Legislation

Movement for Quality Government in Israel v. The Knesset

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

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

 

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

 

An abstract of the various opinions can be found here.

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

HCJ 5658/23

HCJ 5659/23

HCJ 5660/23

HCJ 5661/23

HCJ/5662/23

HCJ 5663/23

HCJ 5711/23

HCJ 5769/23

 

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

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

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

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

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

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

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

Petitioner in HCJ 5769/23:               Roni Numa

 

v.

 

Respondents in HCJ 5658/23:          1. The Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

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

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

3.  Knesset

4.  Attorney General

5.  Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5661/23:          1. Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5662/23:          1. Knesset

                                                            2. Minister of Justice

 

Respondents in HCJ 5663/23:          1. Knesset

                                                            2. Government of the State of Israel

                                                            3. Knesset Constitution, Law, and Justice Committee

 

Respondents in HCJ 5711/23:          1. Knesset

                                                            2. Government of Israel

 

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

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Knesset Foreign Affairs and Defense Committee

                                                            4. Knesset

 

Amici Curiae:                                    1.  Association for Civil Rights in Israel

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

 

                                               

The Supreme Court sitting as High Court of Justice

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

English cases cited:

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

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

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

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

Indian cases cited:

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

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

Australian cases cited:

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

Canadian cases cited:

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

 

 

Judgment

(January 1, 2024)

 

President (emer.) E. Hayut:

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

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

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

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

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

 

Background

  1. The Reasonableness Standard in Israeli law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Legislative Process of the Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Petitions

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

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

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

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

 

Summary of the Arguments of the Parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Examination and Decision

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

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

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

 

Part I: Judicial Review of Basic Laws

  1. The Power to adopt a Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

  1. Abuse of Constituent Power

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

            From the above we can conclude:

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

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

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

 

C.2. The Role of the Court

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

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

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

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

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

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

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

            Below, I will briefly address each of these aspects.

 

  1. “Chapter by Chapter”

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

            The Exercise of Constituent Power in Practice

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

  1. Interim Summary

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

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

 

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

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

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

  1. Threshold argument: The ripeness of the petitions

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D.        The significance of the Amendment

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

            D.1.     Interpretation of the Amendment

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

                        The Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

            D.3.     Infringement of the separation of powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            D.4.     The harm to the rule of law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In light of the above, it has been stated on more than one occasion that this Court is charged with overseeing the legality and reasonableness of the activities of the State […] The Court’s powers of judgment and judicial review of government authorities constitute “an integral part of a truly democratic society, and anyone undermining this is liable to topple one of the pillars of the state” […] (Hanegbi 2003, 835).

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

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

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

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

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

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

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

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

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

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

            G.        Additional Defects raised by the petitions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

 

Afterward

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

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

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

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

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

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

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

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

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

 

Before Concluding

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

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

 

Conclusion

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

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

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

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

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

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

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

 

                                                                                                            The President (emerita)

 

Movement for Quality Government v. Knesset

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

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

 

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

 

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

 

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

 

 

Voting Justices: 
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Full text of the opinion: 

 

 

 

Abstract

HCJ 5658/23 Movement for Quality Government v. Knesset

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

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

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

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

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

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

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

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

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

 

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

President (emer.) E. Hayut:

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

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

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

 

Justice Y. Elron:

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

 

Jusitce A. Stein:

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

 

Justice I. Amit:

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

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

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

 

Justice G. Canfy-Steinitz:

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

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

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

 

Justice R. Ronen:

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

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

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

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

 

Justice Y. Kasher:

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

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

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

 

Deputy President U. Vogelman:

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

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

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

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

 

Justice D. Mintz:

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

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

 

Justice K. Kabub:

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

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

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

 

Justice (emer.) A. Baron:

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

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

 

Justice O. Grosskopf:

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

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

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

 

Justice D. Barak-Erez:

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

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

 

Justice N. Sohlberg:

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

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

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

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

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

 

 

Quintinsky v. Knesset (summary)

Case/docket number: 
HCJ 10042/16
Date Decided: 
Sunday, August 6, 2017
Decision Type: 
Original
Abstract: 

The petitions challenged the Multiple Apartments Tax Arrangement (hereinafter: the Tax Arrangement) in Chapter XII of the Economic Efficiency (Legislative Amendments for the Implementation of the Economic Policy for Budget Years 2017 and 2018) Law, 5777-2016 (hereinafter: the Economic Efficiency Law), which imposed a designated tax upon owners of multiple apartments whose aggregate rights in the apartments was 249% or more. Under the Tax Arrangement, a holder of apartments to the said extent would be subject to a tax of 1% of “the determining amount” for each apartment held, exclusive of two apartments as he may choose. The Petitioners argued that there was a substantive defect in its legislative proceedings that went “to the heart of the proceedings” – a violation of the principle of the participation of Knesset members in the legislative process – that justified its annulment.

 

The High Court of Justice (per Justice Sohlberg, President Naor and Justices Hayut and Hendel concurring, and Justice Mazuz dissenting) granted the petitions as follows:

 

The High Court of Justice addressed its authority to review the Knesset’s legislative proceedings, noting that the most significant development in the matter of judicial review of legislative proceedings occurred in the Poultry Growers case. That case established that judicial intervention in the legislative process is justified only in the presence of a defect that involves a severe and substantial violation of the basic principles of the legislative process of Israel’s parliamentary and constitutional regime. Such basic principles include decision by the majority, the principle of formal equality (by which each member of Knesset has one vote), the publicity principle, and the principle of participation (by which every Knesset member has the right to participate in the legislative process).

 

The Court’s discussion focused upon the principle of participation. This principle establishes the right of Knesset members not merely to be physically present in plenum and committee debates, but rather requires granting a real, serious and fair possibility to examine, debate, comment and enlighten, question and consider, so that they will be able to form an informed position on the matter concerned. The Poultry Growers case established two related but not necessarily identical criteria for judicial review of the principle of participation: whether the Knesset members were denied any practical possibility of knowing about what they are voting; whether the Knesset members were denied any practical possibility of formulating their position with regard to the draft law. This now requires refinement in the sense that the focus should no longer be upon the question whether the Knesset members “were denied any practical possibility of knowing about what they are voting”, but rather on ensuring that the legislative proceedings allow the Knesset members to form a substantive position, if only in a very limited manner, in regard to the bills placed before them. Adopting a position is not a mere “passive” act, but requires a certain cognitive process, independent processing of the information presented to the Knesset member, and the formulation of an informed decision for or against the proposed law. Only when such an opportunity is provided, can it be said that the Knesset members were granted an opportunity to participate in a real, active sense in the legislative process. However, the Knesset is not under a duty to conduct a hearing like the “due process” required of administrative agencies, but Knesset members must be afforded the opportunity to formulate an informed position, if only minimally.

 

The following parameters may serve in assessing whether the Knesset members were, indeed, afforded the possibility for a proper debate: the length of the debate, and whether it was proportionate to the length of the bill, its complexity and the scope of its consequences; a unique, complex bill should be debated independently of other matters, sometimes in the relevant Knesset committee, in a manner that would allow appropriately serious consideration; the effect of the committee or plenum debate upon the wording and content of the bill; the factual foundations provided with the bill; the period of time that elapsed from the time the bill – or at least the essential or major part of its arrangements – was presented for examination by the Knesset members and the date of the debate; etc. This is not a “checklist” whose elements must be examined independently, but it can be useful in accordance with the particular circumstances of any specific case in assessing whether the principle of participation was met in practice.

 

The question in the present matter is whether the members of Knesset were afforded an opportunity to formulate an informed position in regard to the bill. The Court found that the haste that characterized the enactment of the Arrangement Law was inconsistent with the manner in which a parliamentary debate should be held. However, despite the not inconsequential problems presented by the procedural framework through which the Tax Arrangement was enacted, recourse to it does not, itself, invalidate a law. However, the cumulative circumstances surrounding the legislative proceedings of the Tax Arrangement in the course of the preparation of the bill leads to the conclusion that there was a defect that went to the heart of the legislative process. None of the individual elements of the process would, itself, serve as grounds for voiding the legislative proceedings. However, no real debate could be conducted when consideration is given to the hurried schedule in which the Knesset members were required to hear the reading of the bill, understand and process the explanation of its provisions, express their opinions and listen to other opinions, all in the middle of the night, following long days of debate on other matters, and all the while being pressed to hurry. Although the Knesset members received explanations of the bill, and it is reasonable to assume that they “knew what they were voting on”, the cumulative circumstances reflect a lack of an opportunity to conduct a real, even if minimal, debate. The members of the Finance Committee were not afforded an opportunity to formulate an opinion, and the legislative proceedings did not afford a possibility for realizing the principle of participation.

 

The defect in the Multiple Apartments Tax Arrangement goes to the heart of the proceedings. However, this does not require the voiding the legislation, and relative voidness would suffice. Therefore, the Court ordered the annulment of Chapter XII of the Economic Efficiency Law, i.e., the annulment of the Multiple Apartment Tax. The legislature could “return” to the legislative process from the stage of deliberation in the Finance Committee – the stage at which the defect occurred – and continue as required.

 

The case represents something of a development of the rule established in the Poultry Growers case. The participation principle established there was restated in a new and more detailed manner. The decision also moved the boundary and somewhat widened the scope of judicial review in regard to an infringement of the right to substantive participation.

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

The Supreme Court sitting as High Court of Justice

HCJ 10042/16

HCJ 10046/16

HCJ 10054/16

HCJ 76/17

HCJ 802/17

 

Quintinsky v. Knesset

 

In the matter of the Multiple Apartments Tax Arrangement

 

Summary

 

            The petitions challenged the Multiple Apartments Tax Arrangement and its legislative procedures. An expanded five-justice panel of the Court (per Justice N. Sohlberg, Deputy President M. Naor and Justices E. Hayut and N. Hendel concurring, Justice M. Mazuz dissenting) granted the petitions and declared the Multiple Apartments Tax Arrangement relatively void, such that that the Knesset was not required to revisit the legislative proceedings prior to the Arrangement’s deliberation in committee in preparation for the second and third readings, but could “return” to the legislative proceedings from the point in which the defect occurred – i.e., the stage of the deliberations in the Finance Committee.

1.         The Tax Arrangement, anchored in Chapter XII of the Economic Efficiency (Legislative Amendments for the Implementation of the Economic Policy for Budget Years 2017 and 2018), 5777-2016, imposed a designated tax upon owners of multiple apartments whose aggregate rights in the apartments was 249% or more. Under the Tax Arrangement, a holder of apartments to the said extent would be subject to a tax of 1% of “the determining amount” for each apartment held, exclusive of two apartments as he may choose, where the “determining amount” would be calculated in accordance with a formula set out in the Appendix to the Law.

2.         Five petitions were submitted, arguing that the Court should annul the law both for defects in the legislative process and for unconstitutionality. On Feb. 28, 2017, the Court issued an order nisi requiring the Respondents to show cause why the Tax Arrangements should not be revoked “due to a substantive defect in its legislative proceedings that goes to the heart of the proceedings”. Inasmuch as the order nisi addressed only the defects in the legislative proceedings, the Court’s judgment focused solely upon that subject.

3.         At the outset of his opinion, Justice N. Sohlberg addressed the fundamental guiding principles of judicial review of the Knesset’s legislative procedures. On the one hand, he emphasized the principle of the separation of powers, from which the Knesset derives its elevated status as an independent authority entrusted with legislation, and which requires restraint and moderation in the judicial review of its actions. On the other hand, he presented the justifications for judicial intervention in the legislative process, bearing in mind, inter alia, the principle of the rule of law and the Knesset’s role in supervising and monitoring the activities of the government. Indeed, the principle of the separation of powers requires that judicial review of the legislative process be carried out with awe and reverence, moderation and respect. However, it also requires that the Court vigilantly stand guard lest the Knesset serve as the government’s doormat. This particularly so in Israel’s parliamentary regime in which the executive branch controls a majority of the members of the legislative branch, and all the more so when an “exceptional” legislative process like that of the Arrangements Law is concerned. The Court must, therefore, ensure that the Knesset fulfils it role faithfully and responsibly, inter alia through a proper, productive legislative process. Justice Sohlberg also noted that the Court was not concerned with review of the content of the Law, but solely with an examination of the process of its enactment.

4.         After presenting the guiding principles, Justice Sohlberg addressed the criteria for judicial review of the legislative process as developed in HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society v. Government of Israel, IsrSC 59(2) 14 (2004) (hereinafter: the Poultry Growers case) – deemed the leading case on the subject of judicial review of the legislative process – which established that judicial intervention in the legislative process is justified only in the presence of  “a defect in the legislative process that ‘goes to the heart of the process,’” that involves a severe and substantial violation of the basic principles of the legislative process. Such defects include, inter alia, the “principle of participation”, which is examined on the basis of two criteria: the first is whether the Knesset members were “denied any practical possibility of knowing about what they are voting”; the second is whether the Knesset members were denied any “practical possibility of formulating their position with regard to the draft law”.

5.         Thirteen years having passed since the Court’s decision in the Poultry Growers case – and in light of the experience accumulated in the interim, and in view of the Knesset legal adviser’s statement in the course of hearing this case that the case law does not currently provide adequate guidance to the legislature – Justice Sohlberg was of the opinion that some further polishing and direction was required. The Poultry Growers case had served its purpose, but at present, achieving a proper balance between the Knesset’s sovereignty and the need for legislative procedures appropriate to Israel’s constitutional parliamentary regime required that emphasis no longer be placed upon the question whether the Knesset members were “denied any practical possibility of knowing about what they are voting”. Rather, a somewhat different, more easily implemented and effective test was required along the lines of the second criterion raised in the Poultry Growers case. The legislative process must allow the members of the Knesset to adopt a substantive position, if only in a very limited manner, in regard to the bills placed before them. Under this approach, adopting a position is not a mere “passive” act, but requires a certain cognitive process, independent processing of the information presented to the Knesset member, and the formulation of an informed decision for or against the proposed law. Only when such an opportunity is provided, can it be said that the Knesset members were granted an opportunity to participate in a real, active sense in the legislative process.

6.         Justice Sohlberg addressed the substance and importance of parliamentary debate, and held that a proper legislative process requires debate in the substantive sense of an exchange of ideas. In the absence of an opportunity to conduct a debate, the Knesset members’ participation in the legislative process is deprived of content, and is limited merely to a basic, “passive” understanding of the proposals before them. In such a situation, there is a not-insignificant fear that the Knesset will become a “rubber stamp” for the law’s sponsors – at times, the executive branch which, as noted, enjoys a parliamentary majority. Justice Sohlberg emphasized, however, that the Knesset is not under a duty to conduct a hearing like the “due process” required of administrative agencies. The Court’s intervention in the legislative process would be justified only when Knesset members are deprived of any practical possibility for conducting a minimal discussion of the proposed bill and form an opinion in its regard – even if only in the most basic sense (para. 79 of the opinion). However, if the legislative process was conducted in the said manner, but the Knesset members failed to exploit the opportunity afforded them, there would be no grounds for judicial intervention that would “coerce” the Knesset members to conduct themselves in some particular manner.

7.         Justice Sohlberg further stressed that the question whether a parliamentary debate was conducted must not be examined in accordance with rigid, formal rules in the absence of which the principle of participation is not fulfilled. Care must be taken not to set an overly high, unattainable bar. Often, time limitations and workloads do not permit “sitting seven clean days” on every law, and conducting a comprehensive, exhaustive discussion of every jot and tittle. Clearly, it is often impossible to grant each and every Knesset member the opportunity to present all of his arguments at length and in detail. Judicial review of the legislative process thus requires addressing the matter in light of all its circumstances.

8.         Justice Sohlberg also addressed the “exceptional” procedural framework through which the Tax Arrangement was enacted. In this regard, he noted that the need for the earlier noted parliamentary debate would seem to be inconsistent with the haste that characterized the enactment of the Arrangement Law, but he nevertheless held, in accordance with the holding in the Poultry Growers case, that despite the not inconsequential problems presented by this legislative mechanism, recourse to it does not, itself, invalidate a law. Judicial review of the legislative process must be substantive, and must focus upon the maters themselves, viz., whether there was a clear, serious infringement of the fundamental principles of the legislative process. This conclusion is a consequence of the view that even if ab initio it were preferable to take the ‘high road” of the normal legislative process, after the fact there is no justification for judicial intervention in the legislative process as long as the fundamental principles of the process were maintained. Moreover, we must take care not to adopt a “pure” approach that would impose demands upon the legislative process that the public’s representatives would be unable to maintain. Therefore, the government must be permitted some leeway in this regard, and the Court should not preclude a priori a mechanism that facilitates a more rapid legislative process that makes it possible to combine matters that are directly and substantively connected to achieving the budgetary goals, as long as this does not constitute a clearly serious violation of the fundamental principles of the legislative process.

9.         Against this background, Justice Sohlberg examined the legislative process of the law under review, and held that the cumulative circumstances surrounding the legislative proceedings of the Tax Arrangement in the course of the preparation of the bill by the Finance Committee for a second and third reading leads to the conclusion that there was a defect that went to the heart of the legislative process. In this regard, Justice Sohlberg took note of the hurried schedule of the Finance Committee’s debate, which did not allow the Knesset members time to examine the details of the updated bill prior to the debate; the atmosphere of haste, pressure and panic that characterized the Committee’s debate (as reflected by the protocol of the session); and the complexity of the Multiple Apartment Tax Arrangement, which had serious economic and legal ramifications, and which could not be addressed in a hasty, routine manner.  It was further emphasized that no one characteristic of the process under review, alone, constitutes grounds for annulling the legislative procedure. However, when members of Knesset are required to hear the reading of the provisions of a bill – “new” as well as “old” – understand and assimilate the explanations, express an opinion and listen to other opinions under such time restraints and haste, in the middle of the night, and following long, exhausting debates of other issues, while all the while being pressed to hurry, it becomes clear that no real debate can be held. Inasmuch as the members of the Finance Committee who so desired were not granted an opportunity to conduct a proper debate and form a considered opinion in regard to the Multiple Apartments Tax Arrangement, the principle of participation was clearly and substantially infringed. Under such circumstances, there is no recourse but to hold that there was a flaw going to the heart of the legislative process of the Multiple Apartments Tax.

10.       Incidentally, Justice Sohlberg noted that the “abandoning” of the Finance Committee debate by members of the opposition may have had its political reasons, but such conduct does not provide grounds for judicial review of the process. Judicial review of the legislative process focuses upon the possibility afforded the Knesset members to conduct a debate and establish a position in regard to the bill. A Knesset member’s choice to relinquish that possibility does not itself justify judicial intervention.

11.       As for the remedy, Justice Sohlberg held that the finding of a flaw going to the heart of the legislative process does not necessarily require the nullification of the legislation under review. A distinction must be drawn between the question of the existence of a flaw going to the heart of the process and the question of the conclusion to be drawn from such a flaw. The decision as to the consequences of a flaw in the legislative process must be examined in light of the doctrine of relative voidness. In that framework, consideration must be given to the public interest that may be harmed from declaring a law or administrative act to be void, as well as to the extent of reliance upon the legislation, the scope of reasonable expectations that it created, and the consequences of declaring it void.

12.       Justice Sohlberg addressed the proposal of the Knesset’s attorney that a “warning of voidness” – a cautionary sign for the future – would suffice, but held that it would be inadequate under the circumstances. From a forward looking perspective, a mere warning would be insufficient in view of the seriousness of the defect in the legislative process, as well as in light of the opinion of the Knesset’s legal adviser in regard to the need to give expression to the principle of participation and the need to set a minimum standard, and also owing to the fact that warnings – that were, in effect, “warnings of voidance” – were repeatedly given in the past, along with expressions of great concern in regard to flaws in hasty  legislative procedures in regard to the Arrangements Law and other laws.

13.       The arguments in regard to expectations created by the Tax Arrangement were examined, along with the reliance upon its provisions in the marketplace and the public arena, and particularly by individuals, but such expectations were not found sufficient to justify retaining the Tax Arrangement. While some individuals and some of the public would certainly lose due to the nullification of the Multiple Apartments Tax, that loss would be made up for by the gain of proper legislative practices. Moreover, an examination of the protocol of the Finance Committee’s debate, and in light of the arguments made by the parties, the possibility cannot be ruled out that a proper debate in the Committee prior to the second and third readings may have resulted in changes in the content of the chapter concerning the Multiple Apartments Tax that would have influenced the ultimate legislative product.

14.       In this regard, Justice Sohlberg emphasized that the judgment was entirely focused upon the legislative process, and not on the content or wisdom of the Tax Arrangement. The Knesset may reenact the Multiple Apartments Tax Arrangement, and such a reenacting would not be what is polemically referred to as a “High Court bypass law”. A proper legislative process could give the Tax Arrangement legal force. Only then will the Arrangement’s expectations, reliance interests, and purposes be properly founded.

15.       Lastly, it was held that despite the severity of the defect in the legislative process, it was centered in the Committee’s deliberations in preparation for the second and third readings. That being the case, it would be proper that the remedy be focused upon what needed correction and not beyond that. There is no need or justification for voiding the entire legislative process and starting again from the beginning, which would cause greater harm than benefit. In light of that, Justice Sohlberg proposed ordering the Multiple Apartments Tax Arrangement relatively void, that is, it would not be necessary to repeat the legislative stages prior to the Committee’s deliberations in preparation for the second and third readings, and the legislature could “return” to the legislative process from the stage of deliberation in the Finance Committee – the stage at which the defect occurred – and continue as required.

16.       President M. Naor concurred in the judgment of Justice Sohlberg, the main points of which were presented above, and added only a few comments of her own. Inter alia, President Naor addressed the role of the chair of a Knesset committee and that of the chair of the Finance Committee in particular. The President noted that while the role of the chair of the Finance Committee is complex and requires consideration of various interests, ultimately, as the chair of a Knesset committee he must ensure the principle of parliamentary independence and the conducting of a proper legislative process. On one hand, he must ensure efficient debate, while on the other hand, he must not surrender to a demand to bring a law to a vote at any price and at any time. Against this background, the President noted that in the instant case the Chair of the Finance Committee should have acted differently, for example, by convening a further hearing on the bill on the following day, as was requested by some of the committee’s members. The President further noted that the Court had expressed criticism in regard to the legislative process, but had refrained from intervening in a law that had been enacted by such a process due to the restraint and moderation demanded by the relationship among the branches of government. However, she emphasized that this does not mean that “everything is permitted” in legislative proceedings. When the separation of powers is undermined, it is the role of the Court to ensure that each branch act within its own realm.

17.       Justice E. Hayut concurred in the judgment of Justice N. Sohlberg, and noted that given the inherent problems of accelerated legislative proceedings, as in the case of the Arrangements Law, there is no avoiding the presumption that such proceedings are facially susceptible to defects. She therefore added that it is important to establish rules and criteria that would lessen the threat, and it is regrettable that such rules have not been incorporated into the Knesset rules even 13 years after the Poultry Growers case. Justice Hayut noted that the Knesset’s legal adviser, Advocate Eyal Yinon, faithfully fulfilled one of his central statutory roles in clearly explaining to the Knesset House Committee, in advance, the importance of strict observance of the proper legislative procedures despite the pressing schedule. However, the new draft of the Multiple Apartments Tax Arrangement was only presented for the review of the members of the Finance Committee at the outset of the debate upon it, which raised objections from Knesset members from the entire political spectrum, as well as by the committee’s legal adviser. Under such circumstances, “the writing was on the wall” and it was clear that the debate that was about to take place under such circumstances would be improper and tainted by a defect that went to the heart of the process. In regard to the Knesset legal adviser’s letter warning that there was a defect going to the heart of the legislative process of the Multiple Apartments Tax Arrangement, and the Knesset Speaker’s letter asking the chair of the Finance Committee to consider reconvening the committee in view of the defects in the legislative process, Justice Hayut noted that one might have expected that such an exceptional letter from the Knesset legal adviser, especially when accompanied by a request from the Speaker, would have fallen on attentive ears. Unfortunately, the chair of the Finance Committee did not heed that call, and we have thus arrived at this juncture. Inasmuch as more-than-sufficient “warnings of voidance” were given in this matter, Justice Hayut concurred in the opinion of Justice Sohlberg and the remedy he proposed.

18.       Justice N. Hendel concurred in the opinion of Justice N. Sohlberg, and expanded upon the theoretical and practical importance of the right of Knesset members to participate in legislative proceedings from the perspectives of political theory and Jewish law. Often, modern legislation is not the product of philosophical enquiry seeking truth and justice, but rather of political negotiations that involve political pressure and the relinquishing of principles. However, such a procedure does not violate the honor of legislation, as that derives from the nature of the common social project reflected by lawmaking. That joint creation that balances the values of all parts of society is a significant achievement that grants the law a special status worthy of public respect. But that is only true if the representatives of all the public were afforded an opportunity to participate in the legislative process. It is that participation that makes the law a foundational, unifying force, and transforms the exigencies of the process from coercion to a source of strength.

            Justice Hendel further addressed the question of the duty of Knesset members to participate in the legislative process. Jewish law stresses the recognition of this view in light of the conception of the public’s elected representatives as partners, agents and trustees of the public. Common to these approaches is a raising of the bar required of the holders of elected office. Justice Hendel’s opinion referred to a number of halakhic decisors who were active at the time of the establishment of the State of Israel and thereafter who were supportive of democracy in general, and of the State of Israel in particular. As opposed to Jewish law, Israeli law leaves the duty of Knesset members to participate in the legislative process to the public sphere. But that public duty of participation also carries legal weight when the scope of the right to participation is examined.

            The importance of the right of participation and the existence of a “public duty” of Knesset members to participate in the legislative process lead to the conclusion that, in the instant case, members of Knesset were actively deprived of that right of participation to an extent of a flaw going to the heart of the process that leads to the nullification of the law.

 

Dissent of Justice M. Mazuz:

 1.        Justice M. Mazuz, dissenting, was of the opinion that the petitions should be denied. He disagreed with the Court majority both in regard to the principles applied in reviewing the process in this case, as well as in regard to the application of those principles to the instant case.

2.         In the opinion of Justice Mazuz, the majority’s approach constituted an unjustified, substantive deviation from over three decades of the Court’s consistent precedent in regard to judicial intervention in the Knesset’s legislative process. The approach to intervention in the Knesset’s work procedures had, until now, been limited to protecting the democratic “rules of the game”. It was accordingly held that the Court would intervene in the internal decisions of the Knesset only when confronted by a serious violation of “substantive values of our constitutional regime” (the Sarid rule [HCJ 652/81 Sarid v. Speaker of the Knesset, IsrSC 36(2) 197]). That position was justified, inter alia, by considerations of the separation of powers and mutual respect among the branches of government.

3.         As far as the constitutional review of a law on a claim of flaws in its legislation, the leading case in this matter (the Poultry Growers case) established a more exacting rule under which the Court’s intervention is limited only to cases in which it is proven that the legislative process was tainted by “a defect in the legislative process that ‘goes to the heart of the process.’ A defect that ‘goes to the heart of the process’ is a defect that involves a severe and substantial violation of the basic principles of the legislative process in Israel's parliamentary and constitutional system”. That rule, which the Court reiterated on numerous occasions, focuses upon preserving the democratic “rules of the game” in regard to the legislative process (“the basic principles of the legislative process”), and expressly held that the Court would not review the legislative process on the basis of arguments as to the quality of debate (“proper legislative process”). In accordance with that rule, all of the many petitions submitted in this matter to date were unanimously denied.

4.         Justice Mazuz was of the opinion that although the majority viewed their position as implementing the extant rule in this matter, its approach actually represents a substantive change of the rule in law and in practice. In practice, the majority approach abandons the rule established in the Court’s consistent precedent that focuses upon protection of a Knesset member’s right of participation in the legislative process, and concentrates its constitutional review for claims of defects in that process upon criteria that concern the quality of the of the legislative debate in the Knesset (the length of the deliberations on the bill; the influence of the deliberations upon the bill; and the time that elapsed from the presentation of the bill for examination by the Knesset members and the date of the deliberations), inter alia in reliance upon criteria proposed by Victor Goldfeld in the framework of the doctrine of “legislative due process”, a doctrine expressly rejected by the Israeli Supreme Court.

5.         In the opinion of Justice Mazuz, we are concerned with a far-reaching change in the delicate, sensitive relationship between the Court and the Knesset in its primary role as the legislature – from the role of protecting the democratic “rules of the game” to that of conducting detailed review of the quality of the Knesset’s legislative debates. In Justice Mazuz’s view, this is a very problematic conception that raises a series of difficult theoretical and practical issues, both in terms of the normative aspect of the principles of constitutional review and in terms of the principle of the separation of powers and inter-institutional comity, as well as in terms of its practical consequences. This approach was expressly rejected over and over again by the Supreme Court in a large number of judgments spanning over three decades, and it has no counterpart in the law of other states.

6.         In the opinion of Justice Mazuz, an examination of the procedures adopted in enacting the Multiple Apartments Tax Law clearly shows that there was no violation of the right of the members of Knesset in general or of members of the Finance Committee in particular to participate in the legislative process. The rule of intervention established by the case law in this regard refers to a situation in which Knesset members are “denied any practical possibility” of knowing about what they are voting and of formulating their position with regard to the draft law. An examination of the matter refutes the argument that such was the case in matter before the Court.

            The proposal regarding the “Multiple Apartments Tax” was published for public review on Aug. 2, 2016. Shortly thereafter, the proposal was approved by the Government, and a memorandum of the law was published for public comment. After comments were obtained from various bodies, the bill was approved by the Ministerial Legislation Committee. The bill was submitted to the Knesset on Oct. 31, 2016, and was debated in two lengthy sessions of the Finance Committee held three weeks apart. The first session, held on Nov. 21, 2016, lasted some two-and-a-half hours. In the course of that session, the details of the bill were presented and comments and objections were voiced by members of the committee. The second session was held on Dec. 15, 2016. That marathon session lasted some eight hours, and at its conclusion, the bill was approved for submission to the plenum for a second and third reading. During this not inconsiderable period from the publication of the first proposal, the proposal was the subject of active, sometimes turbulent debate in the media and in various public forums. In addition, during the period of some three weeks between the two sessions of the Finance Committee, meetings and consultations were conducted between representatives of the Ministry of Finance and coalition and opposition members of the committee, as well as with the legal advisers of the committee and representatives of the Bar Association and the Institute of Certified Public Accountants. While by the very nature of the process, various changes were made in the bill in the course of the process, primarily in response to requests by Knesset members, these were included in the draft presented to the committee prior to the debate, and they were also presented and explained in the lengthy concluding session by senior representatives of the Treasury who were present at the session.

7.         Under these circumstances – in which the legislative process proceeded for nearly five months, including publication to the public, a plenum debate and vote in the first reading, two lengthy sessions of the Finance Committee, and a plenum debate and vote on the second and third readings – one can hardly say, in the opinion of Justice Mazuz, that the members of Knesset were denied any practical possibility of formulating their position and of knowing about what they were voting, which is the test for a constitutional violation of the right of participation.  Justice Mazuz was also of the opinion that this was not a legislative process of which to be proud. There is no doubt that the haste and urgency of the concluding session of the Finance Committee impeded the possibility for a detailed examination of the bill. However, that is not the test for intervention, particularly when the Knesset members were acquainted with the main points of the bill for some considerable time.

8.         In Justice Mazuz’s opinion, even a comparison between the circumstances and defects argued against the process in the present case and those addressed in prior judgments shows that the defects in the present case were not of a kind that differed or were of greater severity than those addressed in previous petitions that were all denied. On the contrary, in at least some of the previous petitions, including that of the Poultry Growers case itself, the defects were clearly more severe in various aspects. In the opinion of Justice Mazuz, this demonstrates that the criteria applied in this case were different from those applied in the Court’s previous decisions.

9.         Justice Mazuz was of the opinion that broadening the scope of constitutional review of legislative proceedings also raises a significant theoretical normative problem in regard to the source of authority for constitutional review of the quality of legislative proceedings themselves. Justice Mazuz surveyed the legal situation in other countries (the United States, England, Canada and Germany), and pointed out that constitutional review of legislative proceedings per se is not accepted in those countries, and that the approach adopted by the Court’s majority deviates from the accepted practice of other states.

10.       In concluding, Justice Mazuz expressed a dissenting view in regard to the appropriate remedy in this case, as well. In his view, even if there were defects in the legislative procedures that would justify the Court’s intervention – as was the view of the majority, and with which he disagreed – the operative result decided upon by the Court’s majority is not the remedy that accords with the circumstances and the principles of constitutional relief. In his view, it would have been sufficient in this case to point out the defect, which did not influence the results of the vote, or to issue a “warning of voidance”, or at most, to declare “delayed voidance”, that is, to establish a time frame during which the law would remain in force and during which the Knesset could reenact the law from the point in which the alleged defect occurred.

Desta v. Knesset

Case/docket number: 
HCJ 8665/14
Date Decided: 
Tuesday, August 11, 2015
Decision Type: 
Original
Abstract: 

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

 

The petition challenged the constitutionality of sec. 30A and Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014, which establish that infiltrators into Israel can be detained in custody for a period of up to three months, and can be ordered to stay in a residency center for up to twenty months.

 

An expanded panel of nine justices of the High Court of Justice held:

 

The Court unanimously upheld the constitutionality of sec. 30A of the Law that permits holding infiltrators in custody for a period of up to three months, subject to the Court’s interpretation of the law as requiring an integral connection between holding a person in custody and the process of his identification and exhausting avenues for his removal from Israel.

 

President M. Naor, writing for the majority (Justices S. Joubran, E. Hayut, Y. Danziger, and Z. Zylbertal concurring), addressed the fact that sec. 30A of the Prevention of Infiltration Law infringes the constitutional right of infiltrators to liberty. In the opinion of President Naor, shortening the period of custody (pursuant to HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) and HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014)) does not itself eliminate the infringement of the constitutional rights of infiltrators. In view of the sec. 30A’s infringement of constitutional rights, President Naor proceeded to examine whether the section met the criteria of the Limitation Clause. President Naor held that in view of the Law’s legislative history and considering the significant reduction of the period of custody that brought it in line with what is generally acceptable in the world, the main purpose underlying sec. 30A is the identification of the infiltrator and exhausting avenues for his removal from Israel, while deterrence is only an ancillary purpose. The President therefore found that the period currently established is proportionate and constitutional, subject to the correct interpretation of the Law according to which if holding an infiltrator in custody no longer serves the purpose of identification and removal, there is no further justification for continuing custody. This is the case even if three months have not passed since the beginning of custody. Subject to this interpretation, sec. 30A passes constitutional review and should not be annulled.

 

The majority also upheld the constitutionality of Chapter D of the Law, concerning the authority to order that an infiltrator stay in a residency center, with the exception of secs. 32D(a) and 32U, which establish a twenty-month maximum for staying in a residency center. These sections were annulled after a finding that the said period was not proportionate. The majority also ordered that the declaration of the annulment of these sections would be held in abeyance for a period of six months. During that abeyance, the maximum period for holding a person in a residency center under these sections would be twelve months. Residents who had been in the residency center for twelve months or more on the date of the judgment would be released immediately, and no later than fifteen days from the date of the judgment. The Court emphasized that if the Knesset would not enact new provisions in this regard by the end of the six-month period, the authority of the Director of Border Control to issue residency orders to infiltrators would lapse.

 

Inter alia, President Naor emphasized that the primary purpose of the Law – preventing infiltrators from settling in the urban centers – does not focus upon any individual infiltrator or a threat presented by such a person to society. Rather, it concerns the desire to ease the general burden upon the urban centers and their residents. In order to achieve that purpose, there is no need to hold any particular infiltrator in the residency center, but rather it is sufficient to hold a group of different infiltrators at any given time. Therefore, President Naor was of the opinion that it was possible to suffice with a significantly shorter period of time while still achieving the Law’s purpose.

 

Justices U. Vogelman and I. Amit (concurring and dissenting) agreed with the above position of the majority in regard to sec. 30A and Chapter D, however they were of the minority view that sec. 32T – authorizing the Director of Border Control to order that a resident of the residency center be transferred to detainment – is also unconstitutional. Justice H. Melcer also agreed with the majority opinion, but subject to the proviso that the government first consider the alternative of geographical restriction. Justice Melcer dissented in regard to the transitional order.

 

Justice N. Hendel (dissenting) was of the opinion that the petition should be denied in its entirety. In his opinion, even the provision in regard to the maximum period for staying in a residency center passed the tests for constitutionality.

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

In the Supreme Court sitting as High Court of Justice

HCJ 8665/14

 

Before:                                    President M. Naor

                                    Justice S. Joubran

                                    Justice E. Hayut

                                    Justice H. Melcer

                                    Justice Y. Danziger

                                    Justice N. Hendel

                                    Justice U. Vogelman

                                    Justice I. Amit

                                    Justice Z. Zylbertal

 

Petitioners:                  1. Teshome Nega Desta

                                    2. Anwar Suliman Arbab Ismail

                                    3. Hotline for Refugees and Migrants

                                    4. Association for Civil Rights in Israel

                                    5. ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel

                                    6. Worker’s Hotline

                                    7. Physicians for Human Rights – Israel

                                    8. African Refugee Development Center

                                               

                                                                        v.

 

Respondents:              1. Knesset

                                    2. Minister of the Interior

                                    3. Minister of Defence

                                    4. Minister of Public Security

                                    5. Attorney General

 

Request to join as amici:                     1. Eitan - Israeli Immigration Policy Center

                                                            2. Kohelet Policy Forum

                                                            3. Legal Forum for Israel

4. Concord Research Center for Integration of International Law in Israel

 

Objection to granting an order nisi

Date of Hearing:                                 14 Shevat 5775 (Feb. 3, 2015)

 

Attorneys for the Petitioners: Adv. Oded Feller; Adv. Anat Ben-Dor; Adv. Asaf Weitzen; Adv. Osnat Cohen Lifshitz; Adv. Aelad Cahana; Adv. Rachel Friedman; Adv. Yonatan Berman

 

Attorney for Respondent 1: Adv. Gur Bligh

Attorney for Respondents 2-5: Adv. Yochi Gnessin; Adv. Ran Rozenberg; Adv. Moriah Freeman; Adv. Noam Mola

Attorney for Amicus 1: Adv. Guy Tsabari

Attorney for Amicus 2: Adv. Ariel Erlich

Attorney for Amicus 3: Adv. Idan Abuhav

Attorney for Amicus 4: Adv. Avinoam Cohen

 

 

Judgment

 

President M. Naor:

 

The petition before the Court challenges the constitutionality of Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment). This chapter amends the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), and establishes provisions for the detention of infiltrators for a period of up to three months, and to order that they be held in a residency center for up to twenty months. The Amendment, which passed second and third readings in the Knesset on Dec. 8, 2014, was enacted after this Court held in two previous judgments that certain provisions that had been added to the Law by previous amendments were unconstitutional (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)).

 

General Background

1.         Over the last few years, tens of thousands of people, many of them nationals of African countries, entered Israel without passing through the border control stations. The Law defines these people as “infiltrators” because they did not enter Israel legally. This, as opposed to persons who entered Israel legally but who did not leave on the required date, thus continuing to remain in the country unlawfully. 

2.         The infiltration phenomenon presents Israel with complex challenges. While it must prevent illegal immigration, the state must also uphold its obligations to protect persecuted persons and ensure that they not face a situation that would threaten their lives or freedom if deported (HCJ 7302/07 Foreign Workers Hotline v. Minister of Defence, para. 13 (July 7, 2011) (hereinafter: the Hotline case)). In the Adam case and the Eitan case, we noted that these challenges are not unique to Israel, and that there has been a constant rise in the number of men and women wandering outside their countries for various reasons over the last decades.

3.         According to the current data of the Population and Immigration Authority, as of June 30, 2015, a total of 64,309 infiltrators have entered Israel, of whom 45,091 are currently present in the country. Until 2012, infiltration followed an upward trend, which has since reversed. While 17,258 infiltrators entered the country in 2011, only 45 entered in 2013, and 21 in 2014. In the first half of 2015, 39 infiltrators entered the country. In the years 2013-2014, there was an increase in the number of infiltrators leaving Israel. Despite the said changes in the scope of the infiltration phenomenon, the State of Israel must still contend with a large number of infiltrators living in its territory (and see: the Eitan case, para. 40 of the opinion of Justice U. Vogelman, further references in this judgment refer to the opinion of Justice Vogelman, unless otherwise noted). Most of the infiltrators currently present in Israel (some 92 percent) are nationals of Eritrea and the Republic of Sudan (hereinafter: North Sudan) (Population and Immigration Authority, Policy Planning Department, Data on Foreigners Policy in Israel – Publication no. 2/2015 (July 2015)).

4.         In the previous proceedings, the Court noted that the parties disagree as to the reasons that brought the infiltrators to Israel. That disagreement has also arisen in these proceedings. The State is of the opinion that the overwhelming majority of infiltrators are economic migrants who left their countries in order to improve their situations. Therefore, in addition to the legislative arrangements that are the subject of these proceedings, the Amendment also comprises Chapter B (which is not challenged in this petition), which amends the Foreign Workers Law, 5751-1991, by reference, and imposes various restrictions upon the employment of infiltrators. As opposed to this, the Petitioners are of the opinion that we are concerned with people who fled their countries of origin due to threats to their lives or liberty. The Petitioners note that Eritrea and Sudan – the countries of origin of most of the infiltrators – are countries that have suffered internal instability, and in which there have been crises and wars over the last years (the Adam case, para. 6 of the opinion of Justice E. Arbel, further references in this judgment refer to the opinion of Justice Arbel unless otherwise noted; the Eitan case, para. 31). Against this background, the Petitioners argue that many of the infiltrators are entitled to refugee status. According to the Petitioners, that status is not limited to a prohibition upon deportation to the country of origin, but grants additional rights in various areas (Convention Relating to the Status of Refugees of 1951, 5 Kitvei Amana 3 (opened for signature in 1951), and the Protocol Relating to the Status of Refugees of 1967, 21 Kitvei Amana 23 (opened for signature in 1967) (hereinafter referred to jointly as the Refugee Conventions); the Eitan case, paras. 32-36).

5.         As noted in the previous proceedings, “the true picture as to the identity of the infiltrators is certainly more complex than either side seeks to present. Alongside the economic motive that may be assumed to have driven many of the infiltrators to come to the State of Israel, we cannot casually deny the claims relating to fleeing the dangers that threatened them in their country” (ibid., para. 31). This is also true in the matter before us. In any case, at present Israel does not deport nationals of Eritrea and North Sudan directly to their countries. According to the information presented to us, nationals of North Sudan are not repatriated due to practical problems deriving from the lack of diplomatic relations with that country (for a more detailed discussion of this issue, see ibid., paras. 31-32; the Adam case, para. 8). As opposed to this, due to the situation in Eritrea, the State has adopted a policy of “temporary non-deportation”. This is in accordance with the customary international law principle that a person cannot be removed to a place that presents a danger to his life or liberty (the principle of non-refoulement; see, inter alia, para. 33 of the Refugee Convention). This Court addressed the non-deportation policy as implemented by Israel at some length in earlier judgments (the Adam case, paras. 8-9; AAA 8908/11 Asafu v. Ministry of the Interior (July 7, 2012) (hereinafter: the Asafu case)). At present, only “temporary non-deportation” is involved, without establishing any associated, specific arrangement treating of its practical implications and the nationality rights of those enjoying it (for a criticism of this normative situation, see ibid., the opinion of Justice E. Hayut).

6.         To complete the picture, we would note that the said policy does not currently prevent nationals of Eritrea and Sudan from submitting individual requests for recognition as refugees, although the State formerly limited this (see: the Eitan case, para 34; the Asafu case, para. 18 of the opinion of Justice Vogelman). Until a few years ago, requests for asylum were handled by the U.N. High Commission for Refugees, initially in their entirety and later in cooperation with it (see: AAA 8675/11 Tedesa v. Unit for Processing Asylum Seekers, para. 9-11 (May 14, 2012); Sharon Harel, The Israeli Asylum Mechanism: The Process for transferring the handling of Asylum Requests from the U.N. Commission for Refugees to the State of Israel, in Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy 43 (2015) (hereinafter: Levinsky Meets Asmara) (Hebrew)). Over the last few years, requests for asylum have been referred to the RSD (Refugee Status Determination) (hereinafter: RSD) department of the Population and Immigration Authority, which operates in accordance with the directives of the Ministry of the Interior (see: Ministry of the Interior, “Procedure for Handling Requests for Political Asylum in Israel” (Jan. 2, 2011)).

 

Previous Proceedings – the Adam and Eitan Cases

7.         In view of the difficulty in repatriating most of the infiltrators, the State of Israel had to find alternative solutions. Initially, Israel adopted a policy under which infiltrators who were apprehended were returned to Egypt. However, the implementation of that policy was stopped due to the geopolitical situation in Egypt (the Hotline case, paras. 11-12; for other arrangements implemented in the past, see: Yonatan Berman, Arrest of Refugees and Asylum Seekers in Israel, in Levinsky Meets Asmara 147; HCJ 10463/08 African Refugee Development Center v. Ministry of the Interior (Aug. 17, 2009); HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009)). Another policy adopted by Israel was that of detaining infiltrators under the Entry into Israel Law, 5712-19952 (hereinafter: the Entry into Israel Law). However, the infiltrators were released from detention after a relatively brief period, inter alia, because the Entry into Israel Law does not generally permit detaining a person or more than sixty days.

8.         In light of the increase in infiltrations, the state authorities implemented other means, among them the erection of a physical barrier along the land border with Egypt, and legislation intended to impose special legal arrangements upon infiltrators. These arrangements are more severe than those applying to persons unlawfully present in Israel under the Entry into Israel Law. This policy was first expressed in the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 3 and Temporary Order) Law, 5772-2012 (hereinafter: Amendment 3), which added sec. 30A to the Law. The main provision of sec. 30A – enacted as a temporary order – permitted detaining an infiltrator in legal custody for a period of up to three years, subject to grounds for supervised release that were established in the Law. In the Adam case, this Court – in an expanded panel of nine justices – held that Amendment 3 was unconstitutional due to its disproportionate violation of the constitutional right to liberty. By majority opinion, we annulled all the arrangements established in sec. 30A of the Law. We further ruled that in light of the annulment of sec. 30A, all the detention and deportation orders under which the infiltrators were detained would be viewed as if they had been issued by virtue of the Entry into Israel Law, and that an immediate, individual review of the cases of all those detained must be undertaken, along with their release, as necessary.

9.         Pursuant to the judgment in the Adam case, the Knesset enacted the Prevention of Infiltration (Offences and Jurisdiction) (Amendment no. 4 and Temporary Order) Law, 5774-2013 (hereinafter: Amendment 4). That law – also enacted as a temporary order – reenacted sec. 30A, while shortening the maximum period of detention to one year. It also added Chapter D, which arranged for the establishment of a residency center for infiltrators (hereinafter: residency center), and authorized the Director of Border Control (hereinafter: the Director) to transfer any infiltrator to the center if there was any problem whatsoever in removing him from Israel. Chapter D also established various provisions in regard to the operation of the residency center. Inter alia, infiltrators residing in the residency center were required to report three times a day for registration of their presence in the center, and to remain in the center during the night. On Dec. 12, 2013, shortly after the enactment of Amendment 4, the Prevention of Infiltration (Offences and Jurisdiction) (Declaration of a Residency Center for Infiltrators) (Temporary Order), 5774-2013, was published in the Official Gazette. In that order, promulgated by virtue of sec. 32B of the Law, the Minister of Public Security declared the “Holot” installation in the Negev as a residency center for infiltrators under Chapter D of the law. On the following day, the Population and Immigration Authority began transferring infiltrators held in custody to the “Holot” installation.

10.       In the Eitan case, a majority of this Court held that the aforementioned two pillars of Amendment 4 were unconstitutional and ordered their annulment. The Court held that a person could not be ordered to be held in custody if there was no expectation of his removal from Israel, and a fortiori not for a period of one year. Although the State argued that one of the purposes of sec. 30A of the Law was the identification of the infiltrator and exhausting the possibilities for his deportation, it was held that there was a gap between the declared purpose of the Law and its language. It was therefore held that placing infiltrators in detention for an entire year in the absence of any foreseeable expectation of their deportation – and this not a punishment for their conduct, and in view of their inability to do anything to bring about their release – creates a disproportionate violation of their rights. It was further held that the residency center was also unconstitutional. This was first and foremost because no limits were set for the maximum period of custody in the center, nor were any criteria for release established. But it was also due to the specific arrangements that were established, such the obligation to report for registration and the obligation to remain in the center at night. The Court held that Chapter D, as a whole, presented a gloomy picture of an installation that shared many of the characteristics of a detention center, as opposed to an open or partly open residency facility. The Court therefore overturned both elements of the Law.

11.       In place of the arrangement established under sec. 30A, which was annulled, the Court held that the arrangement established under the Entry into Israel Law would be followed. In addition, the declaration as to the annulment of Chapter D of the Law was held in abeyance for ninety days, with the exception of a limited number of provisions regarding which the declaration would enter into force earlier, in accordance with the conditions set forth in the judgment.

 

The Law challenged by the Petition

12.       On Dec. 8, 2014 – about three months after the judgment in the Eitan case – the Knesset enacted the amendment that is the subject of these proceedings. It, too, was enacted as a temporary order. The main points of the amendment are as follows: First, sec. 30A of the Law was reenacted, while establishing a three-month maximum for detention. Second, Chapter D of the Law was reenacted to reestablish the residency center and regulate its operation. Like the earlier version of Chapter D, the new arrangement authorizes the Director to require that an infiltrator be present in the residency center. However, the maximum period for remaining in the residency center is limited to twenty months, and special populations – like minors and victims of certain crimes – will not be summoned to the center. As in the past, the infiltrators were required to report in the evening for registration, and were prohibited from leaving the center at night. However, the requirement that they report during the day was rescinded, and grounds for release from the residency center were established. Below, I will address all of the details of the arrangement established under Chapter D. I will already note that according to the explanatory notes, these arrangements were intended to change the scheme of incentives for infiltrators considering entering Israel other than through the border control stations; to permit the authorities to exhaust the identification procedures for infiltrators, as well as deportation procedures; to provide a response to the State of Israel’s right to protect its borders and sovereignty; and to prevent infiltrators from continuing to establish themselves in Israeli urban centers (Explanatory Notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904 (hereinafter: the Explanatory Notes)).

            The petition before the Court was filed shortly after the enactment of the Amendment.

 

Developments following the filing of the Petition

13.       On Dec. 30, 2014, President A. Grunis issued an order nisi instructing the Respondents to show cause why sec. 30A of Chapter D of the Law, as amended in the Amendment that is the subject of this petition, not be annulled. President Grunis further ordered that the case be heard before an expanded panel of nine justices.

14.       Oral arguments were heard on Feb. 3, 2015. In light of questions and arguments raised in the course of the hearing, we ordered that the Respondents submit a supplementary affidavit. The Respondents were asked to present various data in their affidavit, inter alia, in regard to the breakdown of the population currently in the Holot residency center; in regard to asylum requests submitted to the RSD; and in regard to asylum seekers who voluntary left Israel in the course of their stay in the residency center or while in detention. I will refer to the supplementary data submitted on Feb. 16, 2015 in due course.

 

The Petitioners’ Presentation and the Main Arguments of the Parties

15.       Petitioner 1 is a 34 year old Eritrean citizen. He claims that he served for a number of years in the Eritrean army, and was thereafter imprisoned without trial for over a year. In 2008, Petitioner 1 left Eritrea and infiltrated into Israel. Between the years 2008 and 2013, Petitioner 1 lived in Beer Sheva, Eilat and Tel Aviv, and worked in hotels. In January 2014, the Director ordered him to the Holot residency center, where he remained until the filing of the petition. Petitioner 1 filed a request for asylum that has not yet been decided. Petitioner 2 is a 35 year old citizen of North Sudan, born in the Darfur region. He claims that in the course of his university studies he was politically active in the Sons of Darfur movement, and as a result, was twice imprisoned without trial, beaten and held under inhuman conditions. In 2004, following his release from prison, Petitioner 2 fled from North Sudan to Libya. In 2008, when the Libyan authorities began to extradite members of the movement to North Africa, Petitioner 2 fled Libya, and on Nov. 17, 2008, infiltrated into Israel. Upon arrival, he was held in custody for five months. Following his release from custody, he lived in Jerusalem and in Tel Aviv, and worked in hotels. In February 2014, Petitioner 2 was ordered to the Holot installation, where he has been since March of that year. According to him, he was ordered to stay in Holot after he refused to leave Israel to a third country. Petitioner 2 also filed a request for asylum that has not yet been decided.

            The other petitioners are human rights organizations: The Hotline for Refugees and Migrants; The Association for Civil Rights in Israel; ASSAF – Aid Organization for Refugees and Asylum Seekers in Israel; The Worker’s Hotline; Physicians for Human Rights – Israel; and The African Refugee Development Center.

16.       The petition challenges both elements of Chapter A of the Amendment. The first arrangement challenged is that of custody by virtue of sec. 30A of the Law. Although the period of custody has been shortened from one year to three months, the Petitioners are of the opinion that the section nevertheless remains unconstitutional. The Petitioners argue that, like Amendment 4, section 30A in its current form permits holding a person in custody even when there is no practical expectation of his removal form the country. Under these circumstances, they argue that this constitutes unlawful arrest.

            The second arrangement challenged by the Petitioners is the residency center that, as noted, was established under Chapter D of the Law. According to the Petitioners, Chapter D suffers from a number of constitutional defects that justify the annulling of the entire chapter. Their main argument is that the period of custody in the residency center – although limited to twenty months – is still extremely long in relation to what is accepted in the world, and significantly violates the rights of the infiltrators. The Petitioners are of the opinion that the purposes of Chapter D are also improper. Their primary argument in this regard is that the true purpose of the provisions of Chapter D is to encourage the infiltrators to leave the state “by means of breaking their spirit, deterrence, and separation of populations”. This, they argue, is not a proper purpose when deportation of the concerned group is prohibited. In any case, the Petitioners argue, the residency center does not achieve its purpose in view of the fact that after their release from the center, they will return to the urban centers and establish themselves there. The Petitioners also make numerous arguments in regard to the individual arrangements in Chapter D, and particularly in regard to the arrangement that authorizes the Director to order that an infiltrator staying in the residency center be transferred to detention if he be found to have violated various rules of the residency center.

            In light of the above, the Petitioners ask that this Court annul for a third time the provisions of the Law as amended in the Amendment that is the subject of the petition.

17.       The Knesset and the State are of the opinion that the petition should be denied. According to them, the purposes of the Law are proper, and the arrangements therein are proportionate. According to the Knesset, there are substantive differences between the arrangement that was overturned in the Eitan case and the arrangement enacted to replace it, which is challenged in this petition. The changes introduced by the Knesset in the legislative arrangement – among them a reduction of the maximum period of detention to three months; shortening the maximum period for being held in a residency center to twenty months; limiting the duty of reporting in the residency center; shortening the periods for transfer of an infiltrator from a residency center to detention, and instituting automatic judicial review of such a decision by the detention tribunal – resolved, it is argued, the constitutional defects found in the previous arrangement. Given the margin of legislative appreciation granted to the legislature, the Knesset is of the opinion that, in this petition, an interpretive solution should be preferred to Supreme Court intervention in legislation. This is particularly so in view of the fact that we are concerned with a third constitutional review of the same law, and in view of the fact that the Law touches upon the designing of immigration policy, which is a subject  at the core of the State’s sovereign authority.

            The State argues that although the provisions of Chapter D in regard to a residency center infringe the right to liberty, they do not deny it. It is argued that the changes introduced by the Knesset in this arrangement significantly limit the scope of the infringement, and they pass the criteria of the Limitation Clause. It is similarly argued that the provisions regarding placing a person in detention were enacted for a proper purpose and meet the criteria of proportionality.

 

Requests to join the Petition

 18.      Four associations and organizations asked to join the petition as amici curiae. The first, the Kohelet Policy Forum (hereinafter: the Forum), is a public association that acts “for the strengthening of Israeli democracy, the advancement of individual freedom and encouraging the implementation of free-market principles in Israel, and for the establishing of the permanent status of Israel as the nation state of the Jewish nation”. According to the Forum, the purposes of the Law – which are the stemming of the infiltration phenomenon and the prevention of future infiltration, along with preventing the permanency of the presence of infiltrators unlawfully present in Israel and ensuring their exit – are proper. It is further argued that in accordance with the accepted Israeli normative structure, domestic law takes precedence over the provisions of international law. The Forum therefore argues that recourse should not be made to the provisions of international law in the framework of constitutional review of the Law.

19.       The second association that requested to join the petition as an amicus is the Legal Forum for Israel, which acts “for good governance in general, and in the judiciary in particular, including in the area of the separation of powers and the balances among the three branches of government”. In brief, the association argues that the petition should be denied first and foremost in light of the broad margin of discretion granted to the legislature as a substantive element of the principle of separation of powers. It is argued that in the instant case the margin of discretion is particularly broad, given that the primary issue – the period of time that an infiltrator may be held in custody and in a residency center – is “quantitative” in nature.

20.       The third association, requesting to join the petition as a respondent or alternatively as an amicus is the Eitan - Israeli Immigration Policy Center, which acts “for the establishing of an orderly immigration policy for Israel”. Eitan’s main argument is that an examination of the constitutionality of the Law must also address the necessary balance between the rights of the infiltrators and the rights of the residents of the cities in general and those of south Tel Aviv in particular. In Eitan’s view, we are concerned with a “vertical balance” in which the interests of Israel’s citizens and residents must be shown preference. It is therefore argued that the Law’s arrangements are not only proportionate but necessary, inasmuch as there will otherwise be disproportionate harm to the rights of the city residents.

21.       The fourth organization requesting to join the petition is the Concord Research Center for Integration of International Law in Israel (hereinafter: the Concord Center). The Concord Center emphasizes that international law grants states the right and authority to enforce their immigration laws by means of removing aliens unlawfully present in their territory. It further notes that there is nothing wrong in principle with adopting detention as a means for ensuring the enforcement of decisions in regard to deportation and removal. However, it explains that the use of this means is subject to such fundamental principles as necessity, proportionality and reasonableness. According to the Concord Center, the Law’s provisions are not consistent with those principles. In its view, the Law lacks a clear connection between the authority to hold a person in custody or in a residency center and the practical possibility to deport a person defined as an infiltrator form Israel. It is argued that, in practice, the absence of such a connection allows for the arbitrary violation of the right to liberty, which is prohibited under international law.

 

Discussion and Decision

22.       As noted, the question before the Court concerns the constitutionality of two arrangements in the Law. The starting point for the constitutional examination is that the Court must act with restraint in reviewing laws enacted by the Knesset, which express the will of the people (see, for example: HCJ 1213/10 Nir v. Speaker of the Knesset, para. 27 of the opinion of President D. Beinisch (Feb. 23, 2012) (hereinafter: the Nir case); HCJ 1548/07 Israel Bar Association v. Minister of Public Security, para. 17 (July 14, 2008)). This is particularly true in this case in which we are concerned with the constitutional review of a law that was overturned by the Court, and reenacted by the Knesset for a third time. In the Eitan case, Justice Vogelman noted that examining the constitutionality of a law under such circumstances requires particular care (ibid., para. 23). However, that does not mean that the Law is immune to judicial review. I made a similar point in the Eitan case:

…there is a constitutional dialogue between the judiciary and the legislature: the Knesset enacts a law, which it believes meets the constitutional criteria; the Court examines the law under the lens of constitutional review. Occasionally, upon review, the Court arrives at the conclusion that the law, or some part thereof, is unconstitutional. That does not end the dialogue: if necessary, the Knesset legislates anew (see: Aharon Barak, The Judge in a Democracy, 383-384 (2004) (Hebrew), [236-238 (2006) (English)]). However, after the Court has determined that a piece of legislation is unconstitutional, the legislature must not reenact it unchanged, or with changes that do not resolve the contradiction of the Basic Laws that the Court pointed out, as such legislation “constitutes a violation of the Basic Laws themselves” (ibid., 388) [ibid., para. 3 of my opinion].

We are, therefore, required to examine the constitutionality of the said Law yet again. As is well known, constitutional review is not performed in a vacuum. It is performed against the background of the reality with which it was intended to contend (see: the Adam case, para. 1 of the opinion of Justice U. Vogelman). As described above, the provisions of the Law that are being challenged in these proceedings comprise means that the State employed as part of an attempt to contend with the infiltration phenomenon. According to the data before us, the magnitude of this phenomenon is in a downward trend. However, inasmuch as the number of infiltrators living in Israel is still large, the need to contend with the challenges that derive therefrom still remains. It is against this background that I will begin my constitutional examination.

23.       In principle, constitutional review is performed in stages. First, we must examine whether the law infringes a protected human right. If the answer is negative, then the constitutional examination comes to an end. If the answer is positive, then we must examine whether it is lawful in accordance with the criteria of the Limitation Clause (see, for example: HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 594 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (hereinafter: the Prison Privatization case)). These rules are based upon the constitutional view that constitutionally protected human rights are relative, and may be limited where justified.

24.       The Limitation Clause establishes four cumulative conditions that a violating law must meet in order for the infringement to be lawful. First, constitutional rights cannot be infringed except by a law that befits the values of the State of Israel as a Jewish and democratic state. Additionally, the law must serve a proper purpose. In brief, a purpose is proper if it is intended to realize important public interests (see, for example: HCJ 6893/05 Levi v. Government of Israel, IsrSC 59(2) 876, 889 (2205); HCJ 6784/06 Major Schlitner v. IDF Director of Pension Payment, para. 78 of the opinion of Justice A. Procaccia (January 12, 2011); Aharon Barak, Interpretation in Law – Constitutional Interpretation, 525 (1994)). Finally, the infringement of the right must be proportionate. The proportionality of a statute is tested by means of three subtests.  The first subtest is the rational connection test, whereby we must examine whether the statute realizes the purpose for which it was enacted. The means selected must lead to achieving the purpose of the statute in a likelihood that is not remote or merely theoretical (see the Nir case, para. 23 of President D. Beinisch’s opinion; HCJ 7052/03 Adalah – The Legal Center for Arab Minority Rights in Israel v. Minister of Interior, IsrSC 61(2) 202, 323 (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r...(hereinafter: the Adalah case); HCJ 6133/14 Gurevitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gurevitz case); Aharon Barak Proportionality in Law –Constitutional Rights and their Limitations, 377, 382 (2010) (Hebrew) (hereinafter: Barak – Proportionality). The second subtest – the less restrictive means test – considers whether among the means that may achieve the purpose of the statute, the legislature has chosen the means that least infringe human rights. The legislature is not required to select alternative means that do not achieve the purpose to the same extent or to a similar extent as the means selected (the Adam case, para 24; HCJ 3752/10 Rubinstein v. Knesset, para. 74 of the opinion of Justice E. Arbel (September 17, 2014)).  The third subtest is the proportionality stricto sensu test. In the framework of this test, we must examine whether there is a proper relationship between the benefit derived from realizing the purposes of the statute and the attendant infringement of constitutional rights. This is a value-based test that is based upon a balance between rights and interests. It calculates the social importance of the infringed right, the type of the infringement and its extent, against the benefit of the statute (see HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 116 of the opinion of Justice A. Procaccia (September 2, 2010); HCJ 6055/95 Tzemach v. Minister of Defence, IsrSC 53(1) 241, 273 (1999) (hereinafter: the Tzemach case) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]).

If the Court concludes that the statute does not meet the conditions of the Limitation Clause, then it is unconstitutional. In such a case, the Court must determine how to remedy the unconstitutionality (see, for example: HCJ 2334/02 Shtanger v. Speaker of the Knesset, IsrSC 58(1) 786, 792, para. 5 of the opinion of President A. Barak (2003)); HCJ 2254/12 Samuel v. Minister of Finance, para. 8 of Justice N. Hendel’s opinion (May 15, 2014)).

25.       I will now turn from general principles to the constitutional review of the Law that is the subject of these proceedings. First I will examine sec. 30A of the Law, by virtue of which infiltrators may be held in detention for three months. I will then examine Chapter D of the Law, which rearranges the operation of the residency center for infiltrators.

 

Section 30A of the Law – General

26.       The point of departure for the examination is sec. 30(a) of the Law, which authorizes the Minister of Defence to issue a deportation order to an infiltrator. The deportation order serves as legal grounds for holding the infiltrator in custody until his deportation, subject to various provisos (also see: the Eitan case, para. 42). Section 30A of the Law, which was reviewed in the Adam case, allowed for the custody of an infiltrator against whom a deportation order was issued for a maximum period of three years. Section 30A, as worded in Amendment 4, and which was reviewed in the Eitan case, established a shorter, one-year maximum period for detention. The section currently under review again shortened the maximum period of custody, setting it at three months. Section 30A states:

Bringing before the Director of Border Control and his Authorities (Temporary order) 5774-2013)

30(A)(a) An infiltrator located in detention will be brought before the Director of Border Control no later than five days from the beginning of his being taken in custody.

(b) The Director of Border Control may release an infiltrator with a monetary guarantee, with a bank guarantee, or another suitable guarantee, or on conditions that he shall deem appropriate (in this law – guarantee), if he is convinced of one of the following:

(1) Due to the infiltrator’s age or to his physical condition, including his mental health, his being held in custody is likely to harm his health as aforesaid, and there is no other way to prevent the aforesaid harm;

(2) There are other, special humanitarian grounds from those stated in paragraph (1) justifying the release of the infiltrator with a guarantee, including if as a result of his being held in custody, a minor will be left unsupervised;

(3) The infiltrator is a minor who is unaccompanied by his family members or a guardian;

(4) His release will assist in the infiltrator’s deportation proceedings;

(5) If 60 days have passed from the date when the infiltrator filed a request for a visa and permit for residence in Israel under the Entry into Israel Law and processing of the request has not yet begun.

(c) The Director of Border Control is authorized to release an infiltrator with guarantee if three months have passed from the beginning of the infiltrator’s being held in custody.

(d) Notwithstanding the provisions of subparagraph (b)(2) or (4) or (5), an infiltrator will not be released with guarantee if the Director of Border Control is convinced of the existence of one of the following:

(1) His deportation from Israel is prevented or delayed due to a lack of full cooperation on his part, including in regard to the matter of verifying his identity or arranging the proceedings for his deportation from Israel;

(2) His release would endanger national security, public order or public health. In this regard, the Director of Border Control may rely upon an opinion of the authorized security agencies that activity that may threaten the security of the State of Israel or its citizens is being carried out in the infiltrator’s country of origin or the area of his residence, unless the Director of Border Control is convinced that due to his age or his state of health, holding him in custody is likely to harm his health and there is no other way to prevent this aforesaid harm.

(e) His release with guarantee from detention will be contingent on conditions which the Director of Border Control shall determine in order to ensure the appearance of the infiltrator for deportation from Israel on the determined date, or for other proceedings according to law. The Director of Border Control may, at any time, review the guarantee conditions if new facts be discovered or if the circumstances have changed since the decision to release upon guarantee was rendered.

(f) In regard to an infiltrator released from detention with a guarantee according to this section, the decision regarding his release with a guarantee will be deemed a legal credential for his stay in Israel for the period of his release under guarantee. The validity of this decision regarding release upon guarantee is contingent upon meeting the conditions for release as aforesaid.

(g) Where a guarantor requests to cancel the guarantee that he provided, the Director of Border Control may grant the request or reject it, provided that his decision will ensure the reporting of the infiltrator by supplying a different guarantee. If it is not possible to ensure the appearance of the infiltrator by supplying a different guarantee, the infiltrator will be returned to custody.

(h) If an infiltrator is deported from Israel at the time determined, he and his guarantors will be released from their guarantee and the monetary guarantee will be returned, as may be the case.

(i) If the Director of Border Control discovers that the infiltrator released upon guarantee violated or was about to violate one of the conditions of his release upon guarantee, he is may instruct by order that the infiltrator be returned to custody, and he may order the confiscation or realization of the guarantee.

(j) No order will be given to confiscate or realize a guarantee as aforesaid in subsection (i) until after the infiltrator or guarantor, as the case may be, has been given an opportunity to present his arguments,  if it is reasonably possible to locate him.

(k) If the Director of Border Control ordered an infiltrator’s release upon guarantee in accordance with this section, and the conditions for granting an order for the infiltrator to stay under section 32D are met, the Director shall issue a residence order staying as stated in that section.

Like the arrangement under Amendment 4 that we reviewed, sec. 30A in its current form regulates the authorities of the Director in all that relates to holding in custody and release from custody. As in the past, the arrangement was enacted in the framework of a temporary order in force for three years, and its incidence is prospective (sec. 8(b) of the Amendment to the Law).

27.       As noted, sec. 30A authorizes the Director to hold an infiltrator in custody for a maximum period of three months (sec. 30A(c) of the Law), subject to the grounds for release upon guarantee, among them the age of the infiltrator, his state of health or other humanitarian considerations (sec. 30A(b) of the Law). In addition, if the infiltrator filed an application for an Israeli residency permit and the processing of the request has not yet begun sixty days following its submission, this will constitute additional grounds for release on guarantee. Along with this, sec. 30A permits holding an infiltrator in custody for a longer period if he does not cooperate in his deportation or if his release poses a threat. All of the above applies unless the Director is convinced that due to the individual circumstances of the infiltrator, holding him in custody is likely to harm his health (sec. 30A(d) of the Law). An infiltrator held in custody must be brought before the Detention Review Tribunal (hereinafter: the Tribunal) no later than ten days from the beginning of his being held (sec. 30E(1) of the Law). If the Tribunal approves holding the infiltrator in custody, he will be brought for periodic review of his matter within a period that will not exceed thirty days (sec. 30D of the Law). The Tribunal’s decision is subject to appeal before an administrative affairs court (sec. 30F of the Law).

28.       These, in brief, are the provisions concerning holding an infiltrator in detention and release therefrom. The main difference between these provisions and those that we examined in the Eitan case is the maximum period of time that an infiltrator may be held in detention. While, as noted, Amendment 4 permitted holding an infiltrator for a year, the current arrangement restricts the period of detention to three months. Similarly, the period until the supervised release of an infiltrator whose request for a residency permit has not begun to be processed was reduced from three months to sixty days. In addition, grounds for supervised release based upon the infiltrator’s state of mental health were added (sec. 30A(b)(1), and other grounds for supervised release, which concerned the period of time until the rendering of a decision on the residency request, were cancelled.

29.       The Petitioners argue that even in its present form, sec. 30A does not meet the criteria of the Limitation Clause. They argue that this arrangement – like that examined in the Eitan case – permits holding an infiltrator in detention without regard for whether there is any effective possibility of his removal. According to the Petitioners, this can be understood from the Knesset’s decision not to include an express provision in the Law that an infiltrator be released from detention if, at the conclusion of the identification process, there is no practical possibility of removing him from Israel within a reasonable period of time. They argue that this shows that the purpose of sec. 30A is not to determine the identity of the infiltrators and exhaust the existing avenues for their removal, but rather to deter potential infiltrators. The Petitioners are of the opinion that deterrence is not a proper purpose. They therefore argue that sec. 30A in its present form must also be annulled.

30.       In its response, the State argues that sec. 30A was enacted for a proper purpose, and that it does not infringe rights beyond what is necessary. According to the State, the main purpose of the section is the exhausting of procedures for the identification of the infiltrator, and providing the necessary time for establishing avenues for his removal from Israel. In view of this purpose, the State is of the opinion that the three-month period established in the Law is proportionate.

31.       In its response, the Knesset joined the position of the State that sec. 30 is constitutional. The Knesset notes that while the section is also premised upon the additional purpose of reducing incentives for potential infiltrators to reach Israel – regarding which the Court expressed doubt as to its constituting a proper purpose – inasmuch as the period of custody is consistent with achieving the purposes of identification and exhausting avenues for removal, it is of the opinion that the present arrangement’s infringement of rights does not exceed what is necessary. Finally, the Knesset argues that even though the present arrangement does not expressly include grounds for release in circumstances in which the process of identifying a particular infiltrator and the examination of avenues for his deportation have been exhausted, it would be better to interpret the arrangement in a manner that is consistent with the Basic Laws than to annul it.

            After considering the arguments of the parties, I have reached the conclusion that, subject to the interpretation that will be presented below as to the arrangement for custody, the petition should be denied in this regard.

 

Infringement of Constitutional Rights

32.       That sec. 30A infringes the infiltrators’ constitutional right to liberty is undisputed. Bearing in mind that in the previous proceedings the Court addressed the importance of the right to liberty at length (the Adam case, paras. 71-76; the Eitan case, para. 46), I will suffice with a summary. The right to personal liberty is established in sec. 5 of Basic Law: Human Dignity and Liberty, according to which: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. The right to liberty is granted to every person present in Israel, even if he entered its territory illegally. This right “[…] is one of the foundations of the democratic regime” (the Eitan case, para. 46; and see, for example: the Prison Privatization case, at pp. 597-598). Holding an infiltrator in detention violates his right to physical liberty, which also has consequences for other rights. Along with the violation of the right to liberty, holding an infiltrator in detention also violates his right to dignity (the Eitan case, para. 47). Of course, shortening the period of detention does not, itself, eliminate the said violation of the constitutional rights of the infiltrators.

33.       When constitutional rights are violated, we must ascertain whether the infringement is lawful. The first condition – that the infringement is effected by a law – is met. In the present proceedings – as in the previous proceedings – the parties did not expand upon the second condition, which concerns the Law’s consistency with the values of the State of Israel. Therefore, I will proceed upon the assumption that this condition is met, and I will turn to the additional criteria of the Limitation Clause – whether the provisions of the infringing law were intended for a proper purpose, and whether the infringement is not greater than necessary.

 

The Purpose of Detention

34.       In its response and in the course of the hearing, the State declared, as noted, that the primary purpose of sec. 30A is “to exhaust the procedures for identifying the infiltrator, and the allowing the necessary time for the State to arrange avenues for voluntary emigration or deportation from Israel” (para. 119). As held in the Eitan case, the purpose of removal, itself, is proper. “Who will be permitted to enter the territory of the state is a question of a purely sovereign character. The state enjoys a broad prerogative to decide who will enter its gates, for how long, and under what conditions, in a manner that will permit its proper conduct and the protection of the rights of its citizens and residents” (the Eitan case, para. 51). Holding an infiltrator in detention in order to determine his identity and for the purpose of exhausting avenues for his removal from Israel is consistent with the case law, according to which a person cannot be held in detention if it is not possible to deport him within a certain period of time. Indeed, “[…] the validity of an arrest by virtue of a deportation order does not persist in the absence of an effective removal proceeding” (the Adam case, para. 2 of my opinion; and see: HCJ 4702/94 Al Tai v. Minister of the Interior, IsrSC 49(3) 843, 851 (1995) (hereinafter: the Al Tai case)). This Court reiterated this rule in the Eitan case:

This is the rule that has been established in our case law and there is no other: holding a person in detention requires that there be an effective removal process. In order to deny a person’s liberty for the purpose of his removal, a general declaration that the state intends to do so is not sufficient. What is required is consistent activity whose purpose is to achieve an avenue for deportation in due course (para. 199).

It is therefore possible to hold infiltrators in detention if that is necessary in order to identify them and exhaust the avenues for their removal (and see: Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law 462 (3rd ed.) (Oxford University Press, 2009) (hereinafter: Goodwin-Gill and McAdam, Refugee)).

35.       Another underlying purpose of the detention arrangement concerns creating a “normative barrier…that will reduce the motivation of potential infiltrators to reach Israel” (Explanatory Notes, p. 424). The meaning of this purpose is general deterrence (the Eitan case, para. 52). I referred to the purpose of deterrence in the Eitan case, noting that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). Nevertheless, there is nothing wrong with a purpose of deterrence when it is attendant to another legitimate purpose. As held in HCJ 7015/02 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 374 (20020 [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]:

The military commander may not, therefore, adopt a measure of assigned residence merely as a deterrent to others. Notwithstanding, when assigning a place of residence is justified because a person is dangerous, and the question is merely whether to exercise this authority, there is no defect in the military commander’s taking into account considerations of deterring others [para. 27].

While this was stated in a different context, it is nevertheless appropriate to the matter before us. It was similarly held in the Eitan case that “there is nothing wrong with the fact that detention of an infiltrator, intended to advance the process of his deportation, has an accompanying deterrent effect…however, that should not be understood as meaning that an infiltrator can be held in detention for the purpose of deterring others even after his identity has been established, and even after it is found that there is no effective possibility of removing him from the country” (para. 52; and compare the opinion of Justice I. Amit, ibid.).

36.       Bearing in mind that sec. 30A is grounded upon two purposes, we must consider the relationship between them and focus upon the dominant of the two (the Adalah case, p. 319). Indeed, “[…] Knesset legislation may have more than one purpose. Our case law has previously held that that in a situation in which a law has several intertwined purposes, great weight will be given to its dominant purpose, and it will be the focus of the judicial review. Nevertheless, the other, secondary purposes of the law should not be ignored, and their consequences for human rights will also be examined” (HCJ 4769/95 Menachem v. Minister of Transportation, IsrSC 57(1) 235, 264 and the citations there (2002)).

37.       What, then, is the dominant purpose of sec. 30A? An examination of the legislative history of this section shows that the primary purpose is the identification of the infiltrator and the exhausting of avenues for his removal from Israel, while deterrence is at most a secondary, attendant purpose. Thus, the purpose of identification and exhausting avenues of removal is granted a central place in the Explanatory Notes to sec. 30A:

Establishing a three-month period of detention […] is necessary, inter alia, in order to exhaust the procedures for identifying and deporting the infiltrator, among them identifying his place of origin, arranging travel documents for him, and exhausting avenues for his emigration or removal from Israel (Explanatory Notes, p. 425; emphasis added – M.N.).

The importance of this purpose can also be seen in the statement by the Minister of the Interior in the course of the deliberations of the Internal Affairs and Environment Committee on the bill:

I think that the framework that we are presenting today, of 3 months of detention, we will argue here about what that means. With all due respect, the Knesset can define what it sees as the efficacy of the procedure for examining the removal. I don’t know that the Even-Shoshan Dictionary, Mr. Knesset Legal Advisor, precisely defines what is the efficacy of the examination of the removal […] we are very interested that the procedure be effective. We need time. It is very difficult when legal advisors define for us unscientific formulas for what constitutes the time for the effectiveness of a removal procedure. I thought that three months would not necessarily be enough for us (Protocol of Session No. 428 of the Internal Affairs and Environment Committee of the 19th Knesset, p. 7 (Dec. 2, 2014)).

The Knesset also argued in its response that in examining the constitutionality of sec. 30A of the Law, it is sufficient to focus upon the purpose of identification and removal (para. 88). According to its approach, the need for a process of identification of infiltrators and the exhausting of avenues for their removal from Israel is therefore at the base of sec. 30A of the Law in its current language. In the hearing before us, the State also emphasized that according to its approach, this is the primary purpose of this arrangement.

38.       Locating the dominant purpose does not suffice with an examination of the legislative history of the law. The question whether a particular purpose is the dominant purpose of the law is also examined in light of the specific arrangements that it establishes (compare: the Adalah case, pp. 336-339). Can the primary purpose of sec. 30A be discerned from its arrangements? According to the Petitioners, the current Law – like the arrangement that we reviewed in the Eitan and Adam cases – does not make holding an infiltrator in custody contingent upon identification or removal proceedings. They argue that in the absence of a clear connection in the Law between detention and the reasonable possibility of removal, “the real purpose of this section [sec. 30A – M.N.]” is the improper purpose of deterrence. As opposed to this, the Respondents first argued in the context of this petition that the present arrangement can be interpreted in a manner that establishes a clear relationship between holding in custody and the identification of the infiltrator and the existence of an effective removal process. After considering the parties’ arguments, I am of the opinion that in view of the present legislative framework, we should accept the position of the Respondents.

39.       There is no dispute that there is a facial connection between holding the infiltrator in detention and the purpose of his identification and the exhaustion of avenues for his removal from Israel. We addressed this in the Eitan case:

No one disputes that holding an infiltrator in detention facilitates the possibility of his identification in an orderly, controlled procedure, which is a matter of great importance against the background of the special characteristics of the infiltrator population which did not enter by means of regular border crossings and official identity documents. It is also clear that detention aids in carrying out the procedures for deportation from Israel, in that it ensures that the person will not “disappear”, and it saves the possible pursuant problems of locating him (and compare: sec. 13F(a)(2) of the Entry into Israel Law) [ibid., para. 54].

Moreover, I believe that there are grounds for stating that under the present Law, holding a person in detention is subject to this purpose. The starting point is in the provision of sec. 30(a) of the Law, which empowers the Minister of Defence to order in writing that an infiltrator be deported, and establishes that a deportation order will serve as legal grounds for holding him in detention until his deportation. Authority to hold an infiltrator in detention is therefore contingent upon the existence of a deportation order. Similar authority – permitting the holding of a person who is not lawfully present in the country in detention, subject to the issuance of a deportation order – can also be found in the Entry into Israel Law. The time periods for detention are similar in the two laws (three months in the present Law and sixty days in the Entry into Israel Law). I accept the view of the Respondents that the difference in the time periods stems from the complexity of the process of ascertaining the identity of infiltrators who, as opposed to others unlawfully present in the country, did not enter through a border control station. Often, infiltrators carry no identification papers, and significant factual disputes arise as to their country of origin (see, for example: AAA 6694/13 Gidai v. Ministry of the Interior – State of Israel (Feb. 15, 2015); AP 37598-06-10 (Central District) Gebremaiam v. Ministry of the Interior (July 6, 2010)). In view of the arrest’s contingency upon the issuance of a deportation order, the case law has construed the arrest authority in the Entry into Israel Law as auxiliary to the deportation authority, the purpose of which is to ensure that the detainee will leave Israel (see: HCJ 1468/90 Ben Yisrael v. Minister of the Interior, IsrSC 44(4) 149, 151-152 (1990) (hereinafter: the Ben Yisrael case); LAA 696/06 Elkanov v. Detention Review Tribunal, para. 16 (Dec. 18, 2006)). This is so even though this Law does not comprise an express provision connecting the person’s arrest to the possibility of his deportation. In view of the similarity of the arrangement under review and that established under the Entry into Israel Law, I believe that we can apply that rule to this case by analogy. My conclusion is further supported by the provisions of secs. 30D and 30E of the present Law, which make holding an infiltrator in detention subject to periodic review within no more than thirty days. The requirement of periodic review of the detained person helps ensure that there are still grounds for holding him in detention, and supports the conclusion that the detention is intended to aid in the process of the infiltrator’s deportation. Deterrence is but ancillary thereto (see and compare: the Eitan case, para. 199).

40.       The said provisions were also included in the arrangement that was presented for our review in the Eitan case. Nonetheless, the Eitan case held that there was a gap between the arrangement under sec. 30A of the Law and the declared purpose of detention – identifying the infiltrator and arranging avenues for his exit from Israel. That finding was based upon the absence of relevant arrangements such as an express provision conditioning the continued detention of an infiltrator upon the existence of “a prospect of removal that is expected to be realized within a reasonable time” (the Eitan case, paras. 55, 199; and see the Adam case, para. 34 of the opinion of Justice U. Vogelman). The legislative arrangement now before us also lacks an express provision that makes detention of an infiltrator contingent upon the existence of a possibility of his removal. However, I believe that the shortening of the period of detention now – as opposed to in the Eitan case – makes it possible to construe the Law in the manner proposed by the Knesset. In the Eitan case, Justice U. Vogelman was willing to assume that an interpretive path could be adopted, but he did not see “how, in this matter, confronted by a legislative provision establishing a one-year period for detention…it is possible to refrain from invalidating it” (para. 202). He further held that “a section of the law that authorizes a person to hold someone in detention for an extended period for the purpose of his deportation (as opposed to the limited timeframe of the Entry into Israel Law) must express the connection between the removal process and the detention” (para. 199, emphasis added – M.N.). As opposed to the arrangement under review in the Eitan case, the new timeframe for detention is similar to the timeframe under the Entry into Israel Law. The period is also not exceptional in comparison to those found in other countries for the purpose of identifying the infiltrator and exhausting avenues for deportation. Most western countries limit the period for detaining illegal aliens awaiting deportation to a period of a few months. In the absence of special circumstances, the accepted time periods average between one and six months (for details: see the Eitan case, paras. 73-77; for an up-to-date survey of the average period of detention for illegal aliens in Europe, see: The Use of Detention and Alternatives to Detention in the Context of Immigration Policies, Synthesis Report for the EMN Focused Study (2014)). A maximum period of three months does not, therefore, deviate from what is acceptable in most countries in which the purpose of detention is similar to the declared purpose in the matter before us (compare: the Eitan case, para. 72).

41.       In view of all the above, my conclusion is that the provisions of the current Law – like the provisions of the Entry into Israel Law – can be understood as intended for the identification of the infiltrator and for exhausting avenues for his removal from Israel. Therefore, if it is found that the continued detention of an infiltrator cannot serve the purpose of identification and removal, then there will be no justification for his continued detention. That will be the case even if three months have not passed since the beginning of his detention, for otherwise it would be possible to hold a person under arrest arbitrarily. Such a result would not be consistent with the fundamental principles of our legal regime. We ruled similarly in regard to the Entry into Israel Law:

From an examination of this section [sec. 13 of the Entry into Israel Law as then worded – M.N.] it is manifest that the purpose of the detention mentioned in subpara. (3) of the section [establishing that a person in regard to whom a deportation order has been issued may be detained until he leaves Israel or is deported – M.N.] is to ensure the exit of a person against whom a deportation order from Israel has been issued, or until his deportation therefrom…the sole source of authority for the detention of the Petitioner, according to the Respondents before us, is the provision of sec. 13(c) of the law. Having found that the continued detention of the Petitioner cannot serve the purpose for which it was permitted under sec. 13(c), there is no further justification for holding him under detention. (The Ben Yisrael case, at pp. 151-152, emphasis added – M.N.).

In that case, the Court held that it is possible to continue to detain an illegal alien as long as the detention is intended to serve the purpose for which it was originally instituted. That holding – based upon the purpose grounding the detention authority – was made despite the fact that the Entry into Israel Law does not comprise a relevant cause for release from detention (CA 9656/08 State of Israel v. Saidi, para. 26 (Dec. 15, 2011); and see: the Al Tai case, at p. 851; HCJ 199/53 A. v. Minister of the Interior, IsrSC 8 243, 247 (1954)). This is appropriate here, as well.

42.       In addition, the choice of this interpretive possibility is consistent with one of the principles of our constitutional law according to which – to the extent possible – an interpretation that realizes the law is preferable to its voidance (see, for example: HCJ 5462/92 Zandberg v. Broadcasting Authority, IsrSC 50(2) 793, 808, 812 (1996) (hereinafter: the Zandberg case); HCJ 9098/01 Ganis v. Ministry of Building and Housing, IsrSC 49(4) 241, 257-258, 276 (2004) [http://versa.cardozo.yu.edu/opinions/ganis-v-ministry-building-and-housi... CA 6659/06 A. v. State of Israel, para. 8 (June 11, 2008)). It is also consistent with the principle cessante ratione legis cessat ipse lex – the rationale of a legal rule no longer being applicable, that rule itself no longer applies (Zadvydas v. Davis, 533 U.S. 678, 699 (2001) (hereinafter: the Zadvydas case)).

43.       This approach is not unique to our system. The courts of other countries have also adopted a narrow construction of the authority to detain asylum seekers and illegal aliens. The most salient example – noted in both the Adam and Eitan cases – is the United States Supreme Court’s decision in the Zadvydas case. That case addressed the constitutionality of and American legal arrangement that permitted the detention of an illegal alien beyond the “regular” ninety-day period established by law in cases in which, for some reason, he was not deported. Inasmuch as the period of detention was not delimited, it appeared that detention could be indefinite. The Supreme Court (per Justice Breyer) interpreted the authority in accordance with its purpose – ensuring deportation – and held that a person could be detained only for the period of time necessary for his deportation, and only if there is an effective means for his removal (ibid., p. 699-700). Therefore, as a rule, supervised release of the alien should be ordered at the end of that period (ibid., p. 701). A similar ruling was made by the Australian Supreme Court (Plaintiff S4-2014 v. Minister for Immigration and Border Protection, paras. 21-35 [2014] HCA 34).

44.       The interpretive conclusion that I presented above is also consistent with the provisions of international law. Under secs. 9, 26 and 31 of the Refugee Convention, a state may – subject to demands of necessity and proportionality – impose restrictions upon the freedom of movement of asylum seekers (and see: The 1951 Convention relating to the Status of Refugees and its 1967 Protocol (Andreas Zimmerman, ed., 2011) 1243, 1268 (hereinafter: Commentary to the Refugees Convention); R. v. Uxbridge Magistrates Court & Another Ex Parte Adimi [1999] EWHC 765, para. 26; Goodwin-Gill and McAdam, Refugees, at 522; The UN Refugee Agency [UNHCR], Alternatives to Detention of Asylum Seekers and Refugees, April 2006, POLAS/2006/03, at 6, para. 18 (hereinafter: UNCHR, Alternatives to Detention)). Although these sections treat of restrictions upon freedom of movement, according to the accepted interpretation they also apply to the detention of persons who unlawfully entered the state in order to file an asylum application (see, for example: James Hathaway, The Rights of Refugees under International Law 414-418 (Cambridge University Press, 2005) (hereinafter: Hathaway)).

45.       The restriction of the movement of asylum seekers is permitted for achieving lawful purposes under international law (Commentary to the Refugees Convention, p. 1270). Among such lawful purposes, the directives of the UN Commission for Refugees mention, inter alia, preserving public order, including the sense of identifying an unlawfully present person; protecting public health; and protecting national security (The UN Refugee Agency [UNHCR], Detention Guidelines: Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention 15-19 (2012) available at http://www.unhcr.org/505b10ee9.html (hereinafter: the Directives); and see: the Adam case, para. 92). The Directives also note that a person may be held in detention in order to ensure his deportation when there is such a possibility, and that detention solely for general deterrence or as punishment is improper (ibid., p 19). In addition, the state is required to evaluate the need for detention on the basis of the individual circumstances of the particular infiltrator, and must not use this means in a sweeping manner (ibid., p. 15; and see: International Law Commission, Draft Articles on the Expulsion of Aliens, art. 19 (2004), http://legal.un.org/ilc/texts/instruments/english/draft%20articles/9_12_2014.pdf).

46.       Lastly, the interpretive conclusion in this matter is reinforced in view of the position of the State. In the oral hearing before the Court, the State declared, expressly for the first time, that despite the absence of a provision conditioning the continued detention of an infiltrator upon identification and removal proceedings, it recognizes that the detention authority is subject to a reasonable expectation of removal (Protocol of the Hearing of Feb. 3, 2015, pp. 4-5). This being the case as long as the infiltrator whose matter is being addressed cooperates in the proceedings for his removal from Israel (in this regard, see: sec. 30A(d) above, which permits the continued detention of an infiltrator if he does not cooperate in the proceedings for his deportation from Israel). This declaration by the State is of no insignificant weight in the matter before us.

47.       The Petitioners referred us to the position expressed by the Knesset legal adviser in response to the bill, that it would be appropriate to create a written connection between the detention period and its purpose (Opinion of the Legal Adviser to the Knesset; and see: Position of the legal adviser to the Internal Affairs and Environment Committee, as expressed in the committee’s deliberations on the bill (Protocol of Session No. 429 of the Internal Affairs and Environment Committee of the 19th Knesset, at pp. 9-10 (Dec. 2, 2014)). The Petitioners complained that no express provision was ultimately included to establish that an infiltrator must be released if there was no reasonable expectation of his removal. I have considered this argument, but I see no reason to change my conclusion in the matter. Although including an express connection between detention and removal procedures would be desirable, my conclusion is, as aforesaid, that the present arrangement allows us to arrive at the same result through interpretation of the statute.

48.       To summarize, I am of the opinion that viewing the matter in its entirety – the purpose of the Law, the shortening of the maximum period of detention, and the declarations of the Respondents – it is possible to interpret the Law in a manner that establishes the missing connection. I am aware that this interpretive result differs from our decisions in previous proceedings. However, adopting this interpretive approach – which is reasonable and possible in the present case – was not possible in regard to the arrangement reviewed in the Eitan case (see, ibid., para. 200-201; and see: the Zandberg case, p. 813). This is so because the previous maximum detention period was not consistent with the declared purpose of the Law. Had this interpretation been applied in the Eitan case, it would have allowed a person to be held in detention for an unreasonably long period. As a result, Justice U. Vogelman noted in the Eitan case: “I agree with the view of my colleague [President A. Grunis – M.N.] according to which an interpretive effort must be made in order to refrain from voiding Knesset legislation. However, in this case in which we are confronted with a legislative provision that establishes a one-year period for detention (a period that is, in my view, disproportionate), I do not see how we can refrain from voiding it (ibid., para. 202; and see: para. 2 of my opinion in the Eitan case). As noted, the matter is different in the case before us. As explained in detail above, the maximum period established by the law now under review is a relatively shorter period that is consistent with and supports the purpose of the Law.

49.       Against this background, and in reliance upon the interpretation outlined for the Law, I will now turn to an examination based upon the proportionality tests.

 

The Proportionality Tests

50.       As I will explain, I am of the opinion that in view of the interpretation of the Law, sec. 30A passes the proportionality tests. In the Eitan case, we expressed doubt as to whether the legislative approach under review actually presented a rational connection between detention and realizing the legislative purpose. That was so in view of the absence of an express provision conditioning the continued detention of an infiltrator upon the reasonable expectation of his removal from Israel. This problem was resolved in this case. Given the relationship between detaining an infiltrator and the existence of an identification process and the exhausting of avenues for deportation, it is difficult to argue that the Law currently under review does not meet the rational connection test. The current Law also meets the second proportionality test – the less harmful means test. Although there are various possible alternatives to detention, foremost among them open or semi-open residency centers, those alternatives do not realize the purpose of the Law to a similar degree of effectiveness (the Eitan case, paras. 60-66). It therefore remains to examine the Law under the proportionality stricto sensu test, which is the primary test in the matter before us.

51.       As noted, the third proportionality test examines whether there is an appropriate relationship between the benefit that will accrue to the public from the legislation and the infringement of the constitutional right that will be caused by its implementation. In the Eitan case, we explained that even though the arrangement established under sec. 30A benefits the public, its benefit is limited. On that basis, we held that the Law as then worded infringed constitutional rights to a greater extent than was necessary. That conclusion was founded upon two primary pillars: First, the Law’s “default position” was that persons unlawfully present could be detained for a maximum period of one year when there was no possibility of their removal. Second, the holding that even on the assumption that the detention of an infiltrator was subject to the conducting of effective removal proceedings, a detention period of up to one year was disproportionately long. We therefore found (para. 71):

Such detention is permissible only in order to protect the state’s sovereignty, for the purpose of the removal of those who are unlawfully present from the country. It cannot be implemented as a punitive act that is not part of a criminal process. In accordance with the demands of the Limitation Clause, it must be implemented only when necessary, when there is no alternative means, and for a proportionate period of time.

Against the background of our holding in the Eitan case, I am of the opinion that the current Law also meets the third proportionality test. Shortening the maximum detention period, subject to the purpose I addressed above, significantly reduces the infringement of the rights of the infiltrators. As aforesaid, a three-month period is not exceptional, both in comparison to other arrangements in Israeli law of similar purpose, as well as in comparison to similar arrangements in various other western states. It would appear that no one would argue that detention, even for a short period, does not seriously infringe the rights of the detainee. However, when we are concerned with a maximum period of a few months – and bearing in mind that detaining the infiltrator serves a purpose recognized as proper by our legal system, by international law, and in comparative law – there are now, subject to this interpretation, no grounds for our intervention.

52.       We have twice held that the Law’s provision in regard to the detention of infiltrators does not pass the tests for constitutionality. The language now before us – interpreted in a manner agreeable, in practice, to the Petitioners – meets the requirements of the Limitations Clause and should not be voided.

 

Chapter D of the Law – General

53.       Chapter D was added to the Law in the framework of Amendment 4, and the “Holot” residency center was erected by virtue of this chapter. The voiding of Chapter 4 in the Eitan case marked this Court’s first intervention in the provisions of the Law regarding a residency center. The particular arrangements and practical operation of the “Holot” residency center prior to its voidance were described in detail in the Eitan case. The prior language of Chapter D authorized the Director to order that an infiltrator concerning whom there was difficulty in regard to deportation present himself at the residency center. As opposed to the provisions of sec. 30A of the Law, which are of prospective force, the above authority could also be exercised in regard to infiltrators who were already in Israel. In addition, the Director was not required to set a time limit for remaining in the residency center. Thus, an infiltrator ordered to a residency could have remained there until Amendment 4 – which was enacted as a temporary order for three years – lapsed. In theory, if the temporary order were to be extended, an infiltrator could remain in the center indefinitely (see: the Eitan case, paras. 149, 151). The prior law also did not establish grounds for release from the residency center, or any provision requiring that the Director exempt any special populations from residing in the residency center. Those residing in the center were required to report for registration three times a day – in the morning, afternoon, and evening. The center was closed at night. The center was operated by specially trained personnel from the Prisons Service who were granted broad enforcement powers, such as the power to detain, search and seize. Along with those powers, the Director was granted authority to transfer residents who violated various of the center’s rules to detention.

54.       After we ordered the voiding of Chapter 4 in the Eitan case, it was reenacted in the framework of the Law now under review. Like the prior law, the current language of Chapter D authorizes the Minister of Public Security to designate by order that a particular place serve as a residency center for infiltrators (sec. 32B of the Law), and arranges the manner of operation of the residency center and its rules. Most of the particular arrangements have remained unchanged. Thus, the Director may order residency in the residency center for any infiltrator regarding whom there is a problem “of any sort” in regard to deportation to his country of origin, including infiltrators already present in the state’s territory and infiltrators in detention by virtue of sec. 30A of the Law (secs. 32D and 30D(d) of the Law). In accordance with these provisions, the Director of the Population and Immigration Authority issued a directive under which Sudanese nationals who had infiltrated into Israel prior to May 31, 2011, and Eritrean nationals who had infiltrated into Israel prior to May 31, 2009 were to be relocated to the residency center (Appendix R/6 of the State’s response). In their request for an order nisi, filed on July 20, 2015, the Petitioners noted that updated criteria were published on July 14, 2015. According to those criteria, as of July 19, 2015, Sudanese nationals who had infiltrated Israel prior to Dec. 31, 2011, and Eritrean nationals who had infiltrated Israel prior to July 31, 2011 would be relocated to the residency center (http://www.piba.gov.il/ SpokesmanshipMessagess/ Documents/ holot_criteria_14072015.pdf). The residency center continues to be run by the Prisons Authority; the detention, search and seizure authority granted to the corrections officers remains the same; and the authority of the Director to order transfer to detention has not been entirely cancelled. As opposed to this, Chapter D in its current form differs from the prior format in several aspects: the period of residency in the center has been limited (up to twenty months); the requirement of presence in the center over the course of the day has been reduced; the Director’s authority to order the transfer of a person from the residency center to detention has been restricted; the Director has been authorized to release a person from the residency center in various situations; and certain populations, such as children, women, and victims of certain offenses, were excepted from its application.

55.       The maximum capacity of the Holot residency center is 3,360 people, as in the past. According to the supplementary affidavit, as of Feb. 9, 2015, there were 1,950 infiltrators in the center, of whom 76% were Sudanese nationals while the remaining 24% were Eritrean nationals. Also, as of that date, the maximum period during which infiltrators resided in Holot was twenty-four months. According to the affidavit, more than 60% of the residents of Holot infiltrated into Israel before 2008, and 1,521 filed applications for asylum with the RSD, of which about half were filed after the beginning of residency in the center. According to the Population and Immigration Authority, the asylum applications of the residents are given priority.

56.       The nature of the living conditions in the residency center is disputed by the parties. According to the Petitioners, the conditions in the center are very basic, the structure of the living quarters does not allow privacy and the employment possibilities are few and poor. Additionally, the Petitioners complain of the medical and welfare services in the residency center, of the quality of the food supplied, and of the amount of pocket money allotted to the residents. As opposed to this, the State argues that there are recreational activities and educational frameworks, and that medical and welfare services are provided. The State further notes that each wing of the residency center – which houses 140 residents – has a recreation center that operates all day, and the residency center has two libraries, an athletics field, a laundry and a grocery in which the price of goods is controlled. In addition, the State noted that sec. 32G of the Law, and the Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015, promulgated thereunder, arrange for the possibility of working in the area of the residency center for payment set in the regulations. There is an employment office in the residency center, and the residents are offered work, inter alia, in maintenance and cleaning of the center, in supply and in the laundry. However, the State claims that the rate of participation in the various activities offered to the residents and the rate of employment in the framework of the residency center are extremely low (see and compare: the Eitan case, paras. 91-96).

            Against this background, I will proceed to examine the claims of the parties in regard to the constitutionality of Chapter D in its present form. But first a few words of introduction.

57.       In my opinion in the Eitan case, I wrote: “The State faces a reality that it is compelled to confront. That confrontation poses problems and attendant challenges. These challenges require creative solutions. This can be the state’s finest hour, in which, facing a compelled reality, it will succeed in finding humane solutions, solutions that are not only consistent with international law, but also with Jewish values”. Inter alia, I suggested changing the residency facility into a voluntary, open residency center.

            I will not deny that the residency center erected in Holot is not what I had in mind when I wrote that. As a citizen, I would be happy to see my state show more compassion, even to those suspected of infiltrating into Israel to find sustenance. However, just as we do not examine the wisdom of the law, we do not place ourselves in the place of the legislature. Our role is to examine the constitutionality of the law. I will begin by stating that after examining the provisions of Chapter D, I have concluded that, with the exception of the maximum period of residence in the center, Chapter D meets – sometimes just barely – the criteria of the Limitation Clause.

 

The Infringement of Constitutional Rights

58.       There is no disputing that the arrangements established in Chapter D of the Law infringe constitutional rights. However, the parties disagree as to the type of infringement, its intensity, and its scope. According to the Petitioners, the various arrangements on Chapter D – that set out the obligation to remain in a residency center and its scope – constitute a harsh, independent infringement of the constitutional right to liberty. Despite the changes made in the Law, they argue that staying in a residency center means staying there. In other words, it is a facility whose characteristics are more like those of a detention facility than an “open” or “semi-open” residency center. For its part, the State does not dispute that Chapter D, by its current language, continues to restrict the constitutional right to liberty. However, it argues that the changes made in the Law reduce “the restriction imposed upon the resident’s ability to realize his liberty substantially, such that the obligation to stay there in a manner that infringes the right to liberty is only at night…”. The State further argues that “Chapter D does indeed restrict the right to liberty and thus infringes it. However…the Petitioners’ claim that staying in the residency constitutes a denial of the right to liberty should not be accepted” (para. 103 of the State’s response).

59.       Indeed, changes were introduced into the current language of Chapter D in comparison to its former language. However, while these changes reduce the infringement of the right to liberty, the infringement still exists. The obligation to remain in the residency center is still not given of the resident’s free choice. As such, it infringes the residents’ freedom of movement, as well as amounting to an infringement of their right to liberty. This infringement is reinforced in view of the requirement that the residents of the center report for registration in the evening, and remain there during the night, and in view of the prohibition upon their working outside of its confines. As was held in the Eitan case, every arrangement that forces a person to stay in a particular place, and that requires him to stay there even for part of the day, naturally comprises an infringement of his right to liberty:

Infringement of the right to liberty…is inherent to every facility in which one’s presence is not voluntary. Open residency centers that are not entered voluntarily as a matter of the resident’s free choice, and that require the resident’s presence even if only for part of the day – infringe the right to liberty by their very nature. In the matter before us, the State does not dispute that the residency center restricts the right to liberty, but rather, as noted, it distinguishes between denying the right to liberty and limiting it. I find no virtue in this distinction in regard to the infringement of the right. As A. Barak noted, “Limiting a constitutional right means violating it. Basic Law: Human Dignity and Liberty employs the term ‘violates’ (‘There shall be no violation of rights under this Basic Law…’). As opposed to this, the Canadian Charter and most other modern constitutions employ the term ‘limits’. In my opinion, there is no distinction between the two (Proportionality in Law, p. 135). And as Barak explains:

“The limitation or violation occurs in every situation in which a governmental authority prohibits or prevents the holder of a right from realizing it to its fullest. In this regard, the question of whether the violation is great or small is of no importance, whether it is at the core of the right or its dim edges, whether it is intentional or not, whether it is by action or by omission (where there is a positive duty to protect the right), every violation, regardless of its scope, is unconstitutional unless it is proportionate (ibid., at pp. 135-136)” (ibid., para. 117, emphasis added – M.N.).

So it is in the matter before us, as well. As a rule, the difference between a violation of freedom of movement and a violation of the right to liberty is in the extent of the violation and its force (Ophelia Field, U.N. High Commissioner for Refugees, Div. of Int’l Protection Servs., Alternatives to Detention of Asylum Seekers and Refugees 2, 11-2 U.N. DOC POLAS/2006/03 (April 2006); Guzzardi v. Italy, 39 Eur. Ct. H.R. (ser. A) at 23–25 (¶¶92–95) (1981) (hereinafter: the Guzzardi case); and see: Department of Economics and Social Affairs, Study of the right of everyone to be free from arbitrary arrest, detention and exile (United Nations publication, Sales No. 65.XIV. 2), ¶21)). The changes made in the Law – like the reduction of the requirement of presence, and the restriction upon the length of residency in the residency center – reduced the extent of the violation of constitutional rights. However, it cannot be said that the violation has been so reduced as to leave only the imposition of limits upon freedom of movement.

60.       To summarize this aspect, the current language of Chapter D still significantly infringes the rights of the residents of the residency center – particularly their liberty. That being the case, we must examine whether that infringement can meet the criteria of constitutional review, to which I will now proceed.

 

The Purposes of Chapter D

61.       From the explanatory notes of the Law and the responses of the Respondents we learn that the main purpose of Chapter D of the Law is to stop the permanent settling of the infiltrator population in the urban centers, and to prevent them from working in Israel. Alongside this, the Law is intended to provide an appropriate response to the needs of the infiltrators. Another declared purpose is the creation of a normative block to potential infiltrators.

62.       The Petitioners’ main argument is that the true primary purpose of the Chapter D of the Law is to “break the spirit” of the infiltrators and encourage them to leave Israel (and see: the Petitioners’ pleadings, paras. 4-6). This purpose, they argue, found expression in the deliberations on the bill. They argue that, in any case, reality demonstrates that, in practice, sending infiltrators to the Holot residency center breaks their spirit and leads to their leaving Israel. The Petitioners are of the opinion that the desire to encourage departure from Israel is not a proper purpose, particularly when the efforts are directed at a group of people who cannot be deported. The desire to prevent the infiltrators from settling in the urban centers is also not a proper purpose in their view. The purpose is improper whether it is intended to prevent long-term residence in Israel, or whether it is intended to distance these people from society. Lastly, the Petitioners argue that deterrence is also not a proper purpose.

63.       The Respondents – both the State and the Knesset – are of the opinion that these purposes are proper in that they are “intended…for the benefit of realizing clear societal interests concerning the sovereignty of the State of Israel and its ability to confront the consequences attendant to tens of thousands of infiltrators settling in its cities…” (para. 178 of the State’s response).

 

Preventing Settling

64.       The purpose of preventing infiltrators from settling was addressed in the Adam case, as well as in the Eitan case. In the Adam case, Justice E. Arbel was of the opinion (in the course of addressing the arrangement for detention) that this is a proper purpose. In her view, the state has the “right to decide its immigration policy, which derives from the sovereign character of the state”, from which “even its right to establish measures to confront illegal immigrants, assuming they have not been recognized as refugees” also derives. She was ready to “deem as an important societal objective, the state’s desire to prevent negative consequences…to thwart the possibility of infiltrators to freely establish themselves in any place in the State of Israel, integrate into the labor market, and force the local public to contend with the entry of infiltrators to its midst, with all that it implies” (ibid., para. 84). As opposed to this, in the same case, Justice U. Vogelman was of the opinion that “the question of whether the law’s purposes meet the proper-purpose test, as set out in the case law, raises difficulties”, but he left the matter to be addressed in due course (ibid., para. 19; and see: the Eitan case, para 103). The remaining justices concurred in the opinions of both Justice E. Arbel and Justice U. Vogelman. Therefore, the Adam case did not decide this issue, with the majority preferring to leave the question of whether the purpose was proper for future deliberation in due course.

65.       The question of whether preventing settling is a proper purpose was also left undecided in the Eitan case. Justice U. Vogelman again refrained from deciding the question of proper purpose “against the problem raised”, in his words, “by a purpose concerning the separation of one population from another” (para. 103). Most of the justices – both those who concurred in Justice Vogelman’s majority opinion, and those dissenting – did not address this purpose. Justice S. Joubran was of the opinion that this purpose “in and of itself, is not illegitimate”, noting “that the state’s desire to prevent the settling of infiltrators in the cities is one of the expressions of the immigration policy. This policy inherently involves restrictions of certain basic rights…but this restriction itself does not deny its being a proper purpose. Vital interest underlie this policy. The purpose of these interests expresses protection of society from the negative consequences that may result from the infiltration phenomenon. I view this purpose to be proper […]” (ibid., paras. 7-8). I also noted there (para. 5 of my opinion) that creative solutions are needed to solve the problem of the distress of the residents of south Tel Aviv, such as the orderly delineation of the areas of residence of infiltrators.

66.       Neither the Adam case nor the Eitan case unequivocally found that preventing settling in the urban centers is a proper purpose. It was expressly recognized as such by Justice (Emerita) E. Arbel and Justices N. Hendel and S. Joubran. I also expressed support for adopting means for realizing that purpose. I would propose to my colleagues that we now expressly hold that preventing settling in the urban centers is a proper purpose, for the reasons that I will now present.

67.       The Eitan case noted that many of the infiltrators live in the city of Tel Aviv-Jaffa (particularly in its southern neighborhoods), and that the rest live primarily in Eilat, Ashdod, Ashkelon, Beer Sheba, Petach Tikva, Rishon Lezion, and Ramle (para. 29). The situation created in those aforementioned cities raised – and continues to raise – not inconsequential problems. In my opinion, there if no defect in a law that seeks to reduce those problems by dispersing the infiltrator population. In the Eitan case, I noted, as aforesaid, that it is not wrong for the state to adopt means that would lead to the dispersal of the infiltrators and to easing the burden on Israel’s urban centers.

68.       International law recognizes the challenges posed by the arrival of aliens in a state, and as noted, permits it to adopt various measures – among them measures that restrict their freedom of movement and liberty – in the framework of confronting those challenges (secs. 26 and 31 of the Refugee Convention; also see sec. 9 of the Convention, which establishes a derogation clause that permits states to adopt various measures against asylum seekers in exceptional situations, among them measures that may limit their freedom of movement (Commentary to the Refugee Convention, p. 789)). As described above, the restriction of liberty must serve a lawful purpose, and it must be employed only when necessary.

69.       The purpose of preventing settling in the urban centers – which concerns easing the burden upon the urban center in which there is a significant concentration of aliens – is consistent with these criteria, and accords with the rules of international law. The interest in preventing the concentration of asylum seekers in certain cities stood at the base of various measures that restrict the freedom of movement of asylum seekers in Norway (see: UNHCR, Alternatives to Detention, p. 165), Switzerland (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Switzerland, at 52, AIDA Doc. (17.2.2015) (hereinafter: Switzerland)), Germany (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Germany, at 62, AIDA Doc. (January 2015)), and Kenya (see: Kitu Cha Sheria v. The Attorney General [2013] eKLR (H.C.K.) (Kenya) (hereinafter: Kitu Cha Sheria); Samow Mumin Mohamed v. Cabinet Secretary, Ministry of Interior Security and Co-ordination [2014] eKLR (H.C.K.) (Kenya) (hereinafter: Mohamed); Coalition for Reform and Democracy (CORD) v. Republic of Kenya [2015] eKLR, paras. 401-403 (H.C.K.) (Kenya)). Even the U.N. Commission for Refugees – in its comments upon the bill for the Law that is the subject of these proceedings – recognized that dispersal of the asylum-seeking population among various cities is necessary in order to ease the burden upon the cities in which the infiltrators have concentrated (see: Appendix P/10 of the petition).

70.       The European Union’s directive regarding the reception of asylum seekers (Council Directive 2003/9, 2003 O.J. (L31) 18 (EC)) adopts a similar approach. Despite the fact that, as a rule, asylum seekers are granted freedom of movement within the state in which they are staying, art. 7 of the directive establishes that states may establish geographic areas in which asylum may reside, and at times, even specific places of residence:

1. Asylum seekers may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive.

2. Member States may decide on the residence of the asylum seeker for reasons of public interest, public order or, when necessary, for the swift processing and effective monitoring of his or her application.

3. When it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with their national law.

4. Member States may make provision of the material reception conditions subject to actual residence by the applicants in a specific place, to be determined by the Member States. Such a decision, which may be of a general nature, shall be taken individually and established by national legislation.

5. Member States shall provide for the possibility of granting applicants temporary permission to leave the place of residence mentioned in paragraphs 2 and 4 and/or the assigned area mentioned in paragraph 1. Decisions shall be taken individually, objectively and impartially and reasons shall be given if they are negative. The applicant shall not require permission to keep appointments with authorities and courts if his or her appearance is necessary.

6. Member States shall require applicants to inform the competent authorities of their current address and notify any change of address to such authorities as soon as possible. (Emphasis added – M.N.)

 

Adopting means for deciding the place of residence of asylum seekers is therefore proper, as long as it is related to public interests, public order, or the need for the swift and efficient processing of applications for asylum. A revision to this directive was recently published, in the framework of which similar provisions were applied to anyone submitting an application for international protection of any kind (Directive 2013/33, 2013 O.J. (L180) 96 (EU)).

71.       The European policy established under the directive and its revision has been the subject of criticism, inter alia, due to the broad discretion that it allows states in its implementation (Commentary to the Refugees Convention, pp. 1161-1163), and because it permits the imposition of restrictions upon freedom of movement for considerations of public order even if they do not meet a necessity test (UNCHR Annotated Comments to Directive 2013/33/EU of the European Parliament and Council of 26 June 2013 Laying Down Standards for the Reception of Applicants for International Protection (Recast) 14 (2015) (hereinafter: UNCHR Comments to EU 2013 Directive). However, the current commentary to the Refugee Convention noted that it is possible to justify the European policy if it is implemented in situations in which there is a pressing need to do so, such as circumstances of “mass influx”:

[Article 7] can, however, […] be regarded to be in accordance with Art. 26 of the 1951 Convention if it is restricted to situations of a mass influx, or to the procedural situation of investigating the identity of, and possible security threat poses by, an individual seeking recognition of refugee status. (ibid., p. 1164; emphasis added – M.N.)

In its response to the revision to the directive, the U.N. Commission for Refugees presented a similar stand (UNCHR Comments to EU 2013 Directive, p. 14):

UNHCR recognises that there are circumstances, however, in which the freedom of movement or choice of residence of applicants for international protection may be needed to be restricted, subject to relevant safeguards under international law.

72.       International law thus recognizes that measures that restrict the freedom of movement and at times, even the liberty of asylum seekers may be adopted in exceptional circumstances (compare: Commentary to the Refugees Convention, p. 790; UNCHR Comments to EU 2013 Directive, pp. 20-21). This is permitted for public purposes, among them alleviating the burden on urban centers in exceptional circumstances such as “mass influx” of asylum seekers (and see: Commentary to the Refugees Convention, pp. 789-790; Hathaway, p. 420); Goodwin-Gill and McAdam, p. 465; on the exceptionality of these circumstances, also compare the European directive in regard to temporary protection in the event of mass influx: Council Directive 2001/55, 2001 O.J. (L212) 12 (EC); for an analysis of the directive, see the Asafu case, para. 26).

73.       If we view the Israeli legislation through the lens of international law, we can distinguish a situation in which the state is confronted with a situation that, on its face, justifies adopting liberty-limiting measures. As presented above, over the last decade the State of Israel has been contending with a large number of people who entered its territory illegally, and who, at the present time, it is unable to remove. A significant part of them are concentrated in specific geographic areas, particularly south Tel Aviv. In my opinion, under these circumstances, there are no grounds for intervening in the State’s position that there is a vital need to prevent the infiltrators from settling in the urban centers. One can even say that such a situation constitutes “mass influx” that requires the implementation of appropriate measures. “Mass influx” is not only measured quantitatively, but also relatively, inter alia, giving consideration to the state’s resources, and specifically its asylum system and its capabilities (Goodwin-Gill and McAdam, Refugee, p. 335).

74.       The purpose of preventing settling in urban centers would also appear to be consistent with the state’s right to design its immigration policy and choose to whom to grant status in Israel. This right derives from the principle of state sovereignty (the Adam case, para. 84). However, that right is not absolute, and it is subject to the state’s obligation to aliens, among them refugees and asylum seekers. This view is also accepted in our constitutional system. As is well known, a person is not deprived of basic human rights even if he enters the country illegally. Therefore, not every legislative arrangement intended to serve the immigration policy will be consistent with constitutional criteria (see and compare: the Al Tai case, p. 848). Nevertheless, this does not mean that such an arrangement will necessarily be annulled due to its purpose (see and compare: the Adalah case, p. 412).

75.       In conclusion, it is my view that under the present circumstances, preventing settling in the urban centers is a proper purpose.

 

Preventing the Infiltrators from Earning in Israel

76.       The Respondents argued that erecting the residency center is also intended to serve the purpose of preventing the infiltrators from earning income in Israel. However, although the residents of the center are not permitted to work, it would seem that this purpose is, at most, attendant to the primary purpose of preventing the infiltrators from settling in the urban centers. This conclusion is reinforced by the fact that the provisions regarding work and earning by infiltrators are primarily found in Chapter B of the Amendment, which was not challenged in the petition before us. The Petitioners themselves did not specifically address this purpose and did not present concrete arguments as to the constitutionality of the provision prohibiting residents of the residency center to work outside of the center. This being the case, I see no reason to decide the complex question (compare, inter alia, the response of the U.N. Commission for Refugees to the bill, Appendix P/10 of the petition) of whether this purpose is proper.

 

Preventing a Resurgence of Infiltration to Israel

77.       According to the State, another purpose of the Law is the creation of a “normative block” to the arrival of potential infiltrators to Israel. The State is of the opinion that this purpose, in and of itself, is proper. I addressed the purpose of deterrence in the framework of my discussion of sec. 30A of the Law. I found, as I noted in the Eitan case, that “general deterrence, in and of itself, is not a legitimate purpose” (ibid., para. 2 of my opinion, emphasis original). However, as I noted, when there is a proper purpose for restricting or infringing individual rights, there is no flaw in the legislature’s considering a subsidiary, attendant purpose of deterrence. This is the case before us. Having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect.

 

Responding to the Needs of the Infiltrators

78.       According to the State, another purpose grounding the Law is providing a response to the needs of the infiltrators. This purpose was acknowledged to be proper in the Eitan case, which held: “A law whose purpose is the erecting of an open residency center intended to meet the needs of the infiltrators is a law intended for a proper purpose” (ibid., para. 104). I am in complete agreement with that conclusion, and I see no need to say more. There can be no doubt that such a social purpose is proper. Similarly, other countries have established residency centers intended to provide shelter and basic rights for asylum seekers who cannot provide for themselves (for a detailed discussion, see ibid., paras. 133-134). However, we should not ignore the fact that, in practice, the infiltrators do not consider the Holot residency center to be meeting their needs. I will address this below.

 

A “Hidden” Purpose – Encouraging Voluntary Emigration

79.       The Petitioners’ main argument is, as noted, that the true purpose of the residency center is to “break the spirit” of the infiltrators and encourage them to leave Israel “voluntarily”, so to speak. This claim was also raised in the Eitan case, and Justice U. Vogelman left it to be decided in due course. The claim was denied before the Court in the responses of both the State and the Knesset. The matter also finds no mention in the Law or the explanatory notes. More importantly, in the oral arguments before the Court, the State’s attorney Adv. Yochi Genessin expressly declared that no actions have or will be taken for the purpose of encouraging the infiltrators to leave Israel:

President Naor: This is a motif that is nevertheless repeated in the petition. Are you willing to clearly state that no actions have or will be taken to break the spirit?

Adv. Genessin: Certainly, most certainly (emphasis added – M.N.).

80.       The Respondents pointed out that not every policy whose purpose is not “inclusion and absorption” is a policy intended to break the spirit of those people who have infiltrated into Israel. I accept that legal position. In this matter, it is not possible to determine that breaking the infiltrators spirit is one of the purposes of the Law. Infiltrators who cannot be deported have the right to remain in the territory of the state after completing their stay [in the residency center]. In its response and in the hearing before us, the State argued that the residency center provides a response to the needs of many of the infiltrators, above and beyond their basic needs, and that, inter alia, recreational activities, employment opportunities, professional training courses and more are offered. While the Petitioners presented a number of claims and criticisms in regard to the character of the residency center and the possibilities it afforded, they stressed that this subject is not the focus of their petition. Even assuming that there is room for improving the living conditions in the residency center – upon which I am not making a determination – it cannot be found, at present, that the current conditions actually cause infiltrators to leave Israel by breaking their spirit.

81.       I have, therefore, not found that the current Law is intended to break the spirit of the infiltrators. If this were the purpose of the Law, it would present a great difficulty. On its face, such a purpose would be improper in view of the fact that it would appear to undermine the principle of non-refoulement that prohibits deporting a person to a state in which there is a threat to his life of liberty. This is not to say that the state cannot remove infiltrators to a safe country. Removal of infiltrators to such a country is subject to various conditions intended to ensure that it is indeed a safe country, and that that country will not transfer the infiltrators to another country that is not safe (the Al Tai case, pp. 848-850; the Adam case; for foreign case law in this regard, see for example: Plaintiff M70/2011 v. Minister for Immigration and Citizenship [2011] H.C.A. 32; EM (Eritrea) v. Secretary of State for the Home Department [2012] EWCA Civ. 1336). Determining that the country is indeed safe is a complex question that does not arise in the matter before us.

82.       Along with the possibility of transferring any person – even against his will – to a safe country, a person is, of course, entitled to choose to leave Israel of his own free will, and even go to a country that presents a danger (the Eitan case, para. 109; sec. 1(c)4 of the Refugee Convention, according to which the Convention will cease to apply to a person who “[…] has voluntarily re-established himself in the country which he left or outside which he remained […]”; and see art. 12 of the International Covenant on Civil and Political Rights; Hathaway, pp. 953-961). A person’s free will is premised upon the principle of freedom of choice. This principle is expressed in sec. 1(c)(4) of the Refugee Convention in the “voluntariness” requirement (see: Hathaway, p. 960; UNCHR, Handbook: Voluntary Repatriation: International Protection (1996)). A free, voluntary decision to leave the country is one made “without external inducement and certainly without coercion of any kind” (Hathaway, p. 960). Voluntary repatriation that does not meet these requirements may expose the infiltrators to persecution in their country and constitute “constructive removal” in violation of the non-refoulement principle (for a discussion of constructive removal in the Israeli context, see: Christian Mommers, Between Voluntary Repatriation and Constructive Removal, or: The Activities of Israel to Promote the Return of South Sudanese Asylum Seekers, in Where Levinsky Meets Asmara 386 (2015) (Hebrew); for a discussion in regard to other countries, see Hathaway, pp. 319, 959-961; and compare the Mahmoud case, para. 26).

83.       The outcome of the above is that the state may not employ sanctions or any other means that might deny free will against groups of people subject to the non-refoulement principle in order to break their spirit. As quoted, the State’s attorney, Adv. Genessin, declared that no actions intended to break the spirit of the infiltrators would be employed in the residency center. The state is therefore obligated – as also arises from the declaration – to refrain from tying staying in the residency center to the issue of voluntarily leaving the country. Accordingly, no actions intended to bring about voluntarily departure from the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner. In particular, no such actions may be taken in the course of contacts between the infiltrators and administrative entities in the residency center, for example, when they seek medical attention, welfare assistance, an exemption from reporting in the residency center, and so forth.

84.       In summary, the result of this chapter is my conclusion that preventing infiltrators from settling in the urban centers, in the senses that I addressed, is a proper purpose. As noted, this conclusion is also consistent with the principles of international law. In view of this conclusion, I will now turn to an examination of the proportionality of the means adopted by the Law for realizing the said purpose.

 

Chapter D: Proportionality

85.       As is well known, an infringement of a right must be to an extent no greater than is required. “Proper purposes do not sanctify all means” (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619, 694 (2006); HCJ 5100/94 Public Committee against Torture v. Government, IsrSC 53(4) 817, 845 (1999) [http://versa.cardozo.yu.edu/opinions/public-committee-against-torture-v-...). In the Eitan case, the majority held that Chapter D comprised a number of individual arrangements – such as the scope of the requirement to remain in the residency center and the length of the stay – that suffered from constitutional defects that affected the entire chapter (see, for example, ibid., para. 4 of my opinion). Here, too, I will first examine the primary individual arrangements established by the Law. In doing so, the reciprocal relationships between these arrangements will also be examined.

86.       I will state my conclusion in advance: I have not found any grounds for intervention in the Director’s authority to order an infiltrator to the residency center. I also find no defect in the Law’s provisions arranging the method of operating the residency center and the daily life of the infiltrators staying there. The only arrangement that, in my view, is tainted by a constitutional defect is that establishing a twenty-month maximum period for holding a person in the residency center. In my opinion, this period of time violates the constitutional rights of the infiltrators to an extent that is greater than required.

 

The Director’s Authority to order that an Infiltrator stay in the Residency Center and its Scope

87.       Like Amendment 4, the Law now under review authorizes the Director to order that an infiltrator stay in the residency center. The current language of the Law limits this authority in two ways. First, it establishes that the Director can issue such an order for a period that shall not exceed twenty months. Second, it establishes that the Director is not permitted to issue such an order to vulnerable populations, such as minors, victims of human trafficking, or people with families (sec. 32D(b) of the Law). In addition, the Law establishes grounds for release, among them a change of circumstances or medical reasons (secs. 32D(g) and 32E(c) of the Law). The previous law did not expressly restrict the Director’s authority in these ways. The question before us is whether – in light of the changes introduced in regard to the scope of the Director’s authority – this authority passes the tests for constitutionality.

 

A.The Rational Connection Test

88.       The first test is the rational connection test, which examines whether the chosen means are appropriate to achieving the law’s purpose and rationally lead to its realization (see: the Nir case, para. 23; Barak-Proportionality, pp. 373-374). Do the arrangements under review meet this test? The Petitioners’ main argument is that the period of up to twenty months does not realize the legislative purposes. As opposed to this, the State is of the opinion that while staying in the residency center may only prevent settling for a limited period, the purpose is effectively achieved during that period.

89.       In the Eitan case we held that issuing an order to stay in the residency center that is not limited in time meets the rational connection test. We noted that the order permanently disengages the infiltrator from the area in which he established himself, and makes it difficult for him to continue his employment (ibid., para. 158). The question that must be asked is whether an analogy should be drawn from that holding to the matter before us in which the period of the stay in the residency center is, as noted, limited to a defined period. In my opinion, the answer is yes. First, there can be no doubt that while staying in the residency center, the infiltrator is unable to establish himself in the urban centers, inasmuch as his habitual residence is in the residency center. Thus, during the period of the stay, the Law’s purpose is fully realized. Moreover, disengaging the infiltrator – even for a defined period – can influence his ability to return and reestablish himself in the urban centers. Even disengagement for a limited period has not-inconsequential effect on way of life (see and compare the data submitted by the Petitioners themselves in this regard: paras. 138-140 of the petition, and the affidavits appended as Appendix 13). In addition, Eitan - Israeli Immigration Policy Center – which sought to join the petition – appended to is request a number of affidavits by residents of Tel Aviv’s southern neighborhoods who state that the effect of the means adopted by the State can be seen on the ground. According to them, since the implementation of the new policy, the situation has significantly improved (p. 2 of the affidavit of Ms. Shefi Paz, a social activist who is a resident of the Shapira neighborhood, and see: the affidavit of Mr. Oved Hugi, Chair of the Tel-Haim Council; the affidavit of Mr. Haim Meir Goren, a resident of the Shapira neighborhood).

90.       In any case, even if a limited stay does not fully achieve the Law’s purpose, it is not necessary that the chosen means fully achieve the Law’s purpose (see and compare: the Nir case, para. 24; Barak-Proportionality, pp. 376-382; the Adalah case, p. 323). We should bear in mind that underlying Chapter D was the desire to ease the burden borne by a number of Israeli cities that are a magnet for infiltrators. Under these circumstances – and upon the reasonable assumption that after infiltrators are released from the residency center, other infiltrators will enter to replace them – I am of the opinion that limiting the stay of a particular infiltrator to a particular period of time is consistent with the purpose of the Law.

91.       Inasmuch as according to the Petitioners the maximum number of infiltrators that can be held in the residency center constitutes a marginal percentage of the total infiltrator population, the petition casts doubt whether the residency center will have a real influence over their settling as a group. However, this argument ignores the fact that the Law allows for increasing the capacity of the Holot residency center and for establishing additional residency centers. Accordingly, the State declared that the existing center serves as a “pilot”. Against this background, we can state that the provision under review meets the first proportionality test. This Court expressed a similar view in the prior proceedings (see: the Eitan case, para. 128; and see: the Adam case, para. 97). However, it is not impossible that with time or changes in circumstances, it will be possible to revisit this issue. “[…] the rational connection must continue throughout the entire life of the law. The question of constitutionality accompanies the law through its entire life. It is examined at all times in accordance with its results (Barak-Proportionality, p. 385; HCJ 7245/10 Adalah – The Legal Center for Arab Minority Rights in Israel v. Ministry of Social Affairs, para. 60 of the opinion of Justice E. Arbel (June 4, 2013) [http://versa.cardozo.yu.edu/opinions/adalah-%E2%80%93-legal-center-arab-... HCJ 9333/03 Kaniel v. Government, IsrSC 60(1) 277, 293 (2005)). Therefore, for the present, the said means achieve the primary purpose of Chapter D.

92.       To a certain extent, staying in the residency center also achieves the attendant purpose of deterring potential infiltrators. It may, of course, be assumed that infiltrators fleeing for their lives will not refrain from entering Israel, despite the possibility of being placed in the residency center. However, it is reasonable to assume that those infiltrators who have set themselves the objective of settling in the intended state and earn a living there will take the period of residence in the residency center into account among their considerations (see and compare: the Eitan case, para. 58; the Adam case, para. 98; and see: UNCHR, Legal and Protection Policy Research Series, Back to Basics: The Right to Liberty and Security of Person and “Alternatives to Detention” of Refugees, Asylum-Seekers, Stateless Persons and Other Migrants, p. 2, PPLA/2011/01.Rev. 1 (April 2011) (prepared by Alice Edwards)).

93.       The purpose of providing a response to the needs of the infiltrators is a desirable purpose. But, as noted, I am not convinced that it is realized by the means chosen by the legislature. As is well known, staying in the residency center is imposed upon those residing there, without any certainty that they actually require assistance (see and compare: the Eitan case, paras. 105-106; Kitu Cha Sheria, para. 82). In any case, there is no need to expand upon this inasmuch as, as noted, the residency center realizes the main purpose for which is was erected.

 

  1. The Less Restrictive Means Test

94.       In my opinion, the means under review – requiring that an infiltrator stay in the residency center for up to twenty months – also meets the less restrictive means test. In the Eitan case the Court held that a residency order for an indeterminate time (or a period limited to three years) constitutes a less restrictive means inasmuch as no other means would realize the Law’s purposes as effectively (ibid., para. 159). That conclusion also applies to this case, in which we are concerned with a residency order limited to twenty months. Other means proposed by the Petitioners – like a voluntary residence center – would not achieve the Law’s purpose as effectively. It may be assumed that a person who has already established himself in a particular place in Israel will not voluntarily choose to leave it and move to the residency center (see and compare: ibid., paras. 129, 181). Indeed, the legislature is not required to adopt the means that is the very least restrictive when adopting that means would lessen the possibility of achieving the purpose (Barak-Proportionality, p. 500; the Eitan case, para. 130).

 

The Proportionality Stricto Sensu Test

95.       The third proportionality test – proportionality stricto sensu – examines whether the legal provision strikes a proper balance between the social benefit produced by the law and the harm resulting from its infringement of constitutional rights (Barak-Proportionality, p. 413; the Gurevitz case, para. 58). In the Eitan case, the Court held that the absence of a limit upon the length of residence and the lack of grounds for release lead to the conclusion that Chapter D was entirely void (para. 195). As described above, these requirements received some response in the current Law. Does that alter the harm-benefit relationship?

96.       As described above, the changes in the Law reduced the harm to constitutional rights. Clearly, the twenty-month period established under the current Law infringes the rights of the infiltrators to a lesser degree in comparison to the longer period established in the prior law. Similarly, keeping a person in the residency center for a limited period – as opposed to an indeterminate period (or a period that can be extended for an indeterminate time) – lessens the intensity of the infringement of his rights, inasmuch as it creates certainty as to the release date. In addition, the Law includes a number of provisions that limit the Director’s authority to issue a residency order and set its length, and which outline an administrative apparatus through which he must make his decision. First, under the Law, the Director must make two separate decisions. He must first decide whether a residency order should be issued in regard to a specific infiltrator. If he decides that an order should be issued, he must – at the second stage – decide upon the period of time that the infiltrator will reside in the center. Second, the twenty-month period is not a default position, but rather the upper limit of the Director’s authority. This derives from the express language of the Law, which establishes that the residency period will be “[…] no more than the 20 months stated in sec. 32U (emphasis added – M.N.). We are therefore concerned with a system that requires an individual examination of each infiltrator. This system is appropriate and should be maintained. Third, the Director must grant the infiltrator a hearing in which he can present his arguments prior to the issuance of a residency order and before the setting of the period of residency (sec. 32D(d) of the Law; and see: AAA 2863/14 Ali v. Ministry of the Interior – Population and Immigration Authority (Aug. 10, 2014 and Oct. 2, 2014)). Lastly, the procedure for issuing the residency order and setting its time is individual. The Director must exercise his authority and his discretion in accordance with the personal circumstances of each infiltrator (compare: Kitu Cha Sheria, paras. 62 and 87; and see Mohamed, para. 24). In this framework, he must consider relevant information, bearing in mind the purpose of the Law and the scope of the expected harm to the infiltrator (see and compare: AAA 1758/10 Israel Bar Assoc. v. Sagi, para. 12 (Aug. 15, 2011); the Al Tai case, p. 848; Itzhak Zamir, The Administrative Authority, vol. II, 119-130 (2nd ed., 2011)). Against this background, the statement made by the State’s attorney in the hearing before us – according to which, at present, all infiltrators are issued a twenty-month residency order – is not consistent with the Law and is contrary to its purpose.

97.       While it is hard to disagree – particularly in light of the above – that Chapter D’s current infringement of the constitutional rights of the infiltrators to liberty is of lesser intensity than it was under its prior language, that is not the end of the road. Even when the legislature adopts a less harmful arrangement than the previous one – a situation referred to as a “benefitting statute” – the Court is not relieved of its duty to examine the constitutionality of such a law that infringes constitutional rights. As held in the Tzemach case:

… the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw. Sometimes, an amending statute combines beneficial provisions with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do not may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits [at p. 260; and see: the Eitan case].

Indeed, we are concerned with an arrangement that the legislature adopted after the Court annulled a previous arrangement for unconstitutionality. However, that does not exempt the Court from examining the new Law in accordance with the accepted constitutional criteria. That is what this Court did in the Eitan case in regard to sec. 30A of the Law, and that is what we must do now in regard to the provisions of Chapter D of the Law. I will begin by stating that despite the appropriate changes made in Chapter D – as a result of which most of the provisions now pass the constitutional tests – I am of the opinion that the maximum period established for staying in the center is unconstitutional. It does not appropriately balance the benefit of the Law and the serious harm to the rights of those staying in the residency center. As a result, it does not meet the third proportionality test. I will now explain in detail.

98.       As noted, this Court held that even holding an infiltrator in the residency center for a limited period of time constitutes an infringement of his right to liberty. “An infringement of the right to liberty…is inherent to any facility in which a person’s presence is not voluntary. Open residency centers that one does not enter voluntarily in accordance with the resident’s free choice, and which requires the resident’s presence even if only for part of the day, inherently infringe the right to liberty” (the Eitan case, para. 117). An infiltrator who is the subject of a residency order must abandon his lifestyle, his work, his place of residence, and his family and acquaintances. His day is organized in accordance with the rules of the residency center, and he is not free to live his life in an independent, autonomous manner. “[…] and all of this, not as punishment for his infiltration, or for the purpose of realizing his deportation, but for the purpose of ‘preventing him from settling in the urban centers and integrating himself into the labor market” (ibid., para. 150). This infringement is intensified in regard to some of the infiltrators in view of the trials and travails they experienced in their countries of origin and on their way to Israel (the Adam case, para. 112). This Court added that the longer the period of time during which a person is deprived of liberty, the greater the intensity of its infringement, “[…] such that a person is required to increasingly relinquish more of his desires and hopes. His personal identity and his unique voice are submerged in a regimented, grinding daily routine” (the Eitan case, para. 154).

99.       Against this background, it was held that setting an upper limit for being held in a residency center is insufficient. That limit must also be proportionate (see: ibid., para. 162). Liberty is the basic foundation of a person’s life and existence. Denying it, even for a day, significantly infringes his rights (compare: ibid., paras. 152-153). Weighing the serious infringement of the infiltrator’s rights against the benefit deriving from the Law has led me to the conclusion that a period of twenty months is too long a period for holding infiltrators under liberty-limiting conditions of the type under examination. We should bear in mind that we are speaking of infiltrators who cannot be deported from Israel, and who do not present a concrete threat to the security of the state or the lives of its citizens. Their only sin is illegally crossing our borders, for which the state may not punish them (see and compare: sec. 31(1) of the Refugee Convention). While infiltration is an unwanted phenomenon, and solutions should be found for the residents of Israel’s cities, these are not the only considerations. A solution that involves denying people’s rights for such long periods of time is disproportionate.

100.     At this point, on the basis of all the above, I will return to the main purpose of the Law – preventing settling in urban centers. This purpose does not focus upon an individual infiltrator or a threat that he poses to society. It concerns the need to ease the burden upon the urban centers and their residents, in general. I am of the opinion that realizing this purpose does not require holding any particular infiltrator in the residency center. It is sufficient that a group of various infiltrators be held in the residency center. Indeed, it is to be assumed that when one infiltrator is released from the residency center, another infiltrator will take his place. I am of the opinion that this turnover between the infiltrators staying in the residence center and others from outside realizes the purpose of the Law. It is sufficient that at any given time, part of the infiltrator population – according to the capacity of the Holot facility and other facilities that the state intends to erect – is removed from the urban centers. This “revolving door” approach infringes the constitutional rights of the infiltrators placed in the residency center to a lesser extent, while achieving the legislative purpose. It is therefore possible to suffice with a significantly shorter period for staying in the residency center while still realizing the Law’s purpose.

101.     The lengthy period established by the Law has no parallel in comparative law. A comparative examination must, of course, be conducted cautiously in view of the cultural and social differences that may influence the comparison (see: the Eitan case, para. 72 and the references there). Nevertheless, “we should bear in mind that democratic states share common basic values. One can learn from another. Comparative law allows us to broaden our horizons and acquire interpretive inspiration […]” (ibid.). A comparative survey reveals that staying in residency centers of various types is voluntary in most countries. In certain countries, asylum seekers are required to stay in a residency center as an alternative to detention, but this is only for periods of a few months. It is also important to note that in some countries there is a trend toward shortening the periods for imposed residence in residency facilities of various kinds, and of reducing the restrictions upon freedom of movement. Thus, for example, while asylum seekers in Germany and Switzerland are required to stay in a reception center upon arrival in the country, the period of that stay is only three months (Asylverfahrensgesets [Asylum Procedure Act] Nov. 22, 2011, BGBI. I S 2258, Art. 47) (hereinafter: Germany, Asylum Procedure Act); Art. 16 al. 2 Ordonnance 1 sur l’asile relative à la procedure).

102.     After that period, remaining in the reception center is not required, but in Germany it constitutes a condition for obtaining social benefits (Germany, Asylum Procedure Act, Art. 47, Art. 60 para 2 Nr. 1, Art. 85 para 3 Act; Oberverwaltungsgericht [OVG] Freie Hansestadt Bremen [Higher Administrative Court of Bremen], 01.10.1993 - 1 B 120/93, beck-online). In the Netherlands, an asylum seeker is permitted to stay in an open residency center on the basis of economic need for as long as his request is being processed. An asylum seeker staying in such a center is free to leave the facility, but he must report to the authorities weekly (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, the Netherlands, at 43-46, AIDA Doc. (16.1.2015)). There are open residency centers intended for social needs in Belgium and Finland, as well. Asylum seekers residing in them enjoy full freedom of movement (see: European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Belgium, at 68, AIDA Doc. (28.2.2015) ; MAAHANMUUTTOVIRASTO: The Finnish Immigration Service, http://www.migri.fi/asylum_in_finland/reception_activities/ reception_centers). There is no requirement to remain in a reception center in Hungary, Poland or Ireland, but staying in a residency center is a condition for receiving social benefits (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Hungary, at 14, AIDA Doc. (17.2.2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Poland, at 5, AIDA Doc. (January 2015); European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Ireland, at 50-51, AIDA Doc. (1.2.2015)). There is also no requirement for remaining in residency centers while asylum requests are processed in France, but more than a five-day absence may lead to a denial of eligibility for pocket money (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, France, at 57, AIDA Doc. (26.1.2015); L348-2 Code de l'action sociale et des familles).

103.     In Italy, staying in the facilities – for a maximum period of twelve months – is viewed as a benefit (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Italy, at 15, 53, AIDA Doc. (January 2015) (hereinafter: Italy)). Not reporting to the facility without permission will lead to the resident’s loss of his place in the facility (ibid., p. 66). In Malta, as well, staying in the open facilities – limited up to the issuance of a decision on the person’s asylum request, unless extended – is voluntary (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Malta, at 40, AIDA Doc. (February 2015) (hereinafter: Malta)). Although residents there enjoy freedom of movement, they are required to confirm residence by signing in order to continue to remain in the facility and receive the attendant social benefits (ibid., p.44). Staying in the residency centers in Croatia is voluntary, and is intended to provide the social welfare needs of the asylum seekers. Asylum seekers enjoy freedom of movement, but they are required to return to the center every day by 11:00 PM unless they have obtained permission for absence from the director of the center (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report,Croatia, at 44, AIDA Doc. (5.3.2015) (hereinafter: Croatia)). And also compare the situation in Lithuania, where asylum seekers may be held in reception centers as long as the processing of their asylum request continues (EMN Focussed Study 2013, The Organisation of Reception Facilities for Asylum Seekers in different Member States, National Contribution from Lithuania; The UN Refugee Agency [UNHCR], Integration of refugees in Lithuania: Participation and Empowerment (Oct. – Nov. 2013)).

104.     To complete the picture, we would note that even in countries in which it is possible, under certain circumstances, to hold asylum seekers in closed detention facilities, the period of restricting liberty does not generally exceed a few days, or at most, a period of a few months (see: the Eitan case, paras. 73-74; The Global Detention Project [GDP], The detention of Asylum Seekers in the Mediterranean Region, Global Detention Project Backgrounder (April 2015)). Some countries permit detaining asylum seekers in closed detention facilities or longer periods. In Malta, for example, most asylum seekers are placed in detention for a maximum period of twelve months (Malta, p. 47). Severe criticism has been expressed in this regard (see, for example: Daniela DeBono, ‘Not Our Problem’: Why the Detention of Irregular Migrants is Not Considered a Human Right Issue in Malta, in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, 146 (Marie-Benedicte Dembour & Tobias Kelly, eds., 2011). In Bulgaria, illegal migrants can be detained for a maximum of eighteen months. While, in general, Bulgarian law requires that asylum seekers not be held in detention, in practice, a person who does not manage to file an asylum request at the border will be arrested (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 34-35, AIDA Doc. (31.1.2015); recently, a bill was introduced to permit a general detention regime in closed facilities for all asylum seekers (ibid., p. 48)). Similarly, Cyprus permits the detention of an asylum seeker for a maximum period of eighteen months, which can be extended in certain cases (European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Bulgaria, at 64, AIDA Doc. (February 2015)). However, there is a trend toward shortening the periods of detention even in some of these countries. Thus, while Greece permits detention for the relatively long period of eighteen months, the government recently announced that the period would be reduced to six months (for the Greek government’s announcement of Feb. 17, 2015, see: http://www.mopocp.gov.gr/index.php?option=ozo_content&lang=&perform=view... (in Greek); Asylum Information Database [AIDA], An end to indefinite immigration detention in Greece?, http://www.asylumineurope.org/news/16-02-2015/end-indefinite-immigration... for the criticism of detention in Greece by the U.N. Commission on Refugees, see The UN Refugee Agency [UNHCR], Greece As A Country Of Asylum – UNHCR'S Recommendations (April 2015)). Similarly, until recently, Italian law permitted a maximum detention period of eighteen months, but in November 2014 that period was shortened to four months (Italy, pp. 72-73). In Croatia, where aliens could be held for a period of up to eighteen months, it has been established that aliens who have submitted a request for asylum may be detained for a period of only three months, which can be extended for an additional three months under certain circumstances (Croatia, p. 53).

105.     Moreover, the reception centers in various countries are generally intended for such purposes as initial identification of those entering the territory, assessing asylum requests or exhausting avenues for deportation (for a broad discussion of this subject, see: the Eitan case, para. 163; STEPS Consulting Social study for European Parliament, The conditions in centers for third country national (detention camps, open centers as well as transit centers and transit zones) with a particular focus on provisions and facilities for persons with special needs in the 25 EU member states, IP/C/LIBE/IC/2006-181, 193). To the best of my knowledge, no western country maintains residency centers that are not voluntary for asylum seekers of other migrants with the purpose of population dispersal. That objective is generally achieved by other means (see, for example, what is done in Norway, Switzerland and Turkey: UNHCR, Alternatives to Detention, at p. 165; Switzerland, at p. 71; Asylum European Council on Refugees and Exiles [ECRE], Forum Réfugiés-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee, Asylum Information Database: National Country Report, Turkey, AIDA Doc. (18.5.2015); it should be noted that Turkey recently adopted regulations that arrange the status of aliens who enjoy temporary protection from deportation, see ibid., pp. 65-74). In addition, many countries distinguish among different groups of infiltrators that cannot be deported in regard to the restrictions upon their liberty (see, for example: Eur. Comm’n, Study on the Situation of Third-Country Nationals Pending Return/Removal in the EU Member States and the Schengen Associated Countries 75, E.U. Doc. HOME/2010/RFXX/PR/1001 (Mar. 11, 2013)). As a rule, the distinctions are based upon the reasons for why a particular infiltrator cannot be deported from the country. As a result, there are differences in the scope and type of restrictions imposed upon the liberty of asylum seekers and those who are entitled to international protection as opposed to other aliens. The arrangement under our review does not comprise such distinctions, but rather relates inclusively to all infiltrators for whom there is a problem in regard to deportation. I would emphasize that this is not to say that infiltrators cannot be held in residency centers for the purpose of easing the burden upon the cities. As already stated, my opinion is that this may be done. However, the above does hold implications for the reasonable, proportionate period of time that they may be held.

106.     Undeniably, the conditions for residence in the residency center have been improved, but not sufficiently. As was held in the Eitan case: “…a proportionate normative arrangement must preserve a proper relationship between the extent of the limitation of rights in the facility and the length of the maximum stay there, such that the more severe the limitation upon basic rights, the shorter the imposed stay in the facility” (ibid., para. 162). In the matter before us, the maximum period for holding a person in the residency center does not take into account the scope of the limitations imposed by the current language of the Law on the liberty of the infiltrators staying in the center. Those staying in the center are still subject to a strict disciplinary regime and to the authority of the employees of the Prisons Service (sec. 32C of the Law). In the Eitan case we held that while the administration of the center by employees of the Prisons Service does not constitute an independent infringement of the right to liberty and the right to dignity, it reinforces the infringement of the rights of the infiltrators (ibid., paras. 138-146). To that we must add the enforcement powers granted to the employees of the Prisons Service – among them the power to detain, search and seize. The administration of the residency center by employees of the Prisons Service who are granted police enforcement powers thus increases the infringement of the right to liberty of those staying there. It amplifies the imbalance between the severe infringement of the rights of the individual and the benefit provided by the Law. Along with that, the Law expressly forbids those staying in the center from working outside of its precincts. Although the residents are given the opportunity to work the center, in practice the Law is implemented in a manner that significantly limits that possibility both in terms of the maximum scope of monthly employment hours and in terms of the salary paid for that work (see: Prevention of Infiltration (Offences and Jurisdiction) (Employment of Residents in Maintenance and Services) (Temporary Order) Regulations, 5775-2015; Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2015). In its response, the State itself notes that the employment opportunities are limited and that there are not enough jobs for all of the infiltrators staying in the center (paras. 77-78). As a result of the imposition of these restrictions, the infringement of the liberty of the residents is intensified. Although the residents are currently permitted to remain outside of the center all day, in the absence of employment or a reasonable ability to earn a living, their ability to shape their existence is severely impaired. This is all the more so in view of the location of the residency center, which remains far removed from any populated area (see the Eitan case, para. 126).

            The net result of all of the above further supports the conclusion that the maximum period for holding infiltrators in the center is greater than necessary.

107.     As noted, the State argues that part of the constitutional defects in the previous version of the Law in regard to the residency center has been remedied in the present version. Two subsidiary arguments can be derived from this: One is that the Court should not intervene in these arrangements, while the other is that the Court should examine the proportionality of the maximum period for holding a person in the residency center under the amended arrangements. I will now address these arguments.

 

The Constitutionality of Additional Individual Arrangements and their Consequences

108.     The first arrangement that was amended concerns release from the residency center. Under the law that came under review in the Eitan case, the Director did not have the authority to release a person from the residency center. The Law now establishes grounds for release. Another arrangement concerns the requirement of reporting in to the residency center. While the previous law required that infiltrators staying in the center register three times a day, they are now required to do so only once. Due to the cancellation of the obligation to register in the afternoon, a resident of the center can now move about relatively freely throughout the day (see and compare: the Eitan case, para. 127). The cancellation of the requirement of registering in the morning saves the resident valuable time and allows him to leave the residency center without unnecessary delays. In my opinion, these changes make the reporting requirement proportionate.

109.     Another amended arrangement grants the Director authority – if one of the grounds specified in the Law is met – to order the transfer of an infiltrator to a detention facility. These grounds largely remain as they were in the previous law, primary among them the commission of disciplinary infractions – which concern the violation of the residency center’s disciplinary rules – as detailed in the Law. The Director is authorized to decide the length of the detention period imposed upon the resident of the center, subject to maximum periods prescribed by the legislature. Like the previous law, the periods of detention are set in relation to the number of infractions, their severity and the length of their continuation. However, the maximum periods for detention were significantly shortened. Thus, the shortest period is now set at fifteen days (as opposed to thirty days under the previous law), and the longest period is set at 120 days (as opposed to a year under the previous law).

110.     Unlike the previous law, the current version of the Law establishes an express mechanism for judicial review of the Director’s decision. In accordance with this mechanism, the detention order must be approved by the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of the resident’s detention (sec. 32T(g) of the Law). The Tribunal is required to examine whether there were grounds for transferring the resident to detention, and it may approve the order with or without changes or not approve it (sec. 32T(h) of the Law). This review is self-executing and automatic. It constitutes an inseparable part of the process of transferring a resident to detention, and validates it (see and compare: HCJ 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria, IsrSC 52(3) 346, 360-362; AAA 8788/03 Federman v. Minister of Defence, para. 12 (Nov. 5, 2003) (hereinafter: the Federman case); Yitzhak Hans Klinghoffer, Preventive Detention for Reasons of Security: AAA 1/80 Ben-Yosef (Green) v. Minister of Defence, 11 Mishpatim 286, 291 (1981) (Hebrew) (hereinafter: Klinghoffer)). This interpretive conclusion is supported by the Law’s provisions and their purpose, as well as by the position expressed by the Respondents, who made it clear in the hearing before us that, in their view, the judicial review exercised by the Tribunal is de novo review (and see: paras. 61-63, 168, 229-247 of the State’s response). Along with this, by virtue of sec. 4 of the Administrative Courts Law, 5752-1992 (hereinafter: the Administrative Courts Law), together with art. 22 of the Addendum to that law, the Tribunal’s exercise of its review power it subject to the provisions of that law. The Administrative Courts Law establishes, inter alia, that the court is an independent body that, in matters of judging, is subject to no authority other than the law (sec. 3). That law also establishes provisions in regard to procedures and rules of evidence (secs. 20-21). The law further establishes that hearings before the court will be public, that the parties are entitled to legal representation, and that they may submit evidence and ask that the court subpoena witnesses and order the disclosure of documents (secs. 25, 27, 28).

111.     The main hurdle that sec. 32T of the Law must clear is the third proportionality test – proportionality stricto sensu. I am of the opinion that the current version passes this test. As noted, the enforcement mechanism established under sec. 32T of the Law grants effective means for the administration of the residency center, without which its rules of conduct would be a sham (see and compare: the Eitan case, para. 180). As opposed to the benefit of the arrangement, it undeniably infringes the rights of the residents. However, in view of the procedural guarantees established in the current Law, we are concerned with a lesser infringement than in the previous law. After weighing the benefit deriving from the arrangement against the infringement of the rights of the residents, I am of the opinion that the infringement under the current version of the Law maintains a proper balance with the benefit. Although the Director’s authority to order a transfer to detention remains, it has, in practice, been made conditional upon a decision composed of two elements: the Director, who is part of the executive authority, and the Tribunal that is of a judicial character (the Federman case, para. 12; Klinghoffer, p. 287). In this manner, “the deprival of personal liberty, which is a direct result of the issuing of the detention order, [loses] its pure administrative character and to some degree, the great principle of the rule of law that a person shall not be derived of his personal liberty unless a judge has so ruled is satisfied” (ibid., p. 286). In addition, the review process is accompanied by other procedural guarantees that, as noted, apply to the operation of the Tribunal by virtue of the Administrative Courts Law. These procedural guarantees bring the disciplinary regime under review as close as possible to a regular judicial process without detracting from its purpose (also see: Dalia Dorner, Constitutional Aspects of Disciplinary Procedures, 16 IDF Law Review 463, 468 (2002-2003) (Hebrew) (hereinafter: Dorner); Assaf Porat, On the Right to Legal Representation in Military Disciplinary Proceedings, 17 Mishpat V’asakim 469 (2014) (Hebrew)).

112.     The Petitioners are indeed correct in arguing that the detention periods established by the Law – among them periods of 85, 90 and even 120 days – are long. For the sake of comparison, under military disciplinary rules, a junior disciplinary officer is authorized to sentence a soldier to up to seven days imprisonment, and a senior disciplinary office is authorized to impose up to thirty-five days imprisonment (secs. 152(5) and 153(a)(6) of the Military Justice Law, 5716-1955). In the case of multiple offenses, it is possible to impose imprisonment for no more that seventy consecutive days (sec. 162A of the Military Justice Law; Dorner, p. 464; and see: Emanuel Gross, The Constitutional Dimensions of Arrest Law in the Army, 5 Mispat Umimshal 437, 449-453 (2000) (Hebrew)). However, although the detention periods in the current Law are, in my opinion, at the border of legality, they do not justify our intervention in the discretion of the legislature. We should bear in mind that we are concerned with maximum periods that need not necessarily be fully “exploited”. The Director must exercise his discretion in an individual manner in regard to each infiltrator and each disciplinary violation. He is not empowered to put infiltrators in detention for the maximum periods automatically. Moreover, the maximum period of 120 days applies only to one disciplinary violation concerning absence from the residency center for over ninety days. The other periods are dependent upon the severity of the conduct, and there is a clear punishment scale in regard to repeated violations. In addition, in view of the severity of placing a person in detention, it is clear that the violations that permit the adoption of this measure must be narrowly construed. The state recognizes this, as well (see: paras. 244-245 of the State’s response). Moreover, the Law provides another “scale” in regard to the enforcement means that should be adopted. The scale begins with other means of enforcement established under sec. 32S of the Law (warning, reprimand, denial of pocket money, etc.), and concludes with transfer to detention. As a result, the Director and the Tribunal are expected to consider imposing the lesser sanctions before arriving at a decision to transfer a resident to detention. This interpretive conclusion is also required in view of the purpose of the enforcement powers in the current Law. This purpose seeks to balance the need for maintaining the rules for staying in the center with the desire to protect the basic rights of its residents. Lastly, it should be noted that both the finding that a violation has occurred and the decision in regard to the appropriate sanction under the circumstances are subject to the judicial review of the Tribunal. Therefore, although the maximum periods for detention are long, I believe that sec. 32T does not infringe the rights of the infiltrators to a greater extent than required.

113.     There are, therefore, a number of individual arrangements that now meet the tests of the Limitation Clause. Thus, I find no grounds for annulling them. However, we cannot ignore the fact that a central defect remains in regard to the length of the stay in the residency center. Although the lives of the residents of the center have improved, and they have been given broader freedom of action, the provision permitting compelled residency in the center for a very long period continues to stand out. While the infiltrator would appear to enjoy a greater degree of freedom of movement during this period, he is still required to move his habitual residence to the residency center. For a significant part of the day, he is not his own master. He must spend his nights and part of his days with others, in violation of his constitutional rights. In the course of the hearing, the attorney for the Petitioners described the intensity of the violation and the sense of degradation a person incurs when forced to reside in a residency center against his will. I accept the accuracy of these observations in regard to the law that was annulled in the Eitan case, and they remain correct today in regard to the Law under review. I will not deny that the current arrangement benefits the public interest to a certain degree. Placing the infiltrators in a residency center may limit the negative phenomena associated with broad-scale unregulated immigration and ease the burden upon the residents of the major cities (see the Eitan case, paras. 131, 160 and 186). However, we cannot condone restricting the liberty of the infiltrators staying in the residency center for such a long period, even if it is based upon a proper purpose.

 

Conclusion

114.     This petition is the third in a series of petitions in which this Court has addressed the constitutionality of liberty-limiting means adopted against infiltrators. As opposed to the previous judgments, I am not of the opinion that the issues involved in the Law before us should be left for examination in due course, even if deciding them is not entirely necessary in the present matter. In general – and subject to the interpretation presented in my opinion – I am of the opinion that the current Law passes the tests for constitutionality, with the exception of the maximum period for holding a person in the residency center. I will, therefore, recommend to my colleagues that we find that this upper limit is disproportionate and must be voided.

115.     In the previous judgments we established a three-month transition period in the framework of the constitutional relief granted. Experience has shown that that period is insufficient. The legislative process was hasty, and the legislature was unable to conduct an in-depth examination before adopting the new Law. I would therefore propose to my colleagues that we now permit the legislature a longer period – of six months – before the annulment of the maximum period for holding a person in the residency center comes into force. During that period – or until the enactment of a new maximum period for staying in the residency center, whichever is sooner – secs. 32D(a) and 32U of the Law, which establish the authority for ordering that an infiltrator remain in the residency center, will remain in force. However, they will be understood as permitting the Director to order an infiltrator to the residency center for a period not to exceed twelve months. To remove all doubt, the Director is still required to exercise his authority in an individual manner, and decide whether it is proper to issue a residency order to an infiltrator, and if so, for what period. Those currently staying in the residency center upon the issuance of this judgment will be released at the end of twelve months in the center or at the end of the period set for them by the Director, according to the shorter of the two periods. Residents of the residency center who are currently residing in the center for twelve months or more on the day of this judgment – among them Petitioners 1 and 2 – will be released immediately, and no later than fifteen days from the date of this judgment. We would emphasize that in the absence of new legislation at the end of the six-month period, the authority to issue a residency order to infiltrators will lapse.

116.     The petition is therefore partially granted in regard to the maximum period for holding a person in the residency center, in the sense that secs. 32D(a) and 32U of the Law are annulled. As for sec. 32A of the Law and the other individual arrangements established under Chapter D of the Law, subject to the interpretation of the Law that I explained above, the petition is denied. The Respondents will bear the costs of the Petitioners in the amount of NIS 30,000.

 

Justice U. Vogelman:

This Court twice nullified amendments to the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law or the Prevention of Infiltration Law). Now before the Court are additional amendments to the Law made under Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014. In her comprehensive opinion, my colleague President M. Naor presented an instructive constitutional examination in which – as this Court is required – she examined for a third time the detention arrangement for infiltrators who arrived in Israel through unregulated immigration, and again addressed the normative provisions establishing the residency center for infiltrators (hereinafter: the center or the facility) – the Holot center. To begin with the end: it is possible that this amendment is not a benefitting statute. In our case law, we have taken note of many other legislative possibilities. But, as usual, the question is not what the ideal legislative arrangement is. The question is whether the arrangement adopted meets the constitutional tests. As I will explain, my opinion, like that of the President, is that sec. 30A of the Law is constitutional, and that the provisions establishing the twenty-month maximum length for residing in the residency center should be nullified. In addition, I have found that the arrangement permitting the transfer of an infiltrator from the residency center to detention should be declared void, as I will explain.

 

Preface to the Constitutional Examination – The Factual Basis for the Decision

1.         Like other countries, Israel is also required to contend with the global refugee and migrant crises that is the worst since the Second World War (U.N. High Commissioner for refugees, Global Trends: Forced Displacement in 2014 (2015) (http://www.unhcr.org/556725e69.html)). Israel is the only western country accessible by land from Africa (see the opinion of Justice I. Amit in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government, para. 15 (Sept. 22, 2014) (hereinafter: the Eitan case). The fence erected on the Israeli-Egyptian border does not absolutely stop unregulated immigration (as the continuing trickle of infiltration into Israel testifies). Before that, tens of thousands infiltrators crossed our borders, and the burden that presents is significant and sadly, would appear to be borne primarily by the weaker more vulnerable segments of the state’s population. In an attempt to contend with this phenomenon, the Knesset made changes to various provisions in the Prevention of Infiltration Law. First it established that an infiltrator entering the borders of Israel, and against whom a deportation order was issued, could be held in detention for a period of up to three months. In the Adam case (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case) a unanimous Court of nine justices held that the maximum period of detention (established in sec. 30A of the Law at that time) was unconstitutional. A majority of eight justices – against the dissent of Justice N. Hendel who was of the opinion that only sec. 30A(c) should be annulled – ordered the nullification of sec. 30A of the Prevention of Infiltration Law. Following that decision, the Law was amended again (hereinafter: Amendment 4) – as a temporary order for three years – establishing that an infiltrator against whom a deportation order was issued could be held in detention for one year (sec. 30A of the law). Along with that, the Law established a “residency center” for infiltrators. Chapter D, which was added to the Law, established that infiltrators could be ordered to the residency center for an unlimited time (and at the very least, for the three-year term of the temporary order). In the Eitan case, the Court majority found that sec. 30A and Chapter D of the Law were unconstitutional and must be annulled. In the two previous cases, I noted that the background of the constitutional analysis must present a picture of the situation that can serve as a foundation for the examination and sharpen the legal questions that must be decided (the Adam case, para. 1; the Eitan case, para. 37). The time that has passed since our last judgment requires that we now do so again.

2.         First, the makeup of the infiltrator population in Israel (on the problematic nature of the term “infiltrator”, see the Adam case, para. 10 of my opinion; the Eitan case, para. 5). The data regarding the identities of the infiltrators were addressed at length in the previous decisions, and in the absence of any significant change in this regard since the decision in the Eitan case, there is no need to address this in detail. It is sufficient to state that the countries of origin of 92% of the infiltrators currently in Israel are Eritrea and the Republic of Sudan (hereinafter: Sudan). The situation in both countries is not easy, to put it mildly. According to the up-to-date reports that I cited in the Eitan case, the Eritrean government systematically violates human rights on a broad scale (see ibid., para. 31). In Sudan, a country with a history of military coups and internal struggles, most of the residents suffer from significant poverty (ibid.). The nationals of those two countries are not directly repatriated to their countries of origin. Eritrean nationals are not currently removed in accordance with a temporary non-removal policy and in accordance with the principle of non-refoulement. Sudanese nationals are not repatriated due to the absence of diplomatic relations with Sudan (the Eitan case, para. 32). I will not repeat what I stated in regard to the reasons that brought these infiltrators to our country, but I will merely note that among them – in my view – are some who sought to improve their economic situation, but there are also those who sought to flee dangers that threatened them in their country. The state is not making haste to decide upon the applications for asylum that have been submitted (see the data in this regard in the Eitan case, para. 35), and it is therefore difficult to reach clear conclusions in this regard.

3.         The matter is different in regard to the number of infiltrators in Israel, which has seen many changes over the last years. In her opinion, the President addressed the current data (para. 3 of her opinion). It was noted that – based upon a publication by the Population and Immigration Authority – there were 47,711 infiltrators in Israel as of March 31, 2015, as opposed to some 50,000 staying in Israel as of the date of our judgment in the Eitan case (at the end of September 2014). From the data provided by the President, read together with the data presented in the Eitan case, it is clear that the decreasing trend in the number of infiltrators in Israel, which began in 2012, is continuing. This is also clear from comparing the number leaving Israel against the number entering. As noted in the President’s opinion, since the beginning of 2014 and until the end of the second quarter of 2015, a total of 104 infiltrators have entered Israel. As opposed to this, 6,414 infiltrators left the country in 2014, and 1,382 left in the second quarter of this year alone (see: Population and Immigration Authority, Policy Planning Department, Data on Foreigners in Israel (July 2015) (hereinafter: July Data of the Population and Immigration Authority)).

            This, therefore, is the basis for the discussion, and against this background we will embark upon the constitutional examination. Inasmuch as the subject has been addressed twice by this Court, and in view of the President’s broad discussion, I see no need to start the examination from the beginning, and in my following remarks I will seek to emphasize and elucidate several points.

 

Section 30A of the Law

4.         Section 30A establishes the law in regard to an infiltrator to whom a deportation order has been issued. The section makes it possible to hold an infiltrator in detention for a maximum period of three months, as opposed to the three-year period that was the situation when the Adam case was adjudicated, and the one-year period we addressed in the Eitan case. Along with this, several changes were made in the section that are not at the core of the matter. There would seem to be no disagreement that this section infringes the constitutional rights of liberty and dignity to which the infiltrators – and all persons – are entitled (see the President’s opinion, para. 32; the Eitan case, paras. 46-47; the Adam case, paras. 71-72). In view of this infringement, we must address the criteria established under the Limitation Clause, and first examine whether the section is intended to serve a proper purpose.

 

“For a Proper Purpose”

5.         In its response (p.35), the State argued that the primary purpose of the section is to exhaust the process of identifying the infiltrator and providing the necessary time for arranging avenues for voluntary emigration or deportation. The Knesset added that the legal arrangement has an additional purpose, as arises from the explanatory notes, of reducing the incentives for potential infiltrators to come to Israel (p. 20 of the Knesset’s response; and see the explanatory notes to the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Bill, 5775-2014, Government Bills 904, p. 424). My colleague the President found that the dominant of the two purposes of sec. 30A of the Law is that argued by the State. I agree for the same reasons as those presented by the President (without, at this stage of the discussion, addressing the purpose argued by the Knesset, which is actually “deterrence”, to put it euphemistically (see the Eitan case, para. 52)). As I pointed out in the Eitan case, the purpose of identification and exhausting avenues of departure and deportation is a proper purpose (ibid., para. 51). The state has the right to remove a person who entered its territory in an unregulated manner, subject to domestic Israeli law and international law, to which Israel is obligated. However, I emphasized there that the state is permitted to hold a person in detention for that purpose – identification and removal – alone: “Holding a person against whom a deportation order has been issued in detention is legitimate when it is intended to ensure the process of his removal from the country. It is permitted as long as its purpose is deportation, but forbidden when there is no effective removal process, or when the possibility of deportation from the country is not on the visible horizon” (ibid.,).

6.         Unfortunately, despite the findings in the Adam and Eitan cases, the legislature did not include a direct connection between detention and the removal process in the amended version of sec. 30A (on the need for this connection, also see the Adam case, para. 5 of my opinion). There can be no denying that had the legislature adopted a legislative arrangement that included such a connection, along with a periodic review of the situation of the detainee focused upon this question, and appropriate grounds for release when there is no expectation of removal (and see the Eitan case, para. 19) our task would be easier, and the arrangement would pass constitutional review in this regard without difficulty.  I would think that after this had been stated twice by expanded panels of this Court, it would even have been appropriate to do so (see and compare: para. 48 of the opinion of the President). However, I agree that what the legislature left undone, we can add by way of judicial interpretation that will realize the language of the Law and its purpose. In this sense, I concur with the view of my colleague the President that we need not declare the section void, inasmuch as I am also of the opinion that in this matter it is possible to interpret the Law’s provisions in a manner that is consistent with constitutional criteria.

7.         In her opinion, my colleague the President explained in detail why this night is different from other nights, and why we can now refrain from declaring the nullification of sec. 30A of the Law. In brief, the President pointed out the similarity between this arrangement and the arrangement established under the Entry into Israel Law, which our case law has interpreted as requiring an expectation of deportation from Israel (ibid., paras. 39-40), and how this conclusion is consistent with international law (ibid., paras. 44-45). The President further emphasized that the State – for the first time in these proceedings -- agrees with this interpretation (para. 46 of her opinion; see and compare the Eitan case, para. 200). I would like to add to what the President explained that, in my opinion, the period of detention established under sec. 30A of the Law – three months – also supports this view. The maximum period of detention established by the legislature is not long. As noted, it is a period that is only one month longer than that established under the Entry into Israel Law (compare to sec. 13(f) of the Entry into Israel Law, 5712-1952 (hereinafter: the Entry into Israel Law)). This short extension of the period permitted under the Entry into Israel Law derives from the fact that infiltration into Israel is characterized by an absence of any orderly documentation and does not go through a border control point, which makes identification more difficult (see the Eitan case, para. 54). While we are concerned with a longer period of time than that permitted under the Entry into Israel Law, it is a relatively short period that can itself motivate the authorities to take effective steps to identify the infiltrator and examine the possibility of his deportation in accordance with provisions of the law, inasmuch as at the end of this period it is more difficult to ensure that the infiltrator will not “disappear” (see and compare: the Eitan case, para. 54). Thus, while in the Eitan case it was possible to question whether the one-year period of detention was a possible normative expression of the claimed purpose – identification and exhaustion of avenues for deportation (this, even though no one denies the relative complexity of the identification process in the case of unregulated immigration) – in the matter before us it appropriate to take the opposite view. Just as under the previous version of the Law it was difficult to conclude that the purpose was identification and exhaustion of avenues for deportation, shortening the period of detention to three months can serve to demonstrate – even without express language to this effect – the inherent connection between the period of detention and an effective removal process. In this sense, the “quantity” – the maximum detention period – “speaks”, and affects the interpretation of the “quality” (a connection to the existence of an effective removal process).

8.         This change in the quantitative aspect also permits a validating interpretive approach in another sense. In the Eitan case, a careful, respectful approach required resolving the constitutional problem that arose specifically in regard to nullifying the section (as we were confronted head on with a legislative provision that established a one-year period of detention, which is itself disproportionate. Had we sought to establish an alternative period, we would have found ourselves involved in judicial lawmaking (also see: ibid., para 201)), whereas the detention period at present does not raise constitutional problems, as I shall explain. We are therefore left only with the need to ensure that the detainment of the infiltrator – like any case of detention – will not be arbitrary, but rather intended to serve the purpose grounding it. In the matter before us, that purpose is, as noted, ensuring an effective deportation process. While this purpose is not directly expressed by the language of the Law, this time the Law’s provisions can be reconciled with the need to realize it by a judicial interpretative approach that is consistent with the State’s position (although it would be possible to arrive at this interpretation even if the State did not agree with it), and refrain from declaring them void. The provisions of sec. 30A will, therefore, be understood such that an infiltrator who has been identified and who cannot be deported will be released immediately (subject to the grounds stated in sec. 30A(d) of the Law). Given the aforesaid, I conclude that sec. 30A of the Law meets the test of a proper purpose.

Proportionality

9.         In this case, no dispute arose between the parties as to whether the Law’s infringement of rights was intended for a purpose befitting the values of the State of Israel as a Jewish and democratic state (neither in regard to this section, not in regard to Chapter D, which will be addressed below). That being the case, we will now proceed with an examination of proportionality. I will state at the outset that in my opinion, this section also meets the requirements of the three subtests for proportionality. We begin with the question whether the section maintains a rational connection with the Law’s purpose. Our basic assumption for the purpose of this examination is that – in view of the interpretive approach set forth above – we are now concerned with legislation that permits detaining only those regarding whom there is an ongoing identification and deportation process. In the Eitan case I noted that while no one disputes that holding an infiltrator in detention makes it easier to conduct an orderly, controlled identification process and remove the fear that he may flee and thus frustrate the process of identification and removal from the country, it is not clear that there is an effective avenue for removal in regard to most of the infiltrators held in detention under sec. 30A of the Law (ibid., paras. 54-55 and 62). That is so, given the fact that most of the infiltrators are, as noted, from Eritrea and Sudan, to which there is no present possibility of removal. Although as noted above, there has been no change in the identity of the infiltrators, the State now contends that it can deport the infiltrators to “safe third countries” rather than to their countries of origin (and according to its submission, some 1,093 infiltrators have been so removed from Israel). An examination of the arrangements that the state has arrived at with those other countries is beyond the present procedural scope, and I will not make any definitive findings in this regard (as well as in regard to the additional question raised by the State in this regard concerning what might be deemed a lack of cooperation). However, this is sufficient for the purpose of meeting the first subtest.

10.       This brings us to the second proportionality test – the less harmful means test – which was already addressed in the previous cases. In the Eitan case, I noted that even if there are alternatives to detention that other countries have seen fit to adopt, their actual effectiveness is not comparable to that of custodial detention. The legislature enjoys a broad margin of appreciation in this regard, and in the absence of an alternative that can achieve the Law’s purpose to the same or a similar degree of effectiveness, the conclusion is that sec. 30A also meets this test (also see: the Eitan case, paras. 60-66)). The current detention arrangement also meets the third proportionality test – proportionality stricto sensu – as opposed to what was held in regard to this section in its previous version in the Adam and Eitan cases. As may be recalled, those cases addressed a maximum detention period of three years and of one year respectively. As I noted in the Eitan case, the period of time during which liberty is denied affects the intensity of the infringement of the right. The longer the denial of liberty, the greater its infringement (ibid., para. 153). The mirror image of that is that reducing the period of detention lessens the infringement of the right. Indeed, detention for three months is no trivial matter. However, setting the ceiling for detention at three months (instead of a year) significantly reduces the infringement of the right to liberty and the right to dignity. As for the scope of the infringement of the right, weight should be given to the State’s position that the grounds for release of an infiltrator for “other special humanitarian reasons” (sec. 30A(b)(2) of the Law) should be interpreted broadly as a dynamic valve-concept that will allow those responsible for implementing this general ground “to show the necessary sensitivity for limiting the infringement of the right to liberty” (and I would add, in regard to other rights, as may be the case) (see p. 43 of the State’s response). In striking the balance between the infringement of a right and the benefit, I no longer find it necessary to state that it is constitutionally prohibited to hold a person who has immigrated to the country in an unregulated manner for this period of time for the purpose of identification and removal.  This is accepted throughout the world (see: the Eitan case, paras. 73-77), and this may also be done under our domestic constitutional law and the basic principles upon which it is founded.

            In summary, there are no grounds for declaring sec. 30A of the Law void given the agreed interpretation that we have pronounced here. I will now proceed to Chapter D of the Law.

 

Chapter D of the Law

11.       In the framework of this petition, the Petitioners also challenged the provisions of Chapter D of the Law, which permits establishing a “residency center” for infiltrators. In the Eitan case we concluded that the arrangement established under Chapter D of the Law disproportionately infringed the right to liberty and the right to dignity and was, therefore, void (ibid., para. 98). Changes have since been made in this chapter. The President addressed these changes (paras. 53-54 of her opinion), which are primarily as follows: the length of the stay in the center has been limited to a maximum of 20 months; the obligation to register has been set at once a day; the authority of the Director of Border Control to order the transfer of a resident from the residency center to detention has been limited; a resident may be released from the center on a number of grounds; and special groups, such as women and children, will not be sent to the residency center. Despite these changes, Chapter D of the Law continues to infringe protected constitutional rights. I will now address this.

 

The Infringement of Constitutional Rights

12.       I addressed the issue of the infringement of rights in Chapter D at length in the Eitan case (ibid., paras. 117-127). The State recognizes the fact that Chapter D can indeed limit and infringe the right to liberty, but it reiterates its previous argument that infringing a right is not the same as denying it. The State is further of the opinion that the infringement of the right to liberty “is only at night (between 10 PM and 6 AM)” (p. 31 of its response), when the facility is closed and entry and exit are prohibited. I cannot accept this argument. First, although precisely defining the scope of the infringement of the right is of importance at the later stages of the constitutional examination, every infringement – whether minor or severe – is sufficient to require an examination under the Limitation Clause. At this point, the question of whether we are concerned with a “limitation” of the right or its “denial” is of no consequence, as “every limitation, regardless of its scope, is unconstitutional unless it is proportional” (Aharon Barak, Proportionality – Constitutional Rights and their Limitations, 136 (2010) (Hebrew); see: the Eitan case, para. 117; also see above, para. 59 of the opinion of the President).

13.       Second, and most importantly, I am not of the opinion that the infringement of the right to liberty is “only at night”. A person’s liberty is not infringed by walls alone. Section 5 of Basic Law: Human Dignity and Liberty states: “There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise”. How shall we interpret “or otherwise”? Does it apply only to a physical restriction upon liberty, or might it also extend to the individual’s right to autonomy (also see: the Eitan case, para. 171)? The State proposes the most limited interpretation: in any other manner that restricts a person’s physical liberty. In my opinion, that is not an appropriate interpretation. “Personal liberty is not confined to a person’s physical liberty” (Aharon Barak, Human Dignity – The Constitutional Right and the Constitutional Right, vol. I, 344 (2014) (Hebrew) (hereinafter: Barak, Human Dignity)). Of course, not every infringement of free will and of the autonomy of will constitutes an infringement of the right to liberty (see: ibid.). But in my view, an extreme denial of an individual’s choices constitutes an infringement of the right to liberty. An infiltrator residing – under coercion, let us not forget – in a residency center is not a free person even during those hours of the day when he is not enclosed within its walls. We must bear in mind that even though the requirement of reporting three times a day was rescinded in the new Law, and even though the center is sealed off only at night, it is questionable whether many of the residents have an effective possibility of leaving or travelling far from the facility. This is so in view of the “pocket money” given to the residents, which stands at NIS 14 per day (reg. 2 of the Prevention of Infiltration (Offences and Jurisdiction) (Provision of Pocket Money and Other Benefit and the Conditions for their Denial) (Temporary Order) Regulations, 5775-2014 (the regulations were not challenged in the petition); the prohibition upon persons staying in the residency center to work in Israel (sec. 32F of the Law); and the geographic location of the Holot facility. Under these circumstances, I am not convinced that a resident is able to routinely stray from the facility and provide for himself over the course of the day. This normative situation greatly limits the personal autonomy enjoyed by the infiltrators – who are subject to conduct and disciplinary rules that accompany them when they exit the gates of the residency center – and this restriction also affects their right to liberty. In this regard, the words of Justice E. Goldberg are apt:

As Thomas Hobbes said: “A free man is he that… is not hindered to do what he has a will to” (Hobbes, Leviathan, ch. 21). The scholar Isaiah Berlin discussed the positive meaning of this concept in his essay Two Concepts of Liberty:

“The ‘positive’ sense of the word ‘liberty’ derives from the wish on the part of the individual to be his own master. I wish my life and decisions to depend on myself, not on external forces of whatever kind. I wish to be the instrument of my own, not of other men’s, acts of will. I wish to be a subject, not an object; to be moved by reasons, by conscious purposes, which are my own, not by causes which affect me, as it were, from outside” (I. Berlin, Two Concepts of Liberty, 1958).

Indeed, there is a strong connection between the right of liberty, and its derivative the autonomy of the will, and human dignity (FH 2401/95 Nahmani v. Nahmani, IsrSC 50(4) 661, 723 (1996) [http://versa.cardozo.yu.edu/opinions/nahmani-v-nahmani-0]).

            Our case law has also recognized an infringement of the right to liberty in other contexts that are not restricted only to “sealed gates” (see and compare: HCJ 4542/02 Kav LaOved v. Government of Israel, IsrSC 61(1) 346, 378 (2006) [http://versa.cardozo.yu.edu/opinions/kav-laoved-worker%E2%80%99s-hotline... (“The restrictive employment arrangement violates the basic rights of the foreign workers. It violates the inherent right to liberty” (Justice E. E. Levy); “The arrangement has violated the autonomy of the workers as human beings, and it has de facto taken away their liberty” (Deputy President M. Cheshin, ibid., p. 403); LCA 10520/03 Ben Gvir v. Dankner (Nov. 12, 2006) (“The right to a good name also derives from a person’s right to liberty, which is not exhausted in the protection of his body, but also of his spirit” (para. 12 of the opinion of Justice A. Procaccia); HCJ 2123/08 A. v. B., IsrSC 62(4) 678, 696 (2008) (“The phenomenon of get refusal […] involves severe, painful harm to a woman who is left chained to a marriage in which she is no longer interested: her liberty is infringed, her dignity and emotions are infringed […]”) (Justice E. Arbel); HCJ 3368/10 Ministry of Palestinian Prisoners v. Minister of Defence, para. 52 (April 6, 2014) [http://versa.cardozo.yu.edu/opinions/ministry-palestinian-prisoners-v-mi... (“The denial of liberty is not expressed only in a person merely being subject to the custody of the State, but also is felt each and every day, during the period when a person is subject to the rules of conduct and discipline that are customary in the place of custody and which also limit his liberty” (Justice E. Arbel); HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, IsrSC 63(2) 545, 603-604 (2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-... (“But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison […] and complies with the rules of conduct in the prison, which also restrict his personal liberty” (President D. Beinisch). See additional references in Barak, Human Dignity, 343-344, and compare to his approach according to which “the proper interpretation of the term ‘otherwise’ is in any other way that physically limits a person’s liberty, or any other liberty of similar force” (ibid., p. 345).

14.       If we find that the right to liberty of the center’s residents is infringed even when they are not required to be there, in view of the requirement that they reside in the center to which they have moved their habitual residence, it is self-evident that staying in the residency center also infringes the right to dignity – their ability to choose how to conduct themselves and narrate their life story. I discussed this at length in the Eitan case (ibid., paras. 120-127).

15.       What is the extent of the infringement of rights under Chapter D in its current formulation? Indeed, increasing the openness of the residency center (by means of registering once a day); granting the Director authority to exempt an infiltrator from registering for four days (instead of the prior two days); establishing a twenty-month maximum period of residence; excepting special populations; and certain changes in the Director’s authority to order the transfer of a resident to detention have all somewhat reduced the infringement of rights. However, the Holot facility still remains isolated in the desert. We are still concerned with a facility in which a person torn from his life is forced to stay for a long period. His privacy is infringed – surrounded by jailers. The infringement of rights thus remains.

 

For a Proper Purpose

16.       Having found an infringement of rights, we are obligated to examine whether the legislation meets the tests of the Limitation Clause. In her opinion, the President noted that the main purpose of Chapter D of the Law is “to stop the permanent settling of the infiltrator population in the urban centers, and prevent them from working in Israel”, while providing an appropriate response to their needs (ibid., para. 61). The President further took note of the Petitioners’ argument, also voiced in the Eitan case, that this chapter of the Law has a hidden purpose that is its true purpose: “breaking the spirit” of the infiltrators so that they will leave Israel. I addressed all of these purposes in the Eitan case (for a discussion of the purpose of preventing settling, see ibid., para. 103; on the purpose of responding to the needs of the infiltrators, see ibid., paras 104-106; on the claimed purpose of “encouraging voluntary emigration”, see ibid., paras. 107-113). I will, therefore, only briefly address these matters.

 

Preventing Settling

17.       We will begin with the purpose concerning the prevention of settling (or “stopping settling”) that I left to be addressed in due course in the Eitan case (ibid., para. 103). I explained there that in any case, in my opinion, the provisions of Amendment 4 – the amendment under review in that case, and which introduced Chapter D – did not pass the constitutional tests, and therefore there was no need to address the question whether the purpose was proper (also see my position in the Adam case, para. 19 of my opinion). However, I was willing to assume, for the sake of argument, that it was a proper purpose. The President has now proposed that we expressly find that this purpose is proper (para. 66 of her opinion). I will therefore address this question.

18.       “Preventing settling” – of whom? In the Eitan case, I addressed the problematic nature of separating one population from another (see: ibid,. para. 103 of my opinion). The reason for this is clear: the infiltrator population – as a matter of fact – has been with us for some time. Despite the fog surrounding the matter form a normative perspective (see: AAA 8908/11 Asafu v. Ministry of the Interior, the opinion of my colleague Justice E. Hayut (July 7, 2012); the Eitan case, para. 104) – which is no cause for celebration – there is no dispute that those infiltrators who are not in the Holot facility (which is the majority of the infiltrator population; see para. 55 of the President’s opinion) are living substantial lives in Israel’s cities. The State does not wish to reconcile with this situation. It is permitted to do so. In this regard, the State informed us that it has established and continues to work on establishing arrangements that will, in its view, facilitate the departure of infiltrators from Israel. These arrangements are not under review in the context of this petition, but in any case it is clear – and no contrary argument was made – that there is no concrete expectation for the mass removal of tens of thousands in the near future. That being the case, and inasmuch as we cannot order these people to return to their countries of origin, is it proper for us to seek to “prevent them from settling”?

19.       At the end of the day, I have reached the conclusion that, in one sense, it can be assumed that while the matter is not problem free, we are concerned with a proper purpose. In this regard, I am referring to the interpretation of this purpose as “alleviating the burden” on the cities in which most of the infiltrators are concentrated – particularly south Tel Aviv. We need not waste words on the fact that the number of infiltrators who cannot be removed is large. In the years 2009-2011, thousands and more infiltrators entered Israel each year (see: the Eitan case, para. 38). Most of the infiltrators are concentrated in one geographical area. This concentration imposes a very heavy burden on the local population. The situation of infiltrators settling in the southern part of the city has changed the area’s character, increased crowding, and contributed to the problems of daily life of the local residents. I addressed this at length in the Eitan case (ibid., para. 210). This burden – in terms of a small country with a small population, like Israel – is exceptional. Under the existing circumstances, we cannot deny that we are witnessing a “mass influx” of infiltrators. Given such a mass influx, I do not see reason to contradict the view that legislation seeking to prevent infiltrators from settling is, at present, intended for a proper purpose.  This, as noted, is subject to our understanding of “prevention of settling” as intending to achieve a temporary division of the burden (with emphasis on the fact that we are concerned with a “temporary order”). Together with this, we should bear in mind that thousands of infiltrators left Israel since 2014, with only a few entering. The number of infiltrators is thus going down, and as I have already noted, “different factual data may […] lead to a different legal result (the Eitan case, para. 37). It is possible that in the future – perhaps the near future – the pressing social need for a strict normative arrangement for the infiltration phenomenon will assume a different character (see and compare: the Eitan case, para. 69), and if the downward trend of infiltration to Israel continues, and to the extent that the temporary order may be extended, the question of whether we are concerned with a “proper purpose” may arise for reconsideration.

20.       In conclusion, at present I see no reason to reject the State’s position in regard to this purpose. Along with this, like my colleague the President, I am also of the opinion that there is no present need to address the purpose of preventing the infiltrators from earning a livelihood in Israel, in view of the parts of the Law upon which the Petitioners focused their challenge (para. 76 of the opinion of the President).

 

Preventing the Resurgence of the Infiltration Phenomenon

21.       Despite the title given to this purpose, we would make it clear that we are concerned with a deterrent purpose, with all the difficulties that were expressed in this regard in the Adam case and the Eitan case (ibid., para. 52 of my opinion), inasmuch as the State clearly informed us that this purpose means the reduction of the economic motivation of potential infiltrators – now in Africa – to immigrate to Israel (para. 52 of the State’s response). In the Adam and Eitan cases, I refrained from making any decisive statement in regard to the deterrent purpose (argued in regard to sec. 30A of the Law), inasmuch as in any case that section did not meet the proportionality tests (see: the Adam case, para. 19 of my opinion; the Eitan case, para. 52). I believe that we now must expressly decide the question whether this purpose meets the proper-purpose test. In my opinion, except in particularly exceptional cases – which are not present in the current circumstances – this purpose is improper. My colleague the President (para. 77 of her opinion) states that since we have already recognized that “having acknowledged that in principle the purpose of preventing settling in the urban areas is proper, nothing prevents its implementation having an attendant deterrent effect”. I agree with that. As I pointed out in the Eitan case, I, too, am of the opinion that “there is nothing wrong with the detention of an infiltrator, intended to advance the process of his deportation, having an attendant deterrent effect” (ibid., para. 52), and that is true not only in regard to custody, but also in regard to the residency center. But the State’s argument shows that it thinks that deterrence is not an attendant purpose appended to the other, proper, purpose but rather a separate and distinct purpose that it believes is also proper. It even refers to it as “the second purpose” (alongside “the first purpose” that concerns preventing the infiltrator population from striking roots, and “the third purpose”, which concerns providing an appropriate response to the needs of that population). I cannot agree to this separate existence. In my view, this purpose cannot stand on its own – and standing on its own, it is improper. Justice E. Arbel addressed this at length in the Adam case, and I see no need to revisit it (ibid., paras. 85-93; but compare the position of Justice I. Amit in the Eitan case, according to which changing the incentives in regard to potential infiltrators is a proper social purpose that derives from the principle of state sovereignty, paras. 9-10 of his opinion).

22.       Moreover, the State notes that changing the array of incentives for potential infiltrators is rooted in the integration of the provisions of sec. 30A (concerning detention) and the provisions of Chapter D (which addresses the establishing of a residency center). The relationship between the two is established by sec. 30A(k) of the Law, according to which an infiltrator will be ordered to the residency center upon release from custody. According to the State, these two change the array of incentives and encourage potential infiltrators to refrain from trying to reach Israel. I read and reread the State’s argument, and it is not clear – even were I willing to accept that we were concerned with a proper purpose (which is not the case) – why “changing the array of incentives for the potential infiltrator”, or deterring him from coming to Israel, would not be achieved by making the provisions of the Law, in regard to Chapter D as well, of prospective effect. To the extent that the State seeks to deter someone from arriving in Israel, it should in any case suffice that the said normative arrangement apply only to that potential infiltrator who is currently somewhere else and considering whether to make his way to Israel. That is not what was done in the legislation we are examining.

23.       As opposed to this, the Knesset’s view is that the purpose of reducing the economic incentive is also relevant in regard to existing infiltrators wishing to remain in Israel (p. 13 of the Knesset’s response). This framing of the matter raises questions in regard to the possibility of encouraging “voluntary emigration” by such means (see the Eitan case, paras. 107-113 of my opinion), and I will address this below. It remains to address two matters – the purpose of providing a response to the needs of infiltrators and the additionally claimed purpose of “encouraging voluntary emigration”. I will briefly state, as I already stated in the Eitan case, that the purpose of “providing a response to the needs of the infiltrators” is proper (ibid., para. 104 of my opinion). I indeed continue to doubt whether the residency center actually realizes this purpose in practice, but I do not believe that the constitutional framework is the appropriate one for addressing the dispute as to the manner of operation of the Holot center, on which the parties to these proceedings continue to disagree.

            I will now turn to the issue of the claimed purpose of “encouraging voluntary emigration”.

 

Encouraging Voluntary Emigration

24.       The starting point for examining this purpose is that a person cannot be compelled to go to a country that presents a danger to his life or liberty. But what of a person who does so of his own will? In the Eitan case I noted that leaving the country might be deemed prohibited deportation or “constructive removal” (and not leaving of “free will”) not only in situations in which the state officially orders a person’s deportation, but also when the state adopts particularly severe, harmful means intended to exert pressure that will lead to a person to leave the country “willingly”. The decision to leave the country – which is a choice that should not be influenced – must be free of unreasonable pressures (ibid., paras. 110-112). In the Eitan case I addressed the question whether the purpose of Chapter D of Amendment 4 was to deny such free will – a question which, in my view, was not easy to decide nor free of doubts. This is what I said then:

It would appear that no one would disagree that the residency center established by virtue of Chapter D of the Law presents a serious hardship for the lives of the infiltrators, and such hardship may certainly serve as an incentive for a person to leave the country. However, certain hardships are the lot of every person who chooses to immigrate to another country in an unorderly manner. It is not possible – and even, in some senses, undesirable – to eliminate them entirely. There is a fine line between legitimate incentives (such as financial incentives) to leave the country and applying significant, unfair pressure that, in practice, deprives the illegal aliens of their ability to choose not to leave the country. Does Chapter D cross that line in view of its the inherent, indeterminate denial of liberty, and other matters that will be addressed below? While I do not believe that the Petitioners’ arguments in this regard can be dismissed out of hand, I do not find it necessary to decide the matter inasmuch as I believe that in any case, Chapter D of the Law must be annulled because it does not meet the requirements of proportionality (ibid., para. 113).

25.       As opposed to this, in the present case the President expressed her view that the current Law is not intended to break the spirit of the infiltrators (paras. 80-81 of her opinion). In this regard, the President relied, inter alia, on the fact that the claim that here is a “hidden” purpose of this type was denied in the hearing before us by the State’s attorney as well as in the responses of the Knesset and the State to the petition (para. 79 of her opinion). She also noted that the residency center offers activities and employment (ibid., para. 80). I have considered this, but I do not believe that it is sufficient to remove the doubts that I expressed in the Eitan case. It should first be noted that in the course of the deliberations that preceded the enactment of Amendment 4, representatives of the governmental agencies expressed themselves in a manner that showed that the possibility of encouraging “voluntary emigration” loomed in the background of the legislation (see the Eitan case, para. 113). On the day our judgment in the Eitan case was handed down, the then Minister of the Interior announced that “the second amendment of the law has made a significant contribution to the process of voluntary emigration” (his announcement was appended to the petition and marked P/20). This matter was not forgotten in the deliberations on the Law that is the subject of these proceedings. Thus, for example, in a meeting of the Knesset Internal Affairs and Environment Committee on Oct. 6, 2014, the committee chair noted: “[…] by means of the law we have succeeded in voluntarily returning […] many infiltrators”, and the Minister of the Interior added: “I set a goal of removing infiltrators […] we had a tremendous upswing in the voluntary emigration of infiltrators […]” (Protocol of meeting 384 of the Internal Affairs and Environment Committee of the 19th Knesset, pp. 4 & 6 (Oct. 6, 2014)). On Nov. 11, 2013, the Director of the Enforcement and Aliens Department of the Population and Immigration Authority noted in a meeting of that committee that “Whomever it is decided to send to a residency center will be given a referral that very moment, the residency permit he now holds in his hand will be revoked and his employment will be massively enforced. The moment he enters the facility, we will continue all of the procedures for encouraging voluntary emigration” (Protocol of meeting 117 of the Internal Affairs and Environment Committee of the 19th Knesset, p. 14 (Nov. 11, 2013)). In a meeting of that committee on Dec. 8, 2014, Knesset member David Tzur noted: “Holot must not be closed. We have to create a situation that amplifies the incentive for infiltrators to leave here. That’s what I say” (Protocol of meeting 435 of the Internal Affairs and Environment Committee of the 19th Knesset, p. 6 (Dec. 8, 2014)).

26.       If that were not enough, despite the declaration by the State’s attorney in the hearing before this Court that “Certainly, most certainly” no actions were or would be taken to “break spirits”, and although my colleague the President emphasized in language that could not be clearer that “[…] no actions intended to bring about voluntarily leaving the country may be employed in the residency center, including actions intended to exert pressure upon the infiltrators in order to encourage or persuade them in any manner” (para. 83 of her opinion), the State did not reply to the concrete claims of the Petitioners in these proceedings – which were supported by affidavits – that they were indeed heavily pressured in the residency center to leave the country. Thus, for example, Petitioner 2 stated:

Every meeting with prison guards and clerks, and even with the clinic staff, is always accompanied by one question: “Why don’t you leave?” The fact that my asylum request has not been examined for over a year doesn’t interest anyone. All the people in Holot care about is that I leave, and the pressure in this regard is really unbearable (para. 23 of the affidavit of Petitioner 2, appended to the Petition and marked P/3).

The Petitioners further claimed that when the center’s residents meet with representatives of the Population and Immigration Authority to submit requests for “leave”, they are pressured to “depart voluntarily” (p. 55 of the petition). They argued on and on, and even presented additional examples, but no real answer was forthcoming from the Respondents.

27.       Lastly, the question of the identity of the people sent to the Holot facility and the criteria established by the administrative agency in this regard continues to accompany us since the Eitan case (see: ibid., paras. 90-91). I will also address this issue briefly further on. At this point I would only point out that the result of the implementation of these criteria is that 76% of the Holot residents are Sudanese and 24% are Eritrean. This is almost the reverse of their relative proportions. According to the July data of the Population and Immigration Authority, 19% of the infiltrators into Israel are Sudanese and 73% are Eritrean. According to the Petitioners – and I do not intend to rule on this argument in these proceedings – “in the Respondents estimation, there is a better chance of breaking the spirts of the Sudanese nationals and forcing them to “agree” to leave the country” (p. 48 of the petition). Indeed, certain aspects concerning the implementation of the Law are not, at least directly, of constitutional import. However, questions regarding the implementation of the Law may influence the decision of whether it meets the proportionality tests (HCJ 3809/08 Association for Civil Rights in Israel v. Israel Police, (para. 33 (May 28, 2012) [http://versa.cardozo.yu.edu/opinions/association-civil-rights-israel-v-i... (hereinafter: the Association for Civil Rights case)), and in my opinion, these aspects may even aid in the examination of the purpose of the Law in seeking to understand the difference – if there be one – between the declared purpose of the Law and its true purpose.

28.       On this occasion, as well, I do not wish to place exclamation points after these question marks and decide as to the existence or absence of this claimed purpose, and I do not take lightly the State’s declarations before us in this regard. Nevertheless, it would appear to me that even if we are unable to determine that the purpose of Chapter D of the Law is to “pressure” the infiltrators to agree to leave Israel, the above suffices for us to refrain from making a positive finding in the matter. In conclusion, we can, at present, suffice in finding that the main purpose of Chapter D of the Law is to prevent the infiltrator population from settling in the urban centers. In the present time and circumstances, we cannot say that this is not a proper purpose. We will, therefore, proceed to an examination of the proportionality of the Law’s provisions.

 

Proportionality

29.       The legislature introduced several changes into the arrangement currently before us, which were presented in detail by the President, but it remains fundamentally similar to its predecessor. Under these circumstances, I see no need for a comprehensive examination of the details of the various arrangements that I reviewed in at length in the Eitan case, so I will suffice with a summary. I will focus my examination on two specific arrangements that require special attention: the authority to issue a residence order to an infiltrator for a maximum period of twenty months, as prescribed by the legislature, and the arrangement permitting the detention of an infiltrator for various disciplinary offenses. As for the former I agree with the relief proposed by the President. As for the latter, I would propose that we declare it void and issue appropriate transitional instructions.

 

The Authority to Order Residency and the Length of Residency in the Center

30.       If the Director of Border Control finds any problem in regard to deporting an infiltrator to his country of origin, “he may order that the infiltrator stay in a residency center until his deportation from Israel or his removal therefrom, or until another date as shall be decided” for a period of twenty months in total (sec. 32D and 32U of the Law). Residency orders will not be issued to such defined populations as minors and women, as will be explained below. This is the core of Chapter D of the Law, in that – subject to criteria established by the administrative agency – it authorizes holding an infiltrator in a residency center, and establishes the maximum period of such a stay. As my colleague the President noted, examining the proportionality of this arrangement requires that we address its reciprocal relationship with other particular arrangements in the Law (para. 85 of her opinion), as I will now proceed to do.

 

The Rational Connection Test

31.       The rational connection test requires that the chosen means be suitable for realizing the Law’s purpose. I earlier noted several possible purposes, and I will focus my examination of proportionality upon the purpose of “preventing settling”, which is the most important of the purposes of Chapter D of the Law. Is there a rational connection between the authority granted to the Director and this purpose? Answering this question became more complex after a twenty-month limit was established for residency in the center. I noted in the Etan case that the absence of a limit upon the period of residency ensures the realization of the Law’s purpose in manner that meets the rational connection test (para. 158). I added there that any limitation of the residency period would mean that the infiltrator could return to the labor market after a certain period of time (inasmuch as the State undertook not to enforce the work prohibition in regard to those not being held in the residency center). Indeed, the very setting of a time limit for staying in the center creates a “revolving door” in and out of the center in a manner that does not make it possible to prevent setting down roots, but at most delays it until such time as the infiltrator returns to his place of residence and his work. Even were one to say that such settling is prevented, but only for a limited period (which is the State’s contention – se p. 67 of its response; and also see its statement that the Law is not “an exclusive means solely responsible for achieving the proper purpose of preventing 48,000 infiltrators from settling in Israel”, ibid.), we are concerned with a law that only partially achieves its purpose, inasmuch as an infiltrator – regarding whom there is no concrete expectation of removal – will return to the urban centers. We would add that, at present, the maximum occupancy of the Holot center is 3,360 residents (according to the State’s submission at p. 66 of its response), which is but a small part of the infiltrator population. Thus, only a minority of the infiltrator population is “prevented” (or delayed) from settling. However, it should be noted that the Law does not set a limit upon the size of the residency center, nor upon the number of residency centers that may be established. In practice, the State’s contention is that the Holot center serves as a sort of “pilot” (the Eitan case, para. 128).

32.       Ultimately, I believe that the rational connection in this case is not entirely clear. Despite my doubts, I would not say that there is no such connection. As the President noted, the chosen means need not fully realize the Law’s purpose (para. 90 of her opinion), and I am willing to assume that this arrangement meets the first proportionality test. In any case, this matter can be revisited in the future (see para. 91 of the President’s opinion).

 

The Less Harmful Means Test

33.       An infiltrator ordered to report to the residency center cannot “establish himself” in the urban centers. During the period of his required residency in the center, his life is primarily in the center. In this sense, the residency center realizes the Law’s primary purpose – preventing the infiltrators from settling – with relatively high effectiveness. Indeed, one might think of other means that might serve to achieve this purpose, like geographic dispersion or various grants that might serve as an incentive – a “carrot” rather than a “stick” – for living and working in various places other than the urban centers. However, presence in the residency center is compelled. It is not subject to the infiltrator’s free choice. A person who chooses not to report to the center is subject to the severe sanction of detention, which I will address in detail below. I therefore tend to the view that it is doubtful whether there is a less harmful means with the potential for achieving the Law’s purpose to a similar degree of effectiveness (the Eitan case, para. 159).

 

Proportionality Stricto Sensu

34.       Thus far, the arrangement has passed the proportionality tests. However, in my opinion, this arrangement fails the last and most important value-based test inasmuch as the provisions that permit holding a person in a residency center for a maximum period of twenty months do not maintain a direct relationship with the benefit they achieve. In assessing the balance between the benefit and harm of the infringement of constitutional rights, I will begin with an examination of the benefit. In the Eitan case I emphasized that “there is some truth to the opinion that Israeli society benefits from its members not being required as a matter of course to bear the burden of absorbing tens of thousands of infiltrators, and that the negative phenomena associated with mass, unregulated immigration – which cannot be ignored – are substantially reduced when they are placed in a residency center” (ibid., para. 160). But the benefit provided by this arrangement does not outweigh its infringement of rights. I explained this in detail in the Eitan case, and I see no need to repeat what I stated there. I will therefore focus upon the changes introduced into Chapter D of the Law and their consequences. I will first point out that under Amendment 4, Chapter D did not except special, particularly vulnerable groups from its compass. That is not the case in the present version of Chapter D, in which sec. 32D(2) prohibits issuing a residency order to minors, women, persons over the age of sixty, the parent of a dependent minor, “a person whom the Director of Border Control is convinced might be harmed by residing in the residency center due to his age or state of health, including his mental health, and there is no other way to prevent such harm”, and so forth. I pointed out in the Eitan case that “individual infiltrators not referred to the residency center due to their personal status, or who may later be released therefor, would not detract from achieving the purpose grounding the legislation, and would, at most, detract to an insignificant extent”, and that the absence of exceptions “forcefully emphasizes the lack of proportion (in the narrow sense) of the comprehensive prohibition” (ibid., para. 187). The amendment of the Law has resolved this problem to a great extent.

35.       Another change introduced by the legislature concerns the center’s registration requirement. Amendment 4 required that during the daylight hours – when the center is “open” and the residents may leave and enter freely – they must report three times. As I pointed out in the Eitan case, the need to report for registration at noon severely detracts from the practical possibility of leaving the facility for any uninterrupted activity (ibid., para 118), as “a person needs an appropriate window of time in order to fill his life with real content. Short, fixed periods are insufficient for that” (ibid., para 127). The Law now provides that the residency center will be closed at night (between 10:00 PM and 6:00 AM), and that a resident must report for registration once a day, between 8:00 PM and 10:00 PM (sec. 32H of the Law). This change somewhat blunts the intensity of the infringement of the right to liberty and the right to dignity. It allows the infiltrator greater freedom of action, inasmuch as he may leave the residency early in the morning and return in the evening. However, as I noted earlier, we should not overestimate the importance of this change in terms of lessening the infringement of the right. “May” is not necessarily “can”. The center of life of an infiltrator required to report to the residency center transfers to that center. He is not a free man, inasmuch as he conducts his daily life in the shadow of the demand to return to the center at night, and his ability to realize his autonomy is dictated by the Law’s provisions that forbid him to work, the small amount of “pocket money” that he receives, and the location of the Holot center. Clearly, while there have been changes, the arrangement continues to infringe his rights (see paras 12-15, above).

36.       The arrangement that I addressed in the Eitan case in regard to the administration of the residency center by the Prisons Service has barely been changed. The operation of the facility is entrusted to the Prisons Service under sec. 32C of the Law, which requires that when the Minister of Public Security proclaims the establishment of a residency center, he must appoint a senior warden as its director, and the Commissioner will appoint corrections officers who will work for the center (after appropriate training). I noted in the Eitan case that placing the operation of the residency center in the hands of the Prisons Service – which is also granted the broad powers required for operating the center – amplifies the infringement of the infiltrators’ rights (ibid., para, 138), as the entity operating and administering the open residency center is in daily contact with the residents of the center, has substantial control over the entire scope of their lives, and therefore has decisive influence over how the center is perceived by its residents – whether an open facility with a civilian character, or a prison or detention facility with a criminal character (ibid., para. 144). However, I stressed that “it is possible that another normative approach for arranging the facility’s operation would pass the constitutional test even if the entity entrusted with its operation were the Prisons Service” (ibid., para. 146). The arrangement has essentially remained unchanged, and corrections officers continue to operate the residency center.

37.       What is the upshot of all this? It would seem that although there has been some mitigation of the infringement of human rights that was found in the prior version of Chapter D following Amendment 4, in view of the provisions regulating the lives of the residents of the residency center – including those in regard to when one must report to the center and when one may leave, who operates it and the authority granted him – the infringement of rights remains, and it is severe. As I noted in the Eitan case, “a proportionate normative arrangement must maintain a proper relationship between the extent of the limitation of rights in the facility and the maximum length of the stay therein, such that the more severe the limitation of basic rights, the shorter the period of imposed residence in the facility” (ibid., para. 162). The reason for this is that Chapter D is built as an equation. “One arrangement (like the rigid registration requirement) may be balanced by another arrangement (like fixing the period of residency for a shorter period)” (the Eitan case, para. 100). The twenty-month period established in the Law is a very long time (in fact, there is no parallel to such a period of residency in a residency center anywhere in the world, see: the comprehensive survey in the President’s opinion, paras. 101-105; and see: the Eitan case, para. 163). The time dimension substantially affects the infringement of the dignity of the person deprived of liberty. Depriving liberty for a short period allows a person to return quickly to his normal life. That is not so in the case of a very long period (the Eitan case, para. 154). Because the infringement of rights of imposed residence in the facility and the maximum term of that residence are inextricably tied, and in view of the extent of infringement of rights inherent in Chapter D, I am of the opinion that the maximum period of residence established by the Law does not maintain that proper relationship, despite the benefit it provides. The result is that secs. 32D(a) and 32U of the Law are disproportionate and therefore unconstitutional. Subject to the aforesaid, I concur in the opinion of the President and the relief she proposes.

            I will now proceed to an examination of an additional arrangement – that permitting the transfer of an infiltrator to detention.

 

Transferring an Infiltrator to Detention

38.       The State seeks to compel reporting to the residency center. It seeks to operate it in accordance with defined rules of conduct. To that end, it must hold “coercive power” that will deter infiltrators from perpetrating infractions (the Eitan case, para. 183). The State chose the means of detention of an infiltrator who perpetrates various infractions. The length of detention depends upon the type of infraction and the number of orders issued in regard to infractions committed. In the Eitan case, the periods of detention ranged from thirty days of detention for a minor infraction to a year for the repeated perpetration of certain infractions (ibid., para. 166). As I noted in the Eitan case, transferring a person to detention from the residency center (and even persons not in the residency center) infringes his constitutional right to liberty. This is so because “transfer from the residency center to a detention facility involves the limitation of various aspects of the right to liberty that are not limited merely to an amplified infringement of physical liberty […] [it] prevents the possibility granted to an infiltrator in the residency center to leave its confines at the permitted times; it limits the possibility of creating social relationships; it disrupts the routine that the infiltrator has adopted in the course of his stay in the center” (ibid., para. 168).

39.       In the Eitan case, I was of the view that sec. 32T – in its former version – also infringed the right of the infiltrators to due process, in addition to the infringement of their liberty. This section granted the Director authority to order the transfer of an infiltrator to detention without that decision being subject to automatic judicial review by any judicial or quasi-judicial body, other than for the grounds for release under sec 30A(b) of the Law, and did not comprise the appropriate “procedural guarantees” that are a precondition of the constitutional right to due process (the Eitan case, paras. 167, 179). The infringement of the right to due process was found to be disproportionate in the Eitan case. That conclusion obviated the need to examine whether the section passed the other constitutional criteria of the Limitation Clause due to its infringement of the constitutional right to liberty (ibid., paras. 183-184). I also noted that the issue of the independent infringement of the right to liberty was worthy of a separate examination in view of the periods of detention, inasmuch as placing a person in detention for extended periods “crosses the border between a ‘disciplinary’ sanction that is primarily deterrent and a ‘penal’ sanction that is of a retributive nature”. I took particular note of the fact that an overly long period of detention “may also be disproportionate (in and of itself) in view of its severe infringement of the right to liberty, even if the Director’s decision were subject to automatic judicial review” (ibid., para. 184).

40.       The current Law also authorizes the administrative agency – more precisely: the Director of Border Control – to impose punishment in the form of deprivation or restriction of a person’s liberty as part of the disciplinary arrangement. Before making such a decision, the Director is required to permit the infiltrator to “present his arguments to him” (sec. 32T(e) of the Law). To what extent is the Director able to make an informed decision in the matter before him? Needless to say, in making such a decision the Director is subject to the rules of administrative law, and he must observe them with utmost strictness. Inter alia, the infiltrator must be informed of the nature of the charge or claim against him, he must be given a fair opportunity to respond to the information provided in his matter, and appropriate arrangements must be made in view of the fact that some of the infiltrators do not know the language (see and compare, e.g: AAA 7201/11 Rahmani Ltd. v. Airports Authority, paras. 43-45 (Jan. 7, 2014) (hereinafter: the Rahmani case); AAA 1038/08 State of Israel v. Gaevitz (Aug. 11, 2009); LCrimA 2060/97 Valinchik v. Tel Aviv District Psychiatrist, IsrSC 52(1) 697 (1998); HCJ 656/80 Abu Rumi v. Minister of Health, IsrSC 35(3) 185 (1981); Daphne Barak-Erez, Administrative Law, vol. I, 498-529 (2010)). The Director’s decision must also be grounded upon an appropriate factual foundation directly corresponding to the infringement of basic rights inherent in a decision to place a person in detention (see and compare: HCJ 394/99 Maximov v. Ministry of the Interior, IsrSC 58(1) 919, 928-931 (2003); HCJ 3615/98 Nimoshin v. Ministry of the Interior, IsrSC 54(5) 780, 787 (2000); and see: HCJ 7015/12 Ajuri v. IDF Commander in the West Bank, IsrSC 56(6) 352, 372 (2002) [http://versa.cardozo.yu.edu/opinions/ajuri-v-idf-commander-west-bank]). However, the Law does not grant the Director such powers as the power to summon or subpoena witnesses. Such powers could serve to increase the probability that the proceedings will achieve a correct result and increase the chances that they will be fair from the perspective of the person charged, such that it will be easier for him to accept the result (see and compare: the Eitan case, para. 174). This is problematic in view of the degree of the infringement of rights.

41.       However, as opposed to the situation in Eitan case, under the current legislation the Director’s discretion is subject to the review of the Detention Review Tribunal (hereinafter: the Tribunal). The Director’s decision is examined de novo by the Tribunal, which can approve or reject the Director’s order (sec. 32T(h) of the Law). The Tribunal is not restricted to the grounds for termination of detention under secs. 30A(b)(1)-(3) of the Law, and it is also required to examine the lawfulness and reasonableness of the Director’s decision. To that end, the Director’s decision must be properly reasoned so that the considerations leading to the decision can be examined, and so that the decision can be subjected to judicial review (see and compare: the Rahmani case, para. 9 of the opinion of Justice Joubran). In my opinion, the Tribunal must address the Director’s findings in their entirety, in a manner similar to the “double instance” model. In other words, it must permit the resident of the center to present his arguments and submit supporting evidence (see and compare: Chemi Ben-Noon, The Civil Appeal, 13 (3rd ed., 2012)). To that end, the Tribunal, as opposed to the Director, holds broad powers by virtue of the fact that it exercises its review in accordance with the Administrative Courts Law, 5752-1992 (see the opinion of the President, para. 110). It should be stressed that the current procedure establishes self-initiated review by the Tribunal, with no need for the infiltrator to “start” the procedure himself. This represents an improvement over the situation prior to the Eitan case. However, as can be understood from the language of the section, the Tribunal is required to examine the Director’s discretion only after he has decided upon a transfer to detention. Although the infiltrator must be brought before the Tribunal “as soon as possible”, his first appearance before it may take place only 96 hours after his confinement in detention (sec. 32T(g) of the Law). This is no insignificant amount of time (see: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense] (hereinafter: the Tzemach case); sec. 237A of the Military Justice Law, 5715-1955 (hereinafter: the Military Justice Law); sec. 29(a) of the Criminal Procedure (Enforcement Powers – Arrests) Law, 5756-1996; but see: sec. 13N(a) of the Entry into Israel Law, which establishes that “a person held in detention will be brought before the Detention Review Tribunal as soon as possible, and no later than 96 hours from the beginning of his custody”).

42.       In any case, and even assuming the sufficiency of the judicial review established by the Law, granting such authority to an administrative agency is exceptional. In the Eitan case I noted that “the authority to limit and supervise liberty is at the core of the role of the judiciary” (ibid., para. 179). It is the judiciary that administers the criminal law. In order to ensure the constitutional protection of the right to liberty, criminal law establishes strict rules of procedure and evidence that govern the judicial supervision of interrogation and the manner in which a person’s guilt will subsequently be decided (Ron Shapira, An Administrative Procedure establishing the Boundaries and Scope of Criminal Punishment, 12 HaMishpat – Adi Azar Volume, 485, 488 (2007) (hereinafter: Shapira)). Nevertheless, Israeli law provides several examples in which an administrative agency is granted authority to restrict a person’s liberty. First, in hierarchic organizations that by nature require the observance of strict disciplinary rules, the legislature granted authority to an administrative organ to deprive a person’s liberty as punishment for breaches of disciplinary rules. Such rules – found in the armed forces, the Prisons Service and the police – permit judicial officers or disciplinary tribunals to impose penalties of confinement or detention a person who has committed disciplinary offenses under the relevant rules (see: secs. 152-153 of the Military Justice Law; secs. 110(30) and 100(44) of the Prisons Ordinance [New Version], 5732-1971 (hereinafter: the Prisons Ordinance); secs. 37 and 51 of the Police Law, 5766-2006 (hereinafter: the Police Law)). Second, in situations concerning the enforcement of discipline in prisons and detention centers, the authority administering the prison or detention facility is authorized to order that a prisoner or arrestee be held in solitary confinement or – in the case of prisoners – to order a reduction of days of administrative or early release (see: sec. 58 of the Prisons Ordinance; sec. 10(b) of the Arrests Law).

43.       As we see, the legislature recognizes that in certain hierarchic systems the administrative agency is authorized to impose punishment that includes the denial of liberty for disciplinary purposes (see: Shimon Shetreet, Administrative Fines: Criminal Punishment by the Administration, 2 Mishpatim 577, 579-581 (1970)). Nevertheless, these arrangements should not be understood as indicating that the task of criminal punishment can be taken out of the hands the judiciary. We must, therefore, carefully consider the delicate distinction between disciplinary punishment and criminal punishment: in appropriate circumstances, disciplinary punishment can be entrusted to an administrative agency (but see: Shapira on the importance of judicial review over the decisions of the administrative body, in the case addressed there, the Prisons Service, ibid., pp. 488-493). However, if the Director of Border Control be granted authority to impose criminal punishment upon an infiltrator, that will not stand. It would constitute an overly severe infringement of rights – the right to liberty and to due process, which are interrelated. Seemingly disciplinary deprivation of liberty that crosses the Rubicon to the “criminal” coast requires a criminal process in a court of law that will ensure due process. Criminal punishment is permitted to the court and only the court, not retroactively and after the fact, not as “judicial review”, and not even by rehearing. What is required is a criminal process in a court, in accordance with all its rules and regulations.

44.       The question of the location of the border between punishment that serves essentially retributive objectives (criminal punishment) and punishment intended for deterrent, disciplinary purposes is difficult to resolve. It would seem that here, too, “there is great confusion and uncertainty”, and “it may be that the said theoretical issue has not yet been adequately developed” (CrimA 758/80 Yesh Li Ltd. v. State of Israel, IsrSC 35(4) 625, 629 (1981) (hereinafter: the Yesh Li case) (on the question of whether a particular fine constitutes criminal punishment); and see: LCA 4096/04 Boteach v. State of Israel, IsrSC 59(1) 913, 917-920 (2004) (hereinafter: the Boteach case)). This matter requires an interpretive solution. “Through interpretation we must locate the ‘genetic code’ of the principle under examination – in other words, its substance and character, and whether it is indeed ‘criminal’ or not” (HCJ 2651/09 Association for Civil Rights in Israel v. Minister of the Interior, para. 6 of the opinion of Justice M. Naor (June 15, 2011) (hereinafter: the Passport Regulations case); and see: the Yesh Li case, p. 629; LA 277/82 Nirosta Ltd. v. State of Israel, IsrSC 37(1) 826, 830 (1983); CrimA 474/65 Miromit Metal Works v. Attorney General, IsrSC 20(1) 374, 376-377 (1966)). This classification depends upon the circumstances of the matter and the language of the authorizing legislation (and see the example in the Passport Regulations case, para. 10).

45.       This is the crux of the matter: the Director of Border Control is authorized to issue orders to transfer a person to detention for periods that may reach 75, 90, or 120 days. In other words, for various disciplinary violations – like absence from the residency center or not reporting on time to renew a temporary visitor’s permit under sec. 2(a)(5) of the Entry into Israel Law – the Director of Border Control may “sentence” an infiltrator to prison-like punishment for a period of three or even four months. Is this “criminal” as opposed to “disciplinary” punishment? We will begin with the interpretation of the provision. In my opinion, we can be aided in this by examining the character of the disciplinary “offense” and whether or not it is part of the criminal corpus (the existence of a parallel criminal norm may support the view that we are not concerned with a disciplinary means, but rather an attempt to create a “by-pass” of the criminal process, and see the decision of the European Court of Human Rights in Campbell v. United Kingdom, 7 E.H.R.R. 165 ¶ 68 (1984) (hereinafter: the Campbell case)); the severity of the offense (the greater the severity with which the offense attributed to the person is viewed, the greater the tendency to view its punishment as criminal); the maximum term of deprivation of liberty (a longer period brings the punishment closer to criminal punishment, while a shorter period is more indicative of disciplinary punishment); and the manner for implementing the punishment (the greater the punishment infringes liberty, the more the scales tip towards a criminal classification) (see and compare the case law of the European Court of Human Rights that addressed the question of when a person subjected to a disciplinary penalty is entitled to the defenses under Art. 6 of the European Convention on Human Rights that establish procedural safeguards for a criminal defendant: Engel v. The Netherlands, 1 E.H.R.R. 647 ¶ 82 (1976); the Campbell case, paras. 69-73; Ezeh v. United Kingdom, 39 E.H.R.R. 1 ¶ 82-86 (2003). In the latter case, the European Court noted that the criteria are not cumulative conditions, and that there may be instances in which the presence of one of them may suffice to show that the penalty under examination belongs to the criminal “sphere”, ibid., para. 86).

46.       We will now apply these tests to the arrangement under review. First, in regard to the existence of a parallel criminal norm, we find that an examination of sec. 32T of the Law shows that there is no parallel criminal offense for some of the violations enumerated there, whereas in regard to so some of them – “Causing substantial damage to property” (sec. 32T(a)(3) of the Law) and “Inflicting bodily injury” (sec. 32T(a)(4) of the Law – one can think of criminal offenses that might be applied when needed. This test does not, therefore, tilt the scale to one side or the other. This is also true in regard to the severity of the offenses, some of which relate to obeying the conduct rules of the residency center (like the registration requirement), while others, as noted, relate to more severe harm to property or person. Thus, neither of these two subtests yields an unequivocal result. However, the two other subtests do, in my opinion, point to the view that we are concerned with essentially criminal punishment. In regard to the manner of implementing the punishment, we are concerned with transferring a person to detention in conditions similar to imprisonment. This is, of course, a very severe sanction in terms of its infringement of liberty (and see: the Eitan case, para. 47). The length of the deprivation of liberty also supports this conclusion. Some of the periods of detention established in this section are unquestionably long, reaching 120 days – or four months – of deprivation of liberty. My colleague the President emphasized that these are “maximum” periods that need not be fully “exploited” (para. 112 of her opinion). In my opinion, that does not put the matter to rest. In the Eitan case, in response to the opinion of President A. Grunis, I addressed the question of the weight that should be given to the fact that the law authorized the Director of Border Control to order that an infiltrator remain in the residency center “until the date that shall be established”. I pointed out that in accordance with my approach, the discretion granted to the Director did not change the fundamental principle, inasmuch as while the Director was authorized to set a date, the beginning of the section concurrently granted him the authority not to set any date. The Director may indeed properly exercise his discretion and refrain from placing an infiltrator in detention for the long periods stated by the Law. But we cannot hang our hopes solely on the grace of the administrative authority’s discretion and on its choice to set punishment at the lower end of the scale permitted by the Law. We must look the Law in the eye. The legislature entrusted the administrative agency with the possibility of imposing prison-like punishment for months. The authority was thus granted, and it – rather than the individual discretion – is now under our review.

47.       Lastly, I would propose that we examine the balances achieved by the legislature in similar situations, as “in our legal tradition, we accept that a statement in one text may be interpreted by examining the meaning of a similar statement in another text” (Aharon Barak, Interpretation in Law, vol. 3, Constitutional Interpretation, 243 (1995) (hereinafter: Barak, Interpretation)). Parallel disciplinary arrangements in Israeli law limit the deprivation of liberty to much shorter periods than those established under sec. 32T of the Law. In the armed forces, as my colleague the President noted, a senior judicial officer can sentence a soldier to detention for a maximum of 35 days. If an additional punishment is imposed before the soldier has served the entire sentence, the soldier will serve both sentences, but with the proviso that the maximum period of consecutive detention not exceed 70 days (see sec. 153(a)(6) and sec. 162A of the Military Justice Law; para. 112 of the President’s opinion). In the case of a corrections officer, a disciplinary tribunal can impose a maximum of 45 days detention for a conviction for a disciplinary offense. If the corrections officer is sentenced to an additional term of detention before serving the prior sentence, he will serve the longer of the two, but the panel may order that the sentences be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 110(44)(5) and sec. 110(61) of the Prisons Ordinance). A disciplinary tribunal can sentence a police officer convicted of a disciplinary offense to a maximum of 45 days detention (sec. 51(a)(5) of the Police Law). Here too, if the police officer is sentence to an additional term of detention while still serving another sentence, he will serve the longer of the two, but the panel may order that the terms be served consecutively as long as the total period of consecutive detention not exceed 70 days (sec. 66 of the Police Law). It would not be superfluous to note that the authority to impose such maximum sentences upon police and corrections officers is granted to a three-judge panel, and two of the judges must be jurists (see sec. 110(37) of the Prisons Ordinance and sec. 44 of the Police Law). It thus appears that where Israeli law sets time limits upon the authority it grants to an administrative entity to deprive a person of his liberty for disciplinary purposes, the accepted time limit is 45 days for a single disciplinary offense, and no more than 70 consecutive days for several offenses.

48.       Note well that sec. 32T of the Law establishes a “scale of severity” for punishment that is contingent upon the question of how many times an order for detention has been issued “for the same cause”. Thus, for example, if such a detention order has been issued twice for an offense under sec. 32T(a)(5) of the Law (working in contravention of sec. 32F of the Law), such that the infiltrator has twice been placed in detention for the offenses he was “found” to have committed, he can be sentenced to detention for a period of 60 days for the third offense (sec. 32T(b)(3)(c) of the Law). But this is not like the provisions in regard to an “additional” detention sentence I referred to above. Those provisions treat of a situation in which the person was sentenced to an additional term while serving the first. In such cases, the relevant legislation establishes that even in the case of consecutive terms, the total cannot exceed 70 days. None of the disciplinary arrangements that I addressed permit a similar term of punishment for one disciplinary offense (even if preceded by additional offenses for which the term of punishment has been served). As opposed to this, in the matter before us the Director is authorized to order detention for such a period – and even longer – for one infraction (even if it is the third infraction). From a comparative perspective, as my colleague Justice H. Melcer notes in his opinion, a breach of the restrictions applying to “persons who infiltrated into Germany who are asylum seekers” leads to the criminal track (see para 10 of his opinion). That is not the case here.

49.       It would appear from the above that the provisions established under sec. 32T of the Law cross the boundary between disciplinary and criminal punishment. That being the case, such authority cannot be entrusted to the Director or to any other administrative entity. Of course, the legislature enjoys broad discretion in regard to the length of administrative punishment. It need not precisely adopt the periods established in other arrangements that apply to soldiers, police or corrections officers. However, the periods established in the Prevention of Infiltration Law are very far from those – too far. They do not meet the test of proportionality stricto sensu, which as the President noted, is the primary test in this matter (para. 111 of her opinion). Operating a facility in which residence is imposed requires rules. Those rules require enforcement or they will be futile. But not anything goes. We should emphasize that when appropriate, the state can, of course, institute criminal proceedings “that by nature allow for the imposition of severe punishment” (the Eitan case, para. 184). But such authority cannot be granted to an administrative body, even if its decisions are subject to self-initiating judicial review. As I noted in the Eitan case, “such a sanction cannot stand, regardless of whether or not it is followed by judicial review” (ibid., para. 184). My conclusion is, therefore, that such authority is not proportionate relative to its inherent harm.

 

The Relief

50.       I have reached the conclusion that sec. 32T of the Law is unconstitutional. This constitutional defect cannot be remedied by interpretation, and there is no recourse but to declare the section void. In the Eitan case, I proposed to my colleagues that we read the section such that the Director would be authorized to order the detention of an infiltrator for no more than thirty days for each of the causes set out in the section, and that those in detention on the date of the judgment be released thirty days after the beginning of their detention, or on the date set by the Director, whichever be shorter (ibid., para. 191). This time – in view of the automatic judicial review of the Director’s decisions that was added to the Law – I would propose that the declaration of voidance be held in abeyance for six months. During that period, or until an alternative arrangement be adopted, sec. 32T will remain in force but will be read such that no detention order will be issued for a period exceeding forty-five days for any of the causes under the section (in accordance with the rule for disciplinary punishment for one infraction). Those held in custody on the day of this judgment by virtue of an order issued by the Director will be released forty-five days from the beginning of their detention or at the conclusion of the term set by the Director, whichever is shorter.

 

Approaching the End – Comments on the Future

51.       The result I have ultimately reached at the conclusion of the legal examination is as follows: Sections 30D(a) and 32U of the Law are void. Section 32T is void. What shall the Knesset do now? The dialogue will continue. The same legislation cannot be restored as if nothing has happened (see the opinion of then Deputy President M. Naor in the Eitan case, para. 3). The Knesset can enact a legislative arrangement that will meet constitutional criteria. The long detention periods established under sec. 32T of the Law can be replaced with shorter periods. The Knesset can replace the section that I propose be declared void – setting the maximum period of residency in the residency center – with one that establishes a different, significantly shorter period that would pass constitutional review. The legislature can also consider other, new possibilities. In this regard, I would like to add a further comment.

52.       As earlier noted, the Prevention of Infiltration Law permits the Director to issue a residency order to any infiltrator regarding whom there is a problem “of any sort” in regard to his deportation (sec. 32D of the Law). The administrative agency set criteria for itself in this regard. Under those criteria, which were published on the website of the Population and Immigration Authority and dated July 14, 2015, the infiltrators who can be issued a residency order are “Sudanese nationals who infiltrated into Israel before Dec. 31, 2011” and “Eritrean nationals who infiltrated into Israel before July 31, 2011, including those who received a B/1 residency permit until now”. In other words, the administrative agency chose to apply the arrangement established by the Prevention of Infiltration Law to “old” infiltrators – those who arrived in Israel nearly four years ago. I do not intend to decide the various question these criteria raise. As I have already noted, inasmuch as these criteria involve an infringement of the right to liberty and the right to dignity, the question arises as to whether they should have been established in primary legislation (the Eitan case, para. 91). I would now like to emphasize only that in my opinion the scope of the infringement of rights, as well as the effectiveness of the residency center, differs in regard to two populations -- the first, “old” infiltrators, and the second, “new” infiltrators. The infringement of the rights caused by Chapter D of the Law is far greater for the first group. Most of the “old” infiltrators – the ones being sent to Holot under the criteria established in this regard – have established themselves in the urban centers. Severing them from the lives they have already built, “yanks” them from their jobs, housing, social environment and so on in one fell swoop. This is a more severe infringement of their right to dignity and liberty, and the benefit achieved in terms of preventing them from settling is limited. That is certainly the case in regard to the purpose of “responding to the needs”. As opposed to this, in regard to the second group – the group of “new” infiltrators – it would appear that the infringement posed by Chapter D is less severe. In their regard one might even say that we are not concerned with retroactively “changing the rules of the game” (as Justice I. Amit noted in para. 1 of his opinion in the Eitan case). Even after we found that the deterrent purpose is improper, we can say that the infringement of the rights is inestimably less in regard to a person who knows that he is going with opened eyes to a state where these normative arrangements are in place, as opposed to a person who is torn from his daily life and then returned to it after no insignificant time. Thus, the harm to these “new infiltrators” in the residency center is at a lower level than the harm incurred by the “old” infiltrators”. As opposed to this, the benefit achieved in relation to the purpose of preventing settling is greater, as they have not managed to situate themselves. The upshot of the above is that nothing prevents establishing different “ceilings” for the two groups. Such an approach would also allow the state to respond to a situation in which the trend of compelled immigration to Israel changes (for example, as a result of the closure of immigration routes to Europe), in accordance with its position – with which one must agree – that a fence alone is insufficient to stop the infiltration phenomenon (see p. 58 of the response; I also noted that a fence alone is inadequate in the Adam case, para. 25 of my opinion; and in the Eitan case, para. 64). Of course in any case, as the President pointed out, residency orders must be issued on an individual basis, and it would be unacceptable to issue residency orders in accordance with a “uniform outline”, i.e., for a fixed period in regard to each population group (para. 96 of the President’s opinion).

53.       Lastly, we should stop to consider a question that arose in the Eitan case, and that arises again here in regard to the relationship between the constitutional examination and the administrative examination. The questions that arise in regard to who will be sent to the residency center, what conditions will be provided for the resident of the center, and where the center will be located are primarily administrative, and are addressed in regulations and decisions made by virtue of the Law. The State and the Petitioners disagreed on these matters, and I am of the opinion – as was my opinion in the Eitan case – that this proceeding is not the appropriate forum for their examination. However, before concluding I would note that a different implementation of the Law could also have affected the examination of its proportionality. If those held in the residency center enjoyed better conditions, if the “pocket money” would afford them greater autonomy, if the residency center were not so far removed from populated areas, it would have influenced the margin of proportionality, and thus the question of constitutionality.

 

Conclusion

54.       It is well known that “constitutional democracy is a delicate balance between majority rule and fundamental values that control that majority” (Barak, Proportionality, p. 113). This balance was upset in the matter before us. If my opinion were heard, we would declare the annulment of secs. 32D(a) and 32U of the Law, and the annulment of sec. 32T of the Law. Indeed, special care is required when we are confronted with a second constitutional review of the same legislative provision (see the Eitan case, para. 23), and all the more so in the case of a third review. But we must not hesitate to declare the nullity of an unconstitutionality law. We nay not hesitate is such cases. This is true a fortiori when the matter before us concerns the core human rights of a vulnerable population. This is the raison d'être of constitutional review. Although this is always the last resort, there is but one result for unconstitutional legislation – annulment.

 

Justice I. Amit:

1.         The productive dialogue between the legislature and the judiciary continues as we now enter the third round in regard to the constitutionality of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), which is unprecedented in our constitutional law.

Once again we are concerned with two primary pillars of that Law: detention under sec. 30A of Chapter C of the Law, and the erection of a residency center and the modes of its operation under Chapter D of the Law.

2.         As in the Eitan case (HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)), I remain of the view that insofar as the Law’s purpose and proportionality, we must view its two main pillars as a dichotomy. In my opinion, the state is permitted to adopt a strict external policy in regard to immigration, with a view to the future and in addressing potential infiltrators. In contrast to that strictness, the state should show compassion and humanity internally in regard to the past, i.e., in regard to those who have already entered the country years ago, before the legislature changed the “rules of the game”.

            I will say a few words about the current version of Law against the background of this dichotomy.

3.         Section 30A of the Law: In the Eitan case, I pointed out that the section is directed to the future, outside the fence and over the border, and to a non-particular population of potential infiltrators. I was of the minority opinion that there was no flaw in establishing a one-year period of detention, and I noted that putting a stop to the infiltration phenomenon was a proper purpose:

…intended to protect a broad range of substantive interests of the state and of Israeli society – preservation of the state’s sovereignty, character, national identity, and socio-cultural atmosphere, along with such other aspects as population density, welfare and economy, internal security and public order. Just as the state was entitled to erect a physical border barrier against those seeking entry, so it is entitled to erect a normative barrier as a complementary means of defense.

            In view of these interests, I am of the opinion that there is nothing wrong with reducing the incentives for potential infiltrators to come to Israel, and for the reasons I gave in the Eitan case, I do not believe that the deterrent purpose changes a potential infiltrator from an end to a means.

            That is what I thought in the Eitan case, and all the more so following the current amendment that reduces the detention period and sets it at three months. I can thus easily concur with the President’s conclusion that the amendment to sec. 30A of the Law passes the tests of the Limitation Clause.

4.         Chapter D of the Law: I will repeat what I said in the Eitan case. Chapter D of the Law “turns its glance inward, and imposes severe restrictions upon a particular population composed of people who have been in the country for a number of years…the residency centers created by the Israeli legislature entirely deviate from the character and purpose of the residency centers in various European countries”. Indeed, as time passes, the clearer it becomes that this was not what we envisioned, as the President stated in her opinion (para. 57).

5.         Look how many purposes the parties have piled upon the narrow shoulders of Chapter D of the Law:  stopping the infiltration phenomenon and preventing future infiltration in terms of a normative block to potential infiltrators; preventing settling in the urban centers; providing an appropriate response to the needs of the infiltrators; ensuring the departure of infiltrators; preventing infiltrators from earning and reducing the economic incentive for staying in Israel; breaking the spirit of infiltrators and encouraging them to leave Israel.

            As the President noted (para. 105 of her opinion), it would appear that no western country maintains residency centers that are not voluntary, for such long periods of time, and whose purpose is population distribution. The Israeli model is unique, and in practice, it is not intended for population dispersion, as argued, but rather to concentrate the population in one facility that is remote from any settled area.

            The current Law adopts a system of “centrifugal circulation” by means of removing the infiltrators from the urban centers, spinning them out to the edge of the desert for twenty months, and then back to the urban centers, while removing others from the urban centers “to take their place” in the residency center. This twisted path of constant turnover of infiltrators – described by Justice Vogelman as “a revolving door” – raises the suspicion that behind the declared purpose of preventing the infiltrators from settling in the urban centers hides a purpose of subjecting the infiltrators to a “run around” intended to break their spirit, as claimed by the Petitioners. I therefore join Justice Vogelman in regard to the questions he raised as to the gap between the declared purpose and the hidden purpose of the Law in his discussion of the purpose of encouraging voluntary emigration.

            At the end of the day, I took the State at its word, and I can but join in the position of my colleague Justice Vogelman that the purpose of preventing settling should be interpreted as “alleviating the burden” on the cities, particularly south Tel Aviv. This is a proper purpose, and there are, therefore, no grounds for annulling Chapter D on the basis of its purpose. I would note that the term “settling” normally refers to a person’s dwelling. In this regard, to the extent that the Law is intended to reduce the scope of infiltrators living in the cities, as opposed to working and staying there, it is a proper purpose that could also be achieved by erecting residency centers outside or on the outskirts of the cities, and not necessarily in a place as remote as Holot. It would therefore be more correct to examine the constitutionality of the Law in terms of proportionality rather than purpose, as the President did in her opinion. In this regard, I would say that the question of the location of the residency center is critical, inasmuch as the Law’s proportionality is not examined in a vacuum, but rather in the context of a particular reality. The current residency center is remote and isolated from any population center, and the daily pocket money given to its residents is insufficient for even one trip to the closest city.

            True to my approach that preventing a renewal of the infiltration phenomenon is a proper purpose, I believe that it is also proper in the framework of Chapter D as a purpose in and of itself and not merely as an attendant purpose. I am therefore of the opinion that there is no reason not to apply the provisions of Chapter D, as written, prospectively to potential infiltrators in the future, even for a period of twenty months. In other words, an infiltrator who entered Israel after the enactment of the Law is subject to the provisions of sec. 30A(k) of the Law, and the provisions of Chapter D, including the twenty-month period as stated in secs. 32D and 32U. That is not the case in regard to infiltrators already living in the country, regarding whom the twenty-month period fails the third subtest of proportionality, and I concur with the opinion of President M. Naor on this point.

            The claimed purpose of “providing a response to the needs of the infiltrators” is unquestionably a proper purpose. However, the “translation” of this purpose against the background of Chapter D of the Law as currently implemented leaves this purpose devoid of any content, and it therefore fails the very first test of proportionality.

6.         In the Eitan case, we addressed several parameters that, taken together, presented a less-than-heartwarming picture of the character of a residency center, and we annulled various specific arrangements related to Chapter D of the Law. We will now continue down that path, without entirely uprooting Chapter D.

            The bottom line is that in view of Chapter D’s severe, inherent infringement if liberty, I concur with the opinion of the President according to which a period of twenty months in regard to “old” infiltrators is disproportionate. I also concur with the relief that she proposes.

            In addition, in order to blunt the infringement of liberty to the extent possible, I concur with the view of my colleague Justice U. Vogelman in regard to the annulment of sec. 32T of the Law. There may be reason to revisit this matter, should severe disciplinary problems arise in the residency center in the future.

 

Justice S. Joubran:

1.         The law under review – the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) – comes before this Court for the third time. My colleagues have addressed the constitutional issues raised by this case in great depth, and it would appear that deciding this petition boils down to three central questions: first, whether or not the arrangement currently established under sec. 30A of the Law, concerning the possibility of holding an infiltrator against whom a deportation order has been issued in detention for a period of three months, is proportionate; second, whether or not the arrangement currently established under secs. 32D and 32U of the Law, concerning the length of an infiltrator’s stay in a residency center, is proportionate; and third, whether or not the arrangement currently established under sec. 32T of the Law, concerning the authority of the Director of Border Control (hereinafter: the Director) to transfer an infiltrator from a residency center to detention for disciplinary infractions, is proportionate.

2.         My colleagues President M. Naor and Justice U. Vogelman agree that the answer to the first question is that the arrangement is proportionate and therefore constitutional, while the answer to the second question is that the arrangement is not proportionate and therefore unconstitutional. However, they disagree as to the answer to the third question.

3.         Like my colleagues, I am also of the opinion that sec. 30A of the Law should remain in force, subject to the interpretation set out in the opinion of my colleague the President (the first question above), whereas the maximum period established under secs. 32D and 32U of the Law for remaining in a residency center must be annulled (the second question above). I see no need to set out my reasons in detail, in view of the comprehensive opinions of my colleagues. In short, I would note that I, too, am of the opinion that the current version of sec. 30A of the Law meets the criteria of the Limitation Clause, primarily in view of the shortening of the maximum period for holding a person in custody. To clarify this point, as I explained in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)), and as my colleague the President explained in her opinion, the purpose of preventing infiltrators from settling is a proper purpose. This conclusion is based upon the state’s right to establish an immigration policy, inter alia, to limit undesirable demographic changes that are an unavoidable consequence of illegal immigration, and of infiltration in particular. I addressed this in para. 7 of my opinion in the Eitan case:

In Israel, these changes have resulted in undesirable consequences such as a rise in crime, a burden upon the state budget and the health and welfare systems in certain areas, problems in enforcing civil obligations such as tax payment, and more (see: paras. 6-11 of the State’s response of March 11, 2014).

            As I believed in the past, and as I continue to believe, although the immigration policy, by its very nature, restricts certain basic rights, that is insufficient to deny that its purpose is proper. The comparison to principles of international presented by my colleague the President in paras. 68-73 of her opinion reinforces that view. In accordance with those principles, means that restrict freedom of movement, and at times, the infiltrators’ right to liberty, may be adopted in exceptional circumstances. Therefore, in my view, the purpose is proper, and sec. 30A of the Law meets the other criteria of the Limitation Clause, as my colleagues explained in detail.

4.         Notwithstanding the finding that the Law’s primary purpose is proper, I, too, am of the opinion that secs. 32D(a) and 32U do not meet the test of proportionality stricto sensu, in view of the  twenty-month period in which an illegal alien may be held in a residency center. As my colleagues explained, the time period influences the extent of the infringement of the rights of the infiltrators in a manner that does not maintain a proper relationship between the cost and the benefit. Therefore, I, too, see the maximum period for holding a person in a residency center as disproportionate, and it must be annulled.

5.         However, in regard to the disagreement between my colleagues in regard to the third question – whether or not the arrangement granting authority to the Director to transfer an infiltrator from a residency center to detention for disciplinary offences is proportionate – my view is as that of President M. Naor. I, too, believe that there is significance to the marked shortening of the maximum periods for detention, the fact that transferring an infiltrator is subject to the causes set out in the Law, and the fact that the Director’s decision is subject to an automatic judicial review process within 96 hours of the beginning of detention. I find that in terms of proportionality stricto sensu, the arrangement established under sec. 32T of the Law is proportionate in maintaining the proper relationship between its cost and benefit, and therefore, as my colleague the President demonstrated, it is constitutional.

6.         As opposed to that, my colleague Justice U. Vogelman is of the view that the arrangement is unconstitutional, primarily due to the fact that the arrangement’s provisions cross the line between disciplinary and criminal punishment. My colleague Justice Vogelman notes, in para. 42 of his opinion, that granting such authority to an administrative agency is exceptional, and further suggests comparing the administrative organ in the matter before us (the Director) to hierarchic organizations in which an administrative organ is granted the authority to deny a person’s liberty as a punishment for violating disciplinary rules (para. 47 of his opinion). Thus, Justice Vogelman points to the disciplinary arrangements under Israeli law that apply to the armed forces, the Prisons Service, and the police, and finds that those arrangements deny liberty for shorter periods than those established under sec. 32T of the Law.

7.         As for myself, I do not believe that an analogy should be drawn between the infiltrator population and soldiers, corrections officers and police. Indeed, from the perspective of the holder of authority, we are concerned with an administrative organ in both cases. However, from the perspective of those punished, we are concerned with groups that are essentially different. The infiltrators constitute a group that is, a priori, in violation of the law by reason of illegally entering or living in the country. As opposed to this, the group comprising soldiers, corrections officer, and police is one of professionals in the service of the state. When an infiltrator commits a disciplinary offense, that offense is additional to the offense that he has already committed (without entering into the question of why he may have entered the country illegally). As opposed to that, when a soldier, corrections officer or police officer commits a disciplinary offense, he does so in the course of the performance of his duty. The right to liberty is important in both situations, and the need to refrain from infringing it should not be taken lightly. But I believe that we should draw a distinction between a group of people that is subject to the authority due to a violation of the law, and one subject to the authority in the framework of the performance of its duty in the state’s service. I am, therefore, willing to accept an arrangement that grants an administrative organ the authority to deny liberty for a longer period when we are concerned with the former group.

8.         I would add that unlike Justice Vogelman, who believes that “we cannot hang our hopes solely on the grace of the administrative authority’s discretion and on its choice to set punishment at the lower end of the scale permitted by the Law” (para. 46 of his opinion), I agree with my colleague the President (para. 112 of her opinion) that we need not fear that the Director will choose to “exploit” the maximum periods established by the Law to their full extent.

            As a rule, I do not think that we should cast a priori doubt upon the ability of an administrative or judicial organ to exercise appropriate discretion in a particular case before it. The Law establishes that the Director may order the detention of an infiltrator who committed one of the acts listed in sec. 32T(a) of the Law for a period not exceeding the periods set out in sec. 32T(b) of the Law. In this regard there would seem to be no difference between the maximum periods of detention established under sec. 32T(b) of the Law and, for example, the maximum penalties established in the criminal law. Just as criminal offenders are sometimes sentenced to only a few months of imprisonment, and sometimes to the maximum years of imprisonment established by law (or nearly so), so it is with regard to the transfer of infiltrators from a residency center to detention – sometimes they will be sent for the shorter periods established in the Law, and sometimes for the maximum.

            It should further be emphasized that if a suspicion of defective exercise of the Director’s discretion arise, his decision is subject to automatic judicial review of the Detention Review Tribunal for Infiltrators (sec. 30T(g) of the Law; and see: para. 110 of the opinion of my colleague the President). I have therefore reached the conclusion that the arrangement established under sec. 32T of the Law is proportionate.

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

 

Justice N. Hendel:

1.         This is the third incarnation of petitions challenging the constitutionality of amendments to the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law). In practice, we are concerned with a single cluster and a dynamic of amendments to amendments against a background of significant changes in the infiltration phenomenon over the last few years. On three occasions, including this one, the Court has granted the petitions. It was held that the Law, as amended, was tainted by unconstitutionality. In brief, HCJ 7146/12 Adam v. Knesset (Sept, 16, 2013) held that an infiltrator could not be held in custody for three years; HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) held that twelve-months custody was unconstitutional, as was the residency center in Holot in the format then established by the Law. The current case does not intervene in the amended period of custody, but found flaw in in the twenty-month maximum for being held in the residency center. The state was therefore granted an extension to amend the Law, and it was held that in the interim it would only be permissible to hold infiltrators in a residency center for no more than twelve months.

2.         There have been developments in the field over the course of the relevant period. In 2009, 5,235 infiltrators entered Israel; in 2010 – 14,702; and in 2011 – 17,312. The Israeli government, which is responsible for immigration policy and the borders, contended with the phenomenon. Over the last three years, the upward trend was halted. In 2012, 10,441 infiltrators entered Israel. In 2013 – 45 infiltrators; in 2014 – 21 infiltrators; and in the first quarter of 2015 – only 4 infiltrators. It would seem that two primary elements contributed to the decrease: a physical barrier in the form of a border fence on the Israel-Egypt border, and a normative barrier – the provisions of the Infiltrators Law. The contribution of each element is the subject of debate, but in my view, there is no denying that the combination left its mark.

            Other changes concern the number of infiltrators who left the country. 6,414 infiltrators departed Israel in 2014, and 747 departed in the first quarter of 2015.  As of the end of this year, there are 45,711 infiltrators living in Israel, as opposed to some 50,000 who were living in Israel when the Eitan case was decided at the end of September 2014. In this regard we should take note of the principle of non-refoulement, which establishes that a person cannot be removed to a place in which he would be in danger. This principle is especially relevant to Eritrean nationals. There are also various problems in regard to citizens of North Sudan, due to a lack of diplomatic relations. Therefore, the infiltrators left to a “third state”. The current picture is that while there is a reduction in the number of infiltrators entering Israel, that is not so in in the case of the number of infiltrators already in Israel.

3.         I have carefully read the opinion of President M. Naor. Her conclusion is that the period that a person may be held in a residency center – twenty months – is too long and must be annulled. The opinion is clearly set out and comprehensive. It emphasizes that the Court is again of the opinion – for the third time – that there is an unconstitutional, disproportionate infringement of human rights, and the Court must intervene. I do not disagree with this principle, as such. However, I have a different perspective of the case before us. Just as it is the Court’s duty to intervene when such a defect is found, it is a judge’s duty to present his position and reasoning when he concludes that the Court should not intervene.

            In my view, the result that the law be changed three times – even if possible – is far from desirable. As a matter of constructive criticism, and so that this situation not repeat itself, all of the parties – the Knesset in legislating and the Court in constitutional review – must consider whether it was possible to prevent this situation.

            Before addressing the core of the decision and its reasoning, I will note that in the Adam case I – like my colleagues – was of the opinion that holding a person in custody for a period of three years, whatever the intention, requires the conclusion that the provision be annulled, inasmuch as it constituted punishment. In my dissenting opinion in the Eitan case, I – and my colleague President (Emeritus) A. Grunis – took the view that a twelve-month period of custody fell within the margin of constitutionality, and a residency center for a period of three years (under the Temporary Order) meets the constitutional test of sec. 8 of Basic Law: Human Dignity and Liberty. Against this background, it should come as no surprise that in the present case, as well, I am of the opinion that the petition should be denied. However, in view of the result reached by the majority in this case, I believe that I should present additional, new reasons that justify not annulling the amendment to the Law, in addition to what I and President (Emeritus) Grunis wrote in the Eitan case, to which I will add several matters required in this petition.

            I find it appropriate to emphasize three levels. The first concerns the relationship between this Court and the legislature. The second concerns the justification for the type of intervention proposed. The third focuses upon examining the issue of annulment on the merits. Each level provides a different perspective grounding the result that we should not intervene constitutionally.

 

A. The Constitutional Discourse between the Court and the Legislature

4.         An important principle is that the Court must not order the revocation of a law for constitutional reasons unless there is no recourse. This power of the Court has been described as a “non-conventional weapon”. Its use must be measured and careful. Each branch has its function. So it is in regard to the first amendment to the Law, a fortiori in regard to the second, and all the more so in regard to the third.

            It can be said that the residency center was “born” as a result of our comments in the Adam case. In the Eitan case, in the framework of the constitutional review pertaining to a residency center, this Court emphasized the restrictive conditions of staying in a residency center, primarily the requirement to register three times a day – morning, noon, and evening; the absence of grounds for release from the center; and the fact that the period of residency in the center had not, in practice, been limited. My opinion was that the arrangement could be understood as limited to three years. However, the majority opinion emphasized that the individual infiltrator was left uncertain as to the end of his stay at the residency center. According to this approach, it was not possible to rule out the possibility of an extension of the Temporary Order even beyond three years.

            My colleague Justice Vogelman, who wrote the opinion of the court in the Eitan case, noted:

The constitutional examination does not end with the question whether each particular provision – standing on its own – satisfies the constitutional criteria… “An individual arrangement may be proportionate, while cumulatively they may not be proportionate” ((HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 401 (1997) (emphasis added – U.V.)). Such an accumulation may affect several provisions of Chapter D of the Law which, standing alone, would have passed constitutional review inasmuch as they do not independently infringe protected constitutional rights. This is the case inasmuch as the relationship between the various provisions also exerts influence upon the provisions that pass constitutional review (para. 100).

Staying in the residency center for three years not only infringes the liberty of the “infiltrators” but also their right to dignity. The time dimension substantially affects the infringement of the dignity of a person whose liberty is deprived. Deprivation of liberty for a short period of time allows a person to return to his life quickly. The longer the deprivation of liberty, the more a person must relinquish his desires and hopes. His personal identity and unique voice are drowned in a regulated, wearying daily routine. A person who leaves a residency center after three whole years is no longer who he was (para. 154).

As we have already explained, given that the Temporary Order may possibly be extended, an “infiltrator” sent to a residency center is in a state of inherent uncertainty in regard to his release. This uncertainty is not part of the infringement on dignity inherent to any stay in a liberty-depriving facility. It is a unique, independent infringement of the right to liberty that derives from the manner in which the uncertainty reinforces the suffering already associated with the deprivation of liberty. Indeed, psychological research has shown that uncertainty is a significant stress factor in a person’s life, and is often linked to anxiety and depression (para. 155).

Thus, a normative arrangement that deprives a person’s liberty for a period of three years (at least), without definitively fixing the length of this period in advance, constitutes an arrangement that inflicts a very powerful infringement of the right to liberty and the right to dignity (para. 157).

How should the period of residency be determined? In my opinion, a proportionate normative arrangement must preserve the proper relationship between the degree of the restriction of rights in the facility and the maximum period of residency therein, such that the greater the restriction of basic rights, the shorter the imposed residency in the facility (para. 162).

This is how the length of the period was emphasized against the background of the requirement of reporting for registration three times a day.

            The above was brought to show one thing: to my understanding, the above does not lead to the conclusion that a period shorter than three years, such as twenty months, taken together with grounds for release and an easing of the registration requirement to once a day does not meet the proportionality test. The Eitan case noted the infringement of freedom of movement that results from being required to live in the residency center. But the emphasis was on the aggregate: the combined effect of the long period – at least three years, the uncertainty as to its end, the lack of grounds for release, the requirement to register three times a day, and all in an isolated place. Thus the current petition has focused the spotlight on a defect in the Law that did not previously enjoy such principal status – setting the maximum period at twenty months rather than some shorter period (e.g. twelve months; see below).

            There is indeed a kind of constitutional discourse between the Court and the Knesset. But it is not a discourse between partners to an endeavor. Each body has a different purpose and authority. In my view, were there a constitutional problem even with a maximum period that was only half of the three-year period, we should have said so in our prior judgment. It is not proper that the discourse include upgrading demands and introducing new problems in the second and third round that could have been pointed out in the previous round.

            Indeed, an amendment, even the third one, is not immune to constitutional review. The Eitan judgment noted problems, but the Court did not establish a maximum period for a stay in the residency center, even in general terms. That is deficient. If that was the intention or the position, it should have been stated then. We are also not concerned with a situation in which the Knesset ignored the judgment’s comments. For example, while the minority in the Eitan case (President Grunis and I) supported rescinding one of the three registration requirements, the Knesset chose to rescind two out of three, and left only the requirement to report at night. Similarly, the shortening of the maximum period was not a symbolic reduction like thirty months instead of three years. We are concerned with a significant reduction – twenty months at most. Even the other opinions of the majority in the Eitan case did not recommend an alternative number.

            My questions can be answered in saying that it is not the role of this Court to draft the particulars of the Law. But an absence of direction, at least along general lines, may give the impression that this is not the main problem, and I believe the discourse between the Court and the Knesset suffers. That is also said in view of the many iterations of the amendment to the Infiltration Law. In my opinion, the constitutional correction in its current form could have been avoided.

 

B. The Limitations of a “Numerical” Constitutional Correction

Another aspect that I see as problematic concerns the manner of the correction. The majority view is that the twenty-month stay in a residency center must be annulled. In its place, the majority temporarily establishes a period of twelve months. The majority, per President Naor (para. 69) and Justice Vogelman (para. 19), concurrently recognizes the purpose of preventing settling in the urban centers. This purpose translates into alleviating the burden upon the cities in which there are large concentrations of infiltrators. It would seem that this purpose cannot be achieved in a period of only one year.

The comparative law survey shows that detention for a period of six months – if not more – is acceptable and passes the constitutional hurdle in the relevant countries (see para. 4 of my opinion and paras. 72-78 of the opinion of Justice Vogelman in the Eitan case). If that is true for custody – and given the difference in the magnitude of the infringement of rights presented by custody as opposed to a residency center, and the different purposes of these provisions – a significant distinction would seem to be required in regard to the maximum periods. For example, it would not be reasonable for the maximum period of custody to be half a year, while the maximum stay in a residency center is, for example, ten months.

Of course, the maximum period cannot be quantified with surgical precision. It would appear to be difficult to distinguish between a year and fourteen months of even sixteen months. From this perspective, it is hard to justify intervention merely because a twenty-month period was established. Even were we to accept the assumption that the period is long, which is not my view as I explained in the Eitan case, the numerical review does not justify a finding that the period deviates from the constitutional margin. Incidentally, this is why courts, both in Israel and abroad, tend not to intervene from a constitutional perspective in maximum sentencing in criminal contexts (see: Cliff Robertson, Constitutional Law and Criminal Justice, chap. 8 (2009)). We do not have the tools necessary for precise measurement. There may be exceptions in which numerical constitutional review would be possible, for example, in regard to not bringing an arrestee before a judge, and in comparing juveniles to adults. But when we are concerned with holding a person in a residency center that, as noted, permits the residents freedom of movement over the course of the day, I am hard pressed to understand the result of annulling the maximum twenty-month period.

Moreover, a residency order does not establish an automatic twenty-month period, but rather that an infiltrator may be held in a residency center “no longer than the 20 month period established under sec. 32U” (sec. 32D(a)). Section 32U further establishes: “An infiltrator shall not remain in a residency center by virtue of a residency order for more than 20 months”. We thus see that the Law establishes twenty months as a maximum period. Therefore, if one is of the opinion that this period is too long from a constitutional perspective, he could, by way of interpretation, find that the maximum period should be exhausted only in exceptional cases. In other words, in many cases it would be possible to shorten the actual period by means of interpretation, without any need for declaring the section void. As is well known, this Court’s rule for constitutional review is that interpretation is preferable to annulment (HCJ 5239/11 Avneri v. Knesset, para. 56 of the opinion of Justice H. Melcer (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

6.         Comparative law is another consideration deemed relevant by my colleagues the President and Justice Vogelman. According to the survey presented by the President, a twenty-month period is long when compared to other legal systems. In my opinion, the matter should be viewed differently.

First, some of the countries surveyed permit living in a defined area for a very short period measured in days, weeks or a few months. If that is the case, then clearly the primary purpose of residency centers in those countries is not the prevention of settling, but rather, for example, initial investigation (see para. 105 of the President’s opinion). Similarly, in some countries, staying in a defined area is, in practice, a benefit granted to asylum seekers at their request (ibid., paras. 102-103). This, too, serves a purpose of a different kind. At the same time, my colleagues believe that preventing settling is a proper purpose. I accepted this view in the Eitan case, and this was also the view of my colleagues Justice S. Joubran (ibid., para. 7) and Justice Arbel (para. 84 of her opinion in the Adam case). If that is the case, then a comparison with other countries in which staying in a residency center serves a different purpose is of no significance. Choosing a legitimate purpose is within the bounds of the state’s authority.

Second, if the maximum period of a legislative enactment is somewhat higher than its parallels in other countries, that alone is insufficient to show unconstitutionality. Comparative law is not meant to make all countries toe the same line in every field. The balancing of the constitutional infringement and the proper purpose does not demand uniformity. The balancing formula is not a mathematical calculation. Recognizing the constitutional margin is a central part of judicial review. Of course, if the difference is significant, the matter is different. But as noted, this is not the case here. Moreover, as I will explain, the State of Israel faces special difficulties that may themselves justify a somewhat longer period.

Third, even if there is a trend toward limiting the period of stays in residency centers in comparative law, a distinction should be drawn between a legislative trend and judicial review. The situation in Germany in particular, against the background of the European Union in general, serves to bring this matter into sharp focus. The starting point is the European Union’s 2003 Directive, and its updated version from 2013 (Directive of the European Union 2003/9/EC; Directive 2013/33/EU). Article 7 concerns “Residence and freedom of movement”. Article 7(1), which was preserved in 2013, states: “Applicants may move freely within the territory of the host Member State or within an area assigned to them by that Member State. The assigned area shall not affect the unalienable sphere of private life and shall allow sufficient scope for guaranteeing access to all benefits under this Directive”. A state may restrict freedom of residence, and not just freedom of movement: “Member States may decide on the residence of the applicant for reasons of public interest” (Art. 7(2)). For our purposes, it is important to note that neither the new nor the old Directive mention any time limitation for these provisions. It is also worth noting that the UN High Commissioner on Refugees expressed concern in regard to the exemptions and wide measure of interpretation that this article permits the member states of the EU. However, there is no criticism of the policy of restricting freedom of movement itself, or of the absence of a time limit (UNHCR annotated comments on COUNCIL DIRECTIVE 2003/9/EC, Article 7).

We will now turn to German law. Indeed, the current law sets a maximum of three months for the restriction of residence (Residenzpflicht) for an asylum seeker. However, this was only adopted in December 2014, and entered into force in January 2015. Prior to the amendment, asylum seekers in Germany were subject to restriction of their place of residence, and were required to apply to the authorities before leaving the area (secs. 55-58 of the Asylum Procedure Act). As for the length of time during which the residence restriction applied in practice, the following data can be of assistance: in the first half of 2014, the review of an asylum request took an average of eleven months, but there were significant differences based upon country of origin. Thus, for example, reviewing the requests of asylum seekers from Afghanistan took an average of twenty-two months (Asylum Information Database - http://www.asylumineurope.org/reports/country/germany/asylum-procedure/ procedures/ regular-procedure).

It should be noted that the change in the German legal situation was instigated by the legislature and not by the court. Prior to the last few months, there was no time limit on the restriction of the freedom of movement of asylum seekers. Of course, even in the fields of constitutional law and comparative law, facts carry significant weight. To illustrate the point, let us assume that the twenty-month period were to remain in force in Israel, and fifty people a year would enter Israel on an annual average (similar to the recent data). It is quite possible that under such circumstances the state would find it appropriate to limit or even revoke staying in a residency center. Just as constitutional courts need not reach the same conclusions at the same time in regard to a complex issue, the same is true for different legislatures.

Another aspect of the matter is that the restriction of freedom of movement in German law was subjected to the review of the European Court for Human Rights (ECHR) in the matter of Omwenyeke v. Germany, App. No. 44294/04 (2007). The petitioner filed a request for asylum in Germany. In October 1998, he was required to live in the city of Wolfsburg. In April 2000, the petitioner left the city without permission, and did so again in May 2001. Due to these violations, he was fined. It should be noted that the restriction of movement was revoked in July 2001, after the petitioner married a German resident. Thus, the petitioner was subjected to the restriction for a period of some thirty-three months.

The petitioner demanded that the European Court revoke the fine on the basis of the claim that his liberty of movement was infringed (pursuant to art. 2 of the Fourth Protocol to the European Convention on Human Rights). The court denied the petition. The court explained that the said article granted liberty of movement to a person “lawfully within the territory of a State”. However, having violated the restriction of movement, he was not lawfully in Germany: “it is for the domestic law and organs to lay down the conditions which must be fulfilled for a person’s presence in the territory to be considered ‘lawful’”. In accordance with this rationale, the petitioner’s departure from the city deprived him of the right to claim that he was lawfully in Germany, and consequently of his ability to argue that his freedom of movement was infringed. The petitioner’s claim that restricting his freedom of movement disproportionately infringed his right to privacy, freedom of expression, assembly and association was dismissed in limine. While it is true that the court denied the petition on narrow grounds, a critique of the case noted that in view of the decision, the result would have been the same even if the restriction of residence had been challenged on other grounds: “The ECtHR's reasoning – that obedience to residence restrictions imposed by national law is a necessary precondition to lawful presence under the ECHR – leaves little reason to believe that the same court would hear the merits of any case challenging the Residenzpflicht’s basic rules” (Paul McDonough, Revisiting Germany's Residenzpflicht in Light of Modern E.U. Asylum Law, 30 Mich. J. Int’l L. 515, 531 (2009).

It would appear from the above that in the circumstances of this case, comparing the amendment to the Israeli Law to the current German law does not necessarily reflect the whole picture in regard to constitutional review by the courts. Even were one to propose that the Law is undesirable – on which I am expressing no opinion – there is a gap between taking a stand on the desirable law and legally justifying the annulment of the existing law on the basis of the provisions of Basic Law: Human Dignity and Liberty.

To this I would add that the situation of the State of Israel is exceptional in comparison to that of other states, as I noted in the Eitan case:

Israel is the only western country that can be reached by land from Africa. Likewise, there are no other “alluring” destination countries in proximity to Israel to which infiltrators can proceed. At the same time, Israel – as noted by my colleague Justice I. Amit (para.15) – is “surrounded by a ring of hostility” that does not permit it to reach arrangements and agreements with neighboring countries. It should be noted that many of the infiltrators originate from Northern Sudan, a country hostile to Israel. Thus, Israel is distinct from all the other western countries that are also contending with the infiltration phenomenon. This combination of factors places the government, and the legislature, at an extremely difficult starting point. Clearly the situation of the State of Israel is not similar to that of European countries, where one country may share a common border with a number of countries with which it is organized under one political umbrella, and that are prepared to cooperate in a regional solution of the issue of absorbing infiltrators. There are countries that are at the forefront, and their constitutional balances may be more delicate (ibid., para. 9).

To the above factors we should add the fact that Israel’s population is relatively smaller than that of Germany, for example. An addition of two-thousand people to a village or neighborhood numbering twenty-thousand people is far more significant than such an addition to much larger cities. It would therefore appear that there is an array of factual circumstances that permit, at least to some extent, striking a different balance in regard to the period of time for staying in a residency center in comparisons to other countries. Therefore, a comparative survey does not lead to the conclusion that we should order the annulment of the maximum residency period.

            Up to this point, I have placed my emphasis on two perspectives that I believe militate against the conclusion that the amendment should be voided. The first is the division of labor between the Court and the legislature under the circumstances of this case, and the restraint required when the Court considers intervening for a third time in the work of the legislature. The second concerns the character of the amendment. It would appear that a twenty-month period is legitimate. That is what arises from an examination of the purpose, from comparative law in accordance with the factual circumstances, and in view of the transitional provisions established by the majority – twelve months. We should now address the third point, which is that the amendment should not be annulled on the merits.

 

C. Examining the Twenty-Month Residence Period on the Merits

7.         The title of Chapter D of the Law is: “Residency Center for Infiltrators – Temporary Order”. It comprises twenty-two sections, and is constructed level upon level.

            The current version incorporates many changes in comparison to the former version of the Law. In my opinion, it is impossible to examine the twenty-month maximum period divorced from the other sections and from the changes introduced by the Knesset. These are the main points: a residency order may not be issued to certain groups – primarily minors, persons over the age of sixty, a parent with a dependent child in Israel, or a person whose health might suffer as a result of staying in the center (sec. 32D(b)). The Law also establishes grounds for release from the center, for example, a change in circumstances or medical reasons (secs. 32D(g) and 32E(c)). A residency order can be issued only after the infiltrator has been granted an opportunity to present his arguments to the Director of Border Control (sec. 32D(d)). A person living in the center is entitled to health and welfare services, as well as to pocket money (secs. 32E(a) and 32K). A resident of the center may be employed – with his consent – in maintenance and services in the center (sec. 32G(a)). A resident of the center must report for registration between the hours of 8 PM and 10 PM, and must be present in the center during the hours when it is closed – 10 PM to 6 AM. A temporary exemption from reporting can be obtained for a 36 hour period (sec. 32H).

            Therefore, truth be told, the picture is very different from the prior legal situation that was examined in the Eitan case. There is real freedom of movement. The Law grants the Director discretion in regard to issuing a residency order and as to its length. As noted, the upper limit is twenty-months. A hearing must be granted, and the particulars of the individual infiltrator must be examined. Having been granted discretion, the Director must exercise it. Limiting the registration requirement to once a day means that an infiltrator can remain outside of the facility all day. Special bus lines have been provided for the center’s residents, and it is even possible to pursue leisure and cultural activities in the center. Thus, the sum total places the maximum period in a different light.

            In the background of all this stands the purpose of preventing settling, in order to ease the burden of the residents of the cities. Experience shows, as is but natural, that most of the infiltrators choose to live in certain areas of a few specific cities, and not in other places. The purpose of preventing settling and integrating into the labor market accords with the state’s right to establish an immigration policy. It is a clearly sovereign role of the state. A heavy burden should not suddenly be thrust upon a few neighborhoods as the result of a large concentration of infiltrators. This is a legitimate public interest that the Knesset and the government may address. And I would again emphasize that we are concerned with a fixed, limited period that occurs at the first stage of an infiltrator’s arrival in Israel. Incidentally, the President also referred positively to another purpose noted by the State – providing for the needs of the infiltrators (para. 78). It is true that deciding that an infiltrator must stay in the center deprives him of the right to choose. It is possible that if he were asked, he would choose to do without it. But the state is entitled – particularly at the initial stage – to make certain that the infiltrator’s basic needs are provided, a sort of “5 Ws” – such as food, medical care, a place to sleep, pocket money, cultural and leisure activities, and vocational training courses. This, along with freedom of movement during the day.

            The President agreed that the Law meets all the constitutional tests except for the third and last subtest of proportionality – proportionality stricto sensu. I therefore see no need to address all of the tests of the Limitation Clause. As for the last test, which balances benefit against harm, care is called for. This test should not be turned into the kind of judicial discretion that is characteristic of legal decisions in the civil and criminal fields. As noted, the constitutional review focused upon the gap between the period established in the Law and the possibility of establishing a shorter period. To my mind, I find no basis for such a distinction or gap, and certainly not to the extent that would justify annulling the section. There is a restriction of freedom of movement, but it is limited. In practice, the infiltrator must sleep in a particular area that the Law itself does not define geographically. The restriction does not apply during daylight hours. It is even possible to obtain a four-day exemption from registration. In view of the proper purpose, I have doubts as whether this should be seen as an unconstitutional infringement of human dignity and liberty. In my opinion, Chapter D in its present form, including the twenty-month period, passes the constitutional test.

            The matter can be portrayed as follows: The question is whether the residency center is open or closed. In the framework of the previous law, which was up for review in the Eitan case, the residency center could be viewed as a closed facility. That was the case in view of the overall circumstances, including a requirement to report three times a day, the geographical location and the lack of a definite path to release. That is why I expressed the opinion in the Eitan case that part of the registration requirement should be annulled in order to allow actual freedom of movement. However, in the current case, in which freedom of movement outside of the facility is possible all day long, together the other new conditions, it would appear that the residency center easily crosses the line and can now be defined as an open facility. This holds many consequences for the amendment’s constitutionality. Viewed in total, I do not think that establishing a twenty-month period negatively influences the result.

8.         The considerations of the relationship between the Court and the Knesset, the twenty-month maximum period as opposed to a period that is not significantly different, and the examination of the amendment on the merits are interrelated. I will make three comments in this regard.

            First, one cannot ignore the fact that the Knesset indeed “internalized” the need for the amendment as expressed in the majority opinion in the Eitan case. In the matter of detention, although it was possible to set a maximum period in excess of three months, and certainly up to six months, the Knesset sufficed with the shorter period. As for the residency center, the registration requirement was limited to once a day. Presence in the facility is only required between 10 PM and 6 AM. Broad exemptions were established for various populations, as well as grounds for individual release. The maximum period was reduced to twenty months, as opposed to the previous period of at least thirty-six months. When the Knesset acts seriously and with discretion, the Court should not intervene unless there is no recourse. Of course, the Knesset must respect the Court’s instructions, and even the amended law is not immune to review. However, the Court should accord great weight to Knesset legislation carried out as a result of internalizing the constitutional review. It is not proper to “recalculate the route” and refocus the constitutional flaw. Of course, it is the Court’s job to correct clear, profound, fundamental constitutional infringements. But not every possible difference of opinion as to the preferred law fits this category. In this sense, the Court should view “from above”.

            The second comment concerns the practical aspect. According to the State’s supplementary affidavit, there were 1,950 infiltrators in the Holot residency center as of February 2015, and the maximum period stood at fourteen months (also see para. 55 of the President’s opinion). Thus, from a practical perspective, the infiltrators will be released close to the date of this judgment under the existing law. It would seem that, for the time being, it would be better not to change the situation dramatically. The experience accrued from the release of the first residents may help the Director acquire a complete picture and ensure optimally efficient release. This is another reason, which does not stand alone, for why I believe that it would not be proper, at present, to amend the Law as proposed.

            The third comment concerns Justice Vogelman’s position that sec. 32T should also be annulled. That is the section that permits transferring an infiltrator from the residency center to detention for a disciplinary infraction. Examining the section reveals that different periods – ranging from 15 to 120 days – for various disciplinary infractions. The maximum period is relevant when an infiltrator is absent for more than 90 days from his assigned reporting date. There is a distinction between a first and second violation. It is further emphasized that a detention order may not be issued prior to a hearing, and that once the order is issued, the resident must be brought before the Detention Review Tribunal within four days at most. In the Eitan case, my colleague addressed the problem of granting “transfer authority” to the Director, primarily in view of the one-year maximum period that was established there, and due to the absence of procedural safeguards – first and foremost, the absence of automatic judicial review. As noted, these defects have essentially been remedied. The current procedures include a hearing and automatic judicial review, and the maximum period is 120 days. There would seem to be a clear interest in enforcing discipline in the residency center. The periods of detention are short, graduated, and adapted to the nature of the infraction. I find no constitutional defect in this section. I agree with the reasoning set out in the opinion of my colleague Justice Joubran in this regard, which reinforces my conclusion.

            In conclusion, in my opinion there are no grounds for annulling the Law from a legal perspective, from a principled perspective, in terms of the relationship between the Court and the Knesset, nor even for practical reasons.

 

The Opposing Humanitarian Interest

9.         In reaching my conclusion, I am not ignoring the complex, difficult situation of the infiltrators. The vast majority of them suffered a bitter fate in their countries of origin, which – in general – lack the living conditions that are taken for granted in our society and other progressive societies. The infiltrators are a group, but their suffering and harsh conditions are not merely the lot of the group, but of each and every individual. We must protect the rights of disadvantaged groups, and of their individual members.

            But that is but one side of the coin. The petition presented the basis for the suffering and the impositions in the lives of another disadvantaged group – the residents of the neighborhoods in which large concentrations of infiltrators developed, such as south Tel Aviv. The clear impression is that they are not crying in vain. The call for this Court to strike a balance does not derive from a rejection of the other, but rather from the seriously deteriorating living conditions of the residents. As I noted in the Adam case, “the primary, even if not the only victims of the sudden, massive illegal immigration are the members of the weakest socio-economic strata…public welfare in the broadest sense, and the sense of public safety have all suffered serious harm” (para. 2). Here too, the group is a collection of individuals. Many of them do not enjoy the freedom to change their place of residence at the drop of a hat, if at all. The material shows that the suffering of this group is real and harsh.

            Of course, it is no easy matter to compare suffering to suffering, group to group, and individual to individual. Moral questions loom in the background. However, it is the job of the Court to decide disputes. The importance of the factual examination in every proceeding shows that a judgments must not be theoretical or divorced from life. On the contrary, we rule in the field of reality. What weight should we therefore give to the conflict that has arisen, and to the two sides of the coin?

            The matter depends upon the nature of the injury. As I have said in the past, the time has come for a constitutional system based upon Basic law: Human Dignity and Liberty, enacted more than twenty years ago, to rank rights (see, e.g., para. 4 of my opinion in HCJ 466/07 Gal-On v. Attorney General (Jan. 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary, (para.3)]). In this manner, the system will develop and the proportionality test stricto sensu will accrue more objective content. The consequence of our matter is this: where, as in the case before us, we are concerned with a serious infringement of human dignity, such as detention, there is no room for considering the consequences of release of an infiltrator for the residents. Thus, for example, in the Adam case we explained that the three-year period was, in practice, a punitive measure that inflicted severe constitutional harm to the infiltrator, and that it could not be vindicated by the suffering of another group. In the Eitan case, I expressed the opinion that a one-year period met the constitutional test. However, I agree that if another judge is of the opinion that the period of detention is too long, the consideration of the residents’ suffering is not decisive.

            In the matter before us, the decision rules are different. First, the intensity of the infringement caused by being held in a residency center is certainly less than that resulting from being held in detention. We are concerned with a restriction of freedom of movement of a different sort. Moreover, even according to the majority, the disagreement concerns the length of the period. Alongside this, the current constitutional review is premised upon the purpose of preventing settling. It is agreed that this is a proper purpose. Its concern is alleviating the burden upon the residents. It is also agreed that the reality that has been created in the relevant cities raises not inconsiderable problems (para. 67 of the President’s opinion). That being the case, it is clear that weight should be attributed to the harm caused to the residents as a result of the annulment of various arrangements in regard to the residency center. While this consideration is less relevant in regard to detention, it is very relevant in regard to the residency center. This point requires striking a balance between two disadvantaged communities.

            It should be clear that it is not my intention to equate the two harmed groups and decide which suffers more. At first glance, the answer is clear. But there is an additional consideration: citizens of the state as opposed to infiltrators who came here illegally and not through the border crossings, regardless of what the circumstances may be. Let us not forget that in view of problematic situations in various countries, every state must establish an immigration policy. That is legitimate. As I noted in the Adam case, Jewish law and history are particularly sensitive to the two competing sides: on one hand, the command to love the stranger and care for him, and sensitivity to the refugee against the background of our people’s wanderings throughout history; on the other hand, the principle that “the poor of your city take precedence” [TB Bava Metzia 71a – ed.]. Poverty is not only measured in monetary terms (see para. 2 of my opinion, ibid.).

            Indeed, there are situations in which an infiltrator must not be deported. But we are not speaking of deportation, but rather of delineating the conditions for the first period of staying in the country. The humanitarian interests of the residents must be part of the equation. Together with the other reasons detailed above, it argues for denying the petition.

10.       In conclusion, in my opinion, the petition should be denied in its entirety.

 

Justice E. Hayut:

1.         For a third time, this Court is called upon to annul provisions of the very same law – the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law), which is no common occurrence. However, and despite the complexity involved, it would appear that the dialogue between the Knesset and this Court as a result of the two prior petitions (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013); HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case)) made a not insignificant contribution to reducing the infringement of human rights under that Law. This was made possible because following what was stated in these two previous petitions, the Knesset was willing, time and again, to make an effort to amend the Law and find appropriate constitutional solutions.

2.         The amended provisions in Chapter A of the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amendment under review) now establishes, inter alia, that the period during which infiltrators may be held in custody will not exceed three months, in which regard I concur with the position of my colleague the President that these provisions pass the tests for constitutionality, and that the third petition before the Court should be denied to the extent that it concerns them. As opposed to that, further dialogue with the Knesset is required so that it will reconsider the arrangement concerning the maximum period for holding a person in the residency center. As my colleague the President pointed out, coercively holding a person in a residency center for a maximum period of twenty months has no parallel elsewhere in the world (paras. 101-105 of her opinion), and it is unconstitutional. This is the case, given the infringement of the constitutional rights of those held in the center for such a lengthy period, which is not directly proportional to the benefit derived from achieving the purposes for which the amendment to the Law was enacted (in regard to the purposes of the amendment, I concur with what is stated in the opinion of my colleague Justice Vogelman in paras. 16-28, and I see no need to add to what is stated there).

3.         The disproportionate harm to those held in the residency center is brought into sharper view in light of the very slow pace at which the State processes asylum requests submitted to the RSD, and in view of the negligible percentage of requests approved by the State to date.

            In the Eitan case, my colleague Justice Vogelman pointed out:

A comparative view shows that the world-wide percentage of approval for asylum requests submitted by Eritrean and Sudanese nationals – the countries of origin of majority of the infiltrators in Israel – are significantly greater than the percentage in Israel. In 2012 (the last year with updated figures), the worldwide percentage for the recognition of Eritreans as refugees was 81.9%, and 68.2% for Sudanese (see the current Statistical Yearbook of the United Nations High Commissioner for Refugees, pp. 102, 104). According to the figures provided by the State, which are current as of March 3, 2014, it appears that less than 1% of asylum requests submitted in Israel by Eritrean nationals were approved, and not even one requests from Sudanese nationals was approved […] (para. 35).

From the supplementary affidavit submitted by Respondents 2-5 on Feb. 16, 2015 it appears that there has been no change in the rate of processing asylum requests since the judgment in the Eitan case, and the affidavit shows that the number of approved requests remains negligible. Thus, from July 2009 until Feb. 5, 2015, a total of nine asylum requests submitted by Sudanese and Eritrean nationals were approved, and 1,037 requests were denied. This data puts the rate of approval for asylum requests submitted in that period by Sudanese and Eritrean nationals in Israel at about 0.9%. When this figure is compared to the percentage of asylum requests of these nationals worldwide, the comparison itself raises questions as to the manner in which the state examines and decides upon such requests, as what comes out is a product of what goes in (compare: HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister, paras. 18-20 of the opinion of President Barak (Feb. 17, 2006) [http://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-a... AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality, paras. 45-47 (Sept. 14, 2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je...). This is further reinforced by the data provided in the supplementary affidavit in regard to the rate of the state’s processing of asylum requests. The supplementary affidavit states that “[…] the order of priorities in processing asylum requests of infiltrators originating from Eritrea and Sudan will be such that priority will be given to examining requests of those staying in the residency center”. However, an examination of the data provided in the affidavit shows that, in practice, the rate of processing those requests is far from satisfactory. Thus, as of the day of the submission of the affidavit, of 3,165 asylum requests submitted from July 2009 to Feb. 5, 2015 by infiltrators originating from Sudan, 2,184 requests (some 70%) remained pending, and of 2,408 requests submitted by infiltrators originating in Eritrea, 1,335 (some 55%) remained pending. An important figure worth mentioning in this regard is that 1,521 of the 1,940 infiltrators held in the residency center as of Feb. 9, 2015 have submitted asylum requests, and most (862 infiltrators) did so while being held in the residency center.

4.         In light of this conduct by the state in regard to Sudanese and Eritrean nationals, it would appear that they are trapped in an continuing, impossible state of normative fog in regard to their status, along with all its severe ramifications for their rights (see and compare: my opinion in AAA 8908/11 Asafu v. Minister of the Interior (July 17, 2012)). This is so because, on the one hand, they are not repatriated directly to their countries as a result of practical problems (North Sudan) or the situation in that country and the non-refoulement principle (Eritrea), but on the other hand, the state does not decide upon their asylum requests within a reasonable period of time, and when it does consider them, it only approves a negligible number, which itself raises questions in view of the approval rates in regard to asylum requests of comparable nationals in other parts of the world.

5.         Lastly, in regard to the disagreement between my colleagues the President and Justice Vogelman in the matter of the Director’s authority under sec. 32T to order the transfer of an infiltrator to detention, I am of the opinion that although the arrangement is not problem free, we should not adopt the drastic step of nullifying the legal provision. This is so for the reasons presented by the President, and in this regard I also concur with the opinion of my colleague Justice Joubran that we should not assume that the Director will “exploit” the maximum periods established in the Law to their fullest extent (para. 8 of the opinion of Justice Joubran).

 

Justice Z. Zylbertal:

            I concur in the opinion and conclusion of my colleague President M. Naor in regard to all the issues raised in this petition.

            Because I was bothered by the question of the relationship between constitutional and administrative review of the core issue in regard to the provisions of Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended in the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the Amended Law), I have chosen to add a few parenthetical comments.

            My colleague the President found that the maximum period of time established by the Amended Law for holding infiltrators in the residency center (twenty months) exceeds what is necessary and is disproportionate. This is so, inter alia, in view of the primary purpose undergirding the possibility of ordering that an infiltrator stay in the residency center – preventing infiltrators from settling in the urban centers. The President found this purpose to be proper, and I agree. As my colleague explained, in view, inter alia, of the limited number of places in the residency center, advancing the said purpose does not focus upon removing a specific infiltrator to the center, but rather to alleviating the burden upon the residents of the urban centers by means of directing part of the infiltrators to the residency center at any given time (and for our purpose, it makes no difference which infiltrator the Director orders to the center). In this situation, and in order to advance the said purpose of moving the place of residence (as opposed, for example, to the purpose of preventing the possibility of working in Israel, regarding which my colleague the President refrained from deciding whether it is a proper purpose, and which, in my view, is doubtfully proper), a maximum period of twenty months residence in the center is disproportionate.

            However, we should also turn our attention to another factor noted by my colleague the President – as well as by my colleagues Justices U. Vogelman and I. Amit – in reaching the said conclusion in regard to the lack of proportionality of the maximum residence period established by the Law. I am referring to the location of the Holot residency center.

            The Law does not establish the location of the residency center. Section 32B of the Law instructs that the Minister of Public Security may declare in an order that a particular place will serve as a residency center for infiltrators. The location, which was chosen prior to the amendment of the Law under review, is in the Holot facility located some seventy kilometers southwest of Beer Sheba, near the Israel-Egypt border. We are thus concerned with a location that is very significantly removed from populated areas in which the infiltrators might find work or conduct proper, reasonable, routine life. As Justice U. Vogelman noted in the Eitan case (HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014)), at para 126 of his opinion: “Holot [“sands” – ed.] is just what it is named – surrounded by sand and more sand. It is far from any populated area”.

            Choosing the location of the residency center is not part of the primary legislation under constitutional review, but rather was accomplished by means of an administrative decision made by the authorized agency. It may be assumed, as would appear from the opinions of my colleagues the President, and Justices Vogelman and Amit, that had a different location been chosen, one not “at the edge of the desert” but at the “outskirts of the cities”, which would make it possible to leave the center in the morning and return in the evening, while making it possible for the center resident to find work and lead a life of basic liberty such that we would indeed be concerned with a truly “open” center, then it is possible that the conclusion as to the disproportionality of the maximum period for staying in the center may have been different.

            Thus, the conclusion as to the proportionality of the established maximum period is coupled with the manner in which the Law was implemented by virtue of an administrative decision. Justice Vogelman addressed this incidentally to his opinion in finding that this constitutional petition is not the proper forum for examining questions that are administrative in principle. However, Justice Vogelman saw fit to add that “a different implementation of the Law could also have affected the examination of its proportionality”. Justice Amit added that “…the Law’s proportionality is not examined in a vacuum, but rather in the context of a particular reality”.

            Thus, from the perspective of the length of the period of residency in the center, the Law before us may not necessarily be unconstitutional by reason of its provisions, but perhaps only due to the manner of the implementation of its provisions. In this regard, for example, the situation in the matter before us differs from the issue addressed by this Court in the petition challenging the possibility of privatizing a prison (HCJ 2605/05 Academic Center of Law and Business v. Minister of Finance, (Nov. 19, 2009) [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-...). In the Prison Privatization case, Justice E.E. Levy, dissenting, noted that according to the approach of the majority “the violation of rights resulting from the privatization is so serious that nothing can mitigate it. By way of analogy, even if the private prison were to promise a seven-day feast for everyone in it, this would not mitigate the degradation and loss of liberty that is the lot of those imprisoned in it, because they are at the mercy of a private concessionaire” (para. 9 of the opinion of Justice E.E. Levy). That is not the case in the matter before us, having found that the very possibility of ordering that an infiltrator stay in a residency center is not, itself, unconstitutional.

            The above would seem to lead to the possible conclusion that there is no need to annul the provision concerning the maximum length for staying in the residency center, and that our focus should be upon the reasonableness and legality of the administrative decision as to its location.

            However, I am of the opinion that the circumstances taken in their totality can only lead to the conclusion reached by my colleague the President.

            First, the amendment was enacted in view of the residency center already existing in Holot, and with this reality and no other in the legislature’s mind. Indeed, the concrete implementation of a Law as carried out in practice can constitute part of the reality in which the Law was “born”, and in appropriate circumstances may be incorporated into the examination of the law’s proportionality, as if it were part of the law itself. As noted, that can be the case where the “primary arrangement” is not found to be manifestly unconstitutional, but rather the lack of proportionality lay in the secondary arrangement of one of the aspects of the “primary arrangements”.

            Second, the case law of this Court has long recognized the relationship between examining the constitutionality of a law and the concrete manner of its implementation by the executive, for example in regard to the question of when a constitutional challenge is “ripe” (see: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014)). Just as a lack of factual data concerning the concrete implementation of a law may sometimes prevent the possibility of its constitutional review, so the existence of such data may influence the results of its constitutional review, for were it not so, then there would be no logic in waiting for their accrual as a condition for “ripeness”. Justice E. Hayut addressed this in the above case, stating: “…there may be cases in which the law appears constitutional on its face, and only the manner of its implementation reveals its unconstitutionality.”

            In my opinion, the concrete implementation of the provisions of Chapter D of the Law in regard to the maximum period for staying in the center, when it is established that the residency center will be in Holot, highlights their unconstitutionality, which might have been much more “mitigated”, or even non-existent, had the implementation been different and more humane, and had appropriate weight been given to the basic rights of the infiltrator population that is subject to the policy of non-removal (at least temporarily) from Israel. While the state is entitled to decide where the infiltrators may live in order to ease the distress of the residents of the cities, it may not do so by trampling their dignity. “The stranger who sojourns with you shall be to you as the native among you, and you shall love him as yourself; for you were strangers in the land of Egypt” (Lev. 19:34).

 

Justice Y. Danziger:

            Yet again, for a third time, we are addressing a petition challenging the provisions of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954.

            Inasmuch as we have already addressed this law and the issues a hand at length in the framework of the two prior petitions, I believe that it would be best that I suffice in concurring in one of the two primary opinions written by my colleagues President M. Naor and Justice U. Vogelman.

            I concur in the opinion of the President and with her conclusion in regard to all the issues raised by the petition before the Court.

 

Justice H. Melcer:

1.         I agree with the main points of the learned, comprehensive opinion of my colleague President M. Naor, and concur without reservation with that part in which she addresses sec. 30A of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law or the Prevention of Infiltration Law) that was introduced into the Law by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014 (hereinafter: the 2014 Amendment).

            I therefore concur with the President’s reasoning and her conclusion that the provisions of the said section, including the maximum three-month custody period for an infiltrator (who entered the country after the publication of the 2014 Amendment) as defined by the Law, passes the constitutionality test. At this point it should be noted that in my opinion, the executive and the legislature properly and respectfully internalized this Court’s comments, and took into account  what was decided in HCJ 7385/13 Eitan - Israeli Immigration Policy Center v. Government (Sept. 22, 2014) (hereinafter: the Eitan case).

2.         The matter of Chapter D of the Law – which was also enacted in the framework of the 2014 Amendment – is much more complex, and consequently my proposed solution will be so, as well. This solution rests upon certain elements deriving from the reasons presented here in the various opinions of my colleagues. It was fashioned with due respect for the basic rights of the citizens of Israel and the residents of the neighborhoods in which the infiltrators have settled, while providing the required protection of the rights of the infiltrators as human beings, along with consideration of the interests of the state, as such, and the desired dialogue that should be maintained between the Knesset and the Court.

            I will therefore proceed by presenting first things first, and last things last.

3.         This is the third time that this Court is required to address the constitutionality of the statutory amendments to the Prevention of Infiltration Law to contend with the problem of infiltration from Africa, as described in the opinion of the President. In both prior cases (HCJ 7146/12 Adam v. Knesset (Sept. 16, 2013) (hereinafter: the Adam case), and the Eitan case), the Court annulled certain provisions of the Law, and pursuant to the Eitan case, the Knesset enacted the 2014 Amendment, which the Petitioners challenge on constitutional grounds.

            Admittedly, the provisions of the 2014 Amendment, enacted as a temporary order for three years, are an improvement over the previous amendments of the Law. However, the case law provides that even when a legislative change comprises only ameliorating provisions, it is proper to reexamine the balances struck by the law when it is brought before the Court for judicial review (see and compare: HCJ 6055/95 Tzemach v. Minister of Defense, IsrSC 53(5) 241 (1999) [http://versa.cardozo.yu.edu/opinions/tzemach-v-minister-defense]; my opinion in HCJ 6784/06 Major Schlitner v. Director of IDF Pension Payment, Jan. 12, 2011)). This rule also applies to temporary orders (see: HCJ 466/07 Gal-On v. Attorney General (Jan. 11, 2012) (hereinafter: the Second Family Unification case) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]). In the Second Family Unification case, the High Court of Justice reexamined the constitutionality of the Nationality and Entry into Israel (Temporary Order) Law, 5763-2003, in view of changes that had been introduced. The Court majority approved the constitutionality of that temporary order.

4.         Even elsewhere in the world, the constitutionality of a law may occasionally be reexamined upon a claim that the legislature did not properly respect fundamental constitutional rights as interpreted by the court, or ignored other relevant constitutional provisions (see, for example: in the United States: Shaw v. Reno 509 U.S 630 (1993); Shaw v. Hunt 517 U.S 899 (1996); in Germany: the Constitutional Court’s decision of July 2008, 2 BvC 1/07 2008, and its decision of July 2012, 2 BvE 9/11 2012; in France: the Constitutional Court’s HADOPI 1 decision of June 10, 2009, and its HADOPI 2 decision of Sept. 22, 2009. For a description of the proceedings and issues addressed there, see my opinion in CA 9183/09 The Football Association Premier League Limited v. A., para. 6 (May 13, 2012)).

5.         The comparative law to which I refer demonstrates that the second time the legislature – and thereafter the court – address a law whose constitutionality will be scrutinized, both of the relevant branches display a maximum of care and consideration due to the need for mutual respect. That is all the more so when we are concerned with a third instance of judicial review of legislation, which is very unusual, although possible and justified in circumstances in which the parliament, in enacting a law, substantially deviates from fundamental constitutional rights as interpreted by the court (see, for example: in Germany: the proceedings of the Constitutional Court in regard to the Inheritance and Gift Tax Law (a) judgment of June 22, 1995 in  BVerfG, 1995 2 BvR 552/91; (b) judgment of Nov. 7, 2006 in BVerfG, 2006 1 BvL 10/02; (c) judgment of Dec. 17, 2014 in BVerfG, 2014 1 BvL 21/12; in Italy: the proceedings in the Constitutional Court in regard to the Parliamentary and Ministerial Immunity Law (against the background of the prosecution of Prime Minister Silvio Berlusconi): (a) judgment of Jan. 2004 (Law 140/2003); (b) judgment of Oct. 2009 (Law 124/2008); (c) judgment of Jan. 13, 2011 (Law 51/2010)).

6.         Beyond the description of comparative law on these issues, presented in paras. 4-5 above, there is an additional question in this regard as to whether a reviewing court annulling a law should instruct the legislature as to how to act in the future so as to enact a law that will be immune, so to speak, to constitutional scrutiny, or whether the court should suffice with a constitutional examination of the law brought before it after the legislature has had its say.

            There is much theoretical discussion of the dialogue between the judiciary and the legislature that develops in such situations (for the theoretical literature on the subject, see the article by Liav Orgad and Shay Lavie, Judicial Directive: Empirical and Normative Assessment, 34 Tel Aviv U. Law Review 437, 440 (2011) (Hebrew) (hereinafter: Orgad & Lavie, Judicial Directive), and see: Ittai Bar Siman-Tov, The Puzzling Resistance To Judicial Review Of The Legislative Process, 91 B.U. L. Rev. 1915, 1954-1958 (2011); Aharon Barak, The Judge in a Democracy 382-389 (2004) (Hebrew) (English: Princeton, 2008) ; Gideon Sapir, The Constitutional Revolution in Israel: Past, Present & Future 219-222 (2010) (Hebrew)).

            The answers to this question can be classified into three categories, although the dividing line between them is sometimes blurred (the analysis, references and presentation below are based upon the article Orgad & Lavie, Judicial Directive):

(a)        One model is that of “judicial advice”. Judicial advice is an approach that allows the judge to recommend necessary legislative changes to the legislature. It does not express a demand, but rather a legal preference, while leaving discretion to the legislature (compare: Nitya Duclos & Kent Roach, Constitutional Remedies as "Constitutional Hints": A Comment on R. V. Schachter, 36 McGill L.J. 1 (1991)).

(b)        A second model is that of the “constitutional roadmap”. The constitutional roadmap is a technique that allows the judge to recommend to the legislature, expressly or impliedly, how to overcome the defects in the current law. In the constitutional context, it constitutes a sort of recommended path to correcting the constitutional defect found by the court (see: Erik Luna, Constitutional Road Maps, 90 Crim. L. & Criminology 1125 (2000)).

(c)        A third model is the “fire alarm”. The fire alarm is a technique that allows the judge to warn the legislature of defects in the current law. In the constitutional context, this concerns cases in which the court just barely accepts the constitutionality of the law, but explains that although the law is “still constitutional”, it may become unconstitutional in the future (see: Neal Kumar Katyal, Judges as Advicegivers, 50 Stan. L. Rev. 1709, 1719 (1998)).

7.         In Israel, in HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance, IsrSC 51 (4) 367, 412-413 (1997) (hereinafter: the Investment Managers case), President A. Barak employed the “constitutional roadmap” approach, informing the Knesset of the alternatives that it might adopt in order to create an arrangement that would pass constitutional review in place of the provision that the Court had declared void in that case, emphasizing: “Choosing the proper balance point is given to the legislature” (ibid.).

            A tendency toward approach (a) appeared in later decisions (for example, by some of the justices in the Eitan case), or toward approach (c) (for example, in the Admissions Committees case: HCJ 2311/11 Sabah v. Knesset (Sept. 17, 2014), or the judgment in the matter of raising the electoral threshold:  HCJ 3166/14 Gutman v. Attorney General (March 12, 2015)). However, there has been no decisive verdict on this issue to date, and I do not propose that we adopt one here. However, I do think it appropriate to emphasize that it would be proper, in my opinion, to tell the legislators not only what is not constitutional, but also to provide them with general guidelines as to what can be expected to meet constitutional requirements, as President Barak did in the Investment Managers case. Beyond that, I believe that the said dialogue must continue openly, comprehensively and with mutual respect.

            This is the place to note that in the meantime a tendency has developed, at least in Europe, towards a fourth approach that takes the view that a court that declares a law unconstitutional must not suggest to the (national) legislature how to fix the law (see: the majority opinion in Hirst v. United Kingdom (No. 2) 42 EHRR 41 (2006), decided by the European Court of Human Rights, and which was influenced, inter alia, by the need to grant relative freedom to the EU member states. As opposed to this, see the leading article supporting substantive dialogue: Peter W. Hogg, Allison A. Bushell Thornton & Wade K. Wright, Charter Dialogue Revisited – Or “Much Ado About Metaphors”, 45 Osgoode Hall L.J. 1 (2007)).

8.         Now, having presented the current comparative law on the subject and the theoretical streams that indicate the possible approaches for treating it, I will presently return to the subject matter before us. However, before proceeding to the specifics, I would make two, further prefatory comments:

(a)        Our consideration of Chapter D of the Law is a second instance of judicial review (and not the third) of the arrangement, inasmuch as the institution of a residency center for infiltrators was not part of the law examined in the Adam case.

(b)        On its face, it would seem that the move from a “judicial advice” approach to one telling the legislature precisely how it should fix the Law (limiting a stay in the residency center to no more than one year) is too extreme, and almost entirely removes the “legislative margin of appreciation”. For this reason, I concur with part of the criticism expressed in the opinion of my colleague Justice N. Hendel. But while according to his basic approach, this should lead to the denial of the entire petition, I am of the opinion that there is room for an intermediate solution. This solution will preserve both the proper “margin of appreciation” and the boundaries of judicial review, and will even lead to greater proportionality in the treatment of infiltrators and their rights, while preserving the interests of the state and of the residents of the neighborhoods in which the infiltrators have settled, as I will explain in detail below.

9.         My colleague the President concludes that under the present circumstances, preventing settling in the urban centers is a proper purpose. I am also of the opinion that it can serve to lessen the hardships of the residents of the communities in which the infiltrators have chosen to live.

            What then is the primary proportionate means (the least infringing of the rights of the infiltrators) for achieving the prevention of settling in the urban centers?

            In Europe (as well as in Israel in 2009), the solution adopted was that of “population dispersal” by way of “designating” areas for the residence of infiltrators (whose number in Israel is now some 45,000 men, women and children, which can be viewed as “mass influx” in Israeli terms). Indeed, at the time, the Minister of the Interior made a decision that asylum seekers would not be permitted to stay and work in the geographical region between Hadera and Gedera. Various human rights organizations (some of which are petitioners in this petition) immediately petitioned to challenge that decision (which, perhaps should have been established in an express statue, as was done in Germany, for example) – see: HCJ 5616/09 African Refugee Development Center v. Ministry of the Interior (Aug. 26, 2009). In response to that petition, the respondents informed the Court that the minister had decided to retract the said decision and the petitioners withdrew their petition, with all the parties reserving their rights and arguments should the restriction be reinstituted.

            Retrospectively, it may be unfortunate that the idea of “population dispersal” (not necessarily restricting residence and work in the Hadera-Gedera area, but rather by proportional distribution throughout the country) was not tried and was not judicially scrutinized, as there can be no doubt that the solution would be preferable from the perspective of the Petitioners to that of a remote residency center surrounded only by sand and desert. It would therefore appear that the rights organizations should draw conclusions from their haste to petition at the time, as “if you have seized too much, you have seized nothing” [TB Rosh HaShana 4b; Yoma 80a – ed.].

10.       In addition, the German Asylum Procedure Act (AsylVfG), which permitted “attaching” infiltrators into Germany to specific geographical areas, was subjected to constitutional review and withstood the challenge. Moreover, the said law also established, inter alia, two provisions stating that a person who violated the law’s provisions would be arrested and criminally prosecuted, and that the examination of his asylum request would cease. This provisions were also approved by the German constitutional court (see: the German judgment of April 10, 1997, BVerfG 2 BvL 45/92). A petition to the European Court of Human Rights was also denied (see: Omwenyeke v. Germany, App. No. 44294/04 (2007)). For details in regard to the said judgment of the European Court of Human Rights, see the opinion of my colleague Justice Hendel.

            We should note that Germany recently limited even the provisions permitting “geographical restriction” of infiltrators, as well as the term of their incidence.

11.       To return to Israel, now that we have approved the purpose of preventing settling in the urban centers, and in view of the fact that a very significant number of infiltrators still lives in Israel, it would seem to me that the legislature should reconsider the possibility of implementing the decision in regard to dispersal of the infiltrator population, inasmuch as it is a much more moderate solution than transferring infiltrators to residency centers, and it would achieve the same purpose, perhaps even more efficiently (if this is actually the true purpose, and not the coerced departure of the infiltrators from Israel). Moreover, a person who violates the geographical restriction can be subjected to an “additional level of restriction” (in accordance with the “ladder model” of proportionality), i.e., placement in a residency center (Germany and the European Union have even recognized the constitutionality of transfer to the criminal path in such situations). In such a case, it would seem that even a maximum period of twenty months would not lead to nullification.

            Such an approach, which was already recommended by the President in the Eitan case (after noting in the Adam case that finding humane solutions for the infiltrators already living among us could be the state’s finest hour), has now become a legal imperative in the framework of the proportionality requirement in order to realize the purpose that we have recognized. It even has some grounding in the provisions of sec. 32T(d) of the Law.

            It might even be argued that not adopting this path might lead to viewing the Law as incompatible with the values of the State of Israel as a Jewish and democratic state, particularly in view of the European standard and the German practice.

            It is not yet too late to attempt to implement this model.

12.       Support for my approach, which seeks to achieve the permitted purpose without undesirable side effects, can be derived – indirectly – from the Israeli authorities’ action (actually inaction) in regard to requests to recognize infiltrators as refugees, to the extent that such have been submitted prior to the issuance of a residence order. Petitioners 1 and 2 are sad, living examples of this, particularly in view of the fact that the brother of Petitioner 1, who also fled Eritrea and whose circumstances would appear similar to those of Petitioner 1, was granted such recognition by Switzerland some time ago.

            In her opinion, my colleague Justice E. Hayut presented edifying data in this regard, deriving from the supplementary affidavit submitted by the State on Feb. 16, 2015, which reveal shocking incompetence, if not deliberate negligence, in the treatment of such requests (even those submitted to the competent authorities before the applicants were called to the residency center).

            Moreover, of the requests that were nevertheless examined, only an insignificant number (some 0.9% of those submitted by Sudanese and Eritrean nationals) were granted, which is negligible in comparison to the rate of approval for asylum requests of similar nationals in other western countries.

            I will now address the consequences of the above for the matter before us.

13.       My colleague Justice E. Hayut directs us to HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. Prime Minister (Feb. 17, 2006) [http://versa.cardozo.yu.edu/opinions/supreme-monitoring-committee-arab-a..., and to AAA 343/09 Jerusalem Open House for Gay Pride v. Jerusalem Municipality (Sept. 14, 2010) [http://versa.cardozo.yu.edu/opinions/jerusalem-open-house-gay-pride-v-je... (hereinafter: the Open House case). Those petitions were primarily based upon the principles of administrative law, and the “foot dragging” of the authorities in those cases ultimately led to the granting of the petitions.

                        Moreover, such inaction also bears constitutional significance (see the comments of my colleague Justice E. Hayut on this subject in the Open House case), as I shall now explain:

            First, it would appear that the inaction primarily harms minorities or disadvantaged communities.

            Second, in our context, inaction may testify that the declared proper purpose (preventing settling in the urban centers), which we accepted, is not the main purpose, and that it is accompanied by other, hidden purposes of no less importance, in regard to which the state is – prima facie – acting contrary to the obligations of its agencies in the framework of Basic Law: Human Dignity and Liberty (sec. 11), and in apparent contravention of the international obligations that the state undertook in ratifying the Convention Relating to the Status of Refugees (1951), of which Israel and various Jewish organizations were among the initiators and drafters (see: Tally Kritzman-Amir’s Preface to Where Levinsky Meets Asmara: Social and Legal Aspects of Israeli Asylum Policy, 12-14 (2015)).

            The obligations that are seemingly contravened here are the obligation to examine asylum applications as soon as possible, and not to take any steps that might frustrate the possibility of their approval, see and compare: Directive 2013/32/EU of the European Parliament and of the Council, Article 31; and see: James C. Hathaway, The Rights of Refugees under International Law, pp. 180-181 (2014).

            At this point we should take not of sec. 32D(1) of the Law, which establishes as follows:

Notwithstanding the provisions of section 2(a)(5) of the Entry into Israel Law, an infiltrator who is subject to a residency order will not be granted a visa and permit for residency in Israel under the Entry into Israel Law.

            The provisions of this section would seem to show that in the case of a person issued a residency order, the possibility that his request for recognition as a refugee will be approved is, in practice, frustrated if it was submitted prior to the issuance of the residency order.

            This would constitute the state’s renunciation of its above obligations, and in such circumstances the state might be deemed as estopped by virtue of the good-faith principle from raising arguments to ground the residency order, or even to justify the relevant legislation. This principle is established in sec. 43(a) of the Contracts (General Part) Law, 5733-1973, and it applies by virtue of sec. 61(b) of that law “to legal acts other than contracts and to obligations that do not arise out of a contract” (see and compare: AAA 1659/09 Ministry of Construction and Housing v. Malka, para. 18 (Nov. 17, 2013) and the references cited there).

            It would therefore appear that the geographical restriction solution for infiltrators (and here it would be proper to consider proportional allocation among all the various parts of the country, as noted) would provide a balanced response to the problem, and in my opinion, it should therefore be considered. The reasoning in regard to the purposes of the 2014 Amendment concerning the residency center are appropriate here as well, and in this regard I concur with the comprehensive opinion of my colleague Justice U. Vogelman and his comments on enforcement, which – in the absence of clear, controlled criteria –  appears selective in terms of who is issued a residency order.

14.       The consequence of all the above is that without reconsidering the alternative of geographical restriction – which is less harmful and should therefore be established by law prior to implementing the alternative of placement in a residency center – the period of a stay in the residency center cannot reach twenty months. Moreover, without such an alternative, it is possible that in the future, depending on the manner of implementation, it may be argued that the law is not what it purports to be (compare HCJ 121/68 Electra (Israel) Ltd. v. Minister of Industry and Trade, IsrSC 22(2) 552 (1968) in regard to subsidiary legislation). Therefore, only if the geographical restriction alternative is approved will it be possible to accept the current restriction of the residency arrangement (residency in the center for up to twenty months), subject to the additional assumption that even then the said authority will be exercised with restraint, and that it will generally not be implemented to its fullest extent (compare: HCJ 2442/11 Shtanger v. Speaker of the Knesset (June 26, 2013) [http://versa.cardozo.yu.edu/opinions/shtanger-v-speaker-knesset] (hereinafter: the Shtanger case)).

            The solution that I am proposing thus involves returning the Law to the Knesset so that it can adopt one of the two paths outlined above, or a hierarchic combination of them, or some other proportionate solution that it may deem suitable in light of our comments. In this manner, the “margin of legislative appreciation” (also called the “margin of proportionality”) will also be appropriately maintained, see: the Shtanger case, and the majority opinion in the Boycott case (HCJ 5239/11 Avneri v. Knesset (April 15, 2015) [http://versa.cardozo.yu.edu/opinions/avneri-v-knesset]).

15.       Before concluding, I would add that I also agree with the approach of the President and the other concurring justices in regard to the validity of sec. 32T of the Law, which in my opinion, should also be exercised with restraint and in proportion (again compare: the Shtanger case).

            In addition to the reasons presented by the President, I also agree with the my colleague Justice S. Joubran’s distinction in regard to the punishment of soldiers, corrections officer and police as opposed to infiltrators (and those authorized to order it). Grounds for this distinction can also be found in sec. 9 of Basic Law: Human Dignity and Liberty. On the interpretation of this section, see: Hanan Melcer, The IDF as the Army of a Jewish and Democratic State, Rubinstein Volume 347, 370-389 (2012).

16.       Having arrived at this point, a question remains as to my view of the transitional provision required as a result of this decision. I agree with holding the declaration of voidance in abeyance, as proposed by the President in para. 115 of her opinion. However, I do not think that the exception to the said suspension should apply to all of those currently in the residency center, as proposed by the President, but only to those among them who submitted requests for recognition as refugees prior to their being issued residency orders and who have not yet received a decision (Petitioners 1 and 2 among them).

            This approach is justified both by theoretical and practical reasons (the latter were explained in the opinion of my colleague Justice Hendel). This result is required, inter alia, by the obligation of mutual respect mentioned earlier, so that the Knesset (which will have to address the entire matter for a third time), the government and the public will be able to prepare properly for the new situation (see: Yigal Mersel, Suspension of a Declaration of Invalidity, 9 Mishpat U'Mimshal 39 (2006)). This is also the accepted approach in Canada under similar circumstances (see and compare: Kent Roach, Constitutional Remedies in Canada 14-82 to 14-92.2). In such matters, it is preferable to grant some period of time for arriving at a more comprehensive solution over the medium term (along with the necessary implementation required immediately) rather than achieving a limited immediate result.

17.       In summation, I would say that the intermediate solution that I have proposed for consideration strikes a reasonable balance among the needs of all in these difficult circumstances, in the sense of achieving the lesser evil where a greater good cannot be attained.

            Moreover, as the descendants of ancient ancestors who were foreign workers in a country that was not their own, and of more recent forebears who pounded on the gates of various countries in their flight from the Nazis, and were turned away, we must apply the relevant legal principles with compassion and sensitivity toward all involved. This is demanded by our being a Jewish and democratic state.

 

The result is therefore as follows:

1.         Decided by majority in accordance with the opinion of President M. Naor, Justices S. Joubran, E. Hayut, Y. Danziger and Z. Zylbertal concurring, that subject to the proposed interpretation, the provisions of the Law pass constitutional scrutiny, with the exception of the provisions of secs. 32D(a) and 32U, which establish the maximum period for being held in the residency center, and are void. In accordance with the majority decision, the declaration of the invalidity of these sections will be held in abeyance for a period of six months. During that period, the maximum period for holding a person in the residency center under those sections will be twelve months. Those who have been held in the residency center for twelve months or more on the date of this decision will be released immediately, and no later than fifty days from the date of this decision, as stated in para. 115 of the opinion of President M. Naor.

(a)        Justices U. Vogelman and I. Amit concurred with the majority, but were of the opinion that sec. 32T should also be declared void.

(b)        Justice H. Melcer joined the opinion of the majority subject to the proviso that the alternative of geographical restriction be considered, and with the exception of the transitional provision, as stated in paras. 11, 14 and 16 (respectively) of his opinion.

(c)        Justice N. Hendel, dissenting, was of the opinion that the petition should be denied in its entirety.

2.         The Respondents shall bear the costs of the Petitioners in the total amount of NIS 30,000.

 

Given this 26th day of Av 5775 (Aug. 11, 2015).

 

 

Full opinion: 

Yadid v. The Coordination Committee of the Organizations of Persons of Moroccan Origin in Israel by the Committee Chairperson Rafael Ben Shushan

Case/docket number: 
HCJ 687/15
Date Decided: 
Thursday, July 9, 2015
Decision Type: 
Original
Abstract: 

The Israeli Knesset adopted the Victims of Nazi Persecution (Restrictions on Fees for Handling Pension Claims under an Administrative Decision)   (Amendment No. 20) Bill, 5775-2014. The questions presented by this petition are as follows: A. Does the amendment infringe the constitutional rights of the Petitioners in a manner that is repugnant to the Limitations Clause? B. Is the retroactive application of the amendment just and proper under the circumstances? C. Was there any fundamental flaw in the legislative procedure of the amendment that would justify its annulment?

 

The Supreme Court, sitting as High Court of Justice, denied the petition, holding:

 

The Court will not lightly declare a law to be unconstitutional. The starting point of the Court in examining the constitutionality of a law is that the law enjoys something of a presumption of constitutionality that requires that the Court assume that the law was not intended to violate constitutional principles. The scope of the Court’s intervention in Knesset legislation is, therefore, limited.

 

The recognition granted to the existence of an infringement of a constitutional right is broad, and every infringement (as long as it is not trivial) that detracts from the right will be deemed one that requires constitutional examination. As has been held, the more severely a law infringes the right, and the closer the infringement to the core of the right, the greater the justification for strict judicial review of the law. And vice versa, the closer the violation is to the margins of the right, the greater the constitutional margin enjoyed by the offending law, and the smaller the margin of intervention of this Court.

 

The amendment under review is not intended to deprive the Petitioners of the right to handle suits by Holocaust survivors, but rather to restrict the manner of its realization. That being the case, the infringement of the constitutional right to freedom of occupation is limited. This is also true of the infringement of the Petitioners’ freedom of contract, which is also of relatively low magnitude for two reasons: First, the law already placed limits upon attorneys’ fees prior to its amendment, and in that sense, it does not create a “new world order”. Second, the purpose of the amendment is to prevent the charging of exorbitant fees and exploiting Holocaust survivors. The right to charge exorbitant fees is not at the core of the right to freedom of contract.

 

As opposed to this, it would seem that the violation of the Petitioners’ property right, expressed in the demand to return excess legal fees already paid, does indeed strike at the core of the right. There can be no doubt that applying the amendment retroactively increases the severity of the violation of the Petitioners’ rights. However, if there is appropriate justification, there is no bar to the retroactive application of the law. In the instant case, the primary justification for applying the amendment retroactively is that were that not done, the amendment would almost entirely be a “dead letter”. That is so because most of the Holocaust survivors whom the law intends to benefit have already signed fee agreements, and if the amendment would not apply to them, what would be achieved? Extending the application of the amendment to cases in which the fees have already been paid is also justified, inasmuch as limiting the application of the amendment only to situations in which legal fees have not been paid would, in practice, create an unjustified distinction between survivors who were quick to pay their fees and those who were not. Along with these justifications, we should bear in mind that the amendment adopted mitigating factors that create a proportionate, balanced arrangement.

 

The infringement of the Petitioners’ rights meets the criteria of the Limitations Clause. In that regard, the purpose was found to be proper – preventing unfair harm by parties who sought to exploit Holocaust survivors. Similarly, we found that we are concerned with a proportionate law: exploitation of Holocaust survivors by parties handling claims is a substantial phenomenon. The legislature was presented with a sufficient factual foundation to provide adequate grounds for the rational connection; the alternatives proposed by the Petitioners do not realize the purpose of the amendment to an extent equal to that achieved by the means selected; the benefit of the amendment is far greater that its cost. First, the legislature adopted mitigating measures that lessen the magnitude of the injury to the Petitioners by creating fee levels corresponding to the extent of the involvement of the person handling the claim, and by creating special mechanisms that treat of mitigating the influence of retroactive application. Second, a comparison of the provisions of the amendment to the prior legal situation reveals that the change introduced by the amendment is not so dramatic, and in some situations, changes nothing at all. On the other side of the scales, the benefit is not expressed solely in a profit of a few hundred or a few thousand shekels for each survivor. First and foremost it is moral.

 

No defect was found in the legislative procedures, let alone a severe and exceptional defect going to the very core of the procedure. The facts show that, as opposed to the claim of the Petitioners, there was no substantive defect in regard to the principle of participation in the legislative process of the amendment.

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

 

The Supreme Court sitting as the High Court of Justice

 

 

HCJ 687/15 HCJ 858/15 HCJ 1164/15 HCJ 1201/15

 

 

Before: The Honorable President M. Naor The Honorable Justice H. Melcer The Honorable Justice N. Sohlberg

 

The Petitioners in HCJ 687/15:    1.            David Yadid, Advocate and Notary

                2.            Eliyahu Weber, Advocate and Notary

                3.            Dr. David Etzion, Advocate and Notary

                4.            Shlomo Ben Porath, Advocate and Notary

                5.            Asher Fadlon, Advocate

                6.            Dorit Attia, Advocate and Notary

                7.            Theodore Weinberg, Advocate and Notary

                8.            Yisrael Kuris, Advocate and Notary

                9.            Guy Touti, Advocate and Notary

                10.          Dr. Ilan Keidar, Advocate and Notary

The Petitioners in HCJ 858/15:    1.

 

 

 

2.            The Coordination Committee of the Organizations of Persons of Moroccan Origin in Israel by the Committee Chairperson Rafael Ben Shushan

The World Federation of Moroccan Jewry

                3.            Sam Ben Shitreet, Chairperson of the Federation

                4.            The World Organization of North African Jews

                5.

 

6.            Shaul Ben Simchon, Chairperson of the Organization

The Alliance of Persons of Moroccan Origin in

               

7.            Israel

Shavie Tzion, the Association of French, North

               

8.            African and French Speaking Immigrants Yitzchak Bitton, President of the Association

                9.

 

10.          Association of Academics of Iraqi Origin in Israel

Prof. Shmuel Moreh, Chairperson of the

               

11.          Association

Dr. Nissim Kazaz, Member of Management of

               

12.          the Association

The Center for the Heritage of Mosul Jewry

                13.          Aharon Efroni, Chairperson of the Center

                14.          Adv. David Nawi, Chairperson of the Shemesh – Shalom Ve'Shilumim Amuta

The Petitioners in HCJ 1164/15:  1.            Yaacov Yaacobovitch, Advocate and Notary

                2.            Israel Feder, Advocate

 

The Petitioner in HCJ 1201/15: Rachel Duani

 

 

v e r s u s

 

The Respondents:           1.            The Knesset

                2.            The Attorney General

The Parties Requesting to Join as amici curiae:   

1.           

The Clinic for Legal Assistance to Elderly

               

 

2.            Persons and Holocaust Survivors, The Law Faculty, Bar-Ilan University

The Clinic for the Rights of Holocaust Survivors,

                                The Law Faculty, Tel-Aviv University

 

Petitions for Orders Nisi and Applications to Grant Interim Orders Date of Session:           10th of Nissan, 5775 (March 30, 2015)

On behalf of the Petitioners

in HCJ 687/15:    Adv. Ilan Bombach; Adv. Yariv Ronen

 

On behalf of the Petitioners

in HCJ 858/15:    Adv. David Yadid; Adv. Doron Atzmon

 

On behalf of the Petitioners

in HCJ 1164/15:  Adv. Yaacov Yaacobovitch; Adv. Yisrael Feder

 

On behalf of the Petitioners

in HCJ 1201/15:  Adv. Amram Doani

 

On behalf of Respondent 1:        Adv. Dr. Gur Bligh On behalf of Respondent 2:   Adv. Hani Ofek On behalf of Party requesting

to join as amicus curiae 1:             Adv. Aviad Igra

 

On behalf of Party requesting

to join as amicus curiae 2:             Adv. Yael Abasi-Aharoni

 

 

J U D G M E N T

 

Justice N. Sohlberg:

 

In their petitions, the Petitioners addressed three issues: (a) Limiting lawyer's fees; (b) Partial restitution thereof; (c) Retroactive application. Is the law constitutional?

 

1.            On  December  29,  2014,  the  Israeli  Knesset  approved  the  second  and  third readings of the Nazi Persecution Disabled Persons (Limiting Fees for Handling a

 

Claim to Determine Entitlement to Payments pursuant to an Administrative Decision) (Amendment no. 20) Bill 5775-2014 (hereinafter: the "Amendment" or the "Bill"). This Bill, as is evident from its title, addresses the limitation of the legal fees which holocaust survivors pay lawyers and additional entities who are not lawyers who handle their claims to receive compensation (hereinafter: the "Claim Handlers").

 

2.            Four petitions were filed in which this Court was requested, as an initial and primary relief, to rule that the Amendment is not constitutional and to order that it be cancelled. The Petitioners in HCJ 687/15 and in HCJ 1164/15, attorneys who engage in representing holocaust survivors, requested that if the court shall not accede to their request to order that the Amendment be cancelled, then it shall alternatively instruct that the Amendment be partially cancelled, emphasizing the provisions regarding the retroactive application of the Amendment; alternatively to such alternative, that it instruct that the application of the Amendment be suspended for a period of a year "so that the Knesset shall amend it in a proper and reasonable procedure while minimizing the harm to the petitioners". The petitions were heard together, on March 30, 2015. On March 31, 2015, in light of the urgency of the matter, a judgment without reasons was delivered in which we rejected the four above petitions. The time has come to specify the reasons.

 

3.            A word of preface: The petitions before us are greatly similar to each other, both in terms of the requested remedy and the substance of the arguments raised therein. However, not all of the petitions include the same arguments or the same requested remedies. For the sake of convenience and efficiency, the discussion relating to the Petitioners' arguments shall relate to all of the petitions as an entirety, despite certain differences among them. This is also the case vis-à-vis the Respondents – the Knesset and the Attorney General – which filed their responses separately, but their arguments greatly overlap, and therefore the discussion relating to their arguments shall, in general, be held in a consolidated manner, except in relevant places.

 

Background

4.            As mentioned, the Amendment addresses determining limitations to the  fees which can be collected for handling claims to receive payments pursuant to the Nazi Persecution Disabled Persons Law, 5717-1957 (hereinafter: the "Nazi Persecution Disabled Persons Law") and pursuant to the Claims of Holocaust Victims (Handling Arrangement) Law, 5717-1957 (hereinafter: the "Claims of Holocaust Victims Law"). The normative and historical background for the legislation of the Amendment was elaborately described by the parties' attorneys and is complicated and convoluted. I shall briefly address the details relevant to the case at hand.

 

5.            Limiting fees for handling claims of holocaust survivors to receive payments is not an innovation of this Amendment. Section 22(a) of the Nazi Persecution Disabled Persons Law, which was enacted as early as in 1960, and which is entitled "Limitation of Fees", prescribes that "The Minister of Justice may, by order, prescribe maximum rates for the fees that can be received for handling a claim". The Nazi Persecution Disabled Persons (Limitation of Fees) Order, 5721-1961 (hereinafter: the "Nazi Persecution Disabled Persons Order")

 

was promulgated by virtue of this section, and prescribes that "The maximum fee that it is permissible to receive for handling a claim, when the fee is contingent upon results, is 8% of the total payments for a period of five years". On January 9, 2011, an amendment to the order came into effect (hereinafter: the "Amendment to the Nazi Persecution Disabled Persons Order"). In the framework thereof an absolute 'cap' on fees was prescribed, in addition to the original limitation of 8% of the total payments, and it is currently NIS 7,013. Similarly, provisions regarding limiting fees were also prescribed with respect to compensation claims pursuant to the Claims of Holocaust Victims Law. Thus, Section 10(b) of the Claims of Holocaust Victims Law prescribes that the 'cap' of fees which can be collected for handling claims pursuant to this law is 15% of the amount paid to the claimant.

 

Until recently, these provisions regulated the matter of the Claim Handlers' fees without any special difficulty. However, in recent years two main developments took place which changed matters, and led to the enactment of the Amendment at hand:

 

(1)          The Administrative Decision Regarding Libyan Jews

6.            During the Second World War many of the Libyan Jews were forced to flee their homes due to the events of the war. For many years the customary approach of the courts in Israel was that the Libyan Jews do not have a sweeping entitlement to receive payments by virtue of the Nazi Persecution Disabled Persons Law, and in order to receive payments, Libyan Jews were required to specifically prove that they indeed fled in fear of the Germans. Proving this fact was not simple, and indeed the vast majority of the claims were rejected. In 2010 a judgment was delivered in Appeal Committee 255/08 Tayar v. The Competent Authority (April 7, 2010) (hereinafter: the "Tayar" Case), which changed matters with regard to claims of persons who left Libya. Although the judgment rejected the appellants' motion to rule that they are sweepingly entitled to payments, it did rule, based on various testimonies and opinions, that the claim that the fleeing of the Libyan Jews did, at least partially, stem from fear of the Germans – is a reasonable scenario. This factual presumption constituted a significant change, which made it much easier for persons who left Libya to prove that their fleeing indeed stemmed from fear of the Germans, and to consequently establish their entitlement to compensation. Approximately five months after the judgment in the Tayar case, the Minister of Finance published a decision in the framework of which he instructed that commencing April 2010 (the time the judgment in the Tayar case was delivered), compensation be given to any person who left Libya who shall claim that his fleeing from his home during the war stemmed from fear of the Germans, without any evidential examination or legal hearing. This decision, which was also applied to claimants whose claim had already been rejected in a final judgment, significantly changed the legal situation in the matter of the Libyan Jews, as it de facto determined a sweeping entitlement to compensation for Libyan Jews by virtue of the Nazi Persecution Disabled Persons Law.

 

(2)          The Amendment to the German Law

7.            In 2002, a law that recognizes the entitlement of holocaust survivors to payment of allowances also for the period during which they worked in Ghettos was

 

adopted in Germany. However, for many years it was not clear when the entitlement to the payment of the allowance commences, and the German court's rulings were inconsistent in this matter. On June 6, 2014, the German law was amended (hereinafter: the "Amendment to the German Law"), and survivors entitled to an allowance were granted the option to choose between continuing to receive the allowance that was paid to them until then, and receiving a retroactive allowance from a uniform date that was prescribed in the law (July 1, 1997), subject to a certain reduction of the amount of the allowance.

 

8.            The similar aspect of these developments – the administrative decision regarding Libyan Jews, on the one hand, and the Amendment to the German Law, on the other hand – is that in consequence thereof the procedure of receiving the payments was made significantly easier, and, in general, amounts to completing a simple form without needing complex legal procedures. Despite the fact that the handling of these procedures became significantly easier, in the period following their commencement, the Holocaust Survivors' Rights Authority and other entities were approached by many holocaust survivors claiming that exaggerated amounts of fees had been collected from them in claims to receive payments by virtue of these procedures. The legislator did not remain indifferent to these approaches and requested to adjust the law to the new reality by creating additional limitations to the fee 'cap', to create a proper correlation between the scope of the Claim Handler's work and his fee.

 

9.            On July 14, 2014 the said Bill, which is a private bill, was tabled in the Knesset and on November 26, 2014, it was discussed in a preliminary reading in the Knesset plenum. In this reading the representative of the government announced the government's support of the Bill, subject to making a number of changes. The preliminary reading of the Bill was approved, and on December 9, 2014, the Knesset's Constitution, Law and Justice Committee (hereinafter: the "Constitution Committee" or the "Committee") began to discuss the bill in order to prepare it for the first reading. At the end of the discussion, the Committee unanimously approved the Bill for the first reading, in accordance with the changes that had been requested by the government, and on that same day the first reading of the Bill was approved in the Knesset plenum. It shall be noted that at this stage the Bill only included an amendment to the matter of claims for payments that were received by virtue of an administrative decision, but not to the matter of claims pursuant to the Amendment to the German Law.

 

10.          On December 28, 2014, the Constitution Committee discussed the Bill in order to prepare it for the second and third reading. The wording that was tabled in the Committee was an updated wording, the result of internal discussions of the relevant professional bodies, and it also included an indirect amendment to the Claims of Holocaust Victims Law, prescribing limitations on fees for claims for an allowance pursuant to the Amendment to the German Law. At the end of the discussion, and after it was agreed to make a number of changes to the updated wording, the Committee unanimously approved the Bill for the second and third reading. On December 29, 2014, the Knesset plenum approved the second and third reading of the Bill, and on December 31, 2014, the Amendment was published in the Book of Laws of the State of Israel.

 

The Principles of the Arrangement in the Amendment

11.          The essence of the principles of the new arrangement is as follows, and the specifics shall be discussed in detail further on. The arrangement imposes limitations on the rate of the fees in two situations: The first, claims to receive payments under the Nazi Persecution Disabled Persons Law, that were approved as a result of an administrative decision (at this time there is only one administrative decision, the decision regarding the Libyan Jews); the second, claims to receive an allowance by virtue of the Claims of Holocaust Victims Law, in accordance with the Amendment to the German Law dated June 6, 2014.

 

12.          With respect to the claims pursuant to the Nazi Persecution Disabled Persons Law that were approved as a result of an administrative decision four levels of payment were prescribed, in accordance with the date the fee agreement was entered and the stage of the claim. Thus, the lowest level of payment prescribes a fee 'cap' in the amount of NIS 473, and it applies in a situation in which the fee agreement and the filing of the claim were made after the administrative decision was delivered, while the highest level of payment prescribes a fee 'cap' in the amount of NIS 5,960, and it applies in a situation in which the administrative decision was only delivered after the claimant had already actually filed an appeal to the court.

 

13.          The rule is as follows: The gain is according to the pain; the more work devoted by the Claim Handler, the greater his remuneration.

 

14.          With respect to claims pursuant to the Claims of Holocaust Victims Law in accordance with the Amendment to the German Law two levels of payment were prescribed, in accordance with the date the claim or the appeal was filed in relation to the date of the Amendment to the German Law (June 6, 2014; hereinafter: the "Effective Date"). Thus, if and to the extent a claim or appeal was filed before the Effective Date, and at such time the claim or the appeal were pending, then the rate of the fee for handling the claim shall not exceed the lower of 7.5% of the retroactive payment given to the claimant or an amount of NIS 25,000. In contrast, if and to the extent a claim or appeal were not filed or were not pending on the Effective Date, then the fee for handling the choice between the two alternatives, shall not exceed an amount of NIS 473.

 

15.          An additional main aspect of the Amendment is the provisions regarding the chronological application. Thus, it was prescribed that the provisions of the Amendment shall also apply to fee agreements that were entered prior to the publication thereof, provided that a final judgment was not delivered in the matter of the fees prior to the Amendment coming into effect. Moreover, even when the fee has already been actually paid, the claimant is entitled to restitution of the surplus fee that was already collected that exceeds the provisions of the Amendment. In furtherance thereof, and in order to make it easier for the holocaust survivors to conduct claims for the restitution of the surplus fees, it was ruled that they shall be entitled to legal assistance from the State without any need for an income examination.

 

The Principles of the Parties' Arguments

16.          The Petitioners' arguments are divided into two main matters: the first, the matter

 

of the unconstitutionality of the Amendment; the second, the matter of the procedure of legislating the Amendment. Below, in brief, is the essence of their arguments.

 

17.          As to the matter of the illegality of the Amendment, the Petitioners claim that the Amendment infringes a list of basic rights that are granted thereto by virtue of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, and does not meet the criteria of the limitation clause. The Petitioners particularly emphasized the severe harm caused thereto due to the unusual requirement to return amounts of money that have already been duly paid, thus constituting a harsh infringement of their property. Additionally, the Petitioners complained about the late intervention in agreements that were duly entered, constituting an infringement of their right to freedom of contracts and their right to autonomy, and about narrowing the steps of those who engage in the field, after they have gained knowledge, experience and expertise through hard work over many years, in a manner that infringes their right to freedom of occupation.

 

18.          As to the procedure of legislating the Amendment, the Petitioners claim that the procedure was held "in a hasty and panicked manner", in order to pass the Amendment prior to the dispersion of the Knesset. According to the Petitioners, this amounts to being "a flaw at the root of the legislative procedure", and as such it is to be cancelled.

 

19.          On the other hand, the Respondents are of the position that the petitions should be denied. According to them, despite the unusual nature of the Amendment that also applies retroactively, its alleged infringement of the constitutional rights is limited in its scope and complies with the terms of the limitation clause. The Respondent further claims that when examining the constitutionality of the Amendment thought must be given to the 'target audience' which the Amendment is meant to serve – elderly holocaust survivors, and the State of Israel has a moral responsibility to protect them from being exploited and to care for their financial wellbeing. Additionally, the Respondents elaborated on the case law which provides that the court must act with restraint when exercising its authority to apply constitutional review of the laws of the Knesset. As to the alleged flaw in the legislative procedure of the Amendment, the attorney for the Knesset was of the position that "in light of the active participation of the members of Knesset in the Committee's discussions, the broad space given to the Petitioners to argue their claims against the Amendment, and the changes that were inserted in the Bill following these claims" it cannot be argued that in the case at hand there is 'a flaw that is at the root of the legislative procedure', that would justify the court's intervention.

 

Discussion and Ruling

20.          There are three central questions before us: The first, whether the Amendment infringes the Petitioners' constitutional rights in a manner that does not comply with the terms of the limitation clause? The second, intertwined with the first, is whether the retroactive application of the Amendment is just and appropriate in the circumstances at hand? The third, whether there is a flaw at the root of the legislative procedure that justifies its cancellation? As mentioned, our principle answer to these questions is negative. We shall now elaborate on the grounds of

 

our ruling.

 

21.          The Petitioners and the Respondents and the parties that requested to join as amici curiae laid before  us an  extensive and  well-reasoned factual and  legal presentation; both in writing and orally. Thus, our path has already been paved for us and we have only to walk the path on which the parties' attorneys have led us. Our route shall be as follows: At the first stage, I shall briefly discuss the matter of the scope of judicial review of Knesset laws. At the second stage, I shall discuss the constitutionality of the Amendment, and in this context I shall refer to the essence and the scope of the alleged infringement of the Petitioners' rights; the matter of the Amendment's chronological application; and the proportionality of the infringement of the Petitioners' rights in accordance with the customary criteria. Finally, I shall address the legislative procedure of the Amendment and shall explain why it is not flawed, certainly not with a flaw that is 'at the root of the procedure' that justifies our intervention.

 

Judicial Review

22.          The starting point of our discussion stems, to a significant degree, from the question of the scope of the judicial review of the Knesset's legislation. When discussing the constitutionality of any law, we must remember that "it is not with ease that the court shall rule that a certain law is not constitutional" (HCJ 2605/05 The Law and Business Academic Center, The Human Rights Division v. The Minister of Finance, PD 63(2) 545, 592 (2009) (hereinafter: the "Prisons Case"), and also see the references presented there in paragraph 14 of the judgment of President (Ret.) D. Beinisch). "The court owes honor to the law as an expression of the desire of the people. Before the court disqualifies a law, it must be absolutely certain: it must carefully examine the language of the law and the purpose of the law and be extremely diligent, until it is completely convinced that at hand is a defect that cannot be cured" (the words of Justice I. Zamir in HCJ 3434/96 Hoffnung v. The Speaker of the Knesset, PD 50(3) 57, 67 (1996) (hereinafter: the "Hoffnung Case")). The words of Justice

A.            Procaccia in HCJ 6304/09 Lahav – The Umbrella Organization for the Self-Employed and Businesses in Israel v. The Attorney General (September 2, 2010), in paragraph 62 of the judgment, are appropriate for this matter:

 

"The examination of the constitutionality of primary legislation of the Knesset is performed by the court cautiously and with great restraint while diligently attending to the delicate balance that is required between the principles of the majority rule and the separation of powers, and the constitutional protection of human rights and the fundamental values underlying the system of government in Israel… In the framework of striking this balance, even if it shall be found that the act of legislation does not coincide with a constitutional principle, a significant level of intensity of constitutional infringement is required in order to justify judicial intervention in the acts of the legislative authority."

 

23.          Hence, the court's starting point when examining whether or not the law before it is constitutional, is that the law has a sort of presumption of constitutionality that

 

obligates the court to assume that the law was not meant to infringe constitutional principles (see the Prisons Case, page 592; the Hoffnung Case, page 67). Thus, the scope of the court's intervention in the Knesset's legislation is limited. While keeping this in mind, we shall set out on our path.

 

Constitutional Examination

24.          First one must examine whether, as alleged, the Amendment indeed infringes basic rights that are granted to the Petitioners by virtue of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. As is known, the existence of an infringement of a constitutional right is recognized broadly, and any infringement (provided that it is not an inconsequential infringement) that derogates from the right shall be considered an infringement that is subject to constitutional examination:

 

"The restriction or infringement occurs in any situation in which a government authority prohibits or prevents the owner of a right to exercise it to its fullest extent. In this matter, there is no significance to the question whether the infringement is severe or slight; if it is at the core of the right or in its penumbra; whether it is intentional or not; whether it is by act or omission (where there is a positive obligation to protect the right); any infringement, irrespective of its scope, is unconstitutional unless it is proportionate" (A. Barak Proportionality in Law – The Infringement of the Constitutional Right and the Limitations Thereof 135 (2010) (hereinafter: "Barak – Proportionality in Law")).

 

25.          In the case at hand there is no doubt that the Amendment infringes the Petitioners' rights. The payment which they are entitled to collect for their services has been limited, agreements they signed were retroactively changed, and they are being required to return payments they have already received. However, I agree with the Respondents' position that the infringement of the Petitioners' rights, if and to the extent at issue are freedom of occupation and freedom of contracts, is limited, and is not at the core of the right. This fact is of importance with regard to the degree of severity that should be applied at the constitutional review stage:

 

"The more exacerbated the law's infringement of the right and the closer it is to the core of the right, the greater the justification for a diligent judicial review of the constitutionality of the law; and vice-versa. As in the case at hand: the more the law's infringement is only at the margins of the right, the more the sphere of constitutionality that the infringing law shall be granted shall increase, respectively, and the sphere of this court's intervention shall decrease respectively" (HCJ 7956/10 Gabbay v. The Minister of Finance, the judgment of Justice D. Barak-Erez (November 19, 2012)).

 

26.          The Amendment's infringement of the freedom of occupation is not expressed in the denial of the Petitioners' occupation or in preventing them from entering a certain  field  of  occupation,  but  rather  in  the  manner  of  exercising  the

 

occupation (see also my statements in HCJ 3676/10 Keter Cederech Hamlachim Ltd. v. The Minister for Religious Services (May 8, 2014), paragraph 20 of the judgment). This distinction between the various types of infringement of the freedom of occupation has long ago been recognized in the judgments of this court:

 

"Not every infringement of the freedom of occupation is of the same level. It can be said that the restriction of occupation by preventing it, denying it or shutting the entrances thereto is a more severe and exacerbated infringement than the imposition of limits upon one who engages in the profession or vocation that he desires, but the legislator has imposed restrictions as the manner or scope of performance, in which case the infringement of the freedom of occupation indeed exists but to a more tolerable degree" (HCJ 726/94 Clal Insurance Company Ltd. v. The Minister of Finance, PD 48(5) 441, 475 (1994)).

 

27.          The Amendment at hand clearly falls within the definition of an infringement in the manner of exercising the occupation. It does not intend to deny the Petitioners' right to handle the claims of the holocaust survivors, but rather only to limit the manner of exercising it. Thus, its infringement of the constitutional right of freedom of occupation is limited. This is also the case with regard to the infringement of the Petitioners' freedom of contracts, which is also of relatively low intensity for two reasons: First, the limitation of the lawyers' fees was already anchored by law even prior to the legislation of the Amendment, and in this sense the Amendment does not change the 'world order'. Indeed, this fact in and of itself does not justify making the limitations that are imposed on the scope of the fees more stringent, but it does, to a certain extent, "soften" the intensity of the infringement embedded in the Amendment.  Second, the purpose of the Amendment is to prevent collecting exaggerated fees while exploiting the holocaust survivors. As the Attorney General's attorney stated in her response: "The right to collect 'exaggerated' fees is not part of the core of the right of freedom of engagement". Hence, the infringement of the Petitioners' rights, to the extent this relates to the freedom of occupation and the freedom of contracts, is relatively limited. As mentioned, this fact does not eliminate the need  to examine whether the infringement complies with the terms of  the  limitation clause, but it does allow a relatively more lenient constitutional examination.

 

28.          As opposed to the infringement of the freedom of occupation and the freedom of contract, I believe that the infringement of the Petitioners' right of property, that is expressed in the demand to return the surplus fee that was already actually paid, indeed infringes the core of the right (assuming that there was no flaw in the Claim Handler's entitlement to receive such funds to begin with and that they were duly earned). There is no doubt that applying the Amendment retroactively intensifies and exacerbates that infringement of the Petitioners' rights. This argument shall continue to reappear during the constitutional examination. We shall thus preface our remarks with a few words on the matter.

 

Retroactivity

29.          The Petitioners argue that applying the law retroactively (or retrospectively, if and

 

to the extent it relates to fees that have not yet been paid) "severely and fatally harms the(ir) interest of foreseeability and reliance". According to them, this provision is contrary to the proper and reasonable standards of legislation in a democratic state, and involves severely impairing legal stability in general, and their rights, in particular. The Petitioners find certain support for their position in the Amendment to the Nazi Persecution Disabled Persons Order that came into effect in 2011, and, as mentioned, significantly reduced the fee 'cap' compared to the situation before it, and which was applied from the date it was issued and onwards, but not retroactively. According to them, the rationale underlying the amendment to the order is identical to the rationale underlying the discussed Amendment, and there is no justification to distinguish between them in the matter of chronological application.

 

30.          There are times when the question arises whether or not a certain act of legislation indeed applies retroactively, and this requires applying rules of interpretation. This is not the case at hand, since here there is no doubt regarding the legislator's intention to also apply the Amendment retroactively. The question of the chronological application of the Amendment was discussed elaborately and explicitly in the framework of the discussions of the Constitution Committee, and it is clear that the legislator's intention was to apply the Amendment also with respect to fee agreements that were entered prior to the enactment of the Amendment, even with respect to funds that were already actually paid by virtue of these agreement (see the minutes of the Committee discussions dated December 28, 2014, pages 82-88). This fact enhances the difficulty embedded in the application provisions of the Amendment, since "the more blatantly the law sends it arms towards the past – the more difficulties regarding its legitimacy arise" (HCJ 6971/11 Eitanit Building Products Ltd. v. The State of Israel, paragraph 38 of the judgment of Justice N. Hendel (April 2, 2013); (hereinafter: the "Eitanit Case")). Retroactive legislation is an unusual matter in our legal landscape, and so it should be:

 

"Applying a new norm on actions that were performed prior to it coming into effect could cause injustice, since the law is intended to determine what is permitted and what is prohibited, and thus to direct human behavior. Therefore, retroactive legislation is presumed to be legislation that infringes basic constitutional perceptions, the principle of the rule of law, legal certainty and the public's trust therein, and the public's trust in the institutions of government" (CFH 3993/07 Jerusalem Assessing Officer 3 v. Ikafood Ltd., paragraph 32 of the judgment of Justice (Ret.) A. Procaccia (July 14, 2011)).

 

31.          However, retroactive legislation, although unusual in its nature, is not necessarily unconstitutional. Given proper reasons that justify it, there is nothing to prevent a law from also applying retroactively. Naturally, the more blunt and infringing the retroactive application is, the more convincing the justifications must be (see: the Eitanit Case, paragraph 38). Justice T. Strasberg-Cohen elaborated on this in HCJ 1149/95 Arco Electricity Industries v. The Mayor of Rishon Lezion, PD 54(5) 547, 573 (2000):

 

 

"Retroactive legislation should be avoided as much as possible. Such legislation should be applied in unusual cases. But it does not follow that retroactive legislation in and of itself is disqualified in all situations and all circumstances… Each act of legislation must be examined on its merits in accordance with the circumstances of the matter, and it must be examined whether it complies with the reasonability criterion. When examining the reasonableness of the act of legislation all of the relevant considerations should be considered, including the extent of the reliance on the old law, the purpose of the retroactive application, the extent of the retroactive application, the extent of the infringement of rights that are vested and any relevant consideration".

 

32.          Truth must be told: late intervention in agreements that were duly and voluntarily entered, not to mention the demand to retroactively return funds which were already actually paid by virtue of such agreements, is not an inconsequential matter. Nevertheless, in the circumstances at hand, it appears that it is justified. Unusual circumstances justify exceptions. As is argued in the case at hand, the main justification to apply the Amendment retroactively is that otherwise the Amendment would have become almost completely irrelevant. The vast majority of the holocaust survivors the Amendment was meant to benefit already signed the fee agreements, and if the Amendment would not apply to them, what would the sages have accomplished with their ordinance and the legislators with their legislation? Expanding the Amendment's application to situations in which the fee was already actually paid is also justified, since limiting the application of the Amendment only to situations in which the fees have not yet been paid would have de facto created an unjustified distinction between survivors who paid the fees promptly and those who did not do so. Alongside such justification, one must remember that the legislator took 'softening' steps that were meant to limit and alleviate the unusual demand to return funds that were already actually paid. These steps do not mitigate the intensity of the infringement, but they create a proportionate and balanced arrangement, as shall be specified in detail below in the framework of the next stage of the constitutional examination.

 

The Limitation Clause

33.          At this stage the court is required to rule in the matter whether the infringement of the constitutional rights, irrespective of the intensity thereof, was in accordance with the law. The balancing formula that was prescribed therefor, which is known as the 'limitation clause', is anchored in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation. According to such formula, basic rights that are anchored in these basic laws, shall not be infringed "other than in a law which befits the values of the State of Israel, which is intended for a worthy purpose, and to an extent no greater than is required". There is no dispute that the first condition, that the infringement must be made by a law, is met in this case at hand. The dispute between the parties revolves around the three latter conditions, that the infringing law must befit the values of the State of  Israel;  serve  a  worthy  purpose;  all  while  maintaining  the  principle  of

 

proportionality.

 

34.          The Petitioners in HCJ 1164/15 claim that the provisions regarding applying the Amendment retroactively do not befit the values of the State of Israel, since they prejudice legal stability and certainty, and as such "severely infringe" the rule of law, a value which is one of the foundations of the State of Israel as a democratic state. I do not accept this claim. As mentioned, retroactive legislation, albeit unusual, does not necessitate the conclusion that the law is unconstitutional. This is derived from the entirety of relevant considerations, including the purpose of the retroactive application of the Amendment, the purpose for which the law was legislated, the means that are applied in the law and additional relevant considerations.

 

Worthy Purpose

35.          The purpose of the law is most worthy. The legislator wished, through this Amendment, to prevent the collection of exaggerated fees from holocaust survivors, which at times even created a material financial burden for the survivors, and even led to the initiation of execution proceedings against some of them. The collecting of exaggerated fees, even if legal, is never just – a fortiori in the case at hand. We must consider that the payments we are addressing were meant to compensate the survivors for those many troubles and hardships they endured during the hard days of the war, compensation that cannot even minimally recompense and alleviate their great suffering. Sadly, instead of treating them with more fairness and compassion, there were those who saw it fit to exploit survivors and wished to enrich themselves at their expense. To this the legislator said – no more. In fact, it emerges from reading the petitions that even the Petitioners do not dispute that this is a worthy purpose. But the Petitioners were not completely accurate in their claims in this matter, which are not directed against the purpose of the Amendment but rather against the means that were taken to achieve it. These claims should be examined in the framework of the discussion regarding the last condition of the limitation clause, the proportionality condition which shall be discussed below.

 

36.          For the removal of doubt, I have found it appropriate to clarify and emphasize something regarding the purpose of the Amendment, in light of the claim that the Petitioners repeatedly reiterated. According to the Petitioners, the main purpose of the Amendment is to improve the holocaust survivors' financial condition. In furtherance thereof, the Petitioners are complaining that the legislator turned them into the "tool" by means of which and at whose expense it requested to realize this purpose. According to them, the Amendment in fact creates an arrangement in the framework of which the private service provider, in the case at hand – the party that is handling the claim, 'subsidizes' the financial benefit that the State is requesting to grant the holocaust survivors, and this is a unique arrangement compared to other service providers. Such description of the matter is inaccurate. Indeed, the practical outcome that is desired by the Amendment is that the lion's share of the payments that are paid to the survivors will eventually remain in their possession. The purpose is to prevent an unfair infringement by those parties who saw fit to exploit holocaust survivors. The financial benefit is a consequence of the Amendment, but was not the focus thereof. The purpose of the Amendment is to do justice with the survivors; its outcome is the improvement of their financial

 

condition.

 

The Proportionality Principle

37.          The proportionality of the a law is examined by three sub-criteria: the first, the existence of a rational connection between the legislative means taken and the purpose the law wishes to achieve; the second, the criterion of the least infringing means, which examines whether the legislative purpose could have been achieved by less infringing means; the third, the proportionality criterion in the narrow sense, in the framework of which we shall examine the relation between the benefit derived from the law and the infringement it causes.

 

(1)          The Rational Connection Criterion

38.          "The assessment of the existence of a rational connection is based on the set of facts that were placed before the legislator and on the legislator's assessment that was made based on such facts" (Barak – "Proportionality in Law" page 382). According to the Petitioners, the said Amendment was legislated without a proper research or factual background, and in the absence of such a background, it cannot be said that the means that are applied in the Amendment, which greatly infringe the Petitioners, indeed promote the purpose that the legislator wished to realize. According to the Petitioners, the Amendment rests on shaky ground, since it is based on a sporadic gathering of testimonies of holocaust survivors, without a thorough and systematic examination of the facts, while creating a misrepresentation of a war between the "sons of light" (the survivors) and the "sons of darkness" (the Claim Handlers). According to the Petitioners, this representation is far from reality, and it would have been appropriate that the legislator properly examine the factual reality prior to infringing their rights. To such end the legislator could, according to them, have sought the assistance of the Knesset's research and information center, as would be expected in the circumstances of the matter. According to the Petitioners, not conducting a proper factual examination even led to determining a 'cap' for the amount of the fee, that in the circumstances of the matter is unreasonable, amounts of money that are based on an erroneous assumption of the legislator that the claims to which the Amendment refers are essentially just completing forms.

 

39.          "To what extent may a petitioner challenge the factual basis underlying a law? This is a fine question" (the Eitanit Case, paragraph 29). In any event, I do not need to address this question in the case at hand, since a review of the transcripts of the discussions that were held in the Constitution Committee reveals that a sufficient factual basis was presented before the legislator, which is enough to properly establish the rational connection. Thus, it emerges from the words of the representatives of the Holocaust Survivors' Rights Authority to the Committee, and from the testimonies of additional participants, that exploitation of holocaust survivors by Claim Handlers is a real phenomenon, rather than just only some lone complaints. This factual basis was also presented to us in the response of the attorney for the Attorney General, who elaborated on the harmful methods of operation Claim Handlers applied under the normative vagueness that prevailed prior to the enactment of the Amendment. This is sufficient to satisfy me that there is a factual basis that justifies exercising the means prescribed in the Amendment. Could the factual basis have been established in a more orderly and concrete manner? Perhaps. However, and without setting hard and fast rules in the

 

matter, this fact in and of itself does not sever the rational connection between the means taken in the Amendment and the purpose thereof.

 

40.          An additional claim that the Petitioners raise regarding the rational connection is that the Amendment's long term harm to the holocaust survivors will be greater than its short term benefits, and therefore not only will its purpose not be achieved, but it will be counter-productive. Thus, the Petitioners warn of the following chain of events: limiting the fees in such a significant manner adversely affects the financial worthwhileness of handing the claims of payments; this adverse effect will lead to many lawyers withdrawing from handling such claims; consequently the survivors will approach unprofessional entities that lack the expertise that is needed to assist them in handling their claims; the flawed care will eventually damage the survivors, who will receive smaller amounts of payments. Moreover, according to the Petitioners, distancing the lawyers from handling these claims will cause damage to groups that have not yet gained administrative recognition like those who left Libya. Indeed, this is the argument that underlies the petition in HCJ 858/15 before us, in the framework of which the Petitioners claim that the Amendment "causes severe harm to thousands of immigrants from Morocco and Iraq… who are currently in a difficult and complex legal struggle to be recognized as entitled to payment by virtue of the Nazi Persecution Disabled Persons Law" (paragraph 3 of the petition). According to them, there is a real concern that as a result of the Amendment the lawyers will withdraw from handling the said legal struggle, and many survivors who according to them are entitled to compensation – will not have the privilege of receiving what they deserve.

 

41.          I find this argument unacceptable as well. First, these arguments are based on an erroneous assumption regarding the purpose of the Amendment. As I emphasized above, the purpose of the Amendment is not to improve the survivors' financial condition, but rather to prevent their continued exploitation and to make sure that the lion's share of the payment to which they are entitled remains in their possession. As such, it is clear that prescribing limits on the 'cap' of the fees that the Claim Handlers may collect contributes to realizing the requested purpose. Second, on the merits of the matter, I am not of the opinion that the adverse effect on the financial worthwhileness is so severe that not enough lawyers will be found to assist in such claims. Let us not forget that there are still significant financial incentives to represent survivors in these proceedings. Thus, for example, the Amendment determines various levels of pay that change in accordance with the degree of work devoted by the Claim Handler. The Petitioners indeed emphasize the relatively low amount of money that was prescribed at the lowest level –473 NIS, however one must remember that this amount is meant for the most simple cases, in which the work of the Claim Handler amounts to only completing a simple form. The more devotion the Claim Handler's work will require, the more his fee will increase. Additionally, these proceedings are often collective proceedings, and hence, even though the fee for each survivor is not in and of itself high, the total amount of the fee accumulates to a significant amount of money. Consequently, the concern that the Amendment will adversely affect the legal struggle of additional groups to receive administrative recognition is not sufficiently founded, since, as mentioned, there are still real financial incentives to handle the claims.

 

 

(2)          The Least Infringing Means Criterion

42.          The Petitioners raise a number of less infringing alternatives that the legislator could have taken in the circumstances of the matter. Thus, for example, in the matter of the retroactive application of the law, it was argued that a more narrow approach could have been taken, and the Claim Handlers could have been exempted from returning funds that were already actually paid. Additionally, it was argued that the concern for the wellbeing of the holocaust survivors, and the financial burden involved therewith, could and should have been imposed on the State, which is the proper entity to finance this, and not on the Claim Handlers. Additionally, the Petitioners in HCJ 1164/15 claim that prior to the Amendment they were already a number of less infringing mechanisms prescribed in the law that limited and supervised the fees of the lawyers in the claims at issue, including general principles in contracts laws (good faith and the like); lawyers' disciplinary laws, and the Amendment to the Nazi Persecution Disabled Persons Order, which set a fee 'cap' that is currently in the amount of NIS 7,013. As to the matter of the amendment to the order, the Petitioners emphasize that when the order was amended the administrative decision was already in effect, and it is presumed that the sub-legislator "had the administrative decision before it when it made its statements regarding the proper limitation on the fees of the lawyers handling the claims of the holocaust survivors" (paragraph 39 of the Petition).

 

43.          It is known that the least infringing means criterion does not prescribe that the legislator must choose the means that is least infringing in absolute terms, but rather the means that is least infringing from among those alternatives that similarly realize the purpose of the law:

 

"The need criterion does not indeed require choosing the means with the least infringement or whose infringement is the smallest, if such means is not able to realize the purpose of the law in the same manner as that means that was chosen in the law" (Barak – Proportionality in Law, page 395)."

 

44.          The alternatives suggested by the Petitioners do not realize the purpose of the Amendment "in the same manner" as the means that was selected in the Amendment. Limiting the retroactive application of the Amendment only to funds that were not yet paid would not have addressed the legislator's inclination to grant a relief to all of the holocaust survivors for the injustice caused thereto, including to those who already paid the fee. Additionally, while prescribing an exemption from VAT to holocaust survivors or increasing the amount of the payments paid to the survivors would benefit the survivors and avoid harming the Petitioners, they do not equally realize the requested purpose. We shall reiterate that improving the holocaust survivors' financial condition is only the practical outcome of the Amendment, but is not the purpose thereof. The Amendment is founded on the legislator's principle position that the Claim Handlers should not be allowed to turn the survivors into exploitees and to collect fees to which they are not entitled, and certainly the State should not facilitate this by subsidies.

 

45.          Similarly, the mechanisms that were prescribed in the law prior to the Amendment, albeit less infringing, also do not realize its purpose in the same

 

manner. First, it shall be stated that with regard to the Amendment to the Nazi Persecution Disabled Persons Order, that came into effect in 2011, there is a dispute between the Petitioners and the Respondents with regard to the question whether this amendment indeed intended to also address claims by virtue of the administrative decision in the matter of the Libyan Jews. According to the attorney of the Attorney General, the amendment of the order is the outcome of a different development that is unrelated to this Petition, and does not stem from the administrative decision,  contrary to the above-mentioned position of  the Petitioners. Although I found significant merit in these arguments on behalf of the Attorney General, I believe that in this matter justice lies with the Petitioners. It emerges from the Constitution Committee's discussions that the legislator was working on the premise that the Amendment to the Nazi Persecution Disabled Persons Order indeed also applies to claims by virtue of the administrative decision in the matter of the Libyan Jews (see the minutes of the discussions of the Committee dated December 28, 2014, pages 125-126; on these grounds it was also decided to distinguish, with respect to the matter of the retroactive application, between agreements that were entered prior to the amendment of the order and agreements that were entered thereafter, as shall be specified below in paragraph 46). In any event, this claim too does not support the Petitioners, since the fact that the amendment to the order was meant to also address claims by virtue of the administrative decision regarding Libyan Jews does not justify the cancellation of the Amendment at hand. Thus, while the amendment to the order is an act of the executive authority, the Amendment at hand is an act of the legislative authority, and there is a difference between them. The enactment of the Amendment is the right and even the duty of the main legislator, and its act is not limited by previous acts of legislation, certainly acts of secondary legislation. Furthermore, on the merits of the matter, the limitation that is imposed by virtue of the amendment to the order does not realize the purpose of the Amendment, since it does not create a correlation between the extent of work by the Claim Handler and the complexity of the proceedings, and it cannot prevent situations of exploitation on the part of Claim Handlers. For these reasons, even if both the general principles of contracts law and the disciplinary law of lawyers partially address the purpose of the Amendment at hand, they do not justify the cancellation thereof. On the contrary, it is possible that the principles of contracts law actually, to a certain extent, reinforce the arrangement prescribed in the Amendment, since it can, as the attorney of the Attorney General posited, be seen as a – "(renewed) concretization of customary legal principles that prohibit collecting exaggerated fees".

 

46.          Alongside the above, one cannot ignore the fact that the legislator applied a series of 'softening' measures that were meant to mitigate, to the extent possible, the intensity of the infringement of the Petitioners' rights. First, regarding the duty to retroactively return funds that were already actually paid, it was prescribed that the date for filing a request for the restitution of the surplus fees shall be limited to a year from the date of the publication of the law, and therefore the Claim Handlers will not be in a state of perpetual uncertainty with respect to funds that were already paid thereto. Additionally, the legislator provided the Claim Handlers with the option whether to return 25% of the surplus fees to those requesting it within 60 days from the date of receiving the request, and in doing so become 'immune' to additional future claims, or to maintain their claims that the

 

requested restitution is unjust and to conduct a suit in the matter, while the court must rule in the claim "taking into consideration that when collected, the collection of the surplus fees was not prohibited and while taking into consideration the harm that will be caused to the Claim Handler due to the restitution" (Section 8(a)(3) of the Amendment). Indeed these mechanisms do not eliminate the harm to the Petitioners, but they do limit it. Second, regarding the retroactive application, it was prescribed that with respect to fee agreements that were entered prior to the date the Amendment to the Nazi Persecution Disabled Persons Order came into effect, for claims that were approved as a result of an administrative decision, the fee rate shall be 70% or 85% of the rate of the fee that had been prescribed in the original agreement, in accordance with the date the claim was filed and the scope of the work of the Claim Handler, and shall not be limited to the amounts of money prescribed in the Amendment. This provision is meant to moderate the harm to the Petitioners in claims in which an agreement was made before the limitation was prescribed in the Amendment to the Nazi Persecution Disabled Persons Order, and to avoid an excessively sharp reduction in the Claim Handler's fees. Third, in the case of claims that were filed pursuant to the Claims of Holocaust Victims Law, in accordance with the Amendment to the German Law, after the date of the enactment thereof, it was ruled that although the maximum fee in such situations is only 473 NIS, if following the handling of a claim, the payment was retroactively increased beyond the amount to which the claimant would have been entitled pursuant to the Amendment to the German Law, then the fees that shall be derived from the amount of the increase, shall not be subject to the provisions of the Amendment, and shall be determined in accordance with the relevant provisions in the Claims of Holocaust Victims Law. This reflected the principle that guided the legislator that if and to the extent the lawyer's contribution is what led to the increase of the payment, his fees should be ruled accordingly.

 

(3)          Proportionality in the Narrow Sense

47.          According to the Petitioners, the legislator did not give proper consideration to the significant damage that could be caused due to the Amendment, which exceeds by several orders of magnitude the benefit that derives therefrom. Thus, while the benefit of the Amendment amounts to a profit of some hundreds or thousands of Shekels for each claimant, this is not properly proportionate to the severe harm that will be caused by the Amendment, including "the financial catastrophe that is heading towards the Petitioners and their likes" (HCJ 1164/15, paragraph 153); the possible harm to the relatives of lawyers who heaven-forbid passed away, who will be required to deal with many restitution claims with respect to which they do not have all the necessary information; and the harm that the Amendment shall cause to the public purse both due to the expansion of the survivors' entitlement to legal assistance from the State, and as a result of the fact that the demand that the Claim Handlers return the surplus fees will lead to the State having to return the tax it received for such payments. On the other hand, the Respondents repeatedly mention that the infringement of the Petitioners' rights is relatively limited. The Respondents also mention the series of 'softening' measures that were taken by the legislator, which, according to them, create a proper correlation between the benefit embedded in the Amendment and the infringement it causes.

 

48.          I agree with the position of the Respondents. The examination of the equation of the costs of the Amendment on the one hand vis-à-vis it benefits on the other hand, leads to the conclusion that its benefits outweigh the costs. First, as has been specified above, the legislator applied a series of 'softening' measures that significantly mitigate the intensity of the infringement caused to the Petitioners, both by creating different levels of pay in accordance with the scope of the Claim Handler's work, and by creating special mechanisms that 'soften' the impact of the retroactive application of the law. Second, a comparison between the various provisions of the Amendment and the legal situation that existed prior to the Amendment indicates that the change that the Amendment creates is not so dramatic, and in certain situations does not even change the state of affairs at all. For example, the determination of a 7.5% fee 'cap' for claims pursuant to the Claims of Holocaust Victims Law that were filed before the date of the enactment of the Amendment to the German Law, as specified above, constitutes only a clarification of the existing law. Thus, although prior to the amendment of the law the fee 'cap' in such cases was 15% pursuant to the provision of Section 10(b) of the Claims of Holocaust Victims Law, in fact in Regulation 4 of the Claims of Holocaust Victims (Handling Arrangements) Regulations, 5725-1965, it was prescribed that – "Notwithstanding that stated in any agreement, the total fee for the handling in Israel and abroad of a claim to increase an allowance or other amount that was ruled for the benefit of a claimant, due to changes in the law pursuant to which the allowance or the other amount was ruled, shall not exceed half of the maximum percentage that would have applied if it were not for the provisions of this regulation" (emphasis added). Hence, it is evident that even before the Amendment, the fee was limited to 7.5%, and the amendment of this section did not constitute a real change compared to the previous state. Indeed, determining a 'cap' in the amount of 25,000 NIS is new compared to the previous state, however, as the Respondents emphasized, these are extremely unusual cases and the application of this provision is marginal. In light of the above, I am of the opinion that in the circumstances at hand the bleak forecast regarding a "financial catastrophe" heading towards the Petitioners, grates on one's ear and is unfounded. The claims regarding the possible harm to lawyers' relatives and to the public purse, are no more than a general conjecture, which was argued weakly and was not sufficiently substantiated. Therefore, I am not of the opinion that they are of substance to justify the cancellation of the Amendment.

 

49.          On the other side of the equation, it seems to me that the Petitioners described the benefit that derives from the Amendment in an over-simplistic manner.  The benefit is more than just a profit of a few hundred or thousand shekels per survivor. There is first and foremost a value-based benefit. Once it became clear that there is an infuriating phenomenon among us of exploiting elderly holocaust survivors, we have the obligation to eliminate this phenomenon as per the words "So thou shalt put away the evil from the midst of thee" (Deuteronomy 17, 7). Heaven-forbid we shall close our eyes so we do not see and shut ears so we do not hear.

 

50.          Hence, the infringement of the Petitioners' rights complies with the limitation clause, and there is no constitutional ground justifying the cancellation of the Amendment or of a part thereof, or the suspension of the date it shall come into effect.

 

 

Flaws in the Legislative Procedure

51.          The Petitioners' second principle argument relates to the legislative procedure of the Amendment. According to them, the legislative procedure was "hasty, negligent and offensive". The Petitioners mainly emphasize the changes that were made at the last minute in the wording that was tabled in the Constitution Committee before the discussion in preparation for the second and third reading, which, according to them, included material additions that were not mentioned in the original wording. According to them, in the absence of a serious and thorough discussion regarding the Bill, it must be ruled that there was a flaw at the root of the legislative procedure that justifies the cancellation thereof.

 

52.          Case law prescribes that this court applies great restraint when reviewing legislative procedures. "The judicial restraint that is necessary in reviewing legislative procedures will not be assured by formal and technical criteria, but rather through the interpretation of the term 'a flaw that is at the root of the procedure', which limits it only to rare and severe flaws that severely and  evidently prejudice the fundamental principles of the legislative procedure in  our constitutional and parliamentary regime" (HCJ 4885/03 Israel Poultry Farmers Association Agricultural Cooperative Society Ltd v. The State of Israel, PD 59(2) 14, 42 (2004) (hereinafter: the "Poultry Farmers Case"); emphasis added). A number of fundamental principles have been listed in case law pursuant to which one must examine whether there has been a flaw at the root of the legislative procedure, and they are as follows: The principle of the majority rule, the principle of equality in the legislative procedure, the principle of publicity and the principle of participation (the Poultry Farmers Case, pages 43- 51). The Petitioners' arguments are directed towards the matter of the principle of participation. According to this principle, a  proper  legislative procedure  is a procedure in which the Members of Knesset have a proper and fair opportunity to formulate their position vis-à-vis the bill being discussed. The absence of a practical possibility for the Members of Knesset to formulate their position would be deemed a severe and evident infringement of the legislative procedure which could justify the cancellation thereof. The Petitioners argue that in the case at hand the quick procedure in which the Amendment was legislated impaired the Members of Knesset's ability to formulate their position, particularly with respect to the material parts that were added to the wording of the Bill on the eve of and during the second discussion in the Constitution Committee.

 

53.          I examined the matters and I am not of the opinion that in the case at hand there was a flaw in the legislative procedure, definitely not a rare and severe flaw that is at the root of the procedure. The attorney for the Knesset presented a long list of facts that indicate that there was no material flaw in the principle of participation in the legislating procedure of the Amendment: the procedure included, alongside the discussions in the Knesset's plenum, two discussions at the Constitution Committee, with the second one being lengthy and comprehensive; as emerges from the transcripts of the Committee discussions, the Members of Knesset actively participated in the discussions, presented reservations and added their remarks; the Committee discussions were characterized by significant presence of government representatives, including the Ministry of Justice, the Holocaust Survivors' Rights Authority, the Ministry for Senior Citizens, the Enforcement

 

and Collection Authority and the National Insurance Institute, as well as representatives from additional relevant organizations; most importantly, representatives of the Israel Bar Association, including some of the Petitioners in the case at hand, were present in the Committee discussions, and were granted the opportunity to voice their arguments with respect to the Amendment at length before the Members of Knesset, some of which arguments were even accepted and led to the amendment of the wording of the Bill. It is not superfluous to note that in this context the Petitioners in HCJ 1164/15 claim a conflicting argument, since alongside their argument that the legislative procedure was quick and hasty they argue that "the legislator was sufficiently aware of the material flaws at the root of the matter of the law at hand" (paragraph 73 of the Petition). In light of the above, the argument regarding a flaw that is at the root of the procedure is not to be accepted and the Petitioners' claim in this matter is to be rejected.

 

A Closing Remark

54.          The Petitioners' sincere concerns regarding the harm to their livelihood were not unnoticed. However, the severe harm to many holocaust survivors was also not unnoticed. I have no intention to discredit the Petitioners in any manner, who are presumed to perform their work faithfully, while striving to make an honest living and grant devoted and fair service to their clients. But one must see the reality as it is, and unfortunately it not 'rosy'. This is the reality that the legislator wished to amend. The purpose of the Amendment is worthy, and it means – proportionate. The Claim Handlers are remunerated for their work, and they are able to continue to make an honest living in accordance with the levels prescribed in the Amendment, each in accordance with his work and effort.

 

55.          Based on that stated above, we have decided to deny the petitions.

 

Given the circumstances of the matter, I would recommend to my colleagues not to issue an order for expenses.

 

JUSTICE

 

President M. Naor

 

1.            I agree with the comprehensive judgment of my colleague Justice Sohlberg.

 

2.            Some of the Petitioners before us have significantly contributed to the recognition of holocaust survivors' rights. Such as in the case of the struggle of the immigrants from Libya, a struggle that was both lengthy and not simple (see LCA 8745/11 Maimon v. The Competent Authority pursuant to the Nazi Persecution Disabled Persons Law, paragraphs 3-4 of the judgment of Justice Shoham and paragraphs 2-4 of the judgment of Justice Amit (November 10, 2013)). I am also willing to assume that some or all of the Petitioners have contributed to the legislative changes in Germany. However, when doing so the Petitioners were acting on behalf of other clients, who were naturally paying them fees. Now, following the administrative decision and the change in German law, the work that needs to be devoted is minimal;  the lawyers'  past contribution to these achievements cannot be taken into consideration while determining the fees charged for relatively simple actions of completing forms. The words of Adv.

 

Weber, Petitioner 2 in HCJ 687/15, in the course of the discussions of the Constitution, Law and Justice Committee, prior to approving the law for the second and third reading, testify to this, as he explained that "If I were to be approached today by anyone who would say to me: I received such a letter from Germany to do X, would I take money from him? I would do it for him for free. I would say to him: the stamp costs 4 shekels, I am willing to donate the stamp to you as well" (the minutes of meeting no. 281 of the Constitution, Law and Justice Committee, the 19th Knesset, 22 (December 28, 2014)). Adv. Weber should be applauded. It is not appropriate to obligate others to act like him, however his words testify as to the scope of the work that is required, and consequently as to the appropriate remuneration for this work.

 

3.            When examining the petitions, I was disturbed by the issue of retroactivity, however, as my  colleague pointed out  (paragraph 46  of his  opinion), in the provision regarding the restitution of payments that have already been made, the lawyer has the choice between returning only 25% of the surplus fee or conducting a restitution claim in the framework of which the lawyer will be able to argue that the restitution obligation is unjust.

 

THE PRESIDENT

 

Justice H. Melcer

 

I  concur  with  the  comprehensive  judgment  of  my  colleague,  Justice  N. Sohlberg and with the remarks of my colleague, President M. Naor.

 

 

JUSTICE

 

 

It was decided as stated in the judgment of Justice Noam Sohlberg. Delivered on this 22nd day of Tamuz, 5775 (July 9, 2015).

THE PRESIDENT JUSTICE                JUSTICE