Judicial review

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

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

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

The High Court held as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

G. (Per Justice E. Mazza):

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

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

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

H. (Per Justice D. Levin):

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

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

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

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

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

I. (Per Justice E. Goldberg):

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

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

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

Voting Justices:

Shamgar, Meir

Primary Author

majority opinion

Barak, Aharon

majority opinion

Mazza, Eliahu

Author

concurrence

Levin, Dov

Author

concurrence

Goldberg, Eliezer

Author

concurrence

Full text of the opinion:

H.C.J 3094/93

H.C.J 4319/93

H.C.J 4478/93

A.H.C. 4409/93

1. The Movement for Quality in Government in Israel

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

2. Moshe Kirstein

(H.C. 4478/93)

3.Adv. Zeev Trainin

(A.H.C. 4409/93)

1. State of Israel

2. Prime Minister

3. Attorney General

4. Rabbi Arye Deri

5. Shas, International Organization of Tora Observant Sepharadic Jews

In the Supreme Court Sitting as High Court of Justice

[September 8, 93]

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

Editor's Summary*

The High Court held as follows:

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

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

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

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

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

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

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

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

G. (Per Justice E. Mazza):

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

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

H. (Per Justice D. Levin):

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

I. (Per Justice E. Goldberg):

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

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

Israel Supreme Court Cases Cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

English Cases Cited:

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

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

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

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

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

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

JUDGMENT

The President:

The petitions

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

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

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

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

(b) The Indictment

The indictment contains the following offences against the law:

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

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

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

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

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

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

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

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

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

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

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

3. The Parties' Arguments

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8. The Legal Subjects On Which The Proceedings Were Based

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

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

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

9. Undertaking not to Remove a Minister from Office

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

14. The Power to Remove a Minister from Office

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice A. Barak: I concur.

Justice A. Mazza:

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

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

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

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

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

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

Justice D. Levin:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Justice E. Goldberg:

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

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

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

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

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

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

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

Decided as held in the President's judgment.

Judgment handed down on 8.9.93.

* Edited by Prof. A. Enker

Full opinion:

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

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

Case/docket number:

HCJ 1993/03

Date Decided:

Thursday, October 9, 2003

Decision Type:

Original

Topics:

Abstract:

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

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

Voting Justices:

Rivlin, Eliezer

Primary Author

majority opinion

Mazza, Eliahu

Author

concurrence

Turkel, Jacob

Author

concurrence

Dorner, Dalia

Author

concurrence

Or, Theodor

Author

concurrence

Beinisch, Dorit

Author

dissent

Cheshin, Mishael

Author

dissent

Full text of the opinion:

HCJ 1993/03

The Movement for Quality Government in Israel

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

The Supreme Court Sitting as the High Court of Justice

[October 9, 2003]

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

Objection to an order nisi.

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

Basic Laws Cited:

Basic Law: The Government, 2001

Basic Law: The Government, 1992

Basic Law: The Government, 1968

Statutes Cited:

Police Ordinance (New Version), 1971, § 7

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

Knesset Members Immunity Law (Rights and Duties), 1951

Israeli Supreme Court Cases Cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

United States Cases:

[91]Marbury v. Madison

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

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

Israeli Books Cited

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

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

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

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

Israeli Articles Cited:

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

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

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

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

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

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

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

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

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

Foreign Books Cited:

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

Jewish Law Sources Cited:

[108]Babylonian Talmud, Tractate Shabbat 114A

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

[110]Exodus 31:2, 35:30

[111]Babylonian Talmud, Tractate Berakhot 55a

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

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

[114]Ribash, Responsa 271

[115]Rabbi A.Y. Kook, Be’er Eliyahu

[116]Babylonian Talmud, Tractate Sanhedrin 7b

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

[118]Maimonides Reponsa, Chapter 111

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

[120]Zaken Abraham Responsa, Yoreh Deah, 30

JUDGMENT

Justice E. Rivlin

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

The Facts and the Petition

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In my opinion, the petition should be denied.

The Normative Framework

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

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

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

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

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

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

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

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

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

Likewise, we find in section 23(b):

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

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

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

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

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

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

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

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

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

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

Judicial Review

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Yahav [2], at 28.

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

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

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

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

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

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

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

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

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

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

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

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

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

See Weiss [8], at 470.

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

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

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

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

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

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

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

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

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

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

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

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

See Weiss [8], at 471-72.

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

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

See Weiss [8]. Therefore,

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

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

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

Judicial Review of Decisions Relating to the Formation of the Government

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

See Deri [47], at 404.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 59-60.

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

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

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

Improper Conduct of a Minister

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

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

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

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

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

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

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

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

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

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

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

Id. at 426-27.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 60. Moreover:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Do Tzahi Hanegbi’s actions constitute such extreme circumstances?

Hanegbi’s Actions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Vice-President T. Or

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

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

Factual Basis and Essence of the Petition

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

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

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

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

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

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

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

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

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

The Normative Framework

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

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

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

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

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

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

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

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

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

Reasonableness of the Decision – Previous Affairs

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

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

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

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

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

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

…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Bar-On, it was added:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Claim of Conflict of Interest

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

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

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

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

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

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

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

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

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

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

Rivlin, according to which the petition is denied.

Justice M. Cheshin

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

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

The Principal Facts

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

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

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

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

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

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

Id. at 439 (Or, J).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Findings of the Investigation

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

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

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

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

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

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

Suspicions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Dispute

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

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

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

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

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

The Legal Framework

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Exercise of Discretion

The Prime Minister and Cabinet Ministers as Public Trustees

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

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

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

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

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

Those with the power to appoint or decide must therefore act with integrity and fairness, without considering irrelevant factors, guided by principles of reasonableness and equality, and without discrimination. Any failure to discharge this duty opens the door to inappropriate appointments or decisions. The wrong people are appointed and the right people overlooked, and the public good is harmed. But the necessity of imposing these obligations on persons with the powers to make appointments or decisions relating to particular individuals extends beyond the propriety or legality of particular appointments or choices. The scourge of inappropriate appointments must be stopped, in order to preserve the very existence of the public service. Moreover, those appointed illegally are liable to adopt similarly illegal methods when they have to make appointments themselves. The fathers have eaten sour grapes and the sons who witnessed their fathers will also eat sour grapes. Cf. Ezekiel 18:2. And, we all know where this path leads.

HCJ 2671/98 Women’s Lobby v. The Minister of Labor and Welfare, [61] at 649-50. These words deal with appointments to the public service (specifically the deputy director-general of the National Insurance Institute), but also they also apply, under different circumstances, to the case before us.

25. We have seen that the Prime Minister and all ministers are in fact trustees, holding their offices in trust for the public. We can further infer from this that, when considering the appointment, or the continued service, of a minister with a criminal past, the Prime Minister must conduct himself as a trustee dealing with the public’s affairs. How does a trustee ensure the propriety of his conduct? My colleagues have elucidated the guiding principles, wisely and at length; adding to their comments would be superfluous. I will cite just a few of the comments made by them in this context, which will be instructive for our purposes. For example:

The statutory provision [empowering the Prime Minister to dismiss a minister] is also intended to constitute a response, in the form of removal from office, to a serious incident involving a minister. This applies when that occurrence, whether act or omission, affects the stature of the government, its public image, its ability to lead and serve as a role model and its capacity to inculcate proper behavioral norms. It applies primarily when the incident impacts the public’s confidence in our system of government, on the constitutive values of our system of government and law, and on the duties of the ordinary citizen which arise from them.

Deri [47], at 422 (Shamgar, P). Furthermore:

The Prime Minister, the government, and all of its ministers are in the position of trustees. This position requires them to consider whether to terminate the tenure of a deputy-minister against whom an indictment has been filed, the offenses being particularly grave. The Attorney-General may decide that there is sufficient evidence for an indictment. Under these circumstances, the continued service of this minister is liable to diminish public confidence in the ruling authorities. The authorities must therefore consider the matter with the utmost gravity. For it must be remembered: the government’s ability to rule is based on the confidence of the public. Without public confidence, the government cannot function.

Pinhasi [5], at 461 (Barak, J). Similarly:

An elected public official is like a cantor leading the prayers. The cantor is the community’s mouthpiece. He presents himself as impoverished in deeds, humble and frightened. So, too, the public servant. Like the prayer leader, he possesses nothing of his own. What he has belongs to the community he serves. Decency, honesty, and purity of heart are the hallmark of a worthy cantor, and this is the pillar of fire which guides the public servant in his path. This is the only way in which he can properly serve the community that chose him as its leader, and the only way for him to win the public’s confidence. It is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates. The higher they ascend the ladder of leadership, the greater our demand for honesty and integrity from our leaders.

HCJ 103/96 Pinchas Cohen, Adv. v. The Attorney-General [62], at 326.

The same applies to the government, which enjoys a particular status and image in the public eye. It must maintain public confidence in the Israeli system of governance and in our constitutive values. There is an inherent need for the government and the administration to conduct themselves in a manner that is ethical, decent and dignified. Hence, under certain circumstances, the duty of the Prime Minister to remove a minister from office becomes a duty, a power that the Prime Minister is obligated to exercise. What then are the particular circumstances that transform the Prime Minister’s power to dismiss a minister into a duty?

Indictment of a Public Trustee: Trusteeship and Public Confidence

26. In Deri [47], an indictment was filed against the Minister of the Interior, Aryeh Deri, for the offenses of bribery, breach of trust by a public servant, the fraudulent receipt of goods in aggravated circumstances, and falsifying corporate documents and theft by a director. See Deri [47], at 410. In Pinhasi [5] an indictment was filed against the Deputy-Minister of Religious Affairs, Raphael Pinhasi, for falsifying corporate documents, false testimony and attempting to receive goods by fraud. See Pinhasi [5], at 447. In both cases the Court was required to decide whether the indictments were sufficiently grave to compel the Prime Minister to remove the minister and the deputy-minister from office. The Court decided in the affirmative in both cases:

In summary, based on the Deri and Pinhasi cases, the rule is that where an indictment for a serious offense is filed against a minister or a deputy-minister, the Prime Minister is duty-bound to remove the minister or deputy-minister from their post. Under these circumstances, the Prime Minister’s refusal to discharge that duty will be regarded as unreasonable in the extreme. Consequently, in the event of such a refusal, the Court can order the Prime Minister to exercise his power to remove the minister or deputy-minister from his position. Today, too, the Prime Minister’s refusal to remove a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.

See Bar-On [3], at 56 (Zamir, J.). The rule is crystal clear: “The Prime Minister’s refusal to remove from office a minister or deputy-minister who has been indicted for a serious offense will be regarded as extremely unreasonable, justifying this Court’s intervention.”

27. The duty of trusteeship owed by the Prime Minister and other ministers is inextricably linked to public confidence in the government. A trustee who behaves appropriately wins trust; a trustee who does not live up to the required standards will not enjoy the public’s confidence. The government needs the trust both of the Knesset and of the public as a whole. If it behaves as a trustee should, it becomes the repository of public confidence. Where the government betrays its trusteeship, public confidence in the government is shattered, and the Court will intervene. This is what the Court did when it forced the Prime Minister to dismiss Minister Deri and Deputy-Minister Pinhasi.

One might ask: why should the Court trouble itself with the question of public confidence in the government by directing the Prime Minister to remove officials from their positions, as it did in Deri [47] and Pinhasi [5]? The public will presumably express its loss of confidence in the government at the ballot box. Why then should the Court issue orders concerning the relationship between the people and the government? Furthermore, the principle of decentralization and the relationship of respect owed by the judiciary to the executive and legislative branches, especially with respect to the internal management of these branches, obligates the Court to distance itself from the question of the composition of the government. This is the government’s exclusive domain, and it ought to remain that way, subject to the express provisions of the law.

28. This narrow conception of the relationship between the judiciary and the other authorities is one possible view – possible but undesirable. The Supreme Court rejected it – and rightly so – in Deri [47], Pinhasi [5], and Bar-On [3]. The Court premised its decisions on the issue of public confidence, and this too was the right path. The Court explained its position as follows:

Without public confidence in the public authorities, the latter become an empty vessel. Public confidence is the mainstay of the public authorities and enables them to discharge their functions.

Eisenberg [6], at 262 (Barak, J.). Later, in discussing public confidence in the government, the Court dealt with past actions that may tarnish the image of a candidate to public office:

Public confidence in the organs of government is one of the most important assets of the governing authority and of the state. When the public loses confidence in the ruling authorities, it also loses its belief in the social contract of communal life. Paramount importance ought to be given to maintaining, preserving, and promoting the feeling that public servants are not masters and that they discharge their duties for the sake of the public, honestly and incorruptibly. The purity of the service and of its members is the foundation of the civil service and the basis of our social structure …. This consideration is central and must therefore be accorded significant weight in the overall decision regarding the appointment of a candidate with a criminal past.

Id. at 262. This ruling was reaffirmed in Deri [47], Pinhasi [5], and Bar-On [3]. As stated in Pinchas Cohen [62]: “[I]t is well known that if the nation lacks confidence in its leaders, disorder prevails and society disintegrates.” Therefore, when confronted with a concern that a particular act or omission will severely impair the public’s confidence in its leadership, the Court cannot stand idly by, claiming that this matter is not its concern. Judicial intervention in such cases is a form of self-defense – the self-defense of the entire state, of which the judiciary itself is part. How would this Court respond if it was accused of being silent in the face of such a travesty? This was our holding in both Deri [47] and Pinhasi [5], and we will be guided by it.

Indictment and Evidence in Support of the Indictment; Evidence without an Indictment

29. As we have already observed, the law provides that where an indictment for a serious offense is filed against a minister, the Prime Minister is obligated to remove that minister from office. By extension, his refusal to remove the minister under those circumstances is considered to be unreasonable in the extreme and warrants judicial intervention. Now, it could be asked: is this, in fact, the correct interpretation of the law?

30. An indictment is no more than a document bearing the signature of an attorney, the Attorney-General, or any other authority. The signatory affirms that to the best of his understanding, the police file contains prima facie evidence that the accused committed the offenses in the indictment. An indictment effectively amounts to an expert opinion of its signatory that, prima facie, the defendant has committed the offenses specified in the indictment. And the question necessarily arises: Is this sufficient? In other words, is the understanding of the signatory – however elevated his status may be – that a person has, prima facie, committed various offenses, sufficient to compel the minister or deputy-minister to step down, without giving them the chance to present their case? Were this to be provided by statute, we would accept it (subject, of course, to the basic principles of fair procedure). However, should we make this our holding: that an indictment for serious offenses obligates the Prime Minister to remove a minister and deputy-minister from office? Was this the impact of the ruling in Deri [47] and Pinhasi [5]? It is clear to us that this is not the law and that this was not the Court’s intention in those cases.

31. In our opinion, a correct understanding of those cases is that we cannot rely upon an indictment, even if it bears the signature of so exalted a personage as the Attorney-General himself. Rather, the indictment is a document that consolidates the evidence collected in the police file, evidence that prima facie incriminates the accused of the offenses ascribed to him. The indictment may be likened to a container with a label that attests to its contents. Its essence is the evidence gathered in the police file, and the basic assumption is that the indictment is a proper summation of that evidence. In both the Deri [47] and Pinhasi [5], the Court was careful to emphasize this point. In Deri [47] the Court enumerated the offenses of which Deri was suspected, declaring immediately afterward that: “The facts, which reflect the prima facie evidence in the hands of the prosecution, are described at length in the indictment spanning 50 pages.” Id. at 410. The Court added:

We described the main points of the indictment presented to the Knesset in the case at hand. The indictment includes particularly serious allegations of corruption, but it is not a judgment. It only reflects the prima facie evidence collected by the prosecution. But, for the purpose of continued service in the government, significance is also attached to prima facie evidence collected in the indictment, which has now become public knowledge. In terms of the reasonableness of certain actions, circumstances are not assessed solely in terms of their ability to generate a hard and fast judicial determination. It is also significant what type of actions have been attributed to an individual, when clad in the official dress of an indictment ready for filing before the courts.

Id. at 422-23. It was added:

[A]nd if, heaven forbid, an indictment is filed against a minister, based on prima facie evidence, which ascribes to the minister serious offenses that involve moral turpitude both by definition and under the circumstances – e.g. where a minister is charged with accepting bribes, fraud, deceiving state authorities, lying, or making false reports – then it would be neither appropriate nor reasonable for him to continue in office.

Id. at 427 (Levin, J.). In both Deri [47] and Pinhasi [5], the basic assumption was that there was prima facie evidence in support of the accusations. The import of Deri [47] and Pinhasi [5] is that, where there is evidence in the police file in support of an indictment filed against a minister or deputy-minister for serious offenses, then such evidence may obligate the Prime Minister to remove the minister or deputy-minister from office. The salient element is not the indictment as such, but rather the prima facie evidence that has crystallized into an indictment.

32. This interpretation of the ruling is unavoidable. The other interpretation – that an indictment alone is sufficient to remove a minister from office – would deviate from basic legal principles of fairness and justice. Consider the case of a minister who is a candidate for removal exclusively because of the indictment filed against him for serious offenses. He wishes to argue that the indictment was based upon a mistaken understanding of the evidence collected in the police file, and that the charges against him are groundless. The most basic principles of justice require the Court to listen to his claims, and not to refer him to the criminal proceedings to assert his claims. Any other response would undermine the fundamental respect enjoyed by the Court. Furthermore, to confer on an indictment the status of a conclusive document, in terms of the termination of a minister’s office, is tantamount to divesting the Court of its discretionary power, and transferring this power to the attorney who signed the indictment. Such a divestment of judicial power is unacceptable. The Court cannot divest itself of its power to adjudicate and rule in accordance with the evidence submitted to it. Discretion in judicial proceedings belongs exclusively to the Court and the fundamental principle in that context is that the Court cannot delegate its discretion to others, be it to the Attorney-General, or to any of the attorneys in the State Attorney’s Office. By extension, it will not regard an indictment as an irrefutable, conclusive document. The indictment per se will not determine the fate of a minister.

33. To summarize: the rule is that an indictment for serious offenses may lead to a minister’s removal from office. The proper interpretation of this rule is that an indictment constitutes an expert opinion that the police file contains evidence which adequately supports the charges against the minister. It is the supporting evidence behind the indictment that weighs against the minister, and not the indictment itself. Concededly, the indictment adds a certain degree of weight to the probative power of the evidence in the police file, but it is by no means conclusive. An indictment for serious offenses, even particularly serious offenses, does not tip the scales against the minister. But, as we shall shortly observe, the reverse true is not true either – the absence of an indictment does not tip the scales in his favor.

34. We have established that the conclusive element – whether to the minister’s detriment or to his advantage – is not the indictment per se. Consequently, we must examine the evidence itself, and assess its importance for the case at hand. And we must also discharge another duty: an examination of the reasons and circumstances that convinced the Attorney-General, or the State Attorney’s Office, not to file an indictment. Consider a case in which the evidence collected justified an indictment for a particularly serious offense, but the key witness absconded from the country, as a result of which the Attorney-General refrained from filing an indictment. In that kind of case, can one say that the Court may in good conscience refuse to address the matter, and release itself from all responsibility, for the simple reason that no indictment was filed? I think not.

35. The above would also apply to a decision not to file an indictment, and even to a decision to close a police file. It will be recalled that police files are closed for a variety of reasons, and closing a police file without filing an indictment in no way indicates that no offense was committed, or that there is no evidence attesting to guilt. Thus, for example, the category of closing a file “for lack of evidence,” includes cases in which the prosecutor has evidence that connects a particular person with the commission of an offense, only that such evidence is insufficient to prove the commission of an offense beyond all reasonable doubt, the requirement in criminal law. This Court addressed this question in HCJ 7256/95 Fishler v. The Inspector General of the Israel Police [63]:

[F]iles which are closed for lack of sufficient evidence also include investigations of serious and even extremely serious offenses. There are cases in which the investigative bodies have information that leads to the re-opening of a file which was previously closed. This was referred to in the memorandum on the Crime Register and Rehabilitation of Offenders (Various Amendments) Law, 1996, which wasrecently disseminated by the Ministry of Justice:

Where prosecuting authorities close a file for lack of evidence, this does not mean that they have concluded that the suspect did not commit the offense. Closing a file on those grounds may occasionally be purely the result of technical factors, such as a doubt as to whether particular evidence will constitute corroboration, or where the key witness has left the country or otherwise absconded. Accordingly, information contained in these files may still be relevant for those bodies entitled to receive information on closed files, just as information regarding files closed on other grounds is relevant to such bodies.

Id. at 9-10, (Goldberg, J.). A similar argument was expressed in a later case:

On January 2, 1994, the State Attorney issued guidelines regarding the exercise of discretion (Guideline No. 1.3 “The Closure of Files Due to Insufficient Evidence and Due to Lack of Guilt.” The Guidelines clarify the procedure of closing a file due to insufficient evidence. Within the basic framework which governs the closure of files on the statutory grounds of “insufficient evidence,” the guidelines establish a secondary category – the grounds of “lack of guilt.” According to the Guidelines, when a prosecuting attorney concludes “…that there is evidence in the investigation file which raises the suspicion that a person has committed a certain offense, but the evidence is not sufficient for proof of guilt, and is therefore insufficient for indictment – the file regarding that suspect will be closed on the grounds of ‘insufficient evidence,’ and the reason for closing the file will be recorded accordingly.” (para. 2). Where, however, the attorney is convinced “that no offense was committed in the same matter, or that there is no trace of evidence as to its commission, the file will be closed due to a ‘lack of guilt,’ and not due to ‘insufficient evidence’” (para. 6). The Guidelines clarify that the closure of a file due to a lack of guilt – a category not mentioned in the statute – is intended “to prevent the perception of there being any element of doubt as to the innocence of a person suspected of a particular matter, which would cause him unjustified harm” (para. 7). This Court adopted the distinction between a file closed due to “insufficient evidence” and a file closed due to “lack of guilt,” and has ruled that it is justified to close a file for “insufficient evidence” and not “lack of guilt” when the existing evidence leaves a reasonable doubt regarding the suspect’s innocence.

HCJ 2682/98 Appel v. The State Attorney [64], at 137-38 (Strasbourg-Cohen, J.). Compare HCJ 4539/92 Kablero v. The Attorney-General [65], at 56. As stated above: the Court will decide, based on the evidence before it, and not merely because an indictment was filed. Similarly, the Court will examine the reason for not filing an indictment, and this reason will be an apposite consideration in its examination of the entirety of considerations, but no more than that.

36. The rule is that the power to remove a minister from office – which may occasionally become mandatory – is not restricted to cases in which an indictment was filed against the minister. As stated in Pinhasi [5]:

[C]ircumstances may arise in which the mere opening of an investigation justifies the termination of tenure. By contrast, circumstances may arise in which even a conviction does not justify the termination of tenure. In this respect, the particular section under which the indictment is filed is not conclusive. The determinative factors are the circumstances surrounding the commission of the offense and the other circumstances of the case.

Id. at 474 (Barak, J.). In Bar-On [3] it was noted:

Because the test is substantive and not merely formalistic in nature, it cannot be stated categorically that that only an indictment issued with respect to a serious crime, or at least an investigation with respect to the performance of such a crime, are capable of justifying termination of office. The possibility cannot be ruled out that the conduct of a minister or deputy-minister in a specific case, even if it does not amount to a criminal offense, may be so very severe, to the point that it would be extremely unreasonable to allow him to continue in office.

Id. at 63-64 (Zamir, J.). But these comments were soon qualified:

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

Id. (Zamir, J.). We unreservedly concur with these comments, but every case must be determined according to its particular circumstances. We must distinguish between two different types of cases. The first is of a minister or deputy-minister “whose conduct deviates from acceptable standards.” On this basis alone, he cannot be allowed to remain in office. The second is of a minister who has not been indicted due to lack of evidence, even though there exists reliable administrative evidence that he committed a particularly serious offense. The reason he was not indicted was because in the offense could not be proved beyond all reasonable doubt.

Administrative Discretion; Administrative Evidence; “Criminal Past”; Presumption of Innocence

37. Our position is that the evidence in the police file is the primary determinant of the parameters of discretion. This places us firmly in the realm of administrative discretion and judicial review of the discretion exercised by a competent authority. To avoid any suspicion of intentional disregard, we would hasten to add the following: we are aware that the procedure confronting us is not a regular administrative procedure, like the denial of a license to grow cabbage (a subject of great importance to the applicant). And yet, the guiding principles are identical, whether the case is momentous or trivial in nature. The manner of implementation may change, as we will shortly show, but the principles are the same.

38. It is well known that the rules of evidence in administrative law differ from the rules of evidence in criminal and civil law. An administrative authority is entitled, and indeed obligated, to consider evidence that would not be admissible in a criminal or civil proceeding. For example, where a person’s candidacy is being considered for an office or a job, the reasonableness of the appointment will be assessed in accordance with the rules of administrative evidence. These rules of evidence are less strict than their counterparts in civil and criminal judicial procedures. Administrative evidence is evidence which “any reasonable person would regard as having probative value and would rely upon to any particular degree.” See HCJ 442/71 Lanski v. Minister of the Interior [66], at 357. The well of potential evidence is bottomless, and clearly includes evidence that is not admissible in criminal or civil judicial proceedings. Compare Lanski [66]; CA 5709/95 Ben-Shlomo v. Director of The Value Added Tax Authority [67], at 251; II Itzchak Zamir, Administrative Authority 751 (1996).

This type of framework is capable of accommodating findings in a judgment made against a third party, to which the candidate himself was not a party. Compare Eisenberg [6], at 272. This includes findings of a police investigation, and decisions of the State Attorney which did not crystallize into an indictment. Compare Fishler [63], Kablero [65], and Appel [64]. The question is whether the competent authority was presented with “sufficient evidence on which a reasonable person could rely, under the circumstances, in order to adopt the decision in question.” See HCJ 164/97 Kontram Ltd. v. Ministry of Finance [68], at 332.

In the administrative realm, therefore, the litmus test is neither technical-legal nor mechanical in nature. The test is one of reasonableness, of common sense. This applies both to the selection of the information on which the authority chooses to rely, and to the weight of the various factors under consideration. This point has been noted by the Court:

In order for an authority to rely on a particular piece of information, the latter must satisfy the test of admissibility for administrative evidence. This test is a flexible one. It allows the administrative authority to consider evidence that is not admissible in court, such as hearsay. Even so, not every wild rumor provides sufficient basis to substantiate a finding. The test is therefore one of reasonableness: the administrative authority is entitled to rely on information that relates to a matter on which a reasonable person (or more precisely – a reasonable authority) would rely in order to reach a decision regarding the matter in question.

The relevant information, which is the information that satisfies the test of administrative evidence, becomes the foundation of the decision. This foundation must be sufficiently sturdy to support the decision. What is the meaning of “sufficiently” for this purpose? Here, too, the determination of what constitutes sufficient evidence is a question of reasonableness. In other words, the nature of the facts must be such that a reasonable authority would rely upon it in order to adopt the decision.

HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, [69] at 424-25 (Zamir, J.). Regarding the distinction between the filing of an indictment and a conviction, compare Deri [47], at 422-23, and Pinhasi [5], at 462.

39. The boundaries of administrative evidence also cover a person’s “criminal past.” As is well known, in criminal proceedings, at the crucial sentencing stage importance is often attached to the offender’s past criminal convictions in order to show his “criminal past.” This is not the case in administrative procedure: a person’s “criminal past” can also be proven on the basis of administrative evidence, not just a judicial conviction. This point was made in Bar-On [3]:

Only in the most extreme cases will the Court compel the Prime Minister to exercise this power [to remove a minister from office]. These are cases in which there is administrative evidence of the commission of serious criminal offenses and a threat of serious damage to public confidence in the government authorities. One could perhaps add cases of extreme deviation from the moral integrity required of a person serving as a minister.

Id. at 68 (Or, J.). The Court related to this again more recently:

Generally, an administrative authority establishes facts on the basis of administrative evidence. Administrative evidence is evidence that a reasonable person (or reasonable administrative authority) would rely upon under the circumstances. This rule was established long ago and is now generally applied in all matters. The Court has also affirmed its application in various contexts with regard to the proving a person’s criminal past or criminal conduct. The Court has affirmed its application regarding decisions of the Parole Boards to revoke a prisoner’s leave pass, due to the commission of an offense; regarding the decision of a military commander to destroy a building following a murder; regarding the President’s power to pardon “criminals;” and similarly regarding the appointment of a person with a criminal past to public office.

HCJ 1227/98 Malevsky v. Minister of the Interior [70], at 715-16.

As we have already determined, these rules fully apply to an appointment to a public office, and in this context, ex hypothesi, there is no room for a strict application of the “presumption of innocence.” This presumption informs us that a person is presumed innocent until convicted. It applies to the criminal procedure and to the punishment of an offender in the manner set out by law. As for the administrative procedure when an authority is required to rule regarding a person’s “criminal past,” it can do so on the basis of administrative evidence, without a criminal conviction. This rule was dealt with at length in Eisenberg [6], where the Court distinguished between a criminal conviction, and a person’s “criminal past” under administrative law. The Court stated:

A criminal past for purposes of a particular appointment is not to be identified with a criminal conviction. We are dealing with an administrative decision of the government to appoint a particular person to a public position. This is not a decision to a statutory penalty. While there can be no criminal punishment without a conviction, this does not apply to an appointment. With respect to an appointment, it is the factual picture with which the appointing authority was presented that is relevant. The relevant question is, therefore, given the facts as presented to the authority, could a reasonable authority have deduced the commission of a criminal offense? If so, this would be sufficient in order to establish “a criminal past” for purposes of deciding the reasonableness of the appointment. Of course, for purposes of determining the reasonableness of the administrative decision, the commission of the criminal offenses attributed to the candidate is the decisive factor. A criminal conviction is clearly sufficient “evidence” of this, but there are other forms of evidence, such as a confession before a competent authority.

The applicable rule in the case before us is the “principle of administrative evidence.” A governmental authority is permitted to base its findings upon evidence which, under the circumstances, is such that “any reasonable person would have regard to its probative value and would have relied upon it.” An administrative finding may be based upon “material whose evidential value is such that reasonable people would regard it as sufficient to draw conclusions regarding the nature and occupations of the persons concerned.”

Id. at 268. This ruling has embedded itself deep within Israeli law. See HCJ 932/99 The Movement for Quality Government in Israel v. Chairman of the Committee for the Examination of Appointments [71], at 769; HCJ 4668/01 MK Yossi Sarid v. Prime Minister Ariel Sharon [hereinafter: Bus 300 [72]], at 265; HCJ 5795/97 MK Yossi Sarid v. Minister of Defense [73], at 799. And, in accordance with Deri [47] and Pinhasi [5], this is also the rule for the examination of appointments and the tenure of ministers and deputy-ministers:

[W]e must consider the fact that we are only concerned with an indictment prepared by the Attorney-General. Deputy-Minister Pinhasi has not been convicted, and continues to protest his innocence. The weight attached to the concern for the public’s confidence in the authorities when a public figure has been convicted or admits to an offense is not the same as the weight of that consideration when there is only an indictment, and when the accused protests his innocence. Even so, this consideration should not be given conclusive weight. Our concern is with a governmental act of termination of office. In order to justify such an act, there is no need for a criminal conviction. While every accused person enjoys a presumption of innocence, that presumption does not prevent the termination of the office held by the accused. The only condition is that the governmental authority making the decision must have evidence, which under the circumstances is such that “any reasonable person would regard it as having probative weight and would rely upon it.” Justice Shamgar also made this point, ruling that an administrative finding can be based on:

“ [M]aterial whose evidential value is such that reasonable people would regard it as sufficient for drawing conclusions regarding the character and conduct of the persons concerned.”

And Justice Sussman commented in a similar vein:

“[T]he rule that a person is presumed innocent in the absence of evidence to the contrary, does not imply – and nor am I aware of any other legal principle which implies – that an administrative authority which must be convinced of a person’s criminal past may only determine that he has a criminal past if he was convicted by the courts.

Should we strike down the commissioner’s refusal to appoint a candidate as a civil servant when such refusal was based on reasonable evidence of a criminal past, simply due to the lack of a conviction? Let us assume that this applicant desired to be accepted into the public service, and the Commissioner refused to accept him for the above reasons. Would we force the Commissioner to accept him due to the lack of a conviction?

An administrative authority is empowered to make a decision regarding an individual’s personal history, but is not empowered to swear in witnesses and collect evidence in the manner that it is collected in court. Therefore there it is appropriate that its decision be based on evidence which would persuade a reasonable person as to the applicant’s past. This will apply even where the evidence is not admissible in a court of law, and even where it lacks significance in judicial proceedings.”

I also addressed this issue in Eisenberg, at 268:

“[W]hen assessing the reasonableness of a decision of an appointing governmental authority, the decisive factor is the criminal offenses attributed to the candidate. A criminal conviction is certainly an appropriate “proof,” but there are other means of proof.

The relevant principle in our case is the “principle of administrative evidence.”

Pinhasi [5] at 467-69.

40. In this context we would do well to recall respondent’s claim regarding the presumption of innocence. Respondent informs us:

The presumption of innocence is one of the most basic rights conferred on all citizens in any democratic regime. It is intended to protect a person who has not yet been convicted from restrictions and sanctions which express his status as a criminal. The principle is well-known and well-established. Any determination regarding Hanegbi’s unfitness to serve in particular positions necessarily expresses at least a limited presumption of his guilt, and diminishes the presumption of his innocence.

Moreover, respondent claims that it is an elementary human right that a person be allowed to defend himself against an accusation. Respondent claims:

[T]his elementary right, “a person’s lawful right to defend himself,” was effectively denied to Minister Hanegbi due to the decision not to file an indictment or try him. Paradoxically, if petitioner’s claim is accepted, the result will be that this decision was the most damaging of all, because he no longer has the legal means to prove his innocence.

Respondent here confuses two distinct issues, and hence his conclusion is mistaken. A clear distinction must be made between respondent as a private individual, and respondent as a minister. Furthermore, he is not just any minister, but the Minister for Public Security, in charge of law enforcement. The presumption of innocence resembles the right to silence. Both are granted to a person as a private individual. Consequently, as long as a person’s guilt has not been proven beyond all reasonable doubt, and with due legal process, he is presumed to be innocent of any crime, and no penal sanction may be imposed upon him. But there is no connection between criminal proceedings – the object of which is the imposition of sanctions – and a person’s appointment as a public official. Is the mere fact that a person has not been indicted sufficient, in and of itself, to render him “fit” to be a minister? From the legal standpoint, surely more is required? If this is respondent’s view, then it contradicts the law. “The presumption of innocence – enjoyed by every accused person – does not prevent the termination of service of a public official.” See Pinhasi [5], at 468. Following this holding, I declare that, for our purposes, there is no requirement for evidence beyond all reasonable doubt in order to render a person unfit for service as a minister. As noted in Bar-On:

It cannot be stated in an unequivocal manner that a person’s removal from office can only be justified where an indictment has been filed or an investigation has begun.

Id. at 63. Even evidence of less import than that obtained in a criminal investigation may be sufficient. This is even more true in our case, especially when we consider two elements. First, the cumulative effect of the accumulated cases against respondent. Second, the fact that the Prime Minister insists that respondent not only be a minister, but specifically the Minister of Public Security, the minister in charge of the police and law enforcement.

“Political” Considerations; Intervention in the Prime Minister’s Discretion

41. Until now we have referred to considerations of a person’s “criminal past.” But these are just a small part of the whole picture that the Prime Minister must consider when making a ministerial appointment, or when considering whether to remove a person from office. We all know that a person’s “criminal past” is not the only factor which the Prime Minister is permitted and obligated to consider when deciding whether a particular person will be a minister, or will be removed from office. Furthermore, in the political reality with which all are familiar, these are not even the main considerations. The parameters of the Prime Minister’s discretion are very broad, and take in a wide array of considerations, among them the candidate’s suitability for the office, the best interests of the public in the broad sense, and others.

42. In this question – whether to appoint or dismiss a minister – the Prime Minister is entitled to consider a wide range of factors. Furthermore, the political context of the appointment means that the Prime Minister’s considerations also include “political” considerations such as the formation of a stable and viable coalition. For our purposes, these considerations are entirely legitimate. In fact, these considerations are central to the establishment of a government and its continued existence. In this regard, Justice Barak stated the following:

“Political” considerations – which may be illegitimate in other contexts – are appropriate when considering the removal of a deputy-minister from office. The need to maintain a coalition and to secure the continued confidence of the Knesset is certainly a relevant consideration. Similarly, weight must be given to the fact that the deputy-minister has not been convicted in court. All that there is against him is an indictment, and an indictment does not amount to a conviction.

Pinhasi [5], at 463. See also Deri [47], at 423, 427, 429.

43. The range of reasonableness is as broad as the power itself, and the court’s power to intervene in the Prime Minister’s discretion is limited to the same degree. Accordingly, deciding whether the Prime Minister deviated from the range of reasonableness is particularly difficult. In fact, it is only in rare and exceptional cases that the Court will see fit to intervene in the acts of the executive regarding cabinet appointments.

The breadth of the Prime Minister’s discretion requires our special attention. His power is unique. Compare Bar-On [3], at 57-59. The scope of judicial intervention is inversely related to the scope of the Prime Ministerial discretion; the latter expands as the former contracts. The fact that we do not agree with the Prime Minister’s decision to appoint a particular individual as a minister or to a particular ministry is not enough to strike down the decision. It is not our role, nor is it within our power, to evaluate the merits of a decision. We must confine ourselves to the question of its legality. Accordingly, the Court may only strike down a prime ministerial decision concerning the removal or retention of a minister allegedly involved in criminal acts in unusual and exceptional circumstances.

44. It is certainly conceivable that the Court might be averse to a particular decision of the executive branch. But it is incumbent upon us to make a clear distinction between those acts and omissions which belong to the ethical realm and do not enter the realm of the law, and those that belong to both the ethical and legal realms. The latter are acts and omissions flawed by extreme unreasonableness which may thus be subject to judicial annulment. Particular acts or omissions of the executive branch may be ethically problematic, but the Court will not interfere with them unless they are also illegal. “[T]he law cannot, and should not replace ethics, except to limited extent, on a case-by-case basis, in a controlled and cautious process.” See Bar-On [3], at 62. Hence, where a decision is unethical, but remains a matter of ethics, we are not empowered to intervene. Compare also Itzchak Zamir, Ethics in Politics, 17 Mishpatim 255-58 (1988) [106].

We must remember that the judicial branch is charged exclusively with upholding the law and of those ethical areas that have been incorporated into the law. See Bar-On [3], at 61; HCJ 1635/90 Zersevsky v The Prime Minister [74], at 764; HCJ 1843/93 Pinhasi v. Knesset Israel [10], at 698-99; HCJ 5364/94 Velner v. Chairman of the Israeli Labor Party [75], at 818; HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney-General [51], at 561.

“It’s Not Done”

45. All the same, it must be remembered that the intensity and the scope of judicial intervention in acts of the executive depends on the executive’s conduct. Ideally, a government is meant to operate in compliance with the principle that “it’s not done.” This is essentially a concept of governmental culture as distinct from a legal concept. What it means is that there are certain things that the executive should not do simply because they are not done, according to the appropriate norms of conduct in society. A person who is act in contravention of these norms is to be condemned. As the scope of “it’s not done” expands, the scope for judicial intervention contracts. Fortunate is the society whose government has internalized the culture of “it’s not done.” Fortunate is the Court that is not required to decide matters relating to the culture of “it’s not done.”

From the General to the Specific

46. This completes our discussion of the basic legal framework. Applying these principles to respondent’s case, we ask ourselves the following question: was his appointment as Minister of Public Security so flawed that it must be regarded as an invalid appointment, or an appointment which should be invalidated? Was the respondent’s appointment as Minister of Public Security so extreme a deviation from the range of reasonableness as to warrant a ruling that, from the legal standpoint, respondent is not worthy of continuing to hold that office?

47. This Court issued an order nisi directing the Prime Minister to explain his reasons for appointing respondent as Minister of Public Security despite the fact that, from a legal standpoint, the appointment was fundamentally flawed. Both the Prime Minister and respondent replied to the order nisi, but the Prime Minister’s response is the crucial one. In our comments above we surveyed the principle factors that should govern the Prime Minister’s discretion when deciding on the appointment of a minister, or on his removal from office. We will now examine the considerations that led the Prime Minister to appoint Hanegbi as Minister of Public Security, and why, in his opinion, Hanegbi is fit to continue serving in that capacity. However, instead of describing and summarizing the Prime Minister’s comments, we will let the Prime Minister speak for himself, and we will simply listen. In his affidavit to the Court, the Prime Minister informed us as follows:

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

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

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

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

In my view, the nature of the position offered to Minister Hanegbi and the particular powers exercised by the Minister of Public Security do not create any significant concern of conflicts of interest which might affect the minister’s conduct or impair his professionalism and the integrity of his discretion when exercising his authority … We need to remember that the Minister of Public Security is not a “supra-Inspector-General” who wields direct control over all matters pertaining to Israel Police, and this is true especially insofar as the Investigations Branch is concerned. The minister’s powers consist of broad powers of supervision, approval, planning, and the provision of guidance where necessary. In discharging his duties it is essential that there be a close and ongoing connection with police bodies. The decisions and actions of the Minister of Public Security are not the product of his personal preferences; they are the product of cautious and calculated discretion, backed up by extensive data provided by the police bodies. With respect to investigations, the minister is not involved in specific cases; his concern is exclusively with matters of policy.

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

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

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

48.The Prime Minister thus informs us that he considered Hanegbi’s manifold talents, his many years of experience in demanding public and government offices, and his professional achievements in all of his roles. The Prime Minister expresses his confidence that there is no real concern of a conflict of interest in Hanegbi’s duties as Minister of Public Security, and in this context he also explains that the Minister of Public Security, is not a “supra-Inspector-General.” The Prime Minister also informs us took the Derech Tzleha case into consideration, but he did not find it to be an impediment to Hanegbi’s appointment as Minister of Public Security. As for the concern that Hanegbi will face a conflict of interest as Minister of Public Security, the Prime Minister refers to the numerous statutory supervisory mechanisms, and faithfully assures us that this fear has no basis. Once again, we will let the Prime Minister speak for himself:

21. Regarding the claim of conflicting interests: petitioner is concerned that a possible conflict of interest will arise whenever the promotion of any of Hanegbi’s investigators is on the agenda, when allocating budgets for certain branches or departments, and in relation to the disciplinary powers conferred upon the minister. In this context, it should be mentioned that during the entire period of Hanegbi’s service as Minister of Justice, no claim was ever made which could have substantiated the fear raised by petitioner.

First, it should be made clear that ever since the 1988 Amendment to the Police Ordinance (Amendment No. 9), the Minister of Public Security does not have any powers in matters of disciplinary adjudication.

It should be emphasized that, notwithstanding the minister’s overall ministerial responsibility, which finds expression in various provisions of the Police Ordinance, the Israel Police and those at its helm are managerially independent. This is evidenced both in explicit provisions, such as section 9 of the Ordinance, and on a practical level – in working procedures which express the principle of the independence of the police.

Regarding the appointment process, section 7 of the Police Ordinance establishes and regulates the minister’s power to appoint a senior police officer, i.e. an officer from the rank of deputy commander upwards. The manner of exercising the power is subject to the rules of administrative law, including the duty of consultation with the Inspector-General of the police and additional professional bodies, prior to making the appointment. As a rule, the Inspector-General of the police submits his own candidates to the minister for each particular role; for as head of the system, it is the Inspector-General who has to work with the particular officer who is chosen. Rejection of the Inspector-General’s candidate and appointments that are made against the Inspector-General’s judgment, require weighty considerations, all of which are subject to judicial review in accordance with the principles of administrative law.

Regarding the budgetary issue, section 9 of the Ordinance makes the Inspector-General responsible for all expenditures connected to the administration and operation of the police. Besides this section, the provisions of the Foundations of the Budget Law, establish the responsibility of the Minister of Public Security, like any other minister, for the budget of the ministry over which he is charged. For our purposes, this also includes responsibility for the budgets of auxiliary units – Israel Police and the Prison Services.

The Ministry of Public Security’s Director-General, through the Planning, Budgeting and Inspection Department, is charged with the formulation of the ministry’s budget. Before preparing the budget proposal, the minister and the Inspector-General determine the priorities and policies for the coming year. They work closely together on this task. On the basis of these policies, the budget proposal is prepared by the planning division in coordination with the various police departments. The budget proposal is then presented for the approval of the Inspector-General, the Director-General and the minister.

Like the Director-General and the Inspector-General, the minister does not interfere with the budget’s particulars. Their role is to assess whether the budget proposal that was prepared in fact expresses the policies and the priorities determined by them.

Once the budgetary framework for each department has been fixed, the head of each police branch is responsible for the allocation of the budget within his branch, and within its auxiliary and subordinate units, down to the level of the individual police station and the individual policeman. In this respect, the head of a police branch has independent discretion.

The coordination required between the Inspector-General and the minister at the level of policy and priorities, together with the independent discretion of the police in budgetary details, remove any basis for concerns of conflicts of interest, or inappropriate considerations.

Therefore, there exists an array of internal mechanisms governing all matters relating to the minister’s functions. Respondents wish to reiterate that with respect to investigations, the Minister of Public Security deals exclusively with matters of policy, and does not interfere with specific investigations.

49. Hangebi also made various declarations similar to those of the Prime Minister and, like the Prime Minister, he stresses that his role is to set out policy. He does not regard himself as authorized to interfere with the decisions of the police taken at the professional level. In the words of his affidavit:

The internal management of the Israel Police and its head [the Inspector-General] is totally independent of the Minister of Public Security has ministerial responsibility for the police, but he is not a “supra-Inspector-General”; he has no disciplinary powers of adjudication, and no power to intervene in particular investigations. The police budget proposal is drawn up by the planning division in cooperation and coordination with headquarters and the budget division of the Finance Ministry. In addition to the minister’s approval, the ministry budget also requires the approval of the Finance Committee and the Knesset.

50. Respondents’ claims – both those of the Prime Minister and of Hanegbi himself – aim to minimize respondent’s authority as the Minister of Public Security as much as possible. In support of their position they cite the lack of authority for disciplinary adjudication, the Inspector-General’s independence with respect to the management of the police, the fact that ministerial powers are subject to consultation, consideration of the views of the Inspector-General and other professional bodies, and the extreme difficulty of making any appointment without the Inspector-General’s consent. Regarding the budget, the planning division handles its preparation, with the cooperation of the other police departments; the Inspector-General is responsible for supervision of expenditure; and he does not intervene in the details of the budget. On the policy level, there must be coordination between the minister and the Inspector-General. Regarding investigations, the minister deals exclusively with determinations of policy. These claims attempt to demonstrate that there is no fear that the minister will act illegally.

Hanegbi further informed us that he bears no grudge against those police officers who investigated him, and that he has no intention of impeding their promotion or harming them in any other way. In his own words:

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

51. Do the Prime Minister’s words, reinforced by Hanegbi’s own comments, place Hanegbi’s appointment as Minister of Public Security within the legal range of reasonableness? Do Hanegbi’s virtues, combined with his accumulated achievements in public office, tip the scale in his favor? When assessing pros and cons, duties and responsibilities, we must remember that the scope of discretion here is particularly broad, comprising a wide range of legitimate considerations, including “political” considerations, such as the candidate’s electoral power and the ability to put together a coalition and establish a government. In Bar-On [3] we stated:

Petitioner claims that the Justice Minister’s “was found to have behaved in contravention of the standards of proper public administration by applying defective criteria which violate the principles of integrity.” Petitioner claims that “a minister may have no blot on his character,” especially the Minister of Justice. Petitioner concludes, therefore, that since the Minister of Justice is tainted, the Prime Minister is obligated to remove him from office.

Without deciding whether petitioner’s presentation reflects the desirable law, it is definitely an incorrect presentation of the existing law. In our less-than-ideal world, the mere fact that a minister’s record is blemished is not sufficient to legally obligate the Prime Minster to remove him from office. The Prime Minister is only obligated to dismiss a minister, under section 35(b) of Basic Law: The Government, when his refusal to do so would be unreasonable in the extreme.

Id. at 57 (Zamir, J.). Evidently, a blemished record is not sufficient in this case. The blemish must be serious, perhaps even a permanent stain, in order to obligate the Prime Minister to refrain from appointing a minister or to remove a minister from office. Personally, I am not certain I can give my unreserved agreement to this formulation. “A respected scholar whose cloak is stained – is liable to the death penalty.” Babylonian Talmud, Tractate Shabbat 114A [108]. A minister must be above reproach. In this context we should recall that not just a conviction, or a pending indictment, but also less severe circumstances may obligate the Prime Minister to refrain from appointing that person as a minister, or to remove a minister from office. See para. 22 above.

52.The Prime Minister’s affidavit (and also Hanegbi’s) contains a lengthy description of Hanegbi’s virtues and merits, and only relates sparingly to his faults and failures. Regarding the Derech Tzleha case, the Prime Minister informs us as follows:

15. As indicated in the Attorney-General’s opinion of 2001, which is appended in full to this affidavit, the events at the basis of the Derech Tzleha case, occurred between 1994 and 1996. In 1999, the Knesset Ethics Committee found Hanegbi to be at fault, and he was punished. The Attorney-General claimed that these acts indicated impropriety, which according to those concerned, constituted an offense. At the end of the day, the decision was made that there was no reasonable chance of conviction, and it was decided to close the file for lack of evidence. Notably, the entire investigation was conducted at a time when Hanegbi was serving as Minister of Justice.

In March 2001, immediately prior to the formation of the government (following the elections of February 2001), the Attorney-General informed the Prime Minister of Minister Hanegbi’s involvement in the Derech Tzleha case. He advised the Prime Minister, for reasons primarily from a civic perspective, not to appoint Hanegbi to any of the ministries dealing with law enforcement. The reason for this was that the file had been closed relatively recently. At that time, I did not appoint Minister Hanegbi to one of these offices.

This time around, immediately after being informed, post factum, of the decision to appoint Hanegbi as the Minister of Public Security, the Attorney-General appraised Dov Weisglas, Director-General of the Prime Minister’s Office, of his position regarding the appointment. The Attorney-General said that while strictly speaking there was no legal impediment to the appointment, it was nonetheless problematic, prima facie, from a civic perspective. The Attorney-General also discussed the matter with Minister Hanegbi, and heard his position that there were no grounds for blocking the appointment, since the closure of the file for lack of evidence had prevented him from proving his innocence. He further stressed that the Minister of Public Security is not responsible for specific investigations and does not interfere with them.

It should be clarified here that, it is part of the role of the Attorney-General to express his opinion about governmental deliberations, orally or in writing, regarding public ethical issues, including non-legal matters. It is then up to the executive branch to take this position into consideration.

The other three affairs are only mentioned in the Prime Minister’s affidavit, in the context of an assortment of legally related claims. One can only wonder, is a police recommendation to indict a minister a regular every-day situation? Does the Attorney-General make a habit of writing long and detailed opinions regarding his decision not to indict a minister? It would have been appropriate for the Prime Minister to elaborate and explain his decision to ignore the Attorney-General’s recommendation, just as he elaborated on Hanegbi’s talents and merits. Ultimately, this matter is not a formal legal issue. Rather it is a matter of basics principles, running deep to the very foundations of our self-image. Our way of life as individuals and as a society depends on such a decision.

53. All agree that the realm of politics differs from the realm of law. The considerations may be the same in each realm, but the weight given to these considerations. “We accept that the Court should be guided by the formula of what is ”just and efficienct,” except that justice must precede efficiency.” See CA 4012/96 Benny Shachaf Freights and Investments (1976) Ltd v. First International Bank of Israel [76], at 505; CA 3602/97 Income Tax and Property Tax Commissioner, Minister of Finance, State of Israel v. Daniel Shachar [77], at 331-32. This principle holds in the realm of law, but not in the realm of politics. This is clearly evidenced in the Prime Minister’s affidavit, which elaborates on the appointment, while devoting minimal attention to the principle of justice in its broader sense. Here we must add that a person’s efficiency and his broad experience in government service are certainly valid and appropriate considerations. However, they do not necessarily tip the scales when weighed against serious considerations concerning improper actions on a public-ethical level. The Court made this point in Bus 300 [72]:

Where there is a clear and direct connection between past offenses committed by the candidate, and the post he is designated to fill, the conclusion may be that his criminal past renders him absolutely unfit for that particular position. Under these circumstances, considerations that might have been regarded as supporting his appointment had he been a candidate for another position (for example the passage of time since the execution of the offense, his regret, his efficient functioning since the offense, and his professional talents) will be of no avail, and his candidacy will be rejected. In determining whether such a connection exists, the considerations cannot be limited to the essence of the offenses and their circumstances, the position in which he committed the offenses and the position now designated for him. Consideration must also be given to the gravity of the moral blemish of the offense. In other words, a connection which renders a candidate unfit is not only a function of the weight ascribed to his criminal past in assessing his professional ability to serve in the new position, but also of his moral stature in respect to the position. Where a close connection exists between the candidate’s criminal past and the position for which he is a candidate, his candidacy should be disqualified, unless there is a real and pressing state of emergency that necessitates his appointment as a uniquely qualified candidate.

See also HCJ 7279/98 MK Sarid v. The Government of Israel [78], at 762.

54. I confess that respondent’s case bothers me deeply. I cannot agree with the Prime Minister and the Attorney-General, and certainly not with respondent, that the matter is clear from a legal standpoint. I cannot agree that judicial intervention in the Prime Minister’s decision is forbidden by law. At the same time, even if our intervention is permitted, we will not rush to instruct the Prime Minister what to do and what not to do. During these proceedings it has been mentioned on a number of occasions that a “cloud” hovers over respondent’s appointment as Minister of Public Security. But a single cloud is insufficient to strike down a person’s appointment as minister. A gathering of many dark and threatening clouds is necessary.

55. Are there dark clouds gathered over respondent? Regarding his manifold and proven executive talents, as manifested by his years in the public service, I have no quarrel with the Prime Minister. The Prime Minister believes that respondent has proven himself as an effective executive figure. Petitioner did not contest this assertion, and we too can accept it. This assessment, however, relates only to his executive capabilities; it does not reflect the ethical problems with respondent’s actions, which we dealt with at length above. When assessing the undisputed acts of respondent, even if the Attorney-General does not consider them sufficient for a criminal conviction, I have difficulty in agreeing with my colleague, Justice Rivlin, that there is absolutely no justification for interfering with the Prime Minister’s discretion. We can accept the Attorney-General’s determination that there was insufficient evidence in the police file for a conviction in court, but we have difficulty in accepting that there is no hard and convincing administrative evidence for the purposes of this case. In this context, it is appropriate for us to recall comments made in Eisenberg [6]:

For this purpose, the gravity of the offence is determined not by its ”position” in the Penal Law, but by its implications on considerations that underlie the appointment. Consequently, an offence should be regarded as serious where its very essence and the circumstances of its commission not only undermine law and order in general (such as murder, robbery, or rape) but also the foundations of government structure (such as bribery, fraud and breach of trust, perjury, fabricating evidence, or obstructing the course of justice). A candidate who has committed these offences and holds a senior office in the civil service undermines the public trust in the executive authority and the civil service. He will have difficulty in serving as an example and a model for his subordinates. He will have difficulty requiring of them what is required of every civil servant but which he himself has profaned. He will have difficulty in radiating fairness, trust, prestige, honesty and integrity to the general public. All of these will affect, to a large degree of certainty, the status, functioning and position of the civil service in a democratic society.

Id. at 266.

56. This is the general rule guiding the judicial assessment of respondent’s actions. And it is even more true when applied to the complex relationship between respondent and the police. In this respect, we should recall the police investigations that led to the recommendations to indict him.

The cases against respondent, and their cumulative weight in particular, enjoin us from ignoring the “critical mass” that was created by the Derech Tzleha affair, which came to light after the Bar-On case was closed. Even if we ignore the first affair (the brawling), the cumulative weight of the other three cases, and especially the last two, removes the question of respondent’s appointment from the realm of ethics and public morality, and places it squarely in the realm of law. There exist considerations which may necessitate the termination of a minister’s service in the government, such as the stature of the government and its public image, public confidence in the government, and the need for the government and the administration to conduct itself in a manner which is honorable, fair and worthy of respect. The more we examine these cases, the harder it is to understand how respondent can function as Minister of Public Security. In making these comments we also take into consideration the gradual deterioration of the standards of conduct of public figures and leaders, a decline that has led to desensitization and the lowering of national standards of public morality.

57.We are also witness to a conflict between considerations of efficiency and executive abilities on the one hand, and the morality of respondent’s actions, his stature and his dealings with the police, on the other hand. Which of these considerations outweighs the others? Is there a possibility for some kind of compromise between the conflicting considerations? We should remember that the Court is not empowered to decide; that role belongs to others. The Court’s role rather is to supervise and review compliance with principles of law and justice.

58. As for the judicial evaluation of respondent’s actions, we will not add any further explanations of the affairs. We will concentrate primarily on the relations between respondent and the upper echelons of Israel Police, particularly with the Investigations Branch. As noted above, the police investigated respondent and, on more than one occasion, recommended that he be indicted. Respondent informs us that he bears no grudge against the investigators. Regarding the future, respondent adds that all of his actions will be closely watched, and that there will be no abatement of public scrutiny. Respondent declares in his affidavit:

In the event that any of my future actions provide any substantial concern regarding a conflict of interest or the involvement of extraneous considerations in my decisions, I am absolutely certain that the doors of this Court will be open to petitioners. My actions will be the test. I see no reason for discussing hypothetical and far-fetched possibilities at this time. We will cross each bridge as we come to it. From that perspective, the petition is premature and theoretical, and should be dismissed.

This is a fine declaration, and it is correct, on the whole. Nevertheless, the fact remains that respondent was until recently the subject of a police investigation, in which evidence was collected, and which culminated in the investigators’ recommendation to indict him for offenses involving moral turpitude. This being the case, we cannot agree that he should now be placed in charge of the police, including his investigators and their superiors. Presumably, police investigators are uncomfortable when requested to investigate a minister suspected of committing an offense, whether by act or omission. I need not explain why. However, the entire matter becomes surreal when the subject of the investigation, shortly after the investigators recommend his indictment, becomes their superior. Yesterday, the investigator sat in the director’s chair, interrogating the minister. Today, the former suspect sits in the director’s chair and the interrogator is subordinate. My colleague, Justice Rivlin referred to the “bounds of deference” that inform the relationship between the authorities. I would sooner talk in terms of human dignity. Does not this role reversal, where the suspect has so soon become the boss and the investigator his subordinate, thoughtlessly trample on the dignity that should inform the relationship between people? Both the investigator and the suspect are human beings. Should we deal such a blow to the dignity of the police investigator?

59. In the Derech Tzleha affair, the police investigation culminated in 1999 in a recommendation to indict respondent. At the beginning of 2000, the prosecution, headed by the Attorney-General, decided to indict respondent for a number of offenses, subject to a preliminary hearing (see para. 11 above). The preliminary hearing was conducted in September 2000. While justifying the investigation, the Attorney-General decided in March 2001 against an indictment, given that there was no reasonable chance of conviction. The Bar-On affair occurred in January through April 1997, with the judgments on the petitions that challenged the Attorney-General’s decision being handed down in June 1997. In addition to these two cases, we should also mention the ISTA case, which was closed in 1992. Parenthetically, it could be said that a person who holds himself up as a trustee – and ministers all have this status, as we have seen – should voluntarily declare himself unfit to act as the superior of those who recently investigated him for criminal offenses. All the more so in light of the fact that the investigators recommended that he be indicted. After all, human beings are not angels.

60. The conflict of interest between respondent and the higher echelons of Israel Police, particularly the upper ranks of the Investigations Branch, cannot be ignored. The Minister of Public Security is empowered to appoint police officers from the rank of deputy commander upwards (section 7 of the Police Ordinance). The Inspector-General of the Police is appointed by the government, on the recommendation of the Minister of Public Security (section 8A of the Police Ordinance). Of course, the minister’s power in making appointments is subject to particular conditions (as claimed by the Prime Minister): administrative law, hearing the position of the Inspector-General, and others. Still, we find it difficult to accept that these factors alone obviate all concerns regarding conflicts of interest in the relations between respondent and the Police Investigations Branch. In light of all this, we find it difficult to understand how respondent is capable of being unbiased in making senior appointments, promotions of officers, and dismissals in the Investigations Branch.

61. Respondent claims that his investigators numbered no more than five or six, and he therefore asks: can he be prevented from serving as Minister of Public Security because of five or six people. There are two answers. First, as we observed, our concern here is not with a conflict of interest alone, but rather with respondent’s behavior in general. Second, and most importantly: indeed there were five or six people who directly interrogated respondent, but what about their superiors? And the superiors of their superiors? Each rank has a rank above it, to which it is answerable and subordinate. We know that respondent was a minister at the time of both the Bar-On and Derech Tzleha investigations. Presumably, his interrogation was authorized by the upper echelons of the Investigations Branch. In other words, the tension between respondent and the police is not confined to only five or six police personnel.

62. The Investigations Branch of the Police forms a central part of the Ministry of Public Security and, by definition, the Minister of Public Security is in charge of this branch. We agree that the minister is not personally involved in particular investigations being conducted by the branch. Respondent explicitly declared that he has “no power to intervene in particular investigations.” However, respondent is neither able nor empowered to divest himself of the power to make appointments in the Investigations Branch, and this is the pitfall. On the one hand, respondent is both empowered and obligated to appoint officers in the Investigations Branch. On the other hand, the past relations between the Investigations Branch and respondent make it difficult to accept that respondent is capable of making totally unbiased appointments. The conflict of interest is inescapable. We must add to this equation the considerations, detailed above, which disqualify a person from appointment to a particular office. The combination of all of these leads us to the conclusion that, from a legal standpoint, respondent’s service as Minister of Public Security is inappropriate and unacceptable.

63. This conclusion, based on the law and the facts presented to us, was difficult one and, even in writing this judgment, I wavered. For example, it was extremely difficult to weigh the conflicting considerations – efficiency on the one hand and morality on the other – because these considerations are not comparable. Like oil and water – they do not mix. Ultimately I decided that we should be guided by legal principles, which have long been firmly entrenched in our system. The first and most important rule is that the Court will not invalidate an executive-administrative act unless all other alternatives have been exhausted, and there is no other option. Accordingly, where there is a request to render a person unfit for a public office, “the tendency is to initially consider more moderate means, and only to implement the extreme measure as a last option.” See MK Sarid [78], at 758 (Or, J.). The tendency is to “try to limit the use of the extreme measure of disqualification, save as a last resort, if there is no other more moderate way of neutralizing the fear of conflicting interests.” Id. at 762-63. Furthermore:

The rule [concerning conflicting interests] should be implemented in a responsible and cautious manner, because to use it recklessly, without the proper balance, may deter talented and capable people from seeking offices that they are qualified to fill, even when there is no serious threat to their honesty and integrity.

CA 6983/94 Pachima v. Peretz [55], at 835 (Strasbourg-Cohen, J.). As such, “it is better to eliminate the potential conflict of interest and limit activity or prevent it in a particular area, and not remove a person from office.” Id. at 838.

This was also the opinion of Justice Beinisch (whose opinion was the minority view):

The mere determination that there is a conflict of interest does not automatically necessitate the person’s removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediate solutions between removal from office and full service in an office, and the decision should be based on the degree of the conflict, its intensity and its centrality to the role of the public official.

Id. at 854. In a similar vein:

The picture is not entirely “black and white.” The solution to a conflict of interest is not necessarily disqualification from a particular office. There are a number of other options that can be exercised at different levels, ranging from full service in a particular office to outright disqualification from that office. Removal from office should not be the first solution, but rather the last resort. Prior to disqualifying a person, there must be an assessment whether other less drastic measures might not fulfill the criteria at the basis of the laws against conflicting interests.

HCJ 595/89 Shimon v. Appointee of Ministry of the Interior, Southern District [79], at 418 (Barak, J.).

In this sense, the Court’s role is to “find the cure that fits the disease,” which each problem having its own solution. See also CA 6763/98 Carmi v. State of Israel [52] (Rivlin, J.).

64. It is obvious that this rule has the same basis as other legal principles. The “blue pencil rule,” for example, directs us, wherever possible, to differentiate between the diseased organs and the healthy organs of a body. The same rule applies to law, contracts and all other legal mechanisms. After the differentiation, we proceed to ignore the diseased parts, and emphasize the healthy parts. See HCJ 1715/97 The Israel Association of Investment Managers v. The Minister of Finance [80], at 413-14. This is similar to the legal principle of ut res magis valeat quam pereat, which means that where a text containing a legal norm allows two interpretations, then the interpretation supporting the norm is chosen over the interpretation negating it. See HCJ 288/00 Israel Union for Environmental Defense v. Minister of the Interior [81], at 696-97. These principles are almost self-evident and may also contain elements of natural law. On an abstract level they are all derived from the principle of proportionality, a principle that guides us in all our paths.

65. Having considered these principles, I initially thought that the solution to the question at hand lay between two polar opposites. The first is petitioner’s position, which would have respondent disqualified outright. The second is respondents’ position, which maintains respondent is perfectly fit for the office. I thought that the appropriate solution could be a differential one, which means making a rough distinction between Hanegbi’s various activities, the aim being to avoid having to disqualify him from service as Minister of Public Security. I did attempt to differentiate between the activities, but this proved impossible. The different roles of the Minister of Public Security are interdependent, and the various departments of the Ministry of Public Security are closely intertwined. Any separation between the areas would effectively create a new system, which we have no power to establish. There is no escaping the conclusion that respondent cannot properly fulfill the role of Minister of Public Security.

66. I would not be doing my job faithfully if I did not now briefly relate to three additional issues which arose during the proceedings.

Appointment and Election

67. Respondent and the state claim that, by expressing confidence in the government in office, the Knesset also expressed its confidence in respondent, and we must therefore refrain from interfering with the Knesset’s discretion. I cannot accept this claim. First, the Knesset expressed its confidence in the government in general. Second, it is not disputed that the Prime Minister is currently empowered to remove respondent from office without receiving Knesset approval. It is his exercise of that discretion which we review. Consequently, the Knesset is not involved in the case before us.

68. In this context we will add that we are not speaking of respondent as an elected Member of the Knesset. We have not been asked to interfere with respondent’s status as an MK, and it is doubtful whether we have any power in that respect. HCJ 7367/97 See The Movement for Quality Government in Israel v. The Attorney-General [51], at 547 which deals with the appointment of MK Pinhasi as the chairman of the Knesset Committee. Our concern here is with respondent’s appointment as Minister of Public Security and not with his status as an elected Member of Knesset. As Minister of Public Security, respondent is subject to the same rules that would apply to a minister who is not a Member of the Knesset.

The Difference between the Minister of Public Security and Other Ministers

69. Petitioner’s claims focus on respondent’s fitness as Minster of Public Security specifically. It has no issue with him serving in any other ministerial role, except perhaps as Minister of Justice, who is charged with law enforcement, like the Minister of Public Security. My colleague Justice Rivlin takes issue with this proposition. For if indeed respondent is unworthy of serving as Minister of Public Security, how can he serve as a minister in charge of any other area? In the words of my colleague (para. 32 of his opinion):

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

There are three answers to this question. First, petitioner confined itself to the role of Minister of Public Security because respondent is currently serving in that capacity. Neither this self-imposed limiting of the petition nor our judgment can determine that respondent is able to serve in a different ministerial role. The question was not asked, and as such, we will not rule on it. Second, in our case there is the additional concern of conflicting interests due to the particular relationship between respondent and the police (a point dealt with by my colleague). Finally, according to the principle of proportionality, there must be a correlation between the substance of the claims that render a person unfit for a particular public office, and the office that he actually holds, or for which he is a candidate. Each office is different, and the principle of proportionality obliges us to limit the harm caused to a particular person. A “balance” must be struck between conflicting considerations, and the considerations themselves differ from case to case. According to Eisenberg [6]:

[T]he nature of the position to be filled by the public servant will also influence the weight accorded to a criminal past in the filling of the post. A junior position is not comparable to a senior position. A position that does not involve the control, supervision, direction and guidance of others is not comparable with a position involving authority and responsibility for other people and responsibility for discipline. The job of a leader cannot be compared with the jobs of those being led. An office with no special ethical requirements cannot be compared to an office whose essence demands high ethical standards.

Id. at 263. The Minister of Public Security is the minister in charge of law enforcement. As such, comments made regarding the Minister of Justice are also applicable to him:

Clearly, there is room for reservations regarding the minister’s conduct, to the extent that it diverges from the norm of appropriate conduct. The public expects that any minister, being a public leader, will provide an example of appropriate conduct. This is especially true in the case of the Minister of Justice, from whom the public expects this kind of conduct. More than any other minister, the Minister of Justice is responsible for the rule of law and the values of the law. In his personality and in his conduct he symbolizes not only the preservation of the law, but also that which is good and honest beyond the letter of the law.

Bar-On [3], at 59 (Zamir, J.).

Differences of Opinion Regarding the Scope of the Range of Reasonableness

70. Respondent has made the following argument: The question here is whether, by refusing to dismiss respondent as Minister of Public Security, the Prime Minister deviated from the range of reasonableness in an extreme manner. Some of the justices on this panel feel that the Prime Minister acted reasonably; at the very least they consider that there was insufficient proof to warrant intervening in his discretion. This view inevitably influences the decisions of other justices. Judicial intervention in the discretion of an authority is only warranted when that discretion is an extreme deviation from the range of reasonableness. If some of the justices maintain that the discretion does not deviate from the range of reasonableness, then how can other justices on the same panel rule that his discretion is an extreme deviation? Under these circumstances the rulings of the other justices could themselves be regarded as unreasonable. Alternatively, it indicates that those rulings based on the judgments of the other justices are unreasonable. Hanegbi claims that this reasoning is not applicable in a criminal procedure. He agrees that where one judge has doubts regarding the guilt of the accused, that doubt should not affect his colleagues on the panel. However, he claims that the rule is different in an administrative procedure.

71. I see no reason for distinguishing between a criminal procedure and an administrative procedure. In both, doubt and reasonableness are given over to the individual discretion of each judge, within the bounds of the overall legal context. Administrative law and assessments of reasonableness have often been a source of dispute between judges. See CrimA State of Israel v. Zeguri [82], at 427. Furthermore:

Every judge decides individually; and his decision in a trial is the product of his own conviction and his own conscience.

Every judge decides individually. The fact that my colleagues on the panel have doubts regarding whether the accused committed the offense of which he is accused does not cause me to have doubts too. It is forbidden for me to doubt solely because my colleagues doubt. My colleague’s doubt is not infectious, and does not pass from one heart to another, from one conscience to another, even if my colleague is greater, wiser, older, or more experienced than me. This is the independence of a judge in its deepest sense, the inner independence of the judge.

CrimA 6251/94 Ben-Ari v. State of Israel [83], at 107-8. In the words of the Court, “[e]ach and every judge is a lone knight wandering the plains of law and justice.” See HCJ 3679/94 National Association of Directors and Authorized Signatories of the First International Bank of Israel v. Tel Aviv/Jaffa District Labor Court [84], at 593. It is true that:

The judge must always be receptive to the opinions of others, and be prepared to listen to other people. However, the simple fact that another person has a different opinion, however important this dissenter may be, must not affect his own discretion (all subject to explicit legal provisions, such as binding precedents).

As Maimonides taught (Laws of the Sanhedrin, 10:1 [109]):

A judge in a capital case who rules guilty or not guilty not due to his own reasoning, but because he followed the view of his colleague, has transgressed. Of this the Torah said: Do not respond to grievance by yielding to the majority to pervert the law. From tradition we learn that at the moment of deciding you must not say, it is sufficient that I am like another – rather you must say what you believe.

In Conclusion

72. In considering Hanegbi’s appointment as Minister of Public security, or his removal from the position, the Prime Minister was presumably confronted with two conflicting categories of considerations. On the one hand: public considerations against the appointment due to the concern that his past would conflict with his role as Public Security Minister and lead to the improper management of the police, and the loss of public confidence in the government. And on the other hand: political considerations relating to the need to establish a stable coalition to support the government and preserve its structure, including respondent’s proven executive talents. The Prime Minister chose the latter considerations over the former, and decided to appoint respondent to the office, and, later on, to allow him to remain in office. In my colleagues’ view, having regard for the political nature of the case before us, the Prime Minister’s decision did not deviate from the legal boundaries of reasonableness. I cannot agree.

When the President charges a Knesset Member with the formation of a government with himself at its head, the Knesset Member will do his best to fulfill that task by forming a stable government that can weather the storms. The consideration of forming a government that will win the Knesset’s confidence becomes a primary consideration for the Prime Minister-elect, after having agreed upon the policies acceptable to prospective coalition partners. Generally, the other relevant considerations play a secondary role in the forming of a government. In other words:

As distinct from public servants, who are subject to the provisions of the State Service Law (Appointments) 1959, a minister and deputy-minister are not appointed to their positions exclusively by virtue of their qualifications, talents and personal virtues. Party and coalition interests form the basis of these appointments.

Deri [47], at 428 (Goldberg, J.). These comments were made regarding the formulation and appointing of the government. Nonetheless, in conducting a judicial review of the final composition, the Court must assess whether the considerations which were secondary in the eyes of the Prime Minister were in fact given appropriate weight. If these considerations were overlooked to a great extent it could render the decision a deviation from the boundaries of discretion. If the Court does not uphold the basic principles of public law and morality, then who will?

73. Under these circumstances, our concern is with the candidate’s moral suitability to be a minister, as well as his relations with the police over whom he has been appointed. Were these considerations given the weight they deserve? We have observed that, in reality, these considerations were allocated but a small part of their deserved weight. We also observed that these factors ought to have been given far more consideration. The unavoidable conclusion is therefore that the Prime Minister’s discretion was fatally flawed.

74. Judicial invalidation of the Prime Minister’s discretion does not make the Court a “supra-Prime Minister,” as my colleague Justice Rivlin put it. The Court did not attain that status in Deri [47], Pinhasi [5] and Eisenberg [6], and in a not insignificant number of other cases. Striking down a prime ministerial decision falls within the boundaries of legitimate judicial review of the administration’s activities. It is part of the “checks and balances” which exist in a democratic system characterized by the principle of the separation of powers between the authorities. I think that it is our duty, the duty of the Court, especially in these times, to protect the police in general, and the Investigations Branch in particular. This is the reasoning for my conclusion.

Epilogue

75. Our decision in this case has been far from simple and straightforward. Of this, I am well aware. Yet I could not allow myself to just let things slide, to avert my gaze and pretend nothing has happened.

76. On the basis of the above, I propose to my colleagues that we make the order final, and declare that the Prime Minister is obligated to exercise his power under section 22(b) of Basic Law: The Government, 2001, and remove Minister Tzahi Hanegbi from his position as Minister of Public Security.

Justice D. Beinisch

1. We have been asked to deal with the question of whether the appointment of respondent 3 to the position of Minister of Public Security is so unreasonable as to warrant the Court’s intervention to strike down this decision. This is a very important question. We must be very sensitive when interfering in the decisions of the executive authority and of the Prime Minister, who have been granted broad discretion. The utmost caution and a meticulous examination of the legal issues is necessary in ruling in this petition. This is especially true since this petition concerns the process of forming the government and appointing its ministers.

Prior to reaching my own conclusions on the subject, I reviewed the opinions of my colleagues, Justice Rivlin, Vice-President Or and Justice Cheshin. The first opinion deals with the rather broad topic of deference between the authorities. My opinion will deal exclusively with the question the Vice-President posed in his opinion – judicial intervention in the circumstances here. My colleague, Justice Cheshin, thoroughly analyzed the issues raised by the appointment, as well as the normative legal framework, and concluded that the decision to appoint respondent 3 as Minister of Public Security should be struck down due to the fact that it is unreasonable in the extreme. It should be mentioned, at the outset, that I agree with my colleague, Justice Cheshin: under the circumstances and at the present time, respondent’s appointment is not compatible with the rule prohibiting conflicts of interest.

2. From a reading of the opinions in this case, it becomes clear that there exists no fundamental dispute as to the nature or quality of the statutory power granted the Prime Minister to appoint ministers and dismiss them, pursuant to Basic Law: The Government. This is also true regarding the extent to which this Court can review this power. The statutory discretion granted to the Prime Minister to fill cabinet posts and remove the occupants of these posts is extremely broad. Our rulings have already established, undisputably, that the factors the Prime minister may consider when deciding whether to appoint or dismiss ministers include political considerations such as the stability of the government and the formation of a viable coalition. These and other political considerations are legitimate, and even essential, in the process of establishing a government and appointing ministers.

Accordingly, and in light of the nature of the Prime Minister’s power to appoint and dismiss ministers, it would take a radical deviation from the range of reasonableness for the Court to intervene in these decisions. Having said that, my colleague Justice Rivlin, who emphasizes the limits of intervention and their narrow scope, also notes that:

The discretion of the Prime Minister regarding the appointment of a minister is certainly subject to the review of this Court. This applies to any kind of appointment.

He further stated that:

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

See paras. 17 and 18 of Judge Rivlin’s ruling. There is obviously nothing innovative about these findings; they merely reflect the precedents set forth by this Court in a number of rulings that deal with judicial intervention to remove ministers. The primary cases are: HCJ 3094/93, 4319/93, 4478/93; HCApp 4409/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]]; HCJ 4267/93, 4287/93, 4634/93 Amitai – Citizens for Sound Administration and Moral Integrity v. Yitzhak Rabin, Prime Minister of Israel [Pinhasi [5]]; HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [Bar-On [3]].

We also agree that the question is not whether the Court feels comfortable with the Prime Minister’s appointment of a certain person to a specific post. Such a question does not constitute a cause for judicial review. It is not the Court’s role to examine the wisdom of the appointment, the suitability of the person for the post, or his likelihood of success. These considerations are entrusted to the elected Prime Minister, and it is up to the Knesset and the voter to redress such decisions. Therefore, we will act with much caution and restraint when considering the disqualification of an appointment. Disqualification can only be justified in exceptional and extraordinary circumstances, where there was a legal defect either in the appointment process or the appointment itself. This defect must be at the core of the administrative discretion afforded to the authority, no matter how broad his powers may be.

My colleagues, each in their own way, have laid out the factual details of this petition. This mainly concerns the criminal affairs in which Hanegbi has been involved as a suspect or subject of investigation despite the fact that, at the end of the day, he was not tried concerning these affairs. So, too, my colleagues have already discussed the normative framework in which the Prime Minister exercises his power to appoint ministers or to remove them from their posts, as well as the grounds which would enable this Court to exercise judicial review. Therefore, I will refrain from expanding on these matters and will instead limit myself to a discussion of the flaw which I see in the appointment here.

3. The petition is based on two principal claims. The first claim is that Hanegbi is not fit to act as Minister of Public Security due to his involvement in a number of criminal affairs, the latest and most central being the so-called Derech Tzleha affair. In a previous petition filed by petitioner – Bar-On [3] – it was already determined that that there was nothing in the first three affairs to render respondent unfit for the post held by him at the time – that of Minister of Justice. This includes the affair in which Bar-On was appointed to the position of Attorney-General. Petitioner now claims that the latest affair, which concerns Hanegbi’s involvement in the Derech Tzleha organization, when added to the previous affairs, tips the balance and renders him unfit to serve as Minister of Public Security.

The other grounds for the intervention of the Court, according to petitioner, are that the appointment of respondent as Minister of Public Security contravenes the rule against conflicts of interest. As a result, petitioner asserts he is not fit for the office.

4. As to petitioner’s first claim, regarding the criminal affairs Hanegbi was allegedly involved in, or investigated about, I take issue with those who feel this is insufficient to warrant judicial review of the decision to appoint him as Minister of Public Security.

I agree with my colleague Justice Cheshin, that one must distinguish between the presumption of innocence to which a person who has neither been tried nor convicted of a crime is entitled, and the question of whether he is suited for public office in light of such allegations. I also agree that, in appointing someone to public office, the authorities are permitted and even required to take into account a person’s “criminal past” based on administrative evidence. It should not be said that this decision rests solely on whether the public prosecutor’s office filed an indictment. The discretionary power exercised by the public prosecutor’s office when deciding whether or not to indict someone serves a different purpose than that exercised to prevent an appointment or remove a person from public office. See HCJ 6163/92, 6177/92 Eisenberg v. The Minister of Housing and Construction [6], at 268; Pinhasi [5], at 467-69.

This Court has already determined that there are no hard and fast rules pertaining to when it is appropriate to bar a person from public office. On one hand, it would be erroneous to hold that an indictment automatically renders a person unfit for such a post. At the same time, however, the lack of an indictment is not the hallmark of fitness. There are a host of factors which must be taken into account when considering disqualification. These include the type of office, the type of misconduct attributed to the official, how strongly such behavior reflects on the person’s fitness, and the strength of the evidence for the alleged wrongdoing. See Bar-On [3], at 62-63 (Zamir, J.).

We must take into account that the other criminal affairs in which Hanegbi was allegedly involved, as well as the impact these affairs on his role as Minister of Justice, have already been examined by this Court in Bar-On [3]. The Court expressed its opinion on the issue, and did not see fit to interfere with Hanegbi’s tenure as Minister of Justice.

As to the Derech Tzleha affair, this should not be viewed as my colleague Justice Rivlin sees it, as yet another chapter in the affair that was already judged by this Court in Bar-On [3]. This affair involved an extensive investigation. From the outset, the police recommended the indictment of respondent, and even the Attorney-General was in favor of this after an initial examination of the evidence. The evidence was then once again examined by the Attorney-General himself, as well as by a contingent of attorneys. It is apparent from the report that the evidence was repeatedly inspected with great thoroughness. At the end of the day, however, the evidence was not deemed sufficient to indict respondent. The close examination of the evidence, as detailed in the Attorney-General’s report, and the high professional caliber of those who performed the examination, begs the conclusion that there is no evidentiary basis for the criminal involvement of respondent in this affair. Under the circumstances, and after having examined the opinion of the Attorney-General and the decision of the Knesset Ethics Committee, I have not been convinced that the factual basis presented to me is sufficiently grave as to render respondent unfit to serve as Minister of Public Security. It is true that the largely undisputed facts, which are apparent in the opinions of the Attorney-General and the Knesset Ethics Committee, indicate unethical behavior by respondent. Nevertheless, I do not believe that, based on the Derech Tzleha affair, the decision to appoint respondent 3 as Minister of Public Security is extremely unreasonable on the legal level.

5. The petition’s second claim troubled me. According to this claim, following the investigation in the Derech Tzleha affair, there exists a conflict of interest between respondent’s ability to fulfill his position as Minister of Public Security, charged with the public interest in the investigative field, and his relationship with the Investigations Branch of the police. After much deliberation, I have arrived at the conclusion that respondents did not supply a satisfactory answer to why this does not constitute a conflict of interest.

First, it must be stated that respondents did not convince us that petitioner’s claim should not be classified as a conflict of interest. The rule prohibiting conflicts of interest is predicated on the principle that a person in a public role should avoid the “prejudice” or “bias” which results from the conflict between the faithful execution of his public duties and an interest of his own. There is a substantive and foreseeable a priori concern regarding the existence of an extraneous consideration and this concern falls under the rule prohibiting conflicts of interest. If such a concern exists on the basis of objective criteria, respondent need not actually be put to the test in order to determine if an actual conflict of interest exists. For a comprehensive discussion of this subject, see HCJ 531/79 The Likud Faction of the Petach Tikva Municipality v. The City Council of Petach Tikva [53], at 569-76; see also CA 6983/94 Pachima v. Peretz [55], at 835-36.

In his affidavit, the Prime Minister expanded at length on respondent’s fitness for senior and demanding public offices. He emphasized his vast experience in the administration of complex departments and the “broad knowledge of the field of security.” All of these qualify respondent 3, in the Prime Minister’s opinion, to “lead the Ministry of Public Security in the best possible manner.” The Prime Minister’s statement focuses a considerable amount of attention on Hanegbi’s organizational skills and his ability to cope with the security roles entrusted to the Ministry of Public Security. All these considerations are part of the Prime Minister’s discretion and it is not our place to interfere with them. Nonetheless, the Minister of Public Security is responsible to the public on behalf of the government concerning all aspects of Israel Police; security operations constitute only one facet of this post, albeit an important one, especially nowadays. It is well-known that the Israel Police is also empowered to carry out investigations and to enforce the law in Israel. In this respect, petitioner claims that respondent 3 is liable to find himself in a conflict of interest when placed in charge of the very people who investigated him not so long ago in the Derech Tzleha affair and who recommended that he be brought to trial. Respondents countered this by pointing out that the minister is not a “supra-Inspector-General,” “with direct control or authority over everything that happens in the Israel Police, and this is especially true regarding everything that occurs in its Investigations Branch.”

It is true that the minister is not in charge of individual police investigations and is not even involved in them. He is also not a “supra-Inspector-General,” as respondents maintain. Yet the import, stature, and influence of the minister on the structure of the police and its budget should not be ignored. After all, the minister is responsible for setting the working priorities of the police and, most importantly, for the appointment and dismissal of senior officers. According to the Police Ordinance (New Version), the minister is in charge of appointing every senior police officer from the rank of deputy commander upwards. Accordingly, the minister appoints the senior officers of the Investigations Branch, including the head of this branch, and he also has the power to fire them. He is also responsible for recommending who should fill the office of Inspector-General. Indeed, respondents are correct in their assertion that a duty of consultation applies to the minister pursuant to the rules of administrative law, prior to deciding who will fill the senior ranks of the Investigations Branch. However, this duty is not sufficient, by itself, to negate the existence of a conflict of interest.

As part of his role as Minister of Public Security, it is necessary for respondent 3 to set police policy, including policy for the Investigations Branch, and it is in his power to influence the stature of this branch, its standards, and its work assignments. Yet, only a short while ago he himself was the subject of a series of investigations which, despite being essential and permitted by the law, were substantially damaging for him. It should be recalled that, at the conclusion of the previous two investigations, the Investigations Branch recommended that respondent be indicted.

To this, we note that the the situation in which the senior officers involved in the investigation of respondent find themselves in. Even though there is no doubt these people have no personal grudge against respondent, since they were merely doing their job, respondent still has significant powers to decide their fate and influence their rank and place in the police hierarchy. How will this conflict affect their trust in respondent’s decisions, and how will he exercise the hierarchical authority he wields over them?

This is not to infer that we believe that respondent seeks vengeance against his interrogators. Not in the least. He has declared that this is not the case and I am willing to assume that he will make every effort to ignore his personal feelings. However, an actual conflict of interest exists when there a near certainty of “prejudice” or “bias,” even “unintentionally and unknowingly.” As stated by Justice Cohen:

We will state at once that we have not had even a shred of evidence presented to us that would cause us or petitioner to have even the slightest doubt as to whether respondent has not or will not carry out his role of Chairman of the Appeals Committee in absolute good faith and objectivity, to the best of his knowledge and capabilities. Even according to petitioner, there is no requirement that the “corrupt viewpoint” or bias actually exist or be proven. The claim is that even though these do not actually exist, “a reasonable person would consider that, under the circumstances, there exists a real possibility of bias or prejudice.”

HCJ 279/60 Gil Theaters v. Ya’ari [85], at 675-76. Furthermore:

When we apply the term bias, this should not be taken to mean that respondent will knowingly or intentionally favor a certain side. When we talk of a corrupt viewpoint, this should not be misconstrued as implying that respondent’s viewpoint has been corrupted through the accepting of actual bribes. The intention is that bias, by its very nature, is inevitable or probable, even if it is not willful or intentional, since every person favors his own interests.

Likud Faction [53], at 570.

6. I am aware that the rule prohibiting conflicts of interest should be interpreted with prudence and moderation. I can accept that, just because a person has been investigated, this should not necessarily prevent him from subsequently serving as the minister in charge of the Investigations Branch. Yet in the case of respondent 3 we are not talking about events that occurred in the dim and distant past. Respondent’s encounter with the Investigations Branch ended only in June 1999, at which point it was recommended to the prosecuting authorities to indict him. This case was only closed in March 2001. The investigation of respondent by officers of the Investigations Branch has not yet been relegated to the history books of the Israel Police. Respondent also possesses no small amount of prior experience with the investigators of the Investigations Branch. Can it be said that he is so divorced from the past that he would be capable of fulfilling his post with complete objectivity? According to the rule prohibiting conflicts of interest, a person should not be placed in a situation in which he is liable to be influenced by extraneous considerations in the line of duty.

I would also like to add that we have already noted that the rule against conflicts of interest will not necessarily bring about a person’s disqualification from a post, provided that less drastic means can be found to circumvent the specific problem. There is a tendency to utilize such extreme measures only as a last resort, when there is no other way to neutralize the concern about a conflict of interest. As I mentioned elsewhere:

The mere determination that there is a conflict of interest does not automatically necessitate removal from office. This solution is the last and most extreme resort, only to be adopted in those cases where the conflict of interest is so intense that there is no other way to prevent it. There are a number of intermediary solutions between removal and full service in an office, and the decision should be based on the degree of the conflict, its intensity, and its centrality to the role of the public official.

In general, conflicts of interests can only be isolated when they appear in an institutional setting, in which it is possible to pinpoint where the interests overlap and to prevent this. Indeed, it is possible to neutralize a conflict of interest even when the conflicting interest is personal. For this to be the case, however, the public servant’s interest must be one that can be avoided or which can be isolated from those areas of overlap with his public role.

Pachima [55], at 854.

In light of the above, I, like my colleague, Justice Cheshin, considered the possibility of keeping respondent 3 in his post as Minister of Public Security, while eliminating the conflict of interest. Had respondents shown me such a way, it is possible I would have avoided the decision that Hanegbi is unfit to continue as Minister of Public Security. In its place, I may have considered it sufficient to merely ban him from serving in ministerial roles pertaining to the Investigations Branch, in a manner that would ensure there were no conflicts of interest. However, no such solution was presented to me. Moreover, as stated above, it is difficult to find such a solution. The Minister of Public Security’s powers over the Investigations Branch are, in part, statutory; an example of this is his authority to appoint the upper echelon of police officers. The investigations system is an integral part of the Israel Police, and the minister is in charge of setting general policy, priorities, and budget for the police. In light of this, to take away the control of investigative matters from the Minister of Public Security is liable to be harmful both to the minister and to his general ability to function in his role. It seems difficult, therefore, to separate him from these issues so long as he is an acting minister. In any event, such a course would apparently require a shift in the division of the labor and the intra-governmental responsibilities of ministers. This is something we will refrain from interfering with.

It should be noted that, in the main arguments of respondent 3, he reiterated that the claim of a conflict of interest should be rejected. At the conclusion of his argument, in para. 20.12., he stated: “[e]ven if there does exist a conflict of interest, there are much less drastic ways of neutralizing it and these should be preferred.” Despite searching, I could not find what alternative means were being referred to here which would properly address the problem of the conflict of interest. Had my colleagues shared in my opinion, there may conceivably have been room to ask respondent 3 to set forth arguments regarding this issue, and to propose a solution which would neutralize the conflict of interest without the need to remove him from his office. As long as no such solution is found, I feel that there is no way to avoid removing Hanegbi from his office as Minister of Public Security.

Justice E. Mazza

Like my colleagues Justice Rivlin and Vice-President Or, I feel that petitioner did not present us with a clear justification for intervening in the Prime Minister’s decision to appoint respondent 3 to the office of Minister of Justice. Based on their well explained and properly detailed reasons – in most of which, if not all, I concur – I hereby join them in concluding that this petition should be denied.

Justice Y. Türkel

1. In my opinion, the petition should be denied. I concur with the opinion of my esteemed colleague, Justice Rivlin, who laid out the appropriate reasoning. I also concur with the reasons laid out by my esteemed colleague, Vice-President Or. In my opinion, it would have been sufficient to predicate the denial of this petition on two grounds:

a) The first ground is that approximately six years ago this Court, in a panel of five Justices, dealt with a petition requesting that respondent be removed from his post as Minister of Justice. It decided, by a majority of four, to reject the petition without granting an order nisi. See HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel [3], at 46. That petition concerned three out of the four affairs raised by the petition here – the “brawling affair,” the “ISTA affair,” and the “Bar-On affair” – and it dealt with the fundamental questions currently under discussion. In that petition, the Court found no adequate reason to remove respondent 3 from his post. The only new factor here is the fourth affair – the “Derech Tzleha affair” – and the appointment of respondent to the post of Minister of Public Security. I believe that this fourth affair, per se, and even in conjunction with the previous affairs, does not amount to a justification for respondent’s removal from office. It should also be mentioned that the distinction that petitioner draws between the office of the Minister of Justice and the office of the Minister of Public Security is, unfortunately, erroneous.

b) There is a midrash in the Talmud that can shed light on the second reason, which is more at the heart of the dispute than the first one. This midrash states that no appointments to high offices can be made unless the public is consulted first. This midrash is based on the two biblical verses: “And the Lord spoke unto Moses saying: See, I have called by name Bezalel the son of Uri, the son of Hur, of the tribe of Judah.” (Exodus 31:2) [110], and “And Moses said unto the children of Israel: See, the Lord hath called by name Bezalel the son of Uri” (Exodus, 35:30) [110].

Said Rabbi Isaac: A public appointment is not made without first consulting the public, in accordance with the text: “See, the Lord hath called by name.”

Said the Holy One, Blessed be He, to Moses: Moses! Is Bezalel acceptable to you? He answered: Lord of the Universe! If he is acceptable to Thee, all the more so to me! The Lord replied: Even so, go and tell the Israelites. He went and asked the Israelites: Is Bezalel acceptable to you? They answered him: Moses, our teacher! If he is acceptable to the Almighty and to you, he is certainly acceptable to us!

Babylonian Talmud, Tractate Berakhot 55a [111]. On the requirement to consult with the public, see also Shulkhan Arukh, Choshen Hamishpat, 3:4 [112]; Arukh Hashulkhan, Choshen Hamishpat, 3:8 [113]; Ribash, Responsa 271 [114]; Rabbi A.Y. Kook, Be’er Eliyahu, commentary on the Biur HaGra [115], as well as other sources. See also my comments in HCJ 6499/99 The National Religious Party v. Rabbi Shlomo Ben-Ezra [86], at 624.

It seems, therefore, that no appointment could be made unless the public was consulted, despite the fact that both the Lord and Moses expressed their views about the appointment. Regarding the removal of officials who have been the subject of defamation, compare Exodus 18:21 [110]; Babylonian Talmud, Tractate Sanhedrin 7b [116]; Maimonides, Laws of Temple Vessels, 4:21 [117]; Maimonides Reponsa, Chapter 111 [118]; Shulkhan Arukh, Chosen Hamishpat, 53:25 [119]; Zaken Abraham Responsa, Yoreh Deah, 30 [120].

Respondent 3 was elected to the first slot in his party’s primary elections. He placed third on his party’s list for the elections to the Knesset, and was nominated by the Prime Minister to serve as Minister of Public Security. This appointment was ratified by the Knesset. Therefore, “consultation” with the public did occur and the public had its say. Is our power greater than that of the people? I believe that we can overrule the choice of the people, as expressed through elections to the Knesset, only in rare and extraordinary circumstances. Save with respect to the legality of the appointment, it is not our place, but the public’s, to take issue with the wisdom and ethics of the administrative authority making the appointment. This is not to say that I wish to detract from the Court’s power to speak its mind on issues of ethics and morality. See Bar-On [3], at 61-64 (Zamir, J.). Sometimes it is appropriate that it should do so. But the proposal to expand the rule so that respondent 3’s conduct, as discussed in that case, would “obligate the Prime Minister to remove a minister or deputy-minister from his post, though well-intentioned, would be improper and likely to cause more harm than good.” Id. at 64. There is much to be said for the view that the morals and

character of public representatives should be subject to painstaking scrutiny. But in the world in which we live, this goal is unattainable.

Therefore, the petition should be denied.

Justice D. Dorner

I agree with the rulings of my colleagues, Justice Rivlin and Vice-President Or, who hold the petition should be denied. I wish to add three comments to the rulings of my two colleagues.

1. Indeed, the discretionary authority for appointing and removing ministers (and deputy-ministers) is not absolute. In addition to the grounds for removal expressly provided in the Basic Law: The Government, there are also the grounds established by HCJ 3094/93 The Movement for Quality Government in Israel v. The Government of Israel [Deri [47]] and HCJ 4267/93 Amitai v. The Prime Minister of Israel [Pinhasi [5]]:

When a minister or deputy-minister has been indicted for a serious crime, it is incumbent upon the Prime Minister to remove him from his post. The failure of the Prime Minister to do so will be regarded, under such circumstances, as extremely unreasonable.

HCJ 2533/97 The Movement for Quality Government in Israel v. The Government of Israel, at 56 [Bar-On [3] (Zamir, J.). The Court added that:

There is a possibility that, even if a minister’s behavior does not amount to criminal conduct, it may still be so serious that it would be extremely unreasonable to allow him to continue in his post. Even so, this possibility is still far from constituting a sweeping rule that a minister must be removed from office in every instance of behavior that deviates from the norms of appropriate conduct.

Id, at 63.

As mentioned in my colleagues’ opinions, the fact that legal grounds for removal are limited is a result of the fact that the constitutional authority for the appointment and removal of ministers enables the implementation of policy objectives, including policies that are political in nature. This includes the need to appoint ministers with the proper skills and experience – which is the Prime Minister’s responsibility. From this it follows that it is, first and foremost, the responsibility of the Knesset and the public to review these political appointments. Moreover, restraint is necessary due to the damage that removal from a senior political position causes to a public figure, to his presumption of innocence, and to his ability to accomplish his life’s work. Of course, this fear does not supersede the prohibition against appointments which severely impair the public’s trust in the government. However, there is no room to expand the grounds for removal beyond those already set down in Deri [47] and Pinhasi [5].

2. The grounds of removal established in Deri [47] and Pinhasi [5] are based on two elements. The first element is that there must be sufficient evidence to justify an indictment, such as evidence that creates a reasonable chance of conviction:

An indictment is not a verdict. It only reflects the prima facie evidence that has been collected by the public prosecutor’s office. Yet, continued tenure in the government is impacted even by the prima facie evidence of the indictment. Under certain circumstances, the nature of the individual’s alleged offenses – in addition the final legal ruling – is also significant, as these offenses have been officially presented in the indictment ready for filing with the courts.

Deri [47], at 422-23 (Shamgar, P.). The second element is that the evidence must point to the commission of a serious crime, one which involves moral turpitude. Such crimes, including the receipt of bribes, acts of fraud, defrauding state authorities, and the filing of false reports, caused Minister Aryeh Deri and Deputy-Minister Raphael Pinhasi to be declared unfit for office, As stated there:

[I]f, heaven forbid, an indictment is filed against a minister, which charges the minister with serious offenses that involve moral turpitude – such as the acceptance of bribes, acts of fraud, deceiving state authorities, lying or with making false reports – then it would be neither proper nor reasonable for him to continue in office.

Id. at 427 (Levin. J). Minister Tzahi Hanegbi’s part in the Derech Tzleha affair is the decisive affair in the petition before us. As my colleagues have already indicated, the legality of Hanegbi’s appointment, as affected by the other three affairs, was already dealt with by this Court in Bar-On [3]. In that case, not only was there no indictment, but Hangebi’s file was closed due to the lack of a reasonable chance of a conviction.

Indeed, the facts of the crimes Hanegbi is alleged to have committed are not in dispute. Proving the criminal intent, however, turned out to be the primary difficulty. This intent is usually what determines the nature of the behavior and the level of moral turpitude associated with it. See Glanville Williams, Criminal Law 22 (2d ed. 1961) [107]; compare also CrimA 2831/95 Elba v. The State of Israel [87], at 319. This intent particularly influences the anti-social element of the crimes of fraud and breach of trust, which are attributed to the minister. As Justice Goldberg stated:

The crime of breach of trust is a general offence, yet its factual basis is not adequately defined. As a result, moral guilt is one of the mechanisms for defining the boundaries of this crime. Since moral guilt constitutes a main element of the crime, there are instances where it is necessary for the Court to investigate the defendant’s motives.

See HCJ 2534/97 Yahav v. The State Attorney [2], at 16.

The Prime Minister saw the Attorney-General’s report, including its conclusion that the file against the minister should be closed due the fact that there was no reasonable chance of a conviction. Certainly, he was obligated to make use of the Attorney-General’s conclusion – and its reasoning – even if the report did not detail the evidence on which this conclusion was founded. Compare HCJ 320/96 Yael German v. The Municipal Council of Herzliya [88], at 239. In any event – and this is the significant factor – petitioner did not attack this report and we have no choice, therefore, other than to accept the Attorney-General’s conclusion.

An indictment does not require evidence that guarantees a conviction. When an indictment is filed, the chance of conviction can only be estimated. Moreover, an indictment is only based on the evidence obtained by the police – the defense does not cross examination or present its own evidence. See CrimApp 8087/95 Za’ada v. The State of Israel [89], at 148-49; and Yahav [2], at 12-13. Most significantly, it is possible to indict a suspect even when existing evidence does not prove guilt beyond reasonable doubt. That is to say, there may be a reasonable chance for conviction, which is what justifies the filing of the indictment, even if the evidence does not rule out every reasonable doubt. It goes without saying, therefore, that the decision not to file an indictment due to the lack of a reasonable chance of conviction possesses, as a rule, an “acquittal value” greater than an acquittal in court. Furthermore, it is difficult to imagine a scenario in which the appointment of a minister would be proscribed on account of an act for which he was acquitted in court, even if only due to the existence of reasonable doubt. In any event, such a proscription would be all the more inappropriate where the Attorney-General – whose discretion has not been assailed here – has not even filed an indictment, due to the lack of a reasonable chance of conviction.

3. It is the conclusion of my colleague, Justice Beinisch, that the petition should be accepted, because of the conflict of interest that exists between Hanegbi’s post as Minister of Public Security and his alleged desire to get revenge on his interrogators and the Investigations Branch. In this regard, I am in agreement with my colleagues, Justice Rivlin and Vice-President Or, that it is extremely doubtful that a conflict of interest actually exists. Even if there is some type of conflict of interest, it is very slight and does not give rise, under the circumstances, to any reasonable concern that extraneous considerations will hamper the functioning of the Ministry of Public Security and of the police. See HCJ 3132/92 Mushlav v. The District Committee for Planning and Building, Northern District [90], at 747, for an explanation of what constitutes a reasonable concern of an extraneous consideration.

Yet, even if the case had been borderline, there would be cause for great hesitation before granting the petition. Granting the petition would mean harming a public figure merely on the basis of a police recommendation to put him on trial, a recommendation rejected by the Attorney-General. The result would be that the very fact of a police recommendation, even if unfounded, would be sufficient to render a person unfit for office or to remove him from a ministerial post. Certainly, had a clear-cut case of conflict of interest been created, due to the police recommendation, it is possible there would be no way of escaping this result. Yet, this is not so in a borderline case.

As such, I join the opinion of my colleagues, Justice Rivlin and Vice-President Or, that this petition be denied.

*******

Petition denied according to the majority opinions of Justices Rivlin, Or, Mazza, Turkel and Dorner, against the dissenting opinions of Justices Cheshin and Beinisch.

Under the circumstances, no party was ordered to bear costs.

October 9, 2003

Full opinion:

Movement for Quality Government in Israel v. Sharon.pdf

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

http://elyon1.court.gov.il/files/03/930/019/P26/03019930.p26.pdf

Attorney General v. National Labour Court

Case/docket number:

HCJ 1074/93

Date Decided:

Monday, April 10, 1995

Decision Type:

Original

Topics:

Basic Law: Human Dignity and Liberty

Labor

Strikes

Abstract:

Facts: The second petitioner, the Bezeq Corporation, had a monopoly in the field of providing telephone services in Israel. When the Government decided to allow competition in this field, the General Federation of Labour feared that the restriction of the monopoly would affect the jobs and rights of Bezeq’s employees, and it therefore gave notice of a strike. The petitioners applied to the Regional Labour Court for an injunction against the strike. The injunction was given, but the National Labour Court overturned it on appeal. The petitioners then petitioned the High Court of Justice to set aside the judgment of the National Labour Court.

Held: Strikes can be divided into three categories: (1) economic strikes, which oppose an action that clearly and immediately harms employees, and are considered legitimate; (2) political strikes, which oppose a general policy of the Government, and are not considered legitimate; (3) quasi-political strikes, which oppose an act that is not directly connected with terms of employment, but do affect them directly. Quasi-political strikes only justify a short protest.

In this case, it was not proved that the restriction of Bezeq’s monopoly would clearly and immediately harm Bezeq’s employees. Therefore at most it could be a quasi-political strike, which justifies a short protest strike. Therefore the Regional Labour Court had been correct in issuing an injunction against the extended strike.

Petition granted.

Voting Justices:

Levin, Dov

Primary Author

majority opinion

Cheshin, Mishael

Author

concurrence

Tal, Tzevi Eliyahu

Author

concurrence

Full text of the opinion:

HCJ 1074/93

1. Attorney-General

2. Bezeq, the Israel Telecommunication Corporation Ltd

1. National Labour Court, Jerusalem

2. General Federation of Labour in Israel

3. Bezeq Employees’ Joint Representation

4. All Bezeq Employees

The Supreme Court sitting as the High Court of Justice

[10 April 1995]

Before Justices D. Levin, M. Cheshin, Ts. E. Tal

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

Petition granted.

Basic Laws cited:

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 4.

Statutes cited:

Collective Agreements Law, 5717-1957.

Contempt of Court Ordinance, 1937.

Labour Court Law, 5729-1969, s. 30(a).

Procedure (Attendance of Attorney-General) Ordinance [New Version], 5728-1968, s. 1.

Resolution of Labour Disputes Law, 5717-1917, ss. 2, 5A, 5B, 37A, chapter 4.

Telecommunications Law, 5742-1982, ss. 50, 51, 60.

Israeli Supreme Court cases cited:

[1] HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1995] IsrSC 49(1) 573.

[2] HCJ 51/69 Rudenitsky v. Great Rabbinical Court [1970] IsrSC 24(1) 704.

[3] HCJ 550/89 Attorney-General v. Parole Board [1989] IsrSC 43(2) 739.

[4] HCJ 910/86 Ressler v. Minister of Defence [1988] IsrSC 42(2) 441; IsrSJ 10 1.

[5] HCJ 2148/94 Gilbert v. Chairman of Commission of Enquiry for examining the Massacre in Hebron [1994] IsrSC 48(3) 573.

[6] CA 506/88 Shefer (a minor) v. State of Israel [1994] IsrSC 48(1) 87; [1992‑4] IsrLR 170.

[7] HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [1985] IsrSC 39(3) 141.

[8] CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [1987] IsrSC 41(3) 169.

[9] CA 25/71 Feinstein v. High School Teachers’ Association [1971] IsrSC 25(1) 129.

[10] HCJ 525/84 Hativ v. National Labour Court [1986] IsrSC 40(1) 673.

[11] HCJ 1520/91 Wilensky v. National Labour Court [1992] IsrSC 46(5) 502.

[12] HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv Labour Court [1985] IsrSC 39(3) 13.

[13] HCJ 289/79 Israel Ports Authority v. National Labour Court [1980] IsrSC 34(2) 141.

[14] ALCA 7112/93 Tzudler v. Yosef [1994] IsrSC 48(5) 550.

[15] HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [1962] IsrSC 16 2101; IsrSJ 4 191.

[16] HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [1980] IsrSC 34(3) 729.

[17] HCJ 453/94 Israel Women’s Network v. Government of Israel [1948] IsrSC 48(5) 501; [1992-4] IsrLR 425.

Labour Court cases cited:

[18] NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [1977] IsrLC 8 421.

[19] NLC 52/4-3 (unreported).

[20] NLC 36/4-5 Ginstler v. State of Israel [1976] IsrLC 8 3.

[21] NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [1986] IsrLC 17 264.

[22] NLC 52/4-37 United Mizrahi Bank Ltd v. Bank Mizrahi Workers Union [1992] IsrLC 25 53.

English cases cited:

[23] Mercury Communication v. Scott-Garner [1984] Ch. 37 (C.A.).

Dutch cases cited:

[24] Re Keijzer v. Peters N.V. 3 I.L.L.R. 306 (1977).

[25] N. V. Dutch Railways v. Transport Unions FNV, FSV and CNV 6 I.L.L.R. 3 (1986).

Finnish cases cited:

[26] Metal Industry Employers’ Federation v. Metal Workers Union 9 I.L.L.R. 522 (1988).

For the first petitioner — M. Rubinstein, director of the Civil Department at the State Attorney’s Office.

For the second petitioner — S. Bechor.

For the second respondent — A. Mei-Tal, R. Kariv.

For respondents 3-4 — A. Feingold.

JUDGMENT

Justice D. Levin

1. We have before us a petition of the first and second petitioners against the judgment of the National Labour Court in NLC 53/4-4,[*] in which the National Labour Court allowed the appeal of respondents 2-4 and held that an injunction should not be given against the respondents in a strike that they held, since according to its ruling, the strike was legitimate.

The facts relevant to the case

The main facts are not in dispute, but clear details of them, as set out by his honour the President of the National Labour Court in his judgment, are necessary in order to consider the dispute and its solution properly and precisely.

2. The second petitioner (hereafter — Bezeq) operates under a licence granted to it under the Telecommunications Law, 5742-1982, and it is a ‘public service’ within the meaning thereof in chapter four of the Resolution of Labour Disputes Law, 5717-1957. Sections 50 and 51 of the Telecommunications Law granted Bezeq exclusivity in various fields of operation, and the following is the wording of those sections:

‘50. A general licence to carry out telecommunications operations or to provide national telecommunications services on a national telephone network or to provide international telecommunications services on an international telephone system shall only be given to one company; for this purpose, “national telephone network” — a national cable infrastructure, wireless installations and telecommunications installations by means of which telephone services and additional telecommunications services are provided to the public.

51. (a) A special licence shall not be given with regard to the equipment that the Ministry of Telecommunications dealt with before the passing of this law in the Knesset (hereinafter — the equipment of the Ministry) or with regard to identical equipment that may replace it.

(b) A special licence shall not be given with regard to equipment similar to the equipment of the Ministry that will replace it or that is designated to replaced it, until the Minister has consulted with the company and decided, after considering inter alia the interest of the company in carrying out the action or in providing the service to which the licence refers, that the public interest requires the licence to be given to whoever asked for it.’

3. The Government decided to limit this exclusivity by opening up various sectors in the field of telecommunication services to competition. First this was done by a decision of the Minister of Telecommunications at that time, and shortly before the dispute before us this intention was expressed in the draft State Economy Arrangements (Legislations Changes for Achieving Budget Targets) Law, 5753-1992, which states in section 26:

‘In section 50 of the Telecommunication Law, 5742-1982, the words “or to provide international telecommunications services on an international telephone system” shall be deleted, and at the end shall be added “but a mobile radio-telephone network shall not be regarded as part of the national telephone network”.’

4. Respondents 2-4, under the leadership of the second respondent (hereafter — the General Federation), opposed these changes on the grounds that revoking the exclusivity will affect the terms of employment of Bezeq employees and lead to the dismissal of many of them. Their request was to enshrine in an agreement, before revoking the exclusivity, the question of the rights of employees, both those who would continue to work for Bezeq and those who would be forced to leave it as a result of that change.

The General Federation based its main arguments on that fact that when the Telecommunications Law was passed, the commencement of the law was made conditional, inter alia, on the signing of a collective agreement with regard to the rights of Bezeq’s employees, and the transfer of employees from the civil service to the employment of Bezeq (s. 60 of the Telecommunications Law).

5. On 14 May 1992, the Federation of Clerks delivered to the Chief Director of Labour Relations and to Bezeq a ‘Notice of a Strike’, stating that the notice was given under sections 5A and 5B of the Resolution of Labour Disputes Law.

6. On 12 July 1992, Bezeq employees began sanctions in accordance with the decision of Bezeq’s Workers Council, and several days later, on 20 July 1992, the Central Committee of the General Federation approved, for the second time, ‘a labour dispute at the Bezeq Corporation, because of the granting of licences to private enterprises and the transfer of work to contractors, a reduction in the definition of the general licence and a privatization of the “Bezeq” corporation.’

7. On 16 July 1992, Bezeq applied to the Tel-Aviv-Jaffa Regional Labour Court in an application for a temporary and permanent injunction to stop the sanctions. On 17 July 1992, an order was given as requested, and this was extended several times.

8. It should be mentioned, just as the National Labour Court emphasized at the beginning of its judgment in a condemnation of their behaviour, that despite the temporary injunction given against them, Bezeq’s employees carried out sanctions that compelled Bezeq to ask the court twice for orders under the Contempt of Court Ordinance (LC 53/48-2; LC 53/48-3), and an order was even made in this respect. Again, after judgment was given in the main proceeding, which was the subject of the appeal to the National Labour Court, Bezeq was compelled to commence contempt of court proceedings.

This behaviour of Bezeq’s employees deserves strong condemnation, and we will refer to it and mention it below.

9. A further fact that is relevant in this case is the determination that before the hearing of the appeal before the National Labour Court, the sanctions taken by the employees stopped.

10. As stated, the General Federation appealed the decision of the Tel-Aviv-Jaffa Regional Labour Court to the National Labour Court in Jerusalem, which allowed the appeal and set aside the judgment of the Regional Labour Court and the injunction given by it, in so far as it related to the General Federation being forbidden from declaring the strike.

The judgment of the Regional Labour Court

11. After it considered the matter on its merits and in depth, the Regional Labour Court found that the strike of the Bezeq employees was not legitimate, since the reason for it could not be the subject of a collective agreement. In addition, the Regional Labour Court held that the strike was ‘not protected’, with all that this implies, as set out in chapter four of the Resolution of Labour Disputes Law.

In its judgment, the Labour Court considered the ‘balance of convenience’, and on this basis it held that the general public, and also the Bezeq company itself, should be spared substantial harm. The Labour Court therefore ordered the Bezeq Employees’ Representation to maintain full industrial quiet and refrain from a strike or sanctions, and it also ordered the General Federation to order the Bezeq Employees’ Representation and its employees to work fully and without interruption.

The appeal to the National Labour Court

12. The General Federation appealed the judgment of the Regional Labour Court. In essence, the General Federation argued that the strike was declared lawfully and held lawfully, and that it should not be regarded as a ‘political strike’ or an ‘unprotected strike’. In its opinion, the strike does not contradict the ‘industrial quiet’ clauses in the binding agreements.

The National Labour Court considered in depth the many and complex questions that were raised before us, and held, unanimously, but for different reasons, that the appeal should be allowed, and that the judgment of the Regional Labour Court, including the injunction in it, in so far as it related to the prohibition against a strike being declared by the General Federation, should be overturned (paragraph 25 of the judgment of his Honour President M. Goldberg).

The judgment of the National Labour Court

13. The National Labour Court referred to the definition of strikes in case-law, and held that it ought to be changed, even if this involved a deviation of the National Labour Court from its own rulings. This is what was said:

‘In these days, when the legislator intervenes more than ever in employment terms that are determined or that may be determined in agreements or collective agreements… and has become an active partner in determining the terms of employment of all employees, particularly in the public sector… it is highly questionable whether the definition of the term “strike”, as reflected in case-law, can be allowed to stand as it is.’[†]

The court went on and held, for the purpose of the term ‘unprotected strike or work stoppage’, as defined in section 37A of the Resolution of Labour Disputes Law, that:

‘… it is proper that a strike in the civil service directed against a change, that may significantly affect the terms of employment of the employees in a certain enterprise, and which is intended to ensure the rights of the employees as a result thereof, as long as it is not against the law, should not fall into the category of an “unprotected strike” in the civil service, even if it is not the employer who initiated the change.’[‡]

Therefore the National Labour Court reached the conclusion, in the majority opinion written by the learned President, that the question as to whether we are dealing with a ‘political strike’ should be answered in the negative.

The National Labour Court held, at the end of the hearing, that not every strike that is not against the Government as sovereign, rather than as employer, is a ‘political strike’, and in consequence thereof it decided that the strike carried out by the Bezeq employees was not an ‘unprotected strike’ within the meaning thereof in the Resolution of Labour Disputes Law.

14. In order to complete the picture, alongside the reasoned judgment of the majority of the panel of the National Labour Court we should mention the minority judgment of the learned Vice-President, Justice S. Adler, who, although he agreed with the outcome, did so for reasons that are entirely different from those of the majority. The learned Vice-President was of the opinion that the strike in this case was a ‘mixed strike’, partly political and partly economic, and it was mainly political in nature, since:

‘… its tangible and immediate purpose is to change the policy of the Government and the Knesset…’[§]

The agreement of the learned Vice-President to cancel the order made against the General Federation was based merely on the fact that the order had achieved its purpose, and the employees had returned to work. When the appeal of the General Federation was allowed in the National Court, the petitioners submitted this petition, which is now before us.

The main arguments of the petitioners

15. The petitioners recognize the fact that labour law is within the expertise and sole jurisdiction of the Labour Court. They are also aware of the ruling, which was made by this court and which had been upheld more than once, that the High Court of Justice does not sit as a court of appeals on the judgments of the National Labour Court, and it will intervene in the judgments of the National Labour Court only when it transpires that there is a substantial mistake of law, and justice requires us to intervene in order to correct it (HCJ 3679/94 National Association of Managers and Authorized Signatories of First International Bank of Israel Ltd v. Tel-Aviv Labour Court [1], at p. 584, and the many citations set out in the judgment).

Notwithstanding, they are of the opinion that the case before us does indeed fall into the category of rare and special cases where our intervention is justified.

16. According to the petitioners, in the ruling made by the National Labour Court in its judgment there is a fear that a mistake of law may become entrenched and undesirable norms may be adopted in a most important subject, which is one of the foundations of collective labour law and labour relations in the economy. The petitioners argue that a strike directed at the government to achieve political aims, when the employer is usually a third party who cannot agree to the demands, has been called a ‘political strike’ in Israeli case-law, and it is considered a forbidden strike. In the opinion of the petitioners, the strike which is the subject of the case before us is indeed of this kind, and it follows that it does not fall within the sphere of labour law, since its purpose is to achieve objectives that are not legitimate ones in the field of labour law. In addition, the petitioners argue that the provisions of section 37A of the Resolution of Labour Disputes Law distinguish between an unprotected strike relating to salary and social benefits, and a strike which is not of this kind, but this is only with regard to the formal terms stipulated in the law and not in order to expand the concept of the strike and to grant legitimacy to a ‘legal strike’. According to them, the strike still needs to be within the field of labour law and within the framework of a labour dispute, it must be directed against the employer and it must relate to terms of employment or labour relations which are not salary or social benefits — for these two subjects are only some of the matters that may be the basis for a labour dispute, as defined in section 2 of the Resolution of Labour Disputes Law. In this respect, the petitioners argue that a change of the general licence of the Bezeq Corporation and the legislation proceedings for amending the Telecommunications Law are not a part of ‘work conditions’ and they are not a part of ‘labour relations’, since they cannot be the subject of a collective agreement within the meaning of this term in the Collective Agreements Law, 5717-1957. Finally, the petitioners point out that the conclusion of the National Labour Court, in so far as it relates to the widening of the freedom to strike, has no parallel in foreign law.

The main arguments of the respondents

17. The respondents argue that the judgment of the National Labour Court, which is the subject of this petition, was made lawfully and it is right and just on the merits. Therefore, there is no reason for this court to set it aside.

18. The respondents argue before us that it should not be assumed that organized opposition of employees to a harmful action of the Government should not be regarded as a strike, but rather as a forbidden act, merely because the initiative for the harmful act does not proceed from the direct and formal employer. They argue that in the prevailing legal situation in public services, the formal employer has almost no power in matters relating to the determination of employment terms and employees’ salaries, and therefore the formal distinction with regard to the identity of the direct employer cannot be implemented in the present circumstances.

The respondents further argue that just as every citizen and every group of citizens may demonstrate against the implementation of any Government policy, as part of their basic rights in our democratic regime, so too employees have the freedom to associate in order to protect their place of work and their livelihood. They argue that the only practical expression of this freedom to associate is the freedom to strike, i.e., not to work.

Therefore, in view of the aforesaid, the respondents ask the court to cancel the show cause order, to dismiss the petition and not to intervene in the judgment of the National Labour Court.

Preliminary arguments

19. This is the factual and legal background to this petition, on the basis of which a show cause order was issued, and our deliberation will be based on this. But first I must remove from our path two preliminary arguments raised before us by counsel for the General Federation, according to which we are asked to dismiss this petition in limine.

20. First, the General Federation argues before us that section 30(a) of the Labour Court Law, 5729-1969, does not grant the first petitioner (hereafter — the Attorney-General) the authority to challenge the decision of the National Labour Court before this court. It further argues that the petition under discussion raises an academic question that is dead and buried, since the dispute that is the subject of the strike under consideration has already been resolved.

The two arguments should be rejected.

21. With regard to the argument of the General Federation that section 30(a) of the Labour Court Law does not give the Attorney-General the authority to challenge the decision of the National Labour Court before this court, the answer is as follows. Indeed the text of the aforesaid section 30(a) grants the authority to intervene in proceedings before the Labour Court, and it is with this that we are concerned, but what is stated does not imply what the Attorney-General does not have authority to apply to this court.

First, when the Attorney-General became a party in the National Labour Court, he acquired standing both before the court with procedural jurisdiction and also before the court with review jurisdiction. No impropriety should be attached to the fact that this standing should continue to exist also before us as the highest court of review, in order to examine the arguments of the Attorney-General that were rejected in a lower court, which in this case is the National Labour Court.

Second, it seems to me that it is fitting that the Attorney-General, as the person who represents the public interest, should petition the High Court of Justice in cases where he thinks that one of the branches of government has erred in a matter which he thinks is of supreme public importance. This approach is based on two lines of reasoning: first, the Attorney-General has the authority to become a party to a petition filed by someone else, by attending, as in the present case, in the High Court of Justice, by virtue of section 1 of the Procedure (Attendance of the Attorney-General) Ordinance [New Version] (for recognition by this court of a proceeding of attendance that was similar in its circumstances, see: HCJ 51/69 Rudenitsky v. Great Rabbinical Court [2], at p. 711; HCJ 550/89 Attorney-General v. Parole Board [3]).

Third, opening the doors of this court even to a ‘public petitioner’ who can show a general public interest that justifies proper consideration applies a priori to the Attorney-General within the framework of his authority (see Dr Z. Segal, The Right of Standing in the High Court of Justice, Papyrus, second edition, 1994, at pp. 71, 268-270; and also diverse case-law: HCJ 910/86 Ressler v. Minister of Defence [4]; HCJ 2148/94 Gilbert v. Chairman of the Commission of Enquiry for examining the Massacre in Hebron [5]).

22. With regard to the argument about the academic nature of the question under discussion, the remarks of the Vice-President of the Supreme Court, Justice Elon, in CA 506/88 Shefer (a minor) v. State of Israel [6], at p. 98 {179}, are apt:

‘Usually we do not become involved in deciding an issue that is purely academic. But there is no rule that does not have exceptions… This is because usually… the decision must be given without delay, as required by the nature of the case and the facts, and the reasons relate to the heart of the matter and the reasoning for it, so that we will know and have established the law on each of the issues before us when it arises and comes before us once more.’

Or, as Justice Barak chose to express it in HCJ 73/85 ‘Kach’ Party v. Knesset Speaker [7], at p. 146:

‘It is true that this court does not consider questions that are not practical, and it does not give an opinion that is merely academic on questions of theoretical application, but this rule does not apply when the nature of the event, to which the petition refers, is such that the judicial determination of it may come after the event has taken place, but there is a reasonable likelihood that similar events will happen in the future…’

So we see, and the experience of life teaches us, that legal issues of a special and flexible nature from the past that appeared academic at the time became important and urgent practical questions at a later date. For this reason, both because of the direct relevance of the questions that are at the heart of the structure of the constitution and labour law in Israel, and also because of the doubt as to whether this dispute and ones like are merely events of the past, I think it appropriate to consider in detail the question before us.

The freedom to strike

23. In order to decide whether the sanctions taken by the employees in this case should be considered a ‘strike’, within the definition of this term for the purposes of labour law, we must first consider the status of this ‘institution’.

24. It would appear that there is no longer any basis to question the lofty and protected status of the freedom to strike. More than once we has emphasized that:

‘… the “right” to strike has acquired for itself a firm foothold in Israeli legislation and case-law’ (CA 593/81 Ashdod Automobile Enterprises Ltd v. Chizik (dec’d) [8], at p. 190).

In the eloquent language of Justice H. Cohn in CA 25/71 Feinstein v. High School Teachers’ Association [9], at p. 131:

‘It may be said that there is nothing further from the mind of the Israeli legislator than the desire to eliminate the institution of the strike: if an English judge, in a recent decision, described the strike as a ‘holy cow’, then here it should be regarded at least as a kind of revered tradition, such that it can no longer be questioned.’

Moreover, in an age where we are guided, both in legislation and in case-law, by the Basic Law: Human Dignity and Liberty — and its constitutional values — it would appear that the ‘strike’, which we have always considered to be included among the basic freedoms not written in the statute book and which was described as something that ‘in essence belongs not to the sphere of “rights” but to the sphere of “freedoms” which are subject to binding restrictions...’ (See NLC 37/4-3 Katza Workers’ Committee v. Katza Co. Ltd [18]; NLC 52/4-17 (unreported) [19]; NLC 53/4-4[**]), will in the future find refuge in the value of ‘human dignity’ that is enshrined in this basic law (sections 1, 2 and 4 of the Basic Law: Human Dignity and Liberty, and for more detailed analysis, see the book of (Vice-President) Prof. A. Barak, Legal Interpretation, vol. 3, “Constitutional Interpretation”, Nevo, 1994), and also his article ‘Human Dignity as a Constitutional Right’, 41 Hapraklit, 1993-1994, 271, at p. 279).

It is clear, then, that the focus of our consideration is a freedom that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time. Nonetheless, and precisely for this reason, when we are required to determine which acts of protest adopted by workers in their struggle will find refuge under the protection of the ‘strike’, the courts and labour courts must look to the definition of ‘the strike’, with its changing facets and nuances.

Definition of the ‘strike’ — the status of a strike against the sovereign authority

25. In their petition, the representatives of Bezeq and the Attorney-General reiterated their initial and fundamental argument that they argued before the National Court, that an indispensable condition for a concerted action of employees to be recognized as a ‘strike’ for the purpose of labour law is that it is declared within the framework of a struggle to achieve employees’ demands from an employer — with regard to their terms of employment. Counsel for the petitioners argues that this condition is not fulfilled in our case, where the demands of the Bezeq employees are not directed at their employer — the Bezeq Corporation — at all, but at the Government. In their opinion, since this is the case, the actions taken do not fall within the definition of a ‘strike’, and certainly these actions should not be granted legitimacy.

Indeed, as his honour, the learned President of the National Labour Court, Justice Goldberg, pointed out in his judgment:

‘… not infrequently have the Labour Courts, and the civil courts, expressed themselves in such a way that it may be understood that only a strike against an employer, in matters that are a subject for collective bargaining and a collective agreement, is a “strike” within the meaning thereof in labour law.’[††]

See the development of this definition: NLC 36/4-5 Ginstler v. State of Israel [20], at p. 15; NLC 46/4-7 Tel-Aviv-Jaffa Municipality Lifeguard Committee v. Tel-Aviv-Jaffa Municipality [21], at p. 269; HCJ 525/84 Hativ v. National Labour Court [10], at p. 702; NLC 52/4-37 United Mizrahi Bank Ltd v. Mizrahi Bank Workers Union [22], at pp. 62-63.

26. One might ask why we need all this repeated study and examination of the nature of a ‘strike’, when we have established the traditional nature of the definition of the ‘strike’, which is directed against the employer only, whereas in the case before us it is directed against the sovereign authority? To this questioner we will reply that there are sound reasons for this investigation and examination, for we are not divorced from the people and we are charged with seeing the current reality of our times, which changes and varies continually, both in general and also in the field of labour relations. So it would appear that it was not an accident that the legislator chose not to define the term ‘strike’, except in chapter 4 of the Resolution of Labour Disputes Law. It is clear that by doing this the legislator expressed the opinion that:

‘… the concept strike is not one that has a single meaning, which applies at all times, for every purpose and in every situation of a development of labour relations and labour law’ (NLC 36/4-5 [20], at p. 27).

And in the words of Justice Goldberg (President of the National Labour Court) in one of his articles:

‘… it may be good that this matter has been left to the discretion of the courts, for the reason that the needs and situations in the area of labour relations and labour law are dynamic and changing, and a statutory definition, which by its very nature is inflexible, does not change with the passage of time, and may well become a burden when the courts are required to apply the law…’ (M. Goldberg, ‘The Strike in Statute, Collective Agreements and Case-law’, Hapraklit, Special edition celebrating 25 years of the Bar Association, 1987, at pp. 51-52, cited in NLC 53/4-4, 25, supra[‡‡]).

27. We cannot ignore the changes that have been taking place for some time in the field of labour relations in the Israeli economy. It is clear that the Government is both an active and influential factor in the field of labour relations and in the negotiations about labour agreements. This interventionism has many, different causes, and it will suffice if we mention that, in addition to being one of the largest employers in the economy, the State intervenes in the field of labour relations as an active and highly influential factor in ‘package deals’, in wages, taxes and pricing policy.

In this respect, the following remarks, which reflect a familiar reality, are correct:

‘… the fact that the Government has become an active partner in negotiations regarding work conditions, justifies the expansion of the employees’ protest base, so that it may extend also to attack the policy of the additional partner to the negotiations and not merely the employer, as was the case in the past, which reflected the reality that prevailed then’ (Prof. R. Ben-Israel, ‘The Political Strike’, Iyyunei Mishpat, 1986-1987, 609, at p. 624).

It is therefore proper to consider this development when we seek to formulate an up-to-date approach to the important issue in the case before us.

The political strike — classification and status

28. At the heart of the petition before us lies the argument of the Attorney-General that the strike was directed against a specific provision in the Telecommunication Law, 5742-1982, which granted the Bezeq Corporation a monopoly in certain fields. The policy adopted by the State in putting forward the aforesaid draft law to correct the situation in a very limited manner was intended to bring about a measure of change in an undesirable monopolistic situation, and provide for the possibility of free competition in the field of international telephone services and mobile telephone services.

Opposition to this policy, when it is in the process of being legislated in the Knesset, is, in the State’s view, a manifestly political strike, which is regarded by Israeli case-law as a strike that undermines our democratic process, and as such should be regarded as a strike that is not legitimate. This approach, to the extent that it relies on a proper factual basis, finds support in our case-law, and I need only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10] and his decisive approach:

‘The political strike — which attempts to force an act or an omission on government authorities that they would not have tolerated had it not been for the strike — raises many constitutional and social problems: in a democratic regime, this opens the gates for strikers to impose their will on democratically elected institutions, and to direct processes by means of the coercive power of organizations outside the government and even of minority groups who in practice have such coercive power. There may be countries where a national electric power cut, including for electricity being supplied to hospitals and nurseries, can compel the legislator to enact any legislation required of him. But there is no doubt that, together with the collapse of morality, this also harms most seriously the functioning of democracy as such’ (ibid., at pp. 703-704).

This approach of the President has won widespread approval, and it is supported by the opinions of scholars in Israel and abroad (see Professor F. Raday’s article: ‘Political Strikes and Fundamental Change in the Economic Structure of the Workplace’, 2 Hamishpat, 1995, at pp. 159-177).

29. This issue is a delicate one and a very significant one in labour relations and labour law, as they have developed and crystallized in democratic countries. The distinction between a purely political strike, which is considered not legitimate, and an economic strike, which is recognized as a proper strike, is recognized and accepted by the different legal systems, but over time the two extreme forms of strike have been joined by an additional method of protest directed mainly at the sovereign power, which is a quasi-political strike that relies on a factual basis that is made up of a mixture of facts and goals.

Comparative law — conceptual distinctions

30. The law of the international democratic community, which has a long tradition in the field of labour relations, tends to distinguish between the ‘economic strike’, directed at the sovereign to achieve objectives in collective bargaining relating to work conditions, and the ‘purely political strike’, directed against the sovereign for the purpose of achieving political goals. This conceptual distinction is vague and rudimentary, for when considering questions relating to ‘political strikes’, the law in the aforesaid countries has generally shown that it is prepared occasionally to recognize a strike against the sovereign as an ‘economic strike’. Therefore, where employees have started a strike against the sovereign — whether government or legislator — and their goals are directed against the direct intervention of the sovereign in their employment conditions and immediate rights, such as: freezing their wages (in Holland — Re Keijzer v. Peters (1977) [24]) or reducing their salary (in Holland — N.V. Dutch Railways v. Transport Unions FNV, FSV and CNV (1986) [25], at p. 8), their strike was recognized as an economic strike, even though, as stated, it was directed at the sovereign. On the other hand, where the strike was directed against the sovereign and targeted a policy that sought to make a fundamental economic, structural change, such as tax reforms (Finland — Metal Industry Employers’ Federation v. Metal Workers Union (1988) [26]) or privatization processes (in England — Mercury Communication v. Scott-Garner (1984) [23]), the claim that the strike was economic and not political was rejected.

31. The implied conclusion, by way of analogy but in the proper context, is that a dichotomous distinction between a ‘pure political strike’, on the one hand, and an ‘economic strike’, on the other, is no longer applied in the law of the international community mentioned above, and it certainly cannot provide fitting solutions to the diverse labour disputes in a developing economy like that of the State of Israel. We can see how important is the purpose of the strike and how important are the objectives that the strike attempts to achieve. Therefore the interpreter must ascertain the purpose and objectives of the strike, and after he establishes its purpose, he will decide his position with regard to the legitimacy of that strike, even if it is aimed directly at the sovereign.

In this respect, the remarks of Justice Adler in the minority opinion of the judgment which is the subject of this petition are important. Judge Adler accepted the ruling in Mercury Communication v. Scott-Garner [23], supra, holding that:

‘… an additional tool for defining the scope of the strike within the framework of labour law is “the predominant purpose of the dispute”.’[§§]

A strike and a quasi-political strike

32. It follows that, in the reality prevailing in Israel as established above, there are grounds to distinguish between three types of strikes, which differ in their substance, their significance and the binding legal outcome in each of them. The first is the one defined as an economic strike, which involves a strike usually directed at the employer who wants to harm the rights of the employees, or who refuses to improve their terms of employment. This strike may be directed also at the government, when it acts in its capacity as employer, or when it wishes to intervene, by using its executive power, in order to change existing arrangements in labour relations between employees and employers or to prevent such arrangements. Such a strike is accepted as a legitimate strike.

The second is a purely political strike that is directed at the government, not in its capacity as employer, but as the body responsible for determining general economic policy that is not acceptable to employees who think that such a policy will limit them and harm their ability to struggle to achieve their rights as employees. This is a strike that is considered illegitimate, in that it attempts to undermine the authority of the government to determine economic policy with a wide perspective of the general public interest, and to force it to accept the employees’ demands; this is a strike that tries to intervene in legitimate legislation proceedings within the authority of the legislature, not by methods of persuasion acceptable in our democratic system, but by forceful intervention which tries to impose on the legislator what is unacceptable to it. This strike is not legitimate, and there is a justification for preventing it.

The third is a quasi-political strike, which falls between the two extremes that have been mentioned. It is about this that I would like to make some remarks. In these cases, which fall within the range that I have described, the test of ‘the predominant purpose’ becomes doubly important, since we are dealing with those cases where the employees are striking over an issue that is not directly related to their terms of employment in the narrow sense, but it affects them directly. Thus, when the proposed test shows and attests that there is indeed a direct effect on employees’ rights, even if they striking against the government, labour law will arise and give their strike the title of a ‘quasi-political strike’, which shall entitle the employees to the right to hold a short protest strike only, without such a case being classified as one of the two ends of the spectrum, since it is in a class of its own.

In this respect, it is appropriate to adopt the remarks of Prof. F. Raday, in her article, supra, at p. 163, that:

‘The right to strike over matters unrelated to terms of employment in the narrow sense, is completely different from the right to hold an economic strike. It is not possible to regard this as an instrument of economic pressure in conducting collective bargaining, for this would confer legitimacy on strikes against the employer or the government with regard to matters that are not subjects for collective bargaining. It should be regarded as a right of the citizen to freedom of speech and protest. Therefore it is limited to a protest strike only —to a brief action, which is not designed to put economic pressure on the employer. This right of a protest strike on broad socio-economic matters that directly affect workers may be regarded as the creation of a concept of a right to a quasi-political strike, which allows a protest act only.’

The same idea is expressed by Prof. Ben-Israel, in her article, supra, at p. 621:

‘… The proposed standard is, in one respect, that we are dealing with government policy that has an effect on the working sector, but in this context the effect must be direct, whereas an indirect effect is insufficient. An additional restriction arises from the case-law of the Committee of the International Labour Organization (ILO), which is that we are dealing with a strike that is designed to express a protest only, and is not designed to breach the peace.’

From the general to the particular

33. Should the strike before us be classified as an economic strike, entitled to the protection of labour law, as the National Labour Court ruled? In my opinion, this is not the case, and I do not accept the conclusions of the National Labour Court. I will explain my position.

34. With respect to the classification of the strike — if the General Federation wishes to rely upon the economic strike and to argue that the present strike is such, and to rely upon the protections conferred on such a strike, then it has the task, as the representative of the striking workers, of persuading the court that the policy of opening different fields of telecommunications services up to competition, as this is expressed in the Government’s draft legislation, will directly harm employees and their terms of employment, in the narrow sense. In my opinion, convincing and well-founded evidence that restricting Bezeq’s monopoly may cause direct and immediate harm to Bezeq’s employees has not been presented at all, either before the National Labour Court or even before us. Therefore, I am prepared to rely on the determination of Vice-President Adler, when he indicated that:

‘The facts submitted… have not shown a clear, certain or immediate effect that the new law will have on the terms of employment, the wages or the continued employment of Bezeq’s employees. It is possible that they will suffer, but it is also possible that they will benefit from the competition, if Bezeq competes successfully… The effect of the draft law on Bezeq’s employees is neither certain nor tangible, since there is no direct threat to the places of work of Bezeq’s employees, there is no direct intention to change their terms of employment, and there is no threat to reduce the corporation’s manpower. The opposite is true — Bezeq’s employees enjoy job security by virtue of statute and by virtue of collective agreements that apply to them.’

Therefore the inescapable conclusion is that the correct classification of this strike, according to its objectives and background, is, at most, a ‘quasi-political’ strike, which only justifies a protest demonstration that can be expressed, as stated, in a protest strike of short duration.

I emphasize the words ‘at most’, because were it not for the expectation that Bezeq’s employees have of exclusivity and an everlasting and unchangeable monopoly — expectations deriving from the provisions of sections 50, 51 and 60 of the Telecommunications Law, it is in my opinion highly questionable whether a change in the law could be regarded in any way, even prima facie, as having a direct and material influence on the employees’ terms of employment. From a review of the facts of the case and the provisions of the said law, I can determine that these feelings and expectations of the employees are unfounded. But I can understand that when the employees’ hope — albeit a mistaken one — was disappointed, a genuine fear took root in their minds that a change in the law would harm their terms of employment in some way. For this reason, I would tend to place this strike in the category of the quasi-political strike, with the consequences elucidated above.

35. It seems to me that even section 37A of the Resolution of Labour Disputes Law will lead us to the same conclusion with regard to the nature of the strike before us, and its proper classification. The term ‘strike or unprotected strike’ is defined in section 37A of the Resolution of Labour Disputes Law, in the following terms:

‘A “strike or work stoppage” — any one of the following:

(1) A strike or work stoppage of employees in public service, at a time when they are subject to a collective agreement, except for a strike that is unrelated to wages or social benefits, and the national centre of the competent trade union has declared or authorized it;

(2) …

(3) …’

In our case, where Bezeq is a ‘public service’ within the meaning of this term in the Resolution of Labour Disputes Law, we must consider the meaning of the words ‘except for a strike that is unrelated to wages or social benefits’. With regard to the interpretation of this phrase, Prof. Ben-Israel expressed her opinion as follows:

‘Two types of strike may be justified by the exception [‘that is unrelated to wages or social benefits’]:

(a) Sympathy strikes…

(b) Strikes of a certain political character…’ (see Prof. R. Ben-Israel, The Strike, Sadan, 1987, 194) (square parentheses added).

Even if we adopt this interpretation, which I do not reject, we would still find ourselves bound by the spirit of section 37A, which seeks to ensure the uninterrupted supply of essential public services. For this reason, I believe that in providing an exception for ‘the unprotected strike’, the legislator is only prepared to recognize the quasi-political protest strike, and to protect it within its narrow limits. When the protest of Bezeq’s employees took on the form of a general and prolonged strike, it significantly exceeded the quasi-political strike in its scope and objectives, and it became a political strike in the full sense of the term. For this reason, it is illegitimate and unprotected, contrary to the approach of the National Labour Court.

When will this court intervene in a judgment of the National Labour Court?

36. The respondents argued several times that we should not intervene in the ruling of the National Labour Court, for this is not an appropriate case for intervention. Only recently we reemphasized that:

‘We do not sit as a court of appeals on the judgments of the Labour Court, and therefore this court will not consider petitions that are manifestly of an appellate nature, and it will usually consider intervening in the rulings of the National Labour Court when two conditions are fulfilled… i.e., the existence of a significant mistake of law and the existence of considerations of justice that require our intervention…’ (see, for fuller treatment, HCJ 3679/94 [1], at p. 584, where the ruling in Hativ v. National Labour Court [10] was upheld).

Counsel for the petitioners is aware that labour law is the expertise of, and within the exclusive jurisdiction of, the Labour Court, and the intervention of this court in their decisions is limited, exceptional and requires cautious treatment. Nonetheless, their opinion is that in the present case, if the innovative ruling in the judgment of the National Labour Court continues to exist, a material mistake of law with regard to norms that should be applied to the issue of the ‘political strike’ will become entrenched, and this is a very important issue that reaches the foundations of collective labour law and collective labour relations.

This position has merit. The question of the ‘political strike’ raises, as stated, questions that reach the foundations of collective labour law, and yet many aspects of it are vague and unclear. The rulings on this subject, both those given by the Labour Courts and those found in judgments issued by this court, are few, and they relate to the special circumstances of one case or another. Therefore there were reasons for the National Labour Court, but also for this court, to consider this question in depth, with all its fundamental aspects.

When there exists a real, substantial difference of opinion on this issue, which is innovative, multi-faceted and of general application, the binding law ought to be determined by us:

‘For we should remember this: the ultimate responsibility for the development of case-law within the framework of the law is entrusted to the highest and final instance in the court system, namely the Supreme Court’ (A. Barak, ‘The High Court of Justice and the Labour Court — An explanation from the viewpoint of Jurisprudence’, The Bar-Niv Book — Selected Articles in Labour Law, Ramot, A. Barak eds., 5747, 103, 116).

In the words of Justice Cheshin in HCJ 1520/91 Wilensky v. National Labour Court [11], at p. 519:

‘This court, in which we sit, is the one that bears the burden and the responsibility, and if we do not speak succinctly and clearly, we will not be able to absolve ourselves by passing the responsibility onto others by relying on the intention of the legislator. We are the guarantors — and we are expected to determine the law.’

See, for fuller treatment and comparable cases: HCJ 3679/94 [1], supra; HCJ 675/84 General Federation of Labour in Israel v. Tel-Aviv-Jaffa Regional Labour Court [12], at p. 19; HCJ 289/79 Israel Ports Authority v. National Labour Court [13], at p. 159, etc..

Conclusion

As stated above, I have determined that the essence of the strike at issue is mainly a protest by Bezeq employees against a general, socio-economic policy, which is directed at on opening up the Israeli economy to competition and privatization. This policy is legitimate and even desirable. It does not constitute direct intervention in the freedom of negotiations or the employment conditions of the employees and it is truly concerned with the general public interest.

Where the sovereign decides that social and economic conditions justify changes in economic policy, whether by means of privatization of public services or by divesting certain bodies of their monopoly, we must recognize its right and authority to implement such a policy. The strike of the employees who dispute this policy because of an unfounded fear that their rights as employees will be affected may, at most, be classified as a short-term, quasi-political protest strike, but nothing more.

37. For these reasons, the petition has merit and we grant it. We are making the show cause order absolute, in the sense that we are reinstating the outcome which the Regional Labour Court reached in its judgment, but for the above reasons.

In the circumstances of the case, there will be no order for costs.

Justice M. Cheshin

1. I agree, but I thought I should raise two points.

First point: classification

2. The needs of society and the methods of governing the modern State — whether in relations between the State and the individual, or between individuals inter se — present us with social and economic conditions that refuse to fit into the legal models of the past. Models used in the past to decide legal disputes can no longer be applied in their old form, and legal classifications that were once all-embracing are collapsing and falling. This is not unprecedented. This phenomenon is encountered in every branch of law.

Only recently we were required to deal with the institution of the cooperative house, and we said that it was difficult to fit it into the traditional classifications of property law (see ALCA 7112/93 Tzudler v. Yosef [14], at p. 562):

‘The cooperative house (which is called “condominium” in some jurisdictions) is an invention of modern law, and it originates in the physical and social conditions of modern society. From the viewpoint of traditional property law, the cooperative house is a kind of hybrid: the “apartments” in the cooperative house are owned separately… and alongside these the “common property” is jointly owned by all the owners. The provisions of joint ownership of the general law do not apply to the common property in the cooperative house… and the provisions of the chapter in the law on cooperative houses are unique to cooperative houses. The arrangement provided by law for the cooperative house restricts the right of the apartment owners to act both with regard to the common property and with regard to the apartments that they own, and in this we can see the normative uniqueness of the cooperative house and the arrangements that apply to it… Indeed, the cooperative house is an institution that is sui generis, which is in some ways like one thing and in other ways like another, and it adamantly refuses to fit into any of the traditional models of property law. Moreover, the cooperative house refuses to be classified only in property law, and it has elements that go beyond property law. These creative elements in the cooperative house — elements that go beyond property law — include, inter alia…’

An example which is closer to the matter at hand may be found in the traditional distinction between private law and public law. This distinction has, to a large degree, been blurred recently. With respect to certain legal issues, its value has greatly diminished, and its strength has almost been depleted. In the words of Justice H. Cohn in HCJ 262/62 Peretz v. Kfar Shmaryahu Local Council [15], at p. 2109:

‘… in the national and public economy of today, there is no longer any practical benefit in the accepted distinction between the commercial or civilian acts of any authority of the State or a local authority, and their executive or public acts.’

See also HCJ 840/79 Israel Contractors and Builders Centre v. Government of Israel [16].

3. This is also the case in the matter before us, namely, with regard to the traditional dichotomous classification of the strike as either an ‘economic strike’, within the narrow field of employee-employer relations, or a ‘political strike’ (if this is indeed a ‘strike’). For reasons that we shall not consider at length (which include the ever-increasing intervention of the State in the conditions of economic life, and the greater awareness of civil rights, and these are perhaps the main reasons), the courts, academics and practitioners in the field of social sciences have found that the traditional classification can no longer provide proper solutions for social and economic conditions, which life and the development of law in a modern State have shown us. This unsatisfactory nature of the traditional models naturally led to a need to try and find new models, whether by improving the existing models or by designing new models that fit the needs of our times. Apparently we are currently in a period of transition, from the model of the past to the model of the present. This leads to the various proposals for new (or reconstituted) models, and this leads to different opinions among academics and lawmakers. As long as we have the comforting protection of a universally accepted classification, the resolution of issues may appear simple and clear, and resolving disputes may appear to be routine (even if it is not so). But during a transition stage from one period to another, nerve-endings are exposed, the search for creative elements that transcend the law becomes urgent and vexing, and disagreements between opposing outlooks are revealed with increasing intensity.

4. My colleague suggests that we adopt the remarks written by Professor Raday with regard to the issue of ‘quasi-political’ strikes, and he goes on to mention in the same context the remarks of Professor Ben-Israel. The comments of these two authorities — each in her own way — appear beneficial and useful as models for examination and determination, but I believe that we should take care not to adopt one model only, a model that may provide us with a fitting solution for one set of facts, but may be ineffective with respect to another set of facts (we note that a ‘quasi-political’ strike is, by definition, supposed to give expression not (only) to the right to work and earn a livelihood, but (mainly) to civil rights). In our case, I have not the slightest doubt that the strike of the employees has gone beyond the framework of a strike that should be recognized as legitimate. A strike of the kind that we have seen in this case is capable of dealing a mortal blow to the infrastructure of a democratic society, obliterating fundamental values of social morality and destroying the norms of coexistence. We know where it begins, but who knows where it may end? In this respect, I can only refer to the remarks of President Shamgar in Hativ v. National Labour Court [10], at pp. 703-704, cited by my colleague in paragraph 28 of his judgment.

Second point: the right (or freedom) to strike and human dignity

5. My colleague states (in paragraph 24 of his judgment) that since the advent of the Basic Law: Human Dignity and Liberty, the right (or freedom) to strike ‘will in the future find refuge in the value of “human dignity” that is enshrined in this Basic Law’. My colleague goes on to say that ‘the focus of our consideration is a liberty that has the status of a constitutional right and is well-established in the different branches of Israeli law — a status that grows stronger all the time’. No one would dispute that the freedom to strike is one of the inalienable assets of the Israeli legal system. I would also agree that the freedom to strike and its status are on an elevated level, equal to that of statute. Notwithstanding, since we do not need to decide this now, I would not say that it is self-evident that the freedom to strike springs naturally from ‘human dignity’ in the Basic Law: Human Dignity and Liberty, and that its status today is that of a constitutional right. In HCJ 453/94 Israel Women’s Network v. Government of Israel [17], our colleague, Justice Zamir, says the following at p. 536 {468}:

‘In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that recognize many aspects of the Basic Law. This is particularly true with regard to the right to dignity. The same is true of law books. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, supposedly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: “Study it from every aspect, for everything is in it”.

I would like to restrain myself, in this context, from obiter dicta that find their way between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a binding part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of “do not raise or disturb it until it is required”.’

In that case, the court considered the principle of equality, and Justice Zamir thought that it was possible to decide the dispute that arose between the litigants without also deciding that ‘the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty as part of the value of human dignity, and it has, therefore, a super-legislative status’ (ibid.). This was true with respect to the principle of equality, and it is also true, in my opinion, with respect to the freedom to strike in our case. Let the remarks of Justice Zamir be heard as if they sprung forth from my lips.

Justice Ts. E. Tal:

I agree with the judgment of the honourable Justice D. Levin. Like my colleague, Justice Cheshin, I too wish to emphasize the harm to the foundations of democracy that results from a strike that is not an economic strike against an employer, whereby a group of workers tries to bring the legislature to its knees by force. I would leave undecided the question whether the right to strike is currently enshrined in a basic law.

Petition granted.

10 Nissan 5755.

10 April 1995.

[*] General Federation v. Bezeq, the Israel Telecommuncation Corporation Ltd IsrLC 25 367.

[†] Ibid., at p. 377.

[‡] Ibid., at pp. 378-379.

[§] Ibid., at p. 386.

[**] IsrLC 25 367.

[††] Ibid., at p. 376.

[‡‡] IsrLC 25 367.

[§§] Ibid., at p. 390.

Full opinion:

Attorney General v. National Labor Court.pdf

Louzon v. Government of Israel

Case/docket number:

HCJ 3071/05

Date Decided:

Monday, July 28, 2008

Decision Type:

Original

Topics:

Abstract:

This Petition challenges the exclusion of the medication “Erbitux” among the state provided health services, which are publically funded. The medication Erbitux is a new drug for the treatment of colon cancer.

The Supreme Court, sitting as a High Court of Justice, held as following:

It is doubtful whether the demand for public funding of new medications may find a hold in the hard core of the constitutional rights detailed in the Basic Law. Even under a broad interpretive approach with expand the constitutional scope of the right to dignity beyond the necessary minimum in the context of welfare and social security, it seems that only in extreme and unique circumstances there would be a constitutional duty for state authorities to fund a particular, specific drug. It seems that in this case, the Petitioners have not demonstrated a violation of a constitutional right.

The right to public health services stands independently as a constitutional right. The entirety of the arrangements established in the Patient’s Rights Act and the National Health Insurance Act lead to two primary conclusions: First, that the range of state provided health services does not aim to include the entirety of possible medical services, to the optimal extent and level to which the individual may require them. Second, in the current state of the law, or legal system recognized a constitutional right to public medical services at a greater extent from the minimal core of the basic health services necessary for humane existence of a society. At the core of the right are those health services, which the State must finance. At the outer layer are the remainder of the health services that are not included within the basic schedule of said services. The scope of the constitutional right to public health services beyond the basic schedule of services depends on the yearly Budget Act.

The Petition’s main arguments target the authority of the Schedule Committee and the way in which it applied its discretion when setting the contents of the schedule of health services within the existing budget. The role of the Schedule Committee is to advise the relevant bodies as to setting priorities between new medical technologies for the purpose of expanding the schedule. This task is difficult. Within this framework, the budgetary consideration is a legitimate and valid consideration for the Schedule Committee to consider. It is important to note that the Schedule Committee is a part of the public administration and in its operation it is bound by the rules of administrative law. In our case, no flaw has been found in the standards that guided the Schedule Committee in setting priorities between the new medical technologies.

We cannot even say that the Schedule Committee recommendations as to progressive allocation of the Erbitux drug are unreasonable to an extent that requires intervention. Nor does it constitute prohibited discrimination against other patients whom the drugs they require are included in the health services schedule. Under circumstances where public resources are not sufficient for all the needs and all those who require them, it is necessary to allocate resources according to priorities that by their very nature create differences between people and between groups. These differences do not constitute prohibited discrimination, as long as they are founded upon reasonable and legitimate considerations.

Voting Justices:

Beinisch, Dorit

Primary Author

majority opinion

Grunis, Asher

majority opinion

Naor, Miriam

Author

concurrence

Full text of the opinion:

HCJ 3071/05

1. Gila Louzon

2. Adolf Edri

3. "Last Border" Amuta for Cancer Patients

1. Government of Israel

Minister of Health
Minister of Finance
Committee for Expanding the Medicinal Services Basket appointed by the Council for National Health Insurance

HCJ 3938/05

1. Yaakov Bar-On

Uriel Gilon
Zion Halifi
Eliyahu Yitah
Emile Huri
Keren David
Asher Miara
Shlomo Ginosar

1. Ministry of Health

Minister of Health
Ministry of Finance

4. Minister of Finance

HCJ 4013/05

1. Yaakov Sheiber

Haim Edelstein
Shlomi Segal
Hayat Yosepov

1. State of Israel

Minister of Health
Minister of Finance
Industry and Trade Minister
Supervisor of Prices and the Committee under the Price Supervision Law
Committee for Expanding the Medicinal Services Basket appointed by the Council for National Health Insurance
General Health services
Macabbi Health services
Meuchedet Health Fund
Leumit Health Fund

The Supreme Court sitting as the High Court of Justice

(8 August 2005)

Before President D. Beinisch and Justices A. Grunis, M. Naor

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

Legislation Cited

Patient's Rights Law, 5756-1996, s. 3.

Do Not Stand on Your Neighbor's Blood Law, 5758-1998

National Health Insurance Law, 5755-1995

Value Added Tax Law, 5736-1976

Israel Supreme Court cases cited:

[1] HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241.

[2] HCJ 4128/02 Man, Nature and Law - Israeli Society for the Protection of the Environment v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[3] HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2004] IsrSC 59(3) 322.

[4] LCA 4905/08 Gamzo v. Isaiah [2001] IsrSC 58(3) 360.

[5] HCJ 5578/02 Manor v. Minister of Finance [2004] IsrSC 59(1) 729.

[6] HCJ 2557/05 Mateh Harov v. Israel Police (2006) (unreported).

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

[8] HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior (2005) (unreported).

[9] HCJ 2599/00 Yated Association of Children with Down Syndrome v. Ministry of Education [1999] IsrSC 56(5) 834.

[10] HCJ 7351/03 Rishon Le-Zion Municipal Parents Committee v. Minister of Education, Culture and Sport (2005) (unreported).

[11] CA 5557/95 Sahar Insurance Company Ltd. v. Alharar [1997] IsrSC 51(2) 724.

[12] HCJ 2344/98 Macabbi Health Services v. Minister of Finance [2000] IsrSC 54(5) 729.

[13] HCJ 9163/01 General Health Services v. Minister of Finance [(2002] IsrSC 55(5) 521.

[14] HCJ 1554/95 Supporters of Gilat Amuta v. Minister of Education, Culture and Sport [1996] IsrSC 50(3) 2.

[15] HCJ 2725/92 General Health Services v. State of Israel [2004] IsrSC 59(1) 781.

[16] HCJ 1829/02 General Health Services v. Minister of Health [2003] IsrSC 58(1) 406.

[17] HCJ 7365/95 Bolous Brothers – Marble and Granite Production Ltd v. Investments Centre [1996] IsrSC 50(2) 89.

[18] HCJ 3472/92 Brand v. Minister of Communications [1993] IsrSC 47(3) 143.

[19] HCJ 3627/92 Israel Fruit Growers Organization Ltd. v. Government of Israel [1993] IsrSC 47(3) 387.

[20] HCJ 2453/06 Israeli Medical Association v. Attorney General (2006) (not yet reported).

[21] HCJ 4004/07 Turonshvili v. Ministry of Health (2007) (not yet reported).

[23] HCJ 4613/03 Shaham v. Ministry of Health [2004] IsrSC 56(6) 385.

[24] HCJ 1113/99 Adallah v. Minister for Religious Affairs (2000) (unreported).

[25] HCJ 2974/06 Israeli v. Committee for Expanding the Health Services Basket (2006) (not yet reported).

[26] HCJ 3997/01 Neopharm Ltd. v. Minister of Finance (2001) (unreported).

[27] HCJ 7721/96 Israeli Insurance Assessors Association v. Inspector of Insurance ]2001] IsrSC 55(3) 625.

[28] HCJ 82/02 Kaplan v. State of Israel, Ministry of Finance, Customs Division [2004] IsrSC 58(5) 901.

[29] CA 8797 Anderman v.Objection Committee of District Committee under the Planning and Construction Law, 5725-1965, Haifa [2001] IsrSC 56(2) 466.

[30] HCJ 10/00 Raanana Municipality v. Inspector of Transport, Tel-Aviv and Central Districts [2001] IsrSC 56(1) 739.

[31] CCT 8/02 Minister of Health v. Treatment Action Campaign [2002] (10) BCLR 1033.

[32] CCT 32/97 Soobramoney v. Minister of Health [1997] (12) BCLR 1696.

JUDGMENT

President D. Beinisch

The petitioners in these three petitions suffer from various forms of cancer. The petitioners’ doctors referred them for medicinal treatment, and when these petitions were filed, the petitioners’ required medications were not included in the basket of health services that receives public funding under the provisions of the National Health Insurance Law, 5754-1994 (hereinafter: “National Health Insurance Law” or "the Law"). The petitioners had difficulty in purchasing the medications independently, and this was the basis for their petition to this Court requesting that we instruct the respondents to include their medications in the publicly-funded health services basket (hereinafter: “the basket” or "the health services basket"). The petitioners argue that the decision to omit these medications from the health services basket approved for 2005 violated their constitutional rights, it was unreasonable, and it discriminated against them adversely vis-à-vis other patients whose required medications were included in the basket.

As will be clarified below, Government Decision no. 406 concerning a budgetary supplement to the health services basket was adopted on 27 August 2006. Following the budgetary supplement, the medications constituting the subject of the petitions in HCJ 3071/05 (hereinafter: HCJ Louzon) and HCJ 3938/05 (hereinafter: HCJ Bar-On) were included in the basket. On the other hand, the medication discussed in petition HCJ 4013/03 (hereinafter: HCJ Sheiber) was not included in the basket, and remains for our consideration.

The factual background preceding the filing of the petitions

1. The health services basket as defined in s. 7 of the National Health Insurance Law includes the health services that all Israeli residents insured under the Law are entitled to receive from the sick funds, by means of funding sources that are the responsibility of the State. Below we will discuss the arrangements prescribed by the National Health Insurance Law and the means for determining the contents of the health services basket. At this stage we note that in 2005, when the current petitions were filed, the Ministry of Health had received requests for the addition of about 400 new medicines and technologies to the health services basket. These requests, together with the professional literature and the processed data pertaining to each request, were submitted to the Public Committee for the Expansion of the Health Services Basket (hereinafter: the Committee.) The Committee held a number of meetings, following which it prioritized the medications in an order that was influenced, inter alia, by the Committee’s assessment of the urgency of the various medications.

The Committee’s recommendations were presented to the Government on 21 March 2005 in the framework of a debate on the budget for the addition of new technologies to the health services basket. On 13 April 2005 the Government passed a decision approving the addition to the basket of the medications and technologies listed in a table appended to its decision. This decision also determined that “…the cost of the 2005 health services basket will express the addition of technologies at an annual cost of NIS 350 million in accordance with the prices of the average health cost index of 2004….” The budgetary supplement made possible the addition to the health services basket of some of the medications recommended by the Committee. Nevertheless, certain medications for various forms of cancer were excluded from the health services basket, not having been accorded sufficient priority by the Committee. This was the background to the filing of the three petitions to this Court.

The course of events in the three petitions

2. The petition in HCJ Louzon was filed by patients suffering from cancer of the colon, and by an amuta [non-profit organization] established for the purpose of helping them. According to the petition, doctors who treated the petitioners had referred them for treatment with Avastin, but as this medication was not included in the health services basket, the petitioners were forced to purchase it independently. The medication was particularly expensive, and the petitioners were unable to continue financing it. They therefore petitioned this Court, requesting it to instruct the respondents to include Avastin in the health services basket, in the category of treatment for colon cancer.

The petition in HCJ Bar-On was filed by several petitioners suffering from prostate cancer that had progressed to the metastatic stage, which is resistant to hormonal treatment. Their doctors recommended Taxotere; this medication, too, was excluded from the 2005 health services basket. Against this background, the petition was filed asking the Court instruct the respondents to include Taxotere in the requested category, along with other remedies.

The four petitioners in HCJ Sheiber were suffering from colon cancer and needed Erbitux, a medication which was similarly excluded from the health services basket of 2005. Owing to the high cost of the medication, this Court was requested to order that Erbitux be included in the health services basket in the category of treatment for colon cancer; the petitioners also sought additional remedies, which we will discuss below.

3. Soon after the petitions were filed, they were scheduled for an early hearing. On 4 April 2005 the petition in HCJ Louzon was heard by President A. Barak and Justices A. Procaccia and M. Naor. That session concluded with the Court deciding to grant the order nisi sought in the petition. On 24 May 2005 the petitions in HCJ Bar-On and HCJ Sheiber were heard by Justices E. Rivlin, E. Rubinstein and S. Joubran, and at the end of the hearing the Court decided to grant the request of the petitioners in HCJ Bar-On to file an amended petition. The Court further decided to grant an order nisi regarding some of the remedies sought in HCJ Sheiber.

After the amended petition was filed and responded to in HCJ Bar-On, and after the filing of responding depositions in the other petitions, all three petitions were scheduled for hearing on 8 August 2005 before this panel (President D. Beinisch, Justices A. Grunis and M. Naor). At that time, the issue of funding the basket surfaced on the public agenda, and a public campaign was waged to increase the budget so as to enable the inclusion of new technologies in the basket. We deemed it appropriate to defer our judgment, pending the possibility of the petitions being resolved without the need for this Court’s intervention.

Indeed, in the State's update to this Court, it stated that on 9 April 2006 the Israeli Government decided to expand the health services basket by including new technologies, thus adding the sum of NIS 165 million to the 2006 basket. At this stage it became clear that the medications forming the subject of these petitions were not included in the budgetary supplement decided upon by the Government. A second update submitted by the State a few months later stated that the Government had decided upon an additional expansion of the health services basket by including new technologies to the 2007 budget, at an annual yearly cost of NIS 237.28 million, which would be brought forward to the 2006 budget (Government decision No. 406). As a result of this decision, as of 20 September 2006, Avestin was added to the category of first-line treatment for metastatic colon cancer which was the subject of the first petition in HCJ Louzon. In addition, the Taxotere medication was also labeled as a first-line treatment of metastatic prostate cancer which was resistant to hormonal treatment – the subject of the HCJ Bar-On.

As noted earlier, the Erbitux medication constituting the subject of the Sheiber petition was not ranked highly enough by the Committee, and even after the budgetary supplement for the year 2006, it was excluded from the health services basket. The Government subsequently decided to increase the budgetary funding for the 2008 health services basket: initially a supplement of NIS 380 million was approved and finally an overall sum of NIS 450 million was approved. Even after the budgetary supplement, however, the Erbitux medication in the category of colon cancer remained outside the basket.

HCJ Bar-On and HCJ Louzon

4. As mentioned, following the budgetary supplement that expanded the 2006 health services basket, Avestin and Taxotere were added to the requested categories in the 2006 health services basket. This meant that a practical solution was found for the main remedy requested in HCJ Louzon and HCJ Bar-On, even though unfortunately, this was only after most of the petitioners had already passed away.

On 27 September 2006, counsel for the petitioners in HCJ Bar-On, Adv. Sigal Zeft, informed us that since Taxotere had been included in the health services basket, the petitioners were waiving further hearing of their petition. As for HCJ Louzon, counsel for the petitioners, Advs. Orna Lin and Michal Stein, informed us on 3 October 2006 that despite the inclusion of Avestin in the category of metastatic colon cancer in the 2006 health services basket, they still felt their petition should be heard. In their view, the inclusion of Avestin in the health services basket did not obviate the fundamental arguments raised in the petition against the Committee's mode of operation and the manner in which it exercised its discretion, and a decision should be made on these arguments. Regarding this assertion, it must be said that in general, this Court will not rule on a petition that previously related to an actual issue but has, in the circumstances, become superfluous. The High Court of Justice has already ruled that “…if the case constituting the subject of a petition is resolved, by itself or by judicial decision, the Court will no longer be prepared to consider the legal question it raises” (HCJ 6055/95 Tzemach v. Minister of Defense [1], per Justice I. Zamir, at para. 3). It is not disputed that as of 2006, there has been a solution for the remedy sought in HCJ Louzon regarding the inclusion of Avestin in the health services basket. This being the case, we see no need to rule on the series of questions raised in that petition. All the same, it is noteworthy that some of the questions raised by counsel for the petitioners in HCJ Louzon concerning the violation of the petitioners’ constitutional rights and concerning the manner in which the Committee exercised its discretion were also raised by the petitioners in HCJ Sheiber. These issues will be discussed below.

Therefore, and in view of the inclusion of Avestin and Taxotere in the requested categories of the 2006 health services basket, the order nisi granted in the Louzon case will be cancelled and the petitions in HCJ Louzon and HCJ Bar-On will be withdrawn with no order for costs. The petition in HCJ Sheiber therefore remains for our decision.

HCJ Sheiber – the pleadings of the parties

5. Two main remedies were requested by counsel for the petitioners, Adv. David Sasson, in HCJ Sheiber. First, this Court was requested to order the addition of Erbitux, in the category for treatment of colon cancer, to the list of approved medications in the health services basket. Secondly, the petitioners requested an order that action be taken in one or more of the ways specified in the petition, with the aim of reducing the price that cancer patients are required to pay for medications not included in the health services basket.

In their petition, the petitioners raised several main arguments. First, it was argued that the right to health is part of the right to life and bodily integrity, and the right to human dignity, which are anchored in Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). The claim is that the non-inclusion of the Erbitux medication unlawfully violated the petitioners’ constitutional rights, contrary to the conditions of the reservations clause. Secondly, the petitioners challenged the way in which the Committee exercised its discretion. In this context, they stressed that they were not challenging the budgetary framework determined by the Government for funding the healthcare basket. Their main argument was that the framework for funding the basket should be based on a format that provided equal funding for all life-saving or life-prolonging drugs, without preferring any particular medication at the expense of another. In this context, it was further asserted that by not including Erbitux in the health services basket, appropriate weight was not assigned to the value of saving human life, and this constituted discrimination against the petitioners in relation to other patients whose required medications were included in the basket.

A significant part of the petitioners’ claims turned on their proposals for reducing the cost of medications not included in the health services basket, in order to help patients in financing the purchase of these medications independently. In this context, the petitioners proposed a number of solutions, including: cancellation of value added tax and other indirect taxes levied on the sale of life-saving medications; the centralized purchase by the Ministry of Health and/or the Sick Funds of life-saving drugs not included in the health services basket, in a manner that would reduce the prices for those patients who required them.

6. Counsel for the State, Adv. Dana Briskman and Adv. Einav Golomb, whose responses were comprehensive and erudite, argued that the HCJ Sheiber petition should be denied. Regarding the petitioners’ claim concerning the unlawful violation of their constitutional rights, counsel for the State referred to the responding deposition filed in HCJ Louzon. According to the State, in the matter at hand, this Court should exercise judicial restraint and the utmost caution in the present context, and refrain from deriving a general constitutional right to health and medical care from the framework rights anchored in Basic Law: Human Dignity and Liberty.

As to the petitioners’ arguments concerning the manner in which the Committee exercised its discretion, the State responded that a decision on ranking new medications and technologies was a complex one, involving a broad spectrum of considerations, and that it was subject to the budgetary restrictions that were set in accordance with the Government’s overall scale of priorities. Erbitux, it was argued, is a new medication, and it is not yet known whether it improves the symptoms of colon cancer patients or prolongs their lives. Bearing this in mind, the Committee deemed that it could not be given higher priority than other medications which had been proven to be life-prolonging. The argument is therefore that the recommendation was adopted after a thorough, informed, and in-depth decision-making process, which was conducted in accordance with the law; as such there are no grounds for interfering with it.

With respect to the petitioners’ proposals to reduce the price of medications not included in the health services basket, it was argued that these proposals should be rejected in limine in view of the failure to exhaust all alternative avenues and to apply initially to the relevant authorities. The State addressed the various proposals on their substance, and presented its reasons for rejecting the petition as it related to them.

7. The four Sick Funds in Israel are also respondents to the petition. In their responses, they argued that they are not relevant respondents to the petitioners’ request to include Erbitux in the health services basket, since under the provisions of the National Health Insurance Law, it is not the Sick Funds that determine the contents of the basket, and their role consists exclusively of the provision of the services included therein. Regarding the petitioners’ proposal for the Sick Funds to carry out a centralized purchase of the medications not included in the health services basket in order to reduce the price for their members – it was argued that the National Health Insurance Law does not obligate the Sick Funds to carry out a centralized purchase. Nevertheless, some of the Sick Funds indicated in their response that they would not oppose a centralized purchase of medications not included in the health services basket, but their consent was contingent upon the prior regulation of all aspects and questions involved in the matter.

8. The petition in HCJ Sheiber therefore raises various issues pertaining to the health services basket in Israel. Our discussion of these questions will proceed as follows: first, we will consider the petitioners’ argument that non-inclusion of Erbitux in the health services basket unlawfully violates their constitutional rights. We will then discuss the petitioners’ objections to the manner in which the Committee exercised its discretion in determining the contents of the health services basket. Finally, we will address the petitioners’ various proposals for reducing the prices of the medications not included in the basket.

The constitutional status of the right to health

9. The petitioners asserted that the Committee ranked the new medications and technologies in a manner that violated their constitutional right to health, thereby contravening the conditions of the reservations clause. The petitioners conceded that the right to health is not explicitly prescribed in the basic legislation, but claimed that it derives from the right to life and bodily integrity as well as from the right to human dignity, both of which are anchored in Basic Law: Human Dignity and Liberty.

In addressing these arguments of the petitioners, we will note at the outset the difficulty involved in defining the internal scope of the right to health, since prima facie it covers an exceedingly broad domain. In principle, the right to health can be viewed as a collective term for a cluster of rights related to human health, some of which enjoy constitutional status in our legal system. For example, the right to health includes the right to preservation of the patient’s privacy and protection of his autonomy by disclosure of all medical information concerning him and obtaining his consent to any treatment administered to him. The right to health likewise includes the right not to be discriminated against with respect to access to medical treatment. It also includes additional aspects that affect people’s health, such as public awareness and access to information on health-related matters, access to acceptable food and drinking water in suitable sanitary and environmental conditions that are not harmful to human health, and other matters as well (see: Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4, at www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En (hereinafter: General Comment 14 of the U.N. Committee on Economic, Social and Cultural Rights). Considering the many aspects of the right to health, there would seem to be no basis for examining the constitutional status of the right as one composite whole; rather, the rationales for the various rights and interests protected in its framework should be considered, in accordance with their relative social importance and with the strength of their connection to the constitutional rights enumerated in Basic Law: Human Dignity and Liberty (see and compare: Justice D. Dorner on the “right to a decent environment" in Man, Nature and Law v. Prime Minister [2], para. 2).

10. This petition is concerned with the right to health-care, and more precisely with the right to receive publicly funded medical/medicinal treatment. Inarguably, the right to medical treatment is not explicitly mentioned in the framework of the basic laws concerning human rights. As is known, the attempts to enact basic legislation that would confer explicit constitutional status on social rights, including the right to health and medical treatment, have thus far failed (see e.g.: Draft Basic Law: Social Rights, HH 5754, 337; see also the proposal of Law and Constitution Committee, “Broadly-Accepted Constitution", ss. 17, 18A - www.knesset.gov.il/HUKA ; see further and cf: "Constitution by Agreement", Proposal of the Israeli Democracy Institute, ss. 32, 34 - www.e-q-m.com/clients/Huka/huka_01.htm. Taking this into consideration, the question of the degree to which the right to medical treatment enjoys constitutional status in our legal system is far from simple. This is especially the case in relation to the “affirmative” aspect of the right, which imposes upon the state a positive duty to act, the essence of which is responsibility for the public funding of health services in Israel. One of the central dilemmas in this context would appear to lie in the definition of the internal-constitutional scope of the right to medical treatment in general, and the right to publicly-funded health services in particular.

This Court has already ruled that the right to inclusion in the national health insurance system, per se, does not enjoy constitutional meta-legal status (see HCJ 494/03 Society of Physicians for Human Rights v. Minister of Finance [3] (hereinafter: Physicians for Human Rights v. Minister of Finance), para. 18). Alongside the aforementioned ruling, the view has been expressed in our case-law that “a person without access to elementary medical treatment is a person whose human dignity has been violated” (per President A. Barak in LCA 4905/08 Gumzo v. Isaiah [4], para. 20). It has also been determined that “… the social right to the provision of basic health services can be anchored in the right to bodily integrity under s. 4 of the Basic Law” (per President A. Barak in Physicians for Human Rights v. Minister of Finance [3], paras. 16, 18; emphasis added – D.B.). Furthermore, the view was expressed that the right to medical treatment in a medical emergency involving immediate physical distress, being a right grounded in s. 3(b) of the Patient's Rights Law, 5756-1996, may be included in the category of protected rights in the framework of Basic Law: Human Dignity and Liberty (ibid, para. 18).

Thus, it emerges from the case-law of this Court that the constitutional rights enumerated in Basic Law: Human Dignity and Liberty are likely to include various aspects from the areas of welfare and social security, including health care. However, our case-law has yet to consider directly the question of which “basic health services” are included within the parameters of the constitutional rights enumerated in the Basic Law, and whether a constitutional right to health services that extends beyond the basic level required for human existence in society should be read into these constitutional rights. This dilemma is reflected in the pleadings of the parties in the case before us. On the one hand, the centrality of health to the maintenance of decent human existence, to the welfare of the individual and to his ability to realize all other human rights is undisputed. Where medicinal treatment with any particular potential for saving, prolonging or improving the patient’s quality of life is concerned, significant weight should be assigned to the value of the sanctity of life, the integrity of body and soul, and human dignity, all of which are central values with constitutional standing in our legal system. Regarding the receipt of publicly-funded medical treatment, the legislation of the State of Israel is characterized by a commitment to a public health system grounded in the principle of mutual responsibility and concern for the society’s indigent, as indicated by the provisions of the National Health Insurance Law, which we will address below.

On the other hand, as mentioned above, the right to public health services in the present context means imposing a positive duty on the state, the main substance of which is responsibility for public funding of medical-medicinal treatment. Naturally, the issue of the constitutional scope of that right involves general distributive questions that derive from the nature of the socio-economic regime governing a society and the scope of public resources at the state’s disposal (cf: HCJ 5578/02 Manor v. Minister of Finance [5], para. 9, per President A. Barak). Indeed, the human rights recognized in our system, which are generally referred to as “civil and political rights”, also impose upon the State “positive” duties of protecting the realization of a right, and not just “negative duties” of not violating the right. Quite often the state’s duty to protect the realization of civil and political rights also includes a “positive” duty that involves the allocation of substantial resources (see e.g. in the context of freedom of speech and demonstration: HCJ 2557/05 Mateh Harov v. Israel Police [6], per President A. Barak, at para. 14 ff.). Even so, it seems that the right to publicly funded health services, like other rights connoted as “social-economic rights”, has a dominantly "positive" character that arouses greater concern for questions of policy on social resource distribution, in accordance with the determination of a national scale of priorities (see Guy Seidman and Erez Shaham, “Introduction: Medicine and the Law and What’s Between Them,” 6 Law and Business 13, at p. 27 (2007) (hereinafter: Seidman and Shaham).

Since its earliest days, the accepted view of this Court has been that the Court should be wary of intervening in the formulation of overall economic policy and in the determination of national priorities; the general rule is that the executive and the legislative branches shoulder the public and national responsibility for the State economy (see my comments in HCJ 4769/95 Menahem v. Minister of Transport [7], para. 13, and references cited there). Bearing this in mind, and in the absence of an explicit anchoring of social rights in basic legislation, the question that arises is to what extent can judicial-interpretative tools be used to construe the rights enumerated in Basic Law: Human Dignity and Liberty as including a right with a correlative duty to provide public healthcare services on a larger scale than that of the minimum requirements for decent human existence in a society (regarding this matter, cf. the majority opinion, as per President A. Barak, with which I concurred, in HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior [8], paras. 14-16 - that the constitutional right to human dignity includes the protection of the “minimum” for decent human existence, as opposed to the minority view of Justice E. Levi (ibid, paras 1- 3), according to whom human dignity includes protection of “appropriate living conditions”; for a view in favor of a broad interpretation of the constitutional right to human dignity in the realm of welfare and social security, see e.g. Yoram Rabin, The Right to Education, at p. 370 (2002) and references cited; for other views see: Ruth Gavison, “The Relations between Civil-Political Rights in Israel and Socio-Economic Rights,” Economic, Social and Cultural Rights in Israel, 25, at pp. 34-35 (eds. Yoram Rabin and Yuval Shani, 2004); Rivka Weil, “The Health of the Budget or the Health Budget – Which Takes Preference from a Constitutional Perspective?” Law and Business 6, 157, at p. 169ff (2007) (hereinafter: Weil); Yoav Dotan, “The Supreme Court as the Protector of Social Rights” Economic, Social and Cultural Rights in Israel, at p.69 (eds. Yoram Rabin and Yuval Shani)).

It will be pointed out below that recognition of a constitutional right to publicly funded health services raises the question of the degree of constitutional protection of that right. In other words, even assuming that the right is included, be what may the scope, in the framework of the constitutional rights enumerated in Basic Law: Human Dignity and Liberty, this does not mean it is absolute; like other rights, the right to publicly funded health services must be balanced against other competing rights and interests. Accordingly, if a constitutional right to public health services is established, the question to be considered is how to interpret and apply the conditions of the reservation clause under circumstances in which it is proved that there was a substantive violation of that right, and what are the appropriate tools for giving effect to those conditions. (On the distinction between the internal scope of a constitutional right and the extent of protection accorded to it, see Aharon Barak, Legal Interpretation, Vol. 3, Constitutional Interpretation (1995), at p. 371ff.

11. These dilemmas are complex, and they trigger questions relating to various aspects, which I will not discuss here. I will simply mention that the right to health has indeed gained recognition in various international conventions, and it is included in the constitutions of a number of states around the world. Nevertheless, the delineation of the internal scope of the right and the extent to which it is protected remain vague, and they are characterized by a cautious approach that considers the budgetary capabilities of each state and the principle of the progressive realization of the right. For example, in 1946 the Constitution of the World Health Organization (WHO) recognized the basic right to health, but the scope of this right is defined as “the highest attainable standard of health" [emphasis added – D.B]; (see also: Eyal Gross, “Health in Israel: Right or Commodity?” Economic, Social and Cultural Rights in Israel, 437, 442-443 (Yoram Rabin and Yuval Shani eds, 2004) (hereinafter: Gross). As for the Universal Declaration of Human Rights of 1948: this Convention entrenches a number of social human rights, including the right to a decent standard of living which includes aspects of the right to health and to medical treatment. At the same time, the Preamble to the Declaration states that these rights are to be realized by “progressive measures”.

One of the central international documents concerning the right to health is the International Covenant on Economic, Social and Cultural Rights of 1966, which was ratified by the State of Israel in 1991. Section 12 of the Covenant states that Party States to the covenant “… recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” [emphasis not in original – D.B], and that the States must take the required steps to ensure, inter alia, “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Section 2 of the Covenant adds that each Party State will take steps “…to the maximum of its available resources, with a view to progressively achieving the full realization of the rights” (on other international conventions and documents on the right to health, see: Gross, at pp. 443-445). Thus we see that the international conventions that recognize the right to health and medical treatment take budgetary constraints into consideration, and are cautious in determining the scope of this right and the degree of protection it is accorded.

On the internal constitutional level, the constitutions of many states, including Canada and the U.S.A, do not confer explicit constitutional status upon the right to health. The constitutional law of these states protects only limited aspects of this right. On the other hand, s. 27 of the South African Constitution confers explicit constitutional status upon the right of access to medical treatment. However, the South African Constitution adds that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights (for the text of the South African Constitution, see http://www.info.gov.za/documents/constitution/1996/96cons2.htm#27). It should be noted that the constitutions of India and Holland expressly entrench the right to promote public health, but this right is not enforceable by the judiciary and it is only a type of fundamental principle that is intended to guide the actions of the executive and the legislative authorities (see Gross, at pp. 462-463; Guy Seidman, “Social Rights: A Comparative Perspective on India and South Africa,” (347, at pp. 356, 370) (Yoram Rabin and Yuval Shani eds, 2004)).

A comparative analysis reveals that while the right to health and medical treatment is recognized on the international level and in the constitutions of several states world-wide, the scope of this right, the degree to which it is protected, and the manner of its realization vary from state to state, and are characterized by a cautious approach that is influenced, inter alia, by the availability of public resources and by the economic capabilities of each state (see Aharon Barak, “Introduction,” Economic, Social and Cultural Rights in Israel, 8-9 (Yoram Rabin and Yuval Shani eds, 2004)). In general, the question of the scope of public health services is not exclusive to Israel and it characterizes, in varying degrees, to all states in the world, for no state is capable of funding unlimited health services, which are constantly becoming more sophisticated and more expensive due to medical and technological developments. The system for funding health services provided to the public also varies from state to state according to different models (private funding, public funding or a combination thereof), in accordance with the economic regime governing that particular state, its social priorities, and its budgetary capabilities (see Seidman and Shaham, at pp 40 - 42; on the system for funding health services in Canada, the U.S.A and England, see Yuval Karniel, “The Basket of Medications – Doctors, Judges and the Media,” Law and Business 6 (2007), at pp. 225, 231 (hereinafter: Karniel)). Our case-law has already held that “[e]ach state has its own problems. Even if the fundamental considerations are similar, the balance between them reflects the particularity of each society and that which characterizes its legal arrangements" (per President A. Barak in HCJ 4128/02 Man, Nature and Law v. Prime Minister [2], at para. 14). Against the background of the above, it can be said, in sum, that the definition of the scope of the constitutional right to public health services, the extent of its constitutional protection, and the provision of measures for its enforcement are complex issues. As such our treatment of the right in case law requires caution and moderation.

12. The petition in HCJ Sheiber does not require a decision on the entire complex of questions pertaining to the constitutional status of the right to medical treatment in general, and the right to publicly funded health services in particular. This is because the petition is not concerned with the constitutionality of a Knesset statute; rather, it concerns the manner in which the competent authorities exercised their discretion in determining the contents of the health services basket. Bearing that in mind, I will confine myself to a short comment on the constitutional aspect as it relates to the circumstances of this case.

As mentioned, the petition in HCJ Sheiber is directed against the non-inclusion of Erbitux in the publicly funded health services basket. Erbitux is an innovative medicine for the treatment of colon cancer. As will be elucidated below, there is no consensus regarding the effectiveness of this medication in the saving or even the prolonging of life; the research data from studies of this medication are still disputed, and the medication is expensive. I therefore tend to the view that this particular medication, and other similarly experimental innovative medications, would not fall within the rubric of the basic health services required for minimal human existence in society. Indeed, for patients suffering from life-threatening illnesses, any medication that offers some chance to save or at least to prolong their lives, even if only for a short time, is of critical, inestimable value. At the same time, from a broad social perspective and given the limitations of the public resources, I doubt whether the demand for public funding for these innovative medications has a handle in the hard kernel of constitutional rights enumerated in the Basic Law.

Furthermore, even according to an exegetical approach that extends the constitutional scope of the right to human dignity beyond the level of the basic minimum in the area of welfare and social security, it would appear that only in extreme and exceptional circumstances would the state be constitutionally obligated to fund a specific medication, one of many in respect of which applications are submitted for public funding. In this than necessary in national context, it is noteworthy that in view of their reluctance to intervene more -economic scales of priorities, courts the world over refrain from ruling that the lack of public funding for a concrete medical treatment amounts to a violation of the patient’s constitutional right. (For exceptional circumstances in which it was ruled that a violation of a constitutional right had been proved, see and compare: Minister of Health v. Treatment Action Campaign, CCT 8/02 [31]. In that case, the South African Supreme Court obligated the Government to enable the distribution of medicinal treatment designed to prevent the transmission of the AIDS from mothers to their children, under circumstances in which the medicine was provided free of charge to the Government by the manufacturer). Considering all the above, it would appear that in the petitioners’ case it has not been proven that a meta-legal constitutional right has been violated, and their rights must be thus be examined in accordance with the normative-legislative framework that will be discussed below.

The legal right to public health services

13. As noted, HCJ Sheiber is not concerned with the constitutionality of Knesset legislation, and consequently I saw no need to rule on the complex of questions arising with respect to the constitutional status of the right to publicly funded medical treatment. It should however be stressed that the right to public health services exists in its own right as a legal right, in other words, as a right that stems from Knesset legislation as interpreted in case law and in the spirit of the obligations of the State on the international-conventional level, with no necessary connection between the aforementioned legal right and the constitutional rights enumerated in Basic Law: Human Dignity and Liberty (cf. the right to education: HCJ 2599/00 Yated Association of Children with Down Syndrome v. Ministry of Education [9], para. 6, per Justice D. Dorner and references there; HCJ 7351/03 Rishon Le-Zion Municipal Parents Committee v. Minister of Education, Culture and Sport [10], para. 4 of my judgment). The question therefore arises as to the substance and scope of the legal right to public health services in Israel, and whether this right been unlawfully violated in the circumstances of the petitioners' case.

14. The scope of the State's responsibility to ensure the access to and provision and funding of health services in Israel is set forth in our legal system in various pieces of legislation. S. 3(a) of the Patient's Rights Law, 5756-1996 (hereinafter: "Patient's Rights Law"), entitled "The Right to Medical Treatment” prescribes as follows:

3. (a) Every person in need of medical care is entitled to receive it in accordance with all laws and regulations and the conditions and arrangements obtaining at any given time in the Israeli health care system.

S. 3(a) of the Patient's Rights Law explicitly provides that the scope of the right to medical treatment in Israel derives, inter alia, from the statutory provisions applying to the matter. It should be mentioned that s. 5 of the Patient's Rights Law, entitled “Proper Medical Care” supplements the provision of s. 3(a) in providing that: “A patient shall be entitled to proper medical care, having regard both to its professionalism and quality, and to the personal relations incorporated in it.” S. 3(b) of the Patient's Rights Law further provides that –

(b) In a medical emergency, a person is entitled to receive unconditional urgent medical treatment.

It should be stated immediately that the petitioners avoided basing their claims before us on the provisions of s. 3(b) of the Patient's Rights Law. Indeed, it would appear, prima facie, that under its current categorization, Erbitux could not qualify as urgent medical treatment for a medical emergency under the provisions of s. 3(b); it is a relatively new medication, intended to prolong life under circumstances of grave protracted illness; the research data regarding its categorization is disputed, and it is not included in the basket (see the ruling of the South African Constitutional Court, whereby the right to “emergency medical treatment” under s. 27(3) of the Constitution does not apply to dialysis treatment given for the sake of prolonging life in a chronic medical condition of a protracted illness: Soobramoney v. Minister of Health [32]). It should be mentioned that in the circumstances of the case before us, similar reasons underlie the non-application of the provisions of the Do Not Stand on Your Neighbor's Blood Law, 5758-1998 [Israeli Good Samaritan Law- trans], which the petitioners cited in their pleadings.

15. Another major piece of legislation with ramifications for the substance and the scope of the legal right to public health services is the National Health Insurance Law. Prior to the enactment of this Law, health insurance in Israel was voluntary. There was no legal obligation to take out medical insurance, and a person not insured as a member of one of the Sick Funds was obligated to pay for all medical treatment that he received (on this matter see CA 5557/95 Sahar Insurance Company Ltd v. Alharar [11], para. 12 per (former title) Justice Theodor Or). The National Health Insurance Law was designed to change this situation. The purpose of the Law was to create a compulsory health insurance system in order to guarantee health services for the entire Israeli population, while defining the funding sources of the public health system and their allocation. The National Health Insurance Law was based on recognition of the state’s responsibility for funding public health services for the general benefit, to be provided to the public by way of the Sick Funds, deriving from the state’s commitment to “principles of justice, equality and mutual assistance” as stated in s. 1 of the Law.

The substance and the scope of the legal right to public health services are laid down in s. 3 of the National Health Insurance Law, entitled "The Right to Medical Services", which provides as follows:

3. (a) Every resident is entitled to health services under this law, unless he is entitled to them by virtue of another law.

…

(b) The State is responsible for the funding of the health services basket from the sources enumerated in section 13.

(c ) The Sick Fund is responsible to any person registered with it for all of the health services to which he is entitled under this law.

(d) The health services included in the health basket shall be provided in Israel, according to medical discretion, of a reasonable quality, within a reasonable period of time, and within a reasonable distance from the insuree's residence, all within the framework of the funding sources available to the Sick Funds under section 13.

(e) Health services will be provided while preserving human dignity, protection of privacy and preserving medical confidentiality [emphasis not in original – D.B.]

From the provisions of s. 3 and the other provisions of the National Health Insurance Law, it emerges that a special relationship between the insured parties, the Sick Funds, and the State is established in that Law. The Law obligates the insured parties – consisting of all residents of the State – to pay insurance premiums at a progressive rate calculated in accordance with the insured party’s level of income, as specified in s. 14 of the Law. This gives expression to the principle of mutual responsibility, the aspiration being for each insured party to pay according to his ability and receive according to his needs, out of consideration for the weaker members of society (see: Report of the National Committee of Inquiry for Examining the Operation and Effectiveness of the Israeli Health System, vol. 1, 81 – 82 (1990) (hereinafter: Netanyahu Report); Carmel Shalev, Health, Law and Human Rights (2003), 202 (hereinafter: Shalev); on the principle of detaching the receipt of medical treatment from the ability to pay for it, and the gradual erosion of this principle over the years due to amendments introduced into the National Health Insurance Law, see Gross, at p. 471 ff).

Under the provisions of the National Health Insurance Law, the Sick Funds are responsible for providing all their registered insured members with all of the health services under the Law, apart from a limited number of health services, the provision of which is the responsibility of the Ministry of Health (see s. 3(c) as cited above, and s. 69 of the Law). The health services that insured members are entitled to receive directly from the Sick Funds are mainly those health services included in the "health services basket" as defined in s. 7 of the Law. It should be noted that prior to the enactment of the National Health Insurance Law, there was no uniform basket of services, and each Sick Fund exercised independent discretion in its determination of the healthcare services to be provided to its members, regarding both the composition and the scope of services. The National Health Insurance Law changed this situation by fixing a single basket that was binding upon all of the Sick Funds.

Whereas the Sick Funds are responsible for the provision of the services included in the public health services basket, the State is responsible for funding the basket. The National Health Insurance Law contains specific provisions relating to the calculation of the cost of the basket, and to the sources from which it is funded. Section 9(a) of the Law fixes the “basic cost” of the basket; this is updated annually in accordance with an automatic-technical formula that is based on the rate of increase of the health cost index as specified in the Fifth Schedule of the Law. Once the cost of the basket for a particular budgetary year is set, the State is responsible for funding the basket by means of the funding sources listed in s. 13 of the law. Section 13 contains a list of sources for funding the healthcare services provided under the Law, including health insurance dues paid by insured members, sums of money collected by the National Insurance Institute, certain sums from the budget of the Ministry of Health, and others. The funding sources for the basket include “additional sums from the state budget as determined annually in the Budget Law, and which supplement the funding of the cost of the basket borne by the Sick Funds …”. Thus, the annual Budget Law serves as a central funding source that supplements the other statutory funding sources of the health services basket.

It should be mentioned as an aside that over the years, there has been extensive criticism of the statutory mechanism for adjusting the cost of the basket. The main objection in this context is that the health cost index is inadequate for the purpose of adjusting the funding of the health services basket to the real increase in the cost of the basket which stems, inter alia, from the growth in the national population, the increase in the average age of the Israeli population, and the constant technological progress in the field of medicine (see Shalev, at pp 229 – 232, 269-270; Gross, p. 495 ff; Daphne Barak-Erez, “The Israeli Welfare State – Between Legislation and Bureaucracy,” 9 Labor, Society and Law 175, at p. 181 (2002); see also HCJ 2344/98 Macabbi Health Services v. Minister of Finance [12], per (former title) Justice M. Cheshin)). Over the years, the Finance Ministry rejected recommendations for the establishment of a substantive mechanism to supplement the technical mechanism currently fixed by the Law on grounds of budgetary constraints. A number of petitions contesting this conduct were submitted to this Court, but ultimately this Court refrained from intervening in the aforementioned policy of the Finance Ministry, for the reasons outlined in the decisions (see HCJ 9163/01 General Health Services v. Minister of Finance [13], per (former title) Justice M. Cheshin; see also Macabbi Health Services v. Minister of Finance [12]). Various draft laws for establishing a substantive mechanism for adjusting the real cost of the health services basket did not evolve into legislation. This being the situation, the Government retains broad discretion in determining the amount of the annual supplement to the cost of the basket, above and beyond the supplement mandated by the health cost index.

16. The entire body of arrangements prescribed by the Patient's Rights Law and the National Health Insurance Law leads to two main conclusions regarding the substance and the scope of the legal right to public health services in Israel. First, given that the purpose of the National Health Insurance Law is to grant rights to all residents of Israel by way of a national health insurance, as opposed to private risk insurance; and given that the public health services included in the health services basket are subject to the funding sources listed in s. 13 of the Law, among them the Annual Budget Law - it is clear that the health services basket does not purport to include the entire range of possible medical services, at the optimal scope and level as may be required by an individual. This point was made by (former title) Justice T. Or, writing as follows:

‘…As we saw, the Health Law establishes a basket of services. It does not purport to provide all of the medical services that are or may be required by those insured by the Sick Funds…the existence of a health system is dependent upon its financial balance, and the existing financial sources do not guarantee the provision of all the possible medical services…

It thus emerges that the provision of medical services by the Sick Funds cannot always provide all of the medical services required by a sick or injured person who is insured by the Fund’(CA 5557/95 Sahar [11], para. 19).

Secondly, the purpose of the National Health Insurance Law and the body of arrangements it prescribes, and s. 5 of the Patient's Rights Law which determines the right to ‘proper medical service’ - necessitate the conclusion that at this point in time, our legal system recognizes a legal right to public health services that extends beyond the minimum core of basic health services required for decent life in a society. Naturally, it is difficult, perhaps even impossible, to define precisely the scope of this legal right. Nevertheless, we can speak of a right with a core and an outer casing. The core of the legal right to public health services includes all the public health services that the state is obligated to fund. Section 7(a) of the National Health Insurance Law classifies these as the “basket of basic services” provided by the General Histadrut Sick Fund prior to 1.1.94 (just before the Law came into force); with the addition of the automatic technical adjustment in accordance with the health cost index as specified in s.9(b) of the Law (hereinafter: the basic basket). The public funding of this basic basket constitutes a defined statutory obligation in terms of its scope and quantity, and indisputably, the state is powerless to shake off this obligation by claiming that there is no budgetary coverage for its liability (see and compare: HCJ 1554/95 Supporters of Gilat Amuta v. Minister of Education, Culture and Sport [14], per (former title) Justice T. Or, at para 21; HCJ 2344/98 Macabbi Health Services v. Minister of Finance [12]; HCJ 2725/92 Macabbi Health Services v. Minister of Finance [15], per Justice S. Joubran, at para. 47).

Within the outer casing of the basic right to public healthcare services are all other health services that are not included in the framework of this basic basket. Pursuant to the provisions of the National Health Insurance Law, the right to extend the health services basket beyond the basic basket is a right of the type that (former title) Justice Cheshin dubbed “budget-dependent rights” (Macabbi Health Services v. Minister of Finance [15], paras. 35-40). By their very nature and essence, these rights are a function of the policy that has its source in the Annual Budget Law. Indeed, as explained above, s. 13 of the National Health Insurance Law states that the Annual Budget Law shall serve as a funding source that supplements the other sources of funding of the health services basket. This means that the Budget Law determines the additional funding for the addition of new technologies and medications to the health services basket, such that “without a budget there is no right” to the expansion of the basket (see and compare: Macabbi Health Services v. Minister of Finance [15], at p. 39). This arrangement may indeed be consistent with the conception endorsed by international conventions and in the legal systems of other states, whereby the scope and extent of realization of the right to health and medical treatment is subject to the economic capability of the state and the resources at its disposal (see para. 11 ibid).

17. Under the current legal position, the scope of the legal right to public health services beyond the basic basket derives from the Annual Budget Law. At the same time, I should mention that the budgetary limitation is not a permanently unsurpassable ceiling. The International Covenant on Economic, Social and Cultural Rights, which, as noted, was ratified by Israel in 1991, determined that the State Parties must take steps for the progressive realization of the right to health recognized in s.12 of the Covenant. The meaning of the obligation of progressive realization was discussed in General Comment 14 of the U.N. Committee on Economic, Social and Cultural Rights – which is the authorized interpretation of s.12 of the Covenant. General Comment 14 provides inter alia that in circumstances in which retrogressive measures are taken that impede the progress already achieved in relation to the right to health, the State party has the burden of proving that the measures are necessary in view of the State party's maximum available resources (see para. 32 of General Comment 14 ibid). This, then, is the position on the level of the conception of the international undertakings. In the spirit of these principles the question that is likely to arise in our legal system is whether a serious reduction in the funding of the health services basket - including by way of significant cumulative erosion of the funding of the basket in the absence of a substantive mechanism for a real adjustment of its cost - transfers the burden to the State to show that this reduction is indeed justified and dictated by reality. The question is one of interpretation: the legal right to the expansion of the health services basket is indeed budget-dependent in accordance with the provisions of the National Health Insurance Law, but the question is whether it is appropriate to interpret its scope taking into consideration the principle of progressive realization, and in the spirit of Israel’s undertakings on the international level? This question is not currently under discussion and I prefer to leave it as pending.

18. In the circumstances of this case, does the non-inclusion of Erbitux in the Health services basket unlawfully violate the petitioners’ legal right to receive publicly funded health services? There is no dispute that Erbitux was not included in the basic basket as defined in s. 7 of the Law (see para. 16 supra). Therefore, the demand for public funding for Erbitux is “budget-dependent”. In this context it should be stressed that the petitioners in HCJ Sheiber refrained from challenging the budgetary framework allocated by the Government for the expansion of the health services basket, and rightly so under the circumstances. In both his oral and written pleadings, counsel for the petitioners stressed that the petition is not aimed at increasing the budget earmarked for the health services basket; it is directed primarily against the authority of the Committee and the manner in which it exercised its discretion in determining the contents of the health services basket in the framework of the existing budget.

I will state right away that we have examined the petitioners’ arguments against the Committee’s authority and its mode of operation, and our conclusion is that there are no legal grounds for our intervention on that count; nor has it been proven, in the circumstances of the case, that the petitioners’ legal right to receive public healthcare services was unlawfully violated. In order to elucidate our reasons for this conclusion, we will first consider the manner of determining the composition of the health services basket, the nature of the Committee and its subordination to the rules of public law. We will then proceed to discuss the petitioners’ arguments against the authority of the aforementioned Committee and the manner in which it exercised its discretion.

Determining the composition of the health services basket

19. As mentioned, s.7 of the National Health Insurance Law defines the initial contents of the health services basket (the basic basket), in a manner that reflects the framework of health services that were provided by the General Histadrut immediately prior to the date on which the Law came into force. Naturally, in view of the rapid developments in the world of science, and taking into consideration the accelerated development of new medical technologies in the face of the steadily increasing needs of the Israeli population, it frequently becomes necessary to examine the possibility of adding new medications and technologies to the health services basket. In this context, s. 8(e) of the National Health Insurance Law prohibits the addition of medications and technologies to the health services basket in the absence of a suitable funding source to cover the additional cost involved (on the questions of interpretation raised by this section, see HCJ 1829/02 General Health Services v. Minister of Health [16], per Justice E. Grunis, para. 5). Section 8(b)(1) of the National Health Insurance Law further provides that any addition of new medications and technologies to the health services basket involving additional costs must be by virtue of a decision of the Health Minister, with the agreement of the Minister of Finance and the approval of the Government.

20. When there has been a decision to allocate a budgetary supplement to fund an expansion of the health services basket, how is it decided which new medications and technologies to include in the framework of the basket? As transpires from the State’s response, the adoption of decisions on this matter is subject to a complex process comprising several stages:

Each year the Ministry of Health sends out a “public appeal” for the submission of requests to include new medications and technologies in the Health services basket. The requests are submitted by a variety of bodies – professional, public, commercial and private. After collecting the requests, the process of gathering data and professional evaluation begins. This process is conducted by the Technologies and Infrastructure Administration in the Ministry of Health, with the assistance of additional professional bodies both inside and outside the Ministry of Health. Upon completion of this process, and after the formulation of the recommendation of the professional bodies in the Ministry of Health, the professional background material is transferred to the Committee.

This Committee conducts its deliberations regarding the requests submitted to it, taking into account all the professional material made available to it. From the State’s response, it emerges that at the initial stages of the Committee’s deliberations, each medication is evaluated and graded numerically in order to serve as an auxiliary tool for the basic classification of the various technologies. At the advanced and final stages of the deliberations, the Committee prioritizes the various technologies and recommends the adoption of a final scale of priorities among the technologies, taking into account the given budgetary framework.

The Committee’s recommendations regarding the ranking of new medications and technologies are presented to the plenum of the Health Council, which is authorized under the Law to advise the Minister of Health on changes in the basket. Following all these stages, and in the event that the recommendations are accepted by the Minister of Health, they require the consent of the Minister of Finance and confirmation of the Government, pursuant to s. 8(b)(1) of the Law, for the purpose of confirming the funding sources for the expansion of the basket. At the end of the process the recommendations are anchored in an Order issued by the Minister of Health.

The Committee thus plays a central role in ranking the new medical technologies, and its recommendations affect the contents of the basket in the event of a budgetary decision being adopted for its expansion. We will now focus our attention on this Committee.

The nature of the committee and its subordination to the rules of public law

21. The Committee is appointed by virtue of an administrative decision of the Minister of Health, and it operates on behalf of the Health Council, which is authorized to advise the Minister on matters pertaining to “changes in the health services basket, taking into account, inter alia, new technologies and their costs (s. 52(1)(b) of the National Health Insurance Law). The authority to appoint the Committee is found in s. 48(f) of the National Health Insurance Law, which provides that the Health Council, headed by the Minister of Health, is authorized to appoint committees from amongst its members, and to have recourse to experts who are not members. The appointment of the Committee might also be anchored in the general ancillary competence of the Minister of Health to voluntarily consult with others in the exercise of his authority, and to establish suitable bodies for the purpose of such consultation (see s. 17(b) of the Interpretation Law, 5741-1981; and see Itzhak Zamir, Administrative Authority, vol.1, at pp. 190-191, 246-247 (1996) (hereinafter: Zamir)).

The Committee's role, therefore, is to advise the relevant bodies on the prioritization of new medical technologies for the purpose of expanding the health services basket. Work of this kind undoubtedly requires expertise, experience and broad understanding in order to strike the appropriate balance between all of the relevant considerations, which are multi-disciplinary and complex, as will be specified below. With this in mind, the Minister of Health, in conjunction with the Minister of Finance, decided to include experts from different fields on the Committee: representatives of the doctors, representatives of the Sick Funds, economists, and public representatives. This composition of the Committee was designed to assist it in evaluating new medical technologies and accepting recommendations from a broad social perspective, taking into consideration the professional-medical aspects and the various public considerations involved in the addition of new medications and technologies to the medical services basket, all within the framework of the resources allocated by the Government to the health services basket for the relevant budgetary year.

22. It should be stressed that although the Committee is not a statutory body, and although it includes public representatives who are not personally subordinate to the appointing minister, the Committee is part of the public administration and its actions are governed by the rules of public administration (on the proposal to refer to bodies of this kind as "satellite bodies", see Zamir, at p. 413, 421). It should be mentioned that State counsel did not dispute this, and in their summations they assumed that the Committee was indeed bound by the rules of Administrative law.

In view of the above, it is agreed that the Committee is obliged to act reasonably and fairly, basing itself on relevant considerations and the principle of equality, and conducting correct administrative proceedings in the spirit of the principles laid down in the National Health Insurance Law. Furthermore, in view of the Committee’s unique composition, its professionalism and its expertise regarding the sensitive and complex questions which it considers, it is given relatively broad leeway in the exercise of its discretion. As a rule, this Court will not substitute itself for the Committee, and will not rush to intervene in the Committee’s exercise of its discretion, as long as the latter's recommendations were the product of a correct process and as long as it did not deviate substantively from the framework of relevant considerations that it ought to have considered, or from an appropriate balance of these considerations within the parameters of reasonableness (cf: HCJ 7365/95 Bolous Brothers- Marble and Granite Production Ltd v. Investments Centre [17], per Justice I. Zamir, para. 4).

23. In concluding this part of the hearing, I will say that from the outset, there was no obligation to anchor the actual establishment and operation of the Committee in legislation, in that it is a body established for advisory purposes, as explained above. Over time however, the Committee has become a factor that wields major influence on the updating of the contents of the health services basket, inter alia in view of the general tendency of the Minister of Health to endorse the Committee's recommendations on prioritizing the various medical technologies. Considering the Committee's influence and the complexity of its work due to the gravity of the matters with which it deals, and in view of the pressures applied by various interested parties, this would seem to be an appropriate time to consider anchoring its activities in an appropriate statutory framework that would determine the manner of the Committee’s appointment, its composition, its powers and its work procedures. Such anchorage is likely to assist in the regulation of the Committee's activities, considering the particular sensitivity of the difficult and important issues with which it deals (see and compare: Guy I. Seidman, "Regulating Life and Death: The Case of Israel's 'Health Basket' Committee", 23 J. Contemp. Health L. & Pol'y 9, 30 (2006); Karniel, at pp. 234-235; regarding other advisory bodies established by force of an administrative decision and subsequently anchored in appropriate legislation, see: Zamir, at pp. 415-416). Those responsible for these matters would therefore do well to consider appropriate statutory regulation of the Committee and its activities.

Discussion of the petitioners’ arguments against the manner in which the Committee exercises its discretion

24. The petitioners in HCJ Sheiber raised several major arguments against the manner in which the Committee exercises its discretion in general, and against its recommendation not to give Erbitux a high ranking on the scale of priorities in particular. First, they argued that the Committee overrated the budgetary consideration and that its recommendations, which translated into a relatively low ranking for life-saving or life-prolonging medications, were made unlawfully, due to the failure to ascribe the requisite importance to the value of saving human life. Secondly, the petitioners challenged the criteria that guided the Committee in its prioritization of the new medical technologies. The main argument in this context was that in the framework of the budget allocated for funding the basket, the funding should be based on an equal rate for all life-saving or life-prolonging medications, without preferring one medication over others and without attaching weight to the chances of recuperation offered by the different medications. Thirdly, it was argued that the exclusion of Erbitux from the health services basket amounted to unlawful discrimination because it discriminated against the petitioners vis-à-vis other patients whose essential medications were included in the basket.

25. Having heard the parties and having examined the material in the file, our conclusion is that the petitioners’ arguments should be rejected. I will preface the discussion by clarifying that under settled case law, and as part of its obligation towards the public, a public authority is permitted, and even obliged, to consider budgetary constraints in exercising its discretion. This is especially the case when the law empowers the authority to determine alone, at its own discretion, the precise scope and limits of the entitlement to a public service, in a manner that requires fixing a scale of priorities in accordance with limited public resources. As stated by Justice S. Netanyahu:

‘No society has unlimited resources. No statutory authority operating in a society is permitted and able to ignore budgetary constraints and to provide services without any kind of accounting, no matter how important and urgent they may be …

Every authority is faced with the need to strike a proper balance between the scope, the manner and the degree to which it discharges its functions-obligations under the law on the one hand, and its obligation to maintain its budgetary framework on the other. It can never fully discharge all of these and fulfill all its functions optimally without taking budgetary restraints into account. It must establish its own scale of preferences and priorities, and guiding rules and criteria for their implementation; these must meet the test of reasonability, and be exercised on the basis of equality’ (HCJ 3472/92 Brand v. Minister of Communications [18], para. 4; see also HCJ 3627/92 Israel Fruit Growers Organization Ltd. v. Government of Israel [19], per Justice E. Mazza, para. 5).

As clarified above, the National Health Insurance Law expressly prohibits the addition of services to the health services basket in the absence of a suitable source of funding. Consequently, the budgetary consideration is a legitimate and relevant one, which the Committee is entitled to consider in its prioritization of the new medical technologies. Our case law has already held that "[o]ne cannot ignore the fact that even in a matter as sensitive as health, budgetary factors must be considered," (per Justice A. Grunis in HCJ 2453/06 Israeli Medical Association v. Attorney General [20], para.3; see also Justice M. Naor in HCJ 4004/07 Turonshwili v. Ministry of Health [21], para. 6). This in no way implies contempt for the sanctity of human life; rather, it constitutes recognition of the inherent constraints of a reality in which budgetary resources are limited and must be divided amongst all of the national and social needs that make prioritization necessary.

26. Further to the above, it should be noted that the National Health Insurance Law is silent on the method of prioritizing the various medical technologies for purposes of expanding the basket. Nevertheless, it is settled case law that the public body's authority to allocate limited resources may also entail the authority to determine the method of allocation and the scale of priorities (see HCJ 4613/03 Shaham v. Ministry of Health [23], per Justice E. Levy, para. 7).

The Committee's job of advising the Ministry of Health and the Health Committee on the prioritization of the various medical technologies is undoubtedly an exceedingly difficult, complex and sensitive task (on the dilemmas involved, see: Netanyahu Report, at p. 100). The State attached a document to its written pleadings in which it laid out the criteria set by the Committee for ranking the various technologies and medications it considered. These criteria include the following considerations: the effectiveness of the technology in treating the disease; the ability of the technology to prevent the disease; the ability of the technology to save life or prevent death; the prolonging of life and the anticipated quality of life; the existence of an alternative treatment and examination of the effectiveness of that alternative; experience in or outside Israel in the use of the technology; economic cost on the individual and national levels; the number of patients who stand to benefit from the medication; the anticipated benefit of including the technology in the basket in the short and long terms, and others.

These are general criteria, and they were not ranked by the Committee in order of importance or weight. The State’s position on the matter was that since the subject is a particularly complex one, the perspective must be broad and comprehensive and it is not possible to adopt rigid and unequivocal rules that would lead to the creation of a type of mechanical formula for resolving the public, economic, value-based and ethical dilemmas involved in determining the scale of priorities. In this context, the State emphasized that the consideration of saving or prolonging life was accorded great weight by the Committee when ranking the medical technologies under discussion. Nevertheless, like the other above-mentioned criteria, the consideration of saving or prolonging life is neither exclusive nor determinant, due to the need to consider all the other relevant considerations such as the number of people requiring the medication, alternative treatments and their effectiveness, the patient’s quality of life, the overall cost in relation to other medications and others. In this context, the State added that the medications basket is not meant to include only medications that are designed to cure existing illness: it also includes a variety of other medications, such as medications with long term preventative qualities, medications that prevent complications and aggravation of existing illnesses, and medications that very significantly affect the quality of life, such as the prevention of serious disabilities and suffering.

27. After considering the matter, we have concluded that the criteria presented could not be faulted in any way that might create grounds for our intervention. In view of the complexity of the questions confronting the Committee and the fact that they involve a variety of aspects – legal, ethical, philosophical, moral, economic and others – it cannot be said that the criteria that served the Committee were irrelevant or unreasonable to a degree that necessitates the intervention of this Court. For example, it cannot be said that the consideration of the effectiveness of the medication and its contribution to the patient’s chances of recovery is an illegitimate one, as argued by the petitioners. In circumstances in which there is a limited budget, and the countless needs must be prioritized, the effectiveness of the medication is a legitimate factor which can and should be considered. As for the criterion of the economic cost of the medications - as mentioned, the Committee is entitled to consider the budgetary aspect, and this has ramifications for the prioritization of the different medications. Accordingly, the cost of the medications constitutes a relevant factor which the Committee is permitted to take into consideration.

We would add that in view of the complexity of the relevant considerations, and considering the need for a broad value-based, public perspective in order to find the golden path between the various needs, we felt that the fact that the Committee refrained from a rigid ranking of the criteria it invoked in order of their importance could similarly not be faulted so as to necessitate our intervention. It should be recalled that the Committee’s discretion is not based on minimum-achievement tests, the satisfaction of which creates an entitlement to public funding, but rather on complex and sometimes conflicting criteria by means of which the Committee is supposed to recommend which medications are to be included in the Basket and which rank lower on the scale of priorities. In view of the Committee’s unique composition, its expertise and its professionalism, it would appear that we cannot dismiss the State’s position whereby the Committee should be granted wide discretion that will allow it to assess the weight of the relevant considerations in their entirety from a broad and comprehensive perspective. Nevertheless, further to our recommendation in para. 23 above regarding the regulation of the activities of the Committee by way of an appropriate statutory source, it seems that suitable statutory anchorage of the criteria that should guide the Committee ought to be considered. In that framework, the question of whether it is possible and desirable to determine a hierarchy of the various criteria in order to guide the Committee in the exercise of its discretion should be considered as well.

28. As mentioned, the petitioner proposed adopting a different method of prioritization from the one currently used; this new method would grant equal funding to all life-saving or life-prolonging medications. The petitioners proposed that a certain percentage of the cost of all the medications be funded, without preferring any particular medication over another and without deviating from the existing budgetary framework.

Regarding this proposal, we will comment that no data relating to the feasibility of its implementation from a budgetary perspective has been presented to us. However, even if we assume, for argument's sake, that the petitioners' proposal for equal allocation to all the medications is a viable one - and as stated, no data was provided on this point – it is clear that this proposal too has its disadvantages and difficulties (for example, medications which are currently fully funded would, according to the petitioners' proposal, be only partially funded, thereby increasing the degree of self-participation in relation thereto). Furthermore, there is substance to the State's claim that the petitioners' proposal is incompatible with government policy whereby priority should be given to certain medications, inter alia, in accordance with their quality and effectiveness. Prima facie, the petitioners' petition is similarly at odds with the basic conception underlying the National Health Insurance Law, i.e. that the medications basket should provide a solution not only for life-saving or life-prolonging medications but also for a broader range of medical technologies required for the health of the population. At all events, the question of how a scale of priorities should be determined in the allocation of public resources in the area of health services is controversial, admitting a variety of views. It is not up to us to recommend the adoption of one system of prioritization over another, as long as the current criteria comply with the provisions of the National Health Insurance Law, and are based on relevant and reasonable considerations, and as long as it has not been proved that the criteria substantively upset the proper balance between the relevant considerations, or that Committee substantively and clearly deviated from the bounds of reasonability.

29. As for the decision adopted in the particular case of the Erbitux medication, forming the subject of HCJ Sheiber, it emerges from the State’s response that this medication was registered in Israel's Drugs Registry on 10 May 2005. Before that, Erbitux was marketed to metastatic colon cancer patients according to individual permits for use of the medication by virtue of s.47A(c) of the Pharmacists Ordinance (New Version) 5741-1981. The State claims that the scientific evidence relating to this medication is relatively preliminary, and it is not yet known whether the medication relieves the symptoms of patients of metastatic colon cancer or prolongs their lives. This is reflected in the protocol of the meeting of the Committee from 1 January 2004, which states the following regarding Erbitux:

'The preparation is intended for the treatment of a small group of metastatic colon cancer patients. This is a new medication that was registered in the course of 2004 in the U.S.A and in other Western states.

….

The existing scientific evidence regarding the preparation is not abundant, and it does not prove that treatment with the medication definitely prolongs life, but rather that it generates an increased incidence of response and a reduction of the tumor mass. It may be presumed that the reduction of the tumor mass would enhance the quality of the patient’s life, but will not necessarily prolong their lives.

Committee members proposed reducing the ranking of the preparation from A9 to A8 due to the absence of sufficient evidence regarding the life-prolonging component. Others claimed, however, that although the existing evidence is limited in scope, and it does not provide proper information concerning the life-prolonging aspect, there is nevertheless evidence of reduced tumor mass and improved response to treatment. Moreover, material regarding the preparation is accumulating. It was therefore suggested to define it as (A9-) which means a lower level of priority for inclusion in the basket than other treatment technologies in which the life-prolonging component is clearer (these were defined as A9)' (Protocol of Committee proceedings, dated 1.12.04, appendix RS/6 of the respondents’ response, 1-6, dated 20 May 2005 in HCJ Sheiber).

The Committee therefore decided to give the Erbitux medication a lower ranking as compared to the other technologies which had clearly been proven to be life-prolonging. The protocol indicates that the Committee considered relevant factors, which included the effectiveness of the medication in the treatment of sickness and the question of whether there was proven capacity to prolong life. It should be stressed that the protocol subsequently states that “material regarding the preparation [Erbitux] continues to accumulate,” and that if additional significant evidence were to be received regarding, inter alia, its degree of effectiveness, it will be passed on to the Committee, and the medication will be brought up for further discussion. It may thus be presumed that to the extent that new scientific evidence is gathered regarding the effectiveness of Erbitux, renewed consideration will be given to the ranking accorded to this medication.

Considering all the above, it cannot be said that the Committee’s recommendation regarding the ranking of Erbitux is unreasonable to a degree that requires this Court’s intervention. Nor can it be said that the Committee’s recommendation regarding Erbitux constitutes unlawful discrimination against the petitioners vis-à-vis other patients whose required medications are included in the health services basket. Under circumstances in which the public resources are insufficient to satisfy all the needs and all the needy, resources must be allocated according to a scale of priorities, which naturally gives rise to distinctions between various individuals and various groups. These differences do not constitute unlawful discrimination, as long as they are based on relevant, reasonable considerations (see and compare: HCJ 1113/99 Adallah v. Minister for Religious Affairs [24], per Justice I. Zamir, para. 5). Any other approach would preclude any possibility of distributive decisions for purposes of allocation of public resources, even in circumstances in which the decisions were adopted on the basis of lawful considerations. In the words of Justice E. Rubinstein:

'…[P]rioritization is essential under the circumstances of the health services basket –"The couch will always be too short for stretching out, and a handful will never satiate the lion". In a world of rapidly changing medical and technological scenes, often beyond recognition, but in which the costs of the technology and medications is high, there is no escaping the need to fix scales of priorities. It is hard to say, even in painful cases such as this, that there is discrimination due to the prioritization' (HCJ 2974/06 Israeli v. Committee for Expanding the Health Services Basket [25]) [emphasis added – D.B.].

One can certainly understand the deep distress of the patients suffering from metastatic colon cancer, whose physicians have prescribed treatment with Erbitux and who cannot afford to purchase this medication. Nor can one be indifferent to the pain and cries of the sick. We are aware that unfortunately, our conclusion denies them what they seek. Nevertheless, at this point in time, and considering the existing data, we have no legal grounds for intervening in the scale of priorities that was fixed by the Committee with respect to this medication. This being the case, and in view of all the reasons discussed above, the petitioners’ request to order the inclusion of the Erbitux medication in the health services basket is denied.

The petitioners’ proposals for reducing the prices of medications not included in the basket

30. A significant portion of the petitioners’ claims in HCJ Sheiber focused on proposals aimed at reducing the prices of medications not included in the health services basket. In this context, the petitioners applied for two remedies, in respect of which an order nisi was originally issued: the first was to order the cancellation of value added tax and other indirect taxes levied on innovative, life-saving medications that are not included in the health services basket; the second is to order the respondents – the Ministry of Health and/or the Sick Funds – to make centralized purchases of these medications, to help in reducing their prices for the consumers.

As for the petitioners’ request to order the cancellation of value added tax and other indirect taxes levied on medications for the disease of cancer, it emerges from the State’s response that the requested cancellation of V.A.T and other indirect taxes would require a legislative amendment in order to establish a statutory exemption for medications not included in the health services basket. In this context, it should be mentioned that over the past few years, a number of private members’ bills have been tabled for the amendment of s. 31 of the Value Added Tax Law, 5736-1976, with the aim of establishing an exemption from V.A.T for innovative, life-saving medications not included in the basket. These proposals did not reach the legislative stage because the Finance Ministry refused to deviate from the principle of tax uniformity and to subsidize the funding of these medications other than by way of direct support for the health services basket. At all events, the question of whether to grant a statutory exemption from V.A.T. and from other indirect taxes for new medications not included in the health services basket lies within the responsibility of the legislature and not of this Court.

31. The responses of the Sick Funds to the petitioners’ request to obligate the respondents to carry out a centralized purchase of new medications such as Erbitux in order to reduce the price for the consumers, indicate that some of them take a positive view of the idea of a centralized purchase, albeit conditional upon appropriate arrangements, legislative and otherwise, being made which would enable them to make the purchase. Other Sick Funds felt that the centralized purchase of medications not included in the health services basket should be carried out by a central body unrelated to the Sick Funds. From the parties’ pleadings before us, it emerges that implementing the proposal of centralized purchase of the medications would give rise to legal problems, inter alia from the perspective of creating a restrictive arrangement. Furthermore, the centralized purchase of medications not included in the health services basket would involve a number of implementation-related questions, the answers to which are far from simple. What is the appropriate body to deal with the centralized purchase? How would it decide which medications to include in the purchase? Where would the medications be stored, and how would they be sold to the patients in need of them, and other similar questions. At all events, it appears that the centralized purchase of new medications such as Erbitux, which are not included in the health services basket, would in certain cases contribute to the reduction of the price of these medications for patients requiring them, and thus ease their plight. Bearing this in mind, all the relevant aspects of this proposal should be examined by the Ministry of Health and the other relevant bodies, in order to consider the issue in depth.

32. Finally, it should be noted that the petitioners in HCJ Sheiber requested that an order be given to issue a Supervisory Order pursuant to the Services and Commodities (Supervision) Law, 5756-1996, that would establish a ceiling price for Erbitux and for other similarly innovative medications. In the course of these proceedings, it emerged that a supervisory order of this kind had already been issued, and that the order also applies to medications not listed in the Drugs Register (see Supervision Order over the Prices of Commodities and Services (Maximum Prices for Prescription Preparations), 5761-2001; see also HCJ 3997/01 Neopharm Ltd v. Minister of Finance [26], in which a petition against the validity of the Order was dismissed). It was in consideration of this that no order nisi was given in the first place regarding that particular matter. It further bears note that in their pleadings before this Court the petitioners claimed that the Sick Funds should reorganize their funds, and utilize the budgetary balance for the purchase of life-saving medications. This claim was made in rather laconic and general manner, and we therefore did not deem it necessary to discuss it.

33. I therefore propose to my colleagues to rule as follows:

(a) In view of the addition of Avastin and Taxotere under the requested classifications to the Health services basket as of 2006, the order nisi given in HCJ Louzon shall be cancelled, and the petitions in HCJ Louzon and HCJ Bar-On shall be deleted, without any order for costs.

(b) For the reasons specified above, the order nisi issued in HCJ Shieber shall be cancelled and the petition denied, without an order for costs, bearing in mind the recommendations made in paragraphs 23 and 27 of my comments above regarding the regulation of the Committee’s activities by way of an appropriate legislative framework.

Justice A. Grunis

I agree.

Justice M. Naor

1. I agree that the order nisi given in HCJ Louzon should be cancelled and the petitions in HCJ Louzon and HCJ Bar-On struck down, without an order for costs. I also agree to the cancellation of the order nisi issued in HCJ Sheiber, and to the denial of the petition without an order for costs.

2. As my colleague the President has shown, the task of prioritization is a difficult one, quite often requiring us to turn our backs on the gravely ill, such as in HCJ Sheiber. Indeed, it is hard to face a person fighting for his life and leave him empty-handed. All the same, I see no possibility of intervening in this case.

From time to time petitions are filed in this Court relating to intervention in prioritization decisions (see HCJ 2974/06 Israeli v. Committee for Expanding Health Services Basket [25] and HCJ 4004/07 Turonshwili v. Ministry of Health [21] referred to by my colleague the President). In Israeli v. Committee for Expanding Health Services Basket [25] I concurred with the comments of Justice E. Rubinstein, as cited by the President in her opinion:

'…[P]rioritization is essential under the circumstances of the health services basket –"The couch will always be too short for stretching out, and a handful will never satiate the lion". In a world of rapidly changing medical and technological scenes, often beyond recognition, but in which the costs of the technology and medications is high, there is no escaping the need to fix scales of priorities. It is hard to say, even in painful cases such as this, that there is discrimination due to the prioritization. Indeed, the struggle over the limited cake is the reason for petitions that are filed in this Court, parallel to parliamentary and extra-parliamentary public struggles. '

I repeated these comments in Turonshwili v. Ministry of Health [21], and I believe they are equally applicable to the case before us. In my view this Court has but a narrow margin for intervention in decisions of this nature. In order to render an appropriate decision on a prioritization matter, those making the decision (or recommendation) must have a broad picture. The prioritization applies to all the medications that are candidates for inclusion in the basket, all within the budgetary framework. Naturally, a hearing before the High Court of Justice focuses on one individual (or a limited group of people), and on one medication which may have the potential to save his life. Each person is an entire world and the importance of saving human life is deeply ingrained in the values of the State of Israel as a Jewish democratic state – to stand by and not offer help is difficult. On the other hand, those charged with making the decisions (and recommendations) have a broader perspective. I am convinced that decisions regarding the basket and its composition are occasions for sleepless nights for all those who must decide or recommend. But I too, like my colleague the President, see no legal grounds for our intervention. While the hearing in this case focused on the individual in need of the medication, in the background are many other patients whose voices were not heard, but whose plight is dire. A decision on the matter requires extensive knowledge, the weighing up of different data and a determination of their relative weight. As such the problem is a “multiple focus problem”, using a term coined by Justice I. Zamir in HCJ 7721/96 Israeli Insurance Assessors Association v. Inspector of Insurance [27] at pp. 644-645:

‘The problems presented for resolution in the framework of judicial review of public administration fall into two main categories. The first category includes problems involving a confrontation between two central factors: norms, interests or methods…. Problems of this nature usually require answers which are yes or no, permitted or forbidden, either/or. As such they can be referred to as dual-focus problems, as if there were two heads to be chosen between. This kind of problem is classically suited to judicial review… a decision in this kind of case is generally an appropriate task for the court.

The second category includes problems consisting of a significant number of factors, norms, interests and paths, each of which merits consideration in the process of reaching a solution, and each of which should receive expression in the solution given… This kind of problem is multi-focal…. A problem of this kind does not admit of an answer which is yes or no, permitted or forbidden, either/or. As such it is exceedingly difficult, perhaps even impossible, to render a decision that relies on a legal rule or a balancing formula…. This task is classically suited for an administrative authority, which has the required expertise and tools to solve the problem; it can act in a flexible manner, in consultation and coordination with the agencies involved in the matter. It is not a task that is suited for the court.

This does not mean that the court will refuse to give any attention to a multi-focus problem. It is competent to deal with these problems… but it will place restrictions on its treatment of these kinds of matters. On the one hand, it is not prepared to place itself in the position of the administrative body and to discharge the task imposed upon it…. On the other hand, in the case of an illegal omission, it is prepared to order the administrative body to exercise its authority….[S]imilarly, after the administrative body has exercised its authority it is prepared to examine the legality of its act, such as the legality of the entire plan, or a part thereof.’

President A. Barak made similar comments in HCJ 82/02 Kaplan v. State of Israel, Ministry of Finance, Customs Division [28], at pp. 908-910:

‘The role of the court is to determine whether the arrangement devised by the administrative authority is legal or not. The administrative authority may devise several alternatives, all of which will be regarded as legal as long as they do not exceed the boundaries of that which is permitted in the exercise of discretion.’

(And see also CA 8797 Anderman v. Objection Committee of District Committee under the Planning and Construction Law, 5725-1965, Haifa [29] at p. 474; HCJ 10/00 Ra’anana Municipality v. Inspector of Transport, Tel-Aviv and Central Districts [30] at p. 756).

There is a large number of solutions to the complex task of putting together the basket as explained by my colleague, each of which has its casualties. There is no optimal solution, nor is there a magic formula for weighing up the conflicting interests. The decision not to include the desired medication in the basket, on the basis of the extant information relating to it, does not exceed the bounds of reasonability, and we have no grounds for interfering with it; there is therefore no choice but to deny the petition.

Judgment as per the opinion of President D. Beinisch.

25^th Tammuz 5768

28 July 2008

|National Health Insurance Law

s. 7...................................................................................................................... 5, 24, 27, 29

Arbitrux...................................................................................................................... 19, 22, 29

CA 5557/95 Sahar Insurance Company Ltd v. Alharar............................................ 3, 22

Constitutions

Canada United States...................................................................................................... 18

Constitutions of the South African

South African Constiution, section 27.......................................................................... 18

Daphne Barak-Erez “Welfare Policy in Israel – Between Legislation to Beaurocracy” Labor, Society and Law 9 2002 25

HCJ 7365/95 Bolous Brothers – Marble and Granite Production Ltd................. 4, 33

HCJ 7365/95 Bolous Brothers – Marble and Granite Production Ltd (1996)........... 4

HCJ 1554/95 Amutat Supporters of Gilat v. Minister of Education, Culture and Sport 3, 27

HCJ 1829/02 General Health services v. Minister of Health................................... 4, 30

HCJ 2344/98 Macabbi......................................................................................... 3, 4, 26, 27

HCJ 2557/05 Mateh Harov v.Israel Police

HCJ 2557/05................................................................................................................. 3, 15

HCJ 2599/00 Yated Association of Children with Downs Syndrome v. Ministry of Education 3, 21

HCJ 2725/92 General Health services v. State of Israel.......................................... 4, 27

HCJ 3472/92 Brand v. Minister of Communications (1993) IsrSC 47 (3) 143............ 4

HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior

HCJ 366/03.......................................................................................................................... 3

HCJ 4769/95 Menahem v. Minister of Transport

HCJ 4769/95................................................................................................................. 3, 16

HCJ 494/03 Physicians for Human Rights v. Minister of Finance

HCJ 494/03.................................................................................................................... 3, 14

HCJ 5578/02 Manor v. Minister of Finance

HCJ 5578/02................................................................................................................. 3, 15

HCJ 6055/95 Zemach v. Minister of Defense

HCJ 6055/95.................................................................................................................... 3, 9

HCJ 6055/95 Zemach v. Minister of Defense (1999)........................................................ 3

HCJ 9163/01 General Health services v. Minister of Finance (2002)......................... 3

Interpretation Law, 5741-1981

s. 17 (b)................................................................................................................................ 31

LCA 4905/08 Gamzo v. Isaiah

LCA 4905/08................................................................................................................. 3, 14

Macabbi Health services v. Minister of Finance (2000)

HCJ 2344/98 Macabbi....................................................................................................... 3

National Health Insurance Law.............................................................................. 3, 22, 24

9b......................................................................................................................................... 27

s. 48 (f)................................................................................................................................ 31

s. 52 (1) (b).......................................................................................................................... 31

s. 8 (b)(1)............................................................................................................................. 30

s.8 (e)................................................................................................................................... 30

the Law........................................................................................................................... 5, 15

National Health Insurance Law, 5754-1994

National Health Insurance Law....................................................................................... 5

National Health Insurance Law, 5755-1995...................................................................... 3

National Health Law............................................................................................................ 27

National Health Law, 5744-1948

s. 5........................................................................................................................................ 27

Patient's Rights Law.......................................................................................................... 2, 21

s.7............................................................................................................................ 21, 22, 26

Patient's Rights Law, 5756-1996

s.3........................................................................................................................................... 2

Soobramoney v. Minister of Health

Soobramoney v. Minister of Health.......................................................................... 4, 22

"[n]o person can deny, first that we are talking about an orderly decision-making process and second, that prioritization is necessary in the circumstances of the health services basket."

HCJ 7721/96 Union of Insurance Assessors v. the Inspector of Insurance 55(3) PD 625, 650 (2001).

Full opinion:

Louzon v. Government of Israel.pdf

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

http://elyon1.court.gov.il/files/05/710/030/n12/05030710.n12.pdf

Pardess Hana v. The Minister of Agriculture

Case/docket number:

HCJ 221/64

Date Decided:

Tuesday, December 8, 1964

Decision Type:

Original

Topics:

Administrative Law

Discretion

Judicial review

Abstract:

The petitioners (two of them suppliers of water and two consumers) complained that a scheme to mix the "sweet" water they were receiving at present with water from the National Water Carrier would increase the chlorine content, with deleterious effects on the plantations supplied with such water. More particularly they claimed inter alia that the demarcation by the Minister of water rationing areas was a distortion of his discretionary powers in that behalf, unnaturally combining regions wholly distinct hydrologically, and that the regulations made under the Law were too general and imprecise and left the final decision in important aspects to the arbitrary discretion of the Water Commissioner, an administrative official.

Held:

1. The exercise of discretion within and for the overall purposes of a Law is valid even if individuals may suffer thereby;

2. A Minister charged with the implementation of a Law may, after laying down general policy with reasonable precision, leave the details of implementing that policy to the discretion of an administrative official. It is not to be assumed that the latter will proceed to act arbitrarily, and if he does so, the Minister can review and control his action.

3. Discrimination is not arbitrary when it is the inevitable consequence of natural differences or of justifiable and pertinent technical and budgetary factors.

Voting Justices:

Berinson, Zvi

Primary Author

majority opinion

majority opinion

majority opinion

majority opinion

majority opinion

Full text of the opinion:

H.C.J. 221/64

THE LOCAL COUNCIL OF PARDESS HANNA AND OTHERS

THE MINISTER OF AGRICULTURE AND OTHERS

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

[December 8, 1964]

Before Agranat D.P., Silberg J., Berinson J., Witkon J. and Manny J.

Administrative law-Exercise of discretionary powers-Generality of subordinate legislation-Discriminatory use of powers.

Held

1. The exercise of discretion within and for the overall purposes of a Law is valid even if individuals may suffer thereby;

3. Discrimination is not arbitrary when it is the inevitable consequence of natural differences or of justifiable and pertinent technical and budgetary factors.

Israel cases referred to:

(1) Cr.A. 74/58 - Attorney-General v Naftali Horenstein (1960) 10 P. D. 365.

(2) H.C. 69/62 - David Mazoz v Minister of Agriculture and others (1962) 16 P.D. 1408.

(3) Cr.A. 40/49 - Shaul Nahmias v Attorney-General (1950) 3 P.D. 127.

(4) H.C. 176/58 - "Parcel II Block 6605" Co. Ltd. v Minister of Development and another (1959) 13 P.D. 1099.

(5) F.H. 22/58 - Shalom Cohen v Local Council of Givat Shmuel and others (1959) 13 p.D. 244.

Y. Yechiel and Y. Harari for the petitioners

Z. Terlo, Deputy State Attorney, for the first and second respondents

S. Gir for the third respondent

BERINSON J. The petitioners, two of whom are suppliers of water and the other two consumers of water in the area of Pardess Hanna and Kfar Saba, complain of the plan for mixing the water resources from which they obtain water with the National Carrier of Water. "Their" water resources have a low chlorine content of 50-80mg a litre, but after mixing the chlorine content of the water they receive will go up to 170mg. a litre.

Upon the publication of the Water (Use of Water in Rationed Areas) Regulations, 1957 (hereinafter referred to as "the Regulations") and the operation of the National Water Carrier, the first respondent instructed the Water Commissioner to connect the water supply systems of five areas - amongst them those of Pardess Hanna and Kfar Saba - to the National Carrier, operated by the third respondent (hereinafter referred to as "Mekorot"). By so doing, the water of these five areas will be diverted to assembly points for mixing with water brought by the National Carrier from the Kinneret which has a high chlorine content of 350mg. a litre. After mixing, the quantity of water required will be returned to the said areas (from which "sweet" water has been taken) but with a chlorine content of 170mg. a litre, whereas the mixed water will flow to the south and the Negev with a chlorine content of 250mg. a litre.

On behalf of the respondents it was declared that "the operation of mixing the water of the National undertaking is essential for exploitation of the water thereof, in the establishment of which (Stage 1) the State invested about 300 million lira. To stop the mixing operations as requested in this petition would prejudice the scheme for supplying water to the south of the country and prevent utilization of the water of the Kinneret by the National Carrier, the central and largest undertaking in the State for the development of settlements in the south and the Negev. To stop drawing upon the Kinneret would result in a loss of water most vital to the State since such water would flow unused into the Dead Sea."

As against this, the petitioners contend that the mixed water, which the respondents intend to supply to them and other orange groves in the Central Region, are not suitable for irrigating orange groves and avocado plantations and this great asset - worth some 300 million lira - would be seriously affected and cease to be profitable. Sufficient tests and experiments have not been made for ensuring against excess salination of the soil. The effect of water salination on growth and yield has not been investigated at all.

Hence the petitioners complain of the respondents water scheme and raise a series of legal arguments against it and against regulations 6 & 7 of the Regulations on which it is based. They also plead that both according to sections 5 and 26 of the Water Law, 1959, and by virtue of the first petitioners commitment with Mekorot, the present supply of water is not to be adversely affected and that they are entitled to continue for the future to receive water from those resources from which they have received it up to the present. They are prepared to and do make available the surplus water from these resources to the respondents for mixing with the National Carrier water.

I shall first consider seriatum the last two arguments and then turn to the others relating to the lawfulness of the respondents' activities, including the legality of regulations 6 & 7.

Sec. 5 of the Law provides as follows: "a person's right to receive water from a water resource is valid as long as the receipt of water from that water resource does not lead to the salination or depletion thereof."

I am afraid that as a source for the right the petitioners assert this section is disappointing. It does not create any right but only protects an existing right, and even then makes it conditional upon its continued exercise not resulting in the salination or depletion of the water resource. Where therefore does the petitioners' right arise to continue receiving water from the present water resources?

In this regard secs. 1 and 3 are the principal sections. Sec. 1 states that

"The water resources of the State are public property; they are subject to the control of the State and are destined for the requirements of its inhabitants and for the development of the country."

Nevertheless, sec. 3 declares that

"Every person is entitled to receive and use water, subject to the provisions of this Law."

Nothing is said about the quantity or source of the water and to remove all doubt in the matter sec. 4. immediately adds that sec. 3 is not to be understood as if a person's right in any land confers upon him a right in a water resource situated in or crossing or abutting on such land.

The foundations of this arrangement were laid under the Mandate when article 16E was added to the Palestine Order in Council, 1922. This article vested in the High Commissioner the waters of all rivers, streams and springs and of all lakes and other natural collection of still water in the country. The scope was more limited than that in the Water Law but existing rights to use water were preserved, and these were not to be derogated from except by Ordinance enacted for the purpose. This provision, however, remained suspended in the air, it was not in practice implemented and no Ordinance was introduced regarding use of the natural waters of the country. The Law of 1959 gave body to the State's ownership of the chief water resources within its borders. First, it maintained and extended public ownership of the country's water resources - rising, flowing and standing, above ground or underground, whether natural, regulated or made, including drainage and sewage water. Secondly, it explicitely provided that all such water was subject to the full control of the State and destined for the requirements of the inhabitants of the country and its development. In brief, the Law nationalised water resources and made them State property, although it did not provide for payment of compensation to existing owners. There are no longer any private owners of the said water resources in the entire country.

Although declaratory in form, sec. 1 of the Law is in fact constitutive in making all the country's water resources public property, by transferring privately owned water resources to public ownership. The Law did not expropriate the water supply systems themselves - the machinery installations, the conduits and all the other equipment involved in the extraction and supply of water. But with its enactment all extraction, supply, receipt and use of water - from private systems as well - became conditional on the existence of a right in that behalf derived from the Law. Hence, to be able to enjoy the right of receiving water from their systems the petitioners must found it on the Law.

We have already seen that sec. 5 does not confer any rights nor, I think, does sec. 26(a) assist. That subsection requires the Water Commissioner to grant a production licence to any person who produced or supplied water at the date when the Law came into force, or within the previous year, for the same quantity of water he previously produced or supplied and for the same customers who received water from him. This section therefore deals with the quantity and not the quality of water, and in this respect the petitioners do not plead deprivation.

With regard to a contractual right to receive water, the petitioners argue that, under its contract with the Pardess Hanna Water Association, Mekorot was obliged to supply Pardess Hanna water from the same resources as before. This argument must be examined in the light of the Law. Under sec. 3 every right to receive and use water - if and to the extent it exists - is subject to the provisions of the Law and the Law does not recognise a right to water from a particular resource or of a particular quality and certainly does not perpetuate such a right. As the respondents showed, no obligation on the part of Mekorot exists at all in this regard. The first agreement stipulated that the chlorine in water supplied by Mekorot to Pardess Hanna should not exceed 300mg. a litre - a concentration which is much higher than that of the mixed water supplied by the National Carrier. In the last agreement which revoked all previous agreements, there is no obligation to supply water from any particular resource or of any particular quality. This argument therefore falls away both in point of law and in point of fact.

We now come to the question of the Regulations and the directions given by the Water Commissioner. Regulations 6 and 7 against which the darts of the petitioners were aimed provide the following:

"6 (a) A supplier who has received a direction thereon from the Water Commissioner shall supply consumers with water of which the chlorine content shall, notwithstanding any agreement between them, be as follows:

(1) in the centre of the country - up to 170mg. a litre of water:

(2) in the south of the country - up to 250mg. a litre of water.

(b) Notwithstanding the provisions of sub-regulation (a), asupplier who immediately before the commencement of these Regulations supplied a consumer with water having a chlorine content higher than that provided in sub-regulation (a) shall continue to supply to such consumer water having a chlorine content similar to that of the water he supplied to the consumer in the past.

7. The Water Commissioner may direct a supplier to supply to avocado plantations water having a chlorine content lower than that ordered in regulation 6(a) at the times and upon the terms he may prescribe therefor, if satisfied that economically and technically such water can be supplied."

The Regulations were made by the Minister of Agriculture under sec. 37 of the Law, which empowered him to regulate the use of water in a rationing area. The determination of rationing areas is also in the Minister's power under sec. 36, after consultation with the Water bodies mentioned therein. The Minister may declare an area to be a rationing area when satisfied that the area's water resources are insufficient for maintaining existing water requirements. Once having done so, he may under sec. 37(a), after consulation as aforesaid, regulate the supply and consumption of water in the rationing area by regulations prescribing inter alia

"maximum consumption quantities, standards for the quality of the water and conditions for the supply thereof, and he may grade the allotted quantities, the standards of quality and the conditions of supply according to the use of the water within the scope of a particular water purpose, to the seasons of the year, to the hours of the day, to the quality and category of the land and to geographical, health or other data."

The first contention of the petitioners was that regulations 6 and 7 are based on an illegal order which prescribed the boundaries of the rationing area with which we are concerned. Originally the Minister of Agriculture divided the largest part of the centre of the country and the south into seven rationing areas. Then he added a rationing area in the Negev, and finally made all these eight areas into one rationing area stretching over most of the country. Only certain areas on the Haifa region and in the north are excluded, embracing two other rationing areas and a further area free from rationing. The petitioners plead that by converting almost the whole country into a single rationing area the Minister distorted his powers in the matter. An artificial unit was created, unnaturally combining the areas of the centre of the country, abundant in choice water, with the hot arid expanses of the south and the Negev.

This plea is unacceptable. The Minister of Agriculture may possibly have acted excessively in declaring most of the central areas a single rationing area but the determination of the boundaries of any rationing area lies within his unrestricted discretion after consulting with the Water Board and the supply committees, on the one condition only that he is satisfied that because of a lack of water in the area water consumption rationing should be introduced there. No rhyme or reason exists for distinguishing between areas with abundant water and areas with scarcity of water and for perpetuating the existing situation in these areas. The Water Law is aimed at putting an end as far as possible to the severity of the country's deficiency of water and arrive at a more even balance in the allocation of water among different areas, those that possess and those that do not possess water. It is natural therefore that the Minister should choose to combine different hydrological zones into one rationing area, for only in this way can the major purpose of the Water Law be achieved, that water resources serve the needs of the whole population and the development of the entire country.

The next submission is that regulations 6 and 7 are too general, do not lay down clear standards as to the quality of the water to be supplied to different consumers and leaves the question of its acquisition to the whim and fancy of the Water Commissioner. The latter has been given an excessively arbitrary power to decide on who is to continue enjoying the water he previously obtained, who should receive good water and who poor water, which plantation is to flourish and thrive and which to decay and die off - a power even beyond that of the Minister of Agriculture himself, which should all the more so not be confided into the hands of an administrative official. In the petitioner's view, the Minister should have prescribed in the body of the Regulations different standards for the quality of the water to be supplied to different consumers and not to empower the Water Commissioner to discriminate as he felt between the different suppliers and consumers. This submission is actually part of a much broader submission, that the Regulations create or facilitate a threefold discrimination: between suppliers and between consumers: between areas and between undertakings: between the centre of the country and the south. Let me deal with these submissions seriatim.

1. Mr. Terlo's reply to the first submission was twofold. First, he said, the Water Commissioner is not an ordinary administrative official having limited powers like other government officials and competent authorities. Under sec. 138 of the Law, he manages water affairs in the State. That is, he is a State agency. As Mr. Terlo put it, he is "an organ of the State" and as such not confined to the specific powers conferred on him by the Law itself but entitled to exercise any power he requires to carry out his function. The Water Commissioner may, in other words, do everything he is not prohibited from doing, and in the present matter he does not act as "an agent" under the Regulations but as an independent person. Secondly, Mr. Terlo says, if he acts as "an agent", his agency was imposed by the Law.

I must confess that I have not quite understood what Mr. Terlo has in mind, and if I understand him correctly, I am not prepared to agree. In my judgment, the provision in sec. 138 that "the Government shall appoint a Water Commissioner to manage water affairs in the State" is not to be understood other than that he is to manage such affairs in accordance with the Law and within the bounds of the authority and powers given or to be given to him for this purpose by or in pursuance of the Law. Like every other authority in the State performing a function under law, he cannot assume additional authority beyond that which the law gives him, apart as provided in sec. 26 of the Interpretation Ordinance.

At all events, it is clear that in the present matter the Water Commissioner did not purport at all to act other than in accordance with the Regulations. For the purpose of the latter he is "an agent" carrying out functions and performing tasks placed upon him by the Minister of Agriculture, the secondary legislator under sec. 37(a) of the Law.

One of the tests which the Regulations must abide by is that "standards of the quality of the water and conditions for the supply thereof" are to be prescribed. The standards and conditions need not be uniform in all cases but may be graded according to different criteria, including geographical, health and other data.

Regulation 6 undoubtedly meets this test. It prescribes different maximum standards of the chlorine content of water to be supplied to the centre of the country and the south, so that we have both water quality standards and grading according to geographical data. The further power given to the Minister to prescribe the conditions for supplying water is enough to enable him to appoint an administrative authority and put upon it the detailed work of implementation. The Minister does not have to go into the details. After having laid down policy, he may leave to an administrative official the elaboration of the details and the decision when and how to put it into operation: Attorney-General v Horenstein (1); Maoz v Minister of Agriculture (2). In the words of Agranat J. in the former case (at 384), "the committing to others of the task to decide the limited question when and how a regulation should come into operation is permitted."

Were the secondary legislation required to prescribe with precision the provisions of every detail requiring regulation in a matter, it would in most cases be impossible for him to act effectively. The implementation of policy laid down by a secondary legislator must necessarily be left to the reasonable discretion of administrative officials or bodies. "It is not to be assumed that an official will act arbitrarily and gratuitously create difficulties. If he does so, his superiors can review and control his actions" (per Smoira P. in Nahmias v Attorney-General (3) at 139).

Accordingly, in so far as the Water Commissioner has been delegated to determine how, when and in respect of whom the arrangements under regulation 6 should come into force, it is valid and no reason exists to set it aside.

As against this, it seems to me that regulation 7 is too general and vague and may not pass the test of resonableness. Not only does it leave to the Water Commissioner to decide the times and the conditions at and under which water is to be supplied to avocado plantations but it also leaves to his unlimited discretion to determine the chlorine content of the water to be supplied (provided it is below 170mg. a litre) and that also only when satisfied that economically and technically it is possible to effectuate. The owners of avocado plantations are therefore entirely at the mercy of the Water Commissioner and dependent on the economic and technical conditions with which implementation is bound up. Although it is not to be assumed that the Water Commissioner will act arbitrarily in order to spite or injure them, I am doubtful whether the grant of such unlimited and far-reaching power can be justified, particularly if we have regard to the fact that there is no provision for payment of compensation for any loss that may be sustained as a result of its exercise or non-exercise. Nevertheless, I have no intention to express any final view on this question. In fact, the Water Commissioner directed that the owners of avocado plantations in the areas concerned be supplied with water in the quantities they require with a chlorine content of 120mg. a litre, which apparently is unlikely to cause injury to the plantations. In view of the conclusion to which we have finally arrived, that the question of the quality of the mixed water and its fitness for the intended use requires no be examined by the Tribunal for Water Affairs, there is no need for us to decide upon the reasonableness of regulation 7.

2. Regarding the discrimination among the different areas and supply systems, the petitioners complain that the Water Commissioner ordered the National Water Carrier to be connected to some only of the water supply systems in the centre of the country, including their own, and not to all in this region. This partial connection, so the petitioners argue, was made for extraneous reasons, that is, in order to save the high cost involved in connecting the other systems, relatively to the cost of connecting to their own. Thus, they contend, they have been discriminated against.

Discrimination has indeed occurred here, at least temporarily until the means are acquired to connect the other water supply systems as well to the Nation Water System. But the discrimination is the inevitable consequence of objective technical and budgetary factors that justify it. As explained in the affidavit in reply by Mekorot, the Knesset has not allocated sufficient funds for connecting the whole of the central region to the National Water Carrier in the current financial year. For this reason, and for technical reasons which cannot be overcome in one move, it was necessary to carry out the connecting work by stages. The respondents, faced with the problem of choosing between the water systems to be connected with limited means at their disposal, picked upon those systems yielding much water of high quality and nearest to the National Carrier so as to derive the greatest benefit from the smallest means. These considerations, it seems to me, no one can deny are reasonably pertinent and justify what the respondents did: "Parcel II Block 6605 Co. Ltd. v Minister of Development (4). Furthermore, the allocation of limited funds and their use for a preferred purpose are not matters in which this Court can intervene effectively and are matters more for public opinion and the Knesset: Cohen v Gvat Shaul (5).

3. The relative discrimination as between the centre of the country and the south allegedly arises from the fact that whilst the former is to be supplied with much poorer water than it enjoys today, the situation in the south will not grow worse but rather improve because it will obtain from the Carrier water with a chlorine content after mixture not exceeding 250mc. a litre. The respondents deny that and urge that as for water quality, the mixing scheme will at the first stage not only not improve the situation in the south and the Negev vis-a-vis the centre of the country but worsen it. These areas will obtain water of a chlorine content of 250mg. a litre as against the present 200-230mg. The water resources from which water is supplied to the south and the Negev are increasingly being depleted and existing demand can no longer be met without exhausting them. The central area, rich in water resources of low chlorine content, is today the only area from which it is possible technically and economically to take water for mixing with National Carrier water, and all the first stage of the mixing plan will make possible is to maintain the supply of water to the south and the Negev in present quantities. That concerns the factual aspect. From the legal aspect, I think that the discrimination which the petitioners plead is not of the kind which the law recognises as unjustified. It is nature that has discriminated between the centre and the south, that has blessed the central area with a lot of good water and has left the south and the Negev with relatively small and bad water resources. Even after the mixing scheme is carried out, the centre will in all respects be in a much better position than the south. Because of the difference between the two regions, the advantage will remain with the centre of the country. That is not discrimination of which people in the centre can complain.

There remains the main submission of the petitioners, that the mixed water to be supplied to them from the Carrier in place of what they now receive will not further the purposes for which it is intended but will cause inestimable damage to the citrus and avocado plantations. In as far as this submission relates to the Regulations such as they are, it has already been dealt with and there is nothing further to add. But the rule is that regulations may not be inconsistent with the Law from which they derive force and that to the extent that they are inconsistent and irreconcilable they must yield.

Sec. 42 (2) of the Law empowers the Water Commissioner, if he deems it necessary so to do for the purpose of implementing directions under Article Four dealing with rationing areas, to

"direct that a particular consumer shall not receive water from the resource from which he was accustomed to receive it, but from another water resource; provided that the quality of the water shall be adequate to the purpose for which the water is intended."

Directions under Article Four obviously include those in the Regulations made under sec. 37. That means that if the Water Commissioner finds it proper to change the water resource from which a consumer is to receive water, he must ensure that the new water is of a quality adequate to the purpose for which it is intended. This is a condition which the Law itself found fit to impose when water is changed and so the provisions of the Regulations in the same matter are subject thereto.

Whether the mixed water is suitable for its purpose or is likely to cause damage to the plantations is in sharp dispute by the parties.

The petitioners contend, on the basis of the opinion of their expert, that the water is unsuitable, that the yield from the plantations will fall and the quality of the fruit be lowered; the plantations will also suffer unforseeable damage, the extent of which only the future will reveal; in particular their soil will become non-porous, or acquire a non-porous substratum, which will prevent water from percolating and lead to accumulation of salts in the soil surrounding the roots of the trees.

On the other hand, the respondents argue that the mixing scheme, that finds expression in regulations 6 and 7 and the directions of the Water Commissioner is the outcome of prolonged discussion and basic clarification with interested parties in the light of the material on the subject, collected by experts in this country and abroad. The scheme was considered by the Water Council, the majority of whose members represent the public, and by the Agriculture Water Supply Committee, a subcommittee of the Water Council which is composed of agriculturalists and professionals in agriculture and also has a majority of public representatives. These bodies heard the arguments for and against the scheme and finally found it right to approve it. The respondents also submitted the opinion of an expert in problems of irrigation and salination, who leads the team of experts who were given the task of preparing a national salination survey, the purpose of which was to determine the effect of irrigation with water containing different salt concentrations upon agricultural soil and plantation in different areas of this country. This expert attached to his opinion the team's first salination survey of 1963, a report which is very cautious and restrained. The respondents urge on the basis of this material that everything will be done with excessive care not to injure plantations; in fact no such danger is contemplated by them. The Regulations as well provide for the daily inspection of the chlorine content of the water to be supplied under regulation 6, for the degree of accumulation of salts in the soil at root depth and in the growth tissues in plantations which receive such water, and they require the Water Commissioner to order a reduction in chlorine content, a change in the water supply system and the provision of additional water for washing out salts in plantations, if that is found necessary in opinion of the committee of experts and the Agricultural Water Supply Committee (regulations 8 to 12). The scheme is intended for an experimental period of one year ending 31 March 1965.

The respondents are therefore satisfied that there is no danger of affecting the plantations. If such danger presents itself, they can contain it in good time. Yet, because of the great importance which the Government attaches to the ordered and speedy operation of the National Water Carrier, and in order to dispel the fears of the petitioners and others like them, Mr. Terlo announced in court on behalf of the Minister of Agriculture that whatever the position under the Law regarding payment of compensation the Government will bear the burden of any damage caused to plantations in the centre of the country as a result of the salination and chlorine content of water supplied from the mixed Water Carrier.

We have noted this announcement in favour of the petitioners, but in our opinion it is not enough. The petitioners' legal right under sec. 42 (2) when a change of water resource occurs is that the quality of the new water should be adequate for the purpose for which it is intended and in the event of differences of opinion the question should be gone into on its merits before any feared damage is sustained.

It is surprising that the Law does not regulate or in fact give expression to so basically important a matter affecting the success of the State's water scheme as the mixing of Carrier water. It is also not easy to reconcile logically the broad power given to the Minister of Agriculture by sec. 37 (a) with the proviso as to the exercise of the Water Commissioner's powers in sec. 42 (2). That proviso exists and the question remains whether the right assured to the owner of the changed water may be derogated from by the respondents' activities.

Under sec. 35 of the Courts Law, 1957, we may decide this question incidentally to hearing the petition, even if it lies within the exclusive jurisdiction of another tribunal. But the question is of a highly technical and professional nature and it would be very difficult for this Court to go into it exhaustively and arrive at a decision. Questions of this kind are better dealt with, clarified and adjudged by a tribunal expert in the matter, if such there is. There is indeed such a tribunal in the Water Affairs Tribunal, composed of a judge and two representatives of the public competent in these matters (secs. 140 & 141 of the Law). According to sec. 43, "a person who considers himself aggrieved by an act of the Water Commissioner or by his directions under section 42 may lodge objection before the Tribunal." There being another competent tribunal which by its composition and procedure is more appropriate to hear the matter, there it no reason for us to take upon ourselves the task of decision in its place and that incidentally.

The petitioners indeed in anticipation addressed themselves to the Water Affairs Tribunal before coming here but because of the opposition of the respondents to its jurisdiction, the Tribunal did not answer the petitioner and decided by a majority that the matter was not within its jurisdiction. Since we think otherwise, we may under sec. 37 (a) of the Courts Law transfer the matter to a competent tribunal, the Water Affairs Tribunal, which by virtue of subsec. (b) can no longer not deal with it. That is in our judgment to be decided.

The petition is dismissed and the order nisi set outside. But we decide to transfer the matter to the Water Affairs Tribunal for it to hear and decide the question of the mixed water to be supplied to the petitioners in accordance with the Regulations in place of the water they receive at present of a quality adequate for the use for which it is intended, the irrigation of citrus and avocado plantations.

No order shall issue.

Petition dismissed and matter transferred to the Water Affairs Tribunal.

Judgment given on December 8, 1964.

Full opinion:

Local Council of Pardess Hanna v. Minister of Agriculture.pdf

Local Building v. Holzman

Case/docket number:

CA 5546/97

CA 6417/97

Date Decided:

Tuesday, June 12, 2001

Decision Type:

Appellate

Topics:

Administrative Law

Judicial review

Constitutional Law

Basic Law: Human Dignity and Liberty

Judicial Review

Property Rights

Abstract:

Facts: Two appeals (CA 5546/97 and CA 6417/97) were joined in this case due to the similarity of the legal question they raised. In both cases the question arose as to the authority to reduce compensation in the expropriation of land for public purposes and in particular the question arose whether a plot of land can be expropriated in its entirety with significant reduction in compensation.

Held: The appeal in CA 5546/97 was dismissed and the appeal in CA 6417/97 was partially affirmed. In that case the Local Planning and Construction Committee in Haifa was ordered to pay the appellants in the entirety for the parcel that was expropriated; other portions of the District Court decision were left as is.

Voting Justices:

Dorner, Dalia

Primary Author

majority opinion

majority opinion

majority opinion

majority opinion

Author

concurrence

Levin, Shlomo

Author

concurrence

Englard, Izhak

majority opinion

Full text of the opinion:

CA 5546/97

CA 6417/97

1. Local Building and Construction Committee Kiryat Ata

2. Kiryat Ata Municipality

1. Hanna Holzman

2. Yosef Miber

3. Anat Gov

4. Fia Kimchi (CA 5546/97)

1. David Bchor

2. Moshe Ben Peretz

3. Naftali Lifshitz (may his memory be a blessing#)

4. Keren Yaniv

5. Roni Mirkin

Local Building and Construction Committee Haifa (CA 6417/97)

The Supreme Court sitting as the Court of Civil Appeals

[12 June 2001]

Before President A. Barak, Vice President S. Levin, and Justices T. Or, E. Mazza, I. Zamir, D. Dorner, I. Englard

Appeal on the judgment of the Haifa District Court (Justice B. Gilor) dated 5 August 1997 in CC 57/94; and on the judgment of the Haifa District Court (Justice S. Vaserkrog) dated 27 August 1997 in HP 514/92. Appeal in CA 5546/97 was dismissed; the appeal in 6417/97 was partially upheld.

Basic Laws cited:

Basic Law: Human Dignity and Liberty, ss. 3, 8, 10.

Legislation cited:

Lands Ordinance (Purchase for Public Purposes), 1943, ss. , 12(c), 20, 20(1)(b), 20(2), 20(2) (b).

Planning and Construction Law 5725-1965, ss. 190, 190(a) (1), third addendum, s. 4(5).

Law to Amend the Purchase for Public Purposes Laws, 5724-1964, ss. 1 (the terms ‘Parcel’ ‘Original’) 2, 3, 3(1).

Law to Amend the City Construction Ordinance, 5717-1957.

Interest and Indexation Determination Law 5721-1961.

Law to Amend Purchase for Public Purposes Laws, 5729-1969.

Draft legislation cited:

Draft Planning and Construction Law 5719-1959.

Draft Planning and Construction Law 5722-1962.

Draft Law to Amend Purchase for Public Purposes Laws, 5724-1964.

Israeli Supreme Court cases cited:

[1] CA 377/79 Faiser v. Local Construction and Planning Committee Ramat Gan, IsrSC 35(3) 645.

[2] CA 143/51 Ramat Gan v. Pardes Yanai IsrSC 11 365.

[3] CA 676/75 Fred Chait Estate v. Local Construction and Planning Committee Haifa IsrSC 37(3) 243.

[4] CA 474/83 Local Construction and City Planning Committee v. Rishon L’Zion v. Hamami IsrSC 41(3) 370.

[5] CrimMA 537/95 Ganimat v. State of Israel IsrSC 39(4) 197.

[6] LCA 5222/93 Gush v. Binyan Ltd. Corp. Section 168 in Parcel 6181 Ltd. (unreported).

[7] HCJFH 4466/94 Nuseiba v. Minister of Finance IsrSC 59(4) 68.

[8] HCJ 4541/94 Miller v. Minister of Defense IsrSC 34(4) 57.

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

[10] CA 1188/92 Local Construction and Planning Committee Jerusalem v. Bareli IsrSC 49(1) 463.

[11] CA 2515/94 Levi v. Haifa Municipality IsrSC 50(1) 723.

[12] CA 6826/93 Local Construction and Planning Committee K’far Saba v. Chait IsrSC 51(2) 286.

[13] HCJ 205/94 Nof v. Ministry of Defense IsrSC 50(5) 449.

[14] CA 336/59 Biderman v. Minister of Transportation IsrSC 15 1681.

[15] HCJ 2390/96 Karsik v. State of Israel, Israel Lands Authority IsrSC 55(2) 625.

[16] HCJ 4562/92 Zandberg v. Broadcast Authority IsrSC 50(2) 793.

[17] CrimFH 2316/95 Ganimat v. State of Israel IsrSC 49(4) 589.

[18] LCA 6339/97 Roker v. Solomon IsrSC 55(1) 199.

[19] LCA 7172/96 Kiryat Beit Hakerem Ltd. v. Local Construction and Planning Committee IsrSC 5292) 494.

Israeli District Court cases cited:

[20] CC (TA) 216/48 Pardes Yanai Ltd. v. Ramat Gan Municipality IsrDC 6 380.

German cases cited:

[21] BVerfGE 24, 367

Israeli books cited:

[22] D. Lewinsohn, Injuries to Land Caused by Planning Authorities (1995).

[23] A. Barak, Interpretation in Law, Vol. 3, Constitutional Construction, (1994).

[24] A. Barak, Interpretation in Law, Vol. 2, Statutory Construction, (1993).

[25] J. Weisman, Law of Property -General Part (1993).

Israeli articles cited:

[26] R. Alterman ‘Land Expropriation for Public Purposes without Remuneration according to the Planning and Construction Law – Toward a New Preparedness’ Mishpatim 15 (1985-1986) 179.

[27] H. Dagan ‘Property, Social Responsibility and Distributive Justice’ Distributive Justice in Israel (M. Mautner, ed. 2001) 97.

Foreign article cited:

[28] D. Sorace ‘Compensation for Expropriation’ 1 Italian Studies in Law (1992)

For the appellants in CA 5546/97 – Yosef Segel; Michael Betzer.

For the respondents CA 5546/97 – Meir Holtzman; Dr. Yifat Holzman-Gazit

For the appellants in CA 6417/97 – Moshe Lifshitz.

For the respondents CA 6417/97 – Ofra Zayad-Feldman

Zion Iluz, Assistant to the State Attorney for the Attorney General.

JUDGMENT

Justice D. Dorner

We have before us two appeals, the hearings for both have been joined.

The Facts, the Processes, and the Claims

1. In 1987 the Local Planning and Construction Committee in Haifa expropriated two plots in Bat-Galim which were under the same ownership. One plot was expropriated in its entirety for the purpose of building sport and recreation structures on it. From the second plot a third of the area registered in the property logs after the land arrangement, was expropriated for the purpose of paving roads. The Committee paid the owners compensation in the amount of 60 percent of the value of the plot that was expropriated in its entirety, while for the partial expropriation it did not pay compensation at all under the claim that the area that was expropriated was not greater than 40 percent—a proportion that can be expropriated without compensation. This, on the basis of section 20 of the Lands Ordinance (Purchase for Public Purposes), 1943 (hereinafter: ‘the Purchase Ordinance’), and section 190 of the Planning and Construction Law 5725-1965 (hereinafter: ‘the Planning Law’).

The plot owners filed suit for compensation against the Local Planning and Construction Committee in Haifa, relying on the definition of ‘original plot’ in the Law to Amend Purchase for Public Purposes Laws, 5724-1964 (hereinafter: ‘the Law to Amend Purchase Laws’). They claimed that they are entitled to compensation for the partial expropriation according to the original area of the plot before the land arrangement, part of which in the past was expropriated for the purpose of paving a road. According to the claim, the expropriation under discussion, when added to the prior expropriation, is greater than 40% of the overall area, and thus they are entitled to compensation for it. The owners further argued against the amount of compensation for each unit of land and for their right to full compensation for the plot that was expropriated in its entirety, since they would not benefit from the development resulting from the expropriation.

The District Court in Haifa (Justice S. Vaserkrog) dismissed the suit relying as to the amount of compensation on the opinion of an assessor that it had appointed, and as to the proportion of the expropriation, on the definition of ‘plot’ in the Law to Amend Purchase Laws . The claim against the reduction of compensation for the full expropriation was also dismissed. As to this matter the District Court relied on the ruling in CA 377/79 Faiser v. Local Construction and Planning Committee Ramat Gan (hereinafter: ‘CA Faiser’[1]).

2. A suit for full payment for the expropriation of a plot in its entirety was also heard in the District Court in Haifa in another case. In that case, from 1992, the Local Planning and Construction Committee in Kiryat Ata expropriated a plot in its entirety for the purpose of building sport and recreation structures as well as paving an access road for a neighborhood. For the expropriation the committee paid the plot owners compensation at a proportion of only 60 percent of its worth, but the owners insisted on their right to full compensation.

In that case the Court entered judgment in favor of the plaintiff. The District Court in Haifa (Justice B. Gilor) decided to deviate from the case law that was established in CA Faiser [1] in reliance on the Basic Law: Human Dignity and Liberty [hereinafter: ‘the basic law’], and the judgments of this Court that the basic law also impacts the interpretation of statutory provisions that came before it. The conclusion of the District Court in that case was that the interpretation which lessens the violation of the right to property established in the basic law by the payment of full compensation is to be preferred.

3. The Local Planning and Construction Committee in Kiryat Ata appealed against the judgment in CA 5546/97, while the owners of the plots in Bat-Galim appealed in CA 6417/97 against the dismissal of their complaint, and against the rate of interest and indexation that was awarded to them.

In the two appeals the appellants repeated their arguments in the District Court, while the respondents in each of these two appeals relied on the reasonings of the decisions of the District Court, which, as said, contradicted each other on the question whether in expropriating a plot in its entirety the Committee is authorized to reduce the amount of compensation.

In light of the similarity of the central legal question in the two appeals and its importance, the hearing of the appeals was joined, the panel was expanded for hearing them, and the stance of the attorney general was sought.

The attorney general, in his brief, supported the case law established in CA Faiser [1]. In his opinion, there is not much substance to the distinction, which he sees as artificial, between partial expropriation and full expropriation. The Attorney General agreed that there may be exceptional cases in which reduction of compensation is not justified. In these cases it is possible, so he claimed, to turn to the Minister of Finance and ask him to evaluate new legislation in the area of the laws of expropriation of land in its entirety.

The normative framework and the case law

4. In section 20 of the Purchase Ordinance it was established:

‘(1). . .

(2) Where any land was purchased according to this Ordinance in order to widen any existing road or part thereof or in order to expand any playground or recreation area, or in order to pave any new road or part thereof or in order to install any new playground or recreation area, the compensation paid based on this Ordinance will be subject to the following changes, meaning—

(a)...

(b) Where the area of the land taken which is comprised in a plot exceeds one quarter of the total area of the plot, the compensation shall be reduced by a sum which bears the same proportion to the value of the land alone comprised in the portion of the plot taken as one quarter of the total area of the plot bears to the total area of the land comprised in the portion of the plot taken

(c) Despite the determinations in paragraphs (a) and (b) above, the Minister of Finance may grant—as he sees fit, if it has been determined to his satisfaction, that the reductions imposed in each of those paragraphs will cause suffering—that same compensation or additional compensation, as he shall see fit in consideration of all the circumstances of the case.’

In the early days of the State the District Court in Tel-Aviv-Jaffa justified the reduction of compensation with the fact that owners of the expropriated land benefit from the development of the land that was expropriated, which causes an appreciationn of the value of the lands that are left in their hands. Therefore the District Court distinguished partial expropriation which enables benefit, from full expropriation, in which the owners are not left with land that appreciates in value. In light of this it was established that the provision, which permits a reduction of the compensation by a quarter of the value of the area that was expropriated, does not apply to casesin which of the entire plot is expropriated. See CC (TA) 216/48 Pardes Yanai Ltd. v. Ramat Gan Municipality [20]. It is to be noted, that an appeal that was submitted on this judgment was upheld, but that was for the reason that the plaintiff was not the owner of the land that was expropriated. The matter of reduction of compensation was not discussed in the appeal at all. See CA 143/51 Ramat Gan v. Pardes Yanai [2].

In 1965, the Knesset, in section 190 of the Planning Law, raised the permitted rate of reduction in compensation to 40 percent and broadened the purposes for which it is permitted to expropriate, without explicitly distinguishing between lands that were partially expropriated and lands that were expropriated in their entirety. But the reason for the distinction arises from the explanatory notes to the proposed Planning and Construction Law 5719-1959 and the proposed Planning and Construction Law 5722-1962, in which it was stated:

‘The existing statute establishes that if land was expropriated for roads or open public areas, the expropriating authority will not pay compensation for the expropriation if the expropriated area is not greater than 25% of the total impacted area. Experience has taught that the benefit that land owners enjoy from implementing a road paving program and setting up public areas and the like is far greater than this 25% that they have to allocate without payment of compensation. Therefore it is proposed to raise the percentage that the land owner must allocate. . .’ (Proposed Planning and Construction Law 5719-1959, at pp. 314-315; Proposed Planning and Construction Law 5722-1962, at p. 56).

The appreciation explanation was also noted in the Knesset deliberations. See Divrei Knesset 37 (1963) 1843-1844; Divrei Knesset 43 (1965) 2419. Similarly, when presenting the Draft Law to Amend Purchase for Public Purposes Laws, 5724-1964, the Minister of Finance explained to the Knesset that reduction of the compensation according to the various purchase laws is at the rate of the growth in profit to the land owner due to the development of the area. See Divrei Knesset 38 (1964) 758.

Similar words were said by the Minister of Interior and the Chairperson of the Knesset Interior Committee in discussions on the Law to Amend the City Construction Ordinance 5717-1957. See Divrei Knesset 22 (1917) 1970, 2336.

This Court also determined in CA 676/75 Fred Chait Estate v. Local Construction and Planning Committee Haifa [3] at p. 792, by Justice Etzioni, that ‘... the reason for the exemption [from the payment of full compensation]... is that the land appreciates and the former owners, meaning those from whom it was expropriated, benefit from this appreciation, in that the surplus land is left in their possession and they benefit from the general development of the area.’ His conclusion was that where land is expropriated in its entirety and the owners cannot benefit from any appreciation the compensation is not to be reduced.

The Supreme Court’s conclusion was different in CA Faiser [1]. President Landau dismissed the claim of the appellants which was based both on the language of section 20(2)(b) of the Purchase Ordinance, which can be interpreted as permitting reduction in compensation for only partial expropriation, and on the objective of the provision as it arises from the explanatory notes to the Planning Law. He wrote as follows:

‘... two interpretations of section 20(2) are possible, but to these the claims are added of... [the appellants’ counsel] as to general legal principles which rule out expropriation without fair compensation, and as to the constitutional reason, which is at the foundation of section 20 of the Ordinance and section 190 of the law. As to this it is to be said, that when the construction of a statute is in doubt, there will certainly be a tendency to prefer the construction which is in keeping with that general principle which embodies a basic right of a citizen with property rights in the land...

As to the constitutional reason, which was mentioned in the judgment... meaning, the appreciation, which accrues to the remainder of the plot as a result of the accomplishment of the public purpose, such as widening a road near the plot, the explanatory notes to the draft law from 1963, are due appropriate respect, and perhaps were useful at the time in order to convince the members of Knesset to approve raising the percentage from 25% to 33.3%, which was proposed there (and they even went further and established 40%). These explanatory notes have some weight, but they cannot be the deciding factor, when we come to interpret the meaning of the section, as it was produced by the legislator.’

President Landau noted that ‘perhaps it would have been appropriate to give decisive weight to the basic principle that there is no expropriation without fair compensation...’ (ibid, at p. 653). But in his view, the language of section 3(1) of the Law to Amend the Purchase laws which establishes the date of purchase in expropriation by authority of the Purchase Ordinance of a ‘plot or any portion of it’ is determinative. From this language President Landau learned that the intention of the legislator in section 20(2) of the Purchase Ordinance was to also permit reduction of compensation when the land is expropriated in its entirety. His conclusion was that the reduction in compensation is to be seen as a quasi property tax. However, he commented that even if a plot is expropriated in its entirety, the owner enjoys a certain benefit, as in calculating the compensation for the remainder of the area in the proportion of the remaining 60% the rise in value of the plot as a result of the expropriation and the development around it is taken into account. See ibid, at p. 652.

Justice Barak, who joined the judgment of President Landau, commented that indeed ‘... logical fairness for denying the compensation for expropriation of a quarter of the plot is rooted in the fact, that with the expropriation of this part, the remainder appreciates in value...’ (ibid, at p. 657). However, he explained that it is a general assumption, and in many cases the partial expropriation does not result in investment and may even reduce the value of the remaining portion. His view was that the remedy for the injured land owners is to turn to the Minister of Finance who is authorized to decide as to the payment of additional compensation. Justice Barak further wrote, that the Purchase Ordinance does not establish a ceiling for the portion that may be expropriated, and it is not logical that it will be possible to reduce the compensation when 90% of the land is expropriated, while granting full compensation for the entirety of the area.

Justice S. Levin added, that even if the payment of full compensation for the expropriation of an entire plot would be justified the language of the law does not enable it.

In a judgment handed down in 1987 President Shamgar qualified the case law determined in CA Faiser [1]. And he wrote as follows:

‘I am willing to accept the assumption, that when it is a matter of the expropriation of a portion of a plot, in the framework of a city construction plan, it is possible that the remainder of the plot that is not expropriated, will go up in value following the development plan and in the expected appreciation of the remainder of the plot there is a moral-substantive quasi justification for the expropriation of part of the assets without payment of compensation. However, when the whole plot is expropriated, there is no appreciation of the remainder, as there is no remainder, as it is all expropriated. The assumption, that the rate of compensation for the entire plot will also reflect in its rate the change in the value of the surroundings. . . is not certain, with all due respect; the compensation is calculated according to the value of the land on the day of publication of the notice according to section 5... there is no certainty that at that stage, in terms of timing, it will be possible to accurately assess such developments and include them in the assessment. Even if it were possible to bring into account future surrounding appreciation there still is no certainty, that it is equal in value and significance to taking 40% of the expropriation without any compensation.’ (CA 474/83 Local Construction and City Planning Committee v. Rishon L’Zion v. Hamami hereinafter: ‘CA Hamami‘ [4] at p. 384).

The other judges in the panel refrained from relating to this question, such that the words of President Shamgar remained as obiter dicta.

5. As to the case law of CA Faiser [1], criticism has been voiced in the legal literature. Professor Rachel Alterman claimed that the reliance on the provision of section 3(1) of the Law to Amend the Purchase Laws was erroneous. She pointed to the fact that while in this law ‘plot’ is defined in section 1 as ‘... a unit of registration in the property records...’, the Purchase Ordinance deals with a ‘lot’ which is defined as ‘... the total land under a single ownership which constitutes one area’ (section 20(1)(b)). A lot may therefore include several plots, and in the first expropriation 40 percent of the area can include an entire plot. Therefore this law, which deals with repeated expropriations from the same area unit, sought to be stricter with the authority by establishing a unit of land that is smaller for the purpose of calculating the compensation. In any case, it is a matter of two separate statutes that deal with different situations and measuring units, and the existence of the authority to reduce compensation in a full expropriation according to the Purchase Ordinance is not to be concluded from the Law to Amend the Purchase Laws.

Professor Alterman also rejected the reasoning of Justice Barak that it is not logical to adopt an interpretation which distinguishes between expropriation of 90 percent of the area of the land and expropriation of the entire area. She explained that in reality it is not possible to expropriate 90 percent of the plot and leave a remainder which enables development. In these circumstances the ending of section 190(a)(1) of the Planning Law prohibits expropriation—at reduced compensation or even at full compensation—of a portion of the plot. As indeed, such an expropriation will damage the value of the remainder. See R. Alterman ‘Land Expropriation for Public Purposes without Remuneration according to the Planning and Construction Law—Toward a New Preparedness’ [26], at pp. 220-227.

Dr. Daphna Lewinsohn-Zamir agreed with this criticism and its reasoning, in her book Injuries to Land Caused by Planning Authorities [22] at pp. 164-165. The author made the point that benefits to land owners which stem from the provision of public needs is not taxed. As, unlike the theory of President Landau, due to the rise in value of the land as a result of the development, the owners of expropriated plots are not entitled to increased compensation. It was thus established in sections 12(b) and 12(c) of the Purchase Ordinance, according to which appreciation which stems from the expropriation is not to be taken into account in calculating the compensation. See Lewinsohn-Zamir in said book [22] at p. 167. In the opinion of Dr. Lewinsohn-Zamir, even if the appreciation argument is ruled out, equal distribution of the burden among landowners necessitates that the owners of the expropriated land benefit from the development, at the very least, to some extent. From here her conclusion is drawn that one is not to reduce the compensation for an area expropriated in its entirety. See ibid, at p. 199.

6. In 1992 the basic law was passed in which it was established in section 3:

‘a person’s property is not to be injured’.

Injury to property is permitted today, as said in section 8 of the basic law (the limitations clause) only ‘... in a statute which is in keeping with the values of the State of Israel, that was intended for an appropriate purpose, and to a degree which does not exceed that which is necessary or by law as said by authority of an explicit authorization in it’.

Expropriation of property in and of itself violates the right to property, but expropriation without compensation of equal value violates the right more severely.

And indeed, the rule practiced in democratic states is the payment of full compensation for the expropriation. See Lewinsohn-Zamir in her book supra [22] at p. 147. This rule applies in England itself, which bequeathed us the Mandatory Purchase Ordinance that permits expropriation without compensation. See Alterman in her article supra [26] at p. 181.

7. The Purchase Ordinance as well as the Planning Law preceded the Basic Law, and therefore its provisions cannot infringe on their validity (section 10 of the basic law). However, the status of a property right as a constitutional right necessitates interpreting these statutes in the spirit of the provisions of the Basic Law. The Basic Law has the power to grant prior statutory provisions ‘... a new meaning where there is an interpretive possibility of doing so’ (Vice President Barak in CrimMA 537/95 Ganimat v. State of Israel [5], at p. 414). See also the words of Justice S. Levin in LCA 5222/93 Gush v. Binyan Ltd. Corp. Section 168 in Parcel 6181 Ltd. [6] at paragraph 5 of his decision; FHHCJ 4466/94 Nuseiba v. Minister of Finance [7], at p. 85; HCJ 4541/94 Miller v. Minister of Defense [8], at p. 138; HCJ 5016/96 Horev v. Minister of Transportation [9].

First and foremost, statutes are to be interpreted as consistent with the limitations clauses. Therefore, statutes will be interpreted as infringing on a right established in a basic law or authorizing an authority to infringe on it only if the infringement is established in a statute or is by power of an explicit authorization in it; they will be interpreted as in keeping with the values of the State; they will be interpreted as permitting infringement of a right only for an appropriate purpose and will be interpreted as permitting such infringement to a degree that is not beyond that which is necessary.

The passing of the basic law brought about significant changes to the interpretation that courts gave the Purchase Ordinance. And Justice Zamir wrote as follows:

‘This basic Law establishes (in section 3) the right to property as a basic right, and prohibits the infringement on this right, inter alia, to a degree that is not beyond that which is necessary (section 8). Indeed, the Basic Law does not infringe on the validity of a law that existed on the eve of the start of the Basic law (section 10), and this includes the Planning and Construction Law. However, it certainly may impact the interpretation of the law. The interpretation, today more so than in the past, must operate in the direction of minimizing the infringement on the right to property... However, the specific public need, which justifies the infringement, still does not rule out compensation for the infringement unless it is clear that the infringement is within the range of the reasonable and there are no considerations of justice, which necessitate compensating the injured person. Such compensation can serve the purpose of the Basic Law: Human Dignity and Liberty, meaning, minimizing the infringement on the right to property so that it does not go beyond that which is necessary.’ (CA 1188/92 Local Construction and Planning Committee Jerusalem v. Bareli [10] at p. 483.)

See also the words of Justice Beinisch in CA 2515/94 Levi v. Haifa Municipality [11] at p. 738.

Interpretation of Provisions as to Reduction of Compensation

8. Injury to property for public purposes generally is in keeping with the values of the State, and is for an appropriate purpose. Indeed, in order for an injury to property by expropriation of land to be to a degree which does not go beyond that which is necessary, there is a need for compensation that is fair and of fair value. Without such compensation the expropriation will violate equality. As, only the owners of lands needed for public use - which are distinguished from owners of other lands or assets - will need to bear the financing of the public benefit without there being a justification for imposing the financing on these owners only. Unequal violation of a right is a violation which goes beyond that which is necessary. See: the words of Justice Mazza in CA 6826/93 Local Construction and Planning Committee K’far Saba v. Chait [12] at p. 296; HCJ 205/94 Nof v. Ministry of Defense [13] ; A. Barak, Interpretation in Law, Vol. 3, Constitutional Construction [23], at pp. 545-547. Payment of compensation in a proportion which is less than the value of the lands that were expropriated would be justified only if as a result of the expropriation the value of the assets remaining in the owner’s possession goes up or they enjoy another benefit of equal value. As mentioned, the law authorizes the expropriation for public purposes of up to 40 percent of an area that is in a person’s ownership without payment of compensation. Against this background it can be claimed that the custom that has taken root of reducing the compensation by the maximum proportion without examining the impact of the expropriation on the value of the area that was not expropriated or on the owner’s enjoyment of it, violates equality, and thereby violates the right to property to a degree that goes beyond that which is necessary. In any event, the injury to property is unequal and therefore goes beyond that which is necessary when the full area of the owners is expropriated, such that it is clear and apparent that no use or benefit results to them from the expropriation.

The explanation that was given in CA Faiser [1] that the expropriation without compensation is in the realm of a tax in a uniform rate of 40 percent, which is imposed on the owners of the land, is not satisfactory. First, this ‘tax’ is imposed, as said, only on the owners of the expropriated land and discriminates between them and the rest of the public. Second, the payment does not distinguish between owners who benefit from the expropriation and those whose assets are expropriated in their entirety and they derive no benefit from it, or even those for whom the expropriation causes damage to the value of the remaining property. Imposing an ‘expropriation tax’ at a uniform rate thus discriminates between the owners of various different expropriated lands and between them and the broad public, which benefits from the expropriation without paying this tax.

And indeed, the legislative history that was described, including the explanatory notes to the proposed laws and things that were said in the Knesset, teach us of the intention to tie between the reduction of compensation and the benefit to the owners consequent to the expropriation. Justice H. Cohn described this:

‘The intention of the legislator, which arises clearly from all those ordinances, is that for certain purposes—which by nature are not just the needs of the public except the owners of the land at issue, but to a great extent also the needs of the land owners themselves—it is permitted to expropriate one quarter from every land plot without the payment of compensation;...’ (CA 336/59 Biderman v. Minister of Transportation [14] at p. 1690).

9. President Landau also based his construction in CA Faiser [1] on the assumption that the owners of the land that was expropriated in its entirety will also derive benefit from the expropriation in that the compensation they will receive, at the rate of 60 percent of the land, will be calculated based on the value of the land following the development that the expropriation will bring about. This assumption, as Dr. Lewinsohn-Zamir has shown in her book supra [22], has no basis. As the statute establishes that in the calculation of the compensation, the appreciation of the value of the land, which stems from the expropriation, is not to be taken into account. And see also the words of President Shamgar in CA Hamami [4] that were quoted above.

Against this background it is clear that consequent to the expropriation of the land in its entirety, the owners—who do not benefit from the development that the expropriation is intended to advance nor from compensation which would reflect this development—are not to expect any benefit at all, and there is therefore no justification for reduction of the compensation that is paid to such owners.

The example brought by Justice Barak in CA Faiser [1] of the expropriation of 90 percent of a plot, does not change this result. First, as was stated in the studies, it is not possible, and in any event, it is very doubtful that it is possible, to expropriate 90 percent of a plot, and even 70 percent, without lowering the value of the remainder, a harm which entirely prevents expropriation, and generally the proportion of an expropriation portion which will not harm the value of the remainder is not greater than 55 percent. See Professor Alterman in her article supra [26], at p. 225; Dr. Lewinsohn-Zamir in her book supra [22] at p. 165. Second, expropriation of the absolute majority of a plot, even if it were possible, would not leave in the possession of the owners an area that would benefit to a real extent from the development following the expropriation.

And finally, the appropriateness of the custom of automatic reduction of the maximum proportion of 40 percent of the compensation for a portion—big and small—of a plot without examining each case on its merits and if and to what extent the owners are expected to derive utility from the development of the expropriated area, should be questioned. It can be argued, that the discretion given to the Minister of Finance to order the payment of additional compensation, to which Justice Barak pointed in CA Faiser [1], is not an appropriate replacement for the interpretation of the expropriation authority to begin with, in a manner which sits well with egalitarian protection of the right to property. The authority of the Minister of Finance to increase the rate of compensation applies in special cases, in which standard objective criteria for the calculation of compensation do not lead to a just result. Examples of such special cases may be expropriation of an area that has particular personal worth to specific owners for which the regular formulas for calculation of the value of a plot do not give expression, or when the expected development consequent to the expropriation in fact raises the value of the part of the plot that was not expropriated, but the specific owners do not benefit from this development, and it has been proven that they do not intend to trade the plot in the near future.

However, some will hold that the intensity of the potential injury to the right to property does not justify, in each and every case, legal discussion, based on speculative opinions, which may contradict each other, for the determination of the exact amount of damage. Either way, it is appropriate that the Knesset revisit the appropriate compensation arrangement where only a portion of the lot is expropriated.

10. President Landau, as well, was prepared ,when interpreting the statute, ‘... to give determinative weight to the basic principle, that one does not expropriate other than for fair compensation...’ (CA Faiser [1], at p. 653). However, he saw in section 3(1) of the Law to Amend the Purchase Law, which determines the dates of the expropriation without compensation as to ‘... a plot or a portion thereof’ ‘determinative evidence as to the intention of the legislator’ to permit reduction of compensation even when the parcel is expropriated in its entirety.

But, as explained in the article supra of Professor Alterman [26] the definition of ‘plot’ in the said statute is different from the definition in the Purchase Ordinance, and in any event we should not draw analogies from the law to the Ordinance.

Moreover, as a rule, a law is not to be interpreted as infringing on a right based on what is said in another law, and all the more so a later law which did not exist, and in any event did not stand before the Knesset when the statute that is being interpreted was passed. The principle of legality requires diligence in ensuring that the violation of a right, and all the more so an unjustified violation, will be clearly anchored in an authorizing statute and will be, as said in the limitations clause, ‘... in a statute... or by statute... by authority of explicit authorization in it.’

Indeed, as was established in CA Faiser [1] the language of the statutes before us enables both interpretations. In my view, both in light of the intention of the Knesset and in light of constitutional principles which were strengthened with the passing of the Basic Law, and which require that the law be interpreted as violating a right only to a degree that does not go beyond what is necessary, the interpretation that should rightfully be adopted is that the authority to reduce compensation for expropriation of land for public purposes does not apply when the plot is expropriated in its entirety.

It is to be noted, that even according to the interpretation holding that there is discretionary authority to reduce the compensation, use of this discretion where the landowners do no derive any benefit from the expropriation is not proportional, and therefore is not appropriate.

Additional arguments

11. In my view, the arguments of the plot owners in Bat Galim, which relate to the right to compensation for the partial expropriation, and to the rate of compensation for an unit of land and to the rate of interest and the indexation, are to be dismissed.

Section 2 of the law to Amend the Purchase Laws establishes that the area that can be expropriated without remuneration out of a plot will be calculated based on the overall area of all the expropriations of that plot. For this purpose, the law defined ‘plot’ in section 1: ‘in an area in which an arrangement of property rights according to the Lands Ordinance (Arrangement of Property Rights) was made—a registered plot which is registered according to that ordinance;’ meaning after the lands arrangement. While ‘original plot’ has been defined as a ‘plot as it was on the eve of the first purchase...’ meaning as it was registered after the lands arrangement on the eve of the first purchase. We find that the relevant expropriations are those that were implemented after the lands arrangement. Given that there is no dispute that since the lands arrangement expropriations from the plot have not taken place, the owner’s claim was properly dismissed.

Beyond that which was necessary the District Court found that the original owners from whom the plot was bought purchased their rights by power of a statute of limitations, on the basis of the cultivation of that same area which was registered as a ‘plot’ after the arrangement and from which, as said, expropriations were not made.

I have also not found grounds to intervene in the determination of the District Court as to the rate of compensation for a unit of land. This rate is determined by the opinion of an expert assessor, for which this matter is in his range of expertise. So too it is not proper to intervene in the rate of interest and indexation that the District Court determined on the basis of the Interest and Indexation Law 5721-1961.

12. Therefore I propose that we dismiss the appeal in CA 5546/97, and affirm the appeal partially in CA 6417/97 and require the Local Planning and Construction Committee in Haifa to pay the appellants for the entirety of the plot that was expropriated (parcel 70) the total of 70,920 dollars as the assessor determined in his opinion as per their value on the date of the handing down of the decision, and leave the other portions of the decision as they are.

I also propose that under the circumstances no order be given for expenses.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Zamir

I agree.

President A. Barak

I agree with the decision of my colleague Justice Dorner. Like her, I too am of the view that it is appropriate to deviate from CA 377/79 (hereinafter: ‘the Faiser ruling [1]’) Since I was part of the Faiser ruling[1] I would like to explain briefly the considerations which are at the basis of my agreement with my colleague’s stance.

1. At the center of these appeals stands the provision of section 20(2)(b) of the Lands Ordinance (Purchase for Public Purposes) (hereinafter: ‘the Purchase Ordinance’) This provision establishes as follows:

‘(b) Where the area of the land taken which is comprised in a plot exceeds one quarter of the total area of the plot, the compensation shall be reduced by a sum which bears the same proportion to the value of the land alone comprised in the portion of the plot taken as one quarter of the total area of the plot bears to the total area of the land comprised in the portion of the plot taken’.

The interpretive question which arose in the Faiser case [1] and which is before us to be determined, is whether this provision applies only to the case of the expropriation of a part of a parcel or whether this provision also applies to the expropriation of the entire parcel. President Landau explained that from a textual perspective ‘... the two interpretations of section 20(2) are possible...’ (ibid, at p. 651). President Landau went on to examine the purpose at the basis of the provision. He put the right to property at one end of the scales. He noted that ‘... when the interpretation of the statute is put in question, certainly the tendency will be to prefer the interpretation which fits with that general principle, which embodies the basic property rights of a land owner’ (ibid, at p. 651). So to the President placed at this side of the scales the special ‘legislative reason’ which justifies reduction of 20 percent from the compensation amount. This reason is that the expropriation appreciates the value of the portion of the parcel that was not expropriated, and therefore there is justification to reduce the compensation. This reason does not hold where the entire parcel has been expropriated On the other side of the scales President Landau placed two considerations: first, a line of precedents in which reduction of compensation was recognized for the expropriation of the entire parcel; second, the weakness of the legislative reason, as many are the situations in which expropriation of part of a parcel does not appreciate the value of the portion that was not expropriated. Against the background of these conflicting considerations President Landau was of the view that the scales are balanced. He noted that ‘this survey that I conducted would ostensibly leave the conclusion at a ‘tie’, and perhaps it would be appropriate to give determinative weight to the basic principle, that one does not expropriate other than for fair compensation...’ (ibid at p. 653). What tipped the scales in the eyes of President Landau was an additional consideration, which deals with sections 2 and 3 of the Law to Amend the Purchase for Public Purposes Laws (as it was amended in the Law to Amend the Purchase for Public Purposes Laws (amendment) 5729-1969; hereinafter: ‘the Law to Amend the Purchase for Public Purposes Laws). This provision limits purchase without payment of compensation. (section 2) and establishes – as to date of purchase – a provision according to which in purchase by authority of the Purchase Ordinance the date of purchase is the date in which the notice was published as to the intent to purchase for public purposes ‘... the parcel or any portion of it’ section 3(1). President Landau saw in this ‘. . . an authorized interpretation from the legislator himself, which lets us know, that taking the percentage, that is permitted to be taken without compensation, is possible even when a parcel is expropriated in its entirety’ (ibid, p. 653).

2. Since the Faiser case [1] over twenty years have passed. The considerations which guided President Landau in the Faiser case [1] are still valid today. The weight of these considerations has changed since then. I will open with the consideration as to the right to property. Since the Faiser ruling[1] the right to property – along with some additional rights – has changed its status. It has become a constitutional supra-statutory right. Its weight in the interpretive balance has grown. I explained this in one of the cases, when noting:

‘... it is only natural in my eyes that our approach to the purpose of the expropriation Ordinance is different from the approach to it 50 years or 30 years ago. The central change occurred with the passing of the Basic Law: Human Dignity and Liberty. This law granted constitutional supra-statutory status to the right to property of the original owner. A change has occurred in the balance between the right to property of the original owners and the needs of the public. This change does not impact the validity of the Expropriation Ordinance. The validity of the Expropriation Ordinance is preserved. But this change leads to a change in the understanding of the Expropriation Ordinance. It is expressed in our new understanding of the purpose of the Expropriation Ordinance’ (HCJ 2390/96 Karsik v. State of Israel, Israel Lands Authority [15], at p. 713).

3. Against this consideration President Landau lined up a row of precedents, from which it arises, whether explicitly or implicitly that the payment of the reduced compensation also applies to the expropriation of the entire parcel. Since then the picture has changed. In the district courts the opinions are split (after the Basic Law: Human Dignity and Liberty). The Supreme Court (in the words of President Shamgar) sharply criticised the Faiser ruling[1] (see: CA 474/83, at p. 384). In academia as well it has been criticized (see Alterman, in her article supra [26]; Lewinsohn-Zamir in her book supra [22], at p. 164).

4. The reliance of President Shamgar on the Law to Amend the Purchase for Public Purposes Laws has also been the subject of criticism. It was emphasized that the Purchase Ordinance (that deals with a plot) and the Law to Amend the Purchase for Public Purposes Laws (which deals with a parcel) deal with different situations and with different measuring units, and one cannot learn from one to the other (see Alterman, in her article supra [26] at p. 223), but beyond this, President Landau relies on the provision in the Law to Amend the Purchase for Public Purposes Laws –which deals with the date of purchase for public purposes – according to which the date of purchase is the date of publication of the notice as to the intentions to purchase for public purposes ‘... the parcel or any portion of it’. Justice Landau saw in this ‘decisive proof for the legislator’s intent’ which is ‘as though the legislator is innocently digressing’, and directs the interpreter to determine that also in expropriating the parcel in its entirety the rate of compensation is to be reduced. According to the approach of President Landau ‘there is before us an authorized interpretation from the legislator himself...’ (the Faiser ruling [1], at p. 653). This approach is difficult: first, a later law does not interpret an earlier law. The legislator deals in legislation and not interpretation. The task of interpretation is the task of a judge. He may learn from the later law as to the purpose of the earlier law. This is not ‘decisive proof’ as to this purpose. It is one of the ‘proofs’ that are to be used. Its weight is determined by its substance. The weight is small in our matter, since as President Landau noted, the legislator was ‘innocently digressing’. Thought was not given to the question whether reduction of compensation will also apply in the expropriation of the entire parcel. The assumption must be that the determination of the basic question – whether it is possible to expropriate a parcel in its entirety with significant reduction of the compensation – will not be done in reliance on the digression of the legislator. Certainly this is so when it is a matter of violation of a basic constitutional right. (See A. Barak, Interpretation in Law, Vol. 2, Statutory Construction [24] at p. 594).

5. These considerations lead me to the conclusion that the balance that was made in the Faiser case [1] between the right to property and its violation in the expropriation of an entire parcel cannot stand today. It is possible, of course, that this balance was mistaken already at the time it was done. Be this as it may, now – following the legislation of the Basic Law: Human Dignity and Liberty – we no longer can look upon legislation which violates human rights in the same manner we looked upon it in the past. I explained this in one of the cases, in noting:

‘... the text of the law has not changed. But, the purpose of the law has changed. The change may be minor. It may reflect a new purpose that can be reached – even if in actuality it was not reached – in the past. The change may be heavy. It may reflect a new purpose that could not have been reached in the past. Indeed, Radbruch’s saying that – the law is always wiser than its maker – is particularly accurate during a time of constitutional changes. These change the normative expanse in which we continue to think. It is no longer possible after the legislation of the basic laws as to human rights to think about the general purpose of the legislation, in the same manner in which we thought of it prior to the legislation of the basic laws. Our normative world has changed. Our manner of thinking has changed (knowingly or unknowingly)’ (HCJ 2390/96 supra [15], at p. 713).

6. Moreover, it is an interpretive presumption that the purpose of a statute does not come to oppose the constitutional provision found above it ‘... the aspiration of the interpreter [is A.B] to interpret a statutory provision as fitting with the Constitution...’ (see HCJ 4562/92 Zandberg v. Broadcast Authority [16] at p. 810. See also: HCJ 5016/96 supra [9] at p. 42; CrimFH 2316/95 Ganimat v. State of Israel [17], at p. 653). From this we learn that we must interpret the provision as to the rate of compensation which is paid for expropriation in a manner that will be consistent with the provisions of the Basic Law: Human Dignity and Liberty. It is true that the validity of the Purchase Ordinance is not up for discussion before us. We are dealing with the meaning of the Ordinance. In giving this meaning, the interpreter must make every interpretive effort, within the limits of the interpretive rules, to reach a result which is consistent with the basic law.

7. What is the interpretive result – as to the payment of reduced compensation in the case of the expropriation of the entire parcel – which arises from the provisions of Basic Law: Human Dignity and Liberty? We must search for the answer to this question in the substance of the right to property on the one hand and the limitations that can be imposed on it on the other. The right to property is complex and entangled. Several reasons are at its foundation. One of the reasons is that property enables liberty (See J. Weisman, Law of Property -General Part [25], at p. 16). ‘... one of the important social roles of the right to property is to defend the individual from the claims of the public and the power of the regime; to preserve in the hands of the individual an area of negative liberty which constitutes a necessary condition of personal autonomy and self development.’ H. Dagan ‘Property, Social Responsibility and Distributive Justice’ Distributive Justice in Israel [27] at p. 100). Indeed, ‘property enables the individual to be free and to give expression to his character and liberty’ (LCA 6339/97 Roker v. Solomon [18], at p. 281). In one of the central decisions of the Constitutional Court in Germany it was decided:

‘To be a property owner is a basic constitutional right which is to be viewed with a close tie to the protection of personal liberty. In the framework of the general method of constitutional rights, the role of the right to property is to ensure its owners a range of liberty in the economic field and thereby enable him to manage his own life.’ 24 BVerfGE 367 [21], at p. 389; the case of the Hamburg Flood case; (translation from German to Hebrew by President Barak).

However ‘property imposes duties (verpflichtet). Its use must serve the public interest’ (Section 14(2) of the German Basic Law; compare also to section 42(2) of the Italian Constitution which establishes that private property has a social function (funzione sociale)). Dagan rightly noted that ‘… private property also constitutes a source for the special responsibility of the owners to other individuals and to society as a whole’ (Dagan in said article [27] at p. 105). The fulfillment of this special responsibility requires legislation, such as planning and construction laws, laws to protect the environment, and legislation which protects works of art that the public has an interest in. The approach also stems from here that expropriation is not an illegal activity which drags after it compensation for behavior against the law. Expropriation is a lawful act which realizes the social responsibility of property. It carries with it suitable compensation for the property owner (see D. Sorace ‘Compensation for Expropriation’ [28]). This expropriation and the compensation paid following it of course must meet the requirements of the limitations clause.

8. Does legislation which establishes compensation at the rate of 60 percent of the value of the parcel that was expropriated in its entirety violate the right to property, and does this violation conform with the limitations clause? It appears to me that this legislation violated the right to property. It is not to be seen just as an (internal) realization of the social responsibility of property. The validity of this legislation must therefore fulfill the requirements of the limitations clause. The burden to prove this is imposed on the expropriating authority. The requirements of the limitations clause are not met in our matter. It is sufficient that I note that the legislation is not proportional. It takes advantage of the social responsibility of property beyond the necessary proportionality. If I am correct in this approach, then we have before us an additional interpretive reason which justifies the nullification of the Faiser ruling [1]. This ruling goes against the dictates of the Basic Law: Human Dignity and Liberty. An interpretation which is consistent with the basic law justifies the interpretation presented by my colleague Justice Dorner.

Vice President S. Levin

I agree with the decision of my colleague Justice Dorner and wish to join with the reasoning of my colleague the President and in particular the reasoning that relates to the legislation of section 3 of the Basic Law: Human Dignity and Liberty. However, I wish to add the following:

The application of the consideration of appreciation in the totality of considerations which justify reduction of the compensation due to expropriation of land raises the question of the compatibility between the obligation imposed on owners of land assets to pay an appreciation duty for the increase in value of the assets and the right of asset owners to compensation for expropriation of their lands. This matter has been discussed in this Court from the point of view of the arrangements which apply in relation to an appreciation duty against the background of the question of the appropriate construction of the provision of section 4(5) of the third supplement in the Planning and Construction Law in LCA 7172/96 Kiryat Beit Hakerem Ltd. v. Local Construction and Planning Committee [19]. This matter is pending in further hearing in this Court, and the parties have not related to it. Therefore, there is no place to discuss it in the framework of the appeals before us.

Justice I. Englard

I agree with the opinion of my colleague Justice Dorner and the comments of my colleague President Barak.

It was decided as per the decision of Justice Dorner.

21 Sivan 5761

12 June 2001

Full opinion:

Local Building and Construction Committee v. Holzman.pdf

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

http://elyon1.court.gov.il/files/97/460/055/L06/97055460.l06.pdf

Litzman v. Knesset Speaker

Case/docket number:

HCJ 5131/03

Date Decided:

Tuesday, August 17, 2004

Decision Type:

Original

Topics:

Abstract:

Facts: Various irregularities occurred during votes in the Knesset, in which certain Knesset members voted instead of other Knesset members. The petitioner asked the court to void the votes in which the irregularities occurred.

Held: Judicial scrutiny of legislative proceedings in the Knesset should be done with great caution, and only when the defect in the proceedings goes to the heart of the matter. In this case, the irregularities did not affect the outcome of the voting, and therefore judicial intervention was unwarranted.

Petition denied.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Grunis, Asher

majority opinion

Joubran, Salim

majority opinion

Full text of the opinion:

HCJ 5131/03

MK Yaakov Litzman, Chairman of United Torah Judaism Faction

1. Knesset Speaker

2. Minister of Finance

3. Attorney-General

The Supreme Court sitting as the High Court of Justice

[17 August 2004]

Before President A. Barak and Justices A. Grunis, S. Joubran

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

Petition denied.

Legislation cited:

Basic Law: the Knesset, s. 19.

Israel Economic Recovery Programme (Legislation Amendments for Achieving Budgetary Goals and the Economic Policy for the Fiscal Years 2003 and 2004) Law, 5763-2003.

Knesset Procedure Rules, ss. 114, 120.

Israeli Supreme Court cases cited:

[1] HCJ 652/81 Sarid v. Knesset Speaker [1982 IsrSC 36(2) 197; IsrSJ 8 52.

[2] HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [2002] IsrSC 56(3) 117.

[3] HCJ 8238/96 Abu Arar v. Minister of Interior [1998] IsrSC 52(4) 26.

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

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

[6] HCJ 73/85 Kach Faction v. Knesset Speaker [1985] IsrSC 39(3) 141.

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

[8] HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [1991] IsrSC 45(3) 154.

[9] HCJ 6652/96 Association for Civil Rights in Israel v. Minister of Interior [1998] IsrSC 52(3) 117.

[10] LCrimA 2413/99 Gispan v. Chief Military Prosecutor [2001] IsrSC 55(4) 673.

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

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

[13] EA 5049/92 Attorney-General v. his honour Supreme Court Justice (ret.) Mr A. Halima, Chairman of the Central Elections Committee for the Thirteenth Knesset [1990] IsrSC 44(2) 37.

[14] HCJ 5160/99 Movement for Quality Government in Israel v. Constitution, Law and Justice Committee [1999] IsrSC 53(4) 92.

American cases cited:

[15] United States v. Munoz-Flores, 495 U.S. 385, 110 S. Ct. 1964 (1990).

For the petitioner — U. Stendal.

For the first respondent — A. Schneider.

For respondents 2-3 — O. Koren.

JUDGMENT

President A. Barak

During the second reading of a draft law, some Knesset members voted instead of other Knesset members. By voting in this way, they breached the rules governing the voting of Knesset members. Does this affect the validity of the law that was passed? This is the question that was brought before us in this petition. We dismissed the petition (on 31 July 2003), and said that our reasons would be given separately. The following are our reasons.

The background

1. The Knesset enacted the Israel Economic Recovery Programme (Legislation Amendments for Achieving Budgetary Goals and the Economic Policy for the Fiscal Years 2003 and 2004) Law, 5763-2003 (hereafter — the Economic Recovery Law). The draft law included more than one hundred sections. After a debate that lasted approximately fifty hours, the Knesset began (on the afternoon of 28 May 2003) a vote on the objections and on the sections of the draft law in its second reading. The voting continued uninterrupted until the law was passed on its third reading (early in the morning of 29 May 2003).

2. Most of the voting took place on a show of hands with personal voting. In addition approximately eighty votes were held electronically. During an electronic vote, the Knesset member presses a panel of buttons next to his seat. The panel includes a button marked ‘Present,’ and alongside it buttons marked ‘For,’ ‘Abstain’ and ‘Against.’ For the vote of the Knesset member to be recorded, he must press the ‘Present’ button and one of the other buttons simultaneously. During the voting, MK Y. Litzman (the petitioner) said that ‘with regard to the voting, I have the impression that there are Knesset members, and at the moment it does not matter who they are, who are not present in the House and for whom others have voted in electronic voting’ (record of proceedings on 28 May 2003, appendix C of the petition). The Knesset Speaker, MK R. Rivlin responded immediately ‘This is very serious. Please submit a complaint in writing, and do not make vague allegations’ (ibid.).

3. The manner of electronic voting during the session on the draft Economic Recovery Law aroused a public outcry. MK I. Gavrieli said that her vote was counted even though she did not take part in certain stages of the votes. Against this background, on 3 June 2003 the petitioner sent letters to the Knesset Speaker (appendix D(1) of the petition) and to the Knesset’s legal adviser (appendix D(2) of the petition). He stated that in view of the information that MK I. Gavrieli proffered, her vote and other votes that may have suffered similar defects were invalid. From this he concluded that the law was not duly passed, and the vote should be held again. MK Vilan, who is not a party to the proceedings before us, also submitted a request on 3 June 2003 that the implementation of the law should be suspended until the investigation into the voting was completed.

4. On 3 June 2003, the Knesset Speaker appointed a team to investigate all the electronic voting that took place with regard to the draft Economic Recovery Law. In the first stage, it examined the allegation with regard to the vote of MK I. Gavrieli, despite her not being present in the House. The team found (in its report dated 4 June 2003) that it was reasonable to assume that a member of the Knesset had voted twice. The team recommended that no additional investigations should be made with regard to the other electronic votes that were held on the second and third readings of the draft Economic Recovery Law. Pursuant to a request by the Attorney-General on 8 June 2003, the Knesset Speaker asked the investigation team to complete the investigation with regard to all the other electronic votes that took place with regard to that draft law. Before the investigation was completed, on 9 June 2003 the petition before us was filed.

The petitions and the replies thereto

5. The petitioner points to defects that occurred in the voting. According to him, the clear cases of double voting could be the tip of the iceberg. It is impossible to know what was the scope of the phenomenon without a comprehensive investigation. The existing suspicions are sufficient to invalidate all the votes that took place on May 28 and 29. This step is essential in view of the serious damage inherent in the harm done to public confidence in the Knesset. At least the commencement of the law should be suspended until the investigation is completed. The petitioner also asked, in the alternative, that the vote should be held again, at least with regard to the sections in which the vote of MK I. Gavrieli was counted, even though she was not in the House. The petitioner also asked that we should order the Knesset Speaker (the first respondent) to examine thoroughly the method of voting in the Knesset, so that measures would be adopted to ensure that no cheating can occur in the legislative process. With regard to the Minister of Finance (the second respondent), the petitioner argued that he should refrain from carrying out acts based on the Economic Recovery Law. Finally, the petitioner asked that we order the Attorney-General (the third respondent) to start a thorough investigation into the whole affair.

6. In the reply on behalf of the Knesset Speaker, it was stated that several cases of prima facie irregularities had indeed been discovered in some of the votes. Some of these irregularities did not reach the stage of recording an electronic vote, and they are irrelevant to the petition. Of those irregularities that led to an invalid vote, the Knesset Speaker discovered four cases:

(a) From the supplementary report of the investigation team dated 17 June 2003, it transpires that MK M. Gurolevsky admitted that he voted twice instead of MK G. Arden. These votes were disqualified by the Knesset Speaker immediately after they were discovered, and revotes were held. Thus the defect was remedied. The Knesset Speaker filed a complaint against MK M. Gurolevsky to the Ethics Committee for Knesset Members, which decided, on 10 June 2003, to prohibit him from entering the House and its committees for four months, during which he could enter these sessions solely for the purpose of voting.

(b) The investigation team found that a vote had been recorded for MK I. Gavrieli, even though she was not present in the House. How this happened was not determined. The aforesaid vote relates to an objection that was submitted with regard to one of the sections of the draft Economic Recovery Law. The objection was defeated by a majority of fifty-five Knesset members who voted against it to forty-three members who voted for it. It follows that the outcome would not have changed even if the vote of MK I. Gavrieli had not been counted.

(c) The investigation team examined a record of a vote by Minister Katz, despite the fact that he did not press the voting buttons. This vote was disqualified by the Knesset Speaker and a revote was held. For this reason, the defect was already remedied during the Knesset session.

(d) It transpires from the supplementary report of the investigation team that prima facie Deputy Minister Y. Edri voted from his seat and from the seat of MK E. Yatom, who at that time was not seen to be sitting in his seat, but came to his seat immediately after the vote of the Deputy Minister. In this regard, the Knesset Speaker says that the vote referred to an objection that was submitted to one of the clauses of the Economic Recovery Law. The objection was not adopted by a majority of three votes. It follows that even if the vote of MK E. Yatom had not been counted, the outcome would not have changed.

(e) The investigation team located a prima facie double vote by MK W. Taha, who voted also instead of MK Zkhalka. The objection in this vote was not adopted by a majority of eleven votes. It follows that this defect also did not affect the outcome of the vote.

7. The position of the Knesset Speaker is that the petition should be dismissed. He referred to the position of the Supreme Court, which within the framework of consistent case law for many years has seen fit to act cautiously and with judicial restraint with regard to its intervention in the legislative proceedings of the Knesset, both while they are in progress and after they have been completed. This restraint applies also with regard to the intervention of the court in the validity of a statute that has been enacted into law, when a defect occurred in the process of enacting it. In the opinion of the Knesset Speaker, only when the defect that occurred goes to the heart of the matter and was sufficient to affect the outcome of the vote is there a basis for abandoning the caution and judicial restraint that the court has taken upon itself. In our case, the defects do not go to the heart of the matter. They were insufficient to affect the outcome of the vote. The Knesset Speaker mentioned in his reply that without any connection to this incident of the voting, already in February 2003 a tender was issued for the supply, installation and assimilation of an electronic voting system in the Knesset. The new system, which will be installed in the coming months, will be more advanced that its predecessor.

8. The Minister of Finance (the second respondent) said in his reply that he is not entitled to refrain from implementing the law, as long as the court has not determined that the law is not valid. Admittedly, the voting of Knesset members instead of other members is an improper phenomenon that must be eradicated. Nonetheless, there are several ways of dealing with this that do not involve invalidating the law. In the case before us, there is no causal link between the defects that occurred in the legislation and the law that was passed. Therefore, the defect that was discovered does not go to the heart of the matter, nor does it justify judicial intervention. The Attorney-General (the third respondent) said that he decided on 18 June 2003 to begin a police investigation. It follows that the petition against him is superfluous.

The legal approach

9. The voting rules were breached in the legislative proceedings of the Economic Recovery Law. Knesset members voted during the second and third readings of the law in a way that was prima facie unlawful in three cases. This was expressed in their voting (electronically) in the place of other Knesset members. Two of these unlawful votes — even if we ignore them — are incapable of changing the results of the voting. The question that we face is whether these breaches invalidate the law. This question can be answered from two viewpoints. One viewpoint concerns the substance of the provision that was breached and its effect on the validity of the law. We can call this the viewpoint of the substance of the breach. According to this viewpoint, not every breach of the rules that apply to the legislation proceeding has the same outcome. There are severe breaches that go to the heart of the proceeding and that affect the validity of the law, and there are minor breaches that, even though they occurred, do not affect the validity of the law. The substance of the breach will determine, in the final analysis, whether it is so serious that it affects the actual validity of the law. The other viewpoint concerns the scope of judicial review of legislative proceedings in the Knesset. We may call this the viewpoint of the scope of judicial review. It is well known that the scope of judicial review of internal proceedings in the Knesset is narrow. It reflects a delicate balance between the need to ensure the rule of law in the legislature and the need to respect the unique nature of the Knesset as the body elected by the people (see HCJ 652/81 Sarid v. Knesset Speaker [1], at p. 204 {58}). This delicate balance applies also to legislative proceedings, which are part of the internal proceedings of the Knesset. Justice E. Rivlin rightly said with regard to Sarid v. Knesset Speaker that the internal proceedings of the Knesset include ‘legislative proceedings at the various stages through to their completion, sessions of the Knesset committees, the determination of the method of voting and the ways of holding sessions in the House’ (HCJ 971/99 Movement for Quality Government in Israel v. Knesset Committee [2], at p. 167). The first viewpoint examines the laws that were breached, the seriousness of the breach, and the effect of the breach on the validity of the law. The judicial remedy is derived from the substance of the breach and its outcome. The other viewpoint examines the relationship between the judiciary and the legislature. The scope of judicial review determines the remedies for a breach of the rules. The choice between the two viewpoints reflects the historical development of the legal system (see S. Nevot, ‘Twenty Years of the “Sarid” Test: a Fresh Look at Judicial Scrutiny of Parliamentary Proceedings,’ 19 Mechkarei Mishpat (2003), 720). It sometimes reflects jurisprudential approaches which also are influenced by the history of those legal systems, Thus, for example, civil law systems usually adopt the viewpoint of the substance of the breach. They determine which breaches of the legislative proceeding affect the validity of the law and which breaches do not have this result. The scope and the consequences of the breach determine the scope of the judicial review, since the existence of the right leads to the existence of the remedy (ubi ius ibi remedium). By contrast, common law systems usually adopt the viewpoint of the scope of judicial review. They determine in which situations judicial intervention in the legislative proceeding will be allowed, and in what situations the court will not intervene in such proceedings. The scope of the intervention determines the substance and outcome of the breach. The existence of the remedy leads to the recognition of the right (ubi remedium ibi ius).

10. There should be harmony between these two viewpoints. This is usually the case. This is certainly so with regard to the argument brought before us, that the legislation is not valid, since the rules that govern the methods of adopting legislation were breached. Indeed, the laws that determine the validity of the legislative proceeding must adapt themselves to the laws that determine the scope of the judicial intervention. In my opinion, these are the two sides of the same coin. If, according to the viewpoint of the substance of the breach, the breach of the rules governing the legislative proceeding is serious and goes to the heart of the proceeding and affects the validity of the law, the court should, according to the viewpoint of the scope of judicial review, exercise judicial review and grant the necessary remedy. If it does not do so, and a judicial remedy is not given where the rules that govern the legislative proceeding are seriously breached so that the legislation is invalidated, the result will be that a defective law will continue to be valid. There is no greater injury than this to the system. By contrast, if according to the substantive viewpoint the breach of the legislative proceeding is minor and does not affect the validity of the legislation, there are no grounds for judicial intervention. Despite the breach of the laws, there is a justification for judicial restraint whose purpose is to protect the unique nature of the Knesset as the body elected by the people.

11. Harmony between the two viewpoints will be guaranteed if it is determined that not every breach of the rules governing the legislative proceeding affects the validity of the legislation. We must distinguish between serious breaches that go to the heart of the legislative proceeding and minor breaches. Only serious breaches can affect the validity of the law. This was discussed by Justice T. Or, when he said:

‘In my opinion, on this matter one should adopt a principled approach that gives the proper weight to the status of the Knesset as the State’s legislature. In considering these arguments, the court should progress from case to case with due caution, and consider giving a declaration that primary legislation is not valid as aforesaid only in rare cases of a defect that goes to the heart of the matter’ (HCJ 8238/96 Abu Arar v. Minister of Interior [3], at p. 35).

But what is a serious breach of the rules governing the legislation proceeding? When is it said that a breach of the rules creates a ‘defect that goes to the heart of the matter’? The answer is that the breach is a serious one and it leads to a defect that goes to the heart of the matter when it harms the basic values of the democratic system that lie at the heart of the legislative proceeding. These are breaches that harm the ‘basic principles of the parliamentary system’ (Nevot, ‘Twenty Years of the “Sarid” Test: a Fresh Look at Judicial Scrutiny of Parliamentary Proceedings,’ supra, at p. 785). Indeed, the rules concerning the legislative proceeding — like any legislative norm in Israel — reflect the basic values of Israeli democracy. Harm to legislative proceedings is serious and the defect goes to the heart of the matter, if it harms those basic values of the system that underlie the legislative proceedings. In this way harmony is guaranteed between the viewpoint of the substance of the breach and its effect on the validity of the law and the viewpoint of the scope of judicial review. With regard to the scope of judicial scrutiny, it was held in Sarid v. Knesset Speaker [1] that:

‘When the alleged harm to internal parliamentary proceedings is minor, and it cannot affect the foundations of our parliamentary system, then the consideration of the independence and special nature of the Knesset overrides the consideration of the rule of law, and the judiciary is justified in refraining from considering a matter that is in essence political. This is not the case when the alleged harm is significant and it involves harm to the substantive values of our constitutional system. In such a case, the consideration concerning the need to ensure the rule of law overrides any other consideration’ (ibid., at p. 204).

The criterion that was determined for the scope of judicial intervention in an internal parliamentary proceeding is one that takes into account —

‘To what degree the fabric of parliamentary life is harmed and to what degree the harm affects the foundations of our constitutional system’ (ibid.).

Indeed, when a breach of the legislative proceedings harms the basic values of the democratic system that underlie the legislative proceedings, this affects the validity of the law, and the court will exercise its discretion and carry out judicial review. Thereby it will prevent the harm to the fabric of parliamentary life and the harm to the foundations of our constitutional system that result from the breach. In this way, harmony is achieved between the viewpoint of the substance of the breach and the viewpoint of the scope of judicial review. Not every breach of the rules that govern legislative proceedings affects the validity of the law and justifies judicial review. Only a serious breach ‘that goes to the heart of the matter,’ which is characterized by harm to the basic values that underlie the rules, affects the validity of the law, and since it is harm ‘to the substantive values of our constitutional system’ (ibid.), it justifies judicial review of the propriety of the legislative proceedings. This approach of ours is derived from purposive interpretation, and it constitutes a part thereof. According to purposive interpretation, the language of a legal text is interpreted in accordance with its purpose. The purpose of a legal text includes a general purpose and a specific purpose (see A. Barak, Purposive Interpretation in Law, 2003, at p. 196). The basic values of the democratic system that underlie the legislative proceeding are a part of the specific and general purpose of the rules that govern the legislative proceeding (cf. HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [4], at p. 329). They will therefore apply both to the issue before us (which concerns a claim that the law is not valid because of defects in the legislative proceedings) and other issues, in which it is claimed that the rules governing the legislative proceeding have been breached, even if the remedy sought is not the voidance of the statute.

12. A uniform criterion is therefore recognized. It applies both with regard to the validity of legislation adopted by means of a breach of the rules regulating the legislative proceedings and also with regard to the scope of judicial review. This criterion depends upon the harm to the basic values that underlie the legislative proceeding. This criterion raises four questions that we ought to consider.

13. The first question is what are the basic values of the democratic system that underlie the legislative proceeding (see Nevot, ‘Twenty Years of the “Sarid” Test: a Fresh Look at Judicial Scrutiny of Parliamentary Proceedings,’ supra, at p. 784, and A. Vermuele, ‘The Constitutional Law of Congressional Procedure,’ 71 U. Chi. L. Rev. (2004) 361). As a rule, the values of the State of Israel are its values as a Jewish and democratic State. For our purposes, these are the values of both formal and substantive democracy. With regard to formal democracy, we should emphasize the principle of representation and the principle of realizing the will of the majority. The people have chosen their representatives. The representatives act in the legislature. The Knesset member is the ‘constitutional unit’ (see HCJ 1843/93 Pinhasi v. Knesset [5], at p. 682). He tables motions; he has access to the proceedings of the House; he participates in deliberations. He has the practical opportunity of formulating his intentions. On the basis of the information imparted to him he expresses his position and tries to persuade his colleagues. At the end of this process, a vote takes place, in which the Knesset member participates and realizes his constitutional status. The resolution adopted is the decision of the majority. Against this background, we have held that denying a faction with a single member the power to table a motion of no confidence harms a ‘substantive and central value of the parliamentary system’ (HCJ 73/85 Kach Faction v. Knesset Speaker [6], at p. 164). Alongside the values of formal democracy lie the values of substantive democracy. These express in our case, inter alia, equality between members of the Knesset. Everyone receives the same information; everyone has one vote; every Knesset member is assured on an equal basis his constitutional rights as a person and as a Knesset member. Thus the legislative proceeding gives expression to the Knesset member’s freedom of speech and additional human rights that are connected with and facilitate the legislative process (such as freedom of movement). Alongside all of these, there is the Knesset member’s duty of faith. Indeed, every Knesset member acts as trustee of the whole public. He must ensure public confidence in the Knesset. He must realize his trust to the whole public. Indeed, these values all aim to ensure — in so far as legislative proceedings are concerned — that the law that is adopted will reflect the collective will of the legislature (see the judgment of the Spanish Constitutional Court STC 99/1987, cited in Nevot, ‘Twenty Years of the “Sarid” Test: a Fresh Look at Judicial Scrutiny of Parliamentary Proceedings,’ supra, at p. 784), which emphasizes the ‘realization of the will of the House’).

14. The second question is what is the source of the rules whose breach may affect the validity of the law? Certainly the most important source is the Basic Laws themselves. In this regard, it is sometimes accepted — mainly because of the viewpoint of the scope of judicial review — that only a breach of rules concerning the legislative proceeding that are enshrined in the constitution affects the validity of the statute. This is the law in the United States with regard to federal legislation (cf. United States v. Munoz-Flores (1990) [15]). In my opinion, the effect on the validity of the legislation is not conditional upon the rule that was breached being necessarily enshrined in a Basic Law. This of course is the most important source. Nonetheless, it is not the only source. There are additional sources that exist alongside it, such as an ‘ordinary’ law, the Knesset Procedure Rules and the decisions of the Knesset Committee (see A. Rubinstein & B. Medina, The Constitutional Law of the State of Israel, fifth edition, 1997, at p. 640). The status of these derives from the Basic Law: the Knesset (s. 19), which provides:

‘Work procedures and rules

19. The Knesset shall determine its work procedures; to the extent that the work procedures are not determined in statute, the Knesset shall determine them in rules; as long as the work procedures as aforesaid have not been determined, the Knesset shall act in accordance with the custom and practices that are acceptable to it.’

The provisions in the Knesset Procedure Rules concerning legislative procedures bind the Knesset. Admittedly, the Knesset may, with certain restrictions, change the provisions of the Rules. But as long as it does not do so, it is obliged to respect them. Justice M. Cheshin rightfully said:

‘Once the Knesset has determined the legislative proceedings…, it is then liable to follow the path that it has determined for itself, until it expressly repeals that system of proceedings and determines a new system of proceedings… The Knesset is “bound” by the procedure that it determined. With regard to legislative proceedings that have been previously determined, the Knesset can and may change that procedure, provided that the change is made in a manner that has been determined in advance’ (CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [7]).

This status of the Knesset’s Rules of Procedure leads to the conclusion that a law that is adopted in breach of the basic values that underlie the provisions in the Knesset’s Rules is a law whose validity is defective. I discussed this in one case, where I said:

‘The legislative proceeding, like any other Government proceeding, is a “normative” proceeding. In other words, it is a proceeding whose stages are regulated by law. Under the Basic Law: the Knesset (s. 19) the legislative proceedings are determined in the Knesset’s Rules of Procedure. In order to pass a “law,” the provisions of the Rules of Procedure with regard to legislative proceedings must be observed. Underlying these proceedings — in so far as a draft law tabled by the Government is concerned — are three readings (in the House), and deliberations in a committee (after the first reading and in preparation for the second reading). If one of these stages is absent, such as if one of the readings was not held or if there was no majority in a vote or if there were no deliberations in committee or if there was a defect in one of these proceedings that goes to the heart of the matter, the motion does not crystallize into legislation, and the court is competent — whether upon a direct attack or an indirect attack (see HCJ 761/86 Miari v. Knesset Speaker, at page 872) — to declare the law ‘void.’ The mere publication of the law in Reshumot cannot remedy the defect that occurred, although it does constitute — by analogy with the provision of section 10(b) of the Government and Justice Arrangements Ordinance, 5708-1948 — evidence that the law was passed lawfully. This evidence can be rebutted’ (HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [8]).

The constitutional courts in Germany and Spain have adopted a similar approach (see Nevot, ‘Twenty Years of the “Sarid” Test: a Fresh Look at Judicial Scrutiny of Parliamentary Proceedings,’ supra).

15. The third question is this: when the rules concerning the legislative proceeding are breached, and this breach harms the basic values of the system, is the outcome always the voidance of the law such that it is merely ‘scrap paper’? The answer is no. Admittedly, the breach of the aforesaid rules influences the validity of the law. However, this influence does not need to lead necessarily to the absolute voidance of the law. Except in unusual cases — such as a law that was published in Sefer HaHukkim (Book of Laws) but did not pass the legislative proceedings at all — the voidance of the law requires a constitutive judicial determination. The court has broad discretion in this regard (see A. Barak, Interpretation in Law, vol. 3, 1994, at p. 720). Thus, for example, the declaration that a law is void can be retroactive (from the date on which the law was published), active or prospective. It can be retroactive for one matter (such as the criminality of conduct) and active or prospective for another matter (such as civil consequences). We are dealing with the broad concept of relative voidance (see HCJ 6652/96 Association for Civil Rights in Israel v. Minister of Interior [9], at p. 125). Indeed, a breach of the rules is one thing and the consequences of the breach quite another (see LCrimA 2413/99 Gispan v. Chief Military Prosecutor [10]). This distinction, which was made mainly with regard to the validity of an administrative act, is even more pertinent to the issue of the validity of legislation. It has been rightly held that ‘before the court disqualifies a law, it must consider the matter with great care’ (Justice I. Zamir, in HCJ 3434/96 Hoffnung v. Knesset Speaker [11], at p. 67). Within this framework, the court ought to apply the doctrine of relative voidance, which allows it to fashion the remedy in accordance with the nature of the breach.

16. The fourth question is how the court will decide — when it wishes to know whether there are grounds for judicial review of the legislative proceeding — whether the conditions that justify the review exist? How will the court know whether the proceeding is justiciable or not (see HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [12])? The answer is that it should study the petition and assume that the facts on which the petitioner relies are well-founded. Against this prima facie factual background, the court should ask itself whether the basic values that underlie the legislative procedure have been harmed. If the court finds in this first stage that the basic values of the legislative process have not been harmed, it will deny the petition, without examining whether in practice the rules have been breached. Only if the court finds that prima facie the basic values underlying the legislative process have been breached will it continue the proceeding and examine whether its initial impression was well-founded.

From the general to the specific

17. In the petition before us, an electronic vote was recorded unlawfully. Prima facie, in three cases one Knesset member voted instead of another Knesset member. Thereby the rules governing the voting procedures were breached. It is obvious — and the Knesset Committee so determined on 3 January 1996 — that a Knesset member cannot vote instead of another Knesset member. This is the case even when there is an agreement between them. It is certainly the case when there is no agreement between them. This forbidden voting harms the basic values of the democratic system that underlie the voting rules. This was discussed by the Ethics Committee of the Knesset when it examined the case of MK Gurolevsky, who voted twice instead of MK G. Arden:

‘The issue of resolutions adopted by the Knesset, and voting and participation therein, which is enshrined in the Basic Law is the lifeblood of democracy and constitutes the most fundamental part of parliamentary work. Any harm to a vote or any perversion of the voting procedures by a Knesset member, even if they occurred as a result of a misunderstanding, temporary weakness, error of judgment, fatigue, confusion or any other reason, constitute very serious harm to democracy and a real danger to its existence’ (paragraph 3.4 of the decision of the Ethics Committee on 10 March 2003).

We agree with these remarks. Formal democracy is based on voting and the power of the majority. A double vote seriously harms the principle of representation on which formal democracy is based. It harms substantive democracy, since the principle of equality is harmed and the Knesset member’s duty of trust is breached. The ‘realization of the will of the House’ is perverted.

18. It follows that if an invalid vote affected the majority required on the second reading of the draft Economic Recovery Law, the defect in the voting procedure would result in the disqualification of the second reading. Since this reading is an integral part of the legislative proceeding, it would be sufficient to prejudice the validity of the Economic Recovery Law. Justice M. Cheshin rightly pointed out:

‘According to the Knesset Procedure Rules, a law does not come into effect unless the Knesset passed it in three (or four) readings. A draft law that only had two readings will not cease to be a draft nor will it become law even if there is a provision in the draft itself that the draft will become “law” after it has two readings only. An express previous amendment (to the Rules or to statute, as necessary) that will allow a law to be adopted after only two readings is the only kind of amendment that is capable of changing a draft law into a “law” after two readings only’ (United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 534).

This is not the case if the defect was remedied because a revote was held and there was no repetition of the defect. This is also not the case if the defect is not remedied, and it harmed the basic values that underlie the legislative proceeding, but it was insufficient to influence the outcome of the vote. That is the case before us, in which the ‘realization of the will of the House’ was not perverted. Admittedly, the principles concerning representation and equality were harmed. Notwithstanding, the principle of the majority decision was not harmed, and in an overall balance the proportionate remedy in such circumstances is not voidance of the law but initiating proceedings against the Knesset member who voted unlawfully. An analogy can be derived from the validity of elections. Even if votes were obtained unlawfully, this is insufficient to disqualify the elections, if the defect would not influence the outcome of the elections (see EA 5049/92 Attorney-General v. his honour Supreme Court Justice (ret.) Mr A. Halima, Chairman of the Central Elections Committee for the Thirteenth Knesset [13]).

Concluding note

19. The development of laws concerning defects in the constitutional proceeding and the outcome thereof must be carried out ‘with due caution’ (Justice T. Or in Abu Arar v. Minister of Interior [3], at p. 35). Our judgment is a cautious step in this direction. The court must navigate between the clear extreme cases. On the one hand, there are those minor breaches of the rules concerning legislation. Examples of these are defects that have been remedied, or defects that had no effect. On the other hand there are serious breaches, which give rise to defects that go to the heart of the matter, since they harm the basic values that underlie our system. This is the case if a law is passed without the required number of readings or if the required number of readings took place without the necessary majority being obtained. Admittedly, there is no inherent sanctity in the three readings for a draft law tabled by the Government (section 114 of the Knesset Procedure Rules). It is possible to determine another arrangement that will allow the legislature to express its will. But once rules in this respect have been determined, and these provide for three readings, they must take place. It is through these that our democracy finds expression. Rhetorically it can be said that the document that was passed is not a ‘law’ (see Justice M. Cheshin in United Mizrahi Bank Ltd v. Migdal Cooperative Village [7], at p. 530, and my remarks in Nimrodi Land Development Ltd v. Knesset Speaker [8], at p. 157). Objectively it can be said that the basic values that underlie the legislative proceeding were harmed, and therefore the breach is serious and it creates a defect that goes to the heart of the matter. Between the extremes lie the difficult cases. Thus, for example, what is the law if after the first reading a new matter is added that falls outside the scope of the original draft law? The rule provided in the Knesset Procedure Rules is that a decision must be made by the Knesset Committee (see section 120 of the Knesset Procedure Rules). In one case it was said, as an obiter dictum, that if a new matter is added without being brought before the Knesset Committee, ‘this is not a deviation that amounts to a defect justifying the intervention of the court in the legislative proceedings of the Knesset’ (Justice D. Dorner in HCJ 5160/99 Movement for Quality Government in Israel v. Constitution, Law and Justice Committee [14]). I doubt whether this approach should be accepted, and I would like to leave it undecided. My approach would be different if the question arose as to whether an issue is new, and the response of the Knesset Committee is that the issue is not new. In such a case it seems to me that there are no grounds for considering an argument that the Knesset Committee erred in its approach. This matter also can be left undecided.

Miscellaneous

20. In the petition before us, the petitioner finds fault with the Knesset Speaker (the first respondent) for not suspending the commencement of the Economic Recovery Law. In view of our conclusion with regard to the validity of the Economic Recovery Law, this aspect of the petition should be denied. Even if there were a defect in the legislation that affected the validity of the law, no complaint may be directed at the Knesset Speaker for not suspending the commencement of the law. The reason for this is that the Knesset Speaker has no power to suspend the commencement of a law that suffered defects during the legislative proceedings that led to its enactment. The suspension of the commencement of the law can be done only by a new legislative act of the Knesset, or by a judicial decision.

21. The petitioner asked, within the framework of one of the remedies sought in the petition, that we order the Knesset Speaker to hold a revote for the vote in which it was discovered that there was an unlawful vote from the seat of MK I. Gavrieli. He also asked that we order the Knesset Speaker to re-examine the method of voting in the Knesset, in order to prevent cheating. As we have seen, in some of the cases the Knesset Speaker ordered a revote (in the case of MK Gurolevsky’s voting, and in the case where Minister Katz’s vote was recorded, even though it was not he who pressed the voting buttons). In other cases, a revote was not held (the voting on behalf of MK I. Gavrieli, who was not in the House, and the voting on behalf of MK E. Yatom). This matter falls within the discretion of the Knesset Speaker during the voting process. This court will not exercise judicial review of this decision, which is entirely an issue of the internal management of the Knesset’s business. Of course, the absence of a revote may lead — when the invalid votes affect the outcome — to a decision that the validity of the law is prejudiced. In such a case, the judicial review addresses the validity of the law, and not the discretion of the Knesset Speaker. As to the re-examination of the voting system, this matter too falls within the framework of the internal management of Knesset affairs, with regard to which judicial review is not exercised. I will go further and say that from the material submitted to us on the matter subject to our review, we see that the Knesset Speaker acted decisively, quickly and efficiently with regard to the serious phenomenon that arose. A complaint was filed with the Ethics Committee of the Knesset, and this imposed sanctions on MK Gurolevsky. Instructions were given to carry out a comprehensive investigation of the voting and the scope of the irregularities that occurred. Basic principles concerning the voting were revised and reviewed. There was full cooperation with the police investigators who were asked to investigate the incident on the instructions of the Attorney-General. Before the petition was filed, a tender was published for the supply, installation and assimilation of a new advanced electronic voting system. It follows that there is no basis for the allegations against the Knesset Speaker with regard to his conduct in this matter.

22. The petitioner also named the Minister of Finance as a respondent in the petition (the second respondent). It was argued that he should refrain from carrying out acts based on the Economic Recovery Law. In view of our conclusion that there is no defect in the validity of the law, this part of the petition should be dismissed. We should add that even if we were of the opinion that there is a defect in the validity of the law, the remedy for that would not be that the Minister of Finance should refrain from putting the law into operation. As long as the Economic Recovery Law has not been cancelled — whether by an act of legislation of the Knesset or by a constitutive declaration of the court (within the framework of the rules of relative voidance) — the law remains valid, and the Minister of Finance must put it into operation on the basis of that assumption. Of course, a law frequently gives the responsible minister some scope of discretion with regard to its operation. Within the framework of this discretion, it is sometimes possible to wait for a judicial determination with regard to the validity of the law, if a serious complaint is made in this regard. As aforesaid, in the case before us the question of the validity of the law was determined shortly after the legislative acts, and therefore the exercising of discretion by the Minister of Finance in this regard has been resolved in view of our conclusion that the law is valid in every respect.

23. Finally, the petitioner asked us to order the Attorney-General (the third respondent) to start a thorough investigation into the whole affair. From the statement of the Attorney-General we see that an instruction to this effect was given (already on 18 June 2003). Therefore this part of the petition has been satisfied.

For these reasons, we decided (on 31 July 2003) to dismiss the petition.

Justice A. Grunis

I agree.

Justice S. Joubran

I agree.

Petition denied.

30 Av 5764.

17 August 2004.

Full opinion:

Litzman v. Knesset Speaker.pdf

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

http://elyon1.court.gov.il/files/03/310/051/A04/03051310.a04.pdf

Amit v. Southern District Police Commander

Case/docket number:

HCJ 153/83

Date Decided:

Sunday, May 13, 1984

Decision Type:

Original

Topics:

Basic Law: Human Dignity and Liberty

Judicial Review

Abstract:

The Petition centred on the Respondent's refusal to permit the Petitioners - who petitioned the Court on behalf of the "Committee Against the War in Lebanon" - to hold a demonstration and procession to mark the thirtieth day of the death of the late Emil Greenzweig, who had been killed in the course of a demonstration held by the "Peace Now" movement. The Police Commissioner's reasons for his refusal were his apprehension, that what had happened before in the demonstration held by "Peace Now" was likely to happen again, and that if it did, the police would be unable to provide the demonstrators with absolute protection against a hostile crowd.

Held by the court:

A (1) The right of demonstration and procession is a fundamental human right in Israel. It is recognized along with free speech, or emanating therefrom - as belonging to the freedoms that characterize Israel as a democratic state.

(2) The basic freedoms - among them assembly and procession - constitute rules of law which, on the one hand, serve to guide us in the absence of statutory law, and, on the other hand, rules of interpretation according to which every statutory provision is to be construed. The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

B (1) The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private ownership of property and freedom of movement. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights.

(2) The balancing process must find expression on two levels: One is the concrete level, where the actual circumstances of the controversial event are taken into account; the other is the level of principle, where the typical interests are taken into account and general criteria are determined for balancing conflicting interests and rights.

(3) The need for a principled balancing calls for a judicial determination which in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement is required as to "the limits of sufferance" of the various rights.

(4) In seeking the point of equilibrium, there is, on the one hand, the consideration that a situation should not be allowed to arise in which hostile bystanders would be able to prevent people from demonstrating, and it is the task of the police, in this situation, to keep the crowd from disturbing the demonstrators rather than prevent the demonstrators from exercising their right. At the other hand of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life.

(5) Both considerations are worthy of protection, but they cannot both be upheld at one and the same time. The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), 1971, to safeguard the public security or the public order. The balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in the demonstration and procession. At the second level the concern is with the normative measures to be adopted by the police with respect to the grant or denial of a permit for holding the demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt.

C (1) At the first level of balancing it will be the duty of the police to take all reasonable steps towards preventing any threats to or disturbance of the procession or demonstration. Enjoinder of the demonstration or procession is to be imposed as the last, not the first step. Only after the police have exhausted all the physical means at their disposal, consonantly with the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with.

(2) The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police. Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and their forces have to be allocated in a manner that will ensure reasonable discharge of all police duties.

D (1) At the second level of balancing the "rational principle" by which to balance between free speech and the public security, is the "probability" test. This test or formula is applicable also in construing the District Commander's authority under sections 83 and 84 of the police Ordinance (New Version).

(2) The "probability" test does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. Substantial evidence is required. Conjectures, speculations and apprehensions are not enough.

(3) The ideology which the demonstration or procession seeks to express, is not per se of concern to the authorities, but how the message is conveyed, the possibilities of it influencing the spectators, and the measure of hostility it is calculated to arouse in the crowd, are all considerations to be duly weighed, for they have a direct bearing on the probability that public security will be breached.

E (1) If, after the adoption of all reasonable police measures, there is still a substantial probability of harm to public security, the District Commander has the power to forbid the demonstration or procession. Before this power is exercised, the use of less drastic measures must be considered. These may enable the procession or demonstration to be held, even if not as originally planned, but with changes as regards its place, time and scope.

F (1) When exercising judicial review the court will not assume the role of a super police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevance of considerations and the like factors.

(2) The court will ask itself whether the facts as known to the District police Commander, would entitle a reasonable police commander to infer the existence of a probable danger to public security. This examination is no different from any other made by the court using the test of reasonableness.

(3) In the present case the only facts advanced by the respondent as a reason for not permitting the demonstration, were the events of the past. These create an apprehension, but no more; they do not establish any probability. Upon a reasonable evaluation made with prudent foresight those facts cannot be said to establish any substantial likelihood of danger, and they do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred on the facts as they were known to him, that there existed any substantial possibility or probability of harm to public security.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Levin, Dov

majority opinion

Netanyahu, Shoshana

majority opinion

Full text of the opinion:

H.C.J 153/83

ALAN LEVI AND YAHELI AMIT

SOUTHERN DISTRICT POLICE COMMANDER

In the Supreme Court sitting as the High Court of Justice

[May 13, 1984]

Before: Barak J., D. Levin J. and Netanyahu J.

Police Ordinance (New Version), 1971, sections 83, 84

Press Ordinance, Laws of Palestine (Drayton), vol. II, p. 1214

Held by the court:

Petition for an order nisi. The petition, which was heard as if the order had already been given, was granted and the order made absolute.

Israel cases referred to:

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

[2] H. C. 243/62, Israel Film Studios Ltd. v. Levi Geri et al., 16(4) P.D. 2407; S.J. vol. IV, 208.

[3] H. C. - 73,87/53, "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871; 13 P.E. 422; S.J. vol. I, 90.

[4] F.H. 9/77, Israel Electric Corporation Ltd. et al. v. Ha'aretz Newspaper Ltd., 32(3) P.D. 337.

[5] Cr.A. 126/62, Dissenchick et al. v. Attorney-General, 17 P.D. 169; S.J. vol. V, 152.

[6] Cr.A. 696/81, Azulai v. State of Israel, 37(2) P.D. 565.

[7] Cr.A. 100/51, Dershovitz v. Attorney-General, 6 P.D. 278.

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

[9] H. C. 253/64, Jeris v. Haifa District Officer, 18(4) P. D. 673.

[10] Election Appeal 1/65, Yeridor v. Chairman of Central Committee for Elections to the Sixth Knesset, 19(3) P.D. 365.

[11] H. C. 243/82, Zichroni v. Broadcast Authority Managing Committee, 37(1) P.D. 757.

[12] H. C. 166/71, Helon v. Usefiah Local Council, 25(2) P. D. 591.

[13] H. C. 230/73, S.Z.M. Ltd. v. Mayor of Jerusalem, 28(2) P. D. 113.

[14] H.C. 155/60, Elazar v. Mayor of Bat Yam, 14 P.D. 1511.

[15] H. C. 531/77, Baruch et al. v. Tel Aviv Traffic Superintendent, 32(2) P.D. 160.

[16] H. C. 222/68, Hugim Leumiyim et al. v. Minister of Police, 24(2) P.D. 141.

[17] H. C. 807/78, Ein Gal v. Film and Theatre Censorship Board, 33(1) P.D. 274.

[18] H.C. 644/81, Omar International Inc. New York v. Minister of Interior et al., 36(1) P.D. 227.

[19] H.C. 329/81, (S.P. 217/82; 376,670/83) Nof v. Attorney-General et al., 37(4) P.D. 326.

[20] H. C. 389/80, Golden Pages Ltd. v. Broadcast Authority, 35(1) P.D. 421.

[21] H. C. 1/81, Shiran v. Broadcast Authority, 35(3) P.D. 365.

English cases referred to:

[22] Harrison v. Duke of Ruthland (1893) 1 Q.B. 142; 68 L.T. 35.

[23] Hubbard v. Pitt (1975) 3 W.L.R. 201 (C.A.).

[24] Beatty v. Gillbanks (1882) 9 Q.B. 308.

Irish case referred to:

[25] R. v. Londonderry (1891) 28 L.R. Ir. 440.

American cases referred to:

[26] De Jonge v. State of Oregon 299 U.S. 353; 57 S.Ct. 255 (1937).

[27] Bachellar v. Maryland 397 U.S. 564; 90 S.Ct. 1312 (1970).

[28] Watson v. City of Memphis, Tenn. 373 U.S. 526; 83 S.Ct. 1314 (1963).

[29] Hague v. Committee for Industrial Organization 307 U. S. 496; 59 S.Ct. 954 (1939).

[30] Feiner v. People of the State of New York 340 U.S. 315; 71 S.Ct. 303 (1950).

[31] Schenck v. United States 249 U.S. 47; 39 S.Ct. 247 (1919).

[32] Whitney v. People of the State of California 274 U.S. 357; 47 S.Ct. 641 (1927).

[33] Dennis v. United States 341 U. S. 494; 71 S.Ct. 857 (1951).

[34] Terminiello v. City of Chicago 337 U.S. 1; 69 S.Ct. 894 (1949).

D. Cheshin for the Petitioners.

R. Jarach, Director of High Court Matters, State Attorney's Office, for the Respondent.

Barak J., giving the judgment of the Court.

The Facts:

1. On 10.2.83, in the afternoon, the "Peace Now" movement held a demonstration and procession in Jerusalem. Starting at Zion Square, the procession passed along the Ben Yehuda Mall, Bezalel Street, Ben Zvi Boulevard and Ruppin Street to Kiryat Ben Gurion. In the course of the procession the demonstrators encountered hostility. The procession ended with a demonstration at the square facing the Prime Minister's office. The end was a bitter one, since a hand-grenade was thrown which led to the injury and subsequent death of a demonstrator, Emil Greenzweig.

To mark the thirtieth day of the death of the late Emil Greenzweig, the "Committee Against the War in Lebanon" sought to hold a procession on 10.3.83. This procession was scheduled to follow the very same route taken on the previous occasion, at the end of which Emil Greenzweig met his death. The purpose of the procession was to protest against "the violence and the lack of freedom of expression." On 2.3.83, the petitioners applied on behalf of the "Committee Against the War in Lebanon" for a licence to hold the procession and demonstration, but the application was refused by the respondent on 6.3.83. Giving reasons for his refusal, the respondent wrote: "The proximity of the events to each other and the atmosphere created after the holding of Peace Now's demonstration, give rise to serious apprehension that the holding of the demonstration which forms the subject of this application, its projected timing, routing and size will create a grave threat to the public order and security." The respondent noted that he was prepared to approve a meeting at the Rose Garden opposite the Prime Minister's office. On 7.3.83 the petition was lodged against the respondent, calling upon the latter to show cause why he should not accede to the application. On 9.3.83 we convened to hear arguments, Mr. Jarach having been invited to appear as a representative of the Attorney-General. Due to the urgency of the matter, Mr. Jarach had insufficient time to prepare a written reply, but it was agreed that he should put forward verbally representations of the respondent as to the facts, and that we would treat the petition as if an order nisi had already been issued in the matter. It was further agreed that we should accept Mr. Jarach's representations as a substitute for a replying affidavit. In his reply Mr. Jarach noted the respondent's awareness of the symbolism attaching to the date of the proposed procession and its route. Nevertheless, the respondent also had to reckon with the public safety; and while he agreed that the demonstrators themselves would not jeopardize the public safety, it was to be feared that members of the crowd might do the demonstrators violent injury. The respondent hardly advocated a reward for hooliganism, but feared the recurrence, in the course of the procession and demonstration, of incidents of violence similar to or even graver than those that had taken place thirty days earlier. We inquired of Mr. Jarach as to the grounds for the fear, and whether it was founded on any specific information about what was likely to transpire. He replied that the respondent had no special information and that his apprehension was founded on the belief that the events of the past were likely to repeat themselves at this time as well. We went on to inquire whether, having regard to the general duties of the police, they had at their disposal sufficient manpower to safeguard the demonstration and procession. Mr. Jarach's reply was that, despite the difficulties involved, the police would be able to muster the required forces, that the respondent was motivated not by the lack of man-power but by his inability to afford the demonstrators "hermetical protection" - hence his apprehension. Much of our time was devoted to seeking a compromise acceptable to the parties, but to no avail. At the conclusion of the hearing we decided to make the order nisi absolute. Our reasons for so doing are given below.

The Right of Assembly and Demonstration

2. The right of assembly and demonstration is a fundamental human right in Israel (H.C. 148/77[1]). It is recognized - along with free speech, or emanating therefrom - as belonging to the freedoms that shape the democratic character of Israel. Some hold the ideological basis for this freedom to be the wish to ensure freedom of expression, which for its part contributes to the discovery of truth. Others believe that underlying the stated right is the maintenance and proper functioning of democratic government, which for its part is founded on freedom of information and freedom of protest. A further opinion is that the freedom to demonstrate and form a procession is a vital component in man's general right of self-expression and autonomous thought (See F. Schauer, Free Speech: A Philosophical Enquiry (Cambridge, 1982) 3). It seems that the right of demonstration and assembly has a broad ideological foundation, at the centre of which is a recognition of the value and dignity of man, of the freedom granted him to develop his personality, and of the wish to maintain a democratic form of government. By virtue of this freedom, means of expression are afforded to those to whom the national and commercial media of expression are not available. Hence it is accepted in our law, as in the law of other enlightened democratic countries, that the right of demonstration and assembly be ensured a place of honour in the citadel of fundamental human rights. In the words of Hughes J. in De Jonge v. State of Oregon (1937) [26], at 364:

"The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."

(See also: V. Blasi, "Prior Restraints on Demonstrations,"68 Mich. L. Rev. 1969-70 (1481) 1483; D.G. Barnum, "Freedom of Assembly and Hostile Audience in Anglo-American Law,"29 Am. J. Comp. L. (1981) 59).

3. In Israel this right has yet to find formal expression in a Basic Law. Yet the decisions of this court have effectively transformed it into one of those fundamental but unwritten rights which derive directly from the democratic, freedom-loving character of our State (per Landau J. in H.C. 243/62 [2], at 2415). The result is that "in its decisions these fundamental rights serve this court as a guiding light in construing the law and reviewing the acts of the state authorities. Clearly the Executive too must conduct itself with a proper concern for these rights" (ibid., based on H.C. 73,87/53, [3], at p. 884). "The recognition of the fundamental freedoms as a substantive part of the law in Israel also entails the conclusion that these freedoms form a part of the law, in word and in deed, i.e., as basic rules serving to guide and fashion patterns of legal thinking and interpretation, which these freedoms influence by their spirit and their goal" (per Shamgar J. in F.H. 9/77 [4], at 359). We find that the basic freedoms - among them assembly and procession - constitute on the one hand rules of law which serve as guidelines in the absence of statutory law, and on the other hand, rules of interpretation according to which every statutory provision is to be construed.

The court acts on the premise that the legislator desired neither to abrogate nor to restrict these basic freedoms.

The Balance between the Right to Demonstrate and Conflicting Rights and Interests.

4. The right of demonstration and procession, although a basic right, is not an absolute one. It is relative, being limited by other basic human rights, such as the right of private property and freedom of movement or passage. It is also limited by the need to preserve public order and security, as well as to protect the fabric of democratic life. The relative nature of this right obligates us to strike a balance between it and the other rights. Thus Lord Scarman remarked in his Report on the Red Lion Square Disorders (Cmnd. 5919), 1-2:

"Amongst our fundamental human rights there are, without doubt, the rights of peaceful assembly and public protest, and the right to public order and tranquillity... but the problem is more complex than a choice between the two extremes - one, a right to protest whenever and wherever you will and the other, a right to continuous calm upon our streets unruffled by the noise and obstructive pressure of protesting procession. A balance has to be struck, a compromise to be found that will accommodate the exercise of the right to protest within a framework of public order which enables ordinary citizens who are not protesting, to go about their business and pleasure without obstruction or inconvenience."

In discussing the need to create a balance between the various rights, we stated as follows in H.C. 148/79 [1] at 172, 178:

"The freedoms of assembly and procession are not unlimited. They are relative and not absolute freedoms. My right to hold an assembly and procession does not mean that I have the right to enter my neighbor's property without his consent, or that I may cause violence and a disturbance of the public peace. As with other freedoms, here too it is necessary to balance the desire of the individual - and the desires of individuals - to express their views by way of an assembly and procession, against the desire of the individual to protect his welfare and property and the desire of the public to preserve public order and security. Without order, there is no liberty. The freedom of assembly does not mean a throwing-off of all public order, nor does the freedom of procession mean freedom to riot... In organized social life, there is no 'all or nothing,' but there is 'give and take,' and a balancing of the different interests."

It is necessary that this balancing process find expression on two levels: one is the concrete level, where the actual circumstances of the controversial event are taken into account, the other is the level of principle, where the typical interests are taken into account, and general criteria are determined for balancing conflicting interests and rights. The concrete examination is essential, but is not sufficient in itself. It is not enough for the courts to state that the various interests must be balanced against each other. But the court - in the absence of statutory guidance - has to determine the balancing formula, the relative weight to be attached to the conflicting interests, and the criteria for ascertaining the point of equilibrium. This aspect was touched upon by Agranat J. in the Kol Ha'am case [3], in the following terms (at p. 881):

"... The question must necessarily arise - particularly because that approach does not embody any precise and narrow formula - as to what is the rational principle that must serve the executive authority when it is engaged in the stated process, in order to determine the issue in favor of one or the other of the two stated interests."

This "rational principle" is needed in order to guide the public as to what is permitted and what is forbidden. Its existence is vital in order that the governmental authority be armed with the criteria and yardsticks necessary for its decision-making. This "rational principle" serves as an important guide for the judiciary, which ought not to give expression to its subjective perception but should fashion its interpretation according to objective criteria. The significance of this "rational principle" was elucidated by Shamgar J. in A.H. 9/77 [4], (at 361):

"The process of weighing competing values denotes the interpretative starting point, but it cannot act to establish standards or a graded value scale according to which the interpretative function is to be discharged. I suspect, moreover, that the result of setting up values one alongside the other, without at the same time formulating also guidelines for assessment of their relative weight, can only be that for lack of legal criteria the court will in each case employ according to its best understanding of what is most expedient - whatever criterion seems proper to it in the circumstances. In other words a criterion embodying a guiding value standard, and tending towards the upholding of a fundamental freedom, is converted into and exchanged for a casual paternalistic criterion, the direction and nature of which will be incapable of advance assessment. With all due respect, this is quite unsatisfactory and it will not, I am sure, contribute to the clarity of the law or to its uniformity."

This need for a principled balancing calls for a judicial determination which, in the absence of statutory guidance as to the relative grading of the different interests, will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to the measure of deference to be shown to one interest at the expense of the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights - if I may borrow a term employed by Mr. Justice Witkon [see A. Witkon, "Reflection and some Youthful Memories of Freedom of the Press," Human Rights in Israel (Human Rights Association in Israel, ed. R. Gabison, 1942, in Hebrew), 153, 160].

5. The right of demonstration and procession may clash with other rights and interests of various kinds. It may clash, for instance, with an individual's proprietary right, as may happen when it is sought to hold a demonstration and procession on his property. Exercise of the right of demonstration and procession may likewise conflict with a public property right, as when the procession is sought to be held in a city street. Public and private property alike have a vested ownership, yet a desirable balance between the right of demonstration and procession and a private proprietary right is by no means the same as the desirable balance when a "public" ownership right is at stake. The right of demonstration and procession may clash with the freedom of movement, since my neighbour's right to demonstrate in a city main street inhibits my right to use this street for my own purposes. These two interests have to be balanced against each other in a manner giving recognition to one without negating the other. The right of demonstration may clash with a person's right to personal security and bodily integrity, and also with the public interest in maintaining security and democratic administrative procedures. This clash may well occur since demonstration may bring with it violence, whether on the part of the demonstrators or on the part of a hostile crowd, and a balance must be struck between the right to demonstrate and the public security. The right of demonstration and procession may conflict with the public interest in the integrity of the judicial process, as may happen when a demonstration or procession is likely to influence the outcome of a judicial matter which is pending - and a balance has to be found between these two conflicting interests.

The Need for Diverse Criteria

6. The centrality of the right of demonstration and procession inevitably brings it into conflict with various other rights and interests, and this renders imperative a determination of standards wherewith to gauge the desirable point of balance in each case. The diversity of the different possible situations requires a matching diversity of points of balance. No single criterion will avail to solve all the problems, since the conflicting interests are not always on the same normative level, while the problematics of the conflict may be of different kinds. For instance, in case of conflict between the right of demonstration and a property right, the conflict when the latter is that of an individual is not the same as when it vests in the public. When vested in an individual the property right takes precedence, and an act of trespass cannot be justified by the right of demonstration (see Harrison v. Duke of Ruthland (1893) [22]). In the second case the property right takes no precedence, since public property - and I refer here to highways, squares and streets (and not, for example, to government offices) - is meant also for processions, parades and funerals (H. C. 148/79 [1], at 178; Lord Denning, in Hubbard v. Pitt [23]; see also S.A. de Smith, Constitutional and Administrative Law, (London, 4th ed. by Street and R. Brazaier, 1981) 497). Here, unlike the private property situation, the right has to be balanced against other interests, in a process of reciprocal waiver and tolerance. As we have seen, the possibility of conflict may arise also between the right of demonstration and procession and the freedom of movement or, between the former and maintaining the integrity of the judicial process. These conflicts may raise problems of a varying character. The conflict between the freedom of demonstration and procession and the freedom of movement is between two rights of equal normative value, and what is needed, therefore, is to balance them in a manner enabling substantial realization of the one without substantial infringement of the other: "The inhabitants of a city ... have to take upon themselves the inconvenience resulting from national and public events, and these cannot serve to restrict the citizen's right to demonstrate. In organized social life there is no 'all or nothing' " (H.C. 148/79 [1], 178), and once the desirable point of equilibrium has been established, it will regulate the conduct of the public and of the authorities. The apprehension, or possibility or even certainty of impairment of one interest or another may not be relevant at all. On the contrary: the envisaged equilibrium entails the certainty of an impairment of some kind, yet the entailed risk has to be undertaken for the sake of maintaining a desirable balance between the competing interests. The second conflict, between the freedom of demonstration and procession and the integrity of the judicial process, raises a different problem. Here the question generally is the degree of likelihood that the exercise of the one right (demonstration and procession) will prejudice the other interest (integrity of the judicial process). If this likelihood is high, the interest of the integrity of the judicial process will have the upper hand, whereas the freedom of demonstration and procession will prevail when there is little such likelihood. The purpose of a principled balance in this type of situation is to establish guidelines for evaluating the prejudicial likelihood. Thus, for instance, it has been laid down in our case law that the desirable guideline is neither a "probable" nor a "remote" danger, but one of "a reasonable possibility." "The risk of a remote effect on the judicial process will not suffice, but a possible effect will, since it is much the same whether the publication did in fact operate to influence the trial, or it merely was capable of so doing. This possibility of influencing the outcome of the trial suffices if it be a reasonable possibility, and there is no need that it be probable or imminent" (per Sussman J. in Cr.A. 126/62 [5] at 181).

7. As we have seen, the desirable point of equilibrium is sometimes found in a determination of the demarcation line between two rights pressing for recognition on the same normative level (the right of demonstration and procession as opposed to the right of passage). At other times, finding the point of equilibrium entails the establishment of a criterion for evaluating the likelihood of a breach of right. Just as the point of balance in the first case varies according to the substance of the rights concerned, so by the same token will it vary in the latter case. In neither case is a general and universal standard to be established. This question arose in connection with the relationship between the freedom of expression and the integrity of the judicial process. The argument that the proper point of balance between the two interests coincided with the point where the interests of free expression and public security were properly balanced against each other (i. e., a situation of "clear and present danger"), was rejected by the Supreme Court, Sussman J. holding as follows:

"I am of the opinion that this test is inappropriate in the instant case. There the question was the restriction of a right in deference to the public need, here the issue is the reconciliation with each other of two worthy but conflicting public interests. An encroachment upon the freedom of speech because of the danger of a breach of the public peace - a sore evil, for the prevention of which the freedom of speech should be curtailed only as far as essential - is not the same as delimiting that freedom for the sake of doing justice. For the public interest in the doing of justice is no less a value than the public interest in the maintenance of free speech, and in balancing the two against each other it would be as wrong to neglect the one as it would the other." (Cr.A. 126/62 [5], at 177).

Accordingly, we held that

"The Supreme Court was not prepared to follow the American case law, nor to adopt the test of a clear and imminent danger. It was also not ready to adhere to the 'probability' test laid down by the Supreme Court in the Kol Haam case (H.C. 73/53 [3], 87). In rejecting these tests Sussman J. noted that 'the doing of justice is of no less importance than the freedom of expression...' In place of these tests the Supreme Court established another, putting the point of balance elsewhere on the spectrum of possibilities, namely, the test of a 'reasonable possibility' of a forbidden influence." (Cr.A. 696/81 [6], at 575).

8. In the petition before us no question of the freedom of movement or of the integrity of the judicial process was at stake. The consideration by which the District Commander was guided was "a serious apprehension of a grave threat to the public order and safety." The issue was deliberated by this Court in H. C. 148/ 79 [1], where it was held that the right of assembly, procession and demonstration was not an absolute but a relative one, which could be restricted because of considerations of public safety. In the above case danger to the public safety was feared because of violent behaviour on the part of the demonstrators themselves, whereas in the case before us the apprehension was linked to possible violence coming from a hostile crowd. The Police Ordinance (New Version), 1971, provides for denial or restriction of the right of demonstration and procession on grounds of public security (sec. 84). Hence, if the risk of harm to life or body threatened by a hostile crowd is a matter of certainty, there is no doubt that the right of demonstration and procession must bow to these individual and public interests. However, does the occurrence of the harm have to be an absolute certainty for the instant purpose? To answer, it is necessary to establish a standard for gauging the likelihood that a disturbance of the public security as a result of the reaction of a hostile crowd to the demonstrators will erupt. What is the appropriate point of balance?

The Freedom of Demonstration and Procession and the need for Public Security in the Face of a Hostile Crowd.

9. This question requires us to analyze the different considerations that have to be taken into account. One is that a situation should not be allowed to arise in which hostile bystanders will be able to prevent people from demonstrating. It was so held by the U.S. Supreme Court in Bachellar v. Maryland (1970) [27], at 567:

" 'The public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers'... or simply because bystanders object to peaceful and orderly demonstrations."

A person's freedom is not to be infringed merely because of violent objection to its exercise (see Watson v. City of Memphis, Tenn. (1963) [28]). It is the task of the police, in this situation, to keep the crowd from disturbing demonstrators, and not to prevent the demonstrators from exercising their right (Cr.A. 100/51 [7], at 280; see also E. C. S. Wade, "The Law of Public Meeting," 2 Modern L. Rev. (1938), 177). This was clearly stated by the court in R. v. Londonderry (1891) [25] as follows (at 449):

"If danger arises from the exercise of lawful rights resulting in the breach of the peace, the remedy is the presence of sufficient force to prevent the result, not the legal condemnation of those who exercise those rights."

Showing deference to crowd hostility is like entrusting the key to exercise of the right of demonstration and procession to those who oppose it. This has to be avoided and the mob is not to be given a power of veto, nor violence a reward. The danger of such deference is noted by Kalvin:

"If the police can silence the speaker, the law in effect acknowledges a veto power in hecklers who can, by being hostile enough, get the law to silence any speaker of whom they do not approve" (Kalvin, The Negro and the First Amendment (1965) 140).

Indeed, we should be careful not to convert the mob's power of veto into a constitutional principle that would permit denial of the right of demonstration and procession. "Every act done outside the framework of law and calculated to prejudice another's freedom of expression - an act of violence all the more so - strikes at the very heart of democracy" (Agranat J., in Cr.A. 255/68 [8], at 435). The heart of democracy has to be protected by all the means at democracy's disposal.

10. At the other end of the scale is the consideration that a hostile crowd may be dangerous, and that rioting may cause bodily injury and loss of life. The supreme value we attach to human life compels us to reckon with its endangerment, from whatever quarter the threat may come. The freedom of demonstration must not be permitted to degenerate into a blood-bath. Moreover, a violent disruption of the public order may unravel the social fabric and the very institutions of democratic government. It is not unknown for the enemies of democracy to have availed themselves of its legal processes in order to bring about its downfall. "More than once in the history of democratic countries has it happened that an orderly democratic administration was overcome by fascist and totalitarian movements of one kind or another, these making use of all the rights of free speech, freedom of association and of a free press, accorded them by the state, in order to conduct their destructive activities. Those who saw this happen at the time of the Weimar Republic will not forget the lesson" (Witkon J. , in H.C. 253/ 64 [9], at 679; see also E.A. 1/65 [10]), nor, indeed, will those who lived through the events of the Third Reich (see Witkon's above-mentioned article, at p. 161). The freedom of procession must not be allowed to escort the state to the "abyss" (a phrase used by my learned brother, Levin J., in H.C. 243/82 [11], at 770).

11. These, then, are the two considerations to be taken into account and to be balanced against each other. Both are worthy of protection, but they cannot both be upheld at one and the same time. Mr. Justice Fortas depicted the situation thus:

"The Constitution seems to accommodate two conflicting values, each of which is fundamental; the need for freedom to speak freely, to protest effectively, to organize, and to demonstrate, and the necessity of maintaining order so that other people's rights and the peace and security of the State, will not be impaired" (A. Fortas, Concerning Dissent and Civil Disobedience (New York, 1968) 30).

The required balancing is to be done in the framework of the authority conferred on the District Police Commander, under the Police Ordinance (New Version), to safeguard the public security or the public order. It seems to me that the balancing is to be effected at two levels, both of which are tied to the District Commander's authority. The first level relates to the physical steps to be taken by the police in order to prevent a hostile crowd from harming participants in demonstrations and processions. At the second level, the concern is with the normative measures to be adopted by the police with respect to the grant or denial of permission for the holding of a demonstration and procession, having regard to the anticipated consequences of the physical measures the police will adopt. I shall deal with each of these levels in turn.

Balance Level One: Police Action to Prevent a Disturbance.

12. We have seen that our point of departure is the principle that an individual has a recognized right to take part in a demonstration or procession. Anyone threatening the exercise of this right and forcefully interfering with its enjoyment is acting unlawfully. There is a constitutional right to demonstrate and a constitutional duty to refrain from disturbing the demonstration by the use of threats and violence (see "Protecting Demonstrators from Hostile Audiences," 19 Kan. L. Rev. 524). Hence, the police must use all reasonable means at their disposal in order to prevent these threats and to protect the demonstrators from harm. This duty of protection is stated by Professor Chafee thus:

"The sound constitutional doctrine is that the public authorities have the obligation to provide police protection against threatened disorder at lawful public meetings in all reasonable circumstances" (Z. Chafee, Free Speech in the United States (New York, 1969) 245).

The initial police action should be directed not against the demonstrators , but those threatening them with acts of violence. In the words of U.S. Supreme Court Justice Roberts:

"Uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right" (Hague v. Committee for Industrial Organization (1939) [29], at 516).

This principle has been adopted in our law too. For instance, the Supreme Court has held as follows:

"The maintenance of order does not mean surrendering to those who threaten its disturbance, but the contrary: giving shelter and protection to the victims of such" (per Berinson J. in H.C. 166/71 [12], at 594; see also H.C. 230/73 [13]; H.C. 155/60 [14], at 1512).

In the same spirit it was held that "the response to the unlawful resort to violence must be firm initial police action and subsequent enforcement of the criminal law" (Landau J. in H.C. 531/77 [15], at 165). It is therefore the duty of the police to take all reasonable steps towards preventing any threats to, or disturbance of, the procession or demonstration (Cf. H.C. 222/68 [16], at 166). The enjoinder of the demonstration or the procession is to be imposed as the last, not the first step. Only after exhausting all the physical means at the disposal of the police, in whatever manner required to meet the anticipated situation, does the normative question of granting or withholding the licence have to be dealt with. If, in the name of preserving order, the police "ever can interfere with a lawful public speaker, they first must make all reasonable efforts to protect him" (Black J., in Feiner v. People of the State of New York, (1950) [30], at 326).

The reasonableness of the police measures will depend on the available forces, their skill and equipment, the size of the demonstrating as well as the bystanding public, and similar considerations. Also to be taken into account are all the other duties of the police (see H.C. 222/68, [15], at 167). Although extending proper protection to the demonstrators is a duty of the police, it is not their only duty, and they have to allocate their forces in a manner that will ensure reasonable discharge of all their duties (see Note, "Hostile Audience Confrontations: Police Conduct and First Amendment Rights," 5 Mich. L. Rev. (1976-77), 180)

Balance Level Two: Police Action to Prevent a Demonstration.

13. It is possible that the reasonable efforts made by the police to prevent interference with a demonstration will succeed in eliminating the danger threatened by a hostile crowd, but it may also happen that the danger remains. The police may not have sufficient forces available, or those available may not be adequately trained or equipped, or the surrounding physical circumstances may perhaps preclude effective control of the situation. For these and other reasons, a threat to public safety may persist even after the envisaged police action. In this predicament the second question poses itself, namely: does the risk of harm to body and life justify repression of the right of demonstration and procession? Should the police efforts be directed solely against the hostile crowd, or are there also circumstances which justify police action against the demonstrators themselves? Shall the procession march at any price? We have already discussed the relevant considerations at this level of inquiry, noting that here too a balance must be struck. An infringement of the right of demonstration and procession has to be justified when its exercise entails a risk of bodily injury and loss of life. A democratic society which is anxious to preserve human dignity, life and bodily integrity, which is concerned with maintaining democratic government procedures, must sometimes deny or curtail the freedom of expression and the freedom of demonstration and procession, even if the practical implication of so doing is to grant a hostile audience de facto veto power. In this connection Professor Barnum writes as follows:

"It is doubtful that constitutional policy can prevent a hostile audience from abridging the freedom of speech when public disorder is either so unexpected or so persistent that it threatens to overwhelm the law enforcement resources of the society... when violent clashes between opposing groups become a regular occurrence, the law enforcement capacity of the society may be worn so thin that general restrictions on the right to demonstrate will have to be imposed. Under these circumstances, the constitutional right of freedom of speech may have to be subordinated, at least temporarily, to the imperatives of law enforcement and the need to restore public order" (Barnum, supra, at 94).

But the real question that underlies this petition is this: what is the measure of likelihood of loss of life or bodily harm resulting from the holding of a demonstration that would justify the ultimate step of enjoining exercise of the stated right. This is a matter for prior and not retrospective assessment. The procession has yet to march, the demonstration yet to be held and the events yet to unfold. But the danger exists, the threat is there. By what standard shall the situation be gauged? As we have seen, certainty is by no means to be required. One does not await the patient's death before calling the doctor. What then is the requisite degree of likelihood - short of certainty - in this context? Does apprehension suffice? Is reasonable apprehension required, or perhaps a possibility, proximate or remote, suffices? Perhaps a substantial danger has to be shown, or shall the test be one of probability or of a clear and present danger? These and other tests we shall now examine in seeking the proper criterion to be applied when balancing the right of procession and demonstration against individual and public safety.

The Proper Standard: The "Probability" Test.

14. Determination of the proper standard was the central issue in the Kol Ha'am case ([3] 87). Charged with determining the "rational principle" by which to find the balance between free speech and the public security, the Court decided on "probability" of danger as the balancing formula or "test." This test will ensure that:

"On the one hand the viewpoints of others are not suppressed merely because they are opposed to those held by the people in authority and, on the other hand, that there is also attained the legislator's objective of preventing danger to the public peace" (ibid. at 888).

Justice Agranat arrived at this test on the basis of the fundamental perception of the State of Israel as a country built on democratic foundations, within which prior restraints on the freedom of expression ought not to be imposed save in situations where the occurrence of a harmful result is a "substantial probability." It seems to me that the stated test is appropriate also in the matter now before us. We might also therefore properly apply the "probability" test in construing the District Commander's authority under sections 83 and 84 of the Police Ordinance (New Version). This can be justified on four grounds: First, the issues in this case and in Kol Ha'am [3] are very closely related. In both cases the principle of free speech (in its wide sense) clashes with the public security interest, and the need arises for a standard by which to gauge the likelihood of harm occurring. The general considerations pertaining to the democratic nature of the state and the need to confine "preventive measures" to situations in which there is a substantial probability that danger will erupt, apply in both cases. Second, the decision in Kol Ha'am has come to be accepted by the courts as establishing a general guideline for the balancing of freedom of speech with public safety. The ruling in Kol Ha'am is not limited in application to the specific provision of the Press Ordinance in issue there, but "was formulated on a broad theoretical basis" (per Landau J. in H.C. 243/62 [2] at 2411).

The ruling in Kol Ha'am "has become a cornerstone in our legal edifice, and the principles embodied in it have been accepted by all and are beyond challenge today" (Levin J., in H.C. 243/82 [11], at 765). Our courts have in the past applied the stated test in all situations requiring a balance of freedom of speech with public safety (see e.g. H.C. 243/63 [2]; H.C. 807/78 [17] at 278; H.C. 148/79 [1]; H.C. 644/81 [18]; H.C. 243/82 [11]; see also P. Lahav, "Freedom of Expression in the Decisions of the Supreme Court, " 7 Mishpatim (1977) p. 375). It is fitting that we continue following this route, along which processions and demonstrations shall be free to march as long as there is no probability of prejudice to public security.

A third reason for following the Kol Ha'am guideline is that it puts us in the company of modern democratic states which also face similar predicaments and, despite differences in constitutional structure, arrive at solutions similar to our own (see D. G. Barnum, The Constitutional Status of Public Protest Activity in Britain and the United States (1977) Pub. L. 310). Thus, a similar approach is taken in the United States (see L. H. Tribe, American Constitutional Law (Mineola, New York)), and likewise in West Germany. The latter country's constitution ensures freedom of assembly, with provision made for lawful restriction of the same. A special law empowers the police to prohibit demonstrations, provided that the circumstances known at the time of the decision constitute "an immediate danger to public order or public security" (see Gesetz uber Versammlungen und Aufzuge (Versammlungsgesetz) of 24 July, [Dietel and Kintzel, Demonstrations und Versammlungsfreiheit (1935), 120]).

Fourth, the stated test strikes a proper balance among the various considerations which are competing for primacy. The test, on the one side, pays full regard to the need to ensure freedom of demonstration and procession, and also fully recognizes that only exceptional circumstances indicating a causal connection which is clear and manifest, justifies the infringement of this freedom. On the other side, the test pays full regard to the need for protecting life and limb, acknowledging that the maintenance of democratic administrative procedures and the public safety justify infringement of the freedom of demonstration and procession. It is accordingly a rational and principled test, and provides a proper and flexible guideline for the resolution of difficult and exceptional situations.

15. Already in Kol Ha'am Agranat J. pointed out ([3] at p. 888) that the "probability" test was "not a precise formula that could be adapted easily or certainly to every single case." The use of kindred expressions, such as "a proximate possibility" (Agranat J., ibid.), "a tangible danger" (Sa'ar decision [1]), "a natural consequence" (see Beatty v. Gillibanks [24]), throw little additional light on the content of this elusive test. It may be noted that in the United States the standard of a "clear and a present danger" is sometimes applied in the present context. This test was enunciated by Justice Holmes in Schenck v. United States [31]:

"The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent" (at p. 52).

It was further shaped by Justice Brandeis, with the concurrence of Justice Holmes, in Whitney v. People of the State of California [32]:

"... no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose the evil by the process of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression" (at p. 377).

Some reservations about the test were expressed in later decisions (see Strong, "Fifty Years of 'CIear and Present Danger': From Schenck to Brandenbrug and Beyond," Free Speech and Association (ed. Kurland, 1975) 302; Dennis v. United States [33]).

Justice Agranat himself rejected this test in Kol Ha'am ([3] at 891), mainly because the element of immediacy demands proximity in time. In later Supreme Court decisions no clear distinction was maintained between the "probability" test enunciated by Justice Agranat and the "clear and present danger" test rejected by him, the two being treated as identical (see e.g. Sussman J. in Cr.A. 126/62 [5] at 171; Cohn J. in E.A. 1/61 [10] and Bach J. in H.C. 243/82 [11], at 779). Indeed, there appears to be no great difference between these two tests (see Lahav's above-mentioned article at 420), and some regard them as being but different versions of one and the same test (see T. L. Emerson, The System of Freedom of Expression (N.Y.. 1970) 113). In the Dennis case [33], in which the American Supreme Court expressed reservations concerning the "clear and present danger" test, Jackson J. nevertheless felt that there was room for its continued use in procession and demonstration cases (ibid. at 568).

16. The test of "probability" does not necessitate a clear or immediate certainty, but neither will a theoretical possibility suffice. What is required is "substantial" evidence (D. Libai, "The Right to Assemble and Demonstrate in Israel, "Iyunei Mishpat. Vol. B (1972/73) 54, 65). The estimation must be based on known facts, including past experience. Conjectures, speculations and apprehensions are not enough, nor is a plea of a substantial possibility of harm to public security. The actual circumstances must point to a substantial likelihood of danger, leaving a possibility of "setting off" the degree of likelihood against the measure of gravity of the apprehended harm. In this respect one should not seek to be wise after the event and judge according to ex post facto knowledge of the facts and events, but rather according to the reality confronting the authority at the time of making its decision. Nevertheless, not to be wise after the event is no justification for folly before the event. Since we are concerned here with the evaluation of a future happening, relevance attaches to the circumstances surrounding the holding of the demonstration and procession, to the message it is intended to convey, the manner of its conveyance, and to the possible reaction of the crowd. A demonstration is not something detached from reality, it is rather a phenomenon of life taking place at a particular place and time. It is true that the ideology which the demonstration or procession seeks to express is not per se of concern to the authorities "the police are not in charge of ideology" (H.C. 148/79 (1) at 179). But how the message is conveyed, the possibilities of its influencing the spectators and the measure of hostility it is calculated to arouse in the crowd are all considerations to be duly weighed, for they have a direct bearing on the threat to public-security. Accordingly, the views of the demonstrators are not in themselves of interest to the authorities, but are important only for estimating the probability of the danger erupting.

Freedom of expression or demonstration does not mean freedom merely to say only what others want to hear. Freedom of procession is not the preserve of flower-garlanded children marching along a city street, but it also confers the right on people who do not hold the accepted views to march, and whose very marching arouses irritation and anger (see Terminiello v. City of Chicago (1949) [34], at 4). The right is available to marchers in both categories, and is not tied to the measure of approval or anger aroused. Yet importance does attach to such responses when one is evaluating the likelihood that the procession and demonstration will result in a breach of the public security.

17. If, despite the adoption of all reasonable police measures, there is still a "probability" of harm to public security, the District Commander has the authority to forbid the demonstration or procession. It is to be noted, however, that the enjoinder of a demonstration or procession is a measure of last resort, to be adopted in the face of anticipated danger. Before its adoption, the use of less drastic measures has to be considered. These may enable the demonstration or procession to be held, even if not as originally planned but with changes as regards its place, time and scope. In this manner it will be possible to maintain, if only in limited measure, the freedom of demonstration and procession, while at the same time protecting the public security interest. Indeed, when the lawful denial or curtailment of a basic human right is at stake, it is incumbent on the Executive to choose - from the range of means available for the protection of public security - such restrictive measures that least impair the basic right. Among the drastic measures, that which is the least drastic should be chosen. (See note: "Less Drastic Means and the First Amendment, "78 Yale L.J. (1969) 464). It is possible, of course, that any measure less than a total enjoinder may be ineffective in the face of a probable threat to public security. In such event there is no alternative but to adopt this stringent measure. But where other means may prove effective, they must be employed.

Judicial Review

18. I have so far confined myself to the normative framework within which the District Commander's discretion may be exercised. It is now necessary to examine the normative discretionary framework for the exercise of judicial review. This framework is not peculiar to the law of demonstration and procession, but is rather the regular framework set by the doctrine of judicial review. This doctrine holds that "the court, when exercising judicial review, does not assume the identity of the functionary the lawfulness of whose conduct is being challenged, but each retains its own identity, and the court examines whether the functionary acted as one in his position should properly have done." (H.C. 329/81 [19], at 334). Accordingly, the court will not assume the role of a super-police commander, but neither will it put the discretion of the police above all else. The court scrutinizes administrative discretion according to criteria of fairness, reasonableness, bias, discrimination, relevancy of considerations and the like. Thus we have ruled as follows in the context of the Police Commander's discretion under sections 83 and 84 of the Police Ordinance (New Version): "If the second respondent's considerations are affected by lack of good faith, by arbitrariness, discrimination or unreasonableness - we shall not hesitate to intervene" (H.C. 148/79 [1], at 178).

19. In exercising judicial review, the court will examine the lawfulness of the police commander's decision in relation to the existence of a "probable" danger to the public security (see Kol Ha'am [3] at 823). The court will ask itself - as it has in other similar cases (cf. H.C. 389/80 [20]; H.C. 1/81 [21]; H.C. 243/82 [11] - whether the facts as known to the District Police Commander, would entitle a reasonable police commander to infer the existence of a "probable danger" to public security. This examination is no different from any other made by the court using the test of reasonableness. In this way, for instance in H.C. 644/81 [18], this court examined whether various articles published in a daily newspaper posed a probable danger to public security. A similar examination was made by this court in H.C. 243/82 [11], in the context of prohibiting the telecasting of certain material. The same test has to be used when ascertaining the "probability" of harm to public security in the context of the police commander's exercise of his discretion.

From the General to the Specific

20. The District Police Commander concluded, in the matter before us, that there was "serious apprehension over a grave threat to public order and security." This threat, in his opinion, would continue to exist even after allocation of the forces necessary for safeguarding the demonstration and procession.

We enquired as to the grounds for such concern, and were informed that it resulted from an evaluation of the events that had transpired on the occasion of the first demonstration and procession, held a month earlier. Here the District Commander erred, in our opinion. Apprehension and estimations are not enough - unless they are founded on facts and point to a "probability." In the matter before us the only facts adduced were the events of the past. These create an apprehension, but no more, and do not establish any probability. Upon a reasonable evaluation made with prudent foresight, the above facts cannot be said to establish any substantial likelihood of danger, and do not go beyond mere conjecture and speculation. These do not suffice. A reasonable police commander could not have inferred, on the factual constellation known to him, that there existed any probability or substantial likelihood of harm to public security. Once we have reached this conclusion there is no longer need for us to consider whether the police commander had properly discharged his duty when he offered to licence a meeting at the Rose Garden, opposite the Prime Minister's office. That inquiry would only have been necessary had we thought that holding the procession along the original route entailed a probability of harm to public security. In any event, the need to consider alternative routes of procession falls away, once we have concluded that the planned procession poses no danger warranting its enjoinder. Yet I must add with regret that a number of suggestions which we made in the course of the hearing - relating to alternative routes promising a more effective deployment of the public forces and thus reducing the fear of possible violence on the part of the crowd - were not acceptable to the Respondent, despite the willingness of the Petitioners to accept them. It is difficult to fathom the Respondent's rejection of these alternative proposals, which could have reduced the risk of possible danger significantly, even on the premises and assumptions of the police themselves.

For the above reasons we have decided to make the order absolute in the sense that the Respondent is to give the Petitioners a licence to hold a demonstration as requested by them.

Judgment given on May 13, 1984.

Full opinion:

Levi v. Southern District Police Commander.pdf

Leon v. Acting District Commissioner of Tel-Aviv (Yehoshua Gobernik)

Case/docket number:

HCJ 5/48

Date Decided:

Tuesday, October 19, 1948

Decision Type:

Original

Topics:

State of Emergency and National Security

Abstract:

The Law and Administration Ordinance 1948, provides that the law which existed in Palestine on May 14, 1948, "shall remain in force... subject to such modifications as may result from the establishment of the State and its authorities".

The Acting District Commissioner of Tel Aviv, as the competent authority under the Defence Regulations of 1939, made pursuant to the (English) Emergency Powers (Defence) Act 1939, requisitioned a flat situated at no. 3, Chen Boulevard, Tel Aviv, by order dated 6 September 1948. The requisition was for the benefit of the Attorney-General who, previously to his then recent appointment to that office, had resided in Haifa, but who upon such appointment found it necessary to reside in Tel Aviv, where he had been unable to find a suitable flat.

Objections to the order were made by the landlord of the flat and an incoming tenant, and were based mainly on the grounds that (a) the Regulations under which the order was made had never been in force in Palestine, or if ever in force, that their validity had expired upon the establishment of the State of Israel, (b) the competent authority was never legally appointed as such; and that in any event he had exceeded his authority and had acted capriciously, in bad faith and without due regard to the principles of reason and justice.

Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

(1) The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

(2) The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

Voting Justices:

Smoira, Moshe

Primary Author

majority opinion

Olshan, Yitzhak

majority opinion

Assaf, SImha

majority opinion

Full text of the opinion:

H.C.J 5/48

LEON & OTHERS

ACTING DISTRICT COMMISSIONER OF TEL AVIV (YEHOSHUA GUBERNIK)

In the Supreme Court sitting as the High Court of Justice

[October 19, 1948]

Before: Smoira P., Olshan. J., and Assaf J.

Mandatory legislation - Enforceability in Israel - Validity of Mandatory Emergency and Defence Regulations - Requisition of flat - Interference by High Court in exercise of discretion by Competent Authority.

Held, discharging an order nisi previously granted by the court calling upon the competent authority to show cause why the order of requisition should not be set aside,

(l) The Mandatory powers of legislation for Palestine were unrestricted, and unless contrary to the terms of the Mandate such legislation is enforceable in Israel, the "modifications" referred to in the Law and Administration Ordinance 1948 being confined to technical and not to basic modifications.

(2) The regulations were valid, the competent authority had been validly appointed as such, and had acted fairly and reasonably in the circumstances.

General observations on when the High Court will interfere with the exercise of a discretion vested in a Government official.

Palestine cases referred to :

(1) H.C. 18/47 Dinah Kazak v. The District Commissioner, Haifa District: (1947), 14 P.L.R. 87.

(2) H.C. 118/44 Zeev Poms & others v. The District Commissioner, Lydda District, & Mordechai Gileady: (1944). 11 P.L.R. 574.

English case referred to:

(3) Carltona Ltd. v. Commissioners of Works & others (1943) 2 All E.R. 560.

R. Nohimovsky for the Petitioners.

H. H. Cohn, State Attorney, and J. Kokia, Deputy State Attorney, for the Respondent.

SMOIRA P. giving the judgment of the court. On September 23, 1948, after Mr. Nohimovsky had submitted his arguments on behalf of Mr. Leon and Mr. Kleiman, an order nisi was issued by this court against the respondent, Mr. Yehoshua Gubernik, the Acting District Commissioner of Tel Aviv (Urban Area), calling upon him to show cause why an Order of Requisition issued by him on September 6, 1948, should not be set aside. In terms of that order, the respondent acquired possession of the flat of Mr. Leon on the second storey of the building situated at No. 2, Chen Boulevard, Tel Aviv, as from the date of its vacation. The flat in question was requisitioned for the benefit of Mr. Ya'acov Shapira, the Attorney General of Israel.

When the parties appeared before us on the return to the order nisi, Mr. Nohimovsky gave notice of an amendment of the Petition since it appeared that his Power of Attorney had been signed by Mr. Kleiman, the owner of the building, alone. He accordingly requested us to delete the name of the first petitioner, Mr. Leon, the tenant of the flat. On the other hand Mr. Nohimovsky asked us to join as a petitioner Dr. Boris Tamshas who, in terms of an agreement of September 8, 1948 with the second petitioner, the owner of the building, had acquired the right to enter the flat after it had been vacated by Mr. Leon.

The State Attorney, Mr. Haim Cohn, who appeared on behalf of the respondent, did not oppose the amendment sought, and it was accordingly decided by the court to delete the name of Mr. Leon as a petitioner, and to join Dr. Tamshas in that capacity.

The result is that on the return there appeared before the court Mr. Kleiman, the owner of the building, and Dr. Tamshas, who wishes to enter the flat in question as a tenant, both represented by Mr. Nohimovsky.

Before entering upon the merits of the case we must deal with the first submission of counsel for the respondent who argued that the court should dismiss the petition in limine. His contention is that the petitioners have not come into court with clean hands in that Mr. Nohimovsky lodged a Power of Attorney purporting to be signed by Mr. Leon and Mr. Kleiman while in fact it was signed by Mr. Kleiman alone. It follows that the petition contains declarations in the name of Mr. Leon which he never made; and since Mr. Kleiman speaks in his affidavit of the "contentions of the petitioners" this declaration is incorrect, since Mr. Leon does not appear as a petitioner nor does he submit any contentions. According to the Advocates Ordinance, the argument proceeds, an advocate is responsible for the signature of his client. He who comes to this court with unclean hands, Counsel submits, cannot receive any relief whatsoever.

It is indeed an important rule that this court will not grant relief to a petitioner who does not approach it with clean hands but we do not think that the rule applies to the present case. True, it is the duty of an advocate to ensure that a Power of Attorney is signed by all those in whose name it purports to be given and for whom he acts. In the present case, however, we assume that the omission was due rather to carelessness and haste than to an intention to mislead, and we have decided therefore to deal with the application on its merits.

While mentioning the duties of advocates we also wish to add that it is the duty of an advocate to set out in his petition the main points of his -argument. An advocate, therefore, who wishes to submit in a petition of this kind that the Order of Requisition has no legal foundation, since the law upon which it purports to be based has been repealed, does not discharge this duty simply by alleging that "the Order of Requisition is illegal, has no force and is of no effect whatsoever". The petition must be framed in such a way as to inform the respondent of the case he has to meet.

The law which requires a reply to an order nisi demands that the Petition be so clear as to leave no room for speculation. The law is directed to every citizen whether he represented by counsel - who may have a genius for guessing - or whether he appears without counsel. The submissions as framed in the petition in this case do not disclose the ground upon which it is said that the Order of Requisition is illegal. The opinion of the petitioner that the requisition is illegal may be inferred by the respondent from the very fact that an application has been brought to this court. The ground for that opinion, however, which was stressed in the petitioner's argument after the respondent had replied, could not have been discovered by the respondent in the petition. This court is not an arena for a duel of surprises between litigants but a forum for the basic clarification of disputes between parties. Such clarification after proper preparation by the parties is only possible if the submissions are properly defined and do not hide more than they disclose.

I pass now to the merits of the case. The full text of the Order of Requisition of September 6, 1948, with which we are concerned, is as follows: -

"State of Israel

Provisional Government.

Offices of the Commissioner

(Urban Area)

Tel Aviv.

File No. 1/7/SK.

Mr. Yuval Leon,

2, Chen Boulevard,

Tel-Aviv. (The tenant)

Mr. Kleiman,

2, Chen Boulevard,

Tel-Aviv.

ORDER OF REQUISITION

Whereas it appears to me, Yehoshua Gubernik, Competent Authority, to be necessary and expedient so to do in the interests of the public safety, the defence of the State, the maintenance of public order and the maintenance of supplies and services essential to the life of the community:

2. I therefore inform you herewith that pursuant to Regulation No. 48 (I) of the Defence Regulations, 1939, (Amendrment No. 2 of 1945),1) I hereby take possession as from the date upon which it will be vacated of the property described below:

Description of Property

Flat occupied by Mr. Yuval Leon on the second storey of the building situate at No. 2 Chen Boulevard, Tel Aviv.

September 6, 1948

Y. Gubernik

Competent Authority."

Copy to Chairman

Central Housing Board,

District Engineer's Department,

Tel Aviv,

Mr. Ya'acov Schapira.

And these are the main submissions of counsel for the petitioners:

(a) The Defence Regulations of 1939 have never been in force in Palestine and, in any event, have not been in force in Israel since the establishment of the State. These regulations derive their validity from an English statute, namely, The Emergency Powers (Defence) Act, 1939, and it was never legally possible to apply this statute to Palestine. If it has ever been valid, its validity expired with the establishment of the State of Israel.

(b) Even if we assume that the Defence Regulations of 1939 are still in force, regulation 481) - upon which the Order of Requisition is based -has in any case been repealed by regulation 114 of the Defence (Emergency) Regulations, 19451, and for this reason too the Order of Requisition has no legal foundation.

(c) Even if we assume that regulation 48 is still in force, the respondent was never legally appointed as a Competent Authority for the purposes of that regulation.

(d) The respondent abused his office in that he exceeded his authority, infringed the rights of the petitioners, and issued the Requisition Order, not in good faith but capriciously and without paying due regard to the principles of reason and justice.

It should be pointed out that counsel for the petitioners did not raise the first two submissions set out above in his argument before us on the date of the issue of the order nisi, but then confined himself to the third and fourth submissions alone. It is no wonder, therefore, that counsel for the respondent dealt in his reply with the two last-mentioned points only. He contended that Mr. Gubernik had been lawfully appointed as a Competent Authority for the purposes of regulation 48, which is still in force, and had issued the Order of Requisition in good faith and in the reasonable exercise of his discretion. He further submitted that the question whether the requisition was necessary for the maintenance of services essential to the community was one for the discretion of the Competent Authority with which this court would not interfere.

In his detailed argument in support of his first submission. counsel for the petitioners contended that the Defence Regulations of 1939 have been of no effect since May 14, 1948, the date of the establishment of the State of Israel. He contends further that these Regulations were made by the High Commissioner for Palestine on the basis of the Emergency Powers (Defence) Act, 1939, and if there is no longer any legal basis for this English statute in Israel then the foundation of the Defence Regulations of 1939 also falls away.

Counsel for the petitioners bases this argument upon section 11 of the Israel Law and Administration Ordinance, 1948, which provides: -

"The law which existed in Palestine on May 14th,1948, shall remain in force, insofar as there is nothing therein repugnant to this Ordinance or to the other laws which may be enacted by or on behalf of the Provisional Council of State, and subject to such modifications as may result from the establishment of the State and its authorities."

His argument is twofold. Firstly, he contends that the words "The law" at the beginning of section 11 do not include a well-known series of statutes which the King of England - and through him the High Commissioner for Palestine - legislated for Palestine, purporting to exercise powers which were at no time his. Secondly, he submits that such statutes have in any case been repealed by the concluding words of the section, namely, "and subject to such modifications as may result from the establishment of the State and its authorities". Counsel wishes us to distinguish between two classes of Statutes and Orders in Council: those which were enacted specifically on the basis of the Mandate or with special reference to Palestine, and those which were enacted by the English legislature (as distinct from the Palestine legislature) or by the King and which have no connection with the Mandate or special reference to Palestine but which were enacted solely under the powers conferred by the Foreign Jurisdiction Act, 18901). The first class mentioned, the argument proceeds, includes The Palestine Order in Council, 1922 (Drayton, Laws of Palestine, Vol. III, p. 2569), The Palestinian Citizenship Order, 1925 (ibid. p. 2640), The Palestine Currency Order, 1927 (ibid. p. 2615) and The Palestine (Western or Wailing Wall) Order in Council, 1931 (ibid. p. 2635). To the second class, counsel contends, belongs the Order in Council of 1939 which applied the Emergency Powers (Defence) Act, 1939, to various parts of the British Empire, including Palestine. This statute, which was passed by the British Parliament, has no connection with the Mandate and no special reference to Palestine, and the relevant Order in Council was made under section 4 of the Statute and under the powers conferred by the Foreign Jurisdiction Act. Since, in any event, this Statute ceased to be in force in Israel after the establishment of the State, the Defence Regulations of 1939 also ceased to be valid. The same applies to the Supplies and Services (Transitional Powers) Act, 1945 (Palestine Gazette, 1946, Supp. 2, p. 229), and the Order in Council of January 10, 1946, which followed in its wake (ibid. p. 234), and to the Emergency Laws (Transitional Provisions) Act, 1946 (ibid. p. 573), and the relevant Order in Council of February 19, 1946 (ibid. p. 591). Counsel for the petitioners submitted that while English statutes which were applied to this country by Orders in Council and which belong to the first class mentioned are still in force, statutes which belong to the second class have ceased to be valid because of the modifications which, as he argues, have resulted from the "establishment of the State and its authorities". When asked to express his opinion on the validity, for example, of the English Copyright Act of 1911 (Drayton, ibid. p. 2475), which was introduced into Palestine by the Order in Council of 1924 (ibid. p. 2499), Counsel at first replied that that Statute was still in force. Later, however, he retracted this opinion and submitted that the Act no longer applied since it is not mentioned in the Palestine Order in Council of 1922. and the Order relating to the Copyright Act does not refer to the Mandate but speaks only of those countries which are under the King's protection. Palestine, he argues, was never under the King's protection and the Order relating to Copyright flows in fact from the powers conferred by the Foreign Jurisdiction Act, 1890.

Counsel for the petitioners further submits that the English statutes referred to which empowered the thigh Commissioner (by Orders in Council) to make Defence and Emergency Regulations possess a dictatorial character - even an anti-Jewish character - to the extent that they were directed towards destroying the National Home and the development of the country by the Jews2), and towards stemming the flow of Jewish immigration into the country. Since the State of Israel is a democratic state and a Jewish state there have come about modifications within the meaning of the words "and subject to such modifications as may result from the establishment of the State and its authorities" - modifications, he submits, which make it impossible for these Statutes to be given validity in Israel.

In summing up his first submission Mr. Nohimovsky asked the court to decide whether the Defence Regulations of 1939 are still in force seeing that their very foundation, namely, the validity in Israel of the English Statutes upon which they are based, has ceased to exist. These are revolutionary times and in the Opinion of counsel it is for the court to accelerate the process of releasing the State of Israel from the binding force of that class of English Statutes to which he referred.

Mr. Nohimovsky asked us not to leave this fundamental question open and decide the case on some other point. We are also of opinion that it is desirable for us to deal with this question, since it is indeed the duty of this court to give its reply to the view - which appears to be widespread - that the Supreme Court is competent to decide upon the validity of certain well known Statutes because they are not in accord with the spirit of the times. There are undoubtedly certain laws objectionable to the Jewish community because of the way in which they were employed in the time of the Mandate. It is true, moreover, that the abuse of these laws was fought both inside and outside the courts, and it was even argued that these laws were invalid because they were inconsistent with both the language and the spirit of the Mandate. It would be wise, therefore, to deal at some length with this problem which has already been raised a number of times since the establishment of the State and will undoubtedly come before us again.

The basis of the reply to this question is in our opinion section 11 of the Law and Administration Ordinance, 1948, the full text of which has already been cited. That section lays down a clear and important rule, namely, that the law which existed in Palestine on May 14, 1948, shall remain in force. The exceptions laid down in section 11 are as follows:

(1) Laws which are repugnant to the Law and Administration Ordinance itself shall not remain in force.

(2) Laws which are repugnant to those which may be enacted by or on behalf of the Provisional Council of State shall not remain in force.

(3) Previously existing laws shall remain in force subject to such modifications us may result from the establishment of the State and its authorities.

This analysis of section 11 requires that we first interpret the rule before we deal with the exceptions, and the question that arises in the present case is whether the Defence Regulations of 1939 were a part of "the law which existed in Palestine on May 14th 1948". If the reply to this question is in the negative there will be no necessity to consider the exceptions laid down in section 11. If, however, the reply is in the affirmative it will be necessary to determine whether the validity of the regulations has ceased in accordance with one of the exceptions referred to.

One of the Ordinances which is undoubtedly still in force is the Interpretation Ordinance of 1945, and the words "The law which existed" in section 11 of the Law and Administration Ordinance must therefore be interpreted in accordance therewith. The Interpretation Ordinance contains a definition of the word "Law" which includes, inter alia, "such Acts or parts of Acts. and such Orders) by His Majesty in Council or parts of such Orders, whether passed or made before or after the commencement of this Ordinance, as are now, or have heretofore been, or may hereafter be, in force in Palestine".

We are to assume, therefore, that the words "The law" in section 11 include Statutes of the Parliament of England which were applied to Palestine by the Order in Council no less than Ordinances made by the High Commissioner for Palestine. Nevertheless, we are not unmindful of the submission of Mr. Nahimovsky that such Statutes include some which were inconsistent with the Mandate and which were therefore invalid. The courts of Palestine during the Mandate were not prepared to accept this submission on the ground that the Mandate was not part of the law of the land, save in so far as it had been introduced by an Order in Council. This court inclines to a different opinion and is prepared to consider whether a law passed in Palestine during the Mandate contradicts the terms of the Mandate. We are unable, however, to accept the contention of counsel for the petitioners that every Imperial Statute which has no direct connection with the Mandate or no special reference to Palestine and which was applied to Palestine by Order in Council is wholly invalid. We find no such limitation in any provision of the Mandate. On the contrary, the first provision of the Mandate lays down that "The Mandatory shall have full powers of legislation and of administration, save as they may be limited by the terms of this mandate". The distinction drawn by counsel for the petitioners between Imperial Statutes based upon the Mandate or having special reference to Palestine and other Statutes applied to Palestine finds no support in the text of the Mandate or in the basic Constitution of Palestine, namely, the Palestine Order in Council, 1922, or in section 11 of the Law and Administration Ordinance of 1948. Such a distinction, moreover, would lead to absurd results as, for example, the invalidity in Israel of the Copyright Act since the Order in Council which applied that Act to Palestine is not expressly based upon the Mandate nor does the Statute contain matters applying specifically to Palestine. The simple answer to counsel's argument is that article I of the Mandate, as I have mentioned, confers full legislative powers and there was no need to make special reference to the Mandate in applying a particular Statute. By virtue of article I of the Mandate laws were made for Palestine in two ways. The usual method was by Ordinances issued by the High Commissioner in Council, and the second method was by the application of an English Statute to Palestine by Order in Council. There is no basis in constitutional law for the argument that the latter method - which we shall call the Imperial method - was any less effective than the former. It follows, therefore, that even without relying upon the Interpretation Ordinance of 1945 we must include Statutes within the expression "The law" in the first part of section 11 of the Law and Administration Ordinance, 1948.

It would appear that all these rationalistic arguments directed towards distinguishing between different classes of legislation are in fact based more upon emotion than upon reason - indeed, counsel was even prepared to sacrifice so innocent a statute as the Copyright Act for the sake of consistency. The real attack, however, is directed against the Defence Regulations and the English Statute from which they derive.

We do not think that the legislature of a democratic state is precluded from passing a law which enables the making of Emergency Regulations. Laws such as these are to be found in the most democratic of Constitutions as, for example, the Constitution of the Weimar Republic of Germany. The example closest to as, however, is to be found in our own Ordinance, the Law and Administration Ordinance, 1948, which includes in section 9 a specific provision relating to Emergency Regulations1). The governing consideration here is not the existence of Emergency Regulations but the manner in which they are employed. There is no room today for the submission that Emergency Regulations made in the time of the Mandate are no longer in force because they were then used for anti-Jewish purposes.

Let us take, for example, from the period of the Mandate, the Lands (Acquisition for Public Purposes) Ordinance, 1943. There is no doubt that according to the test of counsel for the petitioners that Ordinance is still in force. let us assume - purely for the sake of clarifying the matter - that the mandatory authorities used this Ordinance capriciously for the expropriation of the property of Jews alone. The argument is inconceivable that this Ordinance - which, in its terms, contains no discrimination whatsoever - is invalid because it was employed capriciously.

This argument is untenable for yet another reason. It cannot be said - as is often suggested - that the purpose of all these Defence Regulations was dictatorial repression and so forth. The English who, within their own land, are certainly lovers of freedom and jealously guard the rights of the citizen - found it proper to make Emergency Regulations similar to those which exist here and which include, inter alia, provisions for the expropriation of the property of the individual in the interests of the public.

Having reached the conclusion that the Defence Regulations of 1939 made under the Emergency Powers (Defence) Act, 1939 are included within the expression "The law" at the beginning of section 11, we must examine whether they fall within one of the three exceptions set forth above in our analysis of that section. Counsel for the petitioners did not argue that these Regulations are repugnant to the Law and Administration Ordinance or to any Law enacted by the Provisional Council of State. He did contend, however, with great emphasis, that we should declare the Regulations invalid by virtue of the words "subject to such modifications as may result from the establishment of the State and its authorities". He submitted that these words empower the court to declare a particular law invalid provided only that this course can be justified by some change brought about by the establishment of the State.

This argument is quite unreasonable. It would require that this court first determine that the establishment of the State has brought about some change and the nature of the change; and then consider whether this change requires that a particular law be invalidated. All this would then have to be embodied in a judgment, declaring that the law in question is no longer in force. It is precisely this, however, which is the duty of the legislature; and it is not to be assumed for a moment that the legislature of Israel, in using the words quoted, intended to delegate part of its duties to the courts.

The legislature would not have concealed within the words "subject to such modifications as may result from the establishment of the State and its authorities" a matter of such importance as the invalidation of a whole series of Defence and Emergency Regulations. In section 13 of the Ordinance the legislature expressly repealed the provisions of the White Paper of 1939, namely, sections 13 to 15 of the Immigration Ordinance, 1941, and Regulations 102 to 107 of the Defence (Emergency) Regulations, 1945, and also the Land Transfer Regulations, 1940. Had it been of opinion that it was also necessary to repeal the Defence Regulations of 1939 or the Defence (Emergency) Regulations of 1945, either wholly or in part, it could have followed the simple course of repealing them expressly as it did in section 13 of the Ordinance in the case of the Regulations there mentioned. But it did not do this. If we read Chapter Four of the Law and Administration Ordinance in its entirety we shall see that the words "subject to such modifications as may result from the establishment of the State and its authorities" were intended to refer to technical modifications without which the law in question could not be applied after the establishment of the State and its new authorities. The word "modifications" was intended by the legislature to refer to such modifications as would necessarily flow from the very fact of the establishment of the State and its authorities. It was not intended to refer to modifications which demand special consideration such as the repeal of one of a series of existing laws. For example, according to an Order by the Director of the Department of Immigration in regard to Places of Entry to Palestine, 1943 (Palestine Gazette, Supplement 2, No. 1249, p. 125), as amended, Allenby Bridge is one of the lawful places of entry into Palestine. Although in terms of section 15(a) of the Law and Administration Ordinance, 1948, the word "Israel" is to be substituted for the word "Palestine" wherever it appears in any law, it is clear without any necessity for special consideration that the establishment of the State and its authorities necessitates the deletion of Allenby Bridge3) from the Order referred to.

This restrictive interpretation of the words referred to may also be derived from section 16 of the Ordinance which empowers the Minister of Justice to issue a new text of any law which existed in Palestine on May 14, 1948, and which is still in force in the State, such text to contain "all the modifications resulting from the establishment of the State and its authorities". It is clear that section 16 was never intended to vest in the Minister of Justice the powers of the legislature to repeal existing laws on the basis of "modifications which may result from the establishment of the State and its authorities". Section 16 can only have been intended to refer to technical modifications. On the general principles of interpretation it cannot be assumed that the same words used in the same chapter of an Ordinance are to be read in different ways and it necessarily follows, therefore, that the words relating to "modifications" mean technical modifications in section 11 as well.

As we are indeed living in a period of change and as we stand upon the threshold of the new State - we desire, in concluding this part of our judgment, to add a few general comments on the duty of a judge when he comes to interpret the law. The doctrine of the division of powers within the State is no longer as rigid and immutable as it was when once formulated by Montesquieu. In the field of jurisprudence the opinion has prevailed that in cases to which neither law nor custom applies it is for the judge to fulfil the function of the legislature rather than to force the facts before him into the narrow confines of the existing law, which in truth contains no provision applicable to them. This conception has found its classic expression in the first section of the Swiss Code which provides expressly that if the judge can find neither law nor custom which applies to the case before him, he is to lay down the law as if he himself were the legislature. But this principle only applies where in fact no law exists. It is a far cry from this to require that judges, in the exercise of their judicial powers, should repeal laws which undoubtedly do exist but which are unacceptable to the public. We are not prepared to follow this course, for in so doing we would infringe upon the rights of the existing legislative authority in the country, the Provisional Council of State. The courts are entitled to decide that a particular law is invalid as exceeding the powers of an inferior legislative body which enacted it. So, for example, if the Council of State were to delegate to a Minister the power of making regulations within certain limits, it would be for the court to examine in a particular case whether a regulation so made exceeded the limits laid down.

This is the well-known doctrine of ultra vires. It is often suggested these days - as has been argued before us by counsel for the petitioners - that the Defence Regulations in general, and those Regulations relating to the requisition of property in particular, were put to improper use during the Mandate against the Jewish community. In addition to what we have already said on this point, it is our opinion that there is no room for this contention when considering the validity of these Regulations in the State of Israel. It cannot be disputed that despite the harshness which the use of these Regulations sometimes involves, an orderly community in a state of emergency cannot exist without emergency regulations which, in their very nature, place the interests of the public above the freedoms of the individual. The question of the extent to which the court may interfere in the discretion of the Competent Authority which applies these regulations will be considered when we deal with the fourth submission of counsel for the petitioners.

Our conclusion on the first point is that the Defence Regulations of 1939 were valid in the time of the Mandate and that they are still in force by virtue of section 11 of the Law and Administration Ordinance, 1948.

The second submission of counsel for the petitioners is that even if we assume that these Regulations are generally still in force, the validity of regulation 48 expired in September, 1945. with the making of the Defence (Emergency) Regulations, 1945. Counsel contends that regulation 48 of the Regulations of 1939 (which was amended on February 23, 1945, Palestine Gazette Supplement 2, No. 1394, page 161 of March 1, 1945) was impliedly repealed by regulation 114 of the Regulations of 1945. We shall quote the text of the two regulations.

Regulation 48, sub-section 1, of the Defence Regulations 1939, as ascended on February 23, 1945, provides: -

"A competent authority may, if it appears to that authority to be necessary or expedient so to do in the interests of the public safety, defence, or the efficient prosecution of the war, or of maintaining supplies and services essential to the life of the community, take possession of any land, and may at the same time, or thereafter, give such directions as appear to the competent authority to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of that land".

Regulation 114(1) of the Emergency Regulations of September 22, 1945, provides: -

"A District Commissioner may, if it appears to him to be necessary or expedient so to do in the interests of the public safety, the defence of Palestine, the maintenance of public order or the maintenance of supplies and services essential to the life of the community, take possession of any land, or retain possession of any land of which possession was previously taken under regulation 48 of the Defence Regulations, 1939, and may, at the same time or from time to time thereafter, give such directions as appear to him to be necessary or expedient in connection with, or for the purposes of, the taking, retention or recovery of possession of the land."

Counsel for the petitioners contends that these two Regulations deal with the same matter, that is to say, the requisitioning of land for the benefit of the community, and that the earlier regulation, therefore, has been impliedly repealed by the latter. It follows, he submits, that an order of requisition may today only be issued by the District Commissioner under regulation 114 and not by the Competent Authority under regulation 48. He submits further that the High Commissioner could not revive regulation 48 by the Supplies and Services (Transitional Powers) Order, 1946 of February 22, 1946 (Palestine Gazette, Supplement 2, No. 1477, p. 348) since the Order in Council in regard to Supplies and Services (Transitional Powers) (Colonies etc.), 1946, of January 10, 1946, empowers the High Commissioner to extend and give effect only to those regulations which were still in force at the date of the Order (see paragraph (c) of the First Schedule of the Order) (Palestine Gazette, Supplement 2, No. 1473, p. 236). It follows, says counsel, that the High Commissioner could not revive a regulation on February 22, 1946, the validity of which had already expired on September 22, 1945. We shall first examine the question raised by counsel as to the validity of regulation 48 without considering the argument that it has been impliedly repealed.

(1) As we have already mentioned in dealing with the first submission of counsel for the petitioners, the constitutional basis of the Defence Regulations of 1939 is the English Statute (of August 24, 1939) known as the Emergency Powers (Defence) Act.1939. That Act empowers the King of England to make by Order in Council such "Defence Regulations" as appear to him to be necessary or expedient for securing the public safety, the defence of the realm, the maintenance of public order and the efficient prosecution of the war, and for maintaining supplies and services essential to the life of the community. The power of the King to take possession of any property is mentioned expressly in section I(2) of the Act. In terms of section 4(I) (d) of the Act the King is empowered to direct by Order in Council that the provisions of the Act shall extend to any territory in respect of which a mandate on behalf of the League of Nations has been accepted by him and is being exercised by his Government. Section 11 of the Act provides that it shall continue in force for a period of one year from the date upon which it was passed (August 24, 1939), and that it shall then expire, provided that upon the request of Parliament the King may, by Order in Council, extend its validity from time to time for additional periods of one year.

(2) By an Act of May 22, 1940, section 11 of the original Act of 1939 was amended so as to introduce a period of two years instead of one year as the initial period of validity of the statute. The Act was to remain in force, therefore, until August 24, 1941.

(3) In 1939 the King, acting under the powers conferred upon him by section 4(1) of the Act of 1939, directed by Order in Council that the Act apply to Palestine and that the power of making regulations conferred by the original Act upon the King in Council be exercised in colonies and mandated territories by the Governors of such colonies or territories (article 3 of the Order). This constitutes the basis of the power of the High Commissioner to make the regulations which he issued on August 26, 1939, and which are called the Defence Regulations, 1939.

(4) By an Order in Council of June 7, 1940, the King extended the validity of the Act of 1940 to colonies and mandated territories.

The original Act thus acquired validity until August 24, 1941, in Palestine as well.

(5) Thereafter the validity of the original Act, which had also been applied to Palestine, was extended by Orders in Council from year to year for additional periods of one year until August 24, 1945.

(6) On June 15, 1945, a special Act called the Emergency Powers (Defence) Act, 1945, was passed in England to extend the validity of the original Act of 1939 "for periods of less than one year". This Act provided that for section 11(I) of the original Act there shall be substituted a provision which lays down that the original Act shall continue in force until the expiration of the period of six months beginning with August 24, 1945 - that is to say, until February 24, 1946 - and shall then expire. The Act also provided that it could be cited together with the original Act and the Act of 1940 as the Emergency Powers (Defence) Acts, 1939-1945.

(7) On December 10, 1945, an Act was passed in England called the Supplies and Services (Transitional Powers) Act, 1945. This Act was published in Palestine in the Palestine Gazette 1946, Supplement 2, No. 1473, p. 229. In the Long Title of the Act its objects are defined, inter alia, as follows: An Act to provide for the application of certain Defence Regulations for purposes connected with the maintenance, control and regulation of supplies and services, for enabling Defence Regulations to be made for the control of prices and charges, for the continuation of Defence Regulations so applied or made during a limited period notwithstanding the expiry of the Emergency Powers (Defence) Acts, 1939 to 1945. Section 1 of this Act provides that the King in Council way direct that certain Defence Regulations shall continue to have effect whether or not they are for the time being necessary or expedient for the purposes specified in sub-section (1) of section one of the original Act of 1939. Section 5(4) empowers the King to apply the Act to colonies and mandated territories in the same way as the original Act.

(8) In pursuance of the last mentioned provision the King in Council made an Order on January 10, 1946, in which he applied the Act of 1945 to Palestine (Palestine Gazette Supplement 2, No. 1473, p. 234), and conferred the power of making regulations upon the High Commissioner.

(9) Pursuant to the powers conferred upon him as described in the preceding paragraph, the High Commissioner issued an Order on February 22, 1946, called the Supplies and Services (Transitional Powers) Order, 1946, in which he set forth a series of regulations which were to remain in force as above stated, including regulation 48 of the Defence Regulations, 1939.

It follows, therefore, that the High Commissioner issued this Order two days before the original Statute and the Defence Regulations issued thereunder ceased to be valid. He acted, therefore, in accordance with Section C in the First Schedule to the Order in Council of January 19, 1946, which provides that the power to extend the validity of Defence Regulations applies only to such Regulations as are still in force on the date of the issue of the Order, that is to say, January 10, 1946. This then was the position in law.

But we must still deal with the argument of counsel for the petitioners that regulation 48 was impliedly repealed by regulation 114 of the Emergency Regulations of 1945.

Counsel relies upon the well-known principle that Lex posterior derogat legi priori and upon Maxwell, Interpretation of Statutes, 9th Edition, p. 171. The general answer is that there can only be an implied repeal where there exists a logical inconsistency between the first and the second legislative provisions - in which case the first is impliedly repealed by the second - or, if there is no inconsistency between the two provisions, where there is no justification for the continuance of the two.

It cannot be said in the present case that such a logical inconsistency exists. It must be assumed that it was the desire of the legislature to confer the powers in question upon the Competent Authority under the Defence Regulations of 1939, and upon the District Commissioner under regulation 114. It cannot be said, moreover, that these two sets of provisions cannot stand together. There is a reason which explains the existence of two sets of regulations, namely, that the Defence Regulations of 1939, were designed to deal with a situation created by external factors, such as war, while the regulations of 1945 were made to deal with a situation created by internal factors. That this is so is apparent from the position that had existed previously. Before the Emergency Regulations of 1945 there existed the Emergency Regulations of 1936 which were not repealed by the Defence Regulations of 1939. That is to say that even before 1939 there existed two sets of Regulations although up to 1945, during the period of the war, the authorities employed the Defence Regulations of 1939. And as far as the authority of Maxwell is concerned, that writer, under the heading "Consistent Affirmative Acts" seems rather to support the opposite opinion. He says, at page 173: -

"But repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the Statute book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention” .

Counsel for the petitioners also pointed to a line of cases which indicate that from the date of the publication of the Emergency Regulations of 1945 the authorities used regulation 114 of those Regulations and not regulation 48 of the Regulations of 1939, since all those cases deal with regulation 114. There is no need to deal at length with the point that this fact cannot constitute the repeal of regulation 48.

The conclusive answer to the contention of Counsel for the petitioners is provided by the Defence (Emergency) Regulations of 1945 themselves. Regulation 5 provides that, subject to the provisions of the Regulations, their provisions, and the powers conferred by them, shall be in addition to and not in derogation of the provisions of, or the powers conferred by, any other law. Moreover, regulation 7 sets forth in detail those regulations which shall be revoked upon the coming into force of the Regulations of 1945, and neither the Defence Regulations of 1939, nor any part of them, are mentioned in regulation 7. We therefore reject the submission of counsel for the petitioners that regulation 48 of the Defence Regulations, 1939, cannot constitute the basis of the Order of Requisition issued by the respondent.

We are also of opinion that Counsel's third submission, namely, that the respondent was not lawfully appointed as a Competent Authority, is without foundation. Regulation 3 of the Defence Regulations, 1939, provides that the Competent Authority shall be the person appointed by the High Commissioner in writing. In a Notice concerning the powers of Ministers pursuant to the Law and Administration Ordinance, 1948, published in Official Gazette, No. 5, page 24, it is notified for public information that the Provisional Government has decided to confer the powers formerly exercised by the High Commissioner as follows: under the Defence Regulations, 1939 - upon the Minister of Defence: under regulation 3 of the Defence Regulations, 1939-upon the Ministers of Finance, Agriculture, Trade and Industry, Labour and Building, and Communications.

Counsel for the petitioners wishes to deduce from the terms of this notice that in the case of the appointment of a Competent Authority under regulation 3 the Minister of Defence must also act together with one of the other Ministers mentioned. In our view this contention is without substance. The true intention is clear. In general the Minister of Defence must be substituted for the High Commissioner throughout the Defence Regulations, but in the case of regulation 3 the other Ministers mentioned must also be added.

The appointment in the present case, a copy of which is annexed to the affidavit of the Respondent, was made in writing by the Minister of Labour and Building on September 3, 1948.

Counsel for the petitioners also argued that the appointment was invalid as it was not published in the Official Gazette. Such publication, so he contended, is rendered necessary by section 20 of the Interpretation Ordinance which provides:

"All regulations having legislative effect shall be published in the Gazette and, unless it be otherwise provided, shall take effect and come into operation as law on the date of such publication".

Counsel also drew our attention to the definition of ''regulations" in section 2 of the Ordinance1) and argued that the appointment of a Competent Authority for the requisition of land has legislative effect.

The reply to this submission is twofold.

(a) The Defence Regulations (Amendment No. 4) of 1945 provide expressly that section 20 of the Interpretation Ordinance shall not apply to the Defence Regulations.

(b) Regulation 3 of the Defence Regulations contains a special provision in regard to the form of the appointment of a Competent Authority, namely, an appointment by the High Commissioner in writing, and there is no mention of the necessity for publication. The fact mentioned by counsel for the petitioners that in recent times such appointments have sometimes been published in the Official Gazette does not alter the legal position. We have no doubt, therefore, that the appointment of Mr. Yehoshua Gubernik as a Competent Authority for the purposes of regulation 48 was valid.

In the result, therefore, we are of opinion that the Defence Regulations of 1939 in general and regulation 48 in particular were constitutionally valid in Palestine and are still so valid in the State of Israel and that the respondent, who exercised the powers conferred by regulation 48, was a Competent Authority. It remains for us, therefore, to give our decision on the fourth submission of counsel for the petitioners, namely, that the respondent exercised his powers not in good faith but capriciously and vexatiously, and without having regard to the principles of reason and justice.

Before considering this argument we must call attention to certain facts in greater detail.

The flat in question was requisitioned for the benefit of the Attorney-General of Israel, who is a married man with three children. It consists of four rooms, an entrance hall, and the usual conveniences, and is not far from the offices of the Government. Mr. Leon, who is referred to in the original petition as the First Petitioner and who lives in the flat at present, leased it from the owner of the building in 1947 and moved into it with his family. According to the statement before us of Mr. Kleiman, the owner of the building, Mr. Leon informed him in July, 1948, that he was about to leave the flat and that Mr. Kleiman was at liberty to let it to whom he wished. In fact, as we mentioned at the beginning of our judgment, Mr. Leon does not appear at all as a petitioner in this case. Dr. Boris Tamshas, who was joined in the proceedings after the issue of the order nisi, entered into contract of lease - through his agent - with Mr. Kleiman on September 3, 1948. Dr. Tamshas is a doctor from Cairo who fled to France following the latest political disturbances in Egypt. When the petition was filed Dr. Tamshas was in Paris and was already about to leave for Israel with his family. In terms of the agreement mentioned, the owner of the building was to hand over the flat to Dr. Tamshas not later than September 25, 1948.

Dr. Tamshas, his wife and three children, reached Israel on September 23, 1948. He was born in this country and studied medicine overseas. He practiced as a physician in Cairo, but was in Palestine from 1936 to 1940. He then returned to Egypt and resumed his profession. He now wishes to settle in Israel and continue in medical practice.

The case before us, therefore, is not one in which the Competent Authority Is about to eject a tenant in order to introduce another tenant into the flat, for the present tenant is about to move to Haifa where the flat of Mr. Ya'acov Shapira has been offered to him. The petitioners before us, therefore, who complain that the competent Authority has requisitioned the flat for the Attorney-General, are the owner of the building and a proposed new tenant.

Many arguments were addressed to us in support of this fourth submission of the petitioners, and counsel himself, in the course of his argument, counted twelve points that he had raised. We shall not deal, however, with each point raised, but will consider the matter generally on its merits.

Counsel for the petitioners well appreciates that according to the law as laid down during the Mandate this court will not interfere with the discretion of the Competent Authority if, in effecting the requisition, that Authority has acted within the limits of its powers. The court for its part will not consider whether the making of the requisition was proper or otherwise. The opinion has been expressed that the court will interfere only where it has been shown that the requisition has been effected maliciously or against the principles of reason and justice. Counsel for the petitioners submitted that we are not bound by the tradition established by decisions from the time of the Mandate but that, on the contrary, it is our duty to depart from that tradition.

Counsel for the petitioners contends that the respondent did not exercise his discretion in good faith, but that he acted capriciously and against the principles of reason and justice. He spoke of a conspiracy between the respondent and Mr. Shapira. He relied upon the facts that Mr. Shapira approached Mr. Gubernik at the end of August in connection with the requisitioning of a flat for his use, and that Mr. Gubernik approached - not the Ministry of the Interior of which he is an official - but the Ministry of Justice; and that after a few days, on September 3, he received his appointment as a Competent Authority from the Minister of Labour and Building.

We fail to see in this any suggestion of a conspiracy. It is only natural that an official who is in need of a flat and who, despite persistent efforts on his part (and we have heard that Mr. Shapira has been living since the beginning of July in one room in the Hotel Gat-Rimmon and has been unable to bring his wife and three children from Haifa to Tel Aviv) has been unable to find one, should take legal steps and approach his Government in order to. secure accommodation.

Counsel also leveled strong criticism against Mr. Gubernik for informing Mr. Leon by letter on September 5th, the day before the issue of the Order of Requisition, that his flat was about to be requisitioned for the purposes of the Government and requesting him not to let the flat or transfer it to another authority without his confirmation. This letter, however, has no effect upon the issue and need not detain us now.

When examined on his affidavit by Counsel for the petitioners, Mr. Gubernik stated that he offered a specific sum of money to Mr. Leon in order to facilitate the transfer of his home from Tel Aviv to Haifa, his intention being to recover a similar sum from Mr. Shapira. Counsel attempted to argue before us that in so doing Mr. Gubernik committed a criminal act in contravention of section 109A of the Criminal Code.1) We can only say that this submission has no substance at all.

Counsel for the petitioners also argued that Mr. Gubernik had used an old English form drafted in accordance with regulation 114 of the Regulations of 1945, and that he had simply copied the language of the form out of habit and without consideration.

If we are to understand counsel's argument to mean that the manner in which the Order of Requisition is drafted shows that the respondent did not consider the merits of the matter and therefore did not exercise his discretion in accordance with the rules of Justice and reason, then it cannot be accepted. It has already been decided in England, in the case of Carrtona Ltd. v. Commisioners of Works and Others, (3), that a Notice of Requisition has no constitutional effect. In that case - which was also a case of requisition under regulation 51(1) of the Defence (General) Regulations in England which correspond to our regulation 48 - the Competent Authority did not emplay in the Notice of Requisition the language of the regulation, but said that it was essential to take possession of certain buildings "in the national interest". It was argued that the notice was invalid since it gave a reason for the requisition which did not appear in the regulation. The regulation speaks of the public safety, the defence of the realm or the efficient prosecution of the war or the maintaining of supplies and services essential to the life of the community, while the notice speaks of a requisition effected because it is essential in the national interest. In commenting upon this aspect of the case Lord Greene M.R. said, at page 562:

"...in order to exercise the requisitioning powers conferred by the regulation no notice is necessary at all and, therefore, the question of the goodness or badness of a notice does not in truth arise. The giving of notice is not a pre-requisite to the exercise of the powers and, accordingly, the notice must be regarded as nothing more than a notification, which the Commissioners were not bound to give, that they are exercising those powers. The notice is no doubt for what it is worth, evidence of the state of mind of the writer and those by whose authority be wrote, and it is perfectly legitimate to argue that this notice suggests, on the face of it, that those who were directing their minds to this question were directing them to the question whether the action proposed was in the national interest and not to the specified matters mentioned in reg. 51. But the notice is no more than evidence of that, and when an assistant secretary in the Ministry of Works gave evidence it was perfectly clear that he was using that phrase - and this letter was written on his instructions - as a sort of shorthand comprising the various matters in reg. 51 upon which the requisition would have been justified . . . That point appears to me to have no substance at all".

These remarks of Lord Greene contain the answer to the argument of counsel for the petitioners in this case. Mr. Gubernik stated candidly in his evidence that he could have omitted the words "in the interests of the public safety, the defence of the State" in the Order of Requisition and been satisfied with the words "in the interests of the maintenance of services essential to the life of the community" and perhaps also "the maintenance of public order". We therefore reject all the submissions of counsel based upon the manner in which the notice called an "Order of Requisition" was framed.

Counsel for the petitioners also argued that although he greatly values the work of Mr. Ya'acov Shapira, the Attorney-General of Israel, such work is not covered by regulation 48. His contention before us was that the words "maintaining supplies and services essential to the life of the community" must be read in close association with the words "the public safety, defence, or the efficient prosecution of the war" which precede them, and he asked us to interpret the regulation in accordance with the rule of ejusdem generis.

The simple answer is that section 4 of the Interpretation Ordinance lays down the very opposite, namely, that us a general rule the word "or" is not to be interpreted ejusdem generis. We accordingly have no doubt that the work of the Attorney-General may be included within the expression "services essential to the life of the community" within the meaning of regulation 48.

We cannot agree with counsel for the petitioners that the regulation enables the requisitioning of a flat for the purposes of a government department alone - in this case the Ministry of Justice - and not for the purposes of a flat for the private use of the Attorney-General. We are not unmindful of the fact that the requisitioning of a flat by the ejectment of a tenant who is in occupation (which is not the case here) is a cruel and very serious matter which must be weighed thoroughly by the Competent Authority before it exercises its powers. Counsel for the petitioners, however, has overlooked the fact that in terms of regulation 48 the discretion in regard to the requisition of a flat resides in the Competent Authority and in no other person. The condition mentioned in regulation 48 is "if it appears to the Competent Authority" and not simply "if it appears". Were we to accept the submission of counsel for the petitioners we should have to decide that it appears to us that the requisitioning of this flat is not necessary for the maintaining of services essential to the life of the community. In so doing, however, we should be acting contrary to the law which binds us and whose amendment, if desirable at all, is a matter for the legislature.

It would seem that this submission was advanced by counsel only to show that the decision of the Competent Authority in this case had no reasonable basis whatsoever. He did not weigh the matter at all. This court would then be entitled to interfere. Now in the opinion of the Competent Authority an official, in order adequately to discharge his duties to the State, must have a flat of his own and not be separated from his family for a protracted period. The securing for him of a flat, therefore, without which his services to the State are liable to be adversely affected, is a matter which is necessary for the maintaining of services vital to the life of the community. It cannot be said that this opinion is quite unreasonable, even if there may be some people who disagree with it.

Counsel for the petitioners has also complained of the fact that the respondent requisitioned the flat although he knew that it had already been let to Dr. Tamshas. This argument too is unsound. If the Competent Authority is empowered to requisition a flat which is actually occupied by a tenant he must be empowered a fortiori to requisition a flat where he does not thereby affect the rights of a tenant who was in occupation up to that stage. In the present case, the tenant is about to move to another flat, and he will not suffer as a result of the requisitioning. The only person who will suffer is the new tenant who wishes to enter the flat. Here lies the striking difference between this case and the majority of cases of requisitioning, in which the Competent Authority is compelled to harm the tenant who is actually occupying the flat. This is hardly the case, therefore, in which the law. which has previously been laid down in such matters should be completely reversed.

Counsel for the petitioners urged repeatedly that regulation 48 was employed in the time of the Mandate when the rights of the individual took second place. He cited, in particular, some judgments relating to requisition in which there existed some political element. We agree that in some judgments delivered during that period in connection with requisition the political element undoubtedly prevailed over sound reason and judicial sense. It is sufficient to mention the judgment of the High Court of Justice in Dinah Kazak v. The District Commissioner, Haifa District, (1). There were also judgments, however, given against the individual in favor of the Competent Authority where there was no hint of a political element. It is sufficient to mention here Zeev Poms and others v. District Commissioner, Lydda District. and Mordechai Gileady, (2), in which the facts were very similar to those in the present case. In such matters the Courts of Palestine followed the decisions of the English Courts relating to the same type of requisitioning under the Defence Regulations. These English judgments, in any event, are completely free of any suspicion of political influence. Instead of citing a number of judgments delivered in Palestine we wish to quote here some remarks of Lord Greene from his judgment in the Carltona Case (3) to which we have already referred. Lord Greene said, at page 563:

"The last point that was taken was to this effect, that the circumstances were such that, if the requisitioning authorities had brought their minds to bear on the matter, they could not possibly have come to the conclusion to which they did come. That argument is one which, in the absence of an allegation of bad faith - and I may say that there is no such allegation here - is not open in this court. It has been decided as clearly as anything can be decided that, where a regulation of this kind commits to an executive authority the decision of what is necessary or expedient and that authority makes the decision, it is not competent to the courts to investigate the grounds or the reasonableness of the decision in the absence of an allegation of bad faith. If it were not so it would mean that the courts would be made responsible for carrying on the executive government of this country on these important matters. Parliament, which authorises this regulation, commits to the executive the discretion to decide and with that discretion if bona fide exercised no court can interfere. All that the court can do is to see that the power which it is claimed to exercise is one which falls within the four corners of the powers given by the legislature and to see that those powers are exercised in good faith. Apart from that, the courts have no power at all to inquire into the reasonableness, the policy, the sense, or any other aspect of the transaction."

These remarks of Lord Greene also furnish the answer to the argument of Counsel for the petitioners that the housing situation in Tel Aviv and Jaffa did not make it necessary for this requisition to be effected. If there was to be a requisition, it was possible to requisition a flat in a building which had not yet been completed. This is undoubtedly a matter of housing policy in which this court cannot interfere. It is not the function of this court, moreover, to investigate whether the Competent Authority could not have employed the method of billeting in accordance with regulation 72 of the Regulations of 1939. In the result there has not been the slightest proof before us of mala fides or capriciousness on the part of the Competent Authority, so the fourth submission of counsel for the petitioners must also be dismissed.

We desire to point out in conclusion that in spite of the decision which we have reached in regard to the fourth submission of counsel for the petitioners it was essential for us to deal in detail with his first three arguments which could be determined on points of law alone. Had the petitioners been correct on any one of their first three points they would have succeeded in the case for, in such event, the owner of the building could have protested against any interference with his property and demanded that the order nisi be made absolute without any regard to the particular facts of this matter.

As we have dismissed the three legal submissions of the petitioners and, after consideration of the facts, have also rejected their fourth submission, the order nisi will be discharged.

As in this case, for the first time since the establishment of the State of Israel, legal points of general importance to the community have been raised, no order as to costs will be made against the petitioners.

Order Nisi Discharged.

Judgment given on October 19, 1948.

1) See infra pp. 54, 55.

1) See infra, pp. 54, 55.

1) The Palestine Order in Council, 1922, which gave Mandatory Palestine its first Constitution attempted to create a Legislature. This never came into existence. In the palestine (Amendment) Order in Council, 1923, by Article 3, power was given to the High Commissioner for Palestine, to promulgate ordinances, subject to disallowance by His Majesty, and "without prejudice to the powers inherent in, or reserved by this Order to His Majesty", (17)(i)(a)). Under part IV of the 1922 Order in Council “The enactments in the First Schedule to the Foreign Jurisdiction Act, 1890 shall apply to Palestine... "

2) The hand Transfer Ordinance of 1940 forbade the purchase by Jews of land in large areas of Palestine.

1) This section provides for a Declaration of a State of Emergency and for the making of Emergency Regulations pursuant thereto.

3) Now in Jordanian territory.

1) Section 2 of the Interpretation Ordinance provides (inter alia):

2. In this Ordinance, and in all other enactments (as hereinafter defined) now in force or hereafter to be passed, made or issued, the following words and expressions shall have the meanings hereby assigned to them respectively, unless there is something in the subject or context inconsistent with such construction, or unless it is therein otherwise expressly provided -

"law" includes –

(a) such Acts or parts of Acts, and such Orders by His Majesty in Council or parts of such Orders whether passed or made before or after the commencement of this Ordinance, as are now, or have heretofore been, or may hereafter be, in force in Palestine; and

(b) orders, regulations, rules, byelaws, proclamations, directions, notices, or other instruments, not being enactments, made or issued. whether before or after the commencement of this Ordinance, under any such Act, Order, or part thereof as is referred to in paragraph (a) of this definition, being orders, regulations, rules, byelaws, proclamations, directions, notices, or other instruments, which are now, or have heretofore been, or may hereafter be, in force in Palestine ; and

(d) Ottoman law, religious law (whether written or unwritten), and the common law and doctrines of equity of England, which is or are now, or has or have heretofore been, or may hereafter be, in force in Palestine.

"enactment" means any Ordinance, or any regulations, whether passed, made or issued before or after the commencement of this Ordinance: Provided that in any enactment passed, made or issued before the commencement of this Ordinance, the word "enactment" has the same meaning as it would have had if this Ordinance had not been passed.

"regulations" means any regulations, rules. byelaws, proclamations, orders, directions, notifications, notices, or other instruments, made or issued by the High Commissioner or the High Commissioner in Council or any other authority in Palestine (whether before or after the commencement of this Ordinance) under the authority of any Act or any Order by this Majesty in Council or of any Ordinance; and includes orders, directions, notifications, notices or other instruments, made or issued, whether before or after the commencement of this Ordinance, under any such regulations, rules or byelaws: Provided that in any enactment passed, made or issued before the commencement of this Ordinance, the word "regulations" has the same meaning as it would have had if this Ordinance had not been passed.

1) The obtaining by a Public Servant of an improper reward in respect of business transacted by him as a Public Servant is made an offence by this section.

Full opinion:

Leon v. Acting District Commissioner of Tel-Aviv.pdf

Ka’adan v. Israel Land Administration

Case/docket number:

HCJ 6698/95

Date Decided:

Wednesday, March 8, 2000

Decision Type:

Original

Topics:

Administrative Law

Judicial review

Constitutional Law

Equality Before the Law

Property Rights

International Law

Occupied territories

Abstract:

Facts: The State of Israel, through the Israel Lands Administration, allocated land in the Eron valley region to the Jewish Agency for Israel. The Jewish Agency, through a cooperative society, set up the settlement of Katzir on this land. The objectives of the Jewish Agency for Israel include the settlement of Jews throughout the land of Israel. For its part, the cooperative society will only grant membership to Jews. Petitioners, a couple with two daughters, are Arabs. They requested to live in the settlement of Katzir. According to petitioners, their request was immediately denied by reason of their being Arabs, since the land was allocated for the exclusive establishment of a Jewish settlement.

Held: The Court held that the principle of equality is one of the foundational principles of the State of Israel. It applies to all actions of every government authority. The Court held that the policy constituted unlawful discrimination on the basis of nationality. The Court held that the fact that the settlement was built through the Jewish Agency for Israel could not legitimize such discrimination.

Justice Y. Kedmi in a separate opinion was of the view that only a declaratory judgment regarding the status and weight of the value of equality with regard to the allocation of state land was warranted along with the clarification that the judgment is forward-looking and does not provide grounds to re-examine acts performed in the past.

Voting Justices:

Barak, Aharon

Primary Author

majority opinion

Or, Theodor

majority opinion

Zamir, Itzchak

majority opinion

Cheshin, Mishael

Author

concurrence

Kedmi, Yaakov

Author

dissent

Full text of the opinion:

HCJ 6698/95

1. Aadel Ka’adan

2. Iman Ka’adan

1. Israel Land Administration

2. Ministry of Construction and Housing

3. Tel-Eron Local Council

4. The Jewish Agency for Israel

5. Katzir, a Cooperative Society for Communal Settlement in Samaria Ltd.

6. Israel Farmers Association

The Supreme Court Sitting as the High Court of Justice

[March 8, 2000]

Before President A. Barak, Justices T. Or, M. Cheshin, Y. Kedmi, I. Zamir

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

For petitioners—Neta Ziv, Dan Yakir

For respondents 1 & 2—Uzi Fogelman

For respondent 3—Ilan Porat

For respondent 4—Dr. Amnon Goldenberg, Aharon Sarig, Moti Arad;

For respondents 5 & 6—Gad Shteilman, Yehudah Torgeman.

Basic laws cited:

Basic Law: Israel Lands, s. 1.

Basic Law: Human Dignity and Liberty, ss. 1, 8.

Basic Law: Freedom of Occupation, s. 4.

Legislation cited:

Law of Return 5710-1950.

World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952, s.

8(b).

Israel Land Administration Law, 5720-1960, s. 3.

Draft legislation cited:

Draft Proposal for Basic Law: National Lands, Hatzaot Hok 5719-1959 at 272 in 27 Divrei Knesset (5719-1959).

Draft Proposal for the Israel Land Administration Law, 5720-1960 (Hatzaot Hok 34).

Israeli cases cited:

CA 55/67 Kaplan v. State of Israel, IsrSC 21(2) 718.
HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa, IsrSC 42(2) 309.
HCJ 869/92 Zwilli v. Chairman of the Central Elections Committee for the Thirteenth Knesset, IsrSC 46(2) 692.
CA 105/92 Re’em Engineers and Contractors Ltd. V. The Municipality of Nazareth-Illit, IsrSC 47(5) 189.
HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50(3) 485.
HCJ 114/78 Burkan v. Minister of Finance, IsrSC 32(2) 800.
HCJ 1703/92 C.A.L. Cargo Airlines Ltd. v. The Prime Minister, IsrSC 52(4) 193.
EA 2/88 Ben-Shalom v. The Twelfth Knesset’s Central Elections Committee, IsrSC 43(4) 221.
HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.
HCJ 840/79 Israeli Contractors and Builders Center v. The Government of Israel, IsrSC 34(3) 729.
HCJ 262/62 Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu IsrSC 16 2101.
LCA 5817/95 Rosenberg v. Ministry of Construction and Housing, IsrSC 50(1) 221.
HCJ 5023/91 Poraz v. Minister of Construction and Housing, IsrSC 46(2) 793.
HCJ 392/72 Berger v. Regional Committee for Planning and Construction, Haifa Region, IsrSC 27(2) 764.
HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49(4) 94.
HCJ 2671/98 Israel Women’s Network v. Minister of Labour, IsrSC 52(3) 630.
HCJ 73/53 Kol Ha’Am Company Ltd. v. Minister of the Interior, IsrSC 7 871.
HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel, IsrSC 51(2) 509.
HCJ 5016/96 Horev v. Minister of Transportation, [1997] IsrSC 51(4) 1; [1997] IsrLR 149.
HCJ 528/88 Avitan v. Israel Land Administration, IsrSC 43(4) 297.
HCJ 1000/92 Bavli v. Great Rabbinate Court of Jerusalem, IsrSC 48(2) 221.
HCJ 453/94 Israel Women’s Network v. The Government of Israel, IsrSC 48(5) 501.
EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset, IsrSC 19(3) 365.
LCA 7504/95 Yaasin v. Party Registrar, IsrSC 50(2) 45.
LCA 2316/ 96 Isaacson v. Party Registrar, IsrSC 50(2) 529.
HCJ 175/71 Abu-Ghosh/Kiryat Yearim Music Festival v. Minister of Education and Culture, IsrSC 25(2) 821.
HCJ 200/83 Wathad v. Minister of Finance, IsrSC 38(3) 113.
EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset, IsrSC 39(2) 225.
HCJ 4212/91 Beth Rivkah National-Religious High School for Girls v. The Jewish Agency for Israel, IsrSC 47(2) 661.

American cases cited:

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
Burton v. Willmington Parking Authority, 365 U.S. 721 (1961).

Canadian cases cited:

Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624.

Israeli books cited:

Y. Weisman Property Law 216-217 (3rd ed. 1993).
I. Zamir, Administrative Power 236-37 (1996).
Y. Dotan, Administrative Guidelines 315-16 (1996).

Israeli articles cited:

R. Alterman, ‘Who Will Sing the Praises of the Israel Lands? An Examination of the Justification for the Continued Local Ownership of Land,’ 21 Iyunei Mishpat at 535 (1998).
Barak-Erez, ‘An Acre Here, an Acre There’--Israel Land Administration in the Vise of Interest Groups, 21 Iyunei Mishpat 613, 620 (1998).
E. Benvinisti, "Separate But Equal" in the Allocation of State Lands for Housing, 21 Iyunei Mishpat 769 (1998.

Non-Israeli articles cited:

D. Days, Brown Blues: Rethinking the Integrative Ideals, 34 Wm. & Mary L. Rev. 53 (1992).
M. Tein The Devaluation of Non-White Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463 (1992)

Jewish Law Sources Cited:

Genesis, 1:27.
Leviticus 24:22.
Babylonian Talmud, Tractate Ketubboth, 33a.
Babylonian Talmud, Tractate Babba Kamma 83b.

Other:

Proclamation of Independence of the State of Israel.
Universal Declaration of Human Rights.
Covenant on Civil and Political Rights (1966).
European Convention on Human Rights.

JUDGMENT

President A. Barak

The State of Israel has allocated land to the Jewish Agency for Israel. The Jewish Agency, in turn, has established a communal settlement on that land. The settlement was established through a cooperative society. In accordance with its objectives the Jewish Agency deals with the settlement of Jews in the State of Israel. The cooperative society, for its part, in fact accepts only Jews as members. The result in this situation is that an Arab cannot build his home on state lands allocated to the Agency. Under these conditions – and taking into account the circumstances of the case -- is the State’s decision to allocate lands to the Agency unlawful, due to prohibited discrimination against Arabs? That is the question before us in this petition.

The Facts

1. The State of Israel is the owner of lands in the Eron valley region. On some of these lands it is in the process of establishing a large urban settlement called Harish. In another area, some distance from Harish, two adjacent hills were settled that together constitute the settlement of Katzir. On one of these hilltops, called “The Central Hill”, the State (the Ministry of Construction and Housing: respondent no. 2) established a neighborhood. The State constructed the residential units. These units were allocated to the public at large, in accordance with the customary rules of the Ministry of Construction and Housing. Both Jews and Arabs are entitled to purchase residential units in this neighborhood. The area located on the second hilltop (known as the “Western Hill”) was allocated for development to the Jewish Agency for Israel; respondent no. 4 (hereinafter; The Jewish Agency) by the State of Israel (the Israel Land Administration: respondent no. 1. Hereinafter: “the Administration”) -- within the framework of a “licensing agreement”. The Agreement, drawn up in 1986, is for a term of seven years. It is extended periodically. The last agreement, dated September 1, 1993, was to remain in force until the year 2000.

2. The Jewish Agency decided to establish a rural-communal settlement on the land it received from the State (on the Western Hill). It established (in 1982), the Katzir Communal Settlement [hereinafter: “the Communal Settlement”]. The Jewish Agency invested considerable sums in it, in the form of infrastructure and buildings. Katzir is a cooperative society for communal settlement (respondent no. 5: hereinafter the Katzir Cooperative Society). It was formed (in 1981) with the assistance of the Israel Farmers Association (respondent no. 6). The goals of the Katzir Cooperative Society are, inter alia, to establish, maintain and manage a rural communal settlement, set up on the basis of the organization of its members as a community that institutes cooperation among its members. The cooperative society numbers more than 250 families. These families built their homes in Katzir, leading their lives in a communal and cooperative framework, as defined in the Society’s bylaws. These bylaws stipulate, inter alia, that only a person who, inter alia, “has completed [the] compulsory military service in accordance with the Security Service Law [Consolidated Version]-1959, or has been discharged from compulsory service under that same law, or whose military service was postponed in accordance with that law” (chapter C, s. 6e of the regulations, as amended on 8.2.82.) may be admitted to the Society. In point of fact, Arabs are not admitted as members of the Cooperative Society.

3. From a municipal standpoint, the Katzir Communal Settlement is managed by a local committee. It is within the jurisdiction of the Tel-Eron Local Council (respondent no. 3). The urban settlement of Harish is also within that Council's jurisdiction.

4. The petitioners are a couple with two daughters. They are Arabs currently living in an Arab settlement. They sought – and continue to seek -- to live in a place where there exists a quality of life and a standard of living different from the one in which they currently live. The petitioner approached (in April, 1995) the Katzir Cooperative Society and requested information regarding his options for purchasing a house or lot in the Katzir Communal Settlement. According to the petitioner’s claim, he was told on the spot that, as he was an Arab, he would not be accepted to the Communal Settlement given that the lands upon which the Communal Settlement was built were designated exclusively for Jews. As a result, (on April 7, 1995) the Association for Civil Rights in Israel, approached the Local Council of Tel-Eron on the petitioners’ behalf, and filed a complaint about the response the petitioners were given. The Council replied, (on July 16, 1995), that the procedures governing acceptance to the Communal Settlement are under the control of the Cooperative Society, and that the petitioners were free to purchase a residential unit in the urban settlement of Harish. The Association for Civil Rights in Israel subsequently filed a complaint with the Minister of Construction and Housing and the Director of the Administration. Their complaints were not responded to as of the date of the filing of this petition.

5. Upon the filing of the petition, (on October 30, 1995), an order nisi was granted. The respondents were requested to show cause as to:

“1. Why they (the Administration, the Ministry of Construction and Housing and the Local Council)or one of them, do not offer lots for independent building in the Katzir settlement, by way of tender, or by any other alternative manner, which would maintain equality of opportunity between all those interested in settling in the settlement; and

2. Why they do not amend their policy or their decision whereby lots for independent building in the Katzir settlement are allocated only after receiving approval (from the Jewish Agency and the Katzir Cooperative Society – A. B.) of acceptance of a candidate for residence in the Cooperative Society as a member (in the Cooperative Society – A.B.) and why they should not adopt all the steps demanded by such an amendment; and

3. Why they do not enable the petitioners to directly purchase from (the Administration, the Ministry of Construction and Housing or from the Local Authority – A.B.) a lot for personal construction in the Katzir Settlement, on which they can build a home for themselves and their children.”

The petition was heard, (on October 13, 1996), before a panel of three (Justices Goldberg, Kedmi and Zamir). The panel decided that, in light of the issues raised by the petition, the presiding panel should be expanded. The judges convened for oral arguments (on March 19, 1997) and we decided to hear the parties’ claims by way of written summations. Upon completion of the first round of summations, (on February 17, 1998), I recommended to the parties that an effort be made to find a practical solution to the petitioners’ problem. I noted that such a solution may be found within the framework of the Harish Urban Settlement or the Katzir Communal Settlement, with the petitioners submitting their candidacy to the Cooperative Society. Mr. Bar-Sela was appointed as a mediator. His efforts failed. The petitioners notified us of this, (on December 17, 1998), and requested that the Court rule on the merits of their petition.

The Petitioners’ Claims

6. The petitioners’ principal claim is directed against the policy according to which settlements are established which are intended exclusively for Jews. They claim that establishing settlements in such a manner, as well as allocating land on the basis of nationality or religion (whether directly or by way of allocation to entities whose operation is based on these criteria) violates the principle of equality and therefore cannot be upheld. Their primary arguments, on this issue, are directed at the Administration. They argue that the Administration breaches its obligation to act as a fiduciary for all Israeli citizens and residents and to treat them equally in its allocation of State land to entities (such as the Jewish Agency, the Farmer’s Association and the Katzir Cooperative Society) which make use of the land in a discriminatory and unequal manner.

7. The Petitioners are not disregarding the Jewish component in the identity of the State of Israel, nor do they disregard Israel’s settlement history. Their petition is forward-looking. They submit that the Jewish component in the identity of the State carries determinative weight only in matters that are fundamental to the Jewish essence of the State -- such as the Law of Return 5710-1950. Additionally, the petitioners do not completely negate the right of a closed community to establish unique criteria for accepting new members -- provided that the community in question is truly distinct, with clearly defined characteristics, displaying a high degree of solidarity and cooperation between its members. It is the petitioners’ contention that such characteristics do not exist in the Katzir Communal Settlement.

The Respondents’ Claims

8. The respondents raise two preliminary claims. First, they claim that the petition was filed after a prolonged delay, as the land upon which the Communal Settlement is situated was allocated to the Jewish Agency many years ago, and since that time the respondents have invested considerable investments in its development and infrastructure. The respondents also argue that the change in the existing situation, sought by the petitioners today, would also lead to a serious encroachment on their autonomy, and interference with the social-settlement fabric that the society’s members have chosen. In this regard, the respondents go on to claim that if the petitioners desire to alter the existing situation, they have the option of waiting until September 1, 2000, at which time the existing development license is scheduled to expire. Therefore, the petition suffers from both delay and prematurity. An additional preliminary claim raised by the Katzir Cooperative Society relates to the fact that the petitioners failed to actually apply for membership in the Cooperative Society. Their application was therefore never evaluated on its merits, and was consequently never rejected. In light of the above, the Cooperative Society claims that the petition was filed prematurely. Furthermore, the Cooperative Society claims that it has the autonomous authority to decide whether to accept or reject any of the candidates for membership, and that the authority to review the exercise of this discretion, lies only with the general court system, and not with the High Court of Justice.

9. Substantively, respondents 1 and 2 (the Administration and the Ministry of Construction and Housing) claim that they acted lawfully in allocating the land to the Jewish Agency, in reliance on the World Zionist Organization -- Jewish Agency (Status) Law, 5722-1952 [hereinafter: “the Status of the Jewish Agency Law”], and the “Covenant between the Government of Israel and the Jewish Agency for Israel” dated 28.6.79 (Yalkut Pirsumim 5737-1979 2565 at 2172 [hereinafter: “the Covenant”], the Covenant replaced the prior Covenant of 1954) and that given the specific circumstances of the case, and in view of the restrictive language characterizing the order nisi issued, the Court is not required to conduct an in-depth examination of the general constitutional issues raised by the petitioners by way of their specific petition.

10. The Jewish Agency clarifies that it has set itself the goal to settle Jews all over the country in general, and in border areas and areas with sparse Jewish population in particular. This goal, the Agency asserts, is along with the other goals it has set itself a legitimate goal, anchored in the Status of the Agency Law and the provisions of the Covenant, and is consistent with the State of Israel’s very existence as a Jewish and democratic state. As such, it argues, granting the present petition would effectively signal the end of the extensive settlement enterprise operated by the Agency since the turn of the century. It would also constitute a violation of the Agency's freedom of association, and essentially thwart one of the fundamental purposes at the core of the Agency's existence. Furthermore: no one disputes the petitioners’ (or any other person’s) right to establish a new settlement or join an existing one; however, this does not mean that the petitioners may demand to settle in a settlement established by the Jewish Agency and to benefit, directly, or indirectly, from the Jewish Agency’s investment. In this matter, it goes on to claim that the Supreme Court has in the past recognized the authority to allocate residential land to an identifiable segment of the population, whether on the basis of nationality or any other basis.

11. For their part, the Farmers Association and the Cooperative Society emphasize the national goals underlying the establishment of a communal settlement in the Eron River specifically. These respondents, too, do not contest the right of Israeli Arabs to live on state lands and enjoy full equality. Rather, they hold that there is no place for mixed communal settlements against the will of residents of the settlements.

The Preliminary Claims

12. I will first deal with the preliminary claims presented by the respondents. The argument regarding the petitioners’ delay in bringing their petition must be dismissed, as the petitioners were not late in submitting their application. They applied to the Katzir Cooperative Society during the registration period. When it was made clear to them that as Arabs they would not be accepted as members of the Society they turned to this Court. It is true, the policy that underlies the respondents’ action is not new, but this does not preclude its examination by the Court. This is certainly true—as per the petitioners’ submission—in all that relates to the future. Nor can it be said that the petition is premature due to the petitioners’ failure to apply for membership formally. As can be seen from the factual foundation laid out before us, it is uncontested that had the petitioners applied for membership to the Katzir Cooperative Society their request would have been denied. Under these circumstances, there is no point in submitting a completely futile application. Nor did the mediation process produce any results. We will therefore proceed to examine the merits of the petition before us.

The Questions before Us:

13. The legal question before us is whether the State (through the Israel Land Administration) acted lawfully in allocating the lands on which the Katzir Communal Settlement was established to the Jewish Agency, given that on these lands -- which were leased to a cooperative society that did not accept Arabs as members -- the petitioner (or any other Arab) cannot build his home. In light of the question’s complexity, it is appropriate to divide the question into two sub-questions: First, would the State (the Ministry of Construction and Housing and the Israel Land Administration) have acted lawfully had it itself directly formulated a policy whereby licenses or tenancies on state land were allocated to the Katzir Communal Settlement, which limits its memberships to Jews? If such a policy is found to be unlawful, we must then turn to the second sub-question: Are the State’s actions no longer unlawful if it itself does not operate directly within the bounds of the Katzir Communal Settlement, but rather, as is in fact the case, it allocates rights in the land to the Jewish Agency which, in turn, contracts with the Katzir Cooperative Society? We will begin by addressing the first sub-question.

The State Allocates Land to a Rural Communal Settlement that does Not Accept Arab Members

14. Was the State of Israel permitted to establish a policy according to which it would directly issue land use permits for the purpose of the establishment of the Katzir Communal Settlement, designated exclusively for Jews? Answering this question requires us to turn to the normative framework applicable to the allocation of state lands. The starting point in this respect is the Basic Law: Israel Lands. This Basic Law (s. 1) provides that:

The ownership of Israel lands, which are lands in Israel belonging to the State, the Development Authority or the Jewish National Fund, shall not be transferred, whether by sale or by another manner.

We are only concerned with Israel lands that are state lands, and our discussion will be confined to these lands alone. Israel lands are administered by the Israel Land Administration. (Israel Land Administration Law, 5720-1960). Policy respecting the land is formulated by the Israel Land Council (Israel Land Administration Law s. 3).

15. In establishing the Administration’s policy, the Council must strive towards the realization of the purposes which are at the foundation of the Administration’s authority, and which determine the scope of its discretion. These purposes, like those underlying the establishment of any statutory authority, are of two types: specific purposes, which flow directly from the statute regulating the authority’s powers, and general purposes, which extend like a normative umbrella over all statutes. We shall first examine the specific purposes and then turn to the general purposes.

The Administration’s Activities: Specific Purposes

16. Examination of the specific purposes underlying the Israel Land Administration’s authority reveals a complex picture: the laws regulating Israel lands are premised on the desire to create a uniform and coordinated administration of the totality of the lands. It has been written in relation to this topic that:

“. . .A striking feature is the legislature’s trend of ensuring that the land policy governing all future acts and transactions pertaining to Israeli state lands, the lands of the Development Authority, and of the Jewish National Fund, will be a coordinated national policy, which will be subject to the principles set forth in this law on the one hand, and which will be established in accordance with these principles by a government-appointed council, on the other hand; and also to ensure that the performance of such acts and transactions, in accordance with the policy formulated, is henceforth centralized under one, single administration; an administration appointed by the government and operating under the supervision of said council, and whose actions are subject, as a consequence of the government’s duty to report its actions, to the review of the Knesset.” (CA 55/67 Kaplan v. State of Israel [1] at 727; see also Y. Weisman Property Law 216-217 (3rd ed. 1993) [33]; R. Alterman, ‘Who Will Sing the Praises of the Israel Lands? An Examination of the Justification for the Continued Local Ownership of Land’ [36] at 535; see also Draft Proposal for Basic Law: National Lands, Hatzaot Hok 5719-1959 at 272, in 27 Divrei Knesset (5719-1959), at 2940, 2952).

It will be noted that beyond the centralization of powers relating to lands administration, the laws do not include a definition of the purposes and objectives for which the centralized authority will be employed. The Israel Land Administration Law, 5720-1960 does not define the specific objectives and purposes of the Administration. All that is said in the statute in this regard is that:

The Government shall establish an Israel Land Administration [hereinafter: “the Administration”] to administer Israel lands.

This arrangement has been the subject of much critique. It has been characterized as an act of “lazy legislation,” inconsistent with the rule of law and one which further poses a threat to proper government. (See I. Zamir, Administrative Power 236-37 (1996) [34]; see also Y. Dotan, Administrative Guidelines 315-16 (1996) [35]; see Barak-Erez, ‘An Acre Here, an Acre There’--Israel Land Administration in the Vise of Interest Groups [37] at 620.

17. In light of the statute’s silence on the matter, we must turn to sources external to it and examine the specific purposes underlying it. In this context, we will initially refer to the draft proposal for the Israel Land Administration Law, 5720-1960 (Hatzaot Hok 34). The explanatory notes state:

“According to the Covenant about to be concluded between the State of Israel and the Jewish National Fund, with the approval of the World Zionist Federation, the government will establish the Israel Land Administration as well as a council which shall formulate the land policy of the administration, approve budget proposals for the administration and supervise its activities. The proposed law will grant the Israel Land Administration and the Israel Lands Council the legal status necessary to discharge their functions under the Covenant. The Administration will form part of the governmental framework.”

Section 4 of the said Covenant, (signed on November 28, 1961 and published in Yalkut Pirsumim 1456 at p.1597) stipulates:

“Israel lands shall be administered in accordance with the law, meaning, in conformity with the principle that land may only be transferred by lease, in a manner conforming to the land policy formulated by the Council that was established under section 9. The Council shall formulate land policy with the goal of strengthening the absorption potential of the land and preventing the concentration of land in the hands of private individuals. In addition, the lands of the Jewish National Fund will be administered in accordance with the memorandum and articles of association of the Jewish National Fund.”

18. As to the specific objectives and purposes of the Administration, we may further refer to Government Decision No. 489, dated May 23, 1965 (section 3 of the decision) which established that:

“It is incumbent upon the planning authorities promptly to complete a national plan for the designation, use and utilization of state lands, which will give expression to the government’s policies, including the policy of population dispersal, the defense policy, the preservation of agricultural land, and the allocation of areas for vegetation and recreation and open areas for public use, as well as the maintenance of land reserves for national and public purposes.”

This government decision was submitted to the Council prior to its adoption by the government, and was adopted by the Council, without any amendments (on May 17, 1965). (See Weisman, supra [33] at 243-44, n. 2.) The Israel Lands Council also ratified the key elements of the Administration’s policy in Decision No. 202, of March 28, 1978, which established that:

“. . . The Israel Land Administration is the exclusive body managing Israel lands, in accordance with the land policy determined by the Council. Both in accordance with the Covenant between the Israeli Government and the Jewish National Fund, and by statute, the Israel Land Administration is the single and authorized body for managing Israel lands. The policy of the Council shall be dictated by the need to preserve the land as a national asset and by the aim of bringing about appropriate dispersal of the population throughout the land.”

19. We see, therefore, that the specific purposes underlying the Administration’s authority relate to the maintenance of Israel lands under state ownership, and the centralization of their administration and development under the auspices of one statutory body. This is in order to prevent the transfer of land ownership to unwanted entities, to implement security policies, and to allow for the execution of national projects such as the absorption of immigrants, the dispersion of the population, and agricultural settlement. The legislation also contains specific purposes intended to facilitate planning, while setting aside land reserves for national needs and allocating open areas for public needs. This is necessary to enable implementation of planning schemes and to prevent speculative trade in state land. (See also Weisman supra [33] at 216-18.) It should also be noted that to the extent that the specific statutory purposes are explicitly set out in the statute or clearly stem from it, a judge is required to give them expression. To the extent that these specific purposes are not explicit and do not clearly stem from the statute—as is the case here—it is incumbent upon the Court to learn about the specific purposes not only from the law itself but also from external sources, such as legislative history, the essence of the issue, the essence of the authorized power and the general values of the legal system. Indeed, in formulating the specific purposes – to the extent that they do not stem explicitly and clearly from the statute – it must be insisted upon that those purposes are consistent with the totality of the values of the system.

The Administration’s Activities: the General Purpose of Equality

20. Alongside the specific purposes underlying the Administration’s authority and discretion, there are overarching, general purposes that extend as a normative umbrella over all Israeli legislation. These general purposes reflect the basic values of Israeli law and society. They are an expression of the fact that each piece of legislation is an integral part of a comprehensive legal system. The basic foundations of this system “permeate” every piece of legislation, and constitute its general purpose. (See HCJ 953/87 Poraz v. Mayor of Tel-Aviv/Jaffa [2] at 328 [hereinafter: “the Poraz case”]; HCJ 869/92 Zwilli v. Chairman of The Central Elections Committee for the Thirteenth Knesset [hereinafter: “the Zwilli case”] [3]; CA 105/92 Re’em Engineers and Contractors v. Municipality of Nazareth-Illit [4] at 198.) These fundamental principles also reflect the State of Israel’s character as a Jewish and democratic state. Among these principles the principle of equality is relevant to our issues.

Equality as a Fundamental Principle

21. Equality is one of the State of Israel’s fundamental values. Every authority in Israel—and first and foremost the government, its authorities and employees—is required to treat all individuals in the State equally. (See I. Zamir & M. Sobel, Equality Before the Law, 5 Mishpat U'Memshal 165 (1999)). This is dictated by the Jewish and democratic character of the State; it derives from the principle of the rule of law in the State. It is given expression, inter alia, in our Proclamation of Independence [42] which establishes that:

“The State of Israel will . . . ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender. . .”

Indeed, the State must honor and protect every individual’s fundamental right to equality. Equality lies at the very foundation of social co-existence. It is the “beginning of all beginnings.” (Justice Cheshin in HCJ 7111/95 Center for Local Government v. The Knesset [5] at 501). It is “one of the central pillars of the democratic regime. It is critical for the social contract at the core of our social structure.” (Zwilli [3] at 707). It constitutes a basic constitutional principle, intertwined with, and incorporated into, all of our basic legal concepts, constituting an indivisible part of them (Justice Shamgar in HCJ 114/78 Burkan v. Minister of Finance [6], at 806). I referred to this in one of the cases where I stated:

“Indeed, equality is a basic principle of every democratic society, ‘to which the law of every democratic country, for reasons of justice and fairness, aspires.’ (President Agranat in FH 10/69). . . The individual integrates into society and does his part to help build it, knowing that others too are doing the same. The need to ensure equality is natural to man. It is based on considerations of justice and fairness. A person who seeks for his right be recognized must in turn recognize the right of others to seek similar recognition. The need to ensure equality is critical to society and the social contract upon which it is founded. Equality protects the regime from arbitrariness. In fact, no element is more destructive to society than the feeling of its sons and daughters that they are being treated unequally. The feeling that one is being treated unequally is of the most difficult to bear. It weakens the forces that unite society. It harms the person’s sense of self.” (The Poraz case [2] at 332)

In a similar vein, Justice Cheshin wrote:

“The claim that one is being discriminated against shall always be heeded, as it is at the foundation of foundations. The principle of equality is rooted in a deep need within us, within each of us—it can perhaps be said that it is part of man’s nature and one of his needs: in man but not only in him—that we not be detrimentally discriminated against, that we be afforded equality, from God above, and from man at the very least…. Discrimination, (real or imagined) leads to feelings-of-oppression and frustration; feelings-of-oppression and frustration lead to jealousy, and when jealousy arrives, intelligence is lost. . . We are prepared to bear the burdens, the hardships and the suffering if we know that our fellow man – who is equal to us – is like us and with us; but we will, rise up and refuse to resign ourselves where our fellow man --—who is equal to us—receives what we do not. (HCJ 1703/92 C.A.L. Cargo Airlines v. The Prime Minister [7] at 203-04.)”

As such, “equality of rights and obligations for all citizens of the State of Israel is part of the essence and character of the State of Israel” (Vice-President M. Elon in EA 2/88 Ben-Shalom v. The Twelfth Knesset’s Central Elections Committee [8], at 272, see also his decision in HCJ 153/87 Shakdiel v. Minister of Religious Affairs [9].)

22. The State’s duty to operate with equality applies to each and every one of its actions. It certainly applies where an administrative authority operates in the realm of public law. In a long list of judgments, the Supreme Court has repeatedly emphasized the obligation of administrative authorities to treat all individuals equally. (See Zamir & Sobel, supra [38]). The principle of equality is also applicable where the State acts within the realm of private law. Therefore, it applies to contractual relations entered into by the State. (See HCJ 840/79 Israeli Contractors’ and Builders’ Center v. Government of Israel [10], at 746). Indeed, at the basis of our stance is the approach that the State and its authorities are public fiduciaries. “Governmental authorities derive their authority from the public, which elected them in an egalitarian manner, therefore they too must exercise their authority over the public in an egalitarian manner.” (Zamir & Sobel supra [38], at 176). Justice Sussman, (in HCJ 262/62 Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu [11], at 2115). Justice Sussman also discussed this, noting:

“While the private citizen is entitled to ‘discriminate’ between one person and another and choose those he will deal with, even if his reasons and motivations are unreasonable, the discrimination by a public authority is prohibited. The reason is that when administrating its assets, or when performing its functions, the authority assumed the role of a fiduciary vis-à-vis the public, and as such, the authority must treat equals equally, and when it violates this fundamental principle and unlawfully discriminates against a citizen, then those are grounds for the intervention of this Court: it is of no consequence whether the use itself or the action itself belong in the realm of private law or public law. The role of fiduciary vis-à-vis the citizen and the obligations that stem from this stem from the law and, as such, are subject to supervision and review in this Court.”(HCJ 262/62, Peretz v. Chairman, Members of the Local Council and Residents of Kfar Shmaryahu [11] at 2115).

23. The State’s obligation to act in accordance with the principle of equality applies to all of its actions. As such, it also applies to the allocation of state land. Indeed, the Israel Land Administration holds state lands “by way of trust, and is therefore subject to all of the duties owed by a trustee. Since the Administration is -- both theoretically and practically -- the state itself, it is subject to all of the obligations applicable to a public authority.” (Justice Cheshin in LCA 5817/95 Rosenberg v. Ministry of Construction and Housing [12], at 231). Therefore, decisions of the Israel Lands Council which come together to form the policy respecting the allocation of land must respect the principle of equality. President Shamgar discussed this, noting:

“Public lands must be administered in accordance with government criteria—the adoption of such criteria is incumbent upon public authorities in all of their dealings, and, all the more so, when the matter relates to property belonging to the public as a whole. Translation of these criteria to behavioral norms points, inter alia, to the need to act with fairness and equality and in accordance with the norms of proper administration.” (HCJ 5023/91 Poraz v. Minister of Construction and Housing [13] at p. 801)

Thus, the principle of equality establishes that the state may not discriminate among individuals when deciding on the allocation of state lands to them.

24. Equality is a complex concept. Its scope is unsettled. With that, all agree that equality prohibits different treatment on grounds of religion or nationality. This prohibition appears in international declarations and conventions. (See, e.g., The Universal Declaration of Human Rights (1948) [43], the Covenant on Civil and Political Rights (1966) [44] and the European Convention of Human Rights [45].) It is accepted in most modern constitutions. It was given expression in our own Proclamation of Independence [42], which established that the State of Israel shall “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or gender.” This Court further ruled – in the words of Justice Shamgar -- that “the rule according to which one does not discriminate between people on grounds of . . . nationality . . . religion is a fundamental constitutional principle, interspersed and interlaced with our fundamental legal perceptions and constituting an inseparable part of them.” (HCJ 114/78 Burkan v. Minister of Finance supra [6] at 806). Justice Berinson expressed this well, noting:

“When we were exiled from our country and cast out from our land, we fell victim to the nations among whom we dwelled and in each generation we tasted the bitter taste of persecution, oppression and discrimination, just for being Jews—whose ‘laws are diverse from all people.’ Having learnt from our own bitter, miserable experience, which permeated deep into our awareness and national and human consciousness, one can expect that we will not follow the wayward ways of these nations and with the renewal of our independence in the State of Israel, it is our responsibility to avoid even the slightest hint of discrimination and unequal treatment toward any non-Jewish, law abiding, person who lives among us, whose desire it is to live with us in his own way according to his religion and beliefs. The hatred of strangers carries a double curse: it destroys the divine image of the hater and causes harm to the hated, through no fault of his own. We must act humanely and with tolerance towards all people created in the image of God, and ensure the great principle of equality between all people in rights and duties. (HCJ 392/72 Berger v. Regional Committee for Planning and Construction, Haifa Region [14] at 771).

The practical translation of these fundamental understandings as to equality is that the (general) purpose of all legislation is to guarantee equality to all persons, without discrimination on the basis of religion or nationality. Dissimilar treatment on the basis of religion or nationality is “suspect” treatment and is therefore prima facie discriminatory treatment. (Compare HCJ 4541/94 Miller v. Minister of Defence [15] at 136-37; HCJ 2671/98 Israel Women’s Network v. Minister of Labour [16], at 659.) We state that the treatment is prima facie discriminatory, for there may be circumstances -- such as in affirmative action (according to the approach that views affirmative action as a realization of the principle of equality and not an exception to it: see the view of Justice Mazza in the Miller case supra [15]) -- in which different treatment on the basis of religion or nationality is not deemed discriminatory. Additionally, dissimilar treatment on the basis of religion or nationality may at times be lawful. This is the case, for example, when explicit and clear language of a statute sets out specific purposes that lead to discriminatory treatment and, in balancing between the specific purposes of the statute and the general purpose of equality, the specific purposes prevail. We will now move on to the balance between specific statutory purposes and general purposes.

25. In solidifying the purpose of a statute, both the specific and the general legislative purposes must be considered. Often, these purposes all lead in one direction and reinforce each other. Occasionally, however, contradictions arise between these purposes. Thus, for example, there may be contradictions between specific purposes which seek to realize social objectives, and general purposes which seek to ensure human rights. When such a conflict occurs, a (fundamental and horizontal) balance between the conflicting purposes must be achieved. This court has taken this approach since the Kol Ha’am case. (HCJ 73/53 Kol Ha’am Company Ltd. v. Minister of the Interior [17]). In that case, it was held that in balancing the specific purposes at the core of the legislation being discussed, which related to the preservation of public peace and security, against the general purpose relating to freedom of expression, preference would be given to the specific purpose (public peace) only if there was a near certainty that allowing for the realization of the general purpose (freedom of expression) would cause concrete, severe, and serious harm to the possibility of realizing the specific purpose (public peace). Ever since that decision, this Court has adopted similar “balancing formulas,” in a long line of conflicts between special and general purposes. (See HCJ 7128/96 Temple Mount Faithful v. Government of Israel [18]; HCJ 5016/96 Horev v. Minister of Transportation [19]). It is a good question whether this particular balancing formula should be employed in the conflict between the general purposes and the specific purposes in this instance as well? Would it not be more appropriate to turn to a different balancing formula, such as that of the reasonable possibility? Does the issue of equality not require a spectrum of balancing formulas, depending on the specific substantive violation of equality? There is no need to address these issues in the framework of the petition before us, for, as we shall see, in this petition there is not any conflict between the general and specific purposes of the statute. We therefore leave this matter for further examination at a later date. We shall now proceed to examine the circumstances of the case before us. Prior to doing so, two comments need to be made. First, we are dealing here with the underlying purpose of the Basic Law: Israel Land Administration. Under ordinary circumstances after the purpose has been established – and in the framework of examining the lawfulness of the Administration’s actions -- the proportionality of the means used to realize the statute's purpose must also be examined. This issue does not arise in the case before us, and we will not expand upon it; second, in special situations -- where the specific purposes are explicit or clearly implied in the statute, it is not sufficient that the balancing formula enables the determination of the specific purpose at the foundation of the authorizing law. We must also examine the constitutionality of those purposes, and this from the perspective of the basic laws relating to human rights (the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation) and the limitation clause (s. 8 of the Basic Law: Human Dignity and Liberty; and s. 4 of the Basic Law: Freedom of Occupation). This question does not arise here at all, as the issue of the constitutionality of the Israel Land Administration Law has not been raised. The only issue this Court has been asked to determine is, whether the decision of the Israel Land Administration, in all that relates to the allocation of land for the establishment of the communal settlement of Katzir for Jews exclusively, was within the parameters of the authority granted to the Administration in the Israel Land Administration Law.

From the General to the Specific

26. The State accepts that when it established the urban settlement of Harish, and an additional neighborhood on the Central Hill of Katzir (via the Ministry of Construction and Housing), the land allocated was “for the public at large, in accordance with the accepted norms of the Ministry of Construction and Housing.” This allocation was done in an equal manner, with no distinction between Arab and Jew. Indeed, the State noted in its response “we do not disagree with the petitioners that the eligibility to live in the municipality of Tel-Eron, at the present time and in the future, is the same as in any other municipality, with provision of the opportunity to purchase apartments being offered to the general public. This is with the exception of the area of the cooperative society, where acceptance to the society is conditioned upon the processes that exist in every cooperative society in accordance with its bylaws.” But in what way is the communal settlement in question different from the urban settlement? No answer to this question was provided in the response briefs of the State (the Israel Land Administration and the Ministry of Construction and Housing) other than to note that the land was allocated to the Jewish Agency, which operates as the agent of the Jewish People in the Diaspora. Our concern now is not with the Jewish Agency, but with the State of Israel. The question we ask therefore is whether the State (meaning the Administration) is permitted to establish that it will itself allocate directly to the Katzir communal settlement, situated within the borders of the Tel-Eron municipality, land intended exclusively for Jews,? Such allocation violates the petitioners’ right to equal treatment, as it entails unequal treatment based on nationality. What are the specific purposes whose realization lawfully encroaches upon the principle of equality? We have not heard any answer to this question from the State.

27. A response to these claims has been provided by the Jewish Agency, the Farmers Association and the Katzir Communal Society. In their response, they claim that the Jewish settlement is a “link in a chain of outposts, intended to preserve Israel’s expanses for the Jewish people” (as stated in the founding declaration of the communal settlement) and that the settlement is consistent with the purposes they have delineated for themselves, which is the settlement of Jews throughout the country as a whole, and in rural areas and in areas where the Jewish population is sparse in particular; population dispersal; and increase of Israel’s security thereby. In a specific context, the Farmers Association argues that Arab residents may encounter difficulties in fulfilling their duties of guarding the settlement, which has been exposed in the past to various terrorist actions. Moreover, the respondents argue that the presence of Arab residents in the settlement may cause Jewish residents to leave, turning a settlement that was intended to be a Jewish settlement into an Arab settlement.

28. These responses raise difficult and complex general questions. These have significance as to both the past and the future. However, we do not need to address them in the petition before us. This petition does not deal with the totality of Jewish settlement in all of its aspects, and this petition is not concerned with the full spectrum of the Jewish Agency’s activities. The petition before us is concerned with a specific communal settlement, whose establishment does not raise the entire spectrum of difficulties that the Jewish Agency and the Farmers Association have raised. Indeed, respondents do not contest petitioners’ right to reside in the Eron valley region. They do not deny the existence of “mixed” settlements, be they urban or rural, where Jews and Arabs live in the same settlement, the same neighborhood or the same apartment building. Moreover, respondents do not dispute the petitioners’ right to live in Katzir itself, in the neighborhood built by the Ministry of Construction and Housing, together with the neighborhood’s other residents, Jewish and Arab as one, under the auspices of the same local council, maintaining common educational and social frameworks. It is therefore inexplicable – and no factual basis has been laid before as – as to why in particular the residence of the petitioners in a communal settlement, located approximately two kilometers away from the neighborhood built by the Ministry of Construction and Housing, would justify violating the principle of equality.

29. My conclusion is therefore the following: A decision by the Administration to directly allocate land in Tel-Eron for the establishment of an exclusively Jewish neighborhood would have violated the (general) purpose of the Administration’s authority— which is the realization of equality. Such a decision would not have realized the special purposes of the Israel Land Administration Law that under the circumstances – and according to the appropriate balancing formula – would have prevailed. Therefore, such a decision, had it been adopted by the Israel Land Administration, would have been unlawful. The Jewish Agency and the Farmers Association raised two fundamental arguments counter to this conclusion, to which we now turn.

30. Their first argument is this: since the Administration is equally prepared to allocate land for the establishment of an exclusively Arab communal settlement, its decision to allocate land for the establishment of the exclusively Jewish communal settlement of Katzir does not violate the principle of equality. Their contention, in its legal garb, is that treatment which is separate but equal amounts to equal treatment. It is well known that this argument was raised in the 1950’s in the United States, regarding the United States’ educational policy that provided separate education for white students and African-American students. Addressing that policy’s constitutionality, the United States Supreme Court held (in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) [30]) that a “separate but equal” policy is “inherently unequal.” At the core of this approach is the notion that separation conveys an affront to a minority group that is excluded, sharpens the difference between it and others, and cements feelings of social inferiority. This view was expressed in section 3 of the International Convention for the Elimination of all Types of Racial Discrimination. Over the years, much has been written on the subject, emphasizing that occasionally, separate treatment may be considered equal, or in the alternative, that separate treatment may be justified, despite the violation of equality. This is especially so, inter alia, when it is the minority group itself that initiates the separate but equal treatment, seeking to preserve its culture and lifestyle and hoping to prevent “forced assimilation.” (as noted by Justice Shamgar in Burkan [6], at 808; E. Benvinisti, "Separate But Equal" in the Allocation of State Lands for Housing, 21 Iyunei Mishpat 769 (1998); and D. Days, Brown Blues: Rethinking the Integrative Ideals, 34 Wm. & Mary L. Rev. 53 (1992); M. Tein The Devaluation of Non-White Community in Remedies for Subsidized Housing Discrimination, 140 U. Pa. L. Rev. 1463 (1992)). Indeed, I am prepared to assume -- without ruling on the matter -- that there are situations in which treatment that is separate but equal is lawful. This Court’s decision in the Avitan Case (HCJ 528/88 Avitan v. Israel Land Administration [20]) illustrates this point. In that case, the Israel Land Administration decided to lease out land exclusively for Bedouins, within the framework of a policy of helping Bedouins transition to permanent housing. A Jewish petitioner’s request to lease this land was denied by the Administration. His petition against the Israel Land Administration was denied. In explaining the court’s position Justice Or noted:

“It is a matter of the Bedouins who, for many years, have lived nomadic lives, and whose attempts to settle in permanent locations were unsuccessful, often involving violations of the law, until it came to be in the State’s interest to assist them, and thereby also achieve important public objectives. The way of life and lifestyle of nomads lacking permanent, organized settlements, with all that it entails, is what makes the Bedouins a distinct group that the respondents consider worthy of assistance and encouragement, and special, positively discriminating, treatment, and not the fact that they are Arabs.” (Ibid. at p. 304).

Such a situation -- in which separate treatment may be considered lawful -- does not present itself here, and this is for two reasons: First, in point of fact, there has been no request for the establishment of an exclusively Arab communal settlement. In actuality, the State of Israel only allocates land for Jewish communal settlements. The result (“the effect”) of the separation policy, as practiced today, is discriminatory, even if the motive for the separation is not the desire to discriminate. The existence of discrimination is determined, inter alia, by the effect of the decision or policy, and the effect of the policy in the case before us is discriminatory. (Compare HCJ 1000/92 Bavli v. Great Rabbinate of Jerusalem [21], at 241; as well as Justice Mazza in HCJ 453/94 Israel Women's Network v. The Government of Israel [22]); thus, the policy of the Administration today, in practice, grants Arabs treatment that is separate but not equal. Second, there are no characteristics distinguishing those Jews seeking to build their homes in a communal settlement through the Katzir Cooperative Society that would justify the State allocating land exclusively for Jewish settlement. The communal settlement of Katzir is open to all Jews per se (subject to the conditions that appear in the Cooperative Society’s bylaws, the contents of which are not known to us). In any event, the residents of the settlement are by no means a “distinct group,” (in the words of Justice Or in Avitan [20]). Quite the opposite is true: Any Jew in Israel, as one of the many residents, who desires to pursue a communal rural life is apparently eligible for acceptance to the Cooperative Society. As such, the Society can be said to serve the vast majority of the Israeli public. No defining feature characterizes the residents of the settlement, with the exception of their nationality, which, in the circumstances before us, is a discriminatory criterion. Indeed, most of the considerations presented to us by the Jewish Agency, are based on the same “suspect” classification of national origin, and their entire goal is none other than to advance Jewish settlement in the area. Indeed, the combination of the unequal consequence of the policy and unequal considerations driving it, together form a critical “mass” of inequality, a “mass” that can by no means be cancelled out or mitigated by the respondents’ fundamental readiness to allocate land for a separate Arab rural communal settlement. We therefore dismiss their claim that, in the circumstances before us, there is no violation of the principle of equality.

31. The second fundamental argument raised by the respondents is as follows: They claim that, even if the Israel Land Administration had directly allocated land for the establishment of an exclusively Jewish settlement, it would have been lawful, as this would realize the values of the State of Israel as a Jewish State. These values have constitutional status, (see the Basic Law: Human Dignity and Liberty, s. 1), and as such, suffice to provide a legal basis for the Administration’s decision. This argument raises many important questions. We need not rule on most of them. There are two reasons for this: First, to the extent that this claim comes to say that the values of the State of Israel as a Jewish State (which constitute a general purpose at the foundation of the law) conflict with the principle of equality, the answer is that such a conflict does not exist. Indeed, we do not accept the approach that the values of the State of Israel, as a Jewish state, would justify—on the level of a general purpose—discrimination by the State between its citizens, on the basis of religion or nationality. The Basic Law: Human Dignity and Liberty (s. 1) provides that:

“The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.”

The values of the State of Israel as a Jewish and democratic state, inter alia, anchor the right of the Jewish people to stand on its own in their sovereign state, as declared by the Proclamation of Independence [42]:

“The Land of Israel was the birthplace of the Jewish People. Here their spiritual, political, and religious identity was forged. Here they first attained statehood, created cultural values of national and universal significance and gave to the world the eternal Book of Books.”

Indeed, the return of the Jewish people to their historic homeland is derived from the values of the State of Israel as both a Jewish and democratic state. (See EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [23]), at 385). From these values -- each separately and from their amalgamation -- several conclusions arise. Hebrew, for instance, is necessarily the principal language of the State, and its primary holidays will reflect the national renewal of the Jewish nation. Jewish heritage constitutes a central component of Israel’s religious and cultural heritage, and a number of other conclusions are implicit, but need not be expanded upon at present. However, the values of the State of Israel as a Jewish and democratic state do not, by any means, suggest that the State will discriminate between its citizens. Both Jews and non-Jews are citizens with equal rights and duties in the State of Israel. “The State -- is the state of the Jews; the regime that exists in it -- is an enlightened democracy, which grants rights to all citizens, Jews as non-Jews alike.” (Justice D. Levin in EA 2/88 Ben-Shalom v. the Twelfth Knesset’s Central Elections Committee. [8], at 231). I discussed this issue in one of the cases, noting:

“In the State of Israel, as a Jewish and democratic state, every person—irrespective of his religion, beliefs or nationality—will enjoy full human rights.” (LCA 7504/95 Yaasin v. Party Registrar [24], at 70).

My colleague Justice M. Cheshin noted in another case:

“It is incumbent upon us to remember and to know— how could we forget—that the Jewish people have never had – never had nor does it have now -- any state other than the State of Israel, the state of the Jews. And yet, within the State itself, all citizens have equal rights.” (LCA 2316/96 Isaacson v. Party Registrar (hereinafter: “the Isaacson case”) [25] at 549).

Moreover: not only do the values of the State of Israel as a Jewish state not dictate discrimination on the basis of religion and nationality, they in fact proscribe such discrimination, and demand equality between religions and nationalities. (See HCJ 392/72 supra. [14], at 771; HCJ 175/71 Abu-Gosh-Kiryat Yearim Music Festival v. Minister of Education and Culture [26]): “The principle of equality and prohibition of discrimination, embodied in the Biblical commandment ‘You shall have one law, it shall be for the stranger, as for one of your own country’ (Leviticus 24:22) [39], that has been construed by the Sages as requiring a law which is equal for all of you’ (Babylonian Talmud, Tractate Ketubboth, 33a [40]; Babba Kamma 83b[41]) is a rule that has been sanctified in the law of Israel since we became a nation.” (Justice Türkel in HCJ 200/83 Wathad v. Minister of Finance [27] at 119).

Justice Elon stated that “one of Judaism’s established foundations is the idea that man was created in the Lord’s image. (Genesis, 1:27)[38]. Thus begins the Torah of Israel, and from this Jewish law derive basic principles as to the value of human life – each person as they are -- in their equality and their love.” (EA 2/84 Neiman v. Chairman of the Central Elections Committee for the Eleventh Knesset [28] at 298). Indeed, “the Jewish people established the Jewish State, this is the beginning and from here we shall continue the journey.” (Justice Cheshin in the Isaacson Case [25], at 548). The Jewish State having been established, it treats all its citizens equally. The State of Israel is a Jewish state in which various minorities, including the Arab minority, live. Each of the minorities living in Israel enjoys complete equality of rights. It is true, members of the Jewish nation were granted a special key to enter (see the Law of Return-5710-1950), but once a person has lawfully entered the home, he enjoys equal rights with all other household members. This was expressed in the Proclamation of Independence [42], which calls upon “the Arab inhabitants of the State of Israel to preserve the peace and take part in the building of the State on the basis of full and equal citizenship.” There is, therefore, no contradiction between the values of the State of Israel as a Jewish and democratic state and between the absolute equality of all of its citizens. The opposite is true: equality of rights for all people in Israel, be their religion whatever it may be and be their nationality whatever it may be, is derived from the values of the State of Israel as a Jewish and democratic state. As such, the second fundamental argument brought before us, inasmuch as it relates to the general purpose at the base of the statute, must be dismissed.

32. Another aspect of the argument as to the values of the State of Israel as a Jewish State pertains to the influence of these values on the formation of the special purposes of the statute. We do not deny that the State of Israel’s values as a Jewish state may come together to form special purposes on different levels of abstraction. As we have seen, in the circumstances before us (see para. 26-28) there are no such special purposes that prevail. As such, this aspect of the claim must also be dismissed.

Interim Summary

33. We have therefore reached the conclusion that had the land for the establishment of the Katzir communal settlement been allocated by the State directly, the State would have been duty-bound to act with equality towards all those requesting the right to build a house there. The significance of this is that, every person in Israel, regardless of nationality, would have been eligible to compete for the right to build a house in the Katzir communal settlement. As is known, however, the State of Israel does not directly allocate land for the building of houses in the communal settlement of Katzir. Direct allocation by the State took place in the urban settlement there and, in that case, the State acted with equality. Whilst with respect to the communal settlement, the State allocated land -- within the framework of a “licensing agreement” -- to the Jewish Agency, which, in turn, assisted –through the Israel Farmers Association -- in turning the land over to the Katzir Cooperative Society, which extends membership exclusively to Jews. Did the State of Israel violate its duty to act in accordance with the principle of equality in transferring the land (via the licensing agreement) to the Jewish Agency? We can “split” this question into two sub-questions. First, would the State have breached its obligation to provide equal treatment had it allocated the lands (via the licensing agreement) to any third body (that is not the Jewish Agency) that used the land in a discriminatory manner? If the answer to that question is affirmative, then a second question must be addressed, namely: can it not be said that the State’s duty to act in accordance with the principle of equality is not violated if the land is transferred specifically to the Jewish Agency? We shall now proceed to examine these two questions.

Transfer of Land to any Third Party which Contracts Exclusively with Jews

34. The State’s duty to respect equality in allocating rights in land is violated by the transfer of land to a third party that itself discriminates in the allocation of land on the basis of nationality or religion. The State cannot escape its legal obligation to respect the principle of equality by using a third party that adopts a discriminatory policy. What the State cannot do directly, it cannot do indirectly. And note that we are not dealing with the question of whether by virtue of having been granted rights in state lands the third party in question is equally bound not to discriminate between Jews and Arabs. (See Burton v. Willmington Parking Authority, 365 U.S. 483 (1961) [31]; Eldridge v. B.C. (A.G.) [1997] 3 S.C.R. 624 [32]). That question does not arise in this case, as it goes beyond the parameters of the petition. The question before us is whether the State itself violates its obligation to act with equality when a third party to which state lands have been transferred adopts a policy of allocating land to Jews exclusively. Our answer to this question is in the affirmative.

The Transfer of Land to the Jewish Agency

35. In the petitions before us the State allocated land to the Jewish Agency which, in turn, transferred it to a body that allocates land exclusively to Jews. Under these circumstances, can the State be said to have discharged its obligation to act in accordance with the principle of equality, and is no longer to be seen as violating this principle? The answer to this question is no. The Status of the Agency Law and the Covenant between the Israeli Government and the Jewish Agency do not grant a permit to the State to discriminate among its citizens. (See the Status of the Agency Law, s.8 (b), the Covenant, s. 2). Indeed, the Status of the Agency Law is “at its foundation, only declaratory. It does not confer governmental powers, nor does it delegate them.” (Vice-President Elon in HCJ 4212/91 Beth Rivkah, National-Religious High School for Girls v. The Jewish Agency for Israel [29], at 668: hereinafter the Beth Rivkah case). The Jewish Agency fulfils important functions. As provided by the Covenant, it operates “on the basis of a program, to which the Government agrees in advance.” (See the Covenant, s. 3). Such a program, to which the State is a party, must not be discriminatory. State action that is discriminatory in its circumstances, if carried out toward any third party, does not lose its discriminatory character simply because it was carried out through the Jewish Agency.

36. Of course, the Jewish Agency’s unique status in the State of Israel, as well as its contribution to the development of the State and its role in realizing the Jewish facets of our Jewish and democratic state are not to be overlooked. The Status of the Agency Law 5713-1952 provides that the Jewish Agency “operates in the State of Israel in the areas of its choosing, subject to the Government’s consent” (Section 2a), that the World Zionist Organization and the Jewish Agency “work perseveringly as previously on immigration absorption, and orchestrate absorption and settlement projects in the State” (Section 3), that the State of Israel recognizes the Jewish Agency as the authorized agent that will continue to operate “for the development and settlement of the country, the absorption of immigrants from the Diaspora and the coordination of the activities in Israel of Jewish institutions and organizations active in these fields” (Section 4 and on). The Covenant, which was signed between the State of Israel and the Jewish Agency in 1979, also gives expression to the special status and the important mission of the Jewish Agency. In the Beth Rivkah case [29], this Court cited at length the provisions of the Jewish Agency Law and those of the Covenant, and noted (Vice-President Elon at 667) that “the essence of the Agency Status Law is in the expression it gives to the historical connection between the Jewish people and the State of Israel.” This status has found expression throughout the country for decades: Prior to the establishment of the State, en route to the establishment of the State, and subsequent to the establishment of the State, until this very day. The Jewish Agency fulfilled a most important role in the realization of the Zionist dream, the ingathering of the exiles, and the blossoming of the land. And it has yet to complete the task designated to it. It still serves as a “voluntary body,” (HCJ 4212/91, supra [29] at 670), an agent of the Jewish people in the development of the State as a Jewish and democratic state.

37. The petitioner’s counsel does not dispute the important role played by the Jewish Agency in the history of the State of Israel, nor does he criticize the policy adopted over many years with respect to the establishment of Jewish settlements throughout the country. The petitioner states as follows in the petition:

“This petition is primarily forward-looking. It is not our intention to examine anew the long-standing policy by virtue of which (with the assistance of settlement organizations) settlements – kibbutzim, moshavim, and outposts -- were established in which, almost always, only Jewish residents lived and live. The petitioners are not focusing their claims on the legitimacy of the policy practiced in this area in the period prior to the establishment of the State and during the years since its establishment. Nor do they dispute the decisive role played by the Jewish Agency in the settling of Jews throughout the country during the course of this century.”

Not only is this petition forward-looking, but it also focuses solely on the communal settlement of Katzir, in the circumstances as they were brought before us. By the nature of things, there exist different kinds of settlements, including kibbutzim, moshavim, and outposts. Different types of settlements may give rise to various difficulties. We did not hear any arguments regarding the different types of settlements and will consequently not adopt any position regarding them. Moreover, there may be special factors to be considered apart from the type of settlement in question, such as factors of national security, which may have significance. No arguments were made regarding any of these factors, and we shall therefore express no opinion on their significance. In addition, we must keep in mind that we are taking the first step on a difficult and sensitive path. It is therefore appropriate that we step heel to toe so that we do not stumble and fall but rather advance carefully from case to case, according to the circumstances of each case. However, even if the road before us is long, it is important that we always bear in mind, not only whence we came, but also to where we are headed.

38. What arises from all of the above as regards the case before us? We have held that the State may not discriminate directly on the basis of religion or nationality in allocating state land. From this it follows that the State is also not permitted to discriminate indirectly on the basis of religion or nationality in the allocation of land. Consequently, the State cannot enable such discrimination by transferring land to the Jewish Agency. There is nothing in the Status of the Agency Law 5713-1952 or in the Covenant between the Government of Israel and the Jewish Agency, which legitimizes such discrimination in the allocation of land. Indeed, according to section 3 of the Covenant, the Jewish Agency operates “on the basis of a program, to which the Government agrees in advance.” However, according to section 8(b) of the Status of the Agency Law, the cooperation between the State of Israel and the Jewish Agency must be “in accordance with the laws of the State.” It is clear that according to this section, and in accordance with basic principles, a plan for cooperation between the State and the Jewish Agency cannot be a discriminatory plan. Discrimination does not lose its discriminatory character, even if it is being carried out through the Jewish Agency, and therefore is not permitted to the State.

The Remedy

39. What remedy, then, are the petitioners entitled to? The answer is by no means simple. The petition, as the petitioners have said, is forward-looking. However, it cannot be forgotten that the State allocated the land on which the communal settlement of Katzir was established according to an agreement that was made in 1986. The agreement was drawn up with the knowledge that the Jewish Agency would invest resources in land development in accordance with its founding documents, in other words, in order to set up a Jewish settlement. And indeed, on the basis of this agreement and in accordance with the founding documents of the Jewish Agency, the Jewish Agency invested resources in the establishment of the communal settlement of Katzir. It was for this purpose that it contracted with the Katzir Cooperative Society. Furthermore, the residents of the communal settlement purchased homes and went to live there, in reliance upon the situation as it existed at the time. All of these factors pose serious difficulties from the perspective of the Agency, the Cooperative Society and residents of the settlement, not only from a social perspective, but also from a legal perspective. For it must be remembered that the decision is being rendered today, approximately fourteen years after the allocation, and after the residents and the Jewish Agency itself acted on the basis of expectations which were accepted at that time and place. All of these create difficulties for the State and may also impose restrictions on the State from a legal perspective. We too cannot ignore these difficulties.

40. In this situation, out of a desire to take all of these factors and difficulties into account, and in order to reach an appropriate balance, we have decided to make the order nisi absolute, in the following manner:

A. We declare that the State was not permitted, by law, to allocate state land to the Jewish Agency, for the purpose of establishing the communal settlement of Katzir on the basis of discrimination between Jews and non-Jews.

B. It is incumbent upon the State to consider the petitioners’ request to purchase for themselves a parcel of land in the settlement of Katzir for the purpose of building their home, and this on the basis of the principle of equality, and taking into consideration factors relevant to the matter-- including the factors which relate to the Agency and the current residents of Katzir –and including the legal difficulties entailed in this matter. On the basis of these considerations, the State must decide, with appropriate speed, whether it can enable the petitioners, within the framework of the law, to build a house for themselves within the bounds of the Katzir communal settlement.

Justice T. Or

I agree.

Justice I. Zamir

I agree.

Justice M. Cheshin

In the allocation of public resources among individuals in Israeli society, the petitioners were discriminated against and are therefore entitled to the remedy to which one who was discriminated against would be entitled. For this reason, I agree with the ruling of my colleague, President Barak.

Justice Y. Kedmi

Opening Comments

1. I concur with President Barak’s fundamental approach regarding the position of the value of equality among the values of the State of Israel and the implications this has for the allocation of state lands. I also agree with the President’s position according to which the application of the value of equality cannot be circumvented, in the present context, by allocating state lands to the Jewish Agency; which in itself is permitted to limit the sector of the population that will benefit from its activities, it being a Jewish Zionist settlement institution.

This fundamental approach does not—to the best of my understanding—prevent us from balancing between the value of equality and other values, including the value of national security. This value speaks of ensuring the existence of the State of Israel as a Jewish and democratic state; and in circumstances in which this is justified – and taking into consideration its location and the purpose of the establishment of a settlement that is located on national land – has the power to gnaw at and even override the value of equality (hereinafter: “the opening for balancing”).

In the early days of the State, the scope and proportions of said “opening for balancing” were relatively wide, in light of the significant weight that other values had – including the value of national security—in the special circumstances that existed at the time. However, as the State continued to develop, and as the perils that stood in the path to its establishment as a Jewish and democratic state lost some of their force, so too did this opening become narrower. Today, the proportions of this opening are particularly narrow and restricted; and such a balancing will be necessary only in rare circumstances. Unfortunately, we have not yet attained rest and tranquility; and so long as we don’t reach that point, there will not – it appears – be any escape from leaving remnants of the opening intact.

From the General to the Specific

2. Against the backdrop of the existence of the opening for balancing, -- in my view -- past allocations of state lands are shielded from re-examination and retroactive adjustment. First, for the reason that they benefit from a presumption according to which: if they did entail a violation of the principle of equality, it is to be seen as having been necessitated by the demands of competing critical interests. The subject of the petition-meaning: the decision to establish a communal settlement in Katzir, whose population is limited to veterans of the Israeli Defense Force—was taken about eighteen years ago; I have found nothing in the material presented before us that justifies undermining the force of said presumption. In my view, it is not sufficient that the location of the communal settlement at issue is topographically close to an urban settlement for which there are no population restrictions, to establish that restrictions of this type in a communal settlement were not necessary at the time—in view of the circumstances that existed at that time—by the balance between the value of equality and other critical values.

And second, in light of the innovation in this judgment, both in terms of the power of the value of equality in all that relates to utilization of national lands generally and in terms of its application in regard to the allocation of such lands to the Jewish Agency in particular. By its nature -- and especially with respect to the allocation of state lands to the Jewish Agency – such an innovation does not operate retroactively.

It is for these two reasons that it is appropriate – in my view -- to satisfy ourselves in the case before us with a declaratory judgment regarding the status and weight of the value of equality with regard to the allocation of state land, as detailed in the President’s opinion; and this, while making it clear that the judgment is forward-looking and does not provide grounds for re-examining acts performed in the past.

Decided by majority opinion, (in opposition to the dissenting opinion of Justice Y. Kedmi) to make the order nisi absolute, as stated in paragraph 40 of the President’s judgment.

March 8, 2000.

1 Adar B 5760

Full opinion:

Ka'adan v. Israel Land Administration.pdf

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

http://elyon1.court.gov.il/files/95/980/066/A14/95066980.a14.pdf