bill was advanced as a Committee bill and its wording was identical to the paragraph regarding reasonableness in Basic Law Bill – Strengthening the Separation of Powers.

18.       On June 23, 2023, in advance of the debate on the Amendment Bill, the Attorney General issued a preparatory document (hereinafter: the Preparatory Document of June 23, 2023). That document noted that the Amendment utterly abolished the reasonableness standard in regard to the elected echelon, including reasonableness in the sense of “irrationality” that existed prior to Dapei Zahav. In this regard, the Preparatory Document surveyed various problematic aspects of the bill, including the fear of creating “black hole” in areas in which judicial review rests primarily upon reasonableness. The document further noted that the appropriateness of the comprehensive distinction between the elected and professional echelons should be examined, bearing in mind that many of the decisions at the elected echelon are specific decision relating to matters of the individual. It was suggested that an alternative model be considered in which reasonableness would be abolished only in regard to certain types of decisions.

19.       Beginning on June 25, 2023, and over the next ten days, the Committee held five debates on the Amendment Bill and its preparation for a first reading. In the course of the debates, MK Rothman rejected suggestions for narrowing the scope of the reasonableness standard instead of abolishing it entirely in regard to the elected echelon, for example, by permitting a limited standard of extreme unreasonableness. MK Rothman explained that “[…] there is a structural problem, and the structural problem is like this: […] there is no way of drawing a line between extreme unreasonableness and non-extreme unreasonableness. There is no way to do it” (Transcript of meeting no. 105 of the Constitution Committee of the 25th Knesset, 7 (June 25, 2023) (hereinafter: Transcript of meeting 105)). MK Rothman further explained that the Amendment Bill does not nullify the possibility of judicial review on the basis of other causes like deviation from authority, infringement of rights, and extraneous considerations.

            The Committee’s legal advisor, Advocate Gur Blay (hereinafter: Advocate Blay), noted that the Amendment Bill is an exceptional bill that does not ground the principles of administrative law but only abolishes judicial review on the basis of the reasonableness standard in all that relates to the elected echelon. Advocate Blay emphasized that there are cases in which there are no extraneous consideration or infringed rights and where, in practice, the reasonableness standard is the only response to harm to a citizen, without which a “vacuum of judicial oversight” may result (ibid., 115). In this regard, Advocate Blay referred to the many individual decisions that may affect particular individual interests, among them, obtaining a permit, concession or license from the Government. Advocate Blay further noted that even among the critics of the reasonableness standard, the prevailing view is that it should be narrowed rather than abolished, and that this narrowing should be the product of the case law and not legislation, while leaving the courts a degree of flexibility.

            The Deputy Attorney General (Public Administrative Law), Advocate Gil Limon (hereinafter: Advocate Limon), conveyed the Attorney General’s objection to the bill. Advocate Limon noted that the government’s duty to act reasonably is an important guarantee for the realization of the state’s democratic values and that the bill effectively exempts the elected echelon from this duty and thereby seriously harms the basic values of Israeli democracy. Advocate Limon further noted that the bill would lead to “the creation of a normative black hole” and emphasized the inherent problem in “absolutely blocking judicial review of unreasonable decisions based exclusively upon the identity of the decision maker in regard to the most important decisions made at the highest level of governmental” (Transcript of meeting no. 108 of the Constitution Committee of the 25th Knesset, 10 (June 26, 2023) (hereinafter: Transcript of meeting 108)). Advocate Limon went on to survey the broad consequences of the Amendment Bill, particularly in all that concerned ethical behavior in regard to appointments to public offices, Government actions leading up to elections, and situations in which elected officials intentionally refrain from exercising their authority.

20.       In the course of preparing the Amendment Bill for a first reading, the Committee heard the opinions of experts from academia and other representatives of civil society. Thus, for example, Professor Yoav Dotan emphasized that despite his criticism of the reasonableness standard, the Amendment Bill is very sweeping “in the sense of throwing out the baby with the bathwater” (Transcript of meeting no. 114 of the Constitution Committee of the 25th Knesset, 42 (July 4, 2023)). Professor Dotan explained that “[…] the distinction between decisions that are of a political character and those that are not such cannot be based exclusively on the level at which the decision is made […] it is necessary first to distinguish between general policy decisions and individual decisions” (ibid.).

21.       To complete the picture, it should be noted that in the course of the meetings, Knesset members from the opposition argued that it was not possible to advance the bill under the procedure for submitting a bill on behalf of a committee and that it did not represent a bill that the committee had “initiated and prepared”, as required under sec. 80 of the Knesset Rules of Procedure. On July 2, 2023, Advocate Afik responded to a request by MK Gilad Kariv of the Labor faction (hereinafter: MK Kariv) on this subject and noted that she did not see any reason for intervening in the legislative process, and that there was no requirement that the Committee hold a preliminary debate on the question of Amendment Bill as a committee bill.

22.       In the end, on July 4, 2023, the Amendment Bill was approved for a first reading as a Basic Law bill on behalf of the Committee by a majority of nine in favor and four opposed. In the explanatory notes presented to the plenum, it was noted, on the basis of a quote from Dapei Zahav, that the reasonableness standard currently makes it possible to annul decisions that do not give “appropriate weight to the various interests that the administrative authority is required to consider in its decision” (Basic Law: The Judiciary (Amendment no. 5) (The Reasonableness Standard) Bill, Knesset Bills 5783 110). Inter alia, it was further argued in regard to the use of the reasonableness standard in that sense, particularly in relation to the elected echelon of government, that establishing the balance of values among various considerations “must be given to the public’s elected representatives and not to the court” (ibid.). The explanatory notes further clarified that the proposed amendment does not prevent the court from conducting judicial review on the basis of other administrative standards, among them that of proportionality.

            On July 10, 2023, the bill was approved by the plenum in a first reading by a majority of 64 in favor and 56 opposed.

23.       The preparatory stage for a second and third reading began on the following day, and four debates on the bill were held over the next nine days, as well as three debates on objections that had been filed in that regard. In the course of the Committee’s debates during this stage of preparation of the Amendment Bill for a second and third reading, the opinions of several legal experts and professionals were heard. During the meeting on July 11, 2023, the legal advisor of the Ministry of Finance, Advocate Assi Messing, warned of the consequences of the bill and referred, inter alia, to its significance in regard to the appointment and dismissal of senior gatekeepers and to the fact that the bill would allow the Minister of Finance to intervene in professional decisions, contrary to the existing procedures in the Ministry of Finance.

24.       On July 12, 2023, the Committee addressed various possibilities for “softening” the application of the bill. Advocate Blay emphasized that the proposed framework was far more sweeping than other frameworks presented by those who had appeared before the Committee, in that it did not distinguish between different types of decisions by the elected echelon and did not allow for the possibility of intervening in “irrational” decisions. Advocate Blay pointed in particular to three subjects in which “more delicate and carful models” should be considered: intervention in the decisions of an interim government, appointments, and infringements of individual interests that do not infringe rights (Transcript of meeting no. 121 of the Constitution Committee of the 25th Knesset, 11-13 (July 12, 2023) (hereinafter: Transcript of meeting 121)). In that meeting, Advocate Limon emphasized that the Amendment Bill is “the most extreme bill possible for addressing the reasonableness standard” and noted that although the scope of cases in which the Court intervened in governmental decisions on the basis of reasonableness was not large, the standard had a very significant effect on the development and formulation stages of the decisions of government ministers (ibid., 34 and 39). Advocate Limon further noted the most serious and significant harm deriving from the Amendment Bill was to the gatekeepers in all that related to their appointment and the possibility of their dismissal for political reasons.

            That same day, a new draft of the amendment was distributed to the members of the Committee, which was the draft ultimately adopted. The draft included the removal of the wording in regard to the application of the section to “any elected official as shall be established by law” and the addition of a clarification of the scope of its application to the end of the original bill:

Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court, shall not address the reasonableness of a decision by the Government, the Prime Minister or another minister, or of any other elected official as shall be established by law, and will not issue an order against any of them in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

25.       On July 13, 2023, the Committee held a third debate on the Amendment Bill in preparation for a second and third reading. In the course of that debate, the representative of the Attorney General, Advocate Avital Sternberg, argued that the changes introduced to the amendment constituted its “aggravation”. This was the case because the amended bill granted immunity to judicial review only to those holding the greatest governmental power, and according to it, the amendment also applies to individual decision and not just to fundamental policy decisions.

            In the course of the debate, MK Rothman noted that there was no need for grounding the duty of ministers to act reasonably in the Basic Law, and there was no need for a distinction between individual decisions and policy decisions  or between unreasonableness and extreme unreasonableness inasmuch as such distinctions “don’t work in the real world” (Transcript of meeting no. 125 of the Constitution Committee of the 25th Knesset, 15 (July 13, 2023) (hereinafter: Transcript of meeting 125)). As for the application of the Amendment Bill to decisions by a civil servant to whom the minister’s authority had been delegated, MK Rothman and Advocate Blay agreed that the identity of who actually made the decision should be examined, and if the person who made it was not the minister, the amendment would not apply. Advocate Blay noted, however, that this would not suffice to neutralize the incentive for the minister to make the decision in order to render it immune to judicial review. MK Kariv noted that the Amendment Bill was extreme in three ways: it did not apply exclusively to the government acting as a whole, but also to all decisions by ministers; it did not distinguish between policy decisions and individual decisions; and it did not suffice by returning the reasonableness standard to its former scope prior to the Dapei Zahav decision but entirely abolishes it.

            At the end of the meeting held on July 16, 2023, MK Rothman announced that objections to the Amendment Bill could be submitted until the following morning.

26.       At the Committee’s meeting on July 17, 2023, Advocate Afik noted that an unprecedented number of more that 27,000 objections had been submitted in regard to the Amendment Bill, and referred to the guideline of the Knesset’s legal advisor in regard to “Debating and Voting upon Objections in the Preparation of Bills for a Second and Third Reading” (Aug. 1, 2021) (hereinafter: the Objections Protocol), that was intended to contend with situations in which thousands of objections were submitted. Advocate Afik presented a number of possibilities for addressing the objections but suggested that in view of the exceptional number, if the members of the opposition preferred one of the possibilities, the Committee chair should adopt that one. When no agreement was reached between the coalition and the opposition, MK Rothman chose the option according to which there would be a summary presentation of all the objections, and following that, a vote would be held on the objections in groups of 20 at a time. The explanation of the objections took some 18 additional hours. In the end, all of the objections were defeated, and on July 19, 2023, the Committee approved the Amendment Bill by a majority vote of nine in favor and seven opposed. Objections raised by several members of the opposition factions in regard to defects in the Committee’s vote were rejected by Advocate Afik.

            On July 19, 2023, a debate was held in the Knesset House Committee on the application of sec. 98 of the Knesset Rules that allows the House Committee to lay down special procedures for debates on budget laws and “in other exceptional cases”, including laying down a framework for the debate, and the length of speeches in the plenum. The Knesset House Committee ruled that members of the opposition could explain their objections over the course of 26 hours, after which a vote on 140 objections would be held in the plenum at the choosing of the opposition. On July 23, 2023, the debate began in the Knesset plenum, and on July 24, 2023, the bill was approved in a third reading by a majority of 64 members of Knesset without opposing votes, after the opposition factions boycotted the vote.

            The Amendment came into force on July 26, 2023, upon its publication in the Official Gazette.

 

The Petitions

27.       Eight petitions against it were filed shortly after the approval of the amendment to the Basic Law, all of which asked the Court, inter alia, to declare the amendment void. The petitions were filed by civil society organizations and by individuals, and one was filed by the Israel Bar Association (the Petitioner in HCJ 5663/23). A decision by Justice D. Mintz on July 26, 2023, dismissed requests for an interim order to prevent the Amendment’s entry into force until the issuing of a decision on the petitions, and seven of the petitions were set for a hearing before a panel. An additional petition that was subsequently filed in HCJ 5769/23 (hereinafter: the Numa Petition) was joined with the other seven petitions, and addressing additional petitions against the Amendment submitted thereafter was put on hold until the issuing of a decision on the petitions before us.

            On July 31, 2023, I ordered that the petitions be hard before an expanded panel of 15 justices, and on August 9, 2023, the panel granted an order nisi as requested in the petitions for the sake of the efficient handling of the petitions and without expressing any position on the merits. In a decision issued that same day, we ordered the joining of the organization “Adam Teva V’Din – Israeli Association for Environmental Protection” (hereinafter: Adam Teva V’Din), the Association for Civil Rights in Israel, and 37 additional civil-rights organizations (hereinafter, for simplicity: the Association) as amici curiae.

28.       In preparation for the hearing of the petitions, the Respondents filed Affidavits in Response on their part. The Attorney General presented the position that the Amendment strikes a mortal blow to the fundamental principles of democracy, that the petitions should be granted, and that the Amendment should be declared void by reason of the Knesset’s deviation from the bounds of its constituent power and abuse of that power. As opposed to that, the Government, the Prime Minister and the Minister of Justice (hereinafter: the Government Respondents) – who were represented by counsel independent of the Office of the Attorney General – and the Knesset and MK Rothman –who were represented by counsel independent of the Office of the Knesset Legal Advisor – argued that the Court lacked jurisdiction to intervene in the Amendment and that even on the merits, there were no grounds for intervening therein.

29.       On September 12, 2023, we heard the parties’ oral arguments. In the course of the hearing, the parties addressed the issues of principle concerning the conducting of judicial review over Basic Laws and the specific amendment at the focus of the petitions at length. At the end of the hearing, we permitted the Knesset and the Government Respondents to submit Supplemental Briefs in writing in regard to a number of issues that arose in the course of the hearing. The Supplemental Brief of the Government Respondents was submitted on October 16, 2023, and that of the Knesset on November 9, 2023.

 

Summary of the Arguments of the Parties

30.       The main argument of the Petitioners is that the amendment that is the subject of the petitions is an “unconstitutional constitutional amendment” and that it must, therefore, be declared void. In this regard, the Petitioners refer to this Court’s holdings in HCJ 5555/18 Hasson v. Knesset [39] (hereinafter: Hasson) that stated that the constituent authority is not authorized to deny the core characteristics of the State of Israel as a Jewish and democratic state, but which did not decide upon the question of the Court’s jurisdiction to conduct judicial review in that regard. The Petitioners are of the opinion that jurisdiction is necessary by virtue of the institutional role of the Court in our system, due to the absence of a fixed procedure for legislating Basic Laws and for their amendment, and due to the structural weakness of the separation of powers in Israel. It was further argued that sec. 15 of the Basic Law, which sets out the broad jurisdiction of the High Court of Justice to grant relief “for the sake of justice” and to issue orders to “all state authorities” should also be viewed as a source of authority for review of the constituent authority. Not recognizing the jurisdiction of the Court in this regard, it is argued, means that any legislation by the Knesset enacted by a transient coalition majority would be immune to judicial review by means of labelling it a “Basic Law” even if it comprises a denial of the core characteristics of the State of Israel.

31.       According to the Petitioners, the amendment that is the subject of the petitions seriously infringes the nuclear characteristics of Israel as a democratic state.  First, it is argued that the Amendment infringes the principle of the rule of law, in that it permits the elected echelon to act however it wishes, without judicial oversight. According to the Petitioners, the significance of the Amendment is the effective abolition of the duty of the Government and its members to act reasonably. Second, the Petitioners argue that the Amendment severely infringes the separation of powers in that it concentrates unprecedented governmental power in the hand of the Government. It is further argued that, in practice, the Amendment denies the right of access to the courts in regard to many administrative decisions. The amici curiae went into detail in this regard as to the important rights and interests that could not, in their opinion, be protected in the absence of the reasonableness standard.

            The Petitioners add that the harm caused by the Amendment is particularly severe in view of Amendment’s broad language, which entirely denies the reasonableness standard in regard to every type of decision by the Government and its ministers, including decisions in concerning the individual, for which there is no justification that they be immune from judicial review. It is further argued that that there are entire areas in which the only limit upon the Government’s power is the reasonableness standard, among them the area of appointments and dismissals in the civil service and decisions made during period leading up to elections. The Numa petition further notes that the Amendment will seriously harm the ability of members of the armed forces to defend themselves against being charged for breaches of the rules of international law.

            The Petitioners also ask that the Court take note of the fact that, in parallel to the Amendment, additional steps are being advanced as part of a comprehensive plan for changing the legal system that is intended to weaken and seriously harm its independence and grant absolute power to the coalition majority.

32.       The Petitioners further argue that the Amendment should also be voided as an instance of abuse of constituent power. According to the Petitioners, the Amendment, as enacted, does not meet the supplementary tests established in HCJ 5969/20 Shafir v. Knesset [40] (hereinafter: Shafir) for identifying a constitutional norm. In this context, the Petitioners focus upon the generality test and the test of compatibility to the constitutional fabric. In regard to the generality test, it is argued that the Amendment – which went into immediate force – is a personal amendment primarily intended to benefit the current Government and grant it the ability to act without oversight. As for the compatibility test, it is argued that there is nothing in the Basic Laws that is anything like the provision treating of the abolition of a cause of action or a specific standard of judicial review, and that such a provision should be enacted in a regular statute. In the absence of any justification for grounding the provision in a Basic Law – other than the desire to make it immune to judicial review – it is argued that the Amendment should be decreed void. Alternatively, some of the Petitioners ask that the Amendment’s entry into force be postponed until the next Knesset.

33.       The Petitioners also claim that there were defects in the legislative process that also justify voiding the Amendment. Thus, they argue that the Amendment Bill could not be advanced as a bill on behalf of the Constitution Committee under sec. 80 of the Knesset Rules, and that the choice of that path was intended to circumvent the established arrangements that apply to government and private member’s bills. The Petitioners further argue that there was also a substantive flaw in the principle of the participation of the members of the Knesset as defined in HCJ 10042/16 Quintinsky v. Knesset [41] (hereinafter: Quintinsky). In that regard, it is argued that the debates upon the Amendment were conducted over only three weeks, without a comprehensive debate upon the consequences of the Amendment, among them the consequences for the armed forces and state security; that in the course of the debates the participants were subjected to insults and denied the right to speak, in a manner that undermined their ability to participate in the legislative process; that the use of sec. 98 of the Knesset Rules, which is intended to shorten the debate on bills in extraordinary, extreme circumstances, also undermined the legislative process.

34.       As noted, the Attorney General supports the view of the Petitioners and is of the opinion that the Amendment should be declared void. In her opinion, this Court’s jurisdiction to conduct judicial review over the content of Basic Laws should be recognized. Like the Petitioners, the Attorney General is of the opinion that such jurisdiction derives from the institutional role of the High Court of Justice to ensure that state authorities – including the constituent authority – do not deviate from their authority, and that its source is in the jurisdiction of the Court to grant relief under sec. 15(c) of the Basic Law. In this regard, the Attorney General also refers to the excessive ease by which Basic Laws can be constituted and to the unique institutional structure of the State of Israel and argues that in the absence of judicial review there is no way to contend with a constitutional amendment that denies the nuclear characteristics of the State of Israel as a Jewish and democratic state.

35.       The Attorney General is of the opinion that the amendment that is the subject of the petitions is an exceptional case for which there is no recourse other than the Court’s intervention, inasmuch as it is an unprecedented amendment that strikes a mortal blow to the existing safeguards for restraining the power of the majority. According to the Attorney General, we are concerned with a sweeping amendment that applies not only to broad policy decisions but also to many ministerial decisions that are of a clearly professional, practical nature. It is further argued that as opposed to the arguments voiced by the supporters of the Amendment in the Committee’s debates, parliamentary oversight cannot serve as an effective alternative to judicial review on the basis of reasonableness, and that other standards – like that of proportionality – are insufficient for filling the “normative void” created by the abolition of the reasonableness standard.

            The Attorney General adds that the Amendment severely harms the rule of law, in that it places the elected echelon “above the law”, considering that the courts – and as a result, the government legal-advice system – are left without effective tools for overseeing that the Government and the ministers fulfil their duty to act reasonably. In her opinion, the Amendment may lead to irreversible harm to the independence of the gatekeepers, fundamentally change the core character of the of the civil service, and could harm equality in the electoral system, inasmuch as the ruling Government would be free to employ its power and resources during the period leading up to the elections without the Court being able to examine the reasonableness of its decisions. The Attorney General emphasizes that the Amendment itself strikes a mortal blow to the core characteristics of the state’s democratic regime. The Attorney General adds that note should also be taken of the fact that the Amendment is part of a broader plan to change the legal system, which may cause irreversible harm to the Court’s ability to fulfil its constitutional role in a democratic state.

36.       Like the Petitioners, the Attorney General further argues that the Amendment was enacted through an abuse of constituent power, while primarily emphasizing in this regard its not meeting the constitutional-fabric test. She argues that grounding a provision that abolishes a specific standard of judicial review in regard to the Government and its ministers in the Basic Laws is foreign to the overall constitutional fabric. There is good reason why limitations upon the authority of judicial institutions have, until now, been enacted in regular statutes and regulations. The Attorney General emphasizes that grounding the Amendment in a Basic Law does not allow for a review of its constitutionality by means of the tests of the limitation clause. The Attorney General adds that the Amendment also presents a problem in terms of the generality test and the distinction test.

37.       According to the Attorney General, it is questionable whether the Petitioners’ arguments in regard to defects in the legislative process would justify voiding the Amendment, but those defects aggravate the other defects in the Amendment. Lastly, the Attorney General notes that while an interpretive solution would generally be preferable to voiding of the Amendment, in the present matter, the Amendment cannot be interpreted in a manner that would leave it in force without the Court rewriting the Amendment. Therefore, and in the absence of alternative remedies that could rectify the severe defects in the Amendment, the Attorney General is of the opinion that there is no alternative to declaring it void.

38.       As opposed to this, the Knesset is of the opinion that the petitions should be dismissed. The Knesset argues that this Court lacks jurisdiction to conduct judicial review over Basic Laws, inter alia, in view of the absence of any clear authorization for such review and the absence of any provisions restricting the constituent authority in constituting Basic Laws. The Knesset emphasizes that sec. 15 of Basic Law: The Judiciary cannot be taken as a source of authority for judicial review of other norms that are also grounded in Basic Laws. In addition, the Knesset argues that conducting judicial review over Basic Laws undermines the basis for conducting judicial review of primary legislation, and that the Court must not establish principles that place limits upon the constituent authority that were not established by the sovereign (the people). The Knesset adds that inasmuch as the Israeli constitutional project has yet to be completed, the theories put forward to ground the doctrine of an unconstitutional constitutional amendment are inappropriate to Israel. Therefore, it is argued that even if there are limitations upon the constituent authority, the Court should not be permitted to oversee their being abided.

39.       In any case, the Knesset is of the opinion that the petitions should be dismissed in limine for lack of ripeness, as no factual foundation has been formed for examining the consequences of the Amendment. It argues that the language of the Amendment is ambiguous, and it is not yet clear how it will be interpreted by the courts. In addition, it is not yet clear whether the Knesset has the ability to employ parliamentary tools to enforce the reasonableness duty that continues to apply to the Government and the ministers. The Knesset further argues that the petitions are also not ripe because the implementation of the Amendment is dependent upon the conduct of the Government and the ministers in the new legal situation.

40.       Should the Court choose to decide upon the question of the constitutionality of the Amendment at this time, the Knesset is of the opinion that it does not reach the level of an unconstitutional constitutional amendment, inasmuch as it does not harm the core of the nuclear characteristics of the state. In this regard, it is argued that in the course of the Committee’s debates, the Knesset legal advisors noted the problems that arise from it and suggested alternative wordings for the Amendment, but not accepting the said recommendations does not mean that the Amendment, as approved, is unconstitutional. The Knesset is of the opinion that the threshold for conducting judicial review over the content of basic legislation must be higher, similar to the criteria for disqualifying candidates for election to the Knesset under sec. 7A(a) of Basic Law: The Knesset. In the matter before us, it is argued, we are concerned with an amendment that does not entirely deny the judicial review of decisions by the Government and its ministers, but concerns only the abolition of the reasonableness standard, which continues to apply in regard to other governmental agencies. It was further noted that judicial review in regard to the Amendment cannot be based upon the assumption that it is part of a broad, comprehensive process of future changes that would harm the democratic identity of the state.

            The Knesset adds that it is possible to narrow the scope of the Amendment’s application through interpretation. In its view, it can be interpreted in a manner that it would not apply to irrational decisions that could have been voided even prior to Dapei Zahav. The Knesset further notes that new judicial tools can be developed for judicial review in the area of appointments and dismissals and in regard to the decisions of an interim government.

41.       The Knesset emphasizes that the Amendment does not represent an abuse of constituent power because it is a general, stable, and abstract amendment that is appropriate, in its view, to the existing constitutional fabric. As for the Amendment’s immediate entry into force, it is argued that while it is preferable that the application of Basic Laws in regard to the regime be forward looking, in practice many such amendments were enacted with immediate effect and the case law has already made it clear that this fact alone is insufficient grounds for voiding a Basic Law. As for the constitutional-fabric test, the Knesset notes that the “natural place” for establishing rules in regard to judicial review by the Court is Basic Law: The Judiciary, and there is nothing wrong with an amendment that provides an answer to a specific issue and that does not address all of the aspects of judicial review over administrative decisions.

42.       Lastly, the Knesset argues that there was no defect in the legislative process that would justify voiding the Amendment, even though “it was possible to adopt a better legislative procedure than the one actually followed” (para. 224 of the Knesset’s Affidavit in Response). Thus, it is argued that it was possible to advance the Amendment Bill as a bill on behalf of a committee in accordance with the Knesset Rules and that arguments raised in regard to the principle of participation do not even minimally meet the test established in Quintinsky for voiding a law on that basis.

43.       The Chair of the Constitution Committee, MK Rothman, concurs with the Knesset’s position that this Court lacks jurisdiction to conduct judicial review of Basic Laws, and in his opinion, debates concerning Basic Laws should be conducted in the Knesset alone. In the course of the hearing on Sept. 12, 2023, MK Rothman addressed the possibility of narrowing the scope of the Amendment through interpretation, which was suggested in the Knesset’s response, and emphasized that he does not agree with such a position and that in his view, the Amendment deprives the Court of jurisdiction to consider and decide upon arguments that relate to the reasonableness of Government and ministerial decisions in any manner (pp. 37-39 of the Transcript of the hearing).

44.       The Government Respondents argue that the petitions should be dismissed while establishing in principle that there can be no judicial review of Basic Laws. In their view, since the Court established that the it draws its jurisdiction to conduct judicial review of legislation from the Basic Laws, it cannot address their validity, and this is particularly the case in regard to Basic Law: The Judiciary. The Government Respondents note that adopting a doctrine of unconstitutional constitutional amendments in our system would make the State of Israel the only state in which it is possible to apply judicial review to constitutional amendments in the absence of an “eternity clause” in the constitution and in the absence of a complete constitution. In the opinion of the Government Respondents, “in Israel there are no substantive limitations upon the constituent authority” (para. 255 of the Affidavit in Response of the Government Respondents), and it is not possible to rely upon the fundamental principles of the system, the values of the State of Israel as a Jewish and democratic state, or on the values of the Declaration of Independence – which does not constitute a binding legal source – as grounds for justifying judicial review of the content of Basic Laws.

            The Government Respondents further argue that the amendment that is the subject of the petitions is part of a “legitimate constitutional dialogue” between the governmental branches and it is a very far cry from causing harm to the minimum requirements of Israel as a Jewish and democratic state. According to the Government Respondents, limiting judicial review does not present any constitutional problem, particularly when it does not concern basic rights and where it only concerns limiting the use of only one administrative standard. The Government Respondents incidentally note that there is no substance to the arguments raised in the Numa petition in regard to an increased danger of bringing international criminal charges against members of the armed forces as a result of the Amendment, and in any case, the Court does not have jurisdiction to decide whether a law or a Basic Law is good and proper in terms of its significance.

45.       As for the arguments concerning abuse of constituent power, the Government Respondents note that the tests established in Shafir are not binding precedent, and that the doctrine should not be adopted in our system. In any case, it is argued that the Amendment does not violate the tests for identifying a constitutional norm that were established in Shafir. In their opinion, we are concerned with an amendment that is stable, not enacted as a temporary provision, that applies generally and comprehensively to all future Governments, and that is appropriate as an amendment to Basic Law: The Judiciary, which establishes the scope of the Supreme Court’s jurisdiction to issue orders to governmental authorities. The Government Respondents also reject the possibility of judicial review over the procedure for enacting Basic Laws, but emphasize that, in any event, the procedure for enacting the Amendment does not “even come close” to the circumstances addressed in Quintinsky.

            In regard to the remedy, the Government Respondents explain that there is no place for an affirming interpretation that would change the meaning of the Amendment as it arises from the language of the law and the debates in the Knesset. In their view, the result of the Amendment is that “there is no longer any possibility for judicial review on the basis of the reasonableness standard of any kind”, including in regard to decisions that are unreasonable in the extreme or utterly irrational (para. 45 of the Government Respondents Supplemental Brief). It was additionally argued that there is no basis for granting relief in the form of cancelling the Amendment’s immediate entry into force.

 

Examination and Decision

46.       The proceedings before us raise two primary questions. The first question is whether it is possible to conduct judicial review of the content of Basic Laws when it is argued that the Knesset deviated from its constituent power. This is a complex question, and until now, the Court has refrained from deciding it. But it is now the basis of the petitions and requires an answer. In practice, even the Government Respondents, who believe that the petitions should be dismissed, are of the opinion that this matter of principle should be decided.

            The second question, for which the answer is dependent upon the answer to the first question, is whether the amendment that is the subject of the petitions – Amendment no. 3 to Basic Law: The Judiciary – should be voided. In this context, we must address the list of defects that, according to the Petitioners and the Attorney General, justify voiding the Amendment, first among them the argument that it severely harms the core character of the State of Israel as a democratic state and that the Knesset exceeded its constituent power in adopting it.

            I will address these questions in their order, and accordingly, I will first address the question of principle in regard to conducting judicial review of Basic Laws.

 

Part I: Judicial Review of Basic Laws

  1. The Power to adopt a Constitution

47.       In order to conduct a comprehensive examination of all that relates to conducting judicial review upon the constituent power of the Knesset, we must again examine the sources of that power and its substance. These aspects have been explained more than once in the case law of this Court and in the legal literature (see, inter alia, CA 6821/93 United Mizrahi Bank v. Migdal Cooperative Village [42] (hereinafter: Mizrahi Bank); Aharon Barak, “The Declaration of Independence and the Knesset as a Constituent Authority,” 11 Hukkim   9 (2018) [Hebrew] (hereinafter: Barak, “Declaration of Independence”); Rivka Weill, “United Mizrahi Bank's Twentieth Anniversary: On the Piquant Story of the Hybrid Israeli Constitution,” 38 Iyyunei Mishpat 501, 501-570 (2016) [Hebrew] (hereinafter: Weill, “Hybrid Constitution”)). I will therefore suffice with a brief survey.

48.       The Israeli constitutional project began on Friday evening, 5 Iyar 5708 (May 14, 1948), when, at a session of the People’s Council, David Ben Gurion read one of the most important documents in our history: The Declaration of the Establishment of the State of Israel (hereinafter: Declaration of Independence). Along with setting out the historical and international justification for the establishment of the state and presenting its vision, the Declaration included an “operative part” (Barak, “Declaration of Independence”, 13):

Accordingly we, members of the People’s Council, representatives of the Jewish Community of Eretz-Israel and of the Zionist Movement, are here assembled on the day of the termination of the British Mandate over Eretz-Israel and, by virtue of our natural and historic right and on the strength of the resolution of the United Nations General Assembly, hereby declare the establishment of a Jewish state in Eretz-Israel, to be known as the State of Israel.

We declare that, with effect from the moment of the termination of the Mandate being tonight, the eve of Sabbath, the 6th Iyar, 5708 (15th May, 1948), until the establishment of the elected, regular authorities of the State in accordance with the Constitution which shall be adopted by the Elected Constituent Assembly not later than the 1st October 1948, the People’s Council shall act as a Provisional Council of State, and its executive organ, the People’s Administration, shall be the Provisional Government of the Jewish State, to be called “Israel.”

            As we see, on the day the state was founded, its obligation to adopt a constitution for Israel was established. This is consistent with what was stated in Resolution 181 of the United Nations General Assembly of November 29, 1948 (hereinafter: the General Assembly Resolution), which served as a “basis for the international legitimacy” of establishing the State of Israel (see: Hasson, para. 6, per Justice M. Mazuz). The General Assembly Resolution established, inter alia, that each of the countries that will be established in Mandatory Palestine will hold elections for a constituent assembly that will draft a democratic constitution in the framework of which the state institutions would be established, and basic rights would be granted to all of its residents (secs. 9 and 10 of Part 1(B) of the General Assembly Resolution; and see in this regard: Joseph Weiler and Doreen Lustig, “A Good Place in the Middle – The Israeli Constitutional Revolution from a Global and Comparative Perspective,” 38 Iyunei Mishpat 419, 455-457 (2016) [Hebrew]).

49.       A few months after the establishment of the state, the Provisional Council of State – which served as the legislature (see: sec. 1 of the Proclamation of the Provisional Council of State of May, 14, 1948 and sec. 7(a) of the Law and Administration Ordinance, 5708-1948) – enacted the the Constituent Assembly Elections Ordinance, 5709-1948, and pursuant to that, the Constituent Assembly (Transition) Ordinance, 5709-1949, which established: “The Constituent Assembly shall […] have all the powers vested by law in the Provisional Council of State” (and see: HCJ 5119/23 Anti-Corruption Movement v. Knesset [43], paras. 11-14, per Justice A. Stein) (hereinafter: Anti-Corruption Movement)). Following the elections, which were ultimately held at the beginning of 1949, the Transition Law, 5709-1949, was enacted. It established: “The legislative body of the State of Israel shall be called the Knesset. The Constituent Assembly shall be called ‘The First Knesset’” (sec. 1). Therefore, the First Knesset held both legislative power (which it inherited from the Provisional Council of State) and the power to establish a constitution (Mizrahi Bank, 362-364).

            Over the course of several months, the First Knesset held a debate upon the need for a constitution in principle and in regard to its contents. The debate ultimately ended in a compromise known as the “Harari Decision”, which was adopted by the Knesset plenum on June 13, 1950. The decision stated: “The First Knesset instructs the Constitution, Law, and Justice Committee to prepare a draft State Constitution. The constitution will be built chapter by chapter, in such a way that each will constitute a separate Basic Law. The chapters shall be presented to the Knesset when the committee completes its work, and all the chapters together shall comprise the Constitution of the State” (Knesset Record – June 14, 1950, 1743). Unfortunately, as a result of that decision, we find ourselves today – more than seventy-three years since its adoption – without a complete state constitution, or as Prof. Aharon Barak aptly described it in his article “The Basic Law Project – Where To?” 14 Mishpat Ve-Asakim 111 (2012) [Hebrew]: “The Harari Decision saved the constitutional project from destruction, at the price of directing it to a parallel track where it moves very slowly” (ibid., 112).

            The First Knesset did not enact any Basic Laws but transferred its constituent power to the ensuing Knessets. It enacted the Second Knesset (Transition) Law, 5711-1951, in which it established: “The Second Knesset and its members shall have all the powers, rights and duties which the First Knesset and its members had” and added that this shall also apply “to the Third  and any subsequent Knesset” (see: secs. 5, 9 and 10 of the law).

50.       In 1958, the Third Knesset enacted the first Basic Law – Basic Law: The Knesset, and several more Basic Laws were enacted thereafter concerning the state’s institutions. The first judgments in which the Supreme Court addressed the status of the Basic Laws primarily concerned breaches of the principle of equality in elections, which was established in Basic Law: The Knesset, which also established that it could not be changed, expressly or impliedly, except by a majority of the Knesset members in each legislative stage (sec. 4 and 46 of Basic Law: The Knesset). In some of those judgments, the Court decreed that provisions that did not meet the special-majority requirement required by Basic Law: The Knesset were invalid (see: HCJ 98/69 Bergman v. Minister of Finance [44] (hereinafter: Bergman); HCJ 246/81 Agudat Derekh Eretz v. Broadcasting Authority [45] (hereinafter: Agudat Derekh Eretz); HCJ 141/82 Rubinstein v. Chairman of the Knesset [46] (hereinafter: HCJ 141/82)). However, in those proceedings, the Court was not required to address the question of the Knesset’s authority to adopt a constitution for Israel on the merits.

51.       In 1992, the first Basic Laws – and the only ones to date – that treat of individual rights were enacted: Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation. These Basic Laws were the first to include a “substantive” entrenchment provision (the “limitation clause”), which establishes that the rights under those Basic Laws cannot be violated “save by means of a law that corresponds to the values of the State of Israel, which serves an appropriate purpose, and to an extent that does not exceed what is required, or on the basis of a law, as aforementioned, by force of an explicit authorization therein” (sec. 8 of Basic Law: Human Dignity; sec. 4 of Basic Law: Freedom of Occupation). Thereafter, proceedings in which arguments were raised concerning the unconstitutionality of laws infringing basic rights and that did not meet the conditions of the limitations clause began to come before the Court.

52.       In the Mizrahi Bank case, a panel of nine justices addressed matters of principle in regard to the status of the Basic Laws. In that case, contrary to the dissent of Justice M. Cheshin, the Court held that in enacting Basic Laws, the Knesset acts by virtue of its constituent power to write a constitution for Israel, and that in terms of the normative hierarchy, the status of those Basic Laws is superior to that of “regular” primary legislation. Therefore, the Court further held in Mizrahi Bank that it is possible to conduct judicial review of primary legislation, and even decree it void, if it does not meet the conditions set out in the Basic Laws. This was the case, in view of the Court’s jurisdiction to examine whether a “a normative provision of a lower status deviates from a higher normative provision” (ibid., 427).

            The judgment presented two competing approaches for grounding the Knesset’s power to enact Basic Laws that enjoy supra-legal normative status that would eventually become the constitution of the State of Israel. President (emer.) Shamgar relied upon “the doctrine of the unlimited sovereignty of the Knesset” according to which the Knesset is not limited in its power, except by the boundaries that it set for itself. In this regard, President (emer.) Shamgar noted:

The Knesset operates in that capacity without any internal allocation or division into different institutions based on one body’s supremacy over another. The Knesset has discretion to decide whether its legislative product will belong to the supreme constitutive level or the regular legislative level, and in enacting constitutional legislation, by virtue of its unlimited powers, it also establishes the supremacy of the constitutional law over the regular law, and is authorized to determine conditions applicable to regular legislation for the purposes of adjusting it to the norms determined in the constitutional legislation (ibid., 285).

            The other justices concurred with this approach in the Mizrahi Bank case.

53.       Another approach, which has taken root in the case law, was presented by President Barak and is referred to as the “constituent authority doctrine” (see, inter alia: HCJ 4908/10 Bar-On v. Knesset [47] 291 (hereinafter: Bar-On); Hasson, para. 17 of my opinion, and para. 4 of the opinion of Justice N. Hendel; Amnon Rubinstein and Barak Medina, The Constitutional Law of the State of Israel, vol. I: Institutions 78 (6th ed., 2005) [Hebrew] (hereinafter: Rubinstein & Medina); Uri Aharonson, “The Constitutional Revolution: The Next Generation,” 34 Mechkarei Mishpat 1, 4 (forthcoming) [Hebrew]). According to this approach – with which Justices D. Levin, I. Zamir and E. Mazza concurred (the other justices refrained from expressly deciding between the two approaches) – the Knesset wears two primary “hats” or “crowns”: the constituent authority hat, by virtue of which it constitutes a constitution, and the legislative authority hat, by virtue of which it enacts laws (Mizrahi Bank, 356).

            In his opinion, President Barak emphasized that the Knesset did not create its constituent power, and that it is a power that “derives from the sovereign, i.e. the people” (ibid.). President Barak went on to survey a list of “constitutional data”, among them – the Declaration of Independence, the Harari Decision, the adopting of twelve Basic Laws, the case law, the Knesset’s reaction to the decisions of the courts, and the view of the legal community that, in his view, testify to the constituent power of the Knesset. On the basis of this data, President Barak presented three legal-theory models that, in his view, all lead to the conclusion that the Knesset is indeed granted constituent power. President Barak found all the more support for this conclusion in that the three models led to an identical conclusion:

  1. The Constitutional Continuity model, according to which the “grundnorm” of the State of Israel – “its superior norm, which is not itself part of the body of positive law, but provides a basis for the other legal norms of the state” (ibid., 359) – is that the Provisional Council of State is the supreme legislative institution of the State. According to this model, which is based upon the approach of constitutional law scholar Hans Kelsen, the Provisional Council of State decreed in the Declaration of Independence that a constitution would be enacted by the Constituent Assembly, and that power passed by the “constitutional continuity” described above to every Knesset from then until today.
  2. The Rule of Recognition of the System model, based upon the approach of Prof. H.L.A. Hart, according to which the rule that determines how primary norms are created in the state and their relative normative status is that “the Knesset is endowed with both constituent and legislative authority” and this reflects the “system of national life” of the State (ibid., 357).
  3. The Best Interpretation of Social and Legal History model of the system in a given time, based upon the approach of Prof. Ronald Dworkin, according to which “the interpretation that best fits the entirety of Israel’s social and legal history since its establishment is that the Knesset is empowered to enact a constitution for Israel” (ibid., 358).

54.       As we see, since the judgment in Mizrahi Bank, and even though the process of constituting a constitution has not been completed, the Basic Laws are viewed “in the political and public tradition as part of the constitution of the State” (Bar-On, 299). Accordingly, the view that the “legislative products of the Knesset in its hat as a legislative authority are subject, in terms of their normative level, to the Basic Laws that hold constitutional status” has become established (Hasson, para. 17 of my opinion).

55.       A form test was established in Mizrahi in regard to the question how one can identify constitutional norms. According to this test, “the Knesset uses its constituent authority… when it gives external expression in the name of the norm, denoting it a ‘Basic Law’ (without specifying the year of enactment)” (ibid., 403). Along with this holding, the Court in Mizrahi Bank left two questions for further consideration. First, the question was asked what would happen in regard to “future Knesset legislation that might ‘abuse’ the term ‘Basic Law’ by designating as such regular legislation with no constitutional content” (ibid., 406) (emphasis added). President Barak noted in this regard that “this question is by no means simple; its answer extends to the very root of the relationship between the constituent authority (of the Knesset) and the judicial authority (of the courts)” (ibid.). Second, it was noted that a need for “a determination as to whether certain provisions set forth in the Basic Law deviate from constituent authority” might arise (ibid., 394) (emphasis added). In this regard, President Barak noted that courts around the world examine the constitutionality of constitutional amendments, and that more than one such amendment has been invalidated for substantive reasons as well, but this issue was also left for further consideration in Mizrahi Bank.

            Over the last few years, as will be explained in detail below, these questions have been raised in a number of petitions filed against Basic Laws and amendments to Basic Laws enacted by the Knesset.

 

  1. Abuse of Constituent Power

56.       As noted, Mizrahi Bank did not thoroughly examine the possibility that the Knesset might abuse its constituent power and recognize a norm as a Basic Law although inappropriate to be part of a future constitution in terms of its characteristics. The need to address this possibility and to reexamine the form test for identifying Basic Laws first arose against the background of increasing use of constituent power to enact amendments to Basic Laws as temporary provisions. Thus, Bar-On addressed an amendment to a Basic Law that established in a temporary provision that the state budget for the years 2011 and 2012 would be a two-year budget. President Beinisch noted in this regard that a temporary provision inherently “contradicts the basic idea whereby the provisions of the constitution are fixed, and some would say even eternal” (ibid., 300). She added that “in certain circumstances, which cannot be determined in advance, it is possible that the enactment of a basic law as a temporary provision may amount to ‘misuse’ of the title ‘Basic Law’” (ibid., 301). In regard to the specific amendment addressed in Bar-On, the Court rejected the argument that it should be voided due to abuse of constituent power, but explained that it would be better if the Knesset refrain in the future from using temporary provisions for amending constitutional provisions (ibid., 307).

57.       Despite the Court’s comments in Bar-On, the Knesset continued to change Basic Laws by means of temporary provisions in order to approve two-year budgets. The fifth time that occurred, the Court granted relief for the first time on the basis of the “abuse of constituent power” doctrine, and issued a nullification notice according to which, in the future, it would not be permissible to adopt a budget that it not annual by means of a temporary provision (HCJ 8260/16 Academic Center v. Knesset [48] (hereinafter: Academic Center)). Deputy President (emer.) E. Rubinstein held that “where an abuse of the majority’s power is identified in a constitutional text, the political need retreats before ‘the constitutional core’ and its ‘sanctity’, its legal importance and its importance in terms of values” (ibid., para. 30). Deputy President (emer.) S. Joubran added that the “abuse” doctrine is not limited to circumstances of enacting basic legislation as a temporary provision, and that “basic legislation as a temporary provision is, therefore, just one unfortunate expression of exploiting this ‘constitutional gap’ left by the form test” (ibid., para. 7 of his opinion).

58.       Some four years later, judgment was handed down in Shafir, which addressed Amendment no. 50 to Basic Law: The Knesset that was enacted as a temporary provision and comprised, inter alia, an indirect amendment of Basic Law: The State Economy that resulted in the raising of the continuation-budget ceiling for 2020 by 11 billion shekels. In that case. The nature of the abuse of constituent power doctrine was examined along with the source of the Court’s authority to conduct judicial review thereunder:

The center of gravity of the doctrine of abuse of constituent power is, as noted, the question whether the norm grounded in the Basic Law is, indeed, on the constitutional plane under our tests for identifying such legislation. The task of identifying a norm as a legal norm on a particular normative level, including the constitutional level, is at the core of the Court’s role […] In other words, the Court’s role is to defend the developing constitution against the infiltration of norms that are not of the appropriate status into the constitutional fabric in a manner that might erode and trivialize the status of the Basic Laws (ibid., para. 31 of my opinion).

            It was explained that this doctrine is concerned with the identification of the norm under discussion as a constitutional norm in accordance with its the formal-procedural characteristics, as opposed to judicial review of the content of the norm. For that purpose, my opinion presented a two-stage test intended to guide the Court in examining whether the Knesset abused its constituent power. At the first stage, “the identification stage”, the Court will examine whether the Basic Law or its amendment bears the formal characteristics and hallmarks of constitutional norms. To that end, several supplementary tests were established, which do not form a closed list: (1) The stability test, which examines the question of whether we are concerned with an arrangement that is permanent, stable and forward-looking, as is required of constitutional norms intended to establish the character of the state over time; (2) The generality test, which addresses whether the norm has general, abstract application that relates to a non-specific group, as opposed to a personal norm; (3) The compatibility to the constitutional fabric test, which examines whether the norm is consistent with the character of those subjects already arranged in the Basic Laws. If the law does not meet one or more of those characteristics, then, in the second stage – “the justification stage” – the burden shifts to the respondents to show a special justification for establishing an arrangement that is not of a constitutional character specifically in the framework of the Basic Laws (and compare the opinion of Justice Barak-Erez in Shafir, who was of the opinion that instead of the compatibility to the constitutional fabric test, we should adopt a “distinction” test that examines whether the arrangement grounded in the Basic Law clearly intrudes into an area that is the responsibility of one of the other three branches of government, and recommended that we abandon the justification stage, such that a provision that does not meet the recognition tests cannot be deemed basic legislation).

            The judgment held, by a majority of six of the nine justices on the panel, that Amendment no. 50 of Basic Law: The Knesset lacked the identifying characteristics of a constitutional norm and that the Knesset had abused its constituent power. However, it was held in that matter that it would suffice to issue a “nullification notice” stating that Basic Law: The State Economy could not be amended in a similar way in order to increase the continuation-budget ceiling. The minority (Justices Sohlberg, Mintz and Elron) dissented in regard to adopting a doctrine that deviates from the form test for identifying Basic Laws based upon their title.

59.       The abuse of constituent power doctrine – first presented in Bar-On, recognized and first applied in Academic Center, and developed into concrete tests in Shafir – has taken root in the case law, and additional constitutional amendments have been examined in accordance with it over the last years (see: HCJ 2905/20 Movement for Quality Government v. Knesset [49] (hereinafter: the Rotation Government case); and Scheinfeld). This was, inter alia, in view of a pattern of significant regime changes “executed ad hoc, sometimes by means of temporary provision, for immediate implementation (sometimes exclusively) by the Knesset that executed them” (the Rotation Government case, para. 11 of my opinion; and see Scheinfed, para. 42 of my opinion, and para. 4 of the opinion of Justice O. Groskopf). There is, therefore, no substance to the claim by the Government Respondents that the abuse of constituent power doctrine “was never accepted as binding precedent by the Court” (para. 148 of the Government Respondent’s Affidavit in Response). As detailed above, this doctrine was addressed more than once before expanded panels of this Court and was repeatedly adopted by a majority of the Court. In two of those proceedings, the petitions were even granted by reason of the Knesset’s abuse of constituent power, although the constitutional remedy granted was forward looking.

            We can summarize in saying that in the framework of the abuse of constituent power doctrine, the Court focuses on identifying the norm under review and upon the question of whether it is appropriate, in terms of its characteristics, to be found at the constitutional level (the Rotation Government case, para. 2 of my opinion). It does not conduct judicial review of the content of basic legislation in the framework of this doctrine (see: Academic Center, para. 5, per Deputy President (emer.) Joubran).

 

  1. Deviation from the Knesset’s Power as a Constituent Authority

60.       A separate question is that of whether there can be situations in which there is no flaw in titling a norm as a “Basic Law”, but the substantive content of the norm leads to the conclusion that it constitutes a “deviation from constituent authority” of the Knesset (Mizrahi Bank, 394). This issue is examined in comparative law by means of the “unconstitutional constitutional amendment” doctrine, which is accepted in various legal systems. In accordance with this doctrine, there are substantive limits upon the power to amend the constitution, and the courts void constitutional amendments that deviate from those limits (for a detailed discussion of this subject, see: Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017) (hereinafter: Roznai).

61.       Research conducted on the subject found that some 40% of the constitutions in the world comprise explicit restrictions upon amending the constitution. These restrictions are grounded in “eternity clauses” established in the constitution itself, and they prohibit changing or amending certain parts of it (Yaniv Roznai, “Misuse of Basic Laws”, in Judge Elyakim Rubinstein Book, vol. II 1349, 1353 (Aharon Barak et al. eds.) (2021) [Hebrew]). Eternity clauses reflect the decision of the constituent body that certain provisions of the constitution are basic conditions of the state’s identity and existence, and it must, therefore, be ensured that “they will survive for generations without reliance upon the one majority or another” (Hasson, para. 13 of my opinion). In some of those constitutions, the eternity clause is accompanied by an express provision empowering the court to examine the constitutionality of constitutional amendments in accordance with those clauses (see: Aharon Barak, “An Unconstitutional Constitutional Amendment,” in Gavriel Bach Book 361, 373 (David Hahn et al. eds. 2011) (hereinafter: Barak, “Constitutional Amendment”)). Similarly, there are countries in which even in the absence of such and explicit provision, the court is viewed as the body authorized to examine whether the eternity clause has been breached (see: Roznai, 203). The most salient example in this regard is Germany. The German Basic Law establishes that the provisions regarding, inter alia, human dignity, the federal division of the states, and Germany’s being a social democracy (sec. 79(3) of the Grundgesetz). Over the years, the German Constitutional Court has viewed itself as holding jurisdiction to decide whether a constitutional amendment breaches the restrictions established in the constitution in this regard even though there are no express grounds for this jurisdiction in the text of the constitution (see, e.g.: 30 BVerGE 1 (1970); 109 BVerGE 279 (2004). A similar example can be found in Brazil, on which see: Conrado Hübner Mendes, “Judicial Review of Constitutional Amendments in the Brazilian Supreme Court,” 17 Fl. J. Int’l. L. 449 (2005)).

            Another model of the unconstitutional constitutional amendment doctrine relies upon the existence of implied limitations upon amending the constitution. Thus, in India we find the “basic structure” doctrine, according to which the power to amend the constitution does not include the power to entirely rewrite its identity or basic character (see: Roznai, 42-47). The Indian Supreme Court held that it holds the authority to conduct substantive judicial review of constitutional amendments by virtue of this doctrine, and over the years it has voided a number of constitutional amendments (see, inter alia: Minerva Mills v. Union of India [161]; Supreme Court Advocates-on-Record Ass'n v. Union of India [162]; on other countries that have implied restrictions upon the constitution, see: Roznai, 47-69).

62.       In any case, the above models apply in countries that have complete constitutions constituted upon the “original” constituent power, and the express or implied limitations are applied thereby upon the “derivative” power to amend the constitution (in regard to the distinction between “original” or “primary” constituent authority and “derivative” or “secondary” constituent power, see: Claude Klein, “The Constituent Power before the Supreme Court: After the Bank Hamizrahi Case”, 28 Mishpatim 341, 355-356 (1997) [Hebrew]; Aharon Barak, Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, vol, I – The Theory of Constitutional Rights (I. Zamir, ed., 2023) (hereinafter: Barak: Theory of Constitutional Rights)). These models cannot be applied as such in Israel, where the task of drafting a constitution has not yet been completed and is still being created “chapter by chapter”. That being the case, the use of the term “constitutional amendment” raises problems in our system (see: Barak, “Constitutional Amendment”, 379). Indeed, although this Court has referred to the existence of basic principles at the foundation of the state’s identity on several occasions (see, e.g.: CA 733/95 733/95 Arpal Aluminum v. Klil Industries [50] 629-630 (hereinafter: Arpal); HCJ 6427/02 Movement for Quality Government v. Knesset [51] 717 (hereinafter: The Tal Law case)), the question of the applicability of the “unconstitutional constitutional amendment” doctrine in Israel was left for further consideration, while emphasizing the difficulty in adopting models from comparative law into our system in this context (see: Bar-On, 309-311; Academic Center, para. 35, per Deputy President (emer.) E. Rubinstein, and para. 15, per Justice U. Vogelman; HCJ 5744/16 Ben Meir v. Knesset [52] para. 25 of my opinion (hereinafter: Ben Meir)).

63.       The most significant discussion on the limits of the constituent authority appears in Hasson, which addressed the constitutionality of Basic Law: Israel – The Nation State of the Jewish People (hereinafter: Basic Law: The Nation). In that matter, it was noted that the question of adopting a comprehensive doctrine for examining the constitutionality of amendments to the constitution would best be addressed when the completed Basic Law project has become a full constitution. However, it was emphasized that “the significance of that is not necessarily that in the absence of a comprehensive doctrine, the constituent power of the Israeli constituent authority is unlimited” (ibid., para. 15 of my opinion) (emphasis original). In this regard, we explained that two separate questions needed to be addressed: “The first question is whether there already are any substantive (content-based) limitations on the Knesset’s constituent power; the second – if there are such limitations, do they grant this Court the authority to conduct substantive judicial review of Basic Laws […]” (ibid., para. 16 of my opinion) (emphasis original). The first question was answered with a ringing, clear “yes” in Hasson. Answering the second question was not required for deciding Hasson, and it now stands before us.

 

C. 1.    The Limits upon the Power of the Constituent Authority

64.       The judgment in Hasson first established in no uncertain terms that the power of the Knesset wearing its constituent authority hat is not unlimited and it is not authorized to deny – in law or in practice – the core identifying characteristics of Israel as a Jewish and democratic state. In this regard, it was noted that “our constitutional edifice is not complete, and it is certainly possible that floors and extensions may be added to it along the way, but its support columns – the Jewish column and the democratic column – have already been set in place. Negating either of them leads to the collapse of the entire structure” (ibid., para. 18 of my opinion). Nine of the eleven justices on the panel concurred with this conclusion (Justices Sohlberg and Mintz refrained from directly addressing this issue and focused upon the problems related to judicial review of the Basic Laws).

65.       The conclusion in regard to the existence of restrictions upon the power of the Knesset to adopt a constitution can be learned from the constitutional text and the constitutional system as a whole, as developed since the earliest days of the state. The Declaration of Independence, which charged the “Elected Constituent Assembly” with the task of adopting the constitution, defined Israel as a Jewish state and gave clear expression to its democratic character as a state committed to equal rights and the freedoms of the individual. While the attorney for the Government Respondents repeatedly emphasized, in writing and orally, that the Declaration itself does not have binding legal status, it would seem that no one disputes that, in practice, this Declaration grounds “the foundational concepts of the State until this day” (EA 1/88 Neiman v. Chairman of the Central Elections Committee [53], 188 (hereinafter: Neiman)). This is the “birth certificate” of the state and it expresses the national vision (Kol Ha’am, 884; Mizrahi, 309): Israel is a Jewish state. Israel is a democratic state.

            The Basic Laws also reflect the fact that Israel is a Jewish and democratic state, and this is its “identity card” (Hasson, para. 19 of my opinion). Thus, sec. 1A of Basic Law: Human Dignity and Liberty and sec. 2 of Basic Law: Freedom of Occupation refer to “the values of the State of Israel as a Jewish and democratic state”; and sec. 7A(a)(1) of Basic Law: The Knesset makes it possible to deny the right to be elected to the Knesset to a person who negates “the existence of the State of Israel as a Jewish and democratic state”. Similarly, there are “regular” laws that expressly include the term “Jewish and democratic state”, along with many other laws that establish the identity of the state as such by their substance, among them the Law of Return, 5710-1950 (hereinafter: the Law of Return) and laws concerning the prohibition of discrimination (for a detailed list, see Hasson, para. 22 of my opinion). The case law has also noted over the years that the Jewish character of the state is “its clear hallmark among the nations and the states” and that its democratic character is its “life breath” (EA 11280/02 Central Elections Committee v. Tibi [54], 101 (hereinafter: Tibi); Neiman, 188; and also see: HCJ 466/07 Gal-On v. Attorney General [55] 63).

            From the above we can conclude:

The Declaration of Independence defined the character of the state as Jewish and democratic; the Basic Laws expressly grounded these elements in the identity of the state; the legislation and case law strengthened and fortified them; and the history of the nation has repeatedly demonstrated that this is its character since its inception. Therefore, it would appear that even though the constitutional project has not yet been completed, the identity of the State of Israel as a Jewish and democratic state cannot be disputed (Hasson, para. 23 of my opinion; and also see: ibid., para. 2, per Deputy President H, Melcer).

66.       The conclusion in regard to the boundaries of the constituent power directly derives from those “constitutional data” that ground the very existence of the constituent power. In other words, the basis for the conclusion as to the boundaries of the constituent power granted to the Knesset is, in my opinion, the existing constitutional system in its entirety – i.e., those “constitutional data” upon which the upon which the theory of the constituent power was formed from the outset. This, as opposed to other approaches that deduce the existence of limitations upon the constituent power from “framework rules” established in the Declaration of Independence (Barak: Theory of Constitutional Rights, 282-283; and see: Ariel Bendor, “The Legal Status of the Basic Laws,” in Berenson Book, vol. II (A. Barak and H. Berenson, eds., 2000) [Hebrew] (hereinafter: Bendor, “Legal Status”)) or from unwritten supra-constitutional principles (see the approach of Justice Cheshin in Arpal, 629 and in The Tal Law, 761). Justice Hendel defined this well in noting that the most appropriate interpretation of the entire constitutional history of the State of Israel since its inception is that the Knesset’s power to adopt a constitution is subject to preserving the “kernel of its Jewish-democratic identity”, and that the constitutional data shows the existence of “recognition rules” that limit the Knesset’s power to abolish the kernel of the Jewish and democratic character of the State of Israel by means of first-order rules (Hasson, para. 4 of his opinion).

67.       Hasson held that the Knesset’s constituent power comes from the sovereign (the people) and passed from Knesset to Knesset to this day. Therefore, the possibility of establishing a constitutional provision that would tumble the building blocks of the state as Jewish and democratic “is not within the constituent power of the Knesset” (ibid., para. 24 of my opinion; and see: The Tal Law, 717). It was further held in Hasson that the limitations upon the constituent power apply both to the adoption of a new Basic Law and to the enactment of an amendment to an existing Basic Law. However, given the present stage of the Israeli constitutional project, these limitations are extremely narrow and concern “situations in which a Basic Law facially negates or contradicts ‘the “nuclear” characteristics that form the minimum definition’ of Israel as a Jewish and democratic state” (ibid., paras, 27 and 29 of my opinion; and also see: ibid., para. 4 of the opinion of Justice (emer.) Mazuz).

 

C.2. The Role of the Court

68.       Given the substantive limitations upon the Knesset in exercising its constituent power, the main question that remains to be decided is whether this Court should be granted the possibility of conducting judicial review in order to ensure that those limitations are indeed observed, and in order to intervene in those exceptional, rare instances in which the Knesset has deviated from them.

            As noted, this question was left undecided in Hasson, where the majority was of the opinion that Basic Law: The Nation does not negate the core characteristics of the State of Israel as a democratic state, and therefore, there was no need to determine the question of the Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

69.       As noted in Hasson, establishing that the Knesset, as a constituent authority, is not “all powerful” and that it is subject to certain limitations does not, itself, necessarily lead to the conclusion that a deviation by the Knesset from its power in this regard will constitute grounds for judicial review (ibid., para. 32 of my opinion). Thus, for example, art. 89 of the French Constitution comprises an eternity clause according to which: “The republican form of government shall not be the object of any amendment”. However, the French Conseil Constitutionnel ruled that it does not have jurisdiction to conduct judicial review of constitutional amendments (CC decision No. 2003-469 DC, Mar. 26, 2003, Rec. 293). In such countries, the limitations upon amending the constitution are non-enforceable. Their influence is only in internalizing the rules of the constitutional game by the elements involved in establishing the constitutional norms, and if such rules be breached – the public can make its voice heard on election day (Hasson, para. 33 of my opinion; see in this regard: European Commission for Democracy through Law (Venice Commission), Report of Constitutional Amendment 44 (2010)). As opposed to that, as noted above, in no insignificant number of states, the constitutional courts have established their authority to review constitutional amendments and void them if the amendment violates the express limitations in the constitution (e.g., Germany) or implied constitutional limitations (e.g., India), even without that power being expressly set out in the constitutional text. In those systems, the court’s role is to ensure that the limitations upon amending the constitution will not remain purely declarative, and in cases in which the boundaries of the amending power are “breached”, it will be possible to protect that unchangeable constitutional core in practice.

70.       In Israel, the Basic Laws do not expressly refer to the question of jurisdiction to conduct substantive judicial review of the Basic Laws. Likewise, the constitution-in-formation does not comprise an eternity clause or a complete “basic structure” that can be pointed to at present, which makes it difficult to adopt a comprehensive unconstitutional constitutional amendment doctrine. However, even at this stage of the constitutional project, we can state that “‘Jewish and democratic’ are the Jachin and Boaz [I Kings 7:21 – trans.], the central pillars of the State of Israel” (Hasson, para. 1, per Justice I. Amit), and that suffices to establish a limitation – albeit narrow – upon the constituent power of the Knesset. Against this background, Justice Vogelman noted in Hasson that he tended to the approach that the authority to conduct judicial review “derives from the substantive limitations upon the power of the constituent authority. This, in order that those limitations not be rendered a dead letter” (ibid., para. 4 of his opinion; see and compare: ibid., para 4, per Justice Hendel; Academic Center, para. 35, per Deputy President (emer.) Rubinstein).

71.       I will begin hysteron proteron by saying that I am also of the opinion that in those rare cases in which the Knesset deviated from the boundaries of its constituent power, the Supreme Court sitting as High Court of Justice possesses the authority – and is even required – to declare that we are not concerned with a valid constitutional norm. As I will explain below, this conclusion derives directly from the unique characteristics of our constitutional structure and from the manner of exercising constituent power, which distinguishes our system from other legal systems and leads to the conclusion that the limitations upon the Knesset’s constituent power cannot be left unenforceable.

The Uniqueness of the Constitution-in-Formation “Israel style”

72.       The uniqueness of the Israeli constitutional project is expressed in three primary aspects: (1) the fact that it is built in stages, “chapter by chapter” over the course of decades; (2) the absence of a special procedure for adopting constitutional norms; (3) the exceptional control of the political majority – the Government, in particular – over the exercise of constituent power.

            Below, I will briefly address each of these aspects.

 

  1. “Chapter by Chapter”

73.       As opposed to the constitutions of other countries that were adopted upon the establishment of the state or pursuant to a revolution, war or other extreme change in national life, in Israel, upon the adoption of the Harari Decision and the dissolution of the constituent assembly (the First Knesset) without the adoption of a constitution, “the opportunity for adopting a constitution at the ‘revolutionary moment’ of the establishment of the state was lost” (Rubinstein & Medina, 76). The “Israel-style” constitution was, therefore, not completed in a single process and it is still being crafted “chapter by chapter” (Bar-On, 297-299; Academic Center, para 15, per Justice Vogelman). As a result, elements generally present in constitutions throughout the world have not yet been established in the Basic Laws, including some of the basic rights and the manner of amending the constitutional text (Basic Law: Legislation) (Bar-On, 297; Rivka Weill, “Shouldn't We Seek the People's Consent? On the Nexus between the Procedures of Adoption and Amendment of Israel’s Constitution,” 10 Mishpat Umimshal 449, 450 (2007) [Hebrew]). In addition, we are concerned with a process spread out over a long period, which has no counterpart in the constitutional history of other states, and that has no discernable end point (Mizrahi, 402). As a result, Israel finds itself in the unusual situation in which there is no single constituent assembly, and in practice, there have, at present, been 25 constituent assemblies whose members have changed every few years (or months) in accordance with the results of the Knesset elections. From a comparative perspective, as noted in the literature, “there is no example to be found of such a strange constituent assembly – all the known examples are of constituent assemblies elected specifically for that purpose, that addressed the adoption of a constitution over the course of a few months or years, and that then dispersed” (Iddo Porat, “Constitutional Politics and Regular Politics – The Nation Law, The Constituent Power Doctrine, and Constitutional Dualism,” 20 Democratic Culture 217, 246 (2021) [Hebrew] (hereinafter: Porat, “Constitutional Politics”)).

74.       Indeed, the fact that the Israeli constitution has not yet been completed justifies refraining from adopting a comprehensive doctrine of unconstitutional constitutional amendment. However, prolonging the completion of the constitutional project and its continuation over the course of decades increase the fear of the possible weakening of the founding narrative that defines our existence and that stood at the basis of the establishment of the state, and perhaps, Heaven forbid, even disengagement from it. Moreover, the view that there is no possibility for judicial review of the content of Basic Laws until the completion of the constitution serves as a negative incentive for the Knesset to continue to delay the adoption of a constitution (Hasson, para. 2, per Justice. A. Baron). The words of Justice G. Karra, in his dissent in Hasson, are apt in this regard:

If the argument of waiting for the completion of the constitutional project is accepted, then, under the aegis of the absence of arrangements for conducting judicial review, and despite the fact that the “project of adopting a constitution” has not yet ended even after over 70 years since the establishment of the state – the constituent authority will be found “immunizing” itself, de facto, from judicial review. Thus, on the face of it, it has the unbridled, unlimited ability to establish Basic Laws however it may see fit, including Basic Laws that materially violate fundamental democratic values. Such a “normative vacuum” cannot be tolerated (ibid., para. 9 of his opinion).

 

  1. The Absence of a Special Procedure for adopting Constitutional Norms

75.       Another characteristic that sets the Israeli constitutional project apart in comparison to other constitutions around the world is the fact that there is no real difference between the procedure for adopting a Basic Law and the procedure for enacting “regular” laws. The procedure for enacting Basic Laws is set out in the Knesset Rules of Procedure, and new Basic Laws can be adopted by a simple majority of those present in the chamber (see: Bar-On, 298). The same is true for amending an existing Basic Law. This is the case except in regard to entrenched Basic Laws, like Basic Law: The Knesset, which can only be amended by a majority of 61 members of Knesset in each reading. But in the normal course of events, that is the majority enjoyed by every coalition. In addition, there are a few provisions that can only be amended by a majority of 80 members of Knesset (secs. 9A(a), 44, and 45 of Basic Law: The Knesset, treating of postponing elections and suspension by means of emergency regulations; and secs. 6-7 of Basic Law: Jerusalem the Capital of Israel in regard to transferring part of the city to a foreign entity).

            Against this background, “the unbearable lightness of enacting and amending Basic Laws” has been emphasized on more than one occasion (Ariel Bendor, “Defects in the Enactment of Basic Laws,” 2 Mishpat Umimshal 443, 444 (1994) [Hebrew]; and see: Mizrahi Bank, 302; Hasson, para. 5, per Justice (emer.) Mazuz).  This Court has repeatedly called for the adoption of Basic Law: Legislation, which would establish a special, fixed legislative procedure that would distinguish adopting Basic Laws and their amendment from the process of enacting “regular” laws. Unfortunately, the adoption of this Basic Law remains in abeyance (Hasson, para. 91 of my opinion; and also see: Bar-On, 313; Shafir, para 3, per Justice Amit).

76.       The simple procedure by which constitutional norms can be adopted in Israel is markedly exceptional in relation to other states. A comparative survey recently conducted at the request of the legal advisor to the Constitution Committee examined the arrangements for amending constitutions in 22 western democracies (Gabriel Bukobza, “Arrangements for Amending Constitutions” (Knesset Research and Information Center, 2023)). All of the countries surveyed have a special, rigorous procedure for amending the constitution, which comprises at least one (and usually more) of the following mechanisms: ratification by two houses of the parliament; ratification of the amendment by a special majority (e.g., three-fifths or two-thirds); ratification of the amendment both by the federal legislature and by the states of the federation; ratification of the amendment only after elections for the parliament; ratification of the amendment by plebiscite. It would not be superfluous to note that the procedure for adopting a new constitution is generally “more burdensome than regular legislative process and separate from it” (Porat, “Constitutional Politics,” 227).  Thus, “in many countries, there are different procedures for amending the constitution, but there is no country that has a model similar to that of Israel, in which a constitutional amendment – i.e., the enactment of a new Basic Law or the amendment of an existing Basic Law – can be enacted by the regular legislative process, by a majority, in a single legislative house” (Amir Fuchs & Mordechai Kremnitzer, Distribution of Power, Not Separation of Branches: Preventing the Concentration of Political Power in Israel, 65 (Policy Paper 133, Israeli Democracy Institute, 2019) [Hebrew] (hereinafter: Distribution of Power)).

77.       In this regard, we should emphasize that there are significant reasons for maintaining a distinction between the enactment of regular laws – which, by there nature, are designed in accordance with the rules of “day-to-day politics” and expressed in a decision of a simple majority – and “constitutional politics” by which constitutional norms are adopted in a lengthy, deliberative, consensual process (Porat, “Constitutional Politics,” 218; Yoav Dotan, “A Constitution for Israel? The Constitutional Dialogue after the Constitutional Revolution,” 28 Mishpatim 149, 162 (1996) [Hebrew]; William Partlett & Zim Nwokora, “The Foundations of Democratic Dualism: Why Constitutional Politics and Ordinary Politics are Different,” 26 Constellations 177 (2019). Special, rigorous procedures for adopting and amending a constitution help prevent “constitutional grabs” by a “narrow” majority, ensure the stability of the most substantial arrangements of the political and legal system, require balancing and compromises among different sectors of the state, and grant the constitutional text broad legitimacy (Hasson, para. 2, per Justice Karra; Porat, “Constitutional Politics,” 230-236).

78.       Inherently, the more rigorous and burdensome the process required for amending the constitution, the weaker the justification for substantive judicial review of constitutional norms. This is so because meeting the complex requirements for amending the constitution is itself “a guarantee of a significant debate upon the content of the amendment and its appropriateness to the system” (Hasson, para. 12, per Justice Barak-Erez). For example, in the United States – where the Supreme Court refrains from conducting judicial review of constitutional amendments (see: Coleman v. Miller, 307 U.S. 433 (1939)) – a proposal to amend the Constitution will be adopted subject to its approval by two-thirds of each of the houses of Congress and ratification by three-quarters of the states. These are very rigorous demands, and it comes as no surprise that the last amendment to the Constitution (the 27th Amendment) was ratified over 30 years ago.

            As opposed to this, the Israeli system is a clear edge case in which the simple procedure for adopting constitutional norms grants a chance majority the possibility of fundamentally changing the state’s constitutional structure and the national identity quickly and easily (see and compare: Bar-On, 313; Academic Center, para. 102, per Deputy President Melcer, who was in the minority in regard to the result). Therefore, in Israel, there is justification for conducting substantive judicial review of Basic Laws in the absence of any of the other guarantees provided by a rigorous process like those found in other countries for adopting constitutional norms.

 

  1. Control of the Exercise of Constituent Power by the Political Majority

79.       As noted, our constitutional history has led to a situation in which the same body – the Israeli Knesset – exclusively holds both the legislative and the constituent powers. In other words, the same members of Knesset who are elected in parliamentary elections in accordance with their party affiliation are entrusted with enacting both “regular” laws and Basic Laws. Alongside that, the Israeli regime structure grants the government significant influence over legislation by means of such mechanisms as party discipline and the Ministerial Committee for Legislation (Matan Gutman, “The Coalition State: ‘Rubber Stamp” or “Cheerleading Squad’,” Salim Joubran Book 197 (Aharon Barak et al., eds, 2023) [Hebrew] (hereinafter: Gutman)). One might have expected that these mechanisms would be reserved for proceedings concerning the Knesset’s role as a legislative authority, as MK Yizhar Harari (for whom the Harari Decision was named) well expressed in his comments to the Knesset plenum in the debate on Basic Law: The President:

[…] in the matter of the constitution and the chapters of the constitution, there is a complete blurring between the present interests of the factions in supporting or opposing the government, and it would be well if, in general, the members of the Knesset would vote with complete freedom, because the constitution that we are adopting is not for this Knesset or this government, but rather for a period that I hope will be at least like that of the Constitution of the United States (Knesset Record, June 9, 1963, 2031).

            However, the reality is that this hope expressed by MK Harari was not realized. In practice, coalition discipline became an integral, inseparable part of our parliamentary system, which is also expressed in the proceedings for adopting Basic Laws (Amnon Rubinstein and Yuval Geva, “The use of Political Discipline in adopting Basic Laws” (ICON-S-IL Blog (March 25, 2020) [Hebrew] (hereinafter: Rubinstein & Geva)). The combination of the institutional identity of the Knesset as a legislature and as a constituent authority and the Government’s dominance in the legislative process lead to the Government holding “power (that it uses frequently) to create constitutional amendments and thereby change the Basic Laws, and with them, the rules of the game” (Distribution of Power, 66). Expressions of the political majority’s effective control over the adoption of Basic Laws can be found, inter alia, in the establishing of special “ad hoc” committees to consider proposals for Basic Laws instead of the permanent committees (see, for example, the joint committee established for the purpose of enacting Basic Law: The Nation; Hasson, para. 2 of my opinion), and in the signing of coalition agreements and specific undertakings to support initiatives for the adoption of Basic Laws, while denying Knesset members the possibility of forming an independent opinion on the matter (see: Ittai Bar-Siman-Tov, “The Law of Lawmaking,” 37 Iyunei Mishpat 645, 696 (20160 [Hebrew] (hereinafter: “Law of Lawmaking”)).

80.       Israel’s institutional structure thus increases the fear that long-term planning may be tainted by short-term political interests in a manner that may lead to very serious harm to the constitutional order (the Rotation Government case, para. 103, per Deputy President (emer.) Melcer). Thus, the political majority’s extraordinary control of the legislative process also adds to the need for judicial review of the content of Basic Laws (see and compare: Hasson, para. 2, per Justice Baron; Roznai, 219).

81.       The three structural aspects described above – adopting a constitution “chapter by chapter”, the absence of a special procedure for adopting constitutional norms, and the control of the exercise of constituent power by the political majority – and all the more so when taken cumulatively, make our constitutional system unusual by any standard. In this situation, leaving the limitations upon the Knesset’s power unenforceable and not subject to any possibility for the court to examine whether the Knesset exceeded its autority – even in extreme cases – presents a very serious problem. Justice (emer.) Mazuz emphasized this in Hasson, noting:

[…] the absence of a complete constitution, and the existence of an anomalous situation in which Israeli constitutional norms are, in practice, enacted by the regular legislative process, in the absence of institutional and procedural separation between legislating constitutional provisions and regular laws, and not in a rigorous, unique procedure for enacting a constitution or constitutional amendments as is usual in regard to constitutions throughout the world, gives rise to the need and importance of there being limitations upon the exercise of the constituent power and in conducting judicial review specifically at this stage (ibid., para 5 of his opinion).

 

            The Exercise of Constituent Power in Practice

82.       The problematic practice that has developed over the last few years for the adoption of Basic Laws also reinforces the need for substantive judicial review of Basic Laws.

            First, over the years we see a change in the conception of the role of the members of the Knesset in adopting chapters in our developing constitution. Thus, the process for adopting the first Basic Law – Basic Law: The Knesset – took a number of years, and the Basic Law was ultimately approved by a majority of 96 with none opposed. The Basic Laws addressing human rights – Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation – were, indeed, approved by a smaller majority and without opposition, but their adoption was preceded by a process that took several years. It began with the preparation of a government bill prepared by the Ministry of Justice and addressed in many meetings of the Government, and concluded with private member’s bills based upon that Government bill, which were supported by Knesset members of the coalition and the opposition factions as one (for a detailed discussion, see: Amnon Rubinstein, “The Knesset and the Basic Laws on Human Rights,” 5 Mishpat Umimshal 399 (2000) [Hebrew]; Uriel Lynn and Shlomi Loya, How the Israeli Political System was Changed: 1990-2020, 57-82 (2022) [Hebrew] (hereinafter: Lynn & Loya)). The then chair of the Constitution Committee, MK Uriel Lynn of the Likud faction, emphasized at the time of the approval of Basic Law: Human Dignity and Liberty in the second and third reading that: “This law was prepared with the understanding that we must create broad consensus of all the factions of the house. We were aware that we cannot adopt a Basic Law that anchors the values of the State of Israel as a Jewish and democratic state if we do not achieve a broad consensus of all the factions of the house” (Knesset Record, March 17, 1992, 3782). Two years later, a new version of Basic Law: Freedom of Occupation was approved along with an indirect amendment of Basic Law: Human Dignity and Liberty by a large majority of the Knesset (for a detailed discussion, see: Lynn & Loya, 82-83); Amichai Cohen, The Constitutional Revolution and Counter-Revolution 102-103 (2020) [Hebrew]). As opposed to that, the new Basic Laws approved over the last decade were adopted on the basis of the votes of the members of the coalition factions alone, while imposing the mechanism of coalition discipline (see: Constitutional Law, 696; Porat, “Constitutional Politics,” 252-253; Rubinstein & Geva). This would seem to accurately reflect the different times and the fact that over the last years, the task of adopting a constitution is no longer conceived as a joint national project but rather as an additional source of power in the hands of the chance political majority in the Knesset.

83.       Second, recent research has noted that since the adoption of the first Basic Law (Basic Law: The Knesset in 1958) and until January 2023, 139 changes have been made in the Basic Laws (see: Elad Gil, “Changing the Rules of the Game during the Game – An Israeli ‘Pathology’,” (Tachlit –Institute for Israeli Public Policy (Jan. 18, 2023) [Hebrew]). According to that research, that is the highest rate of constitutional change in the world by a large margin. For the sake of comparison, the Constitution of the United States has been amended 27 times, of them only 8 constitutional amendments in the last hundred years. If that were not enough, in the last eight years, the number of changes to the Israeli Basic Laws (an average of 4.75 changes per year) doubled in comparison to the number of changes (an average of 2.15 changes per year) over the decades since 1958. The research further found that 62% of the changes made to Basic Laws concerned Basic Law: The Knesset and Basic Law: The Government – in other words, the overwhelming majority of the rules that were changed directly concerned the authority of the members of the Knesset and the Government themselves, and over the last few years, a significant part of those regime changes were adopted immediately after the Knesset elections and prior to the formation of the Government (see, inter alia, the amendments addressed in the Rotation Government case and in Scheinfeld). In fact, as the above research also shows, over the last few years, the process of forming a Government is systematically accompanied by changes in the rules of the game in favor of the incoming Government. In this regard, I only recently noted in Scheinfeld that “it is hard not to see Amendment no. 11 to the Basic Law as a high point, or more accurately, a low point of that worrisome phenomenon that I noted in the Rotation Government case, in which members of the Knesset exploit the ease by which it is possible to amend the Basic Laws for specific political needs” (ibid., para. 43 of my opinion).

            Until now, this phenomenon of trivializing the Basic Laws was mentioned primarily in the context of the unconstitutional constitutional amendment doctrine, which examines, inter alia, whether a constitutional norm is actually a personal norm intended to serve a specific government or Knesset. Nevertheless, this phenomenon also illustrates the danger posed by leaving the limitations upon the constituent power as limitations “on paper” alone. Indeed, in view of the gaps that make it possible to change constitutional norms with such great ease, and the increasing willingness of the political majority to exploit those gaps, there would appear to be a problem in relying upon the self-restraint of the Knesset as the only check upon violating the core characteristics of the State of Israel as Jewish and democratic (see and compare: Roznai, 182).

84.       The Knesset noted in its Affidavit in Response that “[…] if, Heaven forbid, the Knesset were to adopt Basic Laws that would strike a mortal blow to the pride and joy of Israel’s democracy, it can be expected that the sovereign – the people – would lawfully protest and replace its members on election day” (para. 353 of the Affidavit in Response). In view of the core principles in the balance – the Jewish character and the democratic foundations of the state – I believe that this argument understates the severity of the danger presented by situations in which the Knesset deviates from its constituent power. I do not believe that waiting for “election day” (normally, every four years) provides a sufficient response to a situation in which a political majority decides to exploit the (easily exploited) opportunity to fundamentally change the existing constitutional system. This is particularly so because the rules for conducting the elections themselves can also be changed easily (with the exception of the entrenched provision regarding the date for holding elections).

85.       Under these circumstances, there is a need for an apolitical institution that can serve as an “external brake” upon such extreme situations in which the Knesset might breach the boundaries of its constituent power. Therefore, as will be explained below, there would seem to be no alternative to recognizing the possibility of conducting judicial review by this Court, sitting as High Court of Justice, in order to ensure an effective response in such edge cases.

 

The Court as the Proper Institution for Overseeing the Boundaries of the Power of Constituent Authority

86.       In my opinion, the conclusion that this Court is the appropriate body for guarding against a breach of the boundaries of the Knesset’s constituent power derives from the nature of its function.

            The Court is entrusted with protecting the fundamental concepts and values of Israeli society, and it serves as “the principal tool for ensuring the existence and respect of the constitution” (Mizrahi Bank, 317; and see: Eliahu Mazza, “Judicial Responsibility,” in Eliahu Mazza Book 995, 997 (Aharon Barak et al., eds., 2015) [Hebrew]). I addressed the role of the Court in Hasson:

One of the primary functions of the Court is “protecting the Basic Laws that are at the core of our legal system” […] Therefore, it can be argued that alongside the Court’s judicial review of primary legislation and administrative actions in order to ensure that they not lead to severe harm to values and principles grounded in the Basic Laws, it must make sure that  the Basic Laws themselves not comprise provisions that might strike a mortal blow to the core of the entire constitutional system, while denying Israel’s character as a Jewish and democratic state […] (Hasson, para. 34 of my opinion; and see: ibid., para. 8, per Deputy President (emer.) Melcer).

            The Court’s role in protecting the constitutional project is of particular importance in view of the unique character of Israel’s constitutional-institutional system, which I addressed above (and see: Shafir, para. 32 of my opinion). In fulfilling that role, the Court is currently required to prevent unjustified harm to the Basic Laws caused by regular legislation and administrative decisions, to enforce procedural requirements and “rigid” provisions, and to identify provisions in Basic Laws that, in terms of their character, do not belong at the constitutional level and whose penetration into the constitution-in-the making would lead to the erosion and trivialization of the status of Basic Laws. Conducting judicial review in those rare cases in which the Knesset deviates from its constituent power and from the (narrow) limits upon it in adopting Basic Laws is, in my opinion, entirely consistent with the Court’s role as the defender of the constitutional project.

87.       We should further bear in mind that one of the primary roles of this Court is to ensure that all governmental agencies act within the bounds of their authority. To that end, the Court is granted, inter alia, the broad authority to grant relief “for the sake of justice” and to issue orders to all state authorities under secs. 15(c) and 15(d)(2) of Basic Law: The Judiciary (see: HCJ 971/99 Movement for Quality Government v. House Committee [56] 140, 164-165 (hereinafter: HCJ 971/99); and see: Yoav Dotan, Judicial Review of Administrative Action, vol. I, 97-99 (2022) [Hebrew] (hereinafter: Dotan, Judicial Review); Zamir, “Administrative Authority,” 1590).

            As has been made clear on more than one occasion, substantive judicial review over the products of the constituent authority is restricted to the question whether the constituent authority exceeded its authority. Thus, it the Tal Law case, it was noted that “there are grounds for the view that a law or Basic Law that would deny the character of Israel as a Jewish or democratic state is unconstitutional. The people, the sovereign, did not empower the Knesset to do that. It was authorized to act within the framework of the fundamental principles of the regime. It was not authorized to abolish them” (ibid., 717, emphasis added); and see: Mizrahi, 394). Bar-On similarly mentioned the possibility that the Court might be called upon “to decide whether the Knesset has overstepped its constituent authority and violated the basic foundations of the state as a Jewish and democratic state” (ibid., 312, emphasis added); Hasson, para. 29 of my opinion, para. 6 per Deputy President (emer.) Melcer, para. 13 per Justice (emer.) Mazuz). As noted, the legal issue of deviation from authority is given to the Court, and it can, therefore, be brought for its decision to the extent that it may arise – in extreme, extraordinary cases – in regard to the adoption of a Basic Law or its amendment.

88.       Lastly, it should be emphasized that in Israel there is no body other than the Court, which is not involved in enacting constitutional norms, that can act as an “external brake” upon breaching the boundaries of constituent power (compare: Aharon Barak, The Judge in a Democracy 109 (2004) [Hebrew]). Parenthetically, I would note that in other countries in which the limitations upon amending the constitution are enforceable, the body generally authorized to conduct the task of review is the court (see: Roznai, 201 and 209).

89.       The Government Respondents and the Knesset raised a number of problems concerning the recognition of this Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

            According to the Government Respondents, recognition of the Court’s jurisdiction to conduct such judicial review would make Israel the only country in the world in which the Court “arrogates to itself authority to review constitutional amendments in the absence of an eternity clause, in the absence of a complete constitution, without being able to draw upon the basic structure of a nonexistent constitution” (para. 107 of the Affidavit in Response). This argument relies upon a comprehensive survey presented in their Affidavit in Response in regard to constitutional amendments in various countries. However, in my view, the question of judicial review of constitutional norms cannot be divorced from the constitutional environment in which they are adopted. In this regard, it is worth remembering that Israel is also the only country whose constitution remains in the process of creation for over seven decades, without any end date in sight; in which the political majority enjoys complete control over the adoption of the constitution-in-formation, and that has the power to approve constitutional norms in a very simple process that is identical to the process for approving regular legislation. Indeed, there is good reason for noting that “trying to learn from the experience of other constitutional systems in this regard is complex” (Hasson, para. 12, per Justice Barak-Erez).

90.       Another argument raised by the Knesset and the Government Respondents is that placing judicial review of Basic Laws in the hands of the Court – as a non-representative body – violates the principles of the sovereignty of the people. This argument cannot be accepted. Approving a Basic Law that would violate the core of the Jewish and democratic identity of the state does not express a realization of the sovereignty of the people but its opposite. It is a clear deviation from the limited power held by the Knesset when wearing the constituent authority hat that it was given in trust by the people (see and compare: Hasson, para. 5, per Deputy President (emer.) Melcer; Yaniv Roznai, “Radical Conservatism and the Unconstitutional Constitutional Amendment Doctrine,” ICON-S Essays: Essays in Public Law (2022) [Hebrew]). Indeed, “in a democratic state sovereignty rests in the hands of the people. The Knesset does not have sovereignty; neither does the government, nor the courts” (Mizrahi Bank, 399). Therefore, in exceptional circumstances in which the public’s elected representatives breach the people’s trust and deviate from their constituent power, the fact that the Court is not a representative body is not to its detriment in this regard. Its being an apolitical, independent body is what makes it the institution that the can provide an effective response in such edge cases (compare: Barak Medina, “Does Israel have a Constitution? On Formal and Liberal Democracy,” 44 Iyunei Mishpat 5, 29-30 (2021); Dotan, Judicial Review, 71).

91.       The Knesset and the Government Respondents further argue that judicial review of Basic Laws is incompatible with the holding in Mizrahi Bank that premised the authority to conduct judicial review of regular legislation upon the fact that Basic Laws are at the top of the normative pyramid. I find this argument perplexing. Mizrahi Bank focused upon the issue of the normative superiority of Basic Laws over regular legislation. But there is no necessary connection between the supreme status of one type of norm as opposed to a norm of a another type and the existence of limitations upon the power to create that superior norm (Barak, “Declaration of Independence,” 35). Indeed, the possibility of conducting judicial review in cases in which the Knesset might deviate from its constituent power was already mentioned in Mizrahi Bank, but resolving that issue was not required in that case (ibid., 394). In any case, to remove all doubts, we should make it clear that substantive judicial review of Basic Laws focuses upon maintaining the boundaries of the power of the constituent authority and does not rely upon the existence of any norms that stand above the Basic Laws in the normative hierarchy (compare: Hasson, para. 8, per Justice Sohlberg; and see: Alon Harel, “‘Jewish and Democratic’ – The Legal Justification for voiding Basic Laws,” Dyoma (Aug. 14, 2023) https://dyoma.co.il/law/1972).

            Another argument concerning Mizrahi Bank is that the unique structural characteristics of our constitutional system – like the ease in enacting Basic Laws – were already known, and nevertheless, they were given superior normative status, whereas now, those characteristics serve as a justification for conducting judicial review over the Basic Laws themselves. Indeed, no one disputes that the possibility of adopting and changing Basic Laws by a simple procedure is not ideal in a constitutional democracy. There have even been those of the opinion that this can justify, to some degree or other, denying their superior normative status (see, e.g.: Porat, “Constitutional Politics,” 222; and also see: Ruth Gavison, “The Constitutional Revolution – Reality or Self-Fulfilling Prophecy,” 28 Mishpatim 21 (1997) [Hebrew]). I consider this a far-reaching conclusion. It is possible to recognize that there are flaws in our constitutional system without relinquishing the important advantages that inhere in the existence of supreme constitutional norms that define the character of the state, express the “agreement upon the shared rules of the game”, ensure that all the actions of the governmental agencies will conform with them, serve as a source for interpreting all the legal norms, and that embody an important educational value for the entire nation” (Rubinstein & Medina, 54-55; and see: HCJ 1384/98 Avni v. Prime Minister [57] 210). On the contrary, recognizing the possibility of granting relief in those exceptional cases in which our system’s structural flaws may be exploited in a manner that might yield a destructive result defends the continued existence of the Israeli constitutional process.

92.       The Knesset and the Government Respondents further argue that the Court does not have the jurisdiction to perform judicial over Basic Laws because its authority derives from a norm of the same status, i.e., Basic Law: The Judiciary. This argument does, indeed, raise a theoretical problem of some significance, and I accept that the “constitutionality” of Basic Laws cannot be reviewed in accordance with the tests set out in the limitation clause by which the constitutionality of regular laws is examined (see: Ben Meir, para. 20 of my opinion; HCJ 1368/94 Porat v. State of Israel [58] (hereinafter: Porat)). A possible conflict between one Basic Law and another also does not, itself, constitute grounds for judicial intervention (Hasson, para. 49 of my opinion). Indeed, as long as we are concerned with a valid constitutional norm, and as long as the constituent authority acts within the boundaries of its authority, its actions are not subject to judicial review. This is the case in view of the fact that Basic Laws are to be “found at the apex of the positive normative hierarchy” (Hasson, para. 32 of my opinion).

            However, in those situations in which a Basic Law or an amendment to a Basic Law was adopted through a clear deviation from the boundaries of the Knesset’s constituent power, no valid constitutional norm was actually created. In other words, alongside the other conditions examined to date, among them the procedural requirements like changing a Basic Law by a particular majority in accordance with the “rigidity” clause (see and compare: Porat; Ben Meir, para. 10, per Justice Mazuz), and identifying a norm as one that is, indeed, on the constitutional level (in accordance with the abuse of constituent power doctrine) – it must be ascertained that the constituent authority acted with authority when it adopted it. If the constituent authority exceeded  its powers, the Court’s jurisdiction to conduct judicial review relies upon the fact that no valid constitutional norm was created that can be recognized as superior to other norms.

93.       Lastly, the Government Respondents point out that there is no place for permitting judicial review over Basic Laws inasmuch as if the constituent authority is intent upon destroying the democratic regime, a judgment of this Court will not prevent it from doing so. In this regard, they note that “a regime is not designed and authorities are not established on the basis of horror scenarios” (para. 279 of the Government Respondents’ Affidavit in Response).

            I take a different view. In my opinion, the need to forestall extreme scenarios is the basis for many constitutional arrangements, and in this regard, I need only turn to what was already decided in this regard in the 1980s: “[…] constitutional norms cannot be built on hopes. Basic principles of government are not shaped on the assumption that all will proceed as planned. Quite the contrary. The entire constitutional edifice is testimony to the realization that checks and balances must be provided” (HCJ 428/86 Barzilai v. Government [59] 606). Moreover, the Government Respondents’ argument ignores the possibility that the severe harm to the state’s democratic core might be carried out in stages, and that judicial review may aid in putting a stop to the democratic decline before the total collapse of the system (see: Rosalind Dixon & David Landau, “Transnational Constitutionalism and a Limited Doctrine of Unconstitutional Constitutional Amendment,” 13 Int’l J. Const. L. 606, 636 (2015)).

94.       Thus, having recognized that the constituent authority is not unrestricted and may exceed its authority, the problems raised by the Government Respondents and the Knesset do not, in my view, negate the need for judicial review to examine whether the Knesset deviated from its constituent power. This review is necessary given the unique structural characteristics of Israel’s constitutional project and the extremely problematic practice that has taken root in our system in all that relates to exercising constituent power. It is also consistent with the nature of the Court’s function and with it being the most appropriate (in fact, the only) body for carrying out such review.

            Therefore, I am of the opinion that in those extreme cases in which the Knesset adopts or changes a Basic Law such that it presents an element that facially denies or contradicts the core characteristics of Israel as a Jewish and democratic state, this Court’s authority to decide that the Knesset deviated from its constituent power and that the constitutional norm is invalid must be recognized.

95.       It is important to emphasize that the possibility of conducting substantive judicial review of Basic Laws is very exceptional. It derives from the Israel’s unique governance regime, and therefore, the Court must exercise it with maximum restraint and “take great care in order to prevent slipping into a ‘routine’ of petitions challenging Basic Laws or provisions in Basic Laws on the claim of deviation from constituent power” (Hasson, para. 13, per Justice (emer.) Mazuz).

            It is also important to emphasize that my conclusions in regard to the question of judicial review of the Knesset’s constituent power rely upon the existing constitutional situation. As has already been clarified in the case law of this Court: “The legitimacy of judicial review is tied, at least in part, to the process that led to the constitutional amendment. In other words, the more complex, inclusive, and comprehensive the work of the constituent authority, the greater the democratic legitimacy that will be ascribed to its results, and accordingly, the appropriateness of judicial review will decrease” (ibid., para. 2, per Justice Baron; Roznai, 219-220). Therefore, if a rigorous, dedicated process for adopting and amending Basic Laws is established in the future, it will be appropriate to reexamine the issue of judicial review in regard to Basic Laws adopted through that process. However, as long as that is not the constitutional reality, I am of the opinion that this Court’s jurisdiction to intervene in those extreme cases in which the Knesset exceeds its powers as a constituent authority should be recognized.

 

  1. Interim Summary

96.       The constitutional history of the State of Israel is exceptional and unusual. The promise to establish a constitution for the state – a promise expressly included in the Declaration of Independence – has not yet been realized even after more than 75 years. Instead, the Knesset decided to create our constitution “chapter by chapter” by means of enacting Basic Laws. In Mizrahi Bank, the Court affirmed that these Basic Laws are constitutional norms that stand at the apex of the normative pyramid. However, in that same matter, two questions were left undecided – one relating to a situation in which the Knesset may abuse the title “Basic Law”, and the second concerning a situation in which the Knesset might exceed its constituent power.

            Over the last few years, against the background of the improper trend of changing Basic Laws at a dizzying pace at the initiative of the political majority in the Knesset, the Court has been forced to address these questions. In regard to the first question, the Court employed the abuse of constituent power doctrine to examine whether arrangements established in a Basic Law were properly established at the constitutional level in terms of their formal-procedural characteristics. As for the second question, concerning the content of basic legislation, Hasson first made it clear that the power of the constituent authority is not unlimited, and that it is not authorized to facially deny or negate the core characteristics of the State of Israel as a Jewish and democratic state. Today, we must take another step and hold that in rare cases in which “the beating heart of the ‘Israel-style’ constitution” is harmed (Hasson, para. 18 of my opinion), this Court may declare that a Basic Law that reflects a deviation from the Knesset’s constituent power is void. This is the case in view of the unique structural characteristics of the Israeli constitutional system, and given the constitutional practice over the last years that demonstrates the ease by which our system can be changed fundamentally.

 

Part Two: Amendment no. 3 to Basic Law: The Judiciary

97.       Amendment no. 3 to Basic Law: The Judiciary, which is the focus of the petitions at bar, blocks any possibility of holding a judicial hearing or of issuing judicial orders in regard to the reasonableness of decisions by the Government, the Prime Minister, and the government ministers. The petitioners, as noted, pointed to three serious defects that they believe require the voiding of the Amendment. The first defect – which was the focus of the hearing on Sept. 12, 2023 – concerns the content of the arrangement. In this regard, it is argued that the Amendment inflicts very serious harm upon the core characteristics of Israel as a democratic state, and that the Knesset deviated from its constituent power in enacting it. The second defect focuses upon the formal characteristics of the arrangement. In this regard, the Petitioners argue that the arrangement established by the Amendment does not bear the hallmarks of a constitutional norm. Therefore, enacting it constituted an abuse of constituent power. The third defect concerns a list of serious defects that the Petitioners claim occurred in the process of adopting the Amendment.

I will begin hysteron proteron in saying that in Israel’s current constitutional situation, the amendment that is the subject of the petitions, which comprehensively abolishes judicial review of the reasonableness of all the decisions at the elected echelon, indeed inflicts severe harm to the principle of separation of powers and the principle of the rule of law. This severe harm to two of the clearest characteristics of the State of Israel as a democratic state can have significant, unprecedented influence upon the individual and upon the public as a whole. I am, therefore, of the opinion that there is no recourse but to hold that in adopting Amendment no. 3. The Knesset deviated from its constituent power and the Amendment must be declared void. In view of this conclusion, I will primarily address the reasons that ground it, and suffice with a few comments upon the other two defects raised by the Petitioners.

  1. Threshold argument: The ripeness of the petitions

98.       The Knesset is of the opinion that the petitions should be dismissed in limine because, in its view, the factual and legal foundation required for deciding upon the issues raised by the petitions has not yet crystallized. In this regard, it is argued that the consequences of the Amendment are not yet entirely clear and largely depend upon the manner in which the Amendment will be interpreted by the courts, its influence upon the operation of the Government and its ministers, and upon the Knesset’s ability to impose the duty of reasonableness upon the elected echelon. Under these circumstances, the Knesset argues, “it would be inappropriate to use the ‘doomsday weapon’ of voiding a Basic Law on the basis of doubts and speculations” (para. 358 of the Affidavit in Response).

99.       The ripeness doctrine, adopted by our legal system over the last few years, reflects the fundamental conception of restraint and caution that the Court exercises in conducting judicial review (Ben Meir, para. 3, per Justice Mazuz). This doctrine serves the Court as a tool for controlling and regulating the constitutional issues that need to be addressed and decided, and it concerns an evaluation of the point in time when it would be proper for the Court to examine a given issue (ibid.; HCJ 2311/11 Sabah v. Knesset [60] para. 12, per President Grunis (hereinafter: Sabah)). It is intended “to spare the Court from the need to address matters that are not yet ripe for a judicial decision because their claimed harm is purely speculative and may never come to pass” (HCJ 3803/11 Association of Capital Market Trustees v. State of Israel [61] para. 15. per Deputy President E. Rivlin; and see: HCJ 3429/11 Alumni Association v. Minister of Finance [62] para. 28, per Justice M. Naor).

100.     Typically, the question of a petition’s ripeness arises in situations in which the challenged legislation has not yet been implemented in practice. However, it has already been held that a lack of implementation is not itself sufficient to show that a particular petition is not ripe for deciding (see: Sabah, para. 15, per President Grunis; HCJ 1308/17 Silwad Municipality v. Knesset [63], para. 35 of my opinion). Thus, for example, it has been held that a petition is ripe for decision when the constitutional question that it raises is primarily legal and the response to it does not require a detailed factual situation or concrete implementation (Ben Meir, paras. 8-9 of my opinion; and see: HCJ 3166/14 Gutman v. Attorney General [64] para. 43, per President Grunis). It was further held that in deciding upon the ripeness of a petition, the Court must weigh the public interest in addressing it and consider the consequences of postponing the judicial decision upon the harm to the rule of law and legal certainty (Sabah, para. 16, per President Grunis).

101.     In my opinion, application of the ripeness doctrine is inappropriate in the case at bar. The questions raised by these petitions are purely legal questions that concern, inter alia, the extent of the Amendment’s harm to the core of the constitutional project and to the Knesset’s observance of the limitations upon it when wearing its constituent authority hat. The aspects necessary for deciding these questions were presented to us, and I do not think that a future factual development would materially contribute to deciding upon the petitions. In this sense, one can say that we have before us a real, clear dispute and a concrete implementation of the Amendment is unnecessary for its crystallization (see and compare: Hasson, para. 12 of my opinion).

            The Knesset argues that if unreasonable decisions are made by the Government, the Prime Minister, or one of the ministers in the future and a petition is filed arguing that the decisions are unreasonable in the extreme, “it will be possible to examine the consequences of the amended Basic Law on the basis of a concrete factual foundation” (para. 298 of the Affidavit in Response). This argument is surprising inasmuch as the Amendment expressly forbids the courts, including this Court, “to address” the reasonableness of decisions by the Government and its ministers. That being the case, it is not clear how the courts might address petitions in such matters, should they be filed. Similarly, the Knesset’s argument that the petitions be dismissed because the ramifications of the Amendment for the Government’s conduct and the effectiveness of Knesset oversight have not yet become clear also raises a considerable problem. This is so, inter alia, because the Amendment already directly influences the relationship between the individual and the government and is relevant to many decisions made on a daily basis by the Government and its ministers. Indeed, as the Knesset itself points out, there are already pending proceedings that raise arguments concerning the reasonableness of decisions by the elected echelon (para. 274 of the Affidavit in Response).

102.     Under these circumstances and given the clear public interest in addressing the petitions on the merits, I am of the opinion that the Knesset’s claim of a lack of ripeness should be dismissed.

 

  1. Examining the harm to the “core characteristics” of the State of Israel

103.     The Petitioners’ main argument – in which the Attorney General joins – is that the Amendment that is the subject of the petitions represents a deviation from the boundaries of the Knesset’s constituent power.

            The Knesset exceeds its constituent powers if it enacts a Basic Law or an amendment to a Basic Law that “denies or facially contradicts the ‘core characteristics’ that form the minimal definition of the State of Israel as a Jewish and democratic state” (Hasson, para. 29 of my opinion). The core characteristics of the State of Israel as a Jewish state as previously held in the case law are primarily – “the right of every  Jew to immigrate to the State of Israel, in which Jews will be a majority”; the Hebrew language as the country’s primary language; and the holidays, symbols and heritage of the Jewish people being part of the state’s identity (Tibi, 22). As for the democratic characteristics, reference is usually made to “recognition of the people’s sovereignty as expressed in free, equal elections; recognition of the core of human rights, among them dignity and equality, maintaining the separation of powers, the rule of law and an independent judiciary” (ibid., 23; and see: HCJ 1661/05 HCJ 1661/05 Gaza Coast Regional Council v. Knesset [65] 565, (hereinafter: Gaza Coast); HCJ 5026/04 Design 22 v. Rosenzweig [66] 53-54; EDA 1806/19                           Lieberman et al. v. Cassif et al. [67] para. 13 of my opinion (hereinafter: Cassif)).

            We are not concerned with a closed or comprehensive list, but to the extent that it is claimed that there are additional nuclear characteristics, they must reflect the core Jewish and democratic identity of the state at a level of importance similar to the characteristics noted above.

104.     The Hasson case addressed the question of how to examine the presence of harm to “the core characteristics” only in brief. That was the case inasmuch as in that matter there was no need to decide upon the Court’s jurisdiction to conduct substantive judicial review of Basic Laws.

            The matter before us requires that we decide that issue. Therefore, I will first address matters of principle raised by the parties in this regard.

105.     The Association and the other civil society organizations argued that Amendment no. 3 constitutes a deviation from constituent power in accordance with the standard established in Hasson. However, in their view, the reality of the Israeli regime requires establishing a lower bar for intervention in Basic Laws that would examine whether there was a disproportionate violation of a core principle of the constitution or of the Basic Law (paras. 251-260 of the Association’s Brief. This suggestion is based upon Roznai, 220-221).

            I cannot accept this suggested standard in regard to the Basic Laws. The very existence of judicial review of the contents of Basic Laws is no small matter. This review derives from Israel’s exceptional constitutional reality, as I noted (see paras. 72-83, above), and in my opinion, it is proper that it limit itself only to those edge cases in which a Basic Law will lead to unusual harm to the Jewish or democratic hallmarks of the state. I do not think that it would be proper in this regard to adopt tests materially similar to those that serve the judicial review of primary legislation and of administrative acts (see and compare: The Tal Law, 717; Ben Meir, para. 36 of my opinion).

106.     On the other hand, I am not of the opinion that the already high bar for intervention should be raised to the point that we will eviscerate the possibility of intervening in situations in which the Knesset exceeded its authority. In particular, and as opposed to the argument of the Knesset Legal Advisor in the hearing on Sept. 12, 2023, we emphasize that the question is not whether the Basic Law turns the State of Israel “into a state that is not democratic, i.e., a dictatorship” (p. 27 of the Transcript). The question that should be asked is whether the Basic Law or the amendment to the Basic Law causes harm to the core characteristics of the state that is so severe that it shakes the building blocks of our constitution-in-formation. To the extent that that is the case, the conclusion is that we are concerned with a Basic Law that exceeds the constituent power of the Knesset.

107.     Another argument raised by the Knesset in its Affidavit in Response is that judicial review of the content of basic legislation must be in accordance with the bar established in regard to disqualifying candidates and lists from participation in the elections, in accordance with sec. 7A of Basic Law: The Knesset (and compare: Weill, “Hybrid Constitution,” 566-567). In other words, according to the Knesset, intervention in a Basic Law is possible only if we are concerned with a constitutional change where supporting it would lead to the disqualification of a candidate or a list from standing for election. In my view, this approach compares apples with oranges. The tests established in regard to the grounds for disqualification in sec. 7A of Basic Law: The Knesset are all based upon the specific context of that section and in particular, upon the fact that disqualifying a candidate or list severely infringes the right to vote and to be elected, which is “the life breath of every democratic regime” (Cassif, paras. 3 and 12 of my opinion). The abuse of constituent power doctrine concerns an entirely different situation – it examines a completed constitutional product that was placed at the apex of the normative hierarchy and that affects the entire system. Establishing that such a provision in a Basic Law is invalid, in circumstances in which the Knesset exceeded its authority, is intended to remedy severe harm to the constitutional order, and it does not involve the a priori (sec. 7A of the Basic Law) or post facto (sec. 42A(3) disqualification of a person or list from the Knesset. That being the case, although, as in disqualifying candidates and lists, intervention in basic legislation should be reserved only for exceptional, rare cases, we must examine each of these issues in accordance with the standards relevant to the matter.

108.     Harm to the core characteristics can be in theory or in practice (see: Hasson, para. 30 of my opinion). In other words, there are two possible situations in which a deviation from constituent power may occur. One situation is that of a declaratory disengagement from the character of the state or from a specific core characteristic. For example, rejecting the definition of Israel as a Jewish state or rejecting the status of the Hebrew language. In cases such as these, even without examining the influence of the constitutional change in practice, it is clear that we are concerned with a change that facially contradicts the constituting narrative of the Israeli constitution, and it cannot be left in place without it leading to a fundamental change of the constitutional project.

109.     Harm in practice to the core characteristics of the state is a case of such a clear deviation from the Knesset’s constituent power that, should such a thing ever occur, grounds for the Court’s intervention would clearly arise. The cases in which the question might arise in regard to the Knesset’s exceeding its constituent power are primarily cases of actual harm to one of the core characteristics of the state. In such cases, we must seek out the effect of the constitutional change in terms of its result. This test cannot take place in a vacuum. In order to understand the nature and magnitude of the harm, we must examine, as a starting point, the existing constitutional system alongside the change in the Basic Law and decide whether, under the circumstances, any of the core characteristics of the state were negated or facially contradicted.

            We cannot rule out a situation in which a consecutive series of amendments to the Basic Laws will cumulatively lead to harm to the constitutional core (see and compare: Tom Ginsburg & Aziz Z. Huq, How to Save a Constitutional Democracy 90-95 (2018); David Landau, “Abusive Constitutionalism,” 47 UCLA L. Rev. 189 (2013)). However, particular care must be taken in this context, including in regard to the arguments raised by the Petitioners and the Attorney General that in the framework for examining the actual influence of an amendment to a Basic Law, weight should be given to other legislative initiatives that are “in the pipeline” but that have not yet been adopted. A fundamental principle that derives from the principle of separation of powers is that the Court does not examine bills before they have been approved and have made their way into the lawbook. This is so, inter alia, because it is not at all clear how they will be adopted in the end, if at all (see and compare: HCJ 1234/23 Arad v. Minister of Justice [68] para. 3; HCJ 1210/23 Oron v. Knesset Constitution, Law and Justice Committee [69] para. 3).

110.     In the matter before us, Amendment no. 3 to Basic Law: The Judiciary does not blatantly declare the abandonment of any particular core characteristic of our system. The severe harm pointed out by the Petitioners and the Attorney General is primarily focused upon the result. Therefore, we must examine the significance of the Amendment in practice, against the background of the existing constitutional situation in regard to those aspects addressed by the Amendment. I shall now proceed with that examination.

            C. The importance of judicial review of the Government’s actions

111.      The issue addressed by Amendment no. 3 is that of judicial review, or more precisely – the abolition of judicial review in all that concerns the reasonableness of decisions by the Government, the Prime Minister, and the ministers. As noted, in order to understand the significance and consequences of the Amendment, one must understand the broad constitutional context and the place of judicial review in our system. In the first part of this opinion, I noted the Government’s exceptional control over the proceedings for adopting Basic Laws. As will be explained below, this is but one aspect of the great, almost unlimited power concentrated in the hands of the ruling majority in Israel. Therefore, in the absence of an effective system of checks and balances, judicial review is, in fact, the only effective check upon that power.

112.     First, as already noted, in our parliamentary system the Government “controls” the Knesset in practice (Quintinsky, para. 39, per Justice Sohlberg). While the Government serves on the basis of the Knesset’s confidence, in practice, in the usual course of things, the Government enjoys an “automatic majority” in the Knesset, and it can be said that “in many ways, it is not the government that is the Knesset’s ‘executory agent’, but rather the Knesset is the government’s ‘legislative agent’” (Distribution of Power, 76). As already noted, this is expressed in the mechanisms of coalition discipline and the Ministerial Committee for Legislation, which lead to a situation in which, in effect, the Government – in particular the Prime Minister and the senior ministers (the “nucleus of control” of the coalition majority) – are the ones who decide the fate of bills in the Knesset (Gutman, 217; Amichai Cohen & Yaniv Roznai, “Populism and Israeli Constitutional Democracy,” 44 Iyunei Mishpat 87, 122-123 (hereinafter: Cohen & Roznai); and see: HCJ 2144/20 Movement for Quality Government v. Speaker of the Knesset [70] para. 11 of my opinion (hereinafter: Edelstein); Academic Center, para. 14, per Deputy President (emer.) Rubinstein). As noted, this Government control over legislative proceedings is also relevant to the enactment of Basic Laws, given the simple procedure required for their enactment or amendment, and this allows the Government to change the constitutional “rules of the game” as it sees fit.

            The institution of non-confidence, which is one of the Knesset’s primary tools for overseeing the Government, has also been significantly diminished over the years, and it now requires a vote of confidence in another Government by a majority vote of the Knesset (a system referred to as a “constructive vote of no confidence”; sec. 28 of Basic Law: The Government; for a detailed discussion, see: Rotation Government, paras. 4-5 of my opinion). This, while the Prime Minister, with the consent of the President, is granted the authority to dissolve the Knesset by means of an order (sec. 29(a) of Basic Law: The Government). This constitutes something of a challenge to the very principle that “the Government rules by virtue of [the confidence of] the Knesset and not the reverse” (Shimon Shetreet, The Government: The Executive Branch – Commentary on Basic Law: The Government 509 (Itzhak Zamir, ed., 2018) [Hebrew] (hereinafter: Shetreet).

            To this we should add additional aspects that strengthened the Government’s hold upon the Knesset over the last few years, first among them the lengthy tenure of transition governments that hold powers similar to those of a regular government, even though they do not act on the basis of the Knesset’s confidence (HCJ 6654/22 Kohelet Forum v. Prime Minister [72] para. 6 of my opinion (hereinafter: Kohelet Forum). We should also take note of the enactment of the “Norwegian Law”, which allows Members of Knesset who have been appointed as ministers or deputy ministers to resign from the Knesset such that they are replaced by the next in line on their list, but at the end of their tenure in the Government, they may return to serve in the Knesset in  place of the “replacement” Members of Knesset (sec. 42C of Basic Law: The Knesset; see: HCJ 4076/20 Shapira v. Knesset [73]). Thus, those “replacement” Members of Knesset may feel an excessive sense of obligation to the Government, knowing that their continued tenure depends upon its goodwill (Shetreet, 324-325). Over the last few years, the arrangement has been expanded in a manner that permits more ministers and deputy ministers to resign, and as of September 2023, more than a quarter of the Members of Knesset from the coalition replaced members of the Government who had resigned from the Knesset (para. 225 of the Attorney General’s affidavit).

            Against this background, it can be said that “the Government shook the Israeli system of government, almost completely eradicated the distribution of powers between the political branches, and at present, it effectively concentrates both executive and legislative power in its hands” (Gutman, 198).

113.     Despite the unprecedented power concentrated in the executive-legislative branch, which makes it a kind of “super branch”, there is almost no limitation upon that power. It is worth noting in this regard research that examined five mechanisms for the distribution of political power in 66 countries classified as “free countries’ by Freedom House: (1) separation of the legislature into two bodies or “houses”, (2) a presidential system that creates a clear separation between the legislature and the executive, (3) a federal system based upon a division of power between the central government and the “states” of the federation, (4) a regional system of elections that requires elected representatives to grant weight to “local” interests, (5) membership in international bodies like the European Union or regional human rights courts that influence the conduct of the state (see a summary of the research in Cohen & Roznai, 117-122; for a more detailed discussion, see Amichai Cohen, Checks and Balances: The Override Clause and Its Effect on the Three Branches of Government 14-23 [Hebrew] (hereinafter: Cohen, Checks and Balances). The research found that Israel is the only country that has none of those structural limitations upon the power of the political majority (Cohen & Roznai, 122). To that we should add the fact that Israel does not have an entrenched, stable constitution that provides significant protection from governmental power. Prof. Itzhak Zamir described this well:

[…] I doubt that there is another democratic country in the western world in which the Government enjoys as much power as the Government in Israel. As opposed to that power, the system of checks and balances that is accepted throughout the world as a vital system for preventing abuse of governmental power is more meagre and weaker than in other democracies (Zamir, Administrative Power, 3610).

114.     Under these circumstances, judicial review over the legislative and executive branches in Israel is the only effective mechanism that can serve to limit the centralized power of the majority in any real way (Cohen, Checks and Balances, 25; Distribution of Power, 64). There are, of course, gatekeepers and other oversight and control mechanisms in our system (see: Zamir, Administrative Power, 2319-2320), but judicial review is the most important mechanism in the state’s system of checks and balances (ibid., 101), and “without it, governmental discretion becomes unlimited, and nothing is more foreign to the democratic character of our system” (Gaza Coast, 756).

115.     The primary institution responsible for conducting judicial review in our system, particularly when Government and ministerial decisions are concerned, is the Supreme Court sitting as High Court of Justice (see: Daphne Barak-Erez, Administrative Law, vol. 4 – Procedural Administrative Law 49 (2017) [Hebrew] (hereinafter: Barak-Erez, Procedural Administrative Law)). This Court was given broad authority to grant relief for the sake of justice and to issue orders to all state authorities, which has its roots in the Mandatory period (art. 43 of the Palestine Order-in-Council, 1922-1947 (hereinafter: the Order-in-Council); sec. 7 of the Courts Ordinance, 1940), as well as in “regular” legislation (sec. 7 of the Courts Law, 5717-1957), and as noted, it is now anchored in the provisions of sec. 15 of Basic Law: The Judiciary, which grounded the status of the High Court of Justice as “a foundation stone of the system of checks and balances between the branches in Israel (Barak-Erez, Procedural Administrative Law, 51; and see: HCJ 971/99, 140).

116.     Given the fact that the system of checks and balances in Israel is ab initio weak and fragile, significant harm to the jurisdiction of the courts – and the High Court of Justice in particular – to conduct judicial review may bring about a facial contradiction in regard to at least two of the core characteristics of the State of Israel as a democratic state – the separation of powers and the rule of law, regarding which is has already been stated:

The rule of law cannot be maintained in the absence of judicial review […] Indeed, the effective existence of law requires effective judicial review. Without judicial review over the executive branch, the separation of powers is undermined. With it, human liberty is impaired and the foundations of a free regime are impaired (HCJ 294/89 National Insurance Institute v. Appeals Committee [74] 450 (hereinafter: National Insurance Institute) (emphasis added); compare: Zamir, Administrative Power, 98).

D.        The significance of the Amendment

117.     Having addressed the Israeli constitutional reality in which Amendment no. 3 to Basic Law: The Judiciary was adopted, I will now examine the Amendment itself.

            D.1.     Interpretation of the Amendment

118.     In order to provide a complete picture, I will present the full text of sec. 15 of Basic Law: The Judiciary, to which the amending provision was added in sec. 15(d1):

                        The Supreme Court

                        15. (a) The seat of the Supreme Court is Jerusalem.   

(b) The Supreme Court shall hear appeals against verdicts and other rulings of the District Courts.   

(c) The Supreme Court shall also sit as a High Court of Justice. When so sitting, it shall deliberate matters in which it deems it necessary to provide relief for the sake of justice, and are not under the jurisdiction of another court or tribunal.   

(d) Without prejudice to the generalness of the provisions in clause (c), the Supreme Court sitting as High Court of Justice, is authorized -     

(1) To grant orders for the release of persons unlawfully detained or imprisoned;   

(2) To grant orders to state authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law, to act or refrain from acting while lawfully exercising their duties, and if they were unlawfully elected or appointed - to refrain from acting;   

(3) To grant orders to courts, to tribunals, and to bodies and persons with judicial or quasi-judicial authority under the law - save courts that this law relates to, and save religious courts - to deal with a certain matter, or avoid dealing with, or continue to deal with a certain matter, and cancel a proceeding held or a ruling given unlawfully;    

(4) To grant orders to religious courts to deal with a certain matter on the basis of their jurisdiction, or  to avoid dealing or continuing to deal with a certain matter that falls outside their jurisdiction, provided that the court shall not entertain a request under this paragraph, should the appellant not have raised a question  of jurisdiction at the earliest opportunity that he had;  and if he did not have a reasonable opportunity to raise the question of jurisdiction before the ruling by the Religious Court, the court is entitled to quash a proceeding that took place, or a ruling that was given by the Religious Court without authority.   

(d1)      Notwithstanding what is stated in this Basic Law, a holder of judicial authority under law, including the Supreme Court sitting as the High Court of Justice, shall not address the reasonableness of a decision by the Government, the Prime Minister or a Government Minister, and will not issue an order in such a matter; in this section, “decision” means any decision, including in matters of appointments, or a decision to refrain from exercising authority.

(e) Other powers of the Supreme Court shall be prescribed by law. 

119.     The parties to these proceedings disagree as to the interpretation of sec. 15(d1) of the Basic Law. The Knesset is of the opinion that the Amendment can be construed narrowly such that it would apply only to the reasonableness standard as set out in Dapei Zahav, and not to “absurd” decisions that could have been voided on the basis of the standard as it was prior to that judgment. According to the Knesset, this construction, along with the broad construction of other laws and standards of review would lessen the problems raised by the Amendment, and that is preferable to its being voided.

120.     All the other parties to the petitions – the Petitioners, the Attorney General, and like them, the Government Respondents and the Chair of the Constitution Committee as well – do not agree with the Knesset’s position and are all of the opinion that such narrow interpretation is not possible. The Petitioners emphasize that the interpretation suggested by the Knesset would actually constitute judicial lawmaking, and that “absurdity” is part of the reasonableness standard that cannot be addressed separately from it (see: paras. 103-105 of the Summary Brief of the Petitioners in HCJ 5659/23; and pp. 123-154 of the Transcript of the hearing of Sept. 12, 2023). The Attorney General is of the opinion that adopting a construction that would narrow the application of the Amendment to a particular meaning of “reasonableness” or to a particular category of “decisions” is not consistent with the language of the Amendment, contradicts the constituent intent – which expressly rejected those distinctions in the framework of the legislative process – and it constitutes a kind of redrafting of the arrangement by the Court (paras. 428 and 435 of the Attorney General’s affidavit).

            The Government Respondents are also of the opinion that there is no place for adopting such a narrow construction. In their view, it contradicts the language of the Amendment and the constituent intent, and they emphasize that in the absence of an actual possibility to distinguish the various meanings of the reasonableness standard, the constituent authority chose to make a “conclusive distinction” that would limit the boundaries of the standard on the basis of the identity of the decision maker alone. Therefore, it is the position of the Government Respondents that the Amendment should be construed in a manner that applies it to “any and every type” of reasonableness “even if someone might think that the decision was unreasonable in the extreme in accordance with Wednesbury” (para. 45 of the Government Respondents’ Supplemental Pleadings); and see: the statement of the Government Respondents’ attorney at pp. 60-63 of the Transcript of Sept. 12, 2023). The Chair of the Constitution Committee, MK Rothman, expressed a similar view, noting that the Amendment prevents all judicial review of the reasonableness of decisions by the elected echelon in all the senses of the standard (pp. 37-39 of the Transcript of Sept. 12, 2023).

121.     The question before us is, therefore – as the Knesset’s attorney suggested – is it possible to interpret the Amendment in a manner that limits its application only to a particular meaning of “reasonableness”?

            I do not think so. In my opinion, such a construction lacks any foothold in the language of the Amendment, it expressly contradicts the legislative history and the subjective purpose of the Amendment, and deviates from the legitimate boundaries of interpretation, as will be explained below.

122.     Indeed, we have a rule that “it is preferable to limit the scope of a law through interpretation, rather than achieve that very same limitation by declaring a part of that law as being void” (HCJ 4562/92 Zandberg v. Broadcasting Authority [75] 814 (hereinafter: Zandberg); and see: HCJ 9098/01 Ganis v. Ministry of Building and Housing [76] (hereinafter: Ganis); HCJ 781/15 Arad Pinkas v. Committee for Approval of Embryo Carrying Agreements [77] para. 21 of my opinion (hereinafter: Arad Pinkas)). This rule in regard to the preference for employing interpretative tools rather than addressing the validity of the law, which was established in regard to the interpretation of primary legislation, is all the more appropriate to the interpretation of Basic Laws (Hasson, para. 59 of my opinion).

123.     However, interpretation, and constitutional interpretation in particular, must be grounded in the language of the text, and it is first and foremost derived from it (Aharon Barak, Interpretation in Law – Constitutional Interpretation 135 (1994); Aharon Barak, “The Interpretation of Basic Laws,” 22 Mishpatim 31, 34-35 (1992). In this regard, it has been held:

The constitutional reasons that limit the power of a judge as an interpreter apply with full force when the judge interprets a constitutional text. Specifically in this situation, he must demonstrate great caution not to cross the linguistic border and create a new constitutional text (HCJ 2257/04 Hadash-Ta’al Faction v. Chair of the Central Elections Committee for the 17th Knesset, [78] 710).

            Therefore, the language of the constitutional text is always the starting point for the interpretation of its provisions. The linguistic basis, although it is not the only element in translation, it the one that distinguishes between “the writing of a new work and the interpretation of an existing work” (Aharon Barak, Interpretation and Judging: Principles of an Israeli Theory of Interpretation,” Selected Essays, vol. 1, 121, 138 (2000) [Hebrew]; and see: CA 8569/06 Director of Land Taxation v. Polity [79] 307 (hereinafter: Polity); CFH 5783/14 Tzemach v. El Al Israel Airlines, Ltd. [80] para. 52).

124.     I have not lost sight of the interpretive principle established in regard to restricting judicial review – which is the subject of the Amendment – according to which the legislature is presumed not to intend to infringe the authority of the Court and therefore, such legislation should be interpreted “strictly and narrowly” (National Insurance Institute, 451; HCJ 212/03 Herut v. Cheshin [81] 756 (hereinafter: Herut)). However, this is not a presumptio juris et de jure and the said rule can be rebutted where a legal provision adopts “explicit and unequivocal language that leaves no room for doubt” (HCJ 403/71 Alkourdi v. National Labour Court [82] 72) (emphasis added); and see: National Insurance Institute, 451; HCJ 1260/19 Kramer v. Ombudsman of Public Complaints against State Representatives [83], para. 11).

125.     In my opinion, the comprehensive, unqualified language of the Amendment is, indeed, “explicit and unequivocal”. It lacks any foothold for the suggested narrow interpretation, and leaves “no room for doubt” as to the application of the Amendment to the reasonableness standard in its entirety. In my view, according to its language, there are no grounds for the proposed distinction among various understandings of the reasonableness standard as it has developed in the case law, and in this regard, it was already held in another matter that: “the judge interprets a text created by the legislature, and even realizing a goal, as lofty as it may be, requires an ‘Archimedean point’ in the language of the law. Deviation from this principle goes to the very root of the matter and is incompatible with the accepted principles of interpretation” (Polity, 303; and see: Zandberg, 803; Aharon Barak, Interpretation in Law – Statutory Interpretation 83 (1993) [Hebrew] (hereinafter: Barak, Statutory Interpretation)).

126.     An examination of the linguistic meaning of the term “reasonableness”, as it has developed and taken root over the years in the case law of this Court in all that concerns judicial review of the exercise of discretion by an authority, demonstrates that in the absence of express linguistic grounds, it is no longer possible to distinguish among the various senses of the standard. In other words, the term “unreasonableness” means, inter alia, also absurdity. Therefore, abolishing the reasonableness standard in accordance with the distinction established by the Amendment concerning the identity of the decision maker, necessarily leads to its abolition even in regard to absurd decisions by that group.

            As was explained in detail at the beginning of this opinion, the reasonableness standard has been part of our legal system since the earliest days of the state. In the beginning, the standard allowed for the voiding of an administrative decision if it was found to be “absurd”, “illogical” or “outrageous”, in a manner similar to the English standard established in Wednesbury (Binenbaum, 385-386; Dizengoff, 1039). The broadening of the reasonableness standard is usually ascribed to the judgment in Dapei Zahav, although, in fact, this Court had previously voided administrative decisions on the basis of improper balancing of the relevant interests, even if it did so without expressly noting the reasonableness standard (see, e.g.: Kol Ha’am; HCJ 243/62 Israel Film Studios. v. Levi Geri [84]). The connection between the meaning of the term “reasonableness” as simply absurd and its also applying to a defect in balancing the various relevant considerations was already expressly noted in Dakka, which was handed down years before Dapei Zahav, and in which Justice Shamgar held that the reasonableness standard could also lead to the voiding of administrative decisions where “the relevant considerations were granted proportions so distorted in relation to one another that the final decision became inherently absurd and therefore absolutely unreasonable” (ibid., 105 (emphasis added)).

127.     Thus, we find that Dapei Zahav was not created in a vacuum. It relied upon extensive case law of this Court that had developed in accordance with the principles of Common Law and added to the narrow meaning of the unreasonableness standard, which focused upon the absurdity of the decision, a broader test that examined the balance struck by the authority among the various considerations before reaching the decision. This does not mean that absurd decisions no longer fall within the scope of the term “reasonableness”. As noted in Dakka, giving distorted weight to the various relevant considerations in making an administrative decision may demonstrate its absurdity and thus also its unreasonableness. This Court has reiterated this point over the course of the last decades in a series of judgments. Thus, for example, Ganor noted that “the source of the unreasonableness of the Attorney General’s decision is in a material deviation that goes to the very heart of the matter, to the point that the final decision is inherently absurd and therefore completely unreasonable” (ibid., 523 (emphasis added); and see, inter alia: HCJ 910/86 Ressler v. Minister of Defense [85] 503 (hereinafter: Ressler); HCJ 581/87 Zucker v. Minister of the Interior [86] 545; Pinhasi, 464; HCJ 320/96 Garman v. Herzliya City Council [87] 239; HCJ 5331/13 Tayib v. Attorney General [88] para. 28, per Justice Rubinstein).

128.     In accordance with the long-standing principles of administrative law, absurdity is thus rooted in the reasonableness standard, and in the absence of express linguistic grounds, it is not possible to establish an arbitrary interpretive boundary that would break the standard down into it parts and sever the existing relationship among all its meanings.

            Therefore, as the Government Respondents and the Chair of the Constitution Committee also emphasized in their arguments, the clear, unequivocal meaning of the language of the Amendment is that it prevents all judicial review of the elected echelon on the basis of the reasonableness standard in all its senses, including absurd decisions.

129.     Even if I were to assume, only for the sake of argument, that the language of the Amendment can somehow bear the construction proposed by the Knesset’s attorneys, it is hard to ignore the fact that this interpretation clearly contradicts the subjective purpose of the Amendment, as it can be understood from its legislative history and as it is understood by all those involved in its enaction, among them the Knesset Legal Advisor himself. Thus, throughout the legislative process, the legal advisors to the Committee and the Government, as well as jurists and other professionals addressed the problems that inhered in the comprehensive, unqualified language of the proposed amendment, which entirely rules out judicial review on the basis of the reasonableness standard without distinguishing among its various meanings or among different types of decisions of the elected echelon. This position was already expressed, inter alia, in the Preparatory Document of June 23, 2023, in which the Committee’s legal advisor pointed out to the Committee that the proposed amendment does not abolish the reasonableness standard only in its sense in Dapei Zahav, but categorically abolishes its use, even in the narrow sense of “absurdity” (p. 8 of the Preparatory Document).

130.     Although the Explanatory Notes of the Amendment Bill, as presented for the first reading on July 5, 2023, included a quote from Dapei Zahav in order to describe the reasonableness standard today, and noted that it has been argued in regard to the reasonableness standard in this sense that “establishing a value-based balance among the various considerations related to an administrative decision should be given to the public’s elected representatives and not to the court”. However, the Committee’s legal advisor, Advocate Blay, again explained even after the publication of the Explanatory Notes, that the wording of the Amendment “does not leave a standard of extreme unreasonableness in the sense of absurdity in regard to elected officials” (Transcript of meeting 121, p. 11). In other words, in the opinion of the Committee’s legal advisor, who composed the Explanatory Notes (see: the clarification by MK Rothman and the Knesset’s attorney in the hearing before us, pp. 38, 193-194 of the Transcript of the hearing on Sept. 12, 2023); para. 6(d) for the Knesset’s Supplemental Brief), the mention of Dapei Zahav in the Explanatory Notes does not mean that the Amendment was intended to apply to the reasonableness standard only in the sense addressed there. A similar view was expressed by the Deputy Attorney General, Advocate Limon, who was of the opinion that we are concerned with a most extreme proposal that “entirely annuls the Supreme Court’s case law on the subject of reasonableness, not only the judgment in Dapei Zahav […] but from the earliest days of the state” (Transcript of meeting 121, p. 33). The members of the Committee also addressed the problem inherent in the proposed amendment that, in effect, comprehensively abolishes the reasonableness standard in all its senses. Thus, for example, MK Gilad Kariv argued that the Amendment Bill “grants immunity even to extreme unreasonableness or absurdly unreasonable decisions by the political echelon. You are not proposing a return to the situation prior to Dapei Zahav” (Transcript of meeting 105, p. 100; and see the position of MK Orit Farkash-Cohen in the Transcript of meeting 126 of the Constitution Committee, the 25th Knesset, 94 (July 16, 2023) (hereinafter: Transcript of meeting 126).

131.     Against the above background, various alternatives were proposed in the Committee’s meetings for softening the comprehensive language of the Amendment. However, these proposals were expressly rejected by the Chair of the Committee and the coalition’s representatives on the Committee. The Chair of the Committee, MK Rothman, who initiated the Amendment, noted that there is no way “to draw the line” between the various meanings of the reasonableness standard and that adopting the proposed distinctions would lead to a blurring of its standard’s boundaries by the Court and would effectively empty the Amendment of meaning (Transcript of meeting 105, p. 113; Transcript of meeting 125, p. 15). Therefore, MK Rothman was of the opinion that there is no alternative to the comprehensive abolition of the reasonableness standard in regard to all decisions of the elected echelon, and in all the senses of the standard. In the course of presenting the Amendment Bill to the Knesset for a second and third reading, MK Rothman added in this regard:

Others proposed to return to the unreasonableness standard of Wednesbury, but this solution, as many have noted, does not prove itself, since Justice Barak himself in the Dapei Zahav judgment claimed that he was relying upon the extreme unreasonableness standard. […]

Therefore, it is proposed to establish in Basic Law: The Judiciary […] that a judicial authority will not be able to address the matter of the reasonableness of the Government in a plenary session […] of the Prime Minister, or of another minister, or issue an order against any of them in regard to the reasonableness of its decision, whether by virtue of the original reasonableness standard or whether by virtue of the new reasonableness standard, and that also in regard to appointments and decisions not to exercise authority […] as far as I am concerned, and I believe that I am speaking on behalf of the members of the coalition of course, these [things] reflect the principles and foundations grounding this bill (Transcript of session 97 of the 25th Knesset, 551-552 (July 23, 2023) (emphasis added).

132.     Thus, tracing the legislative history of the Amendment shows that the Amendment’s silence in regard to the term “reasonableness” is not a “legislative mishap” or the result of not taking a stand on the issue, which needs to be remedied through interpretation (see and compare: CA 108/59 CA 108/59 Pritzker v. Niv [89] 1549; Herut, 759). On the contrary, the comprehensive language of the Amendment was the result of a conscious choice of the drafter who sought to prohibit the use of the reasonableness standard in regard to all decisions at the elected echelon and in regard to every sense of the standard. Under these circumstances, interpretation that seeks to narrow the scope of the Amendment only to the reasonableness standard in its sense in Dapei Zahav is not only incompatible with the language of the provision, but also clearly contrary to the subjective, declared purpose of the Amendment.

133.     Actually, even the Knesset’s attorney emphasized that “from the language of the amended Basic Law, it would appear that the amended Basic Law applies to reasonableness in all its aspects, without distinguishing between the traditional reasonableness standard and the new reasonableness standard” (para. 14 of the Knesset’s Supplemental Brief). He also does not dispute that the subjective purpose leads to the same conclusion. However, according to his approach, the Basic Law should not be interpreted on the basis of those tests, and that primacy should be given to the principle that “narrow interpretation of a law should be preferred to its being voided” (ibid.).

134.     Indeed, according to the doctrine of purposive interpretation employed in our system, the subjective purpose is only one element of interpretation, and as a rule, it should not be given decisive weight over the objective purpose, which treats of the values and principles that a legislative act is intended to realize in a modern democratic society (Barak, Statutory Interpretation, 202; Anti-Corruption Movement, para. 62, per Deputy President Vogelman; HCJFH 5026/16 Gini v. Chief Rabbinate [90] paras. 24-25, per President Naor). However, while there is no doubt about the existence of important objective purposes that will be realized if the Amendment is subjected to narrow interpretation, I do not believe that, under the circumstances, they can be granted primacy over the express language of the Amendment and its declared subjective purpose.

135.     In my opinion, this conclusion derives from the inherent limitations upon interpretation. Thus, the fundamental principle in our system states that we are obligated to seek out an interpretive solution that will avoid the need to decide upon the validity of a piece of legislation (see, among many: HCJ 3267/97 Rubinstein v. Minister of Defense [91] 524 (hereinafter: Rubinstein); HCJ 5113/12 Friedman v. Knesset [92] para. 5, per Justice Arbel; Anti-Corruption Movement, para. 31, per Deputy President Vogelman). However, at times, the Court is forced to decide that no such interpretation is possible. This is particularly the case when such an interpretation is artificial and leads to emptying the legal arrangement of all content or leads, in practice, to rewriting the law (see: HCJ 7146/12 Adam v. Knesset [93] 848; HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government [94] para. 200, per Justice Vogelman (hereinafter: Eitan); Arad Pinkas, para. 21 of my opinion; and see my comment in this regard in HCJ 5469/20 National Responsibility - Israel My Home v. Government of Israel [95] para. 39 of my opinion).

            Such is the case before us. In my opinion, an interpretation that would narrowly construe the application of the amendment that abolishes the reasonableness standard in regard to the elected echelon only in its sense in Dapei Zahav would be a dubious interpretation that would effectively constitute a redrafting of the Amendment by the Court in a sense that would be completely different from that of the existing Amendment. This is all the more so because we are concerned with interpretation that touches upon the core of the constitutional arrangement and not its ancillary aspects, such as the time of its entry into force (see, e.g., Ganis, 258; Anti-Corruption Movement, paras. 33-34, per Deputy President Vogelman).

136.     For all the above reasons, I do not believe that we can adopt the distinction among the various meanings of the reasonableness standard proposed by the Knesset in regard to the application of the Amendment by means of interpretation. My conclusion is, therefore, that the Amendment should be interpreted in accordance with its plain meaning, i.e. – as a provision that comprehensively abolishes judicial review on the basis of the reasonableness standard, in all its senses, as regards decisions by the Government, the Prime Minister, and the ministers.

 

            D.2.     The language of the Amendment – extreme and exceptional

137.     Before addressing the significance and consequences of the amendment that is the subject of the petitions. I would like to dwell upon the language of the Amendment and point out five different aspects that testify to how extreme and exceptional it is:

            First, as explained above, the Amendment relates to all the senses of the reasonableness standard, and therefore prevents intervention even in absurd, patently unreasonable governmental decisions as long as they so not comprise any other administrative defect.

            Second, the Amendment applies to every court, and in effect to any “holder of judicial authority under law”, including the High Court of Justice that is granted general authority to grant “relief for the sake of justice” in accordance with sec. 15 (c) of Basic Law: The Judiciary. The fact that the Amendment explicitly abolishes even the jurisdiction of the Hight Court of Justice in this regard testifies to its extremeness in comparison to other provisions that limited recourse to the courts but that were interpreted as leaving the possibility, in principle, of filing a petition to the High Court of Justice (see, among many examples: HCJ 76/63 Trudler v. Election Officers [96] 2511-2512; HCJ 68/07 Robinson v. State of Israel [97] para. 3).

            Third, the Amendment not only prevents granting relief by virtue of the reasonableness standard in regard to the elected echelon (“will not issue an order”), but also prevents the very addressing of the question of the reasonableness of those decisions (“shall not address”). In other words, following the Amendment, a person who is directly harmed by a decision of a minister due to unreasonableness will not be able to bring that matter before the Court.

            Fourth, the Amendment applies to every decision, as long as it was made by the Government, the Prime Minister, or a Government Minister. To remove all doubt, the end of the section clarifies (“‘decision’ means any decision, […]”). The case law and legal literature have noted more than once in regard to the reasonableness standard that the judicial review derives from the type of decision made and from the nature of the authority exercised (HCJ 2533/97 Movement for Quality Government v. Government [98] 57-58; HCJ 1163/98 Sadot v. Prisons Service [99] 846; Barak-Erez, Administrative Law, 762-757; Rubinstein & Medina, 223).  It has been held in this context in regard to decisions by the Government or any of its members that “the bounds of the ‘range of reasonableness’ […] widen or narrow depending on the type of the power exercised” (Hanegbi 2003, 841). Nevertheless, the Amendment applies comprehensively to all decisions, without exception. The Amendment does not distinguish between Government decisions that establish broad policy and “individual” decisions that are made on a daily basis and directly affect the personal matters of a particular person of body. Likewise, the Amendment does not distinguish between decisions made by the Government by virtue of the Knesset’s confidence and decisions made by a transition government. It even does not distinguish between areas in which there is a sufficient legal response by means of other standards of review and areas in which the reasonableness standard is, in effect, the only standard by which a remedy can be obtained from the Court, as shall be addressed in detail below.

            Fifth, the Amendment also prevents intervention in a “decision to refrain from exercising authority”. The Knesset, on its part, emphasized that the Amendment does not apply to situations in which an authority refrains from making a decision unless a positive decision was made not to exercise authority (para. 22 of its Supplemental Brief). I accept this interpretation, but even this clarification leaves the door open for the Government and its members to knowingly shirk exercising a particular authority, and prevents the Court from granting a remedy for omissions that severely harm an individual or the entire public.

138.     The Knesset, the Committee Chair, and the Government argued that the Amendment relies upon the principled distinction presented by my colleague Justice Sohlberg in his academic writing between decisions of the elected and the professional echelons. As I understand it – although Justice Sohlberg criticized certain trends in the Court’s decisions – he did not propose completely and comprehensively restricting the use of the reasonableness standard, and certainly not by means of enacting a Basic Law. However, the Amendment, by the extreme language adopted, does not leave the Court any flexibility and discretion in this regard: it deprives every court of the very possibility to consider and hear arguments upon the subject, it entirely abolishes the reasonableness standard in regard to the elected echelon and in regard to every decision, including a decision to refrain from exercising authority.

139.     In the course of the Committee’s debates, and in the framework of the Committee’s legal advisors attempts to “soften” the Amendment’s extreme language, the Preparatory Document of June 23, 2023 had already suggested considering an alternative model by which the restriction of the reasonableness standard would apply “in regard to all the decisions made by the elected echelon, but only in regard to a certain type of decisions” (p. 12 of the Preparatory Document – emphasis original). In the meeting of June 25, 2023, the Committee’s legal advisor, Advocate Gur Blay, again proposed “to focus the restriction [on the use of the reasonableness standard] to certain decisions of the elected echelon” and explained that the significance of the Amendment’s comprehensive language is the elimination of judicial review of administrative decisions “even in extreme situations […] in which it was possible to intervene even under the old Wednesbury rule” (Transcript of meeting 105, pp. 86, 106). Two days later, Advocate Blay emphasized the need “to make an exception for every decision that directly affects an individual, whether it is what the literature refers to as an individual right or an individual interest” (Transcript of meeting 109 of the Constitution Committee of the 25th Knesset, 45 (June 27, 2023) (hereinafter: Transcript of meeting 109)). After the Amendment Bill was approved in a first reading, Advocate Blay again insisted that the Amendment was more sweeping than every other course of action considered in regard to the reasonableness standard, and noted three primary areas in which no effective judicial review would remain following the Amendment: decisions by a transition government, decisions in regard to appointments and dismissals, and individual decisions that involve a violation of protected rights (Transcript of meeting 121, pp. 11-13).

            Despite all of these remarks and proposals, the Amendment Bill remained virtually as is, and the main change introduced before its approval in a second and third reading even exacerbated the existing wording by clarifying that “decision” means “any decision, including in matters of appointments, or a decision to refrain from exercising authority”.

140.     As will be explained below, the extreme, extraordinary wording of the Amendment, and given the present constitutional reality, inflicted harm of unprecedented scope upon two of the core characteristics of our democratic system – the principle of separation of powers and the principle of the rule of law.

            D.3.     Infringement of the separation of powers

141.     The idea at the base of the principle of separation of powers is the division of power and the distribution of authority among the branches of government – “the legislature should exercise legislative power; the executive should exercise executive power; the judiciary should exercise judicial power” (HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister [100] 55 (hereinafter: Supreme Monitoring Committee)). However, this is but one element of the principle of separation of powers. It is now clear to all that the separation of powers in a democratic state also means mutual oversight among the branches such that each checks and balances the others (ibid.; and see: HCJ 5364/94 Wilner v. Chair of the Israel Labor Party [101] 783; and see: HCJ 306/81 Sharon v. Knesset House Committee [102] 141; Rubinstein & Medina, 127-128). As noted in the case law: “This delicate and complex formula of the decentralization of power and mutual supervision is what empowers the three branches of government and determines the relations among them. This is what creates and preserves the rule of law and democracy, and undermining this is likely to endanger the whole system of government” (Supreme Monitoring Committee, 55; emphasis added).

            It is important to emphasize that the primary purpose of the principle of separation of powers does not focus on the branches themselves or the propriety of the relationship among them. The separation of powers is intended to “prevent the concentration of power in one governmental authority in a manner liable to violate individual freedom” (Rubinstein, 512; on the historical sources of the principle of separation of powers, see: Distribution of Power, 24-13). It is, indeed, a principle that entirely rests upon the protecting of the individual from the government.

142.     Given the great power concentrated in the executive branch in general, and the Government in particular, in the Israeli system, judicial review constitutes an oversight mechanism whose importance in ensuring the protection of the rights of the individual against their violation by the government cannot be overstated. It has already been held in this regard that “the absence of judicial supervision will end in the violation of human liberty” (LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist [103] 713).

            In the present case, we should emphasize that “according to the approach of administrative law in recent generations, the ground of reasonableness acts as a main and essential instrument of judicial review of the administration, and it stands at the forefront of the protection of the individual and the public against arbitrary government” (Emunah, 486). As will be explained below, Amendment no. 3 to Basic Law: The Judiciary leads to an even greater concentration of governmental power in the hands of the elected echelon and to situations in which the individual will be left without protection against severe harm by the Government or by one of its ministers because recourse to the Court has been blocked.

143.     It can be inferred from the Explanatory Notes of the Amendment Bill that it was based upon the concept that decisions by the elected echelon generally treat of setting policy principles that reflect the worldview upon which the members of the Government were elected, and therefore “balancing the values of the various considerations in regard to the administrative decision must be granted to the public’s elected representatives and not to the court” (p. 110 of the Amendment Bill). However, as was made clear in the course of the Committee’s debates, the decisions of the Government and its ministers do not merely comprise a theoretical balance of values. They directly influence the lives of specific people, and at times, involve their severe harm (see, inter alia, Transcript of meeting 105, pp. 116-117; Transcript of meeting 121, pp. 12-13, 15-16).

144.     Many of the powers that the law grants to government ministers concern individual matters that directly affect a particular person or entity. In this regard, we might note, as a very partial, non-comprehensive list, the following powers:

A.        The power of the Minister of the Interior to grant or invalidate a residence permit and to prevent the granting of an immigration visa (Citizenship Law, 5712-1952; Entry into Israel Law, 5712-1952; sec, 2(b) of the Law of Return).

B.        The power to grant or revoke licenses, concessions, and permits (see, e.g., sec. 41 of the Physicians Ordinance [New Version], 5737-1976; sec. 19 of the Veterinarian Doctors Law, 5751-1991; sec. 10A of the Natural Gas Sector Law, 5762-2002; sec. 4(b2) of the Electricity Sector Law, 5756-1996; various powers under the Communications (Telecommunications and Broadcasting) Law, 5742-1982; secs. 11(a) and 11b(a) of the Engineers and Architects Law, 5718-1958; sec. 3 of the Meat and Meat Products Law, 5754-1994; secs. 2-3 of the Explosives Law, 5714-1954; sec. 4A(a) of the Seeds Law, 5716-1956).

C.        Powers concerning the taking of land for public purposes, compensation for harmful plans, and granting an exemption from improvement assessments (sec. 3 of the Lands (Acquisition for Public Purposes) Ordinance, 1943; secs. 189(b), 190(1)(2), 197(b) and sec. 19(b) of the Third Schedule of the Building and Planning Law, 5725-1965 (hereinafter: the Building and Planning Law)).

D.        Powers concerning criminal proceedings (sec. 18 of the Extradition Law, 5714-1954; secs. 7-8 and 13 of the Serving a Prison Sentence in the State of Nationality Law, 5757-1996., 5757-1996. And see sec. 12 of Basic Law: The President and HCJFH 219/09 Minister of Justice v. Zohar [104] concerning the Minister of Justice’s countersignature on pardons).

E.         Powers concerning workers’ rights (secs. 9D1 and 12 of the Hours of Work and Rest Law, 5711-1951; secs 1 and 9 of the Employment of Women Law, 5714-1954; sec. 28 of the Severance Pay Law, 5723-1963; sec. 2(c) of the Youth Labor Law, 5713-1953; sec 1E(c)(1) of the Foreign Workers Law, 5751-1991).

F.         Powers concerning matters of family, personal status, and inheritance (see, e.g.: sec. 28P of the Adoption of Children Law, 5741-1981; sec. 16 of the Names Law, 5716-1956; sec. 17(b) of the Inheritance Law, 5725-1965).

            In some cases, the said powers have been delegated by the minister to other bodies, but as we know, such a delegation can be revoked at any time (see: Barak-Erez, Administrative Law, 187-188 and references there), while the power – under the enabling law – is in the hands of the minister.

145.     Not infrequently, the Court is called upon to protect the important rights and interests of individuals as a result of decisions by the elected echelon that were tainted by extreme unreasonableness and expressed a distorted balance of the various, relevant considerations. So it was, for example, when the Minister of Defense refused a request by bereft families to change the wording on a monument dedicated to their loved ones (HCJ 6069/00 Association for Perpetuating the Memory of the Victims of the Helicopter Disaster in She’ar Yishuv v. Minister of Defense [105]; when the Minister of the Interior refused to grant status to the daughter of an Israeli citizen who was raised and educated in Israel, regarding whom it was  decided to grant permanent status in the past, but who was never informed of that decision (Bautista); and also see: HCJ 3840/13 Anonymous v. Minister of the Interior [106]; and when decisions by ministers significantly harmed the economic interests of individuals (see, e.g.: HCJ 176/90 Machnes v. Minister of Labor and Welfare [107] 730; HCJ 1829/93 Nazareth Transportation and Tourism Co. v. Minister of Finance [108]; HCJ 5946/03 Keshet Prima v. Supervisor of Prices [109]). In one case in which it was decided to deprive a person of his being awarded the Israel Prize for non-professional reasons, it was even held that the minister’s decision was so unreasonable that it did not even meet the “narrow” reasonableness standard, as the decision was irrational (HCJ 8076/21 Selection Committee for the 1981 Israel Prize Computer Science Research v. Minister of Education [110] para. 52, per Justice Y. Wilner); and compare to the case of an unreasonable decision to refrain from appointing a person found suitable by the relevant professionals: HCJ 8134/11 Asher v. Minister of Finance [111] para. 20, per Deputy President Rivlin).

146.     Even broad decisions that can be viewed as decisions concerning policy principles may lead to very severe harm to individuals, specifically because of the importance of the areas for which the Government and its members are responsible. The clear example is Wasser, in which the Court intervened in a Government decision to only partially protect the educational institutions in the “Gaza perimeter”, holding that in view of the real, concrete threat, the balance struck “between the professional-security considerations and the budgetary considerations significantly departs from the margin of reasonableness” (ibid., 215). A recent example of this is Zilber, in which the Court held that the new policy of the Minister of Finance and the Minister of the Economy and Industry for changing the criteria for support for the subsidizing of daycare centers for the families of yeshiva students comprised a short transition clause that was unreasonable in the extreme (see and compare: HCJ 5290/97 Ezra – National Hareidi Youth Movement v. Minister of Religious Affairs [112] 430).

147.     We would emphasize that – contrary to the claims made in the course of enacting the Amendment and by some of the Respondents in these proceedings – the other administrative law standards for review do not provide an effective alternative to the reasonableness standard. Therefore, in many of the cases cited above and in additional cases, it would not have been possible to grant a remedy to the petitioners without the reasonableness standard, and they would have found themselves in a hopeless situation.

148.     One of the central arguments raised in the Committee’s debates, and that was raised by some of the Respondents in this regard, is that the proportionality standard in any case serves as a standard for judicial review of decisions that violate basic rights, and therefore the harm caused by the abolition of the reasonableness standard in regard to decisions by the elected echelon is not dramatic (see: the statement of MK Rothman in the Transcript of meeting 105, p. 77, and the Transcript of meeting 113 of the Constitution Committee of the 25th Knesset, 55 (July 3, 2023); para. 332 of the Knesset’s Affidavit in Response; para. 245 of the Government Respondents’ Affidavit in Response).

            Over the years, our system developed and formed the proportionality standard primarily against the background of its express inclusion in Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation, and it is now viewed in the case law as an important standard for providing protection in cases of the violation of individual rights (see, among many: HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior [113], para. 19, per Justice Danziger; HCJ 79/17 Ziada v. Commander of the IDF Forces in the West Bank [114], para. 73, per Deputy President (emer.) Joubran; and see: HCJ 11437/05 Kav LaOved v. Minister of the Interior [115] 190-193; Barak-Erez, Administrative Law, 784-785). However, as the examples presented above demonstrate, sometimes an individual suffers significant harm as the result of a governmental decision even when it is not possible to identify a direct violation of a right (in this regard, also see the statement of Advocate Blay in the Transcript of meeting 109, pp. 41-42, and the Transcript of meeting 120 of the Constitution Committee of the 25th Knesset, 76 (July 7, 2023) (hereinafter: Transcript of meeting 120)). This is so, for example, when we are concerned with a flawed balance between budgetary considerations and public security considerations, or when the harmed interests are economic and social interests that are not vested rights, like subsidies, social services, licenses, appointments, prizes and matters of status. In such cases, the reasonableness standard may be the only effective legal tool for protecting the individual (see and compare other instances in which this standard served for intervention in the decisions of other authorities: Sela, in which a local council refrained from allocating land for the building of a mikveh and did not give proper weight to the harm to the religiously observant women in the community; HCJ 4988/19 Rosenzweig Moissa v. Public Utilities Electricity Authority [116] in which an order absolute was granted, finding that the list of consumers for whom the supply of electricity is vital and cannot be suspended for a debt was “limited in a manner that deviated from the margin of reasonableness”).

149.     This is also the case in regard to the standard of extraneous considerations. This, too, does not constitute an effective alternative to the reasonableness standard. A person claiming the existence of extraneous considerations in an authority’s decision must present an evidentiary foundation for his claim. That is a very significant burden given the fact that he is required to expose the improper motives of the authority or show circumstantial indicators of real weight that testify to such motives (see: HCJ 4500/07 Yachimovich v. Council of the Second Authority for Radio and Television [117] para. 12; HCJ 8756/07 “Mavoi Satum” Association v. Committee for the Appointment of Rabbinical Court Judges [118] para. 43; Barak-Erez, Administrative Law, 669-672). Due to the substantial evidentiary problems in this regard, a significant part of petitions based upon the claim of extraneous considerations are dismissed for lack of a factual foundation (ibid., 670). In addition, the extraneous considerations standard does not address the issue of a flaw in the balance struck by the authority among valid considerations (see: AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality [119]), which is also a reason why this standard does not serve as an alternative to examining the reasonableness of a decision.

150.     Another standard mentioned in the Committee’s debates and in the arguments presented by the parties to these proceedings is that of arbitrariness (see, e.g.: Transcript of meeting 126, pp. 50 and 57; para. 316(a) of the Knesset’s Affidavit in Response). Even if I assume that we are concerned with a standard that is distinct from that of reasonableness and not one of the levels of reasonableness like “absurdity” (see various approaches in this regard in Zamir, Administrative Power, 3525-3537; Barak-Erez. Administrative Law, 724; and see: Transcript of meeting 126, p. 127) – arbitrariness, by its nature, concerns rare and extreme government conduct. Thus, the case law and the literature have referred to an arbitrary decision as one made “on the basis of just a feeling” or “disconnected from the facts of the case” and even “a type of corruption” (HCJ 986/05 Peled v. Tel-Aviv Yafo Municipality [120] para. 14; Zamir, Administrative Power, 3446-3447; and see: AAA 1930/22 Jerusalem Open House for Gay Pride v. Jerusalem Municipality [121] para. 39, per Justice Groskopf; LCrimA 1611/16 State of Israel v. Vardi [122] paras. 70-72, per Deputy President Melcer; HCJ 376/81 Lugasi v. Minister of Communications [123] 460). A distinct standard based on each of these definitions cannot serve as a real alternative to examining the unreasonableness of decisions, inasmuch as these definitions are directed at edge cases in which it would appear that no discretion was exercised prior to making the decision.

151.     In practice, reasonableness is often a substitute for the other standards of review, and preventing the possibility of its use severely harms the individual in this regard as well. On more than one occasion, the case law has noted the role of the reasonableness standard as a kind of “valve concept” that can serve as an important tool for identifying administrative decisions suffering such severe defects as extraneous considerations, when there is an evidentiary problem in proving them (Hanegbi, 2014, para. 2, per President Naor; Netanyahu, para. 5, per Justice Barak-Erez; and see: Barak-Erez, Administrative Law, 726). In this regard, it was held that “in this residual form, the reasonableness doctrine yields great social benefit: it provides the courts with an effective, necessary tool for judicial review under uncertainty, and does not allow government authorities to hide their failures by exploiting the ambiguity of the factual foundation” (Scheinfeld, para. 35, per Justice Stein). In such circumstances, as Professor Itzhak Zamir noted well, “it would not be fair to deprive the petitioner the last resort of the reasonableness standard, which is, at times, the only grounds by which he may achieve justice through the courts and preserve the lawfulness of the administration” (Zamir, Administrative Power, 3607).

152.     As we see, in the existing legal situation, the other grounds for review cannot compensate for the broad harm to the individual if a series of decisions made by the elected echelon on a daily basis will be immune to review on the basis of reasonableness. In this regard, it was noted in Emunah that:

Restricting the ground of reasonableness may create a vacuum in judicial review that may not be filled by other grounds of review and may seriously curtail the willingness of the court to intervene in cases where the administrative authority did not consider all and only the relevant considerations in its decision or considered them but did not give them their proper relative weight, or also considered irrelevant considerations. It is easy to imagine the damage that such a process can be expected to cause to the concept of the legality of administrative action and the purpose of protecting the citizen in his relationship with the government, which lies at the heart of the definition of the grounds of judicial review of administrative action (ibid., 487).

153.     The Knesset argues that over the course of time it will be possible to contend with the consequences of the Amendment through the use of judicial tools by developing new standards or by changing the way that the existing standards for review are implemented. However, this speculative assumption does not provide a response to the distress of individuals already being harmed by unreasonable administrative decisions who cannot wait years for substantive changes that may or may not be made in administrative law.

            The possibility of replacing judicial review of unreasonable decisions with public or parliamentary oversight, a possibility raised by the Knesset and the Government Respondents (see: paras. 318-319 of the Knesset’s Affidavit in Response; para. 265 of the Government Respondents’ Affidavit in Response) also provides no response to the serious harm to the individual that is caused by the Amendment. On the institutional level, the Knesset and its committees are not able – nor intended – to carry out continuous, effective oversight of the thousands of decisions made by the Government and the ministers every year, many of which are of an individual nature (this was pointed out by the legal advisor to the Committee on p. 11 of the Preparatory Document of June 23, 2023; on the limited oversight capability of the Knesset, see: Chen Friedberg & Reuven Hazan, Legislative Oversight of the Executive Branch in Israel: Current Status and Proposed Reform (Policy Paper 77, Israel Democracy Institute, 2009) [Hebrew]). The resolution of conflicts between the citizen and the government in a democracy is carried out in court (see: HCJ 287/69 Meiron v. Minister of Labor [124] 362). Parliamentary oversight mechanisms focus upon “procedures of establishing general policy by the Government and [supervision] of them”, and not upon specific instances that come to the courts as a matter of course (Dotan, Judicial Review, 82-83). This is the case even without addressing the inherent problem that there is a coalition majority in the Knesset and its committees whose ability to serve as an effective check upon the Government’s activities is doubtful, to put it mildly (see and compare: ibid., 85).

154.     There is also no substance to the argument by the Government Respondents that the Amendment only establishes “a norm [that is] accepted in the overwhelming majority of western democratic states” in regard to the applicability of the reasonableness standard (para. 258 of their Affidavit in Response). First, as already noted, the consequences of the Amendment must be examined against the background of the specific constitutional context in which it was adopted. It is clear that in a system in which the Government controls the legislative branch, and judicial review is the only effective mechanism that serves as a check upon its actions, significantly limiting the reasonableness standard inflicts far more severe and significant harm to the separation of powers that the harm that might be caused as a result of a similar amendment in systems that are equipped with a range of mechanisms of checks and balances.

            Moreover, the argument itself is imprecise. The global trend over the last decades is one of expanding the application of the reasonableness standard and others like it for the review of administrative discretion, and not their reduction (for details, see the Preparatory Document of June 23, 2023, p. 6; and see: Barak-Erez, Administrative Law, 724). A salient example of this can be found in Great Britain where the narrow Wednesbury principle was first developed. Today, the British system applies a more expansive approach to the reasonableness standard (see: Cohn, “Comparative Aspects”, 782-790; Harry Woolf et al., De Smith’s Judicial Review, para. 11-099 (8th ed., 1018), and recent judgments have also explained that, as in the Israeli approach, the reasonableness standard also comprises a “balancing” aspect (see: ibid., para. 11-030; Kennedy v The Charity Commission [158] para. 54; Adam Perry, “Wednesbury Unreasonableness,” 82 Cambridge L.J. 483, 486 (2023)). Moreover, the British courts also examine the reasonableness of the decisions of ministers, while granting weight to their being elected officials (H.W.R. Wade & C.F. Forsyth, Administrative Law 318 (10th ed., 2009); Padfield v Minister of Agriculture, Fisheries and Food [159]; and see: Zamir, Administrative Power, 3870-3871).

            In addition, over the last decade, the Supreme Courts of Australia and Canada comprehensively debated the reasonableness standard, in the course of which they grounded it as a central standard of review in administrative law. In Australia, the Supreme Court extended the criterion to the unreasonableness of decisions, while holding that the narrow test associated with Wednesbury should be abandoned and preference should be given to a more in-depth test (Minister for Immigration & Citizenship v Li [163]; the reasonableness test is even anchored in law in Australia: Administrative Decisions (Judicial Review) Act 1977, s. 5(2)(g)). In Canada, the Supreme Court comprehensively arranged the grounds for administrative review and strengthened the place and role of reasonableness as opposed to a de-novo review of the administrative decision, which would be undertaken only in exceptional cases (Canada (Minister of Citizenship and Immigration) v. Vavilov [164] 4 S.C.R. 653 (hereinafter: Vavilov); Paul Daly & Coleen Flood, Administrative Law in Context 351 (2021). The judgment made it clear that the reasonableness standard also applies to decisions made by ministers and to policy decisions (Vavilov, paras. 88-89). The literature has even noted that, in certain senses, judicial review of the decisions of ministers and other elected officials has become more strict since Vavilov (Paul Daly, “Vavilov and the Culture of Justification in Contemporary Administrative Law,” 100 Sup. Ct. Rev. 279, 303-304 (2021)).

            It should be further noted that although the reasonableness standard is not a primary ground in Continental law, in practice, even those legal systems carry out judicial review of administrative discretion on the basis of test that are materially similar, and they are often more strict in regard to the administrative authorities in comparison to those employed in the Common Law (Ron Shapira, “On the Reasonableness of Reasonableness,” The Israel Law & Liberty Forum Blog 1, 2 (Jan. 16, 2023) [Hebrew]; Itzhak Zamir, “Israeli Administrative Law in comparison to German Administrative Law,” 2 Mishpat Uminhal 109, 129-130 (1994) [Hebrew]; and see: John Bell & François Lichère, Contemporary French Administrative Law 191-195 (2002); Mahendra P. Singh, German Administrative Law in Common Law Perspective 165-166 (2001)).

155.     The comparative survey only serves to illustrate the material difficulties raised by the Amendment. In other legal systems, the trend is to expand the use of the reasonableness standard, inter alia, against the background of the growing power of the executive branch in the modern state and the need to oversee its discretion (see and compare: Yoav Dotan, Administrative Guidelines 510-511 (1996) [Hebrew]). As opposed to that, In Israel – where, in comparative terms, the Government concentrates unprecedented power in its hands – the constituent authority chose to bar the possibility for examining the reasonableness of the decisions of the Government, the Prime Minister and the ministers in a sweeping, extreme and exceptional manner.

156.     The immediate significance of the Amendment – which absolutely denies an individual any possibility of raising arguments in regard to the reasonableness of decisions by the Government, the Prime Minister and the ministers, and the possibility of obtaining relief on the basis of such arguments – is a mortal blow to the right of access to the courts “whose existence is a necessary, vital condition for the existence of all the other basic rights” (Arpal, 629).

            The Government Respondents argue that our matter does not involve any violation of the right of access to the courts, inasmuch as that right concerns the possibility of obtaining relief in accordance with the law and the law has changed in this matter (para. 266 of their Affidavit in Response). This argument cannot be accepted. While the Amendment abolished the reasonableness standard as a ground for judicial review of the elected echelon, it does not free the Government and its members from the duty of reasonableness. In accordance with that duty, they must exercise discretion properly, while giving appropriate weight to all the relevant considerations. This is the case because every administrative authority exercises its powers as a public trustee (see: Eisenberg, 258-259; HCJ 5657/09 Movement for Quality Government v. Prime Minister [125] para. 39 (hereinafter: Djerbi)). In the course of the debates in the Constitution Committee, the Committee Chair, MK Rothman, the initiator of the Amendment, explained that this duty continues to hold in regard to the Government and the ministers (Transcript of meeting 121, 24-35). A similar position was presented in the proceedings before us in the Knesset’s arguments (para. 301 of the Knesset’s Affidavit in Response). Therefore, while the law applicable to the Government, the Prime Minister, and the ministers in this regard remains unchanged – the individual has been deprived of protection from governmental power, as he can no longer obtain relief for a violation of law, even if it is a severe violation of his important interests.

157.     In Arpal, it was noted that “barring the path to the court – whether directly or indirectly – and even only partially” harms “the democratic foundation of the state” (ibid., 629). This conclusion derives from the a priori purpose at the base of the principle of separation of powers – preventing the concentration of too much power in the hands of the regime and preventing the threat that would result to individuals in the state. The Amendment that is the subject of the petitions and the abolition of the reasonableness standard in all that relates to the elected echelon deprives the Court of a central oversight tool and grants significant, additional, and unlimited governance power to the Government, which already holds unprecedented power.

            Therefore, there is no alternative but to conclude that the Amendment strikes an extremely severe blow to the principle of separation of powers, which is one of the core characteristics of the State of Israel as a democratic state.

            D.4.     The harm to the rule of law

158.     The basic meaning of the principle of the rule of law in a democratic state is that “no person or body is above the law” (HCJ 1843/93 Pinhasi v. Knesset [126] 682). This principle does not only apply to individuals in the state: “all government authorities, including the Government itself, are subject to the law. No authority is above the law” (Eisenberg, 274). Judicial review of administrative actions has long served as a most central tool in defending the rule of law, and ensuring that the government acts lawfully is a core role of the court in a democratic society (see: Ressler, 462; Dotan, Judicial Review, 70; Rubinstein & Medina, 174).

            The law means the written law and the case law, including administrative law as developed in the case law over the years (AAA 867/11Tel-Aviv Yaffo Municipality v. A.B.C. Management and Maintenance, Ltd. [127] para. 28, per Justice Vogelman). The reasonableness standard is among the principles of administrative law, and it has been stated in regard to its application to all the administrative authorities as follows:

Like every decision by an administrative body, the decisions of the Government, its ministers and the Prime Minister are subject to judicial review in accordance with the standards of administrative law. “The government’s discretion, like the discretion of any minister within the government or any other authority, is constrained and guided by legal rules, and the Court is charged with upholding those rules. Among other things, the Government must exercise its powers based on relevant considerations, not on extraneous considerations. These must fall within the margin of reasonableness and proportionately” […] Any authority may make a decision that is not reasonable or that is not compatible with administrative law. The Government is no exception […] (Hanegbi 2003, 840).

159.     An in-depth examination of the Amendment shows that its consequences in the area of the rule of law are most severe. As noted, the Amendment did not in any way affect the duty of reasonableness that applies to the Government, the Prime Minister and to each of the ministers, whose duty to act reasonably directly derives from their being public trustees (Pinhasi, 461). The Government, its ministers and every other administrative authority is thus subject to the duty “to weigh all of the relevant considerations, to refrain from considerations that are not relevant; […] to grant the appropriate weight to each of the relevant considerations in accordance with the circumstances, and to arrive at a balanced decision by means of a proper evaluation of the various factors that will fall within the margin of reasonableness” (Djerbi, para. 39).

            However, following the Amendment, the duty of reasonableness is left unenforceable in regard to the Government and its members, as opposed to the other administrative authorities. In other words, the Amendment comprehensively establishes that the Court no longer holds jurisdiction to address the reasonableness of any decision adopted by the Government or any of its members, and accordingly, no longer holds jurisdiction to grant relief in those instances in which the decision adopted is unreasonable. This is so even though had the same decision been adopted by any other body or functionary in the executive branch – that is not part of the Government – the exemption would not apply, and the decision would be subject to judicial review on the ground of reasonableness.

160.     The result of the legal situation created as a result of the Amendment is that, in regard to the elected echelon, there is “law” (the duty of reasonableness) but no “judge” who can examine the observance of the duty because the Amendment abolishes the jurisdiction of anyone holding judicial authority to hear arguments in regard to the reasonableness of decisions by the Government and its members or to grant relief on the basis of that ground. The result is that the elected echelon, that effectively holds the most governmental power and that has at its disposal broad powers that have the potential for inflicting severe harm to individuals and to the public interest, is exempt from judicial review in all that relates to the reasonableness of its decisions, and it has already been held that “in the absence of a judge, the law itself will vanish with him”  (Arpal, 629). This situation constitutes a mortal blow to the principle of the rule of law, at both the formal and substantive levels. As was noted in Eisenberg:

The exalted position of the Government as the State’s executive authority (s. 1 of the Basic Law: The Government) cannot give it powers that the law does not confer upon it […]. Indeed, this is the strength of a democracy that respects the rule of law. This is the rule of law in its formal sense, whereby all government authorities, including the Government itself, are subject to the law. No authority is above the law; no authority may act unreasonably. This is also the substantive rule of law, according to which a balance must be made between the values, principles, and interests of the democratic society, while empowering the government to exercise discretion that properly balances the proper considerations (ibid., 274 – emphasis added).

161.     The harm to the rule of law is particularly severe in view of the creation of “vacuums” in judicial review (or “normative black holes” in the words of the Petitioners and the Attorney General). This harm derives from the fact that the Court has been deprived of the possibility of effectively examining decisions made in entire areas in which the protection of extremely important public interests is based almost exclusively upon an examination of the reasonableness of the decisions of the Government and its ministers.

162.     Thus, the reasonableness standard is the main tool granted to the Court for ensuring integrity in the civil service. This is expressed primarily in all that concerns improper appointments to public offices. It is the reasonableness standard that enables judicial review in extreme situations in which, even thought the appointment was made with authority and in accordance with the formal requirements, there was a severe defect in the discretion of the appointing body. Indeed, “the history of the public administration in Israel is burdened with cases, not one and not two, in which it was possible to prevent patently improper appointments only in the context of reasonableness, since on the ‘formal’ side it received a ‘passing’ grade (Hanegbi 2014, para. 2, per Deputy President Rubinstein; and see: ibid., para 2, per President Naor; for an up-to-date survey on the matter, see: Bell Yosef & Elad Gil, “The Use of the Reasonableness Standard in the Oversight of Public Appointments,” Tachlit – Institute for Israeli Public Policy (July 2, 2023) [Hebrew]). The contribution of the reasonableness standard to ethical integrity in the civil service is significant particularly given the fact that the other ground that might be relevant in this regard – the ground of extraneous considerations, which can serve for examining improper political appointments – involves significant evidentiary problems, and in practice, this claim is rarely accepted in regard to an appointment (see: Barak-Erez, Administrative Law, 658; Miriam Ben-Porat, “Political Appointments (Specific Problems),” Shamgar Volume, Part I, 91, 106-110 (2003); for a rare case of this type, see: HCJ 6458/96 Abu Krinat v. Minister of the Interior [128] 139-140).

163.     The importance of the reasonableness standard as it relates to decisions by the elected echelon is prominently expressed in appointments to public office of persons tainted by significant moral turpitude, regarding whom appropriate weight was not given to the principles of ethical integrity, good governance, and the public trust in governmental authorities. Thus, the appointment of a person who had been involved in extremely serious offenses to the post of Director General of a government agency was rescinded, inter alia, on the basis of reasonableness (Eisenberg; and see: Sarid). It has been held that the Prime Minister was required to dismiss ministers and deputy ministers against whom criminal charges were filed for corruption or who were convicted of  criminal acts a number of times (Deri; Pinhasi; Scheinfeld). The extension of the tenure of a senior office holder in the Ministry of Transportation was cancelled due to his conviction in disciplinary proceedings for offenses perpetrated in the course of his service (HCJ 7542/05 Portman v. Shitreet [129]). A decision by the Minister of Defense to promote an officer to the rank of general was canceled due to his admission of unbecoming conduct of a sexual nature and his conviction by a disciplinary tribunal (HCJ 1284/99 A v. Chief of General Staff [130]).

164.     In other situations, the reasonableness standard served as the legal basis for protecting against an inappropriate deviation from proper conduct in the public administration. Thus, for example, this Court invalidated an appointment made contrary to the recommendation of the appointments committee, noting that the impression was that the “dominant motive” for the appointment was “the close political connection” between the appointee and the responsible minister, as opposed to professional considerations of appropriateness to the office (Djerbi, para. 62, per Justice Procaccia). It has also been held that a situation in which a deputy minister wields the powers of the ministry in practice, while the Prime Minister is defined as the minister (“Deputy Minister with the status of a Minister”) is unreasonable in the extreme (HCJ 3132/15 Yesh Atid Party v. Prime Minister [130]). The case law has also noted that refraining from making appointments to vital positions while leaving the office unfilled over time causes severe harm to the public and may be deemed unreasonable (see: HCJ 268/13 Chai v. Exceptions Committee for Appointments to Senior Positions in the Prime Minister’s Office [132] para. 19; HCJ 1004/15 Movement for Governability and Democracy v. Minister of the Interior [133] paras. 15-16, per President Naor).

165.     The danger in denying the possibility of judicial intervention in extreme situations in which an appointment by the Government and its ministers is tainted by a serious defect is particularly great. This, in view of the nature of the appointments for which they are responsible. The Government is responsible for appointments to the most senior positions in the public service, among them, the Chief of the General Staff, the Director of the Israel Security Agency, the Police Commissioner, the Governor of the Bank of Israel, and the Commissioner of the Prison Service (sec. 3(c) of Basic Law: The Military; sec. 2(a) of the General Security Service Law, 5762-2002; sec. 8A of the Police Ordinance [New Version], 5731-1971 (hereinafter: Police Ordinance); sec. 6 of the Bank of Israel Law, 5770-2010; sec. 78 of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: Prisons Ordinance)). In addition, sec. 23 of the Civil Service (Appointments) Law, 5719 – 1959 (hereinafter: Civil Service Law) allows the Government to decide which appointments require its approval, and this list currently includes, inter alia, the Director of the National Security Council, the Attorney General and Deputy Attorneys General, the State Attorney, the Director of the Atomic Energy Commission, the Director of National Economic Council, the Accountant General, the Budget Director, the Commissioner for Capital Markets, the Director of the Tax Authority, the Director of the Population and Immigration Authority, Israeli ambassadors throughout the world, and more (see: Second Appendix to the Civil Service Law). Along with that, there is a long list of senior appointments that fall under the authority of Government ministers (see, for example: sec. 18 of the Government Corporations Law, 5735-1975 (hereinafter: Government Corporations Law); sec. 8 of the Public Broadcasting Law, 5774-2014; sec. 3 of the Securities Law, 5728-1968; sec. 2 of the Planning and Building Law; sec. 7 of the Police Ordinance; sec. 79 of the Prison Service Law).

            Moreover, the Government and the ministers are often able to dismiss those senior officer holders, inter alia, on the basis of the general directive in sec. 14 of the Interpretation Law, 5741-1981, according to which: “Any empowerment to make an appointment implies empowerment to suspend the validity thereof or to revoke it, to dismiss the person appointed or to suspend him from office” (and see: art. 15 of the Order-in-Council; Zamir, “Administrative Authority,” 565, 656-657); HCJ 3884/16 A. v. Minister of Internal Security [134] para. 21). While there are, at present, appointments that require the recommendation of an advisory committee or a selection committee for which there are also established procedures for the termination of office, those requirement are primarily grounded in  Government decisions that can be revoked (see, inter alia: Decision 3839 of the 34th Government “The Advisory Council for Appointments to Senior Positions and the Revocation of Government Decisions” (May 27, 2018); Decision 516 of the 9th Government “Conditions for Appointment to Certain Offices” (Aug. 14, 1960); Decision 4892 of the 27th Government “Appointments Commission headed by the Civil Service Commissioner – Amendment of Government Decision no. 516 of Aug. 14, 1960” (March 7, 1999); Decision 2274 of the 28th Government “Report of the Public Committee for Examining Procedures for the Appointment of the Attorney General” (Aug. 20, 2000)). Even assuming that these decisions will remain in force, abolishing the reasonableness standard will block judicial review in situations in which appropriate weight is not given to the recommendations of the relevant bodies (as occurred, for example, in Djerbi).

166.     Thus, removing judicial oversight of the reasonableness of decisions by the Government and the ministers in regard to all the appointments under their authority will leave the public without any real protection in situations in which senior members of the civil service are appointed or dismissed solely for political reasons. As the Petitioners and the Attorney General emphasized, the consequences in this area are particularly severe in regard to those entrusted with enforcing the law – like the Attorney General, the State Attorney, and the Police Commissioner – where, in the absence of active judicial review, the question of their appointment and continued service becomes entirely dependent upon the graces of the elected echelon in a manner that might undermine their independence. This element of the independence of the law enforcement system is necessary to  fulfilling its role in the protection of the rule of law in the state, and it is also vital to the State of Israel’s ability to contend with legal challenges in the international arena (see: Amichai Cohen, “International Criminal Law,” International Law 473, 507 (Yael Ronen, ed., 4th ed., 2023)). This last point in regard to the international consequences of the Amendment was the focus of the Numa Petition and is also mentioned in para. 307 of the Attorney General’s Affidavit in Response).

            In the course of the Committee’s debates, the subject of appointments and dismissals in the civil service was presented again and again as a critical issue by participants in the debates and by the Committee’s legal advisors in particular. In this regard, possibilities for establishing alternatives to judicial review were also raised (see: Transcript of meeting 120, 91-92; Transcript of meeting 121, 11-12). However, such mechanisms were not adopted in the end, and instead, a clarification was added to the end of the final draft according to which “decision” means “any decision, including in matters of appointments […]”. In the absence of any response to clear harm to the tools for protecting ethical integrity and good governance of the administration caused by the abolition of the reasonableness standard in regard appointments and dismissals of the most senior functionaries of the state, it would appear that the Amendment creates a real danger that the civil service, which “is intended to provide for the needs of the public in all aspects of life” (HCJ 8815/05 Landstein v. Spiegler [135] para. 8), will be fundamentally changed, and not for the better.

167.     An additional “normative vacuum” created as a result of the Amendment concerns the examination of the discretion of transition governments. In accordance with the principle of the continuity of the Government, anchored in sec. 30 of Basic Law: The Government, a Government that no longer enjoys the Knesset’s confidence continues to serve as the executive authority of the state for as long as another Government has not won the confidence of the Knesset. This is intended to prevent a “governmental vacuum” and to ensure government continuity (HCJ 5167/00 Weiss v. Prime Minister [136] 465 (hereinafter: Weiss); HCJ 7510/19 Or-Cohen v. Prime Minister [137] paras. 1 and 10 of my opinion). The primary concern that derives from this governmental situation is that such a Government might adopt decisions intended to garner political advantage in the upcoming elections or to tie the hands of the next Government (ibid., para. 10 of my opinion; and see: Shetreet, 520). In this regard, the case law has made it clear that although the powers of a transition government are no different from those of a “regular” Government, in term of discretion “the margin of reasonableness of a transition government is more narrow than that of a Government that serves by virtue of the confidence of the Knesset” (Kohelet Forum, para. 6 of my opinion; and see: Weiss, 470; HCJ 9202/08 Livnat v. Prime Minister [138] para. 4). Therefore, it is the duty of the transitional government to maintain a balance between moderation and restraint – which derive from the very fact of its being a Government that does not enjoy the confidence of the Knesset – and the need to ensure stability, continuity, and the proper functioning of the government institutions (Kohelet Forum, para. 7 of my opinion). Against this background, when the Court examined the decisions of transition governments and found a defect in the balance among the relevant considerations, it declared them void (see: HCJ 9577/02 Mafdal v. Speaker of the Knesset [139]; HCJ 4065/09 Cohen v. Minister of the Interior [140]; Lavi).

168.     Preventing the possibility of examining the reasonableness of the decisions of transition governments may result in harm of broad scope to the public interest, as it would allow the Government and the ministers acting as a transition government to more easily exploit the powers and resources at their disposal during the elections period for the purpose of unnecessary appointments or in order to gain an unfair advantage in anticipation of the elections, for example, by means of what is referred to an “elections economy” (see and compare: Lavi, para. 1, per Justice Sohlberg; and see the statement of Advocate Blay in the Transcript of meeting 121, 11). According to the Knesset, it would be possible to contend with the “vacuum” created in the rules for a transition government by developing the extraneous considerations ground (see: para. 316(d) of the Knesset’s Affidavit in Response). However, in order to provide effective protection of the public interest in this context, it would be necessary to completely change the evidentiary requirements for proving the claim, in a manner that would change its character. Furthermore, contrary to the Knesset’s position, the principle of equality in elections anchored in sec. 4 of Basic Law: The Knesset cannot serve as a real alternative to examining the reasonableness of a decision. The Knesset refers, in this regard, to Bergman, but that and other similar matters did not treat of the day-to-day decisions made by a transition government, but rather with situations in which the equality in the conditions for the competing parties was clearly violated, for example, in regard to aspects of funding the elections (see: Derech Eretz; HCJ 141/82; HCJ 142/89 Laor Movement v. Speaker of the Knesset [141]; HCJ 2060/91 Cohen v. Shilansky [142] ). Therefore, in the existing legal situation, the Amendment leads, inter alia, to clear harm to the rule of law at a critical juncture prior to the elections, in a manner that might affect the rules of the democratic game themselves.

169.     In addition to the areas of elections and the rules for transition governments, there are other public interests that cannot be protected against serious violations by the elected echelon in the absence of the reasonableness standard. One example of this, which was presented in the amicus brief filed by the Adam Teva V’Din Association, is the environmental impact of decisions by the Government and its ministers.  Although these effects so not necessarily cause direct harm to a particular individual, they concern public health and quality of life (for example, in cases of environmental pollution) even for future generations (see: HCJ 4128/02 Adam Teva V’Din v. Prime Minister [143] 512-513). Decisions “to pave roads, build cities, develop industry and provide the means for protecting the public and its security” (ibid., 513) can lead to a head-on clash with protection of the environment. In this regard, the reasonableness standard has more than once made it possible for the Court to intervene when it found that appropriate weight was not assigned to considerations related to environmental protection in decisions adopted by the Government and its ministers (see, e.g.: HCJ 9409/05 Adam Teva V’Din v. National Planning and Building Committee [144]; HCJ 1756/10 Holon Municipality v. Minister of the Interior [145]). Without the reasonableness standard, the courts will have difficulty granting relief in cases where decisions by the elected echelon may cause irreversible harm to environmental values.

170.     From all the above, we see that in addition to the difficulty of the existence of law without a judge, abolishing judicial review on the basis of reasonableness causes clear, immediate harm in a range of areas in which the lawfulness of government activities is examined from the perspective of that standard. The starting point is that “access to the courts is the cornerstone of the rule of law” (Ressler, 462). Therefore, the case law has narrowly construed regular statutory provisions that placed restrictions upon the jurisdiction of the courts to examine certain administrative decisions, and has held, inter alia, that in all that regards the jurisdiction of the High Court of Justice, such provisions must be examined in light of the provisions of sec. 15 of Basic Law: The Judiciary (see: National Insurance Institute, 451-452; Herut, 756). Abolishing judicial review of the reasonableness of decisions by the Government, the Prime Minister, and the ministers has now been established in the Basic Law itself, and expressly so. But one cannot ignore the far-reaching significance of the Amendment as described above, which derives from its sweeping language and its application to all the decisions of the elected echelon and all the courts, including this Court sitting as Hight Court of Justice. This is an unprecedented step that clearly goes beyond every provision that limited the jurisdiction of the Court in the past, and it facially contradicts the principle of the rule of law for all the reasons laid out above.

171.     In this regard, the Government Respondents referred to other legal systems, noting that the case law in Great Britain and the United States has recognized the possibility of revoking the jurisdiction of the courts through legislation (for a survey in this regard, upon which the Government Respondents relied, see: Dotan, Judicial Review, 233-236). In view of the significant differences, which I addressed above, between our system and other systems in all that regards the system of checks and balances on governmental power, there is an inherent problem in this comparison. Moreover, the Government Respondents did not present even one example of a statutory limitation in regard to the activities of the most senior elements of the executive branch that is of such exceptionally broad scope as those deriving from the amendment that is the subject of the petitions (on the exceptional nature of the limitation established in the Amendment from a comparative law perspective, also see: the Preparatory Document of June 23, 2023, p. 6). One of the examples cited by the Government Respondents in this regard is the recent British judgment in R v Upper Tribunal (Immigration and Asylum Chamber) [160], which addressed a law that removed the jurisdiction of the court to conduct judicial review of an administrative tribunal, including both the trial and appeals court (see: Tribunals, Courts and Enforcement Act 2007, c. 2, § 11A). That judgment treated of the removal of the possibility for a third examination of administrative decisions in specific areas, after two quasi-judicial instances had addressed them. As opposed to that, in our matter, the Amendment establishes that the reasonableness of all decisions of the Government, the Prime Minister, and the ministers shall not be subject to judicial review of any sort.

172.     From the data presented by the Knesset, we learn that over the last decade the High Court of Justice has handed down 44 judgments in which petitions were granted (in whole or in part) on the basis of the reasonableness standard, of them, 16 judgments concerned decisions by the Government or one of its ministers. This data shows that the scope of intervention on the basis of the reasonableness standard is not great (and see: Zamir, Administrative Power, 3604). This is primarily attributable to the consistent position of the case law that “the court does not examine whether it was possible to make a more correct, more proper, more efficient, or better decision. As long as the decision that was chosen falls within the margin of reasonableness, there is no ground for the intervention of the court” (Emunah, 511; and see: HCJ 3758/17 Histadrut v. Courts Administration [146] para. 35, per Justice Danziger; HCJ 4838/17 Unipharm, Ltd. v. Natural Gas Authority [147] para. 32). It has similarly been explained on numerous occasions that one must show extreme unreasonableness in order for the Court to be willing to intervene in the discretion of the authorized body (see, e.g.: HCJ 4374/15 Movement for Quality Government v. Prime Minister [148] para. 46, per Deputy President Rubinstein; HCJ 6637/16 Levenstein Levi v. State of Israel [149] para. 32, per Justice Vogelman). This is all the more so the approach where Government and ministerial decisions are concerned. This is so given the rule in regard to the broad margin of reasonableness in regard to decisions made by authorities “of high status in the governmental hierarchy” (HCJ 4999/03, para. 18 of my opinion). This rule accordingly leads to limiting the scope of judicial review in their regard.

173.     Nevertheless, although the number of a cases in which the Court ultimately intervened in administrative decisions on the basis of the reasonableness standard it not large, that is not a reason for underestimating the severity of the consequences of the Amendment. First, the data illustrates that despite the Court’s restraint in regard to governmental and ministerial decisions, those decisions constitute more than a third of the decisions voided by the Court on the basis of the reasonableness standard over the period surveyed. Second, one cannot evaluate the importance and the influence of the reasonableness standard only on the basis of the cases that came before the Court. As President Naor emphasized:

The importance of reasonableness is in the deterrence of the government authorities. An authority that knows that the Court may intervene in its actions if it acts extremely unreasonably, will examine the reasonableness of its decision before adopting it (Hanegbi, 2014, para. 2; and see: Barak-Erez, Administrative Law, 769).

            The Attorney General also noted this in her Affidavit in Response, in which she pointed out that judicial review was not required in regard to the overwhelming majority of governmental decisions, inter alia, because the legal advisors already emphasize the need to meet the duty of reasonableness under the circumstances in the decision-making process. However, the Attorney General was of the opinion that “from the moment that such decisions will no longer be subject to effective judicial review, and the person harmed by the decision will no longer have a judicial remedy, the Attorney General’s opinion in regard to that decision will naturally be of limited, if any, influence” (ibid., para. 283). Indeed, despite the fact that the duty to act reasonably still applies to the elected echelon, denying the possibility of judicial review of the reasonableness of Government and ministerial decisions bears direct, severe consequences for the stages of developing and reaching decisions inasmuch as “a government that knows in advance that it is not subject to judicial review might not give reign to the law and might cause its breach” (HCJ 217/80 Segal v. Minister of the Interior [150].

174.     Lastly, it should be emphasized that the future consequences of the Amendment may be far more severe, given that it does not comprise any restriction upon the transfer of powers currently held by other agencies of the executive to the Government and the ministers. Section 34 of Basic Law: The Government establishes: “A Minister, who is in charge of implementing a law, is entitled to assume any power, with the exception of powers of a judicial nature, which is conferred by that law upon a civil servant, unless another intention is implied in the law. The Minister is entitled to act as stated with regards to a particular matter, or a specific period”. In other words, nothing can prevent a minister from assuming the power to make the most harmful decisions, in terms of their reasonableness, in order to make them immune from judicial review. In its Affidavit in Response, the Knesset proposed that the Court examine whether there was an abuse of the authority to assume the power (ibid., para. 316(e)), but given that the assumption of power would be lawful, and in view of the difficulty in proving that the assumption of power was done for extraneous considerations, it would seem that the main ground that could be employed for examining the minister’s discretion would actually be that of reasonableness. In any case, as we learn from MK Rothman’s statement in the course of the Committee’s debates, the ability of a minister to assume powers is not a “bug” in the Amendment, but rather one of its features:

Advocate Blay: There is a fear that the system of incentives will be such that when there is a decision regarding which there is a concern about its reasonableness, the minister will then make that decision in order to grant it immunity.

MK Rothman: Excellent. No, not in order to grant it immunity. Excuse me, that is a statement that I do not accept. Not in order to grant it immunity. When there is a decision that the minister thinks must be adopted because it is reasonable, because it is a decision that he sees as appropriate and correct that should be accepted in this specific case, then he will do it (Transcript of meeting 125, p. 27).

            The Government Respondents also explain that in their view “if a minister assumed the power of another body […] then it is a decision that the minister adopted in the scope of his authority, and it would not be subject to judicial review on the ground of reasonableness” (para. 46 of their Supplemental Brief; and see para. 28 of the Knesset’s Supplemental Brief). They further argue that “if a minister established a policy in the scope of his authority, an individual decision made as a direct result of that policy is not subject to judicial review on the ground of reasonableness” (ibid.). It should also be noted that it is possible to amend the law in a manner that would expand the powers held by ministers (as an example in this regard, the Attorney General pointed to the Police Ordinance (Amendment no. 37) Law, 5783-2022, which recently expanded the powers of the Minister of National Security, regarding which there is a pending proceeding before this Court – HCJ 8987/22 Movement for Quality Government in Israel v. Knesset). All the above serves to demonstrate the broad scope of the influence of the Amendment, even beyond the specific powers currently granted by law to the Government and the ministers.

175.     Judicial review of the decisions of governmental authorities, among them the Government and its ministers, is a “cornerstone of a democracy which upholds the rule of law” (Hanegbi 2003, 834-835). Examining the significance of the Amendment in depth shows that denying judicial review in regard to the reasonableness of Government and ministerial decisions leads to destructive, harmful consequences at the very heart of the rule of law. We are concerned with a fatal, multi-dimensional blow: in practice, the Amendment leads to placing the Government and its ministers “above the law”; it creates judicial review “vacuums” in regard to important public interests like good governance and the integrity of the civil service, as well as in regard to the conduct of a transition government during the elections period; and it opens the door to the transfer of broad powers to the ministers in order to shield decisions from judicial review.

E.         Amendment no. 3 to Basic Law: The Judiciary constitutes a Deviation from Constituent Authority

176.     Amendment no. 3 to Basic Law: The Judiciary is an extreme, exceptional amendment by any criterion. It has no parallel in our constitutional history and it strikes head-on at the heart of two of the core characteristics of the State of Israel as a democratic state. The words of Justice Rivlin, written some two decades ago, are appropriate here:

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 […] 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” […] (Hanegbi 2003, 835).

177.     Denying the reasonableness standard in regard to decisions by the elected echelon significantly increases the power concentrated in the hands of the Government and poses a real threat to the individual, whose path to the Court for the purpose of obtaining relief is barred in a variety of situations in which he may suffer serious harm to his important interests as a result of governmental actions. Along with this, the Amendment gives rise to a situation in which, although the duty of reasonableness continues to apply to all of the administrative authorities, the most powerful elements of the executive branch are effectively exempt from that duty in the absence of any possibility of enforcing it upon them. This situation in which “there is law but no judge” leaves entire areas of important decisions without effective judicial review, it prevents the protection of public interests like ethical conduct and good governance, it may lead to a fundamental change of the civil service in the state, to severe harm to the independence of the law enforcement system, and to the exploitation of governmental resources for political gain during elections.

178.     The reasonableness standard has been developed in the case law since the founding of the state and became grounded as “a central and critical tool for exercising judicial review of the administration” (Merchants Association, para. 37, per Justice Barak-Erez). In view of the severe consequences deriving from the comprehensive exemption from judicial review on the ground of reasonableness granted to the elected echelon, I am of the opinion that the Amendment in which that exemption was established stands in facial contradiction to the existing constitutional foundation.

            Although it only abolishes one ground among the grounds for administrative review in regard to the elected echelon, the specific amendment before us grants, by its extreme language, absolute immunity from judicial review of the reasonableness of all the decisions of the elected echelon, which holds the most governmental power. The Amendment does not permit an individual to turn to the Court to present arguments in regard to the reasonableness of those decisions, and it constitutes a sweeping removal of oversight and of necessary restrictions of the Government and its ministers, without adopting any other mechanisms to compensate for that. It is possible that such a denial of one ground for review in regard to the elected echelon in another legal system would lead to a more moderate infringement of the separation of powers and the rule of law. But an examination of the Amendment against the background of Israel’s constitutional reality shows that such a significant limiting of judicial review in regard to the elected echelon in that reality undermines the foundations of the already frail system of the checks and balances.

179.     That being so, I have reached the conclusion that Amendment no. 3 to Basic Law: The Judiciary constitutes an edge case whose enactment constitutes a deviation from the Knesset’s constituent authority. In view of this conclusion, there is no reason to address the arguments raised by the Petitioners and the Attorney General in regard to the overall plan for the reform of the legal system, which is composed of other initiatives that have not yet been approved by the Knesset. The Amendment before us itself contradicts foundational principles grounding the democratic character of our system, given the magnitude of its harm to the principles of the rule of law and the separation of powers.

F.         The Remedy for the Knesset’s Deviation from Constituent Authority

180.     The Petitioners and the Attorney General argue that in view of the Knesset’s deviation from its constituent authority, the Amendment should be declared void.

            Is voiding the Amendment the remedy required by the situation before us? Would it not be possible to suffice with a more moderate constitutional remedy (compare: Arad-Pinkas, paras. 32-38, per Justice Vogelman)?

181.     The case law and the literature have recognized situations in which it was possible to suffice with the remedy of severance by physically or conceptually separating the valid part from the invalid part that must be voided, to the extent that it is possible given the purpose of the law and the legislative tapestry (Arad Pinkas, para. 37 of my opinion; Eitan, para. 81, Justice Vogelman; Aharon Barak, “On the Theory of Constitutional Remedies,” 20 Mishpat V’asakim 301, 350-353 (2017) [Hebrew]). The possibility of granting such relief was not raised by the parties, and I believe it was for good reason. Physical textual severance is not relevant to the matter in view of the Amendment’s general, comprehensive language. Conceptual severance – for example, by way of not applying the Amendment to certain decisions of the elected echelon – is also inappropriate here as the wording of the Amendment does not allow for a straightforward, clear distinction among the situations to which the Amendment would apply and those that would be removed from its compass. That being the case, applying conceptual severance would effectively require a complex, detailed process of rewriting the constitutional text de novo by the Court. It has already been held in this regard that the Court is not meant “to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset” (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance [151] 639; and see: HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [152] 413-414). This is a fortiori the case where a Basic Law is concerned. It is not the role of the Court to enact a new amendment to the Basic Law to replace the extreme, exceptional amendment that the constituent authority chose to enact.

182.     Another possibility raised by some of the Petitioners is the remedy of postponed application, which was noted as an alternative remedy on the basis of the doctrine of abuse of constituent power. Given that the Knesset’s deviation from its constituent authority is to be found in the content of the arrangement itself and is not contingent upon the date of its entry into force, this remedy is insufficient to repair the Amendment’s severe harm to the nuclear characteristics of our system.

183.     In the absence of another remedy that might provide a response to the unprecedented harm to the nuclear characteristics of the State of Israel as a democratic state at a result of Amendment no. 3 to Basic Law: The Judiciary, I am of the opinion that there is no recourse but to declare the Amendment void.

            G.        Additional Defects raised by the petitions

184.     In view of my conclusion according to which the Amendment should be declared void by reason of the Knesset’s deviation from the boundaries of its constituent authority, I can, as noted, suffice with but a few comments upon the arguments raised by the Petitioners and the Attorney General in regard to other defects in the Amendment.

            G.1.     The Claim that the Amendment constitutes an abuse of constituent power

185.     One of the arguments raised in the Petitions before us is that the Amendment does not satisfy the supplementary tests established in Shafir for identifying a constitutional norm – particularly the test of generality and that of compatibility to the constitutional fabric – and it should therefore be held that it was enacted through an abuse of the constituent power. The Attorney General is also of the opinion that the Amendment constitutes an abuse of constituent power and does not satisfy the supplementary tests established in this regard in Shafir.

186.     The Amendment before us does indeed raise serious questions in terms of satisfying the supplementary tests for identifying a constitutional norm. The primary difficulty concerns the test of compatibility with the constitutional fabric. This test is based upon the presumption that “as opposed to ‘regular’ legislation intended to address everyday matters, basic legislation is intended to address matters at the core of the constitutional regime of the State of Israel” (Shafir, para. 41 of my opinion).

187.     Basic Law: The Judiciary, to which sec. 15(d1) was added by Amendment no. 3, establishes a list of general constitutional principles in regard to the operation of the courts. The Explanatory Notes to the Basic Law bill already explained that it only establishes a general framework, and that concrete provisions as to the exercise of the authority of the Supreme Court and the other courts will be established in supplementary laws (Explanatory Notes to Basic Law: The Judiciary Bill, Bills 5738, 236; Shafir, para. 10, per Deputy President Hendel). Indeed, a few months after enacting Basic Law: The Judiciary, the current version of the Courts Law [Consolidated Version], 5744-1984, was enacted (hereinafter: Courts Law), which establishes a number of implementary provisions in regard to the jurisdiction and activities of the courts.

            This conception of the general nature of the arrangement established in Basic Law: The Judiciary is clearly reflected in its provisions. Thus, sec. 15 of the Basic Law arranges the general jurisdiction of the Supreme Court and expressly states that “other powers of the Supreme Court shall be prescribed by law” (sec. 15(e)). Among the general matters of jurisdiction arranged in the Basic Law, sec. 1(c) anchors the jurisdiction in principle of the Supreme Court sitting as High Court of Justice “to provide relief for the sake of justice”, and sec. 15(d) details the broad categories in which the High Court of Justice may grant orders – for example, to issue orders to “state authorities, to local authorities, to their officials, and to other bodies and persons holding public office under the law” (sec. 15(d)(2)). Section 15(d) does not treat of the details of the legal causes of action that might justify judicial intervention, and it also expressly establishes that nothing therein detracts from the general jurisdiction of the High Court of Justice as stated in sec. 15(c). In other words, even if a particular case does not fall within one of the categories listed in sec. 15(d), this Court sitting as High Court of Justice has the general jurisdiction to grant relief for the sake of justice in such cases where it sees a need (see: Barak-Erez, Procedural Administrative Law, 53). As for other judicial instances, the Basic Law establishes that the “establishment, powers, seat and jurisdiction areas of district courts, magistrates' courts, and other courts shall be in accordance with the law” (sec. 16).

188.     Against the background of the general provisions of Basic Law: The Judiciary, it is difficult to harmonize the Amendment – in term of its character and level of abstractness – with the Basic Law that it amends. In practice, sec. 15(d1), which was added by the Amendment, establishes a specific arrangement in regard to the abolition of a specific ground of judicial review in the field of administrative law. This section is inconsistent with the internal logic of the general arrangement established under sec. 15 of the Basic Law. Thus, while sec. 15 treats of the general jurisdiction of the Supreme Court, the Amendment concerns the narrowing of the jurisdiction of all the courts (“a holder of judicial authority under law”) in regard to judicial review.

189.     The exceptional nature of the Amendment – which abolishes a specific administrative standard – in the framework of Basic Law: The Judiciary is particularly remarkable given that the rules of administrative law, including the duty of reasonableness to which the Amendment refers, are not set out in statutory law, let alone in basic legislation. This problem concerning the exceptionality of the Amendment was addressed by the Committee’s legal advisor, Advocate Blay, in the course of the Committee’s debates on the bill (Transcript of meeting 105, p. 85). The Deputy Attorney General, Advocate Limon, also addressed the exceptionality of the amendment to Basic Law: The Judiciary:

Had the bill actually sought to treat of the complexity of the reasonableness standard, and there is such complexity, as I will explain further on – it would first address all of the definitions of the reasonableness duty in administrative law, and not do so by means of amending Basic Law: The Judiciary. But the bill does not refer in any way to the basic principle – the grounding of the reasonableness standard. Instead, the bill comprises only one element, with the most serious consequences – the absolute barring of judicial review of unreasonable decisions, based upon the identity of the decision maker, in regard to the most important decisions made by the highest level of government (Transcript of meeting 108, p. 10).

190.     An examination of the general constitutional fabric also makes it difficult to harmonize the Amendment with other arrangements in Israeli law. Thus, we were not presented with a similar statutory provision that treats of the abolition of a specific cause of action or ground for administrative review, as opposed to provisions that restrict or delimit judicial oversight, which are generally established in primary legislation (see, e.g.: sec. 16(c) of the Petroleum Law, 5712-1952; sec. 11(e) of the Victims of Hostile Action (Pensions) Law, 5770-1970; sec. 59 XXXI of the Government Companies Law, 5735-1975; sec. 5B of the Defense Service Law, 5746-1986).

191.     In my opinion, the complex of problems noted above raises a serious concern that the decision to include the Amendment under the title “Basic Law” was intended for no other reason that to immunize it from the judicial review that applies to “regular” legislation (see and compare: Porat, 914; Herut, 756; HCJ 2208/02 Salameh v. Minister of the Interior [153] 953; Barak-Erez, Procedural Administrative Law, 125).

192.     An additional problem raised in our matter concerns the generality test. In Shafir, the importance of the generality requirement was noted in regard to Basic Laws, whose character is meant to reflect broad societal consensus as opposed to the particular interests of some majority or another (see: para. 40 of my opinion; and see: Bendor, “Legal Status”, 164). It was further made clear in that matter that a personal norm may be directed at a specific person as well as an institutional “persona” like the Knesset or a particular Government (Shafir, para. 40 of my opinion; Academic Center, para. 6, per Justice Hendel). It has also been held that the immediate entry into force of a norm does not absolutely rule out its identification as a constitutional norm, but it may sometimes raise a problem as to its generality (Rotation Government, paras. 14-15 of my opinion, and para. 5 per Justice Baron; and see: Scheinfeld, para. 42 of my opinion, and paras. 48-49 per Justice Barak-Erez).

            In the matter before us, one cannot ignore the fact that the Amendment, which goes into immediate force, abolished judicial review on the basis of reasonableness only in regard to decisions by the Government and its ministers, while the other administrative authorities continue to be subject to it. Thus, the Amendment exclusively benefits the Government and its ministers. It grants them an “exemption” from judicial oversight in the circumstances to which it applies, and immediately strengthens their governmental power. This problem is sharpened given that the Government – which, as noted, is the sole beneficiary of the Amendment – is the one that, in practice, worked to promote the Amendment and approve it by means of the coalition majority that it enjoys in the Knesset. Under these circumstances, I am of the opinion that the unique characteristics of the arrangement, among them the nature of the arrangement concerning the removal of the oversight mechanisms only as they apply to the Government and the ministers and its immediate application to the 37th Government – which is the “animating spirit” behind the Amendment – can, indeed, raise a concern that it is intended to serve the narrow interests of a particular political majority in a manner that would allow it to buttress its governmental power. This, as opposed to a similar amendment that would be advanced behind a “veil of ignorance” without being able to know to which Government it grants the “exemption” from judicial review on the ground of reasonableness.

            However, and as noted above, I do not see any need to make a definitive ruling on the question of whether the problems noted above rise to the level of an abuse of constituent power in the present matter. This, in view of the conclusion I reached in regard to voiding the Amendment on other grounds.

            G.2.     Arguments concerning defects in the legislative process of the Amendment

193.     The Petitioners argue at length in regard to defects in the legislative process of the Amendment. In this regard, it is argued, inter alia, that the manner in which the debates were conducted in the Constitution Committee and the short period in which the Amendment was advanced hindered the possibility for members of the Knesset to participate substantially in its legislative process. They additionally complained of the Amendment’s being advanced as a Constitutional Committee bill under sec. 80 of the Knesset Rules which, they argue, was intended to circumvent the limitations that apply to private member’s and government bills.

194.     In view of the elevated status of Basic Laws in our system, the case law has emphasized that “the constituent authority must respect the norms that it creates wearing this hat, and ensure that changes in the rules of the game that define the constitution be carried out in a proper proceeding, with transparency and accountability to the public” (Academic Center, para. 5, per Justice Hendel). And in the same vein, it was noted in Scheinfeld that “it would be better that amendments to Basic Laws not be advanced hastily and on a fast track” (Scheinfeld, para. 45 of my opinion).

            The manner in which the enactment of the Amendment was managed is not problem free in this regard, to put it mildly. As we see from surveying the proceedings in the Knesset, the legislative process took only about a month, despite the dramatic consequences and the strong objections raised in its regard. The very accelerated legislative process was expressed, inter alia, in the use that was made of the objections procedure and of sec. 98 of the Knesset Rules in order to establish special debate procedures and to shorten the timetable for approving the Amendment. Reading the transcripts of the debates shows that the Committee’s debates were conducted in a harsh, adversarial manner, and in the final analysis, the various proposals raised in the course of the debates, both by members of the Committee and by the professionals who participated in the legislative process, received no expression whatsoever in the Amendment Bill presented for a second and third reading: the bill remained virtually unchanged in comparison to the parallel section that appeared in the draft of the Basic Law bill that MK Rothman submitted on January 17, 2023. In its Affidavit in Response, the Knesset also noted the problems that arose in the legislative process and noted that “it would have been possible to adopt a better process than the one implemented in practice” (ibid., para. 224). The Knesset’s attorney fittingly noted this in the hearing of the Petitions (p. 6 of the Transcript).

195.     Despite tall he problems noted, I am of the opinion that, as far as concerns the principle of participation – which establishes the right of the members of the Knesset to take part in the legislative process – the high threshold established for intervention in this regard, according to which one must show that the defect goes to the heart of the process and that  the “Knesset members were not afforded the possibility to scrutinize and consider the proposed bill, even if only in the most basic sense” (Quintinsky, para. 79, per Justice Sohlberg); see and compare: HCJ 3234/15 Yesh Atid Party v. Speaker of the Knesset [154] para. 12) was not crossed.

196.     The additional arguments raised by the Petitioners concerning the use of the provisions of sec. 80 of the Knesset Rules raise more complex questions. Section 74(b) of the Knesset Rules establishes three paths for submitting a bill to the Knesset: a private member’s bill submitted by a member of Knesset who is not a minister or a deputy minister; a government bill; a bill on behalf of a Knesset committee. The legislative procedure for a bill on behalf of a committee is exceptional, and somewhat lenient in comparison to the legislative procedure for bills in the other two legislative paths. This is the case because bills presented on behalf of a committee are exempt from the preliminary requirements that apply to a private member’s bill prior to the first-reading stage, among them, holding a preliminary reading in the plenum and the requirement that the bill be laid on the table 45 days prior to the preliminary reading (secs. 75(e) and 76 of the Knesset Rules). In addition, the procedure for preparing a bill under the committee path is not subject to the provisions that apply to a government bill, such as the Attorney General’s Directives that require preparatory administrative staff planning by the relevant ministry, preparation of a memorandum and its publication to the public, and approval of the bill by the Ministerial Committee for Legislation (Directives of the Attorney General 2.3.005 “Treatment of Government Bills” (March 5, 2018).

197.     Therefore, there would seem to be good reason for sec. 80 of the Knesset Rules limiting the use of this abridged path to certain committees – the House Committee, the Constitution Committee, and the State Control Committee – and to a defined list of subjects, and this on the condition that the subject of the bill be within the sphere of the committee’s competence:

80. (a) The House Committee, the Constitution, Law and Justice Committee, and the State Control Committee are entitled to initiate bills in the spheres of their competence as elaborated in these Rules of Procedure, on the following topics, and prepare them for the first reading: Basic Laws, matters that are required due to an amendment of a Basic Law, and are proposed side by side with it, the Knesset, Members of the Knesset, the elections to the Knesset, political parties, party financing, and the State Comptroller.    

(b) Once the Committee has prepared a bill for the First Reading, the Secretary General of the Knesset shall provide for its publication in the Official Gazette – Knesset Bills, together with explanatory notes.

198.     The possibility of a Knesset committee submitting a bill – although it was actually put into practice in the first early years of the Knesset – was first arranged in a decision of the House Committee of Nov. 24, 1980 (Transcript of meeting 281 of the House Committee of the 9th Knesset, 2 (Nov. 24, 1980) (hereinafter: the House Committee’s Decision). In 2011, the Knesset Rules were amended to add sec. 80 that established an arrangement materially similar to the one established by the House Committee. One of the changes included in the section, as opposed to House Committee’s Decision, was to limit the possibility of submitting bills on behalf of a committee to three specific committees and to the spheres of their competence as elaborated in the Rules of Procedure. Examining the House Committee’s debates on the subject reveals that restricting the use of the path for bills on behalf of a Knesset committee derived, inter alia, from the concern that committees might employ this path in order to skip the preliminary stages and go directly to a first reading (Transcript of meeting 161 of the Knesset House Committee, the 18th Knesset, 55-56, 60 (March 1, 2011).

199.     It would appear that, over the years, relatively little use was made of the path for submitting bills on behalf of a committee. In regard to Basic Laws, the data published on the Knesset website shows that since the establishment of the state, 26 bills initiated in bills on behalf of a committee for Basic Laws and for amending Basic Laws were approved in a third reading. An examination of the subjects addressed by those bills shows that, as a rule, they treated of subjects related in some way to the Knesset, for example: work procedures of the Knesset and its members, elections, and the Budget Law (see, e.g.: Basic Law: The Knesset (Amendment no. 12) S.H. 5771 90, which concerned the candidacy of a Member of Knesset who had left his faction to stand for election in the following Knesset; and Basic Law: The Knesset (Amendment no. 24), S.H. 5751 186, which comprises various provisions in regard to the Speaker of the Knesset and the Deputy Speaker). This is the case but for three prominent exceptions: the first is Basic Law: The Government (Amendment no. 6) S.H. 5757 114 – which treats of the capacity of a person who holds an additional citizenship to serve as a minister; the second is Basic Law: The Judiciary (Amendment no. 2), S.H. 5762 598 – which established that the Ombudsman of Judges would be included in the list of people who could recommend the termination of the tenure of a judge to the Judicial Selection Committee; and the third is the Amendment that is the subject of the present petitions. However, in the first two matters, as with the overwhelming majority of Basic Law bills that were adopted and that treated of matters of the Knesset, the bills were approved by a broad consensus and without significant opposition, which is not the case in the matter before us.

200.     The method by which sec. 80 was employed over the years thus shows that Basic Law bills on behalf of the Constitution Committee were generally submitted when at least one of the following conditions was met: the first – the bill concerned matters of the Knesset (such as elections, party financing, the budget, etc.); the second – the bill was advanced with broad support.

            This method was also addressed by the legal advisors of the Committee and of the Knesset in regard to the broader category of all the bills on behalf of a committee (and not just Basic Law bills). Thus, already in the Preparatory Document submitted by the Committee’s legal advisors on January 16, 2023, which concerned the advancing of a Basic Law bill on the subject of government legal advisors, it was explained that bills on behalf of a committee constituted a relatively rare “legislative path” that “was reserved, in the overwhelming majority of cases, for subjects that were not controversial or to subjects tightly connected to the Knesset and its activities”. The Knesset Legal Advisor, Advocate Afik, also pointed out that:

The significance of a bill on behalf of a committee is, in effect, skipping over a process of preparation for the first reading, with all the significance that entails, and in effect, it makes the bill coming from the committee similar to a government bill.

[…]

When we look at the bills on behalf of a committee that were proposed here over the years, it can be said: A – that were not many, it is not a process that the Knesset usually employs, that the high road in the Knesset is usually a private member’s bill. Bills on behalf of a committee are really, as noted here, for times when there was a kind of consensus in the Knesset and they wanted to adopt it by means of a bill on behalf of a committee, which was appropriate to the subjects that appeared in the Knesset Rules in regard to that matter which the Knesset addresses and wants to find a solution for them (Transcript of meeting 7, p. 31)

201.     In Advocate Afik’s memorandum of January 25, 2023, she concluded that it was possible to advance the Basic Law: Strengthening the Separation of Powers Bill as a bill on behalf of the committee. That bill concerned changing the composition of the Judicial Selection Committee, limiting the judicial review of Basic Laws and primary legislation, and abolishing the reasonableness standard. This was the case because, in her opinion, that bill concerned “constitutional arrangements that arrange the relationship of the branches, and specifically, the relationship of the Knesset and the judiciary”. A few months later, against the background of the start of the debate on the Amendment Bill that is the subject of the petitions, Advocate Afik again referred to her memorandum of January 25, 2023 in regard to the Basic Law: Strengthening the Separation of Powers Bill, and noted that “we now have on the Constitution Committee’s agenda the last element of that Basic Law bill – limiting the use of the reasonableness standard” (see: para. 4 of Advocate Afik’s letter in response to MK Kariv of July 2, 2023, which was appended as R/17 to the Knesset’s Affidavit in Response).

202.     In my opinion, Advocate Afik’s position in regard to the appropriateness of the Amendment Bill to the path of a bill on behalf of a committee raises a problem. As can be seen from the survey presented above, advancing the Amendment Bill that is the subject of the petitions as a bill on behalf of a committee constitutes a significant deviation from the Knesset’s practice as established over the years in regard to the accepted use of the path established in sec. 80 of the Knesset Rules. Thus, as opposed to the manner in which the section was employed by the Knesset over the years, the amendment before us was clearly not advanced with a broad consensus, and it also does not treat of matters of the Knesset but rather of the scope of judicial review over the actions of the Government.

            In examining the scope of the use of sec. 80 of the Knesset Rules, significant weight should be given to the practice by which bills for Basic Laws on behalf of committees that were approved concerned matters of the Knesset or were enacted with broad consensus (or both). In this regard, I noted in HCJ 706/19 Frej v. Speaker of the Knesset [151] that:

The work tradition of the Knesset as customary and accepted by it certainly carries weight. According to sec. 19 of Basic Law: The Knesset, it determines how the Knesset should act where work procedures have not been prescribed by law or in the Rules. A fortiori, weight should be given to the manner in which the Knesset acts when it acts over the course of years to implement a provision of the Rules in accordance with its accepted practice for interpreting it. It has already been held that when a possible interpretation of a legal provision is consistent with the factual situation created and by which it acts, that should be preferred to another possible interpretation that deviates from that situation (ibid., para. 9 – emphasis added); and see: Edelstein, para. 12 of my opinion).

203.     Ensuring a proper legislative procedure is of particular importance when we are concerned with enacting a Basic Law. As I noted above, the absence of a rigid mechanism for adopting and amending Basic Laws is conspicuous in our constitutional project, and there is currently no real difference between the procedure for adopting and amending a Basic Law and the procedure for enacting “regular” laws as arranged in the Knesset Rules (see: para. 75 above; Bar-On, para. 20, per President Beinisch; Academic Center, para. 36, per Deputy President Rubinstein). Therefore, and in the absence of Basic Law: Legislation, I am of the opinion that one must be particularly strict in observing the provisions of the Knesset Rules in the process of adopting Basic Laws, which is currently the primary – and actually the only – mechanism that arranges the procedure for adopting and amending the norms that sit at the apex of our system’s normative pyramid. One must, therefore, strictly insist that employing the path of a bill on behalf of a committee, established in sec. 80 of the Knesset Rules, be done only in the cases for which it was intended, in accordance with the work tradition that has been established by the Knesset in this regard. This is particularly so given the nature of the arrangement, which establishes an “abridged” path for advancing bills in comparison to private member’s and government bills, and it therefore raises an inherent concern that it might be abused in order to circumvent the procedural requirements found in the other paths.

 

Afterward

204.     After writing my opinion, I read the comprehensive opinions of the other members of the panel, and I would like to add but a few brief comments in regard to the opinions of my colleagues Justices Sohlberg and Mintz, who are of the opinion that there are no limits upon the Knesset’s constituent power and that this Court lacks jurisdiction to review Basic Laws.

205.     My colleague Justice Sohlberg dedicates a significant part of his opinion to a historical survey of the opinions of the Presidents and justices of this Court over the generations and seeks to derive from it that the consistent position of the case law since the establishment of the state is that the constituent power of the Knesset is unrestricted. I find this conclusion problematic, to put it mildly. First, some of the judgments to which my colleague refers were written before there was  a single Basic Law in the Statutes, and a few even preceded the “Harari Decision”. Second, the vast majority of quotes that my colleague cites do not in any way concern the Knesset’s power as a constituent authority. It is, therefore, unclear how he can rely upon those quotes that did not treat of the questions before us at present and that referred to an entirely different constitutional context.

            Third, even were I to accept the position of my colleague Justice Sohlberg that one can apply those quotes to the matter before us, if only by analogy, my colleague’s historical survey ends – and for good reason – at the beginning of the nineteen nineties. This, while completely ignoring the important developments and the significant strides in Israeli constitutional law over the course of the last three decades. The concept upon which my colleague Justice Sohlberg relies in regard to the unlimited sovereignty of the Knesset was not accepted in the Mizrahi Bank decision nor in the years that followed. Instead of that concept, the theory that was adopted over the years was that of the constituent authority, which recognizes that Basic Laws place restrictions upon the Knesset in enacting laws, while concomitantly not conceptually rejecting the existence of limits upon the constituent authority (see: Mizrahi Bank, 394; HCJ 4676/94 Mitral, Ltd. v. Knesset [156] 28; The Tal Law case, 717; Bar-On, 311-312; Academic Center, para. 35, per Deputy President (emer.) Rubinstein; para. 3, per Deputy President (emer.) Joubran; and para. 11, per Justice Mazuz). We also walked this same path just recently in an expanded panel in Hasson, where we held that the Knesset is not “all powerful” in adopting Basic Laws, and that it is not within its power to facially deny the nuclear characteristics of the State of Israel as a Jewish and democratic state.

206.     In the opinion of my colleague Justice Sohlberg, I chose “to take the short path” in all that concerns the basic question of the source of the limitations upon the constituent power, and he further notes that it is unclear what those “constitutional data” may be from which we can learn of those limitations (para. 105 of his opinion). In that regard, I can only refer back to what is stated in paras. 64-67 above, and to paras. 19-31 of my opinion in Hasson, which also refer to that issue. In my view, the Declaration of Independence, the Basic laws, and the statutes enacted by the Knesset over the years, as well as the case law of this Court, clearly inform us that the identity of the State of Israel as a Jewish and democratic state cannot be questioned – not even by the constituent authority. On this basic issue, it would seem that there is a gaping abyss between most of the members of this panel and my colleagues Justices Sohlberg and Mintz. In their view, as Justice Sohlberg writes, “all of the constitutional data leads to the opposite conclusion, according to which ‘the habitat’ of the constituent authority – is unlimited” (para. 105 of his opinion). In other words, My colleagues Justices Sohlberg and Mintz are of the opinion that any piece of legislation entitled “Basic Law”, even if it dismantles the building blocks upon which the Israeli constitutional enterprise is built, and even if it defaces the “birth certificate” and the “identity card” of the State of Israel as a Jewish and democratic state, cannot be questioned. To that, I am afraid, I cannot agree.

207.     The idea that there is no explicit source of authority that empowers the Court to examine whether the Knesset deviated from its constituent authority runs as a common thread through the opinions of my colleagues Justices Sohlberg and Mintz (see para. 70 above). But for my colleagues, this starting point is also the end point. I take a different position, and as I explained in my opinion, the approach of my colleagues in this regard has also not found purchase in many legal systems around the world, in which the courts have long held that even in the absence of an express basis, they hold the power to examine the “constitutionality” of amendments to the constitution as part of their role in defending it (see: paras. 61 and 69 above). In Israel, as we know, the task of establishing a constitution has not yet been completed. Therefore, we refrained from expressing a decisive view on this question. However, despite the complexity of the issue, it is no longer possible not to address it, and even the Government Respondents in these petitions asked that we decide this issue on the merits. Given that there are limits upon the Knesset’s constituent power, given that the existing constitutional reality in Israel makes it possible to fundamentally change our Jewish and democratic character with great ease, and given the role of the Court in our legal system – I am of the opinion that in those edge cases in which the Knesset exceeded the boundaries of its constituent power, the Court holds jurisdiction to decide that the norm is not constitutionally valid.

208.     My colleague Justice Sohlberg notes that even were he to accept the view that this Court holds jurisdiction to review Basic Laws, intervening in them requires a “consensus” among the justices (paras. 127-129 of his opinion). I assume that by those words, my colleague seeks to outline the approach for the constituent authority to establish the lege ferenda in accordance with his approach. But as long as no other decision rule has been established in a statute or Basic Law, we have only the rule that when there is a difference of opinion among the justices, the decision will be in accordance with the opinion of the majority of the panel (sec. 80(a) of the Courts Law). And note – just as this Court is not meant to stand in the shoes of the constituent authority and establish what special majority is needed for adopting a Basic Law, it is not meant to “enact” special decision rules for itself. As we have noted on more than one occasion, in order to arrange these matters, it is necessary to enact Basic Law: Legislation, which, sadly, is still missing from our constitution-in-formation. That Basic Law is meant to address these issues and other important issues, while striking a balance among all the relevant, inextricably interrelated aspects.

209.     I would also like to briefly address my colleague Justice Sohlberg’s statements in regard to the path of proposing a Basic Law on behalf of a committee under sec. 80(a) of the Knesset Rules. My colleague is of the opinion that in carrying out an empirical examination of Basic Law bills on behalf of a committee, we should also consider those bills that were ultimately not adopted as Basic Laws. I do not think so. My colleague did not present even one example of a Basic Law bill on behalf of a committee that was not related to matters of the Knesset and that was not advanced by broad consensus and that nevertheless reached the “finish line”. Judging by the results, this fact shows that when one of these conditions was not met, the debate on those bills ended without their finding their way to the lawbooks. As opposed to my colleague’s position, I do not think that this is a “coincidence” but rather a practice that became established in the Knesset’s work, which derives from the deviation of a Basic Law bill on behalf of a committee from the caution adopted by the Knesset in the past in making use of this path. This conclusion is supported by express statements of the Knesset Legal Advisor and the legal advisor to the Constitution Committee, who also pointed to such a practice (see para. 200 above). Therefore, even after reading my colleague’s comments, I remain in my opinion that in examining the way that sec. 80(a) of the Knesset Rules has been used, we cannot ignore how the Knesset itself has acted over the years, and the practice that has become entrenched in its work in this regard.

210.     My colleague Justice Mintz notes that “the very limiting of the scope of judicial review by this Court in regard to the administrative reasonableness standard […] is not a ‘crossing of the line’ by the legislature or the constituent” (para. 83 of his opinion). I can only agree. However, as I noted above, the Amendment does not only comprise some restriction or other upon the scope of judicial intervention in certain situations. In practice, due to its extreme, sweeping language, it effectively constitutes an abolishing of the reasonableness duty that applies to the Government and its ministers that has unprecedented, disastrous consequences for the individual and for the entire Israeli public.

            Lastly. I will admit that I cannot quite fathom what my colleague Justice Sohlberg intended by the proposal that he raised in para. 250, at the conclusion of his opinion. According to that proposal, alongside the declaration of the voiding of Amendment no. 3 by majority opinion, we should collectively add and declare that “we will no longer use the reasonableness standard in regard to decisions by the Government and its ministers” except in accordance with “that tried-and-true test that has served us well since the very beginning and until the decision in the matter of Dapei Zahav […]”.  Personally, I am of the opinion that now that Amendment no. 3 has been declared void by the majority, the Court should continue to walk its well-trod path, continuing to develop the case-law reasonableness standard from case to case and matter to matter “in the good manner of the Common Law” (para. 180 of the opinion of Justice Sohlberg); and see in the same matter: the response to the parliamentary question quoted in para. 178 of his opinion).

 

Before Concluding

211.     About a month after the hearing in these petitions, a merciless terrorist attack befell us, and since then the State of Israel finds itself is in a hard and determined war against terrorist organizations that seek our destruction. We pray for the welfare of the soldiers and the members of the defense forces who risk their lives for the security of the state, and for the speedy return of those kidnapped to their homes.

            But even at this difficult hour, the Court must fulfil its role and decide the issues brought before it. This is all the more so when the issues concern the nuclear characteristics of the identity of the State of Israel as a Jewish and democratic state. To this is added the fact that the publication of our judgment at the present time is required by sec. 15(a) of the Courts Law, given the date of the retirement of Justice (emer.) Baron and the date of my retirement from the bench.

 

Conclusion

212.     Deciding upon these petitions required us, en banc, to address the sources and building blocks of the Israeli constitutional project:

Since the Declaration of Independence and up to the present day we have chosen the constitutional path. We sought to endow ourselves with a constitution that would limit the power of the majority in order to fulfill the fundamental values of the State of Israel as a Jewish and democratic state […] Once this choice is made, the judges are required to uphold it (Mizrahi Bank, 398).

            Upholding the choice to take the constitutional path means, in my opinion, an uncompromising defense against an extremely severe violation of any of the two pillars upon which the State was founded as a Jewish and democratic state.

213.     The principle of majority rule is of the “soul of democracy” (Mizrahi Bank, 546). However, it does not constitute justification for enacting a constitutional norm that would so comprehensively prevent oversight and review of the decisions of the elected echelon. “Democracy is not only majority rule and is not solely a proper process for establishing the public will by means of representatives in the legislative body. Democracy is much more than that. Democracy is also the rights of each and every person, whether a part of the majority or a part of the minority. Democracy is also the separation of powers, the rule of law (formal and substantive) and the independence of the judiciary” (The Tal Law case, 719). Given the fragile, deficient system of checks and balances in Israel, the absolute elimination of judicial review of the reasonableness of decisions of the Government and its ministers renders a substantial part of the role of the Court in protecting the individual and the public interest devoid of content:

Judicial review in a democratic state, according to the doctrine of separation of powers and the doctrine of checks and balances that developed from it, was not intended to strengthen governance but the opposite: to restrain the power of the government. To the extent that the law requires, in order to protect human rights and fundamental values from abuse of power, and to ensure good, proper, and fair governance. This function is placed upon the court and the court cannot properly fulfil this function without the reasonableness standard (Zamir, Administrative Power, 3614; and see: Scheinfeld, para. 4, per Justice Baron).

214.     For the reasons elaborated above, Amendment no.3 to Basic Law: The Judiciary cannot, in my opinion, be reconciled with the principle of separation of powers and the principle of the rule of law, which are two of the most important characteristics of our democratic system. Such a blow to the very heart of our founding narrative cannot stand.

            Therefore, I recommend that we hold that in enacting Amendment no. 3 to Basic Law: The Judiciary, the Knesset exceeded its constituent power, and that we therefore declare the Amendment void. I would further recommend that under the circumstances of the matter and given the fundamental issues concerned, there be no order for costs.

 

                                                                                                            The President (emerita)

 

Movement for Quality Government v. Knesset

Case/docket number: 
HCJ 5658/23
Date Decided: 
Monday, January 1, 2024
Decision Type: 
Original
Abstract: 

Movement for Quality Government v. Knesset concerned challenges to Amendment No. 3 to Basic Law: The Judiciary (the “reasonableness amendment”). In view of the controversy surrounding the amendment and the fundamental constitutional question it raised in regard to the Supreme Court’s jurisdiction to review Basic Laws, the Court took the unprecedented step of sitting en banc. A translation of the official abstract issued by the Court appears here.

 

On January 1, 2024, a majority of the Court (12 of 15 justices) held that the Court held the authority to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority.

 

A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary represented an extreme deviation from the Knesset’s constituent authority that left no alternative but to declare the amendment void.

 

A translation of President Hayut's majority opinion is accessible here.

 

 

Voting Justices: 
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Full text of the opinion: 

 

 

 

Abstract

HCJ 5658/23 Movement for Quality Government v. Knesset

Date of judgment: 20 Tevet 5784 (Jan. 1, 2024)

Before: President E. Hayut, Deputy President U. Vogelman, Justices I. Amit, N. Sohlberg, D. Barak-Erez, A. Baron (emer.), D. Mintz, Y. Elron, Y. Wilner, O. Grosskopf, A. Stein, G. Canfy-Steinitz, K. Kabub, Y. Kasher, and R. Ronen.

A majority of the Supreme Court (12 of 15 justices) held that the Court held jurisdiction to conduct judicial review of Basic Laws and to intervene in exceptional, extreme cases in which the Knesset deviated from its constituent authority.

A majority of the Court (8 of 15 justices) further held that Amendment No. 3 to Basic Law: The Judiciary, which comprehensively eliminated judicial review of the reasonableness of decisions of the government, the prime minister, and government ministers, should be declared void. This, in view of the serious, unprecedented harm to the core character of the State of Israel as a democratic state.

In view of the importance of the issues raised by the petitions against Amendment No. 3, the Court held an en banc hearing on Sept. 9, 2023. The events of October. 7, 2023, unrecognizably transformed Israeli reality, and the country has since been at war with murderous terrorist organizations. But inasmuch as Amendment No. 3 remains in force, and given the final date upon which President (emer.) Hayut and Justice (emer.) Baron could render judgment in accordance with the Courts Law [Consolidated Version], 5744-1984, the decision on the petitions was handed down.

The Court majority (per President Justice E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice Y. Wilner, Justice O. Groskopf, Justice A. Stein, Justice G. Canfy-Steinitz, Justice K. Kabub, Justice Y. Kasher, and Justice R. Ronen concurring) held that in exceptional, extreme cases, the Supreme Court – sitting as High Court of Justice – holds the authority to void a Basic Law that constitutes a deviation from the constituent authority of the Knesset. In this regard, the Court already held in HCJ 5555/18 Hasson v. Knesset (2021) (the “Nation State” case) that the Knesset, as a constituent authority, is not “all powerful”, and that it does not hold the authority – even by means of a Basic Law – to deny or facially contradict the core character of the State of Israel as a Jewish and democratic state. Given these limitations, and in order that it be possible to enforce them, a majority of the Court was of the opinion that the Supreme Court’s authority to conduct judicial review over Basic Laws must be recognized. Some of the justices based this conclusion upon Israel’s unusual constitutional structure, which is, inter alia, characterized by a lack of any designated, separate process for adopting constitutional norms; the problematic practice of enacting and amending Basic Laws that testifies to a contempt for the Basic Laws and to their being turned into pawns of the political majority; and upon the role of the Court in protecting the constitutional enterprise. In this regard, some of the justices emphasized Israel’s Declaration of Independence as a basis for the judicial review of Basic Laws, while others grounded that authority in Basic Law: The Judiciary, which grants the High Court of Justice authority to grant relief for the sake of justice and to issue orders to all state authorities.

A majority of the Court (per President  E. Hayut, Deputy President U. Vogelman, Justice I. Amit, Justice D. Barak-Erez, Justice (emer.) A. Baron, Justice O. Groskopf, Justice K. Kabub, and Justice R. Ronen concurring) held that the amendment that was the subject of the petitions – Amendment No. 3 to Basic Law: The Judiciary – was an extreme case in which the Knesset deviated from its constituent authority and therefore, there was no alternative but to declare the amendment void. The Court emphasized that the exceptional, sweeping language of the amendment prevented all courts from adjudicating and hearing arguments upon the reasonableness of decisions of the government, the prime minister and government ministers in regard to every decision, including a decision to refrain from exercising authority. The majority was further of the opinion that interpretation of the amendment left no room for doubt that it applies to capricious decisions and to decisions that are unreasonable in the extreme. The result is an unprecedented infringement of two of the core characteristics of the State of Israel as a democratic state – the separation of powers and the rule of law. In this regard, it was noted that the amendment significantly increases the substantial power already concentrated in the hands of the government and its ministers, while blocking the possibility for an individual to obtain relief in a wide range of situations in which grave harm may be inflicted to his important interests as a result of governmental actions. It was further emphasized that the amendment leads to a situation in which the most significant elements of the executive are effectively exempted them from their duty to act reasonably, it leaves whole areas without effective judicial review, it prevents the protection of such public interests as ethical conduct and administrative regularity, and may lead to a fundamental change of the state’s civil service, severe harm to the independence of the law enforcement authorities, and exploitation of government resources for political gain in the electoral process.

Justice Y. Wilner was of the opinion that the amendment could be upheld by means of narrow construction and therefore, the Court should not consider voiding it. Justices Stein and Canfy-Steinitz were of the opinion that it is possible and would be appropriate to construe the amendment narrowly, and that there is, therefore, no need to intervene inasmuch as it a far cry from those instances in which it might be said that the Knesset deviated from its constituent authority. Accordingly, Justices Wilner, Stein and Canfy-Steinitz were of the opinion that the amendment should be construed such that it would prevent judicial review only on the basis of reasonableness as it has developed since the Court’s decision in HCJ 389/80 Dapei Zahav v. Broadcasting Authority (1980), which focuses upon examining the balance of the various considerations for the governmental decision (“reasonableness balancing”). In accordance with their approach, the amendment, as so construed, would still allow for intervention in the case of capricious decisions in which the Court could have intervened even prior to Dapei Zahav. Justice Kasher refrained from deciding upon the question whether the amendment could be narrowly construed, holding that despite the amendment’s infringement of the separation of powers and the rule of law, it did not rise to the level that would justify the High Court’s intervention in a Basic Law.

Justices Sohlberg and Mintz dissented from the majority view in all that concerned the Court’s jurisdiction in principle to conduct judicial review of Basic Laws, as well as in regard to its authority to decide upon the question itself, noting that there is no legal source that would permit such review. According to their approach, even were one to ignore the problem of the Court’s jurisdiction, the amendment stood far from the narrow limits established by the majority, and they noted that even were it proper to adopt a narrow exception that would allow intervention in Basic Laws in extreme cases of infringement of the basic rights of the individual, the arguments in regard to Amendment No. 3 were not ripe for decision in that the amendment had yet to be interpreted and its boundaries had yet to be set. Therefore, it could not be assumed that its consequences would be as severe as suggested.

 

Following are summaries of the opinions of each of the justices (in the order of their appearance in the judgment):

President (emer.) E. Hayut:

In her opinion, President (emer.) Hayut reiterated the Court’s holding in HCJ 5555/18 Hasson v. Knesset (2021), according to which the Knesset’s power as a constituent authority is not unlimited, and that it is not authorized to enact a Basic Law that denies or directly contradicts the core character of the State of Israel as a Jewish and democratic state. According to the President (emer.), this conclusion derives from the “elements of the constitution” developed since the earliest days of the state – the Declaration of Independence, the Basic Laws, the laws enacted by the Knesset, and the case law of the Supreme Court. The President (emer.) further held that given the unique character of Israel’s constitutional regime – the enacting of a constitution “chapter by chapter”, the absence of a rigid process for its enactment and amendment, and the political majority’s control over the exercise of constituent authority – the limitations upon the Knesset’s power cannot be left unenforced and exempt from judicial review through which the Court can intervene in those extreme, exceptional cases in which the Knesset deviates from the bounds of its constituent authority in enacting a Basic Law.

According to the President (emer.), Amendment No. 3 to Basic Law: The Judiciary is an extreme case in which the Knesset deviated from its constituent authority. In this regard, it should be emphasized that given the existing Israeli situation, judicial review is the only effective check upon the substantial power concentrated in the government and its ministers. Therefore, the amendment that is the subject of the petitions – which comprehensively denies the Court’s authority to conduct judicial review of the reasonableness of all decisions of the government, the prime minister, and government ministers, and even blocks any possibility of addressing such questions – strikes an extremely severe blow to the principle of the separation of powers and the principle of the rule of law. This extreme harm to two of the quintessential characteristics of the State of Israel as a democratic state (the significance of which the President (emer.) addressed at length in her opinion) can significantly affect the individual and the public in general in an unprecedented way. Therefore, the President (emer.) held that there is no alternative to holding that in enacting Amendment No. 3, the Knesset deviated from its constituent authority and the amendment must be declared void.

Justice Y. Wilner: Justice Y. Wilner concurred with the opinion that the Court holds jurisdiction to review Basic Laws. In her opinion, this is also the case by virtue of sec. 15(c) of Basic Law: The Judiciary, which authorizes the Court to “grant relief for the sake of justice”. She further held that in view of the ambiguity of the term “reasonableness” adopted by the constituent authority in the framework of the amendment, a question arises as to its meaning. Justice Wilner resolved this question by means of an affirming construction according to which the repeal of reasonableness refers only to “reasonableness balancing”, i.e., the sense it was given in Dapei Zahav. In her opinion, this conclusion is required by the firmly established rules of the Court according to which a construction that affirms the law is to be preferred to one that may lead to its voidance. In her opinion, such an affirming construction is linguistically possible, it is grounded in the subjective purpose, and it best realizes the objective purpose. Given the said construction, the amendment does not strike a mortal blow to the democratic identity of the State if Israel. This is so, inter alia, in view of the fact that the amendment does not detract from the duty of the government and its ministers to act lawfully and does not prevent effective judicial review in accordance with the other grounds for such review. And note that while cases may arise in which it will not be possible to grant relief as in the past, nevertheless, while that may be regrettable, we will be concerned with decisions made with authority, following a proper administrative process, in good faith, in the absence of irrelevant considerations, that are proportionate, not arbitrary, non-discriminatory, and not fundamentally unfounded. Justice Wilner further noted that the approaches that, over the years, called for restoring reasonableness to its original meaning were never deemed anti-democratic. She further explained that in examining the constitutionality of the amendment, the Court must take account only of the existing legal situation, and not give heed to arguments concerning future legislative bills. Therefore, Justice Wilner held that the petitions should be dismissed while interpreting the amendment in accordance with an affirming construction.

 

Justice Y. Elron:

Justice Elron was of the opinion that the petitions should be dismissed. He reiterated his principled view that the mandate granted to the High Court of Justice to examine the justification for decisions by the members of the Knesset is limited, and that in the absence of an express norm that limits the authority of the Knesset to enact Basic Laws or that establishes the manner for the exercise of that authority, the continued development of doctrines that grant the Court authority to set the limits for adopting the constitution constitutes a role reversal. Justice Elron further noted his position in regard to the possible existence of a narrow exception in the case of exceptional, extreme cases of harm to fundamental individual rights as a last resort. As for the “cause of reasonableness”, Justice Elron emphasized that if the limitation imposed by Amendment No, 3 meets the test for intervention in a Basic Law, the door that is opened for the Court’s intervention is not narrow at all. In addition to his position in principle, Justice Elron was of the opinion that the petitions could also be dismissed on the grounds that the arguments against Amendment No. 3 were not ripe. He explained that where the Court is of the opinion that it would be proper to consider intervening in the content of a Basic Law, this should be carried out only after examining the law’s application and the definition of its scope as interpreted by the Court. In the instant case, the courts might establish that the import of the amendment is the abolition of the Dapei Zahav rule, and nothing more. If that be the case, then the magnitude of the amendment’s harm to the various democratic principles is far from justifying voiding a provision of a Basic Law. In conclusion, he wrote: “I am firm in my conviction that this is not the time to shake the constitutional foundations of our state. It would be better that we defer the matter to the appropriate time, if and when a decision will be required on the basis of the facts of the case. I fear that at the present time, the harm that will be caused by undermining the foundations of Israeli constitutional law due to the voiding of Amendment No. 3 may be many times greater than the harm in leaving it in place.”

 

Jusitce A. Stein:

Justice A. Stein held that the enactment of laws and of Basic Laws by the Knesset is subject to the boundaries delineated in the Declaration of Independence. This is the case inasmuch as the Proclamation [of the Provisional Council of State] and the Law and Administration Ordinance – which were enacted and promulgated upon the establishment of the state – expressly established that the legislative authority of the Provisional Council of State, which transferred that authority to the Knessets that would succeed it, is grounded in the Declaration of Independence. In addition, Justice Stein held that the amendment to the Basic Law that is the subject of the petitions does not contradict the principles of the Declaration of Independence, inasmuch as it only repeals the Supreme Court’s authority to void government decisions on the basis of unreasonableness as an independent and exclusive cause, while preserving its authority to void government decisions that are found to be facially capricious due to irrelevant considerations, arbitrariness, lack of good faith, and other causes for invalidation. In the opinion of Justice Stein, this narrowing of judicial review returns administrative law to its status prior to the Dapei Zahav case – which recognized unreasonableness of a governmental decision as an independent cause for invalidation – as was expressly stated in the explanatory notes of the amendment’s bill. For this reason, Justice Stein held that the amendment that is the subject of the proceedings does not uproot judicial review and therefore does not breach the requirement of basic justice in the Declaration of Independence. This led Justice Stein to the conclusion that the amendment under review is constitutional.

 

Justice I. Amit:

In his opinion, Justice Amit addressed the Israeli legal system’s lack of checks and balances for restraining the government, which grants it unusual power. This situation leads to the conclusion that what is needed is additional mechanisms for strengthening the democratic regime, whereas the amendment that is the subject of the proceedings moves in the opposite direction. It further empowers the executive branch and harms the fundamental principles of the legal system.

Justice Amit addressed the sweeping language of the law, which appeared to apply to reasonableness in all its forms in the case law, without distinguishing among different types of decisions. He explained that the reasonableness doctrine treats of the day-to-day life of the citizen, and its main power and effect are not in the post-facto examination of an administrative decision in court, but rather ab initio, at the stage of arriving at and framing the decision. In the absence of the reasonableness cause, the duty of reasonableness will wither and die, which may leave the public with no defense, and reshape the civil service. The other tools offered by administrative law cannot fill the gap that would result, and the possibility for examining a decision by means of parliamentary oversight or public pressure cannot provide a real alternative to judicial review.

The amendment to the Basic Law inflicts harm upon the democratic core of the state: the right to access to the courts, the principle of the separation of powers and the principle of distribution of power upon which that rests, and upon fundamental constitutional rights. The amendment also undermines several aspects of the rule of law – placing the government and its ministers above the law; facilitating improper appointments and dismissals, including of the “gatekeepers”; immunity in regard to refraining to exercise administrative power and ignoring professional considerations; a lack of supervision over an interim government; and a fear of elections tampering.

 

Justice G. Canfy-Steinitz:

Justice G. Canfy-Steinitz agreed that the Supreme Court has the authority to conduct judicial review of Basic Laws, but in her view, an examination of the amendment in accordance with its proper interpretation leads to the conclusion that it does not meet the very narrow criteria that would justify voiding a Basic Law.

The issue of the judicial review of Basic Laws raises complex questions that would be better resolved in the public arena. When the Court is required to address this question, Justice Canfy-Steinitz is of the view that the Basic Laws provide a textual foundation for a limitation that the Knesset assumed upon itself, subjecting its constituent power to preserving the character of the State of Israel as a Jewish and democratic state. This limitation is grounded in the existing Basic Laws, including sec. 17A(a)(1) of Basic Law: The Knesset, the purpose of which is to protect the core constitutional identity of the state and prevent a change of the system “from within”. The Court’s authority to review Basic Laws derives from the said limitation in cases where the Knesset deviates from its constitutional limits – but this is as narrow as “the eye of a needle” and should be exercised only in the most rare cases of mortal harm to the core identity of the state.

The amendment was adopted against the background of years of debate on the scope of reasonableness. While the broad, sweeping language of the amendment raises problems, it is a far cry from threatening to undermine the foundations of Israeli democracy. On the interpretive level, the amendment should be narrowly construed, such that it would prevent judicial review on the basis of reasonableness “balancing” but not on the basis of the “narrow” cause of reasonableness. Under this construction, the practical ramifications of the amendment are very limited, inasmuch as recourse to reasonableness balancing can be replaced by other grounds for review in administrative law. The few decisions that cannot be reviewed under the amendment are decisions that by their nature and by the normative position of the legislature – which must be respected – cannot be examined in terms of reasonableness balancing. This would not strike a mortal blow to the rule of law and the principle of the separation of powers.

 

Justice R. Ronen:

Justice Ronen concurred in the opinion of President (emer.) Hayut. She held that the power of the Knesset, as a constituent authority, is limited, such that it cannot enact Basic Laws that significantly infringe the two core characteristics of the State of Israel – its being a Jewish and democratic state. She further held that the Supreme Court holds jurisdiction to conduct judicial review of Basic Laws.

Justice Ronen also held that the possibility of a narrow construction of the amendment must be rejected inasmuch as it has no basis in the language of the amendment, clearly contradicts the subjective purpose of the amendment, and provides the Court no clear operative instruction as to how to examine government and ministerial decisions in the future. This is the case, inter alia, in view of an examination of the legal situation before and after the Dapei Zahav case, and rejecting the assumption according to which an instruction to return to the “pre-Dapei Zahav” situation is significant. It was therefore held that the amendment, properly construed, denies the Court the possibility of examining any claim whatsoever that touches upon reasonableness.

Justice Ronen addressed the standard of review applicable to the amendment and held that since the amendment undermines the judiciary’s ability to review the executive, while materially changing the existing system of balances among the branches, it raises a suspicion concerning Knesset’s inherent conflict of interests. This fear is intensified by the fact that the amendment was adopted without the consent of any of the members of the opposition and its immediate entry into force. That being the case, she held that a somewhat more rigorous standard of review should be applied to the question of whether the harm to democratic characteristics constitutes a deviation from constituent authority.

In view of the interpretation of the amendment and the denial of judicial review in regard to all aspects of reasonableness, Justice Ronen’s conclusion was that the amendment inflicts significant harm to the core values of the democratic system. In this regard, inter alia, the subject of appointments and dismissals of gatekeepers was emphasized. Therefore, in view of the standard of review noted above, Justice Ronen held that the Knesset deviated from its authority in adopting the amendment, and it should be declared void.

 

Justice Y. Kasher:

Justice Kasher concurred with the opinion of the President (emer.) according to which the constituent authority of the Knesset is limited in that it is subject to the definition of the State of Israel as a Jewish and democratic state. In addition, the Hight Court of Justice holds the authority to decide that the Knesset has deviated from its constituent authority and order the voiding of a Basic Law. The test for a deviation from the Knesset’s constituent authority was established in the Hasson case – a narrow test expressed in the question whether the amendment denies the core democratic identity of the state or inflicts mortal harm upon the minimal core characteristics of its identity as a Jewish and democratic state.

In the opinion of Justice Kasher, the amendment under review weakens judicial review of the government and its ministers and thereby harms the separation of powers and the rule of law. However, not every shift in the balance point between the judiciary and the executive by means of narrowing judicial review of the executive constitutes a denial of the core democratic identity of the state. In his opinion, the amendment will lead to a certain weakening of judicial review over the executive. However, it is not expected to lead to a situation in which the said review will be ineffective, and thus there is no justification for voiding the amendment.

Justice Kasher concluded in stating that the question that he was called upon to decide is not to what extent he agrees with it and whether, in his view, it were better had it not been enacted, but rather whether the amendment that is the subject of the petitions rises to the level of the extreme circumstances – a mortal blow to the minimal core characteristics of the State of Israel’s identity as a Jewish and democratic state – that alone would justify the Court’s exercise of its very far-reaching authority to declare an amendment to a Basic Law void. Justice Kasher stated that in his opinion, the answer was no, and thus his conclusion.

 

Deputy President U. Vogelman:

The Deputy President held that the constituent authority cannot undermine the Jewish and democratic character of the state, and that the characteristics of the Israeli constitutional enterprise and the actual use of the constituent authority lead to the conclusion that the Court is the institution that holds the authority to decide whether the Knesset has deviated from its constituent authority. The Deputy President held that Israel’s unique situation, in which the control of executive, legislative and constituent powers are all effectively held by the government, as well as the shortcomings of the system for establishing constitutional provisions, have bearing on the threshold for the Court’s intervention.

 As for Amendment No. 3, the Deputy President held that barring any possibility of the Court addressing a claim of unreasonableness in regard to the ministerial level constitutes a mortal blow to the principle of the rule of law and the principle of the separation of powers. This harm is expressed in three spheres: first, for the individual who is harmed by an unreasonable decision and whose access to the Court is barred by the amendment; second, at the ministerial level, regarding  which the amendment removes a significant limitation and erodes the already shaky system of checks and balances of the Israeli legal system; third, regarding the legal system as a whole, by intentionally creating a system in which “there is law but no judge”.

The amendment’s harm in these three spheres is particularly severe because it is comprehensive and absolute: it prevents every court from addressing the cause of reasonableness in regard to decisions at the ministerial level; it extends to every decision at that level; it lacks mechanisms for oversight or other balances; the other causes of action in administrative law cannot provide an effective alternative.

The Deputy President added that a narrow construction of the amendment is not possible in this case. This is so, inter alia, because the suggested interpretive theories have no foothold in the language of the amendment and do not provide a coherent alternative. In any case, he held that even under such interpretation, the severe harm to the rule of law and the separation of powers would remain.

 

Justice D. Mintz:

Justice D. Mintz emphasized that every agency and every judicial instance can act only within the boundaries of the authority granted to it by law. The Court must take care to act strictly within the bounds of its authority, with the same strictness that it applies when the question of authority arises in regard to other authorities. In this regard, jurisdiction to review laws does not rest upon strong foundations, and there is certainly no source of authority that would permit the Court to address the validity of a Basic Law or void it. The development of doctrines that examine the content and substance of Basic Laws ex nihilo undermines fundamental principles of democracy, among them the separation of powers, the legality principle, and the rule of law. Voiding a Basic Law on the basis of a vague doctrine and an undefined formula comprises a heavy price from a democratic perspective, particularly when it involves an issue in regard to which the Court itself has an “institutional conflict of interests”.

From this perspective, there is no need to address the amendment on the merits. In any case, the discussion of its construction is premature inasmuch as its boundaries have yet to be shaped and put into practice. In regard to the position of the majority, Justice Mintz emphasized that a constitutional provision should be interpreted from a “broad perspective” and not “technically”, in a manner that reflects the “fundamental concepts” that it is intended to realize as a constitutional document; it is difficult to establish that the language of the amendment is “sweeping”, unbounded, and leaves “no room for doubt” as to its scope; and there is no flaw in the very fact that it concerns a general concept that requires interpretation. In addition, the amendment does not entirely preclude judicial review of government and ministerial decisions, does not grant them absolute, comprehensive discretion, and does not grant immunity to their decisions. The State of Israel is a strong democracy, and it remains so even after the amendment. The fact that there is a narrow majority among the opinions of the judges for the conclusion that we are concerned with a mortal blow to the principles of democracy also speaks for itself.

 

Justice K. Kabub:

Justice Kabub noted that recognition of the limitations upon the legislature in a democratic state does not necessarily come at the expense of the people’s sovereignty. Someone can protect them if their representatives in the legislature undermine the democratic regime. He explained that the best illustration of such restrictions is the fact that the people did not authorize the Knesset to do whatever it pleases. Thus, the Knesset is not authorized to extend its term beyond four years in the absence of special circumstances, even if all one-hundred-and-twenty members vote in favor of such a law in three readings and call it a Basic Law. Thus, he held that in view of the structure of the Israeli regime, a result according to which there would be no judicial review of Basic Laws constituted through a deviation from authority is unacceptable. However, such review must be undertaken with special care and only in an extreme case.

After surveying the development of reasonableness in Israeli law, Justice Kabub concluded that at root stands the view that the legislature cannot grant the administration authority to make arbitrary and capricious decisions. Over time, the reasonableness doctrine expanded, and the interest-balancing test was devised in the Dapei Zahav case, which has come under criticism primarily because of its ambiguous boundaries. Nevertheless, the proper construction of Amendment No. 3 shows that the Knesset did not merely annul the interest-balancing test, but also comprehensively eliminated judicial review of the reasonableness of the decisions at the ministerial level.

Justice Kabub emphasized that exempting the ministerial level from accountability when it deviates from its authority means that the nation would be governed by people, contrary to the purest description of sovereignty as governance by laws. Therefore, there is no alternative to judicial intervention. However, he explained that attention should be paid to the criticism of the interest-balancing test that has been expressed over the years, which went as far as the Knesset and led to amending a Basic Law, and it would be appropriate to give that expression in the case law.

 

Justice (emer.) A. Baron:

Justice Anat Baron noted that 75 years after that historic moment of the Declaration of Independence, Israeli democracy is under a threat from within – as illustrated by the amendment to Basic Law: The Judiciary. The amendment was intended to bring about a fundamental regime change. It frees the government and its ministers from the bonds of judicial review on the grounds of reasonableness and grants the executive the power to rule without effective checks and balances. The import of the amendment is the granting of a comprehensive exemption to the government and its ministers from the duty to act reasonably in their decisions, in a manner that grants the government unprecedented power and the status of a “super” executive-legislative-constituent authority. This strikes a mortal blow to the principle of the separation of powers, the rule of law, and the democratic character of the state.

Justice Baron explained that there is no appropriate alternative to the reasonableness doctrine for maintaining good governance and for protecting individual rights. At the same time, the amendment opens the door to political cronyism in the public administration and undermines the independence of those who hold professional appointments, particularly the “gatekeepers”, inasmuch as their appointment and dismissal would be subject to the grace of the ministers and the government. In Justice Baron’s opinion, the Supreme Court is granted the authority to establish that a constitutional norm is void in extreme cases in which the Knesset deviates from its constituent authority. In the instant case, adopting an affirming construction of the amendment is not possible as it would constitute drafting a new Basic Law, which is neither within the authority nor the role of the Supreme Court. There are those who seek to understate the dimensions of the matter, and make it appear as if the amendment is an inconsequential triviality of minor or marginal importance. But this is an acute moment in which one cannot stand aside, and the amendment must be declared void. In the words of the poet: “Therefore, send not to know for whom the bell tolls, it tolls for thee.”

 

Justice O. Grosskopf:

Justice Ofer Grosskopf concurred in the opinion of President (emer.) Hayut that the petitions should be granted, and that the amendment should be voided. In his opinion, the Supreme Court, sitting as High Court of Justice, holds jurisdiction to review whether the Knesset has acted in accordance with the limitations under which it operates as a constituent authority by virtue of Basic Law: The Judiciary and by virtue of substantive justifications deriving from the unique character of the Israeli constitutional enterprise. Those limitations are three: Regularity (the requirement that it enact or amend a Basic Law by the required legal procedure); Good faith (the prohibition upon exploiting the constituent authority for foreign purposes); Authority (the limitations upon the power of the sitting Knesset to deviate from the constitutional enterprise designed by its predecessors).

In the area of authority, which is the focus of the proceedings, given the nature of a sitting Knesset to shape the “constitution in the making” (continuation of the constitutional project, and not its creation ab initio), and in view of the primary purpose of the constitution (limiting the power of a transitory majority in the Knesset in its role as constituent authority), the sitting Knesset is subject (in the absence of Basic Law: Legislation) to two restrictions: First, the sitting Knesset is not authorized to undermine the fundamental principles already laid down in the “constitution in the making”, foremost among them the identity of the state as Jewish and democratic (the “constitutional givens”) in manner that would bring down the constitutional structure created by its predecessors; second, the authority of the sitting Knesset to introduce changes that constitute a significant deviation from the “constitutional givens” is contingent upon broad consensus. A transitory majority that the constitution is intended to limit is insufficient.

As for Amendment No. 3 to Basic Law: The Judiciary, Justice Grosskopf accepted the interpretive approach according to which it prevents any judicial review of the reasonableness of a governmental decision. Given that, the amendment constitutes a severe infringement of the “constitution in the making” as designed by the previous Knessets, primarily because it places the government above the law. As a result, the amendment bears severe negative consequences, and above and beyond that, it inflicts mortal harm to the principle of the rule of law, inasmuch as it comprehensively exempts those at the head of the executive branch from judicial review on the basis of reasonableness. Therefore, the amendment should be voided under the first limitation (undermining the “constitution in the making”), and alternatively, under the second limitation (significantly deviating from the “constitutional givens” without broad consensus).

 

Justice D. Barak-Erez:

Justice Barak-Erez was of the opinion that constituent authority is limited in accordance with the fundamental definition of Israel as a Jewish and democratic state. She explained that this limitation is grounded in the Declaration of Independence (which is not a constitution but establishes the limits of the constituent authority). Accordingly, the Court’s jurisdiction to conduct judicial review in cases of deviation from the constituent authority derives from this limitation and cannot be contingent upon the wording of the Basic Laws themselves.

Justice Barak-Erez reiterated her position that the Court will intervene in the content of a Basic Law only in extreme cases of overstepping the bounds, which is the situation in the present case. The amendment to the Basic Law strikes a mortal blow to the foundations of democracy by granting the government broad immunity from effective oversight. In practice,  it leads to harm on three levels: barring the path to judicial relief in regard to decisions that harm individual interests; a lack of effective oversight of interim governments to the point of potentially influencing the transfer of power (for example, by advancing a “popular” policy on the eve of elections); as well as inflicting grave harm to oversight of the regime by those holding office as “gatekeepers” and independent regulators as a result of significantly weakening judicial review over their appointment and dismissal (a subject for which adequate safeguards have not been established in the law). Justice Barak-Erez added that the suggestion of returning to the reasonableness approach of “the good old days” ignores the broad legal and constitutional context and the balances among the branches of government in which judicial review was rooted in the past, in the sense of the adage: “No man ever steps in the same river twice”.

 

Justice N. Sohlberg:

Justice Sohlberg was of the opinion that it would be better to deny the petitions in limine by reason of a lack of jurisdiction.

According to his approach, a holding that there is some limit upon the authority of the constituent authority de facto annuls the fundamental democratic principle of the sovereignty of the people through its elected representatives. Justice Sohlberg added that this is not his view alone. The first seven Presidents of the Court, the eighth President, Aharon Barak at the outset of his judicial tenure, and a significant part of the justices who served on the Court for decades all stated, as it were: “Keep your hands off the state’s Basic Laws.

Justice Sohlberg noted that the Court majority points to various sources of authority, while there is no single source that is acceptable to them all. He was of the opinion that even according to the majority’s approach, one cannot derive from those sources that it is possible to void Basic Laws where the justices themselves are not in agreement, let alone on the basis of one vote.

Justice Sohlberg further noted that the majority opinion represents the opinion of the judiciary. As opposed to that, the constituent authority is of the opinion that not only does the Court lack the authority to void Basic Laws, but also that it lacks jurisdiction to decide the preliminary question: Is it the Court that holds the power to decide whether it has the authority to invalidate Basic Laws? Such a “conflict” between the branches of government is not played out in the legal arena, and it cannot be resolved by legal means.

As for the reasonableness doctrine, Justice Sohlberg was of the opinion that even were we to ignore the question of jurisdiction, then even according to the President (emer.), there is only one question: Does the Basic Law deny “the very existence of Israel as a Jewish and democratic state?”.  Since that is the question, the answer is near at hand: the Basic Law is a very, very far cry from falling within the compass of that narrow restriction, and more so. In any case, even if there were authority, there would be no grounds for voiding the law.

 

 

Zoabi v. Knesset's Ethics Committee

Case/docket number: 
HCJ 6706/14
Date Decided: 
Tuesday, February 10, 2015
Decision Type: 
Original
Abstract: 

This is a statement of reasons for the judgment handed down on Dec. 10, 2014, denying the petition of Petitioner 1, Member of Knesset Hannen Zoabi, in regard to the decision of the Knesset Ethics Committee that found that Petitioner 1 had violated Rule 1A of the Knesset Ethics Rules, and ordered her suspension from participation in meetings of the Knesset plenum and committees, other than for voting, for a period of six months. This decision was made following two statements to the media made by the Petitioner. One was a statement made in a radio interview several days after the abduction of the late Naftali Frenkel, Gil-Ad Shaar and Eyal Yifrach in which the Petitioner, while clarifying that she did not agree with the kidnappers, stated that the kidnappers were not terrorists and justified their actions. The second was a statement that appeared in an article published on the Internet, in the context of which the Petitioner called for the imposition of a blockade of Israel rather than conduct negotiations with it. The decision examined the following questions: Did the Ethics Committee have the authority to impose sanctions for political statements made by a member of the Knesset that were expressed or published outside of the Knesset building, when, in principle, such statements are protected by the functional immunity granted to a member of the Knesset? If so, did the Ethics Committee exercise its authority lawfully under the circumstances of the case?

 

The High Court of Justice (per Deputy President M. Naor, Justices E. Rubinstein, E. Hayut and H. Melcer concurring, Justice S. Joubran dissenting) denied the petition for the following reasons:

 

Under the rule established in the Makhoul case, the functional immunity granted to a member of the Knesset by virtue of sec. 1(a) of the Immunity Law does not serve as a shield to proceedings against a member of the Knesset by the Knesset Ethics Committee. The Court rejected the Petitioners’ argument that the rule should be narrowly construed to apply only to circumstances concerning statements made within the Knesset building, or derogatory statements that have a potential for interfering with the proper functioning of the Knesset or that might harm the internal relationships among its members. As held in the Makhoul case, imposing sanctions for unethical statements or actions does not constitute a circumvention of functional immunity. That is also true in regard to the statements that are the subject of these proceedings, even though they were made outside of the Knesset and not in regard to any specific person or organization. Thus, even assuming that the Petitioner’s statements enjoyed functional immunity, it would not prevent the Ethics Committee from addressing them in accordance with the current ethics rules.

 

Indeed, political expression is of particular importance for members of the Knesset, as it is by that means that Knesset members present their positions to their electorate. This is particularly so in regard to a Knesset member who represents a minority group. Therefore, ethical review of the statements of Knesset members should be limited as far as possible. Indeed, the Ethics Committee correctly directed itself to refrain, as far as possible, from restricting the freedom of expression of Knesset members. However, that does not mean that the Committee lacks the power to address extreme statements that constitute support for terrorist activities against the State’s citizens, or identification with such acts. While it may be that the ethics rules have more limited application to statements made outside of the Knesset, the circumstances of the current matter are extreme.

 

The Court also rejected the Petitioners’ argument that there is no express provision in the Knesset Rules of Procedure or the Ethics Rules that authorizes the Ethics Committee to impose sanctions for the Petitioner’s statements. In this regard, the Court held that the provisions of Rule 1A of the Ethics Rules – upon which the Ethics Committee based its decision in the regard to the Petitioner – establish the basic values that obligate a member of the Knesset, such as the advancement of society and the good of the State, and upholding the dignity of the Knesset and of its members. These basic values establish general guidelines for the conduct of members of the Knesset, and express the need for preserving public trust in the Knesset, and should be granted independent status that permits the imposition of ethical sanctions by reason of their breach. As noted, the general principles established under Rule 1A include a Knesset member’s obligation to act for the advancement of the good of the State and to uphold the dignity of the Knesset. It was upon those duties that the challenged decision was based.

 

In light of the above, the Court unanimously held that the decision was within the competence of the Ethics Committee.

 

The majority further held that the Ethics Committee lawfully exercised its authority in the circumstances of the instant case. It is a matter of decided law that the scope of judicial review is influenced by the type of decision under review. As a rule, the Ethics Committee enjoys broad freedom, and therefore, the scope of judicial review is relatively narrow, and it has even been held that it should be exercised with greater restraint than judicial review of the decisions of other quasi-judicial Knesset bodies. The Court may intervene when the Ethics Committee’s decision violates a law, or where substantive issues, such as the violation of basic constitutional rights, the right to due process, or a violation of the rules of natural justice is concerned. As a rule, the more severe the violation of a Knesset member’s basic rights, and the more the sanction for the conduct deviates from what would be appropriate, the greater the Court’s willingness to intervene.

 

In the present case, the Ethics Committee found that, in view of their content and the sensitivity of their timing, the Petitioner’s statements were inconsistent with the good of the State, and severely undermined public faith in, and public perception of the Knesset. The Ethics Committee therefore found that the Petitioner’s statements violated Rule 1A(2) and Rule 1A(4) of the Ethics Rules. The Committee’s conclusions did not deviate from the broad margin of discretion granted to it.

 

The Petitioner’s statements in the interview and in the article were perceived as expressing support for terrorism and for the killing of civilians. In the opinion of the President, in light of all the circumstances, the Petitioner overstepped the boundaries. In this regard, it was held, inter alia, that any form of support for terrorism, coming from any side of the debate, could seriously undermine public faith in, and public perception of the Knesset. Therefore, and in light of the nature and timing of the Petitioner’s statements, there were no grounds for intervention in the Committee’s conclusion that the Petitioner’s statements severely undermined public faith in, and public perception of the Knesset, and constituted a violation of Rule 1A(2) of the Ethics Rules, which establish, inter alia, that a member of the Knesset act for the advancement of the good of the State. It was noted that the primary purpose of that Rule is to ensure that a member of the Knesset act in the public interest, and not exploit his status and authority for personal benefit. In the instant case, on their face, the Petitioner’s statements were not intended to promote her personal interests. However, the HCJ found that even extreme acts and statements that comprise an element of legitimizing terrorist acts against the State’s citizenry are inconsistent with the good of the State. The Petitioner’s statements were not published in the media with explanatory notes. Their spirit – despite the Petitioner’s subsequent disclaimers – was that of identification with terrorist acts and support of violence as a means for achieving political ends. Under these circumstances, there was no room for intervention in the Ethics Committee’s decision that the Petitioner violated the Ethics Rules.

 

As far as the sanction imposed by the Ethics Committee was concerned, the Court noted that the Committee’s broad discretion also applies to deciding upon the sanction. However, that broad power is not to be understood as a license to impose arbitrary punishment. In imposing a sanction for a violation of the Ethics Rules, the Committee must consider a broad spectrum of factors. In general, the sanction imposed must be proportionate to the severity of the ethical violation committed by the Knesset member. Consequently, the Committee must take into account the severity of the offense and the circumstances of its commission. In regard to statements of members of the Knesset, consideration must be given, inter alia, to the content of the statement, its subject, and its timing. A statement that defames or denigrates individuals or groups is not the same as another outrageous or deviant statement, and a statement that encourages terrorism or violence is not the same as another extreme statement. In addition, the Ethics Committee must take into consideration the circumstances of the actual Knesset member before it, including the question of whether he expressed remorse for his actions, as well as his overall ethics record. Under the circumstances of this case, the Court did not find grounds to intervene in the sanction imposed upon the Petitioner. While the sanction – suspension from participation in meetings of the Knesset plenum and committees for the maximum permitted period – is very severe under the existing hierarchy of sanctions, and is exceptionally severe in comparison to sanctions imposed in the past, under the circumstances, and in light of the Petitioner’s extreme statements and their timing, the Court would not accept the Petitioners’ claim of discrimination and disproportionality. Moreover, the sanction in this case was not a comprehensive suspension from Knesset activity for six months.   In addition, given that most of the suspension would coincide with the Knesset’s summer recess – a consideration that the Committee bore in mind – as well as with the elections recess – a consideration of which the Committee was unaware – the practical significance of intervention under these circumstances would be minimal at most.

 

Deputy President Rubinstein and Justices E. Hayut and H. Melcer concurred, while adding comments. Thus, inter alia, Justice Hayut added two comments. The first was in regard to a Knesset member’s right to inspect the Ethics Committee’s protocols in regard to the proceedings in his matter, which is required as a matter of due process. The second concerned the restriction of the freedom of political expression of an elected representative who represents a minority group. Justice Melcer added a comment in regard to the distinction between legal prohibitions and ethical prohibitions.

 

Justice Joubran (dissenting) concurred with the President in regard to the matter of competence, however, in his view, a distinction should be made between solely political expressions and expressions that comprised profanity and defamation of individuals and groups. However, in his view, that distinction was not a matter of authority, but rather concerned discretion. That is, it concerned the scope of judicial review appropriate to decisions in regard to such expressions, and the degree of protection that should be afforded them.

 

In regard to discretion, Justice Joubran was of the opinion that a member of Knesset can be convicted of an ethical violation under Rule 1A(4) where the member violated the dignity of the Knesset or its members, or where a member of Knesset acted in a manner that undermines public trust, while a conviction under Rule 1A(2) would be appropriate where a member of Knesset’s actions were not for the good of the State, as opposed to a situation in which the member did not act to advance its good. This interpretation takes into account that neutral conduct of Knesset members that does not advance but does not harm the State will not fall within the purview of the prohibition. Justice Joubran added that in view of the great value in ensuring the freedom of political expression of Knesset members and limiting its restriction as far as possible, particularly where representatives of minority groups are concerned, and in view of the broad language of the above ethics rules, the conviction of a member of the Knesset by virtue of one of them should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the instant case, Justice Joubran was of the opinion that such clear, unequivocal content could not be attributed to the statements of the Petitioner, both in light of her later expression of reservations in regard to the abduction already in the course of making the statements, and in view of her later explanations in the media. Therefore, in the opinion of Justice Joubran, the decision of the Ethics Committee was unlawful, and the petition should have been granted.

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

 

 

The Supreme Court sitting as the High Court of Justice

 

HCJ 6706/14

 

 

Before: The Honorable President M. Naor

The Honorable Deputy President E. Rubinstein The Honorable Justice S. Joubran

The Honorable Justice E. Hayut The Honorable Justice H. Melcer

 

The Petitioners:                1.            MK Hanin Zoabi

2.            Adalah – The Legal Center for Arab Minority Rights in Israel

3.            The Association of Civil Rights in Israel

 

v e r s u s

 

The Respondents:           1.            The Knesset's Ethics Committee

                2.            The Chairperson of the Knesset

                3.            The Knesset

 

Petition to Grant an Order Nisi

 

Date of Session:               17th of Kislev, 5775 (December 9, 2014)

 

On behalf of the Petitioners:      Adv. Hassan Jabarin; Adv. Dan Yakir;

Adv. Maisana Morani

 

On behalf of the Respondents: Adv. Eyal Yinnon; Adv. Dr. Gur Bligh

 

 

J U D G M E N T (R E A S O N S)

 

 

President M. Naor:

 

1.            On December 10, 2014, we issued  a judgment without reasons in which the Petition was denied by a majority opinion (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer, against the dissenting opinion of Justice S. Joubran). In the judgement we ruled that:

 

"1. The Petition before us addresses the decision of Respondent 1, the Knesset's Ethics Committee, which determines that Petitioner 1 violated Rule 1A of the Rules of Ethics for Members of Knesset, and instructs that she be removed from sittings of the Knesset's plenum and committees, other than participating in votes, for a period of six months, commencing on July 30, 2014, and ending on January  29,  2015.  Approximately  half  of  the  period  of

 

 

 

removal was during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014.

 

2.            In the Petition, the Court was requested to intervene in and cancel the  Ethics Committee's decision  regarding the Petitioner. Alternatively, the Court was requested to intervene in the removal sanction that was imposed upon the Petitioner.

 

3.            On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

4.            On December 9, 2014, we heard the Parties' oral arguments.

 

5.            The six month period is meant to end on January 29, 2015. Therefore we have found it to be appropriate to give our ruling now, without reasons. The reasons shall be given separately.

 

6.            By a majority of opinions (Deputy President M. Naor, Justice E. Rubinstein, Justice E. Hayut and Justice H. Melcer) and against the dissenting opinion of Justice S. Joubran, we rule as follows: There is no place to intervene in the Ethics Committee's decision that the Petitioner violated Rule 1A of the Rules of Ethics for Members of Knesset. As for the sanction: the sanction that was imposed is indeed unusual in its severity compared to sanctions imposed in the past. However, in the circumstances at hand and in light of the Petitioner's harsh words and the timing in which they were spoken, and considering that a significant part of the period of the sanction was during times of recess, we have not found it appropriate to intervene in the broad discretion that is granted to the Ethics Committee. Inter alia, we have taken into consideration the fact that two days ago the Dispersal of the 19th Knesset Law, 5775-2014 was legislated. In light of this law, the practical significance of intervening in the sanction is miniscule, if at all existent.

 

7.            Therefore, the Petition is denied. There shall be no order for expenses".

 

We shall now elaborate on our reasons.

 

 

 

Background

 

The Complaints Against the Petitioner and Her Responses Thereto

 

2.            The Petitioner is a member of the 19th Knesset on behalf of the Balad party. On June 17, 2014, the Petitioner interviewed on a morning program on Radio Tel Aviv (hereinafter: the "Interview"). The Interview primarily addressed the abduction of the three teenagers: the late Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, which occurred on June 12, 2014, in the area of Gush  Etzion.  The Interview was held approximately five days after the abduction, at a time when the teenagers' fate was not yet known. During the Interview the Petitioner said the following:

 

"Look, look… I, let's ask a question like this, ah, naively, is it strange that people who are under occupation, who live lives that are not normal, and who live in a reality in which Israel abducts detainees every day, is it strange to you that they abduct? […] They are not terrorists […] Even if I do not agree with them, they are people who do not see any opening […] They are people who do not see any opening to change their reality, and they are forced to use these means, until Israel shall sober up a little, until the citizens of Israel, the Israeli society shall sober up a little and shall see the suffering, feel the other's suffering"

 

3.            On July 13, 2014, in the midst of operation "Protective Edge", the  www.felesteen.ps website published an article that the Petitioner wrote, and which had been previously published on the www.arab48.co.il website (hereinafter: the "Article"). Inter alia, the following, was written in the Article:

 

"In order for Israel to be convinced that it is not possible to maintain and deepen the occupation, and for it to declare the end of the achievements of the detestable trinity: the fence, the siege and coordination, which it believed turned the occupation into a no-cost occupation absent from the Israeli reality – the Palestinians must declare the end of their own lethal trinity: coordination, negotiations and the internal dispute. We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith, and unity instead of the internal dispute" (a copy of the Article in Arabic and its translation to Hebrew were attached as Exhibit P/5 of the Petition).

 

4.            Following these  remarks, a number of complaints were filed with the  Ethics Committee against the Petitioner. The main complaint was filed on July 22, 2014, by the Chairperson of the Knesset. In this complaint the Chairperson  of  the Knesset stated that while he is aware of the Ethics Committee's position that the members of Knesset's freedom of political expression must be protected, he is of the opinion that the Petitioner "has long since crossed any line with respect to the

 

 

 

conduct that is expected of the MKs" and that the many approaches that are directed to him from the public in this matter "indicate that this is not an 'ordinary' case of a harsh or outrageous remark […], but rather continuous provocative conduct, which could materially erode the status of the Knesset in the eyes of the public." The Chairperson of the Knesset's complaint also mentioned a video clip that documents a confrontation between the Petitioner and policemen during a protest. The Ethics Committee decided not to refer to this video clip in its decision, and therefore I shall not address it.

 

5.            The Petitioner filed a response to the complaint. In her response the Petitioner stated that she "completely rejects the vexatious complaint that is indicative of a dominating culture of racism and a need to rule others and oppress their political opinions". The Petitioner added that the complaints against her were filed on political grounds and that "one must not surrender to those who disagree with me and want to silence me and punish me and even retaliate against me." With regard to the things she said in relation to the abduction of the teenagers, the Petitioner stated laconically that "I referred to the context of the sentence in a series of media interviews and I shall not reiterate it again, and I shall ask that the Ethics Committee review them to receive a complete picture". It is not superfluous to note that the Petitioner did not attach the said interviews to her response. Based on her said statement, the Petitioner asked that the Ethics Committee reject the complaint.

 

The Decision which is the Subject of the Petition

 

6.            On July 29, 2014, the Ethics Committee convened to discuss the said complaints against the Petitioner. The committee decided by a majority of opinions that the two remarks specified above constitute a violation of Rule 1A of the Rules of Ethics (Decision 16/19 of the Knesset's Ethics Committee "In the matter of Complaints against Knesset Member Zoabi" (July 29, 2014)). The  committee indeed emphasized that its consistent position is that to the extent possible, the limitation of freedom of political expression of members of Knesset should be avoided; that the members of Knesset's right to express public criticism of the government is maintained also during times of war; and that the mere voicing of harsh criticism on military moves or on government policy during times of war, should not be viewed as a violation of the Rules of Ethics. However, the committee ruled that one must distinguish between legitimate protest – harsh as it may be – and encouraging the enemies of the State and legitimizing acts of terror against its citizens. The committee added that the public in Israel, like in any state, "expects that members of Parliament, who declare allegiance to the State, shall not encourage those who act against it and those who wish to kill its soldiers and citizens and shall not support them […]" (paragraphs 8-9 of the decision).

 

7.            As for the Interview, the Ethics Committee ruled that even though the Petitioner clarified that she does not agree with the abductors, her statement that they are not terrorists and her justification of their actions – especially when the abducted teenagers' fate was yet unknown – constitutes "identifying with enemies of the State" (paragraph 9 of the decision). Regarding the Article, the committee ruled that it is not possible to interpret its content as anything other than "statements which intend to harm  the State  of Israel,  its security and its basic  interests" (paragraph 10 of the decision).

 

 

 

 

8.            The Ethics Committee ruled that the Petitioner's words do not coincide with the State's best interest and prejudice the public's trust in the Knesset and the Knesset's image. Therefore, it was ruled that the Petitioner violated Rule 1A of the Rules of Ethics and imposed a sanction of her removal from the sessions of the Knesset plenum and its committees, other than participating in votes, for a period of six months, beginning from July 30, 2014, and ending on January 29, 2015. Approximately three months of the removal period were during the Knesset's summer recess, which lasted from August 3, 2014, through October 26, 2014. On December 9, 2014, the Dispersal of the 19th Knesset Law, 5775-2014, was published in the Official Gazette (Reshumot). This law provides that the 19th Knesset shall disperse before the end of its term and that the elections for the 20th Knesset shall take place on March 17, 2015. Consequently, the Knesset Committee decided that an elections recess shall begin on December 11, 2014, lasting until the 20th Knesset convenes (see: Knesset Committee Decision "In the Matter of the Dates of the Elections  Recess and the Knesset's Activity During the Recess" (December 10, 2014)). Therefore, the remaining part of the period of removal – over a month and a half – also falls during recess.

 

9.            To complete the picture, it shall be noted that on August 3, 2014, the Petitioner's attorneys requested, "in order to file a petition to the High Court of Justice" against the decision, to review the minutes of the Petitioner's matter and the materials presented to the committee in the process of reaching its decision. On August 7, 2014, the Knesset's legal counsel replied to the request and informed the Petitioner that pursuant to Rule 21 of the Rules of Ethics, the ethics proceedings, including the documents and the minutes in the matter thereof, are privileged. The Knesset's legal counsel explained in his response that the committee recognizes that there are exceptional situations in which public interest requires disclosure of material from its sessions, such as a situation in which the use of the material is required for the purpose of legal proceedings. However, he stated, the exception relates to the circumstances in which the material from the committee's sessions is required for other legal proceedings and not for the purpose of challenging the decision of the Ethics Committee itself. It was elucidated that the committee is concerned about creating a precedent which will adversely affect the ability of committee members to properly fulfill their duties. Therefore, he informed that the committee unanimously rejected the petition to lift the privilege from the minutes of the session, but decided that if indeed a petition shall be filed, it shall provide the minutes of the session in the Petitioner's matter, for the Court's eyes only.

 

The Petitioner's Appeal of the Decision

 

10.          On August 13, 2014, the Petitioner appealed the Ethics Committee's decision before the plenum of the Knesset. The Petitioner's appeal was filed pursuant to Section 43 of the Knesset's By-Laws, which provides that a member of Knesset may appeal a decision of the Ethics Committee before the plenum, if it decided, inter alia, to remove him from Knesset sessions for the duration of four days of sessions, or more.

 

11.          In her appeal, the Petitioner argued that the Ethics Committee acted ultra vires and in a manner that is contrary to the principle of freedom of political expression. She

 

 

 

further argued that it emerges from the reasoning of the decision that it is not based on a proper evidentiary foundation, and that the sanction imposed is "as far as is known, the most severe sanction that was ever imposed upon a member of Knesset", due to irrelevant considerations and is disproportionate. The Petitioner requested that the Chairperson of the Knesset schedule an urgent session before the plenum of the Knesset to hear the appeal, and on August 20, 2014, she also sent a reminder letter regarding this matter. On August 25, 2014, the Knesset's legal counsel replied to the Petitioner's letter claiming that the Chairperson of  the Knesset does not have authority to convene the plenum of the Knesset during the recess (other than pursuant to Section 9(b) of the Knesset Law, 5754-1994, which empowers him to convene the plenum of the Knesset during recess, in accordance with the demand of 25 members of Knesset or of the Government). Therefore, he informed that it will not be possible to hear the appeal before the beginning of the winter session.

 

12.          The Knesset plenum held a discussion regarding the Petitioner's appeal on October 29, 2014. The Petitioner argued before the plenum, inter alia, that the Ethics Committee's decision is unprecedented in its nature and severity and that this is a vindictive and disproportionate decision. The chairperson of the Ethics Committee, Knesset Member Yitzchak Cohen, responded to the Petitioner's statements. In his response, the chairperson of the Ethics Committee reiterated the committee's main reasons, as were expressed in its decision. In the vote that took place thereafter, 16 members of Knesset voted in favor of accepting the Petitioner's appeal, 68 members of Knesset objected and one member of Knesset abstained. Thus, the petition was denied.

 

The Petition before Us

 

13.          The Petition before us was filed on October 7, 2014, approximately two and half months after the Ethics Committee's decision in the Petitioner's matter and before her appeal had been heard by the Knesset plenum. Therefore, and in light of the Respondents' notice dated October 20, 2014, that the appeal will be heard on October 28, 2014, the Court ruled that it is inappropriate to address the Petition before the Knesset rules on the Petitioner's appeal (Justice Y. Danziger, decision dated October 22, 2014). After the Knesset plenum denied the Petitioner's appeal, the discussion regarding the Petition was renewed. On November 9, 2014, President A. Grunis instructed the Respondents to inform whether they agree that the hearing be held as though an order nisi had been issued and based on the material that had been filed at such time. After the Respondents informed that they agree, the President instructed that the Petition be brought before an extended bench of five justices.

 

On December 9, 2014, we heard the Parties' oral arguments.

 

The Petitioners' Arguments

 

14.          According to the Petitioners, the Ethics Committee acted ultra vires deciding as it did. The Petitioners claimed that the Petitioner's remarks are political remarks, which are protected by the material immunity granted to a member of Knesset under Section 1(a) of the Knesset Members Immunity, Rights and Duties Law,

 

 

 

5711-1951 (hereinafter: the "Immunity Law"). The Petitioners claimed that, following the Interview, the Petitioner explained in the media that she objects to causing harm to civilians, and to abduction of civilians in particular. The Petitioners further argued that the Attorney General examined complaints that were filed against the Petitioner following the Interview and deemed it inappropriate to open a criminal investigation into her remarks. To this regard, the Petitioners filed the State's response to the petition in HCJ 5716/14 which was directed against the Attorney General's decision in this matter (the hearing in said petition is scheduled to take place on June 10, 2015). In the aforementioned response it was noted that even though the Petitioner identified with the actions of the abductors, her statements did not amount to incitement to violence. Therefore, the Petitioners argued that the Petitioner's remarks which are the subject of the Petition are part of her freedom of political expression, and as such the Ethics Committee did not have any authority to intervene therein.

 

15.          The Petitioners further argued that while this Court has reiterated in its rulings that the material immunity of members of Knesset does not serve as a defense against sanctions at the ethical level, that case law applies only to inappropriate conduct within the house, or to slanderous remarks against another member of Knesset, an individual or a certain public. Such remarks, so it is argued, relate to managing the internal affairs of the Knesset and the relationship between its members and therefore fall within the authority of the Ethics Committee. The Petitioners draw this argument, inter alia, from a principle decision of the Ethics Committee (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013) (hereinafter: "Decision 2/19")), which states that, as a rule, complaints regarding political remarks by members of Knesset should not be discussed.

 

16.          The Petitioners argued that the Ethics Committee acted ultra vires also by basing its decision on Rule 1A of the Rules of Ethics, which "prescribes general values and principles and is not an operative provision" (paragraph 37 of the Petition). This rule, they claimed, has only a declaratory status and thus it is impossible to impose a sanction due to a violation thereof. The Petitioners claimed that the Ethics Committee is only authorized to impose sanctions in consequence of a violation of Rules of Ethics that anchor specific norms relating to  morality, conflict of interest, proper activity of the Knesset and proper conduct in the house. The Petitioners further argued that this is also customary in England. Finally, it was argued that the Ethics Committee is not authorized to determine which remarks are for the benefit of, or contrary to, the State's best interest. In light of all of the reasons specified above, the Petitioners argued that the committee's decision was ultra vires.

 

17.          Alternatively the Petitioners argued that the sanction imposed upon the Petitioner is "discriminatory and exceedingly severe" (paragraph 51 of the Petition). The Ethics Committee imposed its most severe sanction and for the longest possible period of time  and  therefore the  Petitioners  argued that its decision is disproportionate. According to the Petitioners this can also be deduced from a comparison to the committee's previous decisions which were quoted in the Petition itself, and namely the principle decision in the matter of remarks by members  of  Knesset  (Decision  2/19).  It  shall  be  noted  that  the  Petitioners

 

 

 

complained inter alia, about the Ethics Committee's refusal to provide them with the minutes of the Committee's session regarding the Petitioner's matter and requested that we instruct that they be delivered thereto. However, in the oral hearing, and due to the need for a quick ruling, the Petitioners' attorney did not insist on this, while reserving all of his arguments.

 

The Respondents' Arguments

 

18.          The Respondents argued that according to case law, the material immunity does not preclude the Ethics Committee from taking disciplinary actions against a member of Knesset. According to them, particularly in light of the existence of the material immunity, which does not allow for criminal or civil action to be taken against a member of Knesset due to his remarks, it is important to allow the Knesset to deal with such remarks at the ethical level. It was argued that the case law took a principle approach and did not support the argument that the imposition of sanctions for remarks that are covered by material immunity should only be possible in cases where the remarks are harming to collegial relationships between members of Knesset or disrupt the Knesset's proper conduct. The Respondents further argued that the fact that in a long list of decisions, the Ethics Committee recognized the importance of the freedom of political expression granted to members of Knesset, and that it is necessary, to the extent possible, to refrain from limiting it, does not mean that the Committee does not have the authority to impose sanctions for political remarks. This is not a matter of authority, so it is argued, but rather a matter of discretion.

 

19.          The Respondents further claimed that Rule 1A of the Rules of Ethics is not a declaratory rule but rather an operative provision, the violation of which can carry the imposition of sanctions. According to them, the Rules of Ethics include a variety of norms, part of which are designed as rules and part of which are designed as principles (standards) – but all of which are operative. To illustrate their argument, the Respondents stated that Rule 1A was used in the past as a basis for imposing sanctions at an ethical level in a series of cases, both as a single normative source and alongside other rules of ethics.

 

20.          As to the exercise of discretion, the Respondents argued there was no flaw in the conclusion that the Petitioner violated the Rules of Ethics. Especially taking into consideration the broad discretion that is granted to the Ethics Committee in such matters. According to the Respondents, the sanction that was imposed upon the Petitioner is proportionate. The main reason indicated by the Respondents was that the severity of the sanction is commensurate with the severity of the violation for which it was imposed – a severity that stems from the content of the Petitioner's statements and the timing thereof, and which justifies deviating from the lenient policy which the Ethics Committee has exercised with respect to political remarks. The Respondents further argued that the Petitioner's remarks during the Interview "can be perceived as legitimization of and identification with the State's enemies who are carrying out acts of terror against the citizens of the State" (paragraph 70 of the Respondents' response), at a sensitive time – approximately five days after the abduction of the teenagers and at a time when their fate was unknown. The statement that the Petitioner does not agree with the abductors does not diminish the severity of her remarks. It is further argued that the Petitioner's remarks in the

 

 

 

Article can be deemed as a call to harm the State of Israel, in the midst of the fighting in the Gaza strip during the "Protective Edge" operation. The Respondents also claimed that the time the sanction came into effect, which was at the beginning of the Knesset's summer recess, should also be considered. According to the Respondents, practically speaking this was a removal that, when decided, was for approximately three months, since during the recess the Knesset plenum only assembles in rare cases and the majority of the Knesset committees convene relatively infrequently.

 

Discussion and Ruling

 

21.          The main questions that are presented in this case are whether the Ethics Committee is authorized to impose sanctions against the Petitioner because of her remarks, which in and of themselves are protected by material immunity and which are not among those remarks that are defined as remarks that disrupt the Knesset's work or the internal relationships between its members; and whether there are provisions in the Rules of Ethics that authorize the Ethics Committee to impose sanctions in consequence of such remarks. If such authority exists, this shall lead to an additional question – whether such authority, in the circumstances at hand, was exercised lawfully. I shall discuss the questions in the order of their appearance.

 

Was the Ethics Committee Authorized to Make the Decision?

 

22.          Section 17 of the Basic Law: The Knesset prescribes that "The  members  of Knesset shall have immunity; details shall be determined in the law". The details of the immunity were determined in the Immunity Law. Sections 1(a) – 1(A1) of the Immunity Law, provide:

 

 

Immunity in the Framework of Fulfilling a Position

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal actions, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

[…]

 

(a1) To avoid doubt, an act, including, a remark, that are not random, by a member of Knesset, which constitutes any of the following, for the purpose of this section is not deemed an expression of an opinion or an act that are made in the framework of fulfilling his position or for the sake of fulfilling his position as a member of Knesset:

 

 

 

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

(2)          Denial of the democratic character of the State;

(3)          Incitement to racism due to color or racial belonging or ethnical-national original.

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad.

 

Section 1(a) of the Immunity Law grants a member of Knesset protection against criminal or civil liability and against any other legal action which could be taken, inter alia, due to expression of opinion in the framework of fulfilling his position. Section 1(a1) sets limits to this immunity.

 

23.          Alongside the material immunity, Section 13E(a) of the Immunity Law authorizes the Knesset Committee to promulgate Rules of Ethics for Members of Knesset. Additionally, Section 13D of the Immunity Law grants the Ethics Committee of the Members of Knesset the authority to judge a member of Knesset, inter alia, in matters involving the violation of the Rules of Ethics. These authorities derive from the Knesset's constitutional authority to determine its working procedures (Section 19 of the Basic Law: The Knesset). In the matter at hand, the Committee ruled that the Petitioner violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. These rules provide as follows:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

24.          The sanctions that the Ethics Committee may impose upon a member of Knesset are set in Section 13D:

 

The Ethics            13D. (a) The member of Knesset who committed

 

 

 

Committee    one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated a rule of the Rules of Ethics. […]

(d)          If the Ethics Committee ruled, by a majority of the votes of all of its members, that the member of Knesset violated the provisions of sub-section (a)(1), (1A) or (2), it may impose one of the following thereon:

(1)          A comment;

(2)          A warning;

(3)          A reprimand;

(3A) A severe reprimand;

(3B) Denial of the right to receipt the right to speak in all or some of the Knesset committees of the plenum, for a period that shall not exceed ten days of sessions;

(3C) Limitations of his activity as a member of Knesset, including prohibiting filing bills, agenda proposals, parliamentary questions, etc. except limitations regarding the right to vote, all as the committee shall decide and for a period that it shall decide and provided that the said period shall not exceed the period that remains until the end of such Knesset's session;

(4)          Removal from the sessions of the Knesset plenum and its committees for a period that shall not exceed six months, provided that the member of Knesset shall be entitled to enter the session solely for the purpose of voting;

(5)          Denial of salary and Other Payments for the period of the absence as stated in Section 2(a) or denial of salary and Other Payments for a period which shall not exceed one year due to any violation of any other provision of Section 13A.

For this purpose, "Other Payments" – payment pursuant to Chapter 9 of the Knesset Law, 5754-1994, and payments by virtue of the Retirement of Office Holders in Government Authorities Law, 5729-1969.

 

(d1) If the Ethics Committee has ruled by a majority of votes of all of its members that a

 

 

 

member of Knesset violated the provisions of sub-section (a)(3), it may exercise its authority pursuant to the provisions of sub-section (d), other than the authority under sub-section d(5).

 

25.          From the above citations, one can conclude that the Ethics Committee may impose any sanction provided in Section 13D(d) of the Immunity Law, other than the sanction provided in Section 13D(d)(5), which addresses the denial of salary or Other Payments, upon a member of Knesset who violated any of the Rules of Ethics. In the case at hand, the Ethics Committee imposed a sanction upon the Petitioner pursuant to Section 13D(d)(4) of the Immunity Law, i.e., a sanction of removal from the sessions of the Knesset plenum and its committee for six months. Prima facie, it is the maximum sanction that could be imposed due to violation of any of the Rules of Ethics. It shall be noted that the option of imposing such a sanction was added in the amendment to the Immunity Law from 2002 (Knesset Members Immunity, Rights and Duties Law (Amendment no. 28), 5762-2002). I shall return to the matter of the sanction further on.

 

26.          The parties to the Petition before us assumed that the above-quoted remarks by the Petitioner are covered by the material immunity that is granted to her as a member of Knesset, under Section 1(a) of the Immunity Law. This leads to the question whether or not said immunity prevents the Ethics Committee from addressing these remarks. In my opinion, the answer should be negative. In HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) (hereinafter: the "Makhoul Case"), this Court (President A. Barak, with the consent of Justices A. Procaccia and S. Joubran) ruled that the material immunity of a member of Knesset does not extend to the actions of the Ethics Committee against any of the members of Knesset. There it was ruled as follows:

 

"It has been found that the Immunity Law, in that part that relates to the immunity of a member of Knesset, was primarily meant to allow the member of Knesset to perform his work as required and to protect him against being harassed by the executive authority. The Immunity Law was not meant to prevent the Knesset from dealing with conduct occurring within itself that violate its own Rules of Ethics. Indeed, actions and remarks that fall within the framework of material immunity benefit from broad protection. As such, a member of Knesset's immunity cannot be lifted in consequence thereof. The member of Knesset is not exposed to criminal proceedings or civil actions in consequence thereof. However, such rule does not mean that such actions cannot be the subject of other internal proceedings of the Knesset, in general, and of the proceeding pursuant to Section 13D of the Immunity Law [a proceeding before the Ethics Committee – M.N], in particular. This does not mean that the Ethics Committee is prevented from handling them […]. Indeed, the material immunity protects the member of Knesset against legal actions being taken against him. However, such legal action

 

 

 

does not include actions which the Knesset takes vis-à-vis itself, when at hand are internal Knesset matters […]" (on page 388; emphases added – M.N).

 

Similarly, in the Miari Case, the justices were of the opinion that the material immunity does not apply to sanctions which the Knesset imposes upon its members, pursuant to its By-Laws, which also incorporate the Rules of Ethics (HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 218-219, 234 (1987) (hereinafter: the "Miari Case")). Therefore, according to case law, material immunity does not shield members of Knesset from the authority of the Ethics Committee (compare: Bar Association Appeal 8/79 Sufrin v. The Tel Aviv District Committee of the Bar Association, PD 34(4) 185, 188 (1980) (hereinafter: the "Sufrin Case")). The Petitioners are not asking that we deviate from this case law, but rather that we interpret it narrowly. According to them the Makhoul rule applies only to circumstances relating to remarks that were made within the Knesset building or to slanderous remarks which can disrupt the Knesset's proper work or can harm the internal relationships between its members. Whereas in the case at hand, we are dealing with, what the Petitioners refer to as "pure" political remarks made in the media. I do not accept this distinction proposed by the Petitioners. Indeed the circumstances of the Makhoul Case were different from those at hand, since that case regarded a sanction that the Ethics Committee imposed due to prejudicial remarks against the government, which were made during a speech in the Knesset plenum. Notwithstanding, the main question that was raised and discussed in the Makhoul Case was a question of principle, and it addressed the relation between the Rules of Ethics and  the material immunity granted to members of Knesset. The Court ruled on this question, and  determined  that imposing sanctions  due  to  unethical  actions or remarks does not constitute a circumvention of the material immunity:

 

"Section 13D, which anchors the authorities of the Ethics Committee, does not prejudice the material immunity that is prescribed in Section 1 [of the Immunity Law – M.N.]. In fact, this section, which provides for an internal judgment mechanism, an ethical-disciplinary judgment, is meant to complement and realize the Immunity Law's underlying objectives. Actions taken at an ethical level do not circumvent the protection that is granted to the member of Knesset in the Immunity Law. It is not for no reason that the Ethics Committee's authorities are anchored in the Immunity Law which determines the members of Knesset's immunity. Section 13D complements that which is stated in Section 1. Thus, while Section 1 exempts the member of Knesset from civil or criminal liability due to unethical remarks said in the framework of fulfilling his position (or for the sake of fulfilling his position), Section 13D, which is of the same normative standing, clarifies that the member of Knesset is not absolutely exempt. Indeed, Section 13D of the Immunity Law reflects the 'interest of the Knesset itself to denunciate negative conduct among its member, and the public importance this must be granted'[…]"

 

 

 

(on page 339; emphases added – M.N).

 

These statements are also relevant to the remarks which are the subject of our discussion, even though they were made outside of the house and not in connection with a specific organization or person. The material immunity was meant to ensure that a member of Knesset would have freedom of expression and opinion, without being concerned that this could cost him in a criminal conviction or a personal monetary charge in a civil proceeding (see: HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 300 (2006) (hereinafter: the "Bishara Case");

HCJ 1843/93 Pinchasi v. The Israel Knesset, PD 49(1) 661, 682 (1995); Criminal Appeal 255/68 The State of Israel v. Ben Moshe PD 22(2) 427, 439 (1968)). Additionally, the material immunity was meant to promote parliamentary supervision of the executive authority, without being concerned of being harassed thereby. However, the material immunity was not meant to protect a member of Knesset against internal criticism applied by the Ethics Committee. As has been ruled "The purpose of the Immunity Law was not to grant the legislative authority a mechanism that would prevent it from critiquing the actions of its members, while frustrating its constitutional authority to determine its own procedures […]" (the Makhoul Case, on page 337; emphasis added – M.N). The objective of the Immunity Law is not to prevent the Knesset from taking actions at the internal-ethical level, pursuant to the Rules of Ethics that were determined. Such conclusion is also supported by the material differences between these arrangements: a ruling that a certain act by a member of Knesset is not covered by the material immunity or that immunity should be lifted also has implications towards entities outside of the Knesset. In contrast, the ethics proceedings are internal proceedings (see and compare: the Miari Case, on page 196; compare: HCJ 306/81 Flatto Sharon v. The Knesset Committee, PD 35(4) 118, 126 (1981) (hereinafter: the "Flatto Sharon Case")). Determining that a member of Knesset's remark is not covered by the material immunity could result in criminal charges, with all that that entails. In contrast, the ruling that a member of Knesset violated one of the Rules of Ethics could at most result in a partial interruption of his parliamentary activity, for a limited period of time (see and compare: Permission for Civil Appeal  7504/95  Yassin  v. The Registrar of  Parties,  PD 50(2)  45 (1996); the Bishara Case, on pages 313-314, 318; compare: Permission for Civil Appeal 2316/96 Isaacson v. The Registrar of Parties, PD 50(2) 529 (1996); see also in  the  judgment of the  European Court  of Human Rights, in  which the majority opinion addressed the distinction between immunity that is granted to a member of parliament and internal parliamentary critique of his conduct; A. v. United Kingdom, 2002-X Eur. Ct. H. R. 917, para 86). The harm caused by determining that a member of Knesset violated one of the Rules of Ethics is less intense than in the case of determining that material immunity does not apply to his actions. The applicability of the material immunity and its objectives can be a consideration in the framework of the Ethics Committee's decisions, but they do not undermine its authority. In light of that stated, even assuming that the Petitioner's remarks are covered by the material immunity, there was nothing preventing the Ethics Committee from addressing them pursuant to the existing Rules of Ethics.

 

27.          As mentioned, the Petitioners further argued in a general and sweeping manner that  the  Ethics  Committee  has  no  authority  to  address  political  remarks  by

 

 

 

members of Knesset and that its authority is limited to inappropriate conduct of members of Knesset within the house or to the internal relationships between the members. I do not accept these arguments. Indeed, freedom of political expression is of special importance for a member of Knesset, since it is by such means that the member of Knesset expresses the positions of the public that elected him. This is particularly true when a member of Knesset who represents a minority group is concerned (see also, in a context similar to the matter at hand, the position of the European Court of Human Rights in this matter: Szel v. Hungary, App. no. 44357/13 (Sep. 16, 2014) (hereinafter: the "Szel Case"); Karacsony v. Hungary, App. no. 42461/13 (Sep. 16, 2014) (hereinafter: the "Karacsony Case")), "The political expression – the speech, the article, the interview – are the primary workings tools of the member of Knesset" (the Bishara Case, on page 325; see also, ibid, on page 317). The freedom of expression also affects the disciplinary rules that apply to members of Knesset (compare: Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel (January 1, 2002) (hereinafter: the "Sheftel Case"); Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227, 237 (1986)). Due to freedom of expression, the ethical review of remarks by a member of Knesset must be as limited as possible. Indeed, the Ethics Committee instructed itself – and justifiably so – to refrain, to the extent possible, from limiting the members of Knesset's freedom of political expression. In Decision 2/19, the committee decided as follows:

 

"[…] If, in all that relates to political remarks, the committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing,  slandering, mudslinging and humiliating of individuals and publics, the committee's position is materially different. The committee is of the opinion that such remarks materially harm the status of the Knesset and its dignity […]" (emphasis omitted – M.N).

 

28.          The Ethics Committee expressed a similar position in additional principle decisions (see: Decision 83/18 of the Knesset's Ethics Committee "In the Matter of Complaints regarding Remarks by Members of Knesset Against Persons and Organizations" (December 31, 2012); Decision 7/18 of the Knesset's Ethics Committee "In the Matter of Ethics and Freedom of Expression – the Committee's Decisions regarding Remarks by Members of Knesset" (October 12, 2009)). However, this does not mean that the committee is not authorized to address extreme expressions that amount to supporting acts of terror against the citizens of the State or identifying with such actions. The purpose of the Rules of Ethics for Members of Knesset is to maintain proper conduct by members of Knesset in order to foster the public's trust in the Knesset, preserve the dignity of the Knesset and its integrity (see and compare: the Sheftel Case, paragraph 22 of my judgment, Bar Association Appeal 2579/90 Bar Association District  Committee  v. Anonymous, PD 45(4) 729, 733 (1991); see also: the Report of the Committee for Preparing the Rules of Ethics for Members of Knesset, December 2006, on pages 43-45 (hereinafter: the "Rules of Ethics Preparation Committee Report")). The public's trust in the Knesset may also be prejudiced by remarks made by a member

 

 

 

of Knesset outside of the Knesset, which are not necessarily related to inappropriate conduct within the Knesset or to the internal relationships between its members. This is the case, for example, when an act or remark that is interpreted as supporting violence against citizens is concerned. A member of Knesset carries the Rules of Ethics with him wherever he goes (compare: the Sheftel Case, paragraphs 13-16 of my judgment). Their applicability is not limited to his relationship with other members of Knesset or internal parliamentary conduct. It is possible that the applicability of the Rules of Ethics on remarks outside of the Knesset is narrower. However, the circumstances of the case at hand are extreme. It is worth noting that the code of ethics for members of Parliament in Britain, to which the Petitioners referred, provides that the Rules of Ethics are not intended to regulate a member of Parliament's conduct in his personal life, outside the walls of the parliament. However, conduct by a member of Parliament that significantly damages the reputation or the integrity of the parliament or its members is excluded from that rule (U.K Code of Conduct for Members of Parliament (passed pursuant to the Resolution of the House of Jul. 19, 1995) § 2-3 (hereinafter: "U.K. Code of Conduct for Members of Parliament").

 

29.          The Petitioners further argued that the Ethics Committee's decision in the case at hand does not coincide with its above-mentioned principle decisions which reject intervening in the members of Knesset's freedom of political expression. However, these decisions do not constitute a precedent that denies the committee of its authority to address extraordinary remarks which in its opinion constitute a violation of the Rules of Ethics. The Ethics Committee elaborated on this matter in its decision that addressed harsh remarks by a member of Knesset during the "Pillar of Defense" operation, against those he referred to as "leftists":

 

"The majority of the complaints that have been filed to the Ethics Committee in the 18th Knesset were related to remarks by members of Knesset. The Ethics Committee, despite repeatedly being of the opinion that harsh and outrageous remarks were at issue, decided, in the majority of cases, not to exercise its  authorities, based on an orientation  of not narrowing the members of Knesset's freedom of expression […] however the fundamental principle of freedom of expression cannot protect anything a member of  Knesset says, and the committee is of the opinion that this is one of the cases in which it must intervene and express its opinion that a line has been crossed between a legitimate, albeit harsh and outrageous, statement and words of incitement. Statements in the form of 'Leftists Out', 'Leftist to Gaza' and 'Leftist Traitors' are not statements in the framework of the broad freedom of political expression which is granted to members of Knesset and do not coincide with the proper and expected conduct of a member of Knesset […]" (Decision 85/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Michael Ben Ari regarding Remarks" (December 31, 2012)) (emphasis added – M.N.)

 

 

 

30.          The Ethics Committee also found it to be justified in other cases to exercise its authority with regard to remarks by members of Knesset which encouraged acts of terror or violence. For example, the committee decided to apply sanctions for statements praising Shahids (martyrs) (Decision 73/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Ahmad Tibi due to a Speech on Martyrs Day'" (March 5, 2012) (hereinafter: the "Decision regarding the "Martyrs Day"")); for public support of the Intifada (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Uri Yehuda Ariel against Knesset Member Ahmad Tibi" (June 24, 2003) (hereinafter: the "Decision regarding Supporting the Intifada")); and for the statement "Whoever removed sovereign land from the State of Israel – is to be sentenced to death" (Decision of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Colette Avital against Knesset Member Arie Eldad" (June 24, 2008) (hereinafter: the "Decision in the Matter of Knesset Member Eldad"). Therefore, the Ethics Committee's principle decisions do not prevent its intervention in the current case and exercising the committee's authority with respect to remarks of the kind addressed in the Petition is not unprecedented.

 

31.          An additional argument by the Petitioners regarding the Committee's authority is that there is no explicit provision in the Knesset's By-Laws or in the Rules of Ethics that authorizes the Ethics Committee to impose sanctions against the Petitioner's remarks. The Petitioners argued that Rule 1A of the Rules of Ethics – upon which the Ethics Committee's decision in the Petitioner's matter relied – is a "declaratory section that includes abstract principles and values and therefore has only an interpretational declaratory status" (paragraph 39 of the Petition), and does not have operative status. This argument, too, is to be denied. The provision of Rule 1A of the Rules of Ethics for Member of Knesset, as was presented above, prescribes fundamental values which bind the member of Knesset, such as promoting society and the best interest of the State and preserving the dignity of the Knesset and its members. Other Rules of Ethics regulate a series of specific matters, such as additional occupation of a member of Knesset (Chapter E of the Rules of Ethics) or provisions that relate to a declaration of capital (Chapter F of the Rules of Ethics).

 

32.          The fundamental values that were prescribed in Rule 1A of the Rules of Ethics outline general criteria for the members of Knesset's conduct (compare: Bar Association Appeal 7892/04 The Tel Aviv District Committee of the Bar Association v. Boteach, paragraph 14 of Deputy President M. Cheshin's judgment (May 10, 2005) (hereinafter: the "Boteach Case")), and express the need to preserve the public's trust in the Knesset. I am of the opinion that they should be considered as having an independent status, which allows imposing ethical sanctions in consequence of the violation thereof. This is necessary since naturally, specific rules of ethics do not cover all the issues that could arise at an ethical level. In the absence of a specific rule that regulates a specific situation, the member of Knesset can  find guidance in  advance in the  general values; and retroactively, the Ethics Committee can decide that a member of Knesset violated the Rules of Ethics, by violating one of the general values (see also: the Rules of Ethics Preparation Committee Report on pages 45-46; Proposal for Code of Ethics that was Submitted by the Knesset Committee's Rules of Ethics Preparation Sub-Committee,  2011;  Assaf  Shapira  "Ethics  in  the  Knesset"  Parliament  70

 

 

 

(2011). This illustrates the advantage of normative arrangements that are formatted as principles, which allow them to be applied in dynamic circumstances (for the distinction between rules and principles see, for example: Aharon Barak Purposive Interpretation in Law 248-249 (2003)).

 

33.          My conclusion also coincides with this Court's judgment in the Makhoul Case, where the Court did not find cause to intervene in the ethical sanctions that were imposed upon a member of Knesset in consequence of violating Rule 1A of the Rules of Ethics. It shall be noted that Rule 1A, as well as Rule 2 of the Rules of Ethics, which also outlines general criteria for the conduct of the members of Knesset, has served in various cases as the basis for imposing ethical sanctions on members of Knesset (see, for example: Decision 30/17 of the Knesset's Ethics Committee "In the Matter of Mutual Complaints of Knesset Member Effi Eitam and Knesset Member Ahmad Tibi" (May 27, 2008); Decision 2/17 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Ruhama Avraham against Knesset Member Sofa Landver" (July 11, 2006)). Furthermore, general principles exist in various systems of disciplinary rules. The violation of these principles could justify imposing a disciplinary sanction upon the violating party. For example, the Rules of Ethics for Lawyers include general principles, the violation of which could raise cause for being found guilty of a disciplinary offense (see: Rules 2, 23, 32-33 of the Bar Association (Professional Ethics) Rules, 5746-1986); the Boteach Case, paragraph 14 of Deputy President M. Cheshin's judgment; Bar Association Appeal 736/04 District Committee of the Bar Association v. Mizrachi PD 58(6) 200 (2004); Bar Association Appeal 2379/07 Tel Aviv – Jaffa District Committee of the Bar Association v. Rosenzweig (February 12, 2008); also see and compare: Section 61(3) of the Bar Association Law, 5721-1961, which prescribes that any act or omission that do not befit the legal profession are, inter alia, a disciplinary offense; Bar Association Appeal 15/88 Anonymous v. The  State's Attorney, PD 43(1) 584. 588 (1989); Bar Association Appeal 17/79 Tel Aviv Jaffa District Committee of the Bar Association v. Anonymous, PD 34(3) 756, 660-661 (1980); also see: Gabriel Kling Ethics For Lawyers 489-494 (2001)).

 

34.          Similarly, the Rules of Ethics for judges include general principles, the violation of which has operative implications (see: Rules 1-7, and particularly Rule 2(b) of the Rules of Ethics for Judges, 5767-2007; see also: Gabriel Kling Ethics for Judges 15-16 (2014)). Accordingly, the judges' ethics committee has refrained from approving certain actions in advance, based on general principles, such as the principle that a judge must refrain from actions which do not befit his status (see: Decision A/13/17 (February 25, 2013), which did not permit judges to participate in a personal mentoring venture of the Executives Program in the School of Public Policy; Decision A/11/53 (July 27, 2011), that it would not be appropriate to allow charging the parties to a legal proceeding a judge's travel expenses; see also Section 18(a) of the Courts [Consolidated Version] Law, 5744-1984, which prescribes that the Minister of Justice may file a complaint to the disciplinary court against a judge who behaved in a manner that does not befit the status of a judge in Israel). Thus, applying such a rule with respect to the Rules of Ethics for Members of Knesset is not unusual compared to other systems of disciplinary rules. In any event, the Ethics Committee has broad authority to address matters that relate to the ethics of the members of Knesset, including a matter that does not have a

 

 

 

provision in the Rules of Ethics (Rule 24 of the Rules of Ethics). It follows, a fortiori, that the committee is authorized to address the violation of the general values which are anchored in the rules themselves.

 

35.          Among the general principles that are set in Rule 1A are the member of Knesset's obligations to act to advance the best interest of the State and preserve the dignity of the Knesset. The decision at hand is based on these obligations. Once I have reached the conclusion that the committee is authorized to address the violation of the general principles, it follows that it is, inter alia, authorized to address the duty to act for the benefit of the best interest of the State. As such, the Petitioners' argument that the Ethics Committee cannot decide who is acting for the benefit of the State, since such a decision is reserved for the voting public or that such a decision opens "a dangerous opening for political persecution" (paragraph 34 of the Petition), is in fact directed against the Rules of Ethics themselves and not towards the decision which is the subject of the Petition. In comparison, the Rules of Ethics in Britain include similar principles, including the duty of the members of Parliament to act in the interests of the nation as a whole (U.K. Code of Conduct for Members of Parliament § 4-7).

 

36.          In light of that stated above, the decision of the Ethics Committee was given within its authority. The question that remains is whether it is appropriate to intervene on the merits of the decision. On this level, the question that arises is whether the Petitioner's remarks constitute a violation of the Rules of Ethics, and if so – whether the sanction that was imposed due to such violation befits the severity of the offense. It shall already be clarified here that the Petitioners' arguments focused on the question of the Ethics Committee's authority to address the Petitioner's remarks, and not on the question of whether the committee was correct in its conclusion that ethical obligations were violated (compare: the Sheftel Case, paragraph 11 of my judgment). As mentioned, the Petitioners also argued that it is appropriate to intervene in the sanction that was imposed upon the Petitioner. However, in order to present a complete picture, I shall address the question of whether or not the Rules of Ethics were violated.

 

The Discretionary Level: Was the Ethics Committee's Decision that is the subject of the Petition Adopted Lawfully?

 

37.          The examination of the Ethics Committee's decision in the case at hand derives from the scope of the judicial review of the Ethics Committee's decisions (see: the Makhoul Case, on page 340). The scope of the judicial review of the Knesset's decisions changes in accordance with the essence of the decision under review: Legislative acts that were completed, internal parliamentary proceedings and quasi-judicial decisions (see: HCJ 652/81 Sarid v. The Chairperson of the Knesset, PD 36(2) 197 (1982); the Flatto Sharon Case, on pages 124-126)). When the Ethics Committee addresses complaints against members of Knesset, it is fulfilling a quasi-judicial duty (the Makhoul Case, on page 340; HCJ 7993/07 Legal Forum for Israel v. The Knesset's Ethics Committee, paragraph 6 of my judgment (April 30, 2009) (hereinafter: the "Legal Forum A Case"); HCJ 6280/07 Legal Forum for Israel v. The President of the State, paragraph 22 of Justice A. Procaccia's judgment (December 14, 2009) (hereinafter: the "Legal Forum B Case")).

 

 

 

 

In principle, the judicial review that is applied to the Knesset's quasi-judicial decisions is the same as the judicial review that is directed towards quasi-judicial authorities (see: ibid). However, in contrast to other quasi-judicial authorities, the Ethics Committee of the Members of Knesset, mainly addresses internal Knesset matters that relate to discipline and the ethics of its members. "[…] the essence of the activity of the Ethics Committee, in contrast, for example, from the removal of immunity which is performed by the Knesset Committee, is directed internally towards the Knesset, and in fact, in general its actions do not have any implications outside of the house of legislators" (the Makhoul Case, on page 343). Therefore, it was ruled that this Court's intervention in the decisions of the Ethics Committee should be in a more limited scope than the scope of intervention in the activity of other quasi-judicial entities in the Knesset (see: ibid). This reflects the Ethics Committee's broad scope of discretion, when handling matters of ethics and discipline of members of Knesset. The Court may intervene when the Ethics Committee's decision was reached in violation of law, or when at hand are material matters such as a violation of basic constitutional rights, the right to due process or violation of the  principles of natural  justice (see: the Legal Forum A Case, paragraph 6 of my judgment; the Legal Forum B Case, paragraph 22 of Justice A. Procaccia's judgment). In general, "[…] the more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the  actions deviates from the proper extent, this more this Court will be willing to intervene" (the Makhoul Case, on page 344).

 

38.          As mentioned above, the Ethics Committee ruled that the Petitioner's remarks, in light of their content and sensitive timing, do not coincide with the best interest of the State and severely prejudice the public's trust in the Knesset and its image. Hence, the Ethics Committee ruled that the Petitioner's remarks violated Rule 1A(2) and Rule 1A(4) of the Rules of Ethics. For the sake of clarity, I shall requote these Rules verbatim:

 

 

General Values

 

1A. The member of Knesset – (1) […]

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(3) […]

(4)          Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

(5) […]

(6) […]

 

 

The language of Rules 1A(2) and 1A(4) is broad and leaves room for the Ethics

 

 

 

Committee's discretion regarding the manner of their application in specific cases. Such application must be in accordance with the objectives underlying these Rules. The Rules of Ethics reflect the principle that a member of Knesset, as an elected official, is also a trustee of the public. As such, he must make the public interest a higher priority compared to his personal matters. This also leads to the need to preserve the public's trust in the Knesset, and the Rules of Ethics are a means to realize this trust (On the importance of public trust in governmental authorities in general, see HCJ 6163/92 Eisenberg v. The Minister of Construction and Housing, PD 47(2), 229 (1993); and also see: HCJ 4921/13 OMETZ – Citizens for Good Governance and Social Justice v. The Mayor of Ramat Hasharon (October 14, 2013)).

 

39.          It is, therefore, my opinion that the committee's conclusions did not deviate from the broad range of discretion granted to it. The Petitioner's statements in the Interview and the Article were interpreted as a support of terror and the killing of civilians. In the case at hand it is not criticism of the government's policy during wartimes that is at issue and not even criticism of legislation in the Knesset or of other political maneuvers of the majority. The severity of the matter is enhanced considering the timing of the Petitioner's remarks, just a few days after the abduction of the teenagers, at a time when their fate was unknown, and in the midst of the "Protective Edge" operation. Additionally, the cumulative effect of the Petitioner's remarks, which were published in proximity to each other, must also be taken into consideration. Considering all of the circumstances of the current case – the Petitioner has gone too far. The Ethics Committee ruled that the Petitioner's statements amount to "legitimizing acts of terror against the citizens of the State", and that this is a violation of the Rules of Ethics. Indeed, words of support of terror of any kind, from either side, could severely prejudice the public's trust in the Knesset and its image. Therefore, and taking into consideration the nature of the Petitioner's remarks and their timing, it is inappropriate to intervene in the committee's conclusions that the Petitioner's statements severely harm the public's trust in the Knesset and its image, and violate Rule 1A(4) of the Rules of Ethics. The committee further ruled that the Petitioner's remarks violate rule 1A(2) of the Rules of Ethics that, inter alia, provides that a member of Knesset shall act to advance the State's best interest. It appears that the main objective of this rule is to guarantee that members of Knesset will act for the sake of the public interest, and shall not take advantage of their status and authorities for the sake of personal matters. In the case at hand, prima facie, the Petitioner's remarks were not intended to promote her personal affairs. Notwithstanding, it appears that both extreme remarks and actions which legitimize acts of terror against the citizens of the State do not coincide with the State's best interest (compare: the Miari Case, on pages 226-227). The Petitioners themselves agreed that statements that encourage and support violence are not legitimate. In support thereof, both in the Petition and in the hearing before us, the Petitioners provided a series of "explanations" of the Petitioner's remarks, and asked that we not perceive them as supporting terror. With respect to the Petitioner's statements regarding the abductors of the teenagers

– "they are not terrorists" – it was explained that the Petitioner's principle position is not to use the term "terror" in Israeli media. Since, according to her, the term "terror" is used in Israeli media only to describe Palestinian violence and not to describe Israeli violence against the Palestinian population. As to the Petitioner's Article, the Petitioner's intention when calling upon the Palestinians to turn to

 

 

 

"popular resistance" and to impose a "siege" on Israel, which was interpreted by the Ethics Committee as supporting a violent uprising against the State of Israel, was not explained in the Petition. In his oral arguments before us, the Petitioner's attorney explained that the Petitioner's intention in her Article was to encourage non-violent civil Palestinian resistance, and to express support for a "political siege" on Israel. In response to our questions, the Petitioner's attorney even stated that if the Petitioner's intention was to support a military siege, this would be problematic. However, these explanations were given retroactively, by the Petitioner's attorney, and not by the Petitioner herself. The Petitioner did not provide them to the Ethics Committee in her filed response and not even to the Knesset plenum in her appeal. It would have been appropriate for the Petitioner's explanations to be given in the framework of her response to the complaint that was filed to the Ethics Committee, and at least in the framework of her appeal of the committee's decision (compare: the Makhoul Case, on page 344). In any event, these explanations – which as mentioned were only given retroactively – are not sufficient to justify our intervention in the Ethics Committee's decision. The Petitioner's remarks were not published in the media with explanatory notes. The spirit of the statements, despite the Petitioner's later reservations, is that of identification with acts of terror and support of violence, as a means of attaining political objectives. In my opinion, in these circumstances it is inappropriate to rule that the Ethics Committee's decision that the Petitioner violated the Rules of Ethics was flawed in a manner that justifies our intervention. I shall clarify that this judgment only addresses the violation of the Rules of Ethics by the Petitioner, and no other matter.

 

40.          The Petitioners requested that we intervene in the sanction that was imposed upon the Petitioner, due to it being, according to them, discriminatory and disproportionate. We have ruled, by a majority of opinions, that such intervention is inappropriate in the circumstances at hand. I elaborated above on the fact that the Ethics Committee has broad discretion, and this is true also with regard to prescribing the sanction. However, the committee's broad authority is not to be interpreted as a permit to impose arbitrary sanctions. When imposing a sanction due to the violation of the Rules of Ethics, the Ethics Committee must take a variety of considerations into consideration. In general, the sanction imposed must be proportionate to the severity of the ethical offense committed by the member of Knesset (see: the Makhoul Case, on page 344). Subsequently, the committee must take the severity of the offense and the circumstances in which it was committed into consideration. As to remarks by members of Knesset, their content, subject matter and timing must, inter alia, be taken into consideration. A remark that slanders or humiliates individuals and publics does not carry  the  same consequence as another extraordinary and extreme remark (see also in this matter: the Ethics Committee's Decision "In the Matter of the Amendment of the Knesset Members Immunity, Rights and Duties Law, 5711-1951" (June 24, 2002)). Among all of its considerations, the Ethics Committee must also include the circumstances of the concrete member of Knesset who is being judged thereby, including the question whether he expressed remorse for his actions and his entire disciplinary past (for Ethics Committee decisions in which such considerations were considered, see, for example: The Knesset's Ethics Committee's Decision "In the Matter of Ziv Price, Eliezer Dvir and Pinchas Wolf against Knesset Members Ahmad Tibi, Taleb el-Sana and Jamal Zahalka" (June 22, 2004) (hereinafter: the

 

 

 

"Decision in the Matter of Knesset Members Tibi, el-Sana and Zahalka"); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Limor Livnat, Minister of Education, Culture and Sport against Knesset Member Issam Makhoul" (December 21, 2004); the Knesset's Ethics Committee's Decision "In the Matter of the Complaint by Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 19, 2005); the Knesset's Ethics Committee's Decision "In the Matter of the Complaints of Knesset Member Arie Eldad and Knesset Member Uri Ariel against Knesset Member Issam Makhoul" (July 26, 2005); the Makhoul Case, on page 344; and compare to Decision 64/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by Knesset Member Danny Danon against Knesset Member Hanin Zoabi" (January 3, 2012) (hereinafter: "Decision 64/18")). It must also take the punishing standard in similar cases into consideration.

 

And From These General Principles – To the Case at Hand.

 

41.          In the circumstances at hand, we have not found it appropriate to intervene in the sanction that was imposed upon the Petitioner. The Ethics Committee has a broad range of proportionality and the Petitioner's remarks are especially severe, particularly – considering their timing. The severity of the statements is also reflected in the Attorney General's decision in the Petitioner's matter. While the Attorney General did not find justification to open a criminal investigation in this case, he did find it appropriate to state that his decision does not prevent taking actions against the Petitioner at an administrative or ethical level (also compare with: the Sufrin Case, on page 188). The Ethics Committee also took the impact of the decision and its accompanying sanction on the Petitioner's freedom of expression into consideration among the entire considerations, and emphasized the importance of the right to publicly criticize the government during times of war. The Ethics Committee indeed weighed relevant considerations from every direction, which were reflected in the reasoned decision. The Petitioner was given the right to be heard both before the committee and before the Knesset plenum, in the framework of her appeal. In addition, according to the data on the Knesset's website, the decision to reject the Petitioner's appeal was adopted by a significant majority, which also included members of Knesset from the opposition, and on the other hand, one of the members of Knesset from the coalition voted in favor of accepting the Petitioner's appeal. The proceeding in the case at hand was conducted while maintaining the Petitioner's procedural rights. The Petitioner's conduct during the procedure created the impression that she did not take it seriously. As mentioned, some of her explanations were first presented during oral arguments before us, by her attorney and not by her.

 

42.          Indeed the sanction that was imposed upon the Petitioner – being removed from sessions of the Knesset's plenum and its committees for the maximum possible period of time – is the most severe sanction in the existing scale of penalties. There was no dispute that this sanction had never in the past been imposed for the maximum period of time prescribed in the Immunity Law. However, in the circumstances of the case, the Petitioners' argument of discrimination and lack of proportionality, cannot be accepted. This is not the first time that the committee attributes significant severity to such remarks, remarks that encourage acts of terror or violence (see: the Decision regarding the "Martyrs Day", the Decision

 

 

 

regarding Supporting the Intifada). At the ethical level – which is meant, inter alia, to preserve the public's trust in the Knesset – remarks that express support of terror or violence against citizens, are no less serious than threats or slander that are directed at a specific sector or person. In this context it shall be noted that the majority of the decisions that were quoted in the Petition do not address remarks of this kind, and in any event not remarks during times of war or terror events. I have not ignored the judgments in the above-mentioned Szel Case and Karacsony Case, in which the European Court of Human Rights addressed fines that were imposed on opposition members of Parliament in Hungary, due to unethical conduct during sessions in parliament. At issue there, were acts of protest against a controversial bill (in the Szel Case) and acts of protest against the conduct of the majority party (in the Karacsony Case). These acts of protest included, inter alia, waving signs. The European Court ruled that indeed the fines that were imposed infringed the members of Parliament's right to freedom of expression in a disproportionate manner and ordered that they be cancelled; however the remarks in these cases are less severe than in the case before us. The Ethics Committee indeed has never before imposed a penalty of removal for the duration of six months, but penalties of this kind had been imposed for shorter periods of time – both for remarks and for actions (see, for example: Decision 7/19 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Meir Porush" (November 13, 2013) (removal from Knesset plenum sessions for two weeks); Decision 66/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Chairperson of the Knesset against Knesset Member Anastasia Michaeli" (January 10, 2012) (removal from sessions of the Knesset plenum and its committees for a month); The Decision in the Matter of Knesset Member Eldad (removal from sessions of the Knesset plenum and its committees for one day); The Decision in the Matter of Knesset Member Tibi, el-Sana and Zahalka (removal from sessions of the Knesset plenum and its committees for two days)). An examination of the Petitioner's entire disciplinary past indicates that her remarks have been discussed by the Ethics Committee many times. In some of the cases it was found that she did not violate the Rules of Ethics or that it is inappropriate to impose a sanction for her remarks, and in some of the cases various penalties were imposed upon her (see, for example: Decision 64/18; Decision 55/18 of the Knesset's Ethics Committee "In the Matter of Complaints against Knesset Member Hanin Zoabi due to her Participation in the Flotilla to Gaza in May, 2010" (July 18, 2011); Decision 52/18 of the Knesset's Ethics Committee "In the Matter of a Complaint by the Legal Forum for Israel against Knesset Members Hanin Zoabi and Jamal Zahalka" (July 5, 2011)). I shall at this point note that in my opinion no weight should be attributed to the mere filing of complaints against a member of Knesset, as in the case at hand. According to the law, any person may file a complaint against a member of Knesset (Section 1of the Knesset Members Ethics Procedure (Complaints)). Many complaints are not accepted and many are dismissed in limine. Granting weight to complaints that were filed – even if they were not found to have any substance – could lead to abuse of this tool and to unjustified harm to members of Knesset. However, this consideration did not receive significant weight in the decision which is the subject of our discussion.

 

43.          I shall not deny that I was concerned by the "quantum leap" in the sanction that was imposed in this case. As may be recalled, the sanction of removal was added

 

 

 

to the Immunity Law in 2002, and as such, in general, should be imposed gradually (see and compare: Criminal Appeal 1042/03 Meretzplas Limited Partnership Ltd. (1974) v. The State of Israel PD 58(1) 721, 731-732 (2003); Criminal Appeal 7936/13 Levy v. The State of Israel, paragraph 46 of Justice N. Solberg's judgment, paragraph 2 of my judgment (December 16, 2014)). However, from a practical perspective, we are not dealing in this case with the Petitioner's complete removal from the Knesset's activity for six months. The summer recess, during which the Knesset operates in a limited format, took place during the first half of the removal. During the recess the Knesset plenum convenes only in extraordinary cases and Knesset committees also convene less frequently. As such, during the recess the two committees in which the Petitioner is a member convened only five times (but it shall be noted that meetings of other committees were also held), while according to the Knesset's website, during the month of November, these committees held more than twenty meetings. Furthermore, there was an elections recess during the seven weeks that remained of the period of removal, from the time of the hearing before us that was held on December 9, 2014, and the judgment that was given the following day. Therefore, the practical significance of intervening in the sanction in these circumstances is miniscule, if at all existent. I shall emphasize that in any event, the Petitioner's right to vote was not denied, and furthermore, that the sanction does not prevent the Petitioner from using parliamentary tools, such as filing bills, proposals or questions. At issue also is not a suspension from the Knesset (compare: the Flatto Sharon Case, on page 126). Considering all of the reasons mentioned above, I have not found justification for our intervention in the broad discretion granted to the Ethics Committee.

 

44.          Epilogue: The Petition is denied without an order for expenses, as stated in our judgment dated December 10, 2014.

 

The President

 

Justice E. Hayut

 

1.            I concur with the opinion of my colleague the President, both with regard to the question of the Ethics Committee's authority to impose sanctions against the Petitioner for the remarks which are the subject of the Petition and with regard to the conclusion that the authority in the circumstances at hand was exercised lawfully. I also share my colleague's remarks (paragraph 43 of her opinion) regarding the excessive severity of the sanction that was exercised in the case at hand. However, like my colleague, I am of the opinion that it is inappropriate to intervene since in the case at hand the severity of the sanction has de facto been mitigated to a considerable degree, given the fact that the majority thereof occurred during the summer recess – and this was taken into consideration by the committee – and during the election recess – even though this was not known at the time the sanction was imposed.

 

Due to the matters that emerged in this Petition, the importance of which cannot be overstated, I have found it appropriate to add two short comments: one – relates to not exposing the minutes of the Ethics Committee and the material presented thereto to be reviewed by the Petitioner despite her request in this

 

 

 

matter, and the second – relates to limiting the freedom of political expression of an elected official who represents a minority group in society.

 

The  Refusal  to  Deliver  the  Minutes  of  the  Committee  and  the  Material Presented thereto to the Petitioner's Review

 

2.            My colleague elaborated in her opinion on the fact that the Petitioner approached the Ethics Committee and requested, "in order to file a petition to the High Court of Justice", to review the minutes of its meetings and the material presented thereto in preparation for it reaching a decision, but was refused. The Knesset's legal counsel reasoned the refusal by referring to Rule 21 of the Rules of Ethics for Members of Knesset, which provides that the ethics proceedings, including the documents and the minutes, are privileged, and are not to be published except with the committee's written permission, and subject to the terms it shall prescribe. The legal counsel further stated in his response to the Petitioner that while the use of material and minutes of the committee's meetings for the purpose of legal proceedings is one of the exceptions the committee recognizes in this context, it is his position that this should not include a legal proceeding that is meant to challenge the decision of the Ethics Committee itself, due to the concern that this could adversely affect the committee members' ability to properly fulfill their duties. Finally, the legal counsel stated in his response to the Petitioner that if the Petition shall be filed, the minutes of the committee's session shall be delivered for the Court's review only. And indeed, immediately following the filing of the Petition, the Respondents delivered the minutes of the committee's session, in a sealed envelope to be reviewed only by the members of the bench.

 

During the hearing that was held before us on December 9, 2014, the Petitioners' attorney informed us that in order to make the hearing more efficient and to move it forward, he does not insist on the arguments he raised in the Petition regarding the refusal to provide him with the minutes of the committee's session and the material that had been presented thereto, while reserving his arguments in this matter. As such, my colleague did not find it necessary to refer to this matter in her opinion. Without setting rules in the matter, I find it appropriate to note that in my opinion the Knesset legal counsel's  reasons for refusing to make the minutes of the committee's session and the material that had been presented thereto available to the Petitioner, create non-negligible difficulties, in light of the distinction he made between general legal proceedings and legal proceedings that are intended to challenge the disciplinary decision that was adopted by the committee. It appears to me that not making the minutes and the material available to the Petitioner in these circumstances significantly impairs her ability to effectively challenge the decision and therefore it appears to me that the position presented by the Knesset's legal counsel in this context should be reexamined. This Court has elaborated in the past on the intensity of an individual's interest to receive detailed information  regarding a proceeding – disciplinary or other – in which a decision regarding him has been reached, especially in the context of a judicial proceeding against which he wishes to take action, so as to allow him to exercise his right to due process. In HCJ 844/06 Haifa University v. Oz (May 14, 2008) it was ruled in this context as follows:

 

"Whatever the extent of concern that the functioning of the

 

 

 

university examination committees will be impaired, that concern is subordinated to the need to allow the employees who were harmed by the conclusions of these committees to defend themselves against that which was attributed to them and to prove their argument that the decision regarding them was not lawfully adopted… The underlying rationale of this approach is that there is a significant social interest in giving the employees the possibility of exhausting their rights, and the interest of the efficient functionality and existence of such examination committees, however important it may be, does not in and of itself justify recognizing the material as privileged. This is certainly relevant when, as in the case at hand, there was a proceeding before a judicial instance which is addressing a question of the legal validity of the petitioner's decisions regarding changing the terms of employment of respondent 1 and terminating the employment of respondents 2 and 3. In this context, the interest that exists that the said examination committees be efficiently functional is subordinated to the respondents' right to due legal process, in the framework of which they shall be granted the possibility of reviewing all of the material relevant to establishing the arguments against terminating their employment in the School of Theatre" (the Oz Case, paragraph 18, see also: Permission for Civil Appeal 7568/00 The State of Israel – Civil Aviation Administration v. Aharoni, PD 55(5) 561, 565

(2001)).

 

It is my position that the intensity of this interest is certainly not weakened when at hand is a disciplinary proceeding that is being taken against a member of Knesset, and in this context it is not superfluous to add that the proper balance between the need to preserve the proper functionality of the Ethics Committee – the importance of which was elaborated upon in the Knesset's legal counsel's response – and the Petitioner's right to due process, can be obtained by way of stipulating terms and preventing the exposure of certain details, for example with regard to the identity of the speakers in appropriate cases, as per the committee's authority pursuant to the end of Rule 21 (see and compare: HCJ 7793/05 Bar- Ilan University v. The National Labor Court in Jerusalem, paragraph 20 (January 31, 2011); Administrative Petition Appeal 6013/04 The State of Israel

– Ministry of Transportation v. The Israel News Company Ltd. PD 60(4) 60, 96 (2006)). In any event, once the Petitioners did not insist on their argument in this matter, then, as my colleague chose, the ruling on this matter can be left for another time.

 

 

 

Limiting  the  Freedom  of  Political  Expression  of  an  Elected  Official  who Represents a Minority Group in Society

 

3.            In her opinion, my colleague elaborated on the distinguished and special status of the freedom of political expression in the order of constitutional rights, particularly when at hand is a member of Knesset who represents a minority group. This position is grounded in the past rulings of this Court, in HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336-338 (2006), and in the ruling of the European Court of Human Rights (Szel v. Hungary, 44357/13 (2014) at para 69; Karacsony v. Hungary, 42461/13 (2014) at para 72) to which my colleague referred. See also Tarlach Eoghan McGonagle, Minority Rights and Freedom of Expression: A Dynamic Interface (PhD Thesis, University of Amsterdam, 2008) for the special importance of protecting the freedom of expression of minority groups, in general, and the duty imposed on the state to restrain the infringement of this freedom of expression and to take measures to allow it to be realized.

 

However, the attempt to define what a "minority group" is, is not always an easy task (see and compare for example: Michael M. Karayanni, Groups in Context: An Ontology of a Muslim Headscarf in a Nazareth Catholic School and a Sephardic Ultra-Orthodox Student in Immanuel 1, 42 (January 12, 2015). Available at SSRN:http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2548548; Civil Appeal 466/83 Shahe Ajemian, Archbishop in the Armenian Church in Jerusalem v. Archbishop Yeghishe Derderian, PD 39(4) 737, 747 (1986)), and it should also be noted that at times there can be situations in which it appears that it is actually the freedom of expression or other freedoms of the majority that are at risk and need steadfast protection against being infringed upon by certain minority groups. In any event, the freedom of political expression of an elected official, as well as an elected official who represents a minority group, is not absolute, but rather, as any other constitutional right, is relative, and it is not a freedom that is free of any limitations whatsoever. Like my colleague, I am of the opinion that in the case at hand, the Petitioner's remarks crossed the line and exited the zone worthy of protection in the name of freedom of political expression, even considering the fact that she represents a minority group in Israeli society. The Petitioner's statements in the Interview, regarding the abduction of the teenagers, reflect understanding and legitimization of the atrocious act of abduction, and identify with those who committed the act, whom, according to her, should not be referred to as "terrorists". The words the Petitioner wrote in the Article that was published on various websites are no less severe from the perspective of the Rules of Ethics that apply to someone who serves as a member of the Israeli Knesset. In that same Article, the Petitioner went so far as to hand out advice as to the effective ways in which it is possible to fight the State and to harm it. Inter alia, it was written in said Article: "We must abandon the lethal trinity and declare a popular resistance instead of security coordination and impose a siege on Israel instead of negotiating therewith". These words, when voiced by a person who is a member of the Israeli Knesset, justify the steps taken by the Ethics Committee, because they illustrate that what the Petitioner had in mind when writing that Article was neither "the advancement of society and the best interest of the State" nor "fostering public trust in the Knesset". The Petitioner advocates to cease the coordination and the

 

 

 

negotiations between Israel and the Palestinians, which according to her are nothing but part of what she refers to as the "lethal trinity" and instead of negotiations and coordination she calls for popular resistance and imposing a siege on Israel. The Petitioner's attorney's attempt to retroactively argue that this is not a call for violence, is perplexing, inter alia, given the manner the term "popular resistance" is de facto implemented in the reality of our lives.

 

It is important to emphasize that remarks, and particularly remarks by elected officials, which constitute criticism and even extremely harsh criticism, of government policy are completely legitimate, and this is true with respect to remarks that emphasize the suffering of the other party to a conflict and which exhibit empathy towards and understanding of such suffering. This Court elaborated on this in the early days of the State, when stating that the difference between an autocratic regime and a democratic regime is marked by the possibility that is granted to the representatives chosen by the people to scrutinize the acts of government at any time "Whether to cause such acts to be rectified and create new arrangements in the State, or to bring about the immediate termination of those 'governing' or their replacement by others when comes the elections" (HCJ 73/53 'Kol Ha'am' Company Ltd. v. The Minister of Interior PD 7(1) 871, 876 (1953)). However, as mentioned, the Petitioner's remarks, for which the Ethics Committee deemed it appropriate to apply sanctions against her, completely deviated from this legitimate category, even if one takes into consideration the special caution that must be  applied  when dealing with the freedom of political expression of an elected official who represents a minority group.

 

4.            My colleagues emphasized the excessive severity that accompanies  the Petitioner's remarks given that they were made during times of war and crisis. I am of the opinion that it is inappropriate to set different criteria for the protection of the freedom of expression during times of crisis compared to those that should be applied during times of calm. However, it is clear that the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis. President A. Barak elaborated on this in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), when he stated that:

 

"Indeed, Israeli constitutional law has a uniform approach to human rights during times of relative calm and during times of enhanced war. We do not recognize a sharp distinction between the two. We do not have special balancing laws for times of war. Of course, human rights are not absolute. They can be limited during times of calm and times of war… During times of war the likelihood that damage to a public interest shall occur is greater, and the harm to the public interest is more intense, and as such it is possible to limit rights in the framework of the existing criteria… Indeed we do not maintain two systems of rules or balances, one for times of calm and other for times of terror. There is a uniform set of laws and balances, which applied both during times of calm and times of terror (the Adalah Case, paragraph 20; see

 

 

 

also: Abrams v. United States 250 U.S. 616, 627-628 (1919)).

 

Based on the grounds listed by my colleague the President, to which I added a few comments, I am of the opinion that the Petition is to be denied.

 

Justice

 

Deputy President E. Rubinstein

 

A.            I concur with the comprehensive reasons written by my colleague, the President.

 

B.            I shall add some brief remarks: Section 1(A1) of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 is somewhat of a mirror image of Section 7A of the Basic Law: The Knesset which was adopted a short while earlier and defines when a list or a candidate shall be prevented from participating in the elections to the Knesset.

 

C.            Section 7A of the Basic Law: The Knesset, which was adopted on the 4th of Iyar, 5762 (May 15, 2002) (Sefer Hachukim 5762, 410) prevents a party or a candidate from participating if their goals or actions "explicitly or implicitly include one of the following: (1) denial of the existence of the State of Israel as a Jewish and democratic state; (2) incitement to racism; (3) support of an armed struggle by an enemy state or of a terrorist organization against the State of Israel".

 

D.            Section 1(A1) of the Immunity Law which was adopted on the 13th of Av, 5762 (July 22, 2002) (Sefer Hachukim 5762, 504) excludes that which is listed below from the material immunity of Section 1(A1) of the law which addresses a vote, an expression of opinion or an act while fulfilling the position or for the sake thereof – and we shall already take note of the similarity to Section 7A of the Basic Law:

"(1) Denial of the existence of the State of Israel as the state of the Jewish people.

(2)          Denial of the democratic nature of the State;

(3)          Incitement to racism due to color or belonging to a race or ethnic national origin;

(4)          Support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs due to their being Jewish or Arab, in Israel or abroad."

 

E.            It is not necessary to conduct a meticulous comparison between Sections 1(A1) of the Immunity Law and 7A of the Basic Law in order to receive the impression that we are dealing with provisions that are comparable and correspond to each other. The legislators of Section 1(A1) had the model of the Basic Law before them; see the bill that was filed by Knesset Members Eliezer Cohen, Zvi Hendel, Michael Nudelman and Nissim Ze'ev, Hatzaot Chok 5762, 210, which explicitly addresses this. I shall note that I reviewed the discussions in the plenum in the first reading on January 29, 2002 (in the second and third readings on May 27, 2002, no real discussion was held) and the matters discussed were split between left and right; there was also a reservation to the bill by Minister Dan Meridor. In

 

 

 

any event, the amendment was legislated.

 

F.            In light of the above, it is clear that we are dealing with the core of the Israeli parliamentary duty to which the members of Knesset pledge allegiance pursuant to Section 15(a) of the Basic Law, as follows: "I pledge myself to bear allegiance to the State of Israel and faithfully to fulfill my mandate in the Knesset"; Knesset Member Zoabi also pledged this when declaring "I Pledge" (Section 1(c) of the Knesset Law, 5754-1994). We are not dealing with a marginal matter, but rather one which is undoubtedly at the root of being a member of Knesset; the legislators of Section 1(A1) of the Immunity Law – as mentioned – viewed the matters therein as drawing sustenance from Section 1A of the Basic Law. This Court applied a very restrained approach in the context of Knesset Member Zoabi's candidacy to the Knesset with regard to her compliance with the terms of Section 7A of the Basic Law: The Knesset. Until now an extremely lenient approach was preferred with respect to her, and I shall only mention Election Approval 9255/12 The Central Election Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment dated December 12, 2012, reasons dated August 30, 2013); where President Grunis spoke (in paragraph 34) of Knesset Member Zoabi's activity which "comes very close to the grey area of which Section 7A warns and which it is meant to prevent", and of evidence that came close "to that 'critical mass' of evidence that justifies disqualification" – but the line was not crossed. Additional justices on the bench in that judgment expressed a similar spirit, but the judicial policy of narrowly and stringently interpreting the causes in Section 7A of the Basic Law as being designated for "most extreme cases which cannot possibly be dealt with using ordinary democratic tools" (paragraph 35), was upheld. In the context of the elections, a non-excluding approach was preferred, and subsequently the judicial and democratic tolerance was flexed to its limits. I mention this because ultimately the legal significance is that once Knesset Member Zoabi was elected to the Knesset and pledged allegiance to the State, she is in her position by right and not by grace; see Nathan Alterman's unforgettable poem "The Rebuke to Tawfik Toubi" (The Seventh Column A 276) of the 1950's (also quoted in my article "On Equality for Arabs in Israel" in my Netivei Mimshal UMishpat book (5763- 2003), 278), in which, inter alia, it was said "Such is the nature of democracy: Her servants owe gratitude to no person; In part it may not be easy, but if it shall not go without saying, it shall not be understood by us at all". Often the things that Knesset Member Zoabi says and does are not easy for many Israelis, but they are to be considered "the choosing of the lesser of two evils" (as the words of the Mecelle), and her parliamentary right is in place.

 

G.           We now approach the Rules of Ethics, which are an internal parliamentary layer, and in my opinion should be interpreted both based on their content and taking into consideration the general background of a member of Knesset's obligations, on the one hand, and his or her immunity and the exceptions thereto, on the other hand. Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, "a pressure release valve" to maintain a framework of parliamentary norms. My colleague listed the general values underlying the Rules of Ethics (in paragraph 23), and in the matter at hand, we are dealing with Rule 1A(2) which designates the member of Knesset as "a trustee of the public and it is his duty to represent the public that voted for

 

 

 

him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;" and with Rule 1A(4) pursuant to which the member of Knesset shall "preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset". Indeed, these rules address  fundamental values, but, similarly to my colleague (paragraph 32), I do not accept the argument that they do not have an independent standing; in my opinion they are the soul of the Rules of Ethics, they are what gives them their real essence and their proper application.

 

H.            As my colleague mentioned (paragraph 26), the parties to this Petition assumed that the Petitioner's remarks which are the subject of the complaints are covered by the material immunity by virtue of Section 1(a) of the Immunity Law, which – as mentioned – grants immunity "due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset". I shall take the liberty to doubt whether Knesset Member Zoabi's words which we are addressing meet the criteria of Section 1(A1)(4) which excludes "support of an armed struggle by an enemy state or of acts of terror against the State of Israel or against Jews or Arabs, due to their being Jewish or Arab, in Israel or abroad." However, even with the lenient assumption that my colleague described, it is clear that there is nothing preventing discussing Knesset Member Zoabi's remarks at an ethical level.

 

I.             We shall briefly review the actual remarks.

 

J.             First of all, the interview on June 17, 2014, five days after the abduction of the three teenagers Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may G-d avenge their deaths. According to Knesset Member Zoabi, the abductors, the abductors of innocent teenagers, "are not terrorists… even if I do not agree with them, they are people who do not see any opening…, and they are forced to use these means". It is known that throughout the world and in international law there are disputes as to the definition of terror, and it has already been said that a freedom fighter for one is a terrorist for the other. But is there a humane human in their right mind who would not deem the abduction of the teenagers and their cold blooded killing anything other than terror? Must the national liberation for the Palestinians, for which Knesset Member Zoabi is wishing, pass through despicable crimes of terror? And the stretched explanation that was voiced, that her statements were said because terror is only attributed to Arabs and not to Jews cannot hold water, inter alia, because acts of terror by Jews are on more than one occasion referred to as "Jewish Terror", and an simple surfing on the internet with such headline will prove this. Terror is terror is terror, regardless of who performs it, Jews, Arabs or others. Hence, can it be said, in this case, that the value of a member of Knesset's duty to serve human dignity, as appears in Rule 1A(2), was not violated? – There is no greater human dignity than the sanctity of life itself; "There shall be no violation of the life, body or dignity of any person as such." (Section 2 of the Basic Law: Human Dignity and Liberty, and see also Section 4 of the Basic Law).

 

 

 

 

K.            Secondly, the call in the article dated July 13, 2014, to the Palestinians "… to impose a siege on Israel instead of negotiating therewith". These words should not be read as a sacred text with multiple interpretations, but given the context of the matters which is "(Israel's – E.R.) detestable trinity: the fence, the siege and the coordination", it is extremely difficult to interpret the call to "impose a siege on Israel" as only a "political siege" (not that such a call in and of itself would be permitted and legitimate), but rather as an armed siege. If we shall read these statements in light of the "State's best interest" chapter in Rule 1A(2) of the Rules of Ethics, we shall ask ourselves whether a call to impose a siege on the State can be in the "State's best interest" – and this is not a political slogan of "saving Israel from itself", which some of Israel's "friends" raised in the past, but, as my colleague stated, rather an unexplained statement – which simply means joining forces with the State's enemies. The answer cannot be positive; and the forced interpretation that was given, even though it was not from the member of Knesset but rather from those supporting her, is not convincing. In light of all of that stated above, one cannot cast a doubt regarding the violation of the Rule of Ethics.

 

L.             Indeed, Knesset Member Zoabi is from a minority in Israel – and it is appropriate to apply interpretation that takes this into consideration and expands the limits of patience and tolerance; but in the case at hand, as my colleague also stated (paragraph 39) it simply went too far. Of course, this is enhanced by the timing, during the search for the teenagers, while the sounds of the cries of the mothers and fathers were heard, and during severe combat – the member of Knesset was undermining any common ground that exists and should exist among the entire Israeli public, without any explanation which could, even at a stretch, be acceptable.

 

M.          One must not criticize the members of the Central Ethics Committee, who, when dealing with the ethical level, did not take the approach of those three monkeys who do not hear, do not see and do not speak, since at hand are the core and essence of principle, central ethical obligations. Therefore, I agree with  the rulings of my colleague, the Deputy President, for example in paragraphs 31-32, 35, 39, in the principle questions that were addressed here. At issue is not the matter of the limits of the freedom of expression, which the State of Israel maintains on a very high level, as emerges from the rulings of this Court – and I personally doubt whether the type of statements that underlie this case would even be acceptable in a country that maintains ultimate freedom of expression such as the United States, pursuant to the First Amendment of its constitution. The matter at hand is the ideological base that is – or should be – shared by all members of Knesset, and which in the absence thereof – there is no survivability. I shall re-emphasize that in my opinion one of the more burdening parts of the story, as also emerges from the words of my colleague, in addition to the statements themselves, is the explanations – or the lack thereof – with respect to the remarks; it is clear that Knesset Member Zoabi's explanations are extremely stretched, and her attorney had to, skillfully, try to fill voids, at times in an impossible manner, as is stated in the Bible: "Wilt thou put out the eyes of these men?" (Numbers, 16, 14).

 

 

 

N.           Finally, as to the sanction, which ultimately ended up being more in the symbolic dimension than one of essence or substance, since, as my colleague described, it was eroded between a recess and elections, and therefore it clearly had a weak impact.

 

O.           Upon reading the opinion of my colleague, Justice Hayut, in paragraph 2, regarding the delivery of the minutes of the Ethics Committee's session to the Petitioner, I shall request only to state that we are dealing with a very delicate balance, which is intended to protect the committee members' freedom to express themselves freely on the one hand, and fairness towards the injured member of Knesset, on the other hand. As my colleague mentioned, this matter has emerged in other contexts as well. The difficulty is that even when the exposure of certain details, such as the identity of the speakers, is prevented, it is easy to comprehend that the matter still remains complex, since in a small committee (as opposed, for example, to the other Knesset committees which are large), anyone who is able to figure things out will not have difficulty identifying the speakers. Since the matter remains to be further addressed, it does not have to be ruled upon now.

 

P.            Further to the remarks of my colleague, Justice Melcer, I shall concur with his statements regarding the relationship between law and ethics. It is known that ethical duties also apply to us as judges. The Jewish Law also addresses the distinction between ethics and the letter of the law, and as we – Judge Eran Shilo and myself – wrote in an article that is scheduled to be published in the Zvi Tal Book, "Judicial Ethics in Jewish Law", "The rules of ethics are rules that professionals took upon themselves, as opposed to the law – which is externally imposed upon them, as upon the entire public"; Furthermore – "The distinction between ethics and law is what allows the judge, in circumstances that justify it – to exercise discretion with respect to the norms that are prescribed, knowing that the letter of the law that guarantees a just trial shall not be prejudiced". In the case at hand, we are dealing with the legislator itself, who also prescribes the law and not only the rules of ethics, and therefore we can adjust that which is stated and say that the Rules of Ethics are directed internally, towards the sphere of parliamentary conduct, while the law that is legislated by the Knesset is directed externally, towards everyone. However the ethical matters in the Knesset are obviously uniquely public due to the institution's status and importance, and they are meant to draw behavioral lines so that the legislator shall know its own limits, not only through constitutional review but also within the boundaries of conduct that befits those who represent the entire Israeli public.

 

Q.           My colleague, Justice Melcer, addressed the pledge of allegiance, similarly to my words in paragraph F above. It is known that the wording of this declaration is defined and a member of Knesset is not permitted to add anything thereto (HCJ 400/87 Kahane v. The Chairperson of the Knesset PD 41(2) 729); The declaration (Section 15(a) of the Basic Law: The Knesset) addresses "Bearing allegiance to the State of Israel and faithfully fulfilling my mandate in the Knesset"; similarly, the President of the State is also required to "bear allegiance" (Section 9 of the Basic Law: The President), as are the Prime Minister and ministers (Section 14 of the Basic Law: The Government), judges (Section 6 of the Basic Law: The Judiciary – which was applied as early as in 5708 (my book The Judges of the Land (5741-1980), 79); religious judges (Section 10 of the

 

 

 

Religious Judges law, 5715-1955); Qadis (Section 7 of the Qadis Law, 5721- 1961), and Madhhab Qadis (Section 13 of the Druze Religious Courts Law, 5722-1963), as well as the State Comptroller, pursuant to Section 9 of the Basic Law: State Comptroller. In my opinion, by pledging this allegiance those filling these positions express the expectation of an extra degree of loyalty by any personality filling a governmental position, beyond the basic loyalty imposed by citizenship (see Section 5(c) of the Citizenship Law, 5712-1952, in which a person being naturalized pledges to be a "loyal citizen". The pledge of allegiance is a deep moral instrument, and as stated, is at the root of being a member of Knesset, and is a common thread that connects all holders of senior positions in the government system, in the framework of their mandate. One must either be a great believer or greatly naïve, to be of the opinion that Knesset Member Zoabi's statements which we are addressing here, constitute bearing allegiance.

 

R.            As to the position of my colleague, Justice Joubran: There is no dispute regarding the centrality of freedom of political expression  and the significance of the material parliamentary immunity, even what at issue is the expression of outrageous opinions. This is true for all and especially in the case of minorities from various sectors. This stems from us being a Jewish and democratic state, and from the legacy of the prophets of Israel, and as prophet Isaiah said (58, 1) "Cry aloud, spare not, lift up thy voice like a horn, and declare unto my people their transgression, and to the house of Jacob their sins."; see also the principle paragraph in the Declaration of Independence which establishes the State of Israel on "the foundations of freedom, justice and peace as envisaged by the prophets of Israel"; and Section 1 of The Foundations of Law Law, 5740-1980. My colleague is of the opinion (paragraph 17) that also when dealing with ethics it is necessary to apply restraint, and I especially agree when dealing with "politicians who are judging politicians", in the Knesset's Ethics Committee, when – without heaven forbid insulting anyone – there is an inherent concern regarding political considerations being involved in the material considerations. However, we are dealing with ethics in which severity of sanctions do not get to the root of the matter (and in the matter at hand has been wondrously eroded), and with a message which has already been described in the various opinions here.

 

S.            Where do I disagree with my close colleague Justice Joubran? In laying down the line. For example, my colleague (paragraph 19) distinguishes between one who "acted not for the advancement of the best interest of the State" and one who "did not act to advance the best interest of the State", and he is of the opinion that "neutral actions by members of Knesset which on the one hand do not advance the best interest of the State and on the other hand do not harm it, shall not be included in the prohibition". Even if such distinction is appropriate, and I shall not address this (but see the words of our colleague Justice Melcer, in paragraph 7), this is not what is at issue, since the words of Knesset Member Zoabi which we are addressing are blatantly not in the best interest of the State. According to Justice Joubran (paragraph 20), Section 1A(2) of the Rules of Ethics, which imposes upon a member of Knesset to act "in a manner that shall serve human dignity, the advancement of society and the best interest of the State", should be interpreted in a liberal manner, and its sanctions shall be limited to extreme cases. In my opinion, even in the most far reaching liberal interpretation, calling for the

 

 

 

imposition of a siege on your own state and supporting terror cannot – with all due respect – be interpreted with common sense and in the eyes of an ordinary person – as neutral, certainly not as an act "in the State's best interest". I am sorry, but this is nothing other than a blatant an act against the State's best interest. There are ethical boundaries and I shall not address the question of the boundaries of freedom of expression, and the manner of dealing with expressions that are not only provocative but tap existential roots.

 

T.            In summation: The (Middle) Eastern culture to which all of us, each sector, person and style, belong, attaches great importance to honor. Ethics is part of the values and manners between people. In the Jewish world this shall be referred to in various contexts as the theory of values (ethics). I shall quote statements that I had the opportunity to write in my article "The Equality of Minorities in a Jewish and Democratic State" Zehuyot 3 (5773-2013), 140. It is said there (on page 142) that "Mutual respect between Jews and Arabs in Israel is necessary. This is emphasized due to the importance that the culture surrounding us, the culture of the (Middle) East, attributes to the matter of honor, a culture that is expressed in words such as 'Sharaf (honor) and 'Kilmat Sharaf' (word of honor)" and hereinbelow (pages 143-144) "I myself perceive honoring my fellow-person, first and foremost as something natural that stems from within oneself, … this is also the case, mutatis mutandis, of course, with respect to matters related to the relations with Israeli Arabs within" and further on (page 145) "the principle prescription for relationships between the majority and minority in the State of Israel is complex – it is a matter of awareness and insights, which call for reciprocity. It includes Jewish insight as to the need for respect towards the Arabs and an ongoing, relentless, effort, to amend the gaps in equality in all spheres – as mentioned, I see myself as one of the first who was willing to stand up for the task of amending and bridging the gaps. However, awareness and insights are also necessary from the other side, among some of the Arab leadership  in Israel… it must recognize and understand that the objective of the struggle must be equality, and the Jewish population cannot be concerned that at hand is a struggle against the essence of the State of Israel as a Jewish and democratic state". Indeed, this was said in the context of the state being Jewish and democratic, but they  are  relevant also  when referring to terror.  When  three families and an entire country were worried about the fate of teenagers who had been abducted (and murdered) by evils, according to Knesset Member Zoabi, they are not terrorists, an ordinary person shall then ponder whether to accept her stretched explanations, and in my opinion the answer is crystal clear. This is also true with respect to the "siege sophistry", and no more words are needed.

 

Deputy President

 

Justice H. Melcer

 

1.            I concur with the exhaustive and measured judgment by my colleague, President

M. Naor.

 

However, due to the importance of the matters, I take the liberty to add a few words regarding the distinction between the prohibition of law and the prohibitions of ethics, since in the case before us the matter that emerged was

 

 

 

whether Knesset Member Hanin Zoabi violated the Rules of Ethics for Members of Knesset (hereinafter, also: the "Rules of Ethics") and whether judicial intervention in the sanctions that were imposed thereupon by the Knesset's Ethics Committee, is appropriate. I shall briefly address below the said distinction, and its derivatives and implications.

 

2.            Prof. Asa Kasher, in his article Professional Ethics (published in Ethical Issues for Professionals in Counseling and Psychotherapy, ed. Gaby Shefler, Yehudit Achmon, Gabriel Weil, pages 15-29 (Y"L Magnes – 5763-1993)) distinguishes between ethics and law using the terms of shelf and threshold, and clarifies that along the range of possible courses of actions:

 

"There appear to be two lines, one at the top of the ladder… even if not at its very top, and one at the bottom of the ladder… even if not at its very bottom. The top line shall be called the 'shelf'. In this picture it represents ethics. The bottom line shall be called the 'threshold'. In the current picture it represents the law.

These lines, the 'shelf' and the 'threshold' divide the entire range into three natural parts: the segment from the 'shelf' and upwards, the segment between the 'shelf' and the 'threshold' and the segment below the 'threshold'. It is important to understand the essence of each of these three segments, in order to properly understand the relationship between the world of ethics… and the world of law…

The 'shelf' represents the professional ethics, the practical ideal of professional conduct. It is the 'shelf' of proper conduct… an action at the height of the 'shelf' or above it is proper conduct, as it is conduct that is in accordance with the practical ideal of professional conduct. The segment from the 'shelf' upwards, within the range of possible courses of actions, is the proper sphere of conduct…

The 'threshold' represents the law…, the binding approach of legal conduct, the 'threshold' of permitted conduct pursuant to the law, from a legal perspective. An action at the height of the 'threshold' or beneath it constitutes… conduct that is contrary to the binding approach of legal conduct…

For the sake of accuracy, we shall mention a simple aspect of the relationship between the 'shelf' and the 'threshold', in this picture, which is not at all obvious in any context. In the picture proposed here, the 'shelf' is always higher than the 'threshold'. In reality, the relationship between a certain 'shelf' and a certain 'threshold' could, at times, be more complex… Between the 'shelf and the 'threshold' is the interim sphere. An action in this sphere constitutes improper conduct, from an ethical perspective, since it is under the said 'shelf', but it is  concurrently  deemed  a  permitted  action,  from  a  legal perspective, since it is above the said 'threshold'…"

(Ibid, on pages 23-24, original emphases – H.M)

 

 

 

Justice Yitzhak Zamir, who also dealt extensively with the distinction between law and ethics – added as follows in HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel PD 51(3) 46, on page 61 (1997):

 

"It is the law that determines the limit between law  and ethics. Furthermore, the law nibbles away at ethics. Rules of ethics can become rules of law. From time to time the legislator will prescribe this, and from time to time the courts will rule this, when it turns out that the power of ethics, in and of itself, does not prevent wrong behavior or severe consequences. In such an event, the law, on more than one occasion, will step in and help the ethics. See: Y. Zamir "Ethics in Politics" Mishpatim 14 (5747-5748) 250".

 

See also the opinion by Justice M. Cheshin in HCJ 1993/03 The Movement for Quality Government in Israel v. Prime Minister Ariel Sharon, PD 57(6) 817, on pages 917-918 (2003).

 

3.            In the Petition before us – we are not dealing with the legal sphere which, for example, prescribes in Section 7A of the Basic Law: The Knesset terms and conditions that allow preventing a list of candidates from participating in, or a person from being a candidate for, elections to the Knesset. This is the threshold and as such, its interpretation and application are exercised narrowly and its judicial review is meticulous.

 

See: Election Approval 9255/12 The Central Elections Committee for the 19th Knesset v. Knesset Member Hanin Zoabi (judgment from December 30, 2012; reasons from August 30, 2013, and review the references mentioned therein).

 

4.            The Petition here addresses a different matter, since it focusses on the rules of conduct that apply to a person who was elected to serve as a member of Knesset. These bind the member of Knesset by virtue of Sections 13D and E of the Knesset Members Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Knesset Members Immunity Law"). These Rules of Ethics demand that a member of Knesset behave as expected of an elected official presiding in the Knesset, which is the "State's House of Representatives" (Section 1 of the Basic Law: The Knesset). This is the threshold. The said threshold leans on two supporting beams:

 

(a)          The pledge of allegiance, which the member of Knesset declares by virtue of Sections 15 of the Basic Law: The Knesset and Section 1(c) of the Knesset Law, 5754-1994, and on this matter I concur with the position of my colleague, the Deputy President, Justice E. Rubinstein.

 

(b) The Rules of Ethics of the "House of Representatives"

 

I shall address each of the two said sources separately below:

 

 

 

 

Pledge of Allegiance

 

5.            Since the dawn of political thought and democratic history the pledge of allegiance has had more than just ceremonial meaning, but also deep substantial relevance. Indeed, as early as in ancient Greece, the governors in the Police were required to swear their allegiance to the unification of the state, and Plato, the reputed jurist of such time, in his book: Laws (Volumes III 685 and XII 960) wrote that the pledge of allegiance has both legal significance and political importance. Aristotle, in his book: Politics (Volume III, 1285) analyzed the meaning of the pledge of allegiance as a means of securing the rule of law. See: Matthew A. Paully, I Do Solemnly Swear: The President's Constitutional Oath: Its Meaning and Importance in the History of Oaths (1999) ibid, on pages 45-52. See also: Suzie Navot "The Knesset Chapter on the Constitution Draft: Three Remarks" Mishpat U'mimshal 10 593, 624-633 (the chapter on the status of the pledge of allegiance) (5767) (hereinafter: "Navot on the Status of Pledge of Allegiance"); Yigal Marzel "On a Judge's Pledge of Allegiance" Orr Book 647 (5773-2013; hereinafter: "Marzel on the Pledge of Allegiance").

 

Therefore, anyone who crossed the threshold and his/her candidacy was approved and he/she was elected to the Knesset, must still declare allegiance in order to actually take the position, This is the significance of the pledge of allegiance, in the framework of which the member of Knesset undertakes:

 

"To bear allegiance to the State of Israel and to faithfully fulfill his mandate in the Knesset".

 

It indeed turns out that while candidates to the Knesset must first cross the threshold and after they are elected they must represent their voters – those who sent them and their party – still the common denominator for all members of Knesset is the pledge of allegiance from which the shelf is derived. If the pledge, which has a uniform wording for all members of Knesset, and which cannot be deviated from in any way – is not made, the members of Knesset cannot function in the Knesset (see: Section 16 of the Basic Law: The Knesset; HCJ 400/87 Kahane v. The Chairperson of the Knesset, PD 41(2) 929 (1987); see also: Marzel on the Pledge of Allegiance page 651 and 664-665).

 

Comparative law further demonstrates that not only is a person who is not willing to pledge allegiance not entitled to benefit from his rights in parliament, but that the "house" may deny, or de facto limit the rights and actions in parliament of a person who violates his said pledge. Compare: McGuinness v. The United Kingdom, case no. 39511/98 ECHR (1999); Spanish Constitutional Court decisions: number 101 dated November 18, 1983; number 122 dated December

16, 1983, number 8 dated January 25, 1985; number 119 dated June 21, 1990, and number 74 dated April 8, 1991. See: Navot on the Status of the Pledge of Allegiance, on pages 628-631 and see Prof. Aparicio Perez' article that is mentioned in Prof. Suzie Navot's said article, in the framework of which the following was written (free translation from Spanish by Prof. Navot):

 

"The member of parliament benefits from a dual status: the

 

 

 

one which derives from his status as an elected person and a representative, since his status stems from the fact that he was elected by the public in the framework of his party: and that of a member in a representative organ. The fact that a member of parliament is "elected" does not automatically grant him the rights in the representative organ, meaning, the parliament… This duality is possible. In certain cases, the parliament may, by virtue of its internal arrangements, even take away the mandate a member of parliament received and remove him. The fact that a person was elected as a member of parliament is a condition for him to participate in the common organ referred to as the parliament. However, in order to be included in this organ, the elected person must fulfill the material conditions to be included in this organ. Only after the member of Parliament has fulfilled these terms, can he be considered a 'parliamentarian'…"

 

It is appropriate to add here that both the European Court of Human Rights and the Spanish Constitutional Court denied judicial intervention in decisions that limited parliamentary participation from those who refused to pledge allegiance, and ruled that even the right to vote in parliament (which was not denied from Knesset Member Zoabi in this case) may be limited, provided that the prevention is meant to attain a proper goal and is proportionate. See: Navot on the Status of the Pledge of Allegiance, on page 630. With respect to the applicability of the proportionality criteria in the context of immunity and the denial thereof – also compare with that stated in the judgment in Cordova v. Italy (No. 1 and No. 2), Application no. 40877/98 and Application no. 45649/99, which was given by the European Court of Human Rights (dated April 30, 2003).

 

Rules of Ethics for Members of Knesset

 

6.            These are relevant to the matter at hand, since in the framework of Section 1A thereof they further anchored general values that apply to the member of Knesset. In the framework of these rules – the member of Knesset must (inter alia):

 

(1)          Fulfill his position out of loyalty to the basic values of the State of Israel as a Jewish and democratic State;

(2)          Act as a trustee of the public, and fulfill his duty to represent the public that voted for him in a manner that will serve human dignity, the advancement of society and the best interest of the State;

(3)          Diligently uphold the laws of the State of Israel and act to advance the principle of the rule of law;

(4)          Preserve the dignity of the Knesset and the dignity of its members, be devoted to fulfilling his duties in the Knesset, conduct himself in a manner that befits his status as a member of Knesset, and act to foster public trust in the Knesset;

(5)          Fulfill his mandate in the Knesset responsibly, honestly and fairly, out of dedication to his status as a leader in society, and strive to serve as a personal example for proper behavior;

 

 

 

(My emphases – H.M.)

 

As to the "dignity of the Knesset", Section 2 of the Rules of Ethics provides that: "The member of Knesset shall uphold the dignity of the Knesset and the dignity of its members, shall act in a manner befitting his status and duties as a member of Knesset, and shall avoid using his immunities and rights as a member of Knesset in an improper manner" (My emphases – H.M.)

 

7.            In light of Knesset Member Zoabi's conduct which was the subject of the complaints that were filed against her – it can certainly be said, as was ruled in the decisions which are the subject of the Petition, that she violated Section 1A of the Rules of Ethics for Members of Knesset, and particularly the provisions of the above sub-sections (2) and (4) of the said Rules, since, according to my position, she was not diligent about maintaining allegiance to the State (see: Yaffa Zilbershats, Loyalty to the State, Zamir Book, 491 (2005); Marzel on the Pledge of Allegiance 669-673). These violations were reflected in the "understanding" Knesset Member Zoabi exhibited towards the acts of the abductors of the teenagers: Naftali Frenkel, Gil-Ad Sha'er and Eyal Yifrah, may their memories be blessed, and in her calls to impose a siege upon Israel. In doing so she not only ethically violated her fiduciary duty towards the State of Israel, but also prejudiced her status as a trustee of the public, who is meant to act in a manner that shall serve the advancement of the best interest of the State (sub-section 1A(2) above). She also deviated from her obligation as one who is required to uphold the dignity of the Knesset and act in a manner that befits her status as a member of Knesset, and to act to foster the public's trust in the Knesset (above sub-section 1A(4)). See: Suzie Navot "The Member of Knesset as a 'Trustee of the Public'" Mishpatim 31(2) 433 (particularly ibid, on pages 518-

520) (5761). In this context my colleague, Justice S. Joubran states that in his opinion an ethics violation is possible "when a member of Knesset acts not for the advancement of the best interest of the State, as opposed to a situation in which he did not act to advance its best interest" (original emphases – H.M.) I am willing to accept this interpretation, however, even according thereto – Knesset Member Zoabi's conviction of an ethical offense is not to be cancelled. Calling for a siege on the State of Israel is explicitly an act not for the advancement of the best interest of the State and here we must clarify that for this purpose it makes no difference whether at hand is a "military siege" or a "political siege", as Knesset Member Zoabi's attorney retroactively argued before us.

 

8.            Here one should note that it is possible that MK Zoabi also violated additional Rules of Ethics however since this was not reflected in the decisions which are the subject of the Petition – I shall refrain from addressing this, just as I shall also presume (although this presumption could be disputed, in light of the provision of Section 1(A1)(4) of the Knesset Members Immunity Law) that the material immunity applies with respect to her actions, which are the subject of the complaints, in all that relates to criminal, or civil, liability (as opposed to ethical liability – see: HCJ 12002/04 Makhoul v. The Knesset, PD 60(2) 325 (2005) and see Barak Medina and Ilan Saban, "Expanding the Gap?" on the Scope of a Member of Knesset's Right to Support Resistance to the Occupation, Following HCJ 11225/03 Bishara v. The Attorney General, Mishpatim 37 219, on page

 

 

 

236, footnote 42 (5767)).

 

9.            Before ending I shall add and emphasize that I concur with the words of my colleague, Justice E. Hayut, with respect to the right to review the minutes of the Ethics Committee when at issue is a disciplinary proceeding that is being held against the member of Knesset. This is warranted by the principle of "proper process".

 

10.          In summary: All that is stated above leads to the conclusion that in the circumstances of the matter (including the actual duration of the sanctions that were imposed upon the Petitioner) – it is inappropriate to intervene in the ethical decisions that were issued in the matter of the Knesset Member Zoabi, which are the subject of the Petition.

 

I shall end with a note, as I also remarked in the hearing, that it is not for no reason that the Petitioners and their educated attorneys did not find even one case in comparative law in which a member of parliament called for a siege against his state, and was absolved.

 

Justice

 

Justice S. Joubran

 

1.            Is the Knesset's Ethics Committee (hereinafter: the "Ethics Committee" or the "Committee") authorized to apply sanctions of one kind or another due to political remarks that one of its members said or wrote outside of the Knesset, when such remarks are covered by the material immunity granted to a member of Knesset? If so, did the Ethics Committee exercise its authority lawfully? These are the two questions we are to rule on in this Petition.

 

2.            After hearing the Petition, this Court, by a majority of opinions, decided to deny it. My opinion was different, and had it been heard, we would have ruled that the Ethics Committee exercised its authority unlawfully, and we would have cancelled its decision. At the end of our judgment, we ruled that our reasons would be given separately, and now the time for the reasons has come.

 

3.            As mentioned, the Petitioner argued that the Ethics Committee lacks the authority to impose a sanction upon her for remarks that are covered by the material immunity that is granted to a member of Knesset. She also argued that the things that she said and wrote do not constitute a violation of the Rules of Ethics. My colleague, President M. Naor, is of the opinion that the Ethics Committee was authorized to address the Petitioner's remarks and that in the current case it exercised its authority lawfully. I agree with my colleague the President on the matter of the authority. I am also of the opinion that the Committee is authorized to address the Petitioner's remarks. The scope of disagreement between me and my colleague relates to the discretionary level. I am of the opinion that the Petitioner did not violate the Rules of Ethics, and therefore, the Committee's authority was exercised unlawfully. I shall add a few words on the authority level, and thereafter shall discuss the discretionary level.

 

 

 

 

The Authority Level

 

4.            The Ethics Committee operates by virtue of Section 19 of the Basic Law: The Knesset, which constitutes authorization for regulating the Knesset's work proceedings in By-Laws, and by virtue of the Knesset Members  Immunity, Rights and Duties Law, 5711-1951 (hereinafter: the "Immunity Law"). The two main provisions which are relevant to the case at hand are:

 

1.            (a) A member of Knesset shall not bear criminal or civil responsibility and shall be immune against any legal action, due to voting or due to expressing an opinion orally or in writing, or due to an act performed – in or out of the Knesset – if the vote, the expression of the opinion or the act were in the framework of fulfilling his position, or for the sake of fulfilling his position, as a member of Knesset.

 

13D. (a) The member of Knesset who committed one of the following shall be subject to be judged by the Ethics Committee of the Members of Knesset:

[…]

(3) Violated any of the Rules of Ethics.

 

5.            The Rules of Ethics appear in the Knesset's By-Laws and their power is vested by virtue of Section 13E(1) of the Immunity Law. In the matter at hand, the Ethics Committee ruled that the Petitioner violated Section 1A of the Rules of Ethics which prescribes, in the relevant parts, that:

 

1A. The member of Knesset –

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

6.            The Petitioner's approach is that there is no place for the Ethics Committee to act if the member of Knesset's action is protected by material immunity. According to this approach, Section 1(a) of the Immunity Law requested to exclude  these matters from the Committee's authority. This approach was denied in HCJ 12002/04 Makhoul v. The Knesset PD 60(2) 325 (2005) (hereinafter: the "Makhoul" Case). In that matter, it was ruled that the Ethics Committee's decision is not a "legal action" which is included in Section 1(a) of the Immunity Law, and therefore a member of Knesset is not immune from facing it. This ruling coincides with the purpose of Section 13D of the Immunity Law, which anchors the Ethics

 

 

 

Committee's authority to address the violation of the Rules of Ethics and to apply sanctions on members of Knesset for such violations. This ruling also coincides with the interpretive proceeding which should be applied to Sections 1 and 13D of the Immunity Law. Thus, it was ruled in the Makhoul Case that normative harmony requires the interpretation that at hand are two provisions which complement each other, rather than there being a contradiction between two provisions that are mutually exclusive (ibid, on pages 334-335). Therefore, I am of the opinion that that stated in Section 13D complements that stated in Section 1 and does not contradict it.

 

7.            The Petitioner raised an additional argument on the authority level, that the Ethics Committee is not authorized to discuss political remarks by members of Knesset and that its authority is limited to remarks that substantially disturb the work of the Knesset and relate to the social relationship within the Knesset. Indeed, the position of the Ethics Committee in its decisions is that "in all that relates to political remarks, the Committee's position is that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks". However, I am of the opinion, as is my colleague, the President, that this does not mean that the Ethics Committee lacks authority to discuss these remarks (see paragraphs 27-28 of her opinion). Indeed, my opinion is that one must distinguish between remarks that are only political, and remarks that constitute bad-mouthing and slandering of individuals and publics. However, I am of the opinion that the distinction does not have to be made at the authority level, but rather at the discretionary level. Meaning, in the scope of judicial review which should be applied on decisions that discuss these remarks and the scope of protection that should be given to remarks of such nature, as I shall elaborate below.

 

The Discretionary Level

Limiting the Freedom of Political Expression of an Elected Official

 

8.            At the discretionary level, the Court examines the merits of the Ethics Committee's decision. In the case at hand, whether the Petitioner, through her remarks, violated the Rules of Ethics by virtue of which she was convicted. This matter is directly related to the question of members of Knesset's freedom of political expression and the question of the limitation thereof. I am of the opinion that the point  of reference in this matter lies in the recognition of the importance of guaranteeing the existence of elected official's freedom of political expression and of striving to promote it.

 

9.            "The political expression – the speech, the article, the interview – are the member of Knesset's primary working tools" – so wrote President A. Barak in HCJ 11225/03 Knesset Member Dr. Azmi Bishara v. The Attorney General PD 60(4) 287, 326 (hereinafter: the "Bishara" Case). Political expression is the core of parliamentary activity and constitutes a primary tool for the member of Knesset to perform his main duty – expressing his position and the positions of the public that voted for him on public matters.

 

10.          In order to guarantee that the member of Knesset shall be able to faithfully fulfill his position and represent the public that voted for him while giving free and full expression of his opinions and perspectives, without fear or concern, the legislator

 

 

 

chose to grant the members of Knesset material immunity against being criminally charged or against a civil law obligation, for remarks that were expressed in the framework or for the sake of fulfilling their position. This immunity is essential to guarantee the democratic character of the ruling government. In the Bishara Case it was ruled as follows:

 

"The purposes underlying the material immunity are varied. They are meant to protect the fundamental political freedoms. They are meant to allow proper activity of the legislative authority. They reflect a desire to guarantee the member of Knesset's independence and freedom of action. They are meant to strengthen the democratic rule. On the other hand, one must not ignore the other (general) purposes of the Immunity Law" (ibid, on page 323)

 

One can learn of the importance of protecting the members of Knesset's freedom of political expression, which is reflected in the material immunity granted to them, and of the tight linkage between it and the proper activity of the democratic process, from the spirit of the words of President S. Agranat in Criminal Appeal 255/68 The State of Israel v. Avraham Ben Moshe, PD 22(2) 427, 435 (1968), when he examined the actions of a person who was harassing a member of Knesset due to words spoken by such elected official:

 

"The right of a member of a house of representatives, in this forum or elsewhere, to voice his views on the "cutting-edge" political questions, without fear and concern that he will be harmed by anyone who does not support such perspectives or who is convinced that they are dangerous for the nation – such right is but only a tangible reflection of the tight linkage that exists between the principle of freedom of expression and dispute and the proper activity of the democratic process. Moreover, due to the significant importance we attribute to the later aspect of the discussed principle, the legislator deemed it fit to grant the members of Knesset an  entire system of privileges, which are meant to guarantee that each of them shall be able to express their opinion and formulate their positions, regarding the political issues that require solution and decision, in an open and free manner and without them having to be accountable for them to any person or authority. I mean the various immunity rights… one of which is that which is prescribed in Section 1(a)…"

 

11.          The Israeli legislator even adopted a rather broad model of material immunity in Section 1(a) of the Immunity Law. This immunity applies also to actions and not only to voting or expressing an opinion and spans over the activity of the member of Knesset within the walls of the Knesset and outside thereof, and applies also after he ceased being a member of Knesset (see: HCJ 620/85 Miari v. The Chairperson of the Knesset, PD 41(4) 169, 204 (1987) (hereinafter: the "Miari" Case); the Bishara Case, on page 301). The broad scope of the material immunity indicates the great importance the legislator attributes to protecting the

 

 

 

members of Knesset's freedom of expression. This protection is not meant to serve the member of Knesset's personal well-being, but rather is meant to guarantee the right of all of the citizens to full and effective political representation – that their opinions be heard, through their elected representatives, in the public discourse, in general, and in the house of legislators, in particular.

 

12.          It shall be noted that guaranteeing the existence of freedom of political expression is also important when at hand are aggravating and outrageous remarks and ideas, and it is especially important for members of Knesset who express ideas that are perceived as such by the majority of the public. Indeed "Freedom of expression is also the freedom to express dangerous, aggravating and deviant opinions, which disgust the public and which it hates (HCJ 399/85 Kahane v. The Executive Committee of the Broadcast Authority, PD 41(3) 255, 279 (1987)). The essence of the importance of this right is granting protection to words that are not popular and not in consensus and which can even grate on the ears.

 

13.          There is no denying that guaranteeing the existence of freedom of free political expression and minimizing the limitation thereof is especially critical for members of Knesset who belong to minority groups in the population. My colleague, Justice E. Hayut, elaborated in her opinion on the special importance of protecting the freedom of expression of minority groups in general. I am of the opinion that when members of Knesset are at issue, this is all the more relevant. There is great significance to protecting the freedom of expression of minority groups in the parliament and restraining the infringement thereof. So as to guarantee effective and egalitarian representation of the minority groups in the parliament, in a manner in which their voice shall be heard and not excluded. This approach is grounded in the rulings of this Court. For example, in the Bishara Case, President A. Barak stated, in the context of the members of Knesset's material immunity, that protecting freedom of expression is "vital particularly for citizens who are members of minority groups in the population. In this sense the material immunity also advances civil equality by also protecting the right of the members of the minority groups in the population to full and effective political representation, and protects them by protecting the member of Knesset who is representing their affairs and their  perspectives against the power of the majority" (ibid, on page 323).

 

14.          This approach was also recognized in the judgment of the European Court of Human Rights (Szel v. Hungary, 44357/13 (sep. 16, 2014) at para 69; Karacsony

v. Hungary 42461/13 (sep. 16, 2014) at para 72), to which my colleagues also referenced. As mentioned, the European Court cancelled the conviction of an ethical offense of four opposition members of Parliament in Hungary, due to their remarks in the framework of acts of protest. In that matter, it was ruled that in a democratic society, freedom of expression is a tool of supreme importance for members of Parliament. It was also ruled that this freedom of expression is particularly necessary for members of Parliament who belong to minority groups, in order to guarantee their right to express their positions and the right of the public to hear these positions.

 

 

 

 

One can also learn of the importance of protecting freedom of expression of minority groups from the spirit of the judgment of the European Court of Human Rights in Jerusalem v. Austria ECHR 26958/95. In that case it was ruled that interfering with an opposition member of parliament's freedom of expression calls for broader scrutiny by the Court:

 

"Interference with the freedom of expression of an opposition member of parliament, like the applicant, calls for closest scrutiny on the part of the Court" (at para 36)."

 

The Ethics Rules

 

15.          As to the ethics rules. As mentioned, the point of reference in any legal examination of the matter being discussed – including the examination of the ethics rules - is the recognition of the supreme status of freedom of expression in our legal system and the importance of minimizing interference therewith. I agree with my colleague, the President, that freedom of expression also projects onto the laws of ethics that apply to members of Knesset (see paragraph 27 of her opinion). This Court has ruled in the past that "Freedom of expression projects onto and has implications for all the other branches in our legal system, including disciplinary rules" (Bar Association Appeal 1734/00 Tel Aviv Jaffa District Committee of the Bar Association v. Sheftel, paragraph 25 of the judgment of (then) Justice M. Naor (January 1, 2002)). This Court applied a similar approach with respect to the disciplinary rules that apply to civil servants (Civil Service Disciplinary Appeal 5/86 Sapiro v. The Civil Service Commissioner, PD 40(4) 227 (1986) (hereinafter: the "Sapiro" Case)). In that case it was ruled that:

 

"We must be diligent about the promotion and existence of freedom of expression, even in light of the reasonable assumption that there is a difference, in terms of the range of permitted actions, between an ordinary citizen and a civil servant, and consequently there are certain limitations on the public remarks by a civil servant […], the qualifications that are imposed upon civil servants, should, to the extent possible, be minimized. Additionally, general and unspecified reservations should not be imposed upon the civil servants, but rather their classification should be limited to those circumstances in which there is near certainty of damage or harm to the public service or to the interests it serves (ibid, on pages 236-237)

 

I am of the opinion that this is all the more relevant when at issue is the limitation of members of Knesset's freedom of political expression, since their political expression is the main tool for them to perform their duty. Therefore,  the question is what are the criteria for ruling that a member of Knesset violated the ethics rules? I am of the opinion that one can learn of the proper criteria from looking at the laws of the members of Knesset's material immunity. As mentioned, the broad scope of material immunity that is granted to the members of  Knesset  embodies  the  supreme  importance  the  legislator  attributed  to

 

 

 

protecting their freedom of expression. I have listed the reasons for this in the paragraphs above, and, as I have demonstrated, previous rulings of this Court have also done this well. It appears that these reasons are relevant also when at issue are the ethics rules. My colleague, Deputy President E. Rubinstein is of the opinion that "Particularly due to the broad material immunity, the Rules of Ethics are the little that can be done to restrain deviations, 'a pressure release valve', to maintain a framework of parliamentary norms" (paragraph G of his opinion). Indeed, a conviction of an ethical offense is generally considered less severe than a civil or criminal conviction against which the material immunity protects, and generally the sanctions accompanying it are less severe. It appears that this also justifies distinguishing between the extent of the democratic tolerance which applies in each set of rules. Thus, there can be remarks that do not cross the red lines that are defined by the material immunity and are covered thereby, while they do constitute ethical violations. However, a conviction of an ethical offense is also not a trivial matter, and the sanctions accompanying it can be especially severe, as in the current case – removal from the sessions of the Knesset's plenum and its committees for a period of six months. This can create a chilling effect for members of Knesset. In my opinion, this approach requires the Ethics Committee to apply restraint when limiting members of Knesset's freedom of expression and convicting them under the laws of ethics, for political remarks.

 

16.          It is important to note in this context that that which is stated above is relevant when at issue is the violation of an ethical provision in the matter of a member of Knesset's purely political remark - as in the case at hand – and not when dealing with remarks that constitute slander or bad-mouthing. The reason for this is the degree of importance that should be attributed to political expression, since it promotes a free market of opinions and reflects the perspectives of the voting public. This is in contrast with the second type of expressions which do not promote these values, but rather harm the status and dignity of the Knesset and deteriorate the public discourse in Israel. This also coincides with the approach of the Ethics Committee itself, as it emerges from its decisions:

 

"To the extent possible, the limitation of the members of Knesset's freedom of political and ideological expression should be avoided, even when the words they say are harsh and outrageous. The right of freedom of expression constitutes a tool of supreme importance for members of Knesset, within the Knesset and outside thereof, the essence of the importance of this right is granting protection to words that are not popular and which can even grate on many ears. However, if, in all that relates to political remarks the position of the committee is that that in general they should be dismissed in limine, even if at hand are extreme and outrageous remarks, then with regard to remarks that constitute bad-mouthing, slandering, mudslinging and humiliating individuals and publics, the committee's position is materially different. (Decision 2/19 of the Knesset's Ethics Committee "In the Matter of Remarks by Members of Knesset" (July 2, 2013)).

 

 

 

17.          In the case before us the Ethics Committee decided that the Petitioner violated both of the values prescribed in Sections 1A(2) and 1A(4) of the Rules of the Ethics, which read as follows:

 

1A. The member of Knesset –

(2) Is a trustee of the public and it is his duty to represent the public that voted for him in such a manner that shall serve human dignity, the advancement of society and the best interest of the State;

(4) Shall preserve the dignity of the Knesset and the dignity of its members, shall be devoted to fulfilling his duties in the Knesset, shall conduct himself in a manner that befits his status as a member of Knesset and shall act to foster public trust in the Knesset;

 

The Ethics Committee ruled that "The Member of Knesset's words that were written and spoken in sensitives times do not coincide with the best interest of the State, even if we grant this term an expansive interpretation, and they constitute a violation of the duty of allegiance that applies to members of Knesset". It was further ruled that "The words severely prejudice the public's trust in the Knesset and its image, which is also reflected in the large number of complaints that were filed with the Committee".

 

18.          The above-mentioned Section 1A prescribes basic values which outline general criteria for the conduct of members of Knesset. As my colleagues, I am of the opinion that even though at hand are basic values that do not delineate a sanction alongside them, they benefit from an independent status and members of Knesset who act in contradiction to that stated therein, can be convicted by virtue thereof. Thus, a conviction of an ethical offense based on Section 1A(4) would be appropriate when a member of Knesset prejudices the harms the Knesset or the members thereof (the Makhoul Case; Rules of Ethics Preparation Committee Report, December 2006, on page 46), or when a member of Knesset acts in a manner that prejudices the public trust. In my opinion, it appears that a conviction of an ethical offense based on Section 1A(2) would be appropriate when a member of Knesset acted not for the advancement of the best interest of the State as opposed to a situation in which he did not act to advance its best interest. Such interpretation takes into account that neutral actions by members of Knesset which on the one hand do not advance the best interest of the State, and on the other hand do not harm it, shall not be included in the prohibition.

 

19.          According to my position, an interpretation that expands the limits of patience and tolerance is appropriate in this matter as well. In my opinion, one must act with a strict and stringent criterion when determining that a member of Knesset violated the values of "advancing the best interest of the State" and "fostering the public's trust". General and unspecified limitations should not be imposed upon a member of Knesset, but rather the classification should be limited to those extreme cases. Consequently, the member of Knesset should be granted broad freedom of action and his actions and words should be interpreted liberally,

 

 

 

such that only the extreme and clear substance of the contents of his words can be the basis for his conviction (compare: the Miari Case, on page 212). There are a number of reasons for my said position. Firstly, the specific provision deals with political remarks, which by their nature are intertwined with the member of Knesset's duties. As such, members of Knesset who engage in political expression as a main part of their position, are at a high risk of committing this ethical prohibition (compare: the Bishara Case, on page 326); Secondly, in light of the broad language in which the values of "advancing the best interest of the State" and "fostering the public's trust" are drafted, there is a concern that if members of Knesset shall be exposed to severe sanctions, which can reach six months of being removed from the sessions of the Knesset's plenum and its committees (Section 13D(d)(4) of the Immunity Law), this could chill their ability to express themselves without fear also in cases in which what they are saying does not constitute an ethical offense. Thirdly, members of Knesset often express themselves in controversial matters in a manner which could appear to be callous and outrageous to part of society. This is especially true in the divided Israeli society (see: E. Benvenisti "Regulating Freedom of Expression in a Divided Society" Mishpatim 30 29 (1999)). Hence, it is natural that in light of the Petitioner's perspectives and the platform of her party, she will find herself expressing positions regarding the Israeli-Arab conflict, and the risk that her statements shall be interpreted by a large part of society, as statements that harm the State's best interest, is great. (Compare: the Bishara Case, on page 327).

 

20.          Given the above, one must examine whether the Petitioner, through her remarks, violated the Rules of Ethics. Meaning, is the Ethics Committee's decision which is the subject of the Petition, lawful. Examining the merits of the Committee's decision raises a question of the scope of judicial review of the Ethics Committee's decisions. I shall now address the examination of this scope and thereafter examine, in the form of applying the general rule to the specific case, whether the current case justifies our intervention.

 

The Scope of Judicial Review of the Ethics Committee's Decisions

 

21.          Case law prescribes that the scope of judicial review is impacted by the type of decision which is the subject of the review (see: HCJ 652/81 Knesset Member Yossi Sarid v. The Chairperson of the Knesset PD 36(2) 197 (1982)). As my colleague, the President, elaborated, it was ruled in the Makhoul Case that in general the Ethics Committee has broad room for maneuver and consequently the room for judicial review is relatively narrow (ibid, on page 343). I agree with this position, however, each case is examined on its own merits and the scope of the judicial review is determined in accordance with the circumstances of each case. In the Makhoul Case, the main reasons for determining the relatively narrow scope of judicial review were that the Ethics Committee's decisions are closer to the sphere of the Knesset's internal matters; that its decisions harm the member of Knesset in a relatively mitigated manner; and that at issue are matters which generally have a small impact outside of the Knesset. Therefore, it was ruled that the extent of this Court's intervention shall be less than that which is exercised with respect to other quasi-judicial decisions that are in the framework of the Knesset's authority. However, these reasons are not relevant in the current case. Since at hand are political remarks that were said outside of the Knesset and

 

 

 

which do not relate to its internal affairs or its conduct or to the conduct of any of its members. The Ethics Committee's decision in the current case harms the core of the freedom of political expression, and as such its impact outside of the Knesset is not small. In my opinion in such cases, when the Committee examines purely political remarks, there is no justification for the judicial review to be narrower that the judicial review of other quasi-judicial decisions.

 

22.          This ruling coincides with the ruling in the Makhoul Case, that when examining the Ethics Committee's decision, the Court shall take into consideration those consideration that relate to the severity of the infringement of the basic rights and the proportionality of the sanction that is imposed by the Ethics Committee. Indeed, ethics rules are not a cover for infringing basic rights that are granted to a member of  Knesset. When the Knesset wishes to exercise its authority  and qualify the rights granted to a member of Knesset by law, it must comply with the legal criteria that are required for exercising this authority (see: the Miari Case, on page 196). The more severe the infringement of the member of Knesset's basic rights, and the more the sanction for the act deviates from the proper extent, the more this Court will be willing to intervene (see: the Makhoul Case, on page 344). In the case before us the member of Knesset's freedom of expression was infringed. The fact that at hand is a member of Knesset from a minority group exacerbates the infringement and justifies broader judicial review. In this matter, the words of Justice E. Rivlin in the Bishara Case, are relevant:

 

"In any event the special significance of judicial review in those cases in which basic human rights are at issue, should be recognized. It is here that it is important that the judicial review exhaust its full power and ability. This ability shall serve it if it shall succeed in refraining from scattering its legal and social resources which are nurtured by the public's trust, when the scope of deference expands. This is true in general, and particularly when immunity relating to freedom of expression is at issue, and in the case at hand – not just expression, but political expression, and not just political expression, but political expression of a member of Knesset, and not just a member of Knesset, but a representative of a minority group" (ibid, on page 337) [emphases added – S.J.]

 

From the General Rule to the Specific Case

 

23.          I shall now examine the Petitioner's remarks in light of that stated. I shall state at the outset that in my opinion the Petitioner did not violate the Rules of Ethics. I did not reach this conclusion easily, and it is not obvious. Indeed, in my opinion this is quite a borderline case. The Petitioner's statements, at the timing in which they were said, are harsh and in my opinion near the line beyond which it could not be said that they comply with the Rules of Ethics. However, in my opinion, given the circumstances of the matter, and considering the entire considerations, the proper conclusion is that ultimately the Petitioner did not violate the Rules of Ethics. The main reason for this is that one cannot extract any clear and unequivocal content, that amount to a violation of the ethical values, from her

 

 

 

remarks, but rather her remarks were vague, some had reservations attached and some had explanations that were later attached, as I shall immediately describe in detail.

 

24.          As for the call in the article dated July 13, 2014, to impose a siege on the State of Israel, the Petitioner did not state what type of siege she is calling for – whether a political siege or a military siege. The Petitioner's attorney claimed in the hearing before us that the Petitioner meant the imposition of a political siege and not the imposition of a military siege. I agree with my colleague the President that the words of the Petitioner's attorney were stated retroactively and that the Petitioner should have presented this explanation to the Ethics Committee. However, I am of the opinion that this interpretation that was suggested by the Petitioner's attorney – that the call is for a political and not a military siege – is at least possible, and could be implied from the words the Petitioner wrote. In this context, I do not agree with my colleague, the Deputy President, that it is very difficult to interpret the call "to impose a siege on the State of Israel" as only a political siege, but rather as a military siege.

 

25.          As to the Petitioner's statements in the interview dated June 17, 2014, that the abductors of the teenagers "Are not terrorists", these statements were accompanied at the time they were said, by a reservation from the act of abduction, as it was said "even if I do not agree with them". Following the said interview, the Petitioner explained in the media that she objects to the abduction, that she does not agree with this act and that she objects in principle to harming civilian population, Israeli and Palestinian. As to her remark "They are not terrorists", she explained that it is her principle position not to use the term "terror" in the Hebrew press. I am of the opinion that in the circumstances of the matter, these words by the Petitioner somewhat soften her remarks in the interview. There are two reasons for this. Firstly, the statement "They are not terrorists" was made orally, in an interview, as a response to the interviewer's question. Meaning, the Petitioner did not have time to redraft or refine her statements, or retract them before they were made public. A similar position was expressed in the European Court of Human Rights in Mondragon v. Spain 2034/07, where it was ruled that the Court must take into account the fact that the statements were made orally during a press conference so that it was not possible to redraft or retract the statements before they were made public:

 

"The Court further takes account of the fact that the remarks were made orally during press conference' so that the applicant had no possibility of reformulating' refining or retracting them before they were made public (at para 45)".

 

Secondly, the Petitioner provided explanations in the media to the meaning of her remarks with regard to the teenagers' abductors, in order to convince the public that she objects to the act of abduction and to harming civilian population. The Petitioner explained that the statement "They are not terrorists" stems from her principle position against using the term "terror" in Israeli media, and not from her identifying with the act of abduction. Even if these explanations which the Petitioner provided to the media, do not reflect her inner feelings, the fact that they are possible explanations, is sufficient to somewhat soften her remarks. I

 

 

 

agree with the position of my colleague, the President, that extreme acts or expressions which legitimize acts of terror and which encourage and support violence against civilian population, cannot overcome the ethical prohibitions. However, as I explained above, this is not exclusively and unequivocally implied from the Petitioner's statements, in light of her reservations when they were said and in light of her later explanations. One must also add that the Attorney General ruled on July 24, 2014, that a criminal investigation shall not be opened against the Petitioner for her remarks regarding the teenagers' abductors. The explanation given to this by the deputy Attorney General is that the Petitioner's reservation from the act of abduction "creates difficulty in perceiving the statements as inciting abduction". It appears, from all of that stated above, that one cannot extract clear and unequivocal content from the Petitioner's remarks that amount to a violation of the ethical prohibitions.

 

26.          As for the timing in which the statements were said, I concur with the remark by my colleague, Justice E. Hayut, that one must set uniform criteria for the protection of freedom of expression during times of war and times of calm (see paragraph 4 of her opinion). In my opinion, the supreme status of the freedom of expression is also reserved during times of war. The Ethics Committee also ruled in its decision which is the subject of the Petition that "The right of members of Knesset to express positions that are not in consensus and to express public criticism on the government, is reserved also during times of war". It shall also be noted that the distinction between times of calm and times of crisis is not always sharp and clear, particularly in the Israeli reality. In this context the words of President A. Barak in HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. The Minister of Interior, 61(2) 202 (2006), to which my colleague referred, are relevant:

 

"Furthermore, it is not possible to make a sharp distinction between the status of human rights during times of war and their status during times of peace. The line between terror and calm is thin. This is true everywhere and certainly in Israel. It is not possible to sustain this over time. We must treat human rights seriously both during times of war and times of calm" (ibid, in paragraphs 20-21).

 

However, as my colleague, Justice E. Hayut, stated "the likelihood and feasibility of harming other essential interests could be of different intensity during times of crisis."

 

27.          In summary, in light of the great value of granting members of Knesset free political expression and minimizing the limitation thereof as much as possible, particularly when at issue are members of Knesset who belong to  minority groups, and in light of the broad language of the ethical provisions by virtue of which the Petitioner was convicted, the conviction of members of Knesset by virtue of these provisions should be limited only to cases in which the content of the statements is clear, unequivocal and extreme. In the case before us, I am of the opinion  that one  cannot extract clear and unequivocal content from the Petitioner's statements, both in light of her reservations from the act of abduction while making the remarks and in light of her later explanations in the media.

 

 

 

Therefore,  it is my position that  the  decision of the  Ethics  Committee  was reached unlawfully.

 

28.          In light of all that stated, if my opinion were to have been heard, we would have accepted the Petition and cancelled the Ethics Committee's decision in the Petitioner's matter.

Justice

 

It was decided by a majority of opinions as stated in the judgment of President M. Naor.

 

Given today, the 21st of Shvat, 5775 (February 10, 2015).

 

President            Deputy President            Justice

Justice  Justice 

 

Gil v. Minister of Education

Case/docket number: 
HCJ 2324/11
Date Decided: 
Tuesday, April 26, 2011
Decision Type: 
Original
Abstract: 

Facts: On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi would be awarded the 2011 Israel Prize in the field of sports, upon the recommendation of the Israel Prize Judging Committee. The members of the Judging Committee were Tal Brody, an renowned basketball player who had played for the Maccabee Tel-Aviv basketball team, and who was awarded the Israel Prize in 1979, Gili Lustig, the head of the competitive sports section of the Israel Olympic Committee and a coach of the Israel All-Star volleyball team, and Esther Roth-Shachamorov, a celebrated athlete who had represented Israel at the 1976 Olympic Games, and who was awarded the Israel Prize in 1999. The Petitioners asked that the Court annul the decision, arguing that Brody had acted under a conflict of interests because Advocate Mizrahi had served for many years as the chairman of the Maccabee Tel Aviv basketball team, and he and Brody were professionally and socially acquainted.

 

Held: In rejecting the petition, the Court held that the scope of Court’s intervention in decisions concerning the granting of the Israel Prize should be significantly limited, particularly in regard to claims regarding the worthiness of the recipients. Restraint should also be exercised in regard to claims addressing the award procedures. 

 

The choice of recipients of the Israel Prize is almost entirely non-justiciable, and should be treated, mutatis mutandis, in accordance with the provisions of section 33 of the Contracts (General Part) Law, 5733-1973. The choice of recipients of the Israel Prize involves a significant subjective element. The greater the subjective component of the decision, the narrower the scope of judicial review.

 

As for conflicts of interest, the members of each judging committee must be people who are well acquainted with the particular field. It is but natural that the members of the committee will be people from that field or related fields. It is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If the Court were to adopt a broad approach to conflicts of interest in this regard, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. A broad approach in regard to conflicts of interest might also limit the pool of appropriate candidates for the prize, inasmuch as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements.

 

Although, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, not all such decisions are immune to review. The Court would certainly address issues of corruption or serious flaws in the conduct of the judging committee or the Minister of Education, even if the petitioner had no direct interest in the petition.

The Court was divided on the question of whether petitions such as this justified revisiting the issue of the standing of petitioners who lack a direct interest.

 

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

 

HCJ 2324/11

  1. Shai Gil
  2. Nahum Abir
  3. Avichai Ratzani (withdrawn)

 

v.

 

  1. Minister of Education
  2. Judging Committee under the Israel Prize Rules
  3. Shimon Mizrahi, Adv.

Requesting to join:  The Yamit Association for Good Governance

 

 

The Supreme Court sitting as High Court of Justice

[11 April 2011]

Before Justices A. Grunis, E. Arbel, and H. Melcer

 

Petition for an order nisi

 

 

 

 

Israeli legislation cited:

Contracts (General Part) Law, 5733 – 1973 s. 33, s. 61.

 

Israeli Supreme Court cases sited:

[1] HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education, (not yet unpublished, 17 April 2008)

[2] HCJ 10455/02 Amir v. Israel Bar Association, IsrSC 57(2) 729 (2003)

[3] HCJ 167/06 Weinrauch v. Minister of Education, (unpublished, 23 March 2006))

[4] HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner, IsrSC 18(2) 278 (1964)

[5] HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor, IsrSC 18(3) 506 (1964)

[6] HCJ 2205/97 Massala v. Minister of Education and Culture, IsrSC 51(1) 233 (1997)

[7] HCJ 1933/98 Hendel v. Minister of Education and Sport, (unpublished, 25 March 1998)

[8] HCJ 2348/00 National Religious Party Faction v. Minister of Education, (unpublished, 23 April 2000)

[9] HCJ 2769/04 Yahalom v. Minister of Education and Sport, (unpublished, 19 April 2004)

[10] HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education, (not yet published, 26 April 2009)

[11] HCJ 3750/03 Gershuni v. Minister of Education, (unpublished, 5 May 2003)

[12] HCJ 2285/93 Nahum v. Mayor of Petach Tikvah, IsrSC 48(5) 630, 642-643 (1994)

[13] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16th Knesset, IsrSC 57(2) 62, 69 (2003)

[14] HCJ 287/91 Kargal v. Investments Center Administration, IsrSC 46(2) 852 (1992)

[15] HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration, IsrSC 47(2) 702 (1993)

[16] AAA 8193/02 Reuven v. Paz Oil Company Ltd., IsrSC 58(2) 153 (2003)

[17] HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade (unpublished, 15 June 2008)

[18] HCJ 910/86 Ressler v. Minister of Defense, IsrSC 42(2) 441 (1988)

[19] HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee, IsrSC 57(2) 62 (2003)

[20] HCJ 962/07 Liran v. Attorney General, (unpublished, 1 April 2007)

 

 

Articles cited:

Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)

Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971)

Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991)

 

Facts:

On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi would be awarded the 2011 Israel Prize in the field of sports, upon the recommendation of the Israel Prize Judging Committee. The members of the Judging Committee were Tal Brody, an renowned basketball player who had played for the Maccabee Tel-Aviv basketball team, and who was awarded the Israel Prize in 1979, Gili Lustig, the head of the competitive sports section of the Israel Olympic Committee and a coach of the Israel All-Star volleyball team, and Esther Roth-Shachamorov, a celebrated athlete who had represented Israel at the 1976 Olympic Games, and who was awarded the Israel Prize in 1999. The Petitioners asked that the Court annul the decision, arguing that Brody had acted under a conflict of interests because Advocate Mizrahi had served for many years as the chairman of the Maccabee Tel Aviv basketball team, and he and Brody were professionally and socially acquainted.

Held:

In rejecting the petition, the Court held that the scope of Court’s intervention in decisions concerning the granting of the Israel Prize should be significantly limited, particularly in regard to claims regarding the worthiness of the recipients. Restraint should also be exercised in regard to claims addressing the award procedures. 

The choice of recipients of the Israel Prize is almost entirely non-justiciable, and should be treated, mutatis mutandis, in accordance with the provisions of section 33 of the Contracts (General Part) Law, 5733-1973. The choice of recipients of the Israel Prize involves a significant subjective element. The greater the subjective component of the decision, the narrower the scope of judicial review.

As for conflicts of interest, the members of each judging committee must be people who are well acquainted with the particular field. It is but natural that the members of the committee will be people from that field or related fields. It is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If the Court were to adopt a broad approach to conflicts of interest in this regard, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. A broad approach in regard to conflicts of interest might also limit the pool of appropriate candidates for the prize, inasmuch as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements.

Although, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, not all such decisions are immune to review. The Court would certainly address issues of corruption or serious flaws in the conduct of the judging committee or the Minister of Education, even if the petitioner had no direct interest in the petition.

The Court was divided on the question of whether petitions such as this justified revisiting the issue of the standing of petitioners who lack a direct interest.

 

 

JUDGMENT

 

Justice A. Grunis:

  1. On 9 March 2011, the Minister of Education announced that Advocate Shimon Mizrahi (Respondent 3) would be awarded the 2011 Israel Prize in the field of sports. The Minister announced the award following a decision of the Israel Prize Committee in the Field of Sports which stated as follows:

Advocate Shimon Mizrahi created new management norms in the field of sports. His many years of continuing, voluntary activity led to heightened public awareness of basketball, while ensuring high level, quality management in Israeli sports that resulted in prestigious national and international achievements.

Advocate Mizrahi’s public activity in national and international forums has enhanced the image of Israeli sport in general, and the field of basketball in particular.

 

The petition before the Court, submitted on 23 March 2011, argues that Advocate Mizrahi’s award should be revoked.

 

The Background and Facts

  1. The decision to award the prize to Advocate Mizrahi was adopted unanimously by the committee appointed in accordance with the Rules of the Israel Prize. The committee comprised three members: Tal Brody (hereinafter – Brody), who served as chairman of the committee, Gili Lustig and Esther Roth-Shachamorov. Brody was an outstanding basketball player for many years, and played for the Maccabee Tel Aviv team. He was awarded the 1979 Israel Prize for his special contribution to the state and to physical culture. Lustig is the head of the competitive sport section of the Israel Olympic Committee, and a volleyball coach who coached the Israel All-Star team. Roth-Shachamorov was an outstanding athlete who represented Israel at the Olympic Games in 1976. She was the winner of the 1999 Israel Prize in sport and physical culture. Advocate Mizrahi serves as the chairman of the Maccabee Tel Aviv basketball team.

 

  1. On 10 March 2011, the day following the announcement that the prize would be awarded to Advocate Mizrahi, the representatives of the Petitioners requested that the Minister of Education rescind the decision to award the prize to Advocate Mizrahi. The request was denied. Therefore, as is has become the accepted practice over the past years, the Petitioners submitted the petition that is before the Court. The Petitioners’ main argument is that the decision is tainted by a conflict of interests and must be revoked in light of the alleged professional and social ties between Brody and Advocate Mizrahi arising from their joint activities in the Maccabee Tel Aviv basketball team. It should be noted that the petition does not question whether “Mr. Mizrahi is actually worthy or unworthy of the Israel Prize”. In their petition, the Petitioners note that they do not cast any personal aspersions upon Brody, and they have no doubt that he acted in good faith. On 6 April 2011, the Petitioners submitted a request to amend the petition (hereinafter – the amendment request). In the amendment request, the Petitioners seek to make a significant change in the petition, and to argue that the decision to grant the prize to Advocate Mizrahi is flawed on the merits, and not just due to a conflict of interests. This claim relies upon a number of past events that, according to the Petitioners, are related to Advocate Mizrahi. Thus they raise a matter from 1988 in regard to the issuing of free Maccabee Tel Aviv game tickets by Advocate Mizrahi. In the amendment request, they also raise new claims in regard to the Israel Prize Rules. Thus, they argue that the procedure for selecting the recipient of the Israel Prize is not properly transparent, and that no minutes of the meeting are recorded. On the day the amendment request was submitted, two additional requests were also submitted: One was a request to remove Petitioner 3, and the other was a request for the Yamit Association for Good Governance to join the petition. In a decision given that day, Justice A. Hayut ordered the removal of Petitioner 3, and that the amendment request and the request to cojoin a petitioner be decided by the panel that would hear the petition.

 

  1. Under the circumstances, and in light of the intense interest of the petition and the responses in Advocate Mizrahi and Brody and their relationship, it would be appropriate that we say a few words about the Petitioners and the association that asked to conjoin. The three original Petitioners describe themselves in the petition as “fans of sport in general, and of basketball in particular”. The request to add an additional petitioner was supported by the affidavit of the chairman of the association, Nati Granai. In his response to the petition, Advocate Mizrahi claims that one of the two remaining, original petitioners is a fan of the Hapoel Jerusalem basketball team, and that the second is a business partner of one of the lawyers who signed the petition. As for Nati Granai, the response claims that he is a fan of the Hapoel Tel Aviv basketball team. We do not see any need to address the question of the team preferences of the Petitioners or the association requesting to cojoin. We would further note that we did not see fit to permit the amendment of the petition. The request does not show adequate reason why the new claims were not raised in the original petition. Moreover, the factual claims in the amendment request refer primarily to matters from the distant past. The request to cojoin adds nothing.

 

 

  1. As noted, the primary claim raised in the petition is that Brody has a conflict of interest in regard to Advocate Mizrahi, and therefore it was improper that a committee that he chaired awarded the prize to Advocate Mizrahi, especially as it was Brody who suggested that the prize be awarded to Advocate Mizrahi. As noted, Brody played for Maccabee Tel Aviv for several years. Advocate Mizrahi has served as chairman of the team for decades, including during the years in which Brody played for the team. The Petitioners argue that the two enjoyed not only a professional relationship but also a social relationship that continues to this day. The petition further argues, inter alia, that Brody’s name appeared on the list of directors on the Maccabee Tel Aviv Internet site. The petition also relies upon various well-known media publications in regard to Brody’s and Advocate Mizrahi’s relationship. Advocate Mizrahi’s response states that Brody ceased to serve as a director of Maccabee Tel Aviv in 2007. However, according to the response, Brody is invited to board meetings. Advocate Mizrahi’s verified response also states that Brody is not “a personal friend” of Advocate Mizrahi, and that “there is no personal relationship between them beyond professional acquaintance and cooperation”. The response emphasizes that the two are not “close friends”.

 

  1. The response of Respondents 1-2, which was very ably drafted by Advocate Dina Zilber of the State Attorney’s Office, argues that the Court’s involvement in decisions to grant prizes, including the Israel Prize, should be as limited as possible. It argues that decisions to award prizes concern matters of respect and prestige and therefore differs from other administrative decisions. Decisions to grant prizes enjoy very wide discretion that, by their nature, involve a subjective element. The Respondents therefore believe that the Court must exercise great restraint in this area. As for conflicts of interest, it is argued that if the Petitioners’ position is accepted, it will be extremely difficult to find judges to serve on the Israel Prize committees, inasmuch as it is but natural that the candidates for the prize will be well-known personalities with whom the judges are professionally acquainted. The Respondents therefore ask that the petition be denied, and of course, that was also Advocate Mizrahi’s request in his response.

 

 

The Israel Prize

  1. The Israel Prize has been awarded annually by the state since 1953. The prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports. In addition to the prizes awarded to outstanding representatives of the above categories, a prize is also awarded for “lifetime achievement – special contribution to society and the state”. The prize is very prestigious, and the winner is also granted a sum of money by the state. The prize is awarded in a special ceremony on Independence Day, in the presence of the President, the Prime Minister, the Chief Justice and the Minister of Education. The legal basis for the prize is cited in the Israel Prize Rules. As of this year, a process has begun for the granting of the prize on the basis of new rules (upon the recommendation of a public committee). The prize is not awarded in all of the categories every year but in accordance with a certain cycle. The candidates for the prize must be Israeli citizens who resided in Israel during the three years prior to their candidacy (except in special cases). The prize is awarded to individuals and not to corporations. A person can receive the prize only once. According to the new rules, each member of a committee may nominate a candidate after receiving the list of candidates. The other judges on the committee do not know the identity of the nominating party, even when that person is a member of the committee.

 

  1. The Israel Prize is a state prize intended to recognize people who have excelled in various fields and who have significantly contributed to human knowledge and to Israeli society. In addition to the recognition and honor of those members of society for their important achievements, it is hoped that honoring them will encourage others to excel in the various fields and contribute to society. The prize serves a uniting role on our special holiday. The unique character of the prize can be seen, inter alia, from the fact that is awarded on Independence Day. The prize ceremony has become an ongoing tradition over the decades. Therefore, its uniqueness and status should be assiduously protected. All members of society and, of course, the Court, must take care to avoid taking any action that might detract from its prestige.

 

The Scope of Review of Decisions concerning the Israel Prize

  1. In my opinion, the petition should be denied. According to my view, as shall be set forth below, the scope of Court’s intervention in decisions concerning the granting of the prize should be significantly limited. This is particularly so in regard to claims regarding the worthiness of the recipients, that is, in regard to the substantive aspect of the award. But significant restraint should also be exercised in regard to claims addressing the award procedures, i.e., the procedural aspect, especially in regard to claims of conflict of interest.  This narrow approach is grounded on two considerations: First, we are concerned with a subject that is almost entirely non-justiciable. Second, the issue of standing should be reinstituted, if only partially, where the Israel Prize is concerned.

 

  1.  As noted, the Israel Prize is awarded in the fields of Jewish studies, social sciences, humanities, exact sciences, culture, art, communications and sports, as well as for “lifetime achievement”. Awarding the prize in each of these fields involves a significant subjective element. Awarding the prize is materially different than winning a sports competition like basketball of athletics. In sports, winning is decided by the result. Once the result is known, the winner is decided as a matter of course. That, of course, is not the case in awarding a prize in a fields like Jewish studies, social sciences or the humanities, as well as for “lifetime achievement”. The greater the subjective component of the decision, the narrower the scope of judicial review. In this regard, we might mention section 33 of the Contracts Law (General Part), 5733 – 1973.

When, under any contract, a mark, a grade, title, prize or the like is to be given according to a decision or evaluation by one of the parties or by a third party, that decision or evaluation will not be the subject of court proceedings.

 

Of course, in this matter we are not concerned with a contract but with unilateral rules adopted by the state. However, the rationale of the section is clear, and applicable even to prizes like the Israel Prize. The decision to award the Israel Prize is an administrative decision, in that it is made by the Minister of Education on the basis of a recommendation of the prize committee. Some might argue that as an administrative decision, it is subject to judicial review like every other administrative decision. I disagree. Due to the special nature of the prize, its subjective component, and the social and ceremonial aspects, the Court should exercise maximal restraint when faced with a petition intended to attack a decision by the prize committee and the Minister of Education (see the opinion of my colleague Justice H. Melcer in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1] (hereinafter – the Sternhell case)). It is but natural that in various areas of human endeavor there are different schools of thought or opposing scientific approaches. At times, large ideological gaps arise in the social sciences and the humanities. Similar phenomena are found in various fields of the arts. The Court must not intervene in such debates. Therefore an expansion of judicial review in the area of the Israel Prize must be prevented (see Daniel Friedman, “Justiciability of Decisions in regard to the Israel Prize,” 5 Hamishpat 181 (2001)). Moreover, and perhaps needless to say, the Court lacks the institutional skills to decide disputes in regard to the question of whether a candidate is indeed worthy of the prize that the committee has decided to grant. Indeed, judges lack even the personal skills for deciding whether a candidate is worthy of receiving the prize (except, perhaps, in the case of a prize in the field of law; and cf. HCJ 10455 Amir v. Israel Bar Association [2]).

  1.  This petition, and similar petitions submitted in the past in regard to the awarding of the Israel Prize, are characterized by a petitioner or petitioners who do not claim to be worthy of the prize, but rather seek to deny the prize to the person chosen by the judging committee and the Minister of Education. Some might say that it is simply an absence of firgun,[1] while others may go so far as to say that petitioners who seek to strip others of the prize are driven by envy (for an exceptional case in which the petitioner complained that he was not awarded the Israel Prize, see HCJ 167/06 Weinrauch v. Minister of Education [3]). If the Petitioners are, indeed, rivals of Advocate Mizrahi in the field of sports, it would seem that they see his award as a red – or more precisely, a yellow[2] – flag. In the distant past, this Court held that it would not recognize the standing of a person petitioning to deprive another of a benefit (see, HCJ 100/64 Mata’ei Emek Ha’arazim v. Jerusalem District Commissioner [4]; HCJ 19/64 Israel Insurance Agents Association v. Insurance Supervisor [5]). Indeed, since that holding, there has been a dramatic change in regard to standing, and the Court has effectively removed that requirement as a threshold for relief in a petition against an administrative decision. In my opinion, the present case demonstrates the need for reconsidering the matter in view of the socio-cultural price that society may pay for recurring petitions against Israel Prize recipients. The Court must refrain from unintentionally assisting legal proceedings that encourage a lack of firgun and schadenfreude. In my opinion, the Court would do well to adopt rules that would reduce the number of petitions intended to strip a person of a prize, and the Israel Prize in particular.

 

  1.  If one were to examine the development of justiciability and standing over the last decades, I believe that one would find a clear correlation between that development and the increase in the number of petitions challenging decisions to award the Israel Prize. Indeed, one might say that just as Independence Day arrives every year on 5 Iyyar, so a petition will be submitted to this Court every year after the Ministry of Education announces the awarding of the prize. It is in interesting to note that this “tradition” of petitions concerning the prize began in 1997, following this Court’s only intervention in a decision to award the prize (in HCJ 2205/97 Massala v. Minister of Education and Culture [6]). Since then, the following petitions have challenged the awarding of the prize to someone: HCJ 1933/98 Hendel v. Minister of Education and Sport [7]; HCJ 2348/00 National Religious Party Faction v. Minister of Education [8]; HCJ 2769/04 Yahalom v. Minister of Education and Sport [9]; the Sternhell case [1]; HCJ 3346/09 Legal Forum for the Land of Israel v. Minister of Education [10]. In a petition of a different nature, the petitioner, who had been chosen to receive the prize for painting, challenged the rule requiring that he personally attend the ceremony in order to receive the prize (HCJ 3750/03 Gershuni v. Minister of Education [11]. It would appear that what we are now witnessing was unforeseeable when the more flexible tests for non-justiciability and standing were instituted. One can also not ignore the additional costs of petitions such as these, even though they are denied. The person chosen to receive the prize by the prize committee finds himself having to defend himself as if he were a criminal defendant. He must, of course, be included as a respondent to the petition, and he must respond to the various allegations often made against him. The respondent may hire a lawyer to represent him in the proceedings. If he is required to pay legal fees, it is unlikely that he will be compensated for his expenses even if the petition is denied.

Those considerations are the basis for my position in regard to the need to significantly limit judicial review of decisions to award the Israel Prize.

  1.  We shall now address the traditional justification for rescinding the requirement of standing, according to which, even when a petitioner has no personal interest in the subject of the petition, the Court must intervene in flawed administrative decisions because of its duty to contribute to the rule of law and to ensuring that government agencies act lawfully. Therefore, it is argued, we must ignore the possible motives of the Petitioners in this case, and their lack of personal interest, and focus upon the alleged conflict of interest. As we may recall, this allegation concerns the claimed professional and social relationship between Brody and Advocate Mizrahi. There is no dispute as to the professional relationship. That relationship spanned many years, inasmuch as the former played for Maccabee Tel Aviv while the latter served as chairman of the team. It is also undisputed that the relationship continued after the conclusion of Brody’s career as a player. As for the social relationship, it would appear that the parties disagree. In any case, under the circumstances, and as I shall explain below, there was no flaw that would justify this Court’s intervention, and there is certainly no flaw sufficiently serious as to warrant rescinding the decision. It may have been preferable for Brody to refrain from nominating Advocate Mizrahi. Nevertheless, we should bear in mind that, at the end of the day, the committee’s vote was unanimous – including the two judges against whom no allegations are made – that the prize be awarded to Advocate Mizrahi.

 

  1.  The members of each judging committee must be people who are well acquainted with the particular field. If, for example, we are concerned with a prize in the field of Jewish studies, it is but natural that the members of the committee will be people from that field or related fields. In our small country, and not only in it, it is hard to imagine that those qualified to serve on the judging committee would not be acquainted with the candidates. If a member or members of the judging committee are not acquainted with the work of the candidate, one might argue that such a member is not qualified to serve on the committee. A similar issue arose before this Court in regard to the awarding of the 2009 Israel Prize for “Lifetime Achievement – Special Contribution to Society and the State” to the Israel Democracy Institute (HCJ 3346/09 [10]). The Court denied the petition even though there were some relationships among all of the members of the judging committee, as well as between the Minister of Education’s advisor on the Israel Prize and the Democracy Institute. Another case adjudicated before this Court concerned the awarding of the Israel Prize for Political Science to Professor Zeev Sternhell of the Hebrew University of Jerusalem. The chairman of the judging committee was Professor Shlomo Avineri of the Political Science Department of the Hebrew University. Conflict of interest was not argued in that case. Perhaps if we were we to accept the argument of the Petitioners in the instant case, we should also retroactively rescind that award (see the Sternhell case).  If the Court were to adopt a broad approach to conflicts of interest, it might not be possible to find any person in Israel qualified to serve on an Israel Prize committee. Will we have to import judges from abroad for that purpose, as is occasionally done in regard to judges of sports matches?!

 

  1. A broad approach in regard to conflicts of interest has an additional, clear disadvantage in that it might necessarily limit the pool of appropriate candidates for consideration by the judging committee. This would be the case as an acquaintance between a member of the committee and a potential candidate would result in the disqualification of the candidate, regardless of his achievements. Let us examine this in regard to the concrete case before us: If Brody is indeed disqualified from serving on a committee examining the candidacy of Advocate Mizrahi, the significance is that Advocate Mizrahi is disqualified as a candidate. The matter can be examined from another angle:  Is it imaginable that this Court would entertain a petition by Advocate Mizrahi against the constitution of the committee because Brody is one of its members? Advocate Mizrahi could raise such a claim as a petitioner, saying that Brody’s appointment to the committee would bar his candidacy from consideration by the committee. It would see that it was the good fortune of several Nobel Prize winners that their awards did not have to pass the tests advanced by the Petitioners in this case and others dealing with the Israel Prize.

 

  1.  Although, in my view, the Court should adopt a restricted approach to judicial review of decisions in regard to the Israel Prize, clearly not all decisions in that regard can be said to be completely immune. For example – and hopefully one that  will remain hypothetical – if financial corruption, such as bribery, were discovered in regard to the prize, the Court would certainly intervene even if the petitioner had no direct interest in the petition. We can also say that if a very serious flaw were found in the conduct of the judging committee or the Minister of Education, the Court would certainly address the petition. This approach is comparable to this Court’s approach in regard to ignoring a claim of laches raised by a respondent. As is well known, if a petitioner delays in submitting a petition to the High Court of Justice, the petition may be dismissed for that reason alone (in regard to Administrative Courts, see Regulation 33 of the Administrative Courts Regulations (Procedures), 5761 – 2000). Only a serious flaw in a decision or administrative proceeding will lead to a rejection of a claim of laches, particularly when the petitioner has no personal interest (see, HCJ 2285/93 Nahum v. Mayor of Petach Tikvah [12], at 642-643, per Y. Zamir, J.).

 

  1.  Another matter, though marginal, should nevertheless be mentioned. I am referring to the influence of petitions like the one before the Court upon other litigants who turn to the Court, but who must, at times, wait long periods for a hearing. The decision to award the Israel Prize to Advocate Mizrahi was published on 9 March 2011. The petition was submitted on 23 March 2011. The Israel Prizes will, by tradition, be awarded on Independence Day, which this year will be celebrated on 10 May 2011 (6 Iyyar). Of course, this petition must be decided before the date of the award. On 6 April 2011, the duty judge (my colleague Justice E. Hayut) decided that the petition would be heard by the Court no later than 27 April 201. The hearing was held on 11 April 2011. Petitions in regard to the Israel Prize in the past have also been heard shortly after their submission. As a result of the fact that petitions in regard to the prize, and petitions of similar character and urgency are meant to be heard soon after their submission, cases that have already been set for hearing must be delayed or the Court must set aside space in its calendar for urgent petitions. The clear result is that other litigants suffer, although their already pending cases may be more worthy of precedence on the merits.

 

Conclusion

  1. We are concerned with a petition to rescind the decision to award the 2011 Israel Prize for sports to Advocate Mizrahi. As I have explained, in my view the Court should adopt a narrow approach in regard to prize decisions. A decision concerning who is to receive the prize need not be addressed by the Court on the merits, except in exceptional cases, such as corruption. A similar, though less strict approach should be adopted in regard to the election process and the decision procedure. We should bear on mind that even petitions that are ultimately denied may, by their sheer number, harm the prize and detract from its prestige. The Court should take care that it not unintentionally encourage a lack of firgun, or envy and schadenfreude. Independence Day is a holiday that unifies the nation, despite the differences and divisions of the rest of the year. The Israel Prize has become an important, traditional feature of the national holiday. It is to be hoped that awarding the prize will cease to be a focus of discord. In the field of sports, the contests should remain sporting, and the appropriate forum should be on the boards or the grass and not the Court.

 

  1. The petition is denied. Petitioners 1-2 will pay the legal fees of Respondents 1-2 in the amount NIS 20,000, and the same amount to Advocate Mizrahi.

 

 

 

Justice E. Arbel:

I concur with the judgment of my colleague, Justice A. Grunis, in denying the petition.

In his judgment, my colleague addressed the question of the scope of judicial review of decisions related to the Israel Prize. I agree that, as a rule, the Court should refrain from intervening in the decisions of the committee that decides upon awarding the prize, and that the committee enjoys broad discretion in this regard. In any case, these are not decisions that are meant to be the subject of legal proceedings (sec. 33 of the Contracts (General Part) Law, 5773 – 1973). I also agree that the Court should exercise great restraint in regard to intervening on the basis of claims against the selection process. However, as I have noted in the past, “…that is not to say that the decisions of the prize committee are immune to judicial review. The prize committee, like any administrative body, is subject to judicial review, but where the decision of the prize committee to award the Israel Prize to a certain person has been arrived at in good faith and on the basis of relevant professional considerations, there is no cause for the intervention of this Court in the decision (HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education [1]).

However, and although I entirely agree with my colleague on the importance of preserving the Israel Prize as a uniting element on the State of Israel’s national holiday, as an expression of appreciation of a person’s contributions to the state and society, and as reinforcing the appreciation of excellence in Israeli society, I believe that we should show great restraint in limiting standing. Indeed, there are petitions against decisions to grant the prize to someone that are vexatious and seem to be brought out of envy rather than true desire that the prize be awarded only to those deserving it. Indeed, there are petitions in this regard that express a certain lack of understanding of the public nature of the prize, as it is not required that a prizewinner, his opinions and views necessarily represent the public consensus, as if anyone knows what that consensus might be and whether it is good and proper. But the Court’s open gates can also ensure that certain decisions that are appropriate for judicial review due to material flaws will be brought before the Court. My colleague indeed notes that there may be cases – and let us hope that we not witness such occurrences as financial corruption in regard to the prize – in which the Court will open its gates before a petitioner who has no direct interest in the petition. I believe that should surely be the case where there is no potential petitioner with a direct interest in the petition, and that even where there is a specific victim who did not petition the Court, there should remain an exception – not overly restricted – to the approach limiting access to public petitioners that would apply to matters of importance or significance that goes beyond the individual case (see, in this regard, the decision of Justice A. Procaccia in HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee for the 16th Knesset [13]. For these reasons, I would not set rules in stone in regard to the standing issue in the context under discussion. My assumption is that the Court will know how to identify – as it has until now – the exceptional cases that justify extending relief to a petitioner whose standing is unclear, which cases should be addressed even if it would appear that the petitioner lacks any direct interest, and which cases should be dismissed in limine for that reason.

 

                                                                                                                       

Justice H. Melcer:

  1. At the end of my opinion in HCJ 2454/08 Legal Forum for the Land of Israel v. Minister of Education Yuli Tamir [1] I wrote:

In conclusion, we can only hope that, in the future, legal proceedings in these matters will become unnecessary, and that the Israel Prize will continue to be what it always has been – the highest accolade of the State of Israel for its finest researchers, scientists and contributors to our society.

 

It would seem that the hint was not taken, as the petition before the Court proves. I therefore agree with the forthright judgment of my colleague, Justice A. Grunis. Nevertheless, I will permit myself two comments:

 

  1. In my opinion – as far as recommendations of the judging committee acting in accordance with the Israel Prize Rules are concerned, or the decisions of the Minister of Education to accept or reject those recommendations (to award or not award the prize) – the substantive decision in these matters should not be a subject for legal proceedings. This is what is required by the provisions of section 33 of the Contracts (General Part) Law, 5737 – 1973, which should, in my opinion, be applied to the matter in accordance with section 61 of that law.

 

  1.             Like my colleague Justice E. Arbel, I do not think that this case justifies setting rules in stone (once again) in regard to the issue of standing. Moreover, in related situations in the past, two separate areas were distinguished (in regard to which various justifications were given for expanding standing):

 

 

  1.       The area concerning the status of a petitioner before the High Court of Justice who petitions to deny the right of another by reason of infringement of freedom of occupation, promoting competition, or preventing discrimination. This status was recognized in overruling the rule in HCJ 100/64 Mata’ei Emek Ha’arazim Ltd. v. Jerusalem District Commissioner [4]. For a critical examination of the issue, see Amnon Rubinstein, “The Standing of a Petitioner before the High Court of Justice seeking to Deny a Third Party’s Right,” 27 HaPraklit 499 (1971). On the change in the rule, see: HCJ 287/91 Kargal v. Investments Center Administration [14] at 856-862; HCJ 849/92 Shemen Industries Ltd. v.  Investments Center Administration [15] at 706-709; AAA 8193/02 Reuven v. Paz Oil Company Ltd. [16]; HCJ 4736/03 Alon Oil Company of Israel Ltd. v. Minister of Industry and Trade [17].

 

  1.       The area concerning the status of a public petitioner in constitutional petitions or petitions concerning infringement of the rule of law See: HCJ 910/86 Ressler v. Minister of Defense [18]; HCJ 651/03 Association for Civil Rights in Israel v. Chairman of the Elections Committee [19]; HCJ 962/07 Liran v. Attorney General [20]. For criticism of the rule, see Dr. Shlomo Levin, “Is there Standing for Standing?” 39 Hapraklit 453 (1990-1991).

 

  1. In my view, the fact that the Petitioners before us sought to deny the Israel Prize to Respondent 3 on the basis of arguments that they believed had some basis in public law does not justify limiting standing in the above two categories, or confusing them. In my opinion, assessing costs in this area of frivolous petitions should be sufficient for the time being to achieve the necessary balance among the relevant competing interests.

 

  1. In conclusion I would emphasize that the message should be clear and potential petitioners should be aware of two principles:
  1. Sometimes it is appropriate “lefargen[3] (an expression borrowed from Yiddish, but that has no Hebrew equivalent, and perhaps for a reason).
  2. It is about time that we leave the Israel Prize and its recipients alone.

 

Held as per the opinion of Justice A. Grunis.

22 Nissan 5771

26 April 2011

 

 

 

 

 

 

[1] Translator’s note: The term firgun, used here and elsewhere in the decision, derives from the Yiddish farginen and is related to the German vergönnen. The term lacks a precise Hebrew or English equivalent. It expresses a sense or acknowledgement of joy or satisfaction at the success of another, and is thus the opposite of schadenfreude.

 

[2] Translator’s note: Yellow is Maccabee Tel Aviv’s team color.

[3] Translator’s note: Infinitive of “firgun”.

Hussein v. Cohen

Case/docket number: 
HCJ 5931/06
Date Decided: 
Wednesday, April 15, 2015
Decision Type: 
Original
Abstract: 

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

 

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most exceptional circumstances, and that even then, only subject to the pre-approval of the Attorney General and a decision by the Government or a ministerial committee appointed by it. The Court’s holdings in this judgment will apply prospectively, and only where no statutory steps have been implemented in regard to the said properties.  The holdings of this judgment lead to the conclusion that the specific properties that are the subjects of the appeals are absentees’ property.  

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

In the Supreme Court

HCJ 5931/06

Sitting as a Court of Civil Appeals

HCJ 2038/09

 

 

Before:

His Honor, President (ret.) A. Grunis

Her Honor, President M. Naor

His Honor, Deputy President E. Rubinstein

His Honor, Justice S. Joubran

Her Honor, Justice E. Hayut

His Honor, Justice H. Melcer

His Honor, Justice Y. Danziger

 

 

 

 

The Appellants

in CA 5931/06:

1. Daoud Hattab Hussein

2. Alian Issa Azat

3. Saba Naji Suleiman Alarja

4. Jamal Naji Suleiman Alarja

5. Majed Naji Suleiman Alarja

 

 

 

The Appellants

in CA 2038/09:

1. Dr. Walid Abd al-Hadi Ayad

2. Dr. Fatma Ayad

3. Mahmoud Abd al-Hadi Iyad

4. Haled Abd al-Hadi Ayad

5. Hiam Ayad

6. Ali Abd al-Hadi Ayad

7. Signe Breivik

8. Safa Abd al-Hadi Ayad

9. Hamad Ahmed Ayad

10. Fatma Abd al-Hadi Ayad

11. Hassan Salameh Ayad

12. Dr Higad Abd al-Hadi Ayad

13. Dr Fayez Ibrahim Abd al-Majid Hamad

 

 

 

V.

 

 

The Respondents in CA 5931/06:

1. Shaul Cohen

2. Adv. Ami Fulman in his Capacity as Receiver

 

3. Dan Levitt

 

4. Robert Fleischer

 

5. Yaron Meidan

 

6. Shlomo Ohana

 

7. Lilian Ohana

 

8. Moshe Ben Zion Mizrahi

 

9. The Head of the Jerusalem Land Registry

 

10. The Custodian of Absentees' Property

 

 

The Respondents in CA 2038/09:

1. The Custodian of Absentees' Property

2. The State of Israel – The Ministry Of Defence

 

 

CA 5931/06: Appeal against the Jerusalem District Court's judgment of May 9, 2006 in CF 6044/04, awarded by The HonorableJudge R. Carmel

 

 

 

CA 2038/09: Appeal against the Jerusalem District Court's judgment of October 2, 2008 in CF 6161/04, awarded by The Honorable Judge I. Inbar

     

 

 

On behalf of the Appellants in CA 5931/06 and CA 2038/09

Adv. Avigdor Feldman; Adv. Miri Hart; Adv. Shlomo Lecker; Adv. Ramsey Ketilat

 

 

On behalf of the First Respondent in CA 5931/06:

Adv. Haim Novogrotzki

 

 

On behalf of the Second Respondent in CA 5931/06

Adv. Ami Fulman

 

 

On behalf of the Third to Fifth Respondents in CA 5931/06:

Adv. A. Baron; Adv. Shirley Fleischer-Geva

 

 

On behalf of the Sixth and Seventh Respondents in CA 5931/06:

Adv. David Ohana

 

 

On behalf of the Eighth Respondent in CA 5931/06:

Adv. Eitan Geva

 

 

On behalf of the Ninth and Tenth Respondents in CA 5931/06, the Respondents in CA 2038/09 and the Attorney General:

Dr. Haya Zandberg, Adv.; Adv. Moshe Golan

 

 

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

 

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most exceptional circumstances, and that even then, only subject to the pre-approval of the Attorney General and a decision by the Government or a ministerial committee appointed by it. The Court’s holdings in this judgment will apply prospectively, and only where no statutory steps have been implemented in regard to the said properties.  The holdings of this judgment lead to the conclusion that the specific properties that are the subjects of the appeals are absentees’ property.  

 

 

JUDGMENT

 

President (ret.) A. Grunis

 

1.         The appeals before the Court focus on the question of whether properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria, constitute "absentees'" property within the meaning of the Absentees' Property Law, 5710-1950 (hereinafter referred to as "the Absentees' Property Law" or "the Law").

 

            This question arose in four cases that were heard jointly (CA 5931/06, CA 2250/06, CA 6580/07 and CA 2038/09). This Court held a considerable number of hearings in the appeals. In the course of hearing the appeals, various attempts were made to resolve the disputes between the parties. In two of the appeals, the need for the Court's decision did indeed become unnecessary. Thus, on February 13, 2014, the appeal in CA 2250/06 (Custodian of Absentees' Property v. Dakak Noha) was withdrawn after the parties reached a settlement agreement that was granted the force of a judgment. The appeal in CA 6580/07 (Custodian of Absentees' Property v. Estate of Abu Zaharaya) was dismissed on September 10, 2013, after the appellant gave notice that he was withdrawing the appeal. The time has now come to decide the remaining two appeals – CA 2038/09 and CA 5931/06.

 

The Background and Chain of Events

 

2.         The appeals before us concern properties in East Jerusalem that were determined to be “absentees’ property”, and whose owners were residents of Judea and Samaria.

 

CA 5931/06

 

3.         CA 5931/06 concerns  some five acres of land located in Beit Safafa on which fruit trees are planted (parcel 34 in block 30277) (hereinafter referred to as "Property 1"). Following to the Six Day War, the property was included in the territory to which the State of Israel extended its jurisdiction  on June 28, 1967 under the Law and Administration Order (No. 1), 5727-1967 (hereinafter referred to as "Order No. 1"). One half of the rights in the property were registered in the Jordanian Land Registry in the name of a resident of Beit Jala who sold them at the beginning of the 1970s to Jewish Israeli nationals. The rights of the Jewish purchasers were recorded in the Land Registry in 1972 and 1974. The remaining half of the rights in the property belonged to Appellants 3-5, who are residents of Beit Jala, and members of their family (hereinafter referred to as "the Alarja family"). In 1973, the majority of the Alarja family's rights in the property were sold (excluding the rights of one of its members, who owned one fourteenth of the parcel and is not party to this appeal). At the end of a chain of transactions, the rights came into the possession of Appellants 1 and 2, who are residents of Beit Safafa. Their applications to register the property in the Land Registry were declined on the ground that they had to apply to the Custodian of Absentees' Property (hereinafter referred to as "the Custodian"). In 1996, the Custodian informed them that he would not release the property.

 

4.         The Appellants filed a claim for declaratory relief in the Jerusalem District Court, to the effect that Property 1 was not absentees' property, or in the alternative, that the Custodian was obliged to release it (CF 6044/04,  Judge R. Carmel). The claim was dismissed in a judgment given on May 9, 2006, which held that the property was absentees' property. The court held that the properties in East Jerusalem of residents of Judea and Samaria are absentees' property despite the fact that the absenteeism is "technical". Hence, whether the owners of Property 1 resided in Egypt at the relevant time (as pleaded in respect of some members of the Alarja family) or were residents of Beit Jala, they were "absentees". Consequently, the rights in Property 1 were vested in the Custodian, and it was held that any disposition made in respect of it by Appellants 3-5 after June 28, 1967 (when it became "absentees' property") was invalid. The court dismissed the Appellants' plea of discrimination in comparison with the Jewish purchasers, whose rights in the property were registered in their name. In the court's opinion, the very registration of the rights did not mean that the registration was lawful, and the same could not constitute a "lever for the making of another mistake by another unlawful registration" (para. 13 of the judgment). In addition, the District Court disagreed with the judgment in OM (Jerusalem District) 3080/04 Dakak v. Heirs of Naama Atia Adawi Najar, Deceased (January 23, 2006, The Honorable Judge B. Okon, hereinafter:  the Dakak case), from which it appears that the residents of Judea and Samaria are not "absentees" according to section 1(b)(1)(ii) of the Law. We shall further refer to the Dakak case below (an appeal was filed against the judgment in the Dakak case in CA 2250/06, as noted in para. 1 above). The first appeal herein (CA 5931/06) was filed against the judgment in CF 6044/04.

 

5.         To complete the picture, it should be noted that other legal proceedings have been conducted in respect of Property 1. These were further to the deletion of the Alarja family's rights from the Land Registry in accordance with a judgment awarded in default of defense on the application of the Respondent 1 (CF (Jerusalem Magistrates) 21351/95, Judge I. Zur, partial judgment of January 31, 1996). The rights ofRespondent 1 in the property were then sold to Respondents 3-7. The Appellants filed lawsuits to set aside the said judgment and for declaratory relief according to which they are the owners of the property (CF (Jerusalem Magistrates) 10386/96, Judge. R. Shamia); CF (Jerusalem District) 1264/97, Judge B. Okon, the claim was struck out on March 23, 2003). The Custodian, for his part, filed a claim for declaratory relief to the effect that the Alarja family's rights in Property 1 constituted absentees' property, and that the transactions made in regard to its part of the property were void (CF (Jerusalem District) 1504/96,  Judge A. Procaccia). The claim was dismissed further to a settlement that was formulated between the Custodian and Respondents 1-7, which was approved by the court on March 5, 2002). It should be noted that in the latter proceedings the Appellants originally joined the position of the Custodian, including the plea that the property was absentees' property, but they then withdrew that plea with the court's approval. We would further add that in the period during which the proceedings have been heard, Appellants 1, 3 and 4 have unfortunately passed away.

 

CA 2038/09

 

6.         CA 2038/09 concerns 0.84 acres of land in Abu Dis (hereinafter referred to as "Property 2"), on which there is a residential building which, in 1964, was converted to a hotel known as the Cliff Hotel (hereinafter referred to as "the hotel"). The property is in the territory to which the State of Israel's jurisdiction and administration were extended in 1967. Its original owner (hereinafter referred to as "the deceased") was a resident of Abu Dis and a national of Jordan. The Appellants own the rights in the property by virtue of inheritance and law. On July 24, 2003, the Custodian issued an absentee certificate under section 30 of the Law in respect of Property 2. Further thereto, the Appellants filed a claim in the Jerusalem District Court for the award of declaratory relief to the effect that the property was not "absentees' property". In the alternative, they applied for the property to be released or, in the further alternative, they asked that the absentee certificate issued in respect of it be declared void (CF 6161/04, Judge I. Inbar). It should be noted that the parties were originally at issue as regards the property's location in Israel, but in the course of the proceedings they agreed that the property has been in the area of Israel since 1967. The claim was dismissed on October 2, 2008. It was held that, at the determining time, the deceased was resident in Judea and Samaria, namely outside the area of Israel, about 300 meters from the hotel, and he was not a resident of East Jerusalem. Such being the case, it was held that the property was "absentees' property", both according to section 1(b)(1)(i) of the Law (because the deceased was a national of Jordan) and by virtue of section 1(b)(1)(ii) of the Law (as he was a resident of Judea and Samaria) (the section is quoted in para. 13 below). The court disagreed with the interpretation laid down in Dakak, according to which the Law does not apply to the properties in East Jerusalem of the residents of Judea and Samaria. In the court’s view, weight should be given to the difficulties involved in the authority’s treating the residents of Judea and Samaria as "absentees" for the purpose of implementing the Law, but not in regard to the Law’s incidence. In addition, it was noted that the pleas concerning the modus operandi of the Custodian under the Law are within the jurisdiction of the High Court of Justice rather than the District Court. Furthermore, the Appellants' plea that the Custodian was precluded from exercising his powers because of a representation that the State had made to the effect that the property was not in Israel, which led to a change of their position to their detriment, was dismissed. The second appeal before us (CA 2038/09) is brought against the judgment in CF 6161/04.

 

7.         It should incidentally be noted that since 2003 there have been various developments in respect to Property 2 due to its proximity to the security fence. In that connection, part of the property was demolished with the consent of the parties, and the security forces then seized possession of it by virtue of the Emergency Land Requisition (Regulation) Law, 5710-1949. In 2013, part of the land was expropriated for security purposes by virtue of the Land (Acquisition for Public Purposes) Ordinance 1943 (hereinafter: "the Acquisition Ordinance"). These matters, which are beyond the scope of these proceedings, were tried in various different legal proceedings (see HCJ 1622/13, judgment of February 12, 2014, Deputy President M. Naor, and Justices E. Rubinstein and D. Barak-Erez); HCJ 1190/14, judgment of March 18, 2014, Deputy President M. Naor, and Justices E. Rubinstein and Y. Danziger; and ALA 6895/04,judgment of November 16, 2004 on the application for leave to appeal against the District Court's judgment in CF 6161/04 on an application for a provisional injunction)).

 

8.         Incidental to the proceedings before us, on July 18, 2013, the Special Committee under section 29 of the Law (hereinafter: "the Special Committee") deliberated on the release of the two properties involved in the appeals. As regards Property 1 (the property involved in CA 5931/06), the Respondents, represented by the State Attorney (hereinafter: "the Respondents"), stated that the Custodian was no longer in possession of the land, but only the proceeds therefrom, because the property had been purchased by third parties "in market overt conditions" (para. 31(a) of the Respondents' application of October 5, 2014). The Special Committee recommended the release of those proceeds to whichever of the Appellants were residents of Judea and Samaria and still living. As regards the Appellants who had died while the proceedings were being heard, supplementary particulars were requested, and as regards the other members of the Alarja family it was recommended not to release the proceeds of the property. As regards Property 2 (the property involved in CA 2038/09), the Special Committee recommended the release in specie of the part that had not been requisitioned for the construction of the security fence, and to release the proceeds for the part requisitioned only to the owners who are residents of Judea and Samaria, who are the ones who had held the property continuously until it had been requisitioned. Under the circumstances, the Respondents argued that the appeals had become theoretical and they moved for their dismissal. The Appellants, for their part, stated that they insisted on the appeals. According to them, if their position on the basic question concerning the application of the Law in their case were accepted, then it would not have been appropriate from the outset to view the properties as "absentees' property", and the Special Committee's decision was ultra vires. In addition, the Appellants in CA 2038/09 pleaded that in light of the security forces' seizure of Property 2 for the construction of the security fence, the decision concerning the release of the property had no real meaning. In our decision of December 28, 2014 we dismissed the application to dismiss the appeals.

 

The Parties' Arguments

 

9.         In both the appeals before us, the Appellants assert that it was not appropriate to view the properties concerned as "absentees' property". For the sake of convenience, we shall cite their basic arguments with regard to the application of the Absentees' Property Law together. We shall then separately consider their individual arguments in respect of the properties in dispute. In principle, the Appellants assert that the Law should not be applied to property in East Jerusalem whose owners, beneficiaries or holders (hereinafter referred to as "the owners of the rights") are residents of Judea and Samaria. According to them, those properties merely became "absentees' property" because of the unilateral extension of the law of the State of Israel to the areas where they are located. This occurred without the owners moving from the spot, and while they were subject to the authority and control of Israel near their property. According to them, the purpose of the Law was to contend with the unique circumstances that prevailed at the time of the State's establishment, which are now different, and the legislature could not have envisaged the reality created further to the Six Day War. According to them, the residents of Judea and Samaria have nothing at all to do with the "absentees" at whom the Law was aimed. The Appellants state that the various attorneys general over the years were also cognizant of these difficulties.

 

            They argue that the Law should, therefore, be interpreted against the background of its purpose and the historical context in which it was enacted, in the spirit of the Basic Laws, and in recognition of the need to protect their property, such that its provisions will not apply to the said properties. They propose a "pragmatic" interpretation of section 1(b)(1)(ii) of the Law, by  which the properties are prima facie considered absentees' property (the section is quoted in para. 13 below). This section deals with anyone who at any time during the period prescribed in the Law was "in any part of Palestine[1] outside the area of Israel". According to the Appellants, "outside the area of Israel" should be read as "the area outside Israeli control". That is to say that "the area of Israel" should not be viewed as relating only to the area in which the law, jurisdiction and administration of Israel has been applied. In fact, their argument is that since Judea and Samaria have been under the effective control of the State of Israel since 1967, it should not be regarded as "outside the area of Israel" for the purpose of the Law, and section 1(b)(1)(ii) of the Law therefore does not apply to the residents of Judea and Samaria. In addition, the Appellants propose adopting the interpretation that the District Court applied in Dakak, which we shall discuss further (in para. 26 below). The Appellants also propose viewing "the area of Israel" within the meaning of section 1(b)(1)(ii) of the Law solely as the area in which the law of the State of Israel applied at the time of the Law's enactment. According to the argument, that area does not include new territory over which the law, jurisdiction and administration of Israel have been applied or which is held by Israel, unless the provisions of the Law have been expressly applied to the additional territory. In the Appellants' opinion, the interpretations propounded are not contrary to section 3 of the Legal and Administrative Matters (Regulation) Law [Consolidated Version], 5730-1970 (hereinafter referred to as "the Legal Regulation Law"), from which it emerges that the properties of East Jerusalem residents that are located in East Jerusalem are not to be regarded as "absentees' property". (Section 3(a) of the said Law provides that "a person who, on the day of the coming into force of an application of law order, is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area".) According to them, the said section deals only with the residents of East Jerusalem, where Israeli law has been applied, and a negative arrangement is not to be inferred therefrom in respect of residents who are under Israeli control in Judea and Samaria. They believe that there is no foundation for the distinction between residents of Judea and Samaria, who are under Israeli control, and the residents of East Jerusalem. Alongside this, the Appellants plead that the Custodian is interpreting the broad provisions of the Law in a discriminatory and degrading way. Thus, for example, according to them, on a strict interpretation of the Law, Jewish residents of Judea and Samaria and members of the security forces who are staying there are also "absentees", but the Law is only applied to Arab residents of Judea and Samaria.

 

10.       The Appellants assert that applying the interpretation proposed leads to the conclusion that the properties involved in the appeals are not absentees' property. The Appellants in CA 5931/06 argue that the refusal to register their rights in Property 1 in the Land Registry, while the rights of the Jewish purchasers have been registered, amounts to discrimination. Moreover, they make arguments in respect of the conduct of the Custodian in their case, including in respect of the difference in his attitude toward them, compared with his attitude toward the Jewish purchasers. Consequently, they ask that we find that Property 1 is not absentees' property, or alternatively, that we order its release under section 28 of the Law, if it is indeed held that absentees' property is involved. In any event, they explain that if it is held that the property is not absentees' property, it will be necessary to conduct a factual enquiry with regard to the litigants' title thereto. The Appellants in CA 2038/09 plead that Property 2 was requisitioned contrary to the Attorney General's directives in  this regard. In addition, they wonder why it was necessary to make use of "such a Draconian and improper law", when he could have satisfied himself with the issuing of a seizure order for security purposes, the duration and purposes of which are limited, as was indeed later done (para. 29 of the summations of January 26, 2010). Moreover, they make various different arguments concerning the way in which the property was requisitioned and about the real purpose of the move. In that connection they plead laches and the Respondents' failure to act in respect of the property because of the representation that they made, according to which the property was in Judea and Samaria rather than Israel, which led to a detrimental change in the position of the Appellants in CA 2038/09. They also complain of the determination that the District Court is not competent to treat of the way in which the Law is implemented. In view of all the foregoing, they ask that we quash the requisition of Property 2 by virtue of the Law, and return it to them.

 

11.       The Respondents' position is that the Law applies to properties in East Jerusalem of the residents of Judea and Samaria. According to them, "area of Israel", in the sense of the Law, relates only to territory to which Israeli law has been applied. They warn against the serious consequences involved in adopting the interpretive approach advanced by the Appellants, which is similar to the interpretation laid down by the District Court in Dakak. According to them, the term "area of Israel" is mentioned both in respect of the location of the particular property (section 1(b)(1) of the Law) and in respect of the location of the owners of the rights in the property (section 1(b)(1)(ii) of the Law). Hence, the interpretation proposed might lead to properties in Judea and Samaria being regarded as "absentees' property" as well, when their owners are included in one of the other alternatives of section 1(b)(1) of the Law. According to them, the presumption is that this is the position in the case of many of the residents of Judea and Samaria, who were Jordanian nationals. Consequently, they assert that the Appellants' proposal will in any event be of no help to them. In addition, the Respondents object to the proposal to interpret the "area of Israel" as a "photograph" of the situation that existed at the time of the Law's enactment. According to them, there is no basis for that in the Law, and it is contrary to its purpose – to enable the transfer of ownership to the Custodian of any property situated in the area of the State and belonging to an "absentee", to be used for the development of the country. They also mention that the Law was enacted when the final boundaries of the State had not yet been formulated (and in fact the provision of section 1(b)(1)(ii) of the Law already appeared in the Absentees' Property Emergency Regulations, 5709-1948 of December 12, 1948 (hereinafter referred to as "the Emergency Regulations") which applied during the War of Independence and preceded the Law). Alongside this, the Respondents argue that a restrictive policy should be adopted when implementing the Law. According to them, the powers in the Law should not be exercised in respect of the properties at issue, unless the Attorney General's approval is first obtained. They contend that over the years a restrictive policy has indeed been adopted in the implementation of the Law, in accordance with the position of the Attorneys General. According to the Respondents, looking to the future, this modus operandi will lead to results similar to those that will be obtained as a result of finding that the Law does not apply in the instant cases. However, adopting it, as distinct from finding that the Law does not apply, is essentially of significance in respect of the past. This is because a finding that the Law does not apply in these cases means that all the acts that have been done in respect of properties of that type are void, with the substantial difficulties involved therein that they mention. In addition, the Respondents reject the Appellants' argument of discrimination in the implementation of the Law. According to them, the Custodian adopts a standard policy in respect of everyone lawfully moving outside the area of Israel, regardless of his ethnic origin. Thus, for example, the Law is not implemented in respect of State nationals, be they Jews or Arabs, even where the strict implementation of its provisions would necessitate an application to release their property.

 

            As regards the properties in dispute, the Respondents argue that, under the circumstances, the Special Committee's decision provides a proper answer to the Appellants. The Respondents reject the pleas of discrimination made in CA 5931/06 and emphasize that the improper registration in the past of the rights of Jewish purchasers does not justify similar registration now. According to them, until the 1970s the Custodian used to permit the sale of absentees' property to Israelis in order to facilitate matters for the residents of Judea and Samaria and the Gaza Strip, but that policy has been changed. In addition, they explain why the Custodian has not acted to cancel registration of the transactions made by the Jewish purchasers and they state that they did in the past act against the transfer of rights in Property 1 to the Respondent 1, who is a Jewish national of Israel. In addition, the Respondents plead that ruling on the competing rights in respect of the property involved in CA 5931/06 necessitates the review of factual and legal arguments that were not considered at the trial instance in view of its conclusion that Property 1 is "absentees' property".

 

12.       The other Respondents in CA 5931/06, the Jewish purchasers of the rights in Property 1, join in the Custodian's position on the question of principle with regard to the application of the Law. As regards the interpretation proposed by the Appellants, they state that since the Oslo Accords, effective control of a large proportion of Judea and Samaria is not held by the State of Israel and they argue that the said interpretation would necessitate equating the status of Judea and Samaria's residents with that of Israeli residents in other respects. They emphasize that they acquired the rights in Property 1 in good faith and for consideration, and they comment that the Appellants' domicile has never been established. According to them, the Appellants in CA 5931/06 are undermining the judgments that have been awarded in respect of Property 1, and their conduct in the various proceedings in respect thereof amounts to an abuse of process, inter alia in view of the change in their versions on the question of absenteeism.

 

Discussion and Decision

 

13.       The proceedings before us concern, as aforesaid, the question of whether properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, are "absentees' property" under the Absentees' Property Law. We would immediately emphasize that these proceedings address only such properties and not any other type of property. The point of departure for the discussion is the Absentees' Property Law, and we shall therefore commence by presenting its main provisions. "The portal" to the Law is contained in the definitions of "absentee" and "absentees' property". "Absentees' property" is defined in section 1(e) of the Law as follows:

 

            "'Absentees' property' means property, the legal owner of which, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published under section 9(d) of the Law and Administration Ordinance, 5708-1948, that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was an absentee or which, at any time as aforesaid, an absentee held or enjoyed, whether by himself or through another; but it does not include movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" [emphasis added – A.G.].

 

            The term "absentee" is defined in section 1(b) of the Law as follows:

 

             "(b) 'Absentee' means –

 

            (1) A person who, at any time during the period between Kislev 16, 5708 (November 29, 1947) and the day on which a declaration is published, under section 9(d) of the Law and Administration Ordinance, 5708-1948 that the state of emergency declared by the Provisional Council of State on Iyar 10, 5708 (May 19, 1948) has ceased to exist, was a legal owner of any property situated in the area of Israel or enjoyed or held it, whether by himself or through another, and who, at any time during the said period –

 

                        (i) was a national or citizen of the Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen, or

 

                        (ii) was in one of these countries or in any part of Palestine outside the area of Israel, or

 

                        (iii) was a Palestinian citizen and left his ordinary place of residence in Palestine

 

                                    (a) for a place outside Palestine before Av 27, 5708 (September 1, 1948); or

 

                                    (b) for a place in Palestine held at the time by forces which sought to prevent the establishment of the State of Israel or which fought against it after its establishment;"

 

            It should be noted as regards the mention of "Trans-Jordan" in sections 1(b)(1)(i) and (ii) that in 1994 the legislature excluded from the application of the Absentees' Property Law certain properties, the owners of the right in which where nationals or citizens of Jordan. This was further to the peace agreement with Jordan (see section 6 of the Implementation of the Peace Agreement between the State of Israel and the Hashemite Kingdom Law, 5755-1995 (hereinafter referred to as "the Peace Agreement with Jordan Law")).

 

14.       According to the Absentees' Property Law, "absentees' property" is vested in the Custodian and the "absentees" lose their rights in it (see CA 8481/05 Lulu v. Custodian of Absentees' Property, para. 7 (February 28, 2007) (: the Lulu case)). The vesting of the property in the Custodian in accordance with the Law is not dependent upon his doing any act, and the rights in it automatically pass to him from the moment that the conditions for its being "absentees' property" are fulfilled (section 4 of the Law; CA 109/87 Makura Farm Ltd v. Hassan, IsrSC 47(5) 1, 29 (1993) (hereinafter: the Makura Farm case); CA 427/71 Faraj v. The State of Israel, IsrSC 27(1) 96, 101 (1972) (hereinafter:  theFara case"), in which it was stated that since automatic vesting is involved, the Custodian might not even be aware that a property has been vested in him; CA 4630/02 The Custodian of Absentees' Property v. Abu Hatum, para. L(3) (September 18, 2007) (hereinafter: the Hatum case; CA 8753/07 The Estate of Atalla Halil Bahij, Deceased v. Custodian of Absentees' Property, para. J (November 16, 2010)). It should be emphasized that in view of the prolonged state of emergency, which is still in force, the application of the Law continues and its operation has not yet ended. That is to say that anyone who has fulfilled or does in future fulfil the conditions for the definition of an "absentee" during the relevant period (namely since 1947 until the future end of the state of emergency) will be regarded as an "absentee" and his property in Israel will be vested in the Custodian. That is unless he has been excluded from the scope of the Law.

 

            The status of the Custodian in respect of absentees' property is the same as was that of the owner of the property, and he is entrusted with its management, care and supervision (section 4 of the Law). To that end, very extensive powers have been granted to him (see HCJ 6/50 Freund v. Supervisor of Absentees' Property, Jerusalem, IsrSC 4 333, 337 (Justice M. Dunkelblum) (1950) (hereinafter: the Freund case); Minutes of Meeting No. 123 of the First Knesset, 950, 956 (March 7, 1950) (hereinafter: the Minutes 123); Menahem Hoffnung, Israel – State Security Versus the Rule of Law, 162 (5761) (Hebrew) (hereinafter: Hoffnung)). In this connection it is provided that the Custodian may incur expenses and make investments in order to safeguard, maintain, repair and develop the property (section 7 of the Law); continue the management of a business on behalf of the absentee (section 8 of the Law, and sections 24 and 25, which concern a partnership of which an absentee is a member and properties of which absentees are co-owners); order the eviction of someone who is occupying the property without any right (section 10 of the Law); order the discontinuance of construction on the property and its demolition (section 11 of the Law). In addition, the Law requires that absentees' property be handed over to the Custodian (section 6 of the Law) and information in respect of it provided (section 21 of the Law). The Law imposes restrictions and prohibitions concerning the doing of various different acts with the property without the Custodian's consent (section 22 of the Law), and it provides that certain acts that have been done in respect of the property are null and void (section 23 of the Law). In addition, certain acts that have been done contrary to the Law are regarded as criminal offences, the penalty for which might amount to up to two years' imprisonment (section 35 of the Law). Although the Law restricts the Custodian's ability to sell and grant a long lease of immovable property that has been vested in him (section 19), it does permit him to transfer it to the Development Authority, subject to certain reservations. In this connection it should be noted that in an agreement that was made on September 29, 1953 between the Custodian and the Development Authority, all the immovable property vested in the Custodian was transferred to the Authority (according to The Government Yearbook 5715, 47). Similarly, the Law limits the liability that the Custodian bears for his acts (sections 16 and 29P of the Law), and lays down lenient evidential arrangements for him (section 30 of the Law; Makura Farm, pp. 12-13). The Law further provides that transactions made between the Custodian and another person in good faith will not be invalidated even if it is established after the fact that the property was not vested property (section 17 of the Law). Alongside this, the Law lays down various mechanisms that are apparently aimed at mitigating its serious effects. Thus, the Custodian has been authorized, in certain circumstances, to "relieve" a person of his "absenteeism" (section 27 of the Law) and to release properties that have been vested in him (sections 28-29 of the Law; for the significance of such release, see CA 263/60 Kleiner v. Director of Estate Tax, IsrSC 14 2521 (1960) (hereinafter: the Kleiner case; for further discussion of several of the decisions that have been given by the Special Committee, including its recommendation for a sweeping release of properties in certain cases, see Haim Zandberg, Israel Land, Zionism and Post-Zionism, 83-83 (2007) (Hebrew)).

 

15.       As we see, the Law grants the Custodian very extensive powers and its overall provisions create a far-reaching arrangement, at the center of which is the expropriation of the rights in absentees' property from the owners and their vesting in the Custodian. This arrangement should be understood against the special circumstances that led to its enactment. At the end of the War of Independence, and in fact even during it, the young State of Israel faced a complex, new reality. This was, inter alia, due to the enlarged area under its control and the mass departure of Arab residents, leaving behind them extensive property, abandoned and vulnerable to intrusion and unruly squatting, on the basis of "might makes right" (see Eyal Benvenisti and Eyal Zamir, “Private Property In the Israeli-Palestinian Peace Settlement”, Research of the Jerusalem Institute for Israel Studies, 77, 7-9 (1998) (Hebrew) (hereinafter: Benvenisti and Zamir, Private Property)). These challenges necessitated a rapid legal answer that would make it possible to settle the rights in, and deal with, those properties. Indeed, in the first years of the State a series of legal arrangements was laid down to contend with the complex reality that had arisen (for further reading, see for example Shlomo Ifrach, “Legislation Concerning Property and Government in the Occupied Territories”, 6 Hapraklit 18 (1949) (Hebrew); Hoffnung, pp. 159-168; Eyal Zamir and Eyal Benvenisti, "Jewish Land in Judea, Samaria, the Gaza Strip and East Jerusalem”, Research of the Jerusalem Institute for Israel Studies, 52, 28-29 (1993) (Hebrew) (hereinafter: Zamir and Benvenisti, Jewish Land)). One of the major pieces of legislation enacted in this context is the Absentees' Property Law, which was enacted in 1950 and replaced the Emergency Regulations that had been promulgated in this respect and that applied during the War of Independence.

 

16.       The Law was designed to regulate the administration of "absentees'" property by the State authorities, and make it possible to safeguard it against lawlessness (see, Minutes of Meeting No. 119 of the First Knesset, 872 (February 27, 1950) (hereinafter:  Minutes 119); CA 58/54 Habab v. Custodian of Absentees' Property, IsrSC 10 912, 918 (1956); Freund, p. 337). The purpose of the Law was not expressly defined in it and it did not prescribe for whose benefit "the absentees' property" should be safeguarded (see Minutes 123, p. 952; Shlomo Ifrach, “Thoughts on the Absentees' Property Law, 5710-1950”, 9 HaPraklit 182 (5713) (Hebrew)). The case law has held that the purpose of the Law is merely to safeguard the property for the benefit of its absentee owners, but it is also aimed at achieving the State's interests in the property, including, so it has been held, "the ability to utilize it to promote the country's development, while preventing its exploitation by anyone who is an absentee within the meaning of the Law, and the ability to hold it (or its proceeds) until the formulation of political arrangements between Israel and its neighbors, in which the fate of the property will be decided on the basis of reciprocity between the countries" (HCJ 4713/93 Golan v. Special Committee under Section 29 of the Absentees' Property Law, IsrSC 48(2) 638, 644 (1994) (hereinafter: the Golan case). For a discussion of the Law's objectives, see also CF (Haifa District) 458/00 Bahai v. Custodian of Absentees' Property, para. 26 (Judge I. Amit) (September 19, 2002) (an appeal was filed against the judgment, but the judgment in the appeal did not require an analysis of the Law's purpose (CA 9575/02 Custodian of Absentees' Property v. Bahai (July 7, 2010) (hereinafter: the Bahai case)). This approach is also consistent with statements made at the time the Law was enacted (see Minutes 119, pp. 869-870).

 

            It should be noted that the wording and title of the Law prominently emphasize the absence of the property owners (the "absentees"). Nevertheless, the background that led to its enactment and the nature of the arrangements prescribed in it might indicate that, in fact, the Law sought to determine the legal position in respect of the properties in Israel of nationals and residents of the enemy states. In any event, it appears that the Court has gained this impression in several cases dealing with these matters (see Golan, p. 645; HCJ 99/52 Anonymous v. Custodian of Absentees' Property, IsrSC 7 836, 839 (1953) (hereinafter: the Anonymous case); Kleiner, p. 2544 (per Justice A. Witkon), where it was stated that the Law is similar in character to the legislation on trade with the enemy, the consequence of which is the expropriation of the ownership of, and rights in, the property and their vesting in the Custodian. Support for this concept can also be found in the statement by the Minister of Justice, D. Libai, in the debate on the Peace Agreement with Jordan Bill (Minutes of Meeting No. 312 of the 13th Knesset, 5658 (January 23, 1995) (hereinafter: Minutes 312)). See also Benvenisti and Zamir, Private Property, pp. 13-14; para. 64 of the notice of appeal dated July 13, 2006 in CA 5931/06. Nevertheless, in the Appellants' summations in CA 2250/06 (the Respondents herein) to which the latter referred, it was asserted that the definition of "absentee" in the Law does not necessarily reflect a person's connection with an enemy state).

 

The Broad Application of the Absentees' Property Law

 

17.       Against the background of the exceptional circumstances in which the Law was enacted, it can perhaps be understood why it is worded so sweepingly and strictly. In any event, the way it is drafted, and especially the broad definitions of its underlying terms – with the emphasis on "absentee", "property" and "absentee property" – lead to the very extensive application of the Law (see HCJ 518/79 Cochrane v. Committee under Section 29 of the Absentees' Property Law, 5710-1950, IsrSC 34(2) 326, 330 (per Justice H. Cohn) (1980) (hereinafter: the Cochrane case; see also Minutes 123 and Minutes 119, pp. 870-872, which discussed the problems involved in the broad definition of "absentee", which embraces very many cases). Indeed, about 35 years ago this Court indicated that the broad definition of "absentee" is likely to lead to the Law's catching more and more people in its net, sometimes unnecessarily and contrary to its purpose. In the words of Justice H. Cohn, in Cochrane (p. 330):

 

            "In the geopolitical circumstances that existed upon the establishment of the State and at the time of the Law's enactment, it was necessary to define 'absentee' very broadly and sweepingly – despite the risk that the definition would include people who, in fact, had no legal connection with Israel's enemies, physically, ideologically or otherwise. And since the definition remains in force until the end of the state of emergency that has prevailed in Israel since the establishment of the State (section 1(b)(1) of the Law), innocent citizens who have nothing to do with absenteeism might frequently be added to the multitude of 'absentees' as defined in the Law (for example someone who is in part of 'Palestine' outside the area of Israel, - ibid., para. (ii))".

 

18.       The Law's definitions of the various terms are likely to lead to rigid results that are inconsistent with common sense or even the purpose that the Law was intended to serve. Let us demonstrate this by means of several examples – and it should be emphasized that I do not mean to lay down strict rules in respect of the cases that will be referred to,  which are cited merely for the purposes of illustration. According to the Law, it suffices if - at any time in the period between November 29, 1947 and the end of the state of emergency that was declared by the Provisional Council of State in 1948 – the owner of the rights fulfilled one of the alternatives in section 1(b)(1) of the Law (see sections 1(b) and 1(e) of the Law) for property that is in the area of Israel to be regarded as absentees' property. As aforesaid, since a declared state of emergency has existed in Israel ever since the State's establishment, any property in Israel that has been purchased in the last dozens of years by an "absentee" is, according to the wording of the Law, absentees' property. For example, a property in Israel that is purchased today by a national or subject of any of the countries mentioned in section 1(b)(1) of the Law (other than Jordan, as mentioned at the end of para. 13 above) will be regarded as "absentees' property" and immediately be vested in the Custodian. The self-evident difficulty involved in such a situation is aggravated in view of the broad definition of "property" in the Law, which includes "immovable and movable property, monies, a vested or contingent right in property, goodwill and any right in a body of persons or its management" (excluded from "absentees' property" are "movable property held by an absentee and exempt from attachment or seizure under section 3 of the Civil Procedure Ordinance, 1938" (section 1(e) of the Law)). As prescribed, "property" includes, among other things, a right to the repayment of a debt, an obligatory right to receive land, bearer shares and also contractual rights and any right that is enforceable by a lawsuit (see Bahai, paras. 7-9 and the references there). One has to wonder about the logic of the result whereby a debt that is due to an "absentee" in respect of a transaction made by him in relation to property in Israel, for example, will automatically be vested in the Custodian (see MF 89/51 Mituba Ltd v. Kazam, IsrSC 6 4 (1952), where it was held that a debt might be absentees' property. See also CA 35/68 Mualem v. Custodian of Absentees' Property, IsrSC 22(2) 174 (1968) (hereinafter: the Mualem case), which concerned bills of exchange received further to a transaction made in Iraq that were endorsed by a resident of Iraq in favor of an Israeli national. It was stated in the judgment that when the bills, which were the property of an Iraqi resident, arrived in Israel they became absentees' property (ibid., pp. 176-177)). In addition, the simple language of the Law might lead to the conclusion that the absenteeism of the holder of any proprietary right in property suffices to make it "absentees' property". This is so even if the other holders of the rights therein are not absentees, and even if his right is "inferior" to their right. Thus, for example, the very fact that someone who "enjoyed" the property was an absentee apparently suffices for it to be regarded as "absentees' property", even if its owner is not an absentee (see the Makura Farm case, p. 15).

 

            Other difficulties arise in view of the fact that "absentee" is an ongoing "status" that has no end (unless expressly otherwise prescribed or a step is initiated to release the property or its owners from their absenteeism. See CA 110/87 Elrahim v. Custodian of' Absentees' Property (August 22, 1989) (hereinafter: the Elrahim case)). Properties in Israel of whoever has fallen within the scope of the conditions for "absentee" at any time in the period between the end of 1947 and the end of the state of emergency, which is still continuing as aforesaid, are likely to be regarded as "absentees' property" and be denied him. As aforesaid, there is no automatic release from this situation, apart from a few exceptions that have been specifically defined in the Law. For example, a person will be regarded as an absentee merely because, at some stage during the said period, he was a national or citizen of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen or "was" there (as regards Trans-Jordan, see the end of para. 13 above). Hence, according to a strict interpretation of the Law, the properties in Israel of immigrants from Egypt, Iraq or Yemen that were purchased by them before or after they immigrated to Israel, are "absentees' property" (and indeed, that was the case in the Faraj case; see also Mualem. Nevertheless, it does appear that section 28A of the Law, which is mentioned in the next paragraph, resolves that difficulty, at least in respect of properties that have been purchased since arrival in Israel). That is the law, at least prima facie, in respect of the properties in Israel of all those who have visited the said countries, regardless of the purpose or length of the visit. Thus, for example, anyone who went to those places on behalf of the State, for example soldiers in battle, are likely to be regarded as "absentees" (reality has proven that the question is not theoretical; see the Anonymous case, in which a Palestinian citizen, who left Israel for an enemy country as an emissary of one of the State authorities, was regarded as an "absentee"!!). Is it reasonable or acceptable that in the circumstances described, those people should lose their rights in their property in Israel?!

 

19.       It should be noted that a solution has been provided in the Law for at least some of the difficulties arising from its broad wording. A salient example is the possibility of releasing absentees' property (sections 28-29 of the Law) and giving written confirmation that a particular person is not an "absentee" (section 27 of the Law. For a discussion of whether the section applies where a person can be defined as an absentee under section 1(b)(1)(iii) of the Law and also in accordance with one of the other alternatives prescribed in the section, see Anonymous and Bahai, paras. 11 and 13). It should be noted that according to Justice H. Cohn in the Cochrane case, those powers are the solution to the difficulties involved in the definition of "absentee" mentioned in the previous paragraphs (ibid., p. 330) (this was the position of the Court in Elrahim as well). Another example is the provision of the Law that was added in 1951, the purpose of which was to enable "absentees" who are duly present in the area of Israel to purchase rights in properties that did not constitute absentees' property on the date the Law took effect (section 28A of the Law; see Minutes of Meeting No. 234 of the First Knesset, 1254, (March 6, 1951)). Nevertheless, the Law is still far from being free of difficulties. One of the reasons is the fact that in the many years since the Law was enacted, significant geopolitical changes have occurred in the environment of the State of Israel, including Israel's wars and diplomatic arrangements that have been made with some of its neighbors. At the same time, substantial changes have also been made in Israeli law's treatment of human rights. In fact, today's circumstances are materially different from those that existed at the time of the Law's enactment some 65 years ago. Nevertheless, and despite the fact that the Law's application has been continuing all that time, not all the necessary adjustments to the changing times and circumstances have been made. This finds conspicuous expression with regard to property located in East Jerusalem, and in particular, property owned by residents of Judea and Samaria, as is the case in the appeals  before us. Before we go on to consider the specific problems arising in these cases, another note is obliged.

 

20.       In view of the foregoing, an argument might be made with regard to the invalidity of some of the Law's provisions for constitutional reasons. In other words, it could be argued that the provisions of the Law infringe the absentees' rights and in particular their constitutional right to property (section 3 of Basic Law: Human Dignity and Liberty), and that it does not fulfil the criteria that have been laid down in case law on the limiting paragraph of the Basic Law (section 8). In my opinion, it is certainly possible that at least some of the arrangements in the Law, were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to serve or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the “Validity of Laws” rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void (see, for example, CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, 632-633 (per Justice T. Strasberg-Cohen), 642-643 (per Justice M. Cheshin), 653 (per President A. Barak (1995) (hereinafter: the Ganimat case); HCJ 4264/02 Ibillin Breeders Partnership v. Ibillin Local Council, para. 10 (December 12, 2006)).

 

The Absentees' Property Law and the Properties in East Jerusalem

 

21.       Section 1(b) of the Law imposes two conditions for a person to be an "absentee": the first relates to the particular property and contains the requirement that the property is situated "in the area of Israel". In this respect, "the area of Israel" has been defined as an area where the law of the State of Israel applies (section 1(i) of the Law; for a discussion of that term, see Benjamin Rubin, “The Sphere of the Law's Application, the Area of the State and Everything in Between”, 28 Mishpatim, 215, 226-227 (5755) (Hebrew) (hereinafter: Rubin)). The second condition relates to the owner of the rights in the property (the "absentee"). The "absentee" is someone who falls within one of the alternatives of section 1(b)(1) of the Law. The first alternative is defined according to the person's nationality or citizenship, and it concerns the citizens or nationals of Lebanon, Egypt, Syria, Saudi Arabia, Trans-Jordan, Iraq or Yemen (section 1(b)(1)(i) of the Law). The second alternative is defined on the basis of the location of the "absentee" and relates to anyone who was in any of those countries or "in any part of Palestine outside the area of Israel" (section 1b)(1)(ii) of the Law). The third alternative relates to Palestinian citizens who left their ordinary place of residence in Palestine for a place outside Palestine in the circumstances set out in section 1(b)(1)(iii) of the Law (section 27 of the Law nevertheless lays down cases in which an absentee will be exempted from his "absenteeism" according to this alternative; for the controversy that arose between Justices M. Landau and Y. Olshan in respect of this section and the characteristics of the different alternatives, see the Anonymous case).

 

22.       With regard to properties that are situated in East Jerusalem, until 1967 they were not "in the area of Israel", within the meaning of the Absentees' Property Law, namely the area in which the law of the State of Israel applies (section 1(i) of the Law). Consequently, until then they were not absentees' property. That changed with the Six Day War. In the War, East Jerusalem passed into the control of the State of Israel, and on June 28, 1967 the application of Israeli law, jurisdiction and administration was declared (see Order No. 1 that was promulgated by virtue of section 11B of the Law and Administration Ordinance, 5708-1948 (hereinafter: "the Law and Administration Ordinance"). See also section 5 of Basic Law: Jerusalem, Capital of Israel, which prescribes that East Jerusalem is included within the boundaries of the Jerusalem Municipality. See also HCJ 282/88 Awad v. Prime Minister and Minister of the Interior, IsrSC 42(2) 424, 429 (1988) (hereinafter:as the Awad case; CA 4664/08 Mishal v. Custodian of Absentees' Property, para. 8 (hereinafter: the Mishal case); HCJ 1661/05 Hof Aza Regional Council v. Knesset, IsrSC 59(2) 481, 512-513 (2005) (hereinafter:the Hof Aza Council case); Rubin, pp. 231-234; Benvenisti and Zamir, Private Property, pp. 23-24). In view of this, property in East Jerusalem must, of course, be regarded as situated in "the area of Israel" for the purpose of the Absentees' Property Law (see CA 54/82 Levy v. Estate of Afana Mahmoud Mahmoud (Abu-Sharif), Deceased, IsrSC 40(1) 374, 376 (1986) (hereinafter: the Levy case); HCJ 98/68 Hadad v. Custodian of Absentees' Property, IsrSC 22(2) 254 (1968)).

 

23.       Consequently, all that remains for the owners of rights in property in East Jerusalem to be regarded as "absentees" is for one of the alternatives in section 1(b)(1) of the Law to be fulfilled. In view of the broad definitions in the Law, and given the fact that many of the residents of East Jerusalem were nationals or citizens of Jordan before 1967, it appears that this condition is fulfilled in many cases, and the properties of those people in East Jerusalem should be regarded as "absentees' property". In this context it should be borne in mind that after the Six Day War not only the property in East Jerusalem passed into the area of Israel and under its control, but also the local residents (the residents of East Jerusalem who were included in the census that was conducted in June 1967 obtained the status of permanent residents in Israel and could, in certain conditions, obtain Israeli nationality). As a result, quite a strange situation arose in which the Law applied both to properties and their owners in "the area of Israel". In fact, a person could, for example, remain at home without taking any action or changing his situation or the state of the property, and his home, where he resided in East Jerusalem, became "absentees' property". This difficulty was resolved in respect of the residents of East Jerusalem with the enactment of the Legal Arrangements Law in 1970 (or to be more precise, in 1968, upon enactment of the Legal and Administrative Matters (Regulation) Law, 5728-1968, which preceded it). Section 3 of the 1970 statute prescribes as follows:

 

                        "(a)     A person who on the day of the coming into force of an application of law order [namely an order under section 11B of the Law and Administration Ordinance – A.G.] is in the area of application of the order and a resident thereof shall not, from that day, be regarded as an absentee within the meaning of the Absentees' Property Law, 5710-1950, in respect of property situated in that area.

 

(b)       For the purposes of this section, it shall be immaterial if, after the coming into force of the order, a person is, by legal permit, in a place his presence in which would make him an absentee but for this provision".

 

            The section therefore excludes whoever were residents of East Jerusalem on June 28, 1967 – when Order No. 1 was issued, whereby the law, jurisdiction and administration of the State of Israel were applied to East Jerusalem – from the definition of "absentees" in respect of their property in East Jerusalem (see Mishal, para. 8; Awad, p.429; Benvenisti and Zamir, Private Property, p. 14, 26-28; Zamir and Benvenisti, Jewish Land, p. 87). In addition, the Absentees' Property (Compensation) Law, 5733-1973 (hereinafter: "the Compensation Law") was later enacted to enable residents of Israel, including the residents of East Jerusalem, who are "absentees", to claim compensation for certain property vested in the Custodian (see Zamir and Benvenisti, Jewish Land, pp. 90-91; Benvenisti and Zamir, Private Property, pp. 14, 28-29).

 

The Case of Judea and Samaria Residents

 

24.       Let us now turn to the case before us, of residents of Judea and Samaria who have rights in property in East Jerusalem. As aforesaid, for the purpose of the Law, these properties are located in the area of Israel. The first condition for their "absenteeism" is therefore fulfilled. The second condition is that the owners of the rights in them fall within the scope of one of the alternatives of section 1(b)(1) of the Law. The alternative relevant to the instant case is that mentioned at the end of section 1(b)(1)(ii) of the Law, that an absentee is someone who at any time during the relevant period "was… in any part of Palestine outside the area of Israel." In Judea and Samaria, unlike East Jerusalem, the law, jurisdiction and administration of the State of Israel have never been applied (see, for example, HCJ 390/79 Dwikat v.  Government of Israel, IsrSC 34(1) 1, 13 (1979); Hof Aza Council, pp. 514-560; and also Rubin, pp. 223-225). It is, of course, therefore not the "area of Israel", which is defined in section 1(i) of the Law as "the area in which the law of the State of Israel applies". Some 30 years ago, this Court ruled in Levy that Judea and Samaria is "part of Palestine" within the meaning of section 1(b)(1)(ii) of the Law (ibid., p 381 (Justice A. Halima); cf Crim. App. 5746/06 Abbass v. State of Israel, paras. 5, 8-10 (July 31, 2007), where the meaning of the same expression in the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 was considered in the particular context of that statute). It should be noted that in Levy the Court dismissed the plea that since Judea and Samaria is actually occupied by the IDF, it should be regarded as held territory in accordance with the Area of Jurisdiction and Powers Ordinance, 1948 and therefore also as an "area of Israel" for the purpose of the Absentees' Property Law. The Court's conclusion in the Levy case was that properties in East Jerusalem that were owned by the residents of Judea and Samaria should be regarded as "absentees' property". This concept is also reflected in later case law of this Court (see the Golan case, where the Court acted on the assumption that such property is "absentees' property").

 

25.       The said conclusion with regard to property in East Jerusalem does not derive merely from the wording of the Law. It appears that this result also reflects the intention of the legislature, at least since the Legal Regulation Law was enacted. As aforesaid, while the residents of East Jerusalem were excluded by the Legal Regulation Law from the application of the Absentees' Property Law in respect of property located there, a similar step was not taken in respect of the residents of Judea and Samaria. In my opinion, the significance of that cannot be avoided. The very fact that the legislature considered it necessary to prescribe an express arrangement excluding the residents of East Jerusalem from the scope of the Absentees' Property Law (from the date prescribed) demonstrates that, according to it, without such a provision the Law would have applied to them. In other words, this indicates that in its opinion, the Law also applies where the particular property or the owner of the rights in it became "absentee" after the Law's enactment, namely after 1950. This assumption also finds expression in the need that the legislature saw expressly to exclude certain properties from the application of the Absentees' Property Law further to the peace agreement made with Jordan in 1994 (see section 6 of the Peace Agreement with Jordan Law; and also Minutes 312, p. 5658. See also Abu Hatum, para. K.) This approach is in fact consistent with the view that the application of the Law is ongoing and has not yet reached an end (see also Golan, p. 645, where it was stated that "the assumption embodied in the Law is that the fate of absentees' property will be determined in future as a possible consequence of political settlements between the State of Israel and its neighbors". It should also be noted that at the time the Law was enacted, it was stated that it was necessary to enact a permanent law instead of the Emergency Regulations because "it was clear to the members of the committee that even after the emergency ends we shall have to deal with the absentees' property…" (Minutes 119, p. 868)). In view of the foregoing, in my opinion it is not possible to accept the argument that the definition of "the area of Israel" in the Law meant only the area in which Israeli law applied at the time of the Law's enactment, something of a "photograph" or freeze of a given situation that cannot change with time. The same applies to the argument that an express provision of the Law is necessary for it to apply to territory added to the area of the State of Israel after its enactment. The foregoing examples might demonstrate that, in truth, the opposite is the case. In addition, the failure of the legislature to prescribe a broader arrangement in the Legal Arrangements Law or another statute reflects, as I understand it, a conscious decision not to exclude others from the application of the Absentees' Property Law, like for example the residents of Judea and Samaria. That is also the impression that was gained by this Court in Levy (see ibid., pp. 382-383 (per Justice A. Halima). That is also the opinion of the learned authors Zamir and Benvenisti (see Benvenisti and Zamir, Private Property, p. 27; Zamir and Benvenisti, Jewish Land, p. 87)). Accordingly, I do not consider it possible to depart from the case law according to which the Absentees' Property Law does indeed apply to property in East Jerusalem, whose owners are residents of Judea and Samaria. It appears that any other finding would be contrary to the plain meaning of the Law and the intention of the legislature.

 

26.       In this regard, a few words should be devoted to the Jerusalem District Court's judgment in the Dakak caseJudge B. Okon). In that judgment the court considered the difference between the reality in which the Absentees' Property Law was enacted and the circumstances that have arisen in Judea and Samaria following the Six Day War. According to him, "it is difficult to conceive" that the Law should be applied to residents who are under "effective Israeli control" rather than hostile control (ibid., paras. 4-5 of the judgment). Such being the case, it was held that section 1(b)(1)(ii) of the Law, which concerns a person who is "in any part of Palestine outside the area of Israel", does not apply to a resident of areas "that are actually subject to Israeli military control, as distinct, for example, from areas under the military control of a country mentioned in section 1(b)(1)(i) of the Law" (ibid., para. 6). An appeal was filed against the said judgment (CA 2250/06, which is one of the appeals joined in these proceedings (see para. 1 above)). Ultimately, as aforesaid, the appeal was withdrawn after a settlement agreement was reached between the parties. Nevertheless, since the parties in the instant case did consider the said judgment, we have seen proper to explain our reservation as regards the way in which section 1(b)(1)(ii) of the Law was interpreted in Dakak. The said interpretation is not consistent with this Court's findings in Levy or the underlying assumption relied upon in Golan. This fact, per se, raises difficulty (as regards the departure of the trial courts from a binding precedent of the Supreme Court, see, for example, ALA 3749/12 Bar-Oz v. Setter, paras. 18-20 of my opinion (August 1, 2013)). In addition, in my opinion, the interpretation also raises difficulties with respect to the crux of the matter for the reasons detailed above. Moreover, there is substance to the Respondents' arguments that the said interpretation will in any event not exclude from the application of the Law the residents of Judea and Samaria who were Jordanian nationals or citizens or were there at any time since 1947 and have property in Israel. This is in view of the other alternatives of section 1(b)(1) of the Law. According to the Respondents, it appears that a considerable proportion of the residents of Judea and Samaria are involved. However, the interpretation that "extends" the "area of Israel" beyond that provided in the Law raises substantial difficulties. This is in view of the clear wording of the Law, which expressly provides in section 1(i) that the area in which the law of the State of Israel applies is involved, and for other substantial reasons. Moreover, a finding of this type raises complex issues in respect of the exact nature of the terms "area of Israel" and "effective control". Thus, for example, the question could arise as to whether a distinction should be made among the areas of Judea and Samaria that are termed "areas A, B and C", according to the Israeli-Palestinian Interim Agreement on the West Bank and Gaza Strip that was made between the State of Israel and the PLO on September 28, 1995 (for a discussion in a different context on the question of whether a certain area is under the control of the IDF further to the division of the said territories, see, for example, HCJ 2717/96 Wafa v. Ministry Of Defense, IsrSC 50(2) 848 (1996)). This complex question gained no consideration by those in support of using the term "effective control" in the context under discussion. In any event, it appears that this is not the proper place to decide those questions. Moreover, one should be aware that such an interpretation might lead to the Law's application to property not included in it until now. This is because the Law applies to properties in "the area of Israel" (section 1(b)(1) of the Law.) Hence, finding that Judea and Samaria is part of "the area of Israel" might lead to properties located there also becoming "absentees' property".

 

27.       In view of all the foregoing, there is no alternative but to conclude that the Absentees' Property Law does apply to properties in East Jerusalem, the rights in which are owned by residents of Judea and Samaria. However, that is not the end of it. We must consider the way in which the Law is implemented in cases like these.

 

Exercise of the Powers under the Law in the Cases under Discussion

 

28.       The finding that the said properties are "absentees' property" is very problematic, not only at the level of international law but also as regards administrative law. The Respondents do not deny this either. It should be borne in mind that those involved are residents of Judea and Samaria who have become "absentees", not because of any act done by them but because of the transfer of control of East Jerusalem to Israel and the application of Israeli law there. In addition, persons are not involved who are under the control of another state, and they are in areas over which Israel has control – albeit only certain control. In this context, we should bear in mind that in the course of the Law's enactment it was explained that section 1(b)(1)(ii) of the Law meant "people who are in fact not in the area of the State of Israel" (as the Chairman of the Finance Committee, D.Z. Pinkas, MK, said in Minutes 119, p. 868). In this sense, there is indeed a certain similarity between the residents of Judea and Samaria and the residents of East Jerusalem, although an analogy should clearly not be drawn between the cases in view of the difference in the legal status of the two areas. It appears that there is indeed a difference between the case of residents of Judea and Samaria and the case of those for whom the Absentees' Property Law was intended (see also Cochrane, p. 330, where Justice H. Cohn mentioned a person who is "in part of Palestine outside the area of Israel" as one of the cases in which the Law applies to someone who has nothing whatsoever to do with absenteeism). Indeed, there are differences between the residents of Judea and Samaria, the citizens or nationals of the hostile states in section 1(b)(1)(i) of the Law, and a person who deliberately "left his ordinary place of residence in Palestine" in the circumstances described in subparagraph (iii). In fact, the absenteeism of the residents of Judea and Samaria in respect of their property in East Jerusalem derives from the broad wording of the Law and its continuing application, due to the prolonged state of emergency (see paras. 14 and 18 above). It is difficult to believe that this was the type of case intended by the Law, which was, as aforesaid, enacted against the background of specific and exceptional events. The results of applying the Absentees' Property Law in these cases is also particularly harsh having regard to the fact that the residents of Judea and Samaria are not entitled to compensation for their properties that are vested in the Custodian. This is because the right to claim compensation by virtue of the Compensation Law is granted only to residents of Israel (section 2 of the Compensation Law; see also Benvenisti and Zamir, Private Property, pp. 14, 28-29. It must be said that there is a certain similarity between denying a person's rights to his property because it has become absentees' property and the expropriation of land for public purposes (in which connection it should be noted that the view is expressed in the literature that laying down the ability to obtain compensation under the Compensation Law in the case of Israeli residents reinforces the argument that underlying the failure to release absentees' property is a rationale similar to that underlying the acquisition of land for public purposes (see, ibid., p. 14). See also Sandy Kedar, “Majority Time, Minority Time: Land, Nation and the Law of Adverse Possession in Israel,” 21 (3) Iyunei Mishpat  665, 727 (1998)). Nevertheless, while the grant of compensation is one of the major foundations of modern expropriation law (see, for example, CA 8622/07 Rotman v. Ma'atz - Israeli National Public Works Department Ltd, paras. 65-71 of the opinion of Justice U. Vogelman (May 14, 2012)), as regards absentees resident in Judea and Samaria, the legislature has supplied no statutory arrangement to obtain compensation for the property taken from them. This further underlines the difficulty involved in applying the Absentees' Property Law in respect of them. This problem has not been ignored by the various different attorneys general over the years either. Thus, inter alia, on January 31, 2005, the Attorney General, M. Mazuz, wrote to the Minister of Finance, B. Netanyahu, who was the person responsible for the implementation of the Law (hereinafter: "the Mazuz Directive") as follows:

 

            "The absenteeism of property in East Jerusalem of residents of Judea and Samaria is of a technical character since they became absentees because of a unilateral act taken by the State of Israel for a different purpose, when both the properties and their owners were under the control of the State of Israel, and where it would appear that the purposes of the Law are not being fulfilled here. Involved are, in fact, 'attendant absentees', whose rights in their property have been denied due to the broad technical wording of the Law. Moreover, as regards residents of Judea and Samaria whose property in East Jerusalem has become absentees' property, the result is particularly harsh because applying the Law means the denial of the property without any compensation, because the Absentees' Property (Compensation) Law, 5733-1973 grants compensation only to absentees who were residents of the State of Israel at the time of its enactment" (ibid., para. 2).

 

29.       In this context it should be noted that one should be conscious of the fact that the strict implementation of the Law in regard to the residents of Judea and Samaria is also likely to lead to the property in Israel of the residents of Judea and Samaria who are Israeli nationals being regarded as "absentees' property". Thus, for example, according to this interpretation, even a property in Tel Aviv whose owner is a resident of Ariel or Beit El is vested in the Custodian. As aforesaid, in this respect the Respondents argued that the Law can indeed be understood in this way but the Custodian does not apply its provisions in such cases, just as he does not apply them in other cases of persons who lawfully move outside Israel. Let us again emphasize matters because of the extreme result that emerges from the language of the Law: any property in Israel the owner of the rights in which is a resident of Judea and Samaria is absentees' property. Hence, for example, if a debt is owed to a person who resides in Judea and Samaria by a person who resides in Jerusalem as a result of a transaction currently made between them, prima facie the debt is vested in the Custodian. Perhaps it is not superfluous to mention that this is also apt in respect of real estate in Israel of the residents of Judea and Samaria. It should also be emphasized that the Absentees' Property Law takes no interest in the religious characteristics, for example, of the "absentee" and the courts have applied its provisions to Jewish "absentees" more than once (CA 4682/92, Estate of Salim Ezra Shaya, Deceased v. Beit Taltash Ltd, IsrSC 54(5) 252, 279 (per Justice J. Kedmi) (2000)).

 

30.       In view of the said difficulties, the State authorities, under the direction of the  attorneys general, have seen fit to limit the exercise of the Custodian's powers in such cases. The chain of events in this context is described in the MazuzDirective, which was filed in the cases before us. Back in November 1968, not long after the Six Day War, it was decided in a forum headed by the Minister of Justice, under the guidance of the then Attorney General M. Shamgar, that the Law should not be implemented in respect of immovable property of residents of Judea and Samaria in East Jerusalem. Attorney General Shamgar explained the decision in the following way:

 

            "… We have not seen any practical justification for seizing property that has become absentees' property at one and the same time because its owner – who is a resident of Judea and Samaria – has become a subject under the control of the Israeli government authorities. In other words, since the property would not have been absentees' property before the date on which the IDF forces entered East Jerusalem and would not have become absentees' property had East Jerusalem continued to be part of Judea and Samaria, we have not considered it justified for the annexation of East Jerusalem, and it alone, to lead to taking the property of a person, who is not actually an absentee, but from the time his property came into our hands is in territory under the control of the IDF forces". (The letter of August 18, 1969 from Attorney General M. Shamgar to the Israel Land Administration, as cited in the Mazuz Directive).

 

            Over the years, attempts have been made to erode the said directive. In 1977, a forum headed by the Minister of Justice and the Minister of Agriculture laid down a temporary arrangement "that would be reviewed in light of the experience of its implementation". According to this arrangement, the residents of Judea and Samaria would be required to apply of their own initiative to the Custodian to continue using their property in East Jerusalem. It later became apparent that the arrangement had not actually been reviewed and that "the Law was being abused" under cover of the arrangement (the Mazuz Directive, para. 4(b); for further discussion, see the Report of the Committee for the Examination of Buildings in East Jerusalem (1992) (hereinafter:  "the Klugman Report")). The 1992 Report also described faults that had occurred in the proceedings to declare properties in East Jerusalem "absentees' property" and it stated that "the functioning of the Custodian of Absentees' Property was very flawed, by any criterion" (ibid., p. 24; see also pp. 12-13, 26). In view of that, it was recommended to make an immediate, comprehensive examination into the functioning of the Custodian. In addition, the Attorney General appointed a team to determine procedures for the exercise of the Custodian's powers (the Klugman Rport, p. 25). Further thereto it was decided to freeze the operation of the Law again and reinstate the previous policy in accordance with the 1968 directive. In 1997, the limitations that had been instituted were again eased and the Custodian was permitted to issue certificates in respect of vacant properties, with the authority of the legal adviser to the Ministry of Finance. As regards occupied properties, the authority of the Ministry of Justice was also required. According to the Mazuz Directive, it appears that only limited use of that power was actually made. In March 2000, a ministerial forum, with the participation of the Minister of Finance, the Minister of Justice and the Minister for Jerusalem Affairs, determined that any transfer of property in East Jerusalem by the Custodian to the Development Authority required approval by the said forum or such person as appointed by it in such respect. In 2004, the Ministerial Committee on Jerusalem Affairs made a decision declaring that it sought to remove all the limitations on the exercise of the Custodian's power in respect of properties in East Jerusalem. It was explained in the decision that the Custodian was vested with powers pursuant to section 19 of the Law, including to transfer, sell or lease real estate in East Jerusalem to the Development Authority (Decision no. J'lem/11 of June 22, 2004; the decision was granted the force of a government decision on July 8, 2004 (Decision no. 2207)). It should be noted that the decision was made contrary to the opinion of the Ministry of Justice and did not include in it the original proposal that the exercise of the said power would necessitate consultation with the legal adviser to the Ministry of Finance or his representative.

 

            In response, at the beginning of 2005, Attorney General M. Mazuz made it clear that the said decision could not be upheld, that it was ultra vires and not within the power and authority of the Ministerial Committee on Jerusalem Affairs. He asked the Minister of Finance to order the immediate cessation of the Law's implementation in respect of the East Jerusalem properties of Judea and Samaria residents and he expressed his opinion that there was no alternative but to reinstate the previous policy, namely to determine that "in general, use will not be made of the powers under the Law in respect of the properties under consideration, except in special circumstances and subject to prior approval by the Attorney General or such person as authorized by him for the purpose" (the Mazuz Directive, para. 6). As we have been informed in these proceedings, that position has also been adopted by the current Attorney General, Y. Weinstein, and it is also the position of the Respondents in the appeals before us (the Respondents' notification of August 28, 2013).

 

31.       Hence, there is in fact no dispute between the parties to these proceedings that the strict implementation of the Law in respect of properties in East Jerusalem, the owners of the rights in which are residents of Judea and Samaria, raises significant difficulties. This has been the opinion of the attorneys general for many years, and the Respondents do not deny it. As aforesaid, the Respondents' position is that the Law does indeed apply to East Jerusalem properties of residents of Judea and Samaria, but it is generally not to be applied in such cases. This is except in special circumstances, after obtaining authority from the Attorney General. The distinction between the application of the Law and its implementation has also found expression in the case law of this Court. Thus, in the Levy case, Deputy President Ben Porat concurred in the ruling that the Absentees' Property Law does apply to properties in East Jerusalem of the residents of Judea and Samaria. However, she noted that although those properties can be regarded as "absentees' property", the question might arise as to whether the powers of the Custodian in accordance with the Law ought to be exercised in the circumstances. This is given the fact that persons are involved are under IDF control and but for the annexation of their land for the sake of united Jerusalem, they would not have been regarded as "absentees" (ibid., p. 390). This is also consistent with the approach in the Cochrane case. As aforesaid, in that case, despite the difficulties that Justice H. Cohn saw in the broad application of the Law deriving from its sweeping wording, he did not seek to find that the Law does not apply. Instead, he explained that the solution to the cases in which the problem arises is to be found in the power granted to the administrative authorities to exclude certain parties from the application of the Law or to release absentees' property (see sections 27-29 of the Law)).

 

32.       This approach is also essentially acceptable to us. As we have detailed, it cannot be held that the Law does not apply to properties in East Jerusalem whose owners are residents of Judea and Samaria. Nevertheless, the powers that are granted by the Law in those cases should be exercised scrupulously and with extreme. In my opinion, in view of the difficulties mentioned above, it is inappropriate to exercise those powers in respect of the said properties, except in the most exceptional of situations. In addition, even where it is decided to take action in accordance with the Law – and as aforesaid, those cases ought to be exceedingly rare – the same will necessitate obtaining prior authority from the Attorney General himself, together with a decision of the Government or its ministerial committee approving the same. We thereby in fact adopt the restrictions in respect of the policy of implementing the Law that the Respondents have long been assuming. This is with the supplemental requirement that any act in accordance with the Law in respect of those properties should also be reviewed and approved by the government or a ministerial committee. Let us explain that we have considered it appropriate to entrench in case law the policy that has long been adopted, according to the Respondents, in this respect and even to make it more stringent, since experience shows that the restraints prescribed have not always been observed and in view of the repeated attempts to erode them, as aforesaid. Moreover it should be borne in mind that any decision to implement the Law in a particular case is, in any event, subject to judicial review.

 

33.       We would also note that insofar as the competent authorities believe that there is a justified need to acquire ownership of property of the type under consideration, they have available to them means other than the Absentees' Property Law that enable them to do so. Thus, for example, the Acquisition Ordinance and various provisions of the Planning and Building Law, 5725-1965 (see, for example, chapter 8 of the said Law, which concerns expropriations). Hence, the restraints that have been prescribed above do not block the way of the authorities to acquire rights in the properties under consideration by virtue of other statutory arrangements, provided that there is justification therefor, and that the conditions prescribed by law are fulfilled. Clearly, statutory tools like those mentioned are preferable to implementing the Absentees' Property Law. In other words, the Absentees' Property Law should only be applied, if at all, after all the other options under the various different expropriation statutes have been exhausted. This is in view of the problems that the Law raises and the fact that the other arrangements that we have mentioned are generally more proportionate.

 

34.       Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.

 

The Application of the Judgment in Time

 

35.       The final issue that is left for us to address is that of the of this judgment application in time. In our decision of September 11, 2013, we permitted the parties to supplement their briefs in regard to the application in time of a possible judicial finding that the Law does not apply in respect of residents of Judea and Samaria who have properties in East Jerusalem. Ultimately, our conclusion is, as aforesaid, that although the Law does apply to such properties, it is subject to very stringent restraints with regard to its exercise. Nevertheless, in view of the possible implications of our other finding that, in general, the powers under the Law should only be exercised in very exceptional cases, we think it proper to consider the application in time of this judgment (see HCJ 3514/07 Mivtahim Social Insurance Institute of the Workers Ltd v. Fiorst, para. 33 and the references there (per President (ret.) D. Beinisch) (May 13, 2012)). Although the parties' arguments related to the commencement date of a (possible) rule that the Law does not apply in the instant situations, they are still relevant to the rule laid down with regard to the way in which the Law is implemented. Consequently, we shall briefly cite the parties' main arguments on the application in time, insofar as they are relevant to the ruling that we have ultimately reached.

 

36.       The Respondents oppose the possibility that a case-law rule – if laid down – according to which the Law does not apply in respect of properties in East Jerusalem of the residents of Judea and Samaria would apply retrospectively. In their view, the practice of interpretation applied by them for many years, in accordance with the case law, should be respected. By that practice, the Custodian has been vested with many properties and he has transferred some of them to third parties over the years. According to them, at the present time it is difficult to produce accurate data on the number of properties, out of all the properties that have been transferred to the Custodian, which belong to the said category. In addition, they emphasize that various parties have relied on the said interpretation, and the Respondents also insist on the need for certainty and stability where rights in land are involved. They warn that adopting such an interpretation with retrospective application would lead to extensive litigation and might also have implications at the political level. The Appellants, for their part, reject the Respondents' position. They argue that there is nothing to stop applying a new interpretation to a statute that substantially harms a particular population merely on the ground that it was customary for many years. In addition, according to them, the position of the State authorities in this respect has not been consistent and uniform throughout the years, and at certain times it has departed from the "customary practice" asserted by the Respondents. In their view, following the judgment in the Dakak case, the practice changed and it cannot be said that a "customary regime that is clear to everyone" is involved. Moreover, the Appellants assert that the Respondents did not substantiate the plea that the rule should not be applied retrospectively, or supply any factual data in support of the argument that changing the rule of law "backwards" will infringe the interest of reliance. Furthermore, in the Appellants' opinion, under the circumstances, the interest of changing the law supersedes the interest of reliance. In this regard, they state that the amount of land involved is fixed and is not going to change, and that third parties who, by the actions of the Custodian, have enjoyed property rights that are not theirs should be deemed as unjustly enricheds.

 

37.       Having considered all the factors in this respect, we have reached the overall conclusion that the holdings of this judgment should only be applied prospectively (for a discussion on delaying the avoidance of an administrative decision and relative avoidance, see CFH 7398/09 Jerusalem Municipality v. Clalit Health Services, paras. 29 and 51 (April 14, 2015)). This is in the following sense: if by the time of the handing down of this our judgment, the competent authorities have not done any act in accordance with the Law in respect of a property in East Jerusalem whose owner is a resident of Judea and Samaria, then henceforth the powers by virtue of the Law should not be exercised, except in extraordinary cases and even then after exhausting other options, for example under the Acquisition Ordinance. If it is indeed decided to take action in accordance with the Absentees' Property Law, the same will necessitate obtaining prior authority from the Attorney General himself and also from theGovernment or its ministerial committee. As already mentioned, absentees' property is automatically vested in the Custodian from the moment that it fulfils the definition of "absentees' property", and the same does not necessitate the taking of any action by the Custodian. Consequently, the question of what is "an act in accordance with the Law" as aforesaid might arise. I mean the exercise of any power under the Law that is subject to judicial review, which has been performed by the competent authorities in, or in respect of a property, provided that there is written documentation thereof. It should be emphasized that "the requirement of writing" is a precondition for finding that a particular property is exempt from the application of the determinations in this judgment. The acts, the commission of which will lead to the conclusion that the property is subject to the previous law, will, for example, include steps to care for, maintain, repair or develop the held property, as mentioned in section 7 of the Law; moves that have been taken in the management of a business or partnership instead of the absentee (sections 8, 24, 25 of the Law); transferring the rights in the property to another, including to the Development Authority; discharging debts or performing obligations relating to absentees' property (as provided in section 20 of the Law); the Custodian's presenting written requirements in respect of the property to its owner (for example as provided in section 21(e) of the Law or section 23(c) of the Law; the issue of orders (for example of the type mentioned in section 11 of the Law); the giving of certificates (such as certificates under sections 10 and 30 of the Law); and incurring expenses and conducting legal proceedings in respect of the property. Moreover, the new rule will of course not apply to properties that constitute "held property", namely property that the Custodian actually holds, including property acquired in exchange for vested property (see section 1(g) of the Law). It should be emphasized that these are mere examples of acts in respect of properties as regards which further to their commission this judgment will not apply, and it is not an exhaustive list.

 

38.       The foregoing new requirements that are to be met henceforth will not apply where, prior to the award of the judgment, powers have already been exercised in accordance with the Absentees' Property Law in respect of particular property. In such cases, the law that applied prior to this judgment will apply. In such connection, the authorities will of course be bound by the restrictive policy that the Attorney General laid down with regard to the implementation of the Law in those cases. This means that where an act as described above has already been done in respect of a property of the type with which we are concerned, the mere fact that the new rules that we have laid down have not been performed will not be regarded as a defect, and certainly not a defect that would to lead to the avoidance of the decisions or acts that have been made or done in respect of the property. This finding is intended to contend with the concern that has been raised with regard to retroactive changes of the rules that applied to the land policy in East Jerusalem and to avoid "reopening" transactions made in respect of those properties, with the difficulties involved therein both materially and evidentially. In this context, we have taken into account the possibility that in a substantial proportion of cases, transactions that have long been completed and even "chains" of transactions will be involved. A different ruling might have led to ownership chaos, the flooding of the courts with lawsuits, the impairment of legal certainty and the infringement of a very large public's reliance interest. It should be noted that this approach is also consistent with the spirit of section 17 (a) of the Law, which provides that transactions that have been made by the Custodian in good faith in respect of property that was mistakenly regarded as vested property shall not be invalidated (for a discussion of this section, see, for example, Makura Farm, pp. 17-25; CA 1501/99 Derini v. Ministry of Finance, para. 4 (December 20, 2004); CA 5685/94 Amutat ELAD El Ir David v. Estate of Ahmed Hussein Moussa Alabsi, Deceased, IsrSC 53(4) 730 (1999), in which it was held that the Custodian had acted in an absence of good faith in respect of realty in East Jerusalem that he sold to the Development Authority, and the transaction was therefore invalid).

 

39.       In any event, the cases concerning absentees' property, in respect of which action has already been taken as aforesaid by the Custodian, should be resolved by means of "the release course" prescribed in sections 28 and 29 of the Law. The problems of implementing the Law in respect of properties of the type under consideration should also be borne in mind by the competent entity when deciding on the release of properties (see also Golan, p. 646). In other words, where it is sought to release one of the said properties to which this judgment does not apply, the Special Committee and the Custodian ought to give substantial weight to the difficulties involved in viewing them as "absentees' property", and also to the restrictive policy that is to be adopted, in accordance with which the Law is to be implemented in respect of them. Consequently, preference should be given to the release of property in specie. To complete the picture, we would mention that we have been informed by the Respondents in the hearings in these proceedings that rules have been laid down for the exercise of the Special Committee's discretion in accordance with section 29 of the Law with regard to the release of absentees' property in East Jerusalem of Judea and Samaria residents. According to them, the rules have been formulated along the lines of the Attorney General's position described above. The Respondents believe that a fitting solution will thereby be given in the majority of the cases under consideration, leaving room for the necessary flexibility in sensitive deliberations of this type. We have not considered it appropriate to relate to the actual rules that have been established, as they are not the focus of these proceedings, and bearing in mind that the power to address those matters is vested in the High Court of Justice (see Lulu, para. 8). Insofar as there are objections to the rules that have been laid down, they should be heard in the appropriate proceedings, rather than in the instant ones.

 

The Cases before Us

 

40.       Against the background of these general statements, we shall now rule on the cases before us. Implementing the findings mentioned above in the concrete cases before us leads to the conclusion that the properties under consideration do indeed constitute absentees' property. Properties are involved that are situated in the area of Israel, within the meaning of the Law, whose owners are residents of Judea and Samaria. Hence, the alternative of section 1(b)(1)(ii) of the law is fulfilled in respect of them. Consequently, the Appellants' pleas in both appeals aimed against the finding that Property 1 and Property 2 are absentees' property are dismissed.

 

            The Appellants' alternative application in CA 5931/06 is for us to order the release of Property 1 in accordance with section 28 of the Law. As a condition for exercising the power to release property, a recommendation of the Special Committee under section 29 of the Law is necessary (see also Golan, p. 641). As aforesaid, incidental to these proceedings, the Committee deliberated about the release of Property 1. According to the Respondents, the land involved in the dispute was sold to third parties on "market overt conditions" and the Custodian now only holds the proceeds of sale. The Special Committee recommended releasing the proceeds received for the property only to those of the Appellants who are residents of Judea and Samaria and still alive, and supplemental particulars in respect of the Appellants who have died were requested. As already mentioned, the way in which the Committee's powers have been exercised is subject to review by the High Court of Justice rather than this Court sitting as a court of civil appeals (Lulu, para. 8). Hence, insofar as the Appellants in CA 5931/06 have complaints with regard to the Special Committee's decision, the instant proceedings are not the appropriate forum. In any event, and without making any ruling, we would comment that, under the circumstances, it appears that ruling on the rights in Property 1 necessitates factual enquiry and the consideration of legal questions that were not decided in the judgment of the District Court or argued before us. That being the case, the application to order the release of the property involved in CA 5931/06 is dismissed.

 

            The Appellants in CA 2038/09 have applied for us to order the avoidance of Property 2's seizure and its restitution to them, inter alia in view of their arguments in respect of the Respondents' conduct in the case. As aforesaid, from the moment that a property fulfils the conditions for being "absentees' property", the rights in it are vested in the Custodian, including the power to seize the property. Having determined that "absentees' property" is involved it can only be returned to its original owners in the ways delineated in the Law, with the emphasis on the possibility of release under sections 28-29 of the Law. We would mention that the Special Committee also deliberated upon the release of Property 2. The Committee recommended the release of the parts of the property that had not been seized for the construction of the security fence, and to transfer the consideration for the part seized to the Appellants, who are residents of Judea and Samaria and, according to it, those who held it continuously until its seizure. In accordance with the foregoing, insofar as the Appellants in CA 2038/09 have complaints in such respect or with regard to the seizure of the property for the construction of the fence, the the instant proceedings are not the appropriate forum. Such being the case, the Appellants' application in CA 2038/09 that we order the avoidance of the seizure of the property involved in the appeal and its restoral to them is dismissed.

 

Conclusion

 

41.       Accordingly, my opinion is that there is no alternative but to conclude that the Absentees' Property Law applies to properties in East Jerusalem owned by residents of Judea and Samaria who enjoy or hold them. This is despite the considerable problem raised by treating them as "absentees' property". In this context, we should be conscious of the fact that the strict implementation of the Law's provisions to residents of Judea and Samaria is also likely to lead to serious results as regards residents of Judea and Samaria who are Israeli nationals, whose property in Israel is prima facie regarded as "absentees' property". Alongside this, the substantial difficulties are of significance in the context of exercising the powers under the Law in respect of such property. Consequently, I would suggest to my colleagues to find that the competent authorities must, in general, refrain from exercising the powers by virtue of the Law in respect of the properties under consideration. As such, I have not considered it appropriate to seal the fate of such property and prevent any possibility of implementing the Law in regard to that property. Our assumption is that there may be cases, albeit exceedingly rare, in which it might be justified to take such steps in respect of properties in East Jerusalem of the residents of Judea and Samaria. In those cases, the performance of any act in accordance with the Law will necessitate obtaining prior approval from the Attorney General himself and a decision of the Government or its ministerial committee. This amounts to the adoption of the restrictive policy assumed by the Respondents over the years, with a certain stringency in the form of adding the requirement for the Government's approval. This judgment, and in particular the finding with regard to the restrictions obliged when exercising the powers by virtue of the Law in respect of such property, will only apply prospectively, in the following sense:

 

            (a)       If by the time of the handing down of this judgment, the competent authorities have not done any act by virtue of the Absentees' Property Law in respect of a particular property in East Jerusalem owned by a resident of Judea and Samaria, the findings prescribed in this judgment will apply. Accordingly, the authorities will not be able to take steps in accordance with the Law in respect of the property without the prior authority of the Attorney General and without the approval of the Government or its ministerial committee. In mentioning an "act by virtue of the Law" we mean any act that is subject to judicial review and an act in accordance with the Law, like in the non-exhaustive list of acts contained in para. 37 above, provided always that there is written documentation.

 

            (b)       These requirements will not apply in cases where, prior to this judgment, acts in accordance with the Law were done by the competent authorities in respect of property in East Jerusalem owned by a resident of Judea and Samaria. In those cases, the previous law will apply, including the restrictive rules that have been laid down by the Attorney General in respect of the exercise of the said powers. This means that non-performance of the new conditions that we have just prescribed will not, per se, be regarded as a defect in the administrative act, and will not be such as, per se, to lead to the avoidance of the steps taken in respect of the property or to the "reopening" of transactions already made in respect of it. In such cases, the way is open to release the absentees' property along the course prescribed in sections 28-29 of the Law. When the competent authorities come to decide on the release of such properties, they must take into account the great problem involved in those properties being "absentees' property".

 

42.       In the cases before us, I would suggest to my colleagues that we dismiss the appeals. Under the circumstances, there shall be no order for costs.

 

Justice S. Joubran

 

1.         I agree with the thorough and comprehensive opinion of my colleague, President (ret.) A. Grunis, but would like to add a few words on the application of the Basic Laws as a tool in the interpretation of old legislation. In my opinion, a ruling similar to that of my colleague the President (ret.) could have been reached by an interpretation of old legislation "in the spirit of the Basic Laws", as I shall explain below, and as my colleague Deputy President E. Rubinstein has detailed in his opinion in these proceedings.

 

2.         In my view, the Basic Laws give the judge an appropriate tool of interpretation when questions of interpretation in respect of the provisions of law arise. The Validity of Laws provision in section 10 of Basic Law: Human Dignity and Liberty provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". That is to say that so long as there was existing law prior to the commencement of the Basic Laws, its validity is preserved. However, in my opinion, it is not to be inferred from that provision that the Basic Laws are not to be used as a tool for the interpretation of existing law when that law is not clear and its validity is in any event dubious. The Basic Laws have given our legal system an arrangement of fundamental principles, which I believe can, and frequently should, be referred to when we are reviewing the proper interpretation or legal policy.

 

3.         Using the Basic Laws as an interpretive tool can, in my opinion, give substance to the principles and rights that are under consideration in existing legislation, and properly analyze the balance between them. I believe that such will not impair the validity of the existing law but will conceptualize their substance in a more balanced and organized discourse (cf. CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589, paras. 7-12 of the opinion of Justice M. Cheshin (1995) (hereinafter: Ganimat)). So too, for example, Basic Law: Freedom of Occupation distinguishes between the validity of provisions of legislation and the interpretation of the provisions that "will be made in the spirit of the provisions of this Basic Law" (section 10 of Basic Law: Freedom of Occupation). According to Justice (as he then was) A. Barak, this is obliged as an interpretive conclusion in the context of Basic Law: Human Dignity and Liberty even without an express provision (and see: Ganimat, para. 6 of the opinion of Justice A. Barak). In this respect, his statement there is apt:

 

            "The constitutional status of the Basic Law radiates to all parts of Israeli law. This radiation does not pass over the old law. It, too, is part of the State of Israel's law. It, too, is part of its fabric. The constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well. In truth, the validity of the old law is preserved. The radiation of the Basic Law upon it is therefore not as strong as it is upon new law. The latter might be avoided if it is contrary to the provisions of the Basic Law. The old law is protected against avoidance. It has a constitutional canopy that protects it. However the old law is not protected against a new interpretative perspective with regard to its meaning. Indeed, with the enactment of the Basic Laws on human rights there has been a material change in the field of Israeli law. Every legal sapling in that field is influenced by that change. Only in that way will harmony and uniformity be achieved in Israeli law. The law is a set of interrelated tools. Changing one of those tools affects them all. It is impossible to distinguish between old and new law as regards the interpretative influences of the Basic Law. Indeed, all administrative discretion that is granted in accordance with the old law should be exercised along the lines of the Basic Laws; all judicial discretion that is granted in accordance with the old law should be exercised in the spirit of the Basic Laws; and in this context, every statutory norm should be interpreted with the inspiration of the Basic Law" (Ganimat, para. 7 of the opinion of Justice A. Barak).

 

            My view is similar to that of Justice A. Barak and I believe, as aforesaid, that in the event that a question of interpretation arises in respect of the provisions of the law, recourse should be made to the Basic Laws, and inspiration drawn from them. In his opinion, my colleague the President (ret.) did not consider the said interpretative approach (and see para. 34 of his opinion, above) but since in the instant case we still reach a similar ruling by his method, I shall add my voice to his opinion.

 

4.         Together with all the foregoing, I concur with the opinion of my colleague President (ret.) A. Grunis.

 

Justice Y. Danziger

 

            I concur in the opinion of my colleague President (ret.) A. Grunis, who proposes to dismiss the appeals before us without any order for costs.

 

            Like my colleague, I too believe that, as a rule, the competent authorities should avoid exercising the powers by virtue of the Absentees' Property Law, 5710-1950 in respect of properties in East Jerusalem whose owners are residents of Judea and Samaria and hold or enjoy them.

 

            As regards those exceptional cases – "exceedingly rare" as my colleague defines them – when there might be justification for exercising the power, I concur with the solution proposed by my colleague, according to which the exercise of the power should be conditional upon obtaining prior approval from the Attorney General, accompanied by an approbative decision of the Government or its ministerial committee.

 

            I therefore concur in the opinion of my colleague, including his findings with regard to the prospective application of the restraints therein, as set out in paras. 41(a) and (b) of his opinion.

 

President M. Naor

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis. In my opinion, it is very doubtful whether there can, in fact, be an "exceedingly rare" case, in the words of my colleague, where it will be justified to implement the Law in respect of properties in East Jerusalem of the residents of Judea and Samaria.

 

2.         I would explain that in my view, even someone whose case has already been considered in the past by the Special Committee is entitled to apply to it again further to the fundamental observations in this judgment. As my colleague has noted, its decision is subject to review by the High Court of Justice.

 

Deputy President E. Rubinstein

 

A.        I accept the result reached by my colleague President (ret.) A. Grunis in his comprehensive opinion. This is a complex issue which involves the intricacies of the political situation in our region for which a solution has unfortunately not yet been found, and it touches on other issues involved in the dispute with our neighbors, including the refugee question, which is one of the most difficult issues, and the definition of "absentees' property" has a certain relevance thereto. As evidence of this is the fact that, over the years, various different parties have considered the matter, including attorneys general, as my colleague described, and they have sought a modus operandi that will be as fair as possible to all those concerned. That is to say that they will not go into the delicate political issues that go beyond the legal action but will be cautious and moderate in the operative implementation of legal absenteeism; and as my colleague now proposes, the same should only be with the approval of the Attorney General and the Government or a ministerial committee. That is to say that it will be considered very carefully.

 

B.        An example of the complexity and intricacy involved in the matter of absenteeism, which generally awaits the end of the dispute, is the need that arose when the peace agreement with Jordan was made in 1994 (and I would duly disclose that I headed the Israeli delegation in the negotiations on the peace agreement with Jordan) to enact the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995. The Law dealt with various matters, but section 6 prescribed as follows:

 

            "(a)     Notwithstanding as provided in the Absentees' Property Law, 5710-1950, with effect from Kislev 7, 5755 (November 19, 1994) property shall not be considered absentees' property merely because of the fact that the owner of the right thereto was a citizen or national of Jordan or was in Jordan after the said date.

 

            (b)       The provision of subsection (a) shall not alter the status of property that became absentees' property in accordance with the said Law prior to the date specified in subsection (a)"

 

            (See CA 4630/02 Custodian of Absentees' Property v. Abu Hatum (2007), para. K, which my colleague also cited.)

 

            Note that in section 6(b), as quoted above, it was provided that "the watershed" for the changes was the date of the peace agreement and no change was made to what preceded it; and in the explanatory notes on section 6 (Draft Laws 5755, 253), it was stated that "the status of properties that were absentees' property before the peace agreement will not alter". Section 6 therefore resolved difficulties that might have arisen in accordance with the legal position existing after making the peace agreement but not in respect of the past – "what was, will be" until times change. So too, mutatis mutandis, in the instant case, cautiously and moderately.

 

C.        I would also concur in principle with the observation of my colleague Justice S. Joubran with regard to the use of the Basic Laws on rights as a tool for the interpretation of the legislation to which the Validity of Laws provision in Basic Law: Human Dignity and Liberty (section 10 of the Basic Law) applies. It provides that "this Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law". Basic Law: Human Dignity and Liberty has been with us for more than two decades. During that period, this Court has time and again repeated the rule laid down in Ganimat to which my colleagues have referred, to the effect that "the constitutional radiation that stems from the Basic Law affects all parts of Israeli law. It necessarily influences old law as well" (para. 7 of the opinion of Justice (as he then was) A. Barak; see also A. Barak, “Basic Laws and Fundamental Values – the Constitutionalisation of the Legal System Further to the Basic Laws and its Effects on Criminal Law,” in Selected Writings I 455, 468-469 (5760) (Hebrew)).

 

D.        Further thereto, this principle has been applied in the interpretation of ordinances, statutes and regulations that predate the Basic Law. Thus, for example, it has been held that the Contempt of Court Ordinance (1929) and the Religious Courts (Enforcement of Obedience) Law, 5716-1956 should be interpreted "in light of the provisions of the Basic Law", MCA 4072/12 Anonymous v. Great Rabbinical Court, para. 24 of the opinion of Justice Zylbertal (2013); so too the Crime Register and Rehabilitation of Offenders Law, 5741-1981 (CFH 9384/01 Nasasreh v. Israel Bar, IsrSC 59(4) 637, 670 (2004); The Execution Law, 5727-1967 (CA 9136/02 Mr. Money Israel Ltd v. Reyes, IsrSC 58(3) 934, 953 (2004); The Protection of Privacy Law, 5741-1981 (HCJ 8070/98 Association for Civil Rights in Israel v. Ministry of the Interior, IsrSC 58(4) 842, 848 (2004); the Defence (Emergency) Regulations 1945 (HCJ 8091/14 Center for the Defence of the Individual v. Minister of Defense, paras. 18 and 27 (2014); and so on and so forth. This is ethically anchored in what, in a different context, I happened to call "the spirit of the age" (AA 5939/04 Anonymous v. Anonymous, IsrSC 59(1) 665 (2004)), that is to say, giving case-law expression to the social developments in various spheres.

            It should be emphasized that this has also been laid down concretely with regard to the right of property, which stands at the center of the instant case. In fact, even before the well-known finding of Justice Barak in Ganimat, and even prior to the "constitutional revolution" in CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village, IsrSC 49(4) 221 (1995) [http://versa.cardozo.yu.edu/opinions/united-mizrahi-bank-v-migdal-cooper..., Justice – as he then was – S. Levin held as follows: "With the enactment of Basic Law: Human Dignity and Liberty the normative weight of the right of property has risen to the position of a fundamental right. The provision in section 3 of the said Law that 'there shall be no infringement of a person's property' also carries weight when we come to interpret existing provisions of law…" (ALA 5222/93 Block 1992 Building Ltd v. Parcel 168 in Block 6181 Company Ltd, para. 5 (1994); and see also A. Barak, Legal Interpretation, volume III – Constitutional Interpretation, 560-563 (5754) (Hebrew); S. Levin, The Law of Civil Procedure (Introduction and Fundamentals), 33-35 (second edition, 5768-2008) (Hebrew)).

 

E.         And now to the case before us. There can be no question that the language of the Absentees' Property Law, 5710-1950 is not consistent with the right of property in section 3 of Basic Law: Human Dignity and Liberty. That infringement is, in the instant case, compounded by section 2 of the Absentees' Property (Compensation) Law, 5733-1973, which, as the President (ret.) stated, does not permit residents of the territory of Judea and Samaria to claim compensation for the properties that have been transferred to the Custodian of Absentees' Property. Indeed, under the provision of section 10 of the Basic Law we do not set upon a review of the constitutionality of the infringement: whether it is consistent with the values of the State of Israel, whether it is for a proper purpose and whether it is proportional (section 8 of the Law); and my colleague discussed at length the purpose of the Law and its answer to a complex problem that has not yet been resolved, but it can be said that what is called the "right of return" argument, with all its extensive derivatives, cannot be resolved by judicial interpretation. At the Camp David Summit in 2000, I was a member of the Israeli delegation and chaired the subcommittee that dealt with the subject of the refugees, and there was no doubt in Israel's position (which was also supported by the USA) that denied the very basis of that right as being "national suicide". Indeed, based on the case law that the Court has restated numerous times as aforesaid, the provisions of the relevant statute are to be interpreted in accordance with Basic Law: Human Dignity and Liberty. In the instant case, it appears that my colleague the President, despite not expressing an opinion on interpretation along the lines of the Basic Law in accordance with that stated in Ganimat, did in fact draw, what in my opinion is, a proper balance in accordance with the Basic Law when he determined the application of the Absentees' Property Law to the properties involved herein, and that in the instant circumstances, limited use should be made of the Absentees' Property Law, subject to various authorizations and approvals, and after the options included in other statutes have been exhausted (para. 33 of the President's opinion). I have considered it proper to add the foregoing in order to emphasize the importance of the determination in Ganimat and the scope of its application.

 

F.         Given the foregoing, I therefore concur in the opinion of my colleague President (ret.) A. Grunis, which balances between not upsetting a complex legal position, on the one hand, and great caution on the other, by means of a dual safety belt in operative decisions concerning the implementation of the Law in individual circumstances.

 

Justice H. Melcer

 

1.         I concur in the opinion of my colleague President (ret.) A. Grunis and with the remarks of my colleagues. Nevertheless, I am allowing myself to add a few comments of my own.

 

2.         My colleague President (ret.) A. Grunis writes in para. 20 of his opinion, inter alia, as follows:

 

            "In my opinion, it is certainly possible that at least some of the arrangements in the Law (the Absentees' Property (Compensation) Law, 5733-1973 – my clarification – H. Melcer), were they enacted today, would not meet the constitutional criteria. Nevertheless, in the instant case, the provisions of the limiting paragraph are not such as to help or to alter the conclusion with regard to the application of the Law in the cases under consideration here. This is in view of the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty, according to which the Basic Law does not affect the validity of any law that existed prior to its entry into force. This provision does not make it possible to find that any provision of the Law is void ".

 

            In para. 34 of his opinion President (ret.) A. Grunis goes on to say, in respect of the conclusions reached by him:

 

            “Prima facie, a ruling similar to that reached by us could also have been reached by the course delineated in the Ganimat case, that is to say by adopting a new approach to the interpretation of the Absentees' Property Law along the lines of the Basic Laws, despite the Validity of Laws rule in section 10 of Basic Law: Human Dignity and Liberty. However, since the determinations with regard to the Absentees' Property Law and its interpretation do not depend upon the Basic Law, there is no need to consider a move based on section 10 as aforesaid (see HCJ 7357/95 Barki Feta Humphries (Israel) Ltd v. State of Israel, IsrSC 50(2) 769, 781 (per Justice M. Cheshin) (1996)). As aforesaid, my decision does not relate to the constitutional aspect or the validity of the provisions of the Absentees' Property Law, but is at the administrative level concerning the way in which the powers by virtue thereof are exercised. Incidentally, it should to be noted that human rights existed before the Basic Laws, and those rights are, in my opinion, more than sufficient to lead to the conclusion that we have reached.”

 

 

            Although it was not necessary in all the circumstances herein specifically to consider a move based on section 10 of Basic Law: Human Dignity and Liberty, the same was possible, and it also supports the result and is even proper, as was stated by my colleagues: Deputy President E. Rubinstein, Justice S. Joubran and Justice E. Hayut.

 

            Prof. Aharon Barak recently developed an approach of this type in the interpretation given by him to section 10 of the said Basic Law in his paper, Validity of Laws (an article that is due to be published in the Beinisch Volume – hereinafter referred to as "Validity of Laws"). Further to Prof. Barak's said article, I too stated in my opinion in FH 5698/11 State of Israel v. Mustfafa Dirani (January 15, 2015), as follows:

 

            "Even if the 'Validity of Laws' section contained in Basic Law: Human Dignity and Liberty did apply here, in my opinion that does not mean that the law that has been assimilated as aforesaid, has been "frozen" and it can certainly be altered (according to its normative source and the power to do so) by interpretation or 'adaptation' to the normative environment that has been created further to the values of the Basic Laws, or due to changing times in the world (especially in a case such as this, which involves the war on terror), because 'validity is one thing and meaning is another', see HCJ 6893/05 MK Levy v. Government of Israel, IsrSC 59(2) 876, 885 (2005). In such a case, the "adaptation" or "alteration" should have regard to the 'respect provision' contained in section 11 of Basic Law: Human Dignity and Liberty, and the 'limiting paragraph' of the said Basic Law. See Aharon Barak Human Dignity, The Constitutional Right and Its 'Daughter' Rights, volume I, 392-396 (5774-2014) (Hebrew); Barak, Validity of Laws, the text at footnote 23, and also page 24 ibid. Along these lines, one should also read the development, made by my colleague the President, of the rule that the lawsuit of an enemy national should not be tried by 'adapting it' to the present day and the necessary war on terror, in accordance with the requirements of section 8 of Basic Law: Human Dignity and Liberty" (ibid., para. 16).

 

3.         The practical difference between the foregoing two courses is of importance with regard to the future (in respect of the present, both ways lead to the same result, as aforesaid).

 

            The constitutional course, just like the international-law course, might perhaps in future – if peace settlements are reached with our neighbors – open a way to special arrangements at various different levels on a reciprocal basis, including mutual compensation, as part of a broader package, in view of "the regulatory takings" (to use the American terminology), and the taking of Jewish property in similar circumstances in Arab countries. A somewhat similar process was given expression in legislation further to the making of the peace agreement with Jordan in 1994, of which my colleague the Deputy President, Justice E Rubinstein was one of the architects (see the Implementation of the Peace Agreement Between the State of Israel and the Hashemite Kingdom Law, 5755-1995), and also in some of the countries of Eastern Europe after the changes of regime that occurred there.

 

            Section 12 of the Prescription Law, 5718-1958 (hereinafter: "the Prescription Law”) may be relevant in this respect in the appropriate conditions and with reciprocity. It provides as follows:

 

"In calculating the period of prescription, any time during which the plaintiff was the guardian or ward of the defendant shall not be taken into account".

 

            Also relevant are other provisions of the Prescription Law – section 14 of the statute (which specifically mentions property vested in the Custodian of Absentees' Property in the definition of "party"), and also section 16 of the same law which talks of extending the prescription period after the interruption has ended – in the instant case, according to sections 12 and 14 of the Prescription Law. (For an interpretation of the said sections, see Tal Havkin, Prescription, 213-216, 221-227, 239-240 (2014)(Hebrew)).

 

4.         In conclusion, I would say that the future and the hope that it embodies for peace settlements at this stage raise nothing more than expectations, while the present unfortunately dictates, at most, the legal result that my colleague President (ret.) A. Grunis has presented, in which we have all concurred.

 

Justice E. Hayut

 

1.         I concur in the judgment of my colleague President (ret.) A. Grunis and also the comment by my colleague Deputy President M. Naor, who casts great doubt with regard to the very existence of an "exceedingly rare" case that would justify the implementation of the Absentees' Property Law, 5710-1950, in respect of properties in East Jerusalem that belong to residents of Judea and Samaria. I also share her approach that persons whose case has been considered by the Special Committee in the past should be permitted to apply to it again to review their case in accordance with the principles that have been delineated in this judgment.

 

2.         The examples presented by my colleague President (ret.) A. Grunis in para. 18 of his opinion well illustrate the great difficulty raised by the Law because of its broad scope, alongside the great problems that arise at the international and administrative law levels with regard to its application in cases like those before us (see para. 28 of my colleague President (ret.) A. Grunis's opinion). These difficulties have led us to choose the course of "a rule that is not to be taught"[2] or, to be more precise, "a statute that is not to be taught". This course is perhaps an inevitable necessity given the rigid statutory position that currently exists (cf. Attorney General Directive No. 50.049 of January 1, 1972 with regard to the filing of indictments for an offence of homosexuality in accordance with section 152 of the Criminal Code Ordinance, 1936. Also compare Crim.App. 4865/09 Adv. Avigdor Feldman v. Tel Aviv District Court, paras. 7-8 (July 9, 2009)), but it is important to emphasize that it, too, raises considerable problems because in countries such as ours where the rule of law applies, the provisions of law and the values that the State seeks to apply and enforce are expected to be compatible.

 

3.         Finally, I would concur with the comments of my colleagues Justice S. Joubran, Justice E. Rubinstein and Justice H. Melcer as regards the principles of interpretation to be applied in respect of the legislation that preceded the Basic Laws to which the Validity of Laws provision applies (see, for example, section 10 of Basic Law: Human Dignity and Liberty). These principles of interpretation were considered by this Court in CFH 2316/95 Ganimat v. State of Israel, IsrSC 49(4) 589 (1995), since when it has applied them again in its rulings more than once. In the instant case, my colleague President (ret.) A. Grunis, has, in his own way, reached a result that is consistent with these principles of interpretation, and I have therefore seen no need to expand on the matter.

 

            Decided unanimously as stated in the opinion of President (ret.) A. Grunis.

 

            Given this 26th day of Nissan 5775 (April 15, 2015)

 

 

 

 

 

The President (ret.)

The President

The Deputy President

 

 

 

 

 

Justice

Justice

Justice

Justice

 

 

           

 

 

           

 

                                                                                                                       

 

[1]       Translator’s note: The  Hebrew version of the Absentees' Property Law uses the term "Eretz Israel" (the Land of Israel) which refers, at least in this context, to the territory that became the State of Israel, the West Bank and the Gaza Strip after the 1948 War of Independence. The authorized translation of the Law, prepared at the Ministry of Justice, upon which this translation is based, translates the terms "Eretz Israel" as "Palestine" and "Eretz Israeli" as "Palestinian".

[2] Translators note: A talmudic concept, see, e.g: Babylonian Talmud, Tractate Shabbat 12b; Tractate Eiruvin 7a; Tractate Bava Kama 30b.

Full opinion: 

A v. State of Israel

Case/docket number: 
CrimA 6659/06
Date Decided: 
Wednesday, June 11, 2008
Decision Type: 
Appellate
Abstract: 

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

 

Appeals challenging the decisions of the District Court who upheld the legality of the appellants’ arrests under the Internment of Unlawful Combatants Law 5762-2002 (hereinafter: the Act.) We are concerned with the private case of the appellants, residents of the Gaza Strip, who in 2002-2003 were arrested in an administrative arrest under the security legislation that applies in the strip, when as a result of the end of the military rule there in September 2005, the Chief of the General Staff issued the appellants’ arrest warrants under the Act. The Appeals raise general issues as to the interpretation of the Act and its compliance with humanitarian international law and as to the legality of its arrangements.

 

The Supreme Court (in a decision by President Beinisch and joined by Justices Procaccia and Levi) rejected the appeals and held that:

 

The Act authorizes State authorities to arrest “Unlawful Combatants” – whoever take part in warfare or are part of a force executing warfare activity against the State of Israel, and who do not meet the conditions to be given the status of war prisoners. The objective of the Act is to prevent such persons’ return to combating Israel; it does not apply to innocent civilians and it must be interpreted, as much as possible, according to international law. The Act’s arrest provisions must be examined with the attempt to realize the provisions of Basic Law: Human Dignity and Liberty as much as possible. The Act’s arrest authorities severely and extensively infringe an arrested person’s personal liberty, which is justified under the appropriate circumstances to protect the State’s security. However, in light of the extent of the infringement and the extremity of the arrest tool, the infringement upon liberty rights must be interpreted as narrowly as possible, so that it is proportional to achieving only the security purposes. The Act must be interpreted in a manner that complies as much as possible with the international law norms to which Israel is obligated, but according to the changing reality as result of terror.

 

The Act includes a mechanism of administrative arrest that is carried out under a warrant by the Chief of General Staff. Administrative arrest is contingent upon the existence of a cause for arrest that is a result of the arrested person’s individual dangerousness to the security of the State, and its purpose is preventative. The State must demonstrate through sufficient administrative evidence that that arrested person is an “unlawful combatant” insofar that he took significant part, directly or indirectly, in contributing to warfare, or that the arrested person was a member of an organization that carries out warfare activity and then to consider his link and contribution to the organization’s warfare activity, in a broad sense. Only after proving meeting the definition above may the State make use of the presumption in section 7 of the Act whereby releasing the arrested person would harm the security of the State, so long as it is not proven otherwise.

 

The right to personal liberty is a constitutional right. However, it is not absolute and infringing it may be required in order to protect other public essential interests. The Court must consider whether the infringement upon the right to personal liberty is consistent with the conditions of the Limitations Clause of section 8 of Basic Law: Human Dignity and Liberty, when it should be remembered that the Court does not easily strike down legal provisions. Under the circumstances, the extent of the infringement of the constitutional right to personal liberty is significant and severe. But the purpose of the Act, in light of a reality of daily terrorism is worthy, and therefore the legislature should be granted a relatively wide range of maneuvering in electing the appropriate means to realize the legislative intent. Considering this and additional factors, the Act meets the proportionality tests. Therefore the Act’s infringement upon the constitutional right to personal liberty is not to an extent beyond necessary, so that the Act meets the conditions of the Limitations Clause and there is no constitutional cause to intervene in it.

 

Israel should not have released the appellants, being residents of a liberated occupied territory, when the military rule in the Strip ended because the personal danger they pose continued in light of the ongoing warfare against the State of Israel. As for the individual incarceration warrants lawfully issued against the appellants, then the evidence reveals their tight connection with Hezbollah, their individual dangerousness was proven even without relying on the presumption in section 7 of the Act. There is no place to revoke the incarceration warrants. 

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

 

 

CrimA 6659/06

CrimA 1757/07

CrimA 8228/07

  CrimA 3261/08

 

1 . A

2.  B

v

State of Israel

 

 

The Supreme Court sitting as the Court of Criminal Appeals

[5 March 2007]

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

 

 

Appeals of the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) on 16 July 2006, 19 July 2006, 13 February 2007 and 3 September 2007, and the decision of the Tel-Aviv-Jaffa District Court (Justice D. Rozen) on 20 March 2008.

 

Legislation cited:

Internment of Unlawful Combatants Law, 5762-2002

Emergency Powers (Detentions) Law, 5739-1979

 

Israel Supreme Court cases cited:

[1]        CrimFH 7048/97 A v. Minister of Defence [2000] IsrSC 44(1) 721.

[2]        HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[3]        HCJ 9098/01 Ganis v. Ministry of Building and Housing [2005] IsrSC 59(4) 241; [2004] IsrLR 505.

[4]        HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel (2006) (unreported).

[5]         HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [1983] IsrSC 37(4) 785.

[6]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[7]        HCJ 7015/02 Ajuri v. IDF Commander in West Bank [2002] IsrSC 56(6) 352; [2002-3] IsrLR 83.

[8]        HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(2) 349; [2002-3] IsrLR 173.

[9]        HCJ 7957/04 Marabeh v. Prime Minister of Israel [2006] IsrSC 60(2) 477; [2005] (2) IsrLR 106. 

[10]      HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior (2006) (not yet reported); [2006] (1) IsrLR 442.

[11]      HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [2002] IsrSC 56(5) 834.

[12]      HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [2006] (1) IsrLR 260.

[13]      HCJ 9132/07 Elbassiouni v. Prime Minister (2008) (unreported).

[14]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[15]      HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247.

[16]      HCJ 11026/05 A v. IDF Commander (2005) (unreported).

[17]       CrimA 3660/03 Abeid v. State of Israel (2005) (unreported).

[18]      HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures (2003) (unreported).

[19]      HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[20]      HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior (2005) (unreported).

[21]      CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) (2001) (unreported).

[22]      HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[23]      CrimA 4596/05 Rosenstein v. State of Israel (2005) (unreported); [2005] (2) IsrLR 232.

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

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

[26]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

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

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

[29]      HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[30]      HCJ 5627/02 Saif v. Government Press Office [2004] IsrSC 58(5) 70; [2004] IsrLR 191.

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

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

[33]      HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [1998] IsrSC 52(2) 433.

[34]      AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[35]      HCJ 2967/00 Arad v. Knesset [2000] IsrSC 54(2) 188.

[36]      CrimApp 8780/06 Sarur v. State of Israel (2006) (unreported).

[37]      HCJ 403/81 Jabar v. Military Commander [1981] IsrSC 35(4) 397.

[38]      HCJ 102/82 Tzemel v. Minister of Defence [1983] IsrSC 37(3) 365.

[39]      ADA 4794/05 Ufan v. Minister of Defence (2005) (unreported).

[40]      ADA 7/94 Ben-Yosef v. State of Israel (1994) (unreported).

[41]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[42]      HCJ 5445/93 Ramla Municipality v. Minister of the Interior [1996] IsrSC 50(1) 397.

[43]        HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [1998] IsrSC 52(1) 75.

[44]      HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801.

[45]      ADA 334/04 Darkua v. Minister of the Interior [2004] IsrSC 58(3) 254.

[46]      HCJ 4400/98 Braham v. Justice Colonel Shefi [1998] IsrSC 52(5) 337.

[47]      HCJ 11006/04 Kadri v. IDF Commander in Judaea and Samaria (2004) (unreported).

[48]      CrimApp 3514/97 A v. State of Israel (1997) (unreported).

[49]      HCJ 5994/03 Sadar v. IDF Commander in West Bank (2003) (unreported).

[50]      CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006]  (unreported), 2006 (1) IsrLR 320.

[51]      HCJ 3412/93 Sufian v. IDF Commander in Gaza Strip [1993] IsrSC 47(2) 843.

[52]      HCJ 6302/92 Rumhiah v. Israel Police [1993] IsrSC 47(1) 209.

[53]         HCJ 2901/02 Centre for Defence of the Individual v. IDF  Commander in West Bank [2002] IsrSC 56(3) 19.

[54]    CrimA 1221/06 Iyyad v. State of Israel (2006) (unreported).

 

 

For the appellants - H. Abou-Shehadeh

For the respondent - Z. Goldner, O.J. Koehler, S. Nitzan, Y. Roitman.

 

JUDGMENT

 

President D. Beinisch:

Before us are appeals against the decisions of the Tel-Aviv-Jaffa District Court (Justice Z. Caspi), in which the internment of the appellants under the Internment of Unlawful Combatants Law, 5762-2002 (hereinafter: "the Internment of Unlawful Combatants Law" or "the Law") was upheld as lawful. Apart from the particular concerns of the appellants, the appeals raise fundamental questions concerning the interpretation of the provisions of the Internment of Unlawful Combatants Law and the extent to which the Law is consistent with international humanitarian law, as well as the constitutionality of the arrangements prescribed in the Law.

The main facts and sequence of events

1.  The first appellant is an inhabitant of the Gaza Strip, born in 1973, who was placed under administrative detention on 1 January 2002 by virtue of the Administrative Detentions (Temporary Provision) (Gaza Strip Region) Order (no. 941), 5748-1988. The detention of the first appellant was extended from time to time by the Military Commander and upheld on judicial review by the Gaza Military Court. The second appellant is also an inhabitant of Gaza, born in 1972, and he was placed under administrative detention on 24 January 2003 pursuant to the aforesaid Order. The detention of the second appellant was also extended from to time and reviewed by the Gaza Military Court.

On 12 September 2005 a statement was issued by the Southern District Commander with regard to the end of military rule in the region of the Gaza Strip. On the same day, in view of the change in circumstances and also the change in the relevant legal position, internment orders were issued against the appellants; these were signed by the Chief of Staff by virtue of his authority under s. 3 of the Internment of Unlawful Combatants Law, on which the case before us focuses. On 15 September 2005 the internment orders were brought to the notice of the appellants. At a hearing that took place pursuant to the Law, the appellants indicated that they did not wish to say anything, and on 20 September 2005 the Chief of Staff decided that the internment orders under the aforesaid Law would remain in force.

2.  On 22 September 2005 a judicial review hearing began in the Tel-Aviv-Jaffa District Court (Justice Z. Caspi) in the appellants' case. On 25 January 2006 the District Court held that there had been no defect in the procedure of issuing internment orders against the appellants, and that all the conditions laid down in the Internment of Unlawful Combatants Law were satisfied, including the fact that their release would harm state security. The appellants appealed this decision to the Supreme Court, and on 14 March 2006 their appeal was denied (Justice E. Rubinstein). In the judgment it was held that the material presented to the court evinced the appellants' clear association with the Hezbollah organization, as well as their participation in acts of combat against the citizens of Israel prior to their detention. The court emphasized in this context the personal threat presented by the two appellants and the risk that they would resume their activities if they were released, as could be seen from the material presented to the court.

3.  On 9 March 2006 the periodic judicial review pursuant to s. 5(c) of the Law began in the District Court. In the course of this review, not only were the specific complaints of the appellants against their internment considered, but also fundamental arguments against the constitutionality of the Law, in the framework of an indirect attack on its provisions. On 16 July 2006 the District Court gave its decision with regard to the appellant's specific claims. In this decision it was noted that from the information that was presented to the court it could be seen that the appellants were major activists in the Hezbollah organization who would very likely return to terrorist activities if they were released now, and that their release was likely to harm state security. On 19 July 2006 the District Court gave its decision on the fundamental arguments raised by the appellants concerning the constitutionality of the Law. The District Court rejected the appellants' argument in this regard too, and held that the Law befitted the values of the State of Israel, its purpose was a proper one and its violation of the appellants' rights was proportionate. The court said further that in its opinion the Law was also consistent with the principles of international law. The appeal in CrimA 6659/06 is directed at these two decisions of 16 July 2006 and 19 July 2006.

On 13 February 2007 the District Court gave a decision in a second periodic review of the appellants' detention. In its decision the District Court approved the internment orders, discussed the appellants' importance to the activity of the Hezbollah organization as shown by the testimonies of experts who testified before it and said that their detention achieved a preventative goal of the first order. The appeal in CrimA 1757/07 is directed at this decision.

On 3 September 2007 the District Court gave its decision in the third periodic review of the appellants' internment. In its decision the District Court noted that the experts remained steadfast in their opinion that it was highly probable that the two appellants would resume their terrorist activity if they were released, and as a result the operational abilities of the Hezbollah infrastructure in the Gaza Strip would be enhanced and the risks to the State of Israel and its inhabitants would increase. It also said that the fact that the Hamas organization had taken control of the Gaza Strip increased the aforesaid risks and the difficulty of contending with them. The court emphasized that there was information with regard to each of the appellants concerning their desire to resume terrorist activity if they were released, and that they had maintained their contacts in this area even while they were imprisoned. In such circumstances, the District Court held that the passage of time had not reduced the threat presented by the appellants, who were the most senior persons in the Hezbollah terrorist infrastructure in the Gaza Strip, and that there was no basis for cancelling the internment orders made against them. The appeal in CrimA 8228/07 is directed at this decision.

On 20 March 2008 the District Court gave its decision in the fourth periodic review of the appellants' detention. During the hearing, the court (Justice D. Rozen) said that the evidence against each of the two appellants contained nothing new from recent years. Nevertheless, the court decided to approve their continued internment after it found that each of the two appellants was closely associated with the Hezbollah organization; both of them were intensively active in that organization; the existing evidence regarding them showed that their return to the area was likely to act as an impetus for terrorist attacks, and the long period during which they had been imprisoned had not reduced the danger that they represent. The appeal in CrimA 3261/08 was directed at this decision.

Our judgment therefore relates to all of the aforesaid appeals together.

The arguments of the parties

4.  The appellants' arguments before us, as in the trial court, focused on two issues: first, the appellants raised specific arguments concerning the illegality of the internment orders that were made in their cases, and they sought to challenge the factual findings reached by the District Court with regard to their membership in the Hezbollah organization and their activity in that organization against the security of the State of Israel. Secondly, once again the appellants indirectly raised arguments of principle with regard to the constitutionality of the Law. According to them, the Law in its present format violates the rights to liberty and dignity enshrined in Basic Law: Human Dignity and Liberty, in a manner that does not satisfy the conditions of the limitation clause in the Basic Law. The appellants also claimed that the Law is inconsistent with the rules of international humanitarian law that it purports to realize. Finally the appellants argued that the end of Israel's military rule in the Gaza Strip prevents it, under the laws of war, from detaining the appellants.

The state's position was that the petitions should be denied. With regard to the specific cases of the appellants, the state argued that the internment orders in their cases were made lawfully and they were in no way improper. With regard to the arguments in the constitutional sphere, the state argued that the law satisfies the tests of the limitation clause in Basic Law: Human Dignity and Liberty, since it was intended for a proper purpose and its violation of personal liberty is proportionate. With regard to the rules of international law applicable to the case, the state argued that the Law is fully consistent with the norms set out in international law with regard to the detention of "unlawful combatants".

5.  In order to decide the questions raised by the parties before us, we shall first address the background that led to the enactment of the Internment of Unlawful Combatants Law and its main purpose. With this in mind, we shall consider the interpretation of the statutory definition of "unlawful combatant" and the conditions that are required to prove the existence of a ground for detention under the law. Thereafter we shall examine the constitutionality of the arrangements prescribed in the law and finally we shall address the specific detention orders made in the appellants' cases.

The Internment of Unlawful Combatants Law - background to its enactment and its main purpose

6.  The Internment of Unlawful Combatants Law gives the state authorities power to detain "unlawful combatants" as defined in s. 2 of the Law, i.e. persons who participate in hostile acts or who are members of forces that carry out hostile acts against the State of Israel, and who do not fulfil the conditions that confer prisoner of war status under international humanitarian law. As will be explained below, the Law allows the internment of foreign persons who belong to a terrorist organization or who participate in hostile acts against the security of the state, and it was intended to prevent these persons from returning to the cycle of hostilities against Israel.

The original initiative to enact the Law arose following the judgment in CrimFH 7048/97 A v. Minister of Defence [1], in which the Supreme Court held that the state did not have authority to hold Lebanese nationals in detention by virtue of administrative detention orders, if the sole reason for their detention was to hold them as "bargaining chips" in order to obtain the release of captives and missing servicemen. Although the original bill came into being against the background of a desire to permit the holding of prisoners as "bargaining chips", the proposal underwent substantial changes during the legislative process after many deliberations on this matter in the Knesset Foreign Affairs and Defence Committee, chaired by MK Dan Meridor. On 4 March 2002, the Internment of Unlawful Combatants Law was passed by the Knesset. Its constitutionality has not been considered by this court until now.

At the outset it should be emphasized that the examination of the historical background to the enactment of the Law and the changes that were made to the original bill, what was said during the Knesset debates, the wording of the Law as formulated at the end of the legislative process, and the effort that was made to ensure that it conformed to the provisions of international humanitarian law evident from the purpose clause of the statute, which we shall address below -  all show that the Internment of Unlawful Combatants Law as it crystallized in the course of the legislative process was not intended to allow hostages to be held as "bargaining chips" for the purpose of obtaining the release of Israeli captives and missing servicemen being held in enemy territory, as alleged by the appellants before us. The plain language of the Law and its legislative history indicate that the Law was intended to prevent a person who endangers the security of the state due to his activity or his membership of a terrorist organization from returning to the cycle of combat. Thus, for example, MK David Magen, who was chairman of the Foreign Affairs and Defence Committee at the time of the debate in the plenum of the Knesset prior to the second and third readings, said as follows:

'The draft law is very complex and as is known, it gave rise to many disagreements during the Committee's deliberations. The Foreign Affairs and Defence Committee held approximately ten sessions at which it discussed the difficult questions raised by this Bill and considered all the possible ramifications of its passing the second and third readings. The Bill before you is the result of considerable efforts to present an act of legislation whose provisions are consistent with the rules of international humanitarian law and which satisfies the constitutional criteria, while being constantly mindful of and insistent upon maintaining a balance between security and human rights...

I wish to emphasize that the Bill also seeks to determine that a person who is an unlawful combatant, as defined in the new Law, will be held by the state as long as he represents a threat to its security. The criterion for interning a person is that he is dangerous. No person should be interned under the proposal as a punishment or, as many tend to think erroneously, as a bargaining chip. No mistake should be made in this regard. Nonetheless, we should ask ourselves whether it is conceivable that the state should release a prisoner who will return to the cycle of hostilities against the State of Israel?' [emphasis added].

The Law was therefore not intended to allow prisoners to be held as "bargaining chips". The purpose of the Law is to remove from the cycle of hostilities a person who belongs to a terrorist organization or who participates in hostile acts against the State of Israel. The background to this is the harsh reality of murderous terrorism, which has for many years plagued the inhabitants of the state, harmed the innocent and indiscriminately taken the lives of civilians and servicemen, the young and old, men, women and children. In order to realize the aforesaid purpose, the Law applies only to persons who take part in the cycle of hostilities or who belong to a force that carries out hostile acts against the State of Israel, and not to innocent civilians. We shall return to address the security purpose of the Law below.

Interpreting the provisions of the Law

7. As we have said, in their arguments before us the parties addressed in detail the question of the constitutionality of the arrangements prescribed in the Law. In addition, the parties addressed at length the question of whether the arrangements prescribed in the Internment of Unlawful Combatants Law are consistent with international law. The parties addressed this question, inter alia, because in s. 1 of the Law, which is the purpose section, the Law states that it is intended to realize its purpose "in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." As we shall explain below, this declaration is a clear expression of the basic outlook prevailing in our legal system that the existing law should be interpreted in a manner that is as consistent as possible with international law.

In view of the two main focuses of the basic arguments of the parties before us - whether the arrangements prescribed in the Law are constitutional and whether they are consistent with international humanitarian law - we should clarify that both the constitutional scrutiny from the viewpoint of the limitation clause and the question of compliance with international humanitarian law may be affected by the interpretation of the arrangements prescribed in the Law. Before deciding on the aforesaid questions, therefore, we should first consider the interpretation of the principal arrangements prescribed in the Internment of Unlawful Combatants Law. These arrangements will be interpreted in accordance with the language and purpose of the Law, and on the basis of two interpretive presumptions that exist in our legal system: one, the presumption of constitutionality, and the other, the presumption of interpretive compatibility with the norms of international law - both those that are part of Israeli law and those that Israel has taken upon itself amongst its undertakings in the international arena.

8.  Regarding the presumption of constitutionality: in our legal system the legislature is presumed to be aware of the contents of the Basic Laws and their ramifications for every statute that is enacted subsequently. According to this presumption, the examination of a provision of statute involves an attempt to interpret it so that it is consistent with the protection that the Basic Laws afford to human rights. This realizes the presumption of normative harmony, whereby "we do not assume that a conflict exists between legal norms, and every possible attempt is made to achieve 'uniformity in the law' and harmony between the various norms" (A. Barak, Legal Interpretation - the General Theory of Interpretation (1992), at p. 155). In keeping with the presumption of constitutionality, we must, therefore, examine the meaning and scope of the internment provisions in the Internment of Unlawful Combatants Law while aspiring to uphold, insofar as possible, the provisions of Basic Law: Human Dignity and Liberty. It should immediately be said that the internment powers prescribed in the Law significantly and seriously violate the personal liberty of the prisoner. This violation is justified in appropriate circumstances in order to protect state security. However, in view of the magnitude of the violation of personal liberty, and considering the exceptional nature of the means of detention that are prescribed in the Law, an interpretive effort should be made in order to minimize the violation of the right to liberty as much as possible so that it is proportionate to the need to achieve the security purpose and does not go beyond this. Such an interpretation will be compatible with the basic conception prevailing in our legal system, according to which a statute should be upheld by interpretive means and the court should refrain, insofar as possible, from setting it aside on constitutional grounds. In the words of President A. Barak:

'It is better to achieve a reduction in the scope of a statute by interpretive means rather than  having to achieve the same reduction by declaring a part of a statute void because it conflicts with the provisions of a Basic Law.... A reasonable interpretation of a statute is preferable to a decision on the question of its constitutionality' (HCJ 4562/92 Zandberg v. Broadcasting Authority [2], at p. 812; see also HCJ 9098/01 Ganis v. Ministry of Building and Housing [3], at p. 276).

9. With respect to the presumption of conformity to international humanitarian law: as we have said, s. 1 of the Law declares explicitly that its purpose is to regulate the internment of unlawful combatants "… in a manner that is consistent with the commitments of the State of Israel under the provisions of international humanitarian law." The premise in this context is that an international armed conflict prevails between the State of Israel and the terrorist organizations that operate outside Israel (see HCJ 769/02 Public Committee against Torture in Israel v. Government of Israel [4], at paras. 18, 21; see also A. Cassese, International Law (second edition, 2005), at p. 420).

The international law that governs an international armed conflict is anchored mainly in the Hague Convention (IV) Respecting the Laws and Customs of War on Land (1907) (hereinafter: "the Hague Convention") and the regulations appended to it, whose provisions have the status of customary international law (see HCJ 393/82 Jamait Askan Almalmoun Altaounia Almahdouda Almasaoulia Cooperative Society v. IDF Commander in Judaea and Samaria [5], at p. 793; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [6], at p. 827; HCJ 7015/02 Ajuri v. IDF Commander in West Bank [7], at p. 364; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, 1949 (hereinafter: "Fourth Geneva Convention"), whose customary provisions constitute a part of the law of the State of Israel and some of which have been considered in the past by this court (Ajuri v. IDF Commander in West Bank [7], at page 364; HCJ 3239/02 Marab v. IDF Commander in Judaea and Samaria [8]; HCJ 7957/04 Marabeh v. Prime Minister of Israel [9], at para. 14); and the Protocol Additional to the Geneva Convention of 12 August 1949 Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1977 (hereinafter: "First Protocol"), to which Israel is not a party, but whose customary provisions also constitute a part of the law of the State of Israel (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 20). In addition, where there is a lacuna in the laws of armed conflict set out above, it is possible to fill it by resorting to international human rights law (see Public Committee against Torture in Israel v. Government of Israel [4], at para. 18; see also Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep. 226, at page 240; Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 43 ILM 1009 (2004)).

It should be emphasized that no one in this case disputes that an explicit statutory provision enacted by the Knesset overrides the provisions of international law (see in this regard President A. Barak in HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 17). However, according to the presumption of interpretive consistency, an Israeli act of legislation should be interpreted in a manner that is consistent, insofar as possible, with the norms of international law to which the State of Israel is committed (see HCJ 2599/00 Yated, Children with Down Syndrome Parents Society v. Ministry of Education [11], at p. 847; HCJ 4542/02 Kav LaOved Worker's Hotline v. Government of Israel [12], at para. 37). According to this presumption, which as we have said is clearly expressed in the purpose clause of the Internment of Unlawful Combatants Law, the arrangements prescribed in the Law should be interpreted in a manner that is as consistent as possible with the international humanitarian law that governs the matter.

Further to the aforesaid it should be noted that when we approach the task of interpreting provisions of the statute in a manner consistent with the accepted norms of international law, we cannot ignore the fact that the provisions of international law that exist today have not been adapted to changing realities and to the phenomenon of terrorism that is changing the face and characteristics of armed conflicts and those who participate in them (see in this regard the remarks of President A. Barak in Ajuri v. IDF Commander in West Bank [7], at pp. 381-382). In view of this, we should do our best to interpret the existing laws in a manner that is consistent with the new realities and the principles of international humanitarian law.

10.  Bearing all the above in mind, let us now turn to the interpretation of the statutory definition of "unlawful combatant" and of the conditions required for proving the existence of cause for internment under the Law. The presumption of constitutionality and the provisions of international law to which the parties referred will be our interpretive tools and they will assist us in interpreting the provisions of the Law and in evaluating the nature and scope of the power of internment it prescribes.

The definition of "unlawful combatant" and the scope of its application

11. S. 2 of the Law defines "unlawful combatant" as follows:

'Definitions

2.  In this law -

"unlawful combatant" - a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply to him;

This statutory definition of "unlawful combatant" relates to those who take part in hostile acts against the State of Israel or who are members of a force that perpetrates such acts, and who are not prisoners of war under international humanitarian law. In this regard two points should be made: first, from the language of the aforesaid s. 2 it is clear that it is not essential for someone to take part in hostile acts against the State of Israel; his membership in a "force perpetrating hostile acts" - i.e., a terrorist organization - may include that person within the definition of "unlawful combatant". We will discuss the significance of these two alternatives in the definition of "unlawful combatant" below (para. 21 .).

Secondly, as noted above, the purpose clause in the Law refers explicitly to the provisions of international humanitarian law. The definition of "unlawful combatant" in the aforesaid s. 2 also refers to international humanitarian law when it provides that the Law applies to a person who does not enjoy prisoner of war status under the Third Geneva Convention. In general, the rules of international humanitarian law were not intended to apply to the relationship between the state and its citizens (see, for example, the provisions of art. 4 of the Fourth Geneva Convention, according to which a "protected civilian" is someone who is not a citizen of the state that is holding him in circumstances of an international armed conflict). The explicit reference by the legislature to international humanitarian law, together with the stipulation in the wording of the Law that prisoner of war status does not apply, show that the Law was intended to apply only to foreign parties who belong to a terrorist organization that acts against the security of the state. We are not unaware that the draft law of 14 June 2000 contained an express provision stating that the Law would not apply to Israeli inhabitants (and also to inhabitants of the territories), except in certain circumstances that were set out therein (see s. 11 of the Internment of Enemy Forces Personnel Who Are Not Entitled to a Prisoner of War Status Bill, 5760-2000, Bills 5760, no. 2883, at p. 415). This provision was omitted from the final wording of the Law. Nevertheless, in view of the explicit reference in the Law to international humanitarian law and the laws concerning prisoners of war as stated above, the inevitable conclusion is that according to its wording and purpose, the Law was not intended to apply to local parties (citizens and residents of Israel) who endanger state security. For these other legal measures exist that are intended for a security purpose, which we shall address below.

It is therefore possible to sum up and say that an "unlawful combatant" under s. 2 of the Law is a foreign party who belongs to a terrorist organization that acts against the security of the State of Israel. This definition may include residents of a foreign country that maintains a state of hostilities against the State of Israel, who belong to a terrorist organization that acts against the security of the State and who satisfy the other conditions of the statutory definition of "unlawful combatant". This definition may also include inhabitants of the Gaza Strip, which today is no longer under belligerent occupation. In this regard it should be noted that since the end of Israeli military rule in the Gaza Strip in September 2005, the State of Israel has no permanent physical presence in the Gaza Strip, and it also has no real possibility of carrying out the duties of an occupying power under international law, including the main duty of maintaining public order and security. Any attempt to impose the authority of the State of Israel on the Gaza Strip is likely to involve complex and prolonged military operations. In such circumstances, where the State of Israel has no real ability to control what happens in the Gaza Strip in an effective manner, the Gaza Strip should not be regarded as a territory that is subject to belligerent occupation from the viewpoint of international law, even though the unique situation that prevails there imposes certain obligations on the State of Israel vis-?-vis the inhabitants of the Gaza Strip (for the position that the Gaza Strip is not now subject to a belligerent occupation, see Yuval Shany, "Faraway So Close: The Legal Status of Gaza after Israel's Disengagement," 8 Yearbook of International Humanitarian Law 2005 (2007) 359; see also the judgment of the International Court of Justice in Democratic Republic of the Congo v. Uganda, where the importance of a physical presence of military forces was emphasized for the existence of a state of occupation: Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda (ICJ, 19 December 2005), at para.173; with regard to the existence of certain obligations that the State of Israel has in the prevailing circumstances vis-?-vis the inhabitants of the Gaza Strip, see HCJ 9132/07 Elbassiouni v. Prime Minister [13]. In our case, in view of the fact that the Gaza Strip is no longer under the effective control of the State of Israel, we must conclude that the inhabitants of the Gaza Strip constitute foreign parties who may be subject to the Internment of Unlawful Combatants Law in view of the nature and purpose of this Law.

With regard to the inhabitants of the territory (Judaea and Samaria) that is under the effective control of the State of Israel, for the reasons that will be stated later (in para. 36 below), I tend to the opinion that insofar as necessary for security reasons, the administrative detention of these inhabitants should be carried out pursuant to the security legislation that applies in the territories and not by virtue of the Internment of Unlawful Combatants Law. However, the question of the application of the aforesaid Law to the inhabitants of the territories does not arise in the circumstances of the case before us and it may therefore be left undecided.

Conformity of the definition of "unlawful combatant" to a category recognized by international law

12. The appellants argued that the definition of "unlawful combatant" in s. 2 of the Law is contrary to the provisions of international humanitarian law, since international law does not recognize the existence of an independent and separate category of "unlawful combatants". According to their argument, there are only two categories in international law - "combatants" and "civilians", who are subject to the provisions and protections enshrined in the Third and Fourth Geneva Conventions respectively. In their view international law does not have an intermediate category that includes persons who are not protected by either of these conventions.

With regard to the appellants' aforesaid arguments we would point out that the question of the conformity of the term "unlawful combatant" to the categories recognized by international law has already been addressed in our case law in Public Committee against Torture in Israel v. Government of Israel [4], in which it was held that the term "unlawful combatants" does not constitute a separate category, but rather, a sub-category of "civilians" recognized by international law. This conclusion is based on the approach of customary international law, according to which the category of "civilians" includes everyone who is not a "combatant". We are therefore dealing with a negative definition. In the words of President A. Barak:

 'The approach of customary international law is that "civilians" are persons who are not "combatants" (see article 50(1) of the First Protocol, and Sabel, supra, at page 432). In the Blaskic case, the International Tribunal for War Crimes in Yugoslavia said that civilians are "persons who are not, or no longer, members of the armed forces" (Prosecutor v. Blaskic (2000), Case IT-95-14-T, at paragraph 180). This definition is of a "negative" character. It derives the concept of "civilians" from it being the opposite of "combatants". Thus it regards unlawful combatants, who as we have seen are not "combatants", as civilians' (ibid., at para. 26 of the opinion of President A. Barak).

In this context, two additional points should be made: first, the determination that "unlawful combatants" belong to the category of "civilians" in international law is consistent with the official interpretation of the Geneva Conventions, according to which in an armed conflict or a state of occupation, every person who finds himself in the hands of the opposing party is entitled to a certain status under international humanitarian law - the status of prisoner of war, which is governed by the Third Geneva Convention, or the status of protected civilian, which is governed by the Fourth Geneva Convention:

'There is no "intermediate status"; nobody in enemy hands can be outside the law' (O. Uhler and H. Coursier (eds.), Geneva Convention relative to the Protection of Civilian Persons in Time of War: Commentary (ICRC, Geneva, 1950), commentary to art. 4, at page 51).

(See also S. Borelli, 'Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the "War on Terror",' 87(857) IRRC 39 (2005), at pp. 48-49).

Secondly, it should be emphasized that prima facie, the statutory definition of "unlawful combatants" under s. 2 of the Law applies to a broader group of people than the group of "unlawful combatants" discussed in Public Committee against Torture in Israel v. Government of Israel [4], in view of the difference in the measures under discussion: the judgment in Public Committee against Torture in Israel v. Government of Israel [4] considered the legality of the measure of a military attack intended to cause the death of an "unlawful combatant". According to international law, it is permitted to attack an "unlawful combatant" only during the period of time when he is taking a direct part in the hostilities. By contrast, the Internment of Unlawful Combatants Law deals with the measure of internment. For the purposes of internment under the Law, it is not necessary for the "unlawful combatant" to participate directly in the hostilities, nor is it essential that the internment take place during the period of time that he is participating in hostile acts; all that is required is that the conditions of the definition of "unlawful combatant" in s. 2 of the Law are proved. This statutory definition does not conflict with the provisions of international humanitarian law since, as we shall clarify clear below, the Fourth Geneva Convention also permits the detention of a protected "civilian"' who endangers the security of the detaining state. Thus we see that our reference to the judgment in Public Committee against Torture in Israel v. Government of Israel [4] was not intended to indicate that an identical issue was considered in that case. Its purpose was to support the finding that the term "unlawful combatants" in the Law under discussion does not create a separate category of treatment from the viewpoint of international humanitarian law; rather, it constitutes a sub-group of the category of "civilians".

13.   Further to our finding that "unlawful combatants" belong to the category of "civilians" from the viewpoint of international law, it should be noted that this court has held in the past that international humanitarian law does not grant "unlawful combatants" the same degree of protection to which innocent civilians are entitled, and that in this respect there is a difference from the viewpoint of the rules of international law between "civilians" who are not "unlawful combatants" and "civilians" who are "unlawful combatants". (With regard to the difference in the scope of the protection from a military attack upon "civilians" who are not "unlawful combatants" as opposed to "civilians" who are "unlawful combatants", see Public Committee against Torture in Israel v. Government of Israel [4], at paras. 23-26). As we shall explain below, in the present context the significance of this is that someone who is an "unlawful combatant" is subject to the Fourth Geneva Convention, but according to the provisions of the aforesaid Convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.

In concluding these remarks it should be noted that although there are disagreements on principle between the parties before us as to the scope of the international laws that apply to "unlawful combatants", including the application of the Fourth Geneva Convention and the scope of the rights of which they may be deprived for security reasons under art. 5 of the Convention, we are not required to settle most of these disagreements. This is due to the state's declaration that in its opinion the Law complies with the most stringent requirements of the Fourth Geneva Convention, and because of the assumption that the appellants enjoy all the rights that are enshrined in this Convention (see paras. 334 and 382 of the state's response).

14.  In summary, in view of the purpose clause of the Internment of Unlawful Combatants Law, according to which the Law was intended to regulate the status of "unlawful combatants" in a manner that is consistent with the rules of international humanitarian law, and bearing in mind the finding of this court in Public Committee against Torture in Israel v. Government of Israel [4] that "unlawful combatants" constitute a subcategory of "civilians" under international law, we are able to determine that, contrary to the appellants' claim, the Law does not create a new reference group from the viewpoint of international law; it merely determines special provisions for the detention of "civilians" (according to the meaning of this term in international humanitarian law) who are "unlawful combatants".

The nature of internment of "Unlawful Combatants" under the Law - administrative detention

15. Now that we have determined that the definition of "unlawful combatant" in the Law is not incompatible with division into the categories  of "civilians" as opposed to "combatants"' in international law and in the case law of this court, let us proceed to examine the provisions of the Law that regulate the internment of unlawful combatants. S. 3(a) of the law provides the following:

 

'Internment of Unlawful Combatant

3. (a) Where the Chief of Staff has reasonable cause to believe that a person being held by state authorities is an unlawful combatant and that his release will harm state security, he may issue an order under his hand, directing that such person be interned at a place to be determined (hereinafter: "internment order"); an internment order shall include the grounds for internment, without prejudicing state security requirements.'

S. 7 of the Law adds a probative presumption in this context, which provides as follows:

'Presumption

 7.  For the purposes of this Law, a person who is a member of a force perpetrating hostile acts against the State of Israel or who has participated in hostile acts of such a force, either directly or indirectly, shall be deemed to be a person whose release would harm state security as long as the hostile acts of such force against the State of Israel have not yet ceased, unless proved otherwise.'

The appellants argued before us that the internment provisions in the Law create, de facto, a third category of detention, which is neither criminal arrest nor administrative detention, and which has no recognition in Israeli law or international law. We cannot accept this argument. The mechanism provided in the Law is a mechanism of administrative detention in every respect, which is carried out in accordance with an order of the Chief of Staff, who is an officer of the highest security authority. As we shall explain below, we are dealing with an administrative detention whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is participating in the organization's operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.

16.  It should be noted that the actual authority provided in the Law for the administrative detention of a "civilian" who is an "unlawful combatant" due to the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus art. 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting "control and security measures" that are justified on security grounds. The wording of the aforesaid art. 27 is as follows:

'... the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.'

Regarding the types of control measures that are required for protecting state security, art. 41 of the Convention prohibits the adoption of control measures that are more severe than assigned residence or internment in accordance with the provisions of arts. 42-43 of the Convention. Art. 42 entrenches the rule that a "civilian" should not be interned unless this is "absolutely necessary" for the security of the detaining power. Art. 43 proceeds to obligate the detaining power to approve the detention by means of judicial or administrative review, and to hold periodic reviews of the continuing need for internment at least twice a year. Art. 78 of the Convention concerns the internment of protected civilians who are inhabitants of a territory that is held by an occupying power, and it states that it is possible to invoke various security measures against them for essential security reasons, including assigned residence and internment. Thus we see that the Fourth Geneva Convention allows the internment of protected "civilians" in administrative detention, when this is necessary for reasons concerning the essential security needs of the detaining power.

17.  In concluding these remarks we would point out that the appellants argued before us that the aforesaid provisions of the Fourth Geneva Convention are not applicable in their particular case. According to them, arts. 41-43 of the Convention concern the detention of protected civilians who are present in the territory of a party to a dispute, whereas the appellants were taken into detention when they were in the Gaza Strip in the period prior to the implementation of the disengagement plan, when the status of the Gaza Strip was that of territory under belligerent occupation.  They argue that art. 78 of the Fourth Geneva Convention - relating to administrative detention in occupied territory - is not applicable to their case either, in view of the circumstances that arose after the implementation of the disengagement plan and the departure of IDF forces from the Gaza Strip. In view of this, the appellants argued that no provision of international humanitarian law exists that allows them to be placed in administrative detention, and therefore they argued that their detention under the Internment of Unlawful Combatants Law is contrary to the provisions of international law.

Our reply to these arguments is that the detention provisions set out in the Fourth Geneva Convention were intended to apply and realize the basic principle contained in the last part of art. 27 of the Convention, which was cited above. As we have said, this article provides that the parties to a dispute may adopt security measures against protected civilians insofar as this is required due to the belligerence. The principle underlying all the detention provisions in the Fourth Geneva Convention is that "civilians" may be detained for security reasons to the extent necessitated by the threat that they represent. According to the aforesaid Convention, the power of detention for security reasons exists, whether we are concerned with the inhabitants of an occupied territory or with foreigners who were apprehended in the territory of one of the states involved in the dispute. In the appellants' case, although Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ceased; therefore, detention of the appellants within the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.

The cause of detention under the Law - the requirement of an individual threat to security and the effect of the interpretation of the statutory definition of "unlawful combatant"

18.  One of the first principles of our legal system is that administrative detention is conditional upon the existence of a cause of detention that derives from the individual threat posed by the detainee to the security of the state. This was discussed by President Barak when he said:

'[For cause of detention to exist] the circumstances of the detention must be such that they arouse, with respect to [the prisoner] - to him personally and not to someone else - concern that threatens security, whether because he was apprehended in the combat area when he was actually fighting or carrying out acts of terrorism, or because there is a concern that he is involved in fighting or terrorism' (Marab v. IDF Commander in Judaea and Samaria [8], at p. 367).

The requirement of an individual threat for the purpose of placing a person in administrative detention is an essential part of the protection of the constitutional right to dignity and personal liberty. This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish a person for acts that have already been committed or to deter others from committing them; its purpose is to prevent the tangible risk presented by the acts of the prisoner to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank [7], at pp. 370-372, and the references cited there).

19.  It will be noted that a personal threat to state security posed by the detainee is also a requirement under the principles of international humanitarian law. Thus, for example, in his interpretation of arts. 42 and 78 of the Fourth Geneva Convention, Pictet emphasizes that the state should resort to the measure of detention only when it has serious and legitimate reasons to believe that the person concerned endangers its security. In his interpretation Pictet discusses membership in organizations whose goal is to harm the security of the state as a ground for deeming a person to be a threat, but he emphasizes the meta-principle that the threat is determined in accordance with the individual activity of that person. In Pictet's words:

'To justify recourse to such measures, the state must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security' (J.S. Pictet, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958), at pp. 258-259).

20. No one here disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principles, whereby administrative detention is conditional upon proving the existence of cause that establishes an individual threat. Indeed, an examination of the provisions of the Law in accordance with the aforesaid principles reveals that the Law does not allow a person to be detained arbitrarily, and that the authority to detain by virtue of the Law is conditional upon the existence of a cause of detention that is based on the individual threat represented by the prisoner: first, the definition of "unlawful combatant" in s. 2 of the Law requires that it be proven that the prisoner himself took part in or belonged to a force that is carrying out hostilities against the State of Israel, the significance of which we shall address below. Secondly, s. 3(a) of the Law expressly provides that the cause of detention under the Law arises only with regard to someone for whom there is reasonable basis to believe that "his release will harm state security." S. 5(c) of the Law goes on to provide that the District Court will set aside a detention order that was issued pursuant to the Law only when the release of the prisoner "will not harm state security" (or when there are special reasons that justify the release). To this we should add that according to the purpose of the Law, administrative detention is intended to prevent the "unlawful combatant" from returning to the cycle of hostilities, indicating that he was originally a part of that cycle.

The dispute between the parties before us in this context concerns the level of the individual threat that the state must prove for the purpose of administrative detention under the Law. This dispute arises due to the combination of two main provisions of the Law: one is the provision in s. 2 of the Law, a simple reading of which states that an "unlawful combatant" is not only someone who takes a direct or indirect part in hostile acts against the State of Israel, but also a person who is a "member of a force perpetrating hostile acts." The other is the probative presumption in s. 7 of the Law, whereby a person who is a member of a force that perpetrates hostile acts against the State of Israel shall be regarded as someone whose release will harm the security of the state unless the contrary is proved. On the basis of a combination of these two provisions of the Law, the state argued that it is sufficient to prove that a person is a member of a terrorist organization in order to prove his individual danger to the security of the state in such a manner that provides cause for detention under the Law. By contrast, the appellants' approach was that relying upon abstract "membership" in an organization that perpetrates hostile acts against the State of Israel as a basis for administrative detention under the Law renders meaningless the requirement of proving an individual threat, contrary to constitutional principles and international humanitarian law.

21. Resolution of the aforesaid dispute is largely affected by the interpretation of the definition of "unlawful combatant" in s. 2 of the Law. As we have said, the statutory definition of "unlawful combatant" contains two alternatives: the first, "a person who has participated either directly or indirectly in hostile acts against the State of Israel", and the second, a person who is "a member of a force perpetrating hostile acts against the State of Israel," when the person concerned does not satisfy the conditions granting prisoner of war status under international humanitarian law. These two alternatives should be interpreted with reference to the security purpose of the Law and in accordance with the constitutional principles and international humanitarian law that we discussed above, which require proof of an individual threat as grounds for administrative detention.

With respect to the interpretation of the first alternative concerning "a person who has participated either directly or indirectly in hostile acts against the State of Israel " - according to the legislative purpose and the principles that we have discussed, the obvious conclusion is that in order to intern a person it is not sufficient that he made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that a person is an "unlawful combatant", the state must prove that he contributed to the perpetration of hostile acts against the state, either directly or indirectly, in a manner that is likely to indicate his personal dangerousness. Naturally it is not possible to define such a contribution precisely and exhaustively, and the matter must be examined according to the circumstances of each case on its merits.

With respect to the second alternative  - a person who is "a member of a force carrying out hostilities against the State of Israel" - here too an interpretation that is consistent with the purpose of the Law and the constitutional principles and international humanitarian law discussed above is required: on the one hand it is insufficient to simply show some kind of tenuous connection with a terrorist organization in order to include the person within the cycle of hostilities in the broad meaning of this concept. On the other hand, in order to establish cause for the internment of a person who is a member of an active terrorist organization whose self-declared goal is to fight incessantly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that suffice to include him in the cycle of hostilities in its broad sense, such that his detention will be justified under the Law.

Thus we see that for the purpose of internment under the Law, the state must furnish administrative proof that the prisoner is an "unlawful combatant" with the meaning that we discussed, i.e. that the prisoner took a direct or indirect part that involved a contribution to the fighting  - a part that was neither negligible nor marginal in hostile acts against the State of Israel - or that the prisoner belonged to an organization that perpetrates hostile acts, in which case we should consider the prisoner's connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept.

It should be noted that proving the conditions of the definition of an "unlawful combatant" in the aforesaid sense naturally includes proof of an individual threat that derives from the type of involvement in the organization. It should also be noted that only after the state has proved that the prisoner fulfils the conditions of the statutory definition of "unlawful combatant" can it have recourse to the probative presumption set out in s. 7 of the Law, according to which the release of the prisoner will harm state security as long as the contrary has not been proved. It is therefore clear that s. 7 of the Law does not negate the obligation of the state to prove the threat represented by the prisoner, which derives from the type of involvement in the relevant organization, as required in order to prove him to be an "unlawful combatant" under s. 2 of the Law. In view of this, the inevitable conclusion is that the argument that the Law does not include a requirement of an individual threat goes too far and should be rejected.

Proving someone to be an "unlawful combatant" under the Law - the need for clear and convincing administrative evidence

22.  Above, we discussed the interpretation of the definition of "unlawful combatant". According to the aforesaid interpretation, the state is required to prove that the prisoner took a substantial, direct or indirect part in hostile acts against the State of Israel, or that he belonged to an organization that perpetrates hostile acts:  all this, taking into consideration his connection and the extent of his contribution to the organization's cycle of hostilities. In these circumstances internment of a person may be necessary in order to remove him from the cycle of hostilities that prejudices the security of the citizens and residents of the State of Israel. The question that arises here is this: what evidence is required in order to convince the court that the prisoner satisfies the conditions of the definition of an "unlawful combatant" with the aforesaid meaning?

This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a cause for administrative detention (see Ajuri v. IDF Commander in West Bank [7], at p. 372, where this was the ruling with regard to the measure of assigned residence; also cf. per Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [14], at p. 264; HCJ 554/81 Beransa v. Central Commander [15]). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. Bearing in mind the importance of the right to personal liberty and in view of the security purpose of the said Law, the provisions of ss. 2 and 3 of the Law should be interpreted as obligating the state to prove, with clear and convincing administrative evidence, that even if the prisoner did not take a substantial, direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, such that his administrative detention is justified in order to prevent his return to the aforesaid cycle of hostilities.

The significance of the requirement that there be clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current; this is necessary both to prove that the prisoner is an "unlawful combatant" under s. 2 of the Law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return below. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state; naturally we can learn of these threats from tangible evidence concerning the prisoner's acts in the past (see per President M. Shamgar in Beransa v. Central Commander [15], at pp. 249-250; HCJ 11026/05 A v. IDF Commander [16], at para. 5). Nevertheless, for the purposes of long-term internment under the Internment of Unlawful Combatants Law, satisfactory administrative evidence is required, and a single piece of evidence about an isolated act carried out in the distant past is insufficient.

23. It follows that for the purposes of internment under the Internment of Unlawful Combatants Law, the state is required to provide clear and convincing evidence that even if the prisoner did not take a substantial direct or indirect part in hostile acts against the State of Israel, he belonged to a terrorist organization and contributed to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, for to prove that someone is a member of a terrorist organization is not like proving that someone is a member of a regular army, due to the manner in which terrorist organizations work and how people join their ranks. In Public Committee against Torture in Israel v. Government of Israel [4], the court held that unlike lawful combatants, unlawful combatants do not as a rule bear any clear and unambiguous signs that they belong to a terrorist organization (see ibid. [4], at para. 24). Therefore, the task of proving that a person belongs to an organization as aforesaid is not always an easy one. Nevertheless, the state is required to furnish sufficient administrative evidence to prove the nature of the prisoner's connection to the terrorist organization, and the degree or nature of his contribution to the broad cycle of combat or hostile acts carried out by the organization.

It should also be noted that in its pleadings before us, the state contended that the power of internment prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a situation of ongoing belligerence in territory that is not subject to the full control of the State of Israel, where in the course of the hostilities a relatively large number of unlawful combatants may fall into the hands of the security forces and it is necessary to prevent them returning to the cycle of hostilities against Israel. The special circumstances that exist in situations of this kind require a different course of action from that which is possible within the territory of the state or in an area subject to belligerent occupation. In any case, it must be assumed that the said reality may pose additional difficulties in assembling evidence as to whether those persons detained by the state on the battle-field belong to a terrorist organization and how great a threat they represent.

The probative presumptions in ss. 7 and 8 of the Law

24. As we have said, s. 7 of the Law establishes a presumption whereby a person who satisfies the conditions of the definition of "unlawful combatant" shall be regarded as someone whose release will harm the security of the state as long as the hostile acts against the State of Israel have not ceased. This is a rebuttable presumption, and the burden of rebutting it rests on the prisoner. We will emphasize what we said above, that the presumption in the said s. 7 is likely to be relevant only after the state has proved that the prisoner satisfies the conditions of the definition of "unlawful combatant". In such circumstances it is presumed that the release of the prisoner will harm state security as required by s. 3(a) of the Law.

As noted above, one of the appellants' main claims in this court was that the aforesaid presumption obviates the need to prove an individual threat from the prisoner, and that this is inconsistent with constitutional principles and international humanitarian law. The respondent countered this argument but went on to declare before us that as a rule, the state strives to present a broad and detailed evidentiary basis with regard to the threat presented by prisoners, and it has done so to date in relation to all prisoners under the Law, including in the appellants' case. The meaning of this assertion is that in practice, the state refrains from relying on the probative presumption in s. 7 of the Law and it proves the individual threat presented by prisoners on an individual basis, without resorting to the said presumption. It should be noted that this practice of the state is consistent with our finding that proving fulfillment of the conditions of the definition of "unlawful combatant" in s. 2 of the Law involves proving the individual threat that arises from the type of involvement in an organization as explained above.

In any case, since the state has refrained until now from invoking the presumption in s. 7 of the Law, the questions of the extent to which the said presumption reduces the requirement of proving the individual threat for the purpose of internment under the Law, and whether this is an excessive violation of the constitutional right to liberty and of the principles of international humanitarian law, do not arise. We can therefore leave these questions undecided, for as long as the state produces prima facie evidence of the individual threat presented by the prisoner and does not rely on the presumption under discussion, the question of the effect of the presumption on proving an individual threat remains theoretical. It will be noted that should the state choose to invoke the presumption in s. 7 of the Law in the future rather than proving the threat to the required degree, it will be possible to bring the aforesaid questions before the court, since it will be necessary to resolve them concretely rather than theoretically (see CrimA 3660/03 Abeid v. State of Israel [17]; HCJ 1853/02 Navi v. Minister of Energy and National Infrastructures [18]; HCJ 6055/95 Tzemach v. Minister of Defence [19], at p. 250 {641}; HCJ 4827/05 Man, Nature and Law - Israel Environmental Protection Society v. Minister of the Interior [20], at para. 10; CA 7175/98 National Insurance Institute v. Bar Finance Ltd (in liquidation) [21]).

25. Regarding the probative presumption in s. 8 of the Law, this section states as follows:

'Determination regarding hostile acts

8. A determination of the Minister of Defence, by a certificate under his hand, that a particular force is perpetrating hostile acts against the State of Israel or that hostile acts of such force against the State of Israel have ceased or have not yet ceased, shall serve as proof in any legal proceedings, unless proved otherwise.

The appellants argued before us that the said probative presumption transfers the burden of proof to the prisoner in respect of a matter which he will never be able to refute, since it is subject to the discretion of the Minister of Defence. The state countered that in all the proceedings pursuant to the Law it has refrained from relying solely on the determination of the Minister of Defence, and it has presented the court and counsel for the prisoners with an updated and detailed opinion concerning the relevant organization to which the prisoner belongs. This was done in the case of the appellants too, who allegedly belong to the Hezbollah organization. In view of this, we are not required to decide on the fundamental questions raised by the appellants regarding the said s. 8.  In any case, it should be stated that in the situation prevailing in our region, in which the organizations that operate against the security of the State of Israel are well known to the military and security services, it should not be assumed that it is difficult to prove the existence and nature of the activity of hostile forces by means of a specific and updated opinion, in order to provide support for the determination of the Minister of Defence, as stated in s. 8 of the Law.

The Constitutional Examination

26.  Up to this point we have dealt with the interpretation of the statutory definition of "unlawful combatant" and the conditions required for proving the existence of a cause for internment under the Law. This interpretation takes into account the language and purpose of the Internment of Unlawful Combatants Law, and it is compatible with the presumption of constitutionality and with the principles of international humanitarian law to which the purpose clause of the Law expressly refers.

Now that we have considered the scope of the Law's application and the nature of the power of internment by virtue thereof, we will proceed to the arguments of the parties concerning the constitutionality of the arrangements prescribed in its framework. These arguments were raised in the District Court and in this court in the course of the hearing on the appellants' internment, in the framework of an indirect attack on the said Law.

Violation of the constitutional right to personal liberty

27.  S. 5 of Basic Law: Human Dignity and Liberty provides as follows:

'Personal liberty

5.  There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

There is no dispute between the parties before us that the Internment of Unlawful Combatants Law violates the constitutional right to personal liberty entrenched in the aforesaid s. 5. This is a significant and serious violation, in that the Law allows the use of the extreme measure of administrative detention, which involves depriving a person of his personal liberty. It should be clarified that the Internment of Unlawful Combatants Law was admittedly intended to apply to a foreign entity belonging to a terrorist organization that operates against the state security (see para. 11 above). In Israel, however, the internment of unlawful combatants is carried out by the government authorities, who are bound in every case to respect the rights anchored in the Basic Law (see ss. 1 and 11 of the Basic Law). Accordingly, the violation inherent in the arrangements of the Internment of Unlawful Combatants Law should be examined in keeping with the criteria in the Basic Law.

Examining the violation of the constitutional right from the perspective of the limitation clause

28.  No one disputes that the right to personal liberty is a constitutional right with a central role in our legal system, lying at the heart of the values of the State of Israel as a Jewish and democratic state (see Marab v. IDF Commander in Judaea and Samaria [8], at para. 20). It has been held in our case law that "personal liberty is a constitutional right of the first degree, and from a practical viewpoint it is also a condition for realizing other basic rights" (Tzemach v. Minister of Defence [16], at p. 251; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [22], at p. 81 {513}; CrimA 4596/05 Rosenstein v. State of Israel [23], at para. 53; CrimA 4424/98 Silgado v. State of Israel [24], at pp. 539-540). Nevertheless, like all protected human rights the right to personal liberty is not absolute, and a violation of the right is sometimes necessary in order to protect essential public interests. The balancing formula in this context appears in the limitation clause in s. 8 of the Basic Law, which states:

'Violation of Rights

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

The question confronting us is whether the violation of the right to personal liberty engendered by the Internment of Unlawful Combatants Law complies with the conditions of the limitation clause. The arguments of the parties before us focused on the requirements of proper purpose and proportionality, and these will be the focus of our deliberations as well.

29. At the outset, and before we examine the provisions of the Law from the perspective of the limitation clause, we should mention that the court will not hasten to intervene and set aside a statutory provision enacted by the legislature. The court is bound to uphold the law as a manifestation of the will of the people (HCJ 1661/05 Gaza Coast Regional Council v. Knesset [25], at pp. 552-553; HCJ 4769/95 Menahem v. Minister of Transport [26], at pp. 263-264; HCJ 3434/96 Hoffnung v. Knesset Speaker [27], at pp. 66-67). Thus the principle of the separation of powers finds expression: the legislative authority determines the measures that should be adopted in order to achieve public goals, whereas the judiciary examines whether these measures violate basic rights in contravention of the conditions set for this purpose in the Basic Law. It is the legislature that determines national policy and formulates it in statute, whereas the court scrutinizes the constitutionality of the legislation to reveal the extent to which it violates constitutional human rights (see per President A. Barak in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at para. 78). It has therefore been held in the case law of this court that when examining the legislation of the Knesset from the perspective of the limitation clause, the court will act "with judicial restraint, caution and moderation" (Menahem v. Minister of Transport [26], at p. 263). The court will not refrain from constitutional scrutiny of legislation, but it will act with caution and exercise its constitutional scrutiny in order to protect human rights within the constraints of the limitation clause, while refraining from reformulating the policy that the legislature saw fit to adopt. Thus the delicate balance between majority rule and the principle of the separation of powers on the one hand, and the protection of the basic values of the legal system and human rights on the other, will be preserved.

The requirement of a proper purpose

30. According to the limitation clause, a statute that violates a constitutional right must have a proper purpose. It has been held in our case law that a legislative purpose is proper if it is designed to protect human rights, including by determining a reasonable and fair balance between the rights of individuals with conflicting interests, or if it serves an essential public purpose, an urgent social need or an important social concern whose purpose is to provide an infrastructure for coexistence and a social framework that seeks to protect and promote human rights (see ibid. [26], at p. 264; HCJ 6893/05 Levy v. Government of Israel [28], at pp. 889-890; HCJ 5016/96 Horev v. Minister of Transport [29], at pp. 52-53, {206}). It has also been held that not every purpose justifies a violation of constitutional basic rights, and that the essence of the violated right and the magnitude of the violation are likely to have ramifications for the purpose that is required to justify the violation.

In our remarks above we explained that the Internment of Unlawful Combatants Law, according to its wording and its legislative history, was intended to prevent persons who threaten the security of the state due to their activity or their membership in terrorist organizations that carry out hostile acts against the State of Israel from returning to the cycle of hostilities (see para. 6 above). This legislative purpose is a proper one. Protecting state security is an urgent and even essential public need in the harsh reality of unremitting, murderous terrorism that harms innocent people indiscriminately. It is difficult to exaggerate the security importance of preventing members of terrorist organizations from returning to the cycle of hostilities against the State of Israel in a period of relentless terrorist activity that threatens the lives of the citizens and residents of the State of Israel. In view of this, the purpose of the Law under discussion may well justify a significant and even serious violation of human rights, including the right to personal liberty. Thus was discussed by President A. Barak when he said that -

'There is no alternative - in a freedom and security seeking democracy - to striking a balance between liberty and dignity on the one hand and security on the other. Human rights should not become a tool for depriving the public and the state of security. A balance - a delicate and difficult balance - is required between the liberty and dignity of the individual and state and public security' (A v. Minister of Defence [1], at p.741).

 (See also Ajuri v. IDF Commander in West Bank [7], at p. 383; per Justice D. Dorner in HCJ 5627/02 Saif v. Government Press Office [30],  at pp. 76-77, {para.6 at pp. 197-198}; EA 2/84 Neiman v. Chairman of Central Elections Committee for Tenth Knesset [31], at p. 310 {160}).

The purpose of the Internment of Unlawful Combatants Law is therefore a proper one. But this is not enough. Within the framework of constitutional scrutiny, we are required to proceed to examine whether the violation of the right to personal liberty does not exceed what is necessary for realizing the purpose of the Law. We shall now examine this question.

The requirement that the measure violating a human right is not excessive

31. The main issue that arises with respect to the constitutionality of the Law concerns the proportionality of the arrangements it prescribes. As a rule, it is customary to identify three subtests that constitute fundamental criteria for determining the proportionality of a statutory act that violates a constitutional human right: the first is the rational connection test, whereby the legislative measure violating the constitutional right and the purpose that the Law is intended to realize must be compatible; the second is the least harmful measure test, which requires that the legislation violate the constitutional right to the smallest degree possible in order to achieve the purpose of the Law; and the third is the test of proportionality in the narrow sense, according to which the violation of the constitutional right must be commensurate with the social benefit it bestows (see Menahem v. Minister of Transport [26], at p. 279; Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of the Interior [10], at paras. 65-75; Beit Sourik Village Council v. Government of Israel [6], at pp. 839-840).

It has been held in the case law of this court that the test of proportionality, with its three subtests, is not a precise test since by its very nature it involves assessment and evaluation. The subtests sometimes overlap and each of them allows the legislature a margin of discretion. There may be circumstances in which the choice of an alternative measure that violates the constitutional right slightly less results in a significant reduction in the realization of the purpose or the benefit derived from it; it would not be right therefore to obligate the legislature to adopt the aforesaid measure. Consequently this court has accorded recognition to "constitutional room for maneuver" which is also called the "zone of proportionality". The bounds of the constitutional room for maneuver are determined by the court in each case on its merits and according to its circumstances, bearing in mind the nature of the right that is being violated and the extent of the violation as opposed to the nature and substance of the competing rights or interests. This court will not substitute its own discretion for the criteria chosen by the legislature and will refrain from intervention as long as the measure chosen by the legislature falls within the zone of proportionality. The court will only intervene when the chosen measure significantly departs from the bounds of the constitutional room for maneuver and is clearly disproportionate (see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [32], at p. 438; HCJ 450/97 Tenufa Manpower and Maintenance Services Ltd. v. Minister of Labour and Social Affairs [33]; AAA 4436/02 Tishim Kadurim Restaurant, Members' Club v. Haifa Municipality [34], at p. 815; Gaza Coast Regional Council v. Knesset [25], at pp. 550-551).

In the circumstances of the case before us, the violation of the constitutional right to personal liberty is significant and even severe in its extent. Nevertheless, as we said above, the legislative purpose of removing "unlawful combatants" from the cycle of hostilities in order to protect state security is essential in view of the reality of murderous terrorism that threatens the lives of the residents and citizens of the State of Israel. In these circumstances, I think that the existence of relatively wide room for legislative maneuver should be recognized, to allow the selection of the suitable measure for realizing the purpose of the Law.

The First Subtest: A Rational Connection Between the Measure and the Purpose

32.  The measure chosen by the legislature in order to realize the purpose of the Internment of Unlawful Combatants Law is administrative detention. As we explained in para. 21 above, for the purpose of internment under the Law the state must provide clear and convincing proof that the prisoner is an "unlawful combatant" within the meaning that we discussed. The state is therefore required to prove the personal threat presented by the prisoner, deriving from his particular form of involvement in the organization. Administrative detention constitutes a suitable means of averting the security threat presented by the prisoner, in that it prevents the "unlawful combatant" from returning to the cycle of hostilities against the State of Israel and thereby serves the purpose of the Law. Therefore the first subtest of proportionality - the rational connection test - is satisfied.

The main question concerning the proportionality of the Law under discussion concerns the second subtest, i.e. the question of whether there exist alternative measures that involve a lesser violation of the constitutional right. In examining this question, we should first consider the appellants' argument that there are more proportionate measures for realizing the purpose of the Internment of Unlawful Combatants Law. Next we should consider the specific arrangements prescribed in the Law and examine whether they exceed the zone of proportionality. Finally we should examine the Law in its entirety and examine whether the combination of arrangements that were prescribed in the Law fulfils the test of proportionality in the narrow sense, i.e. whether the violation of the right to personal liberty is reasonably commensurate with the public benefit that arises from it in realizing the legislative purpose.

The argument that there are alternative measures to detention under the Law

33.  The appellants' main argument concerning proportionality was that alternative measures to administrative detention exist by virtue of the Law, involving a lesser violation of the right to liberty. In this context, the appellants raised two main arguments: first, it was argued that for the purpose of realizing the legislative purpose it is not necessary to employ the measure of administrative detention, and the appellants ought to be recognized as prisoners of war; alternatively, recourse should be had to the measure of trying the appellants on criminal charges. Secondly, it was argued that even if administrative detention is necessary in the appellants' case, this should be carried out under the Emergency Powers (Detentions) Law, 5739-1979, for according to their argument, the violation that it involves is more proportionate than that of the Internment of Unlawful Combatants Law.

The first argument - that the appellants should be declared prisoners of war - must be rejected. In HCJ 2967/00 Arad v. Knesset [35], which considered the case of Lebanese prisoners, a similar argument to the one raised in the present appellants' case was rejected:

'We agree with the position of Mr Nitzan that the Lebanese prisoners should not be regarded as prisoners of war. It is sufficient that they do not satisfy the provisions of art. 4(2)(d) of the Third Geneva Convention, which provides that one of the conditions that must be satisfied in order to comply with the definition of "prisoners of war" is "that of conducting their operations in accordance with the laws and customs of war." The organizations to which the Lebanese prisoners belonged are terrorist organizations, which operate contrary to the laws and customs of war. Thus, for example, these organizations deliberately attack civilians and shoot from the midst of the civilian population, which they use as a shield. All of these are operations that are contrary to international law. Indeed, Israel's consistent position over the years was not to regard the various organizations such as Hezbollah as organizations to which the Third Geneva Convention applies. We have found no reason to intervene in this position' (ibid. [35], at p. 191).

 (See also CrimApp 8780/06 Sarur v. State of Israel [36]; HCJ 403/81 Jabar v. Military Commander [37]; and also HCJ 102/82 Tzemel v. Minister of Defence [38], at pp. 370-371).

Similar to what was said in Arad v. Knesset [35], in the circumstances of the case before us, too, the appellants should not be accorded prisoner of war status, since they do not satisfy the conditions of art. 4 of the Third Geneva Convention, and primarily, the condition concerning the observance of the laws of war.

The appellants' argument that a more proportionate measure would be to try the prisoners on criminal charges should also be rejected, in view of the fact that trying a person on criminal charges is different in essence and purpose from the measure of administrative detention. Putting a person on trial is intended to punish him for acts committed in the past, and it is dependent upon the existence of evidence that can be brought before a court in order to prove guilt beyond a reasonable doubt. Administrative detention, on the other hand, was not intended to punish but to prevent activity that is prohibited by law and endangers the security of the state. The quality of evidence that is required for administrative detention is different from that required for a criminal trial. Moreover, as a rule recourse to the extreme measure of administrative detention is justified in circumstances where other measures, including the conduct of a criminal trial, are impossible, due to the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when a criminal trial does not provide a satisfactory solution to averting the threat posed to the security of the state in circumstances in which, after serving his sentence, the person is likely to revert to being a security risk (see, inter alia, ADA 4794/05 Ufan v. Minister of Defence [39]; ADA 7/94 Ben-Yosef v. State of Israel [40]; ADA 8788/03 Federman v. Minister of Defence [41], at pp. 185-189; Fahima v. State of Israel [14], at pp. 263-264). In view of all the above, it cannot be said that a criminal trial constitutes an alternative measure for realizing the purpose of the Internment of Unlawful Combatants Law.

34.  As we have said, the appellants' alternative claim before us was that even if it is necessary to place them in administrative detention, this should be done pursuant to the Emergency Powers (Detentions) Law. According to this argument, the Emergency Powers (Detentions) Law violates the right to personal liberty to a lesser degree than the provisions of the Internment of Unlawful Combatants Law. Thus, for example, it is argued that the Emergency Powers (Detentions) Law requires an individual threat as a cause for detention, without introducing presumptions that transfer the burden of proof to the prisoner, as provided in the Internment of Unlawful Combatants Law. Moreover, the Emergency Powers (Detentions) Law requires a judicial review to be conducted within forty-eight hours of the time of detention, and a periodic review every three months, whereas the Internment of Unlawful Combatants Law allows a prisoner to be brought before a judge as much as fourteen days after the time he is detained, and it requires a periodic review only once every half year; under the Emergency Powers (Detentions) Law,  the power of detention is conditional upon the existence of a state of emergency in the State of Israel, whereas internment under the Internment of Unlawful Combatants Law does not set such a condition and it is even unlimited in time, apart from the stipulation that the internment will end by the time that the hostilities against the State of Israel have ceased. To this it should be added that detention under the Emergency Powers (Detentions) Law is effected by an order of the Minister of Defence, whereas internment under the Internment of Unlawful Combatants is effected by an order of the Chief of Staff, who is authorised to delegate his authority to an officer with the rank of major-general. Taking into consideration all the above, the appellants' argument before us is that detention under the Emergency Powers (Detentions) Law constitutes a more proportionate alternative than administrative detention under the Internment of Unlawful Combatants Law.

35.  Prima facie the appellants are correct in their argument that in certain respects the arrangements prescribed in the Emergency Powers (Detentions) Law violate the right to personal liberty to a lesser degree than the Internment of Unlawful Combatants Law. However, we accept the state's argument in this context that the Internment of Unlawful Combatants Law is intended for a different purpose than that of the Emergency Powers (Detentions) Law. In view of the different purposes, the two laws contain different arrangements, such that the Emergency Powers (Detentions) Law does not constitute an alternative measure for achieving the purpose of the Law under discussion in this case. Let us clarify our position.

The Emergency Powers (Detentions) Law applies in a time of emergency and in general, its purpose is to prevent threats to state security arising from internal entities (i.e., citizens and residents of the state). Accordingly, the Law prescribes the power of administrative detention that is usually invoked with regard to isolated individuals who threaten state security and whose detention is intended to last for relatively short periods of time, apart from exceptional cases. On the other hand, as we clarified in para. 11 above, the Internment of Unlawful Combatants Law is intended to apply to foreign entities who operate within the framework of terrorist organizations against the security of the state. The Law was intended to apply at a time of organized and persistent hostile acts against Israel on the part of terrorist organizations. The purpose of the Law is to prevent persons who belong to these organizations or who take part in hostile acts under their banner from returning to the cycle of hostilities, as long as the hostilities against the State of Israel continue. In order to achieve the aforesaid purpose, the Internment of Unlawful Combatants Law contains arrangements that are different from those in the Emergency Powers (Detentions) Law (we will discuss the question of the proportionality of these arrangements below). Moreover, according to the state, the power of detention prescribed in the Internment of Unlawful Combatants Law was intended to apply to members of terrorist organizations in a persistent state of war in a territory that is not a part of Israel, where a relatively large number of enemy combatants is likely to fall into the hands of the military forces during the fighting. The argument is that these special circumstances justify recourse to measures that are different from those usually employed.

Thus we see that even though the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law prescribe a power of administrative detention whose purpose is to prevent a threat to state security, the specific purposes of the aforesaid laws are different and therefore the one cannot constitute an alternative measure for achieving the purpose of the other. In the words of the trial court: "We are dealing with a horizontal plane on which there are two acts of legislation, one next to the other. Each of the two was intended for a different purpose and therefore, in circumstances such as our case, they are not alternatives to one another" (p. 53 of the decision of the District Court of 19 July 2006). It should be clarified that in appropriate circumstances, the Emergency Powers (Detentions) Law could well be used to detain foreigners who are not residents or citizens of the State of Israel. Despite this, the premise is that the specific purposes of the Emergency Powers (Detentions) Law and the Internment of Unlawful Combatants Law are different, and therefore it cannot be determined in a sweeping manner that detention under the Emergency Powers (Detentions) Law constitutes a more appropriate and proportionate alternative to detention under the Internment of Unlawful Combatants Law.

36.  In concluding these remarks it will be mentioned that the appellants, who are inhabitants of the Gaza Strip, were first detained in the years 2002-2003, when the Gaza Strip was subject to belligerent occupation. At that time, the administrative detention of the appellants was carried out under the security legislation that was in force in the Gaza Strip. A change occurred in September 2005, when Israeli military rule in the Gaza Strip ended and the territory ceased to be subject to belligerent occupation (see para. 11 above). One of the ancillary consequences of the end of the Israeli military rule in the Gaza Strip was the repeal of the security legislation that was in force there. Consequently, the Chief of Staff issued detention orders for the appellants under the Internment of Unlawful Combatants Law.

In view of the nullification of the security legislation in the Gaza Strip, no question arises in relation to inhabitants of that region as to whether administrative detention by virtue of security legislation may constitute a suitable and more proportionate measure than internment under the Internment of Unlawful Combatants Law. Nonetheless, I think it noteworthy that the aforesaid question may arise with regard to inhabitants of the territories that are under the belligerent occupation of the State of Israel (Judaea and Samaria). As emerges from the abovesaid in para. 11, prima facie I tend to the opinion that both under the international humanitarian law that governs the matter (art. 78 of the Fourth Geneva Convention) and according to the test of proportionality, administrative detention of inhabitants of Judaea and Samaria should be carried out by virtue of the current security legislation that is in force in the territories, and not by virtue of the Internment of Unlawful Combatants Law in Israel. This issue does not, however, arise in the circumstances of the case before us and therefore I think it right to leave it for future consideration.

Proportionality of the specific arrangements prescribed in the Law

37.  In view of all of the reasons elucidated above, we have reached the conclusion that the measures identified by the appellants in their pleadings cannot constitute alternative measures to administrative detention by virtue of the Law under discussion. The appellants further argued that the specific arrangements prescribed in the Internment of Unlawful Combatants Law violate the right to personal liberty excessively, and more proportionate arrangements that violate personal liberty to a lesser degree could have been set. Let us therefore proceed to examine this argument with regard to the specific arrangements prescribed in the Law.

(1)        Conferring the power of detention on military personnel

38.       S. 3(a) of the Law, cited in para. 15 above, provides that an internment order by virtue of the Law will be issued by the Chief of Staff "under his hand" and will include the grounds for the internment "without prejudicing state security requirement." S. 11 of the Law goes on to provide that "the Chief of Staff may delegate his powers under this Law to any officer of the rank of major-general that he may determine." According to the appellants, conferring the power of detention by virtue of the Law on the Chief of Staff, who may delegate it to an officer of the rank of major-general, is an excessive violation of the prisoners' right to personal liberty. In this context, the appellants emphasized that the Emergency Powers (Detentions) Law confers the power of administrative detention on the Minister of Defence only.

In the circumstances of the case, we have come to the conclusion that the state is correct in its argument that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general falls within the zone of proportionality and we should not intervene. First, as we said above, the specific purposes of the Internment of Unlawful Combatants Law and the Emergency Powers (Detentions) Law are different, and there is therefore a difference in the arrangements prescribed in the two Laws. Since the Law under consideration before us was intended to apply, inter alia, in a situation of combat and prolonged military activity against terrorist organizations in a territory that is not subject to the total control of the State of Israel, there is logic in establishing an arrangement that confers the power of internment on military personnel of the highest rank. Secondly, it should be made clear that the provisions of international law do not preclude the power of detention of the military authority responsible for the security of a territory in which there are protected civilians. This may support the conclusion that conferring the power of detention on the Chief of Staff or an officer of the rank of major-general does not, in itself, violate the right to personal liberty disproportionately.

(2)        The prisoner's right to a hearing after an internment order is issued

39.  Ss. 3(b) and 3(c) of the Law provide as follows:

Internment of unlawful combatant

3.   (a) ...

(b) An internment order may be granted in the absence of the person held by the state authorities.

 (c) An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff; the submissions of the prisoner shall be recorded by the officer and shall be brought before the Chief of General Staff; if the Chief of General Staff finds, after reviewing the submissions of the prisoner, that the conditions prescribed in subsection (a) have not been fulfilled, he shall quash the internment order.

According to s. 3(b) above, an internment order may be granted by the Chief of Staff (or a major-general appointed by him) without the prisoner being present. S. 3(c) of the Law goes on to provide that the order shall be brought to the attention of the prisoner "at the earliest possible date" and that he shall be given a hearing before an army officer of at least the rank of lieutenant-colonel, in order to allow him to put his submissions; the prisoner's submissions shall be recorded by the officer and brought before the Chief of Staff (or the major-general acting for him). According to the Law, if after reviewing the prisoner's arguments the Chief of Staff (or the major-general) is persuaded that the conditions for detention under the Law are not fulfilled, the internment order shall be quashed.

The appellants' argument in this context was that this arrangement violates the right to personal liberty excessively in view of the fact that the prisoner may put his submissions only after the event, i.e., after the internment order has been issued, and only before an officer of the rank of lieutenant-colonel, who will pass the submissions on to the Chief of Staff (or a major-general), in order that they reconsider their position. According to the appellants, it is the person who issues the order - the Chief of Staff or the major-general - who should hear the prisoner's arguments, even before the order is issued. These arguments should be rejected, for several reasons: first, it is established case law that the person who makes the decision does not need to conduct the hearing personally, and that it is also permissible to conduct the hearing before someone who has been appointed for this purpose by the person making the decision, provided that the person making the decision - in our case the Chief of Staff or the major-general acting on his behalf - will have before him all of the arguments and facts that were raised at the hearing (see HCJ 5445/93 Ramla Municipality v. Minister of the Interior [42], at p. 403; HCJ 2159/97 Ashkelon Coast Regional Council v. Minister of the Interior [43], at pp. 81-82). Secondly, from a practical viewpoint, establishing a duty to conduct hearings in advance, in the personal presence of the Chief of Staff or the major-general in times of combat and in circumstances in which there are liable to be many detentions in the combat zone as well, may present  significant logistical problems. Moreover, conducting a hearing in the manner proposed by the appellants is contrary to the purpose of the Law, which is to allow the immediate removal of the "unlawful combatants" from the cycle of hostilities in an effective manner. It should be emphasized that the hearing under s. 3(c) of the Law is a preliminary process whose main purpose is to prevent mistakes of identity. As will be explained below, in addition to the preliminary hearing, the Law requires that a judicial review take place before a District Court judge no later than fourteen days from the date of issue of the internment order, thereby lessening the violation claimed by the appellants. In view of all of the above, it cannot be said that the arrangement prescribed in the Law with respect to the hearing falls outside the zone of proportionality.

 (3)      Judicial review of internmentunder the Law

40.  S. 5 of the Law, entitled "Judicial Review", prescribes the following arrangement in subsecs. (a) - (d):

5.  (a) A prisoner shall be brought before a judge of the District Court no later than fourteen days after the date of granting the internment order; where the judge of the District Court finds that the conditions prescribed in s. 3(a) have not been fulfilled he shall quash the internment order.

(b) Where the prisoner is not brought before the District Court and where the hearing has not commenced before it within fourteen days of the date of granting the internment order, the prisoner shall be released unless there exists another ground for his detention under provisions of any law.

            (c)  Once every six months from the date of issue of an order under s. 3(a) the prisoner shall be brought before a judge of the District Court; where the Court finds that his release will not harm State security or that there are special grounds justifying his release, it shall quash the internment order.

(d) A decision of the District Court under this section is subject to appeal within thirty days to the Supreme Court, a single judge of which shall hear the appeal with; the Supreme Court shall have all the powers vested in the District Court under this Law.

The appellants argued before us that the judicial review process prescribed in s. 5 violates the right to personal liberty excessively, for two main reasons: first, under s. 5(a) of the Law, the prisoner should be brought before a District Court judge no later than fourteen days from the date of his detention. According to the appellants, this is a long period of time that constitutes an excessive violation of the right to personal liberty and of the prisoner's right of access to the courts. In this context the appellants argued that in view of the constitutional status of the right to personal liberty and in accordance with the norms applicable in international law, the legislature should have determined that the prisoner be brought to a judicial review "without delay." Secondly, it was argued that the period of time set in s. 5(c) of the Law for conducting periodic judicial review of the internment - every six months - is too long as well as disproportionate. By way of comparison, the appellants pointed out that the Emergency Powers (Detentions) Law prescribes in this regard a period of time that is shorter by half - only three months. In reply, the state argued that in view of the purpose of the Law, the periods of time set in s. 5 are proportionate and they are consistent with the provisions of international law.

41. S. 5 of the Law is based on the premise that judicial review constitutes an integral part of the administrative detention process. In this context it has been held in the past that -

'Judicial intervention in the matter of detention orders is essential. Judicial intervention is a safeguard against arbitrariness; it is required by the principle of the rule of law…. It ensures that the delicate balance between the liberty of the individual and the security of the public - a balance that lies at the heart of the laws of detention - will be maintained' (per President A. Barak in Marab v. IDF Commander in Judaea and Samaria [8], at page 368).

The main thrust of the dispute regarding the constitutionality of s. 5 of the Law concerns the proportionality of the periods of time specified therein.

With respect to the periods of time between the internment of the prisoner and the initial judicial review of the internment order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and of discretion whose price is likely to be a person's loss of liberty without just cause, the administrative prisoner should be brought before a judge "as soon as possible" in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [44], at pp. 819-820). It should be noted that this case law is consistent with the arrangements prevailing in international law. International law does not specify the number of days during which it is permitted to detain a person without judicial intervention; rather, it lays down a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the decision on internment should be brought before a judge or another person with judicial authority "promptly" (see art. 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature; see also the references cited in Marab v. IDF Commander in Judaea and Samaria [8], at pp. 369-370). A similar principle was established in arts. 43 and 78 of the Fourth Geneva Convention whereby the judicial (or administrative) review of a detention decision should be made "as soon as possible" (as stated in art. 43 of the Convention) or "with the least possible delay" (as stated in art. 78 of the Convention). Naturally the question as to what is the earliest possible date for bringing a prisoner before a judge depends upon the circumstances of the case.

In the present case, the Internment of Unlawful Combatants Law provides that the date for conducting the initial judicial review is "no later than fourteen days from the date of granting the internment order." The question that arises in this context is whether the said period of time violates the right to personal liberty excessively. The answer to this question lies in the purpose of the Law and in the special circumstances of the particular internment, as well as in the interpretation of the aforesaid provision of the Law. As we have said, the Internment of Unlawful Combatants Law applies to foreign entities who belong to terrorist organizations and who are engaged in ongoing hostilities against the State of Israel. As noted, the Law was intended to apply, inter alia, in circumstances in which a state of belligerence exists in territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not agree that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the zone of proportionality in such a way as to justify our intervention by shortening the maximum period prescribed in the Law. At the same time, it should be emphasized that the period of time prescribed in the Law is a maximum period and it does not exempt the state from making an effort to conduct a preliminary judicial review of the prisoner's case as soon as possible in view of all the circumstances. In other words, although we find no cause to intervene in the proportionality of the maximum period prescribed in the Law, the power of detention in each specific case should be exercised proportionately, and fourteen whole days should not be allowed to elapse before conducting an initial judicial review where it is possible to conduct a judicial review earlier (cf. ADA 334/04 Darkua v. Minister of the Interior [45], at p. 371, in which it was held that even though under the Entry into Israel Law, 5712-1952, a person taken into custody must be brought before the Custody Review Tribunal no later than fourteen days from the date on which he was taken into custody, the whole of the aforesaid fourteen days should not be used when there is no need to do so).

In concluding these remarks it should be noted that s. 3(c) of the Law, cited above, provides that "An internment order shall be brought to the attention of the prisoner at the earliest possible date, and he shall be given an opportunity to put his submissions in respect of the order before an officer of at least the rank of lieutenant-colonel to be appointed by the Chief of General Staff" [emphasis added - D.B.]. Thus we see that although s. 5(a) of the Law prescribes a maximum period of fourteen days for an initial judicial review, s. 3(c) of the Law imposes an obligation to conduct a hearing for the prisoner before a military officer at the earliest possible time after the order is issued. The aforesaid hearing is certainly not a substitute for a review before a judge of the District Court, which is an independent and objective judicial instance, but the very fact of conducting an early hearing as soon as possible after the issuing of the order may somewhat reduce the concern over an erroneous or ostensibly unjustified detention, which will lead to an excessive violation of the right to liberty.

42.  As stated, the appellants' second argument concerned the frequency of the periodic judicial review of internment under the Law. According to s. 5(c) of the Law, the prisoner must be brought before a District Court judge once every six months from the date of issuing the order; if the court finds that the release of the prisoner will not harm state security or that there are special reasons that justify his release, the court will quash the internment order.

The appellants' argument before us was that a frequency of once every six months is insufficient and it disproportionately violates the right to personal liberty. Regarding this argument, we should point out that the periodic review of the necessity of continuing the administrative detention once every six months is consistent with the requirements of international humanitarian Law. Thus, art. 43 of the Fourth Geneva Convention provides:

'Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.'

It emerges from art. 43 that periodic review of a detention order "at least twice yearly" is consistent with the requirements of international humanitarian law, in a manner that supports the proportionality of the arrangement prescribed in s. 5(c) of the Law. Moreover, whereas art. 43 of the Fourth Geneva Convention considers an administrative review that is carried out by an administrative body to be sufficient, the Internment of Unlawful Combatants Law provides that it is a District Court judge who must conduct a judicial review of the internment orders under the Law, and his decision may be appealed to the Supreme Court which will hear the appeal with a single judge (s. 5(d) of the Law). In view of all this, it cannot be said that the arrangement prescribed in the Law with regard to the nature and frequency of the judicial review violates the constitutional right to personal liberty excessively.

 (4) Departure from the rules of evidence and reliance upon privileged evidence within the framework of proceedings under the Law

43.  S. 5(e) of the Law provides as follows:

'Judicial review 

  5. ...

(e) It shall be permissible to depart from the laws of evidence in proceedings under this Law, for reasons to be recorded; the court may admit evidence, even in the absence of the prisoner or his legal representative, or not disclose such evidence to the aforesaid if, after having reviewed the evidence or heard the submissions, even in the absence of the prisoner or his legal representative,  it is convinced that disclosure of the evidence to the prisoner or his legal representative is likely to harm state security or public security; this provision shall not derogate from any right not to give evidence under Chapter 3 of the Evidence Ordinance [New Version], 5731-1971.

The appellants' argument before us was that the arrangement prescribed in the aforesaid s. 5(e) disproportionately violates the right to personal liberty, since it allows the judicial review of an internment order by virtue of the Law to depart from the laws of evidence and it allows evidence to be heard ex parte in the absence of the prisoner and his legal representative and without it being disclosed to them.

With respect to this argument it should be noted that by their very nature, administrative detention proceedings are based on administrative evidence concerning security matters. The nature of administrative detention for security reasons requires recourse to evidence that does not satisfy the admissibility tests of the laws of evidence and that therefore may not be submitted in a regular criminal trial. Obviously the confidentiality of the sources of the information is important, and it is therefore often not possible to disclose all the intelligence material that is used to prove the grounds for detention. Reliance on inadmissible administrative evidence and on privileged material for reasons of state security lies at the heart of administrative detention, for if there were sufficient admissible evidence that could be shown to the prisoner and brought before the court, as a rule the measure of criminal indictment should be chosen (see Federman v. Minister of Defence [41], at p. 185-186). There is no doubt that a proceeding that is held ex parte in order to present privileged evidence to the court has many drawbacks. But the security position in which we find ourselves in view of the persistent hostilities against the security of the State of Israel requires recourse to tools of this kind when granting a detention order under the Internment of Unlawful Combatants Law, the Emergency Powers (Detentions) Law or the security legislation in areas under military control.

It should be emphasized that in view of the problems inherent in relying upon administrative evidence for the purpose of detention, over the years the judiciary has developed a tool for control and scrutiny of intelligence material, to the extent possible in a proceeding of the kind that takes place in judicial review of administrative detention. In the framework of these proceedings the judge is required to question the validity and credibility of the administrative evidence that is brought before him and to assess its weight. In this regard the following was held in HCJ 4400/98 Braham v. Justice Colonel Shefi [46], at p. 346, per Justice T. Or:

'The basic right of every human being as such to liberty is not an empty slogan. The protection of this basic value requires that we imbue the process of judicial review of administrative detention with meaningful content. In this framework, I am of the opinion that the professional judge can and should consider not only the question of whether, prima facie, the competent authority was authorized to decide what it decided on the basis of the material that was before it; the judge should also consider the question of the credibility of the material that was submitted as a part of his assessment of the weight of the material. Indeed, that fact that certain "material" is valid administrative evidence does not exempt the judge from examining the degree of its credibility against the background of the other evidence and all the circumstances of the case. In this context, the "administrative evidence" label does not exempt the judge from having to demand and receive explanations from those authorities that are capable of providing them. To say otherwise would mean weakening considerably the process of judicial review, and allowing the deprivation of liberty for prolonged periods on the basis of flimsy and insufficient material. Such an outcome is unacceptable in a legal system that regards human liberty as a basic right.'

It has also been held in our case law that in view of the problems inherent in submitting privileged evidence ex parte, the court that conducts a judicial review of an administrative detention is required to act with caution and great precision when examining the material that is brought before it for its eyes only. In such circumstances, the court has a duty to act with extra caution and to examine the privileged material brought