HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

[23] H.C. 262/62, Peretz v. Kfar Shmaryahu Local Council 16P.D.2101.

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

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

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

HCJ 680/88

 

1. Meir Schnitzer

2. Aluf Ben, a Journalist

3. Itonut Mekomit Ltd.

v.

1. The Chief Military Censor, Mr. Yitzchak Shani

2. The Minister of Defense

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[January 10, 1989]

Before Barak J., Maltz J., and Wallenstein J.

 

 

 

 

Editor's Synopsis:

                The Petitioners sought to publish a newspaper article that was critical of the outgoing head of the Mossad, the Agency for Intelligence and Special Duties, on the occasion of the forthcoming appointment of a new Mossad head. The article did not mention his name or otherwise identify him. After several versions of the article were submitted for approval to the first Respondent, the Chief Military Censor, and after the Petitioners agreed not to publish certain parts of the article, the Censor forbade the publication of two matters: criticism of the head of the Mossad's effectiveness, on the ground that such criticism would affect adversely the Mossad's ability to function in general in the field of security policy; and disclosure of the impending change in leadership of the Mossad, on the ground that this could focus attention on the head of the Mossad and endanger his safety. The Chief Military Censor purported to act pursuant to authority vested in him by the Defence (Emergency) Regulations, 1945. The Petitioners sought the issuance of a rule nisi, directing the Respondents to show cause why they should not be restrained from interfering with the publication of the article, including the forbidden matter. The High Court considered the substantive issues raised by the case as if an order nisi had been granted and issued an order permitting publication of the article in the above respects, holding:

           

1.   Although the Defence Regulations were promulgated by the Mandatory regime, they are now part of Israeli legislation and should be interpreted in harmony with Israeli democratic values. Such values give prominence to freedom of expression and freedom of the press.

 

2.   The scope of judicial review of "subjective discretion" does not differ from the review of any other discretion. All administrative discretion must be exercised lawfully, that is: within the authority granted by the law granting discretion, for the purpose envisioned by the grant, reasonably, in good faith, on the basis of evidence reasonably evaluated, after giving due consideration of and balancing the other values involved.

 

3.   The values to be balanced in this matter are state security and freedom of the press. There can be no effective exercise of freedom of expression without security. But free expression and public debate contribute to state security as part of the system of checks and balances.

 

4.      Free expression may not be curtailed unless there is a near certainty that the publication will cause substantial and grave harm to security. This is especially so in the case of a prior restraint on the publication.

 

5.      The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

 

Supreme Court Cases Cited:

[1] H.C. 5/48 Leon v. The Acting Supervisor of the Tel Aviv Municipal Area, 1 P.D. 58.

[2] H.C. 222/68 Nationalist Groups, A Registered Association v. The Minister of the Police, 24 (2) P.D. 141.

[3] H.C. 107/52 Assad v. The Chief of Staff of the Armed Forces, 6 P.D. 339.

[4] F.H. 29/84 Kossoi v. Feuchtwanger Bank, 38 (4) P.D. 505.

[5] Cr. A. 667/83 Borochov v. Yeffet, 39 (3) P.D. 205.

[6] H.C. 953/87 Poraz v. The Mayor of Tel Aviv-Jaffa, 42 (2) P.D. 309.

[7] H.C. 73/53 "Kol Ha-Am" Company Ltd. v. The Minister of the Interior, 7 P.D. 871.

[8] H.C. 58/68 Shalit v. The Minister of the Interiorr, 23 (2) P.D. 477.

[9] C.A. 165/82 Kibbutz Hazor v. Revenue Agent Rehovot, 39 (2) P.D. 70.

[10] E1. A. 2/84 Neiman v. The Chairman of the Elections Committee for the Eleventh Knesset, 39 (2) P.D. 225 (also reported in 8 Selected Judgments xxx).

[11] C.A. 65/57 HaEtsni v. Ben Gurion, 11 P.D. 403.

[12] C.A. 81/55 Kochavi v. Baker, 11 P.D. 225.

[13] Cr. A. 108/66 "Dan" Cooperative for Public Transportation Ltd. v. The Attorney General, 20 (4) P.D. 253.

[14]H.C. 262/62 Peretz. v. The Kfar shmaryahu Local Council, 16 P.D. 2101.

[15] H.C. 301/63 Shitreet v. The Chief  Rabbi of Israel, 18 P.D. 598.

[16] H.C. 243/62 Israel Movie Studios Ltd. v. Greg, 16 P.D. 2407.

[17]H.C. 39/64 EI-Ard Company Ltd. v. The Supervisor of the Northern Region, Nazareth, 18 P.D. 340.

[18] H.C. 153/83 Levy v. The Police Commander of the Southern District, 38 (2) P.D. 393.

[19] H.C. 14/86 Laor v. The Council for Review of Movies and Plays, 41 (1) P.D. 421.

[20] H.C. 644/81 Omer International Inc. New York v. The Minister of the Interior, 36 (1) P.D. 227.

[21] H.C. 355/79 Katalan v. The Prisons Service, 34 (3) P.D. 294.

[22] H.C. 234/84 "Chadashot" Ltd. v. The Minister of Defense, 38 (2)

P.D. 477.

[23] Cr. A. 126/62 Dissenchik v. The Attorney General, 17 P.D. 169.

[24] Cr. A. 696/80 Azulai v. The State of Israel, 37 (2) P.D. 565.

[25] H.C. 253/64 Jerris v. The Supervisor of the Haifa District, 18 (4)

P.D. 673.

[26] H.C. 448/85 Daher v. The Minister of the Interior, 40 (2) P.D. 701.

[27] H.C. 399/85 Kahane v. The Managing Board of the Broadcasting Authority, 41 (3) P.D. 255.

[28] Cr. A. 255/68 The State of Israel. v. Ben Moshe, 22 (2) P.D. 427.

[29] H.C. 372/84 Klopper-Naveh v. The Minister of Education and Culture, 38 (3) P.D. 233.

[30] C.A. 723/74 "Ha'aretz" Newspaper Publication Ltd. v. The Israel Electric Company Ltd., 31 (2) P.D. 281.

[31] H.C. 1/81 Shiran v. The Broadcasting Authority, 35 (3) P.D.365. [32] H.C. 243/82 Zichroni v. The Managing Board of the Broadcasting Authority, 37 (1) P.D. 757.

[33] H.C. 554/81 Bransa v. The Military Commander of the Central District, 36 (4) P.D. 247.

[34] H.C. 292/83 Temple Mount Loyalists, A Company v. The Police Commander of the Jerusalem Region, 38 (2) P.D. 449.

[35] S.S.A. 5/86 Spiro v. State Services Commissioner, 40 (4) P.D. 227.

[36] H.C. 259/84 Israeli Institute for the Selected Business and Product v. The Broadcasting Authority, 38 (2) P.D. 673.

[37] H.C. 562/86 Al Hatib v. The Ministry of the Interior Supervisor of the Jerusalem District, 40 (3) P.D. 657.

[38] Cr. A. 495/69 Omer v. The State of Israel, 24 (1) P. D. 408.

[39] F.H. 16/61 The Registrar of Companies v. Cardush, 16 P.D.1209.

[40] H.C. 241/60 Cardush v.The Registrar of Companies, 15 P.D. 1151.

[41] H.C. 742/84 Kahane v. The Speaker of the Knesset, 39 (4) P.D. 85.

[42] H.C. 389/80 Yellow Pages Ltd. v. The Broadcasting Authority, 35 (l) P.D. 421.

[43] H.C. 910/86 Ressler v. The Minister of Defense, 42 (2) P.D. 441.

[44] H.C. 442/71 Lanski, v. The Minister of the Interior, 26 (2) P.D. 337.

[45] H.C. 361/82 Hamry v. The Military Commander of the Judea and Samaria Area, 36 (3) P.D. 439.

[46] H.C. 56/76 Berman v. The Commissioner of Police, 31 (2) P.D. 587.

[47] H.C. 159/84 Shahin v. The Commander of the I.D.F. Forces in the Gaza Strip Area, 39 (1) P.D. 309.

[48] H.C. 46/50 Alayubi v. The Minister of Defense, 4 P.D. 222.

[49] H.C. 731/86 Micro Daf v. The Israel Electric Company Ltd., 41 (2) P.D. 449.

[50] H.C. 393/82 G'amaut Aschan Alm'almun Alta'unia Almahaduda Almasaulia, A Cooperative Association Legally Registered in the Command Headquarters for the Judea and Samaria Area v. The Commander of the I.D.F. Forces in the Judea and Samaria Area, 37 (4) P.D. 785.

[51] H.C. 329/81 Nof v; The Attorney General, 37 (4) P.D. 326.

[52] H.C. 292/86 HaEtsni v. The State of Israel, 42 (4) P.D. 406.

[53] H.C. 541/83 Asli v. The Supervisor of the Jerusalem District, 37 (4) P.D. 837.

[54] H.C. 2/79 Al Assad v. The Minister of the Interior, 34 (1) P.D. 505.

[55] H.C. 488/83 Bransy v. The Director of the Department for Visas and Citizenship, 37 (3) P.D. 722.

[56] H.C. 306/81 Sharon v. The Knesset Committee, 35 (4) P.D. 118.

[57] H.C. 731/85 The "Kach" Part v. The Speaker of the Knesset, 39 (3) P.D. 141.

 

American Cases Cited:

[58] United States v. Progressive, Inc., 467 F. Supp. 990 (1973).

[59] New York Times Co. v.. United States, 403 U.S. 713 (1971).

[60] Near v. Minnesota, 283 U.S. 697 (1931).

 

 English Cases Cited:

[61] Liversidge v. Anderson [1941] 3 A11 E.R. 338 (H.L.).

[62] Nakkuda v. M.F. De S. Jayaratne [1951] A.C. 66 (P.C.).

[63] Ridge v. Baldwin [1964] A.C. 40.

[64] Reg. v. I.R.C. Ex p. Rossminister Ltd. [1980] A.C. 952.

 

 

JUDGMENT

 

            Barak, J.:

           

            What is the authority of the "Military Censor", acting pursuant to the Defence (Emergency) Regulations, 1945, to bar publication of a newspaper article that criticizes the functioning of the head of the Agency for Intelligence and Special Duties (the Mossad), while noting that the occasion for such criticism is his impending replacement - that is the question which is at the center of the petition before us.

           

            The Petition

           

            1. A daily newspaper called "Ha-Ir" is published in Tel Aviv by the third Petitioner. Mr. Shnitzer, the first Petitioner, is its editor. Aluf Ben (the second Petitioner) is a journalist employed by this newspaper. He prepared an article about the forthcoming changes in the leadership of the Mossad. The article was sent to the Chief Military Censor (the first Respondent) and was disqualified by him (on 3.8.88). The reason given for prohibiting publication of the article was that its publication would prejudice the security of the State. Several days later (11.8.88) the editor submitted to the Censor a different version of the article. This new version was also disqualified on the same grounds of state security. The Censor asked the newspaper to resubmit the article, and this was done (on 14.8.88), this time containing references to persons by name. This version was disapproved for publication (on 15.8.88). Several days later (on 23.8.88), the article was submitted to the Censor in its final form. The Censor approved its publication, save for 32 paragraphs whose publication was prohibited. The petition was brought against this decision.

           

            2. The selections whose publication was prohibited deal with three

  

          matters: First, a description of the head of the Mossad. In the Censor's opinion, these portions could lead to his identification and thus prejudice his personal safety. Second, adverse criticism of the functioning of the head of the Mossad, including on grounds of inefficiency, which did not disclose events which had not previously been revealed. In the Censor's opinion, this criticism of the head of the Mossad would injure the Mossad's ability to function at all levels. In particular, it could harm state security insofar as contacts with parallel agencies in other countries are concerned, as well as with local field operatives. Third, publication of the expected change in the head of the Mossad. In the Censor's opinion, this would focus the attention of those interested in such matters on his person, his movements and his activities, and thereby lead to his identification, particularly abroad, which could cause substantial risk to his safety.

 

          3. Mr. Lieblich, the Petitioners' representative, agreed that all references to the identity of the head of the Mossad should be deleted, and this is no longer an issue before us. On the other hand, it is his opinion that the two other matters - criticism of the functioning of the head of the Mossad and the date of his replacement - should be published and were unlawfully disqualified. Mr. Lieblich emphasized the importance of freedom of expression and the public's right to be informed in a democratic regime. In his opinion, only when there exists a near certainty of prejudice to the security of the State may the Military Censor prohibit publication, and even then he must act reasonably. According to Mr. Lieblich, the publication of criticism of the head of the Mossad and the date of his replacement do not create a near certainty that state security will be prejudiced and the ban on their publication was not reasonable. In his arguments before us Mr. Lieblich stressed the public importance of the position of head of the Mossad - particularly after the Yom Kippur War - and the vital necessity that the most suitable man be appointed to this task. It was, therefore, (according to him) the Petitioners' duty to admonish and arouse those responsible so that the appointment of a new head of the Mossad would be properly weighed, and that it would not be influenced by politics, or by partisan conflicts or by an attempt to compromise by -appointing a mediocre person. Mr. Lieblich emphasized before us that the Petitioners did not mention any names in the article and did not recommend any candidates. Their intention is only to stress the duty to appoint suitable persons so that previous instances of negligence would not be repeated. Mr. Lieblich agrees that the operations of the intelligence services should be secret and protected against publication, but there is no justification, in his opinion, to prohibit publication of criticism of the head of the Mossad. Such public criticism could even result in extra vigilance on his part. Finally, Mr. Lieblich emphasized that it is permissible to publish information concerning the expected appointment of the head of the General Security Services, and there are no grounds to distinguish between him and the head of the Mossad. He also drew attention to an article published in September 1987, which the first respondent had allowed, in which reference was made to the growing agitation in Mossad circles over the appointment of the next head of the Mossad. Mr. Lieblich also pointed out that the Military Censor does not ban publications criticizing the head of the General Security Services, the head of Military Intelligence and the Chief of Staff. In his opinion, there should be one criterion, insofar as public criticism is concerned, for all heads of security organizations.

 

            4. In her reply, Mrs. Arad, who appeared for the respondents, noted that the Military Censor agrees that the right of expression and freedom of expression are basic principles of our system of law which should be honored. This premise has always guided his considerations. Furthermore, the Military Censor accepts the fact that the proper test to be applied in reviewing his powers is that of the near certainty that the publication would prejudice the security of the State. He also agrees that he must act reasonably. However, Mrs. Arad argued, the publication of criticism of the head of the Mossad and of his impending replacement create a near certainty that the security of the State will be harmed, and the prohibition of such publication was reasonable. We have already noted the Military Censor's reasons for his decision to forbid the publication. Mrs. Arad noted that the Military Censor did not prohibit publication of those parts of the article which criticized the Mossad and its functioning in general. He only censored criticism of the outgoing head of the Mossad. The reason for this was, as already noted, that, as long as the head of the Mossad remains in office, any references to the performance of his functions could prejudice the security of the State. She argued that there is a difference between criticism of the head of the Mossad and criticism of the heads of other security services, in light of the exceptional nature of the Mossad's work. Thus, for example, according to present practice, announcement by the Government of the appointment of a new head of the Mossad is not accompanied by announcement of his name, while publication of his retirement is permitted together with publication of his identity for the first time. This practice is not followed in the case of the heads of other security services. Mrs. Arad added that there is public control over the appointment of the head of the Mossad, as he is appointed by the Prime Minister and functions under the control of the Prime Minister, the Government, the Foreign Affairs and Security Committee of the Knesset, the Knesset and the State Comptroller.

 

            5. During the course of the proceedings, the "battle lines" between the parties were narrowed. The Censor withdrew his ban with respect to eight of the thirty-two paragraphs which he had previously censored; and the Petitioners agreed, of their own accord, to remove six of the remaining paragraphs. The dispute concerns, then, the remaining eighteen paragraphs, which concentrate on criticism of the functioning of the outgoing head of the Mossad and on his forthcoming replacement. The question before us is, therefore, whether the Censor's approach in these matters is lawful.

           

            The Normative Framework

           

            6. The "military censorship" exists by virtue of the Defence (Emergency) Regulations - henceforth the Defence Regulations. Chapter 8 of these Regulations deals with censorship. Regulation 87 (1) provides that:

           

          "The Censor may by order prohibit generally or specially the publishing of matters the publishing of which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order."

           

            The Censor is also empowered to demand that material be submitted for censorship before publication (Regulation 97). Publication of material whose publication was banned is an offense against the Defence Regulations. The Censor was appointed by the High Commissioner whose powers have now been assigned to the Minister of Defence. The Censor is an Army officer, and censorship pursuant to Chapter 8 of the Defence Regulations is performed within the framework of the Army. Hence the term "Military Censor". It should be noted that in actual fact the Military Censor's powers are not exercised with respect to those newspapers which are parties to the agreement between the Editors' Committee and the Minister of Defence (for particulars of that agreement, see Z. Chafets, "Press and Government in Israel", 14 Israel Yearbook on Human Rights (1984) 134; P. Lahav, "Press Law in Modem Democracies" (New York 1985) 265, 275). The newspaper "Ha-Ir" is not a member of the Editors' Committee and is not a party to the agreement with the Military Censor. The legality of the Censor's actions will therefore be examined directly on the basis of the Defence Regulations without any reference to the agreement with the Editors' Committee.

 

            7. In the context of the petition before us, the provisions of the Defence Regulations which deal with military censorship give rise to four questions: first, in what circumstances may the Military Censor prohibit publications in newspapers on the grounds of prejudice to the defense of the State or to the public safety or order; second, what are the limitations imposed on the Military Censor's exercise of his discretion; third, what is the scope of judicial review of the Military Censor's decisions; and fourth, does the Military Censor's decision in this case satisfy the appropriate tests and is there room for our intervention in his decision. I shall deal with these questions one by one.

           

            The first question: Circumstances in which publication may be prohibited

           

            8. The Defence Regulations were enacted by the High Commissioner pursuant to the powers vested in him by Article 6 of the Palestine Order-in-Council (Defence), of 1937. These Regulations are, therefore, part of the Mandatory legislation. However, pursuant to section 11 of the Law and Administration Ordinance, 1948, they became part of Israeli law. This change from Mandatory law to Israeli law was not a purely technical matter. A change in the framework brings in its wake, by the nature of things, a change in content. Section 11 of the Law and Administration Ordinance provides that the law which existed in Palestine on May 15, 1948, remains in force subject to "such modifications as may result from the establishment of the State and its authorities". Initially, this court held that such modifications were of a technical nature only (H.C. 5/48 [1], at p. 69). Later, it was held that such "modifications" are not of a technical nature only but also substantive (H.C. 222/68 [2]). Justice Silberg held, at pages 157-158 of the latter judgment, with reference to the technical approach of H.C. 5/48:

 

"With all due respect to the learned Justices, I am not convinced that the formal interpretation which they gave to these words is correct. I think there would be something of a "capitis diminutio" (diminution in value) of the great historical event - the creation of a Jewish State in Eretz Israel, if we were to say that the legislative change, after 2000 years of exile and after the establishment of our independent State, was for us, for example, merely that change in borders, in 1948, because of which the Allenby Bridge had to be removed from the list of 'lawful' points of entry into the country, published in 1943.... I admit without any shame that I am unable to grasp this idea. My heart is with those 'maximalists' who regard our national independence as the longed-for redemption, the third Temple, the rehabilitation of the nation's existence. And if this is the nature of our independence then it is possible, in principle, to examine the heartbeat of every Mandatory law in order to discover whether it complies with the spirit imbuing the laws of our independent and free state."

 

            A colonial regime was replaced by political independence. Autocratic rule was replaced by democracy, which is the government of the people, based on representation, operating according to the will of the majority, but upholding the rights of the individual. This change, in the natural course of events, brings in its wake a new approach to law and to judicature. The results of this change vary with the circumstances. Sometimes, the change is purely technical (see H.C. 107/52 [3]). On other occasions it is of considerable substance, resulting in the exclusion of Mandatory legislation from Israeli law (see H.C. 228/68 [2]). This would happen only on rare occasions, and has become even rarer with the passage of time (see H.C. 228/68 [2], at p. 209).

           

            9. One of the changes that may result from the establishment of the State and its authorities is the manner of interpreting Mandatory legislation.

           

"... [T]he last part of section 11 emphasizes principally the fact that political independence also brings in its wake changes in the scope of law and its interpretation. Wherever it was necessary, therefore, the basis for independent interpretation of the law and the independent crystallization of rules was created by statute." (President Shamgar in F.H. 29/84 [4], at p. 511.)

 

            This change in the interpretation of Mandatory law is twofold. First, Mandatory legislation is not interpreted according to the rules of interpretation current during Mandatory times, but according to the rules of interpretation followed in Israel. Second, legislation is interpreted against the background of the basic principles of the legal system (see Cr. A. 667/83 [5] and H.C. 953/87 [6]). Mandatory legislation will not be interpreted against the background of the basic principles of the system of law that prevailed during the Mandate, but against the background of the basic principles of the system of law that operates in Israel. Justice Agranat noted this point in H.C. 73/53 [7], at p. 884, when he said:

           

"The system of laws on which the political institutions in Israel were established and now operate testifies to the fact that this is a country whose foundations are democratic. Likewise, the statements contained in the Declaration of Independence - in particular concerning the fact that the State is based on 'the foundations of freedom' and the guarantee of freedom of conscience - indicate that Israel is a freedom-loving country. It is true that the Declaration of Independence 'is not a constitutive law which lays down norms concerning the validity or invalidity of other legislation' ... but to the extent to which it 'expresses the people's aspirations and their beliefs' it is our duty to give heed to its contents when seeking to interpret and give meaning to the laws of the State, including laws enacted during the Mandate and which were adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948. It is a well-known axiom that a people's laws are mirrored in their national way of life."

         

          A legal norm - whether enacted or created by the judiciary - does not stand on its own. It is a "creation which lives in its environment" (Justice Sussman, in H.C. 58/68 [8], at p. 513). It fits into its environment, influences it and is influenced by it. The "legal environment" which influences every legal norm "includes not only the immediate legislative context but also wider circles of accepted principles, basic aims and fundamental criteria which derive, in the words of President Landau, from 'the sources of social consciousness of the nation within which the judges live'.... It is not necessary to repeat these principles in every law; they constitute a kind of 'normative umbrella' over all legislation" (C.A. 165/82 [9], at p. 75).

         

          "A legislative act ... is not a one-time act cut off from the general way of life. The law takes on substance within the framework of a given legal and political system. It is one brick in an entire edifice, built on the basis of criteria of government and law which constitute the 'primary concepts of that society'...." ( E1. A. 32/84 [10], at p. 307).

         

          Therefore, a judicial norm which constituted part of the Mandatory law is absorbed into our law if it is not inconsistent with "the principles of the legal structure of our country" (Justice Landau in C.A. 65/57 [1l], at p. 409), and it continues to develop within the Israeli law against the background of the principles of that law. Its image is determined by its new environment (see C.A.81/85 [12], at p. 236). The same holds for a legislative norm which constituted part of Mandatory legislation. This nom] was absorbed into our law and if it proves to be consistent with the basic principles of our legal structure it continues to develop within Israeli law against the background of those basic principles. This is the source of the striving for "legislative harmony" (in Justice Sussman's words in Cr. A. 108/66 [13], at p. 261). Different acts of legislation, whether their historical source be Mandatory or our own independent legislation, must be interpreted together and operate as a comprehensive system (H.C. 953/87 [6], at p. 328). The nature of the basic principles can be learned from different sources, one of the most important of which is the Declaration of Independence, "which constitutes a legal charter that expresses the nation's values" (H.C. 953/87 [6], at p. 330). Justice Sussman emphasized this when he pointed out that "the way of life of the citizens of the state and the principles which every authority in the state must take as their guiding light are laid down" in the Declaration of independence (H.C. 262/62 [14], at p. 2116).

 

            The Declaration of Independence is not the only source from which one can learn about the basic values of the state. For example, the Supreme Court refers from time to time to the "basic principles of equality, freedom and justice, which are the legacy of all advanced and enlightened states" (Justice Cohen in H.C. 301/63 [15], at p. 612) and to "basic rights which are not recorded in texts, but emanate directly from the character of our state as democratic and freedom-loving" (Justice Landau in H.C. 243/62 [16], at p. 2414).

           

            10. The Defence Regulations were enacted by a colonial legislature and not by a democratic one. It was contended, after the establishment of the State of Israel, that their continued enforcement was not consistent with the changes resulting from the establishment of a democratic state. This argument was rejected by the Supreme Court (in H.C. 5/48 [l] and H.C. 39/64 [17]). Several unsuccessful attempts were made in the Knesset to abrogate them entirely (see A. Rubinstein, The Constitutional Law of Israel (3d ed. 1981) 219). But the Israeli legislature saw fit to repeal certain sections of the Regulations and to replace them with original Israeli provisions (see, for example, the Emergency Powers (Arrests) Law, 1979). These legislative changes did not affect the powers of the Military Censor. Chapter 8 of the Emergency Regulations, which deals with military censorship, has therefore remained in force in Israel. However, the interpretation of the Defence Regulations must perforce differ in Israel from that given to them during the Mandate. The Defence Regulations are today part of the legislation of a democratic state. They must be interpreted against the background of the basic principles of Israeli law. The Supreme Court has acted in this manner with respect to a long list of Mandatory laws, such as the Police Ordinance [New version] 1971, (see H.C.153/83 [18]), the Cinema Ordinance (H.C. 243/62 [19]), the Public Entertainments (Censorship) Ordinance (H.C. 14/86 [19]), the Newspaper Ordinance (H.C. 73/53 [7]; H.C. 644/81 [20]), the Prisons Ordinance [New Version] 1971 (H.C. 355/79 [21]).

 

 The same applies to the interpretation of the Defence Regulations. Justice Elon so remarked (in H.C. 234/84 [22], at p. 483):

 

          "The Mandatory Defence Regulations of 1945 do not always meet with our approval and we are of the opinion that they should be interpreted narrowly, as long as this is compatible with their wording, so as to make them consistent with the democratic principles on which the State of Israel is founded."

           

            It is true that the Defence Regulations deal with the security of the State, which influences the manner in which the basic principles of our system of law are applied to them. But this has no influence on the question whether these principles should be applied or not. Every legislative act - whether it originated during the Mandate or is purely Israeli, whether it deals with the security of the State or otherwise - must be interpreted against the background of the general principles of our system of law. State security and public order do not supplant and negate the application of basic values. They are interwoven with them, influence their nature and are balanced within their framework.

           

            11. What are the basic values which shape the interpretation of the Defence Regulations? First and foremost come security considerations, which spread their influence across the entire scope of the Regulations. The realization of this interest concerning the defense of the State and public safety and order is the main purpose of the Regulations and they must be interpreted against the background of this purpose (compare Article 6 of the Palestine Order-in-Council (Defence)). Alongside considerations of security (in their broad sense) there are other values, in the light of which every enactment in a democratic society must be interpreted, and which the Defence Regulations affect. Thus, for example, the Defence Regulations deal with the military courts. It is only natural, in this context, that the value of judicial integrity must be taken into account (see Cr. A. 126/92 [23]; Cr. A. 696/81 [24]). The Defence Regulations contain provisions pertaining to crimes, punishments and detention prior to conviction. In this context, account must be taken, among other things, of the individual's right to personal freedom and the presumption of innocence. Another chapter of the Defence Regulations deals with Unlawful Associations. In this context account must be taken, of course, of the basic right to freedom of association (see H.C. 253/64 [25]). Yet another chapter of the Defence Regulations deals with orders restricting the freedom of movement. In this context it is only natural that the right to freedom of movement will be taken into account (see H.C. 448/85 [26]). Defence Regulations which provide for military censorship prejudice, first and foremost, the right to freedom of expression. Censorship of publications prejudices privacy. The broad authority to search ("censorship of travelers") prejudices privacy, the dignity of man and the integrity of property and person. This list of basic values which are adversely affected by the Defence Regulations is by no means complete or comprehensive. It only serves to show how broad a range of values are promoted by the Defence Regulations (defense, public safety and order) and are prejudiced by them (judicial integrity, personal freedom, freedom of association, freedom of movement, freedom of expression, privacy, dignity of man and integrity of property and person.)

 

            12. In interpreting the Defence Regulations account must be taken, on the one hand, of the basic values which are their raison d'etre and, on the other hand, of the basic values which every legislative act in a democratic country must be assumed to intend to promote (see H.C. 953/87 [6]). Sometimes all these values lead to the same result. But sometimes they may clash with one another. So, for example, the values concerning the security of the State and public safety and order may clash with the values of freedom of movement (see H.C.448/85 [26]), freedom of expression (H.C. 73/53 [7]), the dignity of man (see H.C. 355/79 [21]). In all such cases the court must strike a balance between the conflicting values. In the course of discussing the need to strike a balance between the right to security and the right to freedom of expression, insofar as the powers of the Military Censor under the Defence Regulations are concerned, Justice Elon said, in H.C. 234/84 [22], at p. 483:

           

          "The existence of censorship and the prohibition of publication sometimes gnaw away at the basic right to freedom of expression, the right to inform and to be informed, which is one of the 'basic rights which are not recorded in texts, but emanate directly from the character of our State as democratic and freedom-loving'... One of the important missions of democracy is to find the proper balance between the existence and preservation of this right and the need to protect legitimate secrecy, in defense of the security of the State and the proper functioning of public safety and order, which also is an essential condition for the very existence of a democratic regime...".

           

            13. In the petition before us the value of state security clashes with the values of freedom of expression and the public's right to be informed. These conflicting values are basic to our legal system. The state cannot exist without security. Nor can the social consensus upon which the state is built. So, too, individual freedoms which the state is supposed to promote cannot exist. Hence the centrality of security in the general complex of values in the legal system. Without freedom of expression, truth cannot be disclosed, the individual cannot fulfil himself and the democratic regime, which is based on the exchange of opinions, cannot continue to exist. The free exchange of information, opinions and points of view is essential to the existence of a democratic regime, which is based on the rule of the people, by the people, for the people. Without freedom of expression democracy loses its soul (H.C. 399/85 [27], at p. 274). On more than one occasion this court has noted "the close connection that exists between the principle of freedom of expression and debate and the proper functioning of the democratic process" (Justice Agranat in Cr. A. 255/68 [28], at p. 435). It noted therefore that "freedom of expression is a condition precedent for the existence of democracy and its proper functioning" (President Shamgar in H.C. 372/84 [29], at p. 238). Freedom of expression thus has a special status. It secures the existence of a democratic regime which, in turn, secures the existence of other basic rights (see H.C. 73/53 [7] supra, at p. 878; C.A. 723/74 [30], at p. 295).

           

            14. How is the clash between the security of the State and freedom of expression to be resolved? It seems to me that if the clash between the two values is "head-on", so that there is no possibility of co-existence between them, then the security of the State must be preferred, for two reasons: First, because the security of the State is the substantive objective of the Defence Regulations and a judge-interpreter must, first and foremost, achieve this objective. Second, because a democracy must exist in order to realize itself:

           

          "A democratic regime is prepared to protect freedom of expression so long as such freedom protects democracy. But when freedom of expression becomes a tool with which to injure democracy, then there is no reason for democracy to put its head on the block for the axeman ..." (H.C. 399/85 [27] supra, at p. 287).

           

            "A constitution is not a formula for suicide and individual rights are not a platform for national destruction" (El. A. 2/84 [10], at p. 310). "A democracy does not have to commit suicide in order to prove its vitality" (Id., at p. 315). A person cannot enjoy freedom of expression if he does not have the freedom to live in the society in which he chooses to live. The right to live in a society is prior to the right to express one's opinions therein (see United States v. Progressive, Inc. (1973) [58], at 995).

           

            15. The "balancing formula" in the case of a clash between state security and freedom of expression assumes, therefore, fulfillment of the value of state security. However, because of the centrality of the basic right to freedom of expression, it seeks to limit the harm to this value as much as possible. Such harm will be allowed only if it is absolutely necessary in order to preserve the value of security. In this connection, the Supreme Court decisions stressed two main questions: first, what is the extent of the injury to state security which justifies restricting freedom of expression; second, what is the probability that state security will be injured if freedom of expression is not curbed. The approach that guides the decisions is that "the question always is, whether the extent of the injury, discounted by the possibility that it will not occur, justifies restricting the individual's right in order to prevent the danger..." (El. A. 2/84 [10] supra, at p. 311). It has been held that in a clash between state security and public safety and order, on the one hand, and freedom of expression, on the other, "freedom of expression must yield only when the injury to the public order is severe, serious and grave" (H.C. 14/86 [19], at p. 435). Hence, only when the injury to the public order is severe and substantial will it justify curbing freedom of expression. Likewise, it has been held that the probability of injury which would justify limiting freedom of speech must amount to a "near certainty". "For this court to prohibit a person in charge of public broadcasting from publishing a particular matter, such extreme circumstances must exist as to constitute a real and nearly certain danger to the safety of the public at large..." (President Shamgar in H.C. 1/81 [31], at p. 378); "According to Justice Agranat (as his title then was), the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a particular instance would endanger the public or the security of the State..." (Justice D. Levin in H.C. 243/82 [32], at p. 766). Such a probability does not exist when it is possible to take other measures - apart from restricting personal freedom and freedom of expression - in order to minimize the danger. Curbing freedom of expression should not be the first means; it should be the last means (see H.C. 153/83 [18] supra, at p. 407; H.C. 14/86 [19] supra, at p. 437; H.C. 554/81 [33], at p. 252). "I consider censorship a measure to be used only in the rarest of cases when there is no alternative". (Justice Witkon in H.C. 243/62 [16] supra, at p. 2425).

 

            16. We have seen that in different statutory contexts (such as the Police Ordinance [New Version], the Newspaper Ordinance, the Broadcasting Authority Law, 1965, the Public Entertainments Ordinance (Censorship)) this Court adopted an interpretive approach in accordance with which freedom of expression may be restricted in order to protect the security of the state and public order only when there is a near certainty that substantial injury will occur to such state security and public order if freedom of expression is not curbed. Does this approach apply to the interpretation of the Defence Regulations? Counsel for both sides answered this question affirmatively, and I agree with them, for four reasons. First, from the semantic point of view, the Military Censor's authority is conditioned on belief that the publication is likely to prejudice security. This term, "likely", is the same term which was the basis for the "near certainty" formula in H.C. 73/53 [7]. Second, the interpretive approach referred to above is not based only on the word "likely" in the Defence Regulations. It reflects a principled approach to the comparative weight of the values of state security and public order, on the one hand, and freedom of expression, on the other hand, and to the proper balance between them. Justice Landau emphasized this in H.C. 243/62 [16], at p. 2418:

           

"In the 'Kol Ha-Am' case, the court interpreted the specific statutory provision in section 219(2)(a) of the Newspaper Ordinance, whereas here we are dealing with administrative discretion which is not further defined in section 6(2) of the Cinema Ordinance. But the decision in 'Kol Ha-Am' was reached on a broad conceptual basis which is just as applicable to the matter before us".

           

            In quoting Justice Agranat in H.C. 73/53 [7], in connection with the test of near certainty, Justice D. Levin pointed out, in H.C. 243/82 [32], at p. 765:

           

          "These penetrating and instructive words have become a corner-stone in our judicial system, and the principles contained in them are accepted by everyone, without any reservations".

           

            This court adopted this approach in additional cases (see H.C. 292/83 [34], at p. 456; S.S.A. 5/86 [35], at p. 237; H.C. 448/85 [26] supra; H.C. 1/81 [31] supra; H.C. 259/84 [36]; see also P. Lahav, "Freedom of Expression in Supreme Court Judgments", 7 Mishpatim (1976-77) 375).

           

            Third, there is nothing special about the Defence Regulations and therefore no reason to deviate from the general conception accepted in Israel in similar matters. There is no substantive difference between "military" censorship and "civil" censorship, and the same weight should be given to state security, on the one hand, and freedom of expression, on the other, in both. There is no real difference between a "military" officer and a "police" officer in matters concerning the security of the state and public safety vis-a-vis freedom of expression. It is true that the dangers to security which the Defence Regulations seek to prevent may sometimes - but not always - be more severe than the danger to the public order which other laws seek to prevent. This relative difference will be expressed in the fact that it will be easier to show that the danger of injury to state security is substantial and severe and that the probability of its occurrence is nearly certain (see, for example, H.C.562/86 [37]). There is no reason, however, why this difference in the gravity of the danger that exists in some cases should result in the application of different fundamental tests. Therefore, when the question arose as to what test should be applied in deciding what information should not be published by the Broadcasting Authority in connection with interviews with a representative of the P.L.O., this court applied the test of "near certainty". Justice D. Levin pointed out that "the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a specific instance is likely to endanger public safety or the security of the state..." (H.C. 243/82 [32], at p. 766). President Shamgar reiterated the same approach when he pointed out that "no right should be denied in advance save when there is a near and inevitable certainty that a crime will be committed or that security or public safety will be injured..." (El. A. 2/84 [l0] supra, at p. 266). Fourth, on its merits, it seems to me that the test of near certainty of substantial damage to the security of the state is the desirable one. It expresses correctly the comparative social importance of the conflicting principles, according to the standards of the "enlightened public" - the standard we use in similar circumstances (H.C.58/68 [8] supra, at p. 520). "The court must determine the borderline between what is permitted and what is forbidden in every case according to its judgment, guided by the enlightened concepts that prevail in modern society, while remembering that every limitation of freedom of expression exudes an odor of censorship, and in borderline cases the tendency should therefore be to permit rather than to prohibit" (Justice Landau in Cr. A. 495/69 [38], at p. 41l). This test protects the security of the state and public safety, on the one hand, since it prevents a publication that entails a near certainty of substantial damage to these values. At the same time, this test protects freedom of expression in broad and comprehensive areas, and allows thereby the achievement of the aims which freedom of expression seeks to achieve. Any attempt to apply a test that is more restrictive of freedom of expression could have harsh results both for freedom of expression and for democracy. It should not be forgotten that we are dealing with censorship which prevents publication in advance, and thereby not only "chills" freedom of expression but "freezes" it (see A.M. Bickel, The Morality of Consent (New Haven, 1975) 61). This freezing effect is done without any judicial process or judicial decision. It is, therefore, especially important that the denial of information to the public should occur only in exceptional and unusual circumstances. The near certainty test expresses this approach. It is not superfluous to note that the test in cases of prior restraint is much more stringent in the United States. The rule there is that prior restraint is forbidden, except when the publication affects the security of the state directly, immediately and unavoidably, as for example, the physical safety of participants in a military operation (New York Times Co. v. United States (1971) [59]; Near v. Minnesota (1931) [60]). We have not adopted this test in Israel. But we have pointed out that the distinction on which it was based - between prior restraint of publication and punishing the publisher after the fact - justifies adopting the "near certainty" test in Israel rather than a more lenient one. Justice Agranat noted this consideration in H.C. 73/53 [7], at p. 886:

 

"We have dwelt on this Anglo-American approach to the use of prior restraint because it demonstrates very well that - insofar as the tendency to protect the interest of freedom of expression is concerned - this is a very strong and extreme measure. If the Israeli legislator nevertheless saw fit to leave intact the powers defined in section 19(2) (a), it must be understood that it did so because of the state of emergency the country has known ever since its establishment. But, on the other hand, the Israeli legislator should not be assumed to have intended to give the authority in charge of implementing these powers - particularly since they are so severe and drastic - the right to cease publication of any newspaper merely because the matters published therein appear to it to tend to endanger the public safety but do not constitute direct incitement to this end, or at least encouragement, as could bring that result substantially closer in the circumstances. It would be out of the question to attribute such an intention to the Israeli legislator since, on the one hand, as we have already said, Israel is founded on principles of democracy and freedom, and, on the other hand, adopting such an abstract and obscure test as 'a bad tendency' would inevitably open the door wide to the influence of the personal opinions of the person entrusted with the above powers - however noble his aspirations might be - when evaluating the danger feared, as it were, to the public safety as a result of the publication concerned".

 

            Consequently, Israeli society of today, which sees the need to protect security and public safety on the one hand and freedom of expression on the other hand, cannot find a better balance between them than in the formula of a "near certainty". President Shamgar discussed this in El. A. 2/84 [10] supra, at p. 265:

 

"If there be a near certainty that the exercise of a particular right in a concrete case will injure public safety and order, then the statutory authority so empowered may restrain the exercise of the right in the said circumstances".

 

            Absent a near certainty of real danger, it is important that there be a free exchange of opinions and ideas. This is important in matters of security no less than in other matters. Precisely because security matters affect the very existence of society, it is important that the public be informed concerning the various problems, so that it may reach intelligent decisions on problems which concern it.

           

"On matters affecting the national interests, the people must be provided with all the pertinent information so that they can reach intelligent, responsible decisions. The first constitutional principle is that a self-governing people must have a thorough knowledge and understanding of the problems of their government in order to participate effectively in their solution... In the absence of strong and effective governmental checks and balances in the areas of national defense and international affairs, the only effective restraint on executive power lies in a well-informed citizenry. Without an alert, free and diligent press there cannot be a well-informed citizenry. Only if the government is vigorously and constantly cross-examined and exposed by the press can the public stay informed and thereby control their government" (R.F. Flinn, "The National Security Exception to the Doctrine of Prior Restraint", 13 Wm. & Mary L. Rev. (1971-72) 214, 223).

 

            Precisely because of the implications for the life of the nation contained in decisions of a security nature, the door should be opened to a free exchange of opinions on matters of security. In this connection it is particularly important that the press be free to serve as a forum for the exchange of opinions and for criticism in matters of vital interest to the public and the individual. It appears to me, therefore, that the near certainty test is the proper test to be applied when examining the Military Censor's powers under the Defence Regulations.

 

       17. To summarize: the Mandatory Defence Regulations must be interpreted against the background of Israel's values. In interpreting them one must balance state security and public safety and order, on the one hand, and freedom of expression, on the other. This balance means that freedom of expression can be restrained, as a last resort, only when there is a near certainty of substantial danger to state security and public order.

      

       The second question: Restrictions on the exercise of discretion

      

       The Military Censor's discretion is subjective. He may prohibit publication of material which "in his opinion, would be, or be likely to be or become, prejudicial" to the public safety or order. Does this discretion render the examination of criteria for the determination of the existence of danger superfluous? Could it not be said that all that is required is that this discretion be exercised in good faith? The answer to these questions is in the negative. Subjective discretion is not absolute. It does not empower the holder of the discretion to choose whatever alternative is in his opinion correct. Subjective discretion is limited (see F.H. 16/61 [39]). Just as any other discretionary power, it must comply with the following demands: first, it must be exercised within the limits of the enabling law that grants the discretion; second, the person who has the discretion must act subjectively to fulfil the objective criteria which fix the conditions for the exercise of the discretion; third, the person who has the discretion must choose one of the various legal options available to him in good faith, without caprice, after weighing only the relevant considerations, and reasonably; fourth, the selection from among the various possibilities must be based on reasonable evaluations and on facts established on the basis of convincing and credible findings, which do not leave room for doubts. I shall deal briefly with each of these requirements.

      

            19. Subjective discretion must be exercised within the limits of the : enabling law. So said President Agranat in H.C. 241/60 [40], at p. 1162:

           

            "The general principle is that every administrative authority must act within the limits of the purpose for which the law has granted it the particular power; and this rule also applies to a power which it may exercise according to its 'absolute discretion'".

 

            Justice Sussman repeated the same idea in F.H. 16/61 [39], at p. 1216:

           

"Discretion which is granted to an administrative authority - even if it be absolute - is always linked to a duty which the authority must fulfil - that is, to the administrative tasks for the purpose of which the authority was empowered to act in its discretion. However extensive the freedom of choice may be, it is never unlimited".

 

"Statutory discretion can be broad or narrow, but it is always limited. The number of possible choices available to the decision-maker may be many or few, but it is never unlimited. In this way the law protects the freedom of the individual... Even the most absolute of discretion must confine itself to the framework of the law which gave it life" (H.C. 742/84) [41], at p. 92).

 

            Therefore, whoever is vested with discretion by the Defence Regulations may exercise this power in order to realize the aims that underlie the Regulations, but not to realize any extraneous aims (see H.W.R. Wade, Administrative Law (Oxford, 5th ed., 1982) 394).

           

            20. Every administrative power is subject to certain conditions and demands. The legal application of the authority requires that these conditions and demands be observed in practice. The subjectivity of the person in authority must be aimed at implementing these conditions and no others. Therefore, if the correct interpretation of section 87 of the Defence Regulations is that a newspaper publication may be prohibited only if the Censor believes that there is a near certainty that the publication will cause substantial injury to security, then the Censor's thoughts must be directed toward the issue whether such a near certainty exists. If, therefore, the Censor prohibits a publication without being satisfied that it creates a near certainty of danger to security, he has not exercised his discretion lawfully.

 

            21. The exercise of discretion assumes freedom to choose between lawful options. The exercise of subjective discretion assumes that the choice between options will be based on the authority's evaluation of the options. This evaluation must be conducted in accordance with the rules of administrative law. It must therefore be made in good faith, without being arbitrary or discriminatory and on the basis of all the relevant considerations, and these alone. Furthermore, evaluation of the options and the selection of the preferred option must be done reasonably (H.C. 389/80 [42]). Subjective discretion and the objective test of reasonableness are not incompatible, but are complementary. Establishing the lawful option must be done according to the test of reasonableness. The power of discretion does not authorize an administrative authority to fashion an unreasonable option. Sometimes there are several options, all of which are reasonable. A range of reasonableness is created. Discretion allows the administrative authority to choose one of these options. Therefore, the Military Censor must consider whether there exists a near certainty that a newspaper publication will cause substantial injury to security. This must be done reasonably, taking into account the needs of security, on the one hand, and freedom of expression on the other, achieving a balance between them in accordance with the test of "near certainty" (see H.C. 910/86 [43], at p. 48l). This process may raise a number of possibilities, all of which satisfy this test. A "range" of lawful possibilities is then created. The discretion to choose the correct option in this range is given to the Military Censor. He has the power to choose whatever option appears best to him from the options in this range. He has no discretion to select an option that is outside of the range.

           

            22. Regulation 87 of the Defence Regulations provides that the Military Censor may prevent publication if in his opinion the publication is likely to prejudice - that is, if there is a near certainty of substantial damage to - the security of the State. What does it mean to say that the decision concerning the existence of prejudice - that is of a near certainty of substantial damage - is in the discretion of the Chief Censor? It means that the Censor - and only the Censor - has authority in this matter, and if there be several legal choices, only he may make the selection. This provision does not mean that the Chief Censor may reach his decision in any manner which he chooses. The Censor's decision must be reasonable. In other words, it must be assumed that a reasonable censor would have made such a decision in the circumstances of the case. I elaborated on this point in another case:

 

"Discretion concerning the existence of near certainty and the gravity of the danger is vested in the Council. It must exercise this discretion reasonably. There are often several reasonable options, which all accord with the said test. A range of reasonableness is created, within which the court will not interfere... But it will interfere if the Council chooses an option which is not within this range. The Council does not have the discretion to choose an option which does not constitute a near certainty and does not contain an element of grave danger. The mere fact that the Council subjectively believes that the danger is grave and that the likelihood of its occurrence is nearly certain is not decisive. The test whether there exists a near certainty of grave danger is objective. The court must be satisfied that a reasonable council could have reached the conclusion that the danger was grave and that its occurrence was a near certainty on the basis of the facts available to it" (H.C. 14/86 [19], at p. 438).

 

            In determining the reasonableness of the Military Censor's decision, account must be taken of the complex of facts, on the one hand, and of their evaluation in accordance with the test of near certainty of substantial harm to security, on the other. In every case the question is whether a reasonable Military Censor could conclude, on the basis of the given facts, that the publication was likely to cause - in other words, that there exists a near certainty that it would cause - grave or substantial damage to the security of the State.

 

            23. The Military Censor's decision concerning the existence of danger to the security of the State must be based on facts and on evaluations. As to the facts, they are determined by the Chief Censor on the basis of the evidence before him. The determination of the facts must be done according to the usual criteria of administrative law. The test is whether a reasonable governmental authority would have regarded the material before it as having sufficient probative value (H.C. 442/71 [44]; H.C. 361/82 [45], at p. 442). The reasonableness of the decision is a function of the values involved in the decision. Therefore, if the exercise of administrative discretion would prejudice human rights, then persuasive and credible evidence, which leaves no doubt, would be required. Justice Shamgar noted this in H.C. 56/76 [46], at p. 692:

 

"It is true that evaluation of the evidence is, first and foremost, within the prerogative of the authority... But if the authority seeks to deny recognized rights, then while the authority need not base its decision on previous court judgments, still, convincing evidence, which leaves no room for reasonable doubts, is required".

 

            President Shamgar repeated the same idea in H.C. 159/84 [47], at p. 327:

           

"H.C. 56/76... dealt with the question of denial of existing rights, and it was held there that to reach a decision the authority had to have before it convincing and credible evidence, which leaves no room for doubt. I agree with this test. When dealing with the denial of recognized rights or of basic rights ... the evidence required in order to satisfy a statutory authority that it is just to grant a deportation order must, generally, be clear, unequivocal and convincing".

 

            Therefore, the finding that if the publication will not be prohibited there will be a near certainty of substantial injury to the security of the State must be based on clear, unequivocal and convincing evidence. Still, one must not forget that the finding that there exists a near certainty of substantial damage to security must, by its very nature, be based not only on facts but also on the evaluation of future developments. While this evaluation must be based on clear, unequivocal and convincing evidence, nevertheless it must, by its very nature, look to the future and it must necessarily deal with both risks of danger and favorable possibilities. All that can be required in this connection is that the examination of the matter be reasonable. One cannot demand that the Military Censor be imbued with the gift of prophesy.

           

            The third question: the Scope of judicial review

           

            24. After the establishment of the State it was held that the scope of judicial review of the powers of authorities that operate under the Defence Regulations is extremely limited. Justice Agranat noted this in H.C. 46/50 [48], at pp. 227-228:

           

"This court's jurisdiction, when reviewing the acts of the competent authority under the Defence (Emergency) Regulations, 1945, is extremely limited. When the regulation in question empowers the authority to act against an individual whenever that authority is "of the opinion", or "it appears to it", that conditions exist which

so require, then the competent authority itself generally has the last word concerning the question whether those conditions exist. In such cases, this court can only examine whether the said authority exceeded the powers vested in it by the regulation under which it presumed to act, whether it took account of all the factors fixed by law, and whether it acted in good faith. As it is subject to this limited power, the court cannot review the reasons which induced the competent authority to issue the order in question."

 

            This approach was based on the subjective nature of the authority, on its "security" nature and on the English precedents which were current at the time and which took a similar position (primarily Liversidge v. Anderson (1941) [61]).

           

            25. With time there came a gradual broadening of the scope of judicial review. This was the result of developments concerning the nature of subjective discretion and the understanding of judicial review. Considerable judicial experience also accumulated, which enabled expansion of the scope of judicial review of administrative discretion in security matters. Similar developments occurred in England itself where, in the course of time, it became clear that subjective discretion is not essentially different from any other discretion. Justice Sussman noted this in F.H. 16/61 [39] supra, at p. 1218:

           

"I doubt whether there be any difference in principle between  'ordinary' discretion and absolute or 'subjective' discretion. Several objective tests have been established for subjective discretion as well, such as that the absence of good faith, arbitrariness or deviation from the purpose entrusted to the authority would lead to annulment of the administrative act."

         

          Hence, even when exercising subjective discretion, the government authority has the "objective" duty to observe the provisions of the law. Moreover, subjective discretion is flawed not only by "subjective" defects in the authority's acts, such as lack of good faith or arbitrariness. Subjective discretion must be exercised reasonably. Thus, the subjective factor in discretion, too, is measured by objective criteria (H.C. 389/80 [42] supra). There is, therefore, no basis to restrict judicial review or to examine only "subjective" defects such as malice or lack of good faith. This approach is reinforced in the light of our understanding of the essence of judicial review, which draws its force from the principle of separation of powers and the need to ensure governmental legality (see H.C. 910/86 [43] supra). There is no reason why an administrative court should not examine the full scope of administrative discretion according to the test of legality, for otherwise certain areas of discretion would be immune to judicial review. This immunity would ultimately lead to infringement of the law, since where there is no judge there is no law. Therefore, administrative discretion should be examined from the perspective of the laws which determine its legality. If the jurisprudence of administrative discretion (both substantive and procedural) determines that there is a defect in a particular exercise of discretion, then the administrative court should be prepared to review the legality of that exercise of discretion. There is no reason why certain fields of administrative discretion should not be subject to judicial review (subject, of course, to claims of lack of standing, or lack of jurisdiction or other such preliminary claims). Hence there is no basis for the view that the subjectivity of administrative discretion limits the scope of judicial review to certain defined issues. The proper conception is that it is the jurisprudence of discretion which fixes the conditions which determine when the exercise of discretion is legal and judicial jurisprudence establishes that the court has the power to examine whether these conditions are met. It is not the scope of judicial review which determines the legality of administrative discretion but, rather, the legality of the administrative discretion determines the scope of the judicial review (compare H.C. 731/86[49], at p. 458). Judicial review of administrative discretion has been expanded hand in hand with the development of administrative law concerning subjective discretion and the broadening of the legal demands upon administrative discretion. It is interesting to note that as early as H.C. 73/53 [7], which held that the exercise of subjective discretion by the Minister of the Interior had to pass the test of near certainty, Justice Agranat pointed out that:

 

"The expression 'in the opinion of the Minister of the Interior', referred to in section 19(2)(a), requires that we hold that evaluation of the publication's influence on public safety in the circumstances is always the exclusive prerogative of the Minister and, therefore, the High Court of Justice will not interfere with his exercise of discretion unless, in making his evaluation, he deviated from the test of 'near certainty', in the light of the meaning of 'danger to the public safety'; or he paid no attention - or at best only a modicum of attention - to the important interest of freedom of the press; or he erred in the exercise of his discretion in some other way because he was carried away by trivial, untenable or absurd considerations".

 

            This formula accorded well with the law of administrative discretion as it was developed more than thirty years ago. In the meantime the jurisprudence of discretion has been developed. It has been held, inter alia, that an unreasonable decision is unlawful, even if it is not untenable or absurd. Parallel to this development has come the development of the law of judicial review, and it has been held that judicial review may also be invoked when administrative discretion has been exercised unreasonably. The subjectivity of the Military Censor's discretion cannot, therefore, limit the scope of judicial review. Such review must attend to every one of the elements which govern the legality of the Military Censor's exercise of his discretion. There is no room for any "dead space".

           

            26. Considerations of security have deterred judicial review of administrative discretion in the past. It was thought that judges should not interfere since they are not experts in security matters. But in the course of time it has become clear that there is nothing unique about security considerations, in so far as judicial review is concerned. Judges are also not administrative experts, but the principle of separation of powers requires that they review the legality of the decisions of administrative officials. In this connection, security considerations have no special status. They, too, must be exercised lawfully and they, too, are subject to judicial review. Just as judges can examine the reasonableness of professional discretion in every other field and are required to do so, so can they examine the reasonableness of discretion in security matters and must do so. From this it follows that there are no special restrictions on the judicial review of administrative discretion in matters of state security. I so held in another case in which I said that:

 

          "There is a great deal of power concentrated in the hands of the military government and, for the rule of law to hold sway, judicial review must be applied in accordance with the usual tests" (H.C. 393/82 [50]).

           

            The court does not hold itself out as a security expert and it does not replace the security discretion of the competent authority with that of a judge. The court examines only the lawfulness of the security discretion, including its reasonableness. In this connection, there is no difference between the scope of review of security discretion and the scope of review of any other administrative discretion. The court never becomes a supra-governmental authority, but only reviews the lawfulness of the exercise of governmental discretion. In this sense, security considerations are not special. The scope of judicial review should be uniform for all government authorities. In the absence of any express provision of law it is not desirable that certain government authorities should enjoy immunity from judicial review. Similarly, it is not desirable, for example, to limit the scope of judicial review of the Attorney General's discretion to the question whether he acted in good faith. I pointed out that:

           

            "With regard to the scope of the court's intervention, there is no difference between the Attorney General and any other public functionary. The one, like the other, must exercise discretion fairly, honestly, reasonably, without arbitrariness or discrimination, after weighing relevant considerations only. All are subject to judicial review, and just as there is no special law for the Attorney General concerning the court's jurisdiction, there is no special law for him concerning the scope of judicial review..." (H.C. 329/81 [51], at p. 334; see also H.C. 292/86 [52]).

 

            The same rule applies to a government authority that has security powers. There is only one rule for all with respect to the scope of our intervention. All are subject to the rule of law and to judicial review, in accordance with the usual and accepted grounds for review which reflect the legal demands of administrative law. Thus, when we reviewed the scope of the District Commissioner's powers under the Defence Regulations to cancel a permit to publish a newspaper, we held in H.C. 541/83 [53], at p. 840:

           

"... Once the Commissioner has given the reasons for his decision, these reasons are subject to judicial review as any other exercise of administrative discretion...".

 

            This same approach applies to the present matter as well. Once the Military Censor has given the reasons for his decision, these reasons are subject to judicial review the same as any other exercise of administrative discretion (compare also H.C. 2/79 [54]; H.C. 488/83 [55], at p. 725).

           

            27. It should be noted that the limitation of the scope of judicial review over the exercise of discretion in matters of security, within the framework of the Defence Regulations, was based in the past largely on the majority decision in the House of Lords in the Liversidge [61] case. The Supreme Court relied on that decision when it held that "the power of this court, when called upon to review acts of the competent authority acting under the Defence (Emergency) Regulations, 1945, is extremely limited" (H.C. 46/50 [48], at p. 227). Since then, however, there has been an important development in England itself. The majority decision in the Livelrsidge case no longer reflects the current rule. This was stated in a series of judgments (see, for example, Nakkuda v. M.F. De S. Jayaratne (1951) [62]; Ridge v. Baldwin (1964) [63]). Lord Diplock's words in this connection are characteristic:

           

 "For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right" (Reg v. I.R.C., Ex. p. Rossminister Ltd. (1980) [64], at 10/l).

 

            Since then the English courts do review security acts of authorities with powers based on defence regulations or emergency legislation (see Wade, supra, at 394). In Israel it has been held that the Supreme Court no longer follows the majority decision in the Liversidge case. President Shamgar noted this in H.C. 554/81 [33], at p. 251:

           

"There is no doubt that the above Regulation 110 grants far-reaching powers, which must be used with proper caution, while taking scrupulous care to observe the preconditions which justify their use. Therefore, the court will examine the exercise of these powers with proper vigilance and will not follow those restraints and limitations which previously characterized the English judgments dealing with the exercise of similar powers in England (Liversidge v. Anderson and another (1941)), which also found an echo in H.C. 46/50 supra".

 

            The very far-reaching character of government security power and the harm which the exercise of this power can cause to basic human rights require - as Justice Shamgar noted - that this court examine the exercise of the power "with proper vigilance".

           

            The fourth question: Review of the Censor's decision

           

            28. The Military Censor is empowered to prohibit publication of an article if there is a near certainty that its publication will cause substantial injury to the security of the State. It is within the Censor's discretion to decide whether such a near certainty exists and he must exercise this discretion reasonably. The question before us is whether the Military Censor's decision with respect to the subject matter of the petition before us complies with these tests. In order to answer this question we must distinguish between the Censor's decision to prohibit publication of criticism of the head of the Mossad and his decision concerning the timing of his replacement. We shall deal with each of these decisions separately. It should be noted that the parties now agree that publication of facts which could lead to identification of the head of the Mossad is forbidden, since such publication meets the required test.

 

            Criticism of the head of the Mossad

           

            29. The Military Censor's position is that "criticism of the head of the Mossad, as such, as well as criticism of the efficiency of his performance and the legitimation of such criticism which would derive from permitting its publication in Israel (as distinguished from its publication abroad) injures the functioning of the Mossad at all levels, including but not limited to, the field of state security and its connections with parallel organizations in other parts of the world and with its own field operatives". He stresses that "by way of contrast, those parts of the article containing expressions of the author's opinion and criticism of the Mossad and its functioning in general were not disqualified". He summarizes his stand on this matter by noting that "the essence of the matter is not in the prohibition of a publication because of any personal prejudice to the person referred to in the publication, but rather because, so long as the person concerned serves in his position, any factual reference to him as such, to his functioning or to the results thereof in the field - amount to prejudicing the security of the State, because of substantial relevant considerations".

           

            30. Examination of the Military Censor's reasoning shows that he does not complain that the newspaper article contains references to Mossad activities, or those of its head, whose publication could harm the security of the State. The Censor's explanation is directed at prejudice to the effectiveness of the head of the Mossad's functioning if such criticism may be published. In this connection, the Military Censor distinguishes between criticism of the head of the Mossad which, in his opinion, prejudices the security of the State and is therefore not permitted, and criticism of the Mossad itself, which would not be prohibited. In my opinion this reasoning does not stand up. Publication of criticism of the functioning of the head of the Mossad does not create a near certainty of substantial harm to the security of the State. We have here a remote possibility - "a bad tendency" in the words of Justice Agranat in H.C. 73/53 [7] – which has no place in our system of law. On the contrary: in a democratic society it is only right to allow criticism of persons fulfilling public functions. Of course, criticism is not pleasant, and sometimes it can even cause harm. That is true of criticism of the head of the Mossad or of the Prime Minister or of any other office holder. But this unpleasantness is not reason to silence criticism in a democratic society, which is built on the exchange of opinions and public debate. It may be assumed that criticism of the Prime Minister, for example, creates some possibility of causing damage to his functioning, to public confidence in him and to his ability to conduct negotiations with heads of other countries. This possibility does not provide a sufficient basis for prohibiting publication of the criticism. Freedom of expression is also freedom to criticize and and the freedom to harass public functionaries with bothersome questions. Occasionally the criticism is not justified. It is sometimes petty. Sometimes it injures. That does not justify prohibiting its publication. It is worth repeating and and emphasizing Justice Landau's penetrating words in H.C. 243/62 [16] supra, at p. 2416:

 

"A governing authority which takes unto itself the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater contradiction to true democracy, which is not 'guided' from above".

 

Justice Witkon repeated a similar idea when he said that:

 

"All serious and relevant criticism is entitled to be protected against government intervention (unless it reveals vital secrets)..." (A. Witkon, "Thoughts and Memories From Childhood Concerning Freedom of the Press", in Law and Judging; Collected Articles (Schocken Press, A. Barak, M. Landau, Y. Neeman, eds., 5748) 168, 180).

 

            In deciding to prohibit publication of criticism of the head of the Mossad's performance, the Military Censor did not give sufficient weight to the principle of freedom of expression. True, the Censor repeatedly declared before us that "on no account does he dispute the fact that the right of expression and freedom of expression must be honored - in our case, in the press - as they lie at the foundation of our system, and that he was guided by this in his considerations". But rhetoric is not enough. The basic principle must shape the actual decision. It is not enough to say that freedom of expression is a basic principle in our system. Practical significance must be given to this statement. Justice Bach rightly noted, in referring to freedom of expression, that :

 

            "The principles upon which this court has insisted in the past ... may not be used merely as an ideological flag to be waved externally, but must also actually guide us in fact in our day-to-day decisions" (H.C. 243/82 [32] supra, at p. 784).

           

            And I added, in another case, that if we do not do so, then

           

            "everything that we established on the normative level will disappear in the world of practical reality. The court must examine not only the law but its implementation as well, not merely rhetoric, but also practice..." (H.C. 14/86 [19] supra, at p. 439).

           

            31. A democratic regime is a regime of checks and balances. These checks and balances are, first and foremost, the product of the mutual relations between the governing authorities - the legislative, the executive and the judicial - among themselves (see H.C. 73/85 [57]). In a democratic society there are other checks as well. The State Comptroller is in charge of oversight. But such checks are not exclusively those of the governmental authorities. There are other checks, outside of the ruling framework itself. Among these, the press performs a vital function. Its task is to expose failings and to protest against them. A free regime cannot exist without a free press. The press must therefore be allowed to fulfil its function, and only in exceptional and special cases, in which there exists a near certainty that substantial harm will be caused to the security of the State, is there room to prohibit publication of information in the press. In principle, it is difficult to imagine a case in which criticism - as distinguished from the disclosure of facts - could provide a basis for the existence of near certainty of substantial harm to the security of the State. The burden of proof in this connection must rest on the Censor. He has failed to satisfy it. On the contrary, we are persuaded that the probability of harm to the security of the State is remote and the harm is not substantial. Indeed, it is, difficult to accept the position that criticism of the Mossad itself does not create a near certainty of substantial harm to the security of the State, but criticism of the head of the Mossad does create such a risk. This distinction appears to me to be artificial; just as criticism of the Mossad itself does not create the near certainty required to allow prior restraint on freedom of expression, so too, criticism of the head of the Mossad does not meet the test required for justifying restriction of freedom of expression. In the New York Times Co. case [59], at 714, the United States Supreme Court noted, in quoting a previous decision, that:

 

"Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity".

 

            The same holds true in this case. Every prior restraint of freedom of expression carries a heavy presumption that it is unlawful. One who seeks to show that the prior restraint of freedom of expression is lawful carries a heavy burden. The Military Censor did not sustain this burden.

           

            Publication of the timing of the replacement of the head of the Mossad

           

            32. The Military Censor forbade the Petitioners from publishing details concerning the timing of the replacement of the head of the Mossad. The reason given was that -

           

"there are those who concern themselves with such matters who could more easily focus on the person [the head of the Mossad], his movements and his activities and put this information to practical use to identify the head of the Mossad, particularly abroad. This poses a real danger to his security".

 

            In my opinion this reason, too, cannot stand up to review. The possibility that publication of the date of the forthcoming replacement of the head of the Mossad would increase the danger to his security appears to me to be purely speculative. No data whatever were brought before us - save for the above evaluation - which support this claim. Is it argued that hostile elements could identify the head of the Mossad because there would be an increase in overseas flights? This is a baseless argument in my opinion. But even if we assume that there is some merit to this argument, is it not possible to take precautions so as to reduce the risks? It appears to me, therefore, that in this case, too, the Military Censor did not give sufficient weight to the value of freedom of expression. The exchange of opinions concerning the desired qualities of the head of the Mossad is particularly important when a new appointment is imminent. It sharpens the public perception of the vital nature of the office and of the qualities which the holder of the office should have. By this means - and by public debate - it may influence the decision of those in charge of making the said appointment. The very knowledge that the appointment will be the subject of the public exchange of opinions and pubic criticism affects the considerations of those empowered to decide and can prevent an undesirable appointment. Such debate will be effective if it is conducted before the appointment, not after it. It is, therefore, important that the public know of the forthcoming appointment. This is one manifestation of the importance of freedom of expression and the public's right to know. Of course, if there is a near certainty of substantial harm to the security of the State, there is no escape from prohibiting publishing the fact of the forthcoming appointment. But, as already said, I am not at all satisfied that such a near certainty in fact exists. Indeed, the Censor himself allowed publication of the following article in one periodical:

 

"Generally, as the termination of the office of head of the Mossad draws near, there is a growing amount of agitation concerning the appointment of the next head of the Mossad. A group of ex-Mossad members sought a meeting, at their own initiative, with people at the political level in order to prevent the appointment of a candidate they considered unsuitable."

 

            When the Military Censor was asked about this publication he replied that the article in question "dealt with what happens before termination of the office' in general'". Also, that article does not contain any concrete reference to the timing of the termination of the office, as in our case. The Censor's explanation is not convincing. Examination of the article reveals clearly that a group of ex-Mossad members asked for a meeting at a specific time in the present, and it is difficult to distinguish between that article and the one in our case. The difference between the two articles is so slight that one cannot justify any distinction between them, either from the point of view of security of the State or from that of the interest of freedom of expression.

 

          33. It might be argued: the Military Censor believes that there is a near certainty of harm to state security if criticism of the head of the Mossad and the fact of his impending replacement are published. That is sufficient to justify prohibition of the publication, even if the court thinks that a near certainty does not exist. This argument is unacceptable, as we have already seen. The Censor's position that there exists a near certainty of real damage to state security must be reasonable. His evaluations - based on strong evidence - must be reasonable. In our opinion, the Censor's position and his evaluation are not reasonable. In adopting this approach we are not turning ourselves into a super-censor. We are merely holding that a reasonable censor, functioning in a democratic regime and required to strike a balance between security and freedom of expression, would not arrive at the same conclusion as the first Respondent.

         

          Conclusion

         

          34. Before concluding I would like to state that I do not wish to cast any doubt whatever concerning the Military Censor's good faith. He has a difficult task, which he has to discharge under difficult conditions. Still, it is important to reiterate that the Defence Regulations - even though their source is Mandatory-autocratic - are applied in a democratic country. In these circumstances, their character must be fashioned against the background of their new democratic environment. Of course, democracy is entitled and obliged to defend itself. The democratic state cannot be established without security. But it should not be forgotten that security is not only the Army. Democracy, too, is security. Our power lies in our moral strength and our adherence to democratic principles, precisely when we are surrounded by great danger. Security is not an end in itself, but a means to an end. The end is the democratic regime, which is the rule of the people and which respects the rights of the individual, among which freedom of expression occupies an honored place. Everything must be done, therefore, to minimize the possibility that security considerations will restrict freedom of expression, which is one of the principal values which security is supposed to protect. The way to achieve this balance between security and freedom of expression is to maintain freedom of expression and restrict it only when there is a near certainty of substantial harm to security and there is no other way to prevent the danger while preventing the injury to freedom of expression. The Military Censor must reach his difficult decisions against the background of this basic understanding.

 

            The result is that we make the order nisi absolute to the effect that publication of those parts of the article containing criticism of the head of the Mossad or references to his forthcoming replacement may not be prohibited. We reiterate that publication of any matter that could lead to the identification of the head of the Mossad is forbidden. We also assume that those parts of the article, the publication of which the Petitioners agreed not to publish, during the course of the proceedings before us, will not be published, while those portions, whose publication the Respondents permitted in these proceedings will be published.

           

            The Respondents will bear the Petitioners' costs in the amount of NIS 3,000, including advocates' fees. This amount will bear interest and be linked until payment.

           

            Maltz J.: I concur.

           

            Wallenstein J.: I concur.

           

            Decided as stated in Justice Barak's judgment.

           

            Judgment given on January 10, 1989.

            HCJ 652/81

         

M.K. YOSSI SARID

v.

CHAIRMAN OF THE KNESSET, MENACHEM SAVIDOR

         

 

The Supreme Court Sitting as the High Court of Justice

[March 1, 1982]

Before Ben-Porat, Barak and D. Levin JJ.

 

 

Editor's synopsis -

          On December 1, 1981, the Alignment group in the Knesset submitted a motion of no confidence in the government. The Knesset Chairman (Speaker) set the following day, December 2, as the time for the debate and vote on the motion, and fixed the time for the opening of the session at 5 p.m. The Petitioner seeks an order nisi against the Chairman to show cause why he should not convene the Knesset session at its regular hour, 11 a.m. He contends that this is the hour at which Knesset sessions have always begun and that the Chairman fixed the time for this session at a later hour, in violation of the Knesset regulations, in order to enable supporters of the government to return from overseas in time to vote against the motion. The Chairman contends that he fixed the hour as he did for other proper reasons. The court denied the petition, holding:

         

1.      The Chairman of the Knesset is one of the organs of State. In deciding to alter the time of the Knesset session, he fulfills a public function pursuant to Law- the Knesset regulations -which is subject to judicial review.

 

2.      The heterogeneity of the various Knesset functions yields similar heterogeneity with respect to the scope of judicial review of its functions.

 

3.      In determining the scope of judicial review of internal Knesset affairs that are concerned with the political relations between the Knesset and the government, two contradictory considerations clash. One is the preservation of the rule of Law, which applies to the Knesset as well as to other arms of the state. The other is the respect that must be shown for the separation of powers. Decisions of the Knesset concerning the political relations between it and the government are politically volatile and it is appropriate that the court stay its hand as much as possible in these matters so as to avoid politicization of the judiciary.

 

4.      The desired balance between these considerations will be assured by adopting a test for judicial review which takes into account the extent of the violation claimed. When such violation is minor and does not affect the basic structure of our parliamentary system, the independence of the Knesset should prevail and the court will stay its hand. But when the violation is substantial and infringes upon basic values of our legal order, the need to ensure the rule of Law is dominant.

 

5.      In this case, even if the Chairman deviated from the Knesset regulations, this was a minor deviation which should be resolved by internal parliamentary processes.

 

 Israel cases referred to:

[1] H.C 222/68, "Huggim Leumi'im" Society v. Minister of Police 24P.D.(2)141.

[2] H.C. 306/81, Flato Sharon v. Knesset Committee 25P.D.(4)118.

[3] C.A. 228/63, Azuz v. Azar 17P.D.2541.

[4] H.C. 188/63, Batzul v. Minister of Interior 19P.D.(1)337.

[5] H.C. 108/70, Manor v. Minister of Finance 24P.D.(2)442.

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

[7] H.C. 246/81, "Agudat Derekh Eretz" v. Broadcast Authority 35P.D.(4)1; S.J. Vol. VIII, supra p. 21.

[8] H.C. 563, 566/75, Ressler v. Minister of Finance; Zivoni v. Chairman of Knesset Finance Committee 30P. D. (2)337.

[9] H.C. 637/79, Yitzhak v. Minister of Agriculture 34P.D.(2)442.

[10] H.C. 248/80, Cohen v. Knesset Chairman 34P.D.(4)813.

[11] H.C. 217/80, Segal v. Minister of the Interior 34 P.D.(4) 429.

[12] H.C. 65/51, Jabotinsky v. President of the State of Israel 5P.D.801; 4P.E.399.

 

American cases referred to:

[13] Baker v. Carr  369 U.S. 186 (1961).

[14] Joint Anti-Fascist Committee v. McGrath 341 U.S. 123 (1951).

[15] Powell v. McCormack 395 U.S. 486 (1969).

[16] Poe v. Ullman 367 U.S. 497 (1961).

 

A. Ginossar, M. Shachal, A. Lorch for the Petitioner.

D. Beinish, Director of the High Court Department in the State Attorney's Office, for the Respondent.

 

JUDGMENT

 

            BARAK J.: On Tuesday, December 1, 1981, at 11:40 a.m., the Alignment faction submitted a motion of no-confidence in the Government. The Chairman of the Knesset decided that the no-confidence motion would be debated on Wednesday, December 1, 1981, and that the sitting would convene at 5:00 p.m. Knesset Member Yossi Sarid petitioned the court against the scheduling of the sitting in the afternoon hours. He argued that under rule 36(a) of the Knesset Rules, a motion of no-confidence is required to be debated "at the next regular sitting", and that sitting had long since been scheduled for Wednesday at 11.00 a.m. The Petitioner contended that the delay in opening the sitting was designed to allow several Knesset members, who support the Government, to return to the country in time for the vote, and that this consideration, which motivated the Chairman of the Knesset, is not legitimate, since the Chairman thus became "an instrument in the hands of the Government". The Petitioner did point out that the reason given by the Chairman for his decision was that a memorial for the late David Ben Gurion would be held on Wednesday, but the Petitioner claimed that this reason was not genuine.

 

            2. The petition was brought before a judge of this court on Tuesday evening, who referred it to a panel of three judges for hearing on Wednesday morning, while also summoning a representative of the Attorney-General to appear. On Wednesday there appeared before us the Petitioner and his counsel, and also Ms. Beinish, on behalf of the Attorney-General. Due to the urgency of the matter Ms. Beinish did not have time to prepare an affidavit. In her opening remarks she submitted that the petition should be dismissed as non-justiciable. In regard to the facts, we were told, on behalf of the Chairman of the Knesset, that the change in the scheduling of the sitting on Wednesday from eleven a.m. to five p.m. was made by the Chairman by virtue of his authority under rule 27(c) of the Knesset Rules, according to which "the Chairman of the Knesset may change the scheduled time of a sitting". The primary reason for the change was the memorial for the late Mr. Ben Gurion. Nonetheless, there was also an additional reason, namely, that because of the Prime Minister's illness, and in view of the nature of the matter. the Government's reply to the no-confidence motion was to be given by the Minister of Defence, who was in the United States, and would be returning to Israel at the earliest for the afternoon sitting.

           

            3. A factual dispute arose therefore, as regards the considerations of the Chairman of the Knesset. This dispute could not be resolved at that stage, since Ms. Beinish's statements with respect to the Chairman's considerations were delivered orally and were not supported by an affidavit. In these circumstances, counsel for the Petitioner declared that he would accept Ms. Beinish's factual declarations as if they had been made by affidavit. He contended that even on these facts the Chairman's decision was invalid, since according to Rule 36(a) of the Knesset Rules - and this specific provision prevails over the provision in Rule 27(c) - the Chairman should have scheduled the sitting for 11:00 a.m. According to this reasoning, the only way to change the opening time of a regular sitting is by resolution of the Knesset Committee under Rule 148, which provides that "the Knesset shall not deal with any matter in a manner contrary to the Rules, or to precedents, unless the Knesset Committee has considered the matter, and decided thereon". The difficulty is that the Knesset Committee before which the matter was brought, "refused to intervene in the Chairman's decision on the ground that the matter fell within the scope of his authority, and the Committee should not deal with it". As against these arguments, Ms. Beinish submitted that the Chairman's decision was made lawfully, within the scope of his authority under section 27(c) of the Rules, and on the basis of material considerations. Ms. Beinish concentrated in the main on the argument that the decision of the Chairman was not justiciable and that the court, therefore, should not hear the petition on its merits. She contended that the working procedures of the Knesset were non-justiciable, since they fell within the sovereign power of the Knesset, and were of a clearly political character. Mr. Shachal, counsel for the Petitioner, argued in reply that the Chairman's decision was based on the law and is of a purely administrative nature, so that it is subject to review by this court. Such review, he argued, is important to ensure that the Knesset Chairman observes the law.

 

            4. The question now crisply arises whether it is proper for the High Court of Justice to entertain a petition concerning the authority of the Knesset Chairman in regard to Knesset working procedures. I said, "whether it is proper" to entertain the petition, because the question posed to us is not one of jurisdiction, but one of discretion (see H.C. 222/68 [1]). This court's authority to hear the petition stems from section 7(b)(2) of the Courts Law, 1957, under which the High Court of Justice is empowered to issue orders to state authorities which "exercise any public functions by virtue of law". The Knesset Chairman is a state authority, and in deciding to change the time of the sitting he exercised a public function by virtue of "law"-that is, the Knesset Rules, which were adopted by the Knesset under section 19 of the Basic Law: The Knesset (see also the definition of "law" in section 1 of the Interpretation Ordinance [New Version]). Indeed, the provisions of the Rules relating to the working procedures of the Knesset form part of the constitutional law practised in the state (see A. Lechovski, "On the Working Procedures of the Knesset" in Legal Studies in Memory of Rosenthal (ed. Tedeschi, Magnes, 1964) 380). We, therefore, are empowered to hear the petition (see H.C. 306/81 [2]). The question still remains, however, whether we should hear the petition on its merits, in light of the special character of the Chairman's decision which concerns "internal parliamentary proceedings" (in the words of Shamgar J., ibid, at 142).

           

            5. The Knesset is "the house of representatives of the State", and it is required to perform many varied functions. It enacts the Basic Laws and the ordinary Laws; it sometimes participates - in the plenum or in the various committees - in the process of subsidiary legislation; it supervises the actions of the Government, which holds office for as long as it enjoys the confidence of the Knesset, by means of a parliamentary question, motion of no-confidence and similar motions; it fulfills, in the plenum or in committees, several quasi-judicial functions, such as deciding on election appeals, withdrawing immunity and, in special cases, suspending a Knesset member, or removing him from office (see A. Rubinstein, The Constitutional Law of the State of Israel (3d ed., Schocken, 1981) 81, 291, 196; C. Klein, "On the Legal Definition of the Parliamentary Regime and Israeli Parliamentarism" 5 Mishpatim (1974) 308). This variety of Knesset functions correspondingly varies the scope of the court's judicial review of the manner in which the Knesset performs its duties, in the plenum and in committees, and through other functionaries. Indeed, the scope of judicial review of the Knesset's actions and decisions cannot be exhausted in a simple formula, but often varies according to the nature of the function under review. Take, for instance, the Knesset's legislative function. While a statute is not generally subject to review as to the legality of its content (C.A. 228/63 [3]; H.C. 188/63 [4]; H.C. 108/70 [5]), this court has reviewed the legality of a statute with regard to an entrenched provision in a Basic Law (H.C. 98/69 [6]; H.C. 260,246/ 81 [7]). It is true that in so doing, the court left the question of its power to act in this way open for further consideration, but the very hearing and decision are in themselves

 

            ... at least some intimation of this court's approach to the question of the boundaries of its constitutional powers. Had the court believed that the separation of powers forbade it from deal in any way with a petition concerning the Knesset and its committees, it would have raised that question on its own initiative. In other words, the court's readiness to explore the issue on its merits has, in itself, implications as to the interpretation of the powers of the different state authorities.

(per Shamgar J. in H.C. 306/81 [2] at 141.).

 

            Against this limited review of the legislative process there stands the court's ordinary review of quasi-judicial decisions of the Knesset and its committees, such as the removal from office of a Knesset member or his suspension (ibid.). Likewise, judicial review is exercised over decisions of the Knesset - in the plenum, or in committees, or by other organs of the Knesset - relating to subsidiary legislation, or which are of an administrative nature concerning, for example, party funding (see H.C. 563, 566/75 [8]; H.C. 637/79 [9]; H.C. 248/ 80 [10]). In summary, all that can be said, by way of generalization regarding judicial review of decisions of the Knesset, is that the scope of this review differs according to the nature of the decision reviewed. A "legislative" decision is different from a "quasi-judicial" decision, and both of these differ from a decision relating to the Knesset's supervision of Government actions.

           

            6. The petition before us concerns a decision of the Knesset Chairman relating to the working agenda of the Knesset, in regard to the control exercised by the Knesset over the Government by means of the vote of no-confidence. What is the scope of the judicial review of such decisions of the Chairman? These decisions are not embodied in a statute, nor are they even judicial decisions, or decisions made in the frame of subsidiary legislation. We are dealing here with a decision of an administrative character, taken in the course of intra-parliamentary proceedings concerning the reciprocal political relationship between the Knesset and the Government. Is a decision of this kind subject to judicial review?

           

            7. This question is by no means simple, since its solution involves a conflict between two opposing considerations. On the one hand there is the principle of the rule of law which means, in its formal sense, that all the organs of the state must obey the law. The principle of the rule of law is addressed to both individuals and governmental organs, and applies to the legislature itself, in the sense of "the rule of law in the legislature" (in the words of Silberg J. in his book Principia Talmudica (2nd ed., Hebrew University Law Faculty Publications, 1964) 70). If, therefore, the Knesset Rules contain provisions governing the conduct of the internal proceedings of the House, by the different Knesset authorities, these authorities must act in accord with the Rules. Just as this court exercises its jurisdiction in any case of failure to obey the law by the governmental authority, so too must it act in regard to a failure to implement the provisions of the Rules concerning the administration of the House, for were that not so, we might find the legislature itself in violation of the law. The provisions of the Rules express the law regarded by the Knesset as appropriate for the conduct of its parliamentary life, and for allowing its members to fulfill their political mission. Breach of the Rules frustrates these objectives, and judicial review is essential to prevent such a result, for where there is no judge there is no law, and where the court fails to intervene, the principle of the rule of law is violated (H.C. 217/80 [11] at p. 441). On the other hand, there is the principle that the working rules of the legislature are its own internal affair and, on the basis of the separation of powers, belong to the legislative authority itself, which also has the tools to examine itself and to scrutinize its own decisions. It is proper, therefore, that the judiciary respect the internal affairs of the legislature, and refrain from interfering in them. Moreover, decisions of the Knesset with respect to its reciprocal relations with the Government are usually heavily laden with political content from which the judiciary should properly distance itself so as to prevent, as far as possible, the "politicization of the judicial process" (in the words of Witkon J. in Politics and Law (The Hebrew University of Jerusalem, 1965) 58). It follows that -

           

            Paramount considerations relating to the separation of powers, the independence of parliament and the mutual respect which should prevail between state authorities, require that the Knesset enjoy freedom of action in managing its proceedings as it deems fit, without having its acts scrutinized by outside authorities. Were the court to sit in judgment over the propriety of Knesset proceedings, this body would be unable to function properly, and the court too will be flooded with litigation that turns it into a perpetual arena of political and procedural conflicts.

(Y.S. Zemach, "The Problem of Non Justiciability in Parliamentary Proceedings" 3 Iyunei Mishpat (1973) 752, 753.)

 

            Indeed, the need to respect the status of the legislature, on the one hand and, on the other hand, to protect the judiciary, justify judicial restraint and refrainder from reviewing the administration of the legislature, as regards its reciprocal relations with the Government.

 

          8. These opposing considerations are of great weight, and we should properly take them into account. It appears to me, therefore, that there is no room to lay down a comprehensive rule as to the scope of the court's intervention in the working procedures of the Knesset. Indeed, the accepted approach in England, that parliamentary proceedings are excluded from the range of judicial review, has not been adopted in Israel, and this court has held that

         

          there is no reason why this court should not exercise its power as against a Knesset decision taken in violation of the law or the principles of natural justice (save in cases where the matter dealt with by the Knesset is non-justiciable).

(Per Kahan D.P. in H.C. 306/81 [2], at 132).

 

          However, that ruling concerned a quasi-judicial decision, whereas we are concerned with a decision that is not quasi-judicial, but an administrative one, concerning intra-parliamentary affairs. True, the decision of the Knesset Chairman to delay the time of the sitting until the afternoon is justiciable in the sense that its legality can be judged by legal standards, but that, alone, does not exhaust the principle of non-justiciability, which also addresses the reciprocal relations and mutual respect owed by the legislature and the judiciary to one another (see Baker v. Carr [13]).

         

          9. It seems to me that these opposing considerations of the rule of law, on the one hand, and respect for the Knesset's special standing on the other hand, require a judicial balance, which is based on restraint, yet does not yield to complete impotence. This self-restraint must be based on a standard which will define those areas in which the court will not interfere out of respect for the uniqueness of the Knesset as the people's elected body, and those in which the court will intervene to preserve the rule of law in the legislature. The determination of this standard is a difficult task that requires use of that "expert feel of lawyers" referred to by Justice Frankfurter in Joint Anti-Fascist Committee v. McGrath [14], and in which Smoira P. found "an excellent definition of the limits of judicial power" (H.C. 65/51 [12]). In my opinion, the proper balance between the need to secure "the rule of law in the legislature" and the need to respect the special standing of the Knesset in its decisions concerning its internal affairs, will be assured if we adopt a standard that takes into account the degree of the apprehended harm to the fabric of parliamentary life, and the extent of its influence on the fundamental structure of our constitutional regime. When the alleged violation of the intra-parliamentary process is minor, and would not affect the foundations of our parliamentary regime, the consideration of the independence and uniqueness of the Knesset outweighs that of the rule of law, and the judiciary would be justified in refraining from hearing a matter that is essentially political. The matter would be different when the violation complained of is manifest, and impairs substantive values of our constitutional regime. In such circumstances, the need to secure the rule of law prevails over all other considerations, much as that need prevails where we are concerned with a violation of the right of a Knesset member as an individual in a quasi-judicial proceeding (see H.C. 306/81 [2], and also Powell v. McCormack [15](1969)). In determining the proper standard, taking into account the degree of harm and the interest affected, we commend a flexible criterion which, by its very nature defies exact definition, and the content and scope of which will be determined by the court according to the needs of the time, and the matter involved (cf. Poe v. Ullman [16] at 509).

 

            10. In view of these standards, it appears to us in the instant matter that even if the Knesset Chairman departed from the provisions of the Rules - and in this respect we are not expressing any opinion on the merits - it was of minor significance and must be resolved through the intraparliamentary process itself. We do not have before us any substantial violation, such as might have occurred if the possibility of the no-confidence vote in the Government had been entirely precluded or seriously jeopardized which would have justified our intervention. Grievances of the kind raised in this petition ought properly be resolved in the house of representatives itself, through the frame of its own institutions, as part of its internal administration. This petition does not warrant our intervention.

           

            For these reasons we dismissed the petition on December 2, 1981.

           

            Judgment given on March 1, 1982.

            H.C.J 268/52

            H.C.J 47 /53

           

DAVID SAPOZNIKOV

v.

THE COURT OF DISCIPLINE OF THE ISRAEL POLICE and INSPECTOR-GENERAL OF THE ISRAEL POLICE

     H.C.J 268/52

 

 

NISSIM MIMRAN

v.

Y. SAHAR, INSPECTOR-GENERAL OF THE ISRAEL POLICE AND OTHERS

     H.C.J 47 /53

 

 

 

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

[May 31, 1953]

Before: Olshan J., Silberg J., and Sussman J.

 

 

            Police Court of Discipline - Police Ordinance ss. 18, 50 - Jurisdiction - Conduct likely to cause injury" to reputation of the Force - Police officer charged with  criminal offence not committed by him qua police officer - No jurisdiction.

           

                Under section 18 of the Police Ordinance the Inspector-General may constitute Courts of Discipline to try police officers charged with disciplinary offences, the section prescribing the offences which may be the subject of such charges. One of those offences is thus described (in section 18(1)(i)): "any offence contrary to the good order and discipline of the Force.. ." The High Commissioner in Council was empowered by section 50(1)(e) to make rules "for the definition of offences to the prejudice of good order and discipline", and under that power made the Police (Disciplinary Offences) (Definition) Rules, 1941. Offence No. 23 of those Rules creates the offence of "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law" and Offence No. 47 provides that a police officer is liable to punishment for "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

                The petitioner, Sapoznikov, was convicted by a Court of Discipline of three offences "contrary to the good order and discipline of the Force", one based on Offence No. 23 and two on Offence No. 47, in that, knowing of the whereabouts of an offender who had brought goods into the country without an import license in contravention of the Customs Ordinance, he did not report thereon to the proper authorities. He was sentenced to six weeks' imprisonment, and later dismissed from the service.

                The petitioner, Mimran, was charged before a Court of Discipline with "conduct likely to cause injury to the reputation of the Force", in that he had had intercourse with a woman against her will in a police car of which he was the driver. His trial was not yet completed.

                The petitioners contended that since the offences with which they were charged were offences under the criminal law, they could not be tried in a disciplinary court.

Held:  (1)     That the Court of Discipline has no jurisdiction to try the charge against Mimran;

            (2)   By Silberg and Sussman JJ. (Olshan J. dissenting) that the Court of Discipline had jurisdiction to try only that charge against Sapoznikov which was based on Offence No. 23, but not those based on Offence No. 47.

 

Palestine cases referred to:

(1)   H.C. 111/40; George Frederic Upfold v. Superintendent in Change of Prison, Acre, (1940), 7 P.L.R. 615.

(2)        P.C.A. 24/45; Arieh Zvi Lipshitz v. Haim Aron Valero, (1947), 14 P.L.R. 437.

 

English cases referred to:

(3)        Lewis v. Morgan, (1948) 2 All E. R. 272.

(4)        R. v. Thomas, (1949) 2 All E. R. 662.

5. R. v. William Barron, (1914) 10 Cr. App. R. 81.
6. Leyton Urban District Council v. Chew and another, (1907), 96 L.T. 727
7. Scott  v. Pilliner, (1905), 91 L.T. 658.

 

Tunik for the petitioner, Sapoznikov.

Lubinsky for the petitioner, Mimran.

Miriam Ben-Porath, Deputy State Attorney, for the respondent.

 

            SUSSMAN J. This is a joint hearing of the respondents' replies to two orders nisi issued by this court, and they concern the jurisdiction of a Court of Discipline of the Israel Police to consider certain charges brought against the petitioners. Before setting out the facts which led to the bringing of these charges, it would be useful if I were to preface them with certain observations touching upon the law which lays down the jurisdiction of a Court of Discipline.

           

2.  Section 18 of the original Police Ordinance, was replaced by section 2 of the Police (Amendment) (No. 2) Ordinance, 1939, and according to section 18 as replaced, the Inspector General of Police may constitute a Court of Discipline to consider certain charges against police officers, as set out in that section. Section 18(1)(h) of the said Ordinance provides, inter alia, for the punishment of a police officer who "is repeatedly guilty of serious offences to the prejudice of good order and discipline." By section 6 of the Police (Amendment) Ordinance, 1946, an additional offence is added to the list of offences ill section 18, and is defined as follows : "Any offence contrary to the good order and discipline of the Force which the Inspector General considers should be tried by a Court of Discipline."

 

            Section 50(1)(e) of the Police Ordinance provides that the High Commissioner in Council (the words "in Council" were omitted by mistake in the Hebrew edition of Drayton's Laws of Palestine) is entitled to make rules for "the definition of offences to the prejudice of good order and discipline." The provision contained in the new paragraph (i), which, as I have said, was added to section 18(1) in the year 1946, was in force prior to the enactment of the Police (Amendment) Ordinance, 1946, having been introduced as a temporary measure in 1940 by Defence Regulations. In Upfold v. Superintendent in Charge of Prison, Acre, (1), the Supreme Court in the time of the Mandate held that a police officer could not be brought to trial before a Court of Discipline for an act regarded by the Inspector General as an "offence contrary to the good order and discipline of the Force", unless that act had previously been defined as such an offence in rules made by the High Commissioner under the powers given to Him by the said section 50(1)(e).

 

3. Acting under section 50(1)(e) the High Commissioner, in the Police (Disciplinary Offences) (Definition) Rules, 1941, specified 46 offences which, if committed by a police officer below the rank of "Superior Police Officer" shall be deemed to be offences to the prejudice of good order and discipline. Offence No. 23, for which a police officer is punishable, is in the following terms : - "knowing where any offender is to be found, failing to report the same or to exert himself to make the offender amenable to law". A further Offence, No. 47, was added to the said offences by the Police (Disciplinary Offences) (Definition)  (Amendment) Rules, 1941, and is constituted by a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

4. As I have said, a Court of Discipline may not sit to try a police officer unless constituted for that purpose by special order of the Inspector General of the Police. This means that a Court of Discipline is not properly constituted unless the Inspector General considers that there is need therefore in order to investigate an offence being one of the offences specified in section 18(1) of the Police Ordinance.1) For that reason, the language of section 18(1)(i) (which was added to the main section in 1946) is most defective, for by providing that the court shall try an offence under that same paragraph whenever the Inspector General considers that there is need for it, it creates unnecessary duplicity. But the meaning of the paragraph is this : Whilst according to the previous paragraph, the said section 18(1)(h), a police officer commits no offence for which the court would be empowered to try him unless he has been "repeatedly" guilty of serious offences to the prejudice of good order and discipline, paragraph (i) of that section provides that every offence of that kind, whether committed once or repeatedly, whether serious or not, will be a ground for complaint, and for trial before the Court of Discipline.

 

5. In the charge sheet filed against the petitioner, David Sapoznikov, a sergeant in the Police, he was charged with having committed three offences under section 18(1)(i) of the Police Ordinance, and after a trial before the Court of Discipline which the Inspector General had convened, he was found guilty of those offences. Each of the three offences was described in the information as "an offence contrary to the good order and discipline of the Force." One charge was based on Offence No. 23 of the Police (Disciplinary Offences) (Definition) Rules, 1941, and the act attributed to this petitioner was that, knowing the whereabouts of an offender who had brought goods into the country without an import licence, he did not report thereon to the proper authorities. The two additional charges were framed in accordance with Offence No. 47 of the said Rules, and in the particulars thereto, it was stated that the petitioner was charged with "acting in a manner likely to bring discredit to the reputation of the Force." The petitioner was sentenced to six weeks' imprisonment. The judgment was confirmed by the Inspector General, and as A result thereof the petitioner was dismissed from the service in accordance with section 18(7) of the Police Ordinance, as amended.

 

            The petitioner Mimran was also charged before the Court of Discipline with conduct likely to bring discredit to the reputation of the Force, in that he had had intercourse with a woman against her will in a police car. The trial of his case has not yet been concluded.

 

6. The act alleged against the petitioner, Mimran, is also an offence under section 152 of the Criminal Code Ordinance, 1936,1) and petitioner's counsel contends that such an offence, which we described in the course of tile proceedings as a "civil offence" to use the language of section 41 of the English Army Act, should not be disguised as an injury to t;he reputation of the Police, in order to have it investigated before the Court of Discipline, in which event the defendant is deprived of a right of appeal and his case is tried before police officers who are not learned in the law and do not even enjoy legal guidance. On the other hand, where the matter has been brought before the Court of Discipline, the police officer cannot be brought before the general courts for the same offence, for the act of the Court of Discipline is to be considered as res judicata. Is it reasonable, asks counsel for the petitioner, Mimran, that the investigation of such grave charges should be removed from a civil court just because the Inspector General has chosen, incidentally, to bring him before a court of the police?

 

7. In the case of Lewis v. Mogan (3), a seaman serving in a merchant ship was brought to trial for having absented himself for one day from his ship, contrary to regulation 47A of the English Defence Regulations. The accused argued that he had already been punished for the same act by the master of the ship, who had examined the matter and had deprived him of one day's pay. This authority is given to the master by section 114(2)(g) of the Merchant Shipping Act, 1894, whereby it is permitted to lay down in a seaman's contract of service "any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishment for misconduct." The accused's submission that the case was one of "autrefois convict" was rejected by the court on two grounds. First, that the master had not sat as a court with jurisdiction to try criminal offences, but had acted "in a domestic way." Secondly, even assuming that the subject-matter of the complaint in the two instances was identical, that an offence against the Merchant Shipping Act, 1894, is not the same as an offence against the Defence Regulations, so that the offences are not identical, and the accused cannot be heard to say that he has already been tried for an offence against the Defence Regulations.

 

            The court's attitude will be further clarified if we turn our attention to the case of R. v. . Thomas (4). There, the contention of the appellant, who had been found guilty of murdering his wife by stabbing, was that he had already been convicted by a court for the same act, when he was convicted of wounding with intent to murder, and this was the act which in the end had caused the wife's death. To support this contention, the appellant relied on section 33 of the Interpretation Act, 1889, which provides : -

           

            "Where an act or omission constitutes an offence under two or more Acts, or both under an Act and at common law..... the offender shall, unless the and punished under either or any of those Acts or at common law, but shall not be liable to be punished twice for the same offence."

 

            The court answered the contention in these words : -

           

            "Certainly it (the section) adds nothing and detracts nothing from the common law. It was argued that we ought so to read the section that the last word "offence" should be read as meaning "act" and it was submitted that "act", "cause" and "offence" all mean the same thing. In our view, that is not correct. It is not the law that a person shall not be liable to be punished twice for the same act. No court has ever said so, and the Interpretation Act has not said so."

 

            Accordingly, that is to say, because of the differences in the two offences, notwithstanding the identity of the act, the appellant's contention was rejected; see also R. v. Barron (5), where it was stated: -

           

            "The test is not, in our opinion, whether the facts relied upon are the same in the two trials. The question is whether the appellant has been acquitted of an offence which is the same offence. . . . ."

 

            Section 33 of the Interpretation Ordinance, 1945, (which replaces section 25 of the original Interpretation Ordinance) corresponds to section 33 of the English Interpretation Act, yet nevertheless it is not to be inferred therefrom that the rule laid down in R. v.. Thomas (4), applies equally in this country.

           

            In addition to section 33 of the Interpretation Ordinance, 1945, section 21 of the Criminal Code Ordinance, 1936, applies to our case; and in order to make comparison easier, we quote it here in its English version: -

           

            "A person cannot be twice criminally responsible either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of same other offence constituted by the act or omission."

 

            It appears that the local legislator, in the Criminal Code Ordinance, 1936, enacted something that was not provided in the English Interpretation Act or in the Interpretation Ordinance, 1945, namely, that criminal responsibility cannot be imposed twice on a person for the same act or omission; it states, "the same act", not "the same offence". This is shown by the fact that where an act which causes injury, and for which a person has been charged, causes the victim's subsequent death, the accused in England is not immune from a murder or manslaughter charge since such offence is different from that formerly charged; and so the local legislator went out of his way expressly to provide that this instance, of an act causing a person's death, is exceptional, and that the offender may be brought to trial although already once convicted in respect of the same act which constitutes a different offence.

 

            It follows that there are grounds for the view that a police officer who has been tried for a particular act by a Court of Discipline is not liable to stand trial once more before an ordinary court on a charge of a "civil offence" arising out of the same act.

           

8. Notwithstanding that conclusion, I do not think that an act which may also constitute a "civil offence", even if it be of the category of a felony, is for that reason excluded from the jurisdiction of the Court of Discipline. The truth of the matter is that most, if not all, of the list of offences defined in the High Commissioner's rules as offences prejudicial to good order and discipline are acts which, if not committed by a police officer, are not regarded as offences, and there is a plain desire on the part of the authority which made the rules to supply the particular needs of the police force by passing a law which would impose upon it order and discipline. One must not, however, conclude that the task of the Court of Discipline, or even its main task, is to investigate such offences, which are of little importance from the point of view of the public, for in section 18(1) further offences are enumerated which are also within the jurisdiction of the Court of Discipline, and among them are acts numbered among the gravest of offences for which a person may be punished under the Criminal Code Ordinance, 1936. It seems that a police officer who "incites to mutiny" may be brought to trial either before the Court of Discipline under section 18(1)(a) of the Police Ordinance, 1936, or before a civil court under section 54(b) of the Criminal Code Ordinance, 1936. In the first case, he is liable to two years' imprisonment, and in the second case, to imprisonment for life. A police officer who assists another police officer to desert from the police, is guilty of an offence under section18(1)(f) of the Police Ordinance, or under section 56(b) of the Criminal Code Ordinance, 1936. A police officer who strikes a superior officer must be tried either under section 18(1)(e) of the Police Ordinance or according to Chapter XXVII of the Criminal Code Ordinance, 1936. It can hardly be imagined that the legislator overlooked this duplicity when he empowered the Court of Discipline to deal with charges of the gravest kind - felonies - when the accused is a police officer and the Inspector General decides to convene the court to try the matter. The reason for this is that according to the original version of section 18 of the Police Ordinance the Inspector General was authorised to order the trial of a charge before the President of the District Court, like any other civil court, and only in 1959 was the Ordinance amended by transferring the matters dealt with in section 18 to Courts of Discipline that were established at the same period. It is clear that the legislator's intention was not to detract from the jurisdiction of those courts, notwithstanding the absence of legal guidance, and the withholding of a right of appeal.

 

9. An additional argument was put forward by the petitioner's counsel, mainly by Mr. Tunik, counsel for the petitioner Sapoznikov, but common to both cases. When the High Commissioner added offence No. 47 to the above mentioned list, and laid down that a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the force" is guilty of an offence to the prejudice of good order and discipline, he in fact failed to do what was imposed upon him - so Mr. Tunik contended - and did not at all define what an offence to the prejudice of good order and discipline is. Accordingly, the argument continues, the rule should be declared invalid, and in any event there is no foundation for the charge before the Court of Discipline in respect of an offence under that rule.

 

            It seems to me that the petitioners' submission is sound, and not only on the ground submitted by them.

           

            When the legislator has transferred the power of "subordinate legislation" to another public authority, the court will not be disposed, generally speaking, to restrict that power by way of construction, but will assist the legislator who, whether because of the burden of work imposed on him or because of the other authority's special knowledge, has decided to transfer to that authority some of the duties : Leyton Urban District Council v. Chew (6). How much more so will the court act in accordance with that rule if the duty of subordinate legislation is transferred to the High Commissioner in Council, who at that time was also the legislative authority and the difference between the two acts of legislation was, accordingly, purely technical.

           

            A punishment is sometimes laid down for an act prejudicial "to good order and discipline", as in section 40 of the English Army Act, and the legislator refrains from defining the nature of such an act. In that case, the duty of definition is imposed upon the court trying the charge, which has the power not only to establish facts, but also to weigh and determine whether, on the facts as found, good order and discipline have been there prejudiced. But it is clear that the local legislator did not take that course with regard to police officers' offences. The rule laid down in Upfold v. Superintendent in Charge of Prison, Acre (1), is clear, and its meaning is that, as regards offences under section 18(1)(i) of the Police Ordinance, the power given to a Military Tribunal by section 40 of the English Army Act to weigh and determine whether or not a particular act is compatible with good order and discipline, has not been given to the Court of Discipline. A condition precedent to the transfer of a police officers' trial to a Court of Discipline is, as was decided in Upfold's case (1), that the offence has been previously defined by the rules. The legislator was desirous, therefore, that the policeman should have before him a list setting out in advance how he was to conduct himself, and he cannot be brought to trial on account of any act whatsoever, unless the act has been first defined and described by the maker of the rules as a police offence.

 

10. As the learned author of the Manual of Military Law, 1951, notes in note 4 to section 40 of the English Army Act, in explaining the expression "good order and military discipline", it is not enough that a particular act is contrary to good order; an offence under the said section 40 is not committed unless the same act is also prejudicial to military discipline. The author cites, by way of example, the case of an officer dressed in civilian clothes, who disturbs a theatrical performance by talking in a loud voice. That act, the learned author infers runs counter to good order, but is not prejudicial to military discipline. He goes on to illustrate the meaning of the said section 40 with examples of improper receipt of a loan, or of unlawful possession of property, which constitute an offence if a soldier borrows money from another soldier, or if the property in question belongs to the army, but not if he borrows money from a civilian, or if the property belongs to a civilian, since in the latter two instances the element of prejudice to military discipline is once more absent.

 

            Because of the similar language of section 18(1)(i) of the Police Ordinance ("good order and discipline of the Force"), we shall be correct in examining offence No. 47 made by virtue of the said section 18(1)(i), in the light of those considerations. It obviously follows that the draftsman of the rules in no way gave thought to the fact that the task of definition placed in his hands was restricted and limited to preserving both "good order" and "discipline" in the Force. Neither of these two objects by itself is capable of serving as an element in the definition of the offence. Alternatively, offence No. 47 actually consists of: first, "disorderly conduct", and I doubt whether this is a definition at all, or whether "disorderly conduct" is not simply the opposite of the term ''conduct contrary to good order", which the draftsman set out to define; secondly, conduct likely to bring discredit on the reputation of the Force. Let us assume that a policeman in civilian clothes disturbs a theatrical performance, like the army officer mentioned in the notes to the Manual. It may be that he will be guilty of one of the two offences under offence No. 47. There is prejudice to good order here, but no prejudice to police discipline, since the police officer's act has not been done within the framework of the police or in connection therewith. It follows, therefore, that the authority which made the rules defined as an offence something liable to be prejudicial to good order only, and took no account of the fact that an act cannot be treated as an offence unless it is also prejudicial to the discipline of the police. By reason of the fact that the offence as defined also includes within its description an act which, according to section 18(1) (i), is not regarded as an offence, we are obliged to invalidate the whole rule: Scott v. Pillimer (7); so that it does not matter that, in the present case, the petitioners' acts were also to the prejudice of police discipline, since they cannot be convicted of an offence under a rule which is devoid of any effect.

 

11. The result is that the charges, to the extent that they derive from offence No. 47 have no foundation. But the petitioner Sapoznikov was also convicted according to the fact count in the charge sheet of offence No. 23, and we have found no ground for not upholding that conviction. Mr. Tunik contends that were it not for a charge sheet which contained three charges, one of offence No. 28 and two of offence No. 47, the Inspector General would not have constituted a court and would not have transferred the petitioner's case to it for investigation on one charge only. We cannot guess whether the Inspector General would have reached that or any other decision; at all events, since no defect has been disclosed in that conviction, it is not for us to interfere with it.

 

            Accordingly, in my opinion, the order nisi issued in H.C. 47/53 ought to be made absolute. The order nisi in H.C. 268/52 ought to be made absolute insofar as it relates to the conviction on the second and third counts in the charge sheet, and must be discharged insofar as it relates to the fact count therein.

           

            SILBERG J.   I concur with the judgment of my learned colleague Sussman J. Mr. Tunik's argument that in specifying offence No. 47, the High Commissioner exceeded the powers conferred upon him by section 50(1)(e) of the Police Ordinance, seems to me to be sound. In my opinion, he not only exceeded the limits of his powers, but assumed an authority which had not been conferred upon him. Section 50(1)(e) empowers the High Commissioner in Council :

           

"to define offences to the prejudice of good order and discipline."

           

            "To define", in this context, means to fill that bare description with concrete content by naming actual deeds. What, in fact, did he do? He substituted one vague meaningless concept - "the prejudicing of good order and discipline." – with another bare concept, no less ambiguous than the first, namely, "disorderly conduct or other conduct likely to bring discredit on the reputation of the Force". Is that to be treated as a definition? How much wiser are we now than we were with the first description? Moreover, by the "interpolation" of the new, meaningless definition, he has in fact changed the content and meaning of the description given in section 50(1)(e), for he has thereby set out a different standard for evaluating the act and classifying the offence.

 

            It follows that the specifying of offence No. 47 was not only "ultra vires", but altogether "extra vires" of section 50(1)(e), that it has no effect and is invalid. That being so, since the charge against the petitioner Mimran and the two convictions, the second and the third, of the petitioner Sapoznikov are based on offence No. 47, they have no foundation and the order in relation to them ought to be made absolute.

           

            OLSHAN.  It seems to me that the intention of the legislator in section 18 of the Police Ordinance was to confer jurisdiction on a disciplinary court to deal with the conduct of policemen for the purpose of stiffening the discipline of the Force and securing efficient service. Accordingly he intended to transfer to the Court of Discipline the trying of acts which are prejudicial to the discipline and good order of the Force.

           

            The said Ordinance discloses no intention to grant a special status to a police officer regarding the liability attaching to every citizen for criminal acts, in accordance with the Criminal Code Ordinance or any other law. The maximum punishment that the Court of Discipline can inflict is that of imprisonment for two years. In the light of section 21 of the Criminal Code Ordinance, which forbids the imposing of criminal liability twice for the same act (except in the case of causing death), it cannot be that the legislator intended to tighten or lessen the measure of punishment in regard to a citizen simply because he is a police officer. Were it not for the said section 21, or if the power had been given to the Court of Discipline to inflict the punishment provided in the criminal law in every case where the act is also an offence according to the criminal law, or if the discretion of the Inspector General of Police to prefer the Court of Discipline had been limited to those cases where the punishment according to the criminal law does not exceed imprisonment for two years, it might have been possible to argue that the legislator intended to make the police officer's position more severe, because the police officer, by virtue of his position, ought to serve as an example of a law-abiding citizen.

            These remarks relate in particular to criminal offences which have no special connection with the duties and work of a police officer.

           

            It is true that in section 18 of the Police Ordinance, among the paragraphs laying down the offences which may be tried before a Court of Discipline, there are offences that are also offences according to the criminal law. Paragraph (a) deals with mutiny, (b) with incitement to mutiny, (e) with the use of force towards a superior officer, (f) with desertion. But these offences are closely connected with a police officer's duties, and the legislator expressly laid them down in the above-mentioned list of offences. Notwithstanding that those offences are closely connected with the duties of a police officer, the legislator did not regard them as being included in paragraphs (h) and (i), which speak generally of offences which are prejudicial to the good order and discipline of the Force, and so laid them down expressly. If it were necessary to set out those offences separately and expressly, because they cannot be regarded as included in paragraphs (h) and (i), a fortiori that would be so as regards other offences laid down in the criminal law that have no connection whatsoever with a police officer's duties.

           

            With regard to paragraphs (a), (b), (e) and (f), since they are directly connected with a police officer's duties, it may be that the legislator treated them as cases where the efficiency of the police service would require speedy trial before a Court of Discipline. But in the absence of express provision in that Ordinance, a similar intention cannot be imputed to the legislator in regard to other offences provided in the criminal law, which have no connection whatsoever with the question of imposing discipline.

           

            If it be said that it is hard to imagine an act which is an offence according to the criminal law but not prejudicial to good order and discipline when committed by a police officer, so that the view would be correct that in paragraph (i) in section 18 power is given to the Inspector General of the Police to put a police officer on trial before a Court of Discipline for my act constituting an offence according to the criminal law, then the question may be asked as to what was the necessity for the detail in paragraph (a) to (h) in section 18.

           

            It seems to me that the construction of section 18 is that, generally speaking, the Inspector General of the Police may put a police officer on trial before a Court of Discipline for an act prejudicial to good order and discipline, and if such an act also constitutes an offence according to the criminal law, that power may be used only if the offence is mentioned expressly in the Police Ordinance, or if the element of prejudice to good order and discipline in the act imputed to the offender is decisive.

 

            Moreover, according to section 50(1)(e), the High Commissioner in Council was given the power to make rules for defining offences to the prejudice of good order and discipline. In 1941 the Police Rules were published, in which the High Commissioner in Council specified 46 offences which are deemed to be offences to the prejudice of good order and discipline. To those offences was later added offence No. 47, which dealt with a police officer "acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force."

 

            In the present cases, the petitioners were brought before a Court of Discipline for tile offence specified in No. 47. There is no doubt that the act of rape imputed to the petitioner in File 47/53, constitutes disorderly conduct likely to bring discredit on the reputation of the Force, but the question arises whether, in order to bring a police officer to trial before a Court of Discipline, the offence No. 47 may be construed as if an act of rape were such an offence. For this is an act which has no direct connection with the police officer's obligations in the matter of "good order and discipline" (with the emphasis on the word "and"), or at all events where the element of prejudice to "good order and discipline" is not the element. In other words, did the High Commissioner in Council intend to include the offence of rape in the general definition in offence No. 47? And if so, a second question immediately arises, namely, was it within the power of the High Commissioner in Council to do so by way of rule-making ?

           

            I think that the answer is in the negative. According to Articles 39, 40 and 41 of the Order in Council, the trial of criminal matters is entrusted to the courts mentioned therein. The Court of Discipline is not numbered among them. Article 38 of the Order in Council (as amended in 1935) states :

           

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

           

            It states, "according to the provisions of any Ordinance", not "according to a regulation".

           

            As stated, the trial of criminal offences is entrusted to the courts mentioned in Articles 39, 40 and 41. Then came the Police Ordinance which enabled a Court of Discipline to try, among other things, mutiny, incitement to mutiny and desertion when committed by a police officer. As this was done by Ordinance, it does not in any way offend against the Order in Council. But could the High Commissioner in Council (the intention being not the High Commissioner as legislator – see the Interpretation Ordinance) establish by Way of regulation a Court of Discipline with jurisdiction to try an act of rape, an offence under the criminal law which is not mentioned in the Police Ordinance? The answer seems to me to be in the negative, for the establishing of a court also involves defining its jurisdiction and jurisdiction cannot generally be created by regulation (Lipshitz v Valero (2)). And if it be said that only the establishment of a court need be made by Ordinance and the extension or restriction of its jurisdiction can be effected by regulation then in the present case section 50(1)(e) of the Police Ordinance cannot be construed as conferring such a power on the High Commissioner in Council. The offences which can constitute the subject-matter of a trial by a Court of Discipline are laid down in section 18 of the Police Ordinance. The High Commissioner was only given the power to "define" the offences included in paragraph (i) of section 18. When the legislator wanted also to include in section 18 three or four offences under the Criminal Code Ordinance, because they are closely connected with police service, he did so expressly in the Ordinance itself. It cannot be that by giving power to define the acts constituting an offence "to the prejudice of good order and discipline", the power was also given to add other offences of the criminal law which have no direct and close connection with police service. The High Commissioner was given the power "to define" the offences that are "prejudicial to good order and discipline", but "to define" means to explain and enumerate the acts that are deemed to be included in the above-mentioned offences laid down in paragraphs (h) and (i) in section 18 of the Ordinance, and it is not to be construed as giving power to insert wholesale into section 18 of the Ordinance all the offences in the ordinary criminal law. As I have already explained above, had such an intention existed - because every offence without exception is to the prejudice of good order and discipline when committed by a police officer - then there would have been no necessity for all the detail in section 18 and for giving the High Commissioner the power under section 50(1)(e). Instead, one section alone would have sufficed, which contained a provision that any police officer committing any criminal offence or acting in a disorderly manner or in any manner likely to bring discredit upon the Force, may be put on trial before a Court of Discipline.

 

            I think, therefore, that in offence No. 47, the High Commissioner in Council did not intend, nor could he possibly have intended, to include the offence with which the petitioner in H.C. 47/'53 is charged, namely, an act of rape.

            Accordingly, I think that it is impossible to bring the charge of committing an act of rape before the Court of Discipline, for that offence is not included in offence No. 47. It should be emphasized that there is no charge here of using a police car for private benefit, a matter which could have been included among the offences that are within the jurisdiction of the Court of Discipline. Here the charge is of committing an act of rape, a matter which is not, in my opinion, within the jurisdiction of the Court of Discipline. A distinction must be made between a charge of using a police car for private benefit without permission (be it even for the purpose of an act of rape) and a charge of rape, for they are separate acts, and section 21 of the Criminal Code does not apply to them.1) Let us assume that the petitioner had been brought before the District Court and found guilty of an act of rape. That finding could not serve to prevent the petitioner from being punished in n Court of Discipline for using a police car without permission (that no such additional charge would, out of fairness, be brought does not alter the principle). Or, let us assume that the petitioner had been brought before the District Court and acquitted because the act had been committed with the woman's consent. That, too, could not serve to prevent the petitioner from being punished for using a police car without permission.

 

            It is not always easy to fix the line dividing a criminal offence according to the criminal law from an offence to the prejudice "of good order and discipline", which is included within the jurisdiction of the Court of Discipline. In such a case, the test is, in my opinion, whether the decisive element in the offence imputed to the police officer is the prejudice to good order and discipline.

           

            When we read the offences in the second and third counts with which the petitioner Sapoznikov was charged, it can be seen at first glance that they are the offences mentioned in section 207 of the Customs Ordinance.

           

            In the second count, the petitioner was charged with attempting to conceal from the customs officials a consignment of medical supplies, which had been brought into the country without a proper import licence, and which were hidden among knives, spoons and forks.

 

            In the third count, he was charged with inducing a customs officer to permit him to take the goods out of the customs warehouse.

           

            It is clear that the charge against this petitioner was not that "being a police officer, he made an arrangement to prevent the seizure of goods liable to forfeiture." Furthermore, he was not charged that, being a police officer, he gave or promised to give the customs official a bribe or recompense in order to induce him to neglect his duty - offences included in section 207.

           

            It was not stated in those charges that the petitioner had some part in the bringing in of the goods by the owner without an import licence; he was not charged with making an "arrangement" in order to prevent the seizure of forfeited goods; no mention is made at all of whether the goods were liable to be forfeited or not; nothing at all is said as to what was his purpose in trying to conceal from the customs official...... It is not even stated that he thereby assisted in the smuggling.

           

            It is clear that the charges were not directed to offences under the Customs Ordinance, but only to the petitioner's conduct as a police officer who fulfilled no duty in the customs offices, and who instead of disclosing the matter to the customs officials, tried to conceal it.

           

            It cannot be said therefore, that offence No. 47 does not apply here.

           

            As to the application of offence No. 47, I regret that I must disagree with the opinion of my colleague, Sussman J.

           

            I do not think that offence No. 47 specified by the High Commissioner is invalid. By section 50(1)(e), the High Commissioner is given the power to define the offences which are prejudicial to good order and discipline. Accordingly, it was the duty of the High Commissioner, as was explained in Unfold v. Superintendent of Acre Prison (1), to describe or to draft a series of acts which are to be regarded as offences to the prejudice of good order and discipline. For that purpose he specified not just one offence, but all forty-seven. Offence No. 47 comes only as an addition to all the offences which he had specified under the previous forty-six heads. It is true that the drafting of offence No. 47, unlike the others, is too vague, but for all that there is in it an indication of certain conduct which is to be regarded as being to the prejudice of good order and discipline. Just as the first offence, for example, contains an instruction to the Court of Discipline that disobedience by a police officer to an order of a superior in rank is deemed to be an offence to the prejudice of good order and discipline, so offence No. 47 contains an instruction to the Court of Discipline that a police officer acting in a disorderly manner or in any manner likely to bring discredit on the reputation of the Force is deemed to be an offender guilty of an offence to the prejudice of good order and discipline.

           

            By section 50(1)(e) of the Police Ordinance, the power is given to the High Commissioner to give such an instruction, that is, the power to order that such conduct shall be deemed an offence to the prejudice of good order and discipline, and it cannot be said that offence No. 47 is null and void just because in some cases the Court of Discipline may have difficulty in determining whether the given conduct, for which a police officer has been brought before it, is disorderly conduct, within the meaning of that offence. Also, should that difficulty arise, it will be a question of construing offence No. 47, and the construction is not so difficult if one remembers that it has to be construed in the light of section 50(1)(e), under the authority of which that offence was specified.

           

            Also, in the example quoted by my learned colleague from the Manual of Military Law, if such a ease is brought before the Court of Discipline of our Police according to offence No. 47, that court will be able to reach the same conclusion. The Court of Discipline will pose the question whether the High Commissioner intended to include such conduct in offence No. 47, and will be able to arrive at the same conclusion and to answer the question in the negative. The outstanding factor in offence No. 47 is conduct likely to bring discredit on the reputation of the Force. Every police officer must act properly and he is ordered not to bring discredit on the reputation of the Force. The High Commissioner provided in offence No. 47 that conduct contrary to that offence is conduct contrary to good order and discipline. Since the Law granted him the power so to provide, we cannot say that by specifying that offence be exceeded his jurisdiction. As for the argument that his drafting is too vague, I do not think that that is a defect capable of invalidating the offence, in the same way that we would not on that ground invalidate, for example, the offence of "unprofessional conduct" in the Advocates Ordinance, or the offence in section 105 of the Criminal Code Ordinance - an act causing public mischief, and the like. As stated, certain conduct was defined in offence No. 47, and I do not think that its drafting is more vague than the above-mentioned examples.

           

            Accordingly, I find no ground for interfering in the case of the petitioner Sapoznikov, and I think that the order nisi issued on his application ought to be discharged. As to the petitioner Mimran, I think that the order nisi should be made absolute.

 

Order nisi in the petition of Sapoznikov made absolute as to the conviction on the last two counts, and discharged as to the conviction on the first count; order nisi in the petition of Mimran made absolute.

 

Judgment given on May 31, 1953.

            C.A. 127/52

            Motion 80/52

 

 

RENA ROZNEK

v.

MELECH DAWMAN

 

 

In the Supreme Court sitting as a Court of Civil Appeal.

[July 23, 1952]

Before: Olshan J., Assaf J., and Witkon J.

 

 

 

Custody of minor - Agreement of parents after divorce - Jewish Law - Interests of minor paramount - Application for custody by mother - No defence filed by father - RuIe 134 of Civil Procedure Rules - Discretion of court - Dismissal of application on its merits.

 

                The parents of a girl of five years of age agreed in the course of divorce proceedings that the child should be placed in an orphanage, and that both parents should be entitled to visit her there. The mother remarried, and subsequently applied to the District Court for custody of the child on the ground that it would be in the child's interests that she should live with her mother. The father entered an appearance, but failed to file a defence, and the District Court, after considering the merits of the case, dismissed the application. The mother appealed and contended that, according to Jewish law, she was entitled to the custody of the child, and that as the father had failed to file a defence, the court was bound, under Rule 134 of the Civil Procedure Rules, 1938, to enter judgment in her favour.

               

                Held, dismissing the appeal:

               

                (1)           Rule 134 gives a discretion to the court either to dismiss the case, or to deal with it, and in the circumstances of the present case the District Court had acted correctly in dealing with the matter on its merits.

               

                (2)           The first duty of the court in matters of custody is to act in the best interests of the child, and although the general rule in Jewish law is that a small daughter should remain with her mother, this rule is not absolute

               

                (3)           In the circumstances of the present case the District Court had acted correctly in departing from the rule, by not granting custody to the mother.

           

Israel case referred to :

(1)   Dr. Meir Manfred Rosenberg v. Mrs. Shoshana Suzi Rosenberg-Ellbogen, (1950/51), 3 P.M. 36.

 

Levitzky for the appellant.

Scharf, for the respondent.

 

            ASSAF J. giving the judgment of the court :

            This is an appeal from a judgment dated June 23, 1952, of the District Court of Tel Aviv, dismissing a claim of the appellant for the delivery of her daughter, Shulamit (Sabena) Dawman, to her custody.

 

2. These are the facts. The appellant and the respondent are the parents of the child Shulamit (Sabena). They lived happily together for some years, and then serious quarrels broke out between them. Eventually, about a year ago, the appellant and the respondent were divorced, and the child, who was five years of age, was placed in a children's institution in Ramatayim, under an agreement entered into between the parents before the granting of the divorce. One of the conditions of the agreement was that neither of the parents would be entitled to remove the child from the institution without the consent of the other, and that the expenses of keeping her there would be borne by the father. The child has remained in the institution from the date of the divorce, and the father has paid the expenses of her maintenance there as agreed. Each of the parents visits the child once a week on different days, so that they should not meet.

 

            The mother, who has since remarried, now asks that the child be handed over to her - contrary to the agreement entered into between her and the father - since in her opinion the interests of the child demand that she be placed in the care of her mother. She admits that her daughter has been well cared for in the institution, but she contends that the care given by the institution is not the same as that of a mother. A doctor, who visited the institution on one occasion only, and stayed there with the child for about an hour with the mother present, noticed that the child was worse off from the psychological point of view and was not as bright as she had formerly known her to be. The child was brought before the judge, who formed a different impression. He was not satisfied that there had been a change for the worse, and his opinion was strengthened by the evidence of the owner of the institution.

 

3. The father, the respondent, entered an appearance in the court below. He did not, however, file a statement of defence, nor did he appear to defend the case at the time of the hearing. We do not now find as a fact what was the reason why he failed to file a statement of defence, although it would appear that the respondent's ill health at that time was the cause. Nevertheless the court dismissed the mother's claim. It is from this decision that the present appeal has been brought.

 

4. In the meantime an application, supported by an affidavit, was submitted to us on behalf of the respondent, requesting that he be permitted to place certain certificates before the court at the hearing of the appeal. By consent of counsel for the parties, it was decided by the court not to deal with this application separately, but to permit the parties to submit argument at the same time on the appeal itself, and on the question whether the certificates should be submitted.

 

5. Counsel for the appellant made two principal submissions in regard to the merits of the appeal, namely:

 

(a) The court below erred in not proceeding in accordance with rule 134 of the Civil Procedure Rules, 1938. The respondent entered an appearance and a statement of defence should have been filed within 15 days. He knew that a claim had been filed against him, and he also knew the nature of that claim. Since he did not file a statement of defence, it must be presumed that he waived his right to do so, and the judge should have entered judgment in favour of the mother, the plaintiff. As far as the application to this court is concerned, it can be of no assistance to the respondent even if it be allowed. The respondent was given 15 days from March 27, 1952 to file a statement of defence. He fell ill on April 4, 1952. If that is so, he had a period of seven days before he fell ill in order to file a statement of defence, and he should not have left the matter until the last minute.

 

(b) The judgment is contrary to law. The judge took no account whatever of Jewish law, according to which "a daughter shall always be with her mother, even after the age of six... and even if the mother has remarried - her daughter shall be with her" (Shulhan Aruh, Even Ha-Ezer, 82, 7). It is true that, in terms of the agreement, the child was to have been kept in an institution, and the father - with the consent of the Rabbinical Court of Tel Aviv - was the one to decide to which institution she should go.

        According to both Jewish and English law, however, no great importance is to be attached to an agreement relating to the custody of a child, and the court must have regard to the interests of the child alone. In the present case the interests of the child demand, in the submission of the appellant, that she be delivered into her mother's care, and counsel for the appellant relies upon the evidence of the doctor who saw the child.

 

6. We shall deal with these submissions seriatim.

 

            We do not accept counsel's first argument in which he relied upon rule 134 of the Civil Procedure Rules, 1988, for he based his submission upon the opening words of that rule without taking into account the last words. That rule provides that if the party served with a summons does not file a defence on or before the day fixed therefore, "the plaintiff may set down the action for judgment and such judgment shall be given on the statement of claim as the court shall think fit." Counsel for the appellant emphasised the opening words of the rule : "...and such judgment shall be given on the statement of claim", but the concluding words of the rule provide "as the court shall think fit". The court, therefore, is not bound to give judgment on the statement of claim, but may deliver such judgment as it thinks fit, being guided by what is just. If the court is of opinion that the statement of claim is not well founded, it will refuse to give judgment upon it and will not hold the defendant liable, even in the absence of a statement of defence filed within the period provided by law, and will give the judgment in his favour not only in his absence, but even without his knowledge.

           

7. In regard to the second and far more important submission of counsel for the appellant, we must hold that the rule under which a son is not separated from his mother until he is over six years of age, and a daughter remains with her mother always, is not absolute. This rule may be varied according to the circumstances. It was already laid down by one of the great Rabbis about 300 years ago that in matters such as these :-

 

"There is no contradiction between the scholars, for each case is dealt with on its own merits ... and the decisions will vary according to the facts. He who decides in a case of this kind cannot be accused of departing from what has been laid down by another scholar, where it has not been first ascertained that the circumstances of the two cases were the same, for even a slight difference in the facts may change the legal position of the case, and in this branch of the law, each case depends upon its own facts." (Responsa Darchei Noam of Rabbi Mordechai Halevi, Even Ha-Ezer, 38.)

 

8. The governing consideration in every case of this kind is the welfare of the child. When the scholars of the Talmud laid down that a daughter shall remain with her mother permanently, and a son until he has reached the age of six years, they did so for the good of the child, for even a boy of six feels more comfortable in the company of his mother (Eruvin, 82b). This general rule, however, only applies "when both the father and the mother are alive, and both are equally good for the child -in that case the mother is to be preferred." (Darchei Noam, ibid.) If the court was of opinion that it was in the interests of the child to be with his father, or even with relatives of his father, he would be taken from the care of his mother and handed to the father or the father's relatives (Darchei Noam, 26). This is also the case with a son of over six years of age, and if the court is of opinion that it is in his interests to be in his mother's home, he is left in the care of his mother (see also Compilation of the Judgments of the Chief Rabbinate of Eretz Yisrael, Jerusalem, 1950, p. 12). Rabbi David Ben Zimra went even further, and ruled that a small sick child whose mother had died should be given to his grandmother, who was prepared to take him, although the father requested that the child remain with him and be supervised by neighbours. It is clear that, according to the rule, a son must remain with his mother and not with his grandmother but if, in the opinion of the court, it will be better for the child that it should be with its grandmother, although the father "seeks the pleasure, and the joy of having his son with him", the child is not to be taken from his grandmother's home. (Responsa, Rabbi David Ben Zimra, 1, 128; Response Darchei Noam, 88.)

 

9. Rabbi Meir of Padua, after holding that where the sages laid down the rule that a daughter should remain with her mother, their purpose was to protect the welfare of the daughter, also concludes :-

 

''If it appears to the court that it is in the interests of the orphan to take the opposite course, and that she should be with her brothers, the court may simply reverse the rule in her favour ...and if she be in her brothers' home, and wishes to remain with them, there will be no need to remove her from there and return her to her mother, for it is her welfare that is sought, and not something to her detriment" (Responsa Meir of Padua, 53).

 

10. This principle - that the court must act in the interests of the child alone - runs like a golden thread through all the authorities and the Responsa of all the periods of history (see the Responsa of Rabbi Shlomo Ben-Adereth which are ascribed to Maimonides, 38; Responsa of Rabenu Asher Ben-Yehi'el, 82, 2; Responsa Perah Matte Aharon, I, 110, and so forth), and the court will not give its assent to a contract entered into between the parents if such contract is not in the interests of the child. (See Rosenberg v. Rosenberg-Ellbogen (1).) Such a contract may indeed have some relevance. That will only be so, however, where the contract does not conflict with the interests of the child, that is to say, where the homes of both the father and the mother are equally good for the child. If the mother in such a case consents to waive her preferential right, then she is bound by her agreement, and her waiver is a valid waiver. But if such an agreement is against the interests of the child, then it is void.

 

            The same rule applies where the agreement was not against the interests of the children at the time it was made, but it became so when the situation changed. In that case too the agreement is void. We find a case such as this in the Responsa of Hamabit, 2, 62:-

           

            "Reuven divorced his wife. He had two daughters, and they remained with their mother ...she remarried, and had quarrels with her husband, and for the sake of peace in the home she returned her daughters to their father after he too had remarried.  Her husband then went to another place and did not wish to return ...The daughters were unhappy in their father's home because of his new wife and wished to return to their mother now that her husband was no longer with her ...Reuven said to his former wife, 'it was your wish to hand them to my care - I do not wish to return them.' "

 

            It was held by Hamabit that "even if it was the mother's wish to hand the daughters over to their father, he is obliged to return them to her, for when it is said that a daughter must remain with her mother, it is not because the attachment and love of a mother for her daughter are greater than those of her father, but for the better upbringing of the daughter... and it is well known that it is better for a daughter to remain with her mother than with her father who has married a second time."

           

11. We shall now return to the case before us. The learned judge said in his judgment:-

 

            "I have heard the owner of the institution in which the child has been placed, and she has given me the impression that the child is in good hands. I have seen the child in my chambers, and although I cannot pretend to be an expert in understanding children, her appearance made a good impression upon me: she looks well, she is well-dressed and well-mannered ...  As far as I could see she was quite untroubled.

 

            Personally I feel that in the majority of cases, though by no means in all cases, the intimate treatment which a child receives in its parents' home is better than the best treatment which it receives at the hands of strangers...But the parents' home was broken up when the plaintiff and defendant separated, and that home no longer exists. The arrangement reached by the parents seems to me to be effective and fair, and I am not convinced that the welfare of the child calls for my intervention... The child has the benefit today - it is true in a partial and incomplete form - of the care of both father and mother - while the proposed arrangement is likely to afford her the full benefit of her mother's care, it will take from her completely that of her father. I do not think that, in the absence of some compelling reason, I am called upon to act against what one of the parents regards as his right, particularly as the arrangement in question was made by consent."

 

            We see that the learned judge weighed all the circumstances thoroughly, and was not convinced that the welfare of the child demanded his intervention. After having considered the matter, we are of the same opinion as the learned judge, and we accordingly dismiss the appeal.

           

12. It follows from what I have said, therefore, that the judgment of the court below must be confirmed. Counsel for the appellant, however, has presented us with a new - and alternative - prayer and that is that should this court decide to dismiss the appeal, the arrangement made between the parties in regard to their visits to the child should be varied so as to permit the mother to visit her every day when the mother wishes and even take her on excursions. It is not the function of this court to consider and decide on this new prayer, which was not even mentioned in the grounds of appeal. This is a matter for the District Court. Since, however, we are dealing here with arrangements for the welfare of a small child, we wish to avoid the necessity of a new case which will involve the loss of a great deal of time. Despite the fact, therefore, that we agree with the judgment of the court below, we shall set that judgment aside and return the case to the District Court with the following instructions :

 

        (a) that it deal with the application for altering the terms of the present arrangement and decide in the matter, after hearing both the parties, and after taking the advice of those experienced in matters of education, whether more frequent visits by the parents are desirable from an educational point of view;

 

        (b) that it add to its previous judgment the conclusions at which it will arrive in regard to the new prayer of the mother .

 

13. In view of the conclusions which we have reached on the merits of the appeal, we see no reason for acceding to the application filed before us by the respondent. We are doubtful, moreover, whether we are entitled in any case to accede to that application.

 

Appeal dismissed, but case remitted to District Court to consider appellant's application for variation of existing arrangements between the parties.

Judgment given on July 23, 1952.

HCJ  10203/03

 

"Hamifkad Haleumi" Ltd.

v

1.         Attorney General

2.         Broadcasting Authority

3.         Second Authority for Television and Radio

4.         National Labour Court                                           

 

 

The Supreme Court sitting as the High Court of Justice

[20 August 2008]

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

 M. Naor, S. Joubran, E. Hayut

 

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

 

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

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

\

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

 

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

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

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

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

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

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

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

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

 

Petition rejected

Legislation Cited

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

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

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

Basic Law: Human Dignity and Liberty, s.8

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

Basic Law: Freedom of Occupation

Israeli Cases Cited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[2006] (not yet reported).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

 

For the Petitioner –                 Motti Arad, Hila Goldberg

For Respondents 1 – 2                         Avi Licht

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

 

JUDGMENT

 

Justice M. Naor

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

The facts

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

‘Ami Ayalon

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

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

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

Hamifkad Haleumi – Citizens Sign an Agreement.

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

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

The original petition and the granting of order nisi

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

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

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

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

            The amended petition and the expansion of the bench

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

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

            The normative framework – advertising in broadcasts of the Broadcasting Authority 

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

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

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

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

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

‘25A. Advertisements and Announcements on Radio

              ….

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

         …

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

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

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

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

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

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

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

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

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

                                    …..

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

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

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

‘4.  Ensuring Reliable Programs

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

The Normative Framework – Advertising in Broadcasts of the Second Authority

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

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

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

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

‘A franchisee shall not broadcast an advertisement  –

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

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

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

‘A franchisee shall not broadcast programs that contain -

   …

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

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

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

24. Establishing Rules

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

…

Prohibited programs as stated in section 46;

…

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

 

88.  Rules for Advertisements

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

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

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

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

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

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

'47. Providing the Opportunity for Response

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

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

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

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

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

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

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

                                    …..

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

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

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

The parameters of the dispute – two clarifications

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

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

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

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

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

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

The petitioner’s claims

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

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

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

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

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

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

Arguments of the Broadcasting Authority

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

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

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

Arguments of the Second Authority

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

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

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

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

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

Deliberation and Decision

The test of constitutionality is also applicable to administrative guidelines

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

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

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

The stages of the constitutional test

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

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

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

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

Do the Rules violate freedom of speech?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

‘25A    Advertisements and Announcements on Radio

….

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

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

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

‘88          Rules for Advertisements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Limitation clause – third condition: proper purpose

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

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

The fairness doctrine in Israeli law

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

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

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

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

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

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

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

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

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

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

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

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

The Fairness Doctrine and the Justification for Regulation of Broadcasts

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

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

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

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

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

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

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

Regarding the Broadcasting Authority, Barak stated explicitly:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This concern also exists in relation to advertisements:

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

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

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

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

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

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

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

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

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

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

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

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

Limitation clause - fourth condition: proportionality

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

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

A.Limitation clause – proportionality: the rational connection test

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

…

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

...

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Epilogue

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

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

 

 

 

Justice E.E. Levy

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

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

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

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

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

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

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

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

 

 

President D. Beinisch

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

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

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

Statutory authorization for the broadcast of advertisements for consideration

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

'25A – Radio Advertisements and Announcements 

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

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

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

'81. Broadcast Advertisements

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

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

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

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

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

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

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

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

The prohibition on the broadcast of political advertisements

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

‘7.  Prohibited Advertising

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

…..

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

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

'5.  Advertising on Controversial Subjects

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

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

‘11.  Advertising on Controversial Subjects

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

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

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

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

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

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

Political advertising as political expression

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

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

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

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

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

Violation of freedom of political expression

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

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

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

Examination of the constitutionality of the violation – the Limitations clause

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

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

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

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

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

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

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

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

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

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

"By a law” or “according to a law …”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

From the general to the specific

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

‘25A. Advertisements and Announcements on Radio

          ….

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

              …

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

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

88. Rules for Advertising Broadcasts

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

(1) …

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

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

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

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

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

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

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

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

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

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

Comments prior to closing

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

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

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

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

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

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

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

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

Concluding Note

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

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

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

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

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

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

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

 

 

Justice E. Hayut

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

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

….

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

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

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

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

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

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

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

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

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

 ‘A franchisee shall not broadcast an advertisement  –

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

(2)….

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

‘A franchisee shall not broadcast programs that contain -

(1) …

(2) …

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

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

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

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

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

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

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

 

 

Justice A. Procaccia

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

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

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

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

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

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

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

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

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

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

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

We will now elaborate on the above.

The constitutional right – its essence and scope

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

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

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

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

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

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

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

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

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

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

Determination of the scope of the constitutional right

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

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

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

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

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

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

The constitutional right to freedom of speech

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

Freedom of political expression

The contents

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

Means of realization

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

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

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

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

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

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

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

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

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

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

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

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

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

I will now elaborate on these lines of reasoning.

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

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

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

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

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

Section 4 of the Broadcasting Authority Law states as follows:

'Ensuring reliable broadcasts

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

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

Providing the opportunity to respond

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

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

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

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

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

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

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

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

The nature of the paid advertisements track

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

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

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

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

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

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

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

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

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

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

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

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

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

And elsewhere she clarifies:

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

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

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

And therefore –

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

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

In Summary           

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

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

General Comment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Other possible grounds for challenging the Rules

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

Violation of equality

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

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

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

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

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

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

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

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

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

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

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

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

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

Conclusion

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

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

.

Justice A. Grunis

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

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

 

 

Justice S. Joubran

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

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

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

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

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

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

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

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

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

 

18 Av 5768.

20 August 2008.

 

 

HCJ 9098/01

Yelena Ganis and others

v

1.       Ministry of Building and Housing

2.       Attorney-General

HCJ 10043/01

Raphael Kornitzer and another

v

1.       Ministry of Building and Housing

2.       Minister of Building and Housing

3.       Minister of Finance

4.       Attorney-General

HCJ 401/02

Mordechai Bilitzer and others

v

1.       Government of Israel

2.       Minister of Finance

3.       Minister of Building and Housing

 

The Supreme Court sitting as the High Court of Justice

[22 November 2004]

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

 

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

 

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or extend an apartment in Jerusalem during the interim period, and therefore it was unconstitutional for the Knesset to suspend the grants retroactively.

 

Held: The Supreme Court was unanimous in the opinion that the Knesset had acted improperly when it retroactively suspended the grants, since it had not considered the possibility that some persons may have relied on the grants and taken commitments upon themselves as a result. However, the justices differed as to the proper approach that should be adopted to remedy the situation.

The majority opinion was that it was possible to construe the statute narrowly in such a way that the retroactive suspension would only apply to potentially entitled persons who had not relied on the statute during the interim period, but it would not apply to those entitled persons who did rely on the statute during the interim period. Consequently, the right of the latter group of persons to receive the grant was held to remain valid.

The minority opinion was that it was not possible to construe the statute narrowly as aforesaid, and therefore the retroactive suspension ought to be declared void for unconstitutionality.

 

Petition granted, in the manner held by the majority (Justice Cheshin, President A. Barak, and Justices A. Procaccia and D. Beinisch), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

 

Legislation cited:

Adoption of Children Law, 5741-1981, s. 13.

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Budget Principles Law, 5745-1985, s. 39A.

Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004.

Government and Justice Arrangements Ordinance, 5708-1948, s. 10(a).

Housing Loans Law, 5752-1992, ss. 6B, 6C.

Housing Loans Law (Amendment no. 5), 5761-2001.

Income Tax Ordinance [New Version], s. 3(i)(1)(a).

Inheritance Law, 5725-1965, s. 5(a)(1).

Interpretation Law, 5741-1981, s. 22.

Interpretation Ordinance [New Version], s. 17.

State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, ss. 20, 20(a)(1), 20(b), 20(c).

Torts Ordinance [New Version].

 

Israeli Supreme Court cases cited:

[1]      HCJ 6195/98 Goldstein v. Central District Commander [1999] IsrSC 53(5) 317.

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

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

[4]      CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[5]      PPA 1613/91 Arbiv v. State of Israel [1992] IsrSC 46(2) 765.

[6]      CrimA 4912/91 Talmai v. State of Israel [1994] IsrSC 48(1) 581.

[7]      HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [1997] IsrSC 51(5) 410.

[8]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[9]      HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [2000] IsrSC 54(5) 547.

[10]    CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd (unreported);

[11]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[12]    HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.

[13]    CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [2001] IsrSC 55(1) 12.

[14]    HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [2000] IsrSC 54(2) 368.

[15]    CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[16]    HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

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

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

[19]    CA 1900/96 Telmaccio v. Custodian-General [1999] IsrSC 53(2) 817.

[20]    MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[21]    LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

[22]    FH 40/80 Koenig v. Cohen [1982] IsrSC 36(3) 701.

[23]    CA 3622/96 Hacham v. Maccabi Health Fund [1998] IsrSC 52(2) 638.

[24]    CA 7034/99 Kefar Saba Assessing Officer v. Dar [2004], IsrSC 58(4) 913.

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

[26]    HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [1963] IsrSC 17 2503.

[27]    LCA 176/86 A v. B [1988] IsrSC 40(2) 497.

[28]    HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[29]    HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [1979] IsrSC 33(1) 225.

[30]    CA 64/72 General Federation of Workers v. Moav [1973] IsrSC 27(1) 260.

[31]    HCJ 264/77 Katan v. National Insurance Institute [1978] IsrSC 32(1) 678.

[32]    HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477.

[33]    CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[34]    CA 10608/02 Hazima v. Department of Customs and VAT [2004] IsrSC 58(3) 663.

[35]    CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[36]    HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[37]    HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[38]    Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[39]    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[40]    Crowell v. Benson, 285 U.S. 22 (1932).

[41]    Ellis v. Railway Clerks, 466 U.S. 435 (1984).

[42]    Shapiro v. United States, 335 U.S. 1 (1948).

 

Jewish law sources cited:

[43]    I Kings 21, 19.

 

For the petitioners in HCJ 9098/01 — E. Prince, R. Dovrovitzer.

For the petitioners in HCJ 10043/01 — A. Zahar.

For the petitioners in HCJ 401/02 — R. Yarak.

For the respondents — O. Koren, D. Briskman.

 

 

JUDGMENT

 

 

Justice M. Cheshin

The Knesset enacts a law and provides therein that persons who buy an apartment or extend an apartment in Jerusalem are entitled to receive a grant of several tens of thousands of sheqels. The commencement of the law is, as usual, on the date it is published in Reshumot. A short time — approximately six weeks — after the law is published, the Knesset ‘returns to its senses’ and decides — once again in a law — to postpone the commencement of the first law. Until now, all has gone well; there is no clamour or outcry. But the Knesset wishes to give the second law, the law that postpones the commencement of the first law, not only future application — prospective application — but also past application — retrospective application — from the date of the commencement of the first law, the benefit law. In other words, the second law seeks to suspend the application of the first law, the benefit law, retroactively, from the first day on which it came into effect. This leads to the question: what is the law with regard to someone who bought an apartment or extended an apartment in Jerusalem during that interim period of six weeks, between the date on which the first law was published and the date on which the second law was published? Was the Knesset entitled to deny him in the second law — by means of the suspension — what it gave him in the first law? Does the retroactive application of the second law comply with the criteria provided in the Basic Law: Human Dignity and Liberty? This is the question that the petitioners have brought before us, and it is to this question that we are obliged to provide an answer.

Prologue

2.    The Housing Loans Law, 5752-1992, grants ‘entitled’ persons — persons without housing who are entitled to housing assistance pursuant to rules prescribed by the Ministry of Building and Housing in coordination with the Ministry of Finance — certain pecuniary benefits. In the middle of the year 2000, Knesset members promoted a private draft law whose purpose was to give significant pecuniary benefits to whoever would buy apartments or extend their apartments in Jerusalem. The draft law, so the explanatory notes state, was intended to contend with the migration away from Jerusalem by encouraging young couples and additional entitled persons to buy or extend apartments in Jerusalem. After it was approved by the Knesset, the draft came up before the Knesset Finance Committee, and a representative of the Ministry of Finance expressed opposition to the draft, on the grounds that the grant offered would not prevent migration away from Jerusalem but would cause a rise in the prices of apartments in Jerusalem. In the words of Mr S. Yiftah, the representative of the Ministry of Finance:

‘The problem here is a question of supply. The increase in the stock of apartments in Jerusalem, for the present purpose, is less than the natural increase in population, and it is also less than the total increase in population. The increase in the stock of apartments is 2% per annum, and the natural increase of the population in numbers of households, is 2.5% per annum. In such a situation, there is no doubt that whoever does not find his solution in Jerusalem will leave Jerusalem. In the absence of solutions on the supply side, there is no doubt that the draft will not only not help, but it will increase the price unequivocally. When there will be reserves of apartments in Jerusalem, the position will be different.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 11 September 2000, as published on the Knesset web site).

Later at the meeting, MK Meir Porush was asked to vote upon the source of the budget for financing the draft law — as required by the provisions of s. 39A of the Budget Principles Law, 5745-1985 — and his response was that ‘each year approx 1,200 million sheqels remain from loans and from this item — that is [the] budgetary source.’ The representative of the Ministry of Finance replied that this source was totally irrelevant. But the Finance Committee decided to adopt the draft law, and the draft was published on 18 December 2000 as a draft law promoted by it, under the name of the draft Housing Loans Law (Amendment no. 6) (Promoting Jerusalem, the Capital of Israel) 5761-2000 (Draft Laws 5761, 369). The following is what the explanatory notes to the draft law (ibid.) tell us:

‘In view of the migration away from Jerusalem, the capital of Israel, there is great importance in encouraging entitled persons to prefer Jerusalem when they are about to buy or extend an apartment.

The proposed law will encourage many to buy an apartment in Jerusalem and it will thereby strengthen its status as the united and prosperous capital of Israel, a matter on which there is a consensus in the State of Israel.

The estimated cost to the State is 130 million new sheqels.’

The Knesset approved the draft law on its first reading, and when the draft came up for discussion at the Finance Committee, the representative of the Minister of Finance again argued that its enactment would lead to a rise in the prices of apartments in Jerusalem, while it would not prevent the migration away from the city:

‘Assaf Regev [Ministry of Finance]:
The main problem in Jerusalem is not the demand for apartments but the supply of apartments. This law will simply raise the prices of apartments. It will increase the demand for apartments but it will not increase the supply of housing. The problem in Jerusalem is that there are no available planning resources nor are there any resources of land. An initial consequence of this law is that it will lead to an increase in the prices of housing and it will harm precisely those persons whom MK Meir Porush supposedly wishes to help.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 3 January 2001, as published on the Knesset web site).

The Finance Committee approved the draft law with various changes, and the draft was brought before the Knesset once again for the second and third readings. The Knesset adopted the draft law, and on 15 February 2001, the Housing Loans Law (Amendment no. 5), 5761-2001 was published (in Sefer HaHukkim (Book of Laws), 5761, 140). Below we will refer to this law as ‘Amendment 5.’ This law was supposed, as we have said, to grant significant pecuniary benefits to persons suffering from housing distress who bought or extended apartments in Jerusalem.

3.    Amendment 5 was of short duration. This law was adopted at the end of the term of office of Ehud Barak’s government, when the government did not have the confidence of a majority of the Knesset. On 6 February 2001 elections were held for prime minister, and when a new government was formed on 7 March 2001, it was decided to postpone the date of the commencement of Amendment 5, and also to postpone the commencement of additional laws of a similar nature — laws for which there was no allocation in the State budget — that were adopted at the same time. Thus, on 21 March 2001, the draft State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was published (in Hatzaot Hok (Draft Laws), 5761, 582). The following was stated in the explanatory notes (ibid., at p. 586):

Introduction

During the last year, the Knesset adopted a series of laws, which were initiated by Knesset members and whose cost, whether through increasing spending or by reducing the income of the State, is estimated at approximately 3,000 million new sheqels per annum. The draft budget for 2001 does not include sources of finance for these laws.

It is proposed therefore to postpone the commencement of most of the aforesaid laws to the next tax year, and to amend or cancel several of them, as set out below, so that the budgetary cost involved in operating them shall not be reflected in the current fiscal year.’

With regard to Amendment 5, the explanatory notes to the draft law said as follows (ibid., at pp. 587-588):

‘The Housing Loans Law (Amendment no. 5), 5761-2001, provides that the Government should give a grant to any entitled person who buys an apartment in Jerusalem or who extends his apartment as a result of housing distress, in an amount of 80 thousand new sheqels, when the apartment is situated on land administered by the Israel Lands Administration, and in an amount of 60 thousand new sheqels, when the apartment is situated on land that is not administered by the Israel Lands Administration.

The direct budgetary cost of the law is approximately 160 million new sheqels per annum, and it involves wide-ranging ramifications whose cost may reach hundreds of millions of additional new sheqels.

…

It is therefore proposed that the validity of the aforesaid laws should be suspended until the end of 2001. In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should also be provided that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof.’

The draft law passed a first reading, and when it was sent to the Finance Committee, to be prepared for the second and third readings, we find the following remarks were made by Mr Ohad Marani, the Director of Budgets at the Ministry of Finance, to the members of the committee:

‘A final remark on the private laws — we do not say that the laws are populist, nor do we say that they were passed as an oversight, but we do say that this is a collection of private laws that cost a great deal of money. Each one of these laws costs money — whether they are better or worse is a matter of individual opinion for each draft law — but all these laws cost a great deal of money. We have no budget to finance these laws.

Similarly, in our opinion — irrespective of the quality of each law in itself — these laws do not reflect any clear statement of the government’s priorities, and if you will allow me to say this, I will say that I am not sure whether they even reflect the priorities of the Knesset. In the last two months, when the government did not have a majority in the Knesset, a series of many laws was passed. All of these laws cost approximately 3,000 million sheqels. This is a large amount of money, and we are not able to finance all these laws.’

(Page 5 of the minutes of the meeting of the Knesset Finance Committee on 27 January 2001, as published on the Knesset web site).

After deliberation, the Finance Committee referred the draft law back to the Knesset, and on 4 April 2001, when it was published in Reshumot, the draft became law. Thus the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was enacted (Sefer HaHukkim (Book of Laws), 5761, 236). Below we shall refer to this law as ‘the Arrangements Law.’ Section 20 of the Arrangements Law is the provision relevant to the matter before us; in this, the validity of Amendment 5 was suspended until 31 December 2001 (from then until today the commencement of Amendment 5 has been repeatedly deferred until 31 December 2007: Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004).

According to s. 20, the commencement of the Arrangements Law was determined to be retrospective, from 15 February 2001, i.e., starting from the date of the commencement of Amendment 5. Thus the legislator of the Arrangements Law sought to uproot Amendment 5 ab initio, and so to postpone its commencement. The reason for this was that Amendment 5, as well as other laws that were enacted at the end of the term of office of the Barak Government, were all adopted — at a total cost of 3,000 million sheqels a year — without there being any sources of financing in the budget, and implementing them would have harmed the budget seriously.

4.    Up to this point we have summarized the tortuous series of events in which Amendment 5 — an amendment that granted benefits to persons suffering housing distress who bought or extended an apartment in Jerusalem — was adopted, and how, approximately six weeks later, the Knesset enacted s. 20 of the Arrangements Law, which sought to uproot these benefits ab initio.

The main pertinent facts and the question in dispute

5.    There are three petitions before us. In HCJ 9098/02 the petitioners are five couples, in HCJ 10043/01 the petitioners are one young couple, and in HCJ 401/02 there are twenty-five petitioners, some of whom are couples and some single. The cases of the petitioners differ from one another — each one has its own unique series of events — but they all focus on the same six weeks between the date on which Amendment 5 was published and the date on which the Arrangements Law was published. The petitioners argue that they complied in full with all the conditions set out in Amendment 5 for receiving the pecuniary benefits: they were recognized as ‘entitled persons’ and they bought apartments or extended apartments in accordance with the provisions of Amendment 5 prior to its suspension; moreover, by buying and extending the apartments they relied on the undertaking of the law to give them pecuniary grants. This leads to the conclusion, so the petitioners argue, that they were entitled in those six weeks to receive the benefits that the law gave them. But then s. 20 of the Arrangements Law befell them, and because of its retroactive application, they were denied a right that they had acquired by virtue of Amendment 5. This denial that was the result of s. 20 — this is the essence of the claim — was an unlawful denial and contrary to the Basic Law: Human Dignity and Liberty, and therefore their petitions ask us to declare the retroactive provision void and to order the State to give them the grants as stated in Amendment 5. The respondents gave their reply to the claims of the petitioners, and we now have the burden of entering into the dispute and deciding between the opposing parties.

Later in our remarks we will consider the legal questions in this matter, but let us first say that in the absence of details and clarifications, we will find it difficult to decide whether the petitioners, or some of them — complied with the preliminary conditions that were provided in s. 6B of the Housing Loans Law. This is the case, for example, with regard to whether the petitioners were ‘entitled persons’ as s. 6B requires. And if this is the case with regard to the conditions set out expressly in s. 6B, certainly we shall be unable to decide the question whether, when they bought or extended an apartment, the petitioners — or some of them — relied on the undertaking of the law in s. 6B. In view of our final decision in the three petitions — and as we shall explain below — there is no longer any need to decide the individual case of each petitioner.

6.    Before we consider the matter in detail, let us set out the pertinent provisions of the law, and below we will discuss the provisions of the law in greater detail.

Amendment 5: Section 6B of the Housing Loans Law — the benefiting provision

7.    The first provision of the law, which sought to benefit persons who purchased or extended apartments in Jerusalem, will be found in s. 6B that was added by Amendment 5 to the Housing Loans Law. The following is the language of s. 6B, as added to the Housing Loans Law:

‘Special grant for purchasing or extending an apartment in Jerusalem

6B. (a) An entitled person, including someone recognized as entitled to a housing distress programme for apartment owners, who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant as set out below:

 

(1) For an apartment on Israel Land as defined in the Basic Law: Israel Land (hereafter — Israel Land) — an amount of 80,000 new sheqels;

 

(2) For an apartment on land that is not Israel Land — an amount of 60,000 new sheqels.

 

(b) What is stated in sub-section (a) shall apply both with regard to a purchase or an extension of an apartment that has not yet begun to be built and also with regard to a built apartment.

 

(c) The amounts of the grants under sub-section (a) will be revised on the first of January each year for the increase in the index as of the fifteenth of December that precedes it; the revised amounts as aforesaid shall be rounded to the nearest new sheqel.

 

(d) The Minister of Building and Housing shall publish a notice concerning the amounts of the grants, as revised under this section.

 

(e) Nothing in the provisions of this section shall derogate from any benefit given under any law.

(We should remark, parenthetically, that later the number of the section was changed, and it is today numbered 6C). We see that the first part of section 6B(a) stipulates preliminary conditions for receiving the benefits — someone who is recognized as an entitled person (as this concept is defined in the law) or someone recognized as entitled to a housing distress programme for apartment owners and who bought an apartment in Jerusalem or extended an apartment in Jerusalem — and then it proceeds to stipulate the benefits that will be given. The interpretation and effect of the provisions of s. 6B are the subject of disagreement between the parties, and we will now discuss these briefly.

8.    The state argues as follows: it is a basic premise in the petitioners’ arguments that the provisions of s. 6B intended to give them, in themselves, a right to the grants as set out in the law. The petitioners’ premise is therefore that by complying with those preliminary conditions prescribed in the first part of s. 6B, they automatically acquired a right to the grants. It is this right, they further go on to claim, that s. 20 of the Arrangements Law purportedly wishes to take away from them. But this basic premise, so the State claims, is founded upon an error. The reason for this is that the right of the petitioners to the grants had not yet crystallized into a mature right during those six weeks when Amendment 5 was valid. Why is this? Because at that time rules had not yet been prescribed for implementing the giving of the grants, including suitable rules for implementation by the commercial banks, and in the absence of rules of implementation the right to the grant did not crystallize. In the language of the respondents:

‘The absence of rules for implementing the grant is not merely a procedural problem, but it is a substantial failure, which prevents the implementation of the law. It is not reasonable to order the payment of a grant without rules that regulate the implementation of the provisions of the law… It should be emphasized that neither party disputes that during the period when the law was valid, it was impossible to receive the grant from the banks, because of the absence of guidelines for implementing the law… In addition it should be noted that it is clear that whoever wished to realize his alleged right to a grant was obliged to apply to a bank, and if he did not do so before buying the apartment, he certainly cannot argue now that he relied on the grant when he bought the apartment.’

Is this really the case?

9.    The question that must be asked is, of course, what right did the petitioners acquire pursuant to the provisions of s. 6B of the Housing Loans Law? Was this a qualified right or a conditional right? And if it was a qualified right or a conditional right — what was the qualification and what was the condition? Indeed, there are cases where a statute makes its implementation conditional upon the enactment of regulations or on the fulfilment of other preliminary conditions; and the question whether this is indeed the case here is a question of interpretation of the statute. As was stated in HCJ 6195/98 Goldstein v. Central District Commander [1] at p. 331:

‘There are cases where a statute makes its implementation conditional upon regulations that will be enacted pursuant to it, and without regulations the statute cannot be implemented… and there are cases where a statute can be implemented even when no regulations for implementation have been enacted pursuant to it. The answer to the question whether a particular statute can or cannot be implemented without regulations for implementation derives first and foremost from the drafting of the statute, whether it makes itself conditional upon the enactment of regulations for implementation or not.’

See also the references mentioned in that judgment.

The question here is therefore a question of interpretation: do the provisions of s. 6B, as added in Amendment 5, in and of themselves, give rise to a right to receive grants — naturally, if the preliminary conditions prescribed in the provisions of s. 6B itself are fulfilled — or perhaps the provisions of s. 6B are merely the infrastructure, and the right to a grant will not be complete and final unless rules are enacted to regulate the methods of receiving the grant? If the latter interpretation is the correct one, then the petitioners did not acquire a right to a grant in those six week, and the application of s. 20 retroactively did not infringe any right since they had not acquired one.

10. A consideration of the provisions of s. 6B of Amendment 5 does not leave us in any doubt; we know that whoever complies with those preliminary conditions prescribed in the first part of s. 6B(a) acquires a clear right ex lege to receive the grants set out in the law. The right is granted directly by the law, and the executive authority did not acquire any power to delay the payment or to make it subject to additional conditions that are not prescribed in the law. The right of the entitled persons is a specific right, a clear and express right that makes itself conditional only on the conditions prescribed in the first part of s. 6B(a): first, that a recipient of the grant is ‘an entitled person, including someone recognized as entitled to a housing distress programme for apartment owners,’ and second, that the person claiming a grant bought an apartment or extended an apartment in Jerusalem. If both of these conditions were fulfilled during the critical six weeks, the applicant is entitled to a grant. Indeed, the executive authority is entitled — perhaps we should say, obliged — to formulate rules, and even strict rules, for proving compliance with those two preliminary conditions that give entitlement to a grant. And we agree that these rules were not determined during those six weeks. However, the failure to enact the rules was insufficient to affect or invalidate the substantive right of the entitled persons to a grant. Their right remained valid, and the failure to enact rules for implementation was incapable of derogating from the existence and validity of the right.

11. The State does not stop here, and it goes on to raise, in the same context, an argument that is a variation on the issue of the preliminary conditions for the validity of the law. According to the State, even if the petitioners acquired a right de jure, they never had any real expectation of realizing it. Consequently everyone agrees that during the lifetime of s. 6B — in those six weeks between the commencement of s. 6B of the Housing Loans Law and the commencement of s. 20 of the Arrangements Law — it was not possible to receive the grant from the banks; moreover there was talk of the Government taking action to cancel s. 6B. It follows from this, the State argues, that ‘there was no basis for the petitioners to have any reasonable expectation of receiving the amount.’ Therefore, prima facie, the petitioners never acquired any real right, a right that ought to be protected. In other words, because the petitioners did not have a reasonable expectation, a real expectation, that they would receive a grant, they ought therefore not to be regarded as having a right to a grant — a right that the law seeks to protect.

But the State’s argument is no argument. From a simple reading of the provisions of s. 6B we can see that whoever fulfils two preliminary conditions set out in the first part of s. 6B(a) is entitled directly and by virtue of the statute itself to receive a grant, and no interpretive acrobatics will succeed in interpreting the provision of the law otherwise. So, whoever fulfilled those two preliminary conditions acquired a right — a right that is unconditional — to receive grants as set out in the law.

12. The State further argues: if we interpret s. 6B, in and of itself, in the absence of rules for implementation of the right to a grant, then a person could have bought an apartment in Jerusalem, received a grant, and the next day sold the apartment to someone else. Is this possible? This is an indication, so the State ends its argument, that it was not possible to implement the law without rules; and once we realize that no rules were made, we will also know that the petitioners did not acquire a real right to receive a grant. This claim has no merit. It has no merit not because it is not a good argument in general; it is a good and proper argument in general. But the law in this case is so clear in its language that the argument has nothing to which to attach itself. We should point out, parenthetically, that a restriction of this kind exists apparently in rules that were prescribed under the Housing Loans Law, in its original form, and a hint of this can be found in the deliberations of the Finance Committee (see: pp. 52-53 of the minutes of the meeting of the Finance Committee on 11 September 2000, as published on the Knesset web site). However, since the rules were not presented to us, we cannot say anything for certain. In any case, even this argument that the application of the provisions of s. 6B should be restricted, has, in our opinion, no foundation either in statute or case law.

13. From all of this we see that the right of those persons listed in the provisions of s. 6B of the Housing Loans Law is a right ex lege, a right that is not conditional upon the fulfilment of additional conditions to those prescribed in that provision.

Section 20 of the Arrangement Law — the repeal provision

14. The second provision of statute in this matter — and this is the main one — is found in s. 20 of the Arrangements Law (which was published in Reshumot on 4 April 2001), which states as follows:

‘Housing Loans Law — Amendment no. 7

20. (a) In the Housing Loans Law, 5752-1992 (in this section — the Housing Loans Law) —

(1) Section 6B, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem” shall be marked “6C,” and it shall not apply in the period from 22 Shevat 5761 (15 February 2001) until 16 Tevet 5762 (31 December 2001);

 

         …

 

(b) The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001).

 

(c) Notwithstanding the provisions of section 6B of the Housing Loans Law, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem,” according to its language prior to the commencement of this law, no person shall be entitled to the benefits under the aforesaid section in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’

The provisions of section 20, for our purposes, fall into two parts. One part — which is the main one — is prospective and its purpose is to postpone the application of the provisions of s. 6B of the Housing Loans Law into the future. Another part is retrospective, and its purpose is to make that postponement retroactive, from the date on which the provisions of s. 6B came into effect. We are now concerned with the retroactive part of s. 20, and we will consider the details of this issue in our remarks below.

The order of our deliberations

15. The petitioners argue that s. 6B of the Housing Loans Law gave each one of them a right to receive pecuniary grants as set out in s. 6B; that the retroactive application of the provisions of s. 20 of the Arrangements Law purports to deprive them of their right; that the denial of this right is clearly in conflict with s. 3 of the Basic Law: Human Dignity and Liberty, which commands us that ‘A person’s property shall not be infringed;’ this leads to the conclusion that the retroactive application of s. 20 of the Arrangements Law is void. The argument of the petitioners is therefore simply this, that s. 20 of the Arrangements Law is null and void, in so far as it seeks to apply itself retroactively, in that it conflicts with the protection of property as stated in s. 3 of the Basic Law: Human Dignity and Liberty.

However, as we have repeatedly said, before we consider an argument that a statute is void, we must first interpret the statute according to its language and according to its purpose; to go on to determine the scope of its application; and in the course of this interpretation, we are obliged to do our best to try and reconcile the provisions of the statute with the provisions of the Basic Law. See and cf. CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [3], at pp. 548-550. Let us therefore begin our voyage by interpreting s. 20 of the Arrangements Law. It need not be said that if we reach the conclusion that the provisions of s. 20 do not purport to apply retroactively, or if, alternatively, s. 20 can be applied retroactively only in some cases but not in others, then we will be obliged to derive conclusions from this for the case before us, and it is possible that the consideration of the constitutional issue will thereby become redundant. But let us not jump ahead of ourselves.

Concerning the retroactive application of s. 20 of the Arrangements Law

16. There is a presumption, both in statute and in case law, that a statute is prospective — prospective, but not retrospective. A statute is intended to regulate interpersonal relationships, and it therefore follows that by its very nature it is prospective. See and cf. s. 10(a) of the Government and Justice Arrangements Ordinance, 5708-1948; s. 17 of the Interpretation Ordinance [New Version]; s. 22 of the Interpretation Law, 5741-1982; CA 238/53 Cohen v. Attorney-General [4], at pp. 16, 38 {___, ___}; PPA 1613/91 Arbiv v. State of Israel [5]; CrimA 4912/91 Talmai v. State of Israel [6], at pp. 619 et seq.; HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [7], at p. 424; A. Barak, Legal Interpretation (vol. 2, Interpretation of Legislation, 1993), at pp. 609 et seq.. The source of this presumption, inter alia, lies in the recognition that the application of a statute retroactively may cause an injustice, violate rights that have been acquired, undermine stability and certainty in interpersonal relationships and harm just expectations. But this presumption — that a statute is only prospective — like every other presumption is rebuttable in the interpretation of a particular statute; and the question whether a particular statute or regulation operates retroactively or not is a question of interpretation. The question that must be asked is a double one: first, did s. 20 of the Arrangements Law seek to apply itself retroactively? If the answer to the question is yes, then a second question arises, namely: must that retroactive application be complete or is it possible to interpret it as merely partial?

17. The answer to the first question is unambiguous. In at least three places the legislature wished to inform us that s. 20 operates retroactively, from the date of the commencement of Amendment 5, namely from 15 February 2001. The legislature informed us of this the first time in s. 20(a)(1), where it stated that Amendment 5 — or more precisely, s. 6B of the Housing Loans Law as added by Amendment 5 — shall not apply ‘in the period from 22 Shevat 5761 (15 February 2001) until…’. The law states this a second time in s. 20(b), where it says that ‘The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001),’ as if we did not know this from what is stated in section 20(a)(1) itself. And in case we fail to understand the express provisions that we have cited, the legislator took pains to notify us a third time of the issue of the retroactive application, by stating in s. 20(c) that, notwithstanding the provision of section 6B that was added in Amendment 5 on the subject of a ‘special grant for purchasing or extending an apartment in Jerusalem,’ nonetheless no person shall be entitled to these benefits ‘in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’ Not once, not twice, but three times! Indeed, the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5. The interpretation of s. 20 of the Arrangements Law in respect of the retroactivity is an unambiguous interpretation. The legislature succeeded again and again in informing us of its intention that the denial of the benefits was intended to operate retroactively, from the date of the commencement of the law that granted those benefits, and thus the presumption of non-retroactivity was entirely rebutted.

18. Finally we should add that this unambiguous intention is also evident from the deliberations that took place at the Finance Committee. In those deliberations a proposal was made to the effect that the application of the suspending law would be prospective only, but the representative of the Ministry of Finance opposed this vehemently, and consequently the law as we have it was enacted. The following is a part of the discussions at the Finance Committee on 27 March 2001:

Chairman Yisrael Katz: And what will happen to the law in the interim?

Yitzhak Cohen: We must at least agree on the commencement of the law. Is the first of May acceptable?

Ohad Marani [Director of Budgets at the Ministry of Finance]: No…

Yitzhak Cohen: I propose that we agree to suspend it until the first of June…

Yaakov Litzman: The statute was passed and published. People have bought apartments on the basis of the knowledge that there is an increased loan. It is impossible now to say that this will commence later. First there needs to be a declaration of the Ministry of Finance, before we continue, and until that moment — the statute exists…

Chairman Yisrael Katz: What is the position of the Ministry of Finance with regard to the proposals?

Ohad Marani [Director of Budgets at the Ministry of Finance]: Certainly not. That was not the arrangement. We wish to postpone the statute, as was agreed. This is a statute that costs a considerable amount of money, 160 million sheqels. We wish to postpone it as agreed.

(Pages 30-31 of the minutes of the meeting of the Knesset Finance Committee on 27 March 2001, as published on the Knesset web site).

19. The essence of the matter is that s. 20 of the Arrangements Law was intended to apply retroactively. But in saying this we have still answered only the first part of the double question. For even if s. 20 of the Arrangements Law was intended to apply retroactively — from the date of the commencement of s. 6B of the Housing Loans Law as added in Amendment 5 — there still remains the question as to which activities s. 20 is supposed to apply. Is the retroactive application all-embracing, applying to every subject matter and for all intents and purposes, or perhaps it is only a partial application? And if it is a partial application, what is the part to which s. 20 applies and what is the part to which s. 20 does not apply? Let us now confront this question.

20. To which classes of cases in the past was s. 20 of the Arrangements Law intended to apply? In order to remove doubt, we should add that in speaking of the ‘intention’ of s. 20, we are not referring to the subjective intention of all or some of the Members of Knesset, and certainly not to the intention of the Government or its representatives. We are referring to the message and purpose required by s. 20 in and of itself, when combined with existing legislation and case law, and especially when integrated with the basic principles and doctrines that constitute the framework within which the legislature enacts legislation and the judiciary determine case law. As was stated in CFH 7325/95 Yediot Aharonot Ltd v. Kraus [8], at pp. 73-74:

‘It is accepted that the interpretation of a statute begins with the words of the statute. This statement is correct, of course, when we wish to study the words and phrases of the statute. But it is we who do our utmost to interpret it, and we are not a tabula rasa. Before we approach the statute we must ask: who are we, and the answer to this question is that “we” are those proper values, principles, morality and fundamental outlooks. It follows therefore that we begin the voyage of interpretation — whether wittingly or unwittingly — with those values and principles and doctrines — the foundation on which the law is based — and from these our voyage continues. We cannot “understand” a statute unless we analyze it with the analytical tools that we carry about with us, and these analytical tools are what will guide us… Let us know and remember that legal interpretation is — always and forever — a legal creation, an ethical creation, an inseparable part of the culture of a people and country.’

21. Two alternative interpretations of s. 20 offer themselves for our selection, and the question before us is which of the two is preferable. One interpretation proposes that we read s. 20 according to its text and language, combining words and sentences, and deriving the meaning and the dictates of the statute from those combinations of words and sentences. In years past, we called this interpretation — literal interpretation. If we choose this interpretation, we will conclude that the retroactive application of s. 20 is all-embracing; it is retroactive for all intents and purposes, as if s. 20 was enacted on the day when s. 6B was enacted. According to this interpretation, the provisions of s. 20 were intended to suspend the provisions of s. 6B absolutely and in every respect, until it would one day be revived.

An alternative interpretation of s. 20 may be called a purposive interpretation, and this is indeed what it is. It need not be said that this interpretation does not ignore the combinations of words and sentences in the statute, but in order to discover and comprehend the essence and the content, the interpretation will take into account the historical background of the legislation in its time and place, the objective purpose of the legislation, the difficulties that the legislator wished to overcome, the evil that the provision was designed to prevent; the events that have occurred from the time that s. 6B came into existence until the enactment of s. 20; to all of these we will apply our accepted rules of interpretation, the rules that express the values and the basic principles upon which the legal system and the social order are founded. See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71 et seq.; Segal v. Knesset Speaker [3], at 562 et seq., and the references cited therein. This is what we will do with regard to s. 20 and this is what we will do with regard to s. 6B of the Housing Loans Law.

Which of these interpretations should we prefer, and which shall we reject?

22. We are speaking of the interpretation of s. 20 of the Arrangements Law, but since we know that s. 20 only came into existence because of s. 6B of the Housing Loans Law, it is only logical that we should begin the voyage of interpretation precisely with the provisions of s. 6B. As for this provision of statute, we know that originally it was intended by its promoters to prevent migration away from Jerusalem, to encourage persons entitled to housing to prefer Jerusalem when they wanted to buy or extend an apartment, and to strengthen the status of Jerusalem as the capital of Israel. See supra, para. 2. Admittedly, Ministry of Finance representatives thought that these purposes would not be achieved by means of grants as the promoters proposed, but the Knesset thought otherwise, and that is the thinking behind the law. And so, when the Knesset enacted s. 6B, the petitioners hurried off — so they claim, each with regard to himself — and in reliance on the promise of the State in s. 6B they bought apartments or took steps in order to extend their apartments. The petitioners claim, therefore, that they took upon themselves pecuniary undertakings and changed their position in reliance upon an undertaking given by the legislator — the State’s undertaking — that they would be given various grants for the purchase of an apartment that they bought or for the extension of an apartment that they possessed.

In view of all of the aforesaid, we will have difficulty in adopting an interpretation that recommends us to ignore totally the moral and social aspect involved in the breach of the undertaking that the State took upon itself, i.e., a breach of the undertaking to give grants to whoever pursued the path that the legislator outlined in s. 6B. If the State acts in this fashion, what will the individual say and what will the public say? If the leaders of the country — those who sit in the legislature — repudiate the promises that they have made and the undertakings that they took upon themselves, what will members of the public do and say? Indeed, we will find it difficult to accept that the legislator reverses his tracks in this way, repudiates his undertaking to the individual and abandons along the way whoever followed him. The state ought to act honestly and carry out undertakings that it took upon itself, and the state can be presumed to act in this way. These principles of substance translate themselves into the language of interpretation, and it necessarily follows that obviously the retroactive application of s. 20 of the Arrangements Law was not originally intended to apply — we might almost say: is incapable of applying — to someone who relied on the legislator’s promise and clearly changed his position. As Justice Strasberg-Cohen wrote in HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [9], at p. 574, with regard to the factor of reliance as the decisive factor in disqualifying retroactive legislation:

‘An important factor is the existence of harm to the actual reliance on existing legislation and the degree of reliance thereon. Retroactive legislation that harms reliance cannot be compared to retroactive legislation that does not harm it at all or to a significant degree.’

The petitioners before us argue, each with regard to his own case, that they bought and extended apartments in reliance on s. 6B of the Housing Loans Law, and therefore, prima facie, the retroactive application provision passes over them and does not affect them. Being mindful of the basic principles on which the Israeli legal system is founded, we can say that the retroactive application of s. 20 was not originally designed to apply to someone who acted and changed his position in reliance on the provisions of s. 6B. The retroactive application was intended to apply only to someone who did not rely on the State’s promise as stated in s. 6B, i.e., someone who bought or extended an apartment without there being any causal connection between the purchase or extension of the apartment and the State’s promise in s. 6B.

23. Interpreting s. 20 in this way will uphold in its entirety the purpose of s. 6B as its promoters foresaw. Section 6B only came into existence in order to prevent migration away from Jerusalem and to encourage persons entitled to housing to prefer Jerusalem when buying or extending an apartment. So, if someone intended in any case to buy an apartment — or to extend an apartment — in Jerusalem irrespective of the benefits that the legislator wished to grant in s. 6B, then the purpose of s. 6B would not be prejudiced by denying the benefits retroactively.

Indeed, initially the law granted s. 6B benefits to whoever complied with the s. 6B conditions even if they did not rely on the legislator’s undertaking. However, for the purpose of determining the scope of the application of s. 20, and relying on the basic presumption — which adopts the guise of a rule of interpretation — that tells us that the legislator will not act unjustly to an individual nor will he turn his back on persons who followed him and relied on promises and undertakings that he made, we will interpret s. 20 as seeking to apply only to persons who did not rely on the legislator’s promise and not to apply to persons who relied on the legislator’s promise. Justice Barak expressed these ideas well in Arbiv v. State of Israel [5], when he said the following (at pp. 776-777):

‘The presumption is that a statute does not apply retroactively… the basic approach is that “applying a new statute to a transaction that was completed before the statute was published, where those concerned have acted and completed it in reliance on the law in force at that time, may be wrong and unjust”… retroactive or retrospective legislation conflicts with “accepted concepts of justice”… and the presumption against this legislation is required in order to do justice. The principle of the rule of law requires certainty and security in interpersonal relationships. Retroactive legislation harms both of these… it does not allow conduct to be planned in advance, and therefore it also harms the stability of the law…’

24. In saying this we have only said a half of what needs to be said. In relying on the provisions of s. 20 of the Arrangements Law, and in thinking that this provision is capable of denying the rights of the petitioners, the State rejected in limine the demand of the petitioners to receive grants, and in any case it did not consider their requests on the merits. Thus the question whether the preliminary conditions set out in s. 6B of the Housing Loans Law were satisfied or not was not considered, and the question whether the petitioners bought or extended apartments in Jerusalem in reliance on the undertaking in s. 6B, as they claimed, was certainly not examined. All of these questions need to be examined on the merits, and it need not be said that the petitioners have the burden of proving that they are indeed entitled to the grants as they demand. In this regard, the State is competent to determine proper proceedings that will allow the petitioners to prove what they are liable to prove, namely the fulfilment of the conditions prescribed in s. 6C (originally s. 6B) of the Housing Loans Law and a change of their position in reliance on the State’s undertaking, and at the end of these proceedings to decide in respect of the request of each of the petitioners. In order that the proceedings will not be prolonged excessively, we will propose the following timetable: within thirty days from today, the State shall determine the proceedings, and within an additional ninety days — assuming that the petitioners cooperate with the State — decisions shall be made with regard to the petitioners’ requests.

25. Our decision with regard to the method of interpreting s. 20 of the Arrangements Law makes a consideration of the constitutional question (see supra, at para. 15) redundant, and we will therefore not enter into it.

In summary

26. I propose to my colleagues that we make the order absolute as stated in para. 24 supra, and that we further find the State liable to pay the petitioners in each of the three petitions legal fees of NIS 25,000.

Subsequent reflections

27. I have carefully read the opinions of my colleagues Vice-President Mazza, Justice Türkel and Justice Rivlin. My colleagues, each following his own path and his own style, are of the opinion that the retroactive provision in s. 20 of the Arrangements Law is void ab initio, and their main reason for this is that if we say otherwise — as I have, for example — then we have overstepped our authority as a court and we have taken upon ourselves the role of legislator. My interpretation that seeks to distinguish between various classes of persons having rights, while restricting the application of s. 20 merely to those persons who did not rely on Amendment 5 of the Housing Loans Law, does not have, in my colleagues’ opinion, even a ‘minimal foothold in the text,’ and according to them it amounts, ‘in practice, to a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation’ (Vice-President Mazza, in the first paragraph of his opinion). My colleague Justice Rivlin speaks in similar terms, and whoever reads his remarks will comprehend his meaning.

28. I find this surprising, and I ask myself what is this fear of the legislator that has so suddenly overwhelmed my colleagues, that it may be said of us that we have broken down the barriers and gone ‘beyond the confines of what is possible and what is permitted’ (in the language of my colleague Justice Rivlin in para. 3 of his opinion). Yet we engage in this kind of ‘legislative’ activity from time to time. Moreover, my colleagues’ decision is that the retroactive provision of s. 20 of the Arrangements Law is void ab initio. Is this normative activity of declaring a provision of statute to be void ab initio not ‘legislative activity’? Indeed, the court is supposed to make its decision by virtue of a Basic Law, but this does not lessen the fact that the decision is a legislative decision that voids statute. Moreover, my colleagues’ decision is to suspend for six months the commencement of their judgment. Does this decision to suspend not have an aspect of legislation to it? Indeed, the statement that certain normative activity of the court is a ‘legislative’ activity — i.e., activity that trespasses on the province of the legislature — is a statement that cannot, in and of itself, captivate or intimidate us. We are charged with examining the decisions that we make diligently and painstakingly, and we should determine the character of normative activity on the merits and not by affixing labels that are prefabricated.

29. On the merits, the drafting of s. 20 of the Arrangements Law appears, on the face of it, to apply itself to the past universally, to impose itself on every event that has occurred and to every act that has been done concerning the special grant involved in the purchase or extension of an apartment in Jerusalem, between 15 February and 4 April 2001 (the day on which the Arrangements Law was published). This is the interpretation of the application of s. 20 retroactively from the date of commencement of s. 6B of Amendment 5. From the viewpoint of the legislation, in and of itself — or we might say, from a merely normative viewpoint — there is no difficulty in this. Just one stroke of the pen, and a statute that is enacted today carries itself into the past at the whim of the legislator. Such is the act of legislation. But life — the life of man and his surroundings — is different. No matter how much we wish or yearn to do so, no man can change acts and events in the past, not even a legislator:

‘We are unable to change the past (to the regret of some and to the happiness of others). Acts that were done, were done; omissions that were committed, were committed; events that occurred, occurred; vows that were made, were made; vows that were breached, were breached. All of these are as if they froze on the spot and became stone, and what has been done cannot be undone. We are incapable of doing anything other than describing and recording things that have happened — or that have not happened — but we are unable to change them. The freedom of choice and selection — as choice and selection — are no more’ (Talmai v. State of Israel [6], at p. 619).

Therefore a kind of dichotomy arises: from a historical point of view, we cannot change events in the past, but from a normative point of view, we find legislation that seeks to take control of events in the past that were originally governed by a different law.

This is what happened in the case before us: during the period of the retroactive application of the statute, events occurred that were of legal significance according to the law that prevailed at that time, and no one can change these events. In view of all this, the pertinent question is whether the legislator, and we as interpreters of the statute, are able and permitted to ignore those events as if they did not occur.

30. Let us now examine those events of legal significance that occurred in the period between 15 February 2001 and 4 April 2001, and we will discover that the entitled persons stipulated in the original s. 6B fell into several categories. The following are the main categories: first, entitled persons who relied on the State’s undertaking in Amendment 5 and bought or extended an apartment in Jerusalem; second, entitled persons who bought or extended an apartment in Jerusalem without relying on the State’s undertaking in Amendment 5; third, entitled persons who took various preliminary steps towards the purchase or extension of an apartment in Jerusalem, but did not reach the point of buying or extending an apartment; fourth, entitled persons who did nothing. The fourth category of entitled persons does not concern us here. We are therefore left with the other three categories of entitled persons. Against this background the question arises: there is no doubt that s. 20 of the Arrangements Law, according to its language and at face value, purports to take control of all those events and rights that were acquired, namely to ignore all those events and all the rights that were acquired. But we are experienced interpreters of statute who are continuously called upon for the purposes of interpretation, analyzers of statute equipped with analytical tools and high-powered microscopes; we know how to interpret and analyze even legislation that appears to violate — unfairly — basic rights or rights even if they are not basic rights. Let us therefore proceed to the task.

31. A first principle is that the legislature can and may knead legislation as it wishes, as long as the legislative proceedings are in progress. But when a statute has left the bakery, the baker can no longer put his mark upon it or express an opinion about its quality. The decision concerning the validity, scope of application and interpretation of the statute lies with the court — the court and no other. See and cf. CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd [10]; LCrimA 1127/93 State of Israel v. Klein [11], at pp. 500-501.

A second principle, which is of inestimable value, is that when approaching the task of interpreting statute, we do not come empty-handed. We come heavily laden with morality, fairness, justice, equity and efficiency. We come with language, interpretation and meaning, social norms, conventions, basic premises, fundamental principles and doctrines. We come with the theory of the separation of powers and the principle of the decentralization of powers. We come with the tools of PaRDeS[1] (Interpretation, Implied Meaning, Homiletic Exegesis and Hidden Meaning). See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71-74. All of these principles and values translate themselves into rules of interpretation that are applied in practice — narrow interpretation, broad interpretation, presumption of administrative regularity, ut res magis valeat quam pereat, etc. — and this is what we do in our everyday work of interpretation.

32. For our purposes we can say that when subjecting the provisions of s. 20 of the Arrangements Law to the filter of values, principles and rules, we are charged with doing our best to uphold the statute, so that the dictates of the legislature are upheld, in so far as possible, even if only partially. Thus, when we put the provisions of s. 20 into the time tunnel, and we send it back into the past to 15 February 2001, we meet on our way those entitled persons who relied on the State’s undertaking and carried out acts that changed their position. Applying the statute literally is likely to cause hardship to those entitled persons, and it is possible that it will even lead them to disaster. In the words of my colleague Justice Rivlin, not allocating the promised funds to those entitled persons will be ‘equivalent in many senses to taking away the apartments in which they live.’ The ‘objective’ interpretation of the statute requires us therefore to interpret it narrowly, i.e., as a statute that does not intend to apply itself to those entitled persons. We make use of this tool of narrow interpretation on a daily basis, and I do not see in what way this case differs from other cases; why in other cases we should give a warm welcome to narrow interpretation, whereas in this case we should reject it utterly.

33. In our opinion, the text can indeed bear the interpretation that we proposed without collapsing under the weight. It follows that we shall not apply the provisions of s. 20 to entitled persons who relied on the Government’s undertaking and changed their position. But the same will not necessarily apply to other categories of entitled persons, such as, for example, entitled persons who bought or extended an apartment in the relevant period without knowing about, and therefore without relying on, the State’s undertaking.

34. My colleagues will certainly not deny the blue pencil principle, namely the principle of separating and distinguishing between the invalid and unhealthy part of a statute, which should be voided, and the valid and healthy part of that statute. See, for example, A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 735 et seq. (and as we have seen, invalidating a statute, or a part thereof, is equivalent to an act of legislation). Why therefore should we not apply this principle to this case also? Admittedly, the cases differ from one another. The (usual) blue pencil principle assumes a physical possibility of circling (with a ‘blue pencil’) the defective part of the statute (or of the contract) and to cut it out of the actual text. This is not the case here, since the categories of entitled persons are not listed in the law one after another, but are included in the statute in one category. However, I can see no magic in the ‘physical’ ability of cutting parts out of the statute and throwing them into the bin in order to uphold the other part of the statute. There is nothing in my opinion to prevent an interpretation of s. 20 as if all the categories of entitled persons whom we have mentioned are listed there, one after another (see para. 30; and if I have omitted a category of entitled persons, we can add it to the list), and after a close examination we can cut out and remove what is unhealthy and keep what is healthy. It is also possible to regard the entitled persons as listed in the statute one on top of the other, and we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin. The cutting will not be vertical, like the cutting of the blue pencil, but horizontal, like the peeling of the onion. We were taught this by Justice Silberg in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [12], at p. 1074 (on the question of declaring a bylaw void, in whole or in part):

‘… Already at the beginning of the eighteenth century a more liberal spirit prevailed, and a qualification was made to this doctrine. The qualification is: unless there is a way of “dividing” up the statute, and it is possible to distinguish between the invalid part and the valid part thereof. In other words, the partial defect in the bylaw does not lead to its complete disqualification, when the two parts are not dependent on, or in conflict with, one another, and it is possible for the valid part to stand without relying on the other part.

…

It seems to me that the stability and coherence of the remaining permitted part should be examined not merely from the viewpoint of the “syntactical” structure of the language of the statute, but also, and mainly, from the viewpoint of the substantive content thereof. If the bylaw of any public corporation tries to apply itself to two classes of persons, and something is found to be invalid with regard to one of these, it will still be regarded as valid with regard to the other class — even if it will be necessary to delete or add several words — unless the two classes are so bound to one another that it is impossible to separate them’ [emphases in the original].

Indeed, the examination ought to be one of substance and not merely one of form.

We concede that the voyage of examining substance may be full of pitfalls and care must be taken with regard thereto. But I think that in our case we will not encounter any special difficulty, since there is a division and distinction between the different classes of entitled persons, and I have not found any good reason not to hold the State liable where it should be liable, and to exempt it where it should be exempt. In conclusion we can reiterate that we do not see any difference — in the sense of a legal distinction — between the ‘classic’ blue pencil principle and the peeling of layers in our case.

Suspending the validity of the judgment

35. My colleague Vice-President Mazza proposes that the validity of the decision concerning the invalidity of the retroactive provisions of s. 20 of the Arrangements Law should be suspended for six months, and the purpose of the suspension is ‘to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.’ The purpose of this suspension seems to me problematic, since without any great difficulty we can already, in my opinion, reach the same conclusion today. A short path appears to me preferable to a long one.

Voiding a statute and upholding a statute

36. My colleague Vice-President Mazza sees fit to void a provision of statute, whereas I uphold that provision of statute, while interpreting it narrowly. But expressing matters in this way is merely an optical illusion. From an operative point of view, the narrow interpretation that I have adopted is equivalent to a partial voidance of s. 20 of the Arrangements Law. The difference between the interpretation of my colleague and my interpretation is this, that the narrow interpretation which is preferable to me brings finality to those persons who relied on the State’s undertaking and changed their position, whereas my colleague’s interpretation makes it possible for a future statute to create parameters that may perhaps harm the rights of those who relied on the State’s undertakings. So I ask: once my colleague has reached the conclusion that those persons who relied on the State’s undertaking and incurred unnecessary expenses, are entitled to receive their grants, what justification is there for us not entitling them, immediately, to what they seek? The question provides its own answer.

Who is all-powerful and what is all-powerful?

37. My colleague Justice Rivlin writes in his opinion (in paragraph. 3) as follows:

‘Even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of the surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power.’

I would like to make two comments on these remarks, one concerning Parliament and the other concerning the courts.

38. Concerning Parliament, unlike my colleague, my opinion is that Parliament was always able — as it is today — to make a man a woman and a woman a man, even without the surgeon’s scalpel. A.V. Dicey, in Introduction to the Study of the Law of the Constitution (London, eighth edition, 1924), at p. 41, wrote as follows:

‘It is fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.’

I commented on this statement when I wrote (in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 527):

‘This statement is, of course, imprecise. If the author’s intention is that Parliament does not have the power to make a man a woman and a woman a man — taking the words literally — then the remarks are certainly correct. But then they have no significance whatsoever, since in the same way Parliament does not have the power to move a pencil from one side of the table to the other. Parliament — as such — does not concern itself at all with physical actions, and it does not have the power to make physical changes in the world about us directly. Parliament only concerns itself with norms and normative activity, and it is in this field that it has power and authority. If the intention of the author is therefore that Parliament is “unable” — from a normative point of view — to make a woman a man and a man a woman, it is obvious that the statement is incorrect. In the wonderful world of norms — a world that cannot be perceived by the five senses but that rules our lives — the Knesset “can make” a man a woman and a woman a man. It is a separate question whether those persons to whom the norms are supposed to apply will abide by them. That question, it need not be said, falls outside our jurisdiction.’

And so, in the creation of norms in the world of norms, Parliament is all-powerful. Parliament does not have — nor did it ever have — a surgeon’s scalpel that can draw blood. But it had, has and always will have a normative surgeon’s scalpel.

Concerning the courts, it is true that the court is not all-powerful like Parliament, but it too has power. Thus we see that not so many years ago — twenty or twenty-five years — it never occurred to any woman or man that the concept ‘spouse’ in the Torts Ordinance extended also to unmarried partners. But in recent years we have said this: CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [13]. See further the remarks of President Barak, ibid., at pp. 32-33. And in former generations, even someone who exercised his imagination could not have conceived that two women would be registered at the Population Registry as the mothers of an infant, since ‘a person only has one mother.’ But in recent years this has happened: HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [14]. It is therefore possible that in suitable circumstances a court will make, in our lifetime or thereafter, additional decisions that our ancestors never imagined.

 

 

Vice-President E. Mazza

Like my colleague, Justice Cheshin, I too think that the interpretation of s. 20 of the Arrangements Law (‘the suspending law’) on the question of its retroactivity is unambiguous. As he says, ‘the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5.’ But unlike my colleague I am of the opinion that it is not possible to overcome this unambiguous provision by means of interpretation. In my opinion, it is not reasonable to expect the legislature to clarify its intention more decisively that it did in ss. 20(a)(1), 20(b) and 20(c). This is a clear and comprehensive directive and I can see no linguistic possibility of restricting it in a way that will apply only to some of the persons entitled to a grant under Amendment no. 5 of the Housing Loans Law (‘the entitling law’). In any case, it is not possible to interpret the suspending law as applicable only to whoever did not rely on the entitling law. Such an interpretation does not even have a minimal foothold in the text. It constitutes, in practice, a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation (cf. Justice Cheshin’s criticism of the doctrine of the ‘concealed lacuna’ in a statute: CA 3798/94 A v. B [15], at pp. 177-178 {298-299}. For the distinction between interpretive activity and extra-interpretative activity, which requires a distinct source of authority, see: A. Barak, Purposive Interpretation in Law (2003), at pp. 101 et seq.).

In such circumstances, we are obliged to examine the constitutionality of the retroactive application of the suspending law in accordance with the constitutional criteria set out in the Basic Law: Human Dignity and Liberty. Indeed, I too accept that whenever it is possible to refrain from constitutional intervention in the validity of a statute by giving an interpretation — even if it is a ‘creative’ interpretation — to a provision of a problematic statute, we are obliged to prefer this method. But even interpretation has its linguistic limits. We are not speaking of a choice between ‘literal interpretation’ and ‘purposive interpretation,’ but of a choice between purposive interpretation that is based on the text and purposive interpretation that is divorced from it. In any case, there is no basis for such great fear of the constitutionality test. Even when unconstitutionality is discovered in a statute, this does not necessarily lead to drastic consequences. Constitutional law allows a moderate and precise correlation of the remedy to the nature of the constitutional violation and all the interests involved therein (see: A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 699-775).

What does the constitutionality test tell us in the case before us? Like my colleague Justice Cheshin, I too am of the opinion that the entitling law gave the persons entitled thereunder a substantive right, and that the legislature was not entitled, when enacting the suspending law, to ignore the reliance of those persons on the entitling law. This substantive right amounts to ‘property,’ within the meaning of s. 3 of the Basic Law (see: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 431-433, and also my comment on p. 578). I am also prepared to accept that the harm to the property of whoever did not adversely change his position in reliance on the entitling law complies with the conditions of the limitation clause in s. 8 of the Basic Law. In other words, in the absence of a legitimate interest of reliance, there is a presumption that the legislature that gave may also take away, and this should not be seen to contain any constitutional defect. But this is not the case with harm to someone who relied on the aforesaid property right and adversely changed his position as a result of the entitling law. Even if we regard this harm as befitting the values of the State of Israel and designed to achieve a proper purpose, it cannot be regarded as proportional harm. Proportional harm to the property of someone who relied on the entitling law must, at the very least, have taken into account various parameters connected with his reliance, such as the degree of legitimacy of the reliance, its strength and the criteria for proving it. The suspending law does not relate to these questions at all, and even from the history of its legislation we do not find that the legislature took any account of them.

It should be noted that in all of the aforesaid I am not adopting any position on the constitutional question of the entitling law itself. The respondents argued that this law was defective ab initio, inter alia because it did not promote the purpose for which it was enacted and because it unlawfully violated the principle of equality governing the whole class of persons lacking housing in Israel. But even if we assume that there is a foundation to those arguments, that in itself will be insufficient to remedy the disproportionate constitutional violation of the suspending law to the property of those persons who relied on the entitling law; they were not responsible for the alleged defects, and it is not fair that they should suffer the consequences thereof.

What then is the appropriate constitutional remedy in this case? One possible path is to declare the suspending law void in its entirety, effective immediately. In the circumstances of this case that would be the most drastic intervention in the validity of the statute and in the work of the legislature (see Barak, Constitutional Interpretation, at pp. 734-735). It significance is a blanket voiding of the constitutional parts of the statute, and consequently, inter alia, significant harm to the State budget. Another possible path is that we take upon ourselves the task of amending the defective statute, for example by means of separating the unconstitutional part from the constitutional parts, or by means of ‘extending the statute’ (ibid., at pp. 735-740, 759-767). Adopting this path admittedly does not harm the constitutional parts of the statute and significantly reduces the harm to the State budget, but adopting it still involves an ‘aggressive’ intervention in constitutional activity. Following this path also places institutional difficulties before the court, in view of its limited ability to formulate primary arrangements and to consider all of the relevant factors instead of the legislature. A third possible path is to declare the violating statute void, in whole or in part, but to suspend the validity of the voidance for a period that will allow the legislature to amend the constitutional defect. We have already followed this path in the past (HCJ 6055/95 Tzemah v. Minister of Defence [16], at p. 284 {687}; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [17], at pp. 415-416). It seems to me that in our case too this path should be followed, since it is preferable to the other possible paths. The advantages of this path are obvious: it allows the legislature to consider the question of reliance concerning the suspension of the entitling law, a question that it did not consider when it enacted the suspending law; its intervention in the work of the legislature is minimal; and it does not impose on the court a task that is unsuited to its institutional competence. Suspending the validity of the declaration of voidance does not lead to an immediate operative consequence, and it certainly does not cause — at least until the mending of the defect by the legislature or until the end of the suspension period — any harm to the constitutional part of the statute or the State budget. In this way, the legislator, and not the court, is the one that determines the exact timing, manner and scope of the harm to the budget, which itself is unavoidable.

After writing my opinion, I received the opinion of my colleague the President. I have examined it, but I am not convinced that it is possible to overcome the retroactive provision of the suspending law by means of interpretation. The President’s interpretive distinction is based on the phrase ‘no person shall be entitled to the benefits’ in s. 20(c) of the suspending law. In his discussion of this phrase, the President says that even though in the linguistic sphere a person who is entitled to benefits means any person who is entitled to a benefit, whether he is an entitled person who relied on the statute or an entitled person who did not rely on the statute, the court has the power to interpret the words of the legislature in a manner that restricts them to those entitled to benefits who did not rely on the entitling law. I should emphasize that, in my opinion, this proposed path is not at all simple. But in our case, even the President’s proposal concerning the interpretation of the phrase ‘no person shall be entitled to the benefits’ is insufficient for solving the difficulty that the suspending law raises. For in order to clarify its intention with regard to the scope of the application of the suspending law, the legislature did not merely use the aforesaid phrase. In s. 20(a)(1) it took pains to explain that s. 6B of the entitling law would not apply during the period of the suspension of the law’s validity; and in order to make its intention with regard to the retroactive validity of the suspension even clearer, it stipulated in s. 20(b) that the date of commencement of the aforesaid s. 20(a)(1) would be on the date of the commencement of the entitling law. It follows that the legislature made its intention absolutely clear, that it wanted to suspend the validity of the entitling law, retroactively, from its date of commencement; and with all due respect, I do not see any method of interpretation that can determine that s. 6B of the entitling law, whose applicability was expressly cancelled (‘shall not apply’) by the legislature starting from its date of commencement, continues to apply vis-à-vis those persons who relied upon it. With regard to the remarks of the President in para. 16 of his opinion, I would like to point out that even if we assume that the proponents of the suspending law were unaware of the possibility that its retroactive application would harm those persons who have relied on the entitling law, I see no place for doubt that the subjective intention of the legislature, when enacting the suspending law, was to suspend the validity of the entitling law absolutely and retroactively. I even cannot agree with the President’s remarks in para. 17 of his opinion. With all due respect, I am of the opinion that we are obliged to interpret the suspending law against the background of the legal position created when it was enacted, according to which the ‘temporary’ suspension of the entitling law is still valid, and not against the background of a hypothetical legal position according to which suspending its validity has already occurred in the past.

My opinion is, therefore, that we should grant the petitions and make the order absolute, in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void. The validity of the declaration shall be suspended for six months from the date of giving the judgment; and the purpose of the suspension is to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.

 

 

President A. Barak

My opinion on the dispute between my colleagues is the same as the opinion of Justice M. Cheshin. I agree with his reasoning. I would like to add several remarks of my own.

Presentation of the problem

1.    The Housing Loans Law (Amendment no. 5), 5761-2001 (hereafter — Amendment 5) provides that ‘an entitled person… who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant…’ (s. 6B(a)). Amendment 5 determined the amount of the grant and the ways of revising it. This provision came into force on 15 February 2001 (when it was published in Reshumot). Not even two months passed and the Knesset enacted the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter — the Arrangements Law). The Arrangements Law suspended the validity of s. 6B of Amendment 5. This suspension — which came into effect on 4 April 2001 when the Arrangements Law was published in Reshumot, was given retroactive effect from the date of publication of Amendment 5 (s. 20(a)(1), 20(b) and 20(c)) (hereafter — the interim period).

2.    The main purpose of the suspension was prospective. It was intended to save the State treasury a significant expense (approximately sixty million sheqels per annum) and to prevent an increase in housing prices in Jerusalem as a result of an increase in demand. Nonetheless, the suspension also operated retrospectively. In this respect, three provisions were enacted in s. 20 of the Arrangements Law. Two of these stipulated a suspension (ss. 20(a)(1) and 20(b)). The third provision cancelled the actual right in the interim period (s. 20(c)).

3.    Against this background, we all agree that the fact that an entitled person bought an apartment in Jerusalem in the interim period cannot prevent the application of s. 20 of the Arrangements Law to the interim period. Therefore, the right of an entitled person who bought an apartment in Jerusalem during the interim period for his own reasons, without relying at all on the acquisition of the right to a grant that he was granted in Amendment 5 (whom we shall call an entitled person who did not rely on Amendment 5) was suspended and even cancelled. That person does not come before us in these petitions. But what is the law with regard to an entitled person, who did rely on the existence of the grant and, because of the grant that was given in the interim period, sold his other apartment or entered into pecuniary undertakings and bought an apartment in Jerusalem in the interim period? Is also this entitled person (whom we shall call an entitled person who did rely on Amendment 5) caught by the provisions of the suspension and the cancellation? Indeed, it is the case of the entitled person who did rely on Amendment 5 that comes before us in these petitions for our decision.

4.    We all agree that the Arrangements Law should have distinguished — for the purposes of the suspension in the interim period — between the entitled person who did rely on Amendment 5 (whose right, because of his reliance, ought not to be suspended or cancelled in the interim period) and the entitled person who did not rely on Amendment 5 (who for various economic reasons ought to have his right suspended even in the interim period (ss. 20(a)(1) and 20(b) of the Arrangements Law), and even cancelled in its entirety (s. 20(c) of the Arrangements Law)). The dispute between us is whether it is possible to base this distinction between the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5 in the suspension and cancellation provisions in s. 20 of the Arrangements Law, or whether this distinction has no foothold in the provisions of s. 20 of the Arrangements Law. In this dispute, I am of the opinion — and thus I join with the approach of my colleague Justice M. Cheshin — that it is possible to base this distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 on the provisions of s. 20 of the Arrangements Law. My colleague the Vice-President, together with Justices Türkel and Rivlin, are of the opinion that this distinction does not have any basis in the provisions of s. 20 of the Arrangements Law. Against the background of their approach — and since they are of the opinion that the distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 is important and even has constitutional force — they are of the opinion that any provision that suspends or cancels the entitlement in the interim period is unconstitutional and therefore void.

5.    I think that we are all agreed that if it possible to distinguish — within the framework of the possible interpretation of s. 20 of the Arrangements Law — between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5, this path should be chosen. The other path — the one in which we examine the question whether an arrangement that does not distinguish in the interim period between the two classes of entitled persons is a constitutional arrangement or not — becomes available to the judge only if the first path is closed to him. Indeed, we all agree upon the outlook that the proper approach is that the interpreter of the statute should do everything possible in order to give the statute that possible interpretation that is consistent with the constitution (in Israel — with the Basic Law) and does not conflict with it, ‘and between two possible interpretations we should choose the interpretation that is consistent with the constitution’ (HCJ 4562/92 Zandberg v. Broadcasting Authority [18], at p. 810). Thus we give expression to the aspiration of achieving normative harmony in the legal system. This also gives rise to the presumption that the general purpose of every statute is to achieve constitutional values. Notwithstanding, this proper approach assumes, as my colleagues have noted, a possible interpretation of the statute. It acts within the framework of the accepted rules of interpretation. It cannot be said that we must always choose the meaning that achieves consistency between the statute and the constitution (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation, 1994). The presumption of consistency between the constitution and the statute can be rebutted. It is rebutted where the accepted rules of interpretation in the legal system do not allow this consistency to be achieved. It follows that the key to solving the legal question before us lies in providing an answer to the question of interpretation. The question is whether the normal accepted rules of interpretation in Israel allow a distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5. Let us now turn to an examination of this question.

Limits of interpretation

6.    The basic premise is that the ‘limit of interpretation is the limit of language’ (CA 1900/96 Telmaccio v. Custodian-General [19], at p. 827). ‘An activity is interpretation if it gives a meaning to the text that is consistent with one of its (express or implied) senses of the text in its (public or private) language’ (A. Barak, Purposive Interpretation in Law (2003), at p. 55). The interpretation ends where the language ends. ‘It is essential… that the interpretive option that realizes the legislative purpose is capable of sustaining the language of the statute’ (MApp 67/84 Hadad v. Paz [20], at p. 670). This was well expressed by my colleague, Justice M. Cheshin:

‘Every word, every expression in the language can be interpreted narrowly or it can be interpreted broadly, even very broadly, but no matter how much we widen the interpretation, we will reach a point where the elastic reaches it maximum stretching point’ (LCA 6339/97 Roker v. Salomon [21], at p. 253).

I discussed the same idea in another case:

‘The art of interpretation is not limited merely to words, but the words limit the interpretation… It is possible that the language of the statute may be given a broad interpretation or a narrow interpretation, but in general an Archimedean foothold must be found for a word in the language of the statute’ (FH 40/80 Koenig v. Cohen [22], at p. 715).

And in another case I added:

‘Every interpreter must take into account the limits of language. The linguistic significance of the language, which is intended to realize the purpose that underlies it, must be consistent with one of the linguistic senses of the text. Admittedly, the linguistic component is not sufficient for interpretation, but it is essential to it’ (CA 3622/96 Hacham v. Maccabi Health Fund [23], at p. 646).

This approach is derived from constitutional considerations. The role of the judge as an interpreter is to interpret a text that is created by the persons competent to do so (the legislature, the minister, the parties to a contract, the testator). His role as an interpreter does not authorize him to create a new test (see Barak, Purposive Interpretation, ibid., at p. 57).

7.    Section 20 of the Arrangements Law suspends and cancels the right of entitled persons. It states that ‘no person shall be entitled to the benefits’ provided in s. 6B of Amendment 5 (s. 20(c)). Prima facie, from a linguistic viewpoint, ‘no person shall be entitled to the benefits’ refers to every person who is entitled to a benefit, whether he is an entitled person who relied on Amendment 5 or an entitled person who did not rely on Amendment 5. Against the background of this general and broad language arises the interpretive question that is before us, which concerns the legitimate interpretive possibility of narrowing this broad language. The solution to this question will be found in the solution to the general problem of interpretation. Is the interpreter entitled to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to ‘every person,’ with regard to ‘every object’ or ‘in all circumstances’, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not ‘every’ person) or such that it does not apply to a particular class of objects (not ‘every’ object) or such that it does not apply in a particular class of circumstances (not ‘all’ circumstances)? The answer given to this question in Israel and in comparative law is yes. I discussed this in Zandberg v. Broadcasting Authority [18], where I said:

‘Where the language of the statute is broad, the judge is entitled and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. This is the case in Israel. This is also the case in comparative law’ (Zandberg v. Broadcasting Authority [18], at p. 811; see also R. Sullivan, Driedger on the Construction of Statutes, third edition, 1994, at p. 94).

Indeed, in order to realize the purpose underlying the statute — whether it is a specific purpose or a general purpose — the interpreter is authorized to give the broad language of the statute a narrower meaning. We will discuss this approach, while distinguishing between giving a narrow interpretation to broad language in order to realize a specific purpose and giving a narrow interpretation to broad language in order to realize a general purpose.

8.    Let us begin with situations of restricting broad language in order to achieve a specific purpose. A purpose is specific when it is unique to the purposes and functions that are unique to a statute or to several statutes. In order to realize this specific purpose — whether a subjective purpose or an objective purpose — the interpreter may give the general language of the statute an interpretation that restricts its application and prevents it from applying to certain situations that fall within the bounds of the general language. The following are two examples of this approach.

9.    Zandberg v. Broadcasting Authority [18] considered the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992 (hereafter — the confirmation law). This law provided (in s. 1):

‘In order to remove doubt, it is hereby provided that the fees for possessing a radio or television receiver, which were determined in accordance with the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid for all intents and purposes from the date on which they were determined.’

It was held in that case that the general and broad language of the statute, according to which fees were valid ‘for all intents and purposes,’ required the conclusion that the confirmation law allows linkage differentials to be charged on fees that were unpaid. Notwithstanding it was held — and this is what is relevant to our case — that the expression ‘for all intents and purposes’ should be given a narrow interpretation, so that it should not apply to a law determining a fine for arrears. Underlying this approach was the special purpose of the confirmation law that was inconsistent with imposing a fine for arrears for a period in which there was no duty at all to pay the fee itself. In my opinion, I considered the question whether it was possible to limit the expression ‘for all intents and purposes’ in such a way that it would not apply to fines:

‘Is it possible to interpret the broad language of the confirmation law narrowly in such a way that the validity, notwithstanding the all-inclusive language, shall not apply to a fine for arrears? Is it possible, according to our accepted rules of interpretation, to interpret broad language narrowly merely because of a narrower purpose underlying it? In my opinion, the answer is yes. Indeed, the judicial interpreter ought not to sit idle and direct barbs of criticism at the legislature because he, the judge, has been unable to restrict its language that is too broad. The judge may not display apathy to a situation in which the legislative purpose is not realized. He must make an interpretive effort to realize the purpose of the legislation… the judge should not sit idle and watch the legislative purpose fail. He must interpret the statute in accordance with its purpose. Sometimes this interpretation will lead to a result that the language of the statute should be interpreted broadly. Sometimes — and this is the case before us — this interpretation leads to the conclusion that the language of the statute should be interpreted narrowly. The criterion is the criterion of the purpose of the statute. In order to realize it, the interpreter is entitled to restrict the broad (linguistic) meaning of the statute’ (ibid., at p. 811).

10. A second example can be found in the interpretation of s. 3(i)(1)(a) of the Income Tax Ordinance [New Version]. According to this provision, a right that a person received in the past to buy an asset (such as an option that an employee receives from his employer with regard to work relations) is liable for tax when it is realized. This court restricted the broad language of the statute that referred to any right, i.e., to any option, and held that this provision refers only to options that are not negotiable. The court held, relying on Zandberg v. Broadcasting Authority [18], that a court may ‘give a narrow interpretation to broad language of a provision of statute in order to apply it only to those case that are required to realize the purpose underlying the legislation’ (per Justice E. Chayot in CA 7034/99 Kefar Saba Assessing Officer v. Dar [24]).

11. Let us now turn to the second situation — which is mainly the one relevant to our case — in which the judge-interpreter restricts the broad and general language of the statute in order to realize a general purpose (subjective or objective), which is enshrined in the basic values of the legal system. I discussed this possibility in one case, where I said:

‘On more than one occasion our Supreme Court has adopted this method, when it restricted or extended the language of the statute in order to realize the basic principles of our legal system. Indeed, legislation in general and basic provisions of statute in particular are not one-time acts that are divorced from the general experience. The statute derives its flesh and bones within the framework of a given legal system. It constitutes one brick of a whole building, which is built on foundations of a political and legal system that constitute the “basic principles of that society”.’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

In that case, I gave examples of this approach, inter alia, in American case law that interpreted the First Amendment to the Constitution. This Amendment provides that ‘Congress shall make no law… abridging the freedom of speech, or of the press…’. I said that ‘the Supreme Court has not hesitated to hold, in a long line of precedents, that notwithstanding the absolute language, which rules out any discretion on the part of Congress, it has the authority to restrict the freedom of speech and the press in certain cases’ (ibid., at p. 301 {151}). I went on to say:

‘We interpret the language of the general obligation against the background of our constitution and in accordance with the principles of equality, justice, fairness and morality of our legal system. Applying these restricts the general language’ (ibid.).

Let us turn to several cases that exemplify this approach.

12. In a significant number of laws, it is stated that decisions of quasi-judicial bodies are ‘final.’ It is stated in several places that there is ‘no further recourse.’ Notwithstanding this broad language, this court has not hesitated in holding that the expression ‘final’ or ‘no further recourse’ does not prevent an application to the High Court of Justice (see HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [26]; LCA 176/86 A v. B [27]; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [28]). This approach was based on ‘narrow interpretation’ (HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [29], at p. 236), or on ‘precise and narrow interpretation’ (CA 64/72 General Federation of Workers v. Moav [30], at p. 265), or on ‘strict and narrow’ interpretation (HCJ 264/77 Katan v. National Insurance Institute [31], at p. 687). Underlying this was the need to realize the general and important social value of accessibility to the courts.

13. Sometimes a civil servant is obliged to make decisions within the field of public law. An example is a competent authority that is obliged to grant a licence to whoever fulfils the conditions for this. Notwithstanding the general and all-embracing language of the provision, it is accepted that such a civil servant may not make decisions in a position of a conflict of interests. I discussed this in one case, where I said:

‘When a statute provides that someone is obliged to hear every dispute, it is obvious that he is not obliged to hear a dispute in which he has a personal interest’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

Underlying this approach is the outlook that the rule concerning the prohibition against a conflict of interests is one of the basic principles of our legal system. It is a part of the general purpose of every piece of legislation. Even when a statute makes use of general language that does not contain any restrictions, restrictions are imposed by virtue of the general principle of the prohibition of a conflict of interests.

14. In comparative law the following example is well-known: an inheritance statute provides that when a person dies, his property passes to his children. That inheritance statute contains no provision — of the kind that we have in Israel (s. 5(a)(1) of the Inheritance Law, 5725-1965) — to the effect that a child who murders his father is disqualified from inheriting from him. Notwithstanding this, it is accepted that the son who murdered his father does not inherit (see H. Hart and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1944), at p. 68; R. Dworkin, Taking Rights Seriously (1977), at p. 22; S. Shilo, ‘Disqualification from Inheriting: Someone who Deliberately Causes the Death of the Legator,’ Uri Yadin Book — Articles in Memory of Uri Yadin 257, vol. 2 (1990)). Underlying this approach is the outlook that the general language of the inheritance statute concerning heirs in an intestacy should be interpreted against a background of the basic principles of the legal system. One of those basic principles — which is based on principles of equity, justice and morality — is that a person should not be allowed to enjoy the fruits of his misdeeds (‘Have you committed murder and also taken the inheritance?’ (I Kings 21, 19 [43])). The broad language receives a restricted sense in order to realize one of the basic principles of the legal system. In discussing this approach, Vice-President S. Levin said:

‘Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize… It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed’ (CA 3798/94 A v. B [15], at p. 154 {266}).

By virtue of this principle, Vice-President S. Levin held in A v. B [15] that a rule should be read into s. 13 of the Adoption of Children Law, 5741-1981, that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy concerning the acts that led to the birth of the child.

15. Underlying the approach that an interpreter may restrict the general language of the statute in order to realize the general purpose of the legislation is the approach that ‘a provision of statute is a creature that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [32], at p. 513). Language is interpreted in accordance with its context, and the text is understood against the background of the context. The context of every statute includes the basic values of the legal system, which constitute its general purpose. This is the ‘spirit’ that encompasses the ‘body’ (see A. v. B [15], at p. 182 {306}). This is the ‘normative umbrella’ that extends over all statutes (CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [33], at p. 75). An expression of this approach was given by my colleague Justice M. Cheshin, when he said that:

‘When we approach a statute of the Knesset, we do not come empty-handed. We come with a weight of language, linguistic definitions and meanings, social customs and morality, consensuses and first principles, justice and equity, principles and doctrines in our knapsack… all of these — doctrines and values and principles — are located, prima facie, outside the statute, but they serve as a platform for the statute — for every statute — and no statute can be conceived without them. A statute without that platform is like a house without foundations… When we approach the work of interpretation — like a surgeon — we do not come empty-handed. When we read the statute in our judicial capacity, we carry on our bodies an “interpretation kit,” and in this kit are all of those values and principles and doctrines without which we would not be what we are: basic principles of the legal system, morality, fairness, justice’ (Yediot Aharonot Ltd v. Kraus [8], at p. 72. See also Segal v. Knesset Speaker [3], at pp. 563-567; A. v. B [15], at p. 182 {306}).

By virtue of this approach — which constitutes a central component of our theory of interpretation — the interpreter is authorized to consider the general language of the statute and to restrict it merely to those aspects that realize the basic values of the legal system. It is to this that my colleague Justice M. Cheshin refers in his simile that ‘we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin’ (para. 34 of his opinion).

From the general to the specific

16. Does the purpose of s. 20 of the Arrangements Law require a restriction of the scope of the section to an entitled person who did not rely on Amendment 5? Let us begin with the specific purpose underlying s. 20 of the Arrangements Law. For this purpose, I have examined the legislative and parliamentary history. It emerges from this that according to the factual basis that was brought before the Knesset, the assumption was apparently that applying s. 20 of the Arrangements Law retroactively would not harm the entitled persons who bought an apartment in Jerusalem at all. In the explanatory notes to the draft law, it was stated that ‘In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should be provided also that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof’ (cited by my colleague, Justice M. Cheshin, in para. 3 of his opinion). It would appear that the question before us — the law concerning the entitled person who relied on Amendment 5 — was not considered by the members of the Knesset. It can therefore certainly not be said that the subjective purpose of s. 20 of the Arrangements Law is to deny the grant even to entitled persons who relied on Amendment 5.

17. Moreover, s. 20 of the Arrangements Law did not merely suspend the right of the entitled persons in the interim period. It expressly stated that the right was cancelled (s. 20(c)). It follows that even if on 31 December 2001 — which was the original date for the end of the suspension — Amendment 5 had become valid once again, this would not have applied to the interim period, and it would have begun only on 4 April 2001 (the date on which s. 20 of the Arrangements Law was published) rather than on 15 February 2001 (the date on which Amendment 5 was published). This approach is natural with regard to entitled persons who did not rely on Amendment 5. It is totally irrational with regard to entitled persons who did rely on Amendment 5. If the Treasury has resources to finance the entitled persons from 4 April 2001, how is it possible to explain the unwillingness to finance precisely those entitled persons who bought an apartment in Jerusalem during the interim period while relying on Amendment 5? It would appear that the correct answer is that the interests of these entitled persons were not even considered by the legislature. The assumption was that all the entitled persons, without exception, bought an apartment in Jerusalem without relying on Amendment 5.

18. What about the general purpose of s. 20 of the Arrangements Law? This general purpose naturally includes the property right and its not being harmed retroactively. Notwithstanding, this right in itself is insufficient, since it would deny the retroactive application of the infringement of the property right of every entitled person — both the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5. This result, which empties the application of s. 20 of the Arrangements Law of all content in the interim period, cannot be reached by means of interpretation. This requires a constitutional analysis. But the petitioners before us argue that they are entitled persons who did rely on Amendment 5. How is it therefore possible to justify the distinction between an entitled person whose property right was infringed during the interim period and who did rely on Amendment 5 and an entitled person whose property right was infringed in the interim period but who did not rely on Amendment 5? What is the difference between the one and the other from the viewpoint of the basic values of the legal system? The answer is that one of the basic values of our legal system is the interest of the individual’s reliance. Protection of this interest — alongside the general infringement of property — allows the interpreter to restrict the scope of the infringement to an entitled person who bought an apartment in Jerusalem solely to entitled persons who did not rely on Amendment 5. Let us therefore turn to the interest of reliance, its status in our legal system and its operation in the case before us.

19. The interest of reliance is like a golden thread that runs through Israeli law. Significant portions of private law are based on it (see A. Barak, The Agency Law, vol. 1, 1996, at p. 180; D. Friedman and N. Cohen, Contracts, vol. 1, 1991, at p. 151; G. Shalev, The Law of Contracts, second edition, 1995, at p. 161; D. Barak-Erez, ‘The Protection of Reliance in Administrative Law,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 17 (1996), at p. 22). This was the law in the past when the principle of estoppel based on the rules of reliance was employed. It is also the law today, when it is possible to regard the realization of the interest of reliance as a part of the principle of good faith. From private law the interest of reliance passed to public law (see S. Schonberg, Legitimate Expectations in Administrative Law (2000)). Indeed, the public authority is the trustee of the public. Its fiduciary duty to the public leads to its duty to act fairly, equitably and proportionately. From these we derive a duty to take into account the individual’s interest of reliance. On this basis are founded the laws of administrative promise, the laws of tenders, the laws of administrative finality, the laws of administrative instructions and the laws of relative voidance (see Barak-Erez, supra). They are the basis for the need to ensure that legislation (whether primary legislation or subordinate legislation) has transition provisions in order to protect the interests of those persons who relied on the former law. This is certainly the case when a person relies on a right that was given to him (whether in primary legislation, in subordinate legislation or in any other administrative act), and it is taken away from him not only from now onwards (and without any transition provision) but even retroactively. The infringement of the interest of reliance is the most extreme in such a case. Underlying the protection of the interest of reliance are considerations of both morality and efficiency. Of course, the strength of the interest of reliance is not absolute. It is not the only consideration. It needs to be balanced against other interests, which operate in different directions. However, it must always be taken into account and given the proper relative weight (see A. Barak, Legal Interpretation, vol. 2, 1993, at p. 470).

20. In the petition before us, the petitioners claim that they relied on Amendment 5. In buying an apartment in Jerusalem during the interim period, they took into account that they would be given a pecuniary grant, and they planned their actions on the basis of this reliance. We must take this reliance of theirs into account. This is a social interest worthy of protection. Naturally, the existence of the reliance must be proved; even if it exists, it can have various degrees of strength. This public interest does not have decisive weight. However, it justifies the distinction between an entitled person who did rely on Amendment 5 and an entitled person who did not rely on it. Indeed, this distinction is accepted by all of us. My colleagues, Vice-President E. Mazza, and Justices J. Türkel and E. Rivlin, are prepared to regard the absence of this distinction as a ground for declaring s. 20 of the Arrangements Law unconstitutional, in so far as the transition period is concerned. Like my colleague, Justice M. Cheshin, I too propose giving this interest a different role, which concerns the meaning of the statute and not its validity. In view of this approach, I do not need to examine the constitutional aspect in depth, and I will refrain from adopting any position in this respect.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, Justice M. Cheshin, and with the comments of my colleague, President A. Barak.

 

 

Justice J. Türkel

Like my honourable colleague, Vice-President E. Mazza, and for his reasons, I am also of the opinion that it is not possible to overcome the unambiguous provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, by means of interpretation. Admittedly, in general it is preferable to adopt the path of interpretation and to refrain from a constitutional examination of a statute, but the language of the section does not have any linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended. It follows that we are compelled to examine the constitutionality of the retroactive application of the section in accordance with the constitutional criteria in the Basic Law: Human Dignity and Liberty. In this regard, I agree also with the comments of my honourable colleague, Justice E. Rivlin.

Therefore I agree with the opinion of the Vice-President and the outcome that he reached.

 

 

Justice E. Rivlin

1.    In the dispute between my colleagues Vice-President E. Mazza and Justice J. Türkel on one side, and President A. Barak, as well as Justices M. Cheshin, D. Beinisch and A. Procaccia on the other, my opinion is like that of the Vice-President, for his reasons. Like him, I am of the opinion that there is no possibility of interpreting the provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: the Arrangements Law), in a manner that restricts its application to such an extent that it can make it unnecessary for us to consider its constitutionality.

2.    In practice, there is no dispute between my colleagues that we cannot accept the outcome that the benefit to which the petitioners are entitled should be cancelled so comprehensively, and retroactively. My colleague Justice M. Cheshin wishes to avoid the constitutional question that arises in the petition by using an alternative tool — the tool of interpretation — in order to resolve the petitioners’ problem. My colleague the President also proposes this. I accept their fundamental position, with which my colleague the Vice-President also agrees, according to which we should turn to constitutional review — which can be described as a ‘judgment day weapon’ — only when we have exhausted all other avenues. This approach is accepted in American constitutional law, where a doctrine sometimes called the doctrine of ‘strict necessity’ is accepted. According to this theory, the court shall not resort to constitutional review unless it is unavoidable. Various techniques are used by the court there as escape routes from constitutional review. In Rescue Army v. Municipal Court of Los Angeles [38], Justice Rutledge listed these techniques and explained the logic that justified using them (it should be noted that some of the techniques are the subject of dispute in the United States, and others, such as the right of standing, are no longer relevant in Israeli law):

‘…this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications… arose in the Court's refusal to render advisory opinions…

… in addition, “the Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision” (Ashwander v. Tennessee Valley Authority [39], at p. 346). Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute’s operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided’ (at pp. 568-569).

‘The policy’s ultimate foundations… lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system’ (at p. 571).

One of the tools listed by Justice Rutledge is the construction of the statute under attack in such a way that it will make constitutional review of its superfluous. With regard to this tool, Justice Brandeis, to whose important remarks in Ashwander v. Tennessee Valley Authority [39], at p. 348, Justice Rutledge refers, cited the following:  

‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided’ (Crowell v. Benson [40], at p. 62).

See also the remarks of Justice White, in a similar vein, in Ellis v. Railway Clerks [41], at p. 444.

3.    But care must be taken so that excessive use is not made of this tool. Chief Justice Vinson said in this regard, in Shapiro v. United States [42], at p. 31:

‘The canon of avoidance of constitutional doubts must… give way where its application would produce a futile result, or an unreasonable result “plainly at variance with the policy of the legislation as a whole”.’

Like my colleague Vice-President E. Mazza, I too am of the opinion that the case before us is one of the cases to which Chief Justice Vinson referred. As both the Vice-President and Justice M. Cheshin explain, the language of the provision that is relevant in our case is unambiguous. A provision should not be given an interpretation that is entirely in conflict with its language. The art of interpretation, although it is desirable and essential, has limits, beyond which the interpreter cannot pass; otherwise he will find himself rewriting legislation. In the case before us, the interpretation proposed by the majority justices goes, in my opinion, beyond the confines of what is possible and what is permitted. As my colleague the President says, there are indeed times when the interpreter is authorized to give the broad language of the statute a narrower meaning in order to achieve a broad or specific purpose. But this is not the case where the legislature has made its intention clear in a manner that is unambiguous. Once it has done that, and has ruled out any other intention, there is only one method of interpretation and no other — one interpretation but not its opposite. Indeed, even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power. My colleague Justice Cheshin complains about this remark. He emphasizes that the court does have power and he points to important case law that has strengthened equality between the sexes with a progressive spirit. But the dispute between us, in this case, concerns the method rather than the outcome, for where the interpretive tool fails, constitutional review may remain. Where it is impossible to call a woman a man, it is possible, in the proper circumstances and when the constitutional requirements are fulfilled, to nullify the distinction between them by means of reducing the force of the provision of statute itself. Thus equality is achieved between man and woman even without calling a woman a man. Like my colleague Vice-President E. Mazza, I am of the opinion that where the court reaches an opinion that a particular law, according to the interpretation required in the light of its language and purpose, is not a desirable law, it cannot, by giving an (‘creative’) interpretation to the statute, remedy it on behalf of the legislature. In such cases, the court is obliged to examine the statute constitutionally. This examination does not constitute a ‘fear of the legislator’ that has taken hold of us — in the language of my colleague Justice M. Cheshin. This examination is merely a direct constitutional attack on the statute, of its actual validity, once the more moderate attack — namely the interpretation to which my colleague resorted — was unsuccessful. As my colleague Justice J. Türkel rightly points out, since there is no ‘linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended… we are compelled to examine the constitutionality of the retroactive application.’

This procedure is the proper procedure in view of the principle of the separation of powers. The power to enact and amend legislation is the sole province of the legislature, whereas the court interprets statutes and examines their constitutionality. An interpretation that is inconsistent with the language of the statute violates the authority given to the legislature far more than a declaration that a statute is void for constitutional reasons. An interpretation that lacks a proper foothold in the language of the statute may breach the delicate balance between the powers. In a certain sense, interpretation that bypasses the language of the statute also involves the court shirking its proper role, namely to denounce in a loud and clear voice any statute that our statute book cannot accept — in view of the basic principles of our legal system, as these are established in the constitutional documents. A clear constitutional declaration is sometimes an essential need that presents the legislature and the public with a constitutional guideline that also looks to the future.

4.    In view of the aforesaid, I am of the opinion that we cannot avoid considering the question of constitutionality that the petition raises. On this question too I agree with the position of my colleague, Vice-President E. Mazza. I will merely add and comment that the question of the scope of the property right enshrined within the framework of s. 3 of the Basic Law: Human Dignity and Liberty is a weighty and multifaceted question. I am not persuaded that there is a basis for regarding reliance on an undertaking or even on a property right — as it is recognized in private law — as property that is worthy of constitutional protection in every case. This has already been said in CA 10608/02 Hazima v. Department of Customs and VAT [34]:

‘The modern State, which is no longer merely a ‘night watchman,’ cannot refrain from intervening in the private market and from causing, in certain circumstances, harm to the right of private property. For this reason, the definition of property, and the definition of harm thereto, for the purposes of constitutional law are not identical to the definitions recognized in private law. The protection to the right of property is also not absolute, and frequently it will have to contend with competing values, until it reaches a proper balance (ibid., at para. 8).

In our case, I am of the opinion that we are able to refrain from considering this major question, on account of the special circumstances of the case. According to the arguments of the petitioners, they had in their possession, in theory if not in practice, money that the State allocated them. The petitioners used this money in order to buy or to extend residential apartments. Taking this money away from them, now, is equivalent in many senses to taking the apartments in which they live away from them, because they will not be able to meet the financial undertakings involved in the purchase or extension of the apartments, to which the petitioners have already committed themselves. The centrality of the home for the ‘personhood’ of the individual and his self-realization (M.J. Radin, ‘Property and Personhood,’ 34 Stan. L. Rev. (1982) 957) requires us to hold that the protection of this is included in the constitutional protection of property (see and cf. CA 9136/02 Mister Mani Israel Ltd v. Rize [35], at para. 8). Therefore the provisions of s. 20 are contrary to the dictates of s. 3 of the Basic Law, and since, as my colleague Vice-President E. Mazza has shown, it does not comply with the terms of the limitations clause, it is void. In the circumstances of the case, the proposal of my colleague, the Vice-President, to make an absolute order in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void and that the validity of the aforesaid declaration shall be suspended for six months for the purpose set out in the opinion of the Vice-President seems right to me.

Therefore I agree with the opinion of Vice-President E. Mazza.

 

 

Justice D. Beinisch

1.    All of my colleagues in this case agree that the retroactive application of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: section 20) cannot stand in its entirety. There is no disagreement between us that its application must be restricted, so that the comprehensive retroactive cancellation of the benefit to which the petitioners were entitled under s. 6B (currently s. 6C) of the Housing Loans Law, 5752-1992, is not upheld in a way that does not take into account at all the question whether they relied on the provisions of the statute that granted entitlement to the benefit, and the question whether they changed their position accordingly before the benefit was suspended.

The disagreement is whether the proper outcome of restricting the retroactive application can be achieved by means of interpretation — as Justcie Cheshin, President Barak and Justice Procaccia believe — or whether a constitutional examination of the aforesaid section 20 and a declaration that its retroactive provisions are void are inescapable, which is the position of Vice-President Mazza, Justice Rivlin and Justice Türkel.

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system (see, for example, the opinion of Justice Cheshin in Segal v. Knesset Speaker [3], at pp. 548-550; the opinion of Justice Dorner in HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [36]; HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [37], at pp. 74-79 {451-458}). However, this is only the case when the path of interpretation is available to the court. As President Barak discussed in his book Legal Interpretation (vol. 3, Constitutional Interpretation, 1994, at p. 117:

‘The proper approach is that we should choose, of the two possible interpretations from the viewpoint of the language and the purpose, the interpretation that leads to harmony between the statute and the constitution… [but,] the loyalty of the judge-interpreter to the legislation requires him to give the statute an interpretation that its language can sustain and that realizes its purpose. If this interpretation leads to a harmony between the statute and the constitution, it is right and proper; and if this interpretation leads to a conflict between the statute and the constitution, it is unavoidable. It transpires that the desire to achieve harmony between the statute and the constitution operates within the framework of the rules of interpretation, and as an inner-purposive rule of interpretation. It assists in formulating the purpose of the legislation. It cannot bring about a forced harmony between the interpretation of the statute and the constitution.’

None of my colleagues disputes this starting point in principle; the dispute is whether in this case the interpretive option that allows the provisions of s. 20 of the aforesaid law to be upheld and its retroactive application not to be comprehensive is open to us. I have given much consideration to this question, and initially I even was disposed to favour the approach of Vice-President Mazza. But after I read the opinions of my colleagues several times, I have been persuaded that the interpretive path proposed by Justice Cheshin is indeed possible (or, should we say, is not impossible) in this case, and therefore we are obliged to prefer it.

2.    The approach of Justice Cheshin and President Barak admittedly narrows the retroactive application of the aforesaid section 20 by means of an interpretation that adds to the broad language of the section a qualification that is not expressly mentioned in the section. But in appropriate circumstances there are cases where the legislative purpose, as well as the context, the text taken as a whole and the basic principles of the legal system require us to read into a provision of statute a qualification that is not stated in it. This interpretive outcome is possible when a qualification of this kind is consistent with the purpose of that statute and it has a foothold, albeit a weak one, in the language of the statute, or at least when the language of the statute does not conflict with the possibility of reading into it the aforesaid qualification (and for this purpose I accept in principle the approach of the President as set out in paras. 7-15 of his opinion).

3.    In our case, the language of section 20 admittedly is more consistent, on the face of it, with an interpretation that grants this section an all-embracing retroactive application, but I do not think that the language of the section completely rules out the possibility of qualifying the retroactive application as proposed in the opinion of my colleague, Justice Cheshin. Note that the interpretation of Justice Cheshin does not absolutely rule out the retroactive application of section 20, for we all agree that the language of the section cannot sustain such an interpretation; instead, it restricts or qualifies the retroactive application, in a way that the language of the section can sustain. In such circumstances, we should consider whether this interpretation is consistent with the purpose of the statute.

4.    The purpose of the aforesaid Arrangements Law and of section 20 thereof is to postpone the date of commencement of statutes that were enacted without there being sources of finance in the budget, and the implementation of these would have seriously harmed the budget (see para. 3 of the opinion of Justice Cheshin). As can be seen from the language of section 20 and from the deliberations that took place before it was enacted, the legislature was of the opinion that in order to realize the purpose of the statute — preventing serious harm to the State budget — it was not sufficient to suspend the validity of the provision granting entitled persons a grant to buy or extend an apartment in Jerusalem from that time onward, but it was necessary to suspend the validity of that provision retroactively from the date on which it was enacted. However, there is no doubt that the saving achieved for the State budget as a result of denying the benefits to those few entitled persons who, during the six weeks in which the provision granting the benefits was valid, managed to rely upon it and to change their position adversely, is a negligible fraction of the total saving. Certainly, these are not amounts that are capable of frustrating the purpose of the statute — preventing serious harm to the budget. Therefore, the interpretation of Justice Cheshin, which excludes from the retroactive application of section 20 those few persons who relied on the provision of the entitling law, is consistent, or at least does not conflict with, the particular purpose of section 20 — preventing serious harm to the State budget.

5.    Alongside the particular purpose of the aforesaid section 20 is the general purpose of the section. Within the framework of this general purpose are the basic principles of our legal system. Within the framework of the general purpose of the legislation, there is, inter alia, a presumption that a statute is not intended to conflict with the basic laws and to harm the basic rights of the individual. The property right that the State gave to entitled persons under the aforesaid entitling provision was a concrete and restricted benefit that was given for the purpose of housing, and only to entitled persons who fell into the category of persons in need. Retracting the benefit from those persons who relied on that benefit to buy or extend a residential apartment amounts to a real infringement of the basic right to property. Therefore, there is no doubt that the general purpose of the aforesaid section 20 not only is consistent with the interpretation of Justice Cheshin, which seeks to prevent the serious harm to the property right of those entitled persons who relied on it, but it even requires this interpretation.

It should be noted that, in my opinion, in this case we are not required to decide the question of the status of the principle of reliance in Israeli law and the question whether it is included among the basic principles of our legal system (cf. paras. 18-19 of the President’s opinion). This is for the reason that in our case the question whether the principle of reliance in itself can require a narrow interpretation that is consistent with it does not arise. In the case before us, the reliance constitutes a circumstance that makes the harm to property disproportionate (as my colleagues Vice-President Mazza and Justice Rivlin explain), and the property right is the dominant basic principle in view of which the restrictive interpretation in required.

6.    Thus we see that the interpretation proposed by Justice Cheshin, which excludes from the retroactive application of section 20 the entitled persons who relied on the provision of statute that gave entitlement to a grant for the purchase or extension of an apartment in Jerusalem, is possible from the viewpoint of the language of the section, does not conflict with the particular purpose of the section, and is required by the general purpose of the section. In these circumstances, the interpretive path should be preferred to the voidance of the relevant part of the provision of statute.

 

 

Petition granted, in the manner stated in the majority opinion (Justice Cheshin, with President A. Barak and Justices A. Procaccia and D. Beinisch concurring), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

9 Kislev 5765.

22 November 2004.

 

 

[1]   The Hebrew acrostic for the four Rabbinic tools of Biblical interpretation.

HCJ 5853/07

Emunah — National Religious Women’s Organization

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Knesset

4.   Haim Ramon

HCJ 5891/07

1.   Tmura — the Legal Struggle against Discrimination Centre

2.   Ahoti for Women in Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Haim Ramon

HCJ 5914/07

Legal Forum for the Land of Israel

v.

1.   Prime Minister, Mr Ehud Olmert

2.   Government of Israel

3.   Attorney General

4.   Knesset

5.   Haim Ramon

 

The Supreme Court sitting as the High Court of Justice

[6 December 2007]

Before Justices A. Procaccia, A. Grunis, E. Arbel

 

 

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

 

Facts: MK Ramon was convicted of committing an indecent act. According to statute, a person is barred from being a member of the Knesset or a cabinet minister only if he has been convicted of an offence involving moral turpitude and is given a custodial sentence. The court that sentenced MK Ramon did not give him a custodial sentence and it held that the offence did not involve moral turpitude.

Shortly after serving the sentence of community service, MK Ramon was appointed a member of the government with the position of Deputy Prime Minister. The appointment was approved by the Knesset. The petitioners challenged the appointment on the ground that, in view of the conviction, the appointment was unreasonable in the extreme.

 

Held: (Majority opinion — Justice Procaccia) There is no legal basis for cancelling the appointment on the ground of extreme unreasonableness. Since the court that sentenced MK Ramon held that the offence did not warrant a custodial sentence and did not involve moral turpitude, the government considered the question of MK Ramon’s conviction before making the appointment and the Knesset approved the appointment, the decision to appoint MK Ramon falls within the margin of reasonableness and judicial intervention is not warranted.

(Majority opinion — Justice Grunis) The ground of unreasonableness in judicial review is highly problematic, especially with regard to a decision of a collective body where it is difficult to know the reasons for the decision. It would appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is actually replacing the discretion of the authority with its own discretion. Consequently, the use of relatively narrower and more concrete grounds, such as irrelevant reasons, irrelevant purposes or discrimination, should be preferred to the use of the ground of unreasonableness. In the specific circumstances, the court is no better placed than any citizen of the state to determine whether the decision is unreasonable. Therefore the court should refrain from intervening in the decision.

(Minority opinion — Justice Arbel) The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the government and its members. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. The appointment should therefore be set aside as unreasonable in the extreme.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

 

Legislation cited:

Basic Law: The Government , 5761-2001, ss. 1, 6, 6(c), 13(d), 15, 23(b), 28(a).

Basic Law: the Knesset, ss. 1, 6(a), 42, 42A(a).

Civil Service (Appointments) Law, 5719-1959, s. 46(a)(1).

Criminal Register and Rehabilitation of Offenders Law, 5741-1981.

Municipalities Ordinance, s. 120(8).

Penal Law, 5737-1977, s. 348(c).

State Comptroller Law [Consolidated Version], 5718-1958

Israeli Supreme Court cases cited:

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

[2]        HCJ 652/81 Sarid v. Knesset Speaker [1982] IsrSC 36(2) 197; IsrSJ 8 52.

[3]      BAA 11744/04 Ziv v. District Committee of the Bar Association (unreported decision of 8 August 2005).

[4]        CSA 4123/95 Or v. State of Israel [1995] IsrSC 49(5) 184.

[5]        HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [2003] IsrSC 57(4) 849.

[6]      HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [1967] IsrSC 21(1) 561.

[7]      HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [2005] IsrSC 59(6) 97.

[8]      HCJ 5562/07 Schussheim v. Minister of Public Security (unreported decision of 23 July 2007).

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

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

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

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

[13]       HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

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

[15]       LFA 5082/05 Attorney General v. A (unreported decision of 26 October 2005).

[16]    CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd (unreported decision of 15 June 2006).

[17]        HCJ 5261/04 Fuchs v. Prime Minister of Israel [2005] IsrSC 59(2) 446; [2004] IsrLR 466.

[18]    HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister (unreported decision of 6 March 2006).

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

[20]       HCJ 325/85 Miari v. Knesset Speaker [1985] IsrSC 39(3) 122.

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

[22]       HCJ 306/81 Flatto-Sharon v. Knesset Committee [1981] IsrSC 35(4) 118.

[23]       HCJ 1843/93 Pinchasi v. Knesset [1994] IsrSC 48(4) 492.

[24]       HCJ 1139/06 Arden v. Chairman of the Finance Committee (unreported).

[25]       HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset (unreported).

[26]    HCJ 12002/04 Makhoul v. Knesset (unreported decision of 13 September 2005).

[27]    HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [2005] IsrSC 59(5) 865.

[28]       HCJ 4668/01 Sarid v. Prime Minister [2002] IsrSC 56(2) 265.

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

[30]       HCJ 727/88 Awad v. Minister of Religious Affairs [1988] IsrSC 42(4) 487.

[31]       HCJ 194/93 Segev v. Minister of Foreign Affairs [1995] IsrSC 49(5) 57.

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

[33]       HCJ 7074/93 Suissa v. Attorney General [1994] IsrSC 48(2) 748.

[34]       HCJ 428/86 Barzilai v. Government of Israel [1986] IsrSC 40(3) 505; IsrSJ 6 1.

[35]       CrimA 121/88 State of Israel v. Darwish [1991] 45(2) 633.

[36]    HCJ 11243/02 Feiglin v. Chairman of Election Committee [2003] IsrSC 57(4) 145.

[37]       HCJ 251/88 Oda v. Head of Jaljulia Local Council [1988] IsrSC 42(4) 837.

[38]       HCJ 103/96 Cohen v. Attorney General [1996] IsrSC 50(4) 309.

[39]       CrimA 115/00 Taiev v. State of Israel [2000] IsrSC 54(3) 289.

[40]    HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [1998] IsrSC 52(4) 547.

[41]    HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [2005] IsrSC 59(3) 145.

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

[43]       HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

[44]       HCJ 1956/91 Shammai v. Knesset Speaker [1991] IsrSC 45(4) 313.

[45]       HCJ 108/70 Manor v. Minister of Finance [1970] IsrSC 24(2) 442.

[46]    HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [1987] IsrSC 41(1) 757.

[47]    HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [1993] IsrSC 47(2) 147.

[48]       HCJ 156/75 Daka v. Minister of Transport [1976] IsrSC 30(2) 94.

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

[50]    CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [1959] IsrSC 13 1026; IsrSJ 3 53.

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

[52]       HCJ 3379/03 Mustaki v. State Attorney’s Office [2004] IsrSC 58(3) 865.

[53]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[54]       HCJ 89/64 Greenblatt v. Israel Bar Association [1964] IsrSC 18(3) 402.

[55]    HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [1971] IsrSC 25(1) 325.

[56]    HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [2000] IsrSC 54(1) 49.

[57]    HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [2004] IsrSC 58(5) 108.

[58]    HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security (unreported decision of 24 October 2006).

 

For the petitioner in HCJ 5853/07 — P. Maoz, M. Hoffman.

For the petitioners in HCJ 5891/07 — Y. Bitton, E. Moreno.

For the petitioner in HCJ 5914/07 — J. Fuchs.

For the prime minister, the government and the Attorney General — D. Briskman.

For the Knesset — N. Elstein.

 

 

JUDGMENT

 

Justice A. Procaccia

We have before us three petitions that seek to prevent the appointment of MK Ramon as a minister in the Israeli government. In the meanwhile, MK Ramon joined the Government and was appointed a minister with the title of Deputy Prime Minister. The reliefs sought in the petitions, in view of the circumstances, are therefore that we declare the appointment of MK Ramon as a cabinet minister unreasonable in the extreme, with the result that he is disqualified from holding office in the Government, and that we order the appointment to be cancelled (the alternative reliefs stated in HCJ 5914/07 and HCJ 5853/07).

Background and proceedings

2.    On 23 August 2006 an indictment was filed in the Tel-Aviv Magistrates Court against MK Ramon for an offence of an indecent act without consent, in contravention of s. 348(c) of the Penal Law, 5737-1977. The indictment alleged that while he was a member of the Knesset and Minister of Justice, on 12 July 2006, in the Prime Minister’s office, MK Ramon kissed and stuck his tongue into the mouth of the complainant, without her consent. The complainant is an IDF officer who was working at that time in the office of the Prime Minister’s military attaché.

On 20 August 2006 MK Ramon gave notice of his resignation from the government, and this resignation came into effect on 22 August 2006. While the criminal proceedings were pending, MK Ramon did not hold office as a minister in the government.

On 31 January 2007 the Tel-Aviv–Jaffa Court convicted MK Ramon of the offence with which he was charged.

3.    At the sentencing stage, MK Ramon asked the court to cancel his conviction, relying on a report of the probation service that was submitted in his case. The report recommended that community service be imposed upon him without a conviction. The position of the defence and the probation service with regard to cancellation of the conviction was based on a classification of the offence as one of the most minor of sex offences, MK Ramon’s lack of prior convictions, his many years of public service and his contribution to public life in Israel. Emphasis was also placed on the significant damage that would result from the conviction of MK Ramon as an elected official, and the serious harm that he and his family would suffer should the conviction be upheld. The prosecution opposed the cancellation of the conviction and emphasized the nature of the offence and the fact that it was committed by a member of the Knesset and a government minister against an army officer serving in the Prime Minister’s office. It also discussed the injury caused to the complainant by the act, and the manner in which the defence had conducted the case, which, it argued, had caused her particular harm. The prosecution also opposed the cancellation of the conviction on the ground that MK Ramon did not express sincere regret during the trial, which is a basic requirement for cancelling a conviction -  but only at the sentencing stage. It particularly emphasized the need to send a message to the public that would deter similar offences. The prosecution asked the court to hold that the offence committed by MK Ramon was one that involved moral turpitude.

4.    After considering the question of cancelling the conviction and examining all of the relevant considerations, the Magistrates Court arrived at the conclusion that the conviction should be upheld. In so doing, it preferred the public interest over the interest of MK Ramon.  It held that cancelling the conviction might obscure the public message required in the circumstances and minimize the criminal aspect of the act, and it therefore denied the defence’s request in this regard.

Notwithstanding, when it considered the actual sentence, the court addressed the question of the moral turpitude involved in the offence, in view of the prosecution’s request during its arguments  that the sentence should determine that the circumstances in which the offence was committed by the defendant involved moral turpitude. The defence opposed this request. The court rejected the prosecution’s request, and it explained its position as follows (para. 16e of the sentence):

‘In the defendant’s case, we have reached the conclusion that the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in a mental state of indifference. The act lasted two to three seconds and ended immediately. Allowing the conviction to stand contrary to the recommendation of the probation service and the finding that the defendant’s acts did not involve moral turpitude constitutes a proper balance between the different interests and a fair expression of the different factors that have arisen in this case, including considerations of proper legal policy.’

The court sentenced MK Ramon to 120 hours of community service, and ordered him to compensate the complainant in a sum of NIS 15,000. It rejected the prosecution’s request that it should give MK Ramon a suspended prison sentence. It said in the sentence, inter alia (paras. 17 to 20):

‘In his final remarks, counsel for the defendant asked the court to show his client justice and mercy; we are receptive to this and will do so in sentencing.

The defendant’s punishment is his conviction.  We are aware of the mitigating circumstances set out above, and they have led us to think that the defendant’s sentence should be minimal, so that the future harm that he will suffer will be in proportion to the nature of the offence and the circumstances in which it was committed.

Here we should point out that in the sentence we have taken into account s. 42A(a) of the Basic Law: The Knesset, and we have adjusted the sentence to its provisions.

We therefore order the defendant to perform 120 hours of community service, in accordance with a programme that will be drawn up by the probation service.

We order the defendant to compensate the complainant in a sum of NIS 15,000.’

5.    The judgment of the Magistrates Court became absolute when no appeal was filed by either of the parties. Even though the Attorney General was of the opinion that the circumstances of the offence of which MK Ramon was convicted do involve moral turpitude, he decided not to file an appeal on this issue, but his position on the question of moral turpitude remains unchanged (letter of the senior assistant to the Attorney General of 14 May 2007 (respondent’s exhibit 3)).

6.    After the sentence was passed, MK Ramon performed the community service that was imposed on him. Following changes in the composition of the Government, and especially as a result of the resignation of the Minister of Finance, the Prime Minister decided to reshuffle the Cabinet. On 4 July 2007 the Government decided unanimously to accept a proposal of the Prime Minister and, within the framework of its authority under s. 15 of the Basic Law: The Government, to appoint MK Ramon as a cabinet minister without portfolio, with the title of Deputy Prime Minister.

7.    On the same day, 4 July 2007, Minister Meir Sheetrit, on behalf of the Government, notified the Knesset that the Government had decided to appoint MK Ramon a member of the cabinet, and he requested the Knesset’s approval of this decision under s. 15 of the Basic Law: The Government. In Minister Sheetrit’s notice to the Knesset, he said, inter alia, the following:

‘I respectfully notify the Knesset that at its meeting today the Government decided as follows: Appointing ministers to the cabinet in accordance with section 15 of the Basic Law: The Government… I would like to say… before I give the notice, that the Prime Minister in his remarks at the cabinet meeting at which these changes to the cabinet were approved, said the following:

“MK Ramon was convicted in court. It should be pointed out that the court, when it considered the sentence, expressly determined the sentence in such a way that would not prevent him from engaging in public activity in the Knesset and the Government, even though the prosecution requested that it rule that his case involved moral turpitude, and also sought a sentence that would prevent him from returning to the Knesset and the Government. I have considered the appointment of Haim Ramon and all the factors relevant to this — on the one hand, the judgment, the sentence and everything related thereto; on the other hand, the contribution that the appointment of Haim Ramon will make to the Government, the Knesset and his (sic) work as Deputy Prime Minister. After I considered the matter, I decided that in the balance between the considerations, those supporting his appointment override those that oppose it, and therefore I made the decision after I studied the court’s decision on the matter.”

On the basis of these remarks of the Minister Sheetrit  the Prime Minister  proposed, and the Government decided, to appoint MK Haim Ramon as an additional member of the cabinet.’

8.    Following Minister Sheetrit’s notice, a debate took place in the plenum of the Knesset with regard to the Knesset’s approval of the Government’s decision to appoint MK Ramon to the cabinet. Ultimately the Government’s decision was approved by a majority of the Knesset, with 46 members of Knesset for, 24 members of Knesset against, and no abstentions. After the Knesset decision, MK Ramon made the declaration of allegiance and his appointment as cabinet minister came into effect.

The foregoing is the factual background underlying the petitions.

The petitioners’ arguments

9.    Two of the petitions were filed by women’s organizations, and one petition was filed by the Legal Forum for the Land of Israel, which is a group of lawyers that is active, inter alia, with regard to issues concerning proper Government in the State of Israel.

The petitioner in HCJ 5853/07, Emunah — the National Religious Women’s Organization, claims that the appointment of MK Ramon as a cabinet member and as Deputy Prime Minister is a step that is unreasonable in the extreme, and deals a mortal blow to the organs of government and the dignity of the cabinet. It says that this appointment attests to improper exercise of discretion by the Prime Minister, the Government and the Knesset, being in contravention of  tests laid down in case law for the appointment of public officials to various public offices. It particularly emphasizes in its arguments the criteria laid down by this Court in HCJ 6163/92 Eisenberg v. Minister of Housing [1] and it claims that Ramon’s appointment as a cabinet minister is inconsistent with the tests laid down in that case with regard to the appointment of a person with a criminal record to public office. It goes on to argue that the rule in Eisenberg v. Minister of Housing [1] was later developed and extended to various situations in which a candidate for public office has been disqualified even when he has not been convicted in a criminal trial but certain circumstances in his past and his conduct indicate that he is unsuited to the position from the viewpoint of his moral standards and integrity. According to the petitioner, MK Ramon’s conviction for a sex offence, even though it was held that it did not involve moral turpitude, is inconsistent with his appointment as a cabinet member in view of the circumstances in which the offence was committed and in view of the short period of time that has passed since he was convicted and served his sentence.

The petitioners in HCJ 5891/07 emphasize what they view as the serious harm to women occasioned by the appointment of MK Ramon as a cabinet minister. They say that the appointment is inconsistent with the need to protect the status, safety, liberty and dignity of women. It conflicts with their right to protection in their lives. According to their approach, appointing a person as a cabinet minister a short time after he has been convicted of a sex offence not only injures the victim of the offence but also all women in Israel, and seriously undermines public confidence in its elected officials. The finding of the Court that the offence does not involve moral turpitude does not exempt the Prime Minister, the Cabinet and the Knesset from exercising reasonable discretion with regard to the appointment. In the circumstances of this case, they are of the opinion that the discretion was exercised in an extremely unreasonable manner, and therefore the decision to make the appointment should be cancelled.

The petitioner in HCJ 5914/07 also claims that the decision to appoint MK Ramon as a cabinet minister is unreasonable in the extreme, and it involves a serious injury to Israeli women in general and victims of sex offences in particular. According to case law, a cabinet member should resign when an indictment is filed against him, and from a normative viewpoint this rule should be used as a basis for determining the proper normative standard for returning to public office after a conviction. It follows that only if the defendant is acquitted in his trial, or at the most if a judgment is given in his case without a conviction, may he return to hold office as a cabinet member. But once  MK Ramon was convicted of an indecent act, even if it was held that no moral turpitude was involved, he should not be allowed to return to the cabinet until the passage of a significant cooling-off from the time of his conviction. The petitioner goes on to argue that an analogy should be drawn in this case from the existing arrangement in the civil service, where a person would not be given a position if he was convicted of an offence of an indecent act, until the prescription period under the Criminal Register and Rehabilitation of Offenders Law, 5741-1981, has passed. It is argued that it is unreasonable that the normative standard for appointing an elected official to the cabinet should be lower than this.

The respondents’ position

10. The state in its reply refers to s. 6 and s. 23(b) of the Basic Law: The Government. It claims that these provisions set out the detailed statutory arrangement concerning a person's eligibility to serve as a cabinet minister even though he has been convicted in a criminal trial, both for the purpose of an appointment to the cabinet (s. 6) and for the purpose of terminating the office of a member of the cabinet (s. 23). The law provides in s. 6 that a person who has been convicted of an offence and sentenced to imprisonment may not be appointed to the cabinet if on the date of the appointment seven years have not passed since the date on which he finished serving his sentence or judgment was given, whichever is the later. These two cumulative conditions of a criminal conviction and a custodial sentence (including a suspended sentence) create a presumption of moral turpitude if the period specified in the law has not yet passed since the sentence was completed or the judgment was given. This presumption can be rebutted by a decision of the chairman of the Central Elections Committee that the offence does not involve moral turpitude. Such a decision is possible only when the court has not determined that the offence involves moral turpitude. Regarding a member of the cabinet who is convicted of a criminal offence, the Basic Law provides in s. 23 that his office will be terminated if he is convicted of a criminal offence which has been determined by the court as involving moral turpitude.

The state claims that the law created formal tests as to whether a person convicted of a criminal offence may hold office as a cabinet minister both for the purpose of appointing someone with a conviction as a cabinet member and for the purpose of whether someone who was convicted while serving as a cabinet member may continue to hold office. These tests were intended to create certainty and stability in applying the proper criteria for holding office as a cabinet member. It follows that since the court held that the office committed by MK Ramon does not involve moral turpitude and it refrained from imposing a custodial sentence, his appointment to the cabinet was consequently sanctioned, and there is no legal impediment to appointing him.

The state agrees that there may be exceptional situations in which a person satisfies the criteria for holding office as a cabinet minister according to the tests in the Basic Law: The Government, and yet there will still be an impediment to appointing him as a cabinet member, but this is not one of those cases. In this case, the balance struck by the court in the criminal proceeding — where, on the one hand, it determined that MK Ramon should be convicted of the offence that he committed but, on the other hand, it went on to hold that the offence did not involve moral turpitude — should be upheld. The law provides that the trial court in a criminal case is the competent forum for determining whether the offence committed by the defendant involves moral turpitude, and the High Court of Justice should not act as a court of appeal regarding the trial court’s decision in this respect, since this would undermine certainty and stability in this matter.

Moreover, the state claims that the discretion of the Prime Minister and the government when appointing cabinet ministers is very broad, and the court should only intervene in such matters on rare occasions. The Knesset’s approval of the Government’s decision to make the appointment adds a dimension of parliamentary involvement in the appointment process, and this reduces the margin for judicial intervention in the appointment process even further.

11. The Knesset’s position is that the petitions should be dismissed in limine, since there was no defect in the appointment process. The plenum of the Knesset held a debate on the matter and approved the appointment in accordance with s. 15 of the Basic Law: The Government . The Knesset acted in this regard by virtue of its constitutional power as the organ that supervises the government’s work. The Knesset’s power to approve the addition of a minister to the cabinet under s. 15 of the Basic Law is a sovereign power, which is exercised in the course of the internal proceedings of the Knesset. This is a political act that allows very little scope for judicial intervention, especially when it concerns the relationship between the Knesset and the government, with its special political complexities. 

The Knesset also argued that it approved the appointment of MK Ramon as a minister after holding a debate on the merits of the appointment and a vote in the plenum of the Knesset. The Knesset was informed of the background and all the factors relevant to the appointment, and it was told of the considerations that the Prime Minister and the Government took into account before deciding  on  the appointment. The Knesset therefore made its decision with a full knowledge of all the background facts and considerations relevant to the appointment. The exercise of judicial review with regard to acts of the Knesset in this context is very narrow and it is limited to very extreme and rare cases in which the fundamental principles of the system are significantly undermined. The petitioners did not indicate any such ground for intervention in the circumstances of this case. Since the fundamental principles of the system have not been significantly undermined, there is no basis for exercising judicial review of the Knesset’s decision to approve the Government’s notice concerning the appointment of MK Ramon as a cabinet minister. In view of all this, the petitions should, in the Knesset’s opinion, be denied.

Decision

The significance of the judgment in the criminal trial and its ramifications on the legitimacy of the appointment

12. MK Ramon was convicted of an offence of an indecent act. The court's sentence in the criminal trial did not include a custodial or a suspended sentence. It also determined that the offence did not involve moral turpitude, and it said in this respect that the sentence took into account s. 42A(a) of the Basic Law: the Knesset and tailored the sentence to its provisions. This section provides that if a member of the Knesset is convicted of a criminal offence and it is determined that it involves moral turpitude, his membership of the Knesset will cease when the judgment becomes final. The significance of this provision is that the court in the criminal trial passed sentence with the express intention of not terminating Ramon’s membership of the Knesset in accordance with that provision of the law. When judgment was given in the criminal trial, MK Ramon was not a member of the cabinet. Therefore the court’s judgment did not expressly address the provisions of s. 6 of the Basic Law: The Government , which concern the conditions that govern whether a candidate  convicted in a criminal trial is competent to be appointed a minister. Notwithstanding, it may be assumed, albeit implicitly, that when the court passed sentence and considered the question of whether the offence involved moral turpitude, it intended to effect an outcome in which, on the one hand, Ramon’s conviction for an offence of an indecent act would stand rather than being cancelled and that he would also serve a sentence, but by which, on the other hand, after serving his sentence, MK Ramon would be able to return to public activity in the Knesset, the Government or any other sphere of public life. In taking this approach the court sought to distinguish the criminal proceeding and its consequences in the criminal sphere from MK Ramon’s activity in public life. It saw fit, in the circumstances of this case, to exhaust the criminal trial, but at the same time it sought not to terminate Ramon’s activity in the public sphere, which it regarded as the proper balance between the aggravating and mitigating factors that coexist in this case. In doing so, the court intended, inter alia, to ensure that Ramon satisfied the statutory conditions for continuing to serve as a member of Knesset that are laid down in s. 42A of the Basic Law: the Knesset. It also implicitly sought to ensure that he satisfied the conditions for being appointed a cabinet minister as laid down in s. 6 of the Basic Law: The Government , even though it did not expressly address this issue, since Ramon’s appointment to the cabinet was not a relevant matter at that time.

The court’s judgment in the criminal trial paved the way for MK Ramon to satisfy the statutory conditions that would allow him to be appointed to the cabinet. The court was mindful of the statutory restrictions in s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  when it couched its sentence in terms that excluded Ramon’s case from the scope of the statutory restrictions that would otherwise have prevented him from continuing to serve as a member of Knesset and from being appointed a cabinet minister.

And so, after he was convicted and served his sentence, MK Ramon was appointed a cabinet minister with the title of Deputy Prime Minister. The appointment was proposed by the Prime Minister, adopted and subsequently approved by the Knesset. The Knesset approved the appointment after holding a debate and a vote, following which MK Ramon took the declaration of allegiance to the state and entered into office.

‘Competence, as distinct from discretion’

13. Compliance with the minimal qualifications provided by law for the purpose of an appointment to public office or the inapplicability of statutory restrictions on such an appointment still leave the authority making the appointment with a duty to exercise discretion with regard to the propriety of the appointment. Compliance with formal qualifications for holding a position does not necessarily mean that a candidate is suited to a public office in various respects, including in terms of his personal and moral level and in terms of his basic decency. The authority making the appointment should exercise its discretion with regard to the appointment in accordance with the established criteria of public law; its considerations should be relevant, fair and made in good faith, and they should fall within the margin of reasonableness.

In our case, according to the proper construction of the judgment in the criminal trial, Ramon satisfies the requirements for being appointed a cabinet minister in the sense that the statutory restrictions upon his continuing to hold office as a Knesset member and his being appointed a minister under s. 42A of the Basic Law: the Knesset and s. 6 of the Basic Law: The Government  do not apply. Thus the ‘minimum requirements’ for the appointment are satisfied. But this does not exempt the authority making the appointment from the duty to exercise its discretion with regard to the suitability of the appointment from the viewpoint of the nature of the office, the character of the candidate, and the circumstances of time and place according to criteria that comply with the rules of public law.

The petitions before us focused on the validity of the discretion exercised by the authority making the appointment from the viewpoint of its reasonableness. It was argued that appointing MK Ramon as a cabinet minister was unreasonable in the extreme in view of the nature and circumstances of the offence of which he was convicted and in view of the short time that has passed since the judgment was given and Ramon finished serving his sentence.

We should therefore address the reasonableness of the appointment, against the background of all the circumstances of the case. In this context it is necessary, inter alia, to define the margin of discretion of the authority making the appointment, which casts light on the margin of reasonableness. This margin in turn influences and casts light on the scope of judicial review that should be exercised with regard to the reasonable of the discretion exercised by the authority making the appointment.

The appointment — the margin of reasonableness and the scope of judicial review

Competence for public office

14. The competence of a candidate for public office is examined in two main respects:

The first respect concerns the ethical quality and moral virtues of the candidate, alongside his professional and practical abilities. The ability of a candidate to take on responsibility for holding public office depends not only on his talents and abilities, but also on his moral character, his integrity and his incorruptibility. When an ethical or moral impropriety is discovered in a person's actions before his appointment or while he is holding public office, a concern may arise as to his suitability for the office from the viewpoint of his integrity and ethical conduct, which may impair his ability to carry out his duties.

The second respect concerns the fact that public confidence in civil servants and elected officials is an essential condition for the proper functioning of the civil service and the organs of government. All branches of public service rely on public confidence not only in the practical abilities of civil servants and elected officials, but also, and especially, on their standards of morality and humanity, their integrity and incorruptibility. Without this confidence, the civil service cannot, in the long term, properly discharge its functions at the required level for any length of time.

When persons who have been morally compromised are appointed to public office or left in office after they have gone astray, the ethical basis on which the organs of state and government in Israel are founded may be undermined. The fundamental ethical principles on which Israeli society and government are based may be seriously compromised. Public confidence in the organs of government, whose rank and standards are supposed to reflect the basic ethical principles on which social life in Israel is based, may be weakened.

The appointment process for public office always requires the appointing body to exercise discretion. It should consider all of the factors that are relevant to the appointment, including the competence of the candidate. This competence is measured not only according to the professional abilities of the candidate but also according to his moral and ethical standards. Examining suitability for  office from a moral viewpoint requires the consideration of a wide spectrum of factors, including the nature of the acts attributed to the candidate, whether they involved any impropriety, how serious they were, and to what extent they affect his moral and ethical standing; whether he was convicted in a criminal trial, whether he is suspected of committing offences, and whether any criminal investigations are pending against him; whether the acts attributed to him have been proved, or whether they are merely suspicions, and what is the strength of such suspicions; what is the period of time that has passed since the acts were committed; did he commit a single act or was the act a continuous one(Eisenberg v. Minister of Housing [1], at p. 262 {64-65}; HCJ 652/81 Sarid v. Knesset Speaker [2], at p. 197 {52}); and, finally, whether the acts involved ‘moral turpitude.’ The concept of ‘moral turpitude’ in the law reflects an ethical-moral assessment which indicates that under the circumstances a particular act was tainted by a grave moral defect (BAA 11744/04 Ziv v. District Committee of the Bar Association [3]; CSA 4123/95 Or v. State of Israel [4], at p. 189; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968), at p. 180).

Conditions of Competence and Statutory Restrictions upon holding office

15. The process of appointing  a person to public office is often subject to conditions of competence and statutory restrictions that may disqualify a candidate from being appointed. When the restrictions disqualify a candidate from being appointed, the authority making the appointment is left with no discretion. There are a host of statutory restrictions that negate the competence of a person convicted of an offence involving moral turpitude from holding office. This is the case with regard to a person’s competence to be appointed a cabinet member (s. 6 of the Basic Law: The Government ), the right to be elected to the Knesset (s. 6(a) of the Basic Law: the Knesset), and being appointed to the civil service or a local authority (s. 46(a)(1) of the Civil Service (Appointments) Law, 5719-1959; s. 120(8) of the Municipalities Ordinance). The criterion of ‘moral turpitude’ that justifies restricting a person’s competence to hold public office is a moral defect that taints his action, thereby impairing his ability to bear the responsibility required for discharging the job both because of the damage to his ethical standing and because of the anticipated harm to public confidence in the office and the person holding it, and even in public system as a whole  (Or v. State of Israel [4], at p. 189; HCJ 4523/03 Bonfil v. The Honourable Justice Dorner [5], at p. 854; HCJ 436/66 Ben-Aharon v. Head of Pardessia Local Council [6], at p. 564).

The statutory restrictions that negate a candidate’s competence for holding public office close the gates upon his appointment and prevent him from being appointed. It does not follow that where the statutory restrictions do not apply to a candidate, his appointment is necessarily permissible from the viewpoint of the lawfulness of the discretion that the authority should exercise when making the appointment. The authority making the appointment should act reasonably in exercising its discretion with regard to the appointment. Its responsibility in this process comes under scrutiny even when the candidate satisfies the formal qualifications and is not excluded by the statutory restrictions laid down for an appointment to public office. Notwithstanding, it is important to point out that the competence of a candidate according to the criteria laid down in statute may affect the scope of discretion that the authority may exercise in the appointment process.

The balances required when exercising discretion in the appointment process

16. Exercising reasonable discretion in the process of appointing someone to a public office requires the authority making the appointment to contemplate a very wide range of considerations. It should consider whether the candidate is suited to the position from the viewpoint of his professional qualifications, and from the viewpoint of his personal qualities and moral standards; it should evaluate the degree of public confidence that the appointment under consideration will foster; it should consider the wider needs of the administration, and the ability of the candidate to contribute to it and further the public interest in discharging his duties.

When the proposed candidate has a criminal record or his actions are tainted in some other way, the authority should examine the effect that this factor has on his competence for the position. It should take into account the nature of the act attributed to the candidate, its seriousness, the nature of the impropriety that taints it, and its effect on his ability to carry out his duties; it should examine whether the nature of the candidate’s acts indicates an inherent ethical flaw in his conduct, which affects his ability to function properly in the proposed position and has an impact on the ethical image of public service. On the other hand, it is possible that the act was an isolated lapse, which even if it has an aggravating aspect, does not indicate a fundamental flaw in the candidate’s character (HCJ 5757/04 Hass v. Deputy Chief of Staff, General Dan Halutz [7]; HCJ 5562/07 Schussheim v. Minister of Public Security [8]). Against this background, it should consider the effect of the appointment on public confidence in the system of government (Eisenberg v. Minister of Housing [1], at para. 40). It should consider the fact that the candidate has a criminal conviction in its proper context or any other impropriety in his conduct in their proper context, and weigh them against the other considerations that support the appointment, and strike a balance between them. The main criterion when striking this balance lies in the question whether in the circumstances of the case the appointment may cause serious and pervasive harm to the image of the government in Israel and significantly undermine the respect that the citizen has for the organs of government.

17. The unreasonableness of appointing someone who has been convicted of a criminal offence to public office does not necessarily depend upon the offence involving an element of immorality or a finding that it involves moral turpitude (Eisenberg v. Minister of Housing [1], at para. 55). Similarly, the very existence of a criminal conviction is not a prerequisite for disqualification from public office. Indeed, by virtue of the discretion of the authority making an appointment, not only have persons who have been convicted in a criminal trial been disqualified for public office, but so too have persons who have confessed to committing a criminal offence, even though they were not brought to trial (for example, the persons involved in the 300 bus affair, Yosef Ginosar and Ehud Yatom). In other cases, the court has recognized the possibility of disqualifying persons from public office when a decision has been made to bring them to trial, even before their guilt has been proved. This occurred in the case of Minister of the Interior Aryeh Deri and Deputy Minister of Religious Affairs Raphael Pinchasi (HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at p. 422 {284}; HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 467). A similar outlook has been adopted with regard to public figures against whom a criminal investigation was started, even though it was later decided not to bring them to trial. This occurred with regard to the criminal investigations relating to Minister Tzachi Hanegbi that did not lead to the filing of an indictment (HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at p. 851 {353}).

The need to consider the ethical and moral aspects of appointing someone to public office has also been extended to situations in which a decision was made not to open a criminal or disciplinary investigation against a candidate for conduct giving rise to a suspicion of an illegal act (Hass v. Deputy Chief of Staff, General Dan Halutz [7], at para. 10 of the opinion of Justice Levy; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at p. 65). Indeed, one should not rule out the possibility that the improper conduct of a candidate, even if does not amount to a criminal offence, is sufficiently serious that it would be unreasonable in the extreme to appoint him to public office or to allow him to continue to hold public office.

18. Considerations regarding a candidate’s competence for public office from an ethical viewpoint are of great weight. In very serious cases, the ethical stain on a person’s character may make his appointment to the position completely inappropriate, even when from the viewpoint of his professional abilities he is likely to make a contribution towards the issue that lies at the focus of the public system. In such a case, even the needs of the public system will defer to the stain on the person’s character. But in other situations, alongside an examination of the ethical aspect of the candidate’s character, the authority should consider the broader needs of the public administration and the ability of the candidate to contribute to it, and a proper balance should be struck between all of the relevant considerations and factors.  With regard to a cabinet appointment, one should consider, inter alia, the potential contribution of the candidate to the office, the importance of bringing him into the government for the purpose of preserving the coalition and the effective functioning of the government. On a matter relating to parliamentary political life, one cannot rule out a proportionate consideration of factors relating to political circumstances (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at para. 30). The authority should take into account the requirements of the position, the special abilities of the candidate and the benefit that his holding office would engender in furthering the general public interest. The authority making the appointment should weigh up all of the aforesaid factors and strike a proper balance between them, within the margin of reasonable discretion that is given to it. A candidate’s criminal record or any stain on his character should be considered in accordance with their circumstances and seriousness against other relevant general considerations: the professional qualities, when taken together with the proven or alleged impropriety of his actions, should be considered against the nature of the office, its status within the administration, and how uniquely qualified the candidate is for the office. A balance is required between all the various conflicting considerations (HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], at p. 445; HCJ 935/89 Ganor v. Attorney General [14], at p. 513). An appointment is a reasonable decision if it is made as a result of a balance that gives proper weight to the different values that are relevant to the case. Assessing the weight that is given to the different considerations is a normative act that is made in accordance with accepted social values, which in turn cast light on the relative importance that should be attributed to the various conflicting factors (LFA 5082/05 Attorney General v. A [15], at para. 19 of the opinion of President Barak; Eisenberg v. Minister of Housing [1], at pp. 263-264 {65-66}; CA 3398/06 Antitrust Authority v. Dor Elon Energy in Israel (1988) Ltd [16]). Within the margin of reasonable discretion, depending upon how broad it is, there may be different possible balancing points between the conflicting considerations, all of which may pass the test of reasonableness. The broader the margin of administration discretion when making an appointment, the broader the margin of reasonableness, and this extends the range of legitimate possibilities for finding different balancing points between the conflicting values in the appointment process. The margin of discretion in the appointment process is determined by various factors: the identity of the authority making the appointment, statutory provisions and judicial decisions regarding the competence of the candidate for the appointment, parliamentary involvement in the appointment and the other circumstances of the case.

19. The limits of judicial review and the scope of its application when examining the reasonableness of the discretion of the authority making the appointment are affected by the authority’s margin of discretion in this regard. The scope of judicial review of the authority’s decision is inversely proportional to the scope of the margin of discretion given to the authority making the appointment. The broader the margin of the administrative discretion, the narrower the scope for judicial intervention in the administrative act.

 

The authority’s margin of discretion when appointing a minister who has a criminal conviction

20. For the purposes of this case, we should examine the margin of discretion given to an authority when appointing someone with a criminal conviction as a member of the cabinet. This margin of discretion will cast light on the scope of judicial review regarding the appointment. We should examine whether in the circumstances of this case the decision to appoint MK Ramon as a member of the cabinet falls within the margin of reasonableness or whether it falls outside this margin in such a way that we need to intervene and amend it.

The margin of discretion given to the government when appointing a cabinet minister who has been convicted of a criminal offence is influenced by conflicting considerations that pull in opposite directions: on the one hand, such an appointment gives rise to the question of the weight of the criterion of integrity and ethical conduct in the appointment of elected officials to the most senior positions in state institutions. The image of public service and government institutions is closely related to the moral character of its employees and elected representatives. The standing of government institutions and the effectiveness of their functioning depend largely upon maintaining public confidence in them, not merely from the viewpoint of their professional standards but first and foremost from the viewpoint of their ethical standards. Without this confidence, state institutions will find it difficult to operate. The integrity and moral status of civil servants and elected officials affect the degree of confidence that the public has in state institutions. Appointing someone as a cabinet minister after he has been convicted of a criminal offence of an indecent act just a short time before the appointment, directly concerns the question of integrity and moral character in the appointment of elected representatives, and this factor has considerable weight in limiting the margin of discretion of the authority making the appointment.

21. But this consideration does not stand alone. There are additional conflicting considerations that operate in concert to broaden the margin of discretion given to the authority making the appointment and to limit the scope of judicial review regarding the appointment. The conflicting considerations are the following: first, the prime minister and the government have broad powers when forming the government and appointing cabinet ministers, which is a part of the political process that characterizes the structure of democracy; second, the fact that the statutory qualifications for appointing a minister with a criminal conviction are satisfied has certain ramifications upon the margin of administrative discretion given to the authority making the appointment; third, the parliamentary approval given to the government’s decision to make the appointment, which embodies the consent of the state’s elected body to the appointment and the identity of the person chosen for the office, affects the margin of discretion in making the appointment; and fourth, an absolute judicial decision of a national court, which held in the criminal trial that a distinction should be made between the criminal sanction imposed upon the public figure and the effect of the conviction on the defendant’s public activity, so that the former would not preclude the latter, also contributes to a broader margin of discretion when the competent authority makes the appointment. Each of these factors individually, and certainly when taken together, extends the authority’s margin of discretion in making the appointment, and the scope of judicial review is correspondingly limited.

We will now consider these matters in detail.

The scope of discretion in forming a government and appointing ministers

22. As a rule, the scope of the prime minister’s discretion in forming a government and the government’s discretion in appointing new ministers has two aspects: on the one hand, the discretion given to the prime minister in forming his government and in deciding upon its members is broad. So too is the government’s discretion in its decision to appoint a new member of the cabinet. On the other hand, this discretion is subject to judicial review and is not completely immune from it, since —

‘The prime minister is a part of the administrative authority and the principles that apply to the administrative authority and its employees apply also to the prime minister. It follows that, like any public official, his discretion is not absolute. He must act reasonably and proportionately; he must consider only relevant considerations; he must act without partiality and without arbitrariness; he must act in good faith and with equality’ (HCJ 5261/04 Fuchs v. Prime Minister of Israel [17], at pp. 463-464 {483}).

The discretion given to the prime minister and the government with regard to forming a government, appointing and replacing ministers, and adding a new member to the government is broad, because of the special nature of the power of appointment, which is ‘of a unique kind, both because of the position of the prime minister with regard to the formation of the government and because of the political nature of the government. It includes a large number of considerations and encompasses a wide margin of reasonableness’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 58). The prime minister’s special power with regard to the appointment of cabinet ministers and the termination of their office is intended to ensure the government’s ability to function and operate, and it is an integral part of the political process at the heart of the democratic system, which the court rarely subjects to the test of judicial review (HCJ 1400/06 Movement for Quality Government in Israel v. Deputy Prime Minister [18]; Movement for Quality Government in Israel v. Prime Minister [11]). The margin of reasonableness that characterizes the scope of the prime minister’s discretion when determining the composition of his government and the appointment of cabinet members is very broad, and his criteria include parliamentary, political and party considerations. This broad margin is intended to facilitate the government’s ability to function properly as the executive branch of the state, and to realize the policy goals that it espouses (Fuchs v. Prime Minister of Israel [17], at para. 29 of the opinion of President Barak). This broad discretion is founded on the public interest of ensuring the stability of the government and its ability to achieve its goals. Indeed —

‘When we address the discretion of the prime minister in a decision to appoint a minister, the margin of reasonableness for his decision, in which the court will refrain from intervening, is very broad, both because of the status of the prime minister as an elected representative and the head of the executive branch, and because of the nature of this power’ (Movement for Quality Government in Israel v. Prime Minister [11], per Vice-President Or).

The scope of the discretion of the prime minister and the government when appointing cabinet ministers, no matter how inherently broad it may be, varies according to the nature of the conflicting factors that they should consider during the appointment process. Discretion that is entirely based on professional qualifications for the position or on purely political or public considerations of various kinds cannot be compared to discretion that is exercised as a result of a duty to contend with the ethical-normative considerations that arise from a candidate’s criminal past or from another stain on his character, which affects his social and public standing and is relevant to his competence to hold office. The ethical-normative aspect of administrative discretion may affect its scope in this special context, and result in the discretion being narrower, and judicial review being correspondingly more rigorous.

23. The consideration concerning the ethical background of a candidate for appointment as a cabinet minister should be taken into account by the prime minister when determining the composition of his government, even when the candidate satisfies the statutory qualifications that are required for the appointment. The weight given to this consideration should be determined in accordance with the special circumstances of the case and with a view to the relative weight that should be given to other important considerations that are relevant to the appointment process.The broad discretionary authority given to the prime minister in the realm of appointments compels him to address a broad variety of considerations. The prime minister should examine, inter alia, the importance of appointing the candidate with reference to the field of activity for which he will be responsible and his skills and abilities as can be seen from his record in the past; he should assess the effect of the appointment on the composition of the government and its ability to function. Public, political and other considerations should also be included among the complex set of criteria that are a part of the appointment process. It is the task of the prime minister and the government to assess the relative weight of all the relevant factors in a reasonable manner, and to strike a proper balance when deciding upon the appointment.

It is the task of the authority making the appointment to strike a balance between the conflicting considerations when appointing a person to the cabinet who has been convicted in a criminal trial. Its discretion is broad, but not unlimited. The law will intervene and have its say when the appointment reflects an improper balance between all of the relevant considerations and it involves a real violation of the ethical principles accepted by society. The law will intervene where such an appointment is likely to harm the status of government institutions and public confidence in them in such a serious way that the appointment is unreasonable in the extreme.

Statutory qualifications and restrictions relating to appointments

24. As we explained above, ss. 6 and 23 of the Basic Law: The Government  lay down the statutory qualifications and restrictions that prevent a person who has been convicted in a criminal trial from being appointed as a cabinet member or that require the termination of his office as a cabinet member.

Section 6(c), which is relevant to this case, provides:

‘Qualification of ministers

6. …

(c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

The conditions that disqualify a person from holding office as a cabinet member, as stated in s. 6(c), are ‘minimum requirements’ that, when they apply, disqualify a person for the appointment. Where the restrictions upon the appointment do not exist, it does not mean that we are dealing with a ‘negative arrangement’ regarding the exercise of discretion by the authority making the appointment, whereby any appointment whatsoever will be valid. Even when there is no statutory restriction upon holding office, the authority should exercise discretion in making an appointment and strike a proper balance between the relevant considerations, according to their proper relative weight (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 457). The statutory qualification test for a person convicted in a criminal trial to hold office as a minister is closely linked to the question of the moral turpitude involved in the offence. Where there is moral turpitude, he is disqualified from holding office; this however, does not mean that the absence of moral turpitude necessarily legitimizes the appointment.  The reasonableness of the discretion of the party making the appointment is examined on its merits, according to all the circumstances of the case.

Notwithstanding, the existence of statutory restrictions upon the appointment of a cabinet minister does influence the scope of discretion of the person making the appointment when exercising the power of appointment granted to him. The stipulation of the legislature regarding the conditions that disqualify a candidate who has been convicted of a criminal offence for being appointed a minister has ramifications on the scope of the power of the person making the appointment and the margin of discretion regarding a candidate whose appointment is not ruled out by the minimum requirements. The statutory restrictions reflect the criteria that the legislature regarded as the proper ones for ensuring the minimum ethical standard for someone joining the government. Admittedly, meeting the qualifications that derive from compliance with these restrictions does not amount to an automatic ethical certificate of approval for the appointment, and the authority should examine in depth whether the candidate is suitable for the position, first and foremost from the viewpoint of his ethical qualities (Eisenberg v. Minister of Housing [1], at pp. 256-257). However, the statutory restrictions upon an appointment do cast light on the ethical criteria required by the legislature for the purpose of the appointment, and the effect of this is to increase the margin of discretion of the person making an appointment where the candidate satisfies the statutory minimum requirements for the appointment.

As the court held in Movement for Quality Government in Israel v. Prime Minister [11] (at para. 8 of the opinion of Justice Rivlin):

‘… the criteria for eligibility laid down by the legislature are not irrelevant when examining the discretion of the prime minister. The further we depart from the statutory criteria, the more difficult it will be to find a reason and justification for intervening in the prime minister’s discretion within the scope of his authority. Indeed, if the legislature has determined that the conviction of a minister of an offence involving moral turpitude necessitates his removal from office, the court will not lightly say that even when the minister has been acquitted of the offence, or a decision was made not to bring him to trial at all, the minister should be removed from office.’

The Knesset’s approval of the appointment

25. Under s. 15 of the Basic Law: The Government , the addition of a minister to the cabinet requires giving notice to the Knesset and receiving the Knesset’s approval. This process subjects the decision of the prime minister and the cabinet to add a minister to the cabinet and the identity of the minister who was appointed to a public, political and parliamentary test. The Knesset’s decision is made after a debate, and it is made by virtue of the Knesset’s position as the supervisor of the government’s actions. The Knesset’s approval for the government’s decision to add a minister to the cabinet reflects parliamentary approval of the elected house of representatives for the appointment that was made by the executive branch (Sarid v. Knesset Speaker [2], at para. 5 of the opinion of Justice Barak).

All organs of government are subject to judicial review, and the Knesset is no exception (HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19]). But the status of the Knesset as the legislative branch, as enshrined in the Basic Law and as determined by the structure of our democracy, requires the court to exercise its judicial review of Knesset decisions with caution and restraint. As a rule, the court will refrain from intervening in Knesset decisions, and the basic criterion by which the scope of the court’s intervention is determined depends upon the nature of the decision from the viewpoint of the amount of harm that it inflicts upon the principles of the constitutional system and the basic notions that lie at its heart (per President Shamgar in HCJ 325/85 Miari v. Knesset Speaker [20], at p. 195; Movement for Quality Government in Israel v. Knesset Committee [19]). The scope of judicial review of Knesset decisions is determined, inter alia, in accordance with the nature and characteristics of the specific decision. Intervention in a decision relating to legislation cannot be compared to intervention in a quasi-judicial decision or a decision concerning the Knesset’s scrutiny of the Government’s actions (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]).

26. The Knesset’s approval of the Government decision to appoint someone who was convicted of a criminal offence as a new minister has two aspects. One aspect relates to its nature as an act of scrutiny of the Knesset as the body that supervises the actions of the Government. The other aspect is of a normative-ethical nature, with quasi-judicial overtones; it reflects the ethical outlook of the Knesset as to the competence of someone who has been convicted of a criminal offence to hold office as a minister in the government. The first aspect concerns the relationship between the Knesset and the Government, and it involves ‘a significant political component in which the judicial branch should not interfere, in order to prevent, in so far as possible, the “politicization of the judiciary” ’ (Sarid v. Knesset Speaker [2], at para. 7). The other aspect involves the Knesset in making an ethical and principled decision regarding the competence of a candidate to serve as a cabinet minister from the viewpoint of his ethics and character. This determination has a normative significance that concerns the determination and application of proper ethical and moral criteria to the holding of a very high office in the Government of Israel. This aspect of the Knesset’s decision with its ethical dimension opens the Knesset’s decision to more rigorous judicial review, since where the Knesset’s decision leaves the purely political sphere and addresses a question relating to considerations of public ethics as applicable to the office of elected representatives in government institutions, the scope of judicial intervention may become broader in so far as the ethical dimension is concerned (HCJ 306/81 Flatto-Sharon v. Knesset Committee [22]; Miari v. Knesset Speaker [20], at p. 127; HCJ 1843/93 Pinchasi v. Knesset [23], at p. 496; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10]; HCJ 1139/06 Arden v. Chairman of the Finance Committee [24], at para. 5 of the opinion of President Emeritus Barak; Sarid v. Knesset Speaker [2], at p. 202 {56-57}; HCJ 9156/06 Pollak v. Members of the Seventeenth Knesset [25]; HCJ 12002/04 Makhoul v. Knesset [26]; HCJ 11298/03 Movement for Quality Government in Israel v. Knesset Committee [27], at pp. 899-900).

The limits of judicial review of a decision of the Knesset to bring  a minister into the government, who has been convicted of a criminal offence, are therefore influenced by the dual aspect of such a decision, which features both a manifestly political dimension and an ethical-normative one. The nature of the Knesset’s decision requires, on the one hand, the accepted degree of judicial restraint with regard to Knesset decisions, and, on the other hand, it may require a judicial examination of the ethical determination contained in it. This balance means that when a decision of the Knesset to approve the appointment of a minister to the cabinet amounts to an extreme and unusual departure from proper ethical criteria, it is likely to justify judicial intervention.

A judicial determination in a criminal trial

27. The court in which MK Ramon’s criminal trial took place directly addressed the question of the appropriate consequence of his Ramon’s criminal conviction with respect to the continuation of his path in public and political life. In the balance that the court struck when passing sentence, it held that a distinction should be made between the question of sentencing, in which MK Ramon should be held accountable, and the question of his public activity. According to its express and implied determination, Ramon’s act, despite the wrongdoing and impropriety inherent in it, is not supposed to impair the continuation of his public activity, either as a member of the Knesset or as a cabinet minister. As I have said, the court’s approach in the criminal trial does not mean that the body making the appointment is exempt from exercising independent and rigorous discretion with regard to the propriety of the appointment, even when the court has held that the offence should not be regarded as involving moral turpitude and the candidate should not be prevented from complying with the minimum requirements for the appointment. But it would appear that the court’s position has weight and significance within the context of the balances that the body making the appointment should strike when making a decision concerning the appointment. The position expressed by the court when it left the door open for MK Ramon to continue his public activity affects and influences the margin of discretion of the person making the appointment, and consequently also the scope of judicial review as to the reasonableness of that discretion.

The court in which the criminal trial was held was aware of all of the legal, moral and public aspects of the case that it tried. By virtue of its authority, the Magistrates Court is trained in striking the proper balance between the various considerations and conflicting interests in the complex case being heard before it. A final judgment that a criminal offence committed by a public figure neither warrants a custodial sentence nor involves moral turpitude, and in which the court clearly states its intention not to curtail the defendant’s public activity, has considerable significance and weight in guiding the discretion of the body making the appointment and it affects the limits of judicial review exercised with regard to his decision.

28. Regarding the margin of discretion given to the Prime Minister and the Government when appointing MK Ramon as a cabinet minister and the nature of the Knesset’s approval of this appointment, it is possible to summarize as follows:

In determining the margin of discretion, there are two forces that pull in opposite directions. On the one hand, the identity of the person making the appointment, the criteria determined by the statutory qualifications and restrictions and the existence of a judicial decision that the criminal act did not involve moral turpitude pull in the direction of broadening the power and discretion of the person making the appointment. On the other hand, the substantive-normative nature of the appointment decision and  its connection to the appropriate proper set of values that should be applied when appointing someone to a high public office expose it in this particular aspect to rigorous judicial review within the broad margin of reasonableness granted to the authority making the appointment. An extreme departure from the proper ethical weight that should be given to the normative-ethical considerations relating to the appointment decision, relative to the other considerations relevant to the appointment, will justify judicial intervention.

From general principles to the specific case

29. The reasonableness of the decision to appoint MK Ramon as a member of the cabinet is subject to judicial review. In this regard, the court should examine whether the authority making the appointment considered all the factors relevant to the matter, and whether it gave them their proper relative weight. At the end of the process, does the decision to make the appointment strike a proper balance between the conflicting considerations that lies within the margin of reasonableness, when taking into account the scope of this margin in the special circumstances of the case? 

30. In the case of MK Ramon, the authority making the appointment considered all of the factors relevant to the matter. On the one hand, it considered the importance of his expected contribution to the Government, in view of his abilities, his considerable experience and his knowledge of the matters required by the position. On the other hand, as can be seen from the statement made by Minister Sheetrit to the plenum of the Knesset, it considered his criminal conviction relating to an offence of an indecent act, with its circumstances and implications. It may be assumed that it also took into account the fact that the criminal trial ended only a very short time earlier. In its decision, the Government balanced the weight of the criminal conviction, its character and circumstances, as determined in the criminal trial, against the considerations relating to the importance of bringing MK Ramon into the Government at this time. In this balance, the scales were tipped in favour of approving the appointment, while having consideration for the weight and significance given to the conviction and its circumstances, and the short period of time that passed since the judgment was given.

In the circumstances of the case, it cannot be said that the Government decision to appoint Ramon as a cabinet member suffers from a manifest lack of reasonableness that justifies judicial intervention by setting it aside.

31. The Government’s approach in making the appointment, which was approved by the Knesset, is characterized by the distinction made, in the special circumstances of this case, between the criminal,  penal and moral aspect of the offence committed by Ramon and its consequences on a public level for an active public figure, whose horizons of activity have yet to be exhausted. Alongside this consideration, the authority making the appointment took into account the needs of the governmental system from a functional and political viewpoint. This approach of the  Government  is consistent with the outlook of the court that considered the matter in Ramon’s criminal trial. It does not conflict with the approach of the Attorney General, who, even though he still believes that the offence does involve moral turpitude, did not file an appeal against the judgment in the criminal trial and accepted the decision of the trial court in this regard.

32. Ramon’s act for which he was convicted in the criminal trial has complex legal, public and moral aspects.  His act was particularly serious and opprobrious not merely because of its actual character, but also because of the special context in which it was committed and his high public office (Minister of Justice), the fact that the complainant was an officer in uniform, and the fact that it occurred in the Prime Minister’s office, the headquarters of the executive branch, where the vital issues affecting Israeli society are decided.

Notwithstanding, the appointment process should consider, inter alia, whether the characteristics of the offence necessarily show the perpetrator as having a fundamental moral defect, which because of its nature should disqualify him from public office, or whether the incident was an isolated one, which,   irrespective of its impropriety, does not necessarily indicate incompetence to hold public office.

This examination is bound up with the question whether public confidence in the person holding office and the government may be significantly impaired by the appointment. An improper act always depends upon the circumstances, and it should be assessed and evaluated against a background of the conditions in which it was committed and in view of an overall examination of the qualities of the candidate, his personal and professional record, and the needs of the governmental network in which he is being asked to serve (Schussheim v. Minister of Public Security, para. 20 [8]; Hass v. Deputy Chief of Staff, General Dan Halutz [7]).

Despite the impropriety of the offence committed by MK Ramon, it was regarded both by the court in the criminal trial and by the authority making the appointment as an isolated incident that does not reflect any fundamental moral defect requiring his disqualification from public office. It was regarded as a momentary expression of human weakness, the result of special isolated circumstances, and did not indicate an innate aberration of conduct and character or a misguided set of values, which might indicate a fundamental incompetence to holding public office. On the other hand, the Prime minister and the Government thought that despite the difficulties inherent in the appointment because of the criminal conviction, the systemic needs of the Government justified bringing MK Ramon into the cabinet. His personal and professional contribution was required, in their opinion, to strengthen and promote the Government’s ability to carry out its various tasks.

As can be seen from Minister Sheetrit’s statement to the Knesset, in making the appointment the Prime minister and the Government assessed the special abilities of MK Ramon against the wrongdoing in the improper act of which he was convicted. In the balance that was made between the facts of the criminal conviction and the human weakness that it revealed, as well as the brief period of time that had passed since the sentence was completed, on the one hand, and the abilities and professional skills of the candidate, his expected contribution to public life and the importance of bringing him into the Government for various general reasons, on the other, decisive weight was given to the latter. In the circumstances of the case, the balance that was struck did not involve any defect that indicates extreme unreasonableness in the discretion exercised by the authority making the appointment. In striking the balance, there was definitely consideration of the question of whether the appointment was likely to substantively damage public confidence; in the special circumstances of this case, this question was mainly answered in the negative, since public confidence also recognizes the concepts of rectification and repentence in appropriate cases (Schussheim v. Minister of Public Security [8], at para. 29; Sarid v. Knesset Speaker [2]).

It follows, therefore, that within the margin of reasonableness given to the Government and the Knesset in the circumstances of the case under consideration, there are no ground for judicial intervention in the appointment of MK Ramon as a cabinet member.

Before concluding

33. Before concluding, I have read the remarks written by my colleague Justice Grunis with regard to the place and status of the ground of reasonableness among the grounds for judicial review of decisions of a public authority. I do not see eye to eye with my colleague on the question of the current and ideal scope of the ground of reasonableness in administrative law. It seems to me that we should leave this ground within the limits outlined by case law in recent decades. I do not intend to set out a wide-ranging response to the legal thesis set out in my colleague’s opinion, if only for the reason that it seems to me that addressing this complex issue is not essential for deciding the issue in the specific circumstances of the present case. I will content myself with discussing the very crux of the difference of opinion between us.

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. This ground is used to examine the rationality of government decisions as a normative concept, and the court has laid down criteria that it should consider when examining this. First, did the administrative authority consider all the relevant issues, and no irrelevant ones, or did it perhaps consider irrelevant and extraneous matters? Second, did the authority give each of the relevant considerations its proper relative weight, and did it thereby strike a balance that lies within the margin of reasonableness given to it? This margin of reasonableness may vary from case to case, according to the circumstances and characteristics of the specific case. Without any safeguard that the administrative decision is reasonable and rational, the individual and the public may be seriously harmed. It is insufficient for the administrative decision to be made with authority and in good faith. The decision should be rational and sensible within the margin of discretion given to the competent authority.

Limiting this tool of judicial review that is intended to examine the rationality of the administrative decision, which is what my colleague proposes, may lead to a revolution in the understanding of the principle of the legality of administrative action and limit the legal tools available to the court for examining the action of a public authority within the scope of the judicial protection given to the individual against executive arbitrariness. 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 in its decision did not consider all and only the relevant considerations, 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.

Needless to say, the existence of the ground of reasonableness, like the other grounds of judicial review of public authorities, requires great care when applying it in practice. It is true that because this ground is wide-ranging and has a high degree of abstraction, there is a concern that its application in the specific case, if  done without proper restraint and sufficient care, may result in the court encroaching upon areas that lie beyond the scope of the law, where it ought not to tread. The concern that the court will replace the ‘unreasonable’ discretion of the administrative authority with its own ‘reasonable’ discretion and thereby appropriate the authority for itself is no empty concern, and should not be ignored. My colleague addresses this in his characteristically analytical way. At the same time, this concern in itself should not, in my opinion, affect the existence of this important tool of judicial review or the scope of its application. This concern should guide the administrative judge day by day and hour by hour when exercising the tool of judicial review, upon being required to decide in a specific case whether the act of the administrative authority satisfies the test of reasonableness. The judge should examine with care whether all the relevant considerations were considered, and no others; he should consider whether the authority arrived at a proper balance as a result of the relative weight given by it to each relevant consideration. There may be more than one balancing point. It may be placed at any point within the ‘margin of reasonableness’ given to the authority, and the breadth of this margin should be determined according to the case and its circumstances, in view of the specific issue under consideration.

The principle that examining the reasonableness of an administrative decision does not mean that judicial discretion replaces administrative discretion is a basic rule in administrative law, and it constitutes an essential element of the judicial review of administrative authorities. It coexists harmoniously with the other criteria for examining the reasonableness of administrative decisions.

Certain types of issue, according to their content, and the character of certain public authorities, according to their status and the nature of their responsibility in the government, may also affect the scope of the judicial discretion that should be exercised within the context of the judicial review of administrative authorities.

The correct and appropriate application of the aforesaid principles within the context of the ground of reasonableness does not create a real danger that the court will usurp the place of the administrative authority and do its work in a particular case. An unbalanced application of the aforesaid principles may lead to an undesirable result of this kind. Therefore the emphasis should be placed neither on the elimination of this tool of judicial review, nor on restricting its scope of application, as my colleague proposes. The emphasis should be placed on the proper methods of implementing and applying the long-established principles of administrative law — methods of implementation and application based on proper assessments and balances that are intended to ensure the rationality of administrative decisions, for the protection of both the individual and the public.

My response to my colleague — with regard to the crux of the difference of opinion between us — is therefore that we should not undermine an essential tool of judicial oversight of administrative authorities because of an inherent concern that it may be applied wrongly. The tool should be left as it is, with its full scope, and it should be protected. At the same time, care should be taken, day by day and hour by hour, to apply the principles on which it is founded correctly and properly. This will maintain the full protection currently given to the citizen in his relationship with the government, protect the status of the administrative authority against incursions into its sphere of activity, and coexist harmoniously with the whole constitutional system whose principles form the basis of Israeli democracy.

Conclusion

34. This court’s judicial intervention is restricted to examining the legal-normative reasonableness of the administrative action under examination. In this field, "the field of law", no ground was found for intervening in the appointment. This does not necessarily preclude a different approach to the issue under consideration from the extra-legal perspective of morality and public ethics, in which the considerations and the methods of striking a balance between them are not necessarily the same as the balance required by the law. Naturally, the individual and the public as a whole have the right to form their own ethical judgment regarding these matters, according to their own standards and moral principles.

35. I therefore propose that we deny the appeals.

 

Justice E. Arbel

The petitions before us concern ‘… imposing the rule of law on the government,’ inasmuch as   they concern  ‘public confidence in the actions of government authorities in general and of the supreme executive organ of state (the government) in particular’ (in the words of Justice Barak in HCJ 6163/92 Eisenberg v. Minister of Housing [1], at pp. 238, 242 {24, 30}; see also Justice H.H. Cohn, ‘The Qualifications of Public Officials,’ 2 Mishpat uMimshal (Law and Government) 265 (1994), where he discusses these remarks).

1.    The Prime Minister sought to appoint MK Haim Ramon as a minister in his government, in the capacity of Deputy Prime Minister. The petitions in this case were filed with the purpose of torpedoing the appointment. In the interim, MK Ramon was appointed to the post, after the Government, pursuant to s. 15 of the Basic Law: The Government  (hereafter, also: ‘the law’ or ‘the Basic Law’) notified the Knesset of the appointment and the Knesset approved it. The petitions therefore are concerned with cancelling the appointment of MK Ramon as a cabinet member.

I agree with the legal analysis and principles set out by my colleague Justice Proccaccia in her opinion. We all agree to the premise that under the Basic Law the Prime Minister has broad discretion in appointing ministers in his government, and that judicial review of this power of the prime minister should be exercised sparingly, carefully and with great restraint. In addition, I agree that there are several obstacles that stand in our way when we consider whether we should intervene in this decision of the prime minister: the limited scope of intervention in decisions of the prime minister relating to the formation of the government; the fact that, as required by law, the Knesset gave its approval to the Government notice regarding the appointment of MK Ramon as a minister; and the finding of the Magistrates Court that the act did not involve moral turpitude, when read together with s. 6(c) of the Basic Law. Notwithstanding, unlike my colleague, I am of the opinion that these three obstacles are countered by significant considerations that were not properly taken into account at the time the decision was made to appoint MK Ramon as a minister. These mainly concern the significance of the criminal conviction and the findings of the Magistrates Court in his case, the short period of time that has passed since the conviction and the nature and lofty status of the position to which he was appointed.

2.    The discretion given to the prime minister in decisions concerning the formation of the government is very broad and encompasses a wide range of considerations (HCJ 3094/93 Movement for Quality of  Government in Israel v. Government of Israel [9], at pp. 423, 427 {284, 290-291}; HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [12], at pp. 58-59; HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], at pp. 846-847 {345-348}, and the references cited there). Notwithstanding, these decisions should satisfy the criteria of judicial review, like all administrative decisions: they should satisfy the requirements of reasonableness, fairness, proportionality and good faith, and they should contain no arbitrariness or irrelevant considerations (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 840, 846-847 {336-337, 345-348; Movement for Quality Government in Israel v. Government of Israel [12], at p. 54, although there the question under discussion was the power to remove a minister from office; HCJ 4668/01 Sarid v. Prime Minister [28], at p. 281). The relevant considerations should be taken into account when making decisions. Ignoring a relevant consideration, giving inappropriate weight to a relevant consideration or striking an unreasonable balance between the various considerations may lead to the decision being found to lie outside the limits of the margin of reasonableness, with the result that it is unlawful (HCJ 1284/99 A v. Chief of General Staff [29], at pp. 68-69).

On appointing a person with a criminal conviction to be a cabinet member and public confidence

3.    The decision under review — a decision to appoint a cabinet member — is governed by s. 6 of the Basic Law, which provides in subsection (c):

‘Qualification of ministers

6. …

       (c) (1) A person shall not be appointed a minister if he has been convicted of an offence and sentenced to imprisonment, and on the date of the appointment seven years have not yet passed since the day on which he finished serving the sentence of imprisonment, or from the date of the judgment, whichever is the later, unless the chairman of the Central Elections Committee determined that the offence of which he was convicted does not, in the circumstances of the case, involve moral turpitude.’

 

(2) The chairman of the Central Elections Committee shall not make a determination as stated in paragraph (1) if the court has held according to law that the offence of which he was convicted does involve moral turpitude.’

According to the ‘minimum requirement’ provided in s. 6(c)(1) of the Basic Law, a conviction in itself is insufficient to prevent someone becoming a member of the government. It is also essential that a custodial sentence was handed down and that the period of time stipulated in the section, which is a kind of purification period, has not passed since the candidate finished serving the sentence or the judgment was given. Indeed, case law has held that the existence of a criminal record in itself does not preclude the appointment of a person to public office, nor does it rule out his competence for the position. It has also been held that ‘in the absence of statutory qualifications, case law qualifications should not be laid down…’ (HCJ 727/88 Awad v. Minister of Religious Affairs [30], at p. 491). This is certainly the case where the legislature has provided statutory qualifications, as was done with regard to the appointment of a minister. Notwithstanding, as my colleague also emphasized, the fact that the law has determined statutory qualifications does not mean that it is possible to appoint as a government minister anyone who is not disqualified by the ‘minimum requirement.’ The arrangement in s. 6(c) of the Basic Law does not exhaust the grounds for disqualifying a person from holding office as a cabinet member, and even when the basic disqualification does not apply, the authority making the appointment should decide the question of the appointment after exercising discretion that includes an examination of all the relevant considerations and striking a balance between them (Movement for Quality Government in Israel v. Prime Minister [11], at p. 867 {374 }; HCJ 4267/93 Amitai, Citizens for Efficient Government  v. Prime Minister [10], at pp. 457-458). In other words, a distinction should be made between the question of whether the minimum requirements laid down by the legislature are satisfied and an examination of the discretion that was exercised in the decision to make an appointment.

This is also relevant to our case. The petitions before us do not concern the question of the power of the prime minister to appoint a minister to his government, since this power exists as long as the candidate satisfies the statutory minimum requirements, and there is no dispute that no statutory disqualification exists in the case of MK Ramon, since he was not given a custodial sentence at all. The petitions address the question of the discretion exercised by the Prime Minister as the person who had the authority to decide to appoint MK Ramon to the Government in the capacity of Deputy Prime Minister. We are not dealing with a question of authority but with a question of the reasonableness of discretion.

4.    My colleague discussed the principles laid down by case law with regard to the discretion that should be exercised when considering the appointment of someone who has been convicted in a criminal trial to a senior public office and the weight that should be attached to this consideration, and I shall therefore refrain from discussing this matter fully except where I need to do so in order to state my opinion.

The fact that a person is a competent candidate for holding office as a cabinet member according to the statutory requirements does not rule out the possibility — and in my opinion the duty — to take into account his criminal record, together with other relevant considerations, when exercising discretion in making the decision with regard to the appointment (Eisenberg v. Minister of Housing [1], at pp. 256-257 {54-56}; Amitai, Citizens for Efficient Government v. Prime Minister [10], at p. 459; HCJ 194/93 Segev v. Minister of Foreign Affairs [31], at p. 60; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). A criminal conviction may not disqualify someone from being appointed to public office, but it is always a relevant consideration of paramount importance, since an appointment to public office of a person who has a criminal record has an effect on the functioning of the public authority, and the public’s attitude to it and confidence in it (Eisenberg v. Minister of Housing [1], at pp. 258 {57-58}; Segev v. Minister of Foreign Affairs [31], at p. 61).

This approach is based on the fundamental principle that the public authority is a public trustee (Eisenberg v. Minister of Housing [1], at pp. 256-257 { 54-56}; Movement for Quality Government in Israel v. Prime Minister [11], at pp. 843 {340-341}). The Government, the Prime Minister and the members of the Cabinet are public trustees. ‘They have nothing of their own, and everything that they have, they hold for the public’ (HCJ 1635/90 Jerezhevski v. Prime Minister [32], at pp. 839. 840; Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 461; regarding the duty of trust, see also HCJ 7074/93 Suissa v. Attorney General [33], at pp. 774-776). Trust is the cornerstone of the government’s ability to function. It plays an important role in forming the conceptual and practical outlook regarding the duties that the government owes to its citizens. The duty of trust that the government and each of its members owes to the public is an absolute condition for public confidence in the government, even though it alone is insufficient. Without public confidence in the government and its organs, a democracy cannot survive. A public figure is charged with the duty of trust in all his actions:

‘The duty of trust imposed on the prime minister and the members of the government is closely related to public confidence in the government. This is self-evident: a trustee who conducts himself like a trustee wins confidence, whereas a trustee who does not conduct himself like a trustee does not win confidence. The government needs confidence, not merely the confidence of the Knesset but also the confidence of the entire public. If a government conducts itself like trustees, the public will have confidence in the organs of state. If the government breaches that trust, the public will lose confidence in the organs of state, and in such a case the court will have its say’ (Movement for Quality Government in Israel v. Prime Minister [11], at p. 902 {420).).

The duty of trust is not discharged merely by means of decisions on questions of policy, initiatives, planning and action, but also by preserving a proper and unsullied image of public office and those who hold the highest offices.

5.    As I have said, when making a decision regarding the formation of the government, the prime minister is obliged to consider all of the relevant considerations, including the candidate’s criminal record, to give each of them its proper weight in the circumstances of the case and to strike a balance between them that is consistent with the fundamental principles of our legal system and their relative importance from the viewpoint of the values of society (Segev v. Minister of Foreign Affairs [31], at p. 61; Eisenberg v. Minister of Housing [1], at p. 263; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

A decision to appoint someone who has a criminal record to public office requires a balance between two sets of considerations: the first set of considerations concerns the principle of repentance. As a rule, a criminal conviction should not become a mark of Cain that the convicted person carries eternally on his forehead; he should not be punished for his crime after he has ‘paid his debt to society’ and amended his ways (see the remarks of Justice Dorner in Sarid v. Prime Minister [28], at p. 286). It is in the interest of both the individual and the public to allow even someone who has been convicted to start afresh. The second set of considerations concerns the major public interest in having an untarnished civil service, which enjoys the confidence of the public. The concept of ‘public confidence’ has become a widely-used expression, but it is precisely for this reason that we need to understand that it is not a theoretical concept, or even worse, merely a cliché. ‘Without trust the State authorities cannot function’ (HCJ 428/86 Barzilai v. Government of Israel [34], at p. 622 {104}). Public confidence is essential if the government is to be able to govern in practice. It is the cornerstone of the proper functioning of the civil service and the existence of a healthy society:

‘… without public confidence in public authorities, the authorities will be an empty vessel. Public confidence is the foundation of public authorities, and it enables them to carry out their function. The appointment of someone with a criminal past — especially a serious criminal past like someone who committed an offence involving moral turpitude — harms the essential interests of the civil service. It undermines the proper performance of its function. It undermines the moral and personal authority of the office holder and his ability to convince and lead. It undermines the confidence that the general public has in the organs of government’ (Eisenberg v. Minister of Housing [1], at p. 261 {64}).

Moreover —

‘The way in which the public regards the civil service, the confidence that the public has in the propriety of its actions and the integrity of its employees are prerequisites for the existence of a proper government…’ (CrimA 121/88 State of Israel v. Darwish [35], at p. 692).

The public’s confidence in the government and its members is derived to a large degree from their conduct and the integrity that can be seen in that conduct. For all of the reasons that I have discussed above, public confidence in its leaders should not be taken lightly. Public leaders are the standard-bearers who lead the nation; they are expected to act as an example and a role-model for the whole public. Public confidence cannot exist when someone who has recently been tainted is found in the rank and file of the civil service and government — and especially in senior positions. Moreover, civil servants who serve under members of the government and under the most senior public officials take their example from them; their conduct contributes to and affects the shaping of basic outlooks and accepted modes of conduct in the civil service, as well as the ethos of the whole civil service (Suissa v. Attorney General [33], at p. 781).

The disqualification in s. 6(c) of the Basic Law also reflects the balance between the two sets of considerations that we mentioned — between the principle of repentance, on the one hand, and the interest of preserving the integrity of the civil service and its officials, and public confidence in them, on the other (Sarid v. Prime Minister [28], at p. 287). But, as has been made clear, this balance does not exempt the person in authority from exercising discretion in each case, even when the disqualification does not apply to the candidate.

6.    The weight of the consideration concerning a candidate’s criminal record for holding office in public service vis-à-vis the other relevant considerations is not fixed or static. It varies from case to case according to the circumstances, inter alia in view of the nature of the criminal record and the character of the office under discussion:

‘Someone who committed an offence in his childhood cannot be compared with someone who committed an offence as an adult; someone who committed one offence cannot be compared with someone who committed many offences; someone who committed a minor offence cannot be compared with someone who committed a serious offence; someone who committed an offence in mitigating circumstances cannot be compared with someone who committed an offence in aggravated circumstances; someone who committed an offence and expressed regret cannot be compared with someone who committed an offence and did not express any regret for it; someone who committed a “technical” offence cannot be compared with someone who committed an offence involving moral turpitude; someone who committed an offence many years ago cannot be compared with someone who committed an offence only recently; someone who committed an offence in order to further his own agenda cannot be compared with someone who committed an offence in the service of the State’ (Eisenberg v. Minister of Housing [1], at p. 261 {64-65}).

It has also been said:

‘… the type of office that the civil servant is supposed to hold also affects the weight of the criminal past in the holding of that office. A minor position cannot be compared with a senior position; a position in which one has no contact with the public cannot be compared with one where there is contact with the public; a position not involving the control, supervision, guidance and training of others cannot be compared with one involving authority over others and responsibility for discipline. Someone who holds the office of a follower cannot be compared with someone who holds the office of a leader; an office that in essence does not make special ethical demands on its holder and on others cannot be compared with an office that is entirely devoted to encouraging a high ethical standard’ (Eisenberg v. Minister of Housing [1], at p. 262 {65}; see also Segev v. Minister of Foreign Affairs [31], at p. 61; HCJ 5562/07 Schussheim v. Minister of Public Security [8]).

Another consideration that has weight when appointing someone with a criminal record to public office is the degree to which the candidate is uniquely qualified for holding that public office. Thus it is customary to distinguish between a candidate who is one of many and a candidate who is unique and may in certain exceptional circumstances be the only person for the job. A distinction should also be made between an emergency, which requires the recruitment even of someone with a criminal record, and an everyday act of the civil administration that as a rule should be done by upright workers (Eisenberg v. Minister of Housing [1], at p. 262 {65}).

I should re-emphasize that although my opinion focuses on the consideration relating to a candidate’s criminal conviction and the findings of the court in his case — since these were not, in my opinion, given proper weight in this case — this is not the only consideration, and the review of the reasonableness of the decision should assume that the person making the appointment balanced this consideration against other considerations, such as the special abilities of the candidate, how suitable he is for the position, the tasks faced by the organization to which he is being appointed, etc. (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 870-871 {379}.

7.    Summing up this point, according to the principles laid down in Eisenberg v. Minister of Housing [1], usually the appointment of someone who committed a serious criminal offence in the past to a senior position in public service is unreasonable. Notwithstanding, this is not a sweeping rule of disqualification from every possible senior position in the public service. Like every administrative decision, this decision should also be based on a proper balance between the various relevant considerations, which should each be given the proper relative weight in the circumstances of the case (Sarid v. Prime Minister [28], at p. 280). But I should make it clear that in the case before us we are not dealing with a conviction for one of the most serious offences. I shall discuss the significance of this below.

The criminal trial that is the background to this case

8.    Was proper weight given to the criminal trial and the judgment relating to MK Ramon when the decision was made to appoint him a cabinet minister and Deputy Prime Minister? In order to answer this question, let us first consider the details of the conviction under discussion, since the petitioners’ claim is that it is because of these that the appointment is unreasonable.

MK Ramon was brought to trial and convicted of an offence of an indecent act without consent, under s. 348(c) of the Penal Law, 5737-1977 (hereafter: the Penal Law), in that, when he was Minister of Justice, he kissed and stuck his tongue into the mouth of the complainant, an IDF officer, who was working for the military attaché in the Prime Minister’s office. The event took place only a short time before MK Ramon went into a cabinet meeting that discussed the kidnapping of two IDF soldiers in the north and at the end of that meeting a decision was taken to go to war (the Second Lebanese War).

In the criminal trial, MK Ramon admitted that the kiss did indeed take place, but he claimed that the complainant was the one who initiated it and that he only responded to her. The Tel-Aviv – Jaffa Magistrates Court (the honourable Judges Kochan, Beeri and Shirizli) convicted him after it held that it regarded the complainant’s credibility as unimpeachable. The court held that MK Ramon’s version of events was mostly consistent and it discussed the emotion he displayed when he testified in the witness box, when he came close to tears because of the occasion and the circumstances. Notwithstanding, the court found that his version of events did not pass the test of logic and reasonableness, since it ‘… did not have a strong foundation, in some parts it was not supported by other testimonies and in other parts it was even in conflict with the evidence…’ (para. 26 of the verdict).

The findings of the Magistrates Court regarding MK Ramon are not flattering ones. Thus, for example, it was held that ‘in our opinion, the defendant’s testimony under cross-examination was a clear and characteristic example of how he tried to distance himself from anything that might implicate him, at the cost of not telling the truth, while at the same time he had no hesitation in besmirching the complainant’ (para. 26(c) of the verdict). His testimony was defined by ‘a distortion and misrepresentation of the truth,’ and the court also found that MK Ramon ‘… was not precise with regard to the facts, to say the least’ (paras. 28-29 of the verdict). In summary the court held:

‘… After reviewing and examining all the evidence, we found that the complainant’s statements are completely true. By contrast, we found that the defendant did not stick to the truth, tried to divert the blame from himself and direct it elsewhere, minimized his actions and his responsibility, and at the same time exaggerated the complainant’s role, distorted and misrepresented the facts in a sophisticated and insincere manner’ (para. 94 of the verdict).

Hardly a flattering description!

9.    In the sentence, the Magistrates Court considered the application made by MK Ramon’s counsel to cancel his conviction. The court discussed MK Ramon’s public standing, his extensive public activity, the distress and pain he suffered ‘as a result of the loss of the public career that was interrupted,’ as well as the considerable price that he paid because of the incident and the personal and professional damage that he was likely to suffer if the conviction stood. The court took into account the fact that this was an isolated incident, ‘which did not show that we are dealing with a sex offender or someone who has developed a criminal way of conducting himself,’ as well as the fact that the act was not one of the more serious sex offences, and it would appear that the lesson had been learnt. Notwithstanding, it was held that the higher the public standing of the defendant, the higher the standards and norms of behaviour that were expected of him. The court also took into account the injury to the complainant, the circumstances in which it was caused and the fact that the regret expressed by MK Ramon for the act at a late stage of the trial was inconsistent with the manner in which he conducted his defence. All of the considerations led the court to the conclusion that the public interest should be preferred to MK Ramon’s personal interest, since ‘cancelling the conviction in this case would obscure the message and blur the criminal nature of the act.’

The court also considered    the prosecution’s application to determine that the circumstances in which the offence was committed involved moral turpitude, but it denied it and held that:

‘… the overall circumstances in which the offence was committed do not justify a determination that the offence involved moral turpitude. The isolated and unplanned act was committed by the defendant following a meaningless conversation, in an emotional state of indifference. The act lasted two to three seconds and ended immediately.’

The court pointed out that ‘The defendant’s conviction is a punishment in itself’ and went on to say:

‘We are aware of the mitigating circumstances… and these have led us to the opinion that the defendant’s sentence should be minimal, so that the future harm that he will suffer will stand in due proportion to the nature of the offence and the circumstances in which it was committed.’

The court therefore sentenced the defendant to 120 hours of community service and ordered him to pay compensation to the complainant, while stating expressly that in passing sentence it had taken into account the provisions of s. 42A(a) of the Basic Law: the Knesset and had tailored the sentence to what is stated in that section. It should be explained that this section concerns the disqualification from the Knesset of any member who has been convicted in a final judgment of a criminal offence that has been held to involve moral turpitude.

Sentencing considerations, judicial review considerations and the issue of moral turpitude

10. As I have said, no one disputes the fact that MK Ramon satisfies the minimum requirements in s. 6(c) of the Basic Law, since he was not given a custodial sentence. He is therefore competent to hold office as a minister in the Israeli government. As I have explained, the question in this case is a different one, namely, did the decision to appoint him as a cabinet member — and in this case as Deputy Prime Minister — at the present time, fall within the scope of the margin of reasonableness?

MK Ramon was convicted of an offence that is one of the less serious sex offences. It was an act that does indeed appear to be an isolated incident that only lasted for several seconds. In view of all the circumstances, even though the conviction relates to a sex offence, I too share the opinion of the Magistrates Court that he should not be regarded as a sex offender. These considerations had a major effect on the sentence that the court handed down to MK Ramon and on the finding that the act did not involve moral turpitude.

Notwithstanding, these sentencing considerations, and even those that determine whether an act involves moral turpitude, are not identical to the considerations that should be taken into account when examining the reasonableness of appointing someone who has been convicted in a criminal trial to public office. The sentence is dictated by penal considerations, such as retribution, rehabilitation and deterrence of the individual and the public. The balance between these, when it is made against the background of the personal circumstances of the defendant and the circumstances in which the offence was committed, determines the sentence. Even if the sentence takes the interests of society into account, even if the court considers the message that may be conveyed by handing down a particular sentence to a convicted defendant, the principle of individual justice still lies at the heart of the sentencing decision. The individual who has been convicted is the focus of the decision, not the public or the public interest. Regarding the issue of moral turpitude, it has been held many times that the expression ‘offence involving moral turpitude’ does not address the elements of the offence of which the defendant was convicted but a serious moral flaw that was involved in its commission in view of the purpose of the legislation that speaks of that ‘offence involving moral turpitude’ (HCJ 11243/02 Feiglin v. Chairman of Election Committee [36], at p. 160; HCJ 251/88 Oda v. Head of Jaljulia Local Council [37], at p. 839; HCJ 103/96 Cohen v. Attorney General [38], at p. 326; R. Gavison, ‘An Offence Involving Moral Turpitude as Disqualification for Public Office,’ 1 Hebrew Univ. L. Rev. (Mishpatim) 176 (1968)). Our concern is with an ethical evaluation of the nature of the act:

‘ “Moral turpitude” accompanying an offence gives it a negative aspect that goes beyond the mere dimension of breaking the law. This is a concept that contains a negative moral-ethical judgment, a kind of moral stigma, which derives from ethical outlooks and moral criteria that are accepted by society.

This is a multi-faceted concept that takes on different forms when it is applied to the character of a specific offence and its circumstances, and the special context in which it is being considered…’ (per Justice Procaccia in Feiglin v. Chairman of Election Committee [36], at p. 162).

A decision as to whether an offence involves moral turpitude is made with reference to whether the public regards the offence as one that carries with it a stigma, which affects the ability of the person who was convicted to serve the public. The court deciding the question of moral turpitude is aware that from the viewpoint of the defendant its decision is likely to act as an exclusion from, or a readmission into, public life and public service. The focus of the consideration is the nature of the act against the background of the circumstances in which it was committed and against the background of society’s values and outlooks.

Whereas an offence involving moral turpitude emphasizes the immoral element in its commission, a criminal offence that may make it unreasonable to appoint its perpetrator to public office does not necessarily need to have an immoral aspect (Eisenberg v. Minister of Housing [1], at p. 266 {71}). Moreover, unlike the discretion exercised when sentencing someone and determining whether the offence involves moral turpitude, examining the reasonableness of discretion in a decision to appoint someone to office is different for the reason that it concerns judicial review of administrative discretion. Judicial review is carried out ‘… from the perspective of the fundamental principles of the legal system, as they are reflected in legislation and case law, and from the perspective of the fundamental values and norms of society’ (A v. Chief of General Staff [29], at p. 69). The offence and the circumstances in which it was committed are only one of many considerations that the person making an appointment should consider and that judicial review should take into account. Moreover, as I have said, in order to determine that an appointment to public office of someone convicted in a criminal trial is unreasonable, it is not essential that the act shows the person who committed it to be tainted by a moral stigma or moral turpitude. Sometimes it is sufficient that the nature of the position and the need to preserve public confidence in it do not allow someone convicted of a particular offence to hold that office. It follows that the fact that the court held that an act does not involve moral turpitude cannot rule out a finding that an appointment is unreasonable because of the conviction.

Everything said hitherto was merely intended to say that the mitigating circumstances discussed by the Magistrates Court in the sentence, as well as the finding that the act did not involve moral turpitude, cannot in themselves decide the issue in this case.

11. Admittedly, the act was one of the less serious sex offences and of short duration. It was an isolated event and the lesson has been learned. But all this cannot obscure and blur the fact that MK Ramon was convicted in a criminal trial. He no longer enjoys the presumption of innocence. He is not one of those persons who fell under the shadow of a criminal investigation that was opened against them but were never charged. At the end of a trial, he was found guilty (see and cf. Movement for Quality Government in Israel v. Government of Israel [12], at p. 57). As a rule, in such circumstances, when we are dealing with someone who has been convicted or has made a confession, the proper weight that should be attached to the question of public confidence is greater than the weight that it would be, were we speaking of someone who has merely been indicted and who protests his innocence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at pp. 462, 467-468). The premise, therefore, is that when exercising discretion, the consideration of public confidence should be given considerable weight in the circumstances of the case. Was it indeed given the proper weight?

The time factor

12. Only a short period — several months — passed between the time when MK was convicted and served his sentence and his appointment to the position of Deputy Prime Minister. The time that passes from the conviction and serving the sentence until the appointment is relevant when considering the reasonableness of a decision to appoint someone to public office. The more time that has passed since the conviction and serving the sentence, the greater the tendency to prefer the considerations of repentance and rehabilitation and to think that the appointment will not undermine public confidence in public officials, and vice versa. The period of time that should pass from the time when the offence was committed and the sentence was served until the appointment varies according to the circumstances: ‘Certainly it is not measured in a few years. But decades also should not be required. The pendulum of time will swing between these two extremes, and it will stop in accordance with the circumstances of time and place’ (Eisenberg v. Minister of Housing [1], at p. 266 {72}; A v. Chief of General Staff [29], at pp. 73-74). In our case, only a few months passed from the time that sentence was passed on MK Ramon until he was appointed a minister in the Israeli Government. The relative lack of seriousness of the offence of which he was convicted cannot instantly efface the stigma inherent in the conviction. The appointment to the position of cabinet minister in the circumstances of the case, before the ink has even dried on the verdict and the sentence, and before the air has cleared, reflects an internalization, or at least an acceptance, of improper norms of conduct that should not be regarded as deserving of public forgiveness, as if they were mere acts of youthful impudence. I accept that the nature of the offence and the circumstances in which it was committed, as well as the fact that it is not one of the most serious offences, do not mean that decades should pass before MK Ramon’s appointment to a senior public office will be appropriate. But it is not right that only a few months pass before he returns to a senior position in public service.

The seniority of the position and the rule of law

13. The criminal conviction and the fact that the appointment decision was made a very short time after MK Ramon completed serving his sentence represent in my opinion the main difficulty in the discretion that was exercised in the appointment decision. Insufficient weight was given to the harm that the appointment would cause to public confidence in the Government and its members. An additional consideration that in my opinion was not given proper weight concerns the seniority of the position to which MK Ramon was appointed.

As I have said, in this case, where the conviction is a very recent one, considerable weight should attach to the question of public confidence. What is the picture that is conveyed to the public? Let us return to the beginning of the affair. When the police investigation against him began, MK Ramon suspended himself from the position of Minister of Justice. In doing so, it should be said, he acted properly. MK Ramon’s job was ‘kept for him’ and two ministers held office in his stead as Ministers of Justice on a temporary basis until it was known how his trial would end. A short time after MK Ramon finished serving his sentence, he returned to the cabinet, this time in a more senior position of Deputy Prime Minister. It should be remembered that the importance of the position requires considerable weight to be given to the consideration of preserving public confidence (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 471).

As I have said, the more important the office, the greater the weight of the consideration concerning the criminal record of the candidate. It has been held in the past that the importance of the position is not determined merely on the basis of formal tests such as seniority and job description, but also in accordance with the extent to which the public identifies the office holder with public service and the damage that will be caused to public confidence in public service if the appointment takes place (Eisenberg v. Minister of Housing [1], at p. 267 {72}). The importance of the position to which MK Ramon was appointed, namely Deputy Prime Minister, requires us to consider that this is a position that involves representation of the whole government. The role of Deputy Prime Minister, even though it is not defined in legislation, is a very senior position. Whoever holds this position represents the government and the state, and therefore very careful consideration should be given to the question of public confidence in view of his appointment to hold the post and to represent the whole government. This is a position that requires a special degree of confidence that the public will feel towards the person holding the position and towards the whole institution to which he belongs and which he represents. In such circumstances, a distinction should be made between the possibility of allowing someone who has been convicted to rehabilitate himself and to return to live a normal life after he has completed his sentence, and between placing him ‘… at the top of the administrative pyramid’ (Eisenberg v. Minister of Housing [1], at p. 266 {69}).

The short period of time and the appointment to such a senior position both convey a message to the public that the criminal trial is unimportant, and that a criminal conviction has no significance in the public sphere.

14. The findings of the Magistrates Court in MK Ramon’s case are serious, and as stated they include findings with regard to distortion and misrepresentation of the truth, not telling the truth and conduct intended to besmirch the complainant. Indeed, not only are the conviction and the judicial findings regarding the offence important, but so too is the defendant’s conduct during the trial. The fact that someone who was convicted after such serious findings were reached in his case nonetheless returned to public office immediately after he finished serving his sentence and was even given a more senior and more prestigious office is unreasonable. It reflects a normative approach that it is hard to accept. Prima facie, it does not take into account the need to maintain public confidence in public service and its integrity. A decision of an authority to appoint someone to public office while treating a criminal conviction, de facto, as insignificant, as if it had never happened or was carried away by a gust of wind, cannot be regarded as a decision that gave proper weight to the interest of maintaining public confidence in public office. The requirement that the more senior the office of a public figure, the stricter the standard of conduct that he is expected to follow, was drained of all significance in the case before us. Such a decision cannot be regarded as a decision based on a commitment to the rule of law. The following remarks should be taken to heart by the general public, and by authorities and persons in charge of them:

‘… The rule of law is not created ex nihilo, nor is it something intangible. It should be reflected in a tangible and daily observance of binding normative arrangements and in their de facto application to everyone, in the realization of basic freedoms, in guaranteeing equality and in creating a general atmosphere of trust and security. The rule of law, public welfare and the national interest are not contradictory or conflicting concepts. They are intertwined, interrelated and interdependent.

The court is specially charged with the practical realization of these expectations, but every state authority has the duty to act to realize these goals.

A sound administration is inconceivable without care being taken to uphold the rule of law, for it is this that protects us against anarchy and guarantees the stability of the system of government. This order is the basis for the existence of political and social frameworks and the safeguarding of human rights, none of which can exist in an atmosphere of lawlessness’ (Barzilai v. Government of Israel [34], at p. 554-555 {53}).

The message that the appointment conveys is that even if a criminal trial takes place, and even if it ends in a conviction, it may be said, possibly by way of hyperbole, that no one is accountable. The criminal stain that MK Ramon carries at this time is capable of tarnishing the whole Government, and this was not given proper weight. The quick appointment to a senior position, only a short time after the criminal trial ended and the sentence was served, sends a message to the public that there are no values, that one organ of Government has no respect for the work of the others, nor does it act in concert with them, even though all of these are essential for the existence of a democracy.

The nature of the offence and the effect it has on the public

15. Moreover, an additional consideration that should have been considered concerns the nature of the offence of which MK Ramon was convicted. The offence of an indecent act is relatively low on the scale of sexual offences, in view of all the circumstances. Notwithstanding, this does not diminish the seriousness of the act. As the Magistrates Court said: ‘… An offence was committed which, in other circumstances, might have been considered an offence that was not especially serious, but in view of all of the circumstances in which the offence was committed, it becomes more serious and acquires a dimension that has considerable public significance’ (para. 91 of the verdict).

An offence of an indecent act involves not only an injury to the person but also to the dignity of the victim of the offence as a human being, and to the victim’s autonomy as an individual, two things that are interrelated and closely intertwined. The existence of more serious sex offences in the statute books does not diminish the injury to dignity, nor to the autonomy of the individual:

‘Every woman and man is entitled to write his or her life’s story as he or she wishes and chooses, as long as no one encroaches upon the domain of another. This is the autonomy of free will. When a person is compelled to follow a path that he did not choose to follow, the autonomy of free will is undermined. Indeed, it is our fate — the fate of every man — that we constantly act or refrain from acting for reasons other than that it is our own free will, and in this way the autonomy of our will is found wanting. But when the injury to the autonomy of free will is a major one, then the law will intervene and have its say’ (per Justice Cheshin in CrimA 115/00 Taiev v. State of Israel [39], at pp. 329-330, even though that case concerned more serious offences).

The protection of the dignity and person of women is a social interest. No civilized society exists in which the dignity of women — or the dignity of any other person — is trampled without a murmur or without any proper response. The protection of society’s values, of which the value of human dignity is one, is not effected merely by prosecuting criminal trials and holding defendants accountable. It should be expressed wherever such expression is required by the nature of the matter. In our case, what is the message sent to the whole public — men, women and children — when they see that a cabinet minister was convicted of a sex offence that he committed against a young woman officer and then, within a short time, albeit after serving a sentence, he returns to a position that is at least equal to the one he held before his conviction, if not a more important one? It is a message that not only makes the criminal trial and the judicial ruling meaningless, but also erodes the values of respecting the person, dignity and wishes of women, especially in situations involving a disparity of forces (see also in this regard the remarks of Justice Strasberg-Cohen in A v. Chief of General Staff [29], at p. 76). It is a message that elected public officials do not need to be held to the high standard of ethics and the high standard of conduct that might be expected of them as persons who are supposed to serve as examples and models for the whole public (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470; Cohen v. Attorney General [38], at p. 326). How can the appointment be reconciled with the need to uproot norms that have no place in a civilized society? What message is sent to potential complainants that see the trials and tribulations endured by the complainant, who suffered denials and slanders, who underwent cross-examination ‘in a manner deserving of our respect’ (para. 10(a) of the verdict), who is found by the court to be a witness whose veracity is undoubted, and yet after her testimony is accepted, the conviction is reduced to nothingness?

16. I have not overlooked the fact that in sentencing MK Ramon the Magistrates Court expressly left open the possibility of his returning to the Knesset. But the Government went much further. It did not merely re-establish the status quo ante but it completely disregarded the explicit verdict and promoted someone who was recently convicted. The sentence handed down in the Magistrates Court sought to balance between the seriousness of the acts and the conduct of MK Ramon during the trial, as described above, and between the nature of the act and the circumstances in which it was committed. The Magistrates Court sought to achieve this balance by leaving the conviction as it stood, while imposing a light sentence and rejecting the proposition that the offence involved moral turpitude. The court expressly stated in its verdict that this balance was based on a premise that the MK Ramon suffered considerably as a result of the criminal trial and was likely to continue to do so as a result of the court refusing to cancel the conviction. Notwithstanding, the balance that the court struck does not, as I have said, make the exercise of discretion redundant when considering the appointment of MK Ramon to the cabinet.

I should emphasize that the decision in the petitions before us does not concern the competence of MK Ramon to serve as a member of the Knesset, which would give rise to the difficulty of undermining the will of the electorate. Intervening in a decision to appoint someone to the position of cabinet minister does not give rise to a similar difficulty, since it concerns a decision of the person in charge of the executive branch of government, in judicial review of his discretion, and it does not undermine the will of the electorate. Indeed, in the past when this court has considered petitions that sought to cancel the appointment of MK Raphael Pinchasi as chairman of one of the Knesset committees, it was held: ‘A distinction should therefore be made between the competence of a member of the Knesset to carry out his duties as a member of the Knesset and his competent to act in contexts outside the Knesset, such as in the context of the executive branch’ (HCJ 7367/97 Movement for Quality Government in Israel v. Attorney General [40], at p. 557; see also H. Cohn, ‘The Competence of Public Servants,’ Selected Writings (2001), at pp. 391, 402). This is also the position in this case.

I should clarify that I do not belittle the damage and mental anguish that MK Ramon certainly suffered as a result of being prosecuted in the criminal trial. Nor do I ignore the fact that the sentence was served in full or that the offence of which he was convicted was a relatively light one. But it is inconceivable that in the case of a public figure, who is expected ‘… to serve as an example to the people, to be loyal to the people and deserving of the trust that the people place in him’ (Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 470), where the damage that he suffered to his standing was a mitigating factor in his sentence, the outcome should be as it is in this case.

17. It should be emphasized that nothing in the aforesaid casts even the smallest doubt on the professional experience and abilities of MK Ramon to carry out the role given to him by the Prime Minister. In this respect, the offence of which he was convicted does not, in my opinion, have any effect or ramification on his ability to carry out this office. I am not questioning at all the additional considerations that were taken into account, and my assumption is that the Prime Minister, as the person who made the appointment, made the decision regarding the appointment after considering the tasks that confronted the Government and understanding the talents required of the ministers serving in the Government for the purpose of carrying out those tasks (see also Schussheim v. Minister of Public Security [8], at p. 846). I am prepared to accept that MK Ramon has the appropriate and proper qualifications and experience for the position. Nonetheless, it is well-known that disqualifying a candidate from holding public office does not depend only upon a connection between his criminal record and its effect on his professional ability to carry out the job for which he is a candidate, but also on his ethical and moral capacity to carry it out, unless a ‘real and urgent’ state of emergency makes it essential to appoint him as the only candidate (Sarid v. Prime Minister [28], at p. 280). In our case no such argument was made, and that is sufficient to prevent the conviction from being denied its proper weight.

A determination that a government decision to appoint a minister suffers from unreasonableness that goes to the heart of the matter creates a tension between the world of law and the world of politics, between two separate worlds that are governed by different sets of laws and different game rules. ‘The law is based, to a large extent, on ethics; democracy is based, first and foremost, on representation’ (per Justice Zamir in Movement for Quality Government in Israel v. Government of Israel [12], at p. 63). When deciding petitions concerning the formation of the government, the court has the task of carefully balancing, with an approach of maximum restraint, the need to allow the public to be represented as it wishes by someone who was successful in an election and the need to preserve public confidence in government institutions and the proper moral standards of elected representatives (see CSA 4123/95 Or v. State of Israel [4], at p. 191; Movement for Quality in Government in Israel v. Government of Israel [9], at p. 429 {293-294}; HCJ 8192/04 Movement for Quality Government in Israel v. Prime Minister [41], at p. 186).

This court has already, on several occasions in the past, considered the relationship between law and ethics, and between legal norms and ‘government culture’ norms (Movement for Quality Government in Israel v. Prime Minister [11], at pp. 917-918 {440}; Movement for Quality Government in Israel v. Prime Minister [41], at pp. 157-158, 176-177). Petitions concerning the formation of the government — the appointment of a minister or his removal from office — often give rise to questions concerning the location of the border between the ethical sphere and the legal sphere, which decisions are determined by government culture norms and which are also determined by legal norms. The remarks made by Justice Cheshin in another case are pertinent in this regard:

‘… We should be always mindful of the fact that we are speaking of a government culture that is steeped in law — in norms from the field of criminal law — and the question we should ask ourselves is whether in this sphere that contains both government and law, the weight of law is so minimal that we will shrug it off and continue on our way without law. Surely allowing the demands of law to recede… is tantamount to giving up norms to which we, as people of law, regard ourselves as being committed, and which, moreover, we regard ourselves as obliged to disseminate and impose on those around us?’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 176).

He also held:

‘When we realize that the culture of “it simply isn’t done” has been undermined and that our standards have fallen very low, should the law not make itself clearly heard? Surely its voice should not sound merely like a piccolo, “clear and pure, but drowned out by the tumult?” ’ (ibid. [41], at p. 177).

President Barak also discussed the relationship between the rules of ethics and the rules of law and the proper place of the principle of reasonableness in regard to them, when he said:

‘One of the ways in which the rules of ethics become rules of law, in so far as the public authority is concerned, is through the value of reasonableness. An unethical act may, in certain conditions, be an unreasonable act. Indeed, I am of the opinion that a comprehensive application of the principle of reasonableness to all the acts of the executive branch — including acts that harm the integrity of the administration — is proper. Of course, in countries where the government exercises self-restraint, it is possible that there is no need to develop the principle of reasonableness and apply it to the field of governmental ethics. But in countries where this self-restraint is lacking — and the concept of “it simply isn’t done” is not sufficiently developed — the principle of reasonableness and the concept of the margin of reasonableness should be extended to all government acts’ (A. Barak, The Judge in a Democracy (2004), at p. 369).

There is no statutory restriction upon the appointment of MK Ramon, but it would appear that the appointment, in the circumstances described above, undermines those principles that support the rule of law, are essential to the existence of a civilized society, and ensure that public service enjoys and deserves public confidence. In such circumstances, I am of the opinion that this court has no alternative but to intervene in the appointment decision, in order to protect the norms to which our legal system is committed.

Postscript

19. I have read the opinion of my colleague Justice A. Grunis and the remarks of my colleague Justice Procaccia in response thereto. I agree in full with her remarks concerning the place and status of the ground of reasonableness in our law, and I would like add to them a few brief remarks:

a.     The premise of judicial review is the principle of the separation of powers. The separation of powers is essential for the existence of democracy. At the same time, the separation of powers does not imply that there is no connection between the branches of government. On the contrary, there is a connection between them: ‘… there is a reciprocal relationship between the different powers, so that each power checks and balances the other powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [42], at p. 786; see also Barak, The Judge in a Democracy, at pp. 103-105). One of the expressions of the separations of powers lies in the principle, which has been mentioned innumerable times in the case law of this court, that the court will not intervene in a decision of the authority as long as it falls within the margin of reasonableness. 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. Notwithstanding, it is obvious in my opinion that the principle of the separation of powers and the respect that each power shows the others — which also lie at the heart of my opinion — cannot render the function that the power has been authorized to exercise devoid of any real content. In our case, the rule of very narrow intervention in the decisions of the executive branch and the legislative branch cannot result in the decisions of those branches having a de facto immunity against judicial review. Moreover, where the court does not exercise its judicial review, it errs with regard to the principle of the separation of powers, the checks and balances that the powers owe to one other. In my opinion, restricting judicial review to various forms of procedural failures and questions of authority presents a real danger to the future of Israeli society and the proper functioning of the organs of government, since it leaves the court with a function that is almost totally technical and rules out real judicial review in which the court protects and promotes the values of society. In my opinion, restricting judicial review by an almost complete rejection of the ground of reasonableness leaves the public exposed to danger, since it is the public that will pay the price of those decisions that fall outside the margin of reasonableness.

b.     The difficulties raised by my colleague Justice Grunis in his opinion are indeed real ones, but as my colleague Justice Procaccia also says, the solution to them does not require complete or almost complete abandonment of the use of the ground of reasonableness, only great caution and maximum restraint that the court should adopt when exercising judicial review. Particularly in the case before us, I am of the opinion that the difficulty discussed by my colleague — the court being no better placed than any citizen of the state to assess the reasonableness of the decision — does not really arise. The reason for this is that the court has expertise with regard to assessing the weight of a criminal conviction, the time that has passed from the conviction and the serving of the sentence until the appointment, and the other considerations that I have discussed. No one can assess their weight as well the court. Moreover, even if it is true that determining the unreasonableness of the decision solely from the outcome that was reached — an outcome-based decision — gives rise to considerable difficulty, in the case before us the weight given to these considerations in making the decision can be seen not only from the outcome but also from the proceedings of the Knesset and all of the material presented to us. I should re-emphasize that ultimately I saw no reason to reconsider the approval given by the Knesset to the Government’s notice of the appointment, since this has been discussed in detail in the opinion of my colleague Justice Procaccia, it is not the subject of dispute in my opinion and I only saw fit to address the issues on which my opinion is based.

My remarks above address only a very small part of my position regarding the place and status of the ground of reasonableness as a tool of judicial review. The matter will, no doubt, arise in the future, and when it does, I shall discuss it in full.

Summary

20. The government’s ability to rule is based not only on the confidence expressed in it by elected representatives. The government’s ability to rule also depends ultimately on public confidence in it. As such, even if we assume that political and parliamentary considerations have considerable weight in determining the composition of the government, an essential condition for its proper functioning is a proper standard of principles, values and morality. When the court is called upon to exercise judicial review with regard to a decision that concerns the composition of the government, it should be guided, not only by the principles and rules that my colleague discussed, but also by the values and principles that society cherishes. Even in such a case it needs to strike a balance, which is merely a balance between different considerations:

‘When striking this balance, idealism that has no normative basis should be avoided. The judge does not aspire to the lofty and the pure that are unattainable. He does not contemplate an ideal society that has no real existence and cannot be achieved. He does not rely upon a perception of man as an angel. At the same time, the court should avoid a pragmatism that is based on market morality. The judge does not reflect the distorted views that are widespread in society. He does not direct his gaze at a sick society that is sinking into the abyss. He does not rely on a perspective that man is an animal… He takes current reality into account, but he does not regard it as the whole picture. The fact that “everyone does it” is not a criterion for the proper conduct of a civil servant. The fact that it is customary, commonplace and normal to act in a certain way does not make it the proper way to act…’ (Suissa v. Attorney General [33], at p. 781; see also H. Cohn, ‘Thoughts on Integrity,’ Selected Writings 417 (2001), at p. 451).

These remarks that were made in a different context are also apt in our case.

I have not overlooked the public debate surrounding the appointment in the prevailing circumstances and following the differences of opinion that surrounded the decision to bring MK Ramon to trial. Notwithstanding, judicial determinations are made in accordance with legal criteria, according to the basic principles of the State of Israel as a democratic state that espouses the rule of law and a culture of law, and the court has a duty to stand guard and protect these (see also Barzilai v. Government of Israel [34], at p. 585-586 {68-69}).

The decision to appoint MK Ramon at this time gives rise to a difficulty in the ethical sphere because it inherently undermines the values of the rule of law, and a difficulty in the public sphere because it undermines public confidence in those persons in the highest echelons of power — the Government and its members. As I have said, we are dealing with an issue that focuses on imposing ‘the rule of law on the government,’ to use Justice Barak’s expression in Eisenberg v. Minister of Housing [1], at p. 238 {23}. Prima facie the decision to make the appointment is tainted in a manner that goes to the heart of the administrative discretion. The rapid promotion to a very senior position so soon after the conviction and the serving of the sentence, after the court said what it had to say on the subject of MK Ramon’s conduct and credibility, sends a negative message to persons in positions of authority, public figures, government officials, potential complainants and the public as a whole. At the same time, I would emphasize that these remarks relate to the present moment, a short time after the events and the trial. Obviously, when a proper period of time has passed since the conviction and the serving of the sentence, the shadow cast by the criminal conviction and the disparaging remarks made by the Magistrates Court will fade, and it will no longer stand in the way of an appointment to a senior public office. I see no reason to consider the question of what should be the proper period of time that should pass before the appointment would be a proper one, since it has already been said in the past that ‘… any period of time that is determined contains an element of arbitrariness’ (Movement for Quality Government in Israel v. Prime Minister [41], at p. 175). We are not dealing with a question of mathematics, and in any case the determination depends inter alia on the nature of the position, the unique abilities of the candidate and the nature of the offence of which he was convicted, and these differ from case to case. Notwithstanding, a period of a few months, as in this case, is insufficient.

For all the reasons set out above, I am therefore of the opinion that it was right to issue an order nisi in the petitions. However, in view of my colleagues’ position, I have sought to set out my position, which, in essence, is that at the present time there is no alternative but to revoke the decision to appoint MK Ramon to the cabinet.

In conclusion I would like to refer to the remarks of Justice Türkel in A v. Chief of General Staff [29], where he cited remarks made originally by Justice Silberg:

‘If we seek to be a model state, a society that is a light unto the nations and a chosen people, we should remember — as Justice M. Silberg put it so well — that:

“Morality is the ideological basis of the law, and the law is the external, concrete form of some of the principles of abstract morality… The provisions of the law are — in the eyes of the legislature — the minimum moral standard that is required and expected of every citizen.

The desired ideal is that they will… coincide with one another to the fullest extent, as the water covers the sea’ (M. Silberg, Kach Darko Shel Talmud (1964), at pp. 66-67; emphasis in the original).”

This ideological basis is the infrastructure that enables the court to enforce legal norms that embody moral values. In my opinion, more than any other consideration, this is the cornerstone on which our decision stands’ (A v. Chief of General Staff [29], at pp. 77-78).

The image of society and the state is fashioned by decisions of the government in practical matters. Words are not enough. This consideration should be given a proper weight when making a decision to appoint someone to public office, and this is what should have been done in this case.

 

 

 

Justice A. Grunis

1.    With respect to the difference of opinion between my colleagues, I agree with the opinion of Justice A. Procaccia that the petitions should be denied. However, my approach is different from that of my colleague. According to my approach, in a case of this kind, where the Knesset approves the addition of a new cabinet minister, following a proposal of the Prime Minister and a decision of the cabinet, it is doubtful whether there is any basis for intervention by the High Court of Justice. Even if the court does intervene, it will do so only in a very rare and exceptional case. The present case does not justify intervention.

2.    Section 15 of the Basic Law: The Government sets out how a new minister can be brought into an existing government. The process begins with a proposal of the Prime Minister that is brought before the cabinet. The cabinet may decide to add a new minister. The Government is required to notify the Knesset of the decision and of the position that the new minister will hold. However, these steps alone are not sufficient. It is also necessary for the Knesset give its approval to the Government’s notice. In other words, the process of adding a new minister to the cabinet is not complete without a decision of the Knesset. The need for the Knesset’s approval is a characteristic of our parliamentary system, in which the formation of a government and its continuation in office depend upon the confidence of the Knesset. Thus, s. 13(d) of the Basic Law: The Government  provides that ‘The Government is constituted when the Knesset has expressed confidence in it,…’, whereas s. 28(a) of the Law states that ‘The Knesset may adopt an expression of no confidence in the Government.’

3.    In any case of court intervention in a decision of another branch, we need to take into account the relationship between three factors: the identity of the person or body that made the decision, the nature or classification of the decision and the error  tainting the decision or the ground for intervention. We shall address each of these, but we should emphasize that in this case we are not dealing merely with a challenge to a decision of an administrative authority. The addition of a minister to the government requires, as aforesaid, a decision of the Prime Minister, a decision of the Cabinet and a decision of the plenum of the Knesset. ‘The Government is the executive authority of the State’ (s. 1 of the Basic Law: The Government ). The government is the most senior administrative authority in the state. Of course, the rules applicable to judicial review of decisions of administrative authorities also apply in principle to decisions of the government. Nonetheless, the court will exercise great caution when intervening in a government decision (see HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister [11], especially at pp. 836-837, 840-841 {316-328, 321-323}, per Justice E. Rivlin, at pp. 867-868 {359-360}, per Justice T. Or; I. Zamir, Administrative Authority, vol. 1 (1996), at pp. 89-91). Bringing a new minister into the cabinet does not take effect until the Knesset has made a decision. It follows that the success of the petition to the court depends on the court setting aside not only a decision of the most senior administrative authority, but also a decision of the Knesset. Naturally there should be a difference between judicial review of a decision of an administrative authority, and even of the Government, and judicial review of a decision of the Knesset. In our case, we are speaking of a decision of the Knesset that does not take the form of statute. Statutes are also the result of Knesset decisions, but the decisions to which we are referring give rise to different and separate questions. We are speaking of decisions of various kinds. Some of them have normative effect and may be made by various bodies in the Knesset, such as the Speaker, one of the Knesset committees, or the plenum. Since the ‘The Knesset is the parliament of the state.’ (s. 1 of the Basic Law: The Knesset), it follows that judicial review of its decisions should not be exercised in the same fashion and in the same manner as it is with regard to an administrative authority. Decisions made by the parliament, which was elected by the whole body of citizens, should not be treated in the same way as decisions of administrative authorities, even if we are speaking of the most senior authorities (see, for example, Movement for Quality Government in Israel v. Prime Minister [11], especially at p. 848 {332-333}, per Justice E. Rivlin; HCJ 73/85 Kach Faction v. Knesset Speaker [43], at pp. 158-159). When we speak of the identity of the body making the decision, we should distinguish between a situation in which a decision is made by the Knesset, such as in the present instance, and a case in which the Knesset takes no action and for that reason the administrative decision requiring the approval of the Knesset is not valid. Let us assume that the Prime Minister decides to bring a new minister into the cabinet and also that the cabinet makes a decision approving this. Were the minister to begin to act in the ministry over which he has been given responsibility before the Knesset has given its approval, we would say that the minister is acting ultra vires. If a scenario of this kind occured, it is possible that the court would act, since the seriousness of the defect is so blatant that prima facie little weight would be attached to the fact that the most senior administrative authority — the Government — has approved the appointment. Since the law requires the approval of the Knesset, if such approval was not given, it would appear that there would be a strong basis for the intervention of the court. The court’s intervention in such a case would constitute support and backing for the Knesset’s role, as opposed to intervention in a decision of the Knesset.

4.    In addition to examining the identity of the body that made the decision being challenged before the court, we should examine the decision in accordance with the nature of the act or decision. On this subject, it has been said in the past that the activity of the Knesset should be divided into three categories: legislation, decisions regarding internal parliamentary affairs, and quasi-judicial decisions (see, for example, HCJ 652/81 Sarid v. Knesset Speaker [2], at pp. 201-202 {55-56}; HCJ 1956/91 Shammai v. Knesset Speaker [44], at pp. 315-316; HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [19], at pp. 141-142; HCJ 12002/04 Makhoul v. Knesset [26], and many other cases; A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel (vol. 1, 2005), at pp. 235-259). Alongside the aforesaid three categories, there is another category of decisions — namely, decisions concerning parliamentary scrutiny of the Government. The main decision of this kind is a decision expressing confidence in the Government when it is formed. In addition to this decision, we should mention a decision of no less importance, which is the opposite decision — expressing no confidence in the Government (regarding the importance of such a decision in a parliamentary system, see Kach Faction v. Knesset Speaker [43]; C. Klein, ‘On the Legal Definition of the Parliamentary System and Israeli Parliamentarianism,’ 5 Hebrew Univ. L. Rev. (Mishpatim) 309 (1973), at pp. 312-313). Less significant powers given to the Knesset with regard to the formation of the government, its structure, and its composition, are the approval of government decisions regarding a change in the division of functions between members of the government (s. 31(a) of the Basic Law: The Government); transferring a power given by law from one minister to another (s. 31(b) of the Basic Law: The Government); combining, separating or eliminating government ministries; establishing new ministries (s. 31(c) of the Basic Law: The Government); and, of course, adding a new member to the cabinet.

5.    In addition to the aforementioned powers of the Knesset relating to the Government, the Knesset has additional powers of supervision. The ultimate possibility of exercising supervision is by means of primary legislation. The Knesset can pass various laws that increase or limit the powers of the executive branch. In this way, it is possible to exercise supervision of this branch. Another possible type of supervision is introducing a condition that the validity of subordinate legislation depend upon a decision of the Knesset (usually, one of the Knesset committees). The authority for such a requirement arises from an express provision in a Basic Law or an ordinary statute (for a general discussion of the Knesset’s supervisory role regarding subordinate legislation, see B. Bracha, ‘Towards Parliamentary Supervision of Subordinate Legislation? The Draft Basic Law: Legislation, Chapter 3,’ 7 TAU L. Rev. (Iyyunei Mishpat) 390 (1979)). In this context we should mention that this court has held that the scope of judicial review with regard to subordinate legislation that has received the approval of the Knesset is narrower than that exercised with regard to ordinary subordinate legislation that does not require such approval (see, for example, HCJ 108/70 Manor v. Minister of Finance [45], at p. 445; HCJ 491/86 Tel-Aviv-Jaffa Municipality v. Minister of Interior [46], at p. 774; HCJ 4769/90 Zidan v. Minister of Labour and Social Affairs [47], at p. 172; for a general discussion of the grounds for intervening in subordinate legislation, see HCJ 156/75 Daka v. Minister of Transport [48]). It follows that the fact that the Knesset approved an administrative decision — in that case subordinate legislation — narrows the scope of the scrutiny. In addition to supervision that has normative force, the Knesset has additional means at its disposal. We should mention the possibility of tabling motions, debates in the plenum or in one of the Knesset committees, submitting questions, and the activity of the Knesset (and especially the State Control Committee), with regard to reports and opinions of the State Comptroller (see chapter four of the State Comptroller Law [Consolidated Version], 5718-1958; for a general discussion of the Knesset supervision of government actions, see Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 2), at pp. 745-756).

6.    We therefore need to ask how we should rank the various types of Knesset decisions — legislation, parliamentary supervision, internal parliamentary matters, and quasi-judicial acts — from the viewpoint of judicial review. In other words, when will judicial review be relatively broad and when will it be narrow? There is no doubt that, with regard to primary legislation, judicial review is very limited. The court does not have the power to set aside a statute, except in those cases where there is a conflict between an ordinary statute and a Basic Law. At the other extreme of the spectrum lie quasi-judicial decisions of the Knesset or of one of its committees. Between these lie the decisions on internal parliamentary matters and decisions concerning parliamentary supervision of the executive branch. It can be said that insofar as a decision concerns the essence of the parliamentary function, namely legislation and parliamentary supervision of the executive branch, the court will tend to refrain from intervention. The relatively broad scope of intervention in quasi-judicial decisions is founded, it would appear, on the idea that the parliamentary minority needs to be protected against the excessive power of the majority (regarding the protection of a parliamentary minority, even with regard to a decision that is not quasi-judicial, see Kach Faction v. Knesset Speaker [43]; Rubinstein & Medina, The Constitutional Law of the State of Israel (vol. 1), at pp. 241-242). The difference in the scope of judicial review exercised with regard to different decisions is also explained on the basis of the political element in the decision under consideration. The greater the political element in a decision, the greater the restraint that is required of the court. This can be shown by means of a comparison between intervention in subordinate legislation that has received the approval of the Knesset and exercise of judicial review with regard to a vote of confidence in a new government. Clearly the court will intervene in a decision of the latter type only in extreme cases (see Movement for Quality Government in Israel v. Prime Minister [11]), and in cases where forgery, fraud, or a similar voting impropriety determined the result (see and cf. HCJ 5131/03 Litzman v. Knesset Speaker [49]). Decisions within the framework of parliamentary supervision are often decisions in which the political element is considerable. The court ought to distance itself from intervention in decisions of this kind (see the opinion of the majority justices in Movement for Quality Government in Israel v. Prime Minister [11]).

7.    Another factor that may affect the intervention of the court and its scope in decisions of the Knesset is the ground for the intervention or the defect in the decision or in the decision-making process. Broadly speaking, the defects can be divided into three types: ultra vires, procedural impropriety, and unreasonableness. In addition to these we should mention other defects such as discrimination, conflict of interest, incorrect interpretation of the law, and disproportionality.

8.    The defect of a procedural impropriety, in the context of judicial scrutiny of Knesset decisions, presents a special problem. The court has recognized expertise on the subject of procedural improprieties. Sometimes a claim is raised in the court that an administrative decision should not be allowed to stand because of an impropriety in the decision-making process. The willingness of the court to intervene in a decision because of a procedural impropriety is relatively high. One reason for this is that intervention on the ground of a procedural impropriety does not consider the question whether the decision on its merits was right, reasonable, or logical, since the court is not the competent body to make that decision. Another reason is that the court, and especially an appeals court, is responsible for correcting procedural improprieties that are found in the actions of lower courts. When the court sets aside an administrative decision because of a procedural impropriety, it compels the authority to act in accordance with the law. It tells the authority that it should comply with the provisions of the law in the process of making the decision. It follows that there is great justification for judicial intervention when a decision is not made in accordance with the proper procedure. On the other hand, insisting upon every detail of the proper procedure, no matter how minor, may make it difficult for the authority making the decision to function. Not every procedural defect is significant, nor should every impropriety in procedural matters result in judicial intervention. The problem is particularly obvious with regard to procedural improprieties in acts of the Knesset. There is a natural desire to refrain from judicial involvement in the activity of the Knesset, in view of the fact that the Knesset is the body elected by all the citizens of the state. This reluctance is highlighted in cases of internal parliamentary matters. This term often refers to procedural matters and the everyday proceedings of the Knesset. Therefore the court does not intervene with regard to the time at which a debate on a no-confidence motion in the government will be held (Sarid v. Knesset Speaker [2]), a petition against a decision of the Speaker of the Knesset to include a certain matter in a debate at the request of the Government when it is claimed that insufficient notice has been given (Shammai v. Knesset Speaker [44]), or a decision of the Speaker to postpone the holding of a vote on a draft law when the delay is a short one (HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [21]). Notwithstanding, procedural defects may be very harmful, even when we are speaking of the actions of the Knesset. One example of this is the lifting of a Knesset member’s immunity without giving him an opportunity to state his case (see Pinchasi v. Knesset [23]). The justification for judicial intervention here derives from the fact that this was a quasi-judicial proceeding in which there was a serious flaw. It is possible that even when we are not speaking of a quasi-judicial proceeding in the Knesset, the court will intervene if the procedural flaw seriously harms an opposition party in the Knesset. Case law has held, in a very broad fashion, that the court will intervene if major values of the constitutional system are undermined (as in Sarid v. Knesset Speaker [2], at pp. 203-204). For example, if a decision of the Speaker of the Knesset denies an opposition party the right to address the Knesset, thereby committing a flagrant and ongoing breach of the rules of the Knesset, it is possible that the court ought to intervene. If the court does not grant relief, there would be no other body that could help to enforce the law upon the parliament. Thus, in my opinion, by intervening here the court would fulfil its classic role in the field of public law — the protection of minorities — which in this case concerns a parliamentary minority.

9.    The defect on which the petitioners base their petition against the decision to bring MK Ramon into the Government is unreasonableness. My colleague, Justice E. Arbel, accepts this argument and holds that the decision was unreasonable. My opinion is different. We should recall that in this case we are not speaking merely of a challenge to a decision of the Prime Minister and of the Government to appoint MK Ramon as a cabinet minister, but also of a challenge to a decision of the Knesset. The ground of unreasonableness is essentially different from the defects of ultra vires and procedural defect. When the court examines these two defects, the advantage and unique role of the court are self-evident. The court’s expertise in general, and in the field of administrative law in particular, relates to questions of authority and procedural flaws. We should point out that questions of authority and procedural flaws arise also in the fields of criminal law and civil law. By contrast, the court has no special advantage or expertise on the subject of unreasonableness. Admittedly, the ground of unreasonableness is not new to our law and it was recognized in the early years of the state (see, for example, CA 311/57 Attorney General v. M. Diezengoff & Co. [Navigation] Ltd [50]). Notwithstanding, in recent decades, especially since the judgment of Justice A. Barak in HCJ 389/80 Golden Pages Ltd v. Broadcasting Authority [13], it has undergone a change and has almost developed into a kind of ‘supreme norm’ (like good faith and public policy). In the course of this development, it has swallowed up, like a person whose appetite is insatiable, specific grounds for judicial scrutiny that were recognized in the past (for example, the grounds of irrelevant purposes and irrelevant considerations). The great disadvantage of this ground in its current scope lies in its high degree of abstraction. The high degree of abstraction expands the role of judicial discretion and thereby increases legal uncertainty. It creates a huge disparity between its exalted position in the legal universe and its application in a concrete case. The development of the law in common law countries is done by the courts, inter alia by means of doctrines and subtests that apply very abstract norms, whether founded on statute or case law, on a more specific level. The ground of reasonableness is different in the sense that the passage of time has not resulted in the development of norms on a lower level of abstraction, which would make it easier for us to find a concrete solution and to reduce uncertainty when a claim of unreasonableness is raised. In this it differs, for example, from the ground of disproportionality (regarding the subtests of disproportionality, see for example HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [51] (opinion of Justice A. Barak); HCJ 3379/03 Mustaki v. State Attorney’s Office [52], at pp. 907-908; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [53], at pp. 839-840 {296-297}, and many other cases). Often use is made of the concept of weight in order to emphasize the concrete application of the ground of unreasonableness. Thus it has been said on more than one occasion that a decision will be set aside for unreasonableness even if the authority that made the decision took into account all of the relevant considerations, where it gave the wrong weight to one or more of the considerations that were taken into account (see Daka v. Minister of Transport [48], at pp. 105-106; HCJ 935/89 Ganor v. Attorney General [14], at pp. 514-516 (per Justice A. Barak); HCJ 3094/93 Movement for Quality in Government in Israel v. Government of Israel [9], at pp. 420-421 (per President M. Shamgar); HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [10], at p. 464, and many other cases). Admittedly metaphors, such as weight, are an accepted tool of legal language. The imagery helps the court to analyze, develop its thoughts and convey the reasoning to the reader. At the same time, the use of metaphors may sometimes make the reasoning vaguer rather than clearer. The use of the image of weight in the context of unreasonableness admittedly helps to some extent. But we cannot ignore the fact that a determination of unreasonableness is almost entirely based on an examination of the end product, i.e., the outcome of the decision. In other words, the use of the metaphor of weight with regard to considerations that the competent authority making the decision took into account can sometimes, it would seem, be used to disguise disagreement with the result. The problem is particularly acute when the authority making the decision is a collective body.

10. The decision to approve the appointment of MK Ramon to the cabinet was approved by a majority of members of the Knesset, 46 versus 24. Where a decision is made by a body composed of a number of members, it is difficult to examine the considerations that were taken into account. Even if each of the members of the body publicly stated his reasons, it is impossible, or at least very difficult, to determine the relative weight that was given to each consideration in reaching the final result, which is a collective decision. This is the reason that the duty to give reasons, which usually applies to administrative authorities and other authorities, has not been applied, at least not in full, to authorities that are collective bodies (see, for example, HCJ 89/64 Greenblatt v. Israel Bar Association [54], at pp. 409-410; HCJ 142/70 Shapira v. Bar Association District Committee, Jerusalem [55], at pp. 329-330; HCJ 306/81 Flatto-Sharon v. Knesset Committee [22], at p. 133). In the case before us, only a small number of Knesset members expressed their opinions during the debate in the plenum, and even they did not address the appointment of MK Ramon in specific terms but only in general statements (minutes of the 138th session of the seventeenth Knesset (4 July 2007). Clearly, in such circumstances it cannot be said with certainty what were the considerations that were taken into account by each of the members who voted to approve the decision. It is even harder to determine the weight given to each consideration. Therefore, what is done de facto by the judge who thinks that the decision is tainted by unreasonableness is to examine the outcome, i.e., the ramifications of the decision. Sometimes what is done in such cases can be referred to as ‘reverse engineering.’ In other words, the court examines the outcome, i.e., the decision, and in a process of hindsight it lists the considerations that it imagines were taken into account by the body that made the decision. If the final decision is unacceptable to the court, it will say that one of the considerations was given excessive weight or that a certain consideration was not taken into account at all. We therefore need to take with a grain of salt the remark that is sometimes made in this regard, that the court does not replace the discretion of the authority authorized by the law to make the decision with its own discretion (for use of this formula, see for example HCJ 4140/95 Superpharm (Israel) Ltd v. Director of Customs and VAT [56], at p. 69 (per Justice I. Zamir); HCJ 10934/02 Kefar Gaza Kibbutz Agricultural Settlement Cooperative Society v. Israel Land Administration [57], at p. 125; HCJ 4585/06 Families of the October 2000 Victims Committee v. Minister of Public Security [58], at para. 7(c) (per Justice E. Rubinstein); for a case in which, despite this statement, it was decided to intervene in the authority’s discretion, see Zidan v. Minister of Labour and Social Affairs [47]). It would therefore appear that sometimes, when the court intervenes in a decision because of unreasonableness, it is indeed replacing the discretion of the authority with its own discretion. In this case we should remember that we are dealing with a collective body of 46 members of Knesset who voted for the decision to bring MK Ramon into the Government.

From our deliberations hitherto we see that the use of the ground of unreasonableness is highly problematic, especially when a decision of a collective body is challenged on this ground.

11. I do not intend to say that we should ignore or cancel the ground of unreasonableness. In my opinion, the use of relatively narrower and more concrete grounds — such as irrelevant reasons, irrelevant purposes, or discrimination — should be preferred. These grounds or defects have a lower level of abstraction and therefore their use will reduce the scope of judicial discretion and increase legal certainty. The use of the ground of unreasonableness will be justified in extreme cases, only when all the possibilities of judicial review on the basis of more precise grounds have been exhausted, and especially when the case involves a violation of human rights. It is possible that we should return to the use of the term extreme unreasonableness, which it would appear has been forgotten to some extent. Of course, this verbal test also suffers from imprecision and involves a significant amount of judicial discretion. Notwithstanding, the use of the adjective ‘extreme’ acts as a warning to the court. The court should refrain from replacing the authority’s discretion with its own discretion, not merely as a matter of rhetoric but also in practice.

12. The petition before us raises a claim of unreasonableness with regard to a decision of the plenum of the Knesset, which gave its approval to a decision of the Prime Minister and the Government to add a minister to the cabinet. The new minister is MK Ramon, who was convicted a few months ago of a sex offence. MK Ramon was sentenced. The sentence he was given and the determination of the court that the act does not involve moral turpitude lead to the result that the conditions provided in the law were not violated by the appointment (I am, of course, referring to the provisions of s. 42A of the Basic Law: The Knesset, and s. 6 of the Basic Law: The Government). Should this court determine that the decision of the Knesset, when it approved the appointment, was unreasonable? My answer to this question is no. The body that made the ultimate decision that completed the appointment process was the parliament. The decision to approve the appointment is clearly a political one. Naturally, the members of the Knesset had a duty to take into account the fact that the new minister had been convicted of a sex offence. We cannot say how this consideration compared with other relevant considerations. The alleged defect in the decision is not one of ultra vires. The defect on which the petitioners rely does not concern a procedural impropriety in the process in which the Knesset reached its decision. We are not even dealing with a question of the interpretation of statute, nor with a decision that violated an existing right of an opposition minority. The claim is that the decision to bring MK Ramon into the Government is unreasonable. As stated, this ground is very amorphous, because of its high level of abstraction. In these specific circumstances, the court is no better placed than any citizen of the state to determine the question of the reasonableness of the decision. We are not dealing with a matter that requires legal expertise. On the basis of all the aforesaid, my conclusion is that the court should refrain from intervening in the decision.

13. The determination that the court will not set aside the decision to bring MK Ramon into the Government does not amount to a ratification of that decision (see and cf. Movement for Quality Government in Israel v. Prime Minister [11]). Non-intervention is not equivalent to giving approval or legitimizing a decision. All that the court is saying is: ‘In the circumstances of the case, it is not for the court to determine whether the decision is improper.’ The court leaves the question in the public domain. It may be assumed that there will be citizens who will think that the appointment of a cabinet minister who has committed a sex offence is absolutely wrong. They may think that such an appointment is a stain on the Government. Even if this is the case, the matter does not require the court to intervene. We are distinguishing between our opinion as citizens and our thinking as justices. Public opinion and judicial opinion are not necessarily the same thing, and it is right and proper that they should not be.

 

Petition denied by majority opinion (Justices Procaccia and Grunis, Justice Arbel dissenting).

26 Kislev 5768.

6 December 2007.

 

H.C.J. 282/61

 

           

MAHMUD EL-SARUJI et al.

v.

MINISTER OF RELIGIOUS AFFAIRS AND THE MOSLEM COUNCIL. ACRE

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 6, 1963]

Before Silberg J., Landau J. and Berinson J.

 

 

 

Administrative law - consultative body appointed by Minister- judicial review of its powers and activities.

 

The petitioners complained generally of the alleged interference of the Minister of Religious Affairs in matters affecting the Moslem Community of Acre and more particularly of the activities and powers of the local Moslem council appointed by the Ministry.

 

Held. The departure from the country of Moslem leaders and officials as a result of the events of 1948 had led to a complete collapse of all Moslem institutions and their ceasing to function. In order to remedy the situation and recreate these institutions the Ministry had not proceeded under any express statutory provision but by virtue of general power vested in the Government and within the framework of the State budget. In the course of doing so, it appointed the second respondent with which to consult and to act as its agent in the distribution of necessary funds for various public Moslem purposes. No evidence of misuse of funds had been adduced. In all these circumstances, the High Court of Justice would not intervene to control the action by the Ministry or its agent, either generally or specifically, in its choice of advisers or in resolving the public political problems with which it is faced.

 

M.N. Huari for the petitioners.

Z. Bar-Niv, State attorney, Z. Terlo and M. Cheshin for the first respondent.

E. Berenblum for the second respondent.

 

LANDAU J. The order nisi granted to the three petitioners, residents of Acre and members of the Moslem community there, calls upon the Minister of Religious Affairs and the Moslem Council of Acre to show reason "why the first respondent should not cease from interfering in matters affecting Moslems, their charitable trusts, courts of law and personal situation, and why he should not procure that the activities and powers of the Moslem Council in Acre, appointed by him, should not cease and it be dispersed."

 

The petitioners' application, as formulated in the order nisi, contained two separate complaints, one general, regarding the position of the Moslem Council in the country as a whole, and one regarding the powers and activities of the Moslem Council of Acre (or more precisely the Consultative Council for Moslem Religious Affairs of Acre).

 

            Under the first complaint, petitioners' counsel tried to show the lack of organisation and neglect which in his opinion prevail in respect of the affairs of the Moslem community in the country. Let it be said at once that this Court is not the suitable forum for voicing general complaints of this kind. The affidavit on behalf of the first respondent, made by Mr. S.Z. Kahana, the director-general of the Ministry of Religious Affairs, describes the changes that have occurred with regard to the country's Moslem Community, in the following terms:

           

"Upon the termination of Mandatory rule and the outbreak of the War of Independence the religious institutions of the Moslem Community in the country collapsed. Senior religious personnel, muftis and qadies - except for the late Sheikh Ta'ahar Tabri (who died in 1959), Mufti and Qadi of the Tiberias district - fled from the country. The system of religious jurisdiction broke down completely. Most of the officials concerned in religious services fled. The communal educational system and social welfare and health institutions ceased to exist. Among those who left the country were also the members of the Supreme Moslem Council and its Wakf Committee (bodies founded at the beginning of Mandatory rule) and the members of the Governmental Awkaf Commission, appointed by the High Commissioner by virtue of the Palestine (Defence) Order in Council, 1937. Israeli Moslems thus remained without religious organisation and religious leadership."

 

            We accept this as an accurate description of the situation created as a result of the War with which the State of Israel on its foundation was fettered by the Arab states and the flight of a large part of the Moslem population from its territory. Mr. Kahana's affidavit goes on to describe the steps taken by his Ministry to repair as far as could be the organisational breakdown of the Moslem Religious Community in Israel: the jurisdiction of the Moslem religious courts was restored on a new legal basis by the Sharia Courts (Validation of Appointments) Law, 1953, and the Qadis Law, 1961. These courts continue to act under the powers granted to them by article 52 of the Palestine Order in Council. Petitioners' counsel did not dispute that in his summation and so retracted the deprecatory remarks about the Qadis of these courts which he had permitted himself to indite in paragraph 10(c) of the petition.

 

            Mr. Kahana went on to detail in his affidavit the different measures taken by the Ministry of Religious Affairs in order to fill the vacuum created in the provision of religious requirements, religious education, charity, social welfare and so on for the country's Moslem Community. In so doing, the Ministry of Religious Affairs did not act under express statutory provision but by virtue of general governmental powers resting in the Government and its Ministries, within the financial framework of the State's Budget approved by the Knesset.

           

            The petitioners and those for whom they speak are not pleased with the existing order of things. I assume that in complaining they express the view of some part of the members of Acre's Moslem community, although I do not know whether they constitute a majority of the community. They would prefer the autonomy of the Moslem community regarding all the matters raised in their petition, but that is certainly a public-political problem not for this Court to be concerned with. Under the democratic regime existing in our country, the Knesset is the arbiter in matters of this kind and it possesses the authority to initiate changes in the existing position through the enactment of new laws, if it finds it proper so to do.

           

            The main burden of the petitioners' complaints, to all appearances, concerns the administration of Moslem charitable and religious trusts (awkaf). Under the British Mandate these trusts were administered by the Supreme Moslem Religious Council, set up by an order of the High Commission of 20 December 1921 (N. Bentwich, The Laws of Palestine, vol. 2, pp. 395 ff.). Among the functions of the Council, appointed in the manner prescribed by the order, was the control and administration of Moslem charities (paragraph 8(1)(a)). There were also set up a General Awkaf Committee and local awkaf committees under paragraphs 10 ff. In 1937, the administration of Moslem charitable trusts was transferred to a Commission appointed by the High Commissioner under the Defence (Moslem Awkaf) Regulations, 1937 (Official Gazette 1937, Suppl. 2, No. 730-731). That continued to be the position until the end of the Mandate when members of the Commission left the country and became absentees. The original order of 1921 was wholly repealed by section 25 of the Qadis Law, 1961; petitioners' counsel was mistaken in maintaining that the repeal went only to the provision relating to the appointment of qadis. It is questionable, however, whether as a result of the repeal, the said Regulations of 1937 were also repealed. In his summation, the State Attorney argued that these also were repealed by implication. It seems to me that this argument is inconsistent with what is said in paragraph 3(k) of Mr. Kahana's affidavit. What emerges from the latter is that the 1937 Regulations were not repealed and that the administrative powers of the appointed Commission became "absentee property" in the sense of section 1(a) ad finem of the Absentees' Property Law, 1950, upon its members becoming absentees. I hesitate from ruling definitively on this question which was not exhaustively argued in these hearings, but I incline to the latter view, that the 1937 Regulations exist independently, without being linked to the 1921 Order, although the Commission replaced the body instituted by the 1921 Order. The Regulations indeed vest in the Commission the powers of the Council under the old order (see regulation 5) but they are not, for that reason alone, to be regarded as an enactment intended merely to amend the Order. The result, it would appear, is that the Government to which the powers of the High Commissioner passed may but is not bound to appoint a new Commission under the 1937 Regulations and, so long as it does not, public Moslem religious and charitable trusts continue to be managed by the Custodian of Absentees' Property who took the place of the Commission that existed on the eve of the establishment of the State. I have found no basis for the vague submission of petitioners' counsel in his summation, that the right to control the funds of these trusts lies in any event with the Moslem residents now living in the country. No precedent was cited to base this view.

 

            The petitioners' complaints about the second respondent's activities are in the main that it acts without authority and has no proper concern for Moslem religious matters in Acre. The petition also alleges misuse of funds entrusted to its members. From the affidavits in reply by Mr. Muhmad Habashi, one of such members, and by Mr. Kahana it emerges that the council was established by the Minister of Religious Affairs as a consultative body on matters of religious, social welfare and educational services. The Ministry of Religious Affairs is also assisted by the Council in implementation of the activities initiated by the former for the benefit of the Acre Moslem community. To this end money is on occasion passed to the Council intended for the requirements of the city's Moslem community and the Council lays out the money in accordance with the directions and under the prescribed supervision of the Ministry. When the said affidavits were made on behalf of the respondents, the members of the consultative Council were Sheikh Mussa Tabri, the principal Qadi, who acted as chairman, Sheikh Jemal Saadi, Imam and preacher of the Aljezar Mosque, Ahmad Edalbi, a notable of the community, and the deponent Muhmad Habashi who is also a deputy mayor of Acre.

 

            This is not a commission appointed under enacted law but, as I have said, a consultative council which the Minister of Religious Affairs appointed in order to maintain contact with the Moslem community of the city. In so far as the council is entrusted with the allocation of money for the community's requirements, it acts as agent of the Ministry of Religious Affairs. The Minister of Religious Affairs is interested in choosing advisers in this field, whom he considers to be fit for the task of representing the community, and this Court will not direct him to choose other fitter advisers. As for the activity of the Council, we allowed petitioners' counsel to cross-examine at length but in spite of his protracted assault on the witness, Mr. Habashi, his efforts were in vain as regard the matters touched upon in cross-examination. The impression one obtains from the cross-examination is of conflict between contending groups of community workers. No indication was given to us of misuse of funds or of other acts contrary to good order on the part of members of the Council. In my opinion, the order nisi should be discharged.

 

SILBERG J. I agree.

 

BERINSON J. I agree.

 

            Order nisi discharged.

            Judgment given on February 6, 1963.

 

                                                                                                                HCJ 3511/02

 

1. Negev Coexistence Forum
2. The Association of Forty
3. Communal Council of the Settlement of Um Batin

v.                     

1. The Ministry of Infrastructure
2. Drainage and Infrastructure Development Administration
3. Water Commissioner
4. Ministry of the Environment
5. Ministry of Health
6. Ministry of the Interior
7. Ministry of the Treasury
8. Drainage Authority of Shikmah Bsor
9. Omer Regional Council
10. Meitar Regional Council
11. Tel Sheva Regional Council
12. Bnei Shimon Regional Council
13. The Government of Israel
14. The Israel Lands Administration

 

The Supreme Court Sitting as the High Court of Justice

[January 16, 2003]

Before Justice E. Mazza, Justices D. Dorner and E. Levi

 

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

 

Facts: This petition concerns an urgent petition for an interim order. Petitioners request that the State build a bridge over Wadi Hebron in order to enable children to reach the regional public school. The State recognizes the urgent need for erecting a bridge, but claims that it is not possible within the framework of current regional planning laws.

 

Held: The Supreme Court held that the Basic Law: the Judiciary has a constitutional status superior to ordinary legislation. This superior status is not limited to the Basic Law’s grant of jurisdiction but also applies to its conferral of power to grant remedies. The Court, however, will generally abstain from granting a remedy under the Basic Law: The Judiciary if that remedy does not accord with other legislation, even if that legislation is subordinate to the Basic Law.  However, in outstanding circumstances, when the case “cries out for help,” the court will not abstain from taking advantage of this “unconventional” authority. The Court held that, under the circumstances, use of its authority pursuant to the Basic Law was justified. As such, the Court ordered the State to build, as quickly as possible, a bridge over Wadi Hebron.

 

Basic Laws Cited:

Basic Law: The Judiciary, §15

 

Legislation Cited:

Planning and Building Law-1965, § 151

 

Israeli Supreme Court Cases Cited:

[1]HCJ 2208/02 Salama v. Minister of Interior Affairs, IsrSC 56(5) 950

[2]HCJ 101/74 Building and Development in the Negev Inc. v. Minister of Defense, IsrSC 28(2) 449

 

Israeli District Court Cases Cited:

[3]CA (Tel-Aviv) 71208/00 Bar Ilan v. State of Israel (unreported decision)

 

Israeli Magistrate Court Cases Cited:

[4]CA (Tel-Aviv) 15237/97 State of Israel v. Bar Ilan (unreported decision)

 

Petition granted.

 

On behalf of the petitioners— D. Fish; L. Golan

On behalf of respondents 1-7, 13, 14—A. Koren  

JUDGMENT

Justice E. Mazza

This petition, submitted on April 25, 2002, concerns the problem of the sewage flowing in Wadi Hebron, which has been afflicting residents of the scattered Bedouin settlement of “Um Batin.” One petition requested that we issue an interim order requiring the state to immediately erect small bridges for passage by foot and by car over the wadi “in order to immediately alleviate this constraint on the residents’ freedom of movement into the settlement and outside of it, as well as to preserve their health and prevent incidents of drowning.”  In response, the State asserted, that, although the government had decided to establish a permanent settlement for the scattered settlement of Um Batin, “until the permanent settlement is planned, there are practical and normative difficulties in arranging access roads to the illegal settlement.”  The State described the planning difficulty:

 

The district planning scheme states that building permits will not be issued, nor will lands be allowed to be used, unless such is done pursuant to the regional scheme.  No such regional planning scheme exists for the area where the scattered settlement of Um Batin and the adjacent riverbed are located.  Until a detailed planning scheme, which will allow for the issuance of building permits, is approved, or until a regional planning scheme that modifies the above-mentioned rule is approved, no building will be permitted in that area, not even small bridges. 

 

On May 20, 2002, Justice Levi ordered that the application for an interim order be decided by the panel hearing the petition.  On September 11, 2002 we held oral arguments and decided:

 

[t]he petition raises a difficult problem which demands a practical resolution within a short period of time.  The solution offered by the government is not satisfactory.  We understand that a meeting is to be held on September 30, 2002 for the purpose of developing a solution—unfortunately only temporarily—for the issue dealt with in the petition.  Before deciding how to deal with the petition, we ask that, before the end of October, the State Advocate submit supplementary briefs setting out the suggested plan and a tentative schedule for its execution.  We expect that the arrangement will be one that can be practically implemented within a short period of time. 

 

On January 1, 2003, after the State had submitted several updating statements, petitioners submitted an urgent application for an interim order.  The application stated that “due to flooding in Wadi Hebron last week, one of the two unstable, make-shift bridges, which were constructed by the residents of Um Batin of their own accord, collapsed.  All agree that these bridges do not provide a solution to the problem and are not a substitute for safe, well-designed bridges. When the bridges collapsed, only a miracle prevented human casualties. The one remaining bridge is narrow and unstable and only allows for individual passage.” Additionally, petitioners explained that “since the bridge that collapsed had been located near a school, and since crossing the strong water currents is dangerous for the children, the settlement’s elementary schools were closed” on rainy days. 

 

In its response, the State reiterated its claim that, from a planning perspective, building even only temporary small bridges is impossible.   However, the State noted that significant changes in the planning situation are expected over the next few months, which will allow for the issuing of permits for building stable small bridges.

 

Following an urgent hearing on January 9, 2003, the State accepted the responsibility “of examining possible legal means of either situating a new small bridge on the location that is predisposed to flooding, or rehabilitating or strengthening the currently standing bridge.” However, in a statement submitted on January 14, 2003, the State asserted that it had not succeeded in finding such a legal means. At the same time, the State claimed that the Ministry of the Interior had committed itself to building such bridges within the coming months, as soon as the planning arrangements were confirmed.

 

We begin by noting that we have reservations regarding the State’s claim that the Planning and Building Law does not allow the construction of a temporary bridge without a building permit.  For example, in the case of the Maccabia Bridge tragedy, the defendants were acquitted of a charge of illegally building a bridge without a permit.  The court there stated, based on a number of Supreme Court precedents, that planning laws do not apply to temporary structures. See Crim. A. (Tel-Aviv) 71208/00 Bar Ilan v. State of Israel, [3]; CA (Tel-Aviv) 15237/97 State of Israel v. Bar Ilan, [4]. However, we need not resolve this issue at this time.  This is because we are of the opinion that we have the authority to issue the requested urgent interim order, even under the assumption that planning laws do not allow this.

 

Section 15(c) of the Basic Law: The Judiciary states:

 

The Supreme Court shall sit also as a High Court of Justice. When so sitting, it shall hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of another court.

 

The normative status of this law is constitutional and superior to ordinary law. See HCJ 2208/02 Salama v. Minister of Interior Affairs, [1] at par. 2.  This superior status is not limited to the Basic Law’s grant of jurisdiction—an interpretation which may possibly be gleaned from some of the judgments regarding this section—but also applies to its conferral of the power to grant remedies. Justice Berinson noted as much in his precedent-setting judgment in HCJ 101/74 Building and Development in the Negev Inc. v. The  Minister of Defense, [2] at 455:

 

We should note that, just as there is no limit to our subject matter jurisdiction, (aside from refraining from interfering with matters under the authority of another court), similarly, and perhaps even more so, there is no limit to the remedies that this court may offer the citizens who have been harmed by an act or omission of the government or a public authority. This Court may grant any remedy or relief it sees fit as necessary for the sake of justice.

 

Nevertheless, the High Court of Justice will generally abstain from granting a remedy under section 15(c) of the Basic Law: The Judiciary if that remedy does not accord with other legislation, even if that legislation is subordinate to the Basic Law.  However, in outstanding circumstances, when the case “cries out for help,” and there is no alternative way to legally provide “relief for the sake of justice,” the court will not abstain from taking advantage of this “unconventional” authority. 

 

This is a “Kafkaesque” situation that cries out for help. Young children are required to endanger their lives in order to reach the public school that the State of Israel erected near their homes, or, alternatively, to refrain from attending school on rainy days.  The State does not deny its duty to build a small bridge for passage over the wadi in order to prevent these dangers.  It claims, however, that the law prevents it from doing so for the next few months.  It is unthinkable that planning laws are intended to prevent the building of emergency temporary structures for the sake of saving lives.  Even if we were to assume that this was their intention, planning laws cannot overcome the constitutional and superior rule found in section 15(c) of the Basic Law: The Judiciary.  This is especially true when the rules which here allegedly prevent the granting of building permits for the bridges are located in inferior secondary legislation—regulation 17(2) of the Planning Regulations (Substantial Deviation from a Plan)-2002, and section 8.1 of the regional planning scheme RCP 14/4—and not in the relevant primary legislation, the Planning and Building Law-1965, § 151.

 

As such, due to the outstanding circumstances of this case, we have decided to issue an interim order instructing the State to build, in the shortest possible period of time, a stable small bridge over Wadi Hebron, which will allow the children of the scattered settlement of Um Batin to safely cross over the wadi on their way to school.  In their final statement, petitioners requested that additional bridges be built on the path to the regional medical clinic and at the entrance to the village.  This request was not mentioned in their urgent application on January 1, 2003, or in the hearing which was held on January 9, 2002.  As such, we have disregarded this request.

 

January 16, 2003