In the Supreme Court as High Court of Justice

 

HCJ 6971/11

 

Before:                                    The Honorable President A. Grunis

                                    His Honor Justice N. Hendel

                                    His Honor Justice Z. Zylbertal

 

The Petitioner

 

                                    1.         Eitanit Construction Products Ltd.

 

                                    v.

 

The Respondents:

 

                                    1.         The State of Israel

                                    2.         The Knesset

                                    3.         Minister of Environmental Protection

                                    4.         Minister of the Treasury

5.         Mate Asher Municipality

                                    6.         Israel Union for Environmental Defense

                                    7.         Association for Quality of Life and the Environment in

Nahariya

 

                                    Petition for Temporary Injunction and Interim Order

 

Date of session:           23th Elul 5772; October 9, 2012

 

                                    Adv. Pinchas Rubin

                                    For the Petitioner

 

                                    Adv. Sharon Rotanshker

                                    For Respondents 1, 3-4

 

                                    Adv. Avital Semplinski

                                    For the Second Respondent

 

                                    Adv. Eitan Maimoni

                                    For the Fifth Respondent

 

                                    Adv. Keren Halperin-Mosseri

                                    For the Sixth Respondent

 

                                    Adv. Moshe Goldblat

                                    For the Seventh Respondent

 

 

 

 

Judgment

 

Justice N. Hendel

1.A petition against the constitutionality of section 74 of the Prevention of Hazards from Asbestos and Harmful Dust Act, 2011 (“Asbestos Act”) is before us. This section declares the launch of a project to remove asbestos waste from the Western Galilee (“The Project”). The petition objects primarily to the requirement that the Petitioner, Eitanit Construction Products Ltd. (“Eitanit”), to shoulder half of the expenses of the project, up to NIS 150m.

General Background – Asbestos:

2.Asbestos is an umbrella term for a group of fiber minerals, with high insulation and resilience properties. Because of these qualities, for hundreds of years asbestos has been widely used for industrial purposes, such as producing protective gloves and other gear, acoustic insulation boards and more.

Currently, it is known that crisp asbestos, that is: asbestos in ground or powder state, is a dangerous substance that may cause cancer. Crisp asbestos releases tiny fibers into the air, which enter the respiratory system and harm lung tissue. Among the first diseases recognized as linked to asbestos was asbestositis: the shrinking and scarring of lung tissue, which causes shortage of breath and a decline in lung functions. Another disease is mesothelioma: a cancerous tumor that harms the lungs, heart and abdomen.

The petition before us, as will be explained below, deals with a material called asbestos-cement. It is a compound made of approximately 10% asbestos and 90% cement, in hard from. Out of this asbestos-cement mixture products such as pipes and boards may be manufactured. As long as the asbestos-cement remains in hard from, the asbestos fibers are contained in the cement. This may change when the asbestos cement – or the product manufactured from asbestos-cement – is eroded, cracked or broken, then the dangerous asbestos fibers are released into the air.

Awareness of the dangers of asbestos has grown over time. As early as the beginning of the 20^th century, information about the prevalence of asbstositis among workers exposed to asbestos has accumulated. Later reports proliferated about different cancers among asbestos workers. In 1976, after a comprehensive examination of the scientific material, the International Agency for Research of Cancer (IARC) recognized asbestos as a substance certain to cause cancer in humans (Class I). Additional research indicated that health risks were caused not only to asbestos workers but to those who live in close proximity to asbestos mines, as well as family members of asbestos workers (generally, for an updated review of asbestos risks by IRAC, see Monographs.iarc.fr/ENG/Monographs/vol100C/mono100C-11.pdf)

The Petitioners and the Asbestos Industry

3.In 1952 Eitanit set up an asbestos-cement factory in the Nahariya area (“the factory”). Work in the factory included two stages: in the first stage, the factory imported raw asbestos to Israel and made asbestos-cement out of it. In the second stage, final asbestos-cement products, such as pipes and boards, were manufactured. The factory was closed in 1997.

Over the years, and during production processes, a significant amount of industrial asbestos waste was amassed in the factory (“the waste”). Eitanit disposed of the waste in two ways: one, it sold or gave away the waste to third parties, which I will refer to as end users, that used the waste primarily for surfacing, for instance to pave roads or parking lots. Second, Eitanit buried the waste in the ground. The first method of removing the waste – that is, selling or giving it away, probably stopped around the late 70’s.

In any event, the waste was distributed in dozens of locations around the Western Galilee. Both the waste that was buried and the waste that was used for surfacing risks area residents’ health to this day. The waste is partly crumbled, causing asbestos fibers to be released into the air. Additionally, the daily use of the surfaces which were covered with asbestos uncovers masses of crisp asbestos and create a health hazard. Surveys commissioned by the State revealed that the asbestos waste distributed in the Western Galilee amounts to about 30,000 cubed meters and the State evaluates that the clean soil that was polluted by this waste amounts to about 150,000 cubed meters The Petitioner, however, believes that the ratio between the waste and the polluted soil is 1:3, not 1:5.

The Previous Proceedings Regarding the Petitioner:

4.The petition before us deals, as mentioned, with a project to remove asbestos waste that arguably came from Eitanit’s factory. But this is not the first round of proceedings on this matter between Eitanit and State authorities.

As some point, Eitanit began to remove some of the asbestos waste to a site within Shlomi municipality (Hanita mine), without permit or license to do so. In 1981 the Ministry of Health demanded Eitanit cease from this practice and the site was closed. Consequently, Eitanit buried waste at the Sheikh Danon site, also without permit or license. In March 2002 the Ministry of Environmental Protection (“the Ministry”) issued conditions for temporary permits that would allow restoring the site at Sheikh Danon. In a petition by Eitanit against the Ministry, which was dismissed, the court pointed out that the demand to require Eitanit shoulder the cost of the site’s restoration is “natural and obvious” (AP 589/02). Ultimately, in 2003, after additional legal proceedings, the Sheikh Danon site also closed.

In 1998, after the factory was shut down, the City of Nahariya initiated a project to build an amusement park called “The Children’s Land.” The park was meant to be located on the beach, adjacent to the closed factory. When it was revealed that the area was polluted with asbestos, the Ministry issued a decree to preserve cleanliness, according to section 13b of the Maintenance of Cleanliness Act 1984. The City of Nahariya announced it would clean the area from asbestos, and consequently sued Eitanit for reimbursement of costs. In 2007 the dispute between the City and Eitanit regarding that area was settled.

In 2005 the Minister of Environmental Protection (the Minister) met with representatives of Eitanit and of the City, in an attempt to reach an agreement for co-funding asbestos waste removal from the Western Galilee. The attempt failed. In May 2007 negotiations between the parties resumed. Eitanit proposed, among others, that it remove the waste on its own. In November 2008, the Ministry notified Eitanit of a decision that the State would no longer facilitate a mutual agreement.

In December 2008 the Asbestos Act memorandum was distributed. The Act aimed to resolve a whole host of environmental issues around asbestos hazards in Israel. Among others, the Act included a specific section that addressed the project of removing asbestos waste from the Western Galilee. This is section 59 of the bill, which eventually became section 74 of the final Act and is the section at the center of this petition. We will address the Act and the section in further depth. Briefly, the section required Eitanit to fund half the project to remove asbestos waste from the Western Galilee. In 2009 the bill passed its first reading, and was referred to the Interior Committee and the Environmental Protection Committee. Eitanit’s representatives attended the committee’s meetings, and presented their arguments against the proposed arrangement. In March 2011, the bill passed its second and third readings.

Simultaneously, the Ministry published a tender to select a corporation that would manage the removal project. Negotiations were conducted with Eitanit, along with others, and in December 2009, it proposed participating in the project at the cost of NIS 10m, a sum that was later updated to NIS 15m. There were big gaps between parties regarding calculating costs, including due to different estimations of the amount of soil polluted and of the cost of removal. In November 2010, when the negotiation was complete, the Ministry of the Treasury notified Eitanit that its financial proposal for the project was rejected and Eitanit responded by withdrawing the proposal altogether.

In June 2011, after the Act’s publication, Eitanit complained to the Minister of Environmental Protection that section 74 creates extraordinarily important constitutional problems. It suggested the Minister institute regulations that would prevent, or at least reduce, the infringement of Eitanit’s rights. In response, the Minister emphasized that the constitutional issues were already discussed comprehensively and thoroughly before the bill passed. Later, in August 2011, the Minister provided Eitanit with a draft of instructions for implementing section 74 for its review. The draft did not satisfy Eitanit, and correspondence between the parties continued. Eventually, in September 2011, the Minister signed the final version of the instructions. Once Eitanit concluded it had exhausted the proceedings to temper section 74, without a satisfactory minimization of its harm, it filed the petition before us.

On the Prevention of Hazards from Asbestos and Harmful Dust Act (Asbestos Act)

5.The Asbestos Act was designed to reduce the environmental and health hazards caused by asbestos or by other harmful dusts. The purpose is ensuring an adequate environment under the principle of preventative care and the improvement of quality of life and the environment (section 1).

The Act expressly prohibits manufacture, import, possession and use of asbestos in any way and for any purpose, unless permitted by the Act (section 3). The Act regulates the continual use of existing asbestos in public places and factories (sections 4-8). The Act prohibits anyone from creating an asbestos hazard, that is: causing the existence of asbestos fibers in the air, and requires the creator of the hazard to remove it at their own expense (sections 10-11). The Act also regulates methods for handling asbestos, including the granting of licenses and working with asbestos (chapters E-F). There is also an option to apply several of the Act’s provisions to other materials that may be defined as harmful dust (section 71).

Section 74 was designated to address the asbestos hazards in the Western Galilee. This is the section the petition before us focuses on. The language of the section is as follows:

“(a)            In this section –

“the project to remove asbestos from the Western Galilee” – a project to locate, remove, and bury asbestos waste which originated from a factory for asbestos manufacture in the Western Galilee, which was buried or distributed in a radius of up to 15 KM from the factory, except for land owned by asbestos companies, at an extent and measures instructed by the Minister in consultation with the Minister of the Treasury, and as it pertains to the funding aspects of the project, with the consent of the Minister of the Treasury;

“Asbestos Companies” – companies that manufactured asbestos in the Western Galilee prior to the day this Act came into effect.

(b)              The project of asbestos removal from the Western Galilee will be funded through the State budget, payments from asbestos companies, and payments from local authorities within whose jurisdiction the project will take place (“local authorities”).

(c)              A separate account will be managed in a trust to preserve cleanliness and will be used to fund costs, direct or indirect, of the project for asbestos removal from the Western Galilee (in this section – “the separate account”).

(d)             The Minister, with the Minister of the Treasury’s consent, after providing the local authorities and the asbestos companies the opportunity to present their arguments, will order the sums that the local authorities and the asbestos companies will transfer into the separate account and the schedule for payments, as long as the entire sum from asbestos companies will be equal to the entire sum from the state budget and the local authorities combined. However, the entire sum from the asbestos companies may not exceed NIS 150m.

(e)              While setting payment sums and schedules according to section (d), the Minister will consider, among others, the scope of the state budget dedicated to funding the project generally, the sums already actually expended, and regarding local authorities – the identity of property rights holders in the land where asbestos is found, the use of these lands and the extent of the authorities’ responsibility over them, as well as the local authorities financial state.

In other words, a project for the removal of asbestos waste from Eitanit’s factory that was buried or distributed in a radius of up to 15 KM from the factory would be launched. In this regard “asbestos waste” includes asbestos that was broken, cracked or fractured, or broken as well as asbestos that is unused (as defined in section 2). It should be noted that the statute does not explicitly mention Eitanit’s name, but instead uses general language – “asbestos companies” and “a factory for asbestos manufacture”. Still, as will be clarified below, there is no dispute that the statute in effect targets only Eitanit and its factory; it is the only company in the Western Galilee area that manufactured asbestos.

The project would be funded from three budgetary sources: the State, the local authorities in whose jurisdiction the project will take place, and Eitanit (who, as mentioned, is not explicitly mentioned by name in the section.) The Minister will establish the extent and process of the project. Additionally, the Minister will set the sums that the local authorities and that Eitanit will transfer, once their arguments are heard. Setting the amounts of participation is subject to two restrictions. First, the sum that Eitanit transfers will be equal to the total sum the State and the local authorities transfer, combined. Second, the sum Eitanit transfers must not exceed NIS 150m.

In September 2011 the Minister signed the implementation instructions. They stipulate that the project will take five years, and will be executed by a managing company chosen by tender. A local authority’s participation will be calculated as 10% of the removal cost, through equally valuable operations, including restoration. To set the sums required from Eitanit, the company will receive itemized reports of expenses every three months, along with a detailed report of the sites where the removal was done and the amount of waste removed. Eitanit will have 30 days to respond to each bill (annexure 20 to the State’s responding papers.)

The Parties’ Arguments

6.Eitanit claims, in essence, that section 74 infringes its right to property and rights to equality, without passing the conditions of the limitations clause.

The infringement on property rights manifests in the very imposition of financial burdens, exacerbated by the severe and retroactive responsibility without demonstrating fault or liability. The infringement of equality was caused by discriminating against Eitanit compared to others – asbestos importers, end users and future polluters – who have been partially or fully absolved from any liability regarding asbestos waste.

The infringement of property and equality does not pass, as the argument goes, the tests set by the limitations clause. It is not an infringement or restriction by statute, as this is personal legislation. It is not for a worthy purpose that befits the values of the State of Israel, as Eitanit was retroactively tainted as a lawbreaker without evidence it actually did pollute the land. And finally, the infringement is not proportional: the statute does not advance the end of channeling the conduct of offenders or to deter them, so that there is no rational connection between the ends and the selected means. Other less restrictive means were available, for instance: allowing Eitanit to execute the project on its own or valuing its participation in funding the project according to the extent of its liability. In any case, the benefits of this section are minimized compared to the harms caused to Eitanit.

Ultimately, Eitanit asks we void section 74. Alternatively, it suggests other remedies, in the following order of preference: directing the Minister to set regulations that would de facto release Eitanit from the mandates of section 74, allowing more proportional means (such as paving paths or performing other aspects of the project by Eitanit), directing the Minister to hold a proceeding where Eitanit could be heard and the Minister would be able to consider the extent of its liability regarding the entire area effected by the project.

7.The State emphasizes that section 74 is designed to apply only to industrial waste that resulted from Eitanit’s factory’s operations. It does not apply to complete asbestos-cement products that were purchased by end users and then disassembled and discarded, but only to the waste that Eitanit produced.

The State is willing to assume that the statute infringes upon Eitanit’s property rights. However it disputes the infringement to the right to property: it raises misgivings as to whether the right to equality should apply to corporations, and argues that in any case Eitanit’s right to equality was not infringed here as there is a relevant difference between Eitanit and the other entities it had identified.

The State continued its constitutional analysis on this foundation. The infringement is by statute, albeit personal legislation. The infringement is for a worthy purpose – the removal of serious environmental hazard in the Western Galilee. The statute relies on the principle of “the polluter must pay” that derives from rationales as efficiency, deterrence, and justice. As for the issue of proportionality, there is an obvious connection between the ends – cleaning the Galilee from asbestos waste, and the means – launching the project. The mean selected is mild, as Eitanit shoulders only about half of the project’s cost, and in any case no more than NIS 150m. The proposal that Eitanit itself will clear the land was discussed between the parties for a long period of time, but turned out to be impractical and ineffective. Finally, the benefit derived from the statute (eliminating proven health risks) far outweighs the harm caused to Eitanit, if any.

8.Many of the sites intended for waste removal are located within the territory of the local authority of Mate Asher, the Fifth Respondent. In its response to the petition, the local authority emphasized that Eitanit turned a substantial profit from selling asbestos-cement waste, though it knew in real time, or at the very least should have known – about the dangerous outcomes of asbestos exposure. The local authority additionally notes that the basic rights on which Eitanit hangs its hat, if any, should yield to the rights to life and to bodily integrity of those actually and potentially harmed by asbestos.

The Sixth and Seventh Respondents are public non-governmental organizations active in environmental preservation and protection. They reiterate that the statute was born out of all the failed attempts to consensually address Eitanit’s financial liability. In this regard, the Respondents refer to the principle of extended producer responsibility (EPR), which would have manufacturers responsible for their products’ environmental impact during the entire life cycle of the product. This principle is applied in different contexts in many of the OECD states, an organization of which Israel is now a member.

9.To paint a complete picture, we should note that on October 9, 2012 a hearing was held for this petition. At the end of the hearing we ordered the parties to notify the Court, within 60 days, whether a settlement was possible. On November 16, 2012, the Respondents notified the Court that they believe any arrangement different to that which the legislature mandated in section 74 would be inappropriate. We must therefore rule on this petition.

It should also be noted that Ms. Ayelet Bruner has moved to join as respondent. As the motion explains, her husband – a resident of Kibbutz Kabri, which is adjacent to the factory – died of mesothelioma due to asbestos dust exposure, and Ms. Bruner has therefore filed a tort suit against Eitanit and the State. Ms. Bruner argues that she holds additional evidence that Eitanit and the State notified here at the relevant times about the risks of asbestos. Under the circumstances her arguments were included, explicitly or implicitly, in the other parties’ arguments, and thus we do not believe it appropriate to formally join her to the petition.

Discussion and Ruling

I. Comparative Law

10.The issue before us is universal. It stems from the connection between humanity and the land. In more detail, it is a result of the conflict between humanity’s desire to control the environment and the cost of this progress.

The dialectics that arise because of humanity’s ambition to develop and evolve is addressed in Jewish law, and is timeless. Its roots can be found in the first human himself. In the Book of Genesis, man is commanded: “be fruitful and multiply and inherit the earth” (Genesis 1, 28). In his monumental manifest, “The Lonely Man of Faith,” written almost 50 years ago, Rabbi Yosef Dov Halevi Soloveitchik mentions that in the beginning of the Book of Genesis there are two descriptions of the creation of man to emphasize his two facets. The first man, described in chapter 1 of Genesis, about whom it was said that he was “created in God’s image” (Genesis, 1, 27), is creative. “He engages in creative work, trying to imitate his Maker … In doing all this, Adam the first is trying to carry out the mandate … "to fill the earth and subdue it." … man’s dignity, manifested in man’s awareness of his responsibility and ability to fulfill his duty, cannot be realized as long as he does not control his surroundings… there is no dignity without responsibility, and one cannot shoulder responsibility as long as one cannot fulfill the commitments involved… we have obtained the following triple equation: human dignity-responsibility-majesty.” (The Lonely Man of Faith, J.B. Soloveitchik, Tradition Magazine (summer 1965), Rabbinical Council of America. Hebrew translation by Mossad HaRav Kook Publishing, 8^th edition, 2002, pp. 13-18.) Control over the environment – a mixed blessing. In conquering nature, humanity is impressive in its creativity and progression from one generation to the next. However, its comprehension is limited. Humanity cannot know, at the same time it controls the environment, what toll this “progress” may take.

Jewish law was even sensitive to this aspect. The rule is – do not destroy (Talmudic Encyclopedia, volume 3, under “do not destroy”, in Hebrew – “Bal Tashchit”.) Originally, the prohibition is on destroying fruit-bearing trees during a wartime siege: “should you siege a city many days in order to fight and conquer, you shall not destroy its trees.” (Leviticus 20, 19-20). However, Jewish law’s sages interpreted the prohibition broadly. The Book of Education (=Sefer ha-Chinnuch), that summarizes all 613 commandments (authored in the 13^th century, likely by Rav Aharon Levi of Barcelona), explains the reasons and application of this commandment:

“The root of the commandment is known to be teaching us to love good and utility and stick to it, and in turn good will stick to us and we will distance from all evil and destruction. It is a way of the pious and men of action, peace lovers, those who rejoice in the good of people and bring them closer to the Torah, who will lose not even a mustard seed, and will grieve any loss or destruction that they come across, and if they could they would rescue anything from ruin with all their might.” (Torah portion of “Judges” [=Shoftim].)

Rav Shneor Zalman of Lyadi, (founder of Chabad Russia in the 18^th century) believes the “do not destroy” prohibition applies even to the abandoned:

“Just as one must be careful of loss, damage or harm to one’s body, so must he be careful of loss, damage or harm to his funds. And anyone who breaks tools or clothes or demolishes a building or clogs a pool or discards food or spoils anything else that should be enjoyed by people is violating the commandment ‘do not destroy’… even if abandoned.” (Shulchan Aruch Harav, Choshen Mishpat…)

Therefore the matter is not preserving the property rights of others in the private sense, but of the environment as a right to property.

The above functions as normative background to the issue at hand. In recent years, all around the world, countries have been required to face different dilemmas regarding the environment. A significant portion of these dilemmas incorporates legal, economical and moral aspects, among others. Among these, the removal of polluting waste – the issue at the core of this petition – is a matter that carries real weight. Asbestos, specifically, has proven to be a strong, efficient material, with many uses. Over time, its harm was discovered to tremendously outweigh its utility.

Since the 20^th century, different countries have faced the problem of cleaning the environment from asbestos, determining who must shoulder the burden of implementing and funding the task. Therefore, I found it fit to turn to the relevant legal framework in several key countries overseas. Of course, we should not automatically apply those here. But because of the universal character of the issue before us, I believe there are benefits to paying attention to legal trends in the world. It should be noted, before presenting the legal situation in other countries, that the legislation I mention applies to asbestos as part of a broader group of polluting or dangerous materials.

11.In 1980 the federal Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) was passed in order to address environmental hazards. CERCLA was designed to regulate the removal of polluting materials from dangerous waste sites that were abandoned or stopped operating. It places the obligation to fund the cleaning process on the creator of the hazard (see Karen S. Danahy, CERCLA Retroactive Liability in the Aftermath of Eastern Enterprises v. Apfel, 48 B 509, 530 (2000)). Below we focus on two elements of CERCLA that are particularly pertinent to the case at hand: strict liability and retroactivity.

The case law has found CERCLA to establish strict liability. There is no question whether, and to what extent the hazard creator violated its duty of reasonable care or is in any way blameworthy for the risk it created. Therefore the creator of the hazard will be liable even without proof that a duty of care was not fulfilled (Alexandra Klass, From Reservoirs to Remediation: The Impact of CERCLA on Common Law Strict Liability Environmental Claims, 39 Wake Forrest L. Rev. 903 (2004) and see Israel Gilad, Tort Law – Liability’s Limits, 1190 B.H.S. 167 (2012), which addresses the distinction between strict liability and absolute liability, where the latter “is not subject to any defenses.”) Although the principle of strict liability was not written explicitly into CERCLA, the case law found that the legislative history – including minutes from committees and general discussions in the House of Representative and Congress – reveal this was the legislature’s intent (see New York v. Shore Reality Corp., 759 F.2d 1032, 1042 (2^nd Cir. 1985); General Elec. Co. v. Litton Indus. Automation Sys. Inc., 920 F.2d 1415, 1418 (8^th Cir. 1990); Burlington N. Santa Fe Ry. V. United States, 556 U.S. 599, 608 (2009)).

The strict liability standard did not appear out of nowhere. At common law, strict liability is a prevalent standard for particularly dangerous tortuous activity. A British judgment from the 19^th century, Rylands v. Fletcher, considered a water reservoir that exploded and flooded a neighboring coalmine (Rylands v. Fletcher, L. R. 3 H.L. 330 (1868)). The House of Lords held the defendant liable, though no negligence by him was proven, because the reservoir was found to be “likely to do mischief if it escapes.” Nowadays, the second and third Restatement of Torts notes that whoever conducts abnormally dangerous activity will be liable for damages resulting from that activity, even if maximal precautions were taken (Restatement (Second) of Torts § 519(1) (1977); Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 20 (2010)). This is the historical-legal foundation from which CRECLA’s strict liability standard stems.

Based on the legislative history, the case law and the scholarship presented about CERCLA, another reason for strict liability arises: conventional legal methods have failed to combat the occurrence of polluting waste. This reason, which is rooted in the legal realism school of thought, has helped to shape legal policy. Among other considerations in favor of placing strict liability are reasons of justice: in the absence of blameworthiness, it is justified to place a risk on the party who created that risk and has financially benefited from it (Lynda J. Oswald, Strict Liability of Individuals Under CERCLA: A Normative Analysis, 20 B.C. Enntl. Aff. L. Rev. 579 (1993)). While the legislation has been opposed for placing liability without fault, the position that allocating costs to the polluter was found to outweigh placing those costs on all of society. This was also due to the link between the polluter and harm, both in terms of creating that harm and in terms of profiting from it.

From another perspective, one might ask what is the economic benefit in placing liability without fault? Where is the deterrence in this? The answer is in the distinction between cost internalization and cost externalization. Under this theory, whoever handles material that pollutes or is likely to pollute should consider the possibility of strict liability. To reduce potential future costs, such party would initiate from the get-go research and experimental activity the produce a more cost-effective and environmentally friendly product, or at least one that has less potential for harm. The polluting party, who has expertise and capabilities, is in a better position to take such preventive measures. Under this approach, it is strict liability that creates deterrence (for more, see Mark Wilde, Civil Liability for Environmental Damage: A Comparative Analysis of Law and Policy in Europe and the United States (2002); Lucas Bergkamp, Liability and Environment: Private and Public Law Aspects of Civil Liability for Environmental Harm in an International Context (2001)).

As mentioned, CERCLA imposes liability even on whoever produced and distributed dangerous materials before the legislation’s enactment, though this activity was permissible at the time. CERCLA had to face facts already on the ground. In this context, too, the American statute did not explicitly create retroactive liability. American law, it should be reiterated, includes a rebuttable presumption that legislation does not apply retroactively, unless the legislative intent was clearly different (Landsgraf v. Usi Film Prods., 511 U.S. 244 (1994); Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). However, the case law recognized CERCLA’s retroactive application, realizing this was clearly the legislative intent. It was understood from the statute’s language, its history and the payment mechanisms it established (U.S. v. Hooker Chem. & Plastics Corp., 680 F. Supp. 546 (W.D.N.Y. 1988); U.S. v. Olin Corp., 107 F.3d 1506 (11^th Cir. 1997)).

CERCLA’s retroactive application survived judicial review. The case law held that this aspect of the statute did not violate due process, because of its rational and legitimate purpose to clear sites that are no longer in operation of their dangerous waste. Additionally, the legislation was not arbitrary or irrational because it burdened the entity that polluted and profited from that pollution (U.S. v. Ne. Pharm. & Chem. Co., 810 F.2d 726, 732-34 (8^th Cir. 1986)). The case law found that without retroactive application achieving the legislation’s purpose – cleaning existing waste – is impossible. We should note the similarities between these tests to those in Israeli law’s limitation clause.

12.In 2004, a directive was passed by the European Union (“EU”) regarding the liability for environmental harms: Environmental Liability with Regard to the Prevention and Remedying of Environmental Damage (ELD). The core principle of the directive is “the polluter must pay” – whoever caused environmental harm through their actions must shoulder the financial consequences.

The ELD’s instructions do not require EU member states to set retroactive application. Put differently: liability applies to environmental damage even if it occurred before the statutory prohibition came into effect. As to the scope of liability, the ELD directive distinguishes between categories. The first is that of strict liability and it applies to harm caused by dangerous activities listed in the directive’s third appendix. The second category is of fault-based liability, and it applies to all other activity that may have caused harm to nature reserves or protected animal species. Notably, earlier versions of the directive expressed support for broader application of strict liability. In 1993 the Commission issued a “green document”, a non-binding working paper of sorts, that detailed the justifications for a strict liability standard for environmental damage (Commission Green Paper on Remedying Environmental Damage (COM 1993) 47 final (May 14, 1993)). Consequently a semi-binding principles document, a “White Paper” was issued in 2000 (Commission White Paper on Environmental Liability (COM 2000) 66 final (Feb. 9, 2000)). This document discussed at length the evidentiary challenges of a fault-based standard, which may be resolved by a strict liability standard, and argued that there is greater level of justice in imposing strict liability on polluters. Additionally, the doctrine of cost internalization was emphasized as a measure of deterrence.

In reality, European countries adopted various approaches (on the legal state in Europe, see: Chris Clarke, Update Comparative Legal Study (2001); Robert v. Percival, Katherine H. Copper & Matthew M. Gravens, CERCLA in a Global Context, 41 SW. L. Rev. 727 (2012); N.S.J. Koeman, Environmental Law in Europe (1999). Sweden imposes strict liability for any pollution that harms or may harm people and the environment (Sweden Environmental Code, 1998). Such is the law in Switzerland, which is not a member of the EU (Environmental Protection Act of 1983, §4), and in France (Percival, Cooper & Gravens, 740). Holland distinguishes between two pieces of legislations: the statute from 1982 (Soil Clean-up (Interim) Act of 1982) applies retroactively from 1975 onward, because a polluter from that date forward ought to know it may be liable for its actions. This means that should the state remove pollution created after 1975, it may demand the polluter to shoulder costs, as held by the Holland Supreme Court (State v. Van Wijngaarden and State v. Akzo Resins (24.4.1992)). The legislation from 1994 focuses on administrative orders for removal of hazards. The agency employs this legislation, with a degree of success, to order a polluter or landowner to remove pollutions created before 1975. There is also a mechanism of environmental insurance shared by Dutch insurance companies (Nederlandse Milieupool), which aims to provide coverage, including for costs incurred by removing pollution, through direct payments to end users (Percival, Cooper & Gravens, 744; Wilde 203). In Spain, the relevant statute (Wastes Law tit. V (B.O.E. 96, 1998)) places responsibility for cleaning the polluted site on the polluter. This is retroactive and strict liability. In 1998 Germany adopted the federal statute that regulates protection of land from pollution (The Federal Soil Protection Act). The Act establishes strict liability, but the scope of actual compensation may be reduced according to the extent of the polluters’ liability. In Finland, new legislation from 2000 (Environmental Protection Act) applies strict liability on any kind of pollution, but not retroactively. The situation in Britain is highly similar to the legal situation in the United States under CERCLA. The British Environmental Protection Act of 1995 imposes retroactive strict liability for removal of hazards, regardless of the time the pollution was created and without an exhaustive list of polluting materials.

In Canada, relevant environmental legislation is not federal. Generally, legislation in most of Canada’s provinces is based on the principle of “the polluter must pay” while adopting strict liability standards. In Saskatchewan, legislation imposes strict liability to remove hazards on their creator (Environmental Management and Protection Act). In Nova Scotia, anyone who releases polluting material into the environment is obligated to reverse the pollution and remove the polluting material (Nova Scotia Environment Act, 1994-1995 S.N.S., ss. 67(2), 68(2)). The most restrictive standard of liability is that of British Columbia (Environmental Management Act, S.B.C.). This statute requires the manufacturer of a dangerous material, or anyone interested in that dangerous material’s removal, to remove it, as well as places retroactive strict liability upon them for the removal and rehabilitation of the polluted area. The statute clarifies that this obligation applies even when no legislation prohibited pollution at the time the pollution was created.

The Constitution of South Africa guarantees the right of each person to an environment that is not harmful to health or welfare (S. Afr. Const. §24(a), 1996). Following this right, South Africa’s National Environmental Management Act of 1999 (NEMA) requires anyone who has polluted or harmed the environment to remove that hazard and rehabilitate the damaged area. The statue does not explicitly establish strict liability, but the South African High Court (Transvaal Provincial Division) ruled that strict liability applies to owners of polluted land. However, the court ruled that the legislation is not retroactive as the legislature did not intend as such (Chief Pule Shardrack VII Bareki and Others v. Gencor Limited and Others (2005)). 

13.To end this part, let us recall that the environmental policy termed “Extended Producer Responsibility” (ERP) is widespread in Europe. This policy aims to extend the manufacturer’s liability to a product’s entire life cycle, even after the product is out of the manufacturer’s possession, or is no longer in use. It is rooted in the expectation that a more suitable policy would incentivize manufacturers to factor in, as early as when a product is being designed, environmental concerns such as improving the prospects for recycling the product, reducing the use of materials, etc. (see an overview by the OECD: www.oecd.org/env/tools-evaluation/eprpoliciesanIsrSCroductsdesigneconomictheoryandselectedcasestudies.htm).

In practice, the EPR doctrine brings different policy tools together: burial tolls, deposits, subsidies, and other taxes. Therefore, for example, in 1994 the EU issued a directive regarding packaging waste. The directive regulates manufacturing packages, as well as sets quantity goals for collecting and recycling packaging waste (for more on implementing the EPR policy in European Union countries see: Aaron Ezroj, Extended Producer Responsibility Programs in the European Union, 20 Colo. J. Int’l Envtl. L. & Pol’y 199 (2009)).

14.In summary, the overview above reveals different and similar components. As far as imposing strict liability on the polluter, a consensus emerges, certainly regarding inherently dangerous materials such as asbestos. Of course there are countries that have tied the extent of that strict liability to the level of fault. As for retroactive application, it appears there are different approaches: those who support retroactive application and those who oppose it. The implication of this review on our case will be clarified below.

II. Constitutional Analysis

15.We now turn to examining the constitutionality of section 74 in Israeli law. First we must consider the rights Eitanit argues were violated. Then we may discuss whether that violation, if any and to what extent, passes the tests established in the limitation clause of section 8 of Basic Law: Human Dignity and Liberty.

A. The Violated Rights

(1). The Right to Property

16.The right to property is enshrined in our law in section 3 of Basic Law: Human Dignity and Liberty. This right is accorded to corporations as well (see HCJ 4885/03 Israel Poultry Farmers Organization, Cooperative Agricultural Union Ltd. v. the Government of Israel, IsrSC 59(2) 14, (2004) at para 41 of Justice Beinisch’s opinion and citations there.)

The State agrees that section 74 infringes Eitanit’s right to property. In any event, this point needs no elaboration. I will only remark that according to Eitanit its property rights are violated not only by imposing financial obligations, but also by imposing a seemingly retroactive obligation without examining whether Eitanit is at fault. I will address these to aspects of section 74 in depth below.

(2) The Right to Equality

17.Eitanit’s argument is twofold. First, it should enjoy constitutional protection of its right to equality. Second, this right has been violated.

Still, the first prong is not at all simple. In Israel, constitutional protection of equality rights flows from the constitutional protection of human dignity. This is because the right to equality is not explicit in the Basic Laws. It is a hybrid model of sorts, in the sense that violations of equality rights are recognized only in the – rather broad – context of harms to human dignity. In regards to the latter the case law has adopted the approach that the constitutional protection covers not only humiliation or indignities, but also other aspects closely related to human dignity. For our purposes, this means that the constitutional protection of equality applies only to discrimination that humiliates and disgraces, or discrimination that is closely linked to human dignity (HCJ 5427/02, Movement for Quality of Government v. the Knesset, IsrSC 61(1) 619, at para 38 of President Barak’s opinion (2006); HCJ 6304/09 L.H.B v. the Attorney General, at para 76 of Justice Procaccia’s opinion (Sep. 2, 2010)). In this view, it is doubtful whether the constitutional right to equality should extend to a legal entity that is not flesh and blood (compare: HCJ 4593/05 United Mizrahi Bank Ltd. v. the Prime Minister, at para 10 of President Barak’s opinion (Sep. 9, 2006); HCJ 956/06 Israel Bank Union v. Minister of Communication, at p. 12 of Justice Hayut’s opinion (March 25, 2007); Ofer Sitbon, On People, Corporations, and everything in between, Kiryat HaMishpat 8, 107 (2009)).

In the case before there is no need to decide the general issue of the scope of constitutional protection for corporations’ equality rights. The reason for it is that I believe, as detailed next, Eitanit was not discriminated against at all. Incidentally, there may be instances where discrimination or lack of equality in the corporation context would require consideration. Two examples suffice: first, a statute that taxes a company owned by Arabs differently than a company owned by Jews. Even if the State would argue that the taxation applies to the corporation and not the individual, this is a matter that must be adjudicated. This example is easier because although there is discrimination between corporations – it is based on grounds involving people. The second example, which is the more pertinent for our purposes, is that of a corporation that claims a certain tax is imposed only on that corporation and not on any other corporation in the country. The argument is clear and notable, and renders discussion. However the violation, to the extent it exists, is not one of human dignity as applied to a corporation but of the right to property. The approach that infringements upon human dignity do not apply to a corporation, does not absolve the state from its duty to fend off the argument that the statute infringes upon the right to property, even if that infringement stems from a discrimination claim. Clearly, fleshing out the infringement upon property is different than fleshing out a direct infringement upon equality. The State may overcome the argument about violations of property rights in at least two ways: first, that there is no violation, and second, that the violation withstands the limitations clause. In our case, to me, the State’s response on this point is satisfactory even if we assume that a corporation has a constitutional right to equality, and this is also true when we explore the lack of equality in the context of infringement of property rights.

18.On one hand, Eitanit claims it suffered discrimination because it was required to shoulder the costs of removing asbestos waste discarded by asbestos importers. Additionally it is required to bear removal costs instead of those who have purchased final asbestos-cement product from Eitanit over the years, used them, and ultimately discarded of them. Obviously, there are financial ramifications to this.

Yet these arguments must be rejected in light of the statute’s language. The “waste population” subject to section 74 is industrial waste that came from operations at Eitanit’s factory. This definition excludes two types of waste: (a) completed asbestos-cement products, such as pipes and boards, that have been passed on to end users and then dismantled, discarded and gradually became waste (“the first exception”); (b) asbestos waste that came from production processes of others besides Eitanit (“the second exception”). These two exceptions are not included in the definition of “waste population” to which section 74 applies.

To clarify, the record reveals that professionals can easily distinguish asbestos waste that originated in production processes from completed asbestos-cement products that have been discarded post-use (the first exception). First, asbestos waste is a batter-like, non-homogenous mix that comprises of lumps and excess raw asbestos, cement, board and pipe debris made out of asbestos-cement. Additionally, some of the waste sites are built in layers: a layer of waste, above it a layer of soil, then again a layer of waste, and so on. In some sites the sacks used to bring in the waste were visible. These techniques indicated the methodical and lengthy process of waste removal, through burial or surfacing. These are not  random or accidental piles of asbestos-cement products that have been worn out and discarded absentmindedly.

This said, the language of the statute releases Eitanit from paying for the second exception – asbestos waste that originated in the production processes of others. This raises a separate question: how do we know that Eitanit will not be required to pay for waste that did not come from its own factory, under the second exception? There are several indications for this. First, section 74 targets only waste found in a radius of 15 KM from Eitanit’s factory. Second, Eitanit’s factory was at the time the only factory in Israel to process raw asbestos into final asbestos-cement products. The industrial waste from these production processes has unique characteristics, as discussed above. Other factories processed completed asbestos-cement products, and thus their industrial waste would have been consistent of only asbestos-cement and dust. Third, there is no evidence that other factories had indeed removed their waste in the same manner Eitanit did. Fourth, there is no evidence that asbestos importers operating in Israel alongside Eitanit at the relevant time, distributed asbestos in the area, and in any event the State clarifies that those importers used materials for acoustic and thermal isolation without cement. Fifth, in a survey from 2007, different witnesses reported out of their personal knowledge purchasing or receiving the waste from the factory and scattering it in the ground. These finding have been confirmed, the State argues, by soil samples and drilling.

The mounting of all this evidence, along with the above findings about the type of waste and its systematic discarding, indicates – to me – that there is a “presumption of burial” against Eitanit in the context of section 74. This presumption means that asbestos waste with certain common characteristics, that was buried in systematic and organized methods, all in a limited and confined area in the factory’s vicinity, would have come out of Eitanit’s factory. Lest we forget: this is a rebuttable presumption. After all, the legislature afforded Eitanit a right of hearing before the Minister, about specific areas where waste did not originate from Eitanit’s factory (according to section 74(d) of the Act and according to the instructions by the Minister – see above section 5, and the State’s attorney declaration that the content of the objection and the relevant instruction’s interpretation – p. 9, line 28 of the hearing transcript).

To summarize, the Act requires Eitanit to bear the cost of removing industrial waste that originated from the operations in its factory. Eitanit’s arguments in this regard cannot be addressed to the legislature, as the legislature expressly stipulated that Eitanit is only responsible for its own waste. These arguments may be relevant, at most, at the administrative level, if and when there are challenges to the Act’s implementation, and not at the clearly constitutional level we are concerned with here.

19.The argument regarding the end users, who received asbestos waste from Eitanit and used it to cover soil, is more complicated. Analytically, Eitanit’s argument is twofold. First, Eitanit was required to pay while the end users were exempted from direct payments. Second, Eitanit was required to pay for waste from which the end users also benefited. In my mind, the answers to the first aspect effectively resolve the difficulties in the second aspect. The main point is there is a relevant difference that justifies distinguishing the end users, who were not directly required to bear costs, and Eitanit. Recall that not every distinction is prohibited discrimination. Warranted distinctions, which are based on a relevant difference, will not usually be seen as prohibited discrimination (for example see the matter of LHB, para 77; HCJ 10203/03 The National Census Inc. v. The Attorney General, para 53 of Justice Procaccia’s opinion (August 20, 2008)). To me, there are three differences between Eitanit and the end users: the awareness test, the control test, and the profit test. Each and every one of these independently, let alone put together, constitutes a relevant difference that separates Eitanit from the end users and that warrants the distinction between them – from both aspects.

First, it appears from the material before us, that in the relevant time period, Eitanit had a notable advantage of information compared to the end users. This advantage manifested, primarily, in scientific knowledge that existed – or should have existed – for Eitanit even at that time about the potential health risk posed by asbestos waste. Indeed, there is no intention to find fault in Eitanit on neither the criminal or tort levels. Rather the presumption is that Eitanit must pay due to strict liability, not as a result of a finding that it breached any duties of care. However, the focus is on Eitanit’s awareness of potential risk caused by asbestos compared to other entities – the end users – to whom it asks to be considered similarly situated. The relevance of the awareness issue will be discussed more below.

In May 1969 Professor Schilling visited Eitanit’s factory. At the time, Professor Schilling headed the Department for Occupational Health at the London School of Hygiene & Tropical Medicine. After his visit, Professor Schilling authored a report, which was attached as Annexure 7 to the Respondents’ reply. In the report, Schilling points to severe health risks that are caused by exposure to dust in asbestos factories, including asbestositis, lung cancer and mesothelioma. He emphasized that the factory must take immediate precautions to reduce the risk of these diseases’ development.

In 1970, an organization of Israeli occupational doctors dedicated a conference to issues of employees and asbestos-cement factories. During the conference, an article written in collaboration with the factory representatives was presented. This article was submitted as Annexure 8. As early as the opening paragraph, the authors state that there is “clear awareness of health risks caused by asbestos and the prevalence of cases of asbestositis on one hand, and cancer on the other.

In April 1976, Yekutiel Federman, one of the holders of controlling interest in Eitanit, sent a letter to the factory manager, Mr. B. Friedrich. In that letter Mr. Federman states that: “The asbestos industry is currently the target of a witch hunt… Should we receive a positive report that proves the allegations are exaggerated and are not serious, and that it is more dangerous to walk down a street breathing in gas emissions from cars, and this report will be prepared by the Ernst Bergman Foundation, which is renowned in the science community, we will be able to combat the attacks academically and scientifically.” This letter, too, demonstrates that Eitanit was aware, at this stage if not sooner, of the scientific claims that were common at the time about the severe health risks caused by asbestos.

What is more, certain aspects of that time’s labor laws indicated the dangers of asbestos. As early as 1945 the British Mandate defined asbestositis as an occupational disease. This meant that a diagnosis of a factory worker with the disease was required to be reported. Additionally, the employment of women and teenagers in processing asbestos or its industrial use was prohibited. These directives were incorporated into Israeli law in the early 1950s. In 1964 The Safety at Work Regulations (Medical Examinations of Workers with Asbestos Dust, Talc and Silicon) 1964 were legislated. The Regulations set restrictions on the ways asbestos workers were employed, and required that workers receive periodic medical examinations. In 1978 The Safety at Work Regulations (Restrictions on Spraying Asbestos) 1978 were added. Those prohibited spraying crisp asbestos for isolation purposes. All of these were in force during the same period when, by Eitanit’s own admission, it passed on the waste to the end users, let alone when the waste was buried in the ground. Later, in 1984, the old Regulations – from both 1964 and 1978 – were incorporated into The Safety at Work Regulations (Occupational Hygiene of the Public and Workers with Harmful Dust) 1984. The new Regulations additionally prohibited the use of asbestos to pave roads. In 1988 this prohibition was expanded to manufacturing, importing and selling asbestos for road paving.

On the other hand, we do not have a sufficient factual foundation about the scope and depth of the end users’ awareness of the health risks caused by asbestos waste. However, on its face, it is doubtful that Eitanit and the end users are in the same category as far as what was known or should have been know. For decades, Eitanit imported raw asbestos, processed it into asbestos-cement, and manufactured final products from it. In effect, it was the dominant – if not only – entity in this industry. By virtue of this position Eitanit was likely familiar in real time with the relevant scientific research about Asbestos’ health risks. Not only did Eitanit apparently follow the developments, but was an active observer in the research (see, for example the article from 1970 and the Mr. Federman’s letter from April 1976, mentioned above). As an employer of asbestos workers, Eitanit was also subject by law to different duties that reflected the health risks asbestos posed. The end users, on the other hand, are in a different category. The material shows that they were not manufacturers of asbestos, nor were they industrial factories, but mainly the towns, kibbutzes and private persons in the area. These are probably not experts in asbestos, asbestos employers or workers, or even active in the scientific research scene.

Analogously, tort law attributes significant weight to knowledge gaps between parties. For instance, a doctor’s duty to disclose to clients stems from the presumption that there are major knowledge gaps between the parties, though their scope may change from case to case (see for this topic, CA 2342/09 Joubran v. Misgav Ledach Hospital (April 6, 2011)). Similarly, the scope of an insurance agent to a consumer depends, among others, on whether there are information gaps between the consumer and the insurance agent or insurer (LCA 5696/06, Saif vs. Mari, para 14 (Sep 21, 2009)).

Truth be told, factoring in the knowledge gaps between Eitanit and the end users is only part of a broader context. Eitanit is distinct from the end users because the products and waste left a factory it owns. This fact points to the material difference between Eitanit and the end users – Eitanit is the manufacturer of the waste. The end users were Eitanit’s customers. These are two different groups that must be distinguished. The distinction is consistent with the principles of EPR, mentioned above. The duties placed on manufacturers are not as the duties placed on the user. The manufacturer has control over the product’s design, assembly, and finalization. In any event is it highly logical to place extended liability on the manufacturer and placing financial burdens upon it, both for reasons of justice and fairness and of economic efficiency. In the matter at hand, the control test has an additional aspect. It is appropriate to weigh the fact that arises from the record, that Eitanit sold the waste for a low price, sometimes giving it away. This, too, solidifies the link between Eitanit and the waste, including that which is not on factory grounds, but in the land around it up to 15 KM. The awareness test thus connects to the control test and to economical aspects, and we must not neglect the profit test.

Applying economic approaches to law, it is clear that Eitanit and the end users are not similarly situated, as a function of the profit test. Comparative case law, primarily American case law, finds merit in placing the costs of asbestos removal on the manufacturing corporation because of its status as manufacturer. This consideration is relevant not only from an economical stand point, which may justify shifting the financial burden of removing hazards to the manufacturer’s shoulders, but also for reasons of justice and fairness. From this perspective, there is no discrimination against the petitioner but achieving the statutory purpose of “the polluter must pay.” We come back to this point when examining the issue of a worthy purpose which is, of course, one of the tests established by section 8 of Basic Law: Human Dignity and Liberty.

To summarize this point: there were knowledge gaps – actual and theoretical – between Eitanit and the end users. Moreover, Eitanit, as a manufacturer is clearly distinguishable from the end users. This distinction reflects the difference between the two aspects of the control test, as well as the profit test. The combination of all these – awareness, control and profit – establish, in my view, a relevant difference between Eitanit and the end users, in terms of its obligation to share up to half of the costs of removing the waste.

20.Eitanit additionally, claims it suffered discrimination compared to the local authorities. Eitanit bases its claim on the right to be heard by the Minister which section 74 grants the local authorities and which allows them to reduce the rate of their participation in funding the project. In reality, an arbitrary and low rate of only 10% was set in regulations which go as far as permitting “payment” of this rate by provision of services. Eitanit, on the other hand, was denied the option of carrying out the project on its own.

Here, too, I believe Eitanit and the local authorities are not similarly situated. There is a relevant difference between Eitanit and the local authorities, based on reasons stated above: Eitanit is the manufacturer of the waste, and created its implications. The local authorities, as the record reflects, are not even part of the “end users” addressed earlier. Their link to the waste is indirect, and they are merely a default in funding the project. Furthermore, the mechanism set in the Act splits the costs equally between Eitanit (on one end) and the local authorities and the state (on the other end.) Each and every Shekel that is reduced from the local authorities’ obligations will be added to the bill served to the State. Put together, the local authorities and the State will fund only half of the project’s cost. The result, therefore, is that – willing or not – taxpayers will directly shoulder at least half of the project’s costs. For this reason, too, the discrimination claim must fall.

21.Finally, Eitanit claims it was discriminated against in comparison with future polluters. It argues the Act stipulates that anyone creating asbestos hazards will bear the costs of removal according to their share of liability, and they will be permitted to remove the hazard (section 11(e) of the Act). Additionally, a bill for Prevention Soil Pollution and Restoration of Polluted Grounds 2011 (“the bill”) is pending before the Knesset. The bill, Eitanit maintains, is more lenient toward owners of polluted properties and considers the extent of their fault. Contrastingly, Eitanit bears the brunt of a strict liability standard regardless of fault and it is denied the opportunity to remover the waste on its own.

Regarding the claim of discrimination in terms of the bill, I see no reason to discuss a claim of discrimination in a bill that has yet to have been passed. As far as the discrimination claims about other statutory provisions go, I do not find it necessary to examine these provisions in detail, nor to consider whether they are discriminatory against Eitanit or perhaps favor it. This is because the project of removing asbestos waste from the Western Galilee merits regulation unique to it. I will elaborate on this point below, in relation to the argument that the Act constitutes personal legislation. As an aside, recall that the new asbestos statute prohibits manufacture of asbestos products, places full responsibility for pollution on the polluter, and only allows the polluter to remove the waste independently with the property owner’s consent. On its face, it does not appear that the statutory arrangement that applies to the petitioner is clearly more egregious than statutory arrangements that will exist going forward. Quite the contrary.

22.To conclude this part, I accept Eitanit’s argument that section 74 infringes upon its property rights. However, Eitanit’s argument about a violation of its equality right, insofar that it is a right independent of the property right, and this for the reasons described above. Based on these conclusions, I move on to examine whether the infringement on Eitanit’s right to property passes the tests set in the limitations clause of section 8 of Basic Law: Human Dignity and Liberty, entitled “Violations of Rights”:

“There shall be no violation of rights under this Basic Law except in legislation befitting the values of the State of Israel, designed for a worthy purpose, and to an extent no greater than required or by such a law enacted with explicit authorization therein.”

B. Violation of Rights In Legislation Or By Explicit Authorization Therein

23.Eitanit’s position is that the said violation of the right to property (and in its view the right to equality, too) is not in legislation or by authorization in legislation, because the Act constitutes personal legislation, with a specific target – Eitanit. Eitanit maintains that a statute that is not generally applicable cannot be considered legislation for the purposes of the limitations clause.

I cannot accept Eitanit’s position. Recall that the case law found the prong “in legislation or by authorization therein” to be a formalistic test that seeks whether the infringement upon basic rights was done by primary legislation or was authorized by primary legislation (see the matter of The National Census, para 9 of President Beinisch’s opinion; the matter of L.H.B, para 104 to Justice Procaccia’s opinion; see also Aharon Barak, Interpretation in Law Volume 3 – Constitutional Interpretation, 489-498 (1994)). To compare, section 5 of the European Covenant of Human Rights addresses ways to limit liberties, including a requirement that the limitation is done in legislation, or in the Covenant’s language: “in accordance with a procedure prescribed by law). Similar language appears in section 10(2) of the Covenant regarding limits on free speech. The European Court of Human Rights pronounced, in various contexts, on the interpretation of “in legislation,” and concluded that in order for a particular provision to be considered legislation for these purposes, it must be clear and accessible, that is, published to everyone (see: Tonilo v. San Marino & Italy, §46 (26.6.2012); Telegraaf Media v. Netherland, §§89-102 (22.11.2012)).

The piece of legislation at hand is a product of extended preparation. After passing the Knesset’s first reading, the Act was considered by the Knesset’s Interior and Environmental Protection Committee. The Committee dedicated over ten meetings to discuss the details of the Act. During the discussions, the constitutional issue was also examined. Eitanit argued boisterously, but its arguments were rejected. Once the Committee completed is process, the Act passed in second and third readings and was published officially. This in mind, the argument that the final produce is not legislation must fail. It appears Eitanit’s arguments about the lack of the Act’s general application repeat, in a sense, the arguments about discrimination against it – arguments I have addressed at length above – or, in a different sense, are claims about the Act’s wrongful purpose, claims that I will address below. And again recall: the Act does not expressly mention Eitanit or its factory. Instead, it uses terms such as “asbestos companies” and “factory for the manufacture of asbestos.” It is true, however, and undisputed, that only Eitanit meets the definitions in section 74. This matter might increase the need to guarantee the Act is proportional and does not overly infringe Eitanit’s property rights. Still, that the Act effectively only applies to Eitanit is not in and of itself sufficient for a finding that the Act is not “legislation.”

C. For a Worthy Purpose Befitting the Values of the State of Israel

24.What is the purpose of section 74, and is this purpose worthy and befitting? Section 1 states the Act’s general purpose: to minimize asbestos hazards in Israel. This is also the source for section 74’s actual purpose: to launch a project for the removal of asbestos waste from the Western Galilee. The explanations that accompanied the Act’s bill, as well as the State’s response in this petition, described how this severe and unique environmental hazard was formed in the Western Galilee. A very large amount of asbestos waste was scattered or buried in many dozens of sites. Some of the waste is buried deep underground, and some is used in surfacing trails, private gardens, agricultural land and the like – all, as mentioned, in dozens of different locations. I elaborated upon the harms caused by this waste in depth, and it is unnecessary to repeat it all here. The purpose of section 74, therefore, is to remove or reduce as much as possible this health risk, which in some ways is a “time bomb” threatening the health and welfare of many of the area’s residents. There is no doubt then that it is a worthy and important purpose, and the sooner it is achieved, the better.

This purpose is not only worthy, but also befits the values of the State of Israel as a Jewish and democratic State. I recently discussed Jewish law’s approach to protecting the environment, from a religious and civil perspective (HCJ 1756/10 The City of Ashkelon v. The Minister of the Interior (January 2, 2013)). I specifically mentioned Jewish law’s approach to attending to waste and the financial mechanisms it put in place in order to achieve this.

Additionally, the purpose of section 74 is worthy because it realizes area residents’ rights to health and to quality environment. There is no need here to go into the constitutionality or the scope of these rights (see: HCJ 3071/05 Luzon v. The Government of Israel (July 28, 2008); HCJ 11044/04 Solomtin v. The Minister of Health, paras 11-13 to Justice Procaccia’s opinion (June 27, 2011); Daniel Sperling and Nissim Cohen, The Impact of The Arrangements Act and Supreme Court Decisions on Health Policy and the Status of the Right to Health in Israel, Laws (4) 154, 218-225 (2012)). All these are complex, serious and weighty questions, but they are irrelevant to the case at hand. All that matters here is that cleaning waste is meant to remove a grave hazard that threatens the health of residents, and it is a welcome initiative. As presented above, this concern to the health of residents is typical of democratic states, which have invested substantial efforts in regulating removal in modern environmental legislation.

25.The State presents an additional reason for the way section 74 sets the funding mechanism: the principle of “the polluter must pay”. Truthfully, I am not convinced this principle is in fact the purpose of the Act in terms of the limitations clause. Arguably, this principle justifies choosing this particular mechanism, rather than the legislative goal. Put differently: it is the justification for the means chosen to achieve the end. Therefore, the principle must pass the limitations clause in the context of proportionality, not in terms of purpose. Yet the state explicitly argues that the Act has the purpose of realizing the principle of “the polluter must pay” (p. 9 of the record). However, even under this approach the principle is not a single purpose, but is intertwined with the central purpose, which is cleaning the Western Galilee from Asbestos Waste.

As I said, I doubt whether the principle of “the polluter must pay” is a purpose – even secondary – of the Act. It is possible this position, which upgrades the means to the level of an end, is meant to boost the legitimacy of the selected funding mechanism. Another possibility is that the State grabbed the bull by its horns. In other words, being aware of the distinct difficulties presented by the principle of “the polluter must pay” and by applying it, the State categorized it as a secondary purpose, willing to subject it to the proper constitutional review. But, as I will clarify, I cannot accept that this categorization of the principle as an end will injure Eitanit and prevent it from examining the proportionality of the funding mechanism established in section 74. For the purpose of ruling in this petition, I am willing to assume – for the sake of a complete discussion – that the principle of “the polluter must pay” is a secondary purpose of the Act in terms of the limitations clause. This approach demands that the matter be subject to a strict review of proportionality. Lest we forget, the worthy purpose test is but a threshold requirement (Aharon Barak, Proportionality in Law, 297 (2010)). That is, in the absence of a worthy purpose, a statute must fail constitutional review. For this reason precisely the worthy purpose test is not conclusive. It is not the end of the enquiry, but its beginning. The difficult task of constitutional review is yet before us. As former President Barak wrote: “It is a mistake to examine constitutionality of means through the lens of the end’s constitutionality. It would be too premature” (Id. at 299). Thus we must first evaluate whether the principle of “the polluter must pay” is indeed a worthy purpose befitting the values of the State of Israel. This discussion is separate from the discussion whether the principle of “the polluter must pay” and its application in the present case is proportional, given that it places strict liability, and does so retroactively.

The principle of “the polluter must pay” is simple. Whoever caused the pollution will fund its removal and be liable for harms that have and will continue to be caused. This principle stems also from efficiency reasons, with the premise that placing the financial burden on polluters will incentivize them to minimize the scope of the pollution. The goal is to reduce the amount of waste to be removed and to encourage the polluter to take precautions and develop “green” technology. This economical approach finds support in the theory of costs internalization. Coupled with the considerations of justice, which dictate that it is unfair for the polluter, who has profited from polluting, would deflect costs toward the public (see: Marsha Glefi, Ruth Plato-Shinar and Amichai Kerner, Lenders’ Liability for Environmental Hazards Caused by Borrowers, The Attorney (50) 439, 443-47 (2010); Isaschar Rozen-Tzvi, Who The Hell Does This Waste Belong To? Waste Removal and Environmental Justice in Israel, Law Research (23) 487, 553-54 (2007)). This approach was recognized by many democratic states, as reviewed above.

We will note that in Jewish law, too, the basic obligation of waste management is placed on the waste’s owner. It is thus generally prohibited to remove raw materials – such as rocks and dust – or actual waste into public spaces, and the owner is expected to be liable in torts, or subjected to fines (Tosefta Bava Kamma 2; Tosefta Bava Metzia 11, Babylonian Talmud, Bava Kamma 30, 1; Maimonides, Yad ha-Chazaka, Hilchot Nizke Mammon 13, 13-17; Shulchan Aruch, Choshen Mishpat, 414, 2; also see my opinion on the matter of The City of Hulon.)

The principle of “the polluter must pay” is well established in our current law. It is also the answer to the Petitioner’s claim that section 74 is out of place in the legal landscape. The Prevention of Environmental Hazards Act (Civil Suits) 1992, authorizes courts to order anyone who causes environmental hazards to cease from doing so, to correct the hazard, or to restore, and this regardless to the level of fault, if any (section 2-4.) Additionally, a string of legislative amendments in this vein was incorporated into The Environmental Protection Act (The Polluter Must Pay) (Legislative Amendments) 2008. Further, in terms of industrial waste, the principle of “the polluter must pay” translates into a similar principle of “manufacturer responsibility”. That practical meaning of this is that the costs of taking care of and recycling waste will generally be placed upon the factory that manufactured the polluting products in its production processes (see above regarding EPR policies). This has many aspects in the new environmental legislation in Israel. We will mention here The Environmental Care for Electric and Electronic Equipment and Batteries Act 2012, The Regulation of Care for Packaging Act 2011, The Beverage Container Deposit Act 2001 – amended in 2010 to set quotas for bottle collection by manufacturers, The Removal and Recycling of Tires Act 2007, and The Preservation of Cleanliness Act 1984 – amended in 2007 to set a mechanism for burial tax (see the matter of The City of Hullon, para 31 of Justice Barak-Erez’s opinion).

Incidentally, the State points out that the principle of “the polluter must pay” is reflected in statutes that were already in effect when Eitanit created the asbestos waste. For instance, section 54(1) to The People’s Health Ordinance, num. 40 of 1940 stipulates that the local authority or the ministry are authorized to order a person who created a hazard to remove it. For these purposes, a hazard is any place whose state or use endanger or damage public health (section 53).

To summarize, Eitanit does not dispute that the purpose of the Act insofar that it is to remove asbestos waste from the Western Galilee is a “worthy social purpose” (see section 107 of the petition). The Petitioner’s primary opposition is for the principle of “the polluter must pay”, particularly in terms of the strict liability standard and the retroactive application. In this context, Eitanit challenges the efficiency of applying the principle of “the polluter must pay” and the fairness in applying it. Therefore, assuming that “the polluter must pay” is a worthy purpose because of its contribution to ecology, the question remains whether the funding mechanism is proportional. This question leads us to the main issue, which is the establishment of retroactive and strict liability.

D. Proportionality

26.The last requirement of the limitations clause is that the infringement of a constitutional right is “to an extent no greater than required”. This is the proportionality requirement. The case law has articulated three sub-prongs for evaluating the proportionality of infringements of constitutional rights: the rational connection test, the least restrictive means test, and the cost-benefit test (narrow proportionality). 

Before we begin, recall that the proportionality criterion does not dictate selecting only one mean to achieving the legislative end. There is a collection of – perhaps many – alternative measures, all of which may in themselves be proportional. These measures are different in terms of the scope of their infringement on constitutional rights, as well as how they may achieve the legislative purpose. This creates a range of proportionality within which the legislature may operate. The legislature has room to maneuver, and it may choose certain alternatives over others so long as they sit within the range of proportionality (compare: HCJ 2605/05, The Academic Center for Law and Business v. The Minister of the Treasury, para 46 of President Beinisch’s opinion (November 19, 2009)).

(1) Rational Connection

27.Under the first proportionality sub-test, we must examine whether there is a logical link between the Act’s purpose and the means selected to achieve it. As I have discussed above, for purposes of our discussion, the Act has two goals: to clean the Western Galilee of asbestos waste, and to realize the principle of “the polluter must pay”. These are the legislative ends. The means that legislature selected is the mechanism set in section 74, specifically its funding aspect (which is at the core of this petition). We will explore the link between the selected means and each of the purposes.

28.Regarding the first purpose, I do not find it necessary to elaborate, because the link here between the means and the end is practically obvious. The first purpose is to remove asbestos waste from the Western Galilee. The selected means is the relevant project, arranging for its budget and funding and authorizing the Minister to establish operative regulations. The means leads directly to the end.

29.As for the second purpose, the case is more complex. Eitanit raises a string of questions about the link between the funding mechanism established and the principle of “the polluter must pay”. Eitanit’s criticism includes four arguments. First, Eitanit claims there is no evidence it scattered the waste. Second, Eitanit is subjected to strict liability, and it is required to pay for conduct that was not legally proscribed at the time. Second, Eitanit maintains that a significant portion of the waste was distributed by the end users and not by Eitanit. Third, Eitanit challenges the strict liability imposed upon it, along with the requirement to pay for conduct that was not statutorily prohibited at the time. Fourth, Eitanit argues that it must pay for past-conduct such that the aspect of channeling behavior and deterrence is non-existing here. Retroactive payment, Eitanit believes, is also unfair. Therefore there is no link, to Eitanit, between the type of payment the Act imposed upon it and the principle of “the polluter must pay”.

The first argument raises a factual issue, which I have addressed above. Repeated briefly, the accumulation of several indications demonstrates that there is a “presumption of burial” against Eitanit in terms of section 74: the asbestos waste, that has similar characteristics, was buried by organized and systematic techniques, and all in a limited area around the factory. Even if this not an absolute presumption, Eitanit has the opportunity to argue that the waste in a specific location did not originate in its factory. To what extent a petitioner may attack the factual basis for the Act is a good question. I my view, such attack is not identical to attacking the factual basis for an administrative decision, or even to an administrative petition in the High Court of Justice, or to a factual dispute between parties of the civil or criminal case. Yet, as mentioned before, the broad legal issue need not be decided here, as the factual basis is well substantiated. The truly relevant question is what this factual basis means.

The second argument does not negate the rational connection between the means and the end either. It is true that some of the waste was layered on the ground by the end users. However, one of the important justifications for the principle of “the polluter must pay” is cost internalization by whoever benefited from creating the pollution. In our case, Eitanit fits this criterion because it profited from the production processes that resulted in buildup of industrial waste. Additionally, it profited – albeit indirectly – from passing the waste from the factory on to the end users. In any event, there is a clear rational link between the means – mandating that Eitanit share the cost of removing the waste – and the relevant purpose – the principle of “the polluter must pay”. Eitanit’s arguments on this point may be seen from a different angle that focuses the discussion on the question of equal burden. In other words, why would Eitanit alone shoulder the financial burden and not the end users? The answer is twofold. First, there is no discrimination between Eitanit and the end users. I discussed this in depth above. Second, the possibility of a different allocation of financial burdens as to reduce the harms to Eitanit. I will discuss this below, when analyzing proportionality’s second and third sub-prongs.

The third and fourth arguments revolve round the strict liability and its retroactive application. Regarding the rational link between the means – the funding mechanism – and the secondary purpose – the principle of “the polluter must pay,” it seems that imposing payments on the entity that created the hazard and benefited from it advances this purpose and puts it into practice. Refer to the discussion above as to how the principle of “the polluter must pay” is based on justice and fairness. It is only reasonable and logical that whoever created a hazard and was the primary beneficiary of it would be the one required to pay for it. In this context, it would be appropriate to combine the two purposes the State finds in the Act. It is necessary, as Eitanit also agrees, to remove the asbestos waste from the Western Galilee. The legislature elected, as did other legislatures in democratic states, to impose special costs on the asbestos company – the manufacturer and direct profit-maker – compared to others, including the public.

To sum up this point, this is not a case where the means do not promote the end. The contrary is true. Recall that the “the rational connection test, like the worthy purpose test – is a threshold test. It is not a balancing test. It does not weigh the worthy purpose against the infringement” (Proportionality in Law, p. 387). However, there is the approach that the first sub-prong is not technical: “this sub-test is not satisfied with the existence of a merely technical causal connection between the means and the end. Therefore the requirement for a rational link is designed, among others, to restrict arbitrary, unfair or illogical means” (HCJ 2887/04 Abu Madigam v. Israeli Land Authority, IsrSC 62(2) 57, para 37 of Justice Arbel’s opinion (2007)). In my own opinion, the natural place for testing the justice and fairness of a means is in the contest of the second sub-prong, and more so in the third sub-prong. That said, I am willing to assume that in extreme cases where the means’ arbitrariness and unfairness are obvious this should be considered even in the first sub-prong. This certainly is not the case: here, applying the second and third sub-prongs will shed light on the extent of justice and fairness in the chosen means.

(2) The Least Restrictive Means

30.We now approach proportionality’s second sub-test. The question before us is whether, of all the alternative means that may achieve the purpose of the Act, the means selected is that which least infringes Eitanit’s right to property. Put differently, we ask whether there is a less restrictive alternative that will similarly achieve the Act’s purpose (compare HCJ 10202/06 The City of Nahariya v. The West Bank Military Commander, p. 12 (November 11, 2012)).

In this context, Eitanit identifies two alternatives for the mechanism established by the Act. One is to “repair” the sites where the waste serves to cover the land. The second is allowing Eitanit to execute the removal project on its own. We will explore each alternative.

31.The first alternative is only generally argued by Eitanit, without adding details that can illuminate the primary relevant question: is it expected to achieve the same purpose while harming Eitanit less. Recall, that, as Eitanit presented things, re-covering and sealing the paths that were surfaced with asbestos is a partial solution to the waste problem at best. Whether this is a real fix, including for the paths themselves, is doubtful. Moreover it is unclear to Eitanit what the solution for other types of waste, such as waste that was buried underground. We cannot therefore find that the suggested alternative would sufficiently accomplish the Act’s purpose of cleaning the Western Galilee from asbestos waste, while lessening the harm to Eitanit.

32.We are left with the second alternative: Eitanit’s consent to removing the waste independently, instead of paying for removal (the “self-removal” alternative). However, the Petitioner did not meet its burden to prove that this alternative will serve the Act’s purpose adequately.

The task of removing the asbestos waste was discussed among the parties for a long time. Eitanit’s proposal to remove the waste, through a sub-contractor it will employ, was also subject to discussion. After several rounds of negotiation, the proposal was rejected. I will here refer to a detailed and reasoned letter that Mr. Oshik Ben-Atar, a senior deputy to the Accountant General, sent to Eitanit in November 2010, in which the State notified Eitanit that its self-removal proposal is impractical. The letter states that Eitanit estimated the project to cost between NIS 166-300m, if not more (see also section 120 of the petition). These are substantial gaps that elicit concerns that Eitanit’s low estimate will prevent it from completely and successfully executing the project. This is coupled with the doubt that Eitanit has, on its face, little incentive to execute the project as best as possible. This is also because it is not expected to profit from executing the project and it has no incentive to conduct thorough surveying and locating all the polluted sites.

Eitanit maintains the recently completed removal of asbestos from a certain area, under State supervision, and the costs of that removal was approximately 65% lower than the costs estimated by the State. The State, on the other hand, maintains that the experience with Eitanit in this regard is not positive. The State supervises Eitanit’s work to restore waste sites in Sheikh Danon and in Shlomi, as well as work to remove asbestos waste in other areas. These projects have been found to have professional deficiencies, and these deficiencies have caused major delays in the projects.

I do not intend to rule on the factual disputes between the parties, as if this were a civil dispute or an administrative petition. Such a ruling is not necessary for our purposes. We are concerned with section 74 of the Act, not with administrative or appellate review. The question before us is whether there is an alternative means that will impose less harm upon Eitanit, while achieving the legislative purpose behind section 74. From this perspective, Eitanit has not met its burden. I am not persuaded that the self-removal option will lead to the end that inspired enacting section 74 – cleaning the Western Galilee from asbestos waste. We were even presented with material that supports the State’s position, or at the very least demonstrates its logic.

33.The perspective we so far employed has been negative: whether there are alternatives that achieve the statutory purpose while lessening the harm caused to Eitanit. Eitanit emphasized this approach. However, the issue can be examined, simultaneously, in a positive perspective: whether the mechanism elected by the legislature includes checks and balances that reduce the harm caused. In this contest there are five elements: (1) Eitanit would be required to pay no more than half of the estimated removal costs – half, perhaps less but certainly no more; (2) In any event, Eitanit’s funding obligation shall not exceed NIS 150m; (3) The funding mechanism the legislature selected, along with supplementary instructions from the Minister, ensure that this is not a fine or a compensation. Eitanit’s financial obligation will be used to (partially) cover the costs of removal alone; (4) The relevant removal project is limited to a radius of 15 KM around the factory. Section 74 does not compel Eitanit to participate in funding the removal of asbestos waste if that waste is in locations beyond that area. Finally, the Minister’s instructions create a mechanism of supervision and checks that will allow Eitanit to challenge each and every payment it is required to submit in terms of specific waste sites.

The five elements mentioned are no hypothesis or creative interpretation. These are checks and balances built into the explicit language of section 74 and its supplementary instructions. They reduce the harm caused to Eitanit’s property, while still achieving the primary purpose of cleaning the Western Galilee of asbestos waste and the secondary purpose of “the polluter must pay” (to the extent this purpose exists).

The elements above can be categorized through three questions: how much, for what, and how. “How much”: 50 percent, which shall not exceed NIS 150m. In examples from the United States and from other countries, some legislation required funding up to 100 percent, without setting a maximum amount. The gap in the amount is substantial. It is another rebuttal for Eitanit’s argument that it would have been appropriate to impose some liability for removing the waste upon the end users. As mentioned before, I am not persuaded that the maximum amount set does not reflect a fair estimate of potential costs. Moreover, even were the Petitioner to dispute the estimates for removal, because the State bears half the costs, it has no interest in inflating costs. “For what”: for cleaning a defined area. The significance of this is that there is no penalty or sanction. Restricting the project that Eitanit must fund further supports the conclusion that the means of imposing liability is not an end unto itself. The “for what” element is joined by the scope of the territory – a 15 KM radius around the factory. This area is not only limited but also reflects the history of Eitanit’s conduct in terms of distributing industrial asbestos waste. This history include the fact that Eitanit buried some of the asbestos waste, as well as passed it on to the end users in the area for very low cost, or no cost at all. This supports the assumption that implementing the principle of “the polluter must pay” is neither arbitrary nor irrational. The third question is “how”: the section includes an internal mechanism that ensures that Eitanit is able to present its position as to the periodical invoices it would receive. The reservations Eitanit may raise in this context are not limited to calculations, but also to the issue of whether particular piles of waste in fact originated in its factory. The State stipulated this in section 121 of its responding papers. This element contributes to the proportionality of the selected means. The internal mechanism emphasizes supervision rather than top-down orders.

(3) Narrow Proportionality

34.We are thus left with the third and last sub-prong of constitutional review: the narrow proportionality test. This tests measures the appropriate ratio “between the public benefit of a statute subject to constitutional review and the infringement of a constitutional right caused by that legislation (the matter of The Academic Center, para 50 of President Beinisch’s opinion; see also HJC 2651/09 Association for Civil Rights in Israel v. The Minister of the Interior, para 22 of Justice Naor’s opinion (June 15, 2011). It weighs cost against benefit in the constitutional sense – social gain versus infringement of rights.

The case law expressed the view that “this is the most important of the three sub-prongs” (Justice Dorner in HCJ 4541/94 Miller v. Minister of Security, IsrSC 49(4) 94,140 (1995)). Either way, it is not a threshold test. Being the last obstacle in the constitutional journey a spotlight is pointed at this test. Though it is termed “narrow proportionality” is it not narrow at all. It poses a special challenge to judges. In my view, and precisely because of it, the test may develop over time – including setting standards for its application – more than the other sub-tests.

In any event – in our case – it is crystal clear that the Act is immensely beneficial. Therefore, it may be determined that the section is unconstitutional only if the infringement on Eitanit’s property rights – the other side of this equation – is so great that it eclipses the benefit.

By imposing financial obligation, section 74 infringes upon Eitanit’s right to property. Its arguments articulate three aspects that exacerbating the infringement: (1) the Act is personal; (2) the Act imposes strict liability; (3) the Act is retroactive. For each aspect, I first present the substance of the harm argued, then the actual scope of the harm: has the Act crossed the constitutional line and thus must be struck down; is the harm indeed as severe as argued or can it be mitigated by elements of the Act. This analysis will illuminate the constitutionality of the ratio between the cost and the benefit.

Personal Act

35.It is undisputed that even though the Act does not explicitly mention Eitanit, it is personal legislation as it effectively applies specifically to Eitanit.

In a broad sense, one of the basic traits of a statute, that in principle distinguishes it from other arbitrary norms, is its general application. This trait usually manifests in application over a non-specific group of subjects, or in that the statue mandates, prohibits or authorizes constant or organized conduct (aspects discussed by H. L. A. Hart, The Concept of Law (1961); see also Chaim Ganz, On The Generality of Legal Norms, Iyunei Mishpat (17) 579, 579-85 (1992)). This distinction constitutes one of the differences between a law that addresses the public at large and a judicial decision that addresses a single individual. Therefore, arguably, though this is a statute enacted through the proper legislative process, substantively, it is so flawed that it infringes Eitanit’s right to property.

I respond to this with the justification for Act targeting only Eitanit. It is not a question of numbers, that is, how many are subjected to the Act, and the fewer the number, the more personal the statute. Rather, we must ask whether there is good reason for applying a statute only to a limited group. The examination must be done carefully when few are concerned, let alone when only one factory is.

What is the context around section 74? It appears there is no arbitrariness, whim, or specific persecution. The legislature prioritized a project for cleaning the Western Galilee. The section was designed to respond to a unique situation – extensive accumulations of asbestos waste, in a defined geographical area, that was created systematically by one dominant entity. Eitanit presented no arguments to the effect that this is not exclusive to the Western Galilee. It should also be noted that Eitanit enjoyed its status as a lone and dominant manufacturer in the local asbestos market.

The heart of the matter is that Eitanit’s special position is not born of legislation but of reality. Presumably, and as reflected in comparative foreign legislation, in a more sizable country, the market would include more than one player. And yet, the Israeli Act was designed to remove the waste through the shared – but not full – participation of the entity that created it and profited from it. That this is a single entity does not compromise justice or fairness. From this perspective, I do not believe that the fact that Eitanit was a single factory indicates, in constitutional terms, excessive infringement of property rights. In my opinion, these considerations mitigate the alleged harm caused by the sections lack of general application. I will also note that to the extent that Eitanit claims that the Act’s lack of general application is discriminatory, I cannot accept this argument for the reasons detailed at length above, when discussing the issue of infringement of equality.

Incidentally, the Israeli legal code already includes complete statues that are clearly personal. For instance, President Haim Weitzman Act (Retirement and Estate) 1953 sets the retirement amount that was paid to the first President’s widow. Another example is the Bank Shares Settlement Act 1993, which addressed the nationalization and privatization processes of the four big banks at the time (Leumi, HaPoalim, Discount, and Mizrahi), in light of the bank shares crisis of the 1980s. These examples support the argument that unique situations calls for unique legislation, and may even justify personal statutes.

Strict liability

36.The Petitioner points to another factor that exacerbates the infringement upon its property: the de facto strict liability standard. In other words, the legislature imposed upon Eitanit liability for polluting activity it committed in the past, though on its face these activities did not constitute breaching any duty of care at the time, and in any event no court found otherwise. Eitanit argues this aspect exacerbates the infringement upon its property rights.

It is true that on its face, strict liability raises concerns and warrants examination. In my view though, three factors mitigate, or balance out, the constitutional challenge involved in imposing strict liability.

First, the support for imposing strict liability in comparative law, which I elaborate on further below. Second, imposing strict liability in the context of removing polluters relies on weighty considerations. I mentioned justice and fairness, along with the economic rationales of deterrence and cost internalization. Another justification is the evidentiary challenges that follow from a fault-based standard, and may be avoided through a strict liability standard (see above the discussion of European and American law). Third, I believe that in this case there is a unique element that takes a little bit of the sting out of strict liability. Foreseeability is a relevant consideration when it comes to strict liability. Thus in American law, for instance, The Third Restatement of Torts explains that strict liability for abnormally dangerous activity is desirable. Activity is found to be abnormally dangerous when several cumulative conditions are met including that the activity creates a foreseeable and highly significant risk of harm, and that the activity is not one of common usage even when the actor has taken reasonable precautions (Restatement (Third) of Torts: Liability for Physical and Emotional Harm §20 (2010); see further Gilad, p. 1293-97). In light of this, foreseeability sets the limits of strict liability in one sense, and justifies the imposition itself, in another. It should be noted that the Restatement is not binding law in the United States, but it is considered to reflect the current state of the law and is commonly used in American case law. It is also true that in the United States, waste pollution is regulated in specialized legislation. However, in my opinion, the above is relevant for constitutional challenges to strict liability.

Jewish law may serve to clarify the point. The Mishna states, in the context of torts, that “one will always err, whether by mistake or on purpose, whether awake or asleep” (Babylonian Talmud, Bava Kamma 26a). This is a type of strict liability. Maimonides qualifies the scope of liability:

“When do we say that the person asleep must pay? When two who slept side by side, and one of them rolled over and injured the other or ripped his clothing. But if one was asleep and another joined him and lay by his side – the person coming last is the wrongdoer, and if the person asleep caused the injury, the latter would be absolved. And likewise if a pot were placed next to the sleeping person and the latter broke it, he would be absolved, as the person who placed the pot is the negligent wrongdoer” (Mishneh Torah, Book of Torts, Hilchot Chovel U’Mazzik 1, 11.)

This teaches us that if, for example, a person sleeps in another’s home by a lamp and during their sleep they strike and break it, they must break it. However, if after a person has fallen asleep, someone places the lamp by their side, and during the night the sleeping person breaks it, they are not liable for the damage. The relevance to our matter is that even with a strict liability standard, putting an object in play without the knowledge of the injuring party, may absolve them from responsibility. This approach is reminiscent of the innocent owner defense: under the CERCLA, a landowner is not liable if at the time they purchased the land they “did not know, and had no reason to know, that they had any hazardous substance” (42 U.S.C §9601(35)(A)(i)).

In our case, the material shows that Eitanit’s activity with the waste was not conducted without any foreseeability or knowledge about the harms of asbestos. I have discussed this, when examining the knowledge gaps between Eitanit and the end users. Professor Shilling’s report from 1969 detailed the health risks caused by exposure to asbestos dust, including asbestositis and cancer. An article from 1970, authored in collaboration with representatives from Eitanti’s factory, states that there is “clear awareness of health risks caused by asbestos, and the prevalence of asbestositis cases on one hand, and of cancer on the other.” A letter from 1976 by Mr. Yekutiel Federman, one of Eitanit’s controlling shareholders, addresses the scientific research of the time that discussed asbestos health risks. Additionally, Eitanit, as an employer of asbestos workers, was subject to different labor laws that acknowledged the risks caused by asbestos: defining asbestositis as a vocational disease, prohibitions against employing teens and women in asbestos factories, the requirement for periodical medical examinations, and so on.

This means, in other words, that Eitanit had a certain extent of factual foreseeability or knowledge about asbestos health risks. It should be noted, to clear any doubts, that I am not dealing here with the necessary bar to meet the burden of proof for tort, criminal or other liability. This is not the topic of discussion, nor is it the standard. We are concerned with constitutional review. The issue at hand is what the scope of harm Eitanit has been caused is, and particularly – what weight should be attributed to imposing strict liability. In this view, the indicators I have listed should not be ignored, as they demonstrate Eitanit’s foreseeability or knowledge – even some – and all to the extent relevant for the matter at hand.

As a court comes to examine whether there is constitutionality of the infringement caused by imposing financial obligations on Eitanit, I believe that even partial knowledge lessens the infringement of her property rights. Put differently, even in the absence of liability or in the existence of strict liability, the link between the liable party and the conduct still warrants scrutiny. Put differently still: had section 74 imposed liability on a different company that did not manufacture asbestos in the relevant time period, or did so but not in the Western Galilee, the concerns around section 74 would significantly multiply. And again recall that section 74 does not impose on Eitanit tort or criminal responsibility. The statute does not convict, taint, or even attribute liability to Eitanit. And the means chosen is not a fine or compensation. It is designed to remove asbestos waste from the Western Galilee. Of course, this does not mean that the legislature may impose liability arbitrarily and as it sees fit. Therefore section 74 must be tested according to the limitations clause. We believe, as explained above, that there is a link between Eitanit and the waste that justifies the strict liability standard set in the section.

To summarize, though strict liability poses difficulties, considering the circumstances as a whole, the existence of similar standards regarding removal of dangerous buried waste in many other countries, the justification of “the polluter must pay”, the element of Eitanit’s knowledge or foreseeability about the specific harms and risks, and the type of financial obligation that is not a fine or compensation but the cost of cleaning the area in order to halt the development of serious harms to the residents and the environment, it seems that the benefits outweighs the infringement of the right.

Retroactive Legislation

37.A separate issue arises as to the temporal application of the Act. Eitanit claims that this is retroactive legislation, and therefore increases the infringement of its property rights. By this logic a retroactive statute comes into effect after conduct was complete, but changes the rules of the game for the future. The State, though, believes that the statute applies actively, and thus Eitanit’s claim is mitigated. That State’s position is that retroactive legislation cannot be precluded in every scenario. Who is correct about this? The issue of temporal application is complex. Therefore, first we generally present the relevant terms. Then we analyze the issue in the context for section 74, including the extent of harm to Eitanit.

Retroactive legislation changes for the past the legal status of activity that occurred before the legislation came into effect. Retrospective legislation changes for the future the legal consequences of activity that occurred before the legislation came into effect. Prospective legislation changes for the future the legal statues of activity that will occur after the legislation comes into effect.

To illustrate the differences, consider the following hypothetical: Reuben smokes a cigarette in a public space on January 1, 2012. At the time this was not prohibited. On February 1, 2012, a statute was enacted that imposes a steep fine on smoking in public places. If the new statute applies only on whoever smokes in public places from February 2, 2012 on, this is a prospective statute. If however, the statute stipulates that it came into effect on January 1, 2012, it is a retroactive statue. It alters the legal status of Reuben’s smoking, and subjects him to a fine. However, the statute is retrospective if it stipulates that anyone who smokes between January 1, 2012 and the day the statute was enacted did not commit any offence, but is required to participate in a class offered by the Ministry of Health about the harms of second-hand smoking. The statute did not alter for the past the legal status of Reuben’s smoking – which is not an offense – but did change for the future the consequences of his action. In this case, the unique status of a retrospective statute is obvious: the statute clarifies that Reuben did not commit an offense and the consequences he must face are not a fine or penalty, which is inconsistent with retroactive legislation. Reuben would still have to bear certain consequences for his past conduct, which is inconsistent with prospective legislation. It should be noted that this distinction, between retrospective application and retroactive application, is not acceptable by all, but has been established in the jurisprudence of this Court and in several other legal systems, such as Canada (for more on these definitions, see CA 1613/19 Arviv v. The State of Israel, IsrSC 46(2), 765 (1992); Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 609-45 (1994); Yoram Margaliot, Discrimination in Regulating Financial Savings and its Proposed Solution, Mishpatim 31, 529, 552-56 (2001); Yaniv Rosnai, Retroactivity: More Than Just ‘A Matter of Time’!, Law and Business 9 395 (2008); Daphne Barak-Erez Administrative Law, vol 1, 351-52 (2009)).

Another categorization that may be relevant for our purposes is active legislation: a piece of legislation that changes for the future the legal consequences of a situation that already existed the day the statute came into effect. Obviously, active legislation is closely linked to retrospective legislation. The difference between the two is that active legislation applies to situations that exist in the present, whereas retrospective legislation applies to activity that has already concluded in the past. For the hypothetical above, assume that the new statute would believe the impact of smoking in public places to leave residue for two months, and impose obligations accordingly – this is active legislation. It is another way to justify obligating whoever had smoked in a public place a month prior to the statute’s effect to participate in the course, as the hypothetical goes.

In his book, Professor Barak presents another example to illustrate the difference between retrospective application and active application. The difference depends on the purposive interpretation of the relevant statute:

“Take a new statue that stipulates that anyone convicted of an offense cannot serve as a Knesset Member. Would the term ‘anyone convicted of an offense’ point to an activity or a situation? Would applying the statute on anyone who was convicted of an offense before the law came into effect constitute retrospective application?... If the statutory purpose is to set an additional sanction – beyond the criminal sanction – for anyone convicted, then it addresses the activity that led to the conviction in the past. Applying the new law to such activity constitutes retrospective application of the statute. However, if the statutory purpose is to ensure public trust in elected officials and government institutions, then it addresses the situation of ‘convicted’. Applying the new statute on a situation that existed before the statute came into effect and continues to exist in the present does not constitute its retrospective application” (Aharon Barak Interpretation in Law, vol 2 – Legislative Interpretation, 628 (1994).

38.Equipped with these tools, where does the case before us fall? Section 74 of the Act requires Eitanit to shoulder the costs of removing waste it buried in the ground or passed on to the end users. On one hand, this is not retroactive application: the section does not change the past, and does not define Eitanit’s past conduct as an offense or as conduct that creates liability in torts. On the other hand, this is not prospective application, as we are concerned with removing existing waste and not waste that will accumulate in the future. The question is therefore whether this is active or retrospective application. On one had, arguably, this is active application: the Act addressed a current situation – waste that threatens public health. This is the State’s position. Alternatively, it can be argued that this is retrospective application: the Act changes the legal consequence of the burial and giving away that Eitanit did in the past, and imposes a new sanction on Eitanit. This is, effectively, Eitanit’s position.

The dispute between the parties is not merely theoretical, and the categorization of section 74’s temporal application holds constitutional significance, because the four main categories of temporal application – prospective, retrospective, active, and retroactive – may be organized along a “spectrum of legitimacy”. This spectrum reflects how we treat a piece of legislation. The premise for the “spectrum of legitimacy” is as such: the more the statute sends its tentacles significantly toward the past – so do more concerns come up about the statute’s legitimacy. The intuition behind this has many rationales: the rules of the game must be clearer from the outset, for reasons of justice and fairness, and the legislature should not be permitted to change them retroactively. Additionally, retroactive changing of rules compromises public trust in the legislature, limits the statute’s ability to channel future behavior, and undermines stability and certainty. It should be emphasized that a statute should not automatically struck down only for its location on the spectrum. Yet the justification for a statute’s temporal application must be more persuasive (this is not so for criminal legislation, see section 3 of the Penal Law 1977; a similar state exists in Canada: Canadian Charter of Rights and Freedoms §11(g), in India: Constitution of India, §20(1), in South Africa: Constitution of South Africa, Chapter 2 – Bill of Rights, §35(3)(1), and in Norway: Kongeriket Norges Grunnlov, §97).

On one end of the “spectrum of legitimacy” we find prospective application. This is more acceptable because it has no impact on past actions or past situations. On the other end we find retroactive application. This application is the type most difficult to swallow because it pulls the rug from underneath activity that has already been concluded and changes its legal meaning. Active application is situated between retrospective application and prospective application, because it applies to situations that are rooted in the past but that continue into the present. Therefore, in some sense, it is more acceptable and reasonable than retrospective application, which entirely addresses actions that have ended in the past. Thus the relative importance of the issue before us, about the categorization of section 74 – retrospective or active?

I have given much thought to this question. It is true that the Act applies to an existing situation. We are concerned with removing waste that is already buried in the ground, or is used to cover it in order to create different types of surfaces (roads, pavement, etc.). In this sense, the law applies actively. Yet I believe that categorizing section 74 under active application misses the point. Recall that this is not a case where only several of the factual elements have occurred in the past. Here, all the factual elements have occurred in the past: the waste has already been buried or placed as surfaces. In such a case, I doubt whether active application in the traditional sense is appropriate (compare: CA 6066/97 The City of Tel Aviv-Yaffo v. Even Or, IsrSC 54(3) 749, 755 (2000)). Moreover, section 74 does not address the future at all. Consider, for comparison, the example by Professor Barak that I presented above, about the new law that would stipulate that anyone convicted of a crime would be excluded from serving as a Member of Knesset. Such a hypothetical statute is partly concerned with the past (people who have already been convicted), and partly concerned with the future (people who would be convicted in the future). However, section 74 is not future facing at all. It addresses asbestos waste that Eitanit buried in the distant and not so distant past. The section does not address, and neither does it purport to do so, the burial of asbestos waste going forward. This is the concern of other sections of the Act, but not section 74. It is possible, then, that we are faced with a new category – narrow active application. Going back to the “spectrum of legitimacy”, I believe section 74 and the category of narrow active application are closer to the legitimacy position of retrospective application than to that of active application. Either way, the probability that section 74 is not an obviously retroactive statute, weakens Eitanit’s claim regarding the extent of the infringement of its property rights.

Still, without deciding the theoretical question of the Act’s categorization, we must keep in mind that even were this a strictly retroactive statute – and that is certainly not the case here – it should not mean that statute must be automatically struck down. We would still need to examine the entirety of arguments, factors, and considerations regarding the statute, in light of the limitations clause, including the statutory purpose, its benefits and its infringements of protected rights (compare: HCJ 1149/95, Arko Electric Industries Ltd. v. The Mayor of the City of Rishon L’Tzion, IsrSC 54(5) 547, para 10 of Justice Strasberg-Cohen’s opinion (2000); HCJ 4562/92, Sandberg v. The Broadcast Authority, IsrSC 50(2) 793, para 33 (1996)). In other words, the analysis I have conducted so far regarding temporal application is yet another consideration in the cost-benefit analysis. Indeed, another consideration but not a decisive one.

In my view, balancing benefit against the infringement of rights, there are three considerations that support the former and tip the scale against the harm caused by the statute’s retroactive application. Again, I do not believe this is per se retroactive application, but for purposes of convenience and brevity I will so term it. Of course this is not merely a matter of convenience: section 74 and its unique formulation, reeks of retroactivity, even if it should not be categorized as such.

As for the first consideration, my position above regarding the element of foreseeability characterizes Eitanit’s conduct to a certain extent. This has implications not just for issue of strict liability, but also for that of retroactivity. United States courts, as explained, interpreted CERCLA as having retroactive application, even though this is not explicit in its language, and though American law has a rebuttable presumption against retroactive application. One reason for this interpretation was linked to the foreseeability element: “While the generator defendants profited from inexpensive wasted disposal method that may have been technically ‘legal’ prior to CERCLA’s enactment… it was certainly foreseeable at the time that improper disposal could cause enormous damage to the environment.” (U.S. v. Monsanto Co., 858 F. 2d 160, 174 (4^th Cir. 1988))

Put differently, while it is true that waste removal activity was formalistically permitted at the time, it was still possible even then to expect that such activity would cause grave harm to the health of residents and to the environment. In other words, foreseeability or awareness of the harm is some justification for imposing “retroactive” liability. We see a similar line of thinking in Holland, as I explained above. The Dutch Supreme Court ruled that a law from 1982 applies retroactively from January 1, 1975 onward. This date was chosen because starting then every polluter should have been aware that it was likely to be liable for polluting. Therefore, foreseeability or expectation of harm – not in the criminal or civil sense, but for the purposes of constitutional review – may justify retroactive application.

This is coupled with a second consideration: the extreme harm to the public. This risk is not reduced over time, and it must be addressed. Doing so increases the social benefit that comes out of section 74, even if it holds quasi-retroactive elements. Ignoring the risk caused by asbestos amounts to exposing citizens to a ticking time bomb. No wonder the legislature seeks solutions. Removing asbestos waste is an urgent priority. Failing to do so is not an option – “You shall not overlook” (Leviticus 22, 3). Regardless, the responsibility for an asbestos hazard already created will be quasi-retroactive. Therefore the question is not whether to impose retroactive liability, but whom to impose it upon (including the option of distributing costs between different parties). Of the options to impose financial obligations on the polluting corporation and imposing it on the public, fairness requires that we opt for the former. Indeed, the Israeli legislature’s solution, regulated through section 74, is designed so that at most only half of the expenses are placed on Eitanit.

Regarding the third consideration, we turn again to comparative law. Many countries – though not all of them – have recognized retroactive application. This position, as explained above, is primarily justified by fairness and necessity.

I am not ignorant to the fact that in terms of section 74 there is some link, perhaps even intermingling, of the concerns about retroactivity with the concerns about strict liability. This is understandable. As far as the infringement of Eitanit’s property right, retroactivity and strict liability walk hand in hand. The two, together and separately, raise concerns about imposing financial burdens on Eitanit for actions that were not impermissible when taken, and were not even found to constitute a breach of any duty of care. Ultimately, we must look into the details of section 74. This examination reveals that, on one hand, there is no finding of fault, but on the other hand, there are policy reasons, as mentioned, that warrant the conclusion that the infringement is outweighed by the benefits.

39.For the purposes of the third sub-test, the narrow proportionality test, three of Eitanit’s arguments were emphasized for the difficulties they create: personal legislation, strict liability, and retroactive application. Having analyzed each of these arguments independently, it appears the extent of the harm is not as great as initially thought. The additional conclusion is that Eitanit failed to demonstrate that the infringement upon its property rights surpasses section 74’s extensive benefit to the public.

Remarks Before Summarizing

40.Before I finish applying the limitations clause to this case, I should emphasize two important points. These were weaved throughout the constitutional analysis, but it would be appropriate to bring them to the fore of the discussion in order to acknowledge their significance.

The first point is the comparative law one. We are concerned with a legal area completely new to Israeli law. The issues raised here, were raised in similar dress in many other countries. Asbestos, as a member in the group of dangerous and polluting materials, is a problem that crosses borders. When a court subjects a case like this to constitutional review, I believe there is significance to the fact that many countries have walked a similar path to that of section 74. Caution is warranted when looking abroad as the Israeli system is independent. 65 years from the country’s founding, Israeli law can be seen as a dynamic creation with a life of its own. Israeli law defines the question, and supplies the answer. However, beyond the fact that this is an issue common to Israel and to other countries, I have not seen the matter to be unique – certainly not clearly or obviously – to Israel and distinct from that in other countries around the world. This is not to say that the State has absolved itself by demonstrating that the statue legislated here is consistent with international consensus. But by the same token, it cannot be said that comparative law is an irrelevant consideration, particularly when it reveals that other countries’ constitutional jurisprudence regarding similar statutes enriches our constitutional discussion. The project of comparison supports the state’s argument that section 74 is constitutional. This is a factor that should be taken into account here (and see CA 1326/07 Hammer v. Amit, para. 34 of Deputy President Rivlin’s opinion (May 28, 2012), re wrongful birth). However, this is certainly no substitution for independent constitutional review under section 8 of Basic Law: Human Dignity and Liberty.

Substantively, the above review of the legal state in Western countries reveals one clear point: that a standard of strict liability is common and acceptable in the context of removing dangerous and polluting materials. Thus in the United States, where the courts found the legislative intent behind CERCLA was to establish a strict liability standard. The European Union’s Directive, the ELD, recommends imposing strict liability on harm caused by dangerous activities listed in the third annexure. This type of liability was de facto imposed in Sweden, France, Holland, Germany (to some extent), Finland and the United Kingdom. This is also the case in many other countries that are not members of the European Union, such as Switzerland, Canada and South Africa. Retroactivity is less common, compared to strict liability, but it exists, too. In the United States CERCLA’s retroactivity passed judicial review. So did the statutes of British Columbia. Some European states adopted retroactivity as well, including Spain, the United Kingdom, and Holland (to some extent).

We have seen the commonalities. We have noted that they are material. To the relevance of this, I move onto the second point. We are concerned with constitutional review, rather than administrative. The test is not reasonableness, but the limitations clause in section 8 of Basic Law: Human Dignity and Liberty. The range of possibilities is broader, though in order to remain within this range a statute must meet the specific conditions the legislature set in the limitations clause. A court is aware of its own limits, but also of its responsibility. As noted, there is no single legislative fix for a legal problem. But in our case, it was possible to reach a statutory framework that would have passed constitutional review. Section 8 is the key. In our case, my opinion is that the State is correct that the legislature overcame all the obstacles.

Summary

41.The petition before us focused on the constitutionality of section 74 of the Asbestos Act, and of the project it launched to remove asbestos waste from the Western Galilee.

First, we must locate the rights infringed. My conclusion is that section 74, with which we are concerned, infringes Eitanit’s property rights. Indeed, the State conceded this right is infringed. Still, I do not believe that section 74 discriminates against Eitanit compared with other entities: the legislature did not obligate Eitanit to pay for final asbestos-cement products that were discarded by the end users, nor for asbestos waste that originated from other factories’ manufacturing processes. The “waste population” that is, the waste to which section 74 applies, includes only the industrial waste that came from the production processes in Eitanit’s factory.

In this context, I explained why Eitanit’s participation in removing the waste that was used for covering surfaces is justified over that of the end users. I believe there is a significant and relevant difference between Eitanit and the end users, which is based on three tests: the awareness test – Eitanit had an obvious advantage in knowledge compared to the end users. For decades Eitanit was Israel’s primary importer, manufacturer and marketer of asbestos. By virtue of this position Eitanit was familiar with the scientific research on asbestos risks and was also subject to the different statutory obligations that reflected these health risks. Under the control test, Eitanit is the manufacturer while the end users were the consumers or customers. As a manufacturer, Eitanit controlled the production of waste and its distribution, and in any event there is much logic in placing the financial burden on it. Under the profit test, there is clear justification for requiring the corporation that produces asbestos, and which more than any other entity had profited from the activity that caused the polluting hazard, to shoulder the costs of removal. All these reasons hold even more force in terms of the distinction between Eitanit and the local authorities, which do not even constitute “end users.”

Once I have concluded that Eitanit’s right to property was infringed, the issue became whether the infringement could pass muster under the limitations clause of section 8 of Basic Law: Human Dignity and Liberty. The comparative law in the background of this analysis was reviewed at length, among others because this is a novel legal issue that carries clear universal aspects and because no unique characteristics were presented for the Israeli context. Another point that should be emphasized is that we are charged with constitutional review, not administrative review. This influences the breadth of the Knesset’s discretion.

I first clarified that the infringement was made through primary legislation, that is, a statute that the Knesset passed appropriately and legally. Eitanit’s argument that this is not a “statute” for the purposes of the limitations clause because it is a personal statute is incorrect. It is a formal test that inquires mainly whether the infringement upon basic rights was made in primary legislation or according to such legislation. In this case, the answer is in the affirmative.

In the next step we explore the purpose of section 74. The sections’ primary purpose is to launch a project for the removal of asbestos from the Western Galilee. This is encompassed in the statute’s broader purpose: minimizing asbestos hazards in Israel. There is no doubt that this is an important and worthy purpose, befitting the values of the State of Israel. Indeed, it appears even Eitanit does not dispute this. I tend to think that this is the sole purpose of the statute. However, the State articulates another purpose: realizing the principle of “the polluter must pay.” I, myself, believe that this principle justifies the funding mechanism selected in the Act, rather than its purpose. Yet for the sake of a comprehensive analysis I assumed that “the polluter must pay” was a secondary purpose of the Act. Here, too, I find this to be an appropriate and befitting purpose: “the polluter must pay” principle relies on important and worthy rationales – efficiency considerations, cost internalization, justice and fairness – and it is even reflected in Jewish law and an array of recent pieces of legislation in Israel.

Is the means selected in section 74 proportional? I first examined the issue of the rational connection, in terms of each of the two purposes. As for the primary purpose, the link between the means and the end are obvious: the project directly leads to achieving the end of cleaning asbestos waste from the Western Galilee. As for the secondary purpose – “the polluter must pay” – here, again, I find a fit between the means and the end: placing financial obligations on Eitanit, which profited from burying the waste or passing it on to the end users, achieves the end of “the polluter must pay.” Even the legislature’s choice to impose a kind of retroactive and strict liability advances the principle of “the polluter must pay,” primarily from the perspective of justice and fairness.

The next step is the least restrictive means test. Here, the main alternative that Eitanit proposed is the self-performance, that is, that Eitanit or a contractor it would hire would remove the waste independently. However this option was already discussed by Eitanit and the State for a long period of time and was ultimately rejected. Under such circumstances I was not persuaded that the self-performance alternative would achieve the purpose behind section 74 – cleaning the Western Galilee from asbestos waste. Additionally, from a positive perspective, the mechanism the legislature opted for incorporates checks and balances that limit the harm to Eitanit. Eitanit would not be required to fund more than half of the removal project’s estimated costs, and in any event no more than NIS 150m. The funding mechanism insures that this is not a fine or compensation, but rather a fund dedicated to removing the waste. The removal project is limited to a radius of 15KM around the factory, and in any case there is a mechanism for checking and monitoring the length of the project, which allows Eitanit to challenge any requirement to pay for specific waste piles.

The final step is the narrow proportionality test. In this context I emphasized three points at the heart of Eitanit’s claims. On the generality issue, it is undisputed that section 74 specifically targets Eitanit, and Eitanit alone (aside from the State and the local authorities.) Only that the focus on Eitanit is not a whim that took over the legislature, but an outcome of the reality that was created by Eitanit itself. The section was designed to address a unique situation: a large amount of waste, in a defined geographical area, created systematically by one dominant entity – Eitanit.

On the issue of strict liability, it is true that on its face this is a harsh standard that raises questions and concerns. However, three considerations alleviate these difficulties. First, there are weighty justifications for strict liability, primarily justice and fairness, deterrence and cost internalization, as well as the evidentiary challenges of a fault-based standard. Second, there is support for strict liability in many European countries, in the United States, and in other countries. Third, a certain extent of factual expectation or awareness by Eitanit regarding the risks of asbestos (of course, not in the tort or criminal sense.)

Finally, in the issue of the Act’s temporal application, my conclusion is that the Act carries a narrow active application. Though it does apply to an existing state of affairs, there is no active application in the regular sense. All the factual elements have materialized completely in the past and section 74 does not at all address the future. Regardless, even if this was a completely retroactive statute – this is not a determinative factor, but merely another consideration in the constitutional fabric. At this point I discussed three mitigating elements: first, the expectation or knowledge element regarding the risk. Second, the scope of the risk; the finding that failure to treat the asbestos waste leaves many citizens exposed to a ticking time bomb in terms of their health. We cannot leave things as they are. In weighing imposing costs on Eitanit against imposing costs on the public, Eitanit’s connection to the waste as its producer puts the thumb on the scale, or at least allows for it. And third, the support for imposing retroactive liability in the United States and in other countries (such as Spain and Britain.)

We cannot ignore the infringement on Eitanit’s rights, or that the legislature created a new regime. However, it is my view that the infringement upon Eitanit’s constitutional rights – as an outcome of section 74 – passes the tests of the limitations clause.

Final Thoughts

42.Such is the way of the law. It is challenged by an ever-changing reality that requires the legislature to find solutions for problems that in one way or another threaten society. To achieve this purpose, occasionally there is need to design statutes that rely on new perspectives on legal principles. This was also the case in the past, and we shall present several examples of this.

The common law found it difficult to find legal justification to impose upon a stranger the duty to assist another person in distress. Still, for certain circumstances where official rescue services are far removed, the law has created obligations to rescue, for example the duty to save lives at sea, imposed on ships passing by (Scaramanga v. Stamp, 5 C.P.D. 295, 304-305 (1880); The Beaver, 3 Chr. Rob. 292 (1801); Sophie Cacciaguidi-Fahy, The Law of the Sea and Human Rights, 1 Panoptica Vitoria 1, 4-5 (2007)). Another example is the possibility of filing class action suits. Given the concern that absent a primary injured party who suffered damages in substantial amounts injuring parties would continue their harmful behavior, the law has developed this new procedural tool and recognized the possibility to file suit on behalf of a large group of injured parties. The novelty is both in the legal possibility to create a group of plaintiffs, who in large part did not express any position on the matter, and in the economical consequences even for a strong defendant (see the Class Action Act, 2006). Another example is the development of corporate law, on different levels. First, the recognition of a corporation’s independent status as a separate legal entity and the elimination of stock holders’ personal liability was a legal novelty and was a significant incentive to use the legal tool of incorporation. Later in legal history the pendulum swung back, to some extent. The legislature began imposing various obligations on the organs and office holders of corporations, such as duties of care and trust, based on understanding the web of interests that dictate their actions (Irit Haviv-Segal, Corporate Law, chapter 10 (2007); P. M. Vasudev, Corporate Law and Its Efficiency: A Review of History, 50 American Journal of Legal History, 237 (2010)).

As we can see, the law has gone through an evolution. To fit the it to reality, laws were passed that on their face strayed from the legal norms that were familiar and entrenched up to that point. It seems that our case, too, as part of Israel’s new environmental legislation, joins this list. The great potential for harm that asbestos waste causes and the complexity of the issue demand a solution that does not move on the currently acceptable axis of tort liability. As a rule, finding solutions to intricate problems is not necessarily a legal compromise in the sense of giving in. This is how the law advances. Hand in hand, in the constitutional era of recognizing rights, it is the role of the Court to make sure that the legislature’s selected solution meets the constitutional standards of the limitations clause. The mere existence of a problem does not open the gate for any solution. Judicial work is subtle, but necessary. In a constitutional regime, one would hope that the legislature would exercise better care. It would be aware that Basic Laws look over its shoulder “watches through the windows, peeking through the cracks (Song of Songs 2, 9.) It would strive to withstand constitutional review. This hope does not always materialize. In our case, section 74 includes elements that reflect the legislature’s attempt to meet constitutional standards. This attempt has been successful.

43.Ultimately, I would propose to my colleagues to reject the petition, and under the circumstances and the merits to require Eitanit to pay costs and attorneys’ fees as follows: for respondents 1, 3 and 4 together a sum of NIC 100,000; to respondent 5 and respondents 6-7, a sum of NIS 70,000 for the entire group; and for respondent 2 a sum of NIS 25,000.

 

___________________

Justice

 

 

 

President A. Grunis

I concur.

 

 

___________________

President

 

 

 

 

 

Justice T. Zylbertal

I concur.

 

 

___________________

Justice

 

 

Decided according to the judgment of Justice N. Hendel.

 

Handed down today, April 2, 2013.

 

 

 

 

 

 

 

 

President A. Barak

In March 1992, the Knesset enacted Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. The enactment of these two Basic Laws effected a substantive change in the status of human rights under Israeli law. Such rights became constitutionally protected and were accorded supra-legislative constitutional status. They cannot be changed by ‘regular’ legislation. A regular law cannot infringe a protected human right unless the constitutional requirements set forth in the Basic Law have been met. The failure of a regular law to meet those requirements renders it unconstitutional. Such a law is constitutionally flawed and the Court may declare it void.

 

Israel is a constitutional democracy. We have now joined the community of democratic countries (among them the United States, Canada, Germany, Italy and South Africa) with constitutional bills of rights. We have become part of the human rights revolution that characterizes the second half of the twentieth century. The lessons of the Second World War, and at their center the Holocaust of the Jewish people, as well as the suppression of human rights in totalitarian states, have raised the issue of human rights to the top of the world agenda. International accords on human rights have been reached. Israel has acceded to them. International tribunals have been established to address issues of human rights. The new constitutions include extensive sections treating of human rights – particularly at the head of those constitutions and in their unique entrenchment provisions. Judicial review of the constitutionality of laws infringing human rights has become the norm in most countries. This revolution has not passed us by. We joined it in March 1992.

 

A. The constitutional revolution in human rights

 

1. The constitutional revolution occurred in the Knesset in March 1992. The Knesset endowed the State of Israel with a constitutional bill of rights. This revolution was many years in the making and was the result of a multi-dimensional legislative process. At its foundation rests the recognition that the Knesset is the body that has the authority to enact a constitution for Israel. The Knesset is not only empowered to adopt ‘regular’ legislation; it is also empowered to adopt a constitution. The Knesset exercised this authority in enacting two Basic Laws on human rights. In so doing it created a supreme, supra-legislative constitutional norm. In the normative hierarchy that was thereby created, the two Basic Laws treating of human rights stand above regular legislation. A conflict between a provision of one of these two Basic Laws and a provision of a regular statute leads to the invalidation of the offending statute.

 

2. When it enacted the Basic Laws pertaining to human rights, the Knesset expressed its position with regard to the supreme legal-constitutional status of those laws. Today the Supreme Court expresses its legal position confirming that supreme status. Thus the legislative branch is in accordance with the judicial branch. The constituent authority coincides with the judicial authority. An order has been established regarding the constitution in general and regarding the human rights set forth in the Basic Laws in particular. The Knesset did not create the Basic Laws ex nihilo. Rather, the Knesset enacted the two Basic Laws in accordance with its constituent authority. This authority is granted to the Knesset, as is evident against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, and the ten Basic Laws that the Knesset has enacted from 1958 until the enactment of the Basic Laws dealing with human rights (Basic Law: The Knesset; Basic Law: Israel Lands; Basic Law: The President of the State; Basic Law: The Government (old and new); Basic Law: The State Economy; Basic Law: The Army; Basic Law: Jerusalem Capital of Israel; Basic Law: The Judiciary ; Basic Law: The State Comptroller). The Supreme Court did not create something ex nihilo. Our decision today is consistent with established precedent, beginning with the Bergman case (HCJ 98/69 Bergman v. Minister of Finance [15]). As recently as last year, we recognized the Knesset’s authority in this regard (see HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37]). Today we continue on the same path.

 

3. The constitutional revolution in the field of human rights is built upon the foundation of judicial precedent. The Knesset has used its constituent authority to endow a number of legally protected human rights with constitutional supra-legislative status. Without the established legal underpinning, the constitutional change could not have been effected. ‘We would not have arrived at the secure position that human rights occupy today without the strong foundation established by the judges who preceded us’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 414). It would not have been possible to construct a constitutional framework in the area of human rights had not the established judicial precedent been in place. Without judicially protected human rights, constitutionally protected human rights would be unknown to us. Without Israel’s democratic past there is no basis for Israeli constitutional democracy in the present or the future. The constitutional revolution in the area of human rights is the product of the jurisprudential developments in the protection of human rights. This constitutional structure is built upon a foundation of legal precedent. In this way, clear expression is given to the ‘ongoing cooperation’ between the Court and the Knesset (Justice Agranat, The Contribution of the Judiciary to the Legislative Enterprise, 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 233). Moreover, the new constitutional law must be interpreted against the backdrop of the general national experience. Constitutionally protected human rights must be understood in the context of established judicial precedent. This precedent does not diminish in power. It continues to be a source of interpretive insight in construing constitutionally protected human rights.

 

4. The constitutional revolution is not manifested by the simple recognition of human rights. This recognition has long been established in Israeli judicial precedent. Rather, the constitutional revolution is seen in the changed constitutional status of human rights; the constitutional revolution is seen in the establishment of constitutional status for ‘basic principles’ according to which ‘fundamental human rights in Israel are founded upon a recognition of the value of the human being, the sanctity of human life and the principle that all persons are free...’ The constitutional revolution is expressed in the determination that human rights ‘will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel’ (s. 1 of the Basic Law: Human Dignity and Liberty; s. 1 of the Basic Law: Freedom of Occupation). The constitutional revolution is expressed in the granting of constitutional status to the clause that a person’s honor and freedom must be protected ‘in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1A of the Basic Law: Human Dignity and Liberty; see also s. 2 of the Basic Law: Freedom of Occupation). Accordingly, the legal rights of a person in Israel are no longer unwritten (Justice Landau in HCJ 243/62 Israel Broadcasting Studios Ltd v. Gary [39] at p. 2415). They have become constitutional rights, engraved upon the pages of the constitution and enjoying normative supremacy. A regular law that infringes a constitutional right in a manner that is inconsistent with the values of the State of Israel as a Jewish and democratic state, that does not serve a proper purpose, and that violates the right to an extent greater than is required is an unconstitutional law and may be declared void. When a regular law infringes a constitutional right protected in the Basic Law: Human Dignity and Liberty, does not meet the requirements of the limitation clause and provides – expressly or implicitly – that it is intended to infringe a human right, such a law is unconstitutional and the Court may declare it void. This is the essence of the constitutional change. This is unprecedented. Until now the prevailing view in Israel was that ‘the all-powerful legislature may permit harm to citizens without any legal or judicial limits.’ (Justice Sussmann in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [40], at p. 1079; ‘This is the decree of the legislature; if it leads to discrimination, such discrimination is sanctioned by legislation and is therefore lawful and not invalid’ (Justice H.H. Cohn in HCJ 120/73 Tobis v. State of Israel [41], at p. 359). Justice Berinson has summarized this as follows:

 

It is beyond doubt that according to the prevailing constitutional rule of the State, the Knesset reigns supreme and it is within its power to enact any law and fill it with content at its whim. One may not consider the possibility that the clauses of a legally enacted law might be declared invalid for one reason or another. (HCJ 228/63 Azuz v. Ezer [18], at p. 2547).

 

This constitutional outlook has now changed. The Knesset is no longer all-powerful in exercising its legislative authority. In the area of human rights, the Knesset has limited its legislative powers by exercising its constituent authority. This is the basic constitutional change. For the first time, in March 1992, the Knesset established a range of constitutional human rights that limit the legislative power of the Knesset and that condition their infringement upon the realization of the values of the State of Israel as a Jewish and democratic state. For the first time the Supreme Court affirms the constitutional supra-legislative effect of the Knesset’s action. In light of the novelty of this issue, because of the different opinions on this matter and against the background of the comprehensive decision of my colleague President Shamgar, it is fitting that I address various questions that arose before us in an attempt to answer them.

 

In the first part of this decision I discuss the constitutional framework. In this section, I address the question of whether the Knesset is authorized to enact a constitution for Israel. I will answer this question in the affirmative, for the Knesset has not only legislative power, but also the power to enact a constitution for Israel; in other words, it is endowed with constituent authority. In the context of this section I address the question of how the Knesset makes use of its constituent authority and whether, in fact, it did so properly in enacting the two Basic Laws treating of human rights. I answer this question affirmatively as well. I examine the normative status of the two Basic laws and their relation to regular legislation. I then conclude the examination of the legislative framework with the question of whether, in light of the two Basic Laws, judicial review can lie of the constitutionality of regular legislation. The answer to this question is also affirmative.

 

In the second section I concentrate on the Basic Law: Human Dignity and Liberty. I begin with an examination of its constitutional implications. I briefly discuss the scope of the protected rights, and will concentrate primarily on the nature of the right of property, which the Appellants claim has been violated. I consider the Knesset’s power to infringe protected rights by analyzing the limitation clause.

 

In the third and final section of my decision I consider whether the provisions of the Family Agricultural Sector (Arrangements) (Amendment) Law infringe constitutionally protected rights. I answer this question in the affirmative. Against this background I consider whether the law, which infringes those rights, meets the requirements of the limitation clause. I answer this question affirmatively, as well.

 

B. The constitutional framework

 

I) The source of the Knesset’s authority to enact a constitution for Israel

 

a) The doctrine of constituent authority

 

5. The opening question is, of course, whether the Knesset is endowed with the authority to enact a constitution for Israel (‘constituent authority’) and, if so, what is the source of this authority. President Shamgar has proposed several views on this matter. Choosing between them is not necessary in order to decide the issue before us in this appeal. I will therefore present my opinion in this matter.

 

It seems to me that that most appropriate view is that the Knesset is endowed with constituent authority. This power derives from the central constitutional fact that Knesset was given the authority to enact a constitution for Israel. The Knesset does not create this authority for itself. It is not granted to the Knesset by a Basic Law or by any other law enacted by the Knesset. In order to frame a constitution, which will be placed above the law in the normative hierarchy, there must be an Archimedean foothold located outside the constitution or the law, which provides the Knesset with the authority to adopt a constitution. The constitution cannot create the authority by which it will be created. Statute cannot create a constitution to which statutes will be subject. Nor can legislation create the authority by which it will be created. The enactment of a constitution always requires a foothold outside the legislative body. This foothold must come from the people, whose will is supreme. Thus, the doctrine of the Knesset’s constituent authority is based upon the principle that this authority derives from the sovereign, i.e. the people. Constituent authority endows the Knesset with the power to enact a constitution for Israel (as embodied in the Basic Laws). This authority endows the Knesset with the power to enact regular laws as well as to act in other ways (for example, to supervise the government). Indeed, the Knesset wears a number of ‘hats’ or ‘crowns,’ among them the crown of constituent authority – under which the constitution is adopted (by enactment of the Basic Laws) –  and the crown of legislative authority,   under which legislation is adopted. Three legal models may illustrate this view. Each model stands alone as a basis for the doctrine of constituent authority. That all lead to the same conclusion lends that conclusion greater weight. I will begin with a brief introduction to each of the three models. I will then present the constitutional facts that sustain the models.

 

b) Presentation of the three models

(i) Constituent authority is derived from the basic norm

 

6. The first model is based upon the importance of constitutional continuity. Under this model, the basic norm for Israel (the Grundnorm, according to Kelsen, see H. Kelsen, Pure Theory of Law (Knight trans. 1967), at p. 193) is that the Provisional Council of State is the supreme authority of the State of Israel (see I.H. Klinghoffer, “The Establishment of the State of Israel: Constitutional History,” Klinghoffer Book on Public Law, (ed. I. Zamir, 1993), at p. 74). The Provisional Council of State declared in the Declaration of Independence that a constitution would be drawn up ‘by the elected Constituent Assembly’ In addition, the Provisional Council of State declared itself the legislative body (in the Law and Administration Ordinance, 5708-1948).

 

The Constituent Assembly was elected (on January 25, 1949), and with its establishment the Provisional Council of State was dissolved. Its powers passed to the Constituent Assembly (Transition Law, 5709-1949). The Constituent Assembly therefore had two main powers: constituent authority and legislative authority. The same entity was given two functions, two ‘crowns’ or ‘hats’ as it were: one constituent (to adopt a constitution), and the other legislative (to enact ‘regular’ legislation). This arrangement, in which constituent and legislative authority are granted to the same entity, is widely accepted (see Akzin, The Doctrine of Governments, vol. 2  (1966), at p. 35; Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Univ. L. Rev. (Mishpatim) 52 (1970)). The Constituent Assembly provided (in the Transition Law) that ‘the legislature of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” The delegates will be known as “Members of Knesset.”’
(s. 1). The First Knesset (i.e. the Constituent Assembly) devoted considerable time to debating the matter of the constitution. These debates concluded with a compromise decision (the “Harrari Decision”), according to which:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter comprising a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

Before it dispersed, the First Knesset provided that all of its powers would pass to subsequent Knessets (Second Knesset (Transition) Law, 5711-1951). To avoid doubt, it was emphasized that this transfer would also include all powers of the Constituent Assembly (see s. 9). The Second Knesset dealt with the preparation of Basic Law: The Knesset but did not succeed in adopting that law. Only the Third Knesset succeeded in adopting the first Basic Law: Basic Law: The Knesset. Since then, Basic Laws have been enacted by the various Knessets. From this brief survey, the first model concludes that the constituent authority of the Constituent Assembly has rested continuously in the hands of the Knesset.

 

(ii) Constituent authority is derived from the rule of recognition

7. The second model supporting the Knesset’s constituent authority is not based upon constitutional continuity. Rather, this model examines the constitutional structure as it exists at any given time. It is based upon the thesis of Professor Hart. Professor Hart distinguishes between primary and secondary norms. Secondary norms determine how the primary norms are created, how they may be changed and how disputes concerning them may be resolved. Among the secondary norms the “rule of recognition” occupies a preeminent position (see H. L. A. Hart, The Concept of Law (second edition, 1994), at p. 100). This rule determines how primary norms are created as well as their relative status – which is a superior norm and which is subordinate. The rule of recognition is determined by the Court, which does not make this determination at its own whim. Rather, it reflects the views of the community as to the way in which norms (including constitutional norms) are created. Under this model, one may determine that the rule of recognition of the State of Israel is that the Knesset is endowed with both constituent and legislative authority. This determination does not reflect a subjective judicial position. It reflects an objective position as to the “system of national life” of the State of Israel (Justice Agranat in HCJ 87/53 Kol HaAm Co. Ltd v. Minister of Interior [4], at p. 884). The basic understanding of today’s Israeli community – expressing our entire national experience – is our national consciousness that the Knesset is the body authorized to enact a constitution for Israel. This consciousness originated before the establishment of the State, and in the preparations for the framing of a constitution. This consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the socio-legal understanding that the Knesset is endowed with constituent authority. It became part of our political culture. Based on these factors the Justices of the Supreme Court determine today that according to the rule of recognition of the State of Israel, the Knesset was given constituent and legislative authority; that the Knesset is authorized, in using its constituent authority, to limit its regular legislative authority; and that the constituent acts of the Knesset stand above its legislative acts. The historic journey – upon which the first model is based – is an important factor in the second model as well. Constitutionality and the constitution are not merely formal instruments. They are not mere law. They are the product of the national experience, of society, education and culture. They reflect the national experience. Our national experience, in today’s comprehensive view, leads to the conclusion that the Knesset has the authority to enact the constitution.

 

(iii) Constituent authority is the best interpretation of social and legal history

 

8. The third model for the constituent authority of the Knesset is also an empirical model. It seeks the best interpretation of the entire social and legal history of a given system at a given time. This is Professor Dworkin’s model (see R. Dworkin, Law’s Empire, (Cambridge, 1986); R. Dworkin, A Bill of Rights for Britain (London, 1990)). Under this model one may conclude that a given body (such as the parliament) is empowered to enact the constitution for a country if that conclusion is the best interpretation of the body of social and legal history of that country. In applying this model to Israel, it appears that 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. This conclusion is based upon the same factors as those underlying the first and second models. Thus the best interpretation of our constitutional history is not that the Knesset wasted its time by spending over forty years preparing a constitution; the best interpretation of our constitutional history is not that some of the entrenched provisions of the Basic Laws are unenforceable; the best interpretation of our constitutional history is not that the various judicial decisions dealing with the Basic Laws miss their mark. On the contrary: in interpreting our legal and social history, its ways and its traditions, as that history presents itself today – against the background of the Declaration of Independence, the establishment of the Constituent Assembly, the Harrari Decision, the election campaigns in which the stated goal of the parties was the adoption of a constitution, the enactment of twelve Basic Laws that include entrenchment and limitation clauses, judicial precedent and the reaction of the Knesset thereto, and the position of the legal community – the inescapable conclusion is  that the most fitting interpretation of our history is that the Knesset is endowed with constituent authority. This is the most fitting explanation for the Knesset’s power to establish that a Basic Law may only be changed by another Basic Law, that the regime anchored in a Basic Law may be amended only by a law passed by a specified majority (a majority of the Members of Knesset or other greater majority) or by a law that meets substantive requirements, that the Knesset is empowered with constituent authority such that it may create a constitutional norm that limits the ways in which it may be changed and entrenches itself against regular legislation. Indeed, the most fitting interpretation of the entirety of the socio-legal history of the State of Israel is that deeply ingrained in the social and legal consciousness of the Israeli community is the perception that the Knesset is empowered to adopt a constitution for Israel. This is part of our political culture. This is the most fitting interpretation of our social and legal history from the establishment of the State until today.

 

c) The constitutional data underlying the three models

(i) Survey of the constitutional data

 

9. The three models do not derive from the judge’s subjective perception. They do not arise from his personal desire to recognize or refuse to recognize a constitution for Israel. They are the result of an objective analysis of the constitutional history of the State of Israel. They result from the constitutional recognition of the Israeli community against the background of our short legal history. They result from an understanding of the social facts upon which the Israeli system is built. These are the constitutional facts from which the three models derive, each from its own perspective. I will now present these factors. I open with those factors that evidence constitutional continuity (paragraphs 10-18). These factors are particularly important in the context of the first model, which sees constituent authority as derived from the basic norm. Of course they serve the other two models as well. I then move to the Knesset’s perception of itself (paragraphs 19-31). This is also an empirical factor that provides the basis for the Court’s conclusion according to each of the three models. From there I will focus on the understanding of scholars and commentators (paragraphs 32-34). This factor is an important one, for it presents the view of the Israeli legal community as to the Knesset’s authority to enact a constitution for Israel. This is important in all three models, particularly the second and third. Finally I will discuss the judicial caselaw of the Supreme Court (paragraphs 35-37). Two Supreme Court decisions have adopted the doctrine of constituent authority in its entirety. In the context of these constitutional factors, I will discuss the body of judicial precedent, which implicitly recognizes the normative supremacy of the Basic Laws. I will complete this analysis with a number of conclusions that are common to all three models and which arise from this objective data.

 

(ii) Constitutional continuity

 

10. May 15, 1948 is the point of departure for the view that the Knesset has constituent authority. On that day the State of Israel was established. The basic norm of the State – 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 – is that the Provisional Council of State is the supreme legislative institution of the State (see Stemberg, “The Basic Norm of the Law In Israel,” 9 HaPraklit (1952) 129. Professor Klinghoffer suggested this in stating that:

 

In order to claim constitutional continuity in Israel’s present legal system, one may look at how authority was transmitted in the past. The Declaration of Independence does not refer to the powers of the Provisional Council of State until the statement in which the National Council declares itself the Provisional Council of State. There is, however, no doubt that the Provisional Council of State was seen as the supreme authority of the new state. The absence of any statement of its powers is evidence that those powers were not intended to be limited. From this we may conclude that the basic norm of the State of Israel can be found in this statement, which transforms the National Council into the Provisional Council of State’ (Klinghoffer, ibid., at p. 74).

In a similar vein, Professor Rubinstein states:

 

The Council’s authority to delegate to itself this power in the Declaration is without precedent. This is the beginning of the process of original creation that characterizes the inauguration of a new governmental regime which does not derive its existence from any previous or other regime’ (A. Rubinstein, The Constitutional Law of the State of Israel, (expanded fourth ed., vol. 1 (1991)), at p. 42).

 

The Provisional Council of State decreed in the Declaration of Independence that a constitution would be enacted by the Constituent Assembly, which in turn would be elected no later than October 1, 1948. It thus gave expression to the Resolution of the General Assembly of the United Nations of 28 November 1947, according to which ‘the constituent assembly of each State will enact a democratic constitution for its respective State.’ As stated in Israel’s Declaration of Independence:

 

We hereby declare that as of the termination of the Mandate at midnight, this night of the 14th and 15th May, 1948, and until the setting up of the duly elected bodies of the State in accordance with a Constitution, to be drawn up by a Constituent Assembly not later than the first day of October, 1948, the present National Council shall act as the provisional administration, and shall constitute the Provisional Government of the Jewish State, which shall be known as “Israel.”

 

The Provisional Council of State published the proclamation and enacted the Law and Administration Ordinance, 5708-1948. This statute provided, inter alia, that ‘the Provisional Council of State is the legislative authority’ (s. 7(a)). The Provisional Council of State similarly enacted the Constituent Assembly Elections Ordinance. In the course of its activity, it appointed a special committee on the constitution headed by Mr Z. Warhaftig. ‘The committee’s function was to collect, clarify and organize proposals and material and to prepare a draft constitution that would be submitted with comments and criticism by the minority of the committee for the use of the Constituent Assembly’ (Rubinstein, ibid., at p. 44). Indeed, the accepted view then was that the Assembly would prepare and draft a constitution for Israel. The Supreme Court expressed this view in the Al-Carbotelli case [42], in the context of a review of existing precedent as to the status of the Declaration of Independence (HCJ 10/48 Ziv v. Acting District Commissioner of Tel-Aviv [43], at p. 85). It stated that ‘the Court did not accept the claim that the Declaration of Independence is a constitution, against which the validity of legislation will be measured until the Constituent Assembly enacts a constitution as provided in the Declaration’ (HCJ 7/48 Al-Carbotelli v. Minister of Defense [42], at p. 13).

 

11. The Constituent Assembly was elected on January 25, 1949. As stated in the Declaration of Independence, its role was to draft a new constitution for the State. According to the original plan, and as envisioned by the Declaration, upon its election the Constituent Assembly was to have existed simultaneously with the Provisional Council of State. These two were to have been separate entities, each with its own composition and its own function. The Provisional Council of State was to have continued to exist in its role as legislative body. Its role was to enact the laws of the new State as they were needed. As evidenced by its name, this was to have been a provisional entity, which was to have been replaced by the ‘duly elected bodies of the State in accordance with a Constitution’ (Israel’s Declaration of Independence). The Constituent Assembly, whose only role was to enact a constitution for the State, was meant to operate alongside the Provisional Council. The Provisional Council of State was not elected by all the citizens and its composition was set by the Law and Administration Ordinance. The Constituent Assembly was chosen by a general election in which all the members of the Israeli community participated. In fact, the parallel existence of both of these bodies was not long lasting, for with the establishment of the Constituent Assembly, the Provisional Council of State was dissolved. This dissolution was not an unexpected step. It was planned in advance. It was clear to all that the Constituent Assembly would be engaged in both legislative and constituent activities. This was reflected in the campaigns and proposals of the candidates for election to the Constituent Assembly, which related to all the issues on the national agenda and not constitutional matters alone.

 

12. The next link in the chain of constitutional continuity was the decision of the Provisional Council of State to dissolve itself. Professor Yadin has discussed the factors on which this decision was based:

 

According to the Declaration, the tenure of the Council of State was to have ended on October 1, 1948. From that day, at the latest, the activities of the elected and regular authorities were to have commenced in accordance with the Constitution, which was to have been adopted in the meantime by the Constituent Assembly. However, the specified date passed without the adoption of a Constitution and without the establishment of regular, elected governmental bodies. According to the Declaration of Independence, the Provisional Council of State and the Provisional Government were to have continued to function not only until the election of the Constituent Assembly, but until the establishment of new governmental bodies in accordance with the new Constitution. The role of the Constituent Assembly was limited to the preparation and adoption of the Constitution, and the task of regular legislation was to have remained in the hands of the Provisional Council of State until after the Constituent Assembly completed its work. Until that time, the two entities were to have existed in tandem and the Provisional Government was to have continued to function until after the election of a parliament in accordance with the new Constitution. This plan was tied to the cut-off date of 1 October1948; all phases were intended to have been implemented within only four months (between 15 May 1948 and 1 October1948). The drafters of the Declaration cannot be criticized for this plan. They signed the Declaration before enemy aircraft appeared in the skies over Tel Aviv (albeit only one day earlier), before seven nations invaded the State, and they could not have foreseen the events of the next few months. In retrospect, in light of the events that took place following the establishment of the State, it is clear that the original plan could not have been implemented. The existence of the Provisional Council of State could no longer be reconciled with the simultaneous existence of the Constituent Assembly. It was therefore necessary to impose upon the Constituent Assembly all of the functions of the Council of State’ (Sefer Uri Yadin, Barak and Shefnitz, eds. (1990), at p. 80).

 

Together with its decision to dissolve, the Provisional Council of State decided that all of its powers would pass to the Constituent Assembly. This transfer was effected by the legislative action of the Provisional Council of State, in the form of the Constituent Assembly Transition Law, 5709-1949. This law provided that ‘the Provisional Council of State shall continue in office until the convening of the Constituent Assembly of the State of Israel; upon the convening of the Constituent Assembly the Provisional Council of State shall dissolve and cease to exist’ (s. 1). It was further provided that the Constituent Assembly ‘shall, so long as it does not itself otherwise declare, have all the powers vested by law in the Provisional Council of State’ (s. 3). Similarly it was provided that the Constituent Assembly would act ‘in accordance with the rules governing the meetings of the Provisional Council of State, with the necessary changes, as long as the Constituent Assembly has not otherwise decided’ (s. 2(d)). The Provisional Council of State debated whether or not to provide in advance that the Constituent Assembly was required to prepare a constitution and whether to prescribe the period within which such a constitution should be adopted. It was suggested that the law provide that ‘the Constituent Assembly will adopt a basic constitution for the State and, during the period of its operation, will be the legislative body of the State.’ A majority decided, however, not to issue any directives in this regard. ‘We will therefore leave the Constituent Assembly absolutely free as to both its function and its term’ (Sefer Uri Yadin, ibid., at p. 81). It should be emphasized that the decision regarding the dissolution of the Provisional Council of State and the passing of its authority to the Constituent Assembly was taken during the term of the Provisional Council of State. The members of the Provisional Council of State – and accordingly all Israeli citizens who voted in the elections for the Constituent Assembly – were aware that they were electing a body that would have both legislative and constituent authority, and would be authorized to oversee the government as well.

 

13. With the dissolution of the Provisional Council of State and the transfer of its powers to the Constituent Assembly, the latter was endowed with dual authority – legislative and constituent. Again, the original scheme of two entities with different powers was not realized. Henceforth, the constitutional basis would lie in a single entity – the Knesset – that acted with various powers (legislative and constituent, as well as others). The same body (the Knesset) therefore has two roles, or two main functions (‘two hats’). It is authorized to enact a constitution and it has the powers that were given to the Provisional Council of State. ‘Thus the Constituent Assembly, which was endowed by the Declaration with only one function – drafting the Constitution – took on the additional role of legislative authority’ (Rubinstein, ibid., at p. 43). ‘It was the Provisional Council of State that, upon its dissolution, presented the Constituent Assembly with an established fact: the unification of both functions within one framework’ (Rubinstein, at p. 448). There is no doubt that the Constituent Assembly (which has both constituent authority and regular legislative authority) was authorized to enact a Constitution. The fact that, with the dissolution of the Provisional Council of State, the Constituent Authority also became endowed with regular legislative authority does not negate its authority to enact a constitution. It should be noted that it is a common practice the world over for the Constituent Assembly to serve as a legislative authority as well (see Rubinstein, ibid., at p. 448). Professor Kelsen discussed this as follows:

 

It is possible that the organ specifically and formally authorized to create, abolish or amend statutes having the character of a constitution is different from the organ authorized to create, abolish or amend ordinary statutes. For example, the former function may be rendered by an organ different from the latter organ in composition and electoral procedure, such as a constituent national assembly. But usually both functions are performed by the same organ’ (H. Kelsen, Pure Theory of Law, (1967), at p. 223).

 

As Professor Akzin has stated:

 

Under the democratic model, even if a proposed constitution is destined to be approved by referendum, it is prepared by the constituent assembly, which is chosen by electoral procedures similar to those by which the members of the legislative body will be chosen, or – in the case of a revolution – according to the system preferred by the provisional authority. In such cases the constituent assembly acts as both the entity that prepares the constitution and, if the state is governed by a parliamentary system, as the legislative body and overseer of the government as well’ (Akzin, The Doctrine of Governments, vol. 2 (1966), at p. 35).

 

In a similar vein Professor Klein has noted:

 

The constituent body may continue to function for an extended period; during this period the constituent body functions as a legislative body as well. This may be described as a transitional period. The constituent body is not required to adopt the constitution as one document, and it may adopt a number of separate constitutional laws’ (Klein, ‘Constituent Authority in the State of Israel,’ II Hebrew Uni. L. Rev. (Mishpatim) (1970) 52).

 

Recently Professor Ackerman has reiterated:

 

There is nothing sacrosanct about a special constitutional convention. Although such a convention is likely to take the task of constitutional formulation seriously, many plausible texts have also been produced by constituent assemblies that have exercised plenary power on normal legislative matters as well’ (B. Ackerman, The Future of Liberal Revolution, (1992), at p. 59).

 

Thus the federal constitutional model of the United States, in which there are two separate institutions – a constitutional convention that adopts the constitution, and a regular legislature (Congress and the state legislatures) that enacts regular laws – is not the only way in which a constitution may be adopted. Even in the United States, state constitutions (as opposed to the federal constitution) have been adopted by constituent authorities that functioned as legislative authorities as well (see III Encyclopedia of the Social Sciences, (1953), at p. 245). It is interesting to note that in more than one Eastern European state that has recently undergone constitutional changes, constituent and regular legislative activities have been carried out by the same body. In most cases it was the regular parliament that was endowed with constituent authority. In Israel the Constituent Assembly was given the additional authority of regular legislation, as well as all the powers of the Provisional Council of State.

 

14. The next stage in constitutional continuity was the enactment of the Transition Law, 5709-1949. This was the most important piece of legislation enacted by the Knesset (now acting as both the constituent and legislative authority). This statute provided that ‘the legislative body of the State of Israel will be known as the “Knesset.” The Constituent Assembly will be known as the “First Knesset.” A delegate to the Constituent Assembly will be known as a “Member of Knesset”’ (s. 1). It also provided that an enactment by the Knesset would be denoted “law” (s. 2). The Transition Law 1949 did not affect the dual authority of the Constituent Assembly (now the “First Knesset”). Indeed the First Knesset engaged in lengthy debates on the subject of the Constitution (see Knesset Proceedings, vol. 5, at p. 714). No claim was made that the First Knesset was not empowered to do so. All agreed that the Knesset, as the constituent assembly, was authorized to enact a constitution for the State. The ensuing debate dealt with whether the Knesset was required to enact a constitution, and with the proposed content of the constitution. This debate continued for several months. It took place both in the Constitution, Law and Justice Committee and in the First Knesset plenum (for a report of these debates see The State Constitution – Report of the Constitution, Law and Justice Committee in the Matter of the Constitution for the State and the Debate in the First Knesset Plenum, published by the Knesset in 1952). It is common knowledge that the Prime Minister, David Ben-Gurion, opposed a constitution. Nonetheless, he did not deny the Knesset’s authority to enact one, stating as follows:

 

No one could, and even today no one can say that there will be no constitution. The matter depends upon the Knesset’s decision. If the Knesset decides that there will be a constitution – there will be a constitution. If the Knesset decides that for now there will be no constitution – there will be none’ (supra).

 

The First Knesset (i.e. the Constituent Assembly) concluded this debate with a compromise decision adopted on June 13, 1950. This decision was initiated by MK Harrari and is therefore called the Harrari Decision, which provides as follows:

The First Knesset charges the Constitution, Law and Justice Committee with the preparation of a proposed constitution for the State. The constitution will be composed of chapters, with each chapter constituting a Basic Law unto itself. The chapters will be brought before the Knesset if and when the Committee completes its work and all the chapters together will constitute the Constitution for the State’ (Knesset Proceedings, vol. 5, at p. 1743).

 

This was a compromise decision. It left several options open. On the one hand, it accepted the principle that there would be a formal constitution and that the idea of a constitution would not be abandoned. On the other hand, it accepted the principle that the constitution would not be enacted immediately as one discrete document, but rather chapter by chapter, over the course of time, which would certainly extend beyond the term of the First Knesset. Nevertheless, after this decision no one disputed the Knesset’s authority to enact a constitution for Israel. The Harrari Decision was not intended to negate the Knesset’s authority to enact a constitution and, as a “decision” of the Knesset, it could not negate this authority. Thus, the significance of the Harrari Decision was, as it stated, that the Constitutional Committee would prepare a constitution for the state in “installments.” It was clear to all that this would not be an immediate procedure. It was clear to all that it would not be completed by the First Knesset. Professor Rubinstein has rightly noted that:

 

There can be no doubt as to the First Knesset’s authority to enact a constitution or laws of a constitutional character that stand above regular legislation. The change in the name of the Constituent Assembly certainly did not constitute a change in its nature. Even the consolidation of its functions – legislative and constituent – did not change anything’ (Rubinstein, ibid., at p. 448).

 

The First Knesset dispersed without the Constitution, Law and Justice Committee having prepared a proposed constitution, and without any part of a constitution having been brought before the Knesset plenum.

 

15. During the term of the First Knesset – i.e. the Constituent Assembly – no constituent action was undertaken. The Knesset had to enact a special law to decide upon its dissolution. In so doing, the Knesset was aware that it had not only regular legislative powers, but also constituent powers. It sought to ensure that all powers with which it was invested would pass to subsequent Knessets as well. This act seems superfluous to me. The powers given to the Knesset were given to every Knesset. As the central organ of the State, the Knesset endures forever. There is no need for special provisions as to the Knesset’s continuity other than those dealing with issues of secondary character (such as the continuity of draft laws). The reference to the “First” and “Second” Knessets and so on is only theoretical and reflects the first steps of the Israeli parliamentary system. In principle, a change in the composition of the Knesset cannot be considered a change in the Knesset. The Knesset is one body; elections and changes in the members of the Knesset do not require a formal passing of authority from one body to the next. Apparently this matter had not yet been clarified in the early days of the State and therefore – purely for caution’s sake – the Second Knesset Transition Law was enacted in 1951. That law provided for continuity between the end of the First Knesset’s term and the beginning of the Second Knesset’s term (s. 1). Thus, ‘the Second Knesset and its members will have all the powers, rights and obligations as the First Knesset and its members’ (s. 5). It provided further that the Second Knesset would act in accordance with the charter, decisions, precedent and procedures of the First Knesset (s. 6). Moreover, it provided explicitly in s. 9 that:

 

Wherever in any law reference is made to the Constituent Assembly or the First Knesset, such reference shall, from the day of the convening of the Second Knesset, be deemed to refer to the Second Knesset, unless the context requires a different meaning.

 

Thus it was provided that ‘this law will also apply, with the necessary changes, to the Third and any subsequent Knesset, so long as the Knesset does not adopt a contrary law dealing with this matter’ (s. 10). It is interesting to note that a number of Members of Knesset suggested that the law expressly provide that the ‘role of the Second Knesset is to enact a basic constitution for Israel’ (see Knesset Proceedings, vol. 8, at p. 1576). MK Bar-Rav-Hai, in the name of the majority of the Constitution, Law and Justice Committee, opposed such a provision. He noted that ‘the suggested change is an empty declaration without any practical purpose. The legislative inheritance of the First Knesset is located in the records of the Knesset and is automatically transferred. The Second Knesset is sovereign. It will attend to matters at its own will ... Because there is no practical value to this change, and because the Second Knesset itself will decide whether to continue to enact Basic Laws where the First Knesset left off, or to begin this chapter anew – there is no place and no need to provide for this matter in the Transition Law’ (ibid., at p. 1579).

 

16. The First Knesset – which was also the Constituent Assembly elected for the express purpose of drafting the constitution – was dissolved. The Second Knesset was elected. Was the Second Knessset also invested with constituent authority, empowering it to enact a constitution for Israel? This is not a simple question. Had it been brought before the Supreme Court at the beginning of the Second Knesset’s term, the matter could have been decided either way. On the one hand it could have been argued that constituent authority was given to the Knesset, to every Knesset, regardless of its composition. The Constituent Assembly itself provided in the Second Knesset Transition Law that each Knesset is empowered with constituent authority. This edict of the Constituent Assembly must be heeded. It is not appropriate for the Court to declare that the Constituent Assembly itself deviated from its own authority in such a central matter. Similarly, it could have been claimed that the Harrari Decision – which was adopted by the Constituent Assembly – determined that the constitution was to have been enacted chapter by chapter; clearly this process would not have been completed during the term of the First Knesset. Constitutional continuity must be recognized in order to give effect to this decision of the Knesset. On the other hand it could have been contended that the Constituent Assembly derived its authority from the people – and therefore with the dispersal of the Constituent Assembly it was necessary to turn again to the people for its reelection. The Constituent Assembly was not “authorized” to transfer its authority. Thus it might have been argued that the Harrari Decision required that the powers of the First Knesset could only have been transferred to the Second Knesset by Basic Law and not by regular law.

 

Had I been asked to decide this constitutional question at the beginning of the Second Knesset’s term, I would have asked the following question: what are the underlying beliefs of the Israeli community at this time as to the enactment of a constitution and the power of the Knesset to adopt a constitution for Israel? I would have inquired as to the best interpretation of the legal and social history in the matter of the constitutional undertaking with the convening of the Second Knesset. In this context I would have examined the flow of constitutional continuity from the Declaration of Independence. Similarly, I would have asked whether the party platforms in the elections for the Second Knesset dealt with the continuation of the constitutional undertaking and with the continuation of the Knesset’s activities in endowing Israel with a constitution. An affirmative answer to these questions would have enabled me to determine even then that, despite strong assertions to the contrary, the Second Knesset was endowed with constituent authority, whether because of constitutional continuity (under Kelsen’s model), or because it had become generally recognized that the Knesset was invested with constituent authority (Hart’s model), or because that was the best interpretation of the legal practices of the Israeli community at that time (Dworkin’s model).

 

I have now undertaken this examination. Thus, for example, I have studied the election platforms of all the political parties that participated in the elections for the Second Knesset. Most of the platforms include statements regarding the constitution and its implementation. Often this is a central issue. The platform of the Workers of Israel Party (“Mapai”) stated that ‘the Second Knesset must see the completion of the enactment of the Basic Laws as one of its first objectives.’ This was followed by a long list of proposed constitutional arrangements, such as the division of powers among governmental bodies and various human rights. The platform of the Organization of General Zionists, the Centrist Party (“Z”), stated that ‘adoption of the Basic Laws for the State is an absolute necessity for the protection of the fundamental rights of every citizen.’ The platform of the United Labour Party (“Mapam”) provided that ‘the Second Knesset must correct what the First Knesset distorted and enact a Basic Law for the State, so as to ensure, inter alia…’ – and here follows a comprehensive list of matters that must be provided for in the constitution. The platform of the Herut Party (“H”) asserted that ‘Mapai and its supporters intentionally prevented the Constituent Assembly from fulfilling its first function: providing a basic constitution for the State. The Second Knesset must correct this dereliction.’ The platform then sets forth the content of the ‘basic constitution.’ The Progressive Party (“P”) platform stated that ‘in order to protect the democratic and popular nature of our State, a constitution must be enacted. The Progressive Party regretfully notes that the First Knesset did not complete this task. Even the First Knesset’s decision, as proposed by the Progressive Party representative, that the basic constitution would be constructed chapter by chapter, was not realized. The Progressive Party will fight in the Second Knesset for a constitution of deep social content, which will strengthen the rule of law in the State.’

 

The Platform of Agudath Yisrael provided that ‘as long as a majority of the representatives of the legislative institutions do not recognize the authority of the Torah as the supreme law, which may not be contravened, Haredi Judaism will oppose the adoption of a formalized basic constitution for the State.’ The platform of Mizrahi and the Nonaligned Religious Party (“B”) did not mention the issue of the constitution. The platform of the Israeli Communist Party (“C”) stated that ‘since the establishment of the State we have fought for a republican, democratic and secular constitution.’ The list of HaPoel Mizrahi (Torah Ve’Avoda) (“V”) provided that ‘HaPoel Mizrahi sees as the job of the Second Knesset the completion of the Basic Laws for the procedures of the government and its powers, the rights and obligations of the individual, the order of justice and the social foundations of the State. HaPoel Mizrahi will fight so that these laws will be an expression of a true democratic way of life in the spirit of the Torah of Israel.’ The list of the Sepharadim Ve’Edot HaMizrah (“SD”) stated that they supported the policy line of the Organization of General Zionists, the Centrist Party. The platform of Association of Yemenites for Israel (“L”) did not refer to the constitution.

 

17. It follows that there can be no doubt that the issues of the constitution and the Basic Laws were on the national agenda, were discussed in the elections, and were the subject of clear positions taken by the various parties. It is true that the matter of the constitution and the Basic Laws was not the only subject on the national agenda. But that is of no account. It is enough that the question was brought to the attention of the voter, who gave his opinion on the question of the constitution. If in the next Knesset election a constitution for the State were presented, and the people demanded, by electing the various parties, in light of their various platforms, to either approve or disapprove the constitution – would anyone contend that the people did not thereby express its will as to the constitution? The determining factor is clearly the understanding of the community and, consequently, the understanding of the Court. Such an understanding existed in the elections for the Second and subsequent Knessets. There is therefore no reason to negate constitutional continuity, and to deny the Second Knesset – on the basis of the arguments that we have brought – the authority to enact a constitution for Israel. Accordingly, with the convening of the Second Knesset (on December 22, 1952), the new government presented its outline plan. The first clause of the outline – before any other clause, including the clause referring to ‘the concern for the security of the state and the ingathering of exiles’ – provides that ‘with the series of the Basic Laws that will form the basic constitution of Israel, the democratic government of the State will be strengthened and secured.’ This is followed by a long list of subparagraphs, constituting approximately half of the outline, as to the content of the future constitution.

 

18. The question of the constitutional continuity of the Knesset’s power to enact a constitution did not come before the Supreme Court in 1951, with the convening of the Second Knesset. We do not have a judicial determination of this matter. The constitutional question arises before us today, in 1995 during the term of the Thirteenth Knesset. I have no doubt that our decision today must be unequivocal: constitutional continuity was not interrupted. The Second Knesset was given the powers of the Constituent Assembly. Any other conclusion is inconsistent with our national experience. Forty-four years have passed since the Second Knesset was convened. The matter of the constitution has appeared on the agenda and has been included in all the campaigns for each of the many elections that have been held since then. During all those years the Knesset continued in the constitutional undertaking and has enacted eleven Basic Laws; it has continued to see itself as authorized to enact a constitution for Israel; it has continued to entrench the clauses of the Basic Laws against infringement by regular legislation. During all those years teachers and scholars of law have continued to see the Knesset as the authority empowered to enact a constitution for Israel. They have raised generations of students and teachers of law who, in their turn, see the Knesset as empowered with both constituent and legislative authority.

 

In the intervening years the Supreme Court has ruled that the entrenchment provisions of the Basic Laws have constitutional power and may invalidate contrary provisions of regular legislation. In my opinion, these facts lead to the inescapable conclusion that constitutional continuity persists. By general recognition, the Knesset – the Second Knesset and each subsequent Knesset – is authorized to enact a constitution for Israel. Today’s Knesset has constituent authority. The Knesset has “two hats”: the hat of constituent authority and the hat of legislative authority.

 

My position relies, therefore, on all of the factors that attest to a continuous constitutional history, beginning with the convening of the Second Knesset. I will continue with a description of that constitutional continuity, the constitutional understanding of the legal community, and the position of the Supreme Court up until now. I am doing so for two reasons: first, because constitutional continuity links the constituent authority of today’s Knesset with that of the First Knesset (the Constituent Assembly); and second, because these objective normative facts support my conclusion that according to the rule of recognition of the Israeli legal system, our Knesset – every Knesset – is endowed with constituent authority. That is the best interpretation of the entirety of our legal and social history.

 

(iii) The Knesset’s understanding of itself as invested with constituent authority

 

19. As discussed above, the Knesset’s constituent authority is based upon the objective fact of constitutional continuity. This is not only the reasoned conclusion of the disinterested observer; it is the understanding of the Knesset itself. My claim is not, however, that the Knesset is endowed with constituent authority solely because it sees itself as so endowed. The Knesset may not empower itself with constituent authority by its own decision. My claim is that the Knesset’s – every Knesset’s – perception of itself is itself an objective factor that, in the context of the entirety of the evidence, supports the foundation on which the Court builds its legal structure. This construction is a judicial function, which is undertaken by the judge – and the judge alone. This is the great significance of the Knesset’s understanding of itself. I do not claim that there is a legal obligation to enact a rigid constitution. My only claim is that the Knesset saw itself as empowered to enact a rigid constitution. Of course, the Knesset was also entitled to refrain from using this authority and enact a non-rigid constitution or no constitution at all. Thus, the Second Knesset and each subsequent Knesset saw itself as empowered to enact a constitution. They based this authority primarily on the idea of the Constituent Assembly, on the Harrari Decision, and on the status of each Knesset as a body utilizing its constituent authority. I will begin with the Second Knesset, which, as mentioned, is the more problematic.

 

20. The Second Knesset dealt with the preparation of the first chapter of the Constitution of the State, Basic Law: The Knesset. The proposed law was published on October 23, 1953 by the Constitution, Law and Justice Committee of the Second Knesset. The proposal was debated by the Second Knesset plenum. In presenting the draft law for a first reading, the Chairman of the Subcommittee for Basic Laws, MK Bar Yehuda, referred to the Harrari Decision and the dissolution of the First Knesset and continued as follows:

 

But a relatively short time thereafter, in April 1951, came the decision to elect the Second Knesset. The Second Knesset began its work at the end of August 1951. More than two years have passed since then, while the gristmill of the Constitution, Law and Justice Committee ground the proposals sufficiently to enable presentation of the first in the series of the Basic Laws. During this period we have passed a number of laws that are clearly Basic Laws by their nature, even if not in form; I refer for example to the Law of Return and the Judges Law. But these laws were put forth by the government, and the work was done in the course of the Knesset’s regular routine and in the regular manner. From the point of view of fulfilling the obligation  that was imposed at the time on the First Knesset in its role as the Constituent Assembly of the State of Israel, and which was passed on to the Knesset together with the latter’s regular legislative work, this law is the first section of the Constitution of the State to be presented before the Knesset. It is now presented for a first reading and unfortunately I cannot know how long it will take until we reach a second reading – in other words, debate on the revised proposal – after which there will be a binding decision’ (Knesset Proceedings, vol. 15, at p. 57).

 

A review of the other speeches reveals that the speakers considered themselves – as members of a body endowed with constituent authority – empowered to enact a constitution. Basic Law: The Knesset was not enacted by the Second Knesset because the political will to do so was lacking. No one contended that the Knesset lacked the legal authority to enact such a law. All participants in the ‘political game’ of that period were aware that they were empowered to enact a constitution.

 

21. The Second Knesset finished the debate with a first reading of the proposed Basic Law. The proposal was passed to the Committee and the Second Knesset thereby finished its term without adopting any Basic Law. The debate on the proposed Basic Law: The Knesset was renewed in the Third Knesset. The proposed Basic Law: The Knesset was published anew and it was thoroughly debated. No one contended that the Third Knesset was not empowered to adopt a constitution. The Third Knesset’s debates were seen by all as fulfilling the Knesset’s role according to the Harrari Decision, which was the decision of the Constituent Assembly (the First Knesset) to adopt a constitution for Israel. MK Harrari himself reiterated this (on October 8, 1956) when he stated that:

 

In accordance with the decision of the First Knesset, we are not now dealing with individual laws, but rather with the chapters of the constitution of the State of Israel’ (Knesset Proceedings, vol. 21, at p. 4).

 

MK Harrari read the Harrari Decision before the Knesset plenum and added that ‘[we] are therefore debating today one of the chapters of the proposed constitution for the State – the chapter that deals with the Knesset’ (ibid., at p. 6). MK Harrari concluded his remarks by stating as follows:

 

I hope that despite the slow pace of the Knesset’s work, we will succeed in completing at least two articles of the constitution for the State in this, the Third Knesset. We must not forget that when the Knesset accepted the proposal to prepare a constitution for the State it was aware of the fact that other states worked for many years in preparing their constitutions. Eleven years passed before the complete adoption of the United States constitution, which has existed for so many years; preparation of the Soviet Russian constitution lasted for thirteen years. There is therefore no reason for us to despair or to feel that the extended period of preparation has diminished our chances for an organized, orderly constitution that will be the glory of the State of Israel’ (ibid., at p. 6).

 

Thus it is clear that the Knesset saw itself as authorized to enact a constitution, and that it considered the Basic Laws to be part of the constitution. Upon completion of the first reading debate, the proposal passed to the Constitution, Law and Justice Committee. The proposal was presented for a second reading on February 11, 1958. MK Nir-Refalkes presented the proposal in the name of the Constitution, Law and Justice Committee, noting that:

 

The Constitution, Law and Justice Committee takes particular satisfaction in presenting to the Knesset for a second reading Basic Law: The Knesset, which will be a chapter of our basic constitution, in accordance with the June 1950 decision of the First Knesset.’

 

In the course of the second reading the comments of several members of Knesset were adopted and a number of formal entrenchment provisions were inserted into the Basic Law. It was provided that section 4, which sets forth election procedures, ‘shall not be altered save by a majority of the members of the Knesset.’ Section 44 entrenched the Basic Law against the effect of emergency regulations. Section 45 provided that ‘Section 44, or this section, shall not be altered except by a majority of eighty members of the Knesset.’ During the debate on these entrenchment provisions, several opinions were expressed as to their meaning. No contention was made that the Knesset was not empowered to entrench provisions of a Basic Law. It must be noted that more than a year after the adoption of the Basic Law: The Knesset, on February 12, 1958, the Knesset debated Amendment (No. 3) to the Law. The purpose of this amendment was to provide that ‘The majority required by this Law to for a variation of section. 4, 44 or 45 shall be required for decisions of the Knesset plenary at every stage of law-making.’ This amendment was adopted. During the course of the debate, MK Zadok opposed the proposed amendment, arguing that the Knesset was not authorized to limit itself (Knesset Proceedings, vol. 27, at p. 2961). As mentioned above, the proposed amendment was adopted.

 

22. The Fourth Knesset did not enact any Basic Law. This concerned several Members of Knesset. MK Nir-Refalkes tabled a motion in this matter. He asked that the process of enacting a constitution be accelerated and referred to the Harrari Decision of the Constituent Assembly. He noted that ‘meanwhile ten years have passed, during which period the Committees on the Constitution, Law and Justice of the First, Second and Third Knessets have enacted only one Basic Law – Basic Law: The Knesset, which was enacted in 1958. Our experience proves that this method of enacting a constitution has led to an anomalous situation. Twelve years have passed since the establishment of the State and not only do we have no constitution, but there is no chance that we will have one in the next fifty years’ (Knesset Proceedings, vol. 28, at p. 585).

 

MK Nir-Refalkes noted that the government manifesto provided that ‘the Fourth Knesset should complete the enactment of the Basic Law, which will be consolidated to form the basic constitution of the State.’ He added that all factions of the house were united in this view and he requested that the preparation of the constitution be accelerated. The government response was given by the Minister of Justice, Mr Pinhas Rosen. The Minister also mentioned the Harrari Decision and the government platform. He expressed the hope that the Fourth Knesset would indeed complete the work of preparing the constitution. The debate passed to the Constitution, Law and Justice Committee. However, the Minister of Justice’s hopes were not realized. The Fourth Knesset enacted only the Basic Law: Israel Lands. The Fifth Knesset enacted Basic Law: The President of the State. In the Sixth Knesset, the focus on the enactment of Basic Laws was intensified. On November 23, 1965 the Constitution, Law and Justice Committee established a subcommittee that dealt solely with the constitution. This subcommittee was headed by MK Zadok and succeeded in preparing one Basic Law, Basic Law: The Government, which was passed by the Seventh Knesset.

23. Between the enactment of Basic Law: The Knesset in 1958 and the enactment of the two Basic Laws dealing with human rights, the Knesset passed another nine Basic Laws. Some of them included provisions (albeit minor) that formally entrenched certain provisions of the Basic Laws. The enactment of these provisions presented the Knesset with no legislative difficulty. When the Eighth Knesset was presented with a first reading of the proposed Basic Law: Legislation, 5736-1976 – the proposal that entrenched all of the Basic Laws and provided for judicial review of the constitutionality of regular legislation – it had no practical difficulty with this entrenchment. Aside from a few isolated Members of Knesset, all factions of the house were in agreement as to the Knesset’s authority to enact a constitution for Israel and its power to entrench provisions of the constitution. Many of the speakers expressly noted that the Knesset was thereby acting in accordance with the Harrari Decision (see Knesset Proceedings, vol. 76, at p. 1704; Knesset Proceedings, vol. 78, at p. 954). This was the case when the draft Basic Law: Legislation was presented to the Ninth Knesset for a first reading (Knesset Proceedings, vol. 83, at p. 3975). The third proposal of the Basic Law: Legislation was debated in a first reading in the Thirteenth Knesset (Knesset Proceedings, second session, at p. 4302; third session, at p. 936). Aside from several isolated members of Knesset, no objection was raised as to the entrenchment of the Basic Laws. There was a debate, of course, as to the strength of the entrenchment, but the common position of most members of the Knesset was that this was a political and not a legal question, since the Knesset was empowered to entrench the Basic Law if it so desired.

 

24. I will now address the question of continuity and the constituent authority of the Knesset as to the Basic Laws dealing with human rights. Proposals dealing with human rights were already included in draft laws presented to the Committee on the Constitution of the Provisional Council of State. However, legislation in this area did not proceed. With the completion of Basic Law: The Knesset, the Constitution, Law and Justice Committee announced that the next Basic Law would deal with human rights. This did not occur. Against this background, on January 15, 1964 MK Klinghoffer presented to the Fifth Knesset the proposed Basic Law: Charter of Basic Human Rights, 5724-1963. This was a comprehensive, impressive proposal for a constitutional settlement with regard to human rights in Israel. The proposal provided for substantive and formal entrenchment. It provided that ‘this law may be amended only by a majority of two thirds of all members of Knesset’ (s. 73). It provided for the possibility that human rights could be infringed by regular legislation, but only if that legislation met substantive standards. In the comments to the proposal that were submitted to the Knesset, MK Klinghoffer referred specifically to the Knesset’s constituent authority to enact a constitution for Israel:

 

In the matter of the authority to adopt a fixed constitutional law, it must be noted that this authority passed from the First Knesset (which was elected as the Constituent Assembly) to the Second Knesset, and thereafter from Knesset to Knesset’ (Second Knesset Transition Law, ss. 5 and 10) (Knesset Proceedings, vol. 38, at p. 801).

 

The government opposed this initiative. The Minister of Justice, Mr Dov Yosef, argued forcefully against MK Klinghoffer’s initiative. He noted, inter alia, that ‘I do not think that there is a law that stands “above the regular legislature.” We do not have two legislatures. We have only the Knesset, and in my opinion, a law of the Knesset cannot limit its right to legislate, and if there is such a provision in a law, the Knesset is entitled, in my opinion, to cancel the clause that ostensibly limits its rights’ (ibid., at p. 789). The Justice Minister added that it would be otherwise if we had a constituent assembly. MK Begin retorted that ‘We have a Constituent Assembly as well.’ (ibid., at p. 789).

MK Klinghoffer also responded to the Justice Minister as follows:

 

The Knesset is the heir to the Constituent Assembly. The Fifth Knesset is empowered with the authority of the Constituent Assembly to enact a constitution, and this is in accordance with the Constituent Assembly (Transition) Ordinance and the Second Knesset Transition Law’ (ibid., at p. 793).

MK Klinghoffer’s proposal failed (on January 15, 1964).

 

25. A number of years passed. The public climate changed (see Lahav and Kretzmer, “The Charter of Human and Citizen’s Rights in Israel: A Constitutional Achievement or Hocus-Pocus,” 7 Hebrew Univ. L. Rev. (Mishpatim) (1976) 154). The Constitution, Law and Justice Committee of the Seventh Knesset continued with the work of the Subcommittee on Basic Laws. The Committee was headed by MK B. Levy. The Committee held comprehensive debates. The draft Basic Law: Human and Citizen’s Rights was published by the Committee. The proposed law set forth certain human rights and limited the power of statue to infringe those rights except under certain conditions. It included provisions according to which ‘contradictory statutory provisions that are adopted after the effective date of this Basic Law – are void’ (s. 20(a)). At the same time, the Basic Law did not contain entrenchment provisions. The proposal was not substantively debated in the Seventh Knesset. With the convening of the Eighth Knesset the debate on the proposal continued in the Subcommittee for Basic Laws headed by MK B. Levy. It was submitted on June 4, 1974 for a first reading. In presenting the proposed Basic Law for a first reading, MK B. Levy referred to the Harrari Decision and noted that, in enacting the Basic Law, the Knesset was acting within its constituent authority:

 

Constituent authority, i.e. the authority to enact a constitution for the State, was transferred from the Constituent Assembly, i.e. the First Knesset, to the Second Knesset and every Knesset thereafter, including the Eighth Knesset. As the Second Knesset Transition Law provides ... In enacting the Basic Law: Human and Citizen’s Rights we are therefore acting in accordance with the constituent authority of the Knesset’ (Knesset Proceedings, vol. 70, at p. 1566). 

 

An extended debate on the draft law ensued. The Minister of Justice, MK Zadok, participated in the debate. He expressed his opinion that the Basic Law should be entrenched in order to prevent infringement of basic rights by regular legislation. MK Zadok noted that:

… I agree that the Knesset must be given broad latitude and room to maneuver in its legislative work, but this sovereignty should not be interpreted to permit arbitrariness as to basic principles. It seems to me that the doctrine of the rule of law, which we all espouse, means that everyone is subject to the law – the government, the administration, the President, the State Comptroller – and the Knesset as well. Just as the other state institutions are endowed with a limited array of authorities, so should the Knesset’s legislative powers be similarly limited, albeit with greater flexibility. The primary form taken by this limitation is the Citizen’s Rights Law, in which are anchored and expressed those basic principles that form the basis for government itself

(Knesset Proceedings, vol. 70, at p. 2485).

 

MK Zadok further insisted that the proposed law was intended to ‘raise the Basic Law on citizens’ rights to the level of a preferred norm against which the validity of regular laws will be tested’ and therefore it must be treated with great care (ibid., at p. 2485). As to entrenchment of the Basic Law against regular legislation that does not meet its requirements, MK Zadok noted that:

 

The laws that have been enacted before this Law takes effect have been enacted by the sovereign Knesset under its unlimited legislative power. They are the statutory regime under which we live and they cannot be called into question. This is not so as to laws that will be enacted by the Knesset in the future, after the establishment of the norms set forth in the Basic Law on Citizens’ Rights, with the Knesset aware of and restricted by those norms the validity of those future laws will be tested against the Basic Law.

 

The debate in the Knesset was comprehensive. The Knesset debated the question of whether to entrench the Basic Law – in the same way that s. 4 of the Basic Law: The Knesset was entrenched – so that the Law could be amended only by a special majority. The various rights were discussed as well. The draft law passed the first reading and was handed over to the Constitution, Law and Justice Committee. The debate in the Committee concentrated primarily on the question of whether to entrench the Basic Law. It was decided to defer the debate on this question until a decision was reached as to the fate of the Basic Law: Legislation – which was being studied by the Committee at the same time – and which included general entrenchment provisions. What is clear is that the Members of Knesset – the plenum as well as the committee – had no doubt as to the power of the Knesset to entrench the clauses of the Basic Law: Human and Citizens’ Rights. Many of the Members of Knesset referred to the Declaration of Independence, the Harrari Decision and the constitutional undertaking, and pointed to constitutional continuity. It occurred to none that the constitutional continuity was interrupted. No one contended that the Knesset was not entitled to entrench its instructions. The primary debate centered on the question of entrenchment as one of political policy  (was it desirable?), and not as a legal problem (was it possible?) (see Lahav and Kretzmer; see also B. Bracha, “The Protection of Human Rights in Israel,” 12 Israel Yearbook on Human Rights (1982) 110); R. Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 113).

 

26. The Eighth Knesset continued to debate the proposed Basic Law: Human and Citizens’ Rights. MK Aridor headed the subcommittee. The proposal prepared by the Committee provided that previously enacted statutes repugnant to the Basic Law would be invalidated. The proposal did not advance in the legislative process.

 

27. In the Tenth Knesset, MK Professor Rubinstein renewed Professor Klinghoffer’s proposal. It was put forth (on June 2, 1982) as a private draft law (Proposed Basic Law: Bill of Human Rights, 1982). In his comments on the proposal Professor Rubinstein wrote that:

 

Since (the dismissal of Professor Klinghoffer’s proposal – A.B.), it has become clear to various sectors of the community that there is a need for the enactment of a Basic Law dealing with human rights, for it is fitting that these substantive issues be entrenched in a Basic Law that stands above regular legislation.

 

In his speech before the Knesset plenum MK Rubinstein added that:

 

This draft law is intended to restrain the legislature. It is also intended to protect the citizen from legislation that infringes his basic rights, for this is the implicit meaning of the word constitution. The very word constitution means restraint of the omnipotence and sovereignty of the Knesset as a legislative body’ (Knesset Proceedings, vol. 94, at p. 2682).

 

Minister of Justice, MK Nissim – unlike his predecessor of eighteen years earlier, Minister Dov Yosef – agreed to pass the proposal to the Constitution, Law and Justice Committee. In his reply, Minister Nissim noted that:

 

Today, I too say that it is right for a constitution to be fixed and entrenched. There is no value whatsoever in laws, even those denoted Basic Laws, that are not fixed both as to their adoption and as to their amendment ... Since we are discussing a group of Basic Laws that will together form a constitution, they must be fixed and entrenched’ (ibid., at p. 2682).

 

The proposal passed to the Constitution, Law and Justice Committee. The subcommittee on Basic Laws that examined the proposal was headed by MK S. Aloni. The subcommittee held extensive debates. It examined the previous proposals that were debated by previous Knessets. It studied the European Convention on Human Rights. It examined the German Basic Law and the Canadian Charter of Rights and Freedoms. It heard from Professors Klinghoffer, Klein and Akzin. The Committee’s debates were published (Debates of the Committee on the Basic Laws of the Tenth Knesset). An examination of the Committee’s debates reveals that the participants shared the view that the Knesset is empowered and entitled to entrench human rights as constitutional supra-legislative rights. At the conclusion of the debates it was decided to present the proposal for a first reading. The proposed Basic Law: Bill of Basic Human Rights was tabled for a first reading (on March 1, 1983). The comments noted that ‘there is a need for the enactment of a Basic Law on the subject of human rights, for these substantive issues should be entrenched in a Basic Law that stands above regular legislation’ (ibid., at p. 111). In his words of introduction, MK Rubinstein emphasized that:

This proposed law is based upon the principle of entrenchment of basic human and civil rights. It also sets forth a program that, in conjunction with the proposed Basic Law: Legislation, will enable judicial review of violations of this entrenchment, of harm to the idea that human and civil rights stand above the desires of the majority and above regular and routine legislation.

 

At the conclusion of his comments, MK Rubinstein noted that the debate on this proposed Basic Law continues the constitutional undertaking:

 

This proposed law, if adopted, will come close to completing the task of adopting a constitution, which the Declaration of Independence imposed upon the Constituent Assembly, later the First Knesset. As we recall, Members of Knesset, the Constituent Assembly did not complete this important task. Instead of fulfilling its assignment the Constituent Assembly provided that the constitution would be given chapter by chapter by means of the Basic Laws that would be combined to form one constitution. It seems to me that when the Knesset adopts... this proposed law and the proposed Basic Law: Legislation, it will complete the work of composing the constitution. If this happens, our Knesset, the Tenth Knesset, will be remembered as the body that finally fulfilled the important task of enacting a constitution for the State of Israel, and this will be its honor and its glory, that it completed what the other Knessets did not’ (ibid., at p. 1514).

 

MK Aloni – the Chair of the Subcommittee – supported the proposed law. In her comments she referred to the Constituent Assembly (ibid., at p. 1515). MK Shahal also supported the proposed law. He emphasized that ‘the most important thing is the control exerted by these basic principles over the regular legislation of the Knesset ... The safeguarding of human rights in a Basic Law implies a normative preference for these principles over the clauses of a regular law of the Knesset’ (ibid., at p. 1518).

 

With the conclusion of the debate the proposal passed to the Committee on Constitution, Law and Justice to be prepared for second and third readings. The renewed debate before the Committee was comprehensive and fundamental (see Debates of the Committee on Basic Laws of the Tenth Knesset). The entire debate proceeded, of course, on the basic assumption – which was expressly repeated more than once – that in the context of the constitution in general, and in the case of human rights in particular, the Knesset is empowered to entrench the clauses of the constitution, whether by formal or substantive entrenchment. The proposal was not presented for second or third readings because early elections were called.

 

28. The debate on Rubinstein’s proposal continued in the Eleventh Knesset, following the applicable continuity rules. Nonetheless, the debate on the proposal did not conclude with the enactment of the law (for an analysis of the reasons, see Rubinstein, ibid., at p. 706). A significant change occurred in the Twelfth Knesset. The new Justice Minister, MK Dan Meridor, presented to the government the draft Basic Law: Human Rights. This proposal did not advance. Against this background, Members of Knesset Rubinstein and Aloni presented proposals of their own. MK Aloni presented the proposal of the subcommittee that she chaired, which had not reached the stage of second and third readings in the Tenth Knesset. In presenting her proposal, MK Aloni commented that:

 

In the Declaration of Independence we provided that there would be a constitution. The First Knesset decided to defer this issue chapter by chapter – and in the meantime, so that there would not be a vacuum, we adopted the laws that were previously in effect… and step by step we began to prepare the constitution of the State of Israel. However, the Basic Law: Human Rights was rejected. Still, with the passage of time, the need to adopt this law has grown’ (Knesset Proceedings, vol. 115, at p. 401).

 

MK Rubinstein adopted the Justice Minister’s proposal. This proposal provided for both formal and substantive entrenchment. The proposal provided for judicial review of the constitutionality of laws that improperly infringe protected human rights. The Justice Minister sought to set aside MK Aloni’s proposal. He announced that the government would permit discretionary voting for MK Rubinstein’s proposal. He himself – who had by his efforts advanced the Basic Laws as to human rights – explained the key points of his proposal and sought to unite the Members of the entire house in supporting it. MK Aloni’s proposal was set aside. MK Rubinstein’s proposal – which was also the Justice Minister’s proposal – passed to the Committee. The Committee did not submit the proposed law for second and third readings.

 

29. Towards the end of the term of the Twelfth Knesset, MK Rubinstein, who must be credited with advancing the efforts for constitutional human rights, took a new step. He “deleted” from Minister Meridor’s proposal – which had been debated by the Constitution, Law and Justice Committee – a number of rights, and submitted them for a preliminary reading as a separate Basic Law. He placed upon the Knesset table, inter alia, the draft Basic Law: Freedom of Occupation and the draft Basic Law: Human Dignity and Liberty. At the end of the Twelfth Knesset these two laws completed the legislative process. Thus were enacted the Basic Law: Human Dignity and Liberty (see the debates on the first reading in Knesset Proceedings, fourth session, at pp. 1235, 1527; on the second and third readings, ibid., at p. 3781) and the Basic Law: Freedom of Occupation (see the debates on the first reading in Knesset Proceedings, fourth session, at p. 2595; on the second and third readings, fourth session, at p. 3390); for an analysis of the Knesset debates, see Karp, “The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), 323). In presenting Basic Law: Human Dignity and Liberty for second and third readings, the Chairman of the Constitution Law and Justice Committee, MK A. Lin – who contributed greatly to the enactment of the Basic Laws in the Twelfth Knesset – emphasized that the Basic Law is part of the State constitution, noting that:

Basic Law: Human Dignity and Liberty was prepared in, the course of many meetings of the Committee on the Constitution, and I emphasize this: the Constitution, Law and Justice Committee in its capacity as the committee on the constitution for the Knesset of Israel’ (Knesset Proceedings, vol. 125, at p. 3782).

 

30. In March 1994 the Knesset voided the original Basic Law: Freedom of Occupation and enacted in its stead a new Basic Law: Freedom of Occupation. This Basic Law also revised several provisions of the Basic Law: Human Dignity and Liberty. In presenting draft Basic Law: Freedom of Occupation for second and third readings MK Zucker noted that the debate on the Basic Law took place in the context of the Knesset’s authority as a constituent assembly, stating that:

I would like to remind you that today’s debate is taking place while we sit as a constituent assembly. We thereby continue the long tradition of debates held in this house in its role as Constituent Assembly. We are thus continuing to fulfill the Harrari Decision, which states: we will complete the constitution of the State of Israel chapter by chapter, by means of the Basic Laws.... Since 1948 the Knesset has essentially neglected part of its duties by failing to complete the enactment of a constitution for Israel, an assignment that it undertook both in its role as Constituent Assembly and in its role as the body charged with fulfillment of the Harrari Decision. It is true that this Knesset has almost completed the institutional portion of the Israeli constitution – those Basic Laws that deal with the government and the Knesset, the army, the Israel Lands Administration, the State Comptroller, the President of the State, etc. Even though these laws are not yet entrenched and have no preferred status over regular laws, nonetheless, the Knesset, as Constituent Assembly, has taken significant strides forward in this area ... The greatest failing of the Knesset has been in the field of human rights. Only two years ago did the Knesset begin the work that was supposed to have been undertaken in 1949, the enactment of a bill of rights for the Israeli citizen. Two years ago, this Knesset, in a significant and revolutionary step forward, enacted two Basic Laws, the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. This step has aptly been called a constitutional revolution, which is only now beginning’ (Knesset Proceedings, vol. 136, at p. 5362).

 

MK Y. Katz attacked the Knesset’s work in its role as Constituent Assembly. He insisted that:

 

Every first year law student is told that we are a constituent assembly, from the First Knesset through all of the Knessets until today. We are a constituent assembly because we have the authority to enact a constitution and the Basic Laws are part of the same future constitution’ (ibid., at p. 5426).

 

In the course of the entire debate it was clear to the members of Knesset that the Knesset was exercising its constituent authority; that they were enacting a portion of the constitution, and that they were empowered to entrench it (with formal or substantive entrenchment). They debated whether it was desirable to enable a majority of the Knesset to change the Basic Law. MK Meridor suggested that the required majority be eighty members of Knesset (ibid., at p. 5426). His suggestion was rejected. No contention was made that the Knesset was not empowered to provide for such entrenchment.

 

31. Before completing this analysis of the Knesset’s understanding of its constituent authority, I will mention five points. First, in every Knesset election the matter of the constitution was included as part of the party platforms. I verified this as to the passage from First to Second Knesset. In their article, Lahav and Kretzmer note that in the elections for the Eighth Knesset most of the parties promised to work towards enactment of a Constitution or Basic Laws as to human rights (see Lahav and Kretzmer, ibid., at p. 153). I did not check the party platforms for other Knesset elections. It seems that this is a well-founded assumption, inasmuch as  the matter of the constitution in general, and human rights in particular, found a central place in the party platforms. This is very significant. It indicates that recognition of the Knesset’s constituent authority was an item on the national agenda, was debated in the political forum, and was determined by means of election results. When the Knesset dealt with the matter of the constitution and enacted the various Basic Laws, it drew its power from the people. The Basic Laws were not enacted without the people’s knowledge.

 

Second, in four instances the Supreme Court invalidated regular legislation that conflicted with entrenched provisions of the Basic Law: The Knesset (see paragraph 35, infra). In accordance with those decisions the Knesset subsequently revised its regular legislation to conform to the entrenched provisions of the Basic Law. We are therefore presented with a new aspect of the Knesset’s understanding of the matter. The Knesset, in exercising its legislative authority, understood well that it was bound by limitations it had imposed in accordance with its constituent authority.

 

Third, all of the entrenchment provisions were enacted within the framework of the Basic Laws, in the context of the constitutional process. Only in one case has a formal entrenchment provision been included in a regular law. This is in s. 3 of the  Investments by Public in Financial Assets in Israel (Protection) Law, 5744-1984. That section provides that ‘this law may not be changed nor may the appendix be revised unless by a majority of the Members of Knesset.’ It should be noted that during the debate on the first reading of this proposed law a number of Members of Knesset expressed the view that this self-limitation was not binding since it was not included in a Basic Law. MK Rubinstein took this position, noting that:

 

Previous Knessets have discussed the question of whether the Knesset can entrench laws against changes by simple majority, and the position has been more or less accepted – although it is still disputed – that when we are talking about the Knesset as a constituent authority,  i.e. when it is acting as the framer of the constitution, when it is enacting a section of the constitution, then it can deem a particular law of superior status. If we enact, for example, a law as to human rights ... then in such a law, which is a Basic Law in the constitution, it is appropriate to provide that the constitution stands above other laws. This is recognized by jurists. This has been implicitly recognized by the Supreme Court. However, is it possible that a regular financial law be accorded such status? How can it be provided that a financial law will stand above regular legislation in future Knessets? If so, then tomorrow or next week – at some date closer to elections – the Knesset may enact a law that will forbid any change to the State budget or salaries or investments or allotments to religious institutions or allotments to settlements, unless by a majority of eighty or ninety or one hundred and twenty Members of Knesset. Why not? After all, on the eve of elections “anything goes”; this is popular and may not be opposed. Does anyone believe that this will be upheld in court? Does anyone believe that such a law will be considered a constitutional Basic Law? Does anyone believe that this is serious? This section is not worth the paper on which it is written’ (Knesset Proceedings, at p. 2790).

 

The second and third readings took place on the same day. MK Rubinstein’s questions remained unanswered. They evidence an attitude that was well accepted in the Knesset, which distinguished between Basic Laws (fruit of the Knesset’s constituent authority) and regular laws (fruit of the Knesset’s legislative authority). I will note also – incidentally – that in the words of introduction of Members of Knesset S. Aloni (Chair of the Subcommittee on Basic Laws) and A. Kulas (Chair of the Constitution, Law and Justice Committee) to the pamphlet on the Debates of the Committee on Basic Laws of the Tenth Knesset (1984), the two noted that:

The Constituent Assembly elected in 1949 in accordance with the “Declaration of Independence” decided not to enact a constitution and not to dissolve itself. It declared itself the First Knesset, and the task of preparing the constitution was passed to it and to subsequent Knessets, which would prepare “Basic Laws” chapter by chapter. The Basic Laws would, upon their completion, be consolidated to form the constitution of the State. This decision gave the Knesset the status of the Constituent Assembly, and in this way the enactment of “Basic Laws” and their consolidation to form the constitution became subject to the initiative of the Members of Knesset and to the initiative of the government, or at least to its readiness to cooperate with the appropriate Knesset committee, the Constitution, Law and Justice Committee and the Committee on “Basic Laws.”’

 

All this is evidence for the widely held understanding of the Knesset that it is endowed with both constituent and legislative authority, and that the enactment of a constitution is the realization of the Knesset’s constituent authority. In the context of this authority a supra-legislative constitutional norm may be created.

 

Fourth, in the first years after establishment of the State there were many references to the Constituent Assembly, the Declaration of Independence, and the “Harrari Decision.” With the passage of time – and changes in the composition of the Knesset – the rhetoric changed. This is natural. A generation goes, and a generation comes, but the national memory did not change. The connection to the past was not severed. The Knesset continued to see itself as the heir of the Constituent Assembly, and as endowed with constituent authority.

 

Fifth, it is clear from the Declaration of Independence that the role (and authority) of the Constituent Assembly was to enact a constitution (‘in accordance with a Constitution, to be drawn up by a Constituent Assembly’). The intention underlying this provision was that a “formal constitution” would be adopted, in other words, that ‘the form of these norms would differ from that of other norms, particularly that of “regular” laws. This difference in form is expressed as a difference in the identity of the institution creating the norm (“constituent institution” as opposed to “legislature”) or at least in the process of its creation. Its goal is to emphasize the normative preference for the constitution over the other norms in the State’s system of positive law’ (Akzin, ibid., at p. 230). As to his understanding of the term “constitution” in the Declaration of Independence, Professor Akzin writes:

 

It is well known that the great majority of the founders of the State were convinced that at the apex of the legal system of Israel would stand a formal constitution that would provide a binding framework for the statutes and other legal norms of the State. This understanding was vividly expressed in the Declaration of Independence, and a first step in its implementation was taken by the Provisional Council of State, which on 1 Tamuz 5708 (July 8, 1948) established the Constitution Committee’ (Akzin, ibid., at p. 231).
 

In a similar vein, Professor Rubinstein notes that ‘the framers of the Declaration intended a formal constitution. We must also remember their clear objective that the Declaration accord with the resolution of the General Assembly of the United Nations’ (ibid., at p. 44). Professor Uri Yadin described this well in an article that appeared the day before elections took place for the Constituent Assembly:

 

Tomorrow, there will be elections for the Constituent Assembly of the State of Israel, the first elections since the State was established, and the most important for a long time to come. We are not about to elect a regular parliament, one of the many that will subsequently be elected to enact laws dealing with the many routine issues of our daily lives, but a special parliament, unique in its importance, which will be charged with endowing the State with one preeminent law that will stand as a cornerstone throughout the democratic life of the State – the Basic Law, the Constitution’ (Sefer Uri Yadin, ibid., at p. 82).

 

Thus the authority of the Constituent Assembly was not defined, but its task was clear: the enactment of a (formal) constitution for the State, i.e. the creation of a supra-legislative constitutional framework. At the same time, it seems to me that the Knesset was entitled not to enact any constitution, or to enact only a “substantive” constitution. This is a political question that is not determined by law.

(iv) The understanding of writers and commentators

 

32. I will now discuss the views of writers and commentators. I do so first and foremost because of the great importance that every legal system attributes to its scholars. Of course, the Court provides definitive interpretation. But it is natural for the judge to draw inspiration from the words of scholars. There is also a second and more compelling reason to turn to these views. From the understanding of writers and commentators one may learn about the basic approach of the Israeli legal community to constituent authority. Clearly this does not constitute decisive proof. Nonetheless, it is important evidence which, when seen together with other factors – the objective facts as to constitutional continuity, the political debates before the elections, the Knesset’s understanding of itself, the legal precedent and the Knesset’s reaction thereto – grounds the foundation upon which the Court may and should determine that the Knesset – every Knesset – is endowed with constituent authority; that by the principles of Israeli law, the Knesset – every Knesset – is empowered to enact a constitution for Israel; that this is the most appropriate interpretation of the social and political history of Israel.

 

33. Most of Israel’s scholars have viewed and continue to view the Knesset as endowed with constituent authority and therefore authorized to enact a constitution for Israel. It is true that in the past some disputed this position (see Nimmer, “The Use of Judicial Review in Israel’s Quest for a Constitution,” 70 Col. L. Rev. (1970) 1217. It is particularly fitting to mention Dr Likhovsky, who maintained that the Knesset – like the British Parliament – was not entitled to limit itself (see Likhovsky, “Can the Knesset Adopt a Constitution which will be the Supreme Law of the Land,” 4 Isr. L. Rev. (1969) 61; see also Hornstein, “Entrenchment of the Basic Laws,” 25 HaPraklit (1969) 648; Scheftler, “Reflections on Constitutional Questions,” 26 HaPraklit (1971) 6). These views were debated, analyzed and rejected. They remain the minority position. Since the end of the nineteen-fifties (with the enactment of the Basic Law: The Knesset) and the end of the nineteen-sixties (with the decision in the Bergman case [15]) the recurrent theme in Israeli constitutional literature has been that the Knesset has constituent authority, and that it is therefore authorized to adopt a constitution that will limit the Knesset in its role as legislature. Generations of law students have been inculcated with this view since the nineteen-sixties. First credit should be attributed to M. Sternberg (M. Sternberg, “A New Law or a Supreme Judicial Course,” 16 Molad (1958) 284). Sternberg’s essay was written shortly after the enactment of the Basic Law: The Knesset. The author wrote:

 

In approving the Basic Law, the Knesset functioned not merely as a legislative authority, but as a constituent assembly charged by the Declaration of Independence with adopting a constitution for the State. The Knesset always saw itself as a supreme institution as well, authorized to fulfill the function of enacting a constitution, and on several occasions expressly declared this to be so. In section 1 of the Transition Law the Knesset provided that the Constituent Assembly would be known as the “First Knesset” and that a delegate to the Assembly would be known as a “Member of Knesset.” This shows that the Knesset saw as its primary task the enactment of the constitution, and, it would seem, as its secondary task, the enactment of laws. The Second Knesset Transition Law provided that “wherever the law refers to the Constituent Assembly or the First Knesset it as if it referred to the Second Knesset.” Section 10 of that law provides that “this law will apply, with the necessary changes, to the Third Knesset and every subsequent Knesset.” Thus the group of people known as the Knesset constitutes another body as well, known as the Constituent Assembly, and it coexists, parallel to the Knesset itself, as a body whose purpose is construction of the constitution’ (p. 286).

 

A number of years afterward, with the enactment of the first two Basic Laws, Professor Akzin expressed his opinion on the matter before us (Akzin, “Basic Laws and Entrenched Laws in Israel,” 17 HaPraklit (1961) 230). Professor Akzin noted that in his opinion the Knesset exercises its constituent and legislative authority simultaneously. In his view, the Basic Laws are of a constitutional nature, in accordance with the Harrari Decision. Professor Akzin writes:

 

We do not maintain, as has been claimed from time to time in the Knesset and the press, that even if the Basic Law provided for preferential status it could not thereby tie the hands of a future Knesset: such a claim is pure sophistry and conceptual nihilism. While this claim may be true as to England, there it is consistent with the English rejection of a formal constitution superior to the regular legislature. It has already been decided that this claim cannot stand in a country where the idea of a formal constitution has gained currency. We are referring to South Africa, whose public law is based upon English law. The public law of the State of Israel has been based, since the Declaration of Independence, upon the proposition that a constitution may be established beside the regular laws. This proposition has never been rescinded; rather, it has been repeatedly reaffirmed by the decisions of the Knesset since 1950. If there is any significance to the term “constitution,” it is that the constitution itself authoritatively determines the relations between it and the other norms of the State’ (ibid., at p. 236).

 

In 1969, the first edition of A. Rubinstein’s seminal work The Constitutional Law of the State of Israel was published. In this book, Dr Rubinstein elaborates on the constituent and legislative authority of the Knesset and on its power, in exercising its constituent authority, to enact a constitution that will limit the regular legislation of the Knesset. The author writes:

 

The Constituent Assembly, after it changed its name to the “First Knesset,” extensively debated the question of the constitution. No doubt was cast on the fact that it was indeed authorized to enact a written, formal constitution. The great dispute revolved around the question of whether it was required to do so... There can therefore be no doubt as to the Knesset’s power to enact a constitution or laws of a constitutional character that stand above regular legislation… The First Knesset dissolved before its time, without adopting a single chapter of the constitution of the State in accordance with the Harrari Decision. The First Knesset’s powers passed to the Second Knesset ... From this it is clear that the powers of the Constituent Assembly passed from the First Knesset to the present Knesset and to every future Knesset... No defect in this continuity can be shown, nor has the power to enact a constitution disappeared; rather it is conferred upon every Knesset’ (ibid., pp. 167-168).

 

The author reiterated this position in all four editions of his work, and the young jurists of the State of Israel were inculcated with this view.

 

34. A significant contribution in the area of Israel’s constitution, the constituent authority of the Knesset and its parliamentary status, was made by Professor Klein (see, inter alia, Klein, “The Constituent Authority in Israel,” 2 Hebrew Univ. L. Rev. (Mishpatim) (1970) 51; Klein, “On the Legal Definition of the Parliamentary Government and Israeli Parliamentarism,” 5 Hebrew Univ. L. Rev. (Mishpatim) (1976) 308; Klein, “A New Era In Israel’s Constitutional Law,” 6 Isr. L. Rev. (1971) 373). The author wrote in 1970:

 

The concept of constituent authority undoubtedly exists in the constitutional law of Israel. Constituent authority was conferred upon the Constituent Assembly, i.e. the First Knesset. The First Knesset did not relinquish this authority, but transferred it to the Second and every subsequent Knesset’ (Klein, “The Constituent Authority in Israel,” II Hebrew Univ. L. Rev. (Mishpatim) (1970) 51, 53).

 

Professor Klinghoffer has expressed a similar view. We have discussed his position, as he expressed it in the Knesset. He reiterated this position in his above-mentioned article as well:

 

The Declaration of Independence did not specify a period of time within which the constitution must be enacted, and the transfer of the powers of the Constituent Assembly to the Second Knesset and every subsequent Knesset was authorized by a special legal arrangement. This is a sort of continuing transfer, which, so long as it remains in place, confers upon the Israeli legislature, as a perpetual inheritance, the authority to enact a constitution’ (Klinghoffer Book on Public Law, Y. Zamir, ed., (1993) at p. 763); the article itself was first published in 1961)).

 

This is also the position of Professor Gavison. In an article devoted to the dispute on the Basic Law: Human Rights, Professor Gavison writes as follows:

 

I accept the analysis suggested by both Klein and Rubinstein that even if the Knesset is not under such a duty, it maintains parallel powers – legislative and constituent – and that it may limit its own legislative powers while exercising its constituent powers. This analysis seems to be the most appropriate one, despite the undesirability of the length of the period for which these two kinds of distinct powers exist, and the fact that the Knesset itself is not keen on distinguishing between the kinds of power which it exercises’ (Gavison, “The Controversy Over Israel’s Bill of Rights,” 15 Israel Yearbook on Human Rights (1985) 118).

 

In a similar spirit, Dr Maoz noted that the Knesset enacted the Basic Laws as to human rights as an exercise of its constituent powers, and thence stems their primary normative status (see Maoz, “Constitutional Law,” Yearbook on Israeli Law, 1992-1993, A. Rosen-Tzvi, ed. (1994) 143). A similar position is expressed in numerous books and articles on this subject (see, e.g. Lahav and Kretzmer; ibid., at p. 158); it undoubtedly reflects the position of the legal community in Israel. It is sufficient to mention that the academic faculty of the Tel Aviv University Law Faculty proposed a draft “Constitution for Israel” to the Knesset. This proposal had great influence on the advancement of the constitutional undertaking in recent years. The proposed “Constitution for Israel” was based on the Knesset’s power to enact a constitution, entrench it and thereby limit the powers of the regular legislature. Note, however, that there were those who believed that there was no room for a fixed constitution. There were those who believed that it was not desirable for the constitution to include a chapter on human rights. President Landau’s position in this regard is well known (Landau, “A Constitution as the Primary Law for the State of Israel,” 27 HaPraklit (1971) 30). But even those voices did not base themselves upon a contention that the Knesset lacked the authority to enact a constitution. Rather, they were of the opinion that it was not wise to invest the Knesset with such power. Again, this short survey is not sufficient to show that only one conclusive position exists. I am aware that the judicial task is an independent one, which derives sustenance from the wisdom of others, but recognizes the personal responsibility of the judge to decide legal questions. The purpose of this survey is to show that the judicial determination, which recognizes the position that the Knesset is endowed with constituent powers, is not arbitrary, deriving from the subjective outlook of the judge, but rather is a reasonable conclusion, premised upon an objective outlook that reflects the basic opinions of the (legal) community in Israel. Another layer is therefore added to our ultimate conclusion that recognition of the constituent authority of the Knesset is the best, most fitting interpretation of Israel’s legal history.

 

(v) Judicial precedent of the Supreme Court

 

35. The Supreme Court recognized the power of the Knesset to entrench the clauses of a Basic Law against regular legislation, as set forth in four decisions rendered before the March 1992 enactment of the Basic Laws as to human rights (see HCJ 98/69 Bergman v. Minister of Finance [15], at p. 693; HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [19], at p. 7; HCJ 141/82 Rubinstein v. Knesset Speaker [20], at p. 141; HCJ 142/89 Laor Movement v. Knesset Speaker [21], at p. 529). At first, the matter was left for further review, but with time it was addressed clearly and explicitly. In the Laor Movement case [21], I noted as follows:

 

A law of the Knesset – whether a “regular” law or a Basic Law – that seeks to change an “entrenched” provision without having been adopted by the necessary majority contradicts the entrenchment provision of the Basic Law. In light of its legal effect, the “entrenchment” provision takes precedence. In this clash between the entrenchment provision and the clause that seeks to change it without meeting the necessary majority requirement, we do not apply the standard rules of construction, according to which a later enacted law invalidates an earlier enacted law. In this clash we apply the principle that gives normative precedence to the entrenched Basic Law’ (HCJ 142/89 [21], supra, at p. 539).

 

Thus the Court has recognized the Knesset’s power to ‘entrench’ the Basic Laws against change or infringement. Otherwise, we cannot explain the invalidation of four “regular” laws for violating the principle of election parity set forth in the Basic Law: The Knesset, when these invalidations stemmed from the failure of those laws to meet a formal requirement (the special majority) set forth in s. 4 of the Basic Law. It is true that in these decisions (except for the Laor Movement case [21]) the Court did not employ the rhetoric of constituent authority. We cannot conclude from these decisions that this specific doctrine was before the Court at that time. However, it is clear that the Court recognized the normative primacy of the entrenched Basic Laws. This primacy is certainly consistent – and as I will explain, only consistent – with the constituent authority of a Knesset empowered to enact a constitution for the State. In the fourth case in this series, I discussed the Knesset’s status as a constituent authority, noting as follows:

 

This “entrenchment” applies in our system, for we recognize the Knesset’s power to function as a constituent authority and to prepare Basic Laws that will constitute the various chapters of the State constitution. It is in this context that  we recognize the power of the Knesset,  acting as a constituent authority, to entrench provisions of a Basic Law against changes – whether by “regular” or Basic Law – that are adopted by a “regular” majority…’ (Laor Movement case [21], at p. 539).

 

36. Since the enactment of Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty, the question of the normative status of these Basic Laws has arisen in an incidental manner in the decisions of the Supreme Court. The Supreme Court has taken the position that these two Basic Laws enjoy constitutional supra-legislative status. Justice D. Levin concluded that this was so in the first decision to address the constitutionality of Basic Law: Freedom of Occupation. Justice Levin wrote:

 

In March 1992 a significant change occurred in Israeli law. Two Basic Laws were adopted and came into force that define and raise to a constitutional level basic civil rights .... These two Basic Laws were debated in the Knesset of Israel, as a constituent authority, and consequently, the revised version of Basic Law: Freedom of Occupation and a revision to Basic Law: Human Dignity and Liberty were enacted, and came into force on March 9, 1994 ... When these two Basic Laws came into being they erected, by their own force and in conjunction with various basic rights that had been scattered here and there throughout our case law, the foundations and walls of the Israeli constitutional edifice. This construction has not, however, been completed, and there remains more to be drafted and enacted so that the constitution may stand in its full glory, radiating its light on the institutions of government and law in Israel. Nonetheless, the work that has been done is the construction of a stable constitutional structure, protected under the aegis of the principle and values anchored in the Declaration of Independence’ (HCJ 726/94 Clal Insurance Co. Ltd v. Minister of Finance [37], at pp. 463-464).

 

Thus, in the first decision to deal with the status of the Basic Laws, the Supreme Court decided – and in this regard the decision was unanimous (by Justices Levin, Strasberg-Cohen and Tal) – that the two Basic Laws on human rights were adopted by the Knesset in the exercise of its constituent authority, and they therefore enjoy constitutional supra-legislative status. In a similar vein, the Justices of this Court stated obiter dicta their position as to the constitutional supra-legislative status of the two new Basic Laws. My colleague Justice D. Levin so opined as to Basic Law: Freedom of Occupation and the right to freedom of occupation when he stated, in another case, as follows:

 

Basic Law: Freedom of Occupation ... endowed this right with formal constitutional recognition and supra-legislative status. It is transformed into a protected basic right and placed on a higher normative level than “regular” legislation or “Israeli” common law…’ (HCJ 239/92 Egged Israeli Transport Cooperation Society v. Mashiah [44], at p. 71).

 

In a similar spirit, my colleague Justice Mazza stated as follows in another case dealing with the Basic Law: Freedom of Occupation:

 

The safeguarding of the right to freedom of occupation in a Basic Law has conferred upon that right supra-legislative status. One of the distinguishing characteristics of this illustrious status ... is in the entrenchment of that right even against the mighty hand of the legislature. Again, it is not enough that a law that limits the right be explicit and unequivocal; rather, in order to effectively limit the freedom of occupation, the law must also meet the requirements of the last part of section 1, that is,. the limitation must be required for a “proper purpose and for the general good”...’ (HCJ 3385/93, 4746/92, G.P.S. Agro Exports Ltd v. Minister of Agriculture [24], at p. 259).

 

In another case, Justice Strasberg-Cohen decided as follows:

 

These laws changed the normative status of freedom of occupation in Israel. There were two primary changes: first, the possibility of invalidating a law that does not meet the criteria of the Basic Law, a possibility that did not previously exist; and second, a change in the relative status of the law, on the one hand, and the basic right on the other. If, prior to the Basic Law, it was possible to limit the basic right by means of a law that did so clearly and explicitly, and if, prior to the Basic Law, the basic right and its limitation were tested in light of the law limiting that right, now the right (for our purposes, freedom of occupation) has been given preferred status above the law that limits it, and requires an analysis into whether the limitation is consistent with the values of the State of Israel, was enacted to serve a proper purpose, and is not more restrictive than necessary’ (HCJ 1225/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications [45], at p. 679).

 

37. The Justices of the Supreme Court took a similar approach, obiter dicta, as to the constitutional supra-legislative status of Basic Law: Human Dignity and Liberty. In one of the cases, which dealt with the freedom of movement (protected by s. 6 of Basic Law: Human Dignity and Liberty) I noted as follows:

 

This right is invested with constitutional supra-legislative status. A regular law enacted after the effective date of the Basic Law that infringes the basic right and does not meet the requirements of the “limitation clause” (s. 8 of the Basic Law) is an unconstitutional law. The Court is entitled to apply the appropriate remedies. One of those remedies is to declare the law void, and set forth the effective date of the invalidity (retroactive, active or prospective)’ (CrimApp 6654/93 Binkin v. State of Israel [46], at p. 293).

 

In another case I noted:

 

With the enactment of the Basic Law, a significant change occurred in Israel. The normative status of a number of basic human rights has changed. They have become part of the State constitution. They have been accorded constitutional supra-legislative status’ (CrimApp 537/95 Ganimat v. State of Israel [38], at p. 410).

 

In one of the cases, Justice Or analyzed the principle of equality. He determined that this principle may be safeguarded by Basic Law: Human Dignity and Liberty. Therefore, in his opinion, the following conclusion is required:

Such a safeguard signifies the elevation of the principle of equality to a normative constitutional supra-legislative level’ (HCJ 5394/92 Huppert v. Yad Vashem Holocaust Martyrs and Heroes Memorial Authority [47], at p. 362).

 

It must be emphasized that most of the decisions discuss the constitutional supra-legislative status of the Basic Laws. There is no express reference to the Knesset’s constituent power. There was no need for such an express reference, since this question was not at issue. I do not contend, therefore, that one may conclude from these decisions that the Court explicitly adopted the doctrine of constituent authority (aside from the decision in the Laor Movement case [21], and the unanimous decision in the case of Clal Insurance Co. Ltd [37]). My contention is that the Court recognized the normative supremacy of the Basic Laws, and their constitutional supra-legislative status. In so doing, the Court did not adopt those constructions that see the Basic Laws as occupying the same normative level as regular legislation.

 

(vi) The Knesset’s constituent authority: conclusions

 

38. The socio-historical journey is at an end. This journey was vital. Constitutionality and the constitution are not merely formal documents. They are not mere law. They are the product of the national experience. They are society and culture. A constitution is indeed a reflection of the national experience. The words of Justice Agranat still resonate:

 

For it is a well known axiom that a nation’s law must be viewed through the lens of its national experience’ (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [4], supra, at p. 884).

 

Our system of national life, our national experience, from the establishment of the State until today, is that the Knesset is perceived by our national consciousness as the body authorized to enact a constitution for Israel. That consciousness originated before the establishment of the State and the preparations for framing a constitution. That consciousness was crystallized in the Declaration of Independence. It took on real form in the elections for the Constituent Assembly. It was consolidated in the social-legal understanding that the Knesset is endowed with constituent authority and is empowered to enact a constitution for Israel. The rhetoric of constituent authority and constituent power was particularly strong during the first years following the establishment of the State. This rhetoric weakened with the passage of time. That is natural. Nonetheless, the basic understanding that the Knesset is endowed not only with regular legislative authority but also with constituent authority accompanied the Knesset from its inception. This is evidenced by the repeated references to the Harrari Decision. The renewed rhetorical reference to the Knesset as endowed with constituent authority in the context of the enactment of the Basic Law: Freedom of Occupation in 1994 shows this as well. Indeed, the view that the Knesset is authorized to enact a constitution is deeply embedded in the social and legal consciousness of Israeli society. This is part of our political culture. On the basis of this view, we, the judges of Israel are entitled to declare today that according to the rule of recognition of the State of Israel, the Knesset is endowed with legislative and constituent authority, and that the Knesset may, in exercising its constituent authority, limit the exercise of its legislative authority.

 

In truth, the rule of recognition at the outset of the Second Knesset might have been different had the Supreme Court determined that constitutional continuity had been severed. But this did not happen. In my opinion this would not have happened even had the question arisen before the Court at that time. In any event, today’s socio-legal reality enables the Supreme Court – in whose hands rests consolidation of the rule of recognition (see H.L.A. Hart, The Concept of Law, at pp. 147-154 (2nd ed., 1994)) – to identify and declare that our Knesset is endowed with both constituent and legislative authority; that it wears ‘two hats’; that in enacting the constitution it may limit its regular legislative power; that its constituent actions stand above its legislative actions. Of course, while the Knesset’s lawmaking power (its “legislative hat”) is continuous and everlasting, its power to enact a constitution (its “constituent hat”) is temporary and will terminate when the Knesset, as a constituent authority, determines that the constitutional undertaking has been completed. The constitution itself will set forth the means by which it may be revised and amended. This conclusion – the product of the rule of recognition – is also the best interpretation of our socio-legal history from the establishment of the State until today.

 

39. The common denominator of these three models is that the constituent authority of the Knesset always rests with the people. A constitution is not a government act that bestows a constitution upon the people. A constitution is an act by the people that creates government. It is the people that determines – according to the social philosophy developed over the course of its history – who exercises the highest authority of the State, and its rule of recognition. The Court gives expression to this social determination. The Court is the faithful interpreter of the people’s will as expressed in the constitution. The Court attempts to give the best possible interpretation of the totality of the national experience. The existence of a constitution is not a logical matter but a social phenomenon. The Court interprets the ‘social facts’ and infers from them the constituent power of the Knesset. This interpretation is not the product of intellectual construction. It is an expression of the social reality. It reflects actual experience. It is an expression of the moral and political foundation upon which the system is based. It is the product of the historical, political, social and legal history of the system. It is the consequence of the social contract based upon the communal consensus in Israel (the Laor Movement case [21], supra, at p. 554). The Court attempts to give the best interpretation of the totality of the national experience. At times, the constituent authority remains in the hands of the people itself, which then acts directly and enacts a constitution by referendum. In most cases the nation delegates constituent authority to a governing body. At times this is a special governing body. Generally it is an existing governing body, which is also the body authorized to enact laws. That is the case in Israel.

 

 

d) Review and critique of Justice Cheshin’s position

 

40. My colleague Justice Cheshin rejects the Knesset’s constituent authority. In his view, a Basic Law is “regular” legislation to which the label “Basic Law” has been appended. The Knesset may not limit itself. The Knesset is not omnipotent, inasmuch as it is subject, inter alia, to the will of the majority. A statutory clause (including that set forth in a Basic Law) providing for a formal majority “limitation” is not binding, unless the required majority is 61 members of Knesset (which is not a true limitation). A statutory clause providing for a substantive limitation in regard to the content of the provision (such as that appearing in the limitation clause) may be changed by later legislation despite noncompliance with the limitation requirement, as long as the subsequent law expressly provides for the change. Essentially, this is the classic English position, which represents the accepted view of the Westminsterian model as it is understood today in England. The legal construction that my colleague proposes in requiring an express change was raised many years ago by Professor Klein, and I referred to it myself years ago. My colleague’s position that, in principle, limitation is not possible is the antithesis of the view held by my colleague President Shamgar, according to whom limitation is possible. My view – based upon the Knesset’s constituent authority – falls in the “middle.” It is opposed to Justice Cheshin’s position on entrenchment and self-limitation in the Basic Laws. We do share basic principles – which I would like to reserve for future review – as to the effect of limitation clauses in regular laws, but that is not now the issue before us.

 

41. I will state at the outset that I disagree with the position held by my colleague Justice Cheshin. I agree with the view of my colleague Justice Shamgar in this matter. Indeed, consider the result: there is no constitution and the Basic Laws are but regular laws; the constitutional undertaking of more than forty years has been, so far, an unsuccessful experiment; the provisions of s. 9A of Basic Law: The Knesset, according to which the Knesset may extend its term only by a law enacted by a majority of eighty members of Knesset, are invalid; the provisions of s. 45 of Basic Law: The Knesset (according to which ss. 9A, 44 and 45 may be amended only by a majority of eighty members of Knesset), are invalid; the limiting provisions included in all drafts of Basic Law: Legislation based upon the principle that a Basic Law may not be enacted or amended unless by a majority of two-thirds of the Knesset, will not be constitutional if adopted; the clauses set forth in the Basic Laws requiring a Knesset majority – which, in the view of my colleague Justice Cheshin, are lawful – are imperiled, for it seems to me according to his underlying premise they should be invalidated. If we wish to enact a constitution and Basic Laws, we will have to start again from the beginning. And, apparently, even such a beginning is not at all simple. Certainly we will not aspire to ‘blood and fire and pillars of smoke’ [Joel 3:3]. If we wish to adopt a constitution by non-violent means, we are faced with considerable difficulty. The Knesset would not be empowered to enact a law establishing a constituent assembly. Even presenting a proposed constitution to be adopted by the Knesset (or a body established by it) for a national referendum would pose problems that could not be easily surmounted. Indeed, my colleague places us in the same position in which England is found today – without our being part of the European community and without our being subject to the European Convention on Human Rights – and he places before our legal system the same difficulties facing England today. In my opinion all this is unnecessary, for our history is unlike England’s. Our Knesset has constituent authority, by means of which it may achieve constitutional arrangements not easily realizable in England. I say this not because I desire a constitution, just as my colleague does not take his position because he desires that we not have a constitution. I take this position because it accords with my best professional understanding; it is based upon my best efforts to be objective in light of the constitutional structure and contemporary constitutional understanding. Indeed, I would consider a Knesset decision to discontinue the constitutional undertaking as legitimate, imbued with the same force as a decision to continue the enterprise. However, as long as the Knesset has not decided to abandon the constitutional undertaking, the Court must give constitutional force to that enterprise without regard to the judge’s personal opinion.

 

42. Accordingly, the most important question remains whether the Knesset is endowed with constituent authority. My colleague’s claim rests upon the view that the Constituent Assembly’s constituent authority expired with the dissolution of the First Knesset. Most of his contentions have been made before. Professor Nemer, Dr Likhovsky, Mr Shefter and Mr Hornstein raised these arguments in the nineteen-fifties and sixties. My colleague returns to them. Some of these claims are stronger, some less so. As I mentioned in my opinion, had these questions arisen at the time that the Second Knesset convened (in 1951) they would have posed a problem that was “by no means simple.” I added that even then these problems could have been surmounted. Certainly these claims have weakened over the years. With the current reinforcement of the constitutional enterprise they lack real force.

 

43. I have addressed most of my colleague’s claims in the course of my opinion. I will therefore not repeat my answers but will address a number of points that merit further discussion.

(a) My colleague stresses that the First Knesset – which everyone agrees was empowered to adopt a constitution for Israel – was not authorized to transfer that power to the Second Knesset, and even if the First Knesset was so empowered, it did not intend to effect such a transfer. My simple answer is that the principle of transfer or agency, according to which an agent is not a principal does not apply here. The Knesset was given the power to enact a constitution by means of the basic norm and according to the basic understanding of the Israeli community. This power was given to every Knesset. The First Knesset did not pass powers to the Second Knesset, just as the Twelfth Knesset did not pass legislative power to the Thirteenth Knesset. A later Knesset is not the agent of an earlier Knesset. The Knesset is the central organ of the State, and according to our constitutional structure it is endowed with both constituent and legislative authority. In any event, even according to my colleague’s line of thinking, I have sought to show that the First Knesset intended (subjectively) to see the Second Knesset as its heir, and that intention was successfully implemented.

 

(b) My colleague has returned again to the old claims that the passage of constituent authority from the First to the Second Knesset was effected by regular laws and not by Basic Laws. This question does not arise as to the Transition Law, 5709-1949, which was enacted before the Harrari Decision. Personally, I see in this a constitutional provision, as it was indeed dubbed (“minor constitution”). Professor Yadin noted that the Transition Law was an ‘act of basic legislation in the sphere of the national constitution’ (Sefer Yadin, at p. 90). As to the Transition to the Second Knesset Law, it was enacted after the Harrari Decision, and should have been enacted as a Basic Law. It is unfortunate that this was not done. Does the entire constitutional structure therefore collapse? I have already noted that in my opinion this law was unnecessary; it was declarative in nature, emphasizing the passage from transitional to permanent status.

 

(c) My colleague Justice Cheshin cites as a weakness of the doctrine of constituent authority that it must distinguish between constituent and legislative acts, and that it is likely to require a determination as to whether certain provisions set forth in the Basic Law deviate from constituent authority. My answer is threefold. First, according to the doctrine of constituent authority the distinction between constituent and legislative acts is straightforward and clear, and is subject to a simple formal test. In this my position is similar to Justice Cheshin’s position, which is also subject to a simple test calling for a majority of 61 members of Knesset and no more than that. Second, indeed it may be necessary to test the constitutionality of the use of the term ‘Basic Law.’ I sought to leave this matter for further consideration and I maintain this position. I will note, however, that it is well accepted for courts to test the constitutionality of amendments. More than one such amendment has been invalidated as unconstitutional, and this has been not only for ‘formal’ reasons (such as a failure to meet majority requirements) but for substantive reasons as well (see the opinion of the Supreme Court of India in the case of Kesavande v. State of Kerala [113]). Consider, in this regard, the following words of the Constitutional Court of Germany:

 

Laws are not constitutional merely because they have been passed in conformity with procedural provisions... They must be substantively compatible with the highest values of a free and democratic order, i.e. the constitutional order of values, and must also conform to unwritten fundamental constitutional principles as well as the fundamental decisions of the Basic Law’ (6 BverfGE 32 [109]).

 

The literature on this matter is plentiful (see Barak, Parshanut BeMishpat, vol. 3, (1994), at p. 566, and also infra). Third, the need for judicial review under these circumstances is not unusual. It seems to me that even my colleague Justice Cheshin applies judicial review in similar circumstances. Thus, for example, in his view, the Constituent Assembly (the First Knesset) was unsuccessful in its attempt to transfer authority to the Second Knesset. Is this not an example of the Court setting constitutional limits? My colleague Justice Cheshin determines that the Knesset’s enactment of a law (even a Basic Law) extending its term beyond four years would be unconstitutional. Is this not a case in which the Court determines the boundaries of constituent authority? It is worth noting as well the words of my colleague President Shamgar, who noted that ‘there should be no doubt as to the existence of judicial review’ even as to the constitutionality of the constitutional legislation itself (see paragraph 46 of his opinion).

 

44. My conclusion is therefore that my colleague Justice Cheshin has presented the old arguments (some better, some less so) that were raised in the nineteen-fifties and sixties. All these contentions have been answered. The answers were sufficient when they were made. They are certainly sufficient today. As I have attempted to show, the Knesset’s constituent authority does not come to it merely by inheritance from the original Constituent Assembly (according to Kelsen’s view). I have reiterated that the recognition of the Knesset’s constituent authority reflects the general rule of recognition of Israeli law today (according to Hart’s view). This is the best interpretation of the entirety of the legal and national history of Israel, as it is understood today (according to Dworkin’s view). Indeed, regardless of the legal climate at the time the Constituent Assembly was dissolved, even had there been no Constituent Assembly at all, the question remains – what is the rule of recognition of Israeli law today? Does today’s Israeli law recognize the Knesset’s authority to endow Israel with a constitution? I have answered this question affirmatively. To support my position, I have presented the Knesset’s understanding of itself; the party platforms from various elections, which manifest the subjects on which the nation gave its opinion in those elections; the words of scholars and academics reflecting the professional consensus; the opinions of the Supreme Court; and the Knesset’s response to them. All these together – with no possibility of viewing any individual element as providing the answer – provide a “factual basis” for my legal conclusion that today, as in the past, the Knesset’s power to endow Israel with a constitution is recognized. My conclusion as to the Knesset’s authority to enact a constitution is based upon a broad “factual basis.” It is the result of the constitutional history, the Knesset’s understanding of itself, the basic understanding of scholars and authors, the understanding of the electorate that voted in the various elections, the decisions and dicta of the judges and the response of the Knesset. This is where my criticism of Justice Cheshin’s position lies. His position does not accord with the understanding of today’s Israeli community. It is not the best explanation for the entirety of the social and legal history of the State of Israel. It does not grapple with the constitutional problem.

 

45. Professor Dworkin’s position is germane. He addresses the question of whether the British Parliament is empowered to adopt a bill of human rights that would limit the Parliament’s legislative power and prohibit Parliamentary amendment of the bill of rights, except by special majority. Professor Dworkin considers whether the Parliament’s decision is in itself sufficient to create entrenchment and self-limitation, and he concludes that the answer to this question is no. He notes that the principle of parliamentary supremacy:

[D]oes not owe its authority to any parliamentary decision, because it would beg the question for Parliament to decide that its own powers are unlimited.’

 

He continues:

 

British lawyers say that Parliament is an absolute sovereign because that seems (for most of them intuitively and unreflectively) the best interpretation of British legal history, practice and tradition. But legal history and practice can change with great speed’ (R. Dworkin, A Bill of Rights for Britain (1990), at pp. 26-27).

 

And I ask: when a Justice of the Supreme Court regards our legal history, its ways and traditions, as it appears before us today – against the background of the Declaration of Independence, the convening of the Constituent Assembly, the Harrari Decision, the election campaigns in which the parties reiterated their aim to enact a constitution for Israel, the enactment of twelve Basic Laws including entrenchment and limitation clauses, the case law and the Knesset’s response thereto, and the position of the legal community – does this not demand a determination that today the Knesset is endowed with constituent authority; that today, alongside its legislative authority, lies the Knesset’s authority to enact a constitution? Is this not the best interpretation of our national history? Is this not the best explanation for our “system of national life” (in the words of Justice Agranat in HCJ 87/53 Kol HaAm Co. Ltd v. Minister of Interior [4], supra, at p. 884)?

 

46. We will now consider the question of the Knesset’s power to limit its authority to amend the Basic Laws – whether the best explanation for this arrangement, against the background of our entire constitutional history is my colleague’s explanation as to the nature of majority and the method of counting abstentions, or my explanation that this power is the expression of the Knesset’s constituent authority. My colleague seeks to address this question from within the Knesset’s enactments and its internal rules. In my view we cannot solve this problem without looking outside the Knesset. This problem may be solved according to our present understanding of the entirety of Israel’s legal history. The best explanation for this understanding is that the Knesset sought to limit its legislative power as to constitutional matters; that it saw itself as functioning within the scope of the constitutional undertaking; that it saw itself as preparing a constitution for Israel. We will consider as well the entrenchment provisions of the Basic Law: The Knesset. In light of our legal and social history, is the best explanation for this requirement that the Knesset was thereby attempting to count abstentions and non-participating votes as “votes against,” out of a desire to provide for a “regular” majority? Perhaps the better explanation is that this was an attempt to create a constitutional supra-legislative norm, intended to ensure the stability of the system. Consider Basic Law: Human Dignity and Liberty. Is the best explanation for this Basic Law that the Knesset sought to prevent infringement of those basic rights by a later Knesset without consciously and expressly setting out its intention to do so (according to the position of my colleague Justice Cheshin)? Perhaps the better explanation is that the Knesset sought to prevent infringement of those basic rights by a later Knesset not fulfilling the requirements of the entrenchment provision, thereby preventing a later Knesset – one that explicitly announces its intention to deviate from the Basic Law – from achieving its goal? Is not this explanation – my explanation – the only one that reconciles the provisions of Basic Law: Human Dignity and Liberty with the provisions of Basic Law: Freedom of Occupation, which includes an express instruction – intended to achieve my colleague’s interpretation in the context of this law – regarding the override clause, when such a provision is absent from the Basic Law: Human Dignity and Liberty? Is the best explanation for our legal history that the use of the term “Basic Law” is merely formal, without any underlying significance? Or is the best explanation for use of the term ‘Basic Law’ that the matter is substantive in character, and reflects the preeminent normative status of the Basic Law? Consider s. 1A of Basic Law: Human Dignity and Liberty, which provides that ‘this Basic Law’ – this and not an item of regular legislation – ‘is intended to protect Human Dignity and Liberty, in order to safeguard in a Basic Law’ – in a Basic Law and not in regular legislation – ‘the values of the State of Israel as a Jewish and democratic state.’ Is it not artificial to consider the term ‘Basic Law’ in this section as merely formal? Should it not be seen as the expression of a more profound legal and social outlook under which the Knesset is engaged in preparation of a constitution, in the context of which it seeks to protect human rights in order to safeguard the values of the State of Israel as a Jewish and democratic state? It should be noted that I do not claim that the issue is “black-and-white.” I am well aware of the contentions of the various Members of Knesset that were raised against the constitutional enterprise; I am aware of the authors who argued against it. But when a judge must ask himself – while taking into account the entire picture – what is the outlook of Israeli society today, against the background of the multi-faceted constitutional enterprise undertaken since the establishment of the State, and in light of the two latest Basic Laws and the reactions to them, my answer is that the Israeli Knesset is endowed with constituent authority. Indeed the judge’s task is to give our legal and social history the explanation that best accords with the legal and social data.

 

47. Running through Justice Cheshin’s opinion is his determination that recognizing the Knesset’s constituent authority violates Israeli democracy. In his view, ‘it is unthinkable that the representatives of a majority of the nation would take a position, but be prevented from achieving their aim of amending a Basic Law by our having erected a legal construct of dual authorities’ (paragraph 69). ‘It seems to me that obstructing the majority is a patently anti-democratic procedure’ (paragraph 69). “True” democracy, in the view of my colleague, Justice Cheshin, is democracy in which all decisions are adopted by a majority (an absolute majority) of the Members of Knesset. ‘A determination that a statute cannot be voided, amended or infringed except by a majority of more than 61 votes ... is a patently anti-democratic determination’ (paragraph 97). ‘When majority rule is removed, the spirit of democracy is extinguished’ (paragraph 101). ‘A statute enacted by the Knesset is the law of Israel, as long as it does not injure the heart of democracy, the principle of majority rule’ (ibid.). In my opinion this is a one-sided and fragmented approach to democracy. I discuss this at greater length in that section of my opinion dealing with the basis for the judicial review of constitutionality. My basic position is that the Knesset’s legislative authority to amend its laws should not prima facie be limited. Such limitation violates the principle of majority rule, without which there is no democracy. Such limitation enables the past to reign over the present on day-to-day matters. Such limitation enables the present majority, which chose today’s Knesset, to limit a future majority, which will choose the future Knesset. One generation may thereby dictate the day-to-day behavior of another generation. In the absence of a social agreement expressed in the implicit rules of the system, such a result should not be allowed. Up to this point, Justice Cheshin and I are of the same opinion. But, at the same time, my position is that “true” democracy recognizes the power of the constitution – fruit of the constituent authority – to entrench the fundamental human rights and the basic values of the system against the power of the majority. Such a limitation of majority rule does not violate democracy but constitutes its full realization (as discussed above). In this I join my colleague President Shamgar, and with him disagree with the opinion of my colleague Justice Cheshin. Indeed we are adjudicating the matter of the constitution as well as constitutional human rights. In this context, endowing the majority with the power to infringe the rights of the minority is an undemocratic act. Protecting individual rights, minority rights and the fundamental values of the legal structure against the power of the majority is a democratic act. Justice Jackson noted this as follows:

 

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty and property, to free speech, a free press, freedom of worship and assembly and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections’ (West Virginia State Board of Education v. Barnette [92], at p. 638).
 

Indeed, “true” democracy cannot exist without limitation of the power of the majority so as to protect the values of the State of Israel as a Jewish and democratic state, and so as to protect the fundamental values, of which human rights are primary. Democracy of the majority alone, unaccompanied by a democracy of values is formal, “statistical” democracy. True democracy limits the power of the majority in order to protect the values of society, ‘the values of the State of Israel as a Jewish and democratic state,’ and the ‘recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free’ (s. 1 of the Basic Law). Of course, it is possible to think otherwise. It is possible to be satisfied with “formal” democracy. But the State of Israel chose differently. 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. This choice was not made by judges. It was made by the nation. Once this choice is made, the judges are required to uphold it regardless of their own personal opinions (see B. Ackerman, We The People: Foundations 272 (1991); J. Rawls, A Theory of Justice 228 (1983)). The fundamental values and basic human rights are so deep and so important that the courts of various countries are prepared – without any constitutional text – to negate parliamentary power to infringe those values. Indeed, in a number of common-law legal systems the recognition is slowly developing that certain fundamental values cannot be infringed by the legislature, even in the absence of a written constitution. The bitter experience of Nazi Germany, inter alia, has contributed to the understanding of this issue (see my opinion in the Laor Movement case [21]; Tal, “The All-Powerful Legislature: Indeed?” 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 361; Woolf, Droit Public - English Style Public Law (1995), at p. 57; and P. Joseph, Constitutional and Administrative Law in New Zealand (1993), at pp. 444, 454). The matter has progressed so far that, at times, courts are prepared to negate the effect of a baseless constitution (see H.H. Cohn, “Faithful Interpretation – A Third Conclusion,” 7 Hebrew Univ. L. Rev. (Mishpatim) (1976) 5; EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [48]). We need not go so far. We have a constitutional text. We have a national history of recognizing fundamental values that stand above regular legislation. All that is left is judicial recognition that the law is constitutional. We grant this recognition today.

 

48. My colleague Justice Cheshin reiterates that the nation was not consulted, ‘and we did not ask the nation’ (paragraph 67). My colleague asks again, ‘And where was the nation? Is it not fitting that we seek its opinion? On the contrary, we should turn to the nation and ask its opinion’ (paragraph 63). 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. The nation has sovereignty. The entire social and legal structure is based upon this principle. The constitution and the Basic Laws arise from the nation and depend upon the nation, and the nation may change them. The Knesset’s constituent authority stems from the nation, and is recognized by the nation; the Knesset does not exercise this authority behind the back of the nation. My opinion is but an attempt to declare that the idea of the constitution and its implementation are not the province of ‘jurists and a few other high-brows – two or three at most’ (paragraph 71), but rather that this idea is a reflection of the national consciousness; that the idea of the constitution and its preparation began with the Declaration of Independence, which was borne on the nation’s shoulders; that it took form with the elections for the Constituent Assembly; that the idea of the constitution and its preparation did not evaporate with the dissolution of the original Constituent Assembly, but continued on in the Second Knesset. The party platforms, on the basis of which the people voted in all of the elections, attest that the idea of the constitution and its preparation continued and developed in every Knesset, and that in accordance with this idea, the Knesset enacted twelve Basic Laws; that in the various elections the nation was told that the parties sought a constitution for Israel; that based upon these declarations the nation went to the polls; that there were debates in the Knesset and among the public as to the content of the constitution and the need to continue its preparation. All these together enable the Court to declare today that in Israel the nation’s basic understanding is that the Knesset is endowed with the authority to enact a constitution for Israel. Indeed, many do not know what the ‘Constituent Assembly’ is, nor are they aware of the significance of constituent authority. But the vast majority of the members of the public know that our Knesset is the institution from which the constitution will derive and from which it has derived.

 

49. It is true that no special appeal was made to the public to approve the text of the Basic Laws, as it developed in the course of the Knesset debates over the years. But such an appeal was not necessary. It may be desirable, but it is not indispensable. Direct appeal to the nation is one method of adopting a constitution, and perhaps the most desirable. But this is not the only method and it involves considerable difficulty. The constitutional history of many nations recognizes constitutions that derived authority from the nation but were not presented for direct national approval. Every nation has its history; every nation has its constitutional development. Our political and legal culture is not based upon a special appeal to the nation by means of a referendum. No referendum has taken place in the past. Our political and legal culture is not built upon “direct” democracy, but upon “representative” democracy.

Our political and legal culture also maintains that the appeal to the nation takes place in the context of the elections for the Knesset. Such elections took place in Israel, and the issues of the constitution and the Basic Laws were on the agenda. The nation was asked; nothing was done without its knowledge. Indeed, this did occur in the elections for the First Knesset – the Constituent Assembly. Preparation of the constitution was but one of the many subjects addressed in those elections. This does not negate the First Knesset’s constituent authority. The nation went to the polls many times. Every time the issue of the constitution and the Basic Laws appeared on the national agenda. The nation had its say in all of the elections, with different levels of intensity, according to the subjects that were then on the national agenda. Never was the constitutional ember extinguished. I do not see a substantive difference – from the perspective of the rule of recognition of today’s Israeli legal system – between the elections for the Constituent Assembly, and all other elections. In the elections for the Constituent Assembly it was clear that the subject was election of an entity with dual authority, legislative and constituent. This was the case in the other elections as well. I agree, of course, that in the first elections constituent authority was emphasized. This is appropriate, and in this regard, there is, of course, a difference between the first and subsequent elections. But I do not think that this difference is so significant as to conclude that the first elections bestowed constituent authority upon the body elected while subsequent elections did not.

 

Consider the matter of the Basic Laws on human rights. Can it seriously be claimed that they were adopted without the nation’s participation? The Knesset has concerned itself with the question of human rights for more than thirty years. Beginning with Professor Klinghoffer’s 1962 proposal, the Knesset and the Israeli public have reckoned with the question of human rights. Problems of religion and state have been debated at length. The status of Israel as a Jewish state and as a democratic state have been debated and tested. The Twelfth Knesset adopted Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty. Thereafter, elections for the Thirteenth Knesset took place. The issue of the Basic Laws was raised in the party platforms. The Thirteenth Knesset was elected and enacted a new Basic Law: Freedom of Occupation.

 

Indeed, the public debates did not take place only in the Knesset. Broad segments of the public expressed their opinions as to the “constitutional revolution.” The issue was discussed in primary schools and high schools. The issue penetrated the public consciousness. All of these factors have constitutional significance. A constitution is not merely a legal document. A constitution expresses the national experience. A special appeal to the nation is only one of the many ways in which such a program for national life can be developed. The nation was asked and the nation answered that it desires a constitution, and that it desires constitutional human rights. Indeed, the primary dispute in the nation – and such a dispute exists – is not as to constituent authority but as to the content of the constitution. Of course this matter requires national consensus. This agreement is expressed in the enactment of the Basic Laws. The Court must give effect to this agreement. Again, I do not claim that constitutional development in Israel is ideal. The constitutional enterprise could have been arranged differently. A “national seminar” on the content and details of the constitution would have been appropriate. Increased public awareness of the public debate would have been appropriate as well. But that is not the question before us. Our task today is not to plan the constitutional enterprise in advance. We are dealing with an analysis of the constitutional enterprise in retrospect. It cannot be said that the nation did not participate in the constitutional enterprise, and that the Members of Knesset acted behind the nation’s back. Everything was done openly, in the public eye. The public expressed its opinion in the elections, and chose the parties that it desired, according to many factors, including party positions on the constitution. Now, the Court must give constitutional effect to the constitution. That is what we are doing today.

 

e) The Knesset’s authority to enact a constitution – Summary

 

50. I have come to the conclusion that the Knesset is authorized to provide Israel with a constitution; that it is empowered to ‘entrench’ the clauses of the constitution (whether by substantive or formal entrenchment). This authority is granted to the Knesset because it is vested with constituent as well as legislative authority. I have noted the many difficulties that stand in the way of any other construction. Fortunately, there is no need to deal with these other constructions in light of the explanation that the Knesset is endowed with both constituent and legislative authority. Indeed it may be said of constituent authority that if it had not been established as a constitutional fact it would have had to be invented, as a constitutional construct, since it provides the best explanation for the legal history of Israel. However, in our case, this doctrine is established and it is reflected in our constitutional history. There is no need to invent it. It expresses our social contract since the establishment of the State until today. Without it, constitutional continuity would be severed, and the effect of all the entrenched Basic Laws creating superior norms would be called into question. Their legal status would be diminished and the constitutional enterprise would lose its operative significance. Human rights in Israel would not be elevated to constitutional supra-legislative status. The expectations of generations for a constitution and supra-legislative human rights would be frustrated. All hope for a constitution would be lost. I am aware of the difficulties that underlie the doctrine of constituent authority. Nonetheless, these difficulties are not so insurmountable as to overturn the doctrine.

 

51. The doctrine of constituent authority affords significant advantages. First and foremost, it reflects the governmental history, the social contract and the basic viewpoints of the Israeli community. Second, it provides an appropriate instrument for accomplishing the task. The doctrine does not deal with the Knesset’s general power to limit itself. It does not take a position as to the Knesset’s ability to limit itself as to matters that are not constitutional. It treats only of the process of creating a constitution and this process alone, and it provides an answer that justifies this activity. It provides an Archimedean foothold, outside of the constitution that enables its enactment.  It makes it possible to turn to the people – if such is their will – in order to strengthen the ties between the people and its constitution that have weakened in past years. Third, it accords with the constitutional experience of most countries throughout the world, which have followed a similar path in preparing their constitutions. It does not transform a “regular” law into a “special” or “elevated” or “important” or “extraordinary” or “exalted” law. It does not deal with fine distinctions as to the scope of the limitation, the essence of the ‘regular’ or ‘special’ majority, or the status of abstentions. It takes the high road in determining that a Basic Law is not a “law” at all but rather a constitution. As a result, the way is paved for a systematic and orderly development of the body of constitutional rules connected with the constitution. It facilitates Israel’s entry into the democratic constitutional community. Finally, it expresses the centrality of the Knesset in the fabric of Israeli democracy. The Knesset is endowed with constituent authority. It is true that in exercising its legislative authority the Knesset is subject to limitations that arise from the basic perceptions of the community as safeguarded in the constitution and the Basic Laws, which represent our national will. Nonetheless, when the Knesset exercises its constituent authority, it is free to enact a constitution for Israel. The Knesset, endowed with constituent authority, was entrusted by the Israeli community with the fate of the constitution.

 

II) Basic Laws and regular legislation

a) Continuation of the constitutional enterprise and its problems

 

52. The Knesset is empowered to enact a constitution. This authority was granted to the Knesset with the establishment of the State. At that time it accompanied a revolutionary process of national emancipation. The original authority did not immediately come into effect. It was already clear to the Provisional Council of State that preparation of the constitution would be protracted. The Harrari Decision provided that the constitution would be adopted in stages. Because of the political situation, the constitution was at times enacted not only ‘chapter by chapter’ but ‘atom by atom’ (see Karp, “The Basic Law: Human Dignity and Liberty – A Biography of Power Struggles,” I Mishpat uMimshal (1993), at p. 323). As a result, the constitution was adopted without any connection to a particular event. As in many countries – such as Canada, Sweden, and Spain – our constitution is the product of natural social development. It results from a continuing ‘evolution,’ not a one-time ‘revolution’ (see B. Ackerman, The Future of Liberal Revolution (1992), at p. 47; E. McWhinney, Constitution Making (1981), at p. 13; R.R. Ludwikowski and W.R. Fox, The Beginning of the Constitutional Era: A Bicentennial Comparative Analysis of the First Modem Constitutions (1993), at p. 194). Moreover, preparation of the Israeli constitution took place over an extended period without parallel in the constitutional history of other countries. Constitutional preparation commonly continues for many years. It is unusual for the constitutional enterprise to continue for more than forty years. For a variety of political and social reasons this has occurred in Israel. At times, the political will to establish the constitutional authority was lacking. At other times, the matter was prevented by circumstances. Indeed, we are different from other nations, even in the enactment of our constitution.

53. This prolonged constitutional enterprise is accompanied by a number of difficult problems. The various Basic Laws differ in the generality of their language. A small number of them contain ‘limitation’ provisions, limiting the process by which the laws may be amended; most are silent as to amendment procedures. Some Basic Laws include ‘entrenchment’ provisions, dealing with the power of subsequent laws to infringe the arrangements set out in the Basic Laws. Most are silent on this matter as well. This normative reality gives rise to difficulties of interpretation and to a lack of clarity as to the constitutional scheme. There is no alternative, therefore, but to clarify the constitutional picture. Without such elucidation, we cannot understand the status and scope of the Basic Laws in general, and Basic Law: Human Dignity and Liberty in particular.

 

b) The normative order

 

54. The Knesset is endowed with constituent authority. By that authority the Knesset enacted a constitution for Israel. It did so chapter by chapter in accordance with the Harrari Decision. Each of the Basic Laws constitutes a chapter in the constitution of the State of Israel. Each chapter stands at the head of the normative pyramid (cf. B. Akzin, The Doctrine of Governments, vol. 1 (1963), at p. 120). Thus, the State of Israel has a constitution – the Basic Laws. Below the constitution stand our statutes, the product of the Knesset’s legislative authority. Beneath the statutes stands secondary legislation, the product of authority conferred by statute. The status of each norm in the normative pyramid is determined by the nature of the authority by which it is created, which, in turn, is grounded in the pyramid of institutions. Limitation does not create normative supremacy. Even when a statute can limit itself it cannot elevate itself (see Salmon, Jurisprudence, 12th ed. (1966), at pp. 85, 87). Normative supremacy reflecting the constitutional nature of the norm derives only from the existence of constituent authority. A constitutional democracy is, by its nature, ‘dualistic’: the constitution is created by the nation, whether directly (such as by referendum) or indirectly, by granting constituent authority to a governmental body (such as a special constituent assembly or an established legislative body). Statute is created by the nation, acting through the legislative authority. Constituent authority is supreme and ranks above legislative authority. It does not constitute mere self-limitation of the legislative authority (Rawls, Political Liberalism (1993), at p. 223). In Israel, constituent authority is given to the Knesset. This authority exists alongside the Knesset’s legislative authority. This dual authority in the hands of the same body raises a number of questions that must be answered.

 

c) The use of constituent authority is effected by means of the Basic Laws

 

55. The Knesset is empowered to enact a constitution for the State. How does it do this? When does the norm created by the Knesset have constitutional status and when can it be said that the norm is a ‘regular’ law? In my opinion the answer is that the Knesset uses its constituent authority (committing a “constitutional act,” in the language of Rubinstein, ibid., at p. 451) when it gives external expression in the name of the norm, denoting it a “Basic Law” (without specifying the year of enactment). This formal standard is consistent with the parliamentary experience. The Knesset did not denote as “Basic Laws” legislative enactments that were not of a constitutional nature. The Knesset was careful in the past to limit the term “Basic Law” to the chapters of the constitution, in accordance with the Harrari Decision. The Knesset attributes great importance to the use of the term “Basic Law.” Thus, for example, Basic Law: Human Dignity and Liberty expressly states:  ‘The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic State’ (s. 1A). The double emphasis of the Law is not coincidental, and it reflects the uniqueness of the Basic Law. The parliamentary reality underscores this singularity as well. A committee was established – the Constitution, Law and Justice Committee – to deal with the enactment of the Basic Laws. At times a subcommittee on the constitution was established as well.

56. Moreover, every time that a Basic Law is submitted for a preliminary or first reading before the Knesset plenum, it is emphasized that another chapter in the constitution of the State is being brought before the Knesset.

Some examples follow:

(a) In submitting the proposed Basic Law: The Knesset (Knesset Proceedings, vol. 15 (1953) at p. 57), MK Bar-Yehuda noted as follows:

 

In other circumstances I might see this moment as worthy of particular note in the annals of Israeli legislation. You, Members of Knesset, even those of you who were not members of the First Knesset, certainly recall the very long debate between the supporters of the Basic Constitution and the Basic Laws as to the relative value of those two, as to their unique means of protection and the need to distinguish between Basic Constitution or Basic Laws and ordinary laws.’

 

MK Bar-Yehuda analyzed the history of the Harrari Decision and presented the first Basic Law.

(b) The second Basic Law was adopted in the Third Knesset. This was Basic Law: Israel Lands. In presenting the proposed law for a first reading, the Minister of Finance, Mr Levi Eshkol, noted as follows

 

It is not without deep feelings of respect that I make use of the privilege and obligation bestowed upon me to present before you and explain these laws connected with Basic Law: Lands of the Nation. I feel that with my words and participation, I stand as though beside a well from which we have drawn for generations, a well “which the nobles of the people delved” [Numbers 21:18].  And now at the close of the first decade and the beginning of the second decade of the State, we approach that well to deepen it, broaden it and fit it to the new conditions that have arisen with the establishment and existence of the State of Israel’ (Knesset Proceedings, vol. 27, at p. 2839).

 

(c) In presenting the proposed the Basic Law: The President of the State – the third Basic Law – for a first reading, Minister of Justice Dov Yosef noted as follows:

 

Today I am honored to bring before the Knesset the proposal for a law that will constitute another layer in the construction of the Basic Constitution of the State’ (Knesset Proceedings, vol. 36, at p. 963).

 

(d) The fourth Basic Law is the Basic Law: The Government. It was adopted by the Sixth Knesset. At that time the Knesset moved to new premises. The first ceremonial session in the new premises was devoted to a first reading of the Basic Law: The Government. In presenting the law, the Prime Minister, Mr Levi Eshkol, stated as follows:

This festive day, on which the Knesset inaugurates its new home, should be noted in a distinguished piece of legislation, which deals with the rules of law and governance in the State. Basic Law: The Government is a distinguished chapter in the future Israeli constitution. The constitution that the Knesset obligated itself to enact by a fundamental decision made in June 1950... The government’s view is that the time has come for the Knesset to devote a considerable part of its legislative work to completing the missing chapters of the Constitution’ (Knesset Proceedings, vol. 46, at p. 2504).

 

(e) The sixth Basic Law is Basic Law: The Army, which was adopted in the Eighth Knesset. In presenting the proposed Basic Law: The Army for a first reading, Minister of Justice Mr Zadok emphasized that:

The government has toiled for a number of years to conclude the preparation of a system of Basic Laws that will be combined to form a complete constitution. It is therefore natural that the subject of the army, which is addressed in every written constitution, be dealt with in Israel in a Basic Law, which, as mentioned, will constitute one of the chapters of the Constitution’ (Knesset Proceedings, vol. 74, at p. 4002).

 

(f) The ninth Basic Law is Basic Law: The Judiciary, which was adopted by the Ninth Knesset. In presenting the proposed Basic Law: The Courts for a first reading, the Minister of Justice, Mr Tamir, noted that:

I am honored to bring before the Knesset the proposed Basic Law: The Courts, a law that is intended to define the constitutional principles by which the judicial authority will function in Israel… Recently the Ministerial Committee for Legislation completed Basic Law: Legislation, including the entire issue of the Constitutional Court. In addition, in the coming week we will renew the debates on the Basic Law: Human and Citizen’s Rights. Thus we have proceeded with important and expeditious steps toward the great objective of endowing the State of Israel with a constitution’ (Knesset Proceedings, vol. 83, at p. 3216).

 

57. Moreover, the Knesset debates on the Basic Laws were of a singular nature. The Knesset was aware that it was preparing an additional chapter for the State constitution. The members of Knesset were aware that they were not enacting regular legislation, but constitutional legislation, with far-reaching, long-term consequences as to the law and the character of the State. The debate was ceremonial. When the Basic Laws were enacted all were aware of the importance of the moment. The unique nature of the legislation was formally expressed by the designation of the proposal and law as “Basic Law.” This designation constituted an agreed-upon sign that the matter was constitutional; that constitutional continuity extended from the days of the Constituent Assembly and the Harrari Decision; that this legislation was not like all others; that the moment was unique. The designation of legislation as a “Basic Law” is not a formal technical matter. It is the substantive expression of the process by which the constitution was enacted.

 

58. Of course, all this has no formal expression, beyond the requirement that the legislation be designated as “Basic Law” without a specified year of enactment. But this is not significant. The constitutional answer often derives from the constitutional system and constitutional precedent even if they have no formal anchor. Moreover, our constitutional legislation is formally anchored. This formal test – the use of the term “Basic Law” – is simple. It provides security and certainty. This test raises two questions that I would like to set aside for further consideration. The first question is what is the constitutional status of legislation that preceded the Harrari Decision and that is not designated as “Basic Law”? Primarily, should not the Transition Law of 1949 be considered part of the State constitution? I am inclined to the view that there is constitutional legislation – the result of constituent authority – before the Harrari Decision as well. That said, this question may be reserved for further consideration. The second question concerns the role of future Knesset legislation that might abuse the term “Basic Law” by designating as such regular legislation with no constitutional content. 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). This question, as well, I would like to set aside for further consideration.

 

d) Amendment of one Basic Law by another Basic Law

 

59. A Basic Law is a chapter in the State constitution. It derives from the Knesset’s constituent authority. In establishing a Basic Law, we find ourselves at the highest normative level. It therefore follows that a Basic Law, or any of its provisions, can be amended only by a Basic Law. A Basic Law may be amended by regular law only if the Basic Law contains an express provision to that effect. It is, nevertheless, true that the Supreme Court has held in the past that a Basic Law may be amended by regular law (HCJ 60/77 Ressler v. Chairman of Knesset Central Elections Committee [14]). That decision aroused criticism (see Klein, ‘On Semantics and the Rule of Law – Reflections and Appeals of HCJ 60/77 Ressler v. Chairman of the Knesset Central Elections Committee’ 9 Hebrew Univ. L. Rev. (Mishpatim) (1978) 79). Later decisions left this entire question as requiring further consideration (see HCJ 119/80 HaCohen v. Government of Israel [23]).

60. In my opinion, one Basic Law may be changed only by another Basic Law. This is also the position of my colleague Justice Shamgar. Professor Akzin correctly noted that:

 

A law that has been formally designated as a Basic Law cannot be changed, except by a law that has also been formally designated as a Basic Law (Akzin, ibid., at p. 237).

 

Professor Klein also took this position, emphasizing that:

 

Supremacy does not derive from the majority requirement but from the authority creating the norm. Accordingly, even unentrenched Basic Laws are superior to regular legislation and, if it wishes to amend them, the Knesset must do so by means of the appropriate amendment procedures, and not by means of enacting a different, later law.

 

Indeed, if the Knesset wishes to amend the clauses of a Basic Law – for example, changing the system by which the Knesset or the Prime Minister is elected – it must do so in a Basic Law. The only case in which this is not so is when the Basic Law itself provides for a different amendment procedure. Amendment of a Basic Law by another Basic Law may be explicit or implied. Indeed, two Basic Laws occupy the same normative level and therefore must be construed according to the principles governing two norms of equal status.

 

61. As I mentioned above, the prevailing view in the past was that a Basic Law could be amended by a regular law. In an opinion that I handed down more than fifteen years ago, I raised doubts as to that approach (see HCJ 119/80, OM 224/80, HaCohen v. Government of Israel [23], supra). As set forth in that opinion, a Basic Law may not be amended except by another Basic Law. Therefore, the provisions of s. 4 of Basic Law: The Knesset, which establishes the electoral system, may be changed only by Basic Law. It is true that the clause itself provides that ‘this section shall not be varied, save by a majority of the members of Knesset.’ I suggest that we determine that this provision relates to infringement of the electoral system – similar to infringement of the principle of equality in the Bergman case [15] and its offshoots – and not to changing the electoral system itself. It is clear that if the subject were a change in the electoral system – such as a change from proportional representation to regional elections – then not only would a Basic Law be required, but also a ‘majority of the members of Knesset’ as set forth in s. 4 of Basic Law: The Knesset.

 

I am aware that in the past Basic Laws were amended by regular legislation. I do not seek to challenge the force of such amendments, which were supported by the decisions of this Court. Thus, what was done in the past will remain in force. But henceforth, a Basic Law may be changed only by another Basic Law. In order to permit amendment of a Basic Law by regular legislation, the Basic Law must include an express provision to that effect, which must explicitly provide that it deals not only with infringement of the arrangement set forth in the Basic Law – as I will discuss later – but also with amendment of the Basic Law.

 

e) Limitation of the Knesset’s power to amend one Basic Law through another Basic Law (“the problem of rigidity”)

 

62. When the Knesset exercises its constituent authority, is it empowered to limit its constituent authority to amend the Basic Law in the future, thereby ‘fixing’ its constitutional enactment? Thus, for example, is the provision of Basic Law: Freedom of Occupation, by which ‘[t]his Basic Law shall not be varied except by a Basic Law passed by a majority of the members of the Knesset’ (s. 7), constitutional and binding? Is the clause of s. 45 of the Basic Law: The Knesset (according to which ss. 9A, 44 and 45 of the Basic Law may not be revised except by a majority of eighty Members of Knesset) binding? Is the Knesset authorized to provide in Basic Law: Legislation that a Basic Law may not be adopted or amended except by a majority of two-thirds of the Members of Knesset? In my opinion, the answer is yes. In exercising its constituent authority the Knesset may limit the future use of its constituent power. This derives from the very essence of the constituent function. This function aims to create a document that entrenches norms that may be altered only in a special way. The constituent function is intended by its very nature to create a formal constitution, the inherent significance of which is the establishment of provisions as to the means by which the constitution may be amended, and which may themselves be amended in accordance with these provisions, failing which the amendment is unconstitutional (the “unconstitutional constitutional amendment’). Indeed, the power of the Knesset – when it exercises its constituent authority – to limit itself, and thereby “entrench” its provisions, derives from the very grant of its authority to enact a formal constitution.

 

63. Most Basic Laws do not include limitation clauses. The “rigidity” of Basic Laws is expressed in only a few of the Basic Laws. We may conclude that in the absence of a “rigidity” provision, a Basic Law may be amended by a Basic Law adopted by a regular majority. Thus, for example, Basic Law: The Judiciary  or Basic Law: Human Dignity and Liberty may be amended by another Basic Law adopted by a regular majority. Note that the absence of a limitation clause does not detract from the normative status of the Basic Law as a superior norm in the Israeli legal system. The absence of a limitation clause negates the rigidity of the Basic Law in relation to other Basic Laws, and permits its amendment or infringement by a Basic Law enacted later by a regular majority. The absence of a limitation clause does not lower the status of the Basic Law to the level of regular law. A non-rigid Basic Law is still a Basic Law. It is not a “regular” law and it cannot be amended by regular legislation.

 

f) Basic Law and regular law

 

64. A Basic Law is a chapter in the constitution. It stands “above” regular legislation. As we have seen, a regular law cannot amend a Basic Law. Can a regular law affect the arrangements set forth in the Basic Law? The apparent answer is that the regular law cannot do so unless the Basic Law so permits. This conclusion follows from the supremacy of the Basic Law. Such supremacy prevents a regular law from affecting the arrangements of the Basic Law. At the same time, this supremacy itself leads to the conclusion that a Basic Law may provide for conditions and circumstances under which regular legislation may infringe the arrangements set forth in the Basic Law. The hand that gave is the hand that hath taken away. The presumption is therefore that regular legislation may not impinge upon the arrangements set forth in a Basic Law unless the Basic Law expressly provides otherwise. However, the case law of the Supreme Court has upset this presumption. The Court has decided that in the absence of an ‘entrenchment’ provision – i.e. a provision entrenching the Basic Law against infringement by regular legislation – the latter may encroach upon the arrangements set forth in the former (see HCJ 148/73 Kaniel v. Minister of Justice [13]; HCJ 60/77 Ressler v. Chairman of Knesset Central Elections Committee [14], supra; HCJ 107/73 ‘Negev’ – Automobile Service Stations Ltd v. State of Israel [12]. This precedent has developed from the directive contained in s. 4 of Basic Law: The Knesset. Under that section, the election system provided for in the statute may not be changed ‘except by a majority of the Members of Knesset.’ This is an instance of “formal entrenchment” that protects the Basic Law against infringement by regular legislation, but permits possible infringement by legislation enacted by the special majority set forth in the Basic Law. In light of the entrenchment provision set forth in s. 4, the Court concluded that regular legislation may infringe other arrangements set forth in a Basic Law when the Basic Law does not provide for entrenchment. If this were not the case, the clauses of a Basic Law that are silent as to entrenchment would be more strongly safeguarded against infringement by regular legislation than the clauses of a Basic Law protected by a special entrenchment arrangement that was certainly intended to strengthen rather than weaken the safeguard. While this conclusion is possible, it is not mandatory. The Court could have concluded that in the absence of an entrenchment provision, the provisions of a Basic Law may be infringed by regular legislation, but only where that infringement is explicit. It would therefore have been possible to continue to emphasize the superior normative status of the Basic Law, while at the same time maintaining the appropriate distinction between a Basic Law providing for entrenchment and a Basic Law that is silent in this regard. I would like to reserve this issue for further consideration, since Basic Law: Human Dignity and Liberty contains an entrenchment provision. The entrenchment called for in the Basic Law is not formal, requiring a particular majority in order to pass the infringing law. Rather, the entrenchment is substantive, permitting infringement by means of regular legislation only if the regular legislation meets the substantive requirements. The limitation clause set forth in section 4 of Basic Law: Freedom of Occupation and section 8 of Basic Law: Human Dignity and Liberty provides for substantive entrenchment. Under that provision, regular legislation may not infringe the human rights protected by the Basic Law unless it fulfill the substantive requirements of content. This entrenchment provision is binding. It is legal. It negates the power of non-complying regular legislation to infringe the human rights safeguarded by the Basic Law.

 

g) Substantive entrenchment provisions in the Basic Law and express infringement in regular legislation

 

65. A Basic Law provides that no legislation may infringe its provisions unless certain substantive requirements are met (substantive entrenchment). A regular law expressly infringes the clauses of the Basic Law without meeting the required substantive requirement. What is the fate of the regular law? In my opinion this regular law is unconstitutional. It may be declared void.

 

Indeed, just as a regular law may not implicitly infringe the clauses of an entrenched Basic Law – because it is on a lower normative level than the entrenched Basic Law – so it may not explicitly encroach upon those provisions. The express provision of the regular law emphasizes its constitutional position, enabling the judicial conclusion that the law indeed infringes the arrangement set forth in the Basic Law. Of course, this conclusion does not apply when the Basic Law expressly provides that despite non-compliance with the substantive entrenchment provision, the Basic Law may be infringed by regular legislation meeting certain formal conditions. Such a provision may be found in the override clause set forth in section 8 of Basic Law: Freedom of Occupation. Thus, in order for regular legislation that infringes a Basic Law to be constitutionally valid, the Basic Law must contain an express provision to that effect. The fact that the Basic Law is silent in this regard precludes such infringement. The constitutional difference between an entrenched Basic Law and non-entrenched Basic Law is therefore made manifest. Both are Basic Laws. Both occupy the primary normative level. Nonetheless, they are different. The arrangements of an entrenched Basic Law cannot be infringed by regular legislation unless the entrenchment requirements are met. In contrast, the arrangements of a non-entrenched (or silent) Basic Law may be infringed by regular legislation. This distinction between the different Basic Laws will, of course, disappear with the entrenchment of all the Basic Laws, as recommended in the draft of  Basic Law: Legislation.

 

h) Limitation in regular legislation

 

66. What is the rule in regard to a limitation clause included in a “regular” law, under which such law may not be amended or infringed except by regular legislation meeting specified requirements (as to form or content)? For example, what is the rule in regard to s. 3 of the Law for Protection of Public Investment in Israel in Financial Property, 5744-1984? This section provides that ‘this law may not be amended nor may the appendix be revised except by a majority of the Members of Knesset.’ Is there a difference in this context between a limitation that calls for ‘a majority of the Members of Knesset’ and one that calls for ‘a majority of two-thirds of the Members of Knesset’ or of eighty Members of Knesset? The answer to this question highlights the substantive difference between the doctrine of unlimited Knesset supremacy and the doctrine of constituent authority. According to the former doctrine, the Knesset may exercise its unlimited supremacy in order to limit its own legislative authority. In contrast, the doctrine of constituent authority recognizes the Knesset’s power to exercise its constituent authority in order to limit its power.

 

The doctrine of constituent authority does not address the question of whether the Knesset is empowered to exercise its legislative authority in order to limit its future use of this authority. Because this question does not arise in the appeal before us I would like to reserve it for further consideration. I will note only that recognizing that the Knesset may effect such a limitation by means of its constituent authority does not, in and of itself, lead to the conclusion that the Knesset may effect such a limitation by means of its legislative authority. As we have seen, the constitutional limitation prevents today’s majority from changing arrangements adopted in the past. This is justified by the nature of the constitution and the rationale upon which it is based. The constitution deals with the basic issues of governmental structure and human rights. It seeks to prevent their infringement by regular legislation. It treats of the constitutional institutions – the Knesset, government and courts – whose stability must be ensured. It treats of the basic values that society endeavors to secure. A society that seeks a constitution, seeks by means of the constitution to remove certain values from the reach of the “regular” majority (see J. Rawls, Theory of Justice (1983), at p. 228; B. Ackerman, We The People: Foundations (1991), at p. 272). In contrast, recognizing the power of regular legislation to limit itself prevents today’s majority from changing the day-to-day arrangements adopted in the past. Such recognition would require that we consider why one generation should be granted the power to dictate the day-to-day behavior of another generation. Indeed, recognizing the Knesset’s power as a legislative authority to limit its legislative power requires a supporting constitutional doctrine. Because this question has not arisen before us, I would like to reserve it for further consideration.

 

67. In this regard, I would also like to reserve for further consideration the question of whether there is a substantive difference between a limitation requiring a “majority of the Members of Knesset” (an “absolute majority”) and a limitation requiring a greater majority. This distinction stands at the base of my colleague Justice Cheshin’s approach. For myself, I harbor grave doubts that an “absolute majority” requirement is the simple result of a democratic arrangement. According to such a requirement, an abstaining MK is seen as voting no. This abrogates the right to abstain of the MK who is truly not prepared to vote yes or no. This is a most serious abrogation. I question whether it falls within the rubric of the democratic outlook. The MK’s “right” of non-participation is similarly denied, for every non-participation is construed as a vote against. The possibility of a ‘setoff’ between votes for and against is also denied, for the significance of every such setoff arrangement is that both are seen as votes against. All these raise most serious questions. On the surface, the “democratic majority” is a majority of the Members of Knesset actively voting. This is the case in the various parliaments around the world (see Inter-Parliamentary Union, “Methods of Voting,” 32 Constitutional and Parliamentary Information (1982) 179, 203). A change in the voting system requiring a majority of all Members of Knesset (and six Members) on its face calls for justification by a constitutional doctrine. It is not derived from the “voting rules” themselves (see United States v. Baellin [93], at pp. 507, 509). We need not decide this question in this appeal. Our issue is the entrenchment provision of a Basic Law, not the limitation clause of a regular law. I therefore wish to reserve this question for further consideration.

 

i) The Basic Law regarding human rights and regular legislation

 

68. Until this point, I have examined the status of the Basic Laws as such. I will now turn to the two Basic Laws on human rights. Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty were – as their names signify – were enacted by the Knesset under its constituent authority. They therefore occupy the highest normative level. They cannot be amended by regular legislation (either explicitly or implicitly). Can regular legislation infringe the provisions in those laws? The answer is that these two Basic Laws are not silent Basic Laws. They include entrenchment provisions. They provide for an express, detailed scheme as to the power of regular legislation to infringe the arrangement safeguarded by the Basic Laws. This scheme is constitutionally valid, and must be given effect. It is not subject to change or infringement except by Basic Law. This unique scheme is given expression in the two central provisions common to both Basic Laws, the application clause and the limitation clause. The scheme is also expressed in a third provision, the override clause, which appears only in Basic Law: Freedom of Occupation.

 

69. The application clause of Basic Law: Freedom of Occupation provides as follows:

 

All governmental authorities are bound to respect the freedom of occupation of all Israeli nationals and residents’ (s. 5).

 

The parallel provision in Basic Law: Human Dignity and Liberty provides:

 

All governmental authorities are bound to respect the rights under this Basic Law’ (s. 11).

 

Similar provisions appear in other constitutions (see s. 1(3) of the German Basic Law and s. 32(1) of the Canadian Charter of Rights and Freedoms). The application clause applies to all government authorities. It applies to the legislative authority, the executive and the judiciary. It applies to the central and local authorities. It applies to every authority granted power by law. This is a central provision. It declares the direct legal effect of the Basic Laws upon the governmental authorities. It weaves the basic rights into the fabric of all governmental decisions. Above all, it obligates the legislature – one of the governmental authorities – to honor human rights. The “regular” laws are therefore subject to human rights. The regular legislature is not all-powerful. The legislative power given to the legislature is subordinate to its obligation to honor human rights. The application clause breaches the silence of the two Basic Laws as to human rights. It substantively entrenches the clauses of the Basic Law against infringement by regular legislation. It thereby expressly declares that regular legislation must honor human rights, and certainly may not infringe them, except as provided in the Basic Laws themselves. The application clause is not merely declarative. It is a substantive provision that constitutes an important axis upon which the constitutional structure depends. It is similarly expressed in other legal systems (such as Canada and Germany), in which comparable provisions are found.

 

70. The “limitation clause” of Basic Law: Freedom of Occupation provides as follows:

 

There shall be no violation of freedom of occupation except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required, or by regulation enacted by virtue of express authorization in such law (s. 4).

 

A parallel provision appears in Basic Law: Human Dignity and Liberty, as follows:

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required (s. 8).

 

These are the key provisions in both Basic Laws. The limitation clause – as its name indicates – limits both the legislature and human rights. This is a substantive entrenchment provision. Its purpose is twofold: the constitutional protection of human rights while providing the constitutional criteria that permit infringement of human rights. These criteria – set forth in a preeminent constitutional document – provide the means by which the legislature may legally infringe human rights. Expression is thereby given to the normative relationship between Basic Laws and regular legislation. Regular legislation cannot – explicitly or implicitly – infringe the human rights safeguarded by these Basic Laws unless it meets the requirements of the limiting clause. In his analysis of the limitation clause in Basic Law: Human Dignity and Liberty, Dr Maoz notes that this provision takes precedence over all legislation. He adds:

This preference derives not from the legislature’s intention not to infringe the limitation clause, but from the entrenchment – or limitation – in which the constituent authority garbed the limitation clause. In forbidding the legislature to enact a provision infringing the human rights safeguarded by the Basic Law, except in accordance with the conditions set out in the limitation clause, the constituent authority obviously nullified the legislature’s power to do so, be the legislature’s intent what it may (Maoz, ibid., at p. 149)

 

71. The third provision that provides constitutional arrangements as to the relationship between the two Basic Laws and regular legislation is the override clause, which is found only in Basic Law: Freedom of Occupation and provides as follows:

 

A provision of a law that violates freedom of occupation shall be of effect, even though not in accordance with section 4, if it has been included in a law passed by a majority of the members of the Knesset, which expressly states that it shall be of effect, notwithstanding the provisions of this Basic Law; such law shall expire four years from its commencement, unless a shorter duration has been stated therein (s. 8).

 

This provision is unique. It expresses formal entrenchment. It was influenced by a similar provision in the Canadian Charter (s. 33) but includes several important changes. It permits the regular legislature – under certain conditions – to enact a (regular) law infringing the freedom of occupation even if the law does not fulfill the requirements of the limitation clause. The two conditions are as follows: first, the regular law must expressly provide that it has effect notwithstanding the provisions of Basic Law: Freedom of Occupation; and second, the regular law must be enacted by a majority of the Members of Knesset. When these two conditions are met, constitutional validity will be granted to a law that infringes the Basic Law for a period of four years. At the end of that period the law expires. Thus another route is opened – parallel to that provided in the limitation clause – to permit the infringement of a basic right (freedom of occupation). In using its constituent authority, the Knesset thus expressed its view that regular legislation – which does not meet the requirements of the limitation or override clause – may not infringe the freedom of occupation. No similar provision appears in Basic Law: Human Dignity and Liberty. In this respect, the human rights set forth in Basic Law: Human Dignity and Liberty are more strongly protected against the effects of regular legislation than the freedom of occupation.

 

j) Legislation that lawfully infringes a protected human right

 

72. Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation therefore set out the legal status of regular legislation that infringes the human rights safeguarded in the Basic Laws. If a regular law fulfills the entrenchment requirements (formal and substantive) set out in the Basic Law, the regular law is constitutional. This expresses the central idea that human rights – set forth in the Basic Laws in absolute terms – are relative rights. Human dignity, freedom, property, movement, privacy and freedom of occupation are not absolute rights. They are subject to infringement in order to protect the social framework. It should be noted that the constitutionality of the infringement does not make the infringing law part of the constitution. The constitutionality of the infringement does not lower the constitutional status of human rights. The constitutionality of the infringement means that the constitutional human right is subject to infringement by regular legislation if such legislation meets the criteria set forth in the constitution. There is a substantive difference between amendment of the constitutional human right and its infringement. Amendment of the human right constitutes amendment of the constitution, and requires legislation at the same normative level, i.e. by means of a Basic Law. Infringement of a constitutional human right may be accomplished by means of regular legislation that meets the requirements of the constitution. There is no need for a constitutional edict, since the constitutional right itself does not change. Regular legislation is sufficient, as long as it fulfills the parameters set forth in the Basic Law itself.

 

73. The status of regular legislation that infringes a protected human right is therefore different according to each of the two Basic Laws. The right protected in Basic Law: Freedom of Occupation is subject to infringement by two alternative means. First, if the infringing legislation accords with the limitation clause; second, if it is enacted in accordance with the override clause. Regular legislation that does not meet either of these alternatives is unconstitutional and therefore void. Accordingly, regular legislation adopted by a regular majority that infringes freedom of occupation and does not fulfill the requirement of the limitation clause is unconstitutional, even if such a law expressly states that it infringes freedom of occupation. The rights safeguarded in the Basic Law: Human Dignity and Liberty are subject to infringement only by means of the limitation clause. The Basic Law does not provide a second path in the form of an override clause. There is also no possibility of creating a judicial override clause, nor any need to. Therefore, regular legislation – by whatever majority it is enacted – that infringes a human right protected by this Basic Law, that expressly provides that it is adopted ‘notwithstanding the provisions of the Basic Law’ or that it is expressly intended to impinge upon its arrangements, will not be constitutional if it does not meet the requirements of the limitation clause. In the absence of an override clause, there is no means by which this express provision can save the regular law from unconstitutionality. On the contrary, an express provision such as this points up what is in fact the constitutional status of the law, facilitating the judicial determination that the law indeed violates a protected human right.

 

The result, therefore, is that the human rights safeguarded in Basic Law: Human Dignity and Liberty enjoy more comprehensive protection than that afforded freedom of occupation, insofar as the matter concerns infringement by regular legislation. The picture changes when the infringement (or amendment) is based upon a Basic Law. A special majority (‘a majority of the members of the Knesset’) is required in order to amend Basic Law: Freedom of Occupation (s. 7). A regular majority is sufficient to amend the human rights safeguarded in Basic Law: Human Dignity and Liberty. This is, without doubt, anomalous. This may be corrected by Basic Law: Legislation, which will make all of the Basic Laws, and the arrangements safeguarded therein, subject to identical requirements as to amendment or infringement.

 

III) Judicial review of constitutionality

a) Constitutional supremacy and judicial review

 

74. The constitution is the superior norm of the legal system. A regular law may be permitted to conflict with the clauses of the constitution only if it meets the criteria provided in the constitution itself. What is the fate of a law that does not meet these criteria? What is the remedy for an unconstitutional law? (For a discussion of these questions see A. Shapira and B. Bracha, “The Constitutional Status of the Rights of the Individual,” 5 Tel-Aviv University Law Review (Iyyunei Mishpat) (1972) 20, 42). The answer to these questions depends first and foremost upon the provisions of the constitution itself. Often the constitution establishes – and is empowered to establish – the legal sanctions imposed upon an unconstitutional law. Thus, for example, the “Supremacy Clause” of the Canadian Charter of Rights and Freedoms (s.(1)52) invalidates conflicting legislation that does not meet the requirements of the Constitution, as follows:

 

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the clauses of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

Similar provisions are found in many modem constitutions, particularly those of European countries after the First World War. Such provisions proliferated in the constitutions of European countries after the Second World War and the victory over the Nazis. One of the lessons of the Second World War was that constitutional supremacy and judicial review of constitutionality are potent weapons against the enemies of democracy (see E. McWhinney, Judicial Review (1960); M. Cappelletti, Judicial Review in the Contemporary World (1971); M. Cappelletti, The Judicial Process in Comparative Perspective (1989); A. Brewer-Carias, Judicial Review in Comparative Law (1983)).

 

But what is the rule when the constitution is silent in this matter? The answer to this question depends upon the culture and tradition of the legal system. It is determined by the adjudication rule of the particular legal system (see H.L.A. Hart, The Concept of Law, ibid., at p. 96). Thus, for example, it may be recognized – as was the tradition in nineteenth century Europe – that the constitution binds the institutions of the government. However, noncompliance with a constitutional directive does not lead to invalidation of the law, and the Court is not empowered to impose the sanction of voiding such legislation. According to this view, the obligation to ensure compliance with the constitution rests with the government institutions themselves, and if they violate this obligation, the sanctions are in the hands of the public on election day (see Akzin, II The Doctrine of Governments, ibid., at p. 9). But this is not the only view, nor is it the most widely held. Today this is the minority view. Indeed, a particular legal tradition and culture are likely to lead to the conclusion that constitutional silence in this matter should be interpreted as calling for the invalidation of conflicting legislation and to the concomitant conclusion that the determination of whether such a conflict exists rests not with the legislature but with the court. Under this view, constitutional silence requires judicial review and authorizes the court to declare unconstitutional legislation void. We will now examine this tradition.

 

b) The case of Marbury v. Madison

 

75. The American legal tradition – since the 1803 decision in Marbury v. Madison [94] – is that a statute that conflicts with the clauses of the constitution is void, and any court is empowered so to declare. The United States Supreme Court reached this conclusion despite the absence of an express provision to that effect in the Constitution of the United States. Justice Marshall wrote:

 

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

 

Indeed, the constitution is intended to limit the legislature. This limitation is meaningful only if a regular law cannot prevail over the constitution. There is no middle ground: either the constitution is supreme and may not be amended by regular means, or it has the same status as a regular law, which the legislature may change at its whim. Justice Marshall added:

 

If an act of the legislature, repugnant to the Constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? ... It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the Constitution; if both the law and Constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

 

Since that decision, it is beyond doubt in the United States that legislation conflicting with the Constitution is void, and it is the role of the court – in interpreting the Constitution and the law – to determine the existence of a conflict, as well as its consequences. Thus arises the doctrine of the judicial review of constitutionality. This doctrine is a cornerstone of the American constitutional system. Remove it and the entire structure collapses.

 

c) Judicial review of constitutionality – the modern experience

 

76. The American experience with judicial review of constitutionality has spread well beyond that country. That experience has influenced constitutional thinking throughout the entire world. It has dominated the various constitutional systems established since the Second World War. It has been accepted as the guideline in all of the Eastern Bloc states since the liberation from Soviet control (see Schwartz, “The New East European Constitutional Courts,” 13 Mich. J. Int. L. (1992) 741). This may be the central contribution of American constitutional thought to constitutional thinking throughout the world.

 

As we have seen, express provisions in this regard appear in the constitutions that have been adopted by many states after the Second World War (see, e.g., the constitutions of Germany, Japan, Italy, Ireland, Austria, Cyprus, India, and Turkey). Even in states whose constitutions do not include express provisions in this regard – and that are part of the common law legal culture – the view has become accepted that an unconstitutional law is invalid, and the court is empowered so to decree (see, e.g., Cowen, “Legislature and Judiciary,” 15 Mod. L. Rev. (1952) 282; 16 Mod. L. Rev. (1953) 273). An increasing number of states have recognized the judicial review of constitutionality. Justice Frankfurter justly noted that the conclusion reached by the American Supreme Court in the Marbury case [94]:

 

[H]as been deemed by great English speaking courts an indispensable, implied characteristic of a written Constitution’ (F. Frankfurter, “John Marshall and the Judicial Function,” 69 Harv. L. Rev. (1955) 217, 219).

 

Indeed, a long list of judicial decisions throughout the common-law world has recognized – in the absence of an express constitutional provision – judicial review of constitutionality (see, e.g., Harris v. Minister of Interior [111]; Clayton v. Heffron [82]; Bribery Commissioner v. Ranasinghe [104]; Akar v. Attorney-General of Sierra Leone [105]. See Rubinstein, The Constitutional Law of the State of Israel (annotated second edition, 1974), at p. 281).

 

d) Judicial review of constitutionality in Israel

 

77. Basic Law: Freedom of Occupation and Basic Law: Human Dignity and Liberty do not explicitly address the consequences of a law that infringes a constitutionally protected right and does not comply with the requirements of the Basic Laws. The proposed Basic Law: Legislation includes general provisions in this regard. That proposal, however, has not yet completed the legislative process in the Knesset. The two Basic Laws contain no ‘supremacy clause.’ What is the law in such a situation? It seems to me that our legal tradition requires us to conclude that the remedy for an unconstitutional law is its invalidation, and that the courts have been endowed with the authority to declare it invalid. Just as a regulation that conflicts with statute is void and may be declared as such by the court, so too should be the case when a regular law conflicts with a Basic Law; the law is void and the court is empowered to declare it so.

 

Important judicial developments have led to the recognition of this conclusion in Israel. The question arose first in the case of Bergman v. Minister of Finance [15]. The court noted that it would leave for future consideration the determination of whether or not the relationship between an entrenched Basic Law and a conflicting regular law that did not meet the entrenchment requirements was a justiciable question. Over the years a number of decisions were handed down, the majority of which effectively voided regular laws that did not meet the entrenchment provisions of a Basic Law. As time passed, this tradition became established (see Derech Eretz Association v. Broadcasting Authority [19]; Rubinstein v. Knesset Speaker [20]). In the Rubinstein case [20], Justice S. Levin noted:

As the number of instances increases in which the court is asked to decide issues of constitutional significance of this nature, so does the likelihood decrease that the court will stay its hand from deciding them, particularly when the Attorney-General will in the future raise similar questions (p. 148).

 

As I noted in a previous case:

In seeking to amend an “entrenched” provision without having been adopted by the necessary majority of Members of Knesset, a law of the Knesset – whether a “regular” law or a Basic Law – contradicts the entrenchment provisions of the Basic Law. In view of its legal force the “entrenchment” provision will prevail. In a clash between the entrenchment provision and the clause that purports to amend it without meeting the necessary majority requirements, we do not apply the usual principles, according to which a later-enacted statute invalidates an earlier statute. In this conflict we apply the principle that grants normative supremacy to the entrenched Basic Law. We find that legislation that seeks to change an entrenched Basic Law without meeting the necessary majority is null and void. The court is empowered to declare such nullity. Indeed, the very inclusion of an entrenchment provision calls for the court, as an independent institution, to review the legal validity of legislation that purports to amend an entrenchment provision without meeting the special majority requirement… The existence of an entrenchment provision implies that there will be judicial review, and that the court is therefore empowered to determine that a statutory provision – whether set forth in a “regular” or a Basic Law – when enacted by a “regular” majority and not that set forth in the entrenchment provision, is null and void. The court has decided according to this view in the past’ (Laor Movement case [21], at pp. 539-540).

 

This approach accords with our tradition. It is consistent with our general legal culture. It is accepted in the Israeli community (see Rubinstein, ibid., at p. 461; see also Burt, ‘Inventing Judicial Review: Israel and America,’ 10 Cardozo L. Rev. (1989) 2013). It is required by the application clause included in both Basic Laws. Indeed, if the Knesset is ‘required to respect the rights under this Basic Law’ (as stated in s. 11 of Basic Law: Human Dignity and Liberty), then this is not merely a ‘political’ obligation of the Knesset but also a ‘legal’ obligation. If this is so, then it is necessary that some body other than the Knesset – i.e. the Court – determine whether in fact the rights set forth in the Basic Law have been honored.

 

e) The rationale for judicial review of constitutionality

(i) Judicial review and the rule of law

 

78. The doctrine of judicial review of constitutionality is based upon the ‘rule of law,’ or, more correctly, the rule of the constitution or the law (see L. Sheleff, “The Two Meanings of ‘The Rule of Law’,” 16 Tel-Aviv University Law Review (Iyyunei Mishpat) (1991) 559). The central role of the court in a democratic society is ‘to protect the rule of law. This means, inter alia, that it must enforce the law in the institutions of the government, and it must ensure that the government acts according to the law’ (Ressler v. Chairman of Knesset Central Elections Committee [14], at p. 462). When a given legal system includes a constitution, the “rule of law” requires that the sovereignty of the constitution be protected. Thus the Knesset, in using its constituent authority, endowed the State with Basic Laws. In the normative hierarchy, the Basic Laws are paramount. In order to fulfill the Knesset’s directives, regular legislation that conflicts with a Basic Law must be invalidated, in the same way that a regulation that conflicts with law is invalidated. In presenting the proposed Basic Law: Legislation for a first reading, the Justice Minister, Mr Zadok, maintained as follows:

I agree that the Knesset must be given broad latitude and room to maneuver in its legislative work, but this sovereignty should not be interpreted to permit arbitrariness as to basic principles. It seems to me that the doctrine of the rule of law, which we all espouse, means that everyone is subject to the law: the Government, governmental agencies, the President, the State Comptroller, and the Knesset as well. Just as the other state institutions operate within a limited framework of authority, such a framework, albeit broader, must be established for the Knesset’s legislation (Knesset Proceedings, vol. 76, at p. 1705).

 

Thus, in declaring invalid a law that does not meet the requirements of the Basic Law, the court fulfills the Basic Law. The constitution and the Basic Law themselves legitimize the judicial review of constitutionality. As MK Menahem Begin described it during the debate on the constitution in the First Knesset:

One of the two: either it will be a constitution that is superior to all other law, or it will be a worthless piece of paper (Knesset Proceedings, vol. 4, at p. 737).

 

Thus, judicial review of the constitutionality of the law is the soul of the constitution itself. Strip the constitution of judicial review and you have removed its very life. The primacy of the constitution therefore requires judicial review. As Professor Kelsen has noted:

The application of the constitutional rules concerning legislation can be effectively guaranteed only if an organ other than the legislative body is entrusted with the task of testing whether a law is constitutional...(H. Kelsen, General Theory of Law and State, Wedberg, trans. (1961), at p. 157).

 

(ii) Judicial review and the separation of powers

 

79. Judicial review of the constitutionality of the law derives from the principle of separation of powers. The legislature’s authority is to enact laws. In order to do so it is authorized to interpret the constitution itself. When the resolution of a dispute between litigants requires interpretation of the constitution, such interpretation is in the hands of the Court. The Court’s interpretation is binding. Within the framework of the separation of powers, interpretation of the constitution is the responsibility of the Court (see Flatto-Sharon v. Knesset House Committee [2], at p. 141). As I noted in a different case:

 

In a democratic system, based upon the separation of powers, the authority to interpret all legislation – from Basic Laws to regulations and regulatory orders – is the province of the Court ... Any other approach violates the essence of judicial power and utterly distorts the principle of the separation of powers and the checks and balances between them’ (See Kach Faction v. Knesset Speaker [49], at p. 152).

 

Thus, judicial review of constitutionality both derives from and gives expression to the principle of separation of powers. As Chief Justice Burger noted:

 

In the performance of assigned constitutional duties each branch of the Government must initially interpret the Constitution .... Many decisions of this Court, however, have unequivocally reaffirmed the holding of Marbury v. Madison ... That [it] is emphatically the province and duty of the judicial department to say what the law is ... Any other conclusion would be contrary to the basic concept of powers and the checks and balances that flow from the scheme of a tripartite government (see United States v. Nixon [95], at pp. 703-704).
 

The Court’s constitutionally mandated role of interpreting the constitution leads to the adjudication of disputes according to the constitution. Adjudication according to the constitution, rather than according to the law, can incidentally lead to the invalidation of a law. This invalidation is not a violation of the separation of powers, but rather its realization. Indeed ‘separation of powers does not mean the absolutism of each power in its own area. Such absolutism violates freedom, the realization of which is the very basis for the separation of powers’ (HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [50], at p. 790). The creation of the constitution in accordance with constituent authority requires a concurrent grant of interpretive authority to the judicial branch. To judge means to interpret. Constitutional interpretation must naturally and inevitably result in the determination that a law in conflict with the constitution is invalid. This is the role of the judicial branch in a tripartite system.

 

(iii) Judicial review and democracy

 

80. But is judicial review democratic? Is it democratic that the court –whose judges do not stand for election by the people and do not present a social and political platform – be empowered to invalidate a law enacted by elected officials? (For a discussion of this question in the American literature, see Lahav, “The American Doctrine of Judicial Review: Themes and Variations,” 10 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 491; Horowitz, “American Legal Thought After World War II – 1945-1960,” 16 Tel-Aviv University Law Review (Iyyunei Mishpat) (1991) 445, 452). The formal answer is simple. The court, in its judicial review of the constitutionality of law, gives effect to the constitution and the Basic Law. Hamilton addressed this point over two hundred years ago (in The Federalist No. 78) in discussing the judicial review of constitutionality in relation to the constitution itself:

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both, and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws rather than by those which are not fundamental (Hamilton and Madison et al., The Federalist Papers (1788; Mentor ed. 1961) 467-468).

 

In a similar spirit, Rawls stated the following:

 

A supreme court fits into this idea of dualist constitutional democracy as one of the institutional devices to protect the higher law. By applying public reason the court is to prevent that law from being eroded by the legislation of transient majorities, or more likely, by organized and well-situated narrow interests skilled at getting their way. If the court assumes this role and effectively carries it out, it is incorrect to say that it is straight-forwardly antidemocratic. It is indeed anti-majoritarian with respect to ordinary law, for a court with judicial review can hold such law unconstitutional. Nevertheless, the higher authority of the people supports that. The court is not anti-majoritarian with respect to higher law when its decisions reasonably accord with the constitution itself and with its amendments and politically mandated interpretations (J. Rawls, Political Liberalism, (1993), supra, at p. 233).

 

However, a formal answer alone is not sufficient. There is a substantive answer as well. The substantive answer is that the judicial review of constitutionality is the very essence of democracy, for democracy does not only connote the rule of the majority. Democracy also means the rule of basic values and human rights as expressed in the constitution. Democracy strikes a delicate balance between majority rule and the basic values of society. Indeed democracy does not mean formal democracy alone, which is concerned with the electoral process in which the majority rules. Democracy also means substantive democracy, which is concerned with the defense of human rights in particular (see Y. Shapira, Democracy in Israel (1977), at p. 35). Professor A. Rubinstein has addressed this matter, noting:

 

The true meaning of democracy includes not only the principle of the will of the majority but also the limitation of the will of the majority. The constant tension between these two poles – the power of the majority and its limitations – is the axis of the democratic process. It may prefer a minority or the individual, as such, to the majority in granting certain rights.(A. Rubinstein, “Israeli Law in the Seventies,” 2 Tel-Aviv University Law Review (Iyyunei Mishpat) (1972) 271, 274).

 

In a similar vein, Professor Dworkin has noted:

 

True democracy is not just statistical democracy, in which anything a majority or plurality wants is legitimate for that reason, but communal democracy, in which majority decision is legitimate only if it is a majority within a community of equals. That means not only that everyone must be allowed to participate in politics as an equal, through the vote and through freedom of speech and protest, but that political decisions must treat everyone with equal concern and respect, that each individual person must be guaranteed fundamental civil and political rights no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life (R. Dworkin, A Bill of Rights for Britain, supra, at p. 35).

 

In fact when the majority strips the minority of its human rights, democracy is infringed (see J. Ely, Democracy and Distrust, A Theory of Judicial Review, (Cambridge 1980)). Judicial review of constitutionality therefore prevails over what is known as the ‘counter-majoritarian dilemma.’ One way to accomplish this is by emphasizing that when judges interpret the constitution and invalidate contradictory laws they give expression to the fundamental values of society that have developed over time. Thus the court safeguards constitutional democracy and maintains the delicate balance upon which it is based. Remove majority rule from constitutional democracy and its essence is harmed. Remove the sovereignty of fundamental values from constitutional democracy and its very existence is called into question. Judicial review of constitutionality enables a society to be true to itself and to honor its basic conceptions. This is the basis for the substantive legitimacy of judicial review. This is also the true basis for the principle of constitutionality itself. We are bound by the constitution that was enacted in the past because it expresses the fundamental outlook of modem society. It may therefore be said that each generation enacts the constitution anew. By means of judicial review we are loyal to the fundamental values that we took upon ourselves in the past, that reflect our essence in the present, and that will direct our national development as a society in the future.

 

It is therefore no wonder that judicial review has become more common. The majority of enlightened democratic states have judicial review. It is difficult to imagine the United States, Canada, Germany, Japan, Spain, Italy, and many other nations without judicial review of constitutionality. The twentieth century is the century of judicial review. It imparts real meaning to the principle of constitutionality, to constitutional democracy and to the proper balance between majority rule and human rights, between the collective and the individual. It may be said that whoever argues that judicial review is undemocratic is in effect arguing that the constitution itself is undemocratic. To maintain that judicial review is undemocratic is to maintain that safeguarding human rights is undemocratic. To maintain that judicial review is undemocratic is to maintain that defending the rights of the individual against the majority is undemocratic. The democratic nature of the state is not determined by the representative nature of each of its branches but rather by the democratic nature of the government as a whole. In examining the democratic aspect of judicial review, it must be noted that every constitution provides for methods by which it may be amended. As long as these methods are not rigid they allow today’s majority to realize its aspirations. The methods by which a constitution may be amended reflect the balance that the society wishes to maintain between past and present, between long-term values and short-term aspirations, between value and policy. These methods are set forth in the constitution itself and are shaped by political forces. To the extent that these methods are not unduly rigid, they allow today’s majority to express its perceptions and thereby blunt the argument that bases itself on the formal conception of democracy.

 

This argument is further weakened – in effect to its very core – in those legal systems (such as Canada and to a limited extent Israel) that include an override clause. Indeed the override clause (s. 8 of Basic Law: Freedom of Occupation) provides a constitutional means by which today’s political majority may lawfully infringe the constitution. This is not a constitutional amendment, for legislation that infringes the constitution does not change the latter’s provisions. Nevertheless, a constitutional apparatus is created that allows today’s majority to realize its aspirations in a constitutional manner even as it affects values and rights that the constitution wishes to protect (see L.E. Weinrib, “Learning to Live with the Override,” 35 McGill L. J. (1990) 541). Through the override clause, the legal system may prevail over the democratic argument which enables formal democracy to prevail in certain conditions over substantive democracy. Excessive use of this method will, of course, ultimately result in the frustration of the constitutional enterprise itself.

 

(iv) Judicial review and judicial objectivity

 

81. Judicial review expresses the values of the constitution. By means of judicial review the judge makes manifest the ideals of the society in which he lives. He expresses the fundamental conceptions of society as it moves through the shifting sands of history. The judge in particular, who does not face election and who benefits from judicial independence, is worthy of this task. It is precisely because the judge is not elected by the people and does not present them with a social and political platform that  qualifies him express society’s profoundest perceptions without being influenced by the needs of the moment. For this purpose he must operate with judicial objectivity. He must express the outlook of society even if it is not his personal outlook. As I have noted in a previous decision:

 

The judge must reflect the long-term beliefs of society. He must avoid imposing on society his private creed .... This requirement for objectivity places a heavy burden upon the judge. He must be able to distinguish between his personal view of the ideal and the present day reality of society. He must establish a clear division between his personal beliefs and his judicial perceptions. He must recognize that his personal beliefs may not be those of society at large. He must distinguish clearly between his personal credo and that of the nation. He must be self-critical and restrained in his views. He must respect the shackles that bind him as a judge (Efrat v. Director of Population Register, Ministry of Interior [51], at pp. 781-782).

 

Declaring a law unconstitutional is a serious matter. Such a declaration would seem to undermine the will of today’s majority. It may be justified by the supremacy of the constitution and its values. The justification applies when the judiciary gives expression to the values of society as they are understood by the culture and tradition of the people as it moves forward through history. This justification does not, however, operate when the judge expresses his subjective beliefs. Indeed, judicial objectivity is part and parcel of the basis of judicial review of constitutionality. In granting weight to different considerations, the judge aspires to the best of his ability to achieve judicial objectivity. He reflects neither his personal values nor his personal considerations. The judge reflects ‘the values of the State of Israel as a Jewish and democratic state’ (Eisenberg v. Minister of Building and Housing [52]). Indeed, this extremely difficult task can be achieved only by the professional judge, who has absorbed through years of experience the need to guarantee judicial objectivity, and enjoys total independence. As I noted in a previous case:

 

A professional judge is qualified to shoulder this burden. His education, his experience, and the judicial culture of his time internalize the values of independence and the ability to distinguish between personal views and the requirements of his position. None more than the professional judge is mindful of the limitations placed on him in a democratic society. “Do you imagine that I offer you rulership? It is servitude that I have offered you”‘ (Talmud Horayoth 10a-b (Efrat, supra, at p. 782)).

 

This charge may be undertaken only by a judge, whose outlook is that ‘judging is not a task but a way of life’ (HCJ 732/84 Tzaban v. Minister of Religious Affairs [53], at p. 148). It may be undertaken only by a judge, whose entire education brings him to abstract thought, which is based upon reason and not power, the weight of the claim and not the identity of the claimant. Only a judge, who daily experiences the tension between abstract principle and its operation in the mundane life of the litigant before him, may accomplish this difficult task. All of these require an independent judiciary, which develops from the people and reflects the basic social consensus, but does not stand for election every few years, as do Members of Knesset (see M. Perry, Morality, Politics and Law, (1988), at p. 147). In a similar vein, Professor Bickel has stated:

 

When the pressure for immediate results is strong enough and emotions ride high enough [legislators] will ordinarily prefer to act on expediency rather than take the long view ... Not merely respect for the rule of established principles but the creative establishment and renewal of a coherent body of principled rules – that is what our legislators have proven themselves ill equipped to give us. Judges have, or should have, the leisure, the training and the insulation to follow the ways of the scholar in pursuing the ends of government. This is crucial in sorting out the enduring values of a society ... [The court can] appeal to men’s better natures, to call forth their aspirations, which may have been forgotten in the moment’s hue and cry (A. Bickel, The Least Dangerous Branch, (1962), at pp. 24-26).

 

Indeed the judge neither wields a sword not controls the purse strings. All he has is his independence. His daily bread is none other than the basic values, which he balances objectively. He does not seek power, nor does he crave to rule. He does not seek to impose his personal views on society. He wishes only to do justice in the case before him and to adjudicate each case justly.

 

Since the establishment of the State of Israel, the High Court of Justice has stood – and with it the entire community of Israel – as the bastion of Israeli democracy. The words of Justice Berinson are well known: ‘the court is the most secure and objective refuge that the citizen has in his dispute with the establishment’ (HCJ 287/69 Miron v. Minister of Labour [54], at p. 362). This role was enhanced with the enactment of the Basic Laws regarding human rights. Additional bulwarks have been erected to protect these human rights. The court has been entrusted with the constitutional task of guarding the basic tenets and fundamental values of Israeli society as they are expressed in the Basic Laws (see Wellington, “Standards: Some Common Law Rules and Constitutional Double Notes on Adjudication,” 83 Yale L. J. (1973-74) 221). It must balance between the basic values of Israeli society (as they are expressed in the Basic Laws) and the short-term needs of day-to-day life (as they are expressed in regular legislation). It is entrusted with the task of ‘exposing the basic values while rejecting the temporary and transient’ (Efrat, supra, at p. 780).

 

f) Judicial review of constitutionality – Summary

 

82. Neither Basic Law: Freedom of Occupation nor Basic Law: Human Dignity includes an express provision – in the guise of a supremacy clause – addressing the fate of a law that infringes a protected human right without fulfilling the requirements of the Basic Law. This silence – against the background of the recognition, limitation and override clauses – calls into play the basic principles of Israeli law as to the relationship between superior and subordinate norms. These principles include the tenet that the superior norm reigns (lex superior derogat inferior). The court is competent to declare the contradicting norm void. In this manner the court gives expression to the ideals of democracy and the separation of powers. Indeed if the constitution itself is democratic, then judicial review is democratic.

 

On this basis we can now proceed to Basic Law: Human Dignity and Liberty, which serves as a superior norm, in light of which we will examine the provisions of the Family Agricultural Sector (Arrangements) (Amendment) Law, 5753-1993.

 

C. The Basic Law and the constitutional test derived therefrom

I)  Stages of the constitutional analysis

 

83. Basic Law: Human Dignity and Liberty defines human rights and sets out the limitations imposed upon them. The rights are defined in absolute terms (‘There shall be no violation of the life, body or dignity of any person’; ‘There shall be no violation of the property of a person’; ‘There shall be no deprivation or restriction of the liberty of a person’). The limitations imposed do not attach to the rights themselves, but rather are derived from the limitation clause. When a judge encounters a claim that legislation contravenes the directives of the Basic Law, he must conduct a three-phase examination: first, he must determine whether the law indeed infringes a protected human right. In order to do so, the judge must interpret the basic right on the one hand (constitutional interpretation), and the legislation on the other hand (statutory interpretation). The level of proof required is that required in a civil trial, i.e. a preponderance of the evidence or the balance of probability. If the judge concludes that the regular law indeed infringes the basic right, he must move on to the second stage of the examination. He must determine whether infringement of the basic right is lawful, i.e. whether the statute meets the requirements of the limitation clause. Here as well, the level of proof required is that required in a civil trial, i.e. a preponderance of the evidence or  the balance of probability (see R. v. Oakes [114], at p. 137). In order to meet this burden it is sometimes necessary to present a factual basis supporting constitutionality of the law. In some cases, common sense and life experience are sufficient in order to persuade the Court that the infringing law meets the requirements of the limitation clause. If the judge concludes that the infringing law does not meet the requirements of the limitation clause, he must then proceed to the third stage of the examination. In this phase the court examines the constitutional remedy. It goes without saying that human rights not safeguarded by Basic Law enjoy the same status accorded them before enactment of the Basic Laws. That certain human rights are anchored in a Basic Law does not detract from the force of the other human rights.

 

II) Burden of proof

 

84. Who bears the burden of proof in the three phases of the constitutional examination? There is no dispute that in the first phase – on which infringement of the constitutional human right is based – the burden of proof is borne by the party claiming injury to a constitutional right. A law is presumed to be constitutional (see HCJ 98/69 Bergman v Minister of Finance, supra, at p. 699), and the party who seeks to rebut this presumption bears the burden of proof. The question arises as to the second phase, which examines the constitutionality of the injury to the constitutional human right. It is commonly accepted that in this phase the burden of proof rests upon the party claiming that the injury was constitutional. This is the rule in Canada (see Hogg, Constitutional Law of Canada (3rd ed., 1992)) and New Zealand (see P. Joseph, Constitutional and Administrative Law in New Zealand (1993) at p. 861). The first decision of the constitutional court of South Africa adopted this view as to the infringement of human rights safeguarded in the new constitution of South Africa (see S. v. Mekwanyana [112]). This approach was adopted in the opinion of Justice D. Levin in the Clal case (HCJ 726/94, Clal Insurance Co. Ltd v. Minister of Finance [37], supra). On its face, this approach seems to me to be correct. It shifts the burden to the party that should and can bear it – the government. At the same time, this question does not arise in this appeal, and I am therefore prepared to reserve it for further consideration.

 

III) Constitutional examination and the old rule

 

85. The three phases of constitutional examination apply only to legislation enacted after the adoption of Basic Law: Human Dignity and Liberty. The old law is protected under the validity of laws clause, according to which:

This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law (s. 10).

 

Although the effect of the old law has been preserved, it must be interpreted in the spirit of the provisions of the Basic Law (cf. Section 10 of Basic Law: Freedom of Occupation; see also CrimApp 537/95 Ganimat v. State of Israel [38], supra). The validity of laws clause does not preclude the violation of any constitutional right. Neither does it provide that infringement of the Basic Law fulfills the requirements of the limitation clause. The clause does provide a constitutional umbrella for legislation that infringes the Basic Law without fulfilling the requirements of the limitation clause. This clause raises difficult questions. One of them is whether the clause applies to a new law (enacted after the Basic Law came into force) that amends an old law (in effect when the Basic Law came into force). This issue has been discussed extensively by my colleague President Shamgar and I agree with his analysis.

 

II) The first phase: the scope of the right and its infringement

a) The scope of the right

 

86. The scope of a right is determined by its interpretation. This is constitutional interpretation. It is sensitive to the unique character of the document under examination: indeed ‘it is a Constitution we are expounding’ (see McCulloch v. Maryland [96], at p. 407). ‘The interpretation of a regular provision is not the same as the interpretation of a basic constitutional provision’ (EA 2/84 Neiman v. Chairman of Central Elections Committee for Eleventh Knesset [8], at p. 306). The constitution is interpreted in accordance with the constitutional purpose. The constitutional interpretation must be made ‘from a “broad perspective”‘ (President Agranat in FH 13/60 Attorney-General v. Matana [25], at p. 442). The constitutional purpose may be discerned from language, history, culture and basic principles. A constitutional provision is not enacted in a vacuum and it does not develop in a constitutional incubator. It constitutes part of life itself. Justice Dickson noted as follows:

 

The purpose of the right of freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and, where applicable, to the meaning and purpose of other specific rights and freedoms with which it is associated within the text of the Charter. The interpretation should be ... a generous, rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for the individuals the full benefit of the Charter’s protection. At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic, philosophic and historical contexts (R. v. Big M Drug Mart Ltd [115], at p. 344).

 

Interpretation from a broad perspective is flexible rather than technical; it is substantive and to the point, rather than legalistic or pedantic (see Australian National Airways Pty Ltd v. The Commonwealth [83], at p. 81; Minister of Home Affairs v. Fisher [106], at p. 329). In the following case I discussed interpretation of a human right when it is given constitutional protection in a Basic Law:

 

Now that is has been given a constitutionally enacted basis, it must be interpreted from a “broad perspective” ... “and with the understanding that we are dealing with a directive that dictates a way of life ... we are dealing with human experience, which must suit itself to a changing reality... Therefore the constitutional directive must be interpreted “from a broad perspective” and not in a technical manner ... Hence arises the approach – accepted in enlightened democratic states – that constitutional directives must be interpreted “generously” ... from a “substantive” rather than a “legalistic” approach ... through an approach that treats of the specific issue rather than by a “technical” or “pedantic” approach… (HCJ 2481/93 Dayan v. Wilk [55], at p. 470).

 

In a similar spirit, Justice Strasberg-Cohen noted as follows:

 

The interpretation of a constitutional text must be undertaken from a “broad perspective” and “generously.” The approach should not be technical, “legalistic” or “pedantic”‘ (HCJ 1255/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications  [45], supra).

 

Indeed, constitutional interpretation must be based upon constitutional unity, and not upon constitutional disharmony. It reflects the role of the constitutional text in the structure of government and society. It endows it with the meaning that enables it to fulfill its role in the present and future in the most suitable manner (see HCJ 428/86 Barzilai v. Government of Israel [9], at p. 595).

 

b) The right to property

 

87. It is in light of this view of interpretation that we must approach the analysis of the constitutional right to property. This right is set forth in s. 3 of the Basic Law: Human Dignity and Liberty, which provides ‘[t]here shall be no violation of the property of a person.’

 

The right to property is thereby given constitutional status. This is an important right. ‘The right to property is the cornerstone of the liberal system. It occupies a central place in liberal ideology, as security for the existence of other rights’ (Lahav, “The Power and the Dominion: The Supreme Court in the First Decade of its Existence,” 14 Tel-Aviv University Law Review (Iyyunei Mishpat) (1989) 479, 498).

 

Nonetheless, the right to property – like the other rights set forth in the Basic Law – is not absolute. It may be infringed, so long as the infringing law fulfills the requirements of the limitation clause. Indeed, property has a “role” in both the private and public spheres. The Basic Law does not define ‘property.’ It is incumbent upon the Court to interpret this right according to its purpose (see Weisman, “Constitutional Protection for Property,” (1995), 42 HaPraklit 8). The word “property” has different meanings, depending upon the context in which it appears. It seems that in the constitutional realm, the basis of the right is the protection of possessions. Property is every interest that has a financial value. Thus property refers not only to “property rights” (in the sense accorded to them under private law – for example, ownership, leasing and easements) but also obligations and rights with property values acquired by public law. ‘The property referred to in the Basic Law is interpreted to include rights that are not property rights in the classic sense’ (Justice M. Cheshin in HCJ 7112/93 Tzudler v. Yosef [30]). Indeed, the right to property guarantees the individual financial freedom. It enables interpersonal cooperation. It enables a person to exercise the autonomy of his personal will. Hence the connection between the protection of property and the protection of human dignity (see J. Rawls, Political Liberalism, (1993), at p. 298). It follows that, in general, expropriation infringes property rights. Just compensation does not remove the infringement but it is likely to be constitutional if it fulfills the conditions of the limitation clause. And I note: the constitutional prohibition applies to the infringement of property. Every infringement violates the prohibition, and shifts the constitutional review to the limitation clause. At the same time, when the infringement of property is incidental or minor – if it can be classified as de minimis – then it will not be regarded as an infringement and there is no need to embark upon the constitutional review of the second phase (cf. Jones v. The Queen [116]). Theoretically it can be said that the right to property is infringed when the property value of an interest is less than its value before the legislation. At the same time, the regular day-to-day activities of the government may influence the value of an individual’s property. Should such activities be viewed as an infringement of property rights, calling for constitutional review under the limitation clause, or should their categorization as an infringement be precluded? We will deal with these questions in the future. I would therefore like to leave for further consideration the “siting” of the discussion that my colleague President Shamgar conducts regarding the enactment of the tax, and whether it ought to be included in the definition of the term “infringement.”

 

88. Determining the scope of the freedom of property is an important task imposed upon the judicial authority. In fulfilling this task it is, of course, appropriate to turn to comparative law. In this matter, a threefold “warning notice” is required. First, the constitutional structures of the various countries differ from one another. The structure of a constitution influences its interpretation. Thus, for example, the constitution of the United States does not protect property in the same way as does our Basic Law. The constitutional structure of the right to property in the American constitution arises from the prohibition against taking without just compensation, and applies to various arrangements that are not related to taking. Similarly the American system lacks an express limitation clause. This makes development of full protection of property difficult in the United States and complicates the constitutional law (B. Ackerman, Private Property and the Constitution, (1977), at pp. 3, 113, 189; Sax, “Takings and the Police Power,” 74 Yale L.J. (1964) 36). Second, the scope of the constitutional right is derived from society’s understanding of its importance. Thus, for example, in the United States – for a variety of historical reasons – constitutional protection of property has been given a relatively low status. Justice Frankfurter discussed this as follows:

 

Those Liberties of the individual which history has attested as the indispensable conditions of an open as against a closed society come to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements’ (Kovacs v. Cooper [97], at p. 95).

 

In contrast, the German system endows this right with primary status. It is viewed as a central right (see D.P. Currie, The Constitution of the Republic of Germany, (1944), at p. 290). In France, the constitutional right to property is safeguarded in the Declaration on the Rights of Man and Citizen of 1789 (s. 17). French constitutional rhetoric endows this right with great social value. In practice, however, significant infringements are permitted (see J. Bell, French Constitutional Law, (1992), at p. 176). Third, the status of the right, and the balance between the right and the general good is determined, inter alia, by society’s attitude toward the national interest and by the status of the State and the government. The American approach in this regard is unlike the French approach. And both the American and the French approaches differ from that of Israeli society. We see in the State the fulfillment of the dream of generations. Our attitude towards the State is not negative. We do not fear the State. Yet we must ensure that the State does not harm the individual. The balance between individual and community therefore reflects the unique outlook of Israeli society. Great caution is therefore required in considering comparative law in this particular area. However, comparative law is of great importance. It reveals the possibilities concealed in the text. It sheds light upon the arrangements accepted in constitutional democracies. It gives the judge confidence that his interpretation is accepted and functions well in other places. Nonetheless, we must be careful not to transform the servant into a master. We must not enslave ourselves to comparative law. Its strength is in its ability to inspire, and this power is limited. Indeed, we must bear in mind the social and cultural differences between the various communities. We must consider the unique history of the legal system and the different emphases given to particular issues. The words of Justice Holmes in this regard are apt: ‘A page of history is worth a volume of logic’ (New York Trust Co. v. Fisher [98], at p. 349). This is especially so when discussing protection of property, an issue that in most legal systems is immersed in history and social change. Thus, the uniqueness of the right of property in the Israeli constitutional fabric must be determined according to its place in the system of human rights in Israel.

 

 

III) The second phase: the limitation clause

a) The importance of the clause and the relativity of the human right

 

89. The limitation clause (s. 8) of the Basic Law: Human Dignity and Liberty is a key ingredient in the protection of human rights. It delineates the limits of the right and the limitations upon the legislature. The role of the limitation is twofold. It protects human rights and licenses their infringement, at one and the same time. It expresses the notion of the relativity of human rights. It reflects the basic outlook that human rights exist in a social context that maintains them. It mirrors the underlying view that human rights do not view the individual as an island, but as part of a society with national goals. It is the product of the recognition that while basic human rights must be realized, the national framework must be protected as well. It is intended to permit infringement of human rights in order to maintain the social framework that itself protects human rights. Indeed, the constitutional right and its lawful infringement emanate from the same source (R. v. Oakes [114], at p. 135). Both the constitutional right and its limitation are subject to the same basic principle underlying Basic Law: Human Dignity and Freedom (s. 1) and its purposes (ss. 1A and 2). The limitation clause provides the foundation for the constitutional balance between private and public, individual and community. It reflects the viewpoint that alongside human rights there are human obligations; that the normative world is not only one of rights but also of obligations; that alongside each right of a human being stands his duty to the community.

 

b) The elements of the limitation clause

 

90. The limitation clause provides four cumulative tests that determine the constitutionality of a law that violates a constitutional human right. The four tests are as follows:

(a) the infringement is made by law or in accordance with law and by means of an express authorization;

(b) the infringing law must be consistent with the values of the State of Israel;

(c) the infringing law must be intended for a proper purpose;

(d) the law may infringe the human right to an extent no greater than is required.

 

In the future, the Supreme Court will be required to define each of these tests. Thus, for example, the requirement that the violation be by law or according to law reflects the principle of legality (see Garibaldi, “General Limitations on Human Rights: The Principle of Legality,” 17 Harv. Int. L. J. (1976) 503. This principle is not merely formal in nature (see Sunday Times v. United Kingdom [107], at pp. 245, 270). The second test refers to the values of Israel as a Jewish state (in the context of both Jewish tradition and Zionism) and as a democratic state. Indeed, we are different from other nations. We are not only a democratic state but also a Jewish state. The Basic Law comes to ‘establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1A) (see Elon, “The Way of Law in the Constitution: The Values of the Jewish and Democratic State in Light of the Basic Law: Human Dignity and Liberty,” 17 Tel-Aviv University Law Review (Iyyunei Mishpat) (1993) 659). One of the important innovations of the Basic Law is its provision that ‘[t]he purpose of the Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state’ (s. 1). Those values were thereby given constitutional supra-legislative status. The meaning of the values of the State as a Jewish and democratic state, and a solution to the clash between those values, will certainly occupy us greatly in the future.

 

‘A proper purpose’

 

91. The third element of the limitation clause requires that the purpose be fitting. This element, too, raises significant difficulties, which we may reserve for future consideration. In essence, a purpose is fitting if it serves an important social objective regarding human rights. Thus, legislation intended to protect human rights is certainly intended for a proper purpose. Legislation intended to serve general social goals, such as welfare policies or protection of the public interest is fitting as well. In American constitutional law, distinctions are drawn among the various human rights in determining whether a purpose is worthy. The courts there have created different levels of constitutional scrutiny. Thus, for example, when the injury is to freedom of movement, freedom of expression or racial equality, the highest level of scrutiny applies. In such cases, a purpose will be deemed fitting if it is intended to fulfill a compelling state interest or a pressing public necessity or a substantial state interest. When the harm is gender or age-based discrimination, an intermediate level of scrutiny applies. In such cases the purpose will be deemed fitting if it serves an important governmental objective. The third and lowest level of scrutiny applies when the injury is to economic rights. Here the true test is whether the objective is reasonable.

 

In contrast to the three levels of American law, Canada has developed a unified test. The purpose of the law is fitting if it is directed towards social needs of fundamental importance. It is premature to determine what the Israeli rule will be as to the limitation clause and whether our test should comprise a single level (as in Canada) or multiple levels (as in the United States). It seems to me that for the purposes of the matter before us it is sufficient to determine that the purpose is fitting if it is intended to fulfill important social goals for the establishment of a social framework that recognizes the constitutional importance of human rights and the need to protect them. The normative scope of this importance will be determined with time, in the decisions of the Supreme Court.

 

92. In analyzing the nature of the “proper purpose” my colleague President Shamgar notes that this purpose includes that which was apparent to the legislature (‘the Court examines the purpose that guided the legislature’) as well as that determined by the Court at the time of its opinion (‘it may also become apparent at the time of examination of the final draft of the law and its ramifications’). My colleague notes furthermore that as to determining the purpose that was apparent to the legislature ‘there is a presumption that the legislature acted in good faith, and in any event we must not search for the concealed motives of individuals making up the legislative branch, in contrast to the purpose considered by the legislature as a collective legislative organ’.’ Finally, my colleague notes that the purpose of the law is weighed ‘against the violation and its significance.’ This position raises a significant number of problems, which, in my opinion, may and should be reserved for further consideration. My colleague suggests that two ‘purposes’ be examined – that which was apparent to the legislature and that which is revealed to the Court. There are different positions as to this approach in the comparative literature. There are those who believe that, in determining the constitutionality of a law – as in determining the constitutionality of a regulation (when it is claimed that the regulation was adopted out of improper motives) – we must consider only the historic purpose that was before the legislature. Others believe that we must consider both the historic and the modem purposes. Furthermore, if we consider the subjective purpose, we are faced with the problem of examining the legislature’s motive. My colleague the President states that ‘we must not search for the concealed motives of individuals making up the legislative branch, in contrast to the purpose considered by the legislature as a collective legislative organ.’ We must, of course, agree with this. Should we, however, consider the expressed motives of the Members of Knesset? There are differences of opinion as to this issue in the comparative constitutional literature. How can it be proven that legislation was impelled by improper motives (such as discriminatory motives) if we do not permit examination of the motives? Of course, more difficult questions arise as to the means of proof. Finally, my colleague emphasizes the purpose and adds, obiter dictum, that the purpose is balanced ‘against the violation and its significance.’ Here as well, serious problems arise. Some believe that only the purpose is significant and the harm itself should not be considered. An invalid motive invalidates the legislation even if the result is positive. Others believe that the determinant is the effect of the legislation and not its purpose (With regard to all these issues, see Ely, “Legislative and Administrative Motivation in Constitutional Law,” 79 Yale L.J. (1970) 1205; Brest, “Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive,” Sup. Ct. Rev. (1971) 95; Alexander, “Introduction: Motivation and Constitutionality,” 15 San Diego L. Rev. (1978) 925). As noted, these questions are difficult – some of the most difficult in constitutional law. We have no experience in dealing with them and I therefore suggest that they be reserved for further consideration.

 

‘To an extent no greater than is required’

 

93. The final element of the limitation clause is that the injury to the human right must be to an extent no greater than is required. If the previous factor examines the motives of the infringing legislation, this factor examines the means chosen by the legislature. This is a proportionality test. This test examines whether the means chosen by the legislature are appropriate for achieving its objectives (the proper purpose). In the past we have made use of the doctrine of proportionality in the field of administrative law (see HCJ 5510/92 Turkeman v. Minister of Defense [56], at p. 217; HCJ 987/94 Euronet Golden Lines (1992) Ltd v. Minister of Communications [57]; HCJ 3477 Ben-Atiya v. Minister of Education, Culture & Sport [58]; HCJ 1255/94 “Bezeq” – The Israeli Telecommunication Company Ltd v. Minister of Communications [45], supra; see also Segal, “The Claim of Lack of Relativity in Administrative Law,” 39 HaPraklit (1991) 507). It has now been given constitutional status. The constitutionality of a statute will now be examined in light of the doctrine. In comparative law too, this test began its development as a test used in administrative law. It is most accepted in European administrative law (see J. Schwarze, European Administrative Law (1992), at p. 677). The doctrine developed particularly in German administrative law (see Zamir, “Israeli Administrative Law in Comparison to German Administrative Law,” 2 Mishpat uMimshal (1994) 109, 130; and Sing, German Administrative Law (1985), at p. 88; Nolte, General Principles of German and European Administrative Law – A Comparison in Historical Perspective, 57 Mod. L. Rev. (1994) 191). From there it moved to the constitutional law of most of the countries of Europe, and elsewhere as well. It is the central test in Canada (see Hogg, Constitutional Law of Canada, (3rd ed., 1992), at p. 875, as well as in South Africa under its new constitution (see S. v. Makwanyana [112], at p. 665)).

 

94. A law infringes a protected human right. The law accords with the values of the State of Israel. It is intended for a proper purpose. How must we decide whether the law infringes human rights ‘to an extent no greater than is required?’ When does a law that infringes a constitutional human right achieve the required proportionality? In comparative law an attempt was made to concretize the principle of proportionality. It seems to me that we should learn from this attempt, which is common to Canada, Germany, the European Community and the European Court for Human Rights in Strasbourg, for the principle of proportionality does not reflect a unique social history or particular constitutional position. Rather, it is a general analytical position according to which we may examine a law infringing constitutional human rights.

 

95. Comparative law indicates that the examination of the “extent necessary” is divided into three sub-tests. The first sub-test determines that a legislative means that infringes a constitutional human right is fitting if it is appropriate to achieving the purpose. This is the fitness test (geeignt), or the “rational relationship” test. There must be a suitable connection between the goal and the means. The means must be tailored to achieve the objective. The means must lead, in a rational manner, to fulfillment of the goal. The second sub-test establishes that the legislative means that infringe the constitutional human right are fitting only if the goal cannot be achieved by other means that would result in a lesser injury to the human right. This is the middle test of “minimal harm” It is sometimes described as the “principle of need.” The third sub-test requires a balancing of the public good against the private harm arising from the means. There must therefore be a suitable relationship between the means and the purpose (“proportionality in the strict sense”). These three sub-tests were nicely summarized in the leading Canadian case, as follows:

 

There are, in my view, three important components of a proportionality test; first the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should infringe “as little as possible” the right or freedom in question ... Third, there must be a proportionality between the effects of the measures, which are responsible for limiting the Charter right or freedom and the objective which has been identified as of “sufficient importance” (R. v. Oakes [114], at p. 138).

 

It must be noted that the second sub-test is the most important of the sub-tests for proportionality. That the protected right be infringed as little as possible is the very essence of the requirement that the means be to an extent no greater than is required. This requirement is also textually connected. Indeed, in many cases the purpose is fitting and there is a rational relationship between the purpose and the means chosen. The determining question centers upon the question of whether the legislature chose the means that would result in the most minimal injury. In this regard, the image of rungs on a ladder is commonly employed. The Court determines whether the legislature chose the lowest rung of the ladder. This is the “step theory” (stufentheorie) (see D. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, (1989), at p. 290). In the Pharmacy case [110] – dealing with a limitation of the freedom of occupation – the German constitutional court adopted the theory of steps or rungs. The court determined that infringement of the freedom of occupation can be permitted:

 

[O]nly to the extent that the protection cannot be accomplished by a lesser restriction of freedom of choice. In the event that an encroachment on freedom of occupational choice is unavoidable, lawmakers must always employ the regulative means least restrictive of the basic right’ (translation by Kommers, ibid., at p. 288).

 

Constitutional latitude

 

96. The limitation clause imposes upon the Court a difficult task. It requires sensitivity to the necessity of balancing between the rights of the individual and the public interest. It requires the judge to understand his constitutional role. The directives of the limitation clause may be fulfilled in various ways. A type of ‘limitation margin’ is created (similar to the margin of reasonableness) or ‘margin of harm.’ The Court must protect the boundaries of that margin. It must refrain from crossing the margin. The choice between the various possibilities that lie within the bounds of the margin rests in the hands of the legislature. The principle of the separation of powers places the task of choosing – the task of lawmaking within the margin – upon the legislative authority. The legislature is endowed with the power to choose between the various policy options that fulfill the directives of the limitation clause. The question that the judge must ask himself is not what law would he have enacted, had he been a member of the legislature, in order to properly balance private and public needs. The question that the judge must ask himself is whether or not the balance chosen falls within the limitation margin. The Court must determine the constitutionality of the law, not its wisdom. The question is not whether the law is good, efficient, or just. The question is whether the law is constitutional. A “socialist” lawmaker and a “capitalist” lawmaker may enact different and contradictory laws, all of which fulfill the requirements of the limitation clause. The legislature must be accorded a “margin of appreciation” or “latitude for discretion” along the boundaries of the limitation zone. There must be reasonable room to maneuver, enabling the legislature to use its discretion in choosing between (a proper) purpose and means (that infringe to an extent no greater than is required). Every lawmaker has reasonable room to maneuver (see Hogg, ibid., at p. 882; Van Dijk and Van Hoof, Theory and Practice of the European Convention on Human Rights, (1984), at p. 585). I discussed this in the matter of the administrative authority, as follows:

 

In applying the principle of proportionality – particularly in examining the means causing the least harm – we must recognize the latitude given to the governmental authority. There are a number of ways in which the proportionality requirement may be fulfilled. Often the matter is borderline. In such cases, the authority’s margin of appreciation must be recognized. This margin is similar to the executive authority’s margin of reasonableness.... This recognition of the governmental margin of discretion is based upon the institutional advantage that the governmental authority enjoys in examining the possible alternatives, and in fulfilling its national responsibility – a responsibility imposed by the principle of separation of powers – to implement the proper purpose (Ben-Atiya v. Minister of Education, Culture and Sport [58], supra).

 

These words apply with even greater force when the applicable governmental authority is the legislature. Indeed, the determination of social policy – on economic and other matters – is in the hands of the legislature, and the legislature must be given broad legislative latitude. The Court does not determine social policy. That is a matter for the legislature. But if the policy is not constitutional, that is a matter for the Court. Indeed, if the lawmaker deviates from the boundaries of the limitation, there is no recourse but to take a clear judicial stance. In criticizing the American approach to economic rights – which leaves it to the legislature, as the expert in this area, to determine the content of the law without the Court’s constitutional intervention – Tribe writes:

 

But such a belief would hardly justify wholesale abdication to the political process since there exists no type of legislation that can be guaranteed in advance to leave important constitutional principles unimpaired, and there is simply no way for courts to review legislation in terms of the constitutional without repeatedly making difficult substantive choices among competing values, and indeed among inevitably controverted political, social, and moral conceptions. Nor can it suffice to dismiss constitutional review of socioeconomic regulation as uniquely ‘political’; all significant constitutional judgments ... are inescapably political (L.H. Tribe, American Constitutional Law (Mineola, second edition, 1988), at pp. 583-584).

 

97. My colleague the President has cited Professor Hogg’s approach, according to which the various rights should be given a narrow interpretation in order to ensure a careful examination of the legislation in the context of the limitation clause. Professor Hogg reached this conclusion after the experience of some ten years in the interpretation of the Canadian Charter of Rights and Freedoms. On its face, it seems to me that this approach is unsuitable. It will ultimately lead to constriction of the right as well as to laxity in guarding against its infringement. At the same time, it seems to me too early at this point to reach any conclusion in the matter of our Basic Law. The case law should be allowed to develop without a priori declarations that certain provisions must be given a broad interpretation while other provisions must be interpreted narrowly. Each provision should be given the interpretation that will fulfill the objective upon which it is based.

 

98. In addressing the question of whether a piece of legislation violates a protected human right to an extent no greater than is required, it is sometimes necessary to examine alternative means. Thus, just as the proportionality test requires that the Court examine the various alternatives that present themselves to the administrative authority, so the Court must examine the various alternatives that were available to the legislature. This is not a task that is beyond the Court’s ability. Constitutional examinations of this nature are undertaken in many countries around the world. ‘Social facts’ and “legislative facts” are brought before the competent court as evidence of the various alternatives. In describing these facts, Hogg notes as follows:

 

Legislative facts are the facts of the social sciences, concerned with the causes and effects of social and economic phenomena. Legislative facts are rarely in issue in most kinds of litigation, but they are often in issue in constitutional litigation, where the constitutionality of a law may depend upon such diverse facts as the existence of an emergency, the effect of segregated schooling on minority children, the relationship between alcohol consumption and road accidents, the susceptibility to advertising of young children, or the effect of pornography on behavior (Hogg, op cit., at p. 1292).

 

Evidentiary foundations of this type are presented every day around the world to courts dealing with constitutional problems. Upon this foundation the Court decides, always cognizant that it is not the lawmaker, and that policy is determined by the lawmaker and that the lawmaker is given a wide latitude in which to maneuver. Anyone who reviews the opinions of courts treating of constitutional determinations has studied the wealth of evidentiary material brought before the courts, as well as the courts’ ability to grapple with such problems. In the United States, this practice has been recognized since the beginning of the century. It is known as the “Brandeis Brief,” after the author of the first systematic and scientific document to be submitted to the Court in reliance upon research tools from the field of social sciences. The Court expects the parties – particularly the party bearing the burden of proof – to present an evidentiary foundation that will enable the Court to decide whether the requirement that the legislation be only “to the extent necessary” has been fulfilled. There is substantial literature on this subject throughout the world (see Karst, “Legislative Facts in Constitutional Legislation,” Sup. Ct. Rev. (1960) 75; Baade, ‘Social Science Evidence and the Federal Constitutional Court of West Germany,’ J. Politics (1961) 421-423). Justice La Forest has discussed this, noting as follows:

 

I must underline as strongly as I can the importance of producing evidence ... One of the major challenges in a s. 1 analysis is to identify and weigh the rights or interests served by a provision impugned as violating a guaranteed right. Particularly in areas outside the ordinary ken of lawyers, evidence will be required to enable courts to deal with the issue at all (La Forest, “The Balancing of Interests Under the Charter,” II N.J.C.L. 133, 143).

 

In order to fulfill its obligation, the Court and the lawyers appearing before it must develop additional skills, which will enable them to grapple with the “social facts.” Antonio Lamer, Chief Justice of the Supreme Court of Canada, discussed this, noting that the constitutional revolution in Canada in the field of human rights requires the Court and the lawyer to grapple with a new sort of evidentiary foundation:

 

These developments require lawyers and judges to have a whole new range of skills. We need to be able to look intelligently to questions of social policy, to identify the sorts of expertise that the particular problem requires, to deal with material from a wide range of disciplines and to interact effectively with persons who possess many sorts of expertise. In addition to the traditional technical skills of the lawyer, we need a deep understanding of the most fundamental principles of the law, an understanding which is broad enough to relate to a wide variety of other disciplines (Lamer, “Canada’s Legal Revolution: Judging in the Age of the Charter of Rights,” 28 Isr. L. Rev. (1994) 579, 581).

 

Chief Justice Lamer further notes that the courts of Canada developed judicial techniques in order to deal with social facts:

 

Courts now are routinely receiving a good deal of what can be referred to as social fact evidence. This sort of evidence is often directed to questions of what is the impact of legislation on society and what would be the impact of alternative ways of confronting the social problem. This kind of evidence is like that which is relevant in proceedings before a Parliamentary Committee when proposed legislation is being considered. Particularly where the question is whether certain laws are justified in a free and democratic society, debate in the Courts sometimes resembles proceedings before a House Committee in that the benefits and burdens of the legislation and its alternatives have to be weighed in light of the best available information about the needs of society and the nature of the problem addressed (ibid., at p. 582).
 

Just as the courts and lawyers in Canada can undertake such an investigation, so can we. Of course we must always remember that the legislature is endowed with legislative room to maneuver; that the question is not what is the ideal legislative arrangement, but what is the legislative arrangement that can be expected in the context of the Israeli constitutional regime as a whole; that the Court does not determine the constitutional paradigm that it deems best but examines the constitutionality of the legislative formula established by the legislature; that in marginal cases, the legislature must be given reasonable latitude in its legislative choice. The court must be convinced that among the available legislative options, the legislature chose that which least infringed the constitutional right. What is demanded is not an ideal choice.

 

D. The Family Agricultural Sector (Arrangements) (Amendment) Law 5753-1993

I) Application of the Basic Law: Human Dignity and Liberty

 

99. The Family Agricultural Sector (Arrangements) (Amendment) Law 5753-1993 (hereinafter, the “Amended Sector Law”) was enacted after the Basic Law: Human Dignity and Liberty came into effect. Accordingly, the validity of laws clause does not apply to this law. In this matter I agree with President Shamgar’s position. Of course, the original law – which was enacted before the adoption of Basic Law: Human Dignity and Liberty – is not subject to constitutional review. It enjoys the normative protection accorded to established law by s. 10 of the Basic Law.

II) The first phase: does the Amended Sector Law infringe a constitutional right?

 

The first constitutional question that arises is whether the Amended Sector Law infringes the right of property. In my opinion there can be no doubt that the answer to this question is affirmative. The Amended Sector Law infringes the ownership rights of creditors. It permits cancellation of unpaid debt, thereby infringing the property rights of the creditors. The infringement is not trivial – whether the debt is significant or insignificant, the creditor’s right is infringed. We must therefore determine whether the infringement of the property right is lawful, i.e. whether it fulfills the requirements of the limitation clause.

 

III) The second phase: whether the Amended Sector Law fulfills the requirements of the limitation clause

a) ‘The law’; ‘the values of the state of Israel’

 

101. Does the Amended Sector Law fulfill the conditions of the limitation clause? It has not been contended that infringement of the property right is not ‘by law.’ This condition has therefore been fulfilled. Is the Amended Sector Law consistent with the values of the State of Israel as a Jewish and democratic state? The question is whether the new law, which provides for cancellation of debt – essentially, an extensive bankruptcy arrangement – in order to liberate the agricultural sector from potential ruin by imposing the burden upon the creditors, is consistent with the values of the State of Israel. My colleague answers this question affirmatively. I share his opinion, and for the same reasons.

 

102. My colleague the President criticizes the lower court (in LCA 1908/94 and 3363/94) for not having properly considered the court’s role in determining whether legislation is consistent with the values of the State of Israel. My colleague writes as follows:

 

The court does not sit in judgment in order to administer the State economy. It does not rewrite the law. It does not transform secondary into primary in order to determine that legislation that it deems defective or otherwise wanting  is inconsistent with the values of the State of Israel. The court is not called upon to declare what, in its opinion, would be a more fitting or enlightened legislative solution. The court is called upon to determine, in the context of s. 8, whether the subject statute, according to its general purpose, is grosso modo consistent with a Jewish and democratic state.

 

It is certainly true that the court does not administer the State economy. But the court is required to determine whether the legislation by which the State economy is administered is consistent with the values of the State of Israel as a Jewish and democratic state. Consider legislation controlling administration of the media, which, it is claimed, infringes freedom of expression. The court does not administer the media, but must determine whether legislation infringing freedom of expression is consistent with the values of the State of Israel as a Jewish and democratic state. Or consider legislation providing for the manner of execution of judgments, which, it is claimed, infringes the debtor’s freedom or the creditor’s property rights. The court must examine such claims. In these cases, there is, of course, no call for the court to rewrite the law, or to transform the primary into the secondary or vice versa. Nor is the court asked to give its opinion on the wisdom or justice of the legislative solution. Nonetheless, the court is required – and cannot be freed of this requirement – to determine whether the legislation is consistent with the values of the State of Israel. My colleague President Shamgar quotes the opinion of Justice Black in the case of Ferguson v. Skrupa [88]. This opinion must be understood in the context of the historical development of Supreme Court’s approach to substantive due process and the case of Lochner v. New York [99] (see J. E. Nowak and R. D. Rotunda, Constitutional Law (4th ed. 1991), at p. 362). This history is foreign to us. The American distinction between basic rights (regarding which constitutional scrutiny is strictest) and the economic freedom of the state (regarding which constitutional scrutiny is most lenient) does not accord with our constitutional structure, in which freedom of occupation, one of the basic human rights, enjoys the same constitutional status as other human rights. The trauma experienced in America as a result of the Lochner case [99] must not bring Israeli law to a standstill. We must, over the course of the years to come, adopt a comprehensive constitutional philosophy, based upon the values of the State of Israel as a Jewish and democratic state. We must determine whether in the context of the limitation clause, different levels of scrutiny should be developed (as to the nature of the appropriate purpose and means) for the different rights, or whether we should adopt a uniform level of scrutiny.

 

103. My colleague President Shamgar criticizes the determination of one District Court that the Amended Sector Law is not consistent with the values of the State of Israel because it applies only to moshavim (and not to kibbutzim). In the President’s opinion, this determination is ‘an example of a misguided basic approach, according to which only if the scope of the general application of the law meets the court’s satisfaction, can it be concluded that it is consistent with the values of the State of Israel.’ My colleague notes further that ‘economic legislation resulting from economic policy determines the scope of its application in light of the legislature’s discretion and in light of various economic factors that are not within the court’s knowledge or expertise. This is not why the court was given the power of constitutional review.’ My colleague cites in this context ‘the decision of the Canadian legislature not to include in the constitution the subject of infringement of property.’ In my opinion, this criticism is too general and too sweeping. The key point is that in Israel, unlike Canada, the right to property is a constitutional right. The court is charged with protecting the right to property, just as it is charged with protecting other constitutional rights. We have not yet been presented with the question of whether all rights enjoy constitutional protection of the same magnitude or whether the level of protection varies according to the nature of the right. It is too early to take a stand on this important question. In principle, the District Courts acted properly in taking into consideration the principle of equality as one of the values of the State of Israel as a Jewish and democratic state, and in examining the legislation before us in light of that principle. At the same time, I agree with my colleague the President that in the case before us – after extensive consideration – it cannot be said that the arrangements in one sector inherently discriminate against other sectors.

 

b) A proper purpose

 

104. A law infringing a constitutional human right protected by the Basic Law: Human Dignity and Liberty is constitutional only if it is intended for a proper purpose. My colleague the President has deemed as fitting the purpose for which the Amended Sector Law was enacted. I agree with this conclusion. Whether we take a subjective approach to this analysis (legislative intent) or whether our approach is objective (legislative purpose), the purpose is fitting according to both criteria. The purpose is to ensure the rehabilitation of certain debtors and to prevent the collapse of their life’s work. This is a sort of emergency legislation intended to protect the existence of the moshav members. This purpose was intended to fulfill an important social goal. It is similar to the legislation in regard to cancellation of debt in bankruptcy. It expresses the policy of the welfare state. It recognizes the constitutional importance of the protection of human rights, and the need to protect them (debtors and creditors). It seems to me that this proposition is sufficient for the appeals before us.

 

c) To the extent necessary

 

105. As we have seen, an examination as to whether the legislation infringes the constitutional right “to an extent no greater than is required” includes three sub-tests. The first test is of “fitness” or “rational relationship.” It is met in our case. The second sub-test is the test of “the 1east intrusive means” or the “needs” test. The law infringes the basic right to an extent no greater than is required if the legislature chose – from the array of means available – the means that infringed the protected human right to the least extent possible. The legislature must begin at the “rung” that does the least harm, and slowly ascend, until it reaches the rung at which the proper purpose can be achieved without infringing the human right more than necessary. In determining the appropriate level we must bear in mind that the legislature has been accorded reasonable legislative latitude. The court must demonstrate flexibility and must recognize the difficult choices faced by the legislature, the effect of its choice on the various sectors of society and the institutional advantage enjoyed by the legislature in examining these factors.

 

106. Does the Amended Sector Law infringe creditors’ rights more than to the extent necessary? Or does this law fall within the bounds of the wide latitude given to the lawmaker? The Attorney-General has described the dilemma that faced the legislature. This dilemma is expressed in the Explanatory Note to the proposed Family Agricultural Sector (Arrangements) Law (Hatzaot Hok (Draft Laws), 1992, at p. 92):

 

The proposed law is intended to create a new framework in order to solve the crisis that has loomed over the agricultural sector for quite some years. Its general purpose is to facilitate rehabilitation of the agricultural sector by favoring rehabilitation over dissolution, while at the same time stemming the outflow of money from public coffers. It now seems that circumstances require legislative intervention in presenting a settlement arrangement to the agricultural sector since the various other settlements did not prove to be effective, left the agricultural sector in deep crisis and, at times, exacerbated the situation.’

 

In this context, the 1987 settlement (the “Ravid Settlement”) has been cited, according to which an administration was established which was to determine an arrangement for settling the bank debt of each moshav. Participation was voluntary for debtors and those non-bank creditors who signed the agreement, which included “‘veto rights” for each party as to the administration’s determinations. We have been told that because of the voluntary participation clause and the veto rights, the Ravid Settlement did not succeed, and by its terms only some 30% of the debts of the agricultural sector were settled (approximately one and a half billion shekels). Against this background, there was no alternative to the legislative solution. This solution is based upon ‘radical treatment of the crisis facing the Israeli agricultural system’ (Attorney-General’s Response, at p. 13). Under this “radical treatment” a “receiver” was appointed in order to analyze the debt of the moshav and its members, and to formulate a rehabilitation plan taking into account the debtors’ repayment ability and the magnitude of remaining debt. Against this background – and in light of the experience of the original law – a number of legal questions arose, which the Amended Sector Law attempted to solve, and which my colleague President Shamgar noted in the introduction to his opinion. The Attorney-General contends that these amendments do not exceed the extent necessary, and that they fall within the bounds of legislative latitude. In this regard, the Attorney-General notes that ‘it is clear that the crisis continues’ and demands an expeditious solution. The Attorney-General notes, as well, that the harm does not exceed the extent necessary ‘when, in effect, we are dealing with a creditor arrangement that comes to replace other acceptable arrangements such as bankruptcy, liquidation and dissolution under which creditors’ rights can be infringed’ (ibid., at p. 61). Against this background the Attorney-General contends that ‘the infringement does not exceed the extent necessary, when the infringement itself is unclear, i.e. to what extent can the creditor collect its claim if it is not included within the scope of the law and, on the other hand, infringement of the legislative purpose without the amending law is certain’ (ibid., at p. 62). The Attorney-General emphasized that:

 

The legislature’s efforts to save the agricultural-moshav sector by permitting certain damage to creditors come after attempts to solve the crisis in various ways, both by means of assistance from State and Jewish Agency funding sources and by means of voluntary settlement arrangements. After all of these attempts failed, the legislature enacted the main law, the motive of which was finally to settle the debts of the agricultural sector. The main law is not before the Court today, nor are the clauses of section 15 as to automatic reduction, which is the primary infringement of the main law. Before the Court are the relevant provisions of the amending law, which do not cancel the creditors’ right to collect or sue for collection of the debt, but rather propose a different settlement, which may infringe the possibility of collecting part of the debt. In this situation, when the lawmaker’s intention and purpose are to rescue the agricultural sector and assist in its rehabilitation, the legislature’s choice was made in the context of its “broad legislative latitude.”

 

Alternatively, the Attorney-General requested that – if we are unconvinced that the means chosen do not exceed the extent necessary –

[T]he Court allow submission of a factual and legal foundation in order to prove that the conditions of the limiting clause have been proven, in light of the fact that we are dealing with the invalidation of legislation. The lower court’s decision should not be left in effect merely because the Court was not presented with enough evidence (ibid., at p. 66).

 

107. Against this background, the question before us is whether or not we are convinced that the legislature enacted measures that do not exceed the extent necessary, and, whether or not this instance falls within the bounds of the broad legislative discretion given to the legislature. I have given considerable thought to this question and contemplated the possibility of granting the Attorney-General’s alternative request to return the case to the District Court for renewed consideration. In the end, I am convinced that this is a borderline case that falls within that area permitting the lawmaker to design a legislative arrangement at its discretion, and that further analysis of the “social facts” is not justified. In light of the proper purpose which deals with solving the deep crisis into which the agricultural sector has fallen – it seems to me that the means chosen by the legislature in the Amended Sector Law does do harm to creditors, but that this harm does not exceed the extent necessary and, in any event, falls on the lawful side of the fence. In reaching this conclusion I considered the possibility of voluntary settlement and concluded that it is not a viable alternative (in light of the failed attempt). Similarly, I considered other legislative arrangements proposed by the parties, which must be rejected in the absence of any relevant supporting analysis. In the end, we are left with the legislative arrangement chosen by the Knesset after consideration and examination, and I have not found – after taking the relevant considerations into account – that it goes beyond the domain to be left within the discretion of the legislature in a democratic society. In this regard I have also given weight to the fact that we are dealing with the first instances to come before the courts, and that, in the absence of constitutional experience, the existing evidentiary potential was not realized, nor were all the social data in the hands of the State presented in order to prove its contentions.

For these reasons I concur with the conclusion of my colleague the President that the appeals in HCJ 1908/94 and HCJ 3363/94 should be granted and that the cases should be returned to the lower court for continued review as to the matter itself. Similarly, for these reasons I concur in denying the appeal in HCJ 6821/93. In light of my position, I propose that there be no order of costs.

 

Summary

 

108. I have therefore reached the following three conclusions: First, that Basic Law: Human Dignity and Liberty is accorded constitutional supra-legislative status; that this conclusion may be reached in a number of ways and that choosing among them is not necessary for this appeal, although the position that seems to me most fitting is that which recognizes the Knesset’s power to enact a constitution for Israel at the highest normative level (constituent authority); that this Basic Law constitutes a superior norm, in light of which we must examine the constitutionality of ‘regular’ legislation that infringes a constitutional human right protected by the Basic Law, and that the Basic Law may be amended only by Basic Law. Second, that a “regular” law adopted by the Knesset (by whatever majority) cannot infringe a human right protected by the Basic Law unless it fulfill the requirements of the limitation clause. If a “regular” law does not fulfill those requirements it is unconstitutional, whether it explicitly state its intention to infringe a human right protected by the Basic Law, or whether the infringement be implicit. Third, that the Court in Israel is endowed with the power of judicial review of the constitutionality of a law. It must examine (in the first stage) whether the “regular” law (adopted after the enactment of the Basic Law) infringes a protected human right. The Court must determine (at the second stage) whether the infringement fulfills the requirements set out in the limitation clause. If the Court reaches the conclusion that a basic right has been infringed, without the requirements of the limitation clause having been met, it is empowered to prescribe constitutional remedies, among them declaring the law (or part thereof) void. Fourth, that the provision of Basic Law: Human Dignity and Liberty according to which ‘property rights shall not be infringed’ is to be interpreted to include obligatory rights, and therefore legislation that diminishes the right of a creditor to claim his debt violates his right to property. Fifth, that the limitation clause – in requiring that the law infringe a human right to an extent no greater than is required – imposes a test of proportionality, composed of three ancillary tests: rational relationship, need and proportionality (in its narrow meaning), while recognizing the legislature’s broad legislative discretion. Finally, that in the appeals before us, we are convinced that the infringement of the creditors’ property rights fulfills the requirements of the limitation clause.

 

Conclusion

 

109. The enactment of Basic Law: Human Dignity and Liberty brought about a constitutional revolution in the status of human rights in Israel. A number of rights were transformed into constitutional supra-legislative rights. The Israeli politic became, with regard to human rights, a constitutional politic. Israeli law was constitutionalized. Constitutional human rights affect all branches of the law (public and private) and influence their nature and substance. If in the past human rights were derived from the various branches of the law, from now on the various branches of law will be derived from human rights. Moreover, there has been a change in the constitutional discourse. If in the past the legal discourse focused on the question of jurisdiction, power and discretion (legislative, administrative and judicial), from now on the discourse will be one of rights and liberties. No longer will it be the administrative power that determines human rights, but rather human rights, in their correct balance, will determine the power of the administration. This constitutional change was effected by the Knesset, which imposed limitations upon itself as well as upon the other governmental authorities. All of these impose a heavy responsibility upon the governmental bodies, which are obligated to protect human rights. We are now in a difficult transitional period in which we must adapt to a new constitutional framework. There is much uncertainty and doubt. There are dangers, some of which have been pointed out by my colleague President Shamgar. Certainly, the judicial authority must exercise great restraint. It must properly understand its role in a democratic state. This role does not involve determining the social policy of the State. The judicial authority does not determine the national priorities. The judge’s role is to oversee the constitutionality of the policies set by the political bodies. The judge’s role is to zealously protect the delicate balance between majority rule and basic human rights and values. The judge’s role is to defend the constitution and safeguard human rights. It is true that a constitutional determination has political ramifications. Nonetheless, it is not made of political considerations. The judge’s considerations are legal-constitutional in nature. I am convinced that in time we will formulate for ourselves judicial criteria for exercising of our constitutional discretion. Uncertainty will diminish. Doubts will lessen. In consolidating our judicial experience we will act with objectivity, with humility and with the requisite judicial courage. We are not the first to face tests of this sort. Just as other countries have succeeded, it can be assumed that we too will face challenges and that in the end, Israeli democracy will emerge strengthened. Indeed, there is now the possibility that the constitutional change will be internalized; that human rights will become the ‘daily bread’ of every girl and boy; that the awareness of rights – rights of children, the disabled, the elderly, the ill, employees, minorities and women – will increase; and that we will become more sensitive to the rights of human beings as such. The prospect is that rule will be based on law, and not law on rule. The prospect is of increased awareness in the Knesset of its constitutional role, and reinforced recognition by the nation of its central status in framing Israel’s constitution. The prospect is of recognition of the Court’s role as guardian of the constitution, balancing the constitutional values established in the constitution and supervising the constitutionality of administrative activity. The prospect is of the ascent of the glory of human rights, and enhanced goodwill and fellowship among human beings, each born in the image of the Creator.

HCJ 9098/01

Yelena Ganis and others

v

1.       Ministry of Building and Housing

2.       Attorney-General

HCJ 10043/01

Raphael Kornitzer and another

v

1.       Ministry of Building and Housing

2.       Minister of Building and Housing

3.       Minister of Finance

4.       Attorney-General

HCJ 401/02

Mordechai Bilitzer and others

v

1.       Government of Israel

2.       Minister of Finance

3.       Minister of Building and Housing

 

The Supreme Court sitting as the High Court of Justice

[22 November 2004]

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

 

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

 

Facts: Shortly before the election for Prime Minister in 2001, the Knesset passed a law that gave certain persons an entitlement to grants for the purchase or extension of an apartment in Jerusalem. After the election, some six weeks later, the Knesset suspended the grants, and went so far as to include a provision to the effect that the suspension of the grants was retroactive, from the date on which the grants originally came into effect. The petitioners challenged this retroactive suspension of the grants, on the grounds that they had relied on the grants and undertaken to buy or extend an apartment in Jerusalem during the interim period, and therefore it was unconstitutional for the Knesset to suspend the grants retroactively.

 

Held: The Supreme Court was unanimous in the opinion that the Knesset had acted improperly when it retroactively suspended the grants, since it had not considered the possibility that some persons may have relied on the grants and taken commitments upon themselves as a result. However, the justices differed as to the proper approach that should be adopted to remedy the situation.

The majority opinion was that it was possible to construe the statute narrowly in such a way that the retroactive suspension would only apply to potentially entitled persons who had not relied on the statute during the interim period, but it would not apply to those entitled persons who did rely on the statute during the interim period. Consequently, the right of the latter group of persons to receive the grant was held to remain valid.

The minority opinion was that it was not possible to construe the statute narrowly as aforesaid, and therefore the retroactive suspension ought to be declared void for unconstitutionality.

 

Petition granted, in the manner held by the majority (Justice Cheshin, President A. Barak, and Justices A. Procaccia and D. Beinisch), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

 

Legislation cited:

Adoption of Children Law, 5741-1981, s. 13.

Basic Law: Human Dignity and Liberty, ss. 3, 8.

Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992, s. 1.

Budget Principles Law, 5745-1985, s. 39A.

Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004.

Government and Justice Arrangements Ordinance, 5708-1948, s. 10(a).

Housing Loans Law, 5752-1992, ss. 6B, 6C.

Housing Loans Law (Amendment no. 5), 5761-2001.

Income Tax Ordinance [New Version], s. 3(i)(1)(a).

Inheritance Law, 5725-1965, s. 5(a)(1).

Interpretation Law, 5741-1981, s. 22.

Interpretation Ordinance [New Version], s. 17.

State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, ss. 20, 20(a)(1), 20(b), 20(c).

Torts Ordinance [New Version].

 

Israeli Supreme Court cases cited:

[1]      HCJ 6195/98 Goldstein v. Central District Commander [1999] IsrSC 53(5) 317.

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

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

[4]      CA 238/53 Cohen v. Attorney-General [1954] IsrSC 8 4; IsrSJ 2 239.

[5]      PPA 1613/91 Arbiv v. State of Israel [1992] IsrSC 46(2) 765.

[6]      CrimA 4912/91 Talmai v. State of Israel [1994] IsrSC 48(1) 581.

[7]      HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [1997] IsrSC 51(5) 410.

[8]      CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

[9]      HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [2000] IsrSC 54(5) 547.

[10]    CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd (unreported);

[11]    LCrimA 1127/93 State of Israel v. Klein [1994] IsrSC 48(3) 485.

[12]    HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [1958] IsrSC 12 1041.

[13]    CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [2001] IsrSC 55(1) 12.

[14]    HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [2000] IsrSC 54(2) 368.

[15]    CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[16]    HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

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

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

[19]    CA 1900/96 Telmaccio v. Custodian-General [1999] IsrSC 53(2) 817.

[20]    MApp 67/84 Hadad v. Paz [1985] IsrSC 39(1) 667.

[21]    LCA 6339/97 Roker v. Salomon [2001] IsrSC 55(1) 199.

[22]    FH 40/80 Koenig v. Cohen [1982] IsrSC 36(3) 701.

[23]    CA 3622/96 Hacham v. Maccabi Health Fund [1998] IsrSC 52(2) 638.

[24]    CA 7034/99 Kefar Saba Assessing Officer v. Dar [2004], IsrSC 58(4) 913.

[25]    EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [1985] IsrSC 39(2) 225; IsrSJ 8 83.

[26]    HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [1963] IsrSC 17 2503.

[27]    LCA 176/86 A v. B [1988] IsrSC 40(2) 497.

[28]    HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [1991] IsrSC 45(5) 445.

[29]    HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [1979] IsrSC 33(1) 225.

[30]    CA 64/72 General Federation of Workers v. Moav [1973] IsrSC 27(1) 260.

[31]    HCJ 264/77 Katan v. National Insurance Institute [1978] IsrSC 32(1) 678.

[32]    HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477.

[33]    CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [1985] IsrSC 39(2) 70.

[34]    CA 10608/02 Hazima v. Department of Customs and VAT [2004] IsrSC 58(3) 663.

[35]    CA 9136/02 Mister Mani Israel Ltd v. Rize [2004] IsrSC 58(3) 934.

[36]    HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[37]    HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[38]    Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549 (1947).

[39]    Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

[40]    Crowell v. Benson, 285 U.S. 22 (1932).

[41]    Ellis v. Railway Clerks, 466 U.S. 435 (1984).

[42]    Shapiro v. United States, 335 U.S. 1 (1948).

 

Jewish law sources cited:

[43]    I Kings 21, 19.

 

For the petitioners in HCJ 9098/01 — E. Prince, R. Dovrovitzer.

For the petitioners in HCJ 10043/01 — A. Zahar.

For the petitioners in HCJ 401/02 — R. Yarak.

For the respondents — O. Koren, D. Briskman.

 

 

JUDGMENT

 

 

Justice M. Cheshin

The Knesset enacts a law and provides therein that persons who buy an apartment or extend an apartment in Jerusalem are entitled to receive a grant of several tens of thousands of sheqels. The commencement of the law is, as usual, on the date it is published in Reshumot. A short time — approximately six weeks — after the law is published, the Knesset ‘returns to its senses’ and decides — once again in a law — to postpone the commencement of the first law. Until now, all has gone well; there is no clamour or outcry. But the Knesset wishes to give the second law, the law that postpones the commencement of the first law, not only future application — prospective application — but also past application — retrospective application — from the date of the commencement of the first law, the benefit law. In other words, the second law seeks to suspend the application of the first law, the benefit law, retroactively, from the first day on which it came into effect. This leads to the question: what is the law with regard to someone who bought an apartment or extended an apartment in Jerusalem during that interim period of six weeks, between the date on which the first law was published and the date on which the second law was published? Was the Knesset entitled to deny him in the second law — by means of the suspension — what it gave him in the first law? Does the retroactive application of the second law comply with the criteria provided in the Basic Law: Human Dignity and Liberty? This is the question that the petitioners have brought before us, and it is to this question that we are obliged to provide an answer.

Prologue

2.    The Housing Loans Law, 5752-1992, grants ‘entitled’ persons — persons without housing who are entitled to housing assistance pursuant to rules prescribed by the Ministry of Building and Housing in coordination with the Ministry of Finance — certain pecuniary benefits. In the middle of the year 2000, Knesset members promoted a private draft law whose purpose was to give significant pecuniary benefits to whoever would buy apartments or extend their apartments in Jerusalem. The draft law, so the explanatory notes state, was intended to contend with the migration away from Jerusalem by encouraging young couples and additional entitled persons to buy or extend apartments in Jerusalem. After it was approved by the Knesset, the draft came up before the Knesset Finance Committee, and a representative of the Ministry of Finance expressed opposition to the draft, on the grounds that the grant offered would not prevent migration away from Jerusalem but would cause a rise in the prices of apartments in Jerusalem. In the words of Mr S. Yiftah, the representative of the Ministry of Finance:

‘The problem here is a question of supply. The increase in the stock of apartments in Jerusalem, for the present purpose, is less than the natural increase in population, and it is also less than the total increase in population. The increase in the stock of apartments is 2% per annum, and the natural increase of the population in numbers of households, is 2.5% per annum. In such a situation, there is no doubt that whoever does not find his solution in Jerusalem will leave Jerusalem. In the absence of solutions on the supply side, there is no doubt that the draft will not only not help, but it will increase the price unequivocally. When there will be reserves of apartments in Jerusalem, the position will be different.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 11 September 2000, as published on the Knesset web site).

Later at the meeting, MK Meir Porush was asked to vote upon the source of the budget for financing the draft law — as required by the provisions of s. 39A of the Budget Principles Law, 5745-1985 — and his response was that ‘each year approx 1,200 million sheqels remain from loans and from this item — that is [the] budgetary source.’ The representative of the Ministry of Finance replied that this source was totally irrelevant. But the Finance Committee decided to adopt the draft law, and the draft was published on 18 December 2000 as a draft law promoted by it, under the name of the draft Housing Loans Law (Amendment no. 6) (Promoting Jerusalem, the Capital of Israel) 5761-2000 (Draft Laws 5761, 369). The following is what the explanatory notes to the draft law (ibid.) tell us:

‘In view of the migration away from Jerusalem, the capital of Israel, there is great importance in encouraging entitled persons to prefer Jerusalem when they are about to buy or extend an apartment.

The proposed law will encourage many to buy an apartment in Jerusalem and it will thereby strengthen its status as the united and prosperous capital of Israel, a matter on which there is a consensus in the State of Israel.

The estimated cost to the State is 130 million new sheqels.’

The Knesset approved the draft law on its first reading, and when the draft came up for discussion at the Finance Committee, the representative of the Minister of Finance again argued that its enactment would lead to a rise in the prices of apartments in Jerusalem, while it would not prevent the migration away from the city:

‘Assaf Regev [Ministry of Finance]:
The main problem in Jerusalem is not the demand for apartments but the supply of apartments. This law will simply raise the prices of apartments. It will increase the demand for apartments but it will not increase the supply of housing. The problem in Jerusalem is that there are no available planning resources nor are there any resources of land. An initial consequence of this law is that it will lead to an increase in the prices of housing and it will harm precisely those persons whom MK Meir Porush supposedly wishes to help.’

(Page 60 of the minutes of the meeting of the Knesset Finance Committee on 3 January 2001, as published on the Knesset web site).

The Finance Committee approved the draft law with various changes, and the draft was brought before the Knesset once again for the second and third readings. The Knesset adopted the draft law, and on 15 February 2001, the Housing Loans Law (Amendment no. 5), 5761-2001 was published (in Sefer HaHukkim (Book of Laws), 5761, 140). Below we will refer to this law as ‘Amendment 5.’ This law was supposed, as we have said, to grant significant pecuniary benefits to persons suffering from housing distress who bought or extended apartments in Jerusalem.

3.    Amendment 5 was of short duration. This law was adopted at the end of the term of office of Ehud Barak’s government, when the government did not have the confidence of a majority of the Knesset. On 6 February 2001 elections were held for prime minister, and when a new government was formed on 7 March 2001, it was decided to postpone the date of the commencement of Amendment 5, and also to postpone the commencement of additional laws of a similar nature — laws for which there was no allocation in the State budget — that were adopted at the same time. Thus, on 21 March 2001, the draft State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was published (in Hatzaot Hok (Draft Laws), 5761, 582). The following was stated in the explanatory notes (ibid., at p. 586):

Introduction

During the last year, the Knesset adopted a series of laws, which were initiated by Knesset members and whose cost, whether through increasing spending or by reducing the income of the State, is estimated at approximately 3,000 million new sheqels per annum. The draft budget for 2001 does not include sources of finance for these laws.

It is proposed therefore to postpone the commencement of most of the aforesaid laws to the next tax year, and to amend or cancel several of them, as set out below, so that the budgetary cost involved in operating them shall not be reflected in the current fiscal year.’

With regard to Amendment 5, the explanatory notes to the draft law said as follows (ibid., at pp. 587-588):

‘The Housing Loans Law (Amendment no. 5), 5761-2001, provides that the Government should give a grant to any entitled person who buys an apartment in Jerusalem or who extends his apartment as a result of housing distress, in an amount of 80 thousand new sheqels, when the apartment is situated on land administered by the Israel Lands Administration, and in an amount of 60 thousand new sheqels, when the apartment is situated on land that is not administered by the Israel Lands Administration.

The direct budgetary cost of the law is approximately 160 million new sheqels per annum, and it involves wide-ranging ramifications whose cost may reach hundreds of millions of additional new sheqels.

…

It is therefore proposed that the validity of the aforesaid laws should be suspended until the end of 2001. In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should also be provided that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof.’

The draft law passed a first reading, and when it was sent to the Finance Committee, to be prepared for the second and third readings, we find the following remarks were made by Mr Ohad Marani, the Director of Budgets at the Ministry of Finance, to the members of the committee:

‘A final remark on the private laws — we do not say that the laws are populist, nor do we say that they were passed as an oversight, but we do say that this is a collection of private laws that cost a great deal of money. Each one of these laws costs money — whether they are better or worse is a matter of individual opinion for each draft law — but all these laws cost a great deal of money. We have no budget to finance these laws.

Similarly, in our opinion — irrespective of the quality of each law in itself — these laws do not reflect any clear statement of the government’s priorities, and if you will allow me to say this, I will say that I am not sure whether they even reflect the priorities of the Knesset. In the last two months, when the government did not have a majority in the Knesset, a series of many laws was passed. All of these laws cost approximately 3,000 million sheqels. This is a large amount of money, and we are not able to finance all these laws.’

(Page 5 of the minutes of the meeting of the Knesset Finance Committee on 27 January 2001, as published on the Knesset web site).

After deliberation, the Finance Committee referred the draft law back to the Knesset, and on 4 April 2001, when it was published in Reshumot, the draft became law. Thus the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, was enacted (Sefer HaHukkim (Book of Laws), 5761, 236). Below we shall refer to this law as ‘the Arrangements Law.’ Section 20 of the Arrangements Law is the provision relevant to the matter before us; in this, the validity of Amendment 5 was suspended until 31 December 2001 (from then until today the commencement of Amendment 5 has been repeatedly deferred until 31 December 2007: Economic Policy for 2004 Fiscal Year (Legislative Amendments) Law, 5764-2004).

According to s. 20, the commencement of the Arrangements Law was determined to be retrospective, from 15 February 2001, i.e., starting from the date of the commencement of Amendment 5. Thus the legislator of the Arrangements Law sought to uproot Amendment 5 ab initio, and so to postpone its commencement. The reason for this was that Amendment 5, as well as other laws that were enacted at the end of the term of office of the Barak Government, were all adopted — at a total cost of 3,000 million sheqels a year — without there being any sources of financing in the budget, and implementing them would have harmed the budget seriously.

4.    Up to this point we have summarized the tortuous series of events in which Amendment 5 — an amendment that granted benefits to persons suffering housing distress who bought or extended an apartment in Jerusalem — was adopted, and how, approximately six weeks later, the Knesset enacted s. 20 of the Arrangements Law, which sought to uproot these benefits ab initio.

The main pertinent facts and the question in dispute

5.    There are three petitions before us. In HCJ 9098/02 the petitioners are five couples, in HCJ 10043/01 the petitioners are one young couple, and in HCJ 401/02 there are twenty-five petitioners, some of whom are couples and some single. The cases of the petitioners differ from one another — each one has its own unique series of events — but they all focus on the same six weeks between the date on which Amendment 5 was published and the date on which the Arrangements Law was published. The petitioners argue that they complied in full with all the conditions set out in Amendment 5 for receiving the pecuniary benefits: they were recognized as ‘entitled persons’ and they bought apartments or extended apartments in accordance with the provisions of Amendment 5 prior to its suspension; moreover, by buying and extending the apartments they relied on the undertaking of the law to give them pecuniary grants. This leads to the conclusion, so the petitioners argue, that they were entitled in those six weeks to receive the benefits that the law gave them. But then s. 20 of the Arrangements Law befell them, and because of its retroactive application, they were denied a right that they had acquired by virtue of Amendment 5. This denial that was the result of s. 20 — this is the essence of the claim — was an unlawful denial and contrary to the Basic Law: Human Dignity and Liberty, and therefore their petitions ask us to declare the retroactive provision void and to order the State to give them the grants as stated in Amendment 5. The respondents gave their reply to the claims of the petitioners, and we now have the burden of entering into the dispute and deciding between the opposing parties.

Later in our remarks we will consider the legal questions in this matter, but let us first say that in the absence of details and clarifications, we will find it difficult to decide whether the petitioners, or some of them — complied with the preliminary conditions that were provided in s. 6B of the Housing Loans Law. This is the case, for example, with regard to whether the petitioners were ‘entitled persons’ as s. 6B requires. And if this is the case with regard to the conditions set out expressly in s. 6B, certainly we shall be unable to decide the question whether, when they bought or extended an apartment, the petitioners — or some of them — relied on the undertaking of the law in s. 6B. In view of our final decision in the three petitions — and as we shall explain below — there is no longer any need to decide the individual case of each petitioner.

6.    Before we consider the matter in detail, let us set out the pertinent provisions of the law, and below we will discuss the provisions of the law in greater detail.

Amendment 5: Section 6B of the Housing Loans Law — the benefiting provision

7.    The first provision of the law, which sought to benefit persons who purchased or extended apartments in Jerusalem, will be found in s. 6B that was added by Amendment 5 to the Housing Loans Law. The following is the language of s. 6B, as added to the Housing Loans Law:

‘Special grant for purchasing or extending an apartment in Jerusalem

6B. (a) An entitled person, including someone recognized as entitled to a housing distress programme for apartment owners, who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant as set out below:

 

(1) For an apartment on Israel Land as defined in the Basic Law: Israel Land (hereafter — Israel Land) — an amount of 80,000 new sheqels;

 

(2) For an apartment on land that is not Israel Land — an amount of 60,000 new sheqels.

 

(b) What is stated in sub-section (a) shall apply both with regard to a purchase or an extension of an apartment that has not yet begun to be built and also with regard to a built apartment.

 

(c) The amounts of the grants under sub-section (a) will be revised on the first of January each year for the increase in the index as of the fifteenth of December that precedes it; the revised amounts as aforesaid shall be rounded to the nearest new sheqel.

 

(d) The Minister of Building and Housing shall publish a notice concerning the amounts of the grants, as revised under this section.

 

(e) Nothing in the provisions of this section shall derogate from any benefit given under any law.

(We should remark, parenthetically, that later the number of the section was changed, and it is today numbered 6C). We see that the first part of section 6B(a) stipulates preliminary conditions for receiving the benefits — someone who is recognized as an entitled person (as this concept is defined in the law) or someone recognized as entitled to a housing distress programme for apartment owners and who bought an apartment in Jerusalem or extended an apartment in Jerusalem — and then it proceeds to stipulate the benefits that will be given. The interpretation and effect of the provisions of s. 6B are the subject of disagreement between the parties, and we will now discuss these briefly.

8.    The state argues as follows: it is a basic premise in the petitioners’ arguments that the provisions of s. 6B intended to give them, in themselves, a right to the grants as set out in the law. The petitioners’ premise is therefore that by complying with those preliminary conditions prescribed in the first part of s. 6B, they automatically acquired a right to the grants. It is this right, they further go on to claim, that s. 20 of the Arrangements Law purportedly wishes to take away from them. But this basic premise, so the State claims, is founded upon an error. The reason for this is that the right of the petitioners to the grants had not yet crystallized into a mature right during those six weeks when Amendment 5 was valid. Why is this? Because at that time rules had not yet been prescribed for implementing the giving of the grants, including suitable rules for implementation by the commercial banks, and in the absence of rules of implementation the right to the grant did not crystallize. In the language of the respondents:

‘The absence of rules for implementing the grant is not merely a procedural problem, but it is a substantial failure, which prevents the implementation of the law. It is not reasonable to order the payment of a grant without rules that regulate the implementation of the provisions of the law… It should be emphasized that neither party disputes that during the period when the law was valid, it was impossible to receive the grant from the banks, because of the absence of guidelines for implementing the law… In addition it should be noted that it is clear that whoever wished to realize his alleged right to a grant was obliged to apply to a bank, and if he did not do so before buying the apartment, he certainly cannot argue now that he relied on the grant when he bought the apartment.’

Is this really the case?

9.    The question that must be asked is, of course, what right did the petitioners acquire pursuant to the provisions of s. 6B of the Housing Loans Law? Was this a qualified right or a conditional right? And if it was a qualified right or a conditional right — what was the qualification and what was the condition? Indeed, there are cases where a statute makes its implementation conditional upon the enactment of regulations or on the fulfilment of other preliminary conditions; and the question whether this is indeed the case here is a question of interpretation of the statute. As was stated in HCJ 6195/98 Goldstein v. Central District Commander [1] at p. 331:

‘There are cases where a statute makes its implementation conditional upon regulations that will be enacted pursuant to it, and without regulations the statute cannot be implemented… and there are cases where a statute can be implemented even when no regulations for implementation have been enacted pursuant to it. The answer to the question whether a particular statute can or cannot be implemented without regulations for implementation derives first and foremost from the drafting of the statute, whether it makes itself conditional upon the enactment of regulations for implementation or not.’

See also the references mentioned in that judgment.

The question here is therefore a question of interpretation: do the provisions of s. 6B, as added in Amendment 5, in and of themselves, give rise to a right to receive grants — naturally, if the preliminary conditions prescribed in the provisions of s. 6B itself are fulfilled — or perhaps the provisions of s. 6B are merely the infrastructure, and the right to a grant will not be complete and final unless rules are enacted to regulate the methods of receiving the grant? If the latter interpretation is the correct one, then the petitioners did not acquire a right to a grant in those six week, and the application of s. 20 retroactively did not infringe any right since they had not acquired one.

10. A consideration of the provisions of s. 6B of Amendment 5 does not leave us in any doubt; we know that whoever complies with those preliminary conditions prescribed in the first part of s. 6B(a) acquires a clear right ex lege to receive the grants set out in the law. The right is granted directly by the law, and the executive authority did not acquire any power to delay the payment or to make it subject to additional conditions that are not prescribed in the law. The right of the entitled persons is a specific right, a clear and express right that makes itself conditional only on the conditions prescribed in the first part of s. 6B(a): first, that a recipient of the grant is ‘an entitled person, including someone recognized as entitled to a housing distress programme for apartment owners,’ and second, that the person claiming a grant bought an apartment or extended an apartment in Jerusalem. If both of these conditions were fulfilled during the critical six weeks, the applicant is entitled to a grant. Indeed, the executive authority is entitled — perhaps we should say, obliged — to formulate rules, and even strict rules, for proving compliance with those two preliminary conditions that give entitlement to a grant. And we agree that these rules were not determined during those six weeks. However, the failure to enact the rules was insufficient to affect or invalidate the substantive right of the entitled persons to a grant. Their right remained valid, and the failure to enact rules for implementation was incapable of derogating from the existence and validity of the right.

11. The State does not stop here, and it goes on to raise, in the same context, an argument that is a variation on the issue of the preliminary conditions for the validity of the law. According to the State, even if the petitioners acquired a right de jure, they never had any real expectation of realizing it. Consequently everyone agrees that during the lifetime of s. 6B — in those six weeks between the commencement of s. 6B of the Housing Loans Law and the commencement of s. 20 of the Arrangements Law — it was not possible to receive the grant from the banks; moreover there was talk of the Government taking action to cancel s. 6B. It follows from this, the State argues, that ‘there was no basis for the petitioners to have any reasonable expectation of receiving the amount.’ Therefore, prima facie, the petitioners never acquired any real right, a right that ought to be protected. In other words, because the petitioners did not have a reasonable expectation, a real expectation, that they would receive a grant, they ought therefore not to be regarded as having a right to a grant — a right that the law seeks to protect.

But the State’s argument is no argument. From a simple reading of the provisions of s. 6B we can see that whoever fulfils two preliminary conditions set out in the first part of s. 6B(a) is entitled directly and by virtue of the statute itself to receive a grant, and no interpretive acrobatics will succeed in interpreting the provision of the law otherwise. So, whoever fulfilled those two preliminary conditions acquired a right — a right that is unconditional — to receive grants as set out in the law.

12. The State further argues: if we interpret s. 6B, in and of itself, in the absence of rules for implementation of the right to a grant, then a person could have bought an apartment in Jerusalem, received a grant, and the next day sold the apartment to someone else. Is this possible? This is an indication, so the State ends its argument, that it was not possible to implement the law without rules; and once we realize that no rules were made, we will also know that the petitioners did not acquire a real right to receive a grant. This claim has no merit. It has no merit not because it is not a good argument in general; it is a good and proper argument in general. But the law in this case is so clear in its language that the argument has nothing to which to attach itself. We should point out, parenthetically, that a restriction of this kind exists apparently in rules that were prescribed under the Housing Loans Law, in its original form, and a hint of this can be found in the deliberations of the Finance Committee (see: pp. 52-53 of the minutes of the meeting of the Finance Committee on 11 September 2000, as published on the Knesset web site). However, since the rules were not presented to us, we cannot say anything for certain. In any case, even this argument that the application of the provisions of s. 6B should be restricted, has, in our opinion, no foundation either in statute or case law.

13. From all of this we see that the right of those persons listed in the provisions of s. 6B of the Housing Loans Law is a right ex lege, a right that is not conditional upon the fulfilment of additional conditions to those prescribed in that provision.

Section 20 of the Arrangement Law — the repeal provision

14. The second provision of statute in this matter — and this is the main one — is found in s. 20 of the Arrangements Law (which was published in Reshumot on 4 April 2001), which states as follows:

‘Housing Loans Law — Amendment no. 7

20. (a) In the Housing Loans Law, 5752-1992 (in this section — the Housing Loans Law) —

(1) Section 6B, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem” shall be marked “6C,” and it shall not apply in the period from 22 Shevat 5761 (15 February 2001) until 16 Tevet 5762 (31 December 2001);

 

         …

 

(b) The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001).

 

(c) Notwithstanding the provisions of section 6B of the Housing Loans Law, which is entitled “Special grant for purchasing or extending an apartment in Jerusalem,” according to its language prior to the commencement of this law, no person shall be entitled to the benefits under the aforesaid section in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’

The provisions of section 20, for our purposes, fall into two parts. One part — which is the main one — is prospective and its purpose is to postpone the application of the provisions of s. 6B of the Housing Loans Law into the future. Another part is retrospective, and its purpose is to make that postponement retroactive, from the date on which the provisions of s. 6B came into effect. We are now concerned with the retroactive part of s. 20, and we will consider the details of this issue in our remarks below.

The order of our deliberations

15. The petitioners argue that s. 6B of the Housing Loans Law gave each one of them a right to receive pecuniary grants as set out in s. 6B; that the retroactive application of the provisions of s. 20 of the Arrangements Law purports to deprive them of their right; that the denial of this right is clearly in conflict with s. 3 of the Basic Law: Human Dignity and Liberty, which commands us that ‘A person’s property shall not be infringed;’ this leads to the conclusion that the retroactive application of s. 20 of the Arrangements Law is void. The argument of the petitioners is therefore simply this, that s. 20 of the Arrangements Law is null and void, in so far as it seeks to apply itself retroactively, in that it conflicts with the protection of property as stated in s. 3 of the Basic Law: Human Dignity and Liberty.

However, as we have repeatedly said, before we consider an argument that a statute is void, we must first interpret the statute according to its language and according to its purpose; to go on to determine the scope of its application; and in the course of this interpretation, we are obliged to do our best to try and reconcile the provisions of the statute with the provisions of the Basic Law. See and cf. CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 349-350; HCJ 5503/94 Segal v. Knesset Speaker [3], at pp. 548-550. Let us therefore begin our voyage by interpreting s. 20 of the Arrangements Law. It need not be said that if we reach the conclusion that the provisions of s. 20 do not purport to apply retroactively, or if, alternatively, s. 20 can be applied retroactively only in some cases but not in others, then we will be obliged to derive conclusions from this for the case before us, and it is possible that the consideration of the constitutional issue will thereby become redundant. But let us not jump ahead of ourselves.

Concerning the retroactive application of s. 20 of the Arrangements Law

16. There is a presumption, both in statute and in case law, that a statute is prospective — prospective, but not retrospective. A statute is intended to regulate interpersonal relationships, and it therefore follows that by its very nature it is prospective. See and cf. s. 10(a) of the Government and Justice Arrangements Ordinance, 5708-1948; s. 17 of the Interpretation Ordinance [New Version]; s. 22 of the Interpretation Law, 5741-1982; CA 238/53 Cohen v. Attorney-General [4], at pp. 16, 38 {___, ___}; PPA 1613/91 Arbiv v. State of Israel [5]; CrimA 4912/91 Talmai v. State of Israel [6], at pp. 619 et seq.; HCJ 5290/97 Ezra, Israel National Orthodox Youth Movement v. Minister of Religious Affairs [7], at p. 424; A. Barak, Legal Interpretation (vol. 2, Interpretation of Legislation, 1993), at pp. 609 et seq.. The source of this presumption, inter alia, lies in the recognition that the application of a statute retroactively may cause an injustice, violate rights that have been acquired, undermine stability and certainty in interpersonal relationships and harm just expectations. But this presumption — that a statute is only prospective — like every other presumption is rebuttable in the interpretation of a particular statute; and the question whether a particular statute or regulation operates retroactively or not is a question of interpretation. The question that must be asked is a double one: first, did s. 20 of the Arrangements Law seek to apply itself retroactively? If the answer to the question is yes, then a second question arises, namely: must that retroactive application be complete or is it possible to interpret it as merely partial?

17. The answer to the first question is unambiguous. In at least three places the legislature wished to inform us that s. 20 operates retroactively, from the date of the commencement of Amendment 5, namely from 15 February 2001. The legislature informed us of this the first time in s. 20(a)(1), where it stated that Amendment 5 — or more precisely, s. 6B of the Housing Loans Law as added by Amendment 5 — shall not apply ‘in the period from 22 Shevat 5761 (15 February 2001) until…’. The law states this a second time in s. 20(b), where it says that ‘The commencement of sub-section (a)(1) is on 22 Shevat 5761 (15 February 2001),’ as if we did not know this from what is stated in section 20(a)(1) itself. And in case we fail to understand the express provisions that we have cited, the legislator took pains to notify us a third time of the issue of the retroactive application, by stating in s. 20(c) that, notwithstanding the provision of section 6B that was added in Amendment 5 on the subject of a ‘special grant for purchasing or extending an apartment in Jerusalem,’ nonetheless no person shall be entitled to these benefits ‘in the period from 22 Shevat 5761 (15 February 2001) until the commencement of this law.’ Not once, not twice, but three times! Indeed, the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5. The interpretation of s. 20 of the Arrangements Law in respect of the retroactivity is an unambiguous interpretation. The legislature succeeded again and again in informing us of its intention that the denial of the benefits was intended to operate retroactively, from the date of the commencement of the law that granted those benefits, and thus the presumption of non-retroactivity was entirely rebutted.

18. Finally we should add that this unambiguous intention is also evident from the deliberations that took place at the Finance Committee. In those deliberations a proposal was made to the effect that the application of the suspending law would be prospective only, but the representative of the Ministry of Finance opposed this vehemently, and consequently the law as we have it was enacted. The following is a part of the discussions at the Finance Committee on 27 March 2001:

Chairman Yisrael Katz: And what will happen to the law in the interim?

Yitzhak Cohen: We must at least agree on the commencement of the law. Is the first of May acceptable?

Ohad Marani [Director of Budgets at the Ministry of Finance]: No…

Yitzhak Cohen: I propose that we agree to suspend it until the first of June…

Yaakov Litzman: The statute was passed and published. People have bought apartments on the basis of the knowledge that there is an increased loan. It is impossible now to say that this will commence later. First there needs to be a declaration of the Ministry of Finance, before we continue, and until that moment — the statute exists…

Chairman Yisrael Katz: What is the position of the Ministry of Finance with regard to the proposals?

Ohad Marani [Director of Budgets at the Ministry of Finance]: Certainly not. That was not the arrangement. We wish to postpone the statute, as was agreed. This is a statute that costs a considerable amount of money, 160 million sheqels. We wish to postpone it as agreed.

(Pages 30-31 of the minutes of the meeting of the Knesset Finance Committee on 27 March 2001, as published on the Knesset web site).

19. The essence of the matter is that s. 20 of the Arrangements Law was intended to apply retroactively. But in saying this we have still answered only the first part of the double question. For even if s. 20 of the Arrangements Law was intended to apply retroactively — from the date of the commencement of s. 6B of the Housing Loans Law as added in Amendment 5 — there still remains the question as to which activities s. 20 is supposed to apply. Is the retroactive application all-embracing, applying to every subject matter and for all intents and purposes, or perhaps it is only a partial application? And if it is a partial application, what is the part to which s. 20 applies and what is the part to which s. 20 does not apply? Let us now confront this question.

20. To which classes of cases in the past was s. 20 of the Arrangements Law intended to apply? In order to remove doubt, we should add that in speaking of the ‘intention’ of s. 20, we are not referring to the subjective intention of all or some of the Members of Knesset, and certainly not to the intention of the Government or its representatives. We are referring to the message and purpose required by s. 20 in and of itself, when combined with existing legislation and case law, and especially when integrated with the basic principles and doctrines that constitute the framework within which the legislature enacts legislation and the judiciary determine case law. As was stated in CFH 7325/95 Yediot Aharonot Ltd v. Kraus [8], at pp. 73-74:

‘It is accepted that the interpretation of a statute begins with the words of the statute. This statement is correct, of course, when we wish to study the words and phrases of the statute. But it is we who do our utmost to interpret it, and we are not a tabula rasa. Before we approach the statute we must ask: who are we, and the answer to this question is that “we” are those proper values, principles, morality and fundamental outlooks. It follows therefore that we begin the voyage of interpretation — whether wittingly or unwittingly — with those values and principles and doctrines — the foundation on which the law is based — and from these our voyage continues. We cannot “understand” a statute unless we analyze it with the analytical tools that we carry about with us, and these analytical tools are what will guide us… Let us know and remember that legal interpretation is — always and forever — a legal creation, an ethical creation, an inseparable part of the culture of a people and country.’

21. Two alternative interpretations of s. 20 offer themselves for our selection, and the question before us is which of the two is preferable. One interpretation proposes that we read s. 20 according to its text and language, combining words and sentences, and deriving the meaning and the dictates of the statute from those combinations of words and sentences. In years past, we called this interpretation — literal interpretation. If we choose this interpretation, we will conclude that the retroactive application of s. 20 is all-embracing; it is retroactive for all intents and purposes, as if s. 20 was enacted on the day when s. 6B was enacted. According to this interpretation, the provisions of s. 20 were intended to suspend the provisions of s. 6B absolutely and in every respect, until it would one day be revived.

An alternative interpretation of s. 20 may be called a purposive interpretation, and this is indeed what it is. It need not be said that this interpretation does not ignore the combinations of words and sentences in the statute, but in order to discover and comprehend the essence and the content, the interpretation will take into account the historical background of the legislation in its time and place, the objective purpose of the legislation, the difficulties that the legislator wished to overcome, the evil that the provision was designed to prevent; the events that have occurred from the time that s. 6B came into existence until the enactment of s. 20; to all of these we will apply our accepted rules of interpretation, the rules that express the values and the basic principles upon which the legal system and the social order are founded. See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71 et seq.; Segal v. Knesset Speaker [3], at 562 et seq., and the references cited therein. This is what we will do with regard to s. 20 and this is what we will do with regard to s. 6B of the Housing Loans Law.

Which of these interpretations should we prefer, and which shall we reject?

22. We are speaking of the interpretation of s. 20 of the Arrangements Law, but since we know that s. 20 only came into existence because of s. 6B of the Housing Loans Law, it is only logical that we should begin the voyage of interpretation precisely with the provisions of s. 6B. As for this provision of statute, we know that originally it was intended by its promoters to prevent migration away from Jerusalem, to encourage persons entitled to housing to prefer Jerusalem when they wanted to buy or extend an apartment, and to strengthen the status of Jerusalem as the capital of Israel. See supra, para. 2. Admittedly, Ministry of Finance representatives thought that these purposes would not be achieved by means of grants as the promoters proposed, but the Knesset thought otherwise, and that is the thinking behind the law. And so, when the Knesset enacted s. 6B, the petitioners hurried off — so they claim, each with regard to himself — and in reliance on the promise of the State in s. 6B they bought apartments or took steps in order to extend their apartments. The petitioners claim, therefore, that they took upon themselves pecuniary undertakings and changed their position in reliance upon an undertaking given by the legislator — the State’s undertaking — that they would be given various grants for the purchase of an apartment that they bought or for the extension of an apartment that they possessed.

In view of all of the aforesaid, we will have difficulty in adopting an interpretation that recommends us to ignore totally the moral and social aspect involved in the breach of the undertaking that the State took upon itself, i.e., a breach of the undertaking to give grants to whoever pursued the path that the legislator outlined in s. 6B. If the State acts in this fashion, what will the individual say and what will the public say? If the leaders of the country — those who sit in the legislature — repudiate the promises that they have made and the undertakings that they took upon themselves, what will members of the public do and say? Indeed, we will find it difficult to accept that the legislator reverses his tracks in this way, repudiates his undertaking to the individual and abandons along the way whoever followed him. The state ought to act honestly and carry out undertakings that it took upon itself, and the state can be presumed to act in this way. These principles of substance translate themselves into the language of interpretation, and it necessarily follows that obviously the retroactive application of s. 20 of the Arrangements Law was not originally intended to apply — we might almost say: is incapable of applying — to someone who relied on the legislator’s promise and clearly changed his position. As Justice Strasberg-Cohen wrote in HCJ 1149/95 Arco Electric Industries Ltd v. Mayor of Rishon LeZion [9], at p. 574, with regard to the factor of reliance as the decisive factor in disqualifying retroactive legislation:

‘An important factor is the existence of harm to the actual reliance on existing legislation and the degree of reliance thereon. Retroactive legislation that harms reliance cannot be compared to retroactive legislation that does not harm it at all or to a significant degree.’

The petitioners before us argue, each with regard to his own case, that they bought and extended apartments in reliance on s. 6B of the Housing Loans Law, and therefore, prima facie, the retroactive application provision passes over them and does not affect them. Being mindful of the basic principles on which the Israeli legal system is founded, we can say that the retroactive application of s. 20 was not originally designed to apply to someone who acted and changed his position in reliance on the provisions of s. 6B. The retroactive application was intended to apply only to someone who did not rely on the State’s promise as stated in s. 6B, i.e., someone who bought or extended an apartment without there being any causal connection between the purchase or extension of the apartment and the State’s promise in s. 6B.

23. Interpreting s. 20 in this way will uphold in its entirety the purpose of s. 6B as its promoters foresaw. Section 6B only came into existence in order to prevent migration away from Jerusalem and to encourage persons entitled to housing to prefer Jerusalem when buying or extending an apartment. So, if someone intended in any case to buy an apartment — or to extend an apartment — in Jerusalem irrespective of the benefits that the legislator wished to grant in s. 6B, then the purpose of s. 6B would not be prejudiced by denying the benefits retroactively.

Indeed, initially the law granted s. 6B benefits to whoever complied with the s. 6B conditions even if they did not rely on the legislator’s undertaking. However, for the purpose of determining the scope of the application of s. 20, and relying on the basic presumption — which adopts the guise of a rule of interpretation — that tells us that the legislator will not act unjustly to an individual nor will he turn his back on persons who followed him and relied on promises and undertakings that he made, we will interpret s. 20 as seeking to apply only to persons who did not rely on the legislator’s promise and not to apply to persons who relied on the legislator’s promise. Justice Barak expressed these ideas well in Arbiv v. State of Israel [5], when he said the following (at pp. 776-777):

‘The presumption is that a statute does not apply retroactively… the basic approach is that “applying a new statute to a transaction that was completed before the statute was published, where those concerned have acted and completed it in reliance on the law in force at that time, may be wrong and unjust”… retroactive or retrospective legislation conflicts with “accepted concepts of justice”… and the presumption against this legislation is required in order to do justice. The principle of the rule of law requires certainty and security in interpersonal relationships. Retroactive legislation harms both of these… it does not allow conduct to be planned in advance, and therefore it also harms the stability of the law…’

24. In saying this we have only said a half of what needs to be said. In relying on the provisions of s. 20 of the Arrangements Law, and in thinking that this provision is capable of denying the rights of the petitioners, the State rejected in limine the demand of the petitioners to receive grants, and in any case it did not consider their requests on the merits. Thus the question whether the preliminary conditions set out in s. 6B of the Housing Loans Law were satisfied or not was not considered, and the question whether the petitioners bought or extended apartments in Jerusalem in reliance on the undertaking in s. 6B, as they claimed, was certainly not examined. All of these questions need to be examined on the merits, and it need not be said that the petitioners have the burden of proving that they are indeed entitled to the grants as they demand. In this regard, the State is competent to determine proper proceedings that will allow the petitioners to prove what they are liable to prove, namely the fulfilment of the conditions prescribed in s. 6C (originally s. 6B) of the Housing Loans Law and a change of their position in reliance on the State’s undertaking, and at the end of these proceedings to decide in respect of the request of each of the petitioners. In order that the proceedings will not be prolonged excessively, we will propose the following timetable: within thirty days from today, the State shall determine the proceedings, and within an additional ninety days — assuming that the petitioners cooperate with the State — decisions shall be made with regard to the petitioners’ requests.

25. Our decision with regard to the method of interpreting s. 20 of the Arrangements Law makes a consideration of the constitutional question (see supra, at para. 15) redundant, and we will therefore not enter into it.

In summary

26. I propose to my colleagues that we make the order absolute as stated in para. 24 supra, and that we further find the State liable to pay the petitioners in each of the three petitions legal fees of NIS 25,000.

Subsequent reflections

27. I have carefully read the opinions of my colleagues Vice-President Mazza, Justice Türkel and Justice Rivlin. My colleagues, each following his own path and his own style, are of the opinion that the retroactive provision in s. 20 of the Arrangements Law is void ab initio, and their main reason for this is that if we say otherwise — as I have, for example — then we have overstepped our authority as a court and we have taken upon ourselves the role of legislator. My interpretation that seeks to distinguish between various classes of persons having rights, while restricting the application of s. 20 merely to those persons who did not rely on Amendment 5 of the Housing Loans Law, does not have, in my colleagues’ opinion, even a ‘minimal foothold in the text,’ and according to them it amounts, ‘in practice, to a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation’ (Vice-President Mazza, in the first paragraph of his opinion). My colleague Justice Rivlin speaks in similar terms, and whoever reads his remarks will comprehend his meaning.

28. I find this surprising, and I ask myself what is this fear of the legislator that has so suddenly overwhelmed my colleagues, that it may be said of us that we have broken down the barriers and gone ‘beyond the confines of what is possible and what is permitted’ (in the language of my colleague Justice Rivlin in para. 3 of his opinion). Yet we engage in this kind of ‘legislative’ activity from time to time. Moreover, my colleagues’ decision is that the retroactive provision of s. 20 of the Arrangements Law is void ab initio. Is this normative activity of declaring a provision of statute to be void ab initio not ‘legislative activity’? Indeed, the court is supposed to make its decision by virtue of a Basic Law, but this does not lessen the fact that the decision is a legislative decision that voids statute. Moreover, my colleagues’ decision is to suspend for six months the commencement of their judgment. Does this decision to suspend not have an aspect of legislation to it? Indeed, the statement that certain normative activity of the court is a ‘legislative’ activity — i.e., activity that trespasses on the province of the legislature — is a statement that cannot, in and of itself, captivate or intimidate us. We are charged with examining the decisions that we make diligently and painstakingly, and we should determine the character of normative activity on the merits and not by affixing labels that are prefabricated.

29. On the merits, the drafting of s. 20 of the Arrangements Law appears, on the face of it, to apply itself to the past universally, to impose itself on every event that has occurred and to every act that has been done concerning the special grant involved in the purchase or extension of an apartment in Jerusalem, between 15 February and 4 April 2001 (the day on which the Arrangements Law was published). This is the interpretation of the application of s. 20 retroactively from the date of commencement of s. 6B of Amendment 5. From the viewpoint of the legislation, in and of itself — or we might say, from a merely normative viewpoint — there is no difficulty in this. Just one stroke of the pen, and a statute that is enacted today carries itself into the past at the whim of the legislator. Such is the act of legislation. But life — the life of man and his surroundings — is different. No matter how much we wish or yearn to do so, no man can change acts and events in the past, not even a legislator:

‘We are unable to change the past (to the regret of some and to the happiness of others). Acts that were done, were done; omissions that were committed, were committed; events that occurred, occurred; vows that were made, were made; vows that were breached, were breached. All of these are as if they froze on the spot and became stone, and what has been done cannot be undone. We are incapable of doing anything other than describing and recording things that have happened — or that have not happened — but we are unable to change them. The freedom of choice and selection — as choice and selection — are no more’ (Talmai v. State of Israel [6], at p. 619).

Therefore a kind of dichotomy arises: from a historical point of view, we cannot change events in the past, but from a normative point of view, we find legislation that seeks to take control of events in the past that were originally governed by a different law.

This is what happened in the case before us: during the period of the retroactive application of the statute, events occurred that were of legal significance according to the law that prevailed at that time, and no one can change these events. In view of all this, the pertinent question is whether the legislator, and we as interpreters of the statute, are able and permitted to ignore those events as if they did not occur.

30. Let us now examine those events of legal significance that occurred in the period between 15 February 2001 and 4 April 2001, and we will discover that the entitled persons stipulated in the original s. 6B fell into several categories. The following are the main categories: first, entitled persons who relied on the State’s undertaking in Amendment 5 and bought or extended an apartment in Jerusalem; second, entitled persons who bought or extended an apartment in Jerusalem without relying on the State’s undertaking in Amendment 5; third, entitled persons who took various preliminary steps towards the purchase or extension of an apartment in Jerusalem, but did not reach the point of buying or extending an apartment; fourth, entitled persons who did nothing. The fourth category of entitled persons does not concern us here. We are therefore left with the other three categories of entitled persons. Against this background the question arises: there is no doubt that s. 20 of the Arrangements Law, according to its language and at face value, purports to take control of all those events and rights that were acquired, namely to ignore all those events and all the rights that were acquired. But we are experienced interpreters of statute who are continuously called upon for the purposes of interpretation, analyzers of statute equipped with analytical tools and high-powered microscopes; we know how to interpret and analyze even legislation that appears to violate — unfairly — basic rights or rights even if they are not basic rights. Let us therefore proceed to the task.

31. A first principle is that the legislature can and may knead legislation as it wishes, as long as the legislative proceedings are in progress. But when a statute has left the bakery, the baker can no longer put his mark upon it or express an opinion about its quality. The decision concerning the validity, scope of application and interpretation of the statute lies with the court — the court and no other. See and cf. CFH 4757/03 Land Appreciation Tax Director v. M.L. Investments and Development Ltd [10]; LCrimA 1127/93 State of Israel v. Klein [11], at pp. 500-501.

A second principle, which is of inestimable value, is that when approaching the task of interpreting statute, we do not come empty-handed. We come heavily laden with morality, fairness, justice, equity and efficiency. We come with language, interpretation and meaning, social norms, conventions, basic premises, fundamental principles and doctrines. We come with the theory of the separation of powers and the principle of the decentralization of powers. We come with the tools of PaRDeS[1] (Interpretation, Implied Meaning, Homiletic Exegesis and Hidden Meaning). See and cf. Yediot Aharonot Ltd v. Kraus [8], at pp. 71-74. All of these principles and values translate themselves into rules of interpretation that are applied in practice — narrow interpretation, broad interpretation, presumption of administrative regularity, ut res magis valeat quam pereat, etc. — and this is what we do in our everyday work of interpretation.

32. For our purposes we can say that when subjecting the provisions of s. 20 of the Arrangements Law to the filter of values, principles and rules, we are charged with doing our best to uphold the statute, so that the dictates of the legislature are upheld, in so far as possible, even if only partially. Thus, when we put the provisions of s. 20 into the time tunnel, and we send it back into the past to 15 February 2001, we meet on our way those entitled persons who relied on the State’s undertaking and carried out acts that changed their position. Applying the statute literally is likely to cause hardship to those entitled persons, and it is possible that it will even lead them to disaster. In the words of my colleague Justice Rivlin, not allocating the promised funds to those entitled persons will be ‘equivalent in many senses to taking away the apartments in which they live.’ The ‘objective’ interpretation of the statute requires us therefore to interpret it narrowly, i.e., as a statute that does not intend to apply itself to those entitled persons. We make use of this tool of narrow interpretation on a daily basis, and I do not see in what way this case differs from other cases; why in other cases we should give a warm welcome to narrow interpretation, whereas in this case we should reject it utterly.

33. In our opinion, the text can indeed bear the interpretation that we proposed without collapsing under the weight. It follows that we shall not apply the provisions of s. 20 to entitled persons who relied on the Government’s undertaking and changed their position. But the same will not necessarily apply to other categories of entitled persons, such as, for example, entitled persons who bought or extended an apartment in the relevant period without knowing about, and therefore without relying on, the State’s undertaking.

34. My colleagues will certainly not deny the blue pencil principle, namely the principle of separating and distinguishing between the invalid and unhealthy part of a statute, which should be voided, and the valid and healthy part of that statute. See, for example, A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 735 et seq. (and as we have seen, invalidating a statute, or a part thereof, is equivalent to an act of legislation). Why therefore should we not apply this principle to this case also? Admittedly, the cases differ from one another. The (usual) blue pencil principle assumes a physical possibility of circling (with a ‘blue pencil’) the defective part of the statute (or of the contract) and to cut it out of the actual text. This is not the case here, since the categories of entitled persons are not listed in the law one after another, but are included in the statute in one category. However, I can see no magic in the ‘physical’ ability of cutting parts out of the statute and throwing them into the bin in order to uphold the other part of the statute. There is nothing in my opinion to prevent an interpretation of s. 20 as if all the categories of entitled persons whom we have mentioned are listed there, one after another (see para. 30; and if I have omitted a category of entitled persons, we can add it to the list), and after a close examination we can cut out and remove what is unhealthy and keep what is healthy. It is also possible to regard the entitled persons as listed in the statute one on top of the other, and we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin. The cutting will not be vertical, like the cutting of the blue pencil, but horizontal, like the peeling of the onion. We were taught this by Justice Silberg in HCJ 163/57 Lubin v. Tel-Aviv-Jaffa Municipality [12], at p. 1074 (on the question of declaring a bylaw void, in whole or in part):

‘… Already at the beginning of the eighteenth century a more liberal spirit prevailed, and a qualification was made to this doctrine. The qualification is: unless there is a way of “dividing” up the statute, and it is possible to distinguish between the invalid part and the valid part thereof. In other words, the partial defect in the bylaw does not lead to its complete disqualification, when the two parts are not dependent on, or in conflict with, one another, and it is possible for the valid part to stand without relying on the other part.

…

It seems to me that the stability and coherence of the remaining permitted part should be examined not merely from the viewpoint of the “syntactical” structure of the language of the statute, but also, and mainly, from the viewpoint of the substantive content thereof. If the bylaw of any public corporation tries to apply itself to two classes of persons, and something is found to be invalid with regard to one of these, it will still be regarded as valid with regard to the other class — even if it will be necessary to delete or add several words — unless the two classes are so bound to one another that it is impossible to separate them’ [emphases in the original].

Indeed, the examination ought to be one of substance and not merely one of form.

We concede that the voyage of examining substance may be full of pitfalls and care must be taken with regard thereto. But I think that in our case we will not encounter any special difficulty, since there is a division and distinction between the different classes of entitled persons, and I have not found any good reason not to hold the State liable where it should be liable, and to exempt it where it should be exempt. In conclusion we can reiterate that we do not see any difference — in the sense of a legal distinction — between the ‘classic’ blue pencil principle and the peeling of layers in our case.

Suspending the validity of the judgment

35. My colleague Vice-President Mazza proposes that the validity of the decision concerning the invalidity of the retroactive provisions of s. 20 of the Arrangements Law should be suspended for six months, and the purpose of the suspension is ‘to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.’ The purpose of this suspension seems to me problematic, since without any great difficulty we can already, in my opinion, reach the same conclusion today. A short path appears to me preferable to a long one.

Voiding a statute and upholding a statute

36. My colleague Vice-President Mazza sees fit to void a provision of statute, whereas I uphold that provision of statute, while interpreting it narrowly. But expressing matters in this way is merely an optical illusion. From an operative point of view, the narrow interpretation that I have adopted is equivalent to a partial voidance of s. 20 of the Arrangements Law. The difference between the interpretation of my colleague and my interpretation is this, that the narrow interpretation which is preferable to me brings finality to those persons who relied on the State’s undertaking and changed their position, whereas my colleague’s interpretation makes it possible for a future statute to create parameters that may perhaps harm the rights of those who relied on the State’s undertakings. So I ask: once my colleague has reached the conclusion that those persons who relied on the State’s undertaking and incurred unnecessary expenses, are entitled to receive their grants, what justification is there for us not entitling them, immediately, to what they seek? The question provides its own answer.

Who is all-powerful and what is all-powerful?

37. My colleague Justice Rivlin writes in his opinion (in paragraph. 3) as follows:

‘Even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of the surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power.’

I would like to make two comments on these remarks, one concerning Parliament and the other concerning the courts.

38. Concerning Parliament, unlike my colleague, my opinion is that Parliament was always able — as it is today — to make a man a woman and a woman a man, even without the surgeon’s scalpel. A.V. Dicey, in Introduction to the Study of the Law of the Constitution (London, eighth edition, 1924), at p. 41, wrote as follows:

‘It is fundamental principle with English lawyers, that Parliament can do everything but make a woman a man, and a man a woman.’

I commented on this statement when I wrote (in United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at p. 527):

‘This statement is, of course, imprecise. If the author’s intention is that Parliament does not have the power to make a man a woman and a woman a man — taking the words literally — then the remarks are certainly correct. But then they have no significance whatsoever, since in the same way Parliament does not have the power to move a pencil from one side of the table to the other. Parliament — as such — does not concern itself at all with physical actions, and it does not have the power to make physical changes in the world about us directly. Parliament only concerns itself with norms and normative activity, and it is in this field that it has power and authority. If the intention of the author is therefore that Parliament is “unable” — from a normative point of view — to make a woman a man and a man a woman, it is obvious that the statement is incorrect. In the wonderful world of norms — a world that cannot be perceived by the five senses but that rules our lives — the Knesset “can make” a man a woman and a woman a man. It is a separate question whether those persons to whom the norms are supposed to apply will abide by them. That question, it need not be said, falls outside our jurisdiction.’

And so, in the creation of norms in the world of norms, Parliament is all-powerful. Parliament does not have — nor did it ever have — a surgeon’s scalpel that can draw blood. But it had, has and always will have a normative surgeon’s scalpel.

Concerning the courts, it is true that the court is not all-powerful like Parliament, but it too has power. Thus we see that not so many years ago — twenty or twenty-five years — it never occurred to any woman or man that the concept ‘spouse’ in the Torts Ordinance extended also to unmarried partners. But in recent years we have said this: CA 2000/97 Lindorn v. Karnit, Road Accident Victims Fund [13]. See further the remarks of President Barak, ibid., at pp. 32-33. And in former generations, even someone who exercised his imagination could not have conceived that two women would be registered at the Population Registry as the mothers of an infant, since ‘a person only has one mother.’ But in recent years this has happened: HCJ 1779/99 Brenner-Kadosh v. Minister of Interior [14]. It is therefore possible that in suitable circumstances a court will make, in our lifetime or thereafter, additional decisions that our ancestors never imagined.

 

 

Vice-President E. Mazza

Like my colleague, Justice Cheshin, I too think that the interpretation of s. 20 of the Arrangements Law (‘the suspending law’) on the question of its retroactivity is unambiguous. As he says, ‘the legislature did not give the learned interpreter any credit at all, and its fear of the presumption of non-retroactivity was so great that it saw fit to tell us again and again that its intention was to uproot benefits ab initio, from the date of the commencement of Amendment 5.’ But unlike my colleague I am of the opinion that it is not possible to overcome this unambiguous provision by means of interpretation. In my opinion, it is not reasonable to expect the legislature to clarify its intention more decisively that it did in ss. 20(a)(1), 20(b) and 20(c). This is a clear and comprehensive directive and I can see no linguistic possibility of restricting it in a way that will apply only to some of the persons entitled to a grant under Amendment no. 5 of the Housing Loans Law (‘the entitling law’). In any case, it is not possible to interpret the suspending law as applicable only to whoever did not rely on the entitling law. Such an interpretation does not even have a minimal foothold in the text. It constitutes, in practice, a change in the language of the statute, and as such it departs from the legitimate boundaries of interpretation (cf. Justice Cheshin’s criticism of the doctrine of the ‘concealed lacuna’ in a statute: CA 3798/94 A v. B [15], at pp. 177-178 {298-299}. For the distinction between interpretive activity and extra-interpretative activity, which requires a distinct source of authority, see: A. Barak, Purposive Interpretation in Law (2003), at pp. 101 et seq.).

In such circumstances, we are obliged to examine the constitutionality of the retroactive application of the suspending law in accordance with the constitutional criteria set out in the Basic Law: Human Dignity and Liberty. Indeed, I too accept that whenever it is possible to refrain from constitutional intervention in the validity of a statute by giving an interpretation — even if it is a ‘creative’ interpretation — to a provision of a problematic statute, we are obliged to prefer this method. But even interpretation has its linguistic limits. We are not speaking of a choice between ‘literal interpretation’ and ‘purposive interpretation,’ but of a choice between purposive interpretation that is based on the text and purposive interpretation that is divorced from it. In any case, there is no basis for such great fear of the constitutionality test. Even when unconstitutionality is discovered in a statute, this does not necessarily lead to drastic consequences. Constitutional law allows a moderate and precise correlation of the remedy to the nature of the constitutional violation and all the interests involved therein (see: A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation (1994), at pp. 699-775).

What does the constitutionality test tell us in the case before us? Like my colleague Justice Cheshin, I too am of the opinion that the entitling law gave the persons entitled thereunder a substantive right, and that the legislature was not entitled, when enacting the suspending law, to ignore the reliance of those persons on the entitling law. This substantive right amounts to ‘property,’ within the meaning of s. 3 of the Basic Law (see: United Mizrahi Bank Ltd v. Migdal Cooperative Village [2], at pp. 431-433, and also my comment on p. 578). I am also prepared to accept that the harm to the property of whoever did not adversely change his position in reliance on the entitling law complies with the conditions of the limitation clause in s. 8 of the Basic Law. In other words, in the absence of a legitimate interest of reliance, there is a presumption that the legislature that gave may also take away, and this should not be seen to contain any constitutional defect. But this is not the case with harm to someone who relied on the aforesaid property right and adversely changed his position as a result of the entitling law. Even if we regard this harm as befitting the values of the State of Israel and designed to achieve a proper purpose, it cannot be regarded as proportional harm. Proportional harm to the property of someone who relied on the entitling law must, at the very least, have taken into account various parameters connected with his reliance, such as the degree of legitimacy of the reliance, its strength and the criteria for proving it. The suspending law does not relate to these questions at all, and even from the history of its legislation we do not find that the legislature took any account of them.

It should be noted that in all of the aforesaid I am not adopting any position on the constitutional question of the entitling law itself. The respondents argued that this law was defective ab initio, inter alia because it did not promote the purpose for which it was enacted and because it unlawfully violated the principle of equality governing the whole class of persons lacking housing in Israel. But even if we assume that there is a foundation to those arguments, that in itself will be insufficient to remedy the disproportionate constitutional violation of the suspending law to the property of those persons who relied on the entitling law; they were not responsible for the alleged defects, and it is not fair that they should suffer the consequences thereof.

What then is the appropriate constitutional remedy in this case? One possible path is to declare the suspending law void in its entirety, effective immediately. In the circumstances of this case that would be the most drastic intervention in the validity of the statute and in the work of the legislature (see Barak, Constitutional Interpretation, at pp. 734-735). It significance is a blanket voiding of the constitutional parts of the statute, and consequently, inter alia, significant harm to the State budget. Another possible path is that we take upon ourselves the task of amending the defective statute, for example by means of separating the unconstitutional part from the constitutional parts, or by means of ‘extending the statute’ (ibid., at pp. 735-740, 759-767). Adopting this path admittedly does not harm the constitutional parts of the statute and significantly reduces the harm to the State budget, but adopting it still involves an ‘aggressive’ intervention in constitutional activity. Following this path also places institutional difficulties before the court, in view of its limited ability to formulate primary arrangements and to consider all of the relevant factors instead of the legislature. A third possible path is to declare the violating statute void, in whole or in part, but to suspend the validity of the voidance for a period that will allow the legislature to amend the constitutional defect. We have already followed this path in the past (HCJ 6055/95 Tzemah v. Minister of Defence [16], at p. 284 {687}; HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [17], at pp. 415-416). It seems to me that in our case too this path should be followed, since it is preferable to the other possible paths. The advantages of this path are obvious: it allows the legislature to consider the question of reliance concerning the suspension of the entitling law, a question that it did not consider when it enacted the suspending law; its intervention in the work of the legislature is minimal; and it does not impose on the court a task that is unsuited to its institutional competence. Suspending the validity of the declaration of voidance does not lead to an immediate operative consequence, and it certainly does not cause — at least until the mending of the defect by the legislature or until the end of the suspension period — any harm to the constitutional part of the statute or the State budget. In this way, the legislator, and not the court, is the one that determines the exact timing, manner and scope of the harm to the budget, which itself is unavoidable.

After writing my opinion, I received the opinion of my colleague the President. I have examined it, but I am not convinced that it is possible to overcome the retroactive provision of the suspending law by means of interpretation. The President’s interpretive distinction is based on the phrase ‘no person shall be entitled to the benefits’ in s. 20(c) of the suspending law. In his discussion of this phrase, the President says that even though in the linguistic sphere a person who is entitled to benefits means any person who is entitled to a benefit, whether he is an entitled person who relied on the statute or an entitled person who did not rely on the statute, the court has the power to interpret the words of the legislature in a manner that restricts them to those entitled to benefits who did not rely on the entitling law. I should emphasize that, in my opinion, this proposed path is not at all simple. But in our case, even the President’s proposal concerning the interpretation of the phrase ‘no person shall be entitled to the benefits’ is insufficient for solving the difficulty that the suspending law raises. For in order to clarify its intention with regard to the scope of the application of the suspending law, the legislature did not merely use the aforesaid phrase. In s. 20(a)(1) it took pains to explain that s. 6B of the entitling law would not apply during the period of the suspension of the law’s validity; and in order to make its intention with regard to the retroactive validity of the suspension even clearer, it stipulated in s. 20(b) that the date of commencement of the aforesaid s. 20(a)(1) would be on the date of the commencement of the entitling law. It follows that the legislature made its intention absolutely clear, that it wanted to suspend the validity of the entitling law, retroactively, from its date of commencement; and with all due respect, I do not see any method of interpretation that can determine that s. 6B of the entitling law, whose applicability was expressly cancelled (‘shall not apply’) by the legislature starting from its date of commencement, continues to apply vis-à-vis those persons who relied upon it. With regard to the remarks of the President in para. 16 of his opinion, I would like to point out that even if we assume that the proponents of the suspending law were unaware of the possibility that its retroactive application would harm those persons who have relied on the entitling law, I see no place for doubt that the subjective intention of the legislature, when enacting the suspending law, was to suspend the validity of the entitling law absolutely and retroactively. I even cannot agree with the President’s remarks in para. 17 of his opinion. With all due respect, I am of the opinion that we are obliged to interpret the suspending law against the background of the legal position created when it was enacted, according to which the ‘temporary’ suspension of the entitling law is still valid, and not against the background of a hypothetical legal position according to which suspending its validity has already occurred in the past.

My opinion is, therefore, that we should grant the petitions and make the order absolute, in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void. The validity of the declaration shall be suspended for six months from the date of giving the judgment; and the purpose of the suspension is to allow the legislature to re-enact these provisions, while distinguishing — according to the parameters that will be determined in the statute — between persons who relied on the entitling law and others to whom the entitling law was supposed, in principle, to apply.

 

 

President A. Barak

My opinion on the dispute between my colleagues is the same as the opinion of Justice M. Cheshin. I agree with his reasoning. I would like to add several remarks of my own.

Presentation of the problem

1.    The Housing Loans Law (Amendment no. 5), 5761-2001 (hereafter — Amendment 5) provides that ‘an entitled person… who bought an apartment in Jerusalem or who extended his apartment in Jerusalem, will receive a grant…’ (s. 6B(a)). Amendment 5 determined the amount of the grant and the ways of revising it. This provision came into force on 15 February 2001 (when it was published in Reshumot). Not even two months passed and the Knesset enacted the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter — the Arrangements Law). The Arrangements Law suspended the validity of s. 6B of Amendment 5. This suspension — which came into effect on 4 April 2001 when the Arrangements Law was published in Reshumot, was given retroactive effect from the date of publication of Amendment 5 (s. 20(a)(1), 20(b) and 20(c)) (hereafter — the interim period).

2.    The main purpose of the suspension was prospective. It was intended to save the State treasury a significant expense (approximately sixty million sheqels per annum) and to prevent an increase in housing prices in Jerusalem as a result of an increase in demand. Nonetheless, the suspension also operated retrospectively. In this respect, three provisions were enacted in s. 20 of the Arrangements Law. Two of these stipulated a suspension (ss. 20(a)(1) and 20(b)). The third provision cancelled the actual right in the interim period (s. 20(c)).

3.    Against this background, we all agree that the fact that an entitled person bought an apartment in Jerusalem in the interim period cannot prevent the application of s. 20 of the Arrangements Law to the interim period. Therefore, the right of an entitled person who bought an apartment in Jerusalem during the interim period for his own reasons, without relying at all on the acquisition of the right to a grant that he was granted in Amendment 5 (whom we shall call an entitled person who did not rely on Amendment 5) was suspended and even cancelled. That person does not come before us in these petitions. But what is the law with regard to an entitled person, who did rely on the existence of the grant and, because of the grant that was given in the interim period, sold his other apartment or entered into pecuniary undertakings and bought an apartment in Jerusalem in the interim period? Is also this entitled person (whom we shall call an entitled person who did rely on Amendment 5) caught by the provisions of the suspension and the cancellation? Indeed, it is the case of the entitled person who did rely on Amendment 5 that comes before us in these petitions for our decision.

4.    We all agree that the Arrangements Law should have distinguished — for the purposes of the suspension in the interim period — between the entitled person who did rely on Amendment 5 (whose right, because of his reliance, ought not to be suspended or cancelled in the interim period) and the entitled person who did not rely on Amendment 5 (who for various economic reasons ought to have his right suspended even in the interim period (ss. 20(a)(1) and 20(b) of the Arrangements Law), and even cancelled in its entirety (s. 20(c) of the Arrangements Law)). The dispute between us is whether it is possible to base this distinction between the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5 in the suspension and cancellation provisions in s. 20 of the Arrangements Law, or whether this distinction has no foothold in the provisions of s. 20 of the Arrangements Law. In this dispute, I am of the opinion — and thus I join with the approach of my colleague Justice M. Cheshin — that it is possible to base this distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 on the provisions of s. 20 of the Arrangements Law. My colleague the Vice-President, together with Justices Türkel and Rivlin, are of the opinion that this distinction does not have any basis in the provisions of s. 20 of the Arrangements Law. Against the background of their approach — and since they are of the opinion that the distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5 is important and even has constitutional force — they are of the opinion that any provision that suspends or cancels the entitlement in the interim period is unconstitutional and therefore void.

5.    I think that we are all agreed that if it possible to distinguish — within the framework of the possible interpretation of s. 20 of the Arrangements Law — between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5, this path should be chosen. The other path — the one in which we examine the question whether an arrangement that does not distinguish in the interim period between the two classes of entitled persons is a constitutional arrangement or not — becomes available to the judge only if the first path is closed to him. Indeed, we all agree upon the outlook that the proper approach is that the interpreter of the statute should do everything possible in order to give the statute that possible interpretation that is consistent with the constitution (in Israel — with the Basic Law) and does not conflict with it, ‘and between two possible interpretations we should choose the interpretation that is consistent with the constitution’ (HCJ 4562/92 Zandberg v. Broadcasting Authority [18], at p. 810). Thus we give expression to the aspiration of achieving normative harmony in the legal system. This also gives rise to the presumption that the general purpose of every statute is to achieve constitutional values. Notwithstanding, this proper approach assumes, as my colleagues have noted, a possible interpretation of the statute. It acts within the framework of the accepted rules of interpretation. It cannot be said that we must always choose the meaning that achieves consistency between the statute and the constitution (see A. Barak, Legal Interpretation, vol. 3, Constitutional Interpretation, 1994). The presumption of consistency between the constitution and the statute can be rebutted. It is rebutted where the accepted rules of interpretation in the legal system do not allow this consistency to be achieved. It follows that the key to solving the legal question before us lies in providing an answer to the question of interpretation. The question is whether the normal accepted rules of interpretation in Israel allow a distinction between the entitled person who did rely on Amendment 5 and the entitled person who did not rely on Amendment 5. Let us now turn to an examination of this question.

Limits of interpretation

6.    The basic premise is that the ‘limit of interpretation is the limit of language’ (CA 1900/96 Telmaccio v. Custodian-General [19], at p. 827). ‘An activity is interpretation if it gives a meaning to the text that is consistent with one of its (express or implied) senses of the text in its (public or private) language’ (A. Barak, Purposive Interpretation in Law (2003), at p. 55). The interpretation ends where the language ends. ‘It is essential… that the interpretive option that realizes the legislative purpose is capable of sustaining the language of the statute’ (MApp 67/84 Hadad v. Paz [20], at p. 670). This was well expressed by my colleague, Justice M. Cheshin:

‘Every word, every expression in the language can be interpreted narrowly or it can be interpreted broadly, even very broadly, but no matter how much we widen the interpretation, we will reach a point where the elastic reaches it maximum stretching point’ (LCA 6339/97 Roker v. Salomon [21], at p. 253).

I discussed the same idea in another case:

‘The art of interpretation is not limited merely to words, but the words limit the interpretation… It is possible that the language of the statute may be given a broad interpretation or a narrow interpretation, but in general an Archimedean foothold must be found for a word in the language of the statute’ (FH 40/80 Koenig v. Cohen [22], at p. 715).

And in another case I added:

‘Every interpreter must take into account the limits of language. The linguistic significance of the language, which is intended to realize the purpose that underlies it, must be consistent with one of the linguistic senses of the text. Admittedly, the linguistic component is not sufficient for interpretation, but it is essential to it’ (CA 3622/96 Hacham v. Maccabi Health Fund [23], at p. 646).

This approach is derived from constitutional considerations. The role of the judge as an interpreter is to interpret a text that is created by the persons competent to do so (the legislature, the minister, the parties to a contract, the testator). His role as an interpreter does not authorize him to create a new test (see Barak, Purposive Interpretation, ibid., at p. 57).

7.    Section 20 of the Arrangements Law suspends and cancels the right of entitled persons. It states that ‘no person shall be entitled to the benefits’ provided in s. 6B of Amendment 5 (s. 20(c)). Prima facie, from a linguistic viewpoint, ‘no person shall be entitled to the benefits’ refers to every person who is entitled to a benefit, whether he is an entitled person who relied on Amendment 5 or an entitled person who did not rely on Amendment 5. Against the background of this general and broad language arises the interpretive question that is before us, which concerns the legitimate interpretive possibility of narrowing this broad language. The solution to this question will be found in the solution to the general problem of interpretation. Is the interpreter entitled to narrow the broad language of the text in order to achieve the purpose of the text? When the text provides a legal arrangement that applies to ‘every person,’ with regard to ‘every object’ or ‘in all circumstances’, may the interpreter — who wishes to achieve the purpose underlying the text — interpret the text in such a way that it does not apply to a particular class of persons (not ‘every’ person) or such that it does not apply to a particular class of objects (not ‘every’ object) or such that it does not apply in a particular class of circumstances (not ‘all’ circumstances)? The answer given to this question in Israel and in comparative law is yes. I discussed this in Zandberg v. Broadcasting Authority [18], where I said:

‘Where the language of the statute is broad, the judge is entitled and competent to give it a narrower meaning, which extends only to some of the options inherent in the language, provided that by doing so he realizes the purpose of the legislation. This is the case in Israel. This is also the case in comparative law’ (Zandberg v. Broadcasting Authority [18], at p. 811; see also R. Sullivan, Driedger on the Construction of Statutes, third edition, 1994, at p. 94).

Indeed, in order to realize the purpose underlying the statute — whether it is a specific purpose or a general purpose — the interpreter is authorized to give the broad language of the statute a narrower meaning. We will discuss this approach, while distinguishing between giving a narrow interpretation to broad language in order to realize a specific purpose and giving a narrow interpretation to broad language in order to realize a general purpose.

8.    Let us begin with situations of restricting broad language in order to achieve a specific purpose. A purpose is specific when it is unique to the purposes and functions that are unique to a statute or to several statutes. In order to realize this specific purpose — whether a subjective purpose or an objective purpose — the interpreter may give the general language of the statute an interpretation that restricts its application and prevents it from applying to certain situations that fall within the bounds of the general language. The following are two examples of this approach.

9.    Zandberg v. Broadcasting Authority [18] considered the Broadcasting Authority (Approval of Validity of Radio and Television Fees) Law, 5753-1992 (hereafter — the confirmation law). This law provided (in s. 1):

‘In order to remove doubt, it is hereby provided that the fees for possessing a radio or television receiver, which were determined in accordance with the Broadcasting Authority Law, 5725-1965, for the years 1985 to 1992, are valid for all intents and purposes from the date on which they were determined.’

It was held in that case that the general and broad language of the statute, according to which fees were valid ‘for all intents and purposes,’ required the conclusion that the confirmation law allows linkage differentials to be charged on fees that were unpaid. Notwithstanding it was held — and this is what is relevant to our case — that the expression ‘for all intents and purposes’ should be given a narrow interpretation, so that it should not apply to a law determining a fine for arrears. Underlying this approach was the special purpose of the confirmation law that was inconsistent with imposing a fine for arrears for a period in which there was no duty at all to pay the fee itself. In my opinion, I considered the question whether it was possible to limit the expression ‘for all intents and purposes’ in such a way that it would not apply to fines:

‘Is it possible to interpret the broad language of the confirmation law narrowly in such a way that the validity, notwithstanding the all-inclusive language, shall not apply to a fine for arrears? Is it possible, according to our accepted rules of interpretation, to interpret broad language narrowly merely because of a narrower purpose underlying it? In my opinion, the answer is yes. Indeed, the judicial interpreter ought not to sit idle and direct barbs of criticism at the legislature because he, the judge, has been unable to restrict its language that is too broad. The judge may not display apathy to a situation in which the legislative purpose is not realized. He must make an interpretive effort to realize the purpose of the legislation… the judge should not sit idle and watch the legislative purpose fail. He must interpret the statute in accordance with its purpose. Sometimes this interpretation will lead to a result that the language of the statute should be interpreted broadly. Sometimes — and this is the case before us — this interpretation leads to the conclusion that the language of the statute should be interpreted narrowly. The criterion is the criterion of the purpose of the statute. In order to realize it, the interpreter is entitled to restrict the broad (linguistic) meaning of the statute’ (ibid., at p. 811).

10. A second example can be found in the interpretation of s. 3(i)(1)(a) of the Income Tax Ordinance [New Version]. According to this provision, a right that a person received in the past to buy an asset (such as an option that an employee receives from his employer with regard to work relations) is liable for tax when it is realized. This court restricted the broad language of the statute that referred to any right, i.e., to any option, and held that this provision refers only to options that are not negotiable. The court held, relying on Zandberg v. Broadcasting Authority [18], that a court may ‘give a narrow interpretation to broad language of a provision of statute in order to apply it only to those case that are required to realize the purpose underlying the legislation’ (per Justice E. Chayot in CA 7034/99 Kefar Saba Assessing Officer v. Dar [24]).

11. Let us now turn to the second situation — which is mainly the one relevant to our case — in which the judge-interpreter restricts the broad and general language of the statute in order to realize a general purpose (subjective or objective), which is enshrined in the basic values of the legal system. I discussed this possibility in one case, where I said:

‘On more than one occasion our Supreme Court has adopted this method, when it restricted or extended the language of the statute in order to realize the basic principles of our legal system. Indeed, legislation in general and basic provisions of statute in particular are not one-time acts that are divorced from the general experience. The statute derives its flesh and bones within the framework of a given legal system. It constitutes one brick of a whole building, which is built on foundations of a political and legal system that constitute the “basic principles of that society”.’ (EA 2/84 Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

In that case, I gave examples of this approach, inter alia, in American case law that interpreted the First Amendment to the Constitution. This Amendment provides that ‘Congress shall make no law… abridging the freedom of speech, or of the press…’. I said that ‘the Supreme Court has not hesitated to hold, in a long line of precedents, that notwithstanding the absolute language, which rules out any discretion on the part of Congress, it has the authority to restrict the freedom of speech and the press in certain cases’ (ibid., at p. 301 {151}). I went on to say:

‘We interpret the language of the general obligation against the background of our constitution and in accordance with the principles of equality, justice, fairness and morality of our legal system. Applying these restricts the general language’ (ibid.).

Let us turn to several cases that exemplify this approach.

12. In a significant number of laws, it is stated that decisions of quasi-judicial bodies are ‘final.’ It is stated in several places that there is ‘no further recourse.’ Notwithstanding this broad language, this court has not hesitated in holding that the expression ‘final’ or ‘no further recourse’ does not prevent an application to the High Court of Justice (see HCJ 79/63 Trudler v. Borstein, Election Official for the Composition of the Agricultural Committee of Ramat HaSharon Local Council [26]; LCA 176/86 A v. B [27]; HCJ 294/89 National Insurance Institute v. Appeals Committee for Enemy Action Victims Compensation Law [28]). This approach was based on ‘narrow interpretation’ (HCJ 188/77 Coptic Orthodox Mutran v. Government of Israel [29], at p. 236), or on ‘precise and narrow interpretation’ (CA 64/72 General Federation of Workers v. Moav [30], at p. 265), or on ‘strict and narrow’ interpretation (HCJ 264/77 Katan v. National Insurance Institute [31], at p. 687). Underlying this was the need to realize the general and important social value of accessibility to the courts.

13. Sometimes a civil servant is obliged to make decisions within the field of public law. An example is a competent authority that is obliged to grant a licence to whoever fulfils the conditions for this. Notwithstanding the general and all-embracing language of the provision, it is accepted that such a civil servant may not make decisions in a position of a conflict of interests. I discussed this in one case, where I said:

‘When a statute provides that someone is obliged to hear every dispute, it is obvious that he is not obliged to hear a dispute in which he has a personal interest’ (Neiman v. Chairman of Elections Committee for Eleventh Knesset [25], at p. 307 {158}).

Underlying this approach is the outlook that the rule concerning the prohibition against a conflict of interests is one of the basic principles of our legal system. It is a part of the general purpose of every piece of legislation. Even when a statute makes use of general language that does not contain any restrictions, restrictions are imposed by virtue of the general principle of the prohibition of a conflict of interests.

14. In comparative law the following example is well-known: an inheritance statute provides that when a person dies, his property passes to his children. That inheritance statute contains no provision — of the kind that we have in Israel (s. 5(a)(1) of the Inheritance Law, 5725-1965) — to the effect that a child who murders his father is disqualified from inheriting from him. Notwithstanding this, it is accepted that the son who murdered his father does not inherit (see H. Hart and A.M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (1944), at p. 68; R. Dworkin, Taking Rights Seriously (1977), at p. 22; S. Shilo, ‘Disqualification from Inheriting: Someone who Deliberately Causes the Death of the Legator,’ Uri Yadin Book — Articles in Memory of Uri Yadin 257, vol. 2 (1990)). Underlying this approach is the outlook that the general language of the inheritance statute concerning heirs in an intestacy should be interpreted against a background of the basic principles of the legal system. One of those basic principles — which is based on principles of equity, justice and morality — is that a person should not be allowed to enjoy the fruits of his misdeeds (‘Have you committed murder and also taken the inheritance?’ (I Kings 21, 19 [43])). The broad language receives a restricted sense in order to realize one of the basic principles of the legal system. In discussing this approach, Vice-President S. Levin said:

‘Statutes are not enacted in a vacuum. They form part of an integral system that includes fundamental principles. They are presumed to have been enacted within the framework of these principles, which they are intended to realize… It is presumed that they operate in order to achieve justice and equality, and their application will prevent outcomes that are inconsistent with public policy. One of the rules of public policy is that the wrongdoer should not benefit from his misdeed’ (CA 3798/94 A v. B [15], at p. 154 {266}).

By virtue of this principle, Vice-President S. Levin held in A v. B [15] that a rule should be read into s. 13 of the Adoption of Children Law, 5741-1981, that a parent may not object to his child being declared adoptable if this is contrary to reasons of public policy concerning the acts that led to the birth of the child.

15. Underlying the approach that an interpreter may restrict the general language of the statute in order to realize the general purpose of the legislation is the approach that ‘a provision of statute is a creature that lives in its environment’ (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [32], at p. 513). Language is interpreted in accordance with its context, and the text is understood against the background of the context. The context of every statute includes the basic values of the legal system, which constitute its general purpose. This is the ‘spirit’ that encompasses the ‘body’ (see A. v. B [15], at p. 182 {306}). This is the ‘normative umbrella’ that extends over all statutes (CA 165/82 Hatzor Kibbutz v. Rehovot Assessment Officer [33], at p. 75). An expression of this approach was given by my colleague Justice M. Cheshin, when he said that:

‘When we approach a statute of the Knesset, we do not come empty-handed. We come with a weight of language, linguistic definitions and meanings, social customs and morality, consensuses and first principles, justice and equity, principles and doctrines in our knapsack… all of these — doctrines and values and principles — are located, prima facie, outside the statute, but they serve as a platform for the statute — for every statute — and no statute can be conceived without them. A statute without that platform is like a house without foundations… When we approach the work of interpretation — like a surgeon — we do not come empty-handed. When we read the statute in our judicial capacity, we carry on our bodies an “interpretation kit,” and in this kit are all of those values and principles and doctrines without which we would not be what we are: basic principles of the legal system, morality, fairness, justice’ (Yediot Aharonot Ltd v. Kraus [8], at p. 72. See also Segal v. Knesset Speaker [3], at pp. 563-567; A. v. B [15], at p. 182 {306}).

By virtue of this approach — which constitutes a central component of our theory of interpretation — the interpreter is authorized to consider the general language of the statute and to restrict it merely to those aspects that realize the basic values of the legal system. It is to this that my colleague Justice M. Cheshin refers in his simile that ‘we can peel away the statute like peeling the layers of an onion: healthy layers will be left and unhealthy layers will be thrown into the bin’ (para. 34 of his opinion).

From the general to the specific

16. Does the purpose of s. 20 of the Arrangements Law require a restriction of the scope of the section to an entitled person who did not rely on Amendment 5? Let us begin with the specific purpose underlying s. 20 of the Arrangements Law. For this purpose, I have examined the legislative and parliamentary history. It emerges from this that according to the factual basis that was brought before the Knesset, the assumption was apparently that applying s. 20 of the Arrangements Law retroactively would not harm the entitled persons who bought an apartment in Jerusalem at all. In the explanatory notes to the draft law, it was stated that ‘In addition, in view of the fact that during the short period when these laws were valid no instructions were given to implement them, it is proposed that it should be provided also that even during the period when the aforesaid laws were valid, it was not possible to acquire rights by virtue thereof’ (cited by my colleague, Justice M. Cheshin, in para. 3 of his opinion). It would appear that the question before us — the law concerning the entitled person who relied on Amendment 5 — was not considered by the members of the Knesset. It can therefore certainly not be said that the subjective purpose of s. 20 of the Arrangements Law is to deny the grant even to entitled persons who relied on Amendment 5.

17. Moreover, s. 20 of the Arrangements Law did not merely suspend the right of the entitled persons in the interim period. It expressly stated that the right was cancelled (s. 20(c)). It follows that even if on 31 December 2001 — which was the original date for the end of the suspension — Amendment 5 had become valid once again, this would not have applied to the interim period, and it would have begun only on 4 April 2001 (the date on which s. 20 of the Arrangements Law was published) rather than on 15 February 2001 (the date on which Amendment 5 was published). This approach is natural with regard to entitled persons who did not rely on Amendment 5. It is totally irrational with regard to entitled persons who did rely on Amendment 5. If the Treasury has resources to finance the entitled persons from 4 April 2001, how is it possible to explain the unwillingness to finance precisely those entitled persons who bought an apartment in Jerusalem during the interim period while relying on Amendment 5? It would appear that the correct answer is that the interests of these entitled persons were not even considered by the legislature. The assumption was that all the entitled persons, without exception, bought an apartment in Jerusalem without relying on Amendment 5.

18. What about the general purpose of s. 20 of the Arrangements Law? This general purpose naturally includes the property right and its not being harmed retroactively. Notwithstanding, this right in itself is insufficient, since it would deny the retroactive application of the infringement of the property right of every entitled person — both the entitled person who relied on Amendment 5 and the entitled person who did not rely on Amendment 5. This result, which empties the application of s. 20 of the Arrangements Law of all content in the interim period, cannot be reached by means of interpretation. This requires a constitutional analysis. But the petitioners before us argue that they are entitled persons who did rely on Amendment 5. How is it therefore possible to justify the distinction between an entitled person whose property right was infringed during the interim period and who did rely on Amendment 5 and an entitled person whose property right was infringed in the interim period but who did not rely on Amendment 5? What is the difference between the one and the other from the viewpoint of the basic values of the legal system? The answer is that one of the basic values of our legal system is the interest of the individual’s reliance. Protection of this interest — alongside the general infringement of property — allows the interpreter to restrict the scope of the infringement to an entitled person who bought an apartment in Jerusalem solely to entitled persons who did not rely on Amendment 5. Let us therefore turn to the interest of reliance, its status in our legal system and its operation in the case before us.

19. The interest of reliance is like a golden thread that runs through Israeli law. Significant portions of private law are based on it (see A. Barak, The Agency Law, vol. 1, 1996, at p. 180; D. Friedman and N. Cohen, Contracts, vol. 1, 1991, at p. 151; G. Shalev, The Law of Contracts, second edition, 1995, at p. 161; D. Barak-Erez, ‘The Protection of Reliance in Administrative Law,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 17 (1996), at p. 22). This was the law in the past when the principle of estoppel based on the rules of reliance was employed. It is also the law today, when it is possible to regard the realization of the interest of reliance as a part of the principle of good faith. From private law the interest of reliance passed to public law (see S. Schonberg, Legitimate Expectations in Administrative Law (2000)). Indeed, the public authority is the trustee of the public. Its fiduciary duty to the public leads to its duty to act fairly, equitably and proportionately. From these we derive a duty to take into account the individual’s interest of reliance. On this basis are founded the laws of administrative promise, the laws of tenders, the laws of administrative finality, the laws of administrative instructions and the laws of relative voidance (see Barak-Erez, supra). They are the basis for the need to ensure that legislation (whether primary legislation or subordinate legislation) has transition provisions in order to protect the interests of those persons who relied on the former law. This is certainly the case when a person relies on a right that was given to him (whether in primary legislation, in subordinate legislation or in any other administrative act), and it is taken away from him not only from now onwards (and without any transition provision) but even retroactively. The infringement of the interest of reliance is the most extreme in such a case. Underlying the protection of the interest of reliance are considerations of both morality and efficiency. Of course, the strength of the interest of reliance is not absolute. It is not the only consideration. It needs to be balanced against other interests, which operate in different directions. However, it must always be taken into account and given the proper relative weight (see A. Barak, Legal Interpretation, vol. 2, 1993, at p. 470).

20. In the petition before us, the petitioners claim that they relied on Amendment 5. In buying an apartment in Jerusalem during the interim period, they took into account that they would be given a pecuniary grant, and they planned their actions on the basis of this reliance. We must take this reliance of theirs into account. This is a social interest worthy of protection. Naturally, the existence of the reliance must be proved; even if it exists, it can have various degrees of strength. This public interest does not have decisive weight. However, it justifies the distinction between an entitled person who did rely on Amendment 5 and an entitled person who did not rely on it. Indeed, this distinction is accepted by all of us. My colleagues, Vice-President E. Mazza, and Justices J. Türkel and E. Rivlin, are prepared to regard the absence of this distinction as a ground for declaring s. 20 of the Arrangements Law unconstitutional, in so far as the transition period is concerned. Like my colleague, Justice M. Cheshin, I too propose giving this interest a different role, which concerns the meaning of the statute and not its validity. In view of this approach, I do not need to examine the constitutional aspect in depth, and I will refrain from adopting any position in this respect.

 

 

Justice A. Procaccia

I agree with the opinion of my colleague, Justice M. Cheshin, and with the comments of my colleague, President A. Barak.

 

 

Justice J. Türkel

Like my honourable colleague, Vice-President E. Mazza, and for his reasons, I am also of the opinion that it is not possible to overcome the unambiguous provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001, by means of interpretation. Admittedly, in general it is preferable to adopt the path of interpretation and to refrain from a constitutional examination of a statute, but the language of the section does not have any linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended. It follows that we are compelled to examine the constitutionality of the retroactive application of the section in accordance with the constitutional criteria in the Basic Law: Human Dignity and Liberty. In this regard, I agree also with the comments of my honourable colleague, Justice E. Rivlin.

Therefore I agree with the opinion of the Vice-President and the outcome that he reached.

 

 

Justice E. Rivlin

1.    In the dispute between my colleagues Vice-President E. Mazza and Justice J. Türkel on one side, and President A. Barak, as well as Justices M. Cheshin, D. Beinisch and A. Procaccia on the other, my opinion is like that of the Vice-President, for his reasons. Like him, I am of the opinion that there is no possibility of interpreting the provisions of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: the Arrangements Law), in a manner that restricts its application to such an extent that it can make it unnecessary for us to consider its constitutionality.

2.    In practice, there is no dispute between my colleagues that we cannot accept the outcome that the benefit to which the petitioners are entitled should be cancelled so comprehensively, and retroactively. My colleague Justice M. Cheshin wishes to avoid the constitutional question that arises in the petition by using an alternative tool — the tool of interpretation — in order to resolve the petitioners’ problem. My colleague the President also proposes this. I accept their fundamental position, with which my colleague the Vice-President also agrees, according to which we should turn to constitutional review — which can be described as a ‘judgment day weapon’ — only when we have exhausted all other avenues. This approach is accepted in American constitutional law, where a doctrine sometimes called the doctrine of ‘strict necessity’ is accepted. According to this theory, the court shall not resort to constitutional review unless it is unavoidable. Various techniques are used by the court there as escape routes from constitutional review. In Rescue Army v. Municipal Court of Los Angeles [38], Justice Rutledge listed these techniques and explained the logic that justified using them (it should be noted that some of the techniques are the subject of dispute in the United States, and others, such as the right of standing, are no longer relevant in Israeli law):

‘…this Court has followed a policy of strict necessity in disposing of constitutional issues. The earliest exemplifications… arose in the Court's refusal to render advisory opinions…

… in addition, “the Court (has) developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision” (Ashwander v. Tennessee Valley Authority [39], at p. 346). Thus, as those rules were listed in support of the statement quoted, constitutional issues affecting legislation will not be determined in friendly, nonadversary proceedings; in advance of the necessity of deciding them; in broader terms than are required by the precise facts to which the ruling is to be applied; if the record presents some other ground upon which the case may be disposed of; at the instance of one who fails to show that he is injured by the statute’s operation, or who has availed himself of its benefits; or if a construction of the statute is fairly possible by which the question may be avoided’ (at pp. 568-569).

‘The policy’s ultimate foundations… lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system’ (at p. 571).

One of the tools listed by Justice Rutledge is the construction of the statute under attack in such a way that it will make constitutional review of its superfluous. With regard to this tool, Justice Brandeis, to whose important remarks in Ashwander v. Tennessee Valley Authority [39], at p. 348, Justice Rutledge refers, cited the following:  

‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided’ (Crowell v. Benson [40], at p. 62).

See also the remarks of Justice White, in a similar vein, in Ellis v. Railway Clerks [41], at p. 444.

3.    But care must be taken so that excessive use is not made of this tool. Chief Justice Vinson said in this regard, in Shapiro v. United States [42], at p. 31:

‘The canon of avoidance of constitutional doubts must… give way where its application would produce a futile result, or an unreasonable result “plainly at variance with the policy of the legislation as a whole”.’

Like my colleague Vice-President E. Mazza, I too am of the opinion that the case before us is one of the cases to which Chief Justice Vinson referred. As both the Vice-President and Justice M. Cheshin explain, the language of the provision that is relevant in our case is unambiguous. A provision should not be given an interpretation that is entirely in conflict with its language. The art of interpretation, although it is desirable and essential, has limits, beyond which the interpreter cannot pass; otherwise he will find himself rewriting legislation. In the case before us, the interpretation proposed by the majority justices goes, in my opinion, beyond the confines of what is possible and what is permitted. As my colleague the President says, there are indeed times when the interpreter is authorized to give the broad language of the statute a narrower meaning in order to achieve a broad or specific purpose. But this is not the case where the legislature has made its intention clear in a manner that is unambiguous. Once it has done that, and has ruled out any other intention, there is only one method of interpretation and no other — one interpretation but not its opposite. Indeed, even the statement that even the British Parliament cannot make a man a woman or a woman a man has lost some of its force, since with the assistance of surgeon’s scalpel Parliament can do even this. It can do this, but we cannot; we do not have this power. My colleague Justice Cheshin complains about this remark. He emphasizes that the court does have power and he points to important case law that has strengthened equality between the sexes with a progressive spirit. But the dispute between us, in this case, concerns the method rather than the outcome, for where the interpretive tool fails, constitutional review may remain. Where it is impossible to call a woman a man, it is possible, in the proper circumstances and when the constitutional requirements are fulfilled, to nullify the distinction between them by means of reducing the force of the provision of statute itself. Thus equality is achieved between man and woman even without calling a woman a man. Like my colleague Vice-President E. Mazza, I am of the opinion that where the court reaches an opinion that a particular law, according to the interpretation required in the light of its language and purpose, is not a desirable law, it cannot, by giving an (‘creative’) interpretation to the statute, remedy it on behalf of the legislature. In such cases, the court is obliged to examine the statute constitutionally. This examination does not constitute a ‘fear of the legislator’ that has taken hold of us — in the language of my colleague Justice M. Cheshin. This examination is merely a direct constitutional attack on the statute, of its actual validity, once the more moderate attack — namely the interpretation to which my colleague resorted — was unsuccessful. As my colleague Justice J. Türkel rightly points out, since there is no ‘linguistic opening, even as small as the eye of a needle, through which it is possible to inject a different meaning from the one that the legislator intended… we are compelled to examine the constitutionality of the retroactive application.’

This procedure is the proper procedure in view of the principle of the separation of powers. The power to enact and amend legislation is the sole province of the legislature, whereas the court interprets statutes and examines their constitutionality. An interpretation that is inconsistent with the language of the statute violates the authority given to the legislature far more than a declaration that a statute is void for constitutional reasons. An interpretation that lacks a proper foothold in the language of the statute may breach the delicate balance between the powers. In a certain sense, interpretation that bypasses the language of the statute also involves the court shirking its proper role, namely to denounce in a loud and clear voice any statute that our statute book cannot accept — in view of the basic principles of our legal system, as these are established in the constitutional documents. A clear constitutional declaration is sometimes an essential need that presents the legislature and the public with a constitutional guideline that also looks to the future.

4.    In view of the aforesaid, I am of the opinion that we cannot avoid considering the question of constitutionality that the petition raises. On this question too I agree with the position of my colleague, Vice-President E. Mazza. I will merely add and comment that the question of the scope of the property right enshrined within the framework of s. 3 of the Basic Law: Human Dignity and Liberty is a weighty and multifaceted question. I am not persuaded that there is a basis for regarding reliance on an undertaking or even on a property right — as it is recognized in private law — as property that is worthy of constitutional protection in every case. This has already been said in CA 10608/02 Hazima v. Department of Customs and VAT [34]:

‘The modern State, which is no longer merely a ‘night watchman,’ cannot refrain from intervening in the private market and from causing, in certain circumstances, harm to the right of private property. For this reason, the definition of property, and the definition of harm thereto, for the purposes of constitutional law are not identical to the definitions recognized in private law. The protection to the right of property is also not absolute, and frequently it will have to contend with competing values, until it reaches a proper balance (ibid., at para. 8).

In our case, I am of the opinion that we are able to refrain from considering this major question, on account of the special circumstances of the case. According to the arguments of the petitioners, they had in their possession, in theory if not in practice, money that the State allocated them. The petitioners used this money in order to buy or to extend residential apartments. Taking this money away from them, now, is equivalent in many senses to taking the apartments in which they live away from them, because they will not be able to meet the financial undertakings involved in the purchase or extension of the apartments, to which the petitioners have already committed themselves. The centrality of the home for the ‘personhood’ of the individual and his self-realization (M.J. Radin, ‘Property and Personhood,’ 34 Stan. L. Rev. (1982) 957) requires us to hold that the protection of this is included in the constitutional protection of property (see and cf. CA 9136/02 Mister Mani Israel Ltd v. Rize [35], at para. 8). Therefore the provisions of s. 20 are contrary to the dictates of s. 3 of the Basic Law, and since, as my colleague Vice-President E. Mazza has shown, it does not comply with the terms of the limitations clause, it is void. In the circumstances of the case, the proposal of my colleague, the Vice-President, to make an absolute order in the sense that we declare the retroactive provisions of s. 20 of the Arrangements Law void and that the validity of the aforesaid declaration shall be suspended for six months for the purpose set out in the opinion of the Vice-President seems right to me.

Therefore I agree with the opinion of Vice-President E. Mazza.

 

 

Justice D. Beinisch

1.    All of my colleagues in this case agree that the retroactive application of s. 20 of the State Economy Arrangements (Legislative Amendments for Achieving Budget Targets for 2001) Law (Amendment, Repeal and Suspension of Legislation Originating in Private Draft Laws), 5761-2001 (hereafter: section 20) cannot stand in its entirety. There is no disagreement between us that its application must be restricted, so that the comprehensive retroactive cancellation of the benefit to which the petitioners were entitled under s. 6B (currently s. 6C) of the Housing Loans Law, 5752-1992, is not upheld in a way that does not take into account at all the question whether they relied on the provisions of the statute that granted entitlement to the benefit, and the question whether they changed their position accordingly before the benefit was suspended.

The disagreement is whether the proper outcome of restricting the retroactive application can be achieved by means of interpretation — as Justcie Cheshin, President Barak and Justice Procaccia believe — or whether a constitutional examination of the aforesaid section 20 and a declaration that its retroactive provisions are void are inescapable, which is the position of Vice-President Mazza, Justice Rivlin and Justice Türkel.

Everyone agrees that when the validity of a statute is questioned and a doubt arises as to its constitutionality, the court should first consider whether it is possible to find a reasonable interpretation that will make it unnecessary to decide its constitutionality and will allow the statute to exist in harmony with the basic principles of the constitution and the legal system (see, for example, the opinion of Justice Cheshin in Segal v. Knesset Speaker [3], at pp. 548-550; the opinion of Justice Dorner in HCJ 4128/02 Man Nature and Law — Israeli Environmental Protection Society v. Prime Minister of Israel [36]; HCJ 4885/03 Israel Poultry Raisers Association v. Government of Israel [37], at pp. 74-79 {451-458}). However, this is only the case when the path of interpretation is available to the court. As President Barak discussed in his book Legal Interpretation (vol. 3, Constitutional Interpretation, 1994, at p. 117:

‘The proper approach is that we should choose, of the two possible interpretations from the viewpoint of the language and the purpose, the interpretation that leads to harmony between the statute and the constitution… [but,] the loyalty of the judge-interpreter to the legislation requires him to give the statute an interpretation that its language can sustain and that realizes its purpose. If this interpretation leads to a harmony between the statute and the constitution, it is right and proper; and if this interpretation leads to a conflict between the statute and the constitution, it is unavoidable. It transpires that the desire to achieve harmony between the statute and the constitution operates within the framework of the rules of interpretation, and as an inner-purposive rule of interpretation. It assists in formulating the purpose of the legislation. It cannot bring about a forced harmony between the interpretation of the statute and the constitution.’

None of my colleagues disputes this starting point in principle; the dispute is whether in this case the interpretive option that allows the provisions of s. 20 of the aforesaid law to be upheld and its retroactive application not to be comprehensive is open to us. I have given much consideration to this question, and initially I even was disposed to favour the approach of Vice-President Mazza. But after I read the opinions of my colleagues several times, I have been persuaded that the interpretive path proposed by Justice Cheshin is indeed possible (or, should we say, is not impossible) in this case, and therefore we are obliged to prefer it.

2.    The approach of Justice Cheshin and President Barak admittedly narrows the retroactive application of the aforesaid section 20 by means of an interpretation that adds to the broad language of the section a qualification that is not expressly mentioned in the section. But in appropriate circumstances there are cases where the legislative purpose, as well as the context, the text taken as a whole and the basic principles of the legal system require us to read into a provision of statute a qualification that is not stated in it. This interpretive outcome is possible when a qualification of this kind is consistent with the purpose of that statute and it has a foothold, albeit a weak one, in the language of the statute, or at least when the language of the statute does not conflict with the possibility of reading into it the aforesaid qualification (and for this purpose I accept in principle the approach of the President as set out in paras. 7-15 of his opinion).

3.    In our case, the language of section 20 admittedly is more consistent, on the face of it, with an interpretation that grants this section an all-embracing retroactive application, but I do not think that the language of the section completely rules out the possibility of qualifying the retroactive application as proposed in the opinion of my colleague, Justice Cheshin. Note that the interpretation of Justice Cheshin does not absolutely rule out the retroactive application of section 20, for we all agree that the language of the section cannot sustain such an interpretation; instead, it restricts or qualifies the retroactive application, in a way that the language of the section can sustain. In such circumstances, we should consider whether this interpretation is consistent with the purpose of the statute.

4.    The purpose of the aforesaid Arrangements Law and of section 20 thereof is to postpone the date of commencement of statutes that were enacted without there being sources of finance in the budget, and the implementation of these would have seriously harmed the budget (see para. 3 of the opinion of Justice Cheshin). As can be seen from the language of section 20 and from the deliberations that took place before it was enacted, the legislature was of the opinion that in order to realize the purpose of the statute — preventing serious harm to the State budget — it was not sufficient to suspend the validity of the provision granting entitled persons a grant to buy or extend an apartment in Jerusalem from that time onward, but it was necessary to suspend the validity of that provision retroactively from the date on which it was enacted. However, there is no doubt that the saving achieved for the State budget as a result of denying the benefits to those few entitled persons who, during the six weeks in which the provision granting the benefits was valid, managed to rely upon it and to change their position adversely, is a negligible fraction of the total saving. Certainly, these are not amounts that are capable of frustrating the purpose of the statute — preventing serious harm to the budget. Therefore, the interpretation of Justice Cheshin, which excludes from the retroactive application of section 20 those few persons who relied on the provision of the entitling law, is consistent, or at least does not conflict with, the particular purpose of section 20 — preventing serious harm to the State budget.

5.    Alongside the particular purpose of the aforesaid section 20 is the general purpose of the section. Within the framework of this general purpose are the basic principles of our legal system. Within the framework of the general purpose of the legislation, there is, inter alia, a presumption that a statute is not intended to conflict with the basic laws and to harm the basic rights of the individual. The property right that the State gave to entitled persons under the aforesaid entitling provision was a concrete and restricted benefit that was given for the purpose of housing, and only to entitled persons who fell into the category of persons in need. Retracting the benefit from those persons who relied on that benefit to buy or extend a residential apartment amounts to a real infringement of the basic right to property. Therefore, there is no doubt that the general purpose of the aforesaid section 20 not only is consistent with the interpretation of Justice Cheshin, which seeks to prevent the serious harm to the property right of those entitled persons who relied on it, but it even requires this interpretation.

It should be noted that, in my opinion, in this case we are not required to decide the question of the status of the principle of reliance in Israeli law and the question whether it is included among the basic principles of our legal system (cf. paras. 18-19 of the President’s opinion). This is for the reason that in our case the question whether the principle of reliance in itself can require a narrow interpretation that is consistent with it does not arise. In the case before us, the reliance constitutes a circumstance that makes the harm to property disproportionate (as my colleagues Vice-President Mazza and Justice Rivlin explain), and the property right is the dominant basic principle in view of which the restrictive interpretation in required.

6.    Thus we see that the interpretation proposed by Justice Cheshin, which excludes from the retroactive application of section 20 the entitled persons who relied on the provision of statute that gave entitlement to a grant for the purchase or extension of an apartment in Jerusalem, is possible from the viewpoint of the language of the section, does not conflict with the particular purpose of the section, and is required by the general purpose of the section. In these circumstances, the interpretive path should be preferred to the voidance of the relevant part of the provision of statute.

 

 

Petition granted, in the manner stated in the majority opinion (Justice Cheshin, with President A. Barak and Justices A. Procaccia and D. Beinisch concurring), Vice-President E. Mazza and Justices J. Türkel and E. Rivlin dissenting.

9 Kislev 5765.

22 November 2004.

 

 

[1]   The Hebrew acrostic for the four Rabbinic tools of Biblical interpretation.

            EA 2/84

EA 3/84

 

MOSHE NEIMAN ET AL.

v.

CHAIRMAN OF THE CENTRAL ELECTIONS COMMITTEE

   FOR THE ELEVENTH KNESSET

 

 

           

The Supreme Court Sitting as a Court of Election Appeals

[May 15, 1985]

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

 

 

           

Editor's synopsis -

            The Knesset Elections Law establishes a Central Elections Committee, to which are submitted the various proposed candidates lists that wish to participate in the Knesset elections. The Committee reviews the lists to ascertain that they conform to the requirements of the Law, approves such lists as comply and disqualifies any list that does not comply, supervises the conduct of the election campaign and the elections themselves, rules on various issues that arise during the campaign and during the elections and certifies the results of the voting. The Committee is comprised of representatives of the party lists that are represented in the outgoing Knesset. It is chaired by a Justice of the Supreme Court.

           

            The Central Elections Committee for the election of the eleventh Knesset disqualified two party lists. One was the "Kach" list, which it disqualified for the reason that it advocates racist and anti-democratic principles, that it openly supports terrorist acts, that it seeks to foment enmity and hatred between different segments of the population and that its goals and objectives negate the fundamentals of the democratic regime that prevails in the country.

           

            The Committee also disqualified the "Progressive List for Peace" from participating in the elections on the ground that it contained within it subversive elements and that certain key members of the list conducted themselves in a manner that identified with enemies of the State.

           

            Sitting in a panel of five Justices, the Supreme Court allowed these appeals and reversed the Committee's decisions. The lead opinion was written by the President of the court, Justice Shamgar. He held:

           

1.      There are no provisions in the statute concerning any limitations on the qualifications of a candidates list based on the list's beliefs and goals. Although the Yeredor case (see infra) established that the Committee could disqualify a list that sought to achieve the dissolution of the State, statutes and rulings that limit fundamental rights should be construed narrowly. One should not deduce from that precedent that there is room to expand the grounds for disqualifying a list to include less extreme circumstances.

 

2.      Applying the standards set forth in Yeredor to the "Kach" list, one must ask whether this is a body that seeks to prejudice the very existence of the State, whether the party group was declared - before its disqualification - to be an illegal organization, according to statute, or whether it was proved before the Committee or before a court that its goals include the total negation of the State. The distortions in its opinions, the outrage that they arouse and the desire to disassociate oneself from any approval of these ideas, even indirectly, are not sufficient legal grounds to disqualify the list once it has satisfied the statute's formal requirements.

 

3.      No evidence was presented to the Committee from which it might have concluded that the "Progressive List for Peace" meets the criteria of the Yeredor case. The Committee received a statement from the Defense Minister's spokesman to the effect that the Minister was convinced, on the evidence placed before him, that the list contained subversive elements. Although the information placed before a statutory authority need not meet the standards of evidence that apply in court, it is not sufficient that the Committee rely on information that is entirely in the hands of other parties. In this case, the Committee de facto delegated its authority to the Minister of Defense, and it had no right to do so. The classified nature of the information does not relieve a quasi-judicial body, such as the Committee, from its duty to examine the data itself and make up its own mind.

 

            The Deputy president of the court, Justice Ben-Porat, concurred in the decision on the ground that, in her view, the Elections Law does not empower the Committee to consider the question whether a list is worthy of participating in the elections. All the Committee is empowered to do is to examine whether the proposed list meets the formal requirements set forth in the Law. Justice Ben-Porat expressed her agreement with the opinion of the dissenting Justice in the Yeredor case.

           

            Justice Elon expressed the opinion that the Elections Law requires the Committee to approve a list once it determines that the list satisfies the requirements set forth in the statute. The Committee does not have any discretion to disqualify a list for other reasons. He supported the decision in the Yeredor case as based on a principle that stands above the ordinary canons of interpretation, namely, that the Law is given to live thereby, not to die thereby. Participation in the elections to the Knesset in order to destroy the State and the Knesset are self-contradictory. Society has a natural right to defend itself. But this is a onetime exception that cannot be applied to other grounds for disqualification of a list. He then surveyed the Jewish sources, in law and thought, that encourage intellectual freedom and the exchange of ideas. He rejected the "racist" ideas of the "Kach" list as contrary to Jewish values and to the Biblical conception that all persons are created in the image of God.

           

            Justice Barak was of the opinion that the Committee has discretion to disqualify a list if there is a danger that its approval might undermine the very existence of the State or its democratic character. The proper balance between values that conflict with each other is to be found in the degree of probability that the particular harm sought to be prevented will occur. Nothing in the platform of the "Progressive List for Peace" demonstrates that the list seeks to destroy the State or to injure its democratic character. The "Kach" list's ideas are contrary to the general ideals and to the Jewish values on which the State is founded. But, so long as it has not been proved that there is a reasonable possibility of injury to the State's existence or to its democratic character, the list must be approved.

           

            Justice Bejski distinguished between negation of the very existence of the State and injury to its democratic character. The necessity for judicial legislation in the case of the former does not justify extending the Yeredor ruling to the latter situation as well, especially when one considers the basically political nature of the issue. The Committee is a partisan political body. If it were given the power to disqualify a list on the ground that it undermines the democratic character of the regime, without statutory definitions and restraints, some lists might be disqualified for reasons of narrow partisan interests, as they happen to appear at a particular moment to a majority of the Committee. Based on the "reasonable possibility" test advocated by Justice Barak, the "Kach" list endangers the democratic character of the State. The reason it is not to be disqualified is that there is no legal authority to do so.

 

Note - In the elections to the eleventh Knesset, the "Progressive List for Peace" and the "Kach" list each gained one seat in the Knesset. The eleventh Knesset amended Basic Law: The Knesset, empowering the Elections Committee to disqualify a list if its actions or goals negate the establishment of the State of Israel as the state of the Jewish people, negate the democratic character of the State or incite to racism (section 7A). Based on the third alternative, the Central Elections Committee for the elections to the twelfth Knesset disqualified the "Kach" list from participating in the elections. The Committee rejected a challenge to the "Progressive List for Peace" that was based on the first alternative. The Supreme Court turned down appeals from both decisions (EA 1/88, Neiman et al. v. The Chairman of the Central Elections Committee for the Twelfth Knesset, P.D. 42(4) 177; E.A. 2/88, Ben Shalom et al. v. Central Elections Committee for the Twelfth Knesset, P.D. 43(4) 221).

 

 

Israel cases referred to:

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

[2] H.C. 253/64, Gharis v. Haifa District Commissioner 18P.D.(4)673.

[3] C.A. 723/74, "Ha-aretz" Newspaper v. Israel Electric Corporation 31P.D.(2)281.

[4] H.C. 75/76, Hilron Ltd. V. Fruit Marketing Council 24P.D.(3)645.

[5] H.C. 337/81, Mitrani v. Minister of Transport 37P.D.(3)337.

[6] H.C. 581/80, Amsalem v. Prison Service Commissioner 35P.D.(2)325.

[7] S.S.A. 1/66, Pascal v. Attorney-General 24P.D.(3)71.

[8] C.A. 292/66, Axelrod v. Yitzhakian and Counter-Appeal 24P.D.(4)387.

[9] H.C. 245/66, Bustenai v. Inspector General of Police 24P.D.(4)441.

[10] H.C. 1/49, Bejerano v. Minister of Police 2P.D.80; 3P.E.54.

[11] H.C. 74/51, Contractors Association v. Minister of Commerce and industry 5P.D. 1544.

[12] H.C. 517/72, Snowcrest (Israel) Ltd. v. Mayor of Bene Berak 27P.D.(1)632.

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

[14] H.C. 56/76, Berman v. Minister of Police 31P.D.(2)687.

[15] H.C. 272/74, Kefar Azar Moshav Ovdim Ltd. v. Minister of Labour 29P.D.(2)667.

[16] H.C. 13/80, "Noon" Preservatives Ltd. v. State of Israel - Ministry of Health 34P.D. (2)693.

[17] H.C. 214/52, Shohat v. Inspector General of Police 7P.D.987; 17P.E.60.

[18] H.C. 288/51, 33/52 Atzlean v. Commander and Governor of Galilee 9P.D.689;19P.E.90.

[19] H.C. 554/81, Baranse v. Commander of Central Command 36P.D.(4)247.

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

[21] F.H. 9/77, Israel Electric Corporation v. "Ha'aretz" Newspaper Ltd. 32P.D.(3)337.

[22] H.C. 141/82, Rubinstein v. Chairman of the Knesset 37P.D.(3)141; S.J. vol. VIII, supra p. 60.

[23] H.C. 246, 260/81, Agudat Derekh Eretz v. Broadcast Authority 35P.D.(4)1; S.J. vol. VIII, supra p. 21.

[24] H. C. 292/83, "Neemanei Har Habayit" Society v. Jerusalem Regional Police Commander 38P.D.(2)449.

[25] H.C. 153/83, Levi v. Southern District Police Commander 38P.D.(2)393; S.J.vol.VII,109.

[26] H.C. 73,83/57, "Kol Ha'am" et al. v. Minister of the Interior 7P.D.871; 13P.E.422; S.J.vol.I,90.

[27] H.C. 344/81, Negbi v. Central Elections Committee for the Tenth Knesset 35P.D.(4)837.

[28] C.A.2/77, Azugi v. Azugi 33P.D.(3)1.

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

[30] C.A. 32/81, Tzonen v. Stahl and Counter Appeal 37P.D.(2)761.

[31] H.C. 152/82, Alon v. Government of Israel 36P.D.(4)449.

[32] H.C. 234/84, "Hadashot" Ltd. v. Minister of Defence 35P.D.(2)477.

[33] F.H. 13/60, Attorney-General v. Matana, 16P.D.(1)430; S.J.vol.IV,122.

[34] Cr.A. 787,881/79, Mizrachi v. State of Israel and Counter-Appeal

35P.D.(4)421.

[35] Cr.A. 696/81, Azulai v. State of Israel 37P.D.(2)565.

[36] H.C. 163/57, Lubin v. TeI-Aviv-Jaffaa Municipality 12P.D.1043; 36P.E.227.

[37] H.C. 10/48, Zive v. Acting Officer in Charge of TeI Aviv Municipal Area 1P.D.85; 1P.E.33.

[38] H.C. 243/82, Zichroni v. Broadcast Authority Management Committee 37P.D.(1)757.

[39] Cr.A. 126/62, Dissenchik v. Attorney-General 17P.D.169; S.J.vol.V,152.

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

[41] A.D.A. 1/80, Kahana v. Minister of Defence 35P.D.(2)253.

[42] C.A. 165/82, Kibbutz Hatzor v. Rehovot Tax Assessment Officer 39P.D.(2)70.

[43] H.C. 58/68, Shalit v. Minister of the Interior 23P.D.(2)477; S.J.Spec.Vol.(1962-1969)35.

[44] H.C. 29/62, Cohen v. Minister of Defence 16P.D.1023.

[45] H.C. 112/77, Vogel v. Broadcast Authority 31P.D.(3)657.

[46] H.C. 262/62, Peretz v. Kefar Shemaryhau Local Council 16P.D.2101.

[47] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.(3)1151; S.J. vol. IV, 7.

 

English case referred to:

[48] Rex v. Secretary of State for Home Affairs, Ex parte O'Brien (1923) 2 K.B.361 (C.A.).

 

American cases referred to:

[49] Woodby v. Immigration Service 385 U.S. 276 (1966).

[50] Yick Wo. v. Hopkins 118 U.S. 356 (1986).

[51] Williams v. Rhodes 393 U.S. 23 (1968).

[52] Anderson v. Celebrezze 103 S.Ct. 1564 (1983).

[53] Cousins v. Wigoda 419 U.S. 477 (1975).

[54] Dennis v. United States 341 U.S. 494; 71 S.Ct. 857; 95 L.Ed. 1137 (1951).

[55] Communist Party v. Control Board 367 U.S. 1 (1961).

[56] Yates v. United States 354 U.S. 298 (1957).

[57] Communications Assn. v. Douds 339 U.S. 382 (1950).

[58] Whitney v. California 274 U.S. 357; 47 S.Ct. 641 (1927).

[59] Youngstown Co. v. Sawyer 343 U.S. 579 (1952).

[60] McCulloch v. Maryland 17 U.S. 316 (1819).

[61] Gompers v. United States 233 U.S. 604 (1914).

[62] Terminiello v. Chicago 337 U.S. 1 (1949).

[63] United States v. Dennis 183 F. 2d 201 (1950).

[64] Reynolds v. Sims 377 U.S. 533 (1964).

[65] Abrams v. United States 250 U.S. 616 (1919).

[66] Board of Education v. Barnette 319 U.S. 624 (1943).

[67] Brandenburg v. Ohio 395 U.S. 444 (1969).

 

Jewish Law sources referred to:

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

           

M. Schecter for the Appellant in E.A. 2/84;

zichrony, Feldman and Barad for the Appellant in E.A. 3/84;

R. Yarak, Director of High Court Matters, State Attorney's Office, for the Respondent.

 

 

JUDGMENT

 

            SHAMGAR P.: 1. On June 28, 1984 we decided to allow each of the two appeals, to set aside the decision of the Central Elections Committee for the Eleventh Knesset of June 17, 1984, with respect to the Kach list, and its decision of June 18, 1984, with respect to the Progressive List for Peace, and to confirm the two mentioned lists for the purpose of section 63 of the Knesset Elections Law (Consolidated Version), 1969.

 

            At the same time we added:

           

Without derogating from the substantive reasoning called for in these two appeals, we have decided that the court finds it unnecessary at this stage to take a position on the question whether it should adopt the majority or the dissenting opinion in Elections Appeal 1/65 (Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19 P.D.(3) 365), since we have reached the conclusion, on the basis of the facts before us, that there was no room to refuse confirmation of the two appellant lists even according to the majority opinion in Elections Appeal 1/65 .

 

We turn now to the substantive reasoning itself.

 

            2. There were two decisions of the Central Elections Committee as to which we convened to hear the appeals of the parties. The first was given, as aforesaid, on June 17, 1984 with reference to the Kach list, and this is the notice that was sent to the list following the decision:

           

I hereby inform you that the Central Elections Committee for the Eleventh Knesset, at its meeting on June 17, 1984, refused to confirm your list, the Kach list, by majority opinion, on the ground that this list propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel, openly supports acts of terror, endeavours to kindle hatred and hostility between different sections of the population in Israel, seeks to violate religious sentiments and values of a sector of the state's citizens, and rejects in its objectives the basic foundations of the democratic regime in Israel.

 

Realisation of this list's principles would constitute a danger to the existence of the democratic regime in Israel and might also cause a breakdown of the public order.

 

            With respect to the Progressive List for Peace, the decision was given on June 18, 1984, and notice was delivered as follows:

           

I hereby inform you that the Central Elections Committee for the Eleventh Knesset, at its meeting on June 18, 1984, refused to confirm your list, the Progressive List for Peace, by majority opinion, on the ground that this list indeed harbours subversive elements and tendencies, and central persons in the list act in a manner identifying themselves with enemies of the state. The majority opinion rested on close scrutiny of all the verified information put before the Minister of Defence, and on the affidavit of General Avigdor Ben-Gal dated September 24, 1980. Likewise the opinion of the majority was reinforced by the statements made by representatives of the list to the Committee and to the Minister of Defence, as recorded in the minutes of June 8, 1984.

A majority of the Committee members was persuaded that this list advocates principles that endanger the integrity and existence of the State of Israel and the preservation of its unique character as a Jewish state in accordance with the founding principles of the state as expressed in the Declaration of Independence and the Law of Return.

 

            The notices were addressed to counsel for the respective lists and were signed by the Chairman of the Central Elections Committee, Justice Gavriel Bach .

           

            3. The basic statutory definition of the right to submit one's candidacy for election to the Knesset is to be found in section 6 of Basic Law: The Knesset, which provides as follows:

           

Every Israel national who on the day of the submission of a candidates list containing his name is twenty-one years of age or over, shall have the right to be elected to the Knesset unless a court has deprived him of that right by virtue of any Law or he has been sentenced to a penalty of actual imprisonment for a term of five years or more for an offence against the security of the State designated in that behalf by the Knesset Elections Law and five years have not yet passed since the day when he terminated his period of imprisonment.

 

            Section 7 of the same Basic Law lists the state functionaries who are precluded from candidacy for the Knesset because of holding such office.

           

            The procedure for approving lists of candidates is set forth in Chapter F of the Knesset Elections Law [Consolidated Version], section 56 of which deals with holders of office who may not be candidates, while section 56a lists the offences which may entail deprival of the right to be elected under section 6 of Basic Law: The Knesset. Section 57 prescribes the manner in which candidates lists are to be drawn up, signed and submitted. The other sections of the Chapter deal with representatives of the lists, a security deposit, designations and letters of candidates lists, and rectification of defects in drawing up a candidates list.

                

                 Section 63, titled "Approval of Candidates Lists", reads as follows:

 

A candidates list duly submitted, or rectified in accordance with the previous section, shall be approved by the Central Committee, which shall notify the representative of the list and his deputy of the approval not later than the 20th day before election day.

 

            Section 64 of the Law deals with appeals against a refusal to approve a candidates list, subsection (a) of which provides:

           

            Where the Central Committee refuses to approve a candidates list, either wholly or as to the name of one of the candidates or the designation or letter of the list, it shall, not later than 20 days before election day, notify its refusal to the representative of the list and his deputy, and they may, not later than 18 days before election day, appeal to the Supreme Court against such refusal.

 

            Certain changes concerning these time periods, set forth in sections 62, 63 and 64, applied to the elections to the 11th Knesset, as a result of the Eleventh Knesset Elections (Temporary Provisions) Law, 5744-1984, but these are of no concern here.

           

            So much for the text of the Law. It is clear that the statute says nothing about prohibiting or restricting candidates lists on the basis of the list's principles, its purposes and objectives, or the views of its members. In other words, the text of the pertinent legislation in effect on June 17 or 18, 1984 makes no express provision for the disqualification of a list on any of the grounds included in the notice of exclusion sent by the Central Elections Committee to each of the appellant lists.

           

            4. (a) The authority of the Central Elections Committee to refuse to confirm a list of candidates for the Knesset on grounds of the list's political objectives and character was discussed in this court for the first time in E.A. 1/65 [1] (the Yeredor case). There this court, by a majority opinion, dismissed the appeal of a candidates list (named the Socialists List) which wished to take part in the elections to the Knesset, but had been refused confirmation by the Central Elections Committee. According to the Committee's decision, as cited in the above mentioned appeal, the list was disqualified

           

            for the reason that this candidates list is an illegal association since its promoters negate the integrity and very existence of the State of Israel.

           

            (b) The underlying reasons for the decision of the Central Elections Committee to the Sixth Knesset came largely to the fore in the statement made by the Committee Chairman, Justice Moshe Landau, when summing up his opinion before the Committee members. He mentioned that the list was in fact identical, according to various tests, with the EI-Ard Group, an association that was declared illegal under regulation 84 of the Defence (Emergency) Regulations, 1945, after the Supreme Court had refused to intervene in the District Commissioner's refusal to register it as an amuta* noting that its objectives absolutely and conclusively negated the existence of the State of Israel in general, and its existence within its present borders, in particular (H.C. 213/ 64, Gharis v. Haifa District Commissioner [2]). The society's illegality was not in itself the principal reason for its disqualification by the Elections Committee; rather, the fact was emphasized that the illegality found expression in an endeavour to undermine the existence or integrity of the state. In E.A. 1/65 [1] the Chairman of the Elections Committee was cited as saying, inter alia (at p. 372):

 

            I find a vast difference, as East is separate from West, between a group of people which seeks to undermine the very existence of the state or, in any event, its territorial integrity, and a party that acknowledges the political entity of the state but wishes to alter its internal regime.

           

            He added that Basic Law: The Knesset, does not at all deal with the issue under consideration, but refers only to the personal disqualification of a candidate; however, he thought it permissible to read Basic Law: The Knesset and the Knesset Elections Law, 1959, together with the Cooperative Societies Law, and to read into the Knesset Elections Law an implied condition that an illegal organisation cannot be confirmed as a list. A list that is illegal in the sense that it is opposed to the very existence of the state cannot be confirmed, because the Knesset, which is the sovereign institution in the state and expresses the will of the people, cannot incorporate within it an element that negates the very existence of the state.

           

            (c) This court's decision in Yeredor [1] represented a majority opinion. Cohn J., dissenting, held that there was no statutory provision from which one could deduce the authority of the Central Elections Committee to refuse to confirm a list that has met all the formal conditions specified in chapter F of the Law, whatever the nature of the list's platform or objectives. In his opinion, the legislator's silence and the absence of any statutory provision allowing the disqualification of a candidates list on grounds of its character and platform, deprived the Elections Committee's decision of all legal effect and (it) contravened, in spirit, the principle of the rule of law. Therefore, the decision had to be set aside, and he so ruled.

           

            (d) The President (Agranat) and Sussman J. (representing the majority opinion) took the contrary view that the character of the candidates list was in polar opposition to the very purpose of the elections, because in essence and objective the list negated the existence of the state, and it wished to bring about the annihilation of the State of Israel. Agranat P. said (at pp. 385-386):

           

            Indeed, there can be no doubt - and this is clearly deduced from the statements made in the Declaration of the Establishment of the State - that Israel is not only a sovereign, independent and freedom-seeking state, characterized by a regime of the people's government, but it was also established as "a Jewish State in the Land of Israel", for the act of its establishment was effected first and foremost by virtue of "the natural and historic right of the Jewish people to live like any independent nation in its own sovereign state, and that act was a realization of the aspirations of generations towards the redemption of Israel.

 

At the present stage of the state's existence, I need hardly remark, these words express the nation's vision and credo and we are therefore obliged to bear them in mind "when we come to interpret and give meaning to the laws of the State" (H.C.73, 87/53 Kol Ha'am v. Minister of interior 7P.D. 871, 884). The import of that creed is that the matter of the continuity - or if you wish: "the perpetuity of the State of Israel is a fundamental constitutional fact", which no state authority, whether administrative, judicial or quasijudicial, may disclaim when exercising its power.

 

            The statements of the President and of his concurring colleague, Sussman J., recognise that in the normal course of affairs the Central Elections Committee does not have authority to refuse the confirmation of lists that meet the formal statutory requirements. But it happens - as in E.A. 1/65[1] - that extreme and exceptional constitutional factors converge to create a direct confrontation between the very grant of the right to compete in elections and the clear purpose of the elections, or - in more specific and precise terms - there arises a polar conflict between participation in the elections and the intention of the list to destroy the body, in the election of which it wishes to take part. In these circumstances, the committee is authorised to deny the right of participation in the elections, on the merits of the matter.

           

            In the opinion of Agranat P., the basic constitutional premise that the court must take into account in interpreting the laws of the state is that the State of Israel is an existent state, and that its continuity and perpetuity cannot be questioned. This interpretative approach has direct bearing on the problem that arises when one wishes to reconcile a statutory provision that establishes the governmental institution for which the elections are being held, and the negation of its existence advocated by candidates of a list that wishes to take part in the elections. The answer is that this question - whether or not to act for the liquidation of the state and negation of its sovereignty-cannot arise at all on the agenda of the Knesset, for its very presentation contradicts what Agranat P. called the will of the people residing in Zion and its vision and credo. The effect of all this is that a candidates list which denies that doctrine does not have any right, as a list, to take part in the elections for the house of representatives. A group of persons whose unconcealed political objective is not merely "to alter the internal constitutional regime of the state" but "to undermine its very existence", as emphasised by the chairman of the Central Elections Committee, cannot a priori have any right to take part in the process of formulating the will of the people, and cannot, therefore, present its candidacy in the Knesset elections.

 

            Sussman J. elaborated this point (at pp. 389-390):

           

..."An illegal purpose", in the present context does not mean a purpose that aspires to change the internal order of government. This order is not sacred, nor is its alteration a crime that entails punishment. Rather an "illegal purpose" in this context is a purpose that aims to destroy the state, to bring disaster upon the majority of its inhabitants for whom it was established, and to join forces with its enemies... Just as a man does not have to agree to be killed, so too a state does not have to agree to be destroyed and erased from the map. Its judges are not allowed to sit back idly in despair at the absence of a positive legal directive when a litigant asks them for assistance in order to bring an end to the state. Likewise no other state authority should serve as an instrument in the hands of those whose, perhaps sole, purpose is the annihilation of the state.

(Emphasis added - M.S.).

 

            It transpires that even the judges of the majority opinion in the Yeredor case [1] did not consider themselves authorised to fill the gap in the law, in its simple sense, so as to add reservations related to the objectives and character of a candidates list, of the kind that can be found in the elections laws of some countries. All that was decided in Yeredor was that even where the existing law contains no provision allowing disqualification of a list, one must avoid the extreme, substantive and logical contradiction that would allow those who seek an end to the existence of the state and its authorities, to compete in the Knesset elections. One should not deduce from this that the court considered the Elections Committee or itself competent to add to the law and to assume the authority to deny a list its rights, even when no such extreme background conditions operate, and even when such polar conflict between participation in elections and the wish to uproot that elected body's existence, does not arise. Here, the interpretative leap does not entail the lesser power. On the contrary, only an extreme situation permits a kind of judicial legislation that goes beyond the written text so as to fill a gap, because existential necessity, and certainly also constitutional logic, require that it be filled.

 

            The described limitation on the court's possible scope of action, which arises from the existing constitutional situation, therefore found expression also in the conclusion of Sussman J., that there was no identity between the legal situation in a different country - where an express constitutional provision allowing disqualification of a candidates list had been enacted - and our constitutional situation. He said (at p. 390):

           

            ...The German constitutional court, in discussing the question of the legality of a political party, spoke of a "fighting democracy" which does not open its doors to acts of subversion masquerading as legitimate parliamentary activity. As far as I am concerned, as regards Israel, I am satisfied with a "self-defending democracy", and we have the tools to protect the existence of the state even though we do not find them enumerated in the Elections Law.

 

            5. (a) In summary, it appears to have been the opinion of the dissenting judge, Cohn J., that this court does not, today, have any authority to refuse to confirm a candidates list that meets the formal requirements, whereas the judges of the majority opinion held that the court does indeed have such authority, but only with respect to a candidates list that negates the very existence of the state. Because of the importance of this reasoning in application to the instant issue, it should be elaborated further.

           

            (b) The remarks of Cohn J. as to the lack of authority to disqualify a list, regardless of its provocative character and nature, were clear-cut; in his view it was required and necessary that the legislature determine express provisions as to the disqualification of lists and that a particular body - be it the Central Elections Committee, or the Knesset itself, or the court - be vested with the authority to exclude from the Knesset "heretics of the kind who are traitors to the state and aid its enemies". However, the Central Elections Committee and the court may not assume such authority ex nihilo so as to add restrictions and limitations to the election laws. Thus (ibid. p. 379):

           

            In a state governed by the rule of law a person may not be deprived of any right, be he the most dangerous criminal and despicable traitor, except and only in accord with the law. Neither the Central Elections Committee nor this court legislate in this state; the Knesset is the legislative authority, and it empowers designated bodies, if it so wishes, to mete out treatment in accord with a man's conduct and the outcome of his actions. In the absence of such legislative authorization, neither common sense, necessity, love of country nor any other consideration whatever, justify taking the law into one's own hands and depriving another person of his right .

 

          Any measure that is contrary to law or is taken without lawful authority and is calculated to deprive a person of his civil rights, is invalid, in his opinion, and an Israel judge will not uphold it. He added (ibid. p. 382):

         

          There are states in which the security of the state, or the sanctity of the religion, or the achievements of the revolution and the dangers of the counter-revolution, and similar kinds of values, pardon any crime and atone for any action performed without authority and contrary to the law. Some of these states have invented for themselves a natural law which is superior to any legal norm and annuls it when necessary, in the sense that necessity knows no law. These are not the way of the State of Israel; its ways are those of the law, and the law issues from the Knesset or under its express authorization.

(On this aspect, cf. S. Guberman, "Israel's Supra-Constitution", 2 Israel L.R. 445 (1967), at 460.)

 

          Also the majority justices did not believe that the full range of the problem, in all its variations, potentially arising before the Central Elections Committee, could be solved comprehensively without recourse to express legislation. It is absolutely clear from their choice of language that the path they chose was dictated by the extreme nature of the case before them. One cannot deduce from their opinions that they found the constitutional state of affairs satisfactory or that the existing statutory arrangement might be left as it was, and that the solution of these problems - effected in some countries according to constitutional guidelines - be left to the Central Elections Committee, with the changing political coloration of its members, for them to contend with the issue from time to time, to the best of their understanding.

         

          To sharpen the perspective and to indicate additional problems stemming from the fact that the current law deals only with the formal qualifications of the candidates lists, one might mention here, for example, that a right of appeal to the Supreme Court is granted to a disqualified list alone, and if the Elections Committee had chosen to confirm a list of the kind disqualified in E.A. 1/65, there would be no right of appeal available to any other party or body wishing to challenge that decision. The right of appeal under the prevailing law exists only in case of refusal to confirm a list, and not in case of its confirmation.

         

          The approach taken by the majority in E.A. 1/65 [1] pays regard to the essence of fundamental constitutional concepts, but beyond that, and in light of what has already been said, it must be considered in its proper context: a given answer to a constitutional issue might be good and correct for the solution of an extreme, complex problem that arises at a given time, but it should not necessarily be considered a guideline - and certainly not a cure-all - for every additional constitutional complication that public authorities encounter. The conclusion that ought to have been drawn at the time, also from the majority opinion, is that one who seeks to test the qualifications of lists according to their substance and objectives, beyond mere formal criteria, must find for that purpose a legal foundation expressed in a legislative act; the power of the Elections Committee to act without express statutory provision can be exercised only in very exceptional cases, namely: with respect to a list that seeks the annihilation of the state. This should have been clear to anyone interested in the conferment of further powers, such as those found in the constitution of the present German Republic. Yet from 1965 until now there has been no legislative initiative in this respect, neither on the part of the executive branch nor, more important, on the part of the legislature, which normally itself takes the initiative in relation to the enactment of electoral laws (but see the bill for the Knesset Elections (Amendment No. 9) Law, 1968, introduced by Y.H. Klinghoffer, M.K.). Naturally, this is doubly significant in light of the limited scope of E.A. 1/65 [1] (in terms of the circumstances of its application), upon which the Central Elections Committee again sought to rely when making the two decisions which form the subject of the present appeals. Moreover, in addition to the clearly restrictive language of the judgment in E.A. 1/65 [1], there is the restrictive interpretative approach that accompanies any limitation of a fundamental constitutional right.

 

            Our frame of reference, as will be seen below, is that the right to take part in elections and to compete for the voter's ballot is a fundamental civil right, since it emanates from the doctrines of both civil equality and the freedom of expression. A statutory provision or judicial rule which seeks to limit a right is not given a broad sweeping interpretation; on the contrary, their proper interpretation is restrictive and strict (Ha'aretz v. Electricity Corporation [3], at p. 295; Hilron v. Council for Fruit Manufacture and Marketing [4], at p. 653).

           

            As stated in Ha'aretz [3]:

           

            Any statutory limitation on the scope and extent of such right shall be interpreted in a restrictive manner so as to give the said right maximum existence and not to limit it in any degree beyond the clear and express statutory language (H.C. 75/76, Hilron, at p. 653). The freedom of expression and a statutory provision that limits it are not of equal and identical status; to the extent that it is compatible with the written word, the existence of the right should at all times be preferred to a statutory provision designed to limit it. In summary, the standard which accords protection of the freedom of expression primary consideration when that right conflicts with another should find full expression not only when the legislature shapes the provisions of the statute but also in the interpretation of the statute and the application of its directives to circumstances in which its substance and operation are tested in practice .

           

            This is the case when weighing a principle that determines a fundamental right as against a statutory provision that limits it; likewise, a fortiori, when balancing a statutory provision that confers a fundamental right against the intention or wish to restrict it without express statutory authority thereto (cf. H.C. 337/81 [5]).

           

            Hence in accordance with our accepted practice in the interpretation of statutes, there is no room to widen the reach and form an expansive interpretation of the majority opinion in Yeredor [1] and attempt to derive therefrom what is not really there; that is, as if there were room for substantive extension of the inherent disqualificatory power vested in the Central Elections Committee, so that it applies also to cases in which the exceptional circumstances of Yeredor are not present.

           

            It should be clarified that we related to this court's ruling in Yeredor as a primary standard in the present case because the minutes of the deliberations before the Committee reveal that it intended to act within the framework of this court's earlier decision, and thought that it was indeed doing so. Thus, from a strictly formal point of view, we could have disposed of the matter conclusively by merely examining this approach of the Committee. However, in order to complete the picture and encompass the oretical aspects of the matter, it will be dealt with on the merits and independently of our earlier ruling, so as to allay any doubt as to whether there is room for extending the scope of the ruling in Yeredor, that is, whether there is room in the present case to add grounds for disqualification by sole virtue of a new ruling by this court, unsupported by any Knesset enactment. We shall discuss this matter separately, below.

           

            6. By adopting the criteria of the majority opinion in E.A. 1/65[1], we could immediately decide the matter before us. As appears from our decision of June 26, 1984, no facts were brought before the Central Elections Committee from which it could have concluded that either or both of the appellant lists were, as far as known and proven, of a character and identity found by the majority in Yeredor [1] to constitute grounds for disqualifying a list. The reasons for this conclusion differ for each of the lists.

           

            7. In applying the criteria of the majority opinion in E.A. 1/65[1] to the issue of approval of the Kach list, one must pose and be guided by questions corresponding to the rules adopted in that case:

              

(a) Are we dealing with an entity that seeks to undermine the very existence of the state?

(b) Was this entity regarded, prior to the deliberations of the Elections Committee, as a prohibited association or an organisation declared illegal, under one of the enabling enactments in this regard (chapter 8, title 2 of the Penal Law, 5737-1977; regulation 84 of the Defence (Emergency) Regulations; section 8 of the Prevention of Terrorism Ordinance, 5708-1948)?

(c) Was it proven to the Committee, or to us, that the goals of the list utterly negate the existence of the State of Israel? In the words of Sussman J., an illegal purpose does not mean a purpose that aspires merely to change the order of government. We should add that the distortion in the views expressed by the list and its spokespersons, or the opposition and even disgust which these arouse, and the desire to avoid any indirect affirmation of the list's very existence and the dissemination of its views - all of these are insufficient legal reason, in the present state of the law, for disqualifying the list. We shall later return to this aspect.

 

            In order to give the answer, matters should be assessed as they stand, according to their plain meaning and substance. There is no room for a forced description that would bring the facts artificially within the parameters of the Yeredor ruling. It is not enough to seize upon the expressions used by the court in Yeredor [1] in order to describe correctly the facts pertaining to the nature and activities of the Kach list. The repugnance aroused by the views and opinions expressed by a list does not permit the confusion of dissimilar elements, nor provide an opening for an expansive subjective interpretation that is unsuited to substantive judicial examination in general and constitutional inquiry in particular.

           

            Accordingly one cannot escape the conclusion that the answers to the three questions posed above, are in the negative, and it follows that by the criteria of the Yeredor ruling, there was no occasion to disqualify the Kach list.

           

            8. (a) As regards the Progressive List for Peace, the gist of the argument against it was that its leader should be regarded as a kind of reviver or continuer of the EI-Ard Movement, so that everything said and decided in respect of the Socialists List in Yeredor [1] applies also to it.

           

            (b) The composition of the Socialists List did not, in fact, coincide with the leadership of the EI-Ard movement, but it did reflect that movement, which was declared illegal and whose objects were defined as unlawful by this court, since some of those who headed it were also at the head of EI-Ard. The Socialists List comprised only ten candidates, and among them there were five, that is one half, who had been members of the illegal EI-Ard, which advocated the liquidation of the state. In the present case, on the other hand, we are dealing with a list of 120 candidates, only one of whom - the person at its head - belonged in the past to the EI-Ard movement. The head of the list, Advocate Miyaari, a past member of EI-Ard, contended that he did not regard the list as a continuation of that unlawful movement, and the mixed composition of the list of candidates appears, prima facie, to support this thesis. He further explained in his appearance before the Elections Committee that he no longer represents the views of EI-Ard and dissociates himself from the P.L.O. Covenant.

 

          Clearly, the mere denial of ideological association with a past entity cannot in itself amount to an irrebuttable presumption, juris et de jure that such is the case. Evidence could have been brought before the Committee in refutation of such denial and seeming to point to an opposite conclusion. In this regard two questions arise. First, what is the measure of proof, that is, what must be proven to the Central Elections Committee and upon whom lies the burden of proof? A second and separate question is, what is the decision-making process before the Committee, and to what extent can it avail itself of decisions of other authorities? The first matter concerns substance and quantity; the second concerns the manner of adducing evidence.

         

          How does this apply?

         

          The decision to disqualify a list lies with the Central Elections Committee, hence any ground for disqualification must be proved before it. That is to say, once a list has complied with the formal statutory requirements (a sufficient number of signatures in the required form, their submission to the Committee, etc.), it has fulfilled its obligation, and anyone attributing to the list a shortcoming, in its nature or objectives, bears the burden of proving so and convincing the Committee, which has the authority to decide the matter. It follows that if it was claimed that the Progressive List for Peace is a list seeking the liquidation of the state, like for example the EI-Ard movement, or the Socialists List which followed in its footsteps, and that it is nothing but the same old hostile and subversive movement in new garb, evidence to prove that thesis should have been brought before the Central Elections Committee.

         

          Material required to be brought before a statutory authority does not necessarily have to be submitted in the form of evidence admissible in a court of law and proven in the manner in which evidence is presented in court. An authority exercising discretion vested in it by law is not bound by the laws of evidence applicable in a court of law unless otherwise provided by statute (which is not the case here), and it may base its decisions on information that reaches it even if not given to proof in court proceedings where the law of evidence obtains (H.C. 581/80[6], at 328; S.S.A. 1/66[7], at 78). Thus a tribunal or other authority upon which a power of decision has been conferred by law, may base its decision on uncorroborated evidence when a court would require corroboration, or it may accept evidence not admissible in ordinary judicial proceedings (C.A. 292/66[8], at 391; H.C. 245/66[9], at 446; but cf. H.C. 1/49[10], at 84, where it was explained that mere rumour is not sufficient to found the authority's decision; and see also H.C. 74/51[11], at 1552, and H.C. 517/72[12], at 637). As we have said, the court will tend to set aside a decision grounded only on rumour or unsubstantiated surmise and conjecture, but if factual evidence is brought before the authority, upon which it can base its evaluation and decision - that is, material of such evidentiary value that reasonable people would find it a sufficient foundation for inferring the nature and activities of those concerned (see also H.C. 442/71[13]) - the court will not incline to interfere with the authority's conclusion. As was said in H.C. 442/71[13], not all hearsay testimony can have weight in the view of the authority, for example testimony which is nothing more than vague rumour. But the question of the weight and credibility of the testimony is a matter for the authority to decide, and no rules can be laid down in advance on how it must proceed, except that the testimony - having regard to the subject, the content and the witness - must be such that a reasonable person would regard it as possessing evidentiary value and rely upon it.

 

            A statutory authority is not dependent in its decision on a previous finding by a judicial body (H.C. 56/76[14], at 692), and the power of decision is vested in its hands. Once vested with such decisory authority, it does not discharge its duty if it bases its decision on weak or unconvincing evidence. In this connection I would not construe literally the general dicta sometimes found in the case law that it is enough, as it were, for a statutory authority to have before it some material (H.C. 272/74[15], at 672; H.C. 13/80[16], at 696). According to my understanding, the expression some material does not refer to bits and pieces of material, but to such as a reasonable person might find a basis for forming an opinion, a belief or a suspicion, as the case may be.

           

            H.C. 56/76[14] dealt with the question of denying existing rights, and there it was said that for the purpose of its decision the authority must have before it persuasive and credible evidence that leaves no room for doubt. I accept the implication of this dictum that with regard to the denial of existing rights - a fortiori fundamental rights - equivocal evidence will not suffice. As is the accepted situation in the United States, I think that the evidence required to persuade a statutory authority of a justification for denying a fundamental right must be clear, unequivocal and convincing (see Woodby v. Immigration Service (1966) [49], which concerned evidence before the administrative authority prior to issuing a deportation order; see also C.T. McCormick, On Evidence (St. Paul, 3rd ed., by E.W. Cleary and others, 1984) 1023).

           

            The more important the right, the greater the required weight and force of the evidence that is to serve as a basis for a decision in diminution of the right.

           

            Incidentally, I am not dealing here with the interesting question of the demarcation of power between a statutory authority and a court, so far as concerns the upholding of evidence and the line between law and fact (B. Schwartz and H.W.R. Wade, Legal Control of Government (Oxford, 1972) 226, 235; C. Harlow and R. Rawlings, Law and Administration (London, 1984) 311). That is to say, I am not dealing here with the issue of when a court should intervene on a question of fact, since that is not necessary in the present context.

           

            So much as regards the material that may serve as a basis for decision in the circumstances of this case. I now turn to the other question, the manner of reaching a decision.

           

            9. (a) As was stated in H.C. 214/52[17], the evidence should have been brought before the decision-making authority, that is, in the present case, before the Central Elections Committee. However, with respect to the Progressive List for Peace no evidence was actually presented to the Elections Committee upon which it could have concluded that the list suffered a blemish of the kind that founded the majority decision in Yeredor [1].

           

            (b) In the decision of the Elections Committee, the text of which was cited at the commencement of this judgment, it was maintained that this list -

           

...harbours subversive elements and tendencies, and central persons in the list act in a manner identifying themselves with enemies of the state.

 

That is the conclusion. Now as to the factual basis:

 

. .The majority opinion rested on close scrutiny of all the verified information put before the Minister of Defence and on the affidavit of General Avigdor Ben-Gal dated September 24, 1980. Likewise the majority opinion was reinforced by the statements made by representatives of the list to the Committee and to the Minister of Defence...

 

            The information placed before the Minister of Defence was not presented to the Elections Committee and did not come to its knowledge during the course of its deliberations. It received a notice from the spokesperson of the Minister of Defence, that -

           

...After a basic examination of all the verified information placed before him, including the oral declarations and arguments submitted by the list's representatives, the Minister of Defence is convinced that there are indeed subversive elements and tendencies among groups associated with the list and central persons on the list act by way of identification with the enemies of the State.

           

            The nature and details of the verified information before the Minister of Defence remained entirely unknown, not one iota thereof was put before the Committee, and the language of the notice as a whole was vague and ambiguous. Such a notice, which contains no factual details, does not constitute any kind of evidence.

           

            If "elements and tendencies" are present among the groups associated with the list, what is their weight in it? Does this refer to one out of the one hundred and twenty, or to ten of them? What are these "elements", that is, is the reference to groups of people or to programs or views? What is the practical meaning of the term "subversive"? And so on. After all, matters such as these lend themselves to varied evaluations and interpretations, and it is the Committee itself that must draw the conclusion according to its own best discretion. Moreover, as already said, abstract descriptions and generalised conclusions formulated to follow verbatim the observations of this Court in Yeredor [1], are not sufficient if not duly founded on facts brought to the attention of the Committee and considered by it on their merits.

           

            To summarize, since the material remained in the possession of the Minister of Defence or General Ben-Gal, as the case may be, the Committee did not have before it factual details upon which to ground its decision, but rested its decision on a discretion exercised by others on the basis of information brought before those others. We shall deal with this question more extensively later on.

           

            (c) At this point we may pause briefly to consider the manner in which the Committee arrived at its decision, and the limits of judicial review thereof. So far as concerns this court, the accepted view is that in reviewing the action of a statutory authority we examine, in general, whether the modes of deliberation were lawful, and whether the authority had before it material on which it could base its decision (H.C. 288/51, 33/52[18]; H.C. 554/81[19], at 251).

           

            This general observation may be broken down into elements. Lawful deliberation means, generally, that the principles of natural justice have not been violated; that the procedures prescribed by statute and applying to the authority, or set out in the regulations under which it functions, have been observed; that the decision was rendered by the competent person and that it was commensurate with the material jurisdiction of the decision-making authority; that the decision-making authority exercised its power in furtherance of its purpose; that no mistake of law occurred and that the decision was not tainted by fraud or influenced thereby; that the decision was made on the basis of supporting evidence, and, finally, that it was not contrary to law for some other reason. The exercise of a power in furtherance of that power's purpose means, in general, that no extraneous considerations were taken into account; that the authority did not overlook relevant information; that the power was exercised for the purpose for which it was granted; that the discretion was exercised by those empowered thereto, and that there is no room for concluding that the decision is marked by unreasonableness so extreme that no reasonable authority could have made it, or that the exercise of the power was simply arbitrary. This list, long though it may be, clearly does not purport to be exhaustive, and it may well be set out in a different order if compared with the other elements mentioned above.

 

            It was mentioned that the authority must act within the frame of the power vested in it. In the present case the limits of the power of the Committee were not defined by statute but by the precedents of this court, yet as far as the Committee is concerned, this cannot add to its powers. Once its powers have been lawfully defined, it is obliged to exercise them within its prescribed limits, and primarily according to objective standards (R.C. Austin, "Judicial Review of Subjective Discretion - At the Rubicon; Whither Now?" 28 Current Legal Prob (1975) 150, 152), just as it would do had its powers been delimited by statute. In the existing legal situation, the Committee has no power to spread its wings and lay down new limits to its powers, at its discretion and choice, nor may it now exercise its powers according to subjective tests.

           

            The guidelines for judicial review are to a large extent a reflection of the mode of procedure that is binding upon the authority whose functioning is under review. Among other things, the manner of exercising discretion was emphasised, but here the stress must be laid on a single point, that when speaking of a lawful decision based on material upon which a reasonable person might rely in coming to a decision, we mean a decision which results from examination and consideration on the part of the person authorised to decide. In this context it should be emphasised that it is not sufficient to rely exclusively on information that was only in the possession of other persons, or on conclusions reached by others according to information before another who is not the party authorised to decide under the statute.

           

            (d) The authority is the decision-making body, since in it alone did the legislature vest the power to decide the matter. The authority cannot delegate its decisory power to another unless expressly so authorised by the legislature, and in the absence of such authority it is obliged to reach its decision upon an independent examination of the facts. Applying the foregoing to the present case, our conclusion will be that the Elections Committee itself ought to have been satisfied on the facts before it that the candidates list was affected by a disqualifying feature. That, however, did not happen here. The indirect reliance upon information that was presented only before another agency, all or some of the details of which were not at all known to the Committee, signifies that the Elections Committee did not consider the matter and that it was not the Committee that disqualified the list on an independent and considered decision, but that it sought to rely on information unknown to it and available, if at all, only to another agency. Incidentally, the other agency mentioned did not purport to decide the matter, since the Minister of Defence decided nothing, not even a matter within the scope of his authority. In fact, the Committee thereby vested in the Minister of Defence, unbeknown to him and with no foundation in law, the power to disqualify a list of candidates. For it rested content with the fact that the material, the nature and details of which it had no knowledge, had been brought before an executive agency and had convinced the latter to draw the attention of the Committee to the matter in a general way without specifying the grounds for so doing. Such de facto delegation of powers lacks any basis in the Knesset Elections Law [Consolidated Version] or any other statute, and goes beyond all accepted constitutional and legal concepts. It entails, on the one hand, making the Minister of Defence the actual decider with respect to disqualification of a list for purposes of the election laws, for which there is no legal foundation, and on the other hand it strips the powers of the Elections Committee of all content.

 

            (e) Needless to add, the Committee could have regarded the submission of the material to the Minister of Defence as the initial ground for its own deliberation and inquiry, but at some stage the material should have come before it, since the Committee cannot discharge its function by having another, of whatever status, decide in its stead and thus in fact assume its power. Nor can the Committee unburden itself of the duty to exercise its discretion in the light of its own consideration of the material. A competent authority need not itself engage in gathering the facts, and it may pass this task on to others acting on its behalf, but at the final stage. before making its decision, the competent authority itself must consider the matter and draw its conclusions on the basis of the collected facts (H.C. 214/52[17], at 990; H.C. 297/82[20]).

           

            When the chairman of the Committee, Justice Bach, opened the deliberations of the Committee, he informed it that the Minister of Defence did not see fit to disclose to the Committee the factual details, but that it had been suggested to him to examine the material. The chairman rightly refused to do so, and explained that examination by him alone would still not resolve the legal problem, since in the absence of a statutory power to appoint someone (an individual or a subcommittee) to examine the material on its behalf, this suggestion would not provide the Committee itself with the information which is required to be before it for the purpose of its decision. I can only express my full agreement with these observations of Justice Bach.

           

            To summarize this point, the classification and secrecy of the evidentiary material do not exempt a quasi-judicial authority (such as the Elections Committee in its capacity in the present matter - E.A. 1/65[1], at 337) from fulfilling its duty to apprise itself of the facts and to decide the matter on its own, on the strength of tested information.

           

            The consideration whether or not to disclose material that is secret for reasons of state security, rests with the person so authorised by law, that is, in the present case, the Minister of Defence. This applies to proceedings before judicial instances (section 44 of the Evidence Ordinance [New Version], 1971), as well as quasi-judicial bodies empowered to take evidence (ibid. section 52) and any other authority. But if the Minister chooses not to disclose the material by reason of its secrecy - and as aforesaid, this power indeed rests with him - there remains before the Committee nothing but general statements in the nature of summary conclusions drawn by someone else, and that is not a sufficient discharge of its duty, as a quasi-judicial body, itself to consider and decide on the matter of disqualifying the list.

           

            The question often arises, whether an authority may be persuaded by and adopt the opinion of an expert, and the answer is affirmative, provided there comes before the authority, for the purpose of its decision, not simply the expert's final conclusion but also substantive material upon which he founded his opinion. The duty of an authority vested with defined powers to arrive at an independent decision on a matter entrusted to it for resolution, does not terminate even when experts have examined the matter. The Committee could have looked into the information gathered by the Defence authorities and availed itself of an accompanying opinion, but it was not free to forgo independent knowledge and inquiry and thereby rid itself of the duty of lawfully deciding.

           

            10. (a) The reference to the affidavit of General Ben-Gal of 1980 also does not alter the situation. In that affidavit General Ben-Gal explained his reasons for issuing administrative orders at the time, after having himself examined the material relating to Advocate Miyaari. But just as the Committee may not forgo a substantive decision based on information examined by itself and rely on information brought to the attention of the Minister of Defence alone, so too it could not rely merely on the fact that four years earlier General Ben-Gal had been convinced that there existed material concerning Advocate Miyaari which was sufficiently persuasive to require the latter's restriction for reasons of security, for one of the purposes enumerated in regulation 108 of the Defence (Emergency) Regulations.

…

           

            [Ed. - After reviewing the contents of General Ben-Gal's affidavit, Shamgar P. discounted the tendency and sufficiency of this evidence as a ground for disqualification of the List by the Elections Committee, even were it legally permitted to base its decision solely on another's accepted general opinion. The learned President then continued:]

 

            (d) The inquiry made by General Ben-Gal before giving his decision under regulation 110 of the Defence Regulations, well illustrates the proper course to be followed by a decision-making authority. The deponent was aware that he could not rest his decision on the evaluation of the police or the security service. Only after the particulars of the matter were brought before him and he examined them in detail did he decide, in 1980, to exercise his power under regulation 110 and to sign a restriction order.

           

            To sum up, it is the duty of the decision-making authority to examine the facts; others may gather them, classify and organise them - provided that the integrity and accuracy of the picture is not affected - and may even add their advice, recommendations and opinions, but the decision must rest on an independent consideration of the matter and not on that of others.

           

            (e) The affidavit of the person named "David", also presented to the High Court of Justice in 1980, does not add any detail which might have rendered the members the Committee aware of the factual ground and reason for their decision .

           

            (f) The representations made on behalf of the List before the Minister of Defence and the Committee, however much they aroused the objection of the Minister or the members of the Committee, do not in themselves, by their substance and content, display the nature or measure of proof required here. They were no more than expressions of a political view, already voiced inside and outside the Knesset without being regarded as a ground for any legal action, and they did not contain the elements impliedly attributed to them in the decision of the Elections Committee. As already noted, there must be a factual connection between the conclusions and their underlying grounds. What is more, the Committee regarded those representations as supportive of its conclusion, as stated in its decision, but what is the force of such support when essentially there is nothing to support?

           

            11. (a) If the security authorities possessed information, one wonders at its general concealment from the Committee, and why the Committee rested content with the laconic description in the notice of the Defence Minister's spokesperson.

           

            There is no point in laying down guidelines concerning matters that are unknown to this court, but one may assume that the security authorities also considered the possibility of distinguishing between a concise description of a given event, which could be brought to the knowledge of the Committee, and disclosure of personal identifying particulars which might seriously impair security. In any event, apart from the notice of the Minister, nothing but the affidavit of General Ben-Gal was submitted to the Committee, and that dealt with agitation and the organisation of demonstrations and strikes rather than subversive actions to liquidate the state.

 

            (b) It is possible that the inability or unwillingness of the security authorities to present material to the Committee pertaining to the security considerations that motivated their deliberations at the time of submission of the Knesset candidates lists, are a reflection of the fact that the Elections Committee - a broad body composed according to political criteria - is not the appropriate forum for dealing with such classified matters. That in itself cannot be a reason or justification for the Committee to base its decision on information which it has not seen or heard, and which is within the knowledge of only a few members of the executive branch who cannot share it with others. The failure of a statutory body to make its independent decision is, in this case, tantamount to a failure to decide properly, and ipso facto devoids its act of legality and validity.

           

            (c) Some of the Committee members relied for some reason on the fact that this court would examine the classified material that the Committee itself did not examine. As pointed out to them by the chairman, Justice Bach, this assumption had no legal foundation: this court examines the decision of the Committee, and it has no independent power to disqualify lists. It accordingly does not consider anything but the material that was before the Committee.

           

            12. To remove all doubt I will add that the foregoing is not necessarily to be regarded as a definitive conclusion that the apprehensions voiced in connection with the orientation of certain candidates on the List are baseless, and for the present purpose no such conclusion is required. As explained, the Committee's considerations were required to be based on clear, unequivocal and persuasive material - which a reasonable person would regard as indicative of a tendency of the kind defined in the majority opinion in Yeredor [1]. If such material existed, however, it was not brought before the Central Elections Committee. It follows that the Committee could not have applied to the List the legally required yardstick, as enunciated by this court in the past.

           

            This in itself would suffice for the appeal to be allowed, and we have indeed so decided.

           

            13. (a) Thus far we have analysed the factual and legal data on the basis of the statutory law and the rulings of this court in effect at the time of the hearing of these two appeals. However, as already noted, this matter should be examined from a further perspective - that of the separate question whether the rules governing disqualification of a list allow for expansion beyond what was laid down in Yeredor [1], and whether a legal basis could be found for the decisions of the Central Elections Committee - not on its understanding of the substantive prevailing law, but by broadening the judicial rule.

 

            (b) Any redefinition of the limits of the Elections Committee's authority and of the scope of the prohibitions against participation in the elections, has implications for the two lists concerned. That is so even though we have decided the case of the Progressive List for Peace not only upon analysis of the material demonstrating its objectives, tendencies and activities, but also, largely on ground of the process by which the decision was reached. Essentially the substantive problem is whether a list can be disqualified, in the case of Kach, on grounds of its non-adherence to principles of democracy, tolerance and morality accepted by a majority of the public, and on account of its hostility to a defined sector of the general population. In the case of the Progressive List for Peace, the question arises whether a list can be disqualified because of its members' attempt to establish political contacts for the purpose of talks with a hostile organisation or enemy states, while at the same time explicitly disavowing the objective of annihilating the State of Israel, which earlier was the ground for the decision regarding the participation of EI-Ard members in the elections. Also to be considered in this regard, is that the general prosecuting authorities did not regard those known contacts as a criminal offence and instituted no legal proceedings in that connection.

           

            (c) The character of the issue also dictates the method of its examination. The following matters will accordingly be examined: first, the nature of the right under discussion; second, the manner in which its boundaries are defined; third, the principled reasons that induced the court in Yeredor to delineate the boundaries as detailed above; and fourth, the possibility of altering these bounds, as indicated in paragraph (a).

           

            Before undertaking our detailed examination, there is need to further clarify the essential question before us, namely: whether the Central Elections Committee is competent to impose additional restrictions on the right to participate in the Knesset elections, beyond those expressly authorized in Basic Law: The Knesset, or in any other enactment.

           

            14. The yardsticks for testing the answers to the above questions should properly be grounded in constitutional principles. Thus Professor Ronald Dworkin's words are apt, when he writes: "Judicial decisions ..... even in hard cases ..... should be generated by principles not policy" ("Hard Cases", 88 Harv. L. Rev. (1974-75)1057,1060).

 

            As far as I am concerned, judicial decisions in constitutional matters should be rested, even in hard cases, on grounds of principle and not on reasons and motives of policy formed in accord with what appears to meet the needs of the hour and the sentiments of the majority.

           

            The adoption of a general guideline based on principles and not on occasional transient factors, wherever the need for judicial decision arises, as suggested by Professor Dworkin, is a separate matter that does not merit discussion here, and I, for one, do not consider myself bound by it. The reference here is to the standard to be adopted when discussing constitutional questions or legal problems that have constitutional implications. In such circumstances the choice of standard is not to be considered merely as a scholarly imperative or as a just and reasoned advice convincing on its own. Rather the choice dictated by adherence to legal principles inheres in the very nature of the subject. It stems from the need to formulate guiding principles for the functioning of a given political or social body adhering to the fundamental concepts that lend a special status to constitutional civil rights. One must bear in mind, inter alit, that when constitutional matters are under review, their import and implications have to be considered in the long term, and proper weight must be given to their impact on the political and social framework within which they operate. If these are subjugated to the needs of the hour and we adopt a casuistic approach in constitutional matters, particularly concerning the rights and freedom of the individual, we shall miss the mark and deal less than justly with the subject.

           

            15. What is the form and standing of a fundamental civil right in our law? The protection of individual rights derives from fundamental constitutional principles forming a substantive and integral part of the law applying in Israel. The integration of fundamental constitutional rights in our law takes various forms: recognition of the fundamental freedoms does not express itself only in abstract doctrines that guide the actions of governmental bodies, but also entails the formal and concrete conclusion that these freedoms constitute part of the substantive law, in accord with their name and designation. The legal status of a fundamental right within the abstract and theoretical system of rules was referred to in H.C. 337/81[5], at 355-356:

           

            Proper protection of the status of a given liberty is not achieved through mere declaration of its existence, although one should not fail to appreciate the didactic value of a declarative determination; such determination is an essential starting point in the process of moulding the right, in the course of which it gains concrete substance, and is likewise a starting point for introducing the legal principle that it embodies into extra-legal areas, such as the social or moral sphere. It should be added in this context that it is doubtful whether a given fundamental right can be viable without continuous, positive and reciprocal interaction between the legal and the socio-moral areas.

 

To recognise the existence of a fundamental right is to accord it a place as part of our substantive law. In other words, it is not merely a declarative principle representing beliefs and opinions, but is one of the fundamental components of the law in effect in Israel. In this respect it has already been said (in C.A. 723/74, at 294-295) :

 

The absence in the State of Israel of any single legislative enactment enjoying supreme protected status and embodying the constitutional principles, does not mean that we do not have statutory provisions of constitutional substance or that our legal system does not contain constitutional legal principles defining the fundamental human and civil rights. Our conception and view of the law in effect in Israel is that it encompasses fundamental rules as regards the existence and protection of personal liberties, even if the bill of Basic Law: Human and Civil Rights has not yet become law.

 

The bill of the new Basic Law is intended to formulate principles and delineate their scope, and its central function is to root them in a written statute so as to protect them against risks of temporal crises. It is designed to serve as a vehicle for the expression of values which will serve to educate the citizen, and to restrain in advance those who seek to infringe the limits of his rights. Yet already now the fundamental liberties are rooted...in our basic legal perspectives and are a substantive part of the law in effect in Israel.

 

            These legal principles influence the patterns of legal thought and interpretation, which are inspired by their force and direction (F.H. 9/77[21], at 359). Our legal rules relating to fundamental liberties thus serve as a connecting link between these liberties as mere abstract ideas and ordinary legal provisions, which are influenced in their content and language by recognition of the fundamental rights. For, together with the principled legal rules, some of the rights are also integrated in specific statutory provisions, which were influenced and have even been governed by them from the time of their formulation and throughout their existence and actual implementation (see, e.g., section 4 of Basic Law: The Knesset, and H.C. 141/82[22], at 156).

           

            The delineation of the rights in terms of the wording of the Law is the basic and primary footing upon which their actual protection depends; the very existence of a statute lends tangible expression as well as stability to the political regime and its prevailing fundamental concepts. The stability stems from the existence of a statutory norm embodying the standard against which the legality of the acts of governmental agencies is measured. Therefore, it is of special significance and weight that the constitutional principles defining the fundamental rights be given explicit expression in a legislative act and not merely remain in the realm of the oral or unwritten law. In this way it is ensured that the substance and scope of the rights will be defined in clear language, upon which the individual citizen can rest his demands and claims. Therein, among other things, lies the importance and value of a written constitution, whose absence in our system is conspicuous each time a constitutional issue arises for legal deliberation.

 

            The main expression of the rule of law is that it is not the rule of people - in accord with their unrestrained decisions, considerations and aspirations - but rests on the provisions of stable norms that are applied and binding in equal fashion. The definition of a right and even its inclusion in a statute are not conclusive of its effective protection, for they do not exhaust the existence of the right. The actual realisation of the rights is expressed in honoring them in their actual implementation, in an equal manner and without unjust discrimination. The value and force of a statute that grants rights is that the rights determined therein are more than an abstract idea, proper in spirit and purpose; rather, the written word renders them concrete and positive, to be applied under standards of equality for equals that may not be departed from for invalid reasons (Yick Wo v. Hopkins 118 US 356 (1886)). Last to be mentioned, though not in order of importance, is the norm that when rights are violated, every person injured thereby will be shown equal consideration and given equal treatment (Tussman and Ten Broek, "The Equal Protection of the Laws", 37 Calif. L.R. (1948-49) 341).

 

            16. The political rights are among the most important and decisive fundamental freedoms. Thus Professor Bernard Schwartz remarks:

           

            Among the most precious rights of citizenship are those denoted as political. Without such rights, indeed, it may be doubted that an individual can be said truly to attain the dignity of citizenship.

(A Commentary on the Constitution of the United States, Part III, Rights of the Person, p. 777.)

 

            The main political rights are these four: the right to vote, the right to be elected, the right to assemble for a meeting or demonstration, and the right to address a petition (see also section 48 of the bill of Basic Law: Charter of Fundamental Human Rights).

           

            As regards the right to be elected, the determination in section 6 of Basic Law: The Knesset that every Israeli citizen, who is 21 years old or over at the time of submission of a candidates list which includes his name, is entitled to be elected to the Knesset (unless the conditions specified in the concluding part of the section are found to exist) serves to define a right, ideologically based mainly on the principle of political equality, the duty to uphold which derives also from section 4 of Basic Law: The Knesset (H.C. 141/82[22], at 156; H.C. 246, 260/81[23], at 19). So far, the right to be elected has found expression in our judicial decisions mainly in the context of equal opportunity, but the directive of the Basic Law reflects a broader and more general import of that right. Incidentally, in providing for the right to be elected in the Basic Law, the Israel legislator gave express and positive recognition to what is only indirectly derived from the U. S. constitutional provisions, without any explicit mention in the text of that Constitution ("Developments in the Law of Elections", 88 Harv. L Rev. (1974\75) 1111, at 1135).

 

            Professor Schwartz says in this connection (op. cit., 778-779):

           

            ...though there are no other express provisions in the matter, it may be stated today that there is a right to hold public office that inheres in the status of citizenship.... One may go further and say that the right of a citizen to hold office is the general rule - with ineligibility the exception. A citizen may not be deprived of this right without proof of some disqualification specifically declared by law. One court has gone so far as to assert that "the lexicon of democracy condemns all attempts to restrict one's right to run for office".

(Emphasis added - M.S.)

 

            The legislature may restrict the right to be elected by determining eligibility qualifications, but the accepted practice in countries with similar systems of government to ours, is that there is no lawful restriction in this area except under express statutory directive.

           

            In the U.S. a thesis was developed that even the right to elect becomes incomplete where the freedom to be elected is restricted. In other words, a restriction on the right of a party faction to contend not only limits the activities of the faction but also narrows the right of the individual to cast his vote in the manner he considers most effective. From this follows the view that the right to vote and the right to associate in promoting an elections list are but two sides of the same coin. Thus Justice Black regarded the two rights as -

           

            ...two different though overlapping kinds of rights- the right of the individuals to associate for the advancement of political beliefs and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.

(Williams v. Rhodes [51], at 30).

 

            In other words, restriction of the right to be elected limits not only the rights of a person running for office, but also the rights of the voters to elect a candidate according to their preference by virtue of their right to enjoy equally with others everything accorded under the Elections Law to persons holding the right to vote. From the voter's point of view a restriction of the right to be elected indirectly narrows also his freedom of expression, since he is deprived thereby of his ability to associate with others in promoting his views and opinions as they would have been presented by his preferred candidate. Hence the court is required to exercise great caution in scrutinising the nature of such restrictions so as to ensure that they are reasonable and non-discriminatory. See Anderson v. Celebrezze [52]; Cousins v. Wigoda [53]; R.D. Rotunda, "Constitutional and Statutory Restrictions on Political Parties in the wake of Cousins v. Wigoda", 53 Tex. L.R. (1975) 935; Nowak, Rotunda and Young, Constitutional Law (2nd ed., 1983), 777.

           

            In summary, the right to participate in elections is a fundamental political right that gives expression to the idea of equality, freedom of expression and freedom of association, whence it follows that this right is one of the hallmarks of a democratic society.

           

            Thus far as regards the nature of the right.

           

            17. In Mitrani v. Min. of Transport [5], it was said, with respect to the conditions and limitations that may be imposed on a fundamental freedom, that the standing accorded any one of the fundamental personal rights in a given political or social framework reflects the notions and shapes the character of that framework. The oretical constitutional premise which holds that a fundamental right endures and subsists in its full scope so long as it has not been limited by the law, is more than a mere technical-formal indication of the ways in which the right may be limited. Likewise, that premise serves not only to underpin the principle of legality; rather its primary purpose is to express the superior legal status of a fundamental right, so that any restriction of the right must be founded on express statutory authority. The court there went on to say (ibid., p. 355):

           

            Determination of defined and special procedures for changing a fundamental right is, to a large extent, the principal means of assuring that the matter will be properly examined in substantive terms. The right should not be limited except after careful study and deliberation, since curtailment of the scope of the right might bring in its train a distortion of the character of the social or political regime, to a greater or lesser degree. We have indeed said that the place of a fundamental right within a given legal system mirrors the extent of the substantive rule of law, and any change in the scope of the right necessarily affects also the continued existence of the rule of law. Hence the importance of defined legislative procedures, which offer the sole means of changing the application and scope of a fundamental right.

 

            The exercise and practical implementation of a fundamental right are not absolute. In concrete given circumstances the use of a certain right by one person might conflict with another person's lawful right, as was indicated by my esteemed colleague, Barak J., in a different but related context (Temple Mount Loyalists v. Police Commander of the Jerusalem Region [24], at 455):

           

The freedom of conscience, belief, religion and worship, to the extent that it is given concrete expression, is not an absolute freedom (see Cantwell v. State of Connecticut 310 U.S. 296 (1940). My right to pray does not allow me to trespass on my neighbour's property or to subject him to a nuisance. Freedom of conscience, belief, religion and worship is a relative freedom. It must be balanced against other rights and interests that similarly merit protection, such as private and public property and the freedom of movement. One of the interests to be considered is the public order and security. "The freedom of religion must be qualified: no society can accept the notion that its fundamental concepts as to public order may be frustrated for the sole reason that they are incompatible with the demands of a particular religion" (Rubinstein, op. cit., at 135). The point was elucidated by Justices Black and Douglas in West Virginia State Board of Education v. Barnette 319 U.S. 624 (1943), at 643-644:

 

No well-ordered society can leave to the individuals an absolute right to make final decisions, unassailable by the state, as to everything they will or will not do. The First Amendment does not go so far. Religious faiths, honestly held, do not free individuals from responsibility to conduct themselves obediently to laws which are... imperatively necessary to protect society as a whole from grave and pressing imminent dangers.

(See also H.C. 153/83[25]).

 

            If there is a substantial probability that the exercise of a certain right will jeopardise the public order and security in a concrete case, the competent statutory body may limit the practical exercise of the right in those circumstances. But this generates no general right of a statutory body, not so authorised by law, to nullify or qualify the essential right regardless of concrete factual circumstances from which arises such substantial probability of the public security being endangered. This means, for example, that a distinction must be made between a prohibition imposed by a competent agency against holding a demonstration in a certain place at a certain time, and a blanket prior prohibition of the right to demonstrate, in any place at any time, imposed on a defined group of people. Obviously a general prohibition of that nature can be determined only under a legislative provision that authorizes the statutory body to impose it (H. C. 337/81[5]). I need hardly reiterate that the a priori application of general prohibitions against the exercise of the basic freedoms has a direct and negative implication as regards the character and nature of the regime under which they are imposed.

 

            The subject can also be approached from a different angle, namely: the existence of a basic right does not grant immunity from legal proceedings to one who exercises it in contravention of the law. The right to demonstrate carries no permit to breach the public peace or to commit an assault, and a demonstrator who commits an act defined as a criminal offence will be prosecuted, when no general reliance upon the right of demonstration will save him. In other words, the general freedom offers no blanket license to perpetrate criminal acts. The converse is true, too. The right to take legal measures following the commission of a crime and the authority to restrict the exercise of rights in concrete cases, constituting criminal action or giving rise to a substantial probability of danger to the public peace, do not transform the authority in such cases into a general authority to prohibit and restrict in advance the various liberties of citizens, or of classes of citizens, unless the legislature has expressly enacted such authority. The authority to restrict civil rights - including the right to participate as a candidate in the Knesset elections - is not generated ex nihilo, nor is it a natural extension, in character or scope, of the authority to prevent crime and bring criminals to justice. The question of an a priori general withdrawal of a right is on a different level of discussion and of a different legal character. One should distinguish between the formal and the normative elements, and discuss each separately: the legal authority to impose a restriction is one matter; the import of the restriction in terms of its impact on individual liberties, is another matter.

           

            General prohibitions on enjoyment of the freedom of expression or the freedom of demonstration can only derive, in democratic states, from the exercise of an express constitutional power associated with special times of emergency. They are not in the category of a general and obvious inherent power which an authority may exercise without being so empowered by law. As aforesaid, no liberty may be denied in advance except in relation to a substantial and unavoidable probability of the commission of a criminal offence or an impairment of the public security or welfare (see H. C. 153/83[25]), and even then such power must derive from some statutory provision (for instance authorising the prohibition of a demonstration or the refusal of a licence to hold it, as may be provided in the statute concerned). Hence in Yeredor [1] the court, for the purpose of comparison, referred to a number of statutory provisions in English, American and German law which in one way or another imposed limitations on the right to be elected. In England and the United States, however, such general limitations are by and large related only to the candidate's criminal record, along the lines of what is laid down at the end of section 6 of Basic Law : The Knesset (presently we shall refer to special statutory provisions in the United States, as in the Smith Act).

 

            The Constitution of the Federal German Republic, on the other hand, makes express provision for the prohibition of political parties, which also affects the right to campaign for election (see P. Franz, "Unconstitutional and Outlawed Political Parties: A German-American Comparison", 5 B. C. Int'l & Comp. L Rev (1982) 51; H.W. Ruhrman, "KPD Verbotsurteil, Neue Juristische Wochenschrift" Dez. (1956) 1817). This provision is embodied in article 21(2) of the Basic Law of May 23, 1949 (Grundgesetz - BG B1 5.1) - the German Constitution. It prescribes that parties oriented by their purposes or the conduct of their supporters towards impairing the fundamental order of a free democracy or the removal or endangerment of the existence of the Republic, are unconstitutional, and entrusts the resolution of the unconstitutionality question to the Constitutional Court, leaving the particulars to be regulated by statute. To complete and supplement this constitutional provision the Law of Parties was enacted on July 24, 1967.

           

            Since the establishment of the Federal Republic the Constitutional Court has outlawed the existence of two parties under the above provision of the German Constitution: the neo-Nazi Sozialistische Reichspartei (decision of October 23, 1952, 2 BVerf.GS. 1) and the Communist party (KPD) (decision of August 17, 1956, 5 BVerf. G. 85, rendered by the Constitutional Court after protracted hearings over a period of some four years; see Dr. T. Maunz, Grundgesetz, (Becksche Verlagsbuchhandlung, Muenchen), Vol. II, pars. 4-21).

           

            Incidentally, the thesis that between the two World Wars the German Republic, based on the Weimar Constitution, lacked stability because it did not have the power and authority to ban political parties is unfounded. Under article 48(2) of the Weimar Constitution and the laws for the protection of the Republic (21.7.1922, I Reichsgesetzblatt (RGBI) 585; 2.6.1927, I RGBI 125; 25.3.1930, I RGBI 91), that obtained until the changes introduced by the Nazi regime, in Prussia alone some thirty parties and other political entities were banned between 1922 and 1929 (Maurer, "Das Verbot Politischer Parteien", 96 Archiv des Oeffentlichen Rechts (1971) 203, 206).

           

            It was not the absence of statutory power that was decisive in this area but a variety of deeper-seated factors, which need not be analysed here but have been mentioned before in another context (F.H. 9/77[21], at 361).

           

            18. (a) Article 21(2) of the Basic Law of the Federal Republic confers on the Constitutional Court the power to ban the existence of a political party. Under the pertinent German case law such ban applies not only to the party banned, according to its actual name and identity at the time of the judicial-constitutional decision, but also to bodies and entities seeking to take its place (ersatz Organisationen) (Maunz, op. cit., at 12). A vague and general intention to impair the fundamental order is not sufficient ground to permit the banning of a party. An aggressive, militant and active stance is required, but the orientation of a party may be deduced from its declared purposes or the conduct of its supporters (ibid., at 38).

           

            In a democratic regime the dilemma often arises of an apparent conflict between maintaining freedom of expression and the desire to uphold democratic principles even in the face of those who seek to do away with them yet, to that end and for their own convenience, avail themselves of the very democratic principles against which they conspire. In this connection commentators on the above Constitution pointed out that

           

...it is possible to reconcile the contradictory principles of the amenability of the political regime to historical changes (on the one hand), and preservation of the existing regime (on the other hand) only by way of practical-political reason, with cautious advancement and gradual changes ensuring the continuing existence of the whole.

(3 Kommentar zum Grundgesetz (1976) 32).

 

            With regard to these problematics, the American legal scholar, L.H. Tribe, observed (see "Toward a Metatheory of Free Speech", 10 SW. U. L.Rev. (1978) 237, 239):

           

It should be clear that no satisfactory theory of free speech can presuppose or guarantee the permanent existence of any particular social system. For example, a free speech theory must permit evolution from a society built on the ideals of liberal individualism to a society aspiring to more communitarian visions - just as it must permit evolution from communitarianism to individualism.

 

            (b) The direction indicated by Tribe is clearly formulated, but its application to day-to-day political life is more difficult. That which is permitted ought also to imply that which is forbidden, but drawing the line between the permitted and forbidden is not easy, and not infrequently the fear will arise that something of the freedom of expression or association has been sacrificed to create a wider security margin and to block in advance any trend from which the actual danger that arises may be far from a substantial probability. The German Constitution set down clear bounds, positive and negative, that are not necessarily tied to an ex post facto examination of the purposes and activities of the political party. From the power to ban the existence of a party, where the conditions laid down in Article 21(2) are fulfilled, the Constitutional Court has deduced also what the absence of a banning provision means. In other words, the Constitutional Court concluded from the permissible exercise of article 21(2) that it may not impose prohibitions on a political party. A party whose existence has not been banned under article 21(2) is free to act as a lawful body for all purposes (provided, of course, it is not a camouflaged substitue for a banned body).

 

            As observed by Franz, op cit., at 63:

           

            ... almost as a counterweight to its enormous party-prohibition power, the court has found that this clause provides a "privilege" to a party, under which both the party and its officials, when lawfully acting on behalf of the party, are to be free from government discrimination and governmental intervention as long as the Constitutional Court has not found the party to be unconstitutional. Through this interpretation, Article 21(2) retains a continuing vitality, despite the fact that the Constitutional Court last prohibited a party over twenty years ago.

           

            The court based this "party-privilege" on the theory that a judgment of a party's unconstitutionality is operative not declarative. The court's judgment of a party's unconstitutionality is, in other words, a "performative utterance" that changes something in the world. A party becomes unconstitutional only when the court adjudges it so. The court does not "discover" unconstitutional parties and merely label them as such.

           

            The declaration of a party ban under the above Constitution is constitutive and not declarative. So long as the prohibition has not been pronounced, the activity of the party is deemed lawful, hence it is not possible to employ measures on grounds of past organisation, in the manner of the thesis posited in the American judgment in Dennis v. United States (1951) [54], with which we will deal below. It follows that a party may not be discriminated against or restricted in its activity so long as the Constitutional Court has not decided to exercise its power under Article 21(2). For this reason the German Constitutional Court invalidated the text of election laws that restricted in advance the prospects of parties which, in the view of the majority, constituted "a political danger to democracy" (decision of 9.3.76, 41 BVerf. G. 399) - with reference to a political organisation that had not been banned under Article 21(2).

           

            19. (a) The Constitution of the United States has no provision that permits the banning of political organisations because of their views, but the American legislator has adopted several measures in ordinary legislation to ban the existence of the U.S. Communist Party and to restrict the activities of organisations that are generally subversive. These are the main enactments:

           

            (1) The Smith Act of 1940 (18 U.S.C. (1946 ed), pars. 10, 11 - now 18 U.S.C.A. par. 2385, 54 Stat. 67D 671) defines a new criminal offence, i.e. -

           

            (2)(a) ... (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government.

           

            In the fifties and sixties this provision was applied to bring criminal charges against officers and activists of the American Communist Party.

           

            (2) The Communist Control Act of 1954 (Pub. L. No. 83637; 68 Stat. 775 (1954)) rendered the existence of the Communist Party unlawful and prevented its participation in the Federal elections and in various state and local elections.

           

            (3) The Subversive Activities Control Act of 1950 proceeded from the declared premise that the Communist Party constitutes a clear and present danger to the security of the United States, and imposed a duty of registering bodies and organisations connected in any way with that party or its activities (on the interpretation of the provisions of this Act, see Communist Party v. Control Board (1961) [55]). It appears that this law has not been applied since the beginning of the fifties.

           

            (b) In reliance upon the Smith Act, legal proceedings were initiated in the fifties and early sixties against certain activists of the American Communist Party (Dennis v. United States [54]; Yates v. United States (1957) [56]).

           

            The outcome of these two cases differed as regards the final decision, but in both the court mapped out the guiding principles for construing the provisions dealing with the offence of organising for and advocating any purpose defined in section 2 of the Smith Act. The majority in the Dennis case [54] made it clear that a requirement for conviction, under the Act as phrased, is an unlawful intention to overthrow the government by force or violence. Freedom of expression gives no immunity from legal proceedings to those who support and advocate staging a revolution - in circumstances of a clear and present danger of commission of the forbidden act, that is, the overthrow of the government.

           

            Freedom of expression indeed rests on the assumption that -

           

            ...speech can rebut speech, propaganda will answer propaganda, free debate of ideas will result in the wisest governmental policies.

(Dennis [54], at 503, per Vinson C.J. , following Communications Assn. v. Douds [57], at 396.)

 

            At times, however, the conclusion is required that the immediate danger outweighs the wish to preserve freedom of expression (ibid, at 509, per Vinson C.J.):

           

            Overthrow of the government by force and violence is certainly a substantial enough interest for the Government to limit speech.

           

            As was held in that case, the government need not sit back and wait for a putsch to take place. If the authorities know that an entity aspiring to revolution is trying to educate its members and organise them in such manner that they will carry out their leaders' decision to commit an illegal act, that will require the authorities to take action as well. The argument that there is no occasion for the governmental authorities to be overconcerned since they in any event command sufficient forces to overcome any uprising, if such occurs, is not weighty enough to call for a protracted inactivity, to wait-and-see.

           

            (c) In the Dennis case [54], on the other hand, warnings were also voiced against excessive use of the "clear and present danger" test. Frankfurter J., who concurred in the majority opinion, referred to the comment of Prof. P.A. Freund (Understanding the Supreme Court, 27) that the test is not to be taken too simplistically, and that a number of factors must always be considered before exercise of the power, including, inter alia: the comparative gravity of the danger in relation to preservation of the values of freedom of expression and political activity; the possibility of employing more moderate means of control, and the need to examine in depth the specific intent accompanying the spoken words. Simplistic reliance on the above mentioned test is no substitute for the weighing of values.

           

            Black J. dissented from the majority opinion and viewed the conviction as a far-reaching violation of the freedom of expression. An assembly for the purpose of disseminating ideas and viewpoints ought not to have led, according to Justice Black's thesis, to conviction for conspiracy to overthrow the government. He added, in a mixed tone of regret and optimism (Dennis [54], at 581):

           

            Public opinion being what it now is, few will protest the conviction of these Communist Petitioners. There is hope, however, that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.

           

            In other words, a decision to restrict the exercise of a given liberty should not be governed by momentary pressures or passions, and a more tolerant, long-term evaluation is required.

           

            Douglas J., also in the minority, sought to qualify the restriction on freedom of expression that flowed from the conviction of the accused conspirators in the Dennis case [54]. To give foundation to his point of view he referred, inter alia, to the comments of Brandeis J. in Whitney v. California (1927) [58], noting as follows (Dennis [54], at 585-586):

           

            The restraint to be constitutional must be based on more than fear, on more than passionate opposition against the speech, on more than a revolted dislike for its contents. There must be some immediate injury to society that is likely if speech is allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring opinion in Whitney v. California 274 U.S. 357, 376-377:

 

Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented is a serious one. Every denunciation of existing law tends in some measure to increase the probability that there will be violation of it... But even advocacy of violation, however reprehensible morally, is not a justification for denying free speech where the advocacy falls short of incitement and there is nothing to indicate that the advocacy would be immeidately acted on... In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated.

 

...To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

(Emphasis added - M.S.)

 

          (d) In the Yates case [56] the meaning of the term "advocacy" was somewhat narrowed, in relation to the expression of opinions about overthrowing the government. The court distinguished between support of abstract ideas and advocacy to carry out illegal acts. As explained there, the Smith Act was not designed to prohibit beliefs and opinions, but only advocacy and incitement to the commission of acts.

         

          20. The above examination of some of the conclusions reached by the U.S. Supreme Court in Dennis [54] and Yates [56], is for comparative purposes alone, and is not exhaustive of the rules emerging from American case law in this area.

         

          One may learn from the legislative as well as the interpretative approach in the United States, that the starting premise there differs somewhat from the practice under the German Constitution. The latter creates an express and exclusive constitutional basis for the prohibition of a political entity, and once a political body has been declared illegal it follows that no act may be done on its behalf in the area of organisation, dissemination of views, activities and the like. The banned entity is ipso facto precluded from participating in an election campaign. As explained above, the provision in the German Constitution that enables the banning of a political party, reinforces indirectly the conclusion as to the general lawfulness of the political activity undertaken by a body that has not been so banned. For the present purpose one may add that whatever be the views of the party, so long as its existence has not been prohibited by the Constitutional Court under the legal order prevailing there, its participation in elections may not be prevented.

         

          The American approach, as expressed in the Smith Act, puts the emphasis on the character of the actions carried out from time to time. According to the nature of these it is determined whether or not an unlawful act has been committed, and in this respect a preliminary declaration as to the banning of the body is not a condition precedent for the institution of legal proceedings on account of the body's organisational activities.

         

          21. The foregoing demonstrates the nature of our subject as regards its general legal classification. We are concerned here with one of the fundamental political rights. The pertinent provisions of the statutory law embody no authorisation for its restriction on grounds of the purposes and nature of the candidates list. In other words, the court cannot rest its decision upon a statutory provision that delineates in advance the scope of its power and expressly empowers the court to prohibit the participation in elections of a given list or of a type of list. Hence the need of the court to consider (both at the time of giving its judgment in the Yeredor case [1], and now when dealing with the two lists in the present case) to what extent an innate authority is vested in the Central Elections Committee to restrict freedoms and narrow fundamental rights without having been expressly empowered to do so by statute.

 

          What are the powers of the Central Elections Committee and those of this court in the absence of statutory guidance? The principle of legality and the pursuit of the rule of law, which shrinks from restricting liberties without statutory sanction, as well as the special deference we must pay to the various freedoms - all these support the thesis that a fundamental right may not be restricted without statutory authority (H.C. 337/81[5], at 355). The proper and desirable fundamental aim is that rights should be maintained without limitation. Even when rights conflict one with the other, one must consider which of them prevails in the circumstances, or in what circumstances should the one prevail and in what circumstances should the other - and one has recourse to a value test that seeks to maintain the rights as far as possible side by side and not one at the expense of the other. This court cannot and ought not detach itself from the general legal context, and its interpretation is necessarily governed by the constitutional nature of the matter brought before it.

         

          The path taken by the majority in Yeredor [1] represented an optimal exercise of the court's power, and in light of its reasoning we can only conclude that in any less extreme factual situation, the majority of the court in Yeredor [1] also, would have refrained from disqualifying the list.

         

          In other words, the court faced a situation in which it had to fashion criteria ex nihilo for determining when the right to participate in elections was subject to restriction. In any event the court could only act on the premise that the existence of the state, its institutions and the elections thereto was a supreme necessity; and in so doing it had to be guided by the basic perspective that no liberty or right was to be prejudiced except in the most extreme cases. Only the far-reaching significance of the objective to liquidate the state engendered the court's readiness to assume a power amounting to the absolute denial of a right. It thus adopted a twofold test that integrates the supreme, basic constitutional concept of the existence of the state with the practical criterion of "substantial probability". That means that the court rested its decision on the (list's) illicit purpose that goes to the very root of (the state's) existence and on a test constructed in accord with the qualitative weight of the danger, its imminence and its clarity.

         

          What we have said above serves to answer the fourth question we earlier posed, i.e., to what extent, if at all, may the decision of the Supreme Court in Yeredor [1] be supplemented. That is, can the kinds of cases in which a list may be banned from participation in elections be added to by virtue of judicial decision alone, without prior statutory sanction?

 

          The clear answer to this question, which founded our decision of June 28, 1984, is in the negative. Only the polar conflict between the objective of eradicating the state, on the one hand, and the desire to participate in elections to state institutions, on the other, could have called forth a judicial determination resting on an ultimate principle and not requiring concrete legal substantiation founded on express statutory provision. Participation in fashioning the image of the state, through Knesset membership, on the part of those who contest its very existence, is a contradiction in terms, and it was this profound inner contradiction that freed the majority in Yeredor [1] from the limitation imposed by the absence of any written legislative endorsement. However, had it been attempted to add variously to that, and had there developed an expansive case law with new circumstances added and elaborated in which the right to participate in elections might be denied without statutory ground, for reasons unconnected with the above substantive contradiction, the result might have been the clearest injury to the character of the political regime under which we live, and subversive of the fundamental notions by which it is nourished. The addition of further grounds for disqualifying a list would not be of mere quantitative import, but would entail transition to another dimension. Instead of reliance on the fundamental value of the existence of the state, which alone can bridge the legal gap engendered by the lack of statutory guidance, recourse would be had to substantive evaluation or to a value judgment concerning the party list based on its platform. So to do requires express and clear legislation, which demarcates limits and does not leave matters for resolution by way of unqualified discretion. A prominent feature of the democratic regime is not merely that it establishes checks and balances between the different branches of government, but also that it refrains as far as possible from entrusting unlimited discretion to any particular branch. The executive, the legislature and the judiciary must all act within their constitutional confines in such a manner that the fundamental values serve them as their foundations as well as defined tests for exercising discretion.

         

     The danger in choosing an alternative course is not to be discounted. If a committee composed entirely according to political party affiliation considered itself free to decide, by the ordinary majority required, that one list or another is disqualified from participating in the elections, notwithstanding the lack of any enabling statutory authority or normative standards delimiting the committee's discretion and prescribing the circumstances for its exercise of such power - the result might be to reduce substantially the general scope of the political right to participate in elections. In this regard it matters little that initially the committee exercises its power only with respect to entities which are obnoxious to a majority of the public. In the absence of any binding qualifying standard, it would be no surprise if the first selection for disqualification is a list of the kind that a majority of the public finds objectionable. We learn from the experience in other countries that the first examples do indeed relate to the extreme cases, but a less than strict observance of the rule of law and the fundamental freedoms gradually calls forth less extreme examples, as is well known.

 

          Alongside the danger that democracy will be abused by those seeking its eradication or weakening, is the contrary danger that excessive anxiety to preserve democracy will render its principles purely theoretical and alienated from its practical significance, imposing multiple a priori limitations and prohibitions on liberties.

         

          One should bear in mind in this connection that the dilemma of the limitation of liberties, that frequently assails governmental authorities, generally does not arise in relation to the rights of bodies whose existence and ideas are not controversial. It arises most acutely when views are voiced that arouse firm objection on the part of the majority, and even outrage the feelings of listeners. The true test for the existence of a right arises not in times when the current events express composure, tolerance and understanding, but at moments of pain and vexation, when there is little sympathy for the person claiming a certain right or for his views. The individual's right to personal liberty and the preservation of his rights against unlawful imprisonment or bodily torture, does not arise for debate only upon investigation of a respectable citizen's complaint that he was mistakenly taken into custody and mistreated by a police officer. The right is also truly tested when persons suspected of murder or rape are arrested, taken to prison and interrogated there. Protection of the freedom of speech or freedom of demonstration is important not only when words of wisdom are spoken, quietly and reflectively, for the existence of the right is not problematic where there is civilised and calm debate. But it is far more difficult to preserve freedom of expression and similar or associated fundamental rights, where beliefs, opinions and views are aired of a nature found outrageous and reprehensible.

         

          We have seen that it is not sufficient to create a mere formal statutory basis for the authority of the Committee or this court. That is indeed an essential precondition for authority to restrict the right of candidacy in elections, but over and above that need, substantive normative definition of the nature of the discretion and its limits is also required. That is to say, the legislative act must consist of two components: one is satisfied by the formal act of vesting authority; the other - which must be treated with great care - is the definition of circumstances in which the authority may be exercised.

         

          The central problem is the need to determine standards founded on democratic beliefs and viewpoints that must be applied also to persons who do not adhere to democracy and its values - quite the contrary! Professor John Rawls of Harvard named this challenge "The Toleration of the Intolerant" (Rawls, A Theory of Justice (Cambridge, 1971) p. 216).

 

            This matter must be treated with great circumspection. The statutory restriction of the right of party lists to contend in elections when they seek to jeopardise the very existence of the state, creates no special problems. But as one widens the circle encompassing the classes of bodies whose candidacy is sought to be inhibited in advance, one also widens the possible impact of such legislation on the continuing existence and realisation of our fundamental democratic concepts. Thus, as in Britain and in other countries, we have found no room to prohibit the candidacy of lists that would establish a political regime of the kind that exists in some other countries and differs radically from our own. Are there grounds to depart therefrom? Of course, this court will not encroach upon the domain of the legislature, yet it is proper to stress again the caution that is required in this regard, lest any proposed new legislation bring about a change in an unintended direction. In any event, I am not persuaded that there is any reason to discard past truths or to determine new standards that might substantially restrict any of those clear manifestations of the democratic political regime that we have accepted so far.

           

            The fundamental liberties - including freedom of expression, freedom of belief and equality in competing for public office, are all inherent in our governmental system and, therefore, in our legal system too. In every society one finds a variety of differing views and opinions; in a free society the diversity is manifest, in a totalitarian society the diversity is masked and concealed. Exchange of opinions, clarification of views, public debate, the urge to know, learn and convince - all these are essential tools in the service of every opinion, view and belief in a free society. The act of classifying citizens and distinguishing between them, some of whom are granted rights and others not, contradicts the truth that underlies the freedoms and, in its theoretical essence, manifests the same internal contradiction as does a person who decries democracy while utilising the rights it confers. Even with unpopular views and opinions must one contend and seek methods of persuasion. Prohibitions and restrictions are extreme devices of the last resort. The premise is that freedom of speech finds prominent expression when accorded also to those whose opinions appear to be mistaken and even dangerous (per Scrutton J. in the O'Brien case [48], at 382, and see Agranat J. in Kol Ha'am [26], at 878). Adopting a similar approach in Dennis v. U.S. [54], Frankfurter J. quoted these words of Sir. W. Haley, Director-General of the British Broadcasting Authority (at pp. 553-554):

           

...there are powerful forces in the world today misusing the privilege of liberty in order to destroy her. ... [But] no debate is ever permanently won by shutting one's ears or by even the most Draconian policy of silencing opponents. The debate must be won. And it must be won with full information. Where there are lies, they must be shown for what they are. Where there are errors, they must be refuted. It would be a major defeat if the enemies of democracy forced us to abandon our faith in the power of informed discussion and so brought us down to their own level.

           

            No person has a monopoly over truth, opinion and reason, and it has been said that what appears today to be simple and self-evident may seem uncertain tomorrow, or as it was put by Learned Hand: (The Spirit of Liberty, (New York, 2nd ed. 1953), p. 82):

           

            ...(the) certainties of today may become the superstitions of tomorrow. . we have no warrant of assurance save by everlasting readiness to test and test again...

           

            True, liberty does not mean licentiousness, and there are circumstances that necessitate the imposition of restraints, just as it is necessary to take legal measures against the commission of various crimes (Kol Ha'am [26]; Levi v. Southern District Police Commander [25]). However, the restrictions must not only be based on express statutory provision but, more importantly, they must also be imposed only as an extreme measure of last resort in face of a substantial probability of danger. There must always be a rational connection between the degree of danger and the measures taken; and even if the advocacy of a certain view raises just indignation, that is not sufficient to cause the total denial of a basic right. A democracy that acts to restrict freedoms when this is not an existential necessity, as indicated above, loses its spirit and force.

           

            In summary, the practical maintenance of fundamental liberties should not be influenced by transient events or the prevailing sentiments, and where restraints on fundamental rights are necessary, these must not be improvised and moulded according to momentary needs. In a state that regards the rule of law as the principal means for protecting its citizens from diverse internal dangers and believes in the moral power of democracy, a person's liberty may not be restricted except by law and may not be denied him merely on grounds of objection, however forceful, to the content of his statements. Restraints on liberties to prevent dangers that are a substantial probability is sometimes a cruel necessity, but the introduction and implementation of restrictions and prohibitions - except as an extreme measure of last resort in face of a "substantial probability" of danger - could in the long term have the same effect on the fundamental liberties, and cause them the same harm, as is threatened by the advocacy of their restriction on the part of those who object to the very existence of such freedoms.

           

            22. For the above reasons I decided at the time, together with my esteemed colleagues, to set aside the decisions of the Elections Committee.

           

            BEN-PORAT D.P. My esteemed colleague, Shamgar P., has dealt extensively and impressively with all aspects of the problem at the core of the two appeals before us. Accordingly, I shall content myself with a brief exposition of the lines of thought which guided me to concur in the opinion of my colleagues that the appeals should be admitted.

           

            After much thought I have reached the conclusion - which on the face of it might seem somewhat strange - that the Knesset Elections Law [Consolidated Version], 1969 (hereinafter - "the Elections Law") does not grant the Central Elections Committee (hereinafter - "the Committee") any authority to consider the worthiness of a given list to be a contestant in the elections by virtue of its platform or objectives. Its sole duty is to examine whether the list complies with the technical requirements enumerated in sections 6 and 7 of Basic Law: The Knesset (hereinafter - "the Basic Law") and in various sections of the Elections Law, inter alia: whether the candidate meets the conditions of age, citizenship, etc.; whether the list has the required number of signatures, and so on. Once a list is submitted in compliance with all the conditions, and at the proper time, it has been "lawfully submitted" and must be confirmed; if not - it must be rejected.

           

            I have said that on the surface my conclusion that the legislature entrusted the Committee with a purely technical-ministerial function, might seem somewhat "strange". For, on the one hand it may be urged that it is vital to prevent the infiltration of a dangerous list into the elected body, and it would be better therefore to recognize the power of the Committee to take this weighty consideration into account when asked to grant its approval to a list. On the other hand, however, it emerges from the case law to which I shall presently refer (and which, on the face of it, is unacceptable to me, with all due respect), that there is no judicial forum competent to set aside the Committee's approval of a list. On the contrary, if the Committee has approved a list, no matter how dangerous its purposes, that is the end of the matter and its decision cannot be questioned either by way of appeal or before the High Court of Justice. Recognition of a power in the Committee to grant a list final approval, to the exclusion of all judicial review, is an unacceptable result.

           

            It appears that the Kach List, submitted to the Committee for the elections to the Tenth (i.e. prior) Knesset, was approved by a majority vote, contrary to the view of the Committee chairman (Justice Etzioni) who favoured its disqualification. His opposition was based on certain publications on behalf of Kach, which stated:

           

            ...In order to deter those who are intent on seducing Jewish girls to assimilate we propose mandatory imprisonment for a term of five years without mitigation of sentence or reduction of the term of incarceration for every non-Jew who has sexual relations with a Jewess...

 

To prevent further deterioration we demand that an end be put to all plans of the Ministry of Education to encourage social relations between non-Jews and Jews and also to carry out schooling only in separate schools for Jews and Arabs... This is only by way of initial steps since it is clear that the true solution of the Kach program is to motivate the Arabs of Eretz Yisrael to migrate to their own countries.

 

            As already mentioned, a Committee majority prevailed over the chairman and decided to approve the list. At a further meeting, when those present were informed of the Attorney-General's position that certain publications of this list amounted to a criminal offence, the Committee stood by its decision.

           

            Four Israeli citizens, among them Mr. Moshe Negbi who pleaded on behalf of them all, felt impelled to counter what they considered an impending evil and petitioned the High Court of Justice (in H.C. 344/81[27], hereinafter - the Negbi case) for an order nisi against the Committee (and the Kach list) to show cause why it should not reverse its decision to approve the list, and disqualify it. Mr. Negbi was aware of section 137 of the Elections Law, which provides:

           

Any complaint as to an act or omission under this Law shall be within the exclusive jurisdiction of the Central Committee, and, save as otherwise provided in this Law, no court shall entertain an application for relief relating to any such act or omission or to any decision or direction of the Central Committee, the chairman and vice-chairmen of the Committee, the chairman of the Committee, a District Committee or a Polling Committee.

(Emphasis added - M.B.P.)

 

            To overcome the difficulty, Mr. Negbi submitted the argument, rightly called "sharp", that section 137 presented no obstacle because the Committee's approval was in no any way based on the Elections Law but on what have been called supra-constitutional principles. In other words, according to the Elections Law the Committee must only consider whether the requisite conditions have been met, materially and technically, in order to deem the list "duly submitted", and no more.

           

            However, according to the rule of the majority opinion in the Yeredor case [1], it is also empowered, so it was argued, to consider supra-constitutional considerations (for instance whether the list is in any way subversive of the existence of the state). Such a consideration, he submitted, goes beyond the strict confines of the Elections Law, hence it is also beyond the ambit of section 137 of the Elections Law and is amenable to judicial review by the High Court of Justice. On the other hand, if a supra-consitutional consideration is a matter within the scope of the Elections Law, then the Committee exceeded its power, which is confined entirely to a technical-ministerial examination, i.e. whether a list has been "duly submitted".

 

          This argument was rejected, the court holding as follows (ibid., at 839-840, per Barak J.):

         

The decision of the Central Elections Committee to approve or refuse to approve a list is taken by the Committee by virtue of the power vested in it under the Elections Law, according to which the candidates lists are submitted to the Elections Committee (section 57(i)), and the Committee either approves or refuses to approve them (sections 63 and 64)... The constitutional-or if you wish the "supra-constitutional" - principles dealt with in Yeredor case, E.A. 1/65, do not sever the act of the Elections Committee from the Elections Law, and the application of these principles by the Committee in actual practice is not excluded from the immunity prescribed in section 137 of the Elections Law. The legal principles laid down in the Yeredor case, E.A. 1/65, comprise a complex of relevant considerations which the Central Elections Committee may or even must take into account when acting under the Elections Law, and in doing so it is immune from judicial review.

(Emphasis added - M.B.P.)

 

          Further on it was stated that even if the Committee erred in exercising its discretion, this does not mean that the decision went beyond the scope of its power under the Elections Law. In the words of Barak J. (ibid. at 840):

         

...Just as a correct decision by the Committee is protected from judicial review, so too is an incorrect decision.

 

          Accordingly, it was on the basis of the immunity covering the decisions and acts of the Committee under section 137 of the Elections Law, that it was decided to dismiss the petition, which meant that the Committee's approval of the Kach list was final and could not be challenged, whether the decision was correct or erroneous. That is to say, even assuming that judicial review were to reveal that the platform or purposes of the Kach list call for its disqualification, it remains legislatively decreed (in light of section 137 of the Elections Law) that the Committee's approval is final and binding.

         

          I must confess that in reading the judgment I formed the impression that it does not distinguish between approval and non-approval by the Committee, as if in both cases its action is covered by the immunity of section 137 (see the passages cited above), but this is not so. To the contrary, the Elections Law does indeed "provide otherwise" (in the sense of section 137), regarding the Committee's refusal to approve a list in section 64(a), which reads:

 

            Where the Central Committee refuses to approve a candidates list, either wholly or as to the name of one of the candidates or the designation or letter of the list, it shall, not later than the 20th day before election day, notify its refusal to the representative of the list and his deputy, and they may, not later than the 18th day before election day, appeal to the Supreme Court against such refusal.

           

            In other words, the symmetry that seemingly emerges from the Negbi case [27], does not exist at all: while the approval of a list is immune from judicial review, the legislature did grant a right of appeal to a list that considers itself prejudiced by the Committee's refusal to approve it. That is to say, the legislature saw no need for judicial review in case of approval of a list, but sought to prevent the injustice that might be caused to a list when the Committee refuses to approve it. If we construe this asymmetry in light of the ruling in Negbi [27], we must inevitably conclude that a decision of the Committee to approve a list is conclusive, regardless of any differences among its members as to the worthiness of the list to campaign in the elections to the Knesset because of its unacceptable platform and that there is no way to challenge such approval, whether by way of appeal or by petition to the High Court of Justice. On the other hand, the Committee's decision to refuse to approve the list is subject to the list's right of appeal to the Supreme Court (section 64(a)).

           

            If this asymmetry relates solely to ministerial examination of the conditions prescribed by the Elections Law (and the Basic Law), it seems reasonable and is even logically compelling. Where a list has been approved, there is no one at all to appeal the decision (unless a minority of the Committee members be permitted to appeal against the majority). It is possible also to understand it is better that a list be allowed (even erroneously) to participate in the elections, than be disqualified without just cause. In this way the principles of democracy are preserved, by the fact that a list barred from contesting benefits from a right of appeal and judicial review of the refusal. On the other hand, were the Committee empowered to take into account superior principles (for example, the fact that the list's platform undermines the existence of the state) and not merely to conduct a ministerial examination, then such asymmetry would be puzzling. The approval of a list subversive of the existence of the state and seeking its annihilation is far more dangerous than a refusal to approve it. It is clear that ensuring the existence of the state takes precedence even over the principles of democracy. Hence, had the legislature intended to embody also such a consideration in the frame of the Elections Law, logic would dictate that it should confer the right of judicial review precisely and primarily when the Committee's decision is to approve a list that endangers state security. If one maintained otherwise, an erroneous decision by the Committee to approve a list that aspires to destroy the state could well be disastrous. Moreover, the natural forum for judicial review of a decision to approve a given list is, to the best of my understanding, the High Court of Justice and not an appellate instance, since there is no one to appeal such approval. Another possible course (for example) is to vest in the Attorney-General a right of appeal against a list's approval. But, as aforesaid, the immunity extended to the approval of a list by the Elections Committee is absolute.

 

          It should be noted that if we are dealing with superior principles, there is no reason to stop at the point where a list is in fact directly subversive, and there is good reason for also barring from the contest a list that aspires to a grave violation of basic democratic principles. Furthermore, without going into detail, it is at times difficult to establish a clear-cut division between crass subversion of the foundations of democracy and an aspiration to destroy the state.

         

          I am aware of the answer given by my esteemed colleague, Barak J., to this asymmetry. His view is that in case of the approval of a list which endangers the existence of the state, the Knesset will be impelled to act. I wonder why the refusal to approve such a list invokes judicial scrutiny, with all the haste necessitated by the impending elections, whereas its approval is a matter for the Knesset and not (for example) the High Court of Justice. In my opinion it is important to prevent such a list from entering the contest, and during the elections period it is difficult to expect the Knesset to find the time to resolve a matter of this kind. Moreover, if the Kach list had attained the "cut-off' percentage in the elections to the previous Knesset, when its participation was approved by the Committee, would the Central Elections Committee have been competent to refuse to approve its participation in the next elections? I wonder. Let us assume that a veteran Knesset faction submits a list to the Committee which is valid in all formal respects, but a majority of the Committee members think that by reason of its past conduct the list is subversive. Would the Committee be competent to refuse approval? The answer, to my mind, is that the Knesset - and it alone - has the power to outlaw an existing party faction. One should bear in mind that it was only by mere chance that the Kach list did not obtain the "cut-off" quota of votes in the previous elections to the Knesset and was not therefore a party-faction in the outgoing Knesset. This line of reasoning also supports my conclusion, that the function of the Committee is merely technical-ministerial. Incidentally, unlike my esteemed colleague, Barak J., I think that the platform of a party-faction would be sufficient ground for the competent body (if such existed) to disqualify it, and it would not be necessary to wait (if the platform is illegitimate) until that faction proves by its conduct that it indeed carries out the platform in practice.

         

            I am conscious of the weighty considerations that moved the majority Justices in Yeredor to hold that the power to disqualify a subversive list was a practical necessity. Those proceedings concerned an appeal against the Committee's refusal to approve the Socialist list, the court holding that a party list whose aim is to destroy the state cannot be allowed to participate in elections to the Israel house of representatives. To so decide as an appellate instance, it was obviously necessary for the court to recognise also (as it did) the Committee's power to disqualify such a list. The reason is simple: the function of an appellate instance, by its very nature, is to determine what decision should have been made by the body against which the appeal was brought. However, assuming that the list (Socialists) had been approved by the Committee (as was the Kach list in the elections to the Tenth Knesset), if only by a single decisive vote, it might be asked whether the immunity extending to such approval would have rendered that list any the less dangerous to the existence of the state? Yet such approval, as already indicated, has absolute immunity from judicial review.

           

            Had it been decided in the Negbi matter [27], that for lack of an appeal (or an appellant) against approval, the doors of the High Court of Justice were open to anyone with locus standi, I might have been inclined to accept the majority judgment in Yeredor [1], if only for the reason that both approval and refusal by the Committee could be judicially reviewed (whether by the High Court of Justice or an appellate instance). I might have been so "inclined" since one of two solutions is possible: "supra - constitutional" considerations are either extraneous to the Elections Law or they fall within its scope. In other words, if the procedure to challenge a Committee refusal (on ground of subversion) is by way of appeal, then the same procedure should also be available to challenge a Committee approval (say at the instance of the Attorney-General, but no such provision is made in the Law). In any event, if the High Court of Justice cannot be approached in case of approval of a list, yet we find ourselves faced as we are here with an appeal against the Committee's refusal, the question of asymmetry in the existing interpretation arises most acutely.

           

            In view of the rule laid down in Negbi [27], and so long as it remains unchanged, I cannot, with all due respect and modesty, see any way to adopt the solution according to which the danger posed by a particular list will be subject to judicial review when the Committee withholds its approval, but will not be reviewable precisely when the Committee approves the list, albeit mistakenly (that is, even when it is in fact dangerous and given to disqualification). I have read with interest the opinions of my esteemed colleagues but have not found in them any reference to the Negbi decision, nor a satisfactory answer to the question how any judicial instance (the High Court of Justice or an appeal court) can remedy the situation if the Elections Committee (whether for political reasons or erroneously) approves a list that aspires to annihilate the state. Such is the consequence of perpetuating the asymmetry. Thus the duty to disqualify the list is held by my esteemed colleague, Elon J., in paragraph 13 of his judgment, to be entrusted to the Central Elections Committee; but if the Committee fails to discharge its duty - how shall we rectify the error? Clearly the statement of my esteemed colleague (ibid.), "in that case we are obliged to disqualify it", is not given to implementation in the existing situation. Likewise, the distinction made by my esteemed colleagues between annihilation of the state and prejudice to democracy is in my humble opinion very questionable. Not only does grave prejudice to democracy pose a danger also to the state's existence, but is itself among the "superior principles" that merit consideration. I nevertheless reiterate, that in case of conflict between principles of democracy and security considerations affecting the very existence of the state, clearly the existence of the state must be given first priority, however important the other principles may be.

 

          In light of the situation I have described I hold to the opinion (as a lesser evil) - also expressed in the dissenting opinion of Cohn J. in Yeredor [1] - that the Elections Law charged the Committee with the sole function of examining compliance with the conditions prescribed by statute. That and no more. The legislature apparently believed - assuming it considered the matter at all - that the supra-constitutional aspects would be dealt with by the Knesset itself, if the need ever arose in the future. The danger that a problematic list would appear and also exceed the "cut-off" quotient of votes, apparently seemed slender or remote. Another possibility, that of petitioning the High Court of Justice in matters vitally affecting the State of Israel, was blocked by the above mentioned ruling in the Negbi case [27].

 

          Support for the attribution of a limited function to the Committee can be found in section 63 of the Elections Law, which provides:

         

          A candidates list duly submitted ... shall be approved by the Central Committee, which shall give notice of ... the approval ...

(Emphasis added - M.B.P.)

 

          Literally at least the text indicates a purely technical examination, as explained succinctly by Cohn J. in Yeredor ([1] at 376 ff.). In this manner the asymmetry loses its significance (as explained above).

         

          This state of affairs, however, is undesirable and in the present reality even intolerable. It is time to enact a law protecting the state against the entry of subversive lists into its legislative body. A state that wishes to survive and remain committed to the principles of democracy, must take care that these are not overwhelmed by destructive elements from within, all in the frame of legitimate campaigning, as it were, for election to the Knesset.

         

          On a previous occasion I agreed that even the majority in Yeredor [1], did not hold the Committee empowered to reject a list that sought to undermine the foundations of democracy, because the question never arose in that case. The fact that the discussion focused solely on the question of state subversion appears from Sussman J.'s description of the political purpose under discussion there (ibid., at 389):

 

          ...a purpose that aspires to annihilate the state, to bring catastrophe upon most of its inhabitants for whose sake it was established, and to form alliance with its enemies.

          As regards the Progressive List for Peace, the esteemed President has already explained in his opinion that privileged material is not "evidence". On the contrary, the meaning of the very privilege is that such evidence may not be proffered, disclosed or relied upon. Thus the preclusion of essential evidence in judicial proceedings because of privilege, will cause the litigant in need of that evidence to fail, for the reason that he is unable to bring evidence that is (so I assume) essential. In other words, privileged material lacks evidentiary force, and it is mistaken to think that the very privilege is in the nature of proof upon which the Committee or this court could rely to conclude that this list aims at annihilation of the state.

         

          Finally, a marginal observation, that I must not be understood to agree with what my esteemed colleague, Shamgar P., said in relation to F.H. 9/77[21] and C.A. 723/74[3]. Vieing with the interest of freedom of expression is the legitimate interest of the individual in his good reputation, and it seems to me that the majority judgment in that precedent expresses the correct balance between the two.

         

          In summary of my opinion that the Central Elections Committee - hence also this court sitting on appeal - is not competent to disqualify a list because it seeks to undermine the existence of the state, I shall restate my main considerations:

         

          A. The Elections Law grants a list a right of appeal to this court against the Committee's refusal to confirm its participation. On the other hand, it absolutely precludes any judicial review (whether by a court of appeal or the High Court of Justice) of a Committee decision approving a list's participation in the elections. In the precedents, too, no ground is found for such review of the Committee's approval (the Negbi case [27]).

         

          B. The above policy reflects the legislature's fear that a list might be wrongly disqualified, and its lack of concern over the possibility of a list's wrong approval. This policy is consonant only with a technical-ministerial function, according to which the Committee must confirm all lists duly submitted in that (formal) sense. An erroneous approval is a "windfall" for the list (because of the lack of review). But the Committee's mistaken refusal to approve the list, provides the list with a right of appeal.

 

            C. The concern that a list might be unlawfully excluded from the contest is consonant with a liberal approach and the desire to ensure wide participation in the electoral contest, as far as possible without hindrance or restriction.

           

            D. Had the legislature assigned to the Committee the function of examining the substance of a list's platform (whether, for instance, it is subversive of the state's existence), it should have designated as a first requirement a judicial or other forum with the power of review, particularly of, the approval of a list by the Committee. If the Committee were to err in such examination, it would be imperative to provide for the possibility of correcting the error, otherwise the security of the state might be endangered and a subversive list allowed to become part of the house of representatives. To leave the solution of the problem, if and when it arises, to the Knesset itself (as Barak J. suggests), is in my view, impractical, since in the midst of elections the Knesset cannot be expected to free itself for this task, and it is important, moreover, to prevent such a list's very entry into the contest.

           

            E. It follows from the above that to invest the Committee with a conclusive power to approve a list, as regards the legitimacy of its platform, is so unwise and unreasonable as to be inconceivable.

           

            F. If the Committee is competent to take into account not only technical but also substantive considerations and on that basis to disqualify a list (for instance) because of its subversive objectives, it is difficult to see how such power may be confined solely to the submission of a new list, as distinct from a list submitted by an outgoing and even longstanding Knesset party or faction. To the best of my understanding this matter is left to the Knesset itself.

           

            I wish to emphasise the immediate and urgent need for appropriate legislation to prevent the infiltration of subversive lists into the house of representatives, perhaps by extending the existing framework so as to embrace, besides direct danger to the existence of the state, also crass violations of basic democratic principles.

           

            ELON J. 1. When I agreed with my esteemed colleagues to allow the two appeals now before us, I did so in reliance upon the majority opinion in the Yeredor case [1]. The rule that emerges from that case is that the Elections Committee is competent to consider the election platform of a party list, and to disqualify that list from participating in elections to the Knesset, only when its platform negates the very existence of the State of Israel, or its integrity. In the present matter, that has not been proved to be the purpose of those promoting the Progressive List for Peace, as was well explained by the learned President. And as regards the Kach list, it falls entirely outside the reach of this ground for disqualification. I might have rested content with that explanation of my opinion - considering the particular circumstances accompanying this judgment, as well as the tradition that brevity is blessed: "And (Boaz) said unto the reapers*, the Lord be with you" (Ruth 2:4). But having regard to the opinions of my esteemed colleagues, I wish to add some further comments. In particular, I do not find their explanations of the Yeredor majority ruling fully exhaustive of its implications and I accordingly see need to elucidate it further. My esteemed colleague, Barak J., expands the Yeredor ruling to cover also a list that negates the democratic nature of the state. He further renders it a precondition to the disqualification of a list, for any reason whatever, that the realisation of that list's ideas is a reasonable possibility. I disagree with him on both scores. I also attach much importance to a Knesset enactment that will delimit the borders of the permitted and the forbidden respecting the matter in issue here - provided that enactment prescribes clear standards. I shall endeavour to explain briefly the reasons for my position in this matter.

 

            2. The majority ruling in the Yeredor matter [1] was a great innovation, and it cannot be explained or even understood in terms of our accepted methods of interpretation. It is well known that the methods of interpretation vary with the interpreter, and this court has said (see C.A. 2/77[28], at 11) -

           

... which is only natural and comprehensible, considering that the rule of the Jewish scholars, "the judge has only what his eyes see", applies primarily to the modes of interpreting the law and the rules for its construction. The view of one judge differs from that of another. All depends on the eyes that penetrate the very heart of the law, its aim and purpose, and not merely the superficial meaning of the text. Some adopt an expansive method of interpretation... others advocate restrictive and strict interpretation... Still others proceed along various middle paths in order to find the proper balance.

 

            From amongst these differing approaches that which commends itself to me holds (ibid., at 12). -

           

...Let not the judge be likened to a mountain palm, and let him not abstain from the task of construction, so long as it is possible, even if strained, to reconcile the matter with the written text, if by doing so a result contrary to the declared purpose of the legislature can be avoided...

 

            It has been said further (H.C. 188/63[29], at 350, per Berinson J.):

           

               We are interpreters and not simply linguists. A good interpreter of the law is one who carries out the legislature's will.

           

            I also accept that the interpretation of a statutory provision must heed the spirit of the law and of the entire legal system. The judge should not rest content with the act of deciding alone, but must adopt a decisory policy. As we said elsewhere (C.A. 32/81[30], at 767):

           

               Such a process of decision-making pursuant to legal policy, which prevails over the legal rule since it itself is part of the law, is a common phenomenon in the decisions of the courts.

           

            But there is a limit to all these methods of interpretation which the judge may not exceed or transgress: the will of the legislature, as it finds expression in its enactments. This prohibition against trespassing upon the domain of the legislature derives from the fundamental principles of the legal system concerning the boundaries of the three branches of government, and the judge may not enter the domain of the law-maker. Just as ascertainment of the legislature's will is one of the fundamental principles of legal policy, so too is it fundamental not to raise ourselves above the legislature but to accept its fiat.

           

            3. The Knesset Elections Law (Consolidated Version) (hereinafter - the Elections Law) prescribes the fundamental right of every Israeli citizen to be elected to the Knesset, the circumstances in which this right may be denied, and the various requirements concerning the submission of candidates lists and similar provisions (section 56 and chapter six of the Law). The conclusion to be drawn from all these provisions is that the legislature directed and intended that only on the given grounds, and no other, may the Committee refuse to approve an election list. One may not infer in any manner from these grounds - which are technical and formal - the existence of additional grounds, such as flow from examination of the content of a list's platform. There is good reason for the legislature's wish to limit the possibility of disqualifying a list to purely technical-formal grounds. On the one hand it wanted to safeguard the right to be elected, a fundamental right in the democratic regime; on the other, it lacked the confidence to entrust a power of disqualification - on grounds of a party list's substance and content, to a body mainly composed (except for its chairman) of party-political representatives, whose considerations might be ideological-political.

           

            Furthermore, the Elections Law prescribes, mandatorily, that a list meeting the enumerated requirements "shall be approved by the Central Committee" (section 63). In that situation, the court may not assume, nor confer upon the Elections Committee, a discretionary power to disqualify a list for reasons not specified in the Law, when that discretion was withheld by the legislator. We are not concerned here with the application of rules of interpretation, but with acceptance of the rule of law, which is paramount in our legal system.

 

            4. Prima facie this legal situation would lead to the conclusion reached by Cohn J. in the Yeredor case [1], and by my esteemed colleague, Ben Porat D.P., in the present matter, that there exists no competent power to disqualify a list whose platform embodies liquidation of the state and impairment of its territorial integrity. Indeed, had the majority in the Yeredor case reached its conclusion by applying the rules of interpretation as to the balancing of contradictory fundamental interests and the exercise of discretion in that process, I too would have thought that such power does not fall within the scope of the Committee's authority. But that was not the ground for the majority decision, which is clear from its reasoning. Thus Agranat P. said (ibid. p. 387):

           

I agree that ordinarily it is not for the Central Elections Committee, when exercising its power to decide upon approval of one or other list of candidates, to examine the candidates in detail or to question their political views. This rule, however, ceased to apply in the present matter the moment the attention of the Elections Committee had been drawn to the fact that the appellant list was to be identified with a group of people held by the High Court of Justice to be an illegal association, because its purpose was to deny utterly and absolutely the existence of the State of Israel in general, and its existence within its present borders in particular, and that in consequence the same group had been declared an illegal organisation. In view of these facts, the Central Committee was left no discretion or alternative but to decide against approving the appellant list.

(Emphasis added - M.E.)

 

And Sussman J., concurring with the President, added (at p. 389):

 

I also have no doubt that the Elections Law did not empower the Central Elections Committee to approve or refuse to approve a candidates list at its discretion. The opposite of such discretion is implied in section 23 of the said Law; nor is the grant of such discretion consistent with the composition of the Committee, which is a body composed entirely according to political criteria based on the representation in the outgoing Knesset - except for the chairman of the Committee, who is a justice of the Supreme Court. That was not, however, the question before us. The question as defined by the chairman of the Committee at its sitting on September 29, 1965 (p. 27 of the Committee's minutes), was whether the Committee may examine the legitimacy of the list according to a principle that is not written in the statute book.

(Emphasis added - M. E.)

 

            The disqualification of the list in Yeredor was not, therefore, a consequence of the exercise of discretion, or of a balancing of interests, or the rules of interpretation. The Committee "was left no discretion or alternative" but to disqualify the list. For what reason? Sussman J. goes on to say (at p. 390):

           

Just as a person does not have to agree to be killed, so also the state does not have to agree to be annihilated and wiped off the map. Judges may not sit with arms folded in despair at the absence of a positive law to invoke when a party asks them to assist in bringing an end to the state. Likewise no other state authority is required to serve as a tool in the hands of someone who has set the annihilation of the state as a goal, and perhaps has no other goal but that.

 

            It is a contradiction in terms to participate in elections to the legislature in order to abolish the legislature, for the Knesset cannot exist together with those who seek to destroy it. That is an innate contradiction which cannot be reconciled, and the matter is not at all contingent - as my esteemed colleague, Barak J., maintains - upon the existence of a "reasonable possibility" that the members of such list will achieve their evil design. (I shall refer again later to the "reasonable possibility" criterion.) And by virtue of "natural law" and "the right of self-defence of organised society" (per Sussman J., ibid.) there is no alternative but to prevent the list from carrying out its scheme. This lack of choice does not stem from any of the ordinary rules of interpretation, but is founded on a supreme imperative in Judaism: "and man shall live thereby - and not die thereby" (Leviticus 18:5, B.T. Yoma 85b). As for the reservation expressed by my colleague, Barak J., I should make it clear that the legislature may be presumed to expect that the court and every other state authority will have recourse to and apply this supreme imperative, which exists by virtue of natural law. It is hardly necessary to say that this presumption is given to rebuttal where the legislature provides explicitly and unequivocally that the Elections Committee need not or shall not disqualify a list, even when it contests the very existence of the state or its territorial integrity.

           

            5. As I said at the outset, the reasoning behind the Yeredor ruling marks a great innovation in our case law. It does not add a new rule to the ordinary modes of interpretation, but lays down a one-time principle superimposed on the ordinary modes of interpretation. This principle, by its very nature, is confined to the special case of an intent to put an end to the existence of the state or impair the integrity of its borders, and does not apply in any other case, no matter how reprehensible to us the list's political and cultural views. In every other situation the matter invokes the ordinary methods of interpretation, the principle of balancing interests and fundamental rights, the discretion of the body empowered to interpret and consider the matter. And since the legislature never conferred such discretion on any body whatever, the necessary conclusion is that except for the case of a party list whose object is to annihilate the state and impair its integrity - there is no one empowered to prevent any list, whatever its platform, from participating in Knesset elections.

 

            6. As we have seen, this material difference between a list that contests the very existence of the state and one that propounds any other kind of objectionable and questionable ideas, was central to the majority opinion in Yeredor. And just as their observations stress the necessity, as an "imperative of life", to disqualify a list intent on annihilating the state, so too they stress the enjoinder against disqualifying a list for other reasons relating to the content of its platform. Agranat P. dwelt on the point that in a democratic state it is not permissible to preclude the candidacy of any group of people seeking election to the Knesset in order to promote its own ends, except when the purpose is to annihilate the state, in which case it is imperative to disqualify the list (ibid., pp. 387-388). Sussman J. reiterated the point (ibid. p. 389):

           

An "unlawful purpose" in the present context does not mean a purpose that aspires to change the governmental order. That order is not sacrosanct, and its change is not a punishable crime. Rather an "unlawful purpose" is a purpose that aspires to annihilate the state, to bring catastrophe upon most of the inhabitants for whose sake it was established, and to form alliance with its enemies.

(Emphasis added - M.E.)

 

            A clear and exhaustive analysis of this distinction was made by Justice Landau, then serving as chairman of the Knesset Elections Committee, whose views were cited by his colleagues in the Yeredor decision ([1], at 372):

           

...I do not find it at all difficult to draw a line between this list - whose purposes were defined in its rules of association and parts whereof were also mentioned in the judgment of the Supreme Court - and other political parties who aspire to change the internal constitutional regime of the state... I find a vast difference, as between East and West, between a group of people which seeks to undermine the very existence of the state, or in any event its territorial integrity, and a party that acknowledges the political entity of the state but wishes to alter its internal regime.

 

            The question raised here was what will the morrow bring if we apply the same statutory provision against other parties. I know of no other party in the state against which I could apply the same provision...

 

Hence (ibid., at 374) -

 

...There is no dispute, and the learned chairman explained this to the Committee in unequivocal terms, that a list of candidates who oppose a certain statute and wish to repeal or amend it, or who oppose the composition of the existing government and wish to change it, and the like, is entirely legitimate, and no one would consider disqualifying it.

 

            7. These observations on the rules of democracy made by three past Presidents of the Supreme Court were valid when they were uttered and are even more apposite today. After the Yeredor decision, our legal system underwent a change, and in 1980 the Knesset enacted the Foundations of Law, 5740-1980, which now constitutes one of the basic laws of the State of Israel that form its underpinnings. The fundamental principles enshrined in the Declaration of Independence, that "the State of Israel ... will be based on freedom, justice and peace as envisaged by the prophets of Israel" which served only as basic guidelines but lacked full legal efficacy, became with the enactment of the Foundations of Law, fundamental legal principles, underlying the entire legal system in the state, namely: "the principles of freedom, justice, equity and peace of Israel's heritage" (section 1 of the Law). It seems to me that there is no issue more amenable to examination in accordance with these principles of Israel's heritage than the one now before us.

           

            My esteemed colleagues expanded upon the views of legal scholars and philosophers in various legal and political systems on the issue of freedom of expression and opinion, whose views are not always in alignment with and sometimes even contradict each other. Such an examination is most important, since it helps to broaden the horizons and deepen the study of a subject common to all enlightened and progressive legal systems. And in this respect I may comment that in an examination of this kind one must always bear in mind the political background and the legal framework in which the statements are made, since these may vary from those in Israel. Since the different conceptions of scholars the world over have been well elaborated by my esteemed colleagues, I see no need to deal with them again. As I have indicated, we would do well to nourish the answer to our present problem on principles of the Jewish heritage. These we shall now seek to elucidate.

           

            First a preliminary remark. It is common knowledge that abundant differences of opinion and conflicting approaches mark also Jewish thought throughout the ages - even the halakhic system itself, as will be shown later. No party to litigation will find it difficult to glean from its recesses some support for his arguments or views. Such is the case in relation to every matter, including freedom of expression and opinion and other questions which will be dealt with below. It goes without saying that all these views and approaches have contributed together to deepening and enriching Jewish thought at all times. But whoever embarks upon the quest for knowledge must distinguish between statements made for particular times and circumstances and statements made for all times, between a generally accepted view and an exceptional one, and the like distinctions and implications. From this vast and abundant treasure, it is possible to gather much that is significant for the requirements of one's own generation and age, so as to answer contemporary needs and at the same time replenish the treasure of Jewish thought and the heritage of Israel. This reality and the duty to make such distinctions are of the essence of Jewish thought - and of the halakha itself - as is the nature of every conceptual system. The subject is multi-faceted, but this is not the occasion to expand on it (see Rabbi A.I. Kook, Eder HaYekar (Jerusalem, 1967) 13-28; see also M.R. Konvitz, Preface to Judaism and Human Rights (M.R. Konvitz, ed., New York, 1972) 11.)

 

            8. We shall have recourse to the heritage of Israel in relation to two questions: the principle of freedom of opinion and expression, and the legitimacy of the Kach list platform. I shall start with freedom of opinion and expression.

           

            The prophets of Israel and their prophecies have long served as the paradigm of impassioned and uncompromising rebuke of governmental abuse of might and power, and of a corrupt public or individual. They condemn oppression of the poor and exploitation of the widowed, the repression of individual and community rights, and deviation from the spirit and substance of the Torah and halakha. The firm stand and struggle of the prophets of Israel, even when the evoke severe and angry reactions, has been an inexhaustible source of inspiration in the struggle for freedom of expression and for contemporary enlightened democratic regimes. This is common knowledge, not in need of proof, and common currency for every student of political and democratic theory.

           

            I believe there is no more penetrating and encompassing description of the freedom of expression and the importance of every individual opinion - even that of a single individual - than the Talmudic statement regarding the disputes between Bet Hillel and Bet Shammai: "both are the words of the living God" (B.T. Eruvin 13b; J.T. Berakhot 1:4; J.T. Yevamot 1:6). For practical purposes, as a binding form of conduct, the halakha is according to Bet Hillel "because they were kindly and modest" (see Rashi to Eruvin 13b), but the views of Bet Shammai remained legitimate and material in the world of the halakha. This approach became characteristic of the halakha.

  

                      The "rebellious elder", even after the Sanhedrin - the highest tribunal of the nation - had ruled contrary to his opinion, could continue to hold to his views and "teach as he had done before", provided he did not actually rule accordingly (Mishna, Sanhedrin 11:2; B.T. Sanhedrin 86b). Moreover, a minority view might in time become generally accepted and acted upon. Rabbi Judah said: "The opinion of a single person is recorded along with that of the many, in case time makes it necessary to rely upon it" (Tosefta (Zuckermandel) "Eduyot 1:4; see also Mishna, Eduyot 1:5). Also:

         

Although the view of a single person is not accepted at first, and many disagree with him, at another time the majority may accept his reasoning and the law be decided accordingly, for the entire Torah was so given to Moses at times to forbid and at times to permit, and when he was asked: "until when shall we deliberate?" he answered: "follow the majority; because both are the living word of God".

(R. Samson of Sens, Talmudic scholar of France and Palestine at the turn of the 13th century, commentary to Mishna, Eduyot 1:5).

 

            And still striking today are the words of Akavia ben Mahalalel, who differed from his fellow scholars:

           

            Akavia ben Mahalalel testified concerning four matters. They said to him: "Akavia, withdraw these four things which you say, and we will make you presiding judge of the court". He said to them: "better I be called a fool all my days than I become even for one hour a wicked man before the Almighty; and let not men say: he withdrew his opinions for the sake of holding office".

(Mishna Eduyot 5:6; and see further M. Elon, Jewish Law, Its History, Sources and Principles (2d ed., Jerusalem, 1978) 870-878).

 

            This plurality of views is no negative phenomenon or defect, but is substantive to the world of the halakha. "There is no instability or shortcoming, such as to say that he causes more than one law to exist, Heaven forbid! On the contrary - such is the way of the Torah, and both are the words of the living God" (R. Hayyim ben Bezalel, introduction to Vikuah Mayim Hayyim (Prague, 16th century); and see in detail Elon, op. cit., at 1145-149). Moreover, plurality of views and approaches has the power to create harmony and unity out of difference. As the last of the codifiers, R. Yehiel Michal Epstein, said at the beginning of this century (Arukh Ha Shulhan, Hoshen Mishpat, Introduction):

           

            All the disputes of the Tannaim and the Amoraim, of the Gaonim and the codifiers, are truly the words of the living God, and all are aspects of the halakha. Indeed that is the glory of our pure and holy Torah, the entire Torah is a song, and the glory of a song is when it is sung in different voices. And this is the essence of its pleasantness.

           

            Indeed this basic conception that "both are the words of the living God" has at all times exerted a decisive influence on the mode and substance of halakhic codification as well as decision. I have dealt elsewhere with the subject and need not enlarge upon it here (Elon, op. cit., at 870, and the references in note 94).

           

            The plurality of views plays a material and fruitful role generally in the life of a just society. The rabbis even composed a special benediction to fit the secret encompassed in this notable phenomenon of a plurality of views in society: "If one sees a large crowd of people, one should say: Blessed is He who is wise in secrets; for neither their faces nor their thoughts are alike" (Tosefta (Zuckermandel), Berakhot 7: 5; and see B. T. Berakhot 58a). This is a blessing for wisdom and creativity: "Just as the nature of creation still renders the countenances of all people different, so also are we to believe that wisdom is still shared by men each differing from the other" (Vikuah Mayyim Hayyim, supra). Such a plurality of views should be respected by our leaders and government, as the following midrashic comments instructively indicate (Numbers Rabbah, Pinhas, 21:2; Tanhuma, Pinhas 10):

           

            Just as the countenances (of people) are not alike, so also their views, and each person has his own opinion ... Thus on the point of death Moses begged of God: "Master of the Universe, the views of every one are well known to you and your children's views are not all alike. When I depart from them, I pray, appoint them a leader who will be tolerant of each person's view".

           

            That is the lesson of leadership and government in the heritage of Israel - tolerance for every individual and every group, according to their opinions and outlooks. And this is the great secret of tolerance and listening to the other, and the great potency of the right of every individual and every group to express their opinions, that they are not only essential to an orderly and enlightened regime but also vital to its creative power. For in the real world "two opposing elements converge and fructify; how much more so in the spiritual world" (Rabbi A.I. Kook, HaNir (Jerusalem, 1909) 47; Eder HaYekar, 13 ff.)

           

            9. When in the plurality of opinions - itself welcome and vital - there is sounded a view that is injurious to society's spiritual and cultural foundation, that society must defend itself and its views. This end must be achieved first and foremost by persuasion and education. Education, as we all know, does not mean merely preaching to others, to those who have strayed from the desired path, but includes self-examination and reflection upon the spiritual and cultural image of that society in which thorns and thistles have sprung up. And when the need arises, a cultured society will employ legislation to punish those who incite and agitate to challenge and threaten it. Those who so deserve, whose transgression has been adequately proved before the judicial authorities, will be punished accordingly. The legislature, needless to say, may employ even the most extreme measure of silencing such views by denying those who express them the right to be elected to its own house; which means also, as indicated by my learned colleague, Shamgar P., denial of the right of those adhering to such views to vote for and elect persons of their choice. This is the legal right of the Knesset, which represents the will of the people, and I shall later make some observations as to the extent to which it is proper, in my view, for the legislature to exercise this right and enact such an extreme and far-reaching measure as withdrawal of the right to elect and be elected.

 

            As I said at the outset, in our democratic regime the denial of such a fundamental right does not lie with the judiciary in the absence of express authorization by the legislature - which represents the will of the people, and whence the judiciary draws its authority and power. If the court were to assume such power without legislative authorization, that itself would constitute an injury to an enlightened democracy, whose very foundation lies in the rule of the law - not of the legislature, the rule of justice - and not of the judge (see H.C. 152/82 [31], at 472-474; HC 234/84 [32], at 484). A further danger is threatened by the court's assumption of such power of disqualification, without express authority and guidance from the legislature, as to the scope and measure of such disqualification. The democratic character of the State of Israel found expression in the Declaration of Independence, which speaks of ensuring complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex, and guaranteeing freedom of religion, conscience, language, education and culture. These principles serve as our guiding light. The Jewish character of the State of Israel found expression in the Declaration of Independence in the very definition of the state as a Jewish State, and not merely as a state of Jews, in the opening of its gates to Jewish immigration for Ingathering of Exiles (as was expressed later in the Law of Return, 5710-1950), and so on. These principles likewise serve to guide us. This constellation of principles forms part of the Jewish state's special make-up. Prominent Zionist thinkers of all trends and streams, Jews of varying world outlook, citizens of the State of Israel of different ethnic and religious belonging, have all reflected upon and continue to debate the practical significance and application of the principles of the Declaration of Independence in the Jewish state. How and by what standard will the court adjudge the content of a party platform that is not reconcilable with each and every one of the complex of principles set out in the Declaration of Independence?

  

                      My esteemed colleague, Barak J., says that disqualification of a list because its platform does not comport with the principles of democracy upon which the State of Israel is founded, may only be effected when there exists a reasonable possibility that the members of that list will indeed achieve their aims; and when the court examines the existence of such reasonable possibility it must "consider the entire social scene in all its various aspects. It should analyse social processes ... not only past events but also the probability of potential future happenings". Does the Court have the tools for this task, which rests entirely on social-sociological considerations and entails no judicial decision at all? According to what guidelines and rules will the court make its decision? Indeed, my esteemed colleague holds this examination to amount to "a prophecy in the guise of a legal decision", in the words of Jackson J. in the Dennis case. I would suggest that as judges we refrain from acting as prophets. The illustrious scholar, Maimonides, appositely remarks:

         

          The Holy One did not permit us to learn from the prophets [how to rule on the law - M. Elon] but from the scholars, the men of reasoning and opinion; and He did not say: "you shall come unto the prophet that shall be in those days" but "you shall come unto the priests and levites and unto the judge (that shall be in those days)".

(Deuteronomy 17:9) (Introduction to Commentary on the Mishnah; and see Elon, op. cit., at 224-225).

 

          If that is so in Jewish Law, which the Jewish scholars recognised as deriving from a supra-human source, all the more so in a legal system that is based entirely on wise men, men of reasoning and opinions, and applied by them. Moreover, as already indicated, the power to disqualify a list for social, ideological and sociological reasons is vested primarily in the Central Elections Committee, which - except for its chairman - is a political body par excellence, whose various members adhere each to his own long held political opinions, and it is much to be apprehended that they will not easily be open to considered and impartial deliberation of so conspicuous a politico-social issue.

         

          10. What I have said suffices to indicate the abundance of problems and difficulties that face us when we begin to consider disqualifying a list because of the content of its platform. From this viewpoint, the case of the Kach list hardly serves to illustrate the reality of these difficulties. For the content of its platform and the aspirations of its initiators and leaders are of such gravity, and so patently mischievous in terms of the cultural and democratic image of the State of Israel, that - had we been vested with the power of disqualification - we could conclude that it should not be allowed to participate with the other lists in campaigning for election to the Knesset. And as far as I am concerned, the most severe and serious aspect of the Kach platform - even more than its distorted outlook as to safeguarding the democratic foundations of the regime in the State of Israel - is that this list and its leaders seek support in the Torah and the halakha. Let us look at this aspect briefly.

 

            A basic element in Judaism is the idea that man was created in the image of God (Genesis 1:27). The Torah so opens, and from this concept the halakha derives certain fundamental principles regarding the value of man - every human being as such - his equality and the love of him:

           

            He [R. Akiva] used to say, beloved is man in that he was created in the image of God, but it is a mark of a greater love that it was made known to him that he had been created in the image of God, as it is said (Genesis 9:6), "For in the image of God made He man".

(Mishna, Avot 3:18).

 

            And it was by reason of this verse that the sons of Noah were prohibited from spilling blood, even before the Torah was given. Very instructive is the difference of opinion between two leading Tannaim as to the crowning value in human relations:

           

            "And you shall love your neighbor as yourself" [Leviticus 19:18], R. Akiva said, this is a major rule of the Torah. Ben Azai said, "This is the book of the generations of Adam" [on the day God created man He did so in the image of God-Genesis 5:1] – this is the greater rule.

(Sifra, Kedoshim, 4:10).

 

            According to R. Akiva the supreme value in human relations is love of one's fellow man; and according to Ben Azai, the supreme and preferred value is the equality of man, since every man was created in the image of God. And these two values - equality and love of one's fellow - came together as one at the hands of the Jewish nation, together forming a cornerstone of Judaism throughout its generations and history. It is also stated in connection with this fundamental issue :

           

Ben Azai said, "This is the book of the generations of Adam"-this is a major rule of the Torah; Rabbi Akiva said, "You shall love your neighbor as yourself"- that is a greater rule; so that people should not say, since I have been demeaned, my fellow man shall also be demeaned...Rabbi Tanhuma said: if you do so, then know whom you are demeaning - "in the image of God He created him".

(Genesis Rabbah, 24:7).

 

            The great rule of loving your neighbor as yourself is not just a matter of the heart, or an abstract love without commitment, but refers to a practical way of life. And Hillel formulated the rule thus: "Do not do to others what is hateful to yourself". The commentators have dwelt on the fact that this negative formulation lent the principle a meaning that makes it compatible with human nature:

           

For a man cannot in his heart love his neighbor as he loves his own self; and in any event R. Akiva has already taught us: your life comes before your neighbor's.

(Nachmanides, Leviticus 19:18).

 

            R. Akiva, for whom the predominant rule was "Love your neighbor as yourself", himself taught that in times of danger - to the individual and to the community - it may be that "your life comes before your neighbor's" (B.T. Bava Metzia 62a).

           

            The Jewish nation is enjoined to fight for its existence and to ward off those who conspire to harm and dispossess it of its sovereignty and its land. But the enemy too retains the value and dignity of a human being. When Jehoshaphat, king of Judea, was victorious over the Ammonites and Moabites, the people stood and sang "Praise the Lord for His mercy endures for ever" (2 Chronicles 20:21-22). On this the scholars commented (T.B. Megilla 10b):

           

R. Johanan said: Why are the words "for He is good" omitted from this thanksgiving [in relation to the corresponding phrase in Psalms 107:1]? Because the Holy One does not rejoice in the downfall of the wicked. And R. Johanan further said: what is the meaning of the verse "and one came not near the other all the night" [Exodus 14:20; the reference is to the Israelites and the Egyptians at the crossing of the Red Sea]? The ministering angels wanted to chant their hymns, but the Holy One said: "the work of my hands is being drowned in the sea and shall you chant hymns?"

 

            My esteemed colleague, Barak J. , referred to the instructive observations of Rabbi A.I. Kook on the love of mankind. Rabbi Kook indeed uttered profound words on this important theme in Judaism. In the chapter from which Barak J. quotes, he went on to say (Middot Hare'ayah, Ahavah 5):

           

            The love of mankind should be alive in the heart and soul, the love of the individual and the love of all peoples, the desire for their uplifting and their spiritual and material welfare... An internal love from the recesses of the heart and soul, to benefit all peoples, improve their possessions and render their lives blissful...

 

            Also illuminating in this context and in Judaism generally, is R. Kook's teaching on the relationship between the "natural, customary morality" of every cultured person and the moral demands of Judaism:

           

The love of mankind needs much fostering, to be expanded as befits it, against the apparent superficiality of its inadequate application in terms of the Torah and customary morality, as if there can be conflict or at least indifference regarding such love, which ought always to fill the chambers of the soul.

(Ibid., Ahavah 10; and cf. Orot HaKodesh, vol. III, p. 318.)

 

            Thus the Torah and customary morality complement and reinforce one another as a dual requirement in nurturing and educating the Jew.

           

It is forbidden that the fear of Heaven suppress the natural morality of mankind, for then the fear of Heaven is no longer pure. A sign of pure fear of Heaven is when natural morality, inherent in the very nature of man, proceeds to rise to even loftier heights than it might otherwise reach. But if fear of Heaven is portrayed in such fashion that life would have a greater tendency to do good and to benefit individuals and society without its influence, and the force of that active agent diminishes under its influence, such fear of Heaven is deficient.

(Orot HaKodesh, vol. III, Preface, paragraph 11, p. 27).

 

And further on (ibid., paragraph 16, p. 32):

 

The visible natural morality must be manifested before the substantive paths of the concealed superior morality can be revealed in the soul. Only in this manner, by establishing first the firm basic foundation, can we erect the upper structure, the summit of which is in heaven. The wider and deeper the roots of the tree spread, the fresher, stronger and more fruitful the branches, and its leaves will not wither.

 

            The demand of morality in Judaism adds to and complements the moral conduct required of civilized and enlightened society, and whoever ignores the latter is deficient in the former.

           

            11. These fundamental perceptions also determined the attitude of Jewish law to a national minority living under Jewish rule. A series of basic Jewish precepts are grounded in the Torah in the historical memory of the nation, in its suffering as a minority under the rule of others: "For you were strangers in the land of Egypt" (Exodus 23:9; Leviticus 19:30; 22:20; 29:9 and so on).

           

 Furthermore, "You shall not abhor an Egyptian, because you were a stranger in his land" (Deut. 23:8). Racism, which has brought so much suffering to mankind, even to this very day, is alien to Judaism, and has been categorically rejected by it. A foreigner who joins the Jewish people becomes one of its members, with all rights and obligations: "You shall have one statute, both for the stranger and for him that is born in the land" (Numbers 9:14); "Neither let the alien that has joined himself to the Lord say - The Lord will surely separate me from His people ... For My house shall be called a house of prayer for all peoples" (Isaiah 56: 37). This applies not only to the future but even to the past. And thus wrote Maimonides in response to R. Ovadiah Ger Tzedek (a righteous convert) (Responsa (Freiman ed.) 369):

 

            Every one who converts, down to the end of days, and every one who professes the unity of the Holy One blessed be He as written in the Torah, is a disciple of our Patriarch Abraham ... and all are members of his family... No difference at all exists between us and them in any respect. And let not your pedigree be slight in your eyes; if our pedigree relates to Abraham, Isaac and Jacob, yours relates to Him who created the world by his word.

           

            The Jewish people does not "gather souls" in order to draw members of other nations into its fold (Genesis 12:5; Maimonides, Hilkhot Melakhim 8:10). This serves to express, among other things, the protection which Judaism gives to minorities to live by their own culture and heritage. The practice, common in ancient - and in less ancient times - of a minority's assimilation and absorbtion into the majority according to the principle of cujus regio cujus religio by virtue of which many minorities were persecuted until they adopted under duress the religion of the ruling majority, was categorically rejected in the world of the halakha. For this reason, when Israel was most powerful the bet din did not accept converts throughout the times of David and Solomon. "In the time of David -in case they came out of fear, and in the time of Solomon-in case they came out of attraction to the greatness and goodness of the kingdom of Israel" (Yad, Hilkhot lssurei Bi'ah 3:15).

           

            The halakha defined a member of a national minority as possessing the status of a "resident alien" (ger toshav) and the only condition that attached to that status was observance of the seven Noachide Laws, i.e., those elementary obligations of law and order which all civilised peoples are commanded to observe, and which the scholars regarded as a kind of universal natural justice (Maimonides, Hilkhot Issurei Bi'ah 14:7; B.T. Sanhedrin 56a; Nahmanides, Commentary to Genesis 34:13; and cf. Elon, op. cit., 183 ff.). A national minority is entitled to all the civil and political rights enjoyed by other residents: "...A stranger and a sojourner shall live with you" (Leviticus 25:35); "Resident aliens are treated with courtesy and loving-kindness as an Israelite, since we are commanded to sustain their life ... and since you are commanded to sustain the life of a resident alien, he is healed gratuitously" (Yad Hilkhot Melakhim 10:12; Hilkhot Avodah Zarah 10:2). And the scholars also said (Deut. 23:17 and Tractate Gerim 3:4):

 

A resident alien shall not be settled in border districts nor in poor habitation but in a good residence in the centre of the Land of Israel where he can pursue his skills, as it is written: he shall dwell with you, in the midst of you, in the place which he shall choose within one of your gates, where it pleases him best, and you shall not oppress him.

 

          The fundamental guiding principles as regards the attitude of the Jewish State to its overall population, are the fundamental principles of the halakha in general, as pointed out by Maimonides (Yad, Hilkhot Melakhim 10:12):

         

For it is stated: The Lord is good to all and His tender mercies extend to all His works, and further: Its [the Torah's] ways are ways of pleasantness and all its paths are peace.

 

          I have cited just a small portion of the halakhic rules of government affecting minority rights in a Jewish state, and need not elaborate any further here.

         

          I shall end these observations with the inspiring words of Maimonides on the aspiration of the generations for messianic times, which "differ from present times solely in servitude to earthly governmental power" (Hilkhot Melakhim 12:2, relying on Samuel's statements in B.T. Sanhedrin 91b, 99a and elsewhere). He writes:

         

The scholars and the prophets did not yearn for messianic times that they might dominate the world or rule over the gentiles, nor to be exalted by the nations and to eat, drink and rejoice - but to be free for the study of Torah and its wisdom without oppression or disturbance - to gain everlasting life, as we explained in the laws relating to repentance. In those times there shall be neither famine nor war, neither jealousy nor strife - goodness will be abundant and all pleasant things profuse. The whole world will be preoccupied only to know the Lord. Hence Israelites will be wise and will know things that lie obscure and attain understanding of their Creator according to their human capacity, as it is written, "For the earth shall be full of knowledge of the Lord as the waters cover the sea". (Isaiah 11:9) (Maimonides, Hilkhot Melakhim, 12:45).

 

          Israel's sovereignty and Jewish government - not in order to dominate the world or rule over the gentiles, but so that Israel no longer suffer oppression, and may engage in the study of Torah and its wisdom, and the earth may be filled with knowledge. These significant words of the greatest of Jewish thinkers embody the aim and image of the Jewish State.

 

            12. The content of the Kach platform and the purpose of its promoters and leaders, as reflected in the material presented to us, stand in blatant contrast to the world of Judaism - its ways and perspectives, to the past of the Jewish nation and its future aspirations. They contradict absolutely the fundamental principles of human and national morality, the Declaration of Independence of the State of Israel, and the very foundations of present-day enlightened democracies. They come to transplant in the Jewish State notions and deeds of the most decadent of nations. This phenomenon should cause grave concern among the people who dwell in Zion. This court is charged with the preservation of the law and its interpretation, and the duty of inculcating the values of Judaism and civilization, of the dignity of man and the equality of all who are created in the divine image, rests primarily upon those whom the legislature and the executive branch have chosen for the task. When, however, such a seriously dangerous phenomenon is brought to our attention, we may not refrain from sounding the alarm against the ruinous effects of its possible spread upon the character, image and future of the Jewish State. The remedy lies, in the first place, in a reassessment of the ways of educators and pupils alike, in all walks of our society.

 

            13. It was not, therefore, for lack of sensitivity to the gravity of the Kach list phenomenon that we refrained from endorsing its disqualification, but because the legislature has not empowered us or the Central Elections Committee to disqualify a list from participating in elections to the Knesset on ground of the content of its platform. The only exception is a list that avowedly seeks to abolish the sovereignty of the state or impair the integrity of its borders, in which case we - and any other competent state body - are bound to disqualify it, by virtue of the paramount principle "thou shalt live by them", as we explained at the outset.

 

            The consequence of not disqualifying the Kach list is difficult and saddening, considering the content of its platform, but it is right and proper not only in terms of our respect for the rule of law but also because it precludes the drawing of undesirable conclusions in such an important and complex matter. As I have already indicated, such a fateful and farreaching determination as denial of the right to be elected to the Knesset, on ideological grounds, should properly be made with the approval of a majority of the public, through the legislature, with clear limitations and definitions provided. A general legislative power that sanctions disqualification of a list because its promoters or its platform are opposed to the democratic principles on which the State of Israel rests or which are to be found in the Declaration of Independence, or any other like general and indeterminate formulation, would be so inherently uncertain and vague that this court could not exercise it in actual fact. This certainly applies to a body such as the Central Elections Committee, which is mainly composed (apart from its chairman) of members with defined political views and inclinations. Democratic principles, including those enumerated in the Declaration of Independence, are by their very nature subject to interpretation in different ways, and incorporate different, sometimes contradictory, world views and fundamental perspectives. So it is in the enlightened democracies in general, and so it is in our society in particular, where social, religious, economic and constitutional problems are legitimate subjects of controversy.

 

            Here it is appropriate to return to the Yeredor matter [1], and cite again the comments concerning the vast difference between an entity that undermines the very existence of the state, or in any event its territorial integrity, and a faction that acknowledges the existence of the state but desires to change its internal regime (at p. 372); or opposes a particular statute and seeks its repeal or amendment (at 374); or "aspires to change the governmental order, an order that is not sacrosanct, and its change not a punishable offence" (per Sussman P., at 389). These observations alone are enough to illustrate the objective as well as subjective difficulty of the court in circumscribing the permitted and the forbidden - the court having the function and authority to rule on the interpretation of a statutory enactment, its purpose and application, and not on an issue that turns entirely on world views, the recesses of the heart, and the social image of the regime. In the view of my esteemed colleague, Barak J., the existing situation is preferable to "unbalanced legislation". My view is otherwise, and in paraphrase of my esteemed colleague I would say that detailed legislation is preferable to adjudication that may well be unbalanced. Only the legislature may and can prescribe the criterion, from among the principles of democracy and the Declaration of Independence, which when disregarded justifies the disqualification of a list, and what shall be the degree of the violation and the likelihood of the danger from the violation of such principle that is required for the purpose of disqualification. Such clear determinations are the preserve of the legislature as well as its duty.

           

            That is certainly no easy task, and perhaps its difficulty accounts for the legislature's silence so far. But this task is the legislature's entirely, from which it cannot be absolved. The grave and unwelcome phenomena apparent from the appeal before us, in terms of the image and character of our state, call for the legislature to accomplish this vital task without further delay.

           

            14. In conclusion, for the reasons given above, I concur in the opinion of my esteemed colleagues that the two appeals should be allowed. The appeal of the Progressive List for Peace - because it was not proven that it seeks to liquidate the State of Israel or impair the integrity of its borders, thus leaving no occasion to apply the Yeredor ruling. And in the case of the Kach list - because it falls outside the ambit of the Yeredor ruling, since neither we nor the Central Elections Committee are empowered to disqualify it.

           

            BARAK J. 1. I have read with great interest the comprehensive and important judgment of my colleague, Shamgar P. and I concur, not only in the result reached by him, which we have already announced, but also in the main points of his reasoning. Like him, I am of the opinion that the ratio decidendi of E.A. 1/65[1] (hereinafter "the Yeredor ruling") is confined to a refusal to confirm a list that contests the very existence of the State and wishes to annihilate it. The application of this test was not argued at all with respect to the Kach list, and it was argued but not proven with respect to the Progressive List for Peace. In this matter I believe that the burden of proof lies with the party arguing for the refusal of a list's confirmation, and that it must be discharged by competent "administrative evidence", that is, "such testimony as any reasonable person would consider to be of probative value and upon which he would rely to a greater or lesser degree" (per Agranat P. in H.C. 442/71[13], at 357; H.C. 297/ 82[20], at 37). If I nevertheless choose to add some reflections of my own, it is to elucidate my position on the question whether the Yeredor ruling should be extended and applied also to a case in which the election platform of the list rejects, not the very existence of the state, but its democratic character. Such elucidation would have been relatively simple had I been of the opinion, held by Cohn J. in Yeredor and by Ben-Porat D.P. in the present matter, that the Elections Committee does not have any authority to refuse to confirm a list on grounds of the content of its election platform. That is not my view. I am of the opinion, as was the majority view in the Yeredor case, that the Elections Committee is authorized to refuse confirmation of a list by reason of the content of its platform. Moreover, I am of the opinion that for our present purpose one should not distinguish between a platform that negates the existence of the state and a platform that recognises the existence of the state but disavows its democratic character. At the same time, however, my approach is that the Committee should exercise this authority - with respect to both a platform that rejects the existence of the state and one that rejects its democratic character - only where there is a reasonable possibility that these ideas will be realized. Since such a possibility was by no means established in the present matter, I formed the opinion that there was no ground for refusing to confirm the participation of the Kach list in the elections. My approach thus differs from both the majority and the minority approaches in the Yeredor case. Unlike the majority, I do not believe that it is sufficient for the list to reject the existence of the state in order not to confirm its participation in the elections. Unlike the minority, I do not believe that the Elections Committee has no authority at all to refuse confirmation of a list whose platform rejects the existence of the state. As already indicated, my opinion is that the authority of non-confirmation exists with respect to both a platform that rejects the existence of the state and one that rejects its democratic character; but the exercise of such authority in both cases must be on ground of a reasonable possibility that the "threat"' will be translated into practise. It appears to me that my approach is very similar to that of my colleague, the President, who also stresses a number of times that the authority might inhere in special circumstances where there is a substantial probability that the exercise of a fundamental civil right will cause harm that is sought to be prevented. Yet my colleague is not prepared to follow my approach entirely, so that I find it necessary to set forth my reasoning. I shall begin with an analysis of the ruling in Yeredor [1], with an examination of the law as regards an election list that negates the existence of the state, and thereafter proceed to examine the issue before us of a list that negates the democratic character of the state.

 

            The "Yeredor" Rule: Negating the Existence of the State

           

            2. As we have seen, the question in Yeredor [1] was whether the Elections Committee may competently refuse to confirm a list for participation in the elections if it negates the very existence of the state. On this matter opinions were divided. The dissenting judge, Cohn J., was of the opinion that the Elections Committee is not vested with such authority. It appears that even those who question the correctness of this position do not deny the legitimacy of Cohn J.'s approach. It is well founded on accepted legal arguments in our "interpretative community". It relies, on the one hand, on the legislator's silence and, on the other hand, on a reluctance to read into the law a broad authority which would contradict fundamental principles of our system as regards the citizen's basic right to express himself and to vote. Arguments of this kind are often reflected in this court's rulings, they have significant force and power (see, e.g. , H.C. 337/ 81[5]), and I myself have recourse to them and accept their validity. But the approach of Cohn J. is not the only possible one. That of the majority judges - Agranat P. and Sussman J. - and of Justice Landau when heading the Elections Committee, is likewise well-founded in accepted legal arguments in our "interpretative community". According to this approach, the Knesset Elections Law [Consolidated Version], 1969 (hereinafter - "the Elections Law") established the Elections Committee and granted it powers to refuse to confirm a list on certain grounds. These grounds can be supplemented, by way of interpretation, which addition is required by the basic principles of our system - principles which serve in the interpretation of statutes. Where the legislature provides that a list "shall be confirmed by the Central Committee" (section 63 of the Elections Law), the court, in applying the interpretative rules of its system, may determine that it is dealing with a directive which confers authority, and despite the mandatory language used, the Elections Committee must necessarily be conceded a discretionary power in order that the fundamental principles of our system be realized. It is true that the linguistic foundation for this interpretative result is weak, but it is decreed by the very fact that we are dealing with the interpretation of a basic constitutional provision. Such basic provisions should be construed according to a "spacious view" - in the words of Frankfurter J. in Youngstown Sheet & Tube Co. v. Sawyer [59], quoted by Agranat D.P. in F.H. 13/60[33] at 442 - and on the understanding that we are dealing with a provision that determines a way of life. The interpretation of an ordinary legislative provision is not the same as that of a fundamental constitutional provision. Familiar to us is the statement made by Justice Marshall, upon fashioning the American constitutional perspective, that when interpreting the constitution it should always be borne in mind that it is not an ordinary document - "it is a constitution we are expounding" (M'Culloch v. Maryland [60]). We are concerned with a human endeavour that must adapt itself to a changing reality. We have said that an ordinary statute is not a [linguistic] fortress to be conquered with the help of a dictionary but rather the cloak of a living legislative idea (Cr.A. 787/79[34], at 427); this approach should guide us a fortiori in interpreting provisions of a constitutional character. In the well-known words of Holmes J. (Gompers v. U.S. [61]):

 

            The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions... Their significance is vital not formal; it is to be gathered not simply by taking the words and dictionary, but by considering their origin and the line of their growth.

           

            We may, therefore, construe the wording of a basic constitutional provision that determines a mandatory duty, in a manner that gives discretion to the authorized person - if such discretion is essential to realising the fundamental principles of the system. The American courts faced a similar problem in interpreting the First Amendment to the Constitution which states in unequivocal language that "Congress shall make no law...abridging the freedom of speech, or of the press." The Supreme Court did not hesitate to hold, in a long line of precedents, that despite the unequivocal language which denies Congress any discretion in the matter, it does have authority to limit freedom of speech and the press in certain cases. (See Lahav and Kretzmer, "The Charter of Civil Rights in Israel: Constitutional Gain or Illusion", 7 Mishpatim 154 (1976).) Indeed, our own Supreme Court has often taken this very approach that narrows or broadens the statutory language so as to realize the fundamental principles of our legal system (Cr. A. 696/81[35] at 574). For a legislative enactment in general, and a fundamental statutory provision in particular, is not a one-time act isolated from the general way of life. The statute gains substance within the framework of a given political and legal system. It constitutes one brick in a whole structure built on the given foundations of that regime and law, which constitute the "primary concepts of that society" (H.C. 163/57[36] at 1051). When a statute provides that a certain person shall decide every dispute, it is clear that he is not obliged to hear a dispute in which he has a personal interest. We interpret the general mandatory language against the background of our constitutional regime and the principles of equality, justice, fairness and morality in our system. Their application narrows the scope of the general language, or expands that of specific language, and this can transform discretionary authority into mandatory authority, and mandatory authority into discretionary authority. "The law of the people", said Agranat P. "must be deduced in the context of its national way of life" (H.C. 73/53[26] at 884). Therefore, every law must be interpreted in the light of the Declaration of Independence, which expresses "the vision and credo of the people" (Smoira P. in H.C. 10/48[37] at 89). Justice H. Cohn himself said in similar vein:

 

When we talk of an enlightened democratic legislature, guided by good practices, lofty principles and concepts of justice, not only are we not allowed to assume that it has abolished them, but its enactments must be faithfully interpreted on the assumption that any law passed by it has been adapted to the framework of the existing "law', in all its multiple and varied components.

(Cohn, "Faithful Interpretation in Three Senses", 7 Mishpatim 5, 6).

 

            According to this approach, the majority position in Yeredor [1] is founded on a firm interpretative base. The existence of the state, its "continuity and perpetuity" - in the words of Agranat P. in Yeredor - is certainly a fundamental principle of our legal system (cf. Pound, "A Survey of Social Interests", 57 Harv.L.Rev. 1). The Elections Law should be interpreted in light of this principle, by virtue of which the authority of the Elections Committee may be expanded so as to allow it not to confirm the participation in elections of a list that rejects the very existence of the state and aspires to its annihilation.

           

            3. It appears, therefore, that both the majority and the minority opinions in Yeredor are possible from an interpretative point of view. Thus we face a real dilemma in which the judge must exercise the "sovereign prerogative of choice" (see Holmes, Collected Legal Papers (1952) 239). How is this choice to be made? It seems to me that the key lies in the fundamental principles of the system, which both the majority and the minority relied upon. The majority put its trust in the principle of the state's continuity and perpetuity; the minority in the principle of the citizen's freedom to vote and be elected. It appears to me that the correct course of interpretation must take into account all principles, those relied upon by the proponents of both views. Indeed, I believe that the interpreter-judge should not adopt a particular fundamental principle and neglect another. The judge should have recourse to all the fundamental principles and not choose only those that commend themselves to him as proper.

           

            4. One might ask: how can one take into account all the fundamental principles when some of them lead to a narrow interpretation that denies the Committee's authority (as in the minority opinion) whereas others lead to a broad interpretation that extends authority to the Committee (as in the majority opinion)? What should a judge do when the fundamental principles are contradictory and lead to different constructions in a given situation? This is not a new phenomenon, nor is it peculiar to the case before us. The judge often encounters fundamental values that contradict one another. It is not unusual to find one principle in conflict with another and a thesis opposed by its antithesis. Justice Cardozo commented:

 

Again the task of judging is found to be a choice between antithetical extremes. We seem to see the working of an Hegelian philosophy of history whereby the tendency of every principle is to create its own antithesis or rival.

(Cardozo, Paradoxes of Legal Science, (1928) 62).

 

            Indeed, the basic tenets of the system often march in pairs, each having its own direction. (See Dickinson, "The Law Behind the Law", 20 Col.L.Rev. 113,123.) The decisions of the Supreme Court bear testimony to this phenomenon. Thus, for instance, the principle of state security, public order and public security competes with those of freedom of expression (H.C. 73/53[26]), freedom of procession (H.C. 153/83[25]), freedom of religious worship (H.C. 292/83[24]) and freedom of information (H.C. 243/62[38]). The principles of judicial integrity (Cr.A. 696/81[35]) and a person's good reputation (F.H. 9/77[21]) conflict on occasion with the principle of freedom of expression.

           

            5. When the judge encounters fundamental principles of his system that contradict each other - for instance, the preservation of the state and the freedom of expression and the vote - he must take them all into account. The judge must place the principles alongside each other and give each its proper weight and, having done so, he must strike a balance between the various principles. In the words of Justice Frankfurter:

           

The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle... Judges cannot leave such contradiction between two conflicting "truths" as "part of the mystery of things". They have to adjudicate. If the conflict cannot be resolved, the task of the Court is to arrive at an accommodation of the contending claims. This is the core of the difficulties and misunderstandings about the judicial process. This, for any conscientious judge, is the agony of his duty.

(F. Frankfurter, Of Law and Man (New York, 1956) 31,43).

 

            The judges of Israel also face this unavoidable task. This is a process in which "we weigh various competing interests in the balance and, after reflection, select those which, in the circumstances, predominate" (Agranat P. in H.C. 73/53[26], at 879), and which constitutes "the interpretative starting point" (Shamgar P. in F.H. 9/77[21], at 361). This was the approach of the Supreme Court in the Kol Ha'am case [26], where the court held that the authority of the Minister of the Interior must be exercised with a proper regard for the objectives of freedom of expression, on the one hand, and public security, on the other. In reaching that conclusion the court did not adopt the one principle and reject the other, but balanced the two. Taking a similar approach in the matter of a Police District Commander's authority as regards the holding of demonstrations, this court noted (H.C. 153/83[25], at 401) that such balancing requires -

 

          ... a judicial determination - in the absence of statutory guidance - as to the relative grading of the different interests, which will ensure resolution of the question whether these interests rank equally in importance or whether one takes preference over the other. Likewise, in the case of interests of equal standing, this balancing process calls for a judicial determination as to which interest shall defer to the other. Thus a judicial pronouncement has to be made with respect to the "limits of sufferance" of the various rights.

         

          It follows that where fundamental values of the system incline in conflicting directions, the court must take them all into account. It must allow the different values to vie with each other, and balance them in accord with their weight and force at the point of friction. Holmes J. said in this respect (op cit., p. 181):

         

          Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.

         

          6. This same approach, requiring the balancing of competing values, should be adopted also where the platform of a list seeking to participate in the elections, negates the very existence of the state. It appears to me that a judge construing the Elections Law may not ignore the fundamental principles referred to by Cohn J. in the Yeredor case. He must take into account the citizen's fundamental right to elect and be elected. My colleague, Shamgar P., noted justly that "the right to participate in elections is a fundamental political right that gives expression to the idea of equality, to the freedom of expression and to the freedom of association" and, hence, "is one of the hallmarks of a democratic society". These principles must be considered in the interpretation of every legislative enactment, including the Elections Law. But, by the same token, it is impossible to ignore the fundamental principles referred to by Justice Landau (in the Elections Committee) and by Agranat P. and Sussman J. in the Yeredor case. It is inconceivable that we should interpret a statute without taking into account the principle that "the State of Israel is an existent state whose continuity and perpetuity is not to be questioned" (Yeredor, at 386). A constitution is not a prescription for suicide, and civil rights are not a stage for national extinction (cf. Jackson J. in Terminiello v. Chicago [62], at 37). The laws of a nation should be interpreted on the assumption that it wishes to continue existing. Civil rights are nourished by the existence of the state and ought not become a tool for its annihilation. Therefore, judicial interpretation has no alternative but to seek a proper balance between the competing values of the continued existence of the state, on the one hand, and freedom of expression and election, on the other. Frankfurter J. commented thus on the matter (Dennis v. U.S. [54], at 524):

 

       The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests, within the confines of the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be solved.

      

       7. How is the balancing of values, as they compete for primacy in the Yeredor case, to be accomplished? The interest in the state's existence and the interest in the right to vote are not equal. The first clearly precedes the second, since it is a condition for the existence of the second (cf. F.H. 9/77[21]). This court likewise held with respect to conflict between the principle of state security and the public peace, and that of freedom of expression (H.C. 73/53[26]), freedom of demonstration (H.C. 153/83[25]) and freedom of worship (H.C. 292/83[24]). Certainly the same approach should be taken where the very existence of the state is in the balance. It follows that we are concerned with achieving a balance that requires a judicial determination as to the probability that realization of the right to vote will prejudice the interest of the state's continued existence. What, then, is the criterion for weighing the probability of prejudice to the state's existence that would justify a denial of the right to vote? Of course, there is no answer to this question in the Elections Law, and the Supreme Court must provide it. The Supreme Court has faced such questions in related issues. Thus, for example, where the conflicting interests were state security and the freedom of expression, the Supreme Court adopted the test of "probable" danger, while rejecting the known American formula of a "clear and present danger" (H. C. 73/53[26]). The same "probability" test was applied with regard to a conflict between the principle of the public peace and that of the freedom of demonstration, worship and information (H.C. 243/82[38]). However, where the conflict was between the principle of free speech and that of judicial integrity, the court used the standard of a "reasonable possibility" (Cr.A. 696/81[35]), following Cr.A. 126/62[39]. Indeed, when adopting the standard of probability one should not follow a general, universal criterion, since it depends on the force of the different values that come into conflict within a given legal context (H.C. 153/83[25], at 403). The question always is whether the measure of harm, weighed against the possibility that it may not actually occur, justifies violation of a civil right so as to prevent the danger (see Hand J. in U.S. v. Dennis [63]). Professor Schauer remarks in this connection:

      

       Evaluation of the interest in national security requires a determination of the extent of the harm should the argued effect actually occur, the probability of that effect occurring and the immediacy of the effect. The more serious the effect, the less certain and less immediate that effect need be.

            (Schauer, Free Speech: A Philosophical Enquiry (1982) 199).

           

            According to this approach it is clear that when the interest is that of the state's existence, the damage that may occur is so great that there is no need to require the existence of a clear and present danger or a substantial probability of danger. Furthermore, these formulae are appropriate in cases of concrete, specific and special dangers related to defined events. It is not possible to apply them when dealing with social phenomena that are part of a continuing process. Indeed, the matter calls for wide margins of security, because no unnecessary risks can be taken, and once a list has been confirmed the Elections Committee cannot, at a later stage after the elections, retract its decision. Nonetheless, the principle of freedom of expression and the right to elect and to be elected are precious values, and we should not, therefore, accept a test of probability for which a mere remote danger suffices. It appears to me that the proper balance will be found in a test of "reasonable probability", to which this Court has had recourse in the past (cf. Cr.A. 696/81[35], following Cr.A. 126/62[39]). Certainly, this test "does not constitute a precise formula that can be easily or certainly adapted to every single case" (Agranat P. in Kol-Ha'am [26], at 888). On the contrary - this is a difficult formula that leaves broad margins of uncertainty, but in the absence of a legislative formula it commends itself to me as the most appropriate one.

           

            8. It follows that I find myself taking a position that is not identical with either the majority or the minority opinion in Yeredor. Like the majority view, I too hold that the Elections Committee may refuse to confirm a list for participation in the elections, if its platform negates the existence of the state. However, I do not rest content with the list's "bad tendency" - in the words of Agranat P. in Kol Ha'am [36] - but would require a reasonable possibility that the list's platform will actually be realised. (For a similar approach, see Lahav, "On the Freedom of Expression in the Supreme Court Precedents", 7 "Mishaptim 375 (1976) at 416.) I regret that this requirement was not specified in the Yeredor case. Had the majority adopted that requirement, it might still have reached its same disqualificatory conclusion, since the case involved an organisation which the Minister of Defence had seen fit to declare illegal, which had acted as an arm of terrorist organisations existing in neighbouring Arab states, and which posed a general threat to the state with perhaps a real possibility of endangering its very existence. It is interesting to note the reference made by the minority judge to this aspect (Yeredor [1], at 381):

           

            Moreover, even where the law expressly authorised the denial of a certain civil right - which right was a fundamental civil right, such as freedom of opinion and speech - this court refused to support the exercise of that legal power where the denial was not necessary to prevent a present, clear and substantial danger (H.C. 73/53 - Kol Ha'am). I fail to discern the substantial, clear or immediate danger to the State, its institutions or its rights, in the participation of this candidates list in the Knesset elections. And if one wishes to argue that this danger is concealed from the courts and known only to the security agencies of the Government, I would reply that the material before the Central Elections Committee, which was also submitted to us, does not justify and certainly does not compel a finding that such danger exists. Indeed, the attention of the Committee members was not drawn to any substantial danger supposedly imminent. In the absence of as a sanction for past conduct and opinions; and the Central Elections Committee is certainly not authorised to impose a sanction like that.

           

            Can one assume that if a substantial danger had been proven, Cohn J. too, would have been prepared to take it into account? Should one not hold that the minority judge also would not have accepted the Elections Law as a prescription for national suicide? Still, it should be noted that the above remarks of Cohn J. were obiter dicta, and his main approach was that the Committee had no authority to deny a list's participation on grounds of its platform. I cannot agree with that approach, for if there is proved to be a reasonable possibility that the platform negating the state's existence might be realised, the Elections Committee certainly has the authority, even the duty, to disqualify the list from participating in the elections.

           

            9. Thus far I have not discussed the fact that the authority of disqualification - according to my interpretation, upon a "reasonable possibility" test - is vested in the Elections Committee, which is a body representing mainly political interests. It has occurred to me that this political composition may be indicative of the legislature's disinclination to rest the Committee's vested authority to decide upon a list's participation in the elections, on a party-platform test. Indeed, this is an important argument for, in principle, I believe that a body's authority can be inferred from its structure and composition (cf. J. Stone, Social Dimensions of Law and Justice (1966) 674). Nevertheless, it appears to me that this argument should be treated as part of a structural whole, and not as conclusive in itself. Thus, for example, in municipal elections the like authority is given to an elections officer who is an administrative functionary, and it cannot conceivably be argued that a different law applies there for that reason. Therefore one ought not deduce from the composition of the Elections Committee a decisive conclusion that, in the instant situation, would preclude application of the fundamental principles of our system and their internal balance. My colleague, Miriam Ben Porat D.P., has emphasized the fact that once the Elections Committee decides to confirm a list's participation in the elections, there is no appeal to the Supreme Court (H. C. 344/81[27]). According to her approach, this indicates that the Elections Committee is not authorized to weigh considerations affecting the state's existence, since she holds that it is inconceivable for the legislature to vest such power, without any possibility of an appeal or challenge, in the hands of a political committee. Although I share this approach in principle, I do not believe that it is decisive in the present matter for several reasons. Firstly, the Elections Committee is presumed to weigh material considerations with respect to both confirmation and non confirmation of a list. Secondly, it is necessary in every system to determine who shall have standing to apply to the court for a list's disqualification; in general, this power is given to political functionaries. From this point of view one can regard the Elections Committee as a preliminary obstacle to approaching the court. Finally, in the unusual event that the Elections Committee confirms a list which poses a reasonable possibility and, perhaps, even a certainty of danger to the very existence of the state, the Knesset always retains the power to prevent that disastrous consequence by legislative means.

 

Negation of the Democratic Character of the State

 

            10. So far I have examined the Election Committee's authority to withhold the right of participation in elections from a list that negates the very existence of the state. What is the Committee's authority as regards a list that acknowledges the state's existence but disavows its democratic character? In my opinion, here too we should adopt a like method of analysis. It appears to me that just as the existence of the state is a fundamental tenet in our legal system, so is its existence as a democratic state. The Declaration of Independence - in the light of which our legislation is construed - indicates that Israel rests "upon foundations of liberty, justice and peace as envisioned by the Prophets of Israel" and that it will ensure "complete equality of social and political rights for all its citizens, without distinction of creed, race and sex". All this presupposes not only the actual existence of the state but also its democratic essence, for it is impossible to ensure equality, liberty and justice without maintaining a democratic regime under which these principles will be realized. "The system of laws under which the political institutions in Israel have been established and function are witness to the fact that this is indeed a state founded on democracy" (Agranat P. in Kol Ha'am [26], at 884). Indeed, the distinction between questions pertaining to the state's existence and those touching upon its democratic nature, is at times difficult and complex. Can we not say, with a large measure of justice, that sometimes a danger to the existence of our democratic regime endangers also our existence, for our strength is in our regime? Can we not say that our democracy, our equality and our fundamental values are our strongest forces? Is it at all possible to distinguish questions about the state's existence from those about the essence of its democratic regime? Would the State of Israel without the Declaration of Independence be the same State of Israel? Is there any essential difference between denying the state's right of existence and recognising its continued existence under the flag of the Palestine Liberation Organisation?

           

            11. It appears to me, therefore, that just as we must interpret the Elections Law on the basis of a proper balance between the principle of the state's existence and that of the freedom to elect and be elected, so too we must interpret the Elections Law on the basis of a proper balance between the principle of the state's democratic regime and that of the freedom of election. In its interpretation the court may not consider merely the principle of the state's democratic character, thereby ignoring the important fundamental principle of the freedom to elect and be elected. But, likewise, the court may not take into account only the principle of the freedom to elect and be elected, while ignoring the framework of the regime and the law under which that right is exercised, i.e our own democratic regime. As in the Yeredor case [1], so in the matter before us, there is no avoiding a proper balance between the competing values. As with the threat to the very existence of the state, so with the threat to its democratic character, the balance finds expression in the formulation of a proper standard to determine the likelihood of realisation of the danger. As we have seen, that standard is shaped by the extent of the anticipated damage and the chance that it may not come about. It appears to me that in this connection too we should adopt the standard of reasonable possibility, and not probability, because of the supreme importance of the interest in the state's democratic character. Furthermore, as we have seen, the probability test is appropriate in the context of a concrete, defined event, and inappropriate in the context of an overall social framework (see O. Kirchheimer, Political Justice (Princeton, 1961) 140). As with the issue of the state's existence, so here we should maintain broad margins of safety. Still, to meet this standard of reasonable possibility, a "bad tendency" alone will not suffice, and it requires substantial proof of a reasonable possibility that the anticipated danger will actually come about. It follows from what we said above, that the same standard of "reasonable possibility" can be applied to the threat both to the state's existence and to its democratic character. It should not be inferred that these two values are thus seen to be on the same level. The difference between the two will find expression in the different balances that are called for when applying the "reasonable possibility" standard (see C.A. Auerbach, "The Communist Control Act of 1954: A Proposed Legal-Political Theory of Free Speech" 23 U. Chicago L.R. 173 (1956)).

           

            12. The import of the balancing process is no more than to convey that the right to vote, like the rights of expression, procession, information, assembly, and all other "political rights" are not absolute but relative rights (H.C. 148/79[40]). It was so noted by Justice Brandeis in Whitney v. California ([59], at 373):

           

            Although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral.

           

            The same applies to the right to elect and be elected. This right too is one of the citizen's fundamental rights (Reynolds v. Sims [64]), but it is not an absolute right, only a relative one. It can be restricted if there is a reasonable possibility that its exercise will deprive the state of its democratic character. Thus a delicate balance is attained between principles and values that mark democracy. On the one hand, the fundamental right to political expression is not to be denied merely because of the nature of the political view. Quite the contrary, the power of democracy lies in the freedom it allows to express opinions, however offensive to others. On the other hand, democracy is allowed to protect itself, and it need not commit suicide so as to prove its vitality.

           

Reasonable Possibility

 

            13. What is a "reasonable possibility" of injury to the existence of the state or its democratic character? The answer to this question is not at all simple since it requires examination on the particulars required to be taken into account. It appears to me that one should not take into account only the possibility of a change by parliamentary means, through a majority vote in the Knesset. I believe the scope of the examination should be widened to take into account all the social possibilities. The parliamentary test frequently constitutes but a last formal stage in a social system, in which the legitimate activity of a list that rejects the very existence of the state or its democratic character, could injure the social fabric. It appears to me that all these should be taken into account. The danger of a vote in the Knesset is no greater than a danger that the lawful activity of a list which rejects the state, or democracy, might reinforce phenomena that impair the legitimacy of the state, or democracy itself, in the eyes of the public. The reasonable possibility test should encompass the entire social scene, in all its various aspects. It should analyse social processes in the course of which a marginal entity that disavows the state or democracy might gradually accumulate strength until reaching the stage where it constitutes a danger to the existence of the state or its democratic regime. Kirchheimer remarks in this connection (op. cit., 137):

           

            He must consider past experience, future expectations, the ends pursued and the means applied by the revolutionary group, the doctrine it subscribes to, and the relation, if any, between doctrine and action patterns.

           

            The test indeed imposes a difficult task on the Elections Committee and on the Supreme Court. They must examine not only past events, but also the probability of potential future events. This examination amounts to a "prophecy...in the guise of a legal decision" in the words of Jackson J. in the Dennis case ([54] at 570). But this is a task to which a political body is accustomed, and it is not alien even to a legal proceeding which often calls for a decision founded on the examination of social processes.

  

                      14. In determining the reasonableness of the possibility that explicit or implicit ideas of a list will be translated into practice, one must consider the various means that may be adopted so as to mitigate the risk, short of actual denial of the right of election. In fact, the drastic measure of withholding the right to participate in elections should not be taken unless the alternative means are insufficient adequately to reduce the danger to the state or its democratic regime. In this respect two important points should be made. First, one should consider whether methods of persuasion, explanation and education would not act to mitigate the danger. Often the soft face of education towards democracy and its values is preferable to the stiff hand of governmental intervention. These words of Justice Brandeis, quoted by my colleague, Shamgar P., are well-known (Whitney v. California [58], at 377):

         

          If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.

         

          Second, there is room to consider other governmental measures that fall short of actually barring the list from participation in the elections. Thus, for example, activity against the state and its regime might constitute a criminal offence, and those associating together might constitute an illegal association under the Defence (Emergency) Regulations, 1945. Often the danger to the state and its democratic foundations can be reduced by punitive means - which might also entail the withdrawal of immunity from a Knesset member involved in criminal activity - before using the sharp measure of depriving the list of its right to participate in the elections.

         

          From the general to the particular

15. In the instant matter we have examined the platform of the Progressive List for Peace but have not found in it any indication, explicit or implicit, of a desire to bring about the annihilation of the state or to impair its democratic character. That being the case, the appeal must be admitted without any need to apply the test of a reasonable possibility. Not so with respect to the Kach list. Here the Elections Committee studied the Kach list and its publications, concluding that this material showed the list "propounds racist and anti-democratic principles that contradict the Declaration of Independence of the State of Israel". On the basis of this finding the list was denied participation in the elections. In so doing the Committee erred, for the platform alone is not sufficient, and the Elections Committee must consider whether the list poses a reasonable possibility of harm to the democratic character of the state. Words, opinions and views are not sufficient. There must be evidence of the existence of a reasonable possibility of activities that endanger the democratic character of the state. For this purpose one may take into account the past conduct of the faction, its members and its leaders, and the future dangers they hold out. No evidence was brought in this respect, nor was any attempt made to do so. True, there was much evidence before the Committee that the platform of the Kach list impairs the democratic character of the State. There was even evidence that it seriously intends to realise its objectives and does not renounce them. Indeed, the evidence shows that it has engaged in several overt acts to realise its platform. Thus, for example, the head of the list and one of its members were taken into "administrative detention" under the Emergency Powers (Detention) Law, 1979, on the basis of information that they were planning attacks against Arabs. That detention was confirmed by the President of the District Court, and an appeal against his decision was dismissed by the Supreme Court which found that the activity of the two constituted a danger to national security (A.D.A. 1/80[41]). So too, a number of the list's activists were convicted in the Magistrate's Court of improper conduct in a public place (Cr. F. 135/82, not published). But all this is not enough. The question is not whether the list is serious in its designs, but whether there is a serious possibility that its purposes will be accomplished. The question does not, therefore, concern the list internally, rather the list in relation to the state. The question is whether the possibility that the platform of the list will be realised, is a reasonable one, or whether such a possibility is most remote. In my opinion there was no evidence before the Committee of any such reasonable possibility. On the contrary: the administrative detention and the criminal trial that were brought to the Committee's attention reinforce the possibility that there are accepted means of defence at democracy's disposal, and there is no need, as yet, to adopt the drastic measure of denying the right to be elected. Indeed, neither the Committee nor this court was confronted with any factual data on which to base a finding that the list creates a possible danger to democracy in Israel. There was no fact from which to conclude that the Israeli democracy had lost, or that there was a reasonable possibility it would lose, its capacity to defend itself against this list - whether by educational or governmental measures. In the main, all that was proven was "bad tendency" - in the words of Agranat P. in the Kol Ha'am case [26] - and attempts to translate it into practice. That alone will not suffice. In these circumstances there was no justification for depriving the list of its right to take part in the elections. Note! I have no doubt that the ideas of Kach are racist and that its principles violate the fundamental doctrines on which the democratic regime of the state is founded. I am also convinced that they contradict the spirit and essence of Judaism, in all its various forms. In the words of Maimonides (Yad, Hilkhot Sanhedrin 12:3):

 

            For this reason, but a single man was created, to teach us that if any man destroys a single life in the world, Scripture imputes to him as though he had destroyed the whole world; and if any man preserves one life, Scripture ascribes it to him as though he had preserved the whole world. Furthermore, all human beings are fashioned after the pattern of the first man, yet no two faces are exactly alike. Therefore, every man may well say, "For my sake the world was created".

                     

The same approach is echoed by Rabbi Avraham Yitzhak Kook:

 

The most supreme value in the love of living creatures should be taken to be the love of man, which extends to all mankind. Despite differences of opinion among religions and faiths, and despite differences of race and geographic location, it is proper to understand the various nations and groups, to attempt to learn their nature and characteristics, in order to base love of humanity on foundations close to reality. For only on a soul rich in the love of living creatures and love of man can the love of the nation rise in its exalted nobility and its practical and spiritual greatness. And narrow mindedness, which sees only ugliness and impurity in all that is beyond the boundary of the particular nation, and beyond the border also of Israel, is one of the more terrible darknesses causing general destruction to all good spiritual edifices that guide by their light every gentle soul.

(See Z. Yaron, Teachings of Rabbi Kook (W.Z.O. Publications, 1973/4), 304.)

 

            If we have decided to sanction the list's participation in the elections, it is not because we accept any particular item in its platform. On the contrary, we have held, and reiterate once more, that its approach contradicts our fundamental conception and the general and Jewish values upon which our national edifice is being constructed. But so long as it has not been proven to the satisfaction of the Elections Committee, and to this court, that the list creates a reasonable possibility of danger to the existence of the state or its democratic character, there is no alternative but to allow it to participate in the elections.

           

From the Particular to the General

 

            16. I have accordingly reached the conclusion that under our existing law, the Elections Committee may refuse to confirm the participation in elections of lists that negate the existence of the state or its democratic character. However, that authority may not be exercised except where the Elections Committee is persuaded by the evidence before it that participation of the list in the elections raises a reasonable possibility of danger to the existence of the state or its democratic character. This approach stems entirely from the creative sources of the judicial process. This process is creative, but constrained within limits. The judge is not as free as the legislature. Therefore, I did not consider myself free to ignore the various principles, values and interests that compete for precedence, and I considered myself obliged to balance them in accord with a standard suited to the nature of the problem. It follows that my examination is interpretative. It seeks to exhaust the statutory language and has recourse to "supra-norms" with respect to the existence of the state, as an interpretative guideline. The same approach was taken by Justice Landau in the Central Elections Committee, in connection with the Yeredor matter. He said:

           

As chairman of the forum of first instance, the Central Elections Committee, I focused my statements on an interpretation of the statute - albeit a broad interpretation, so as to prevent undermining of the constitutional foundations of our regime and of the very existence of the state itself. I believe that this is also the line of reasoning taken by Agranat P. I do not think that the criticism of this approach is justified. We never entertained any doubt as to the sovereignty of the legislature, from whose word the judge may not depart, and which can change any ruling of the court. In lofty matters such as these, it may be presumed that the legislature will address the issue despite its many other occupations. But it is also clear that the court may exercise its discretion in interpreting the legislative word and, with respect to legislation of constitutional significance, that interpretation must derive inspiration from the fundamental notions upon which our constitutional regime is founded.

(M. Landau, "Ruling and Discretion in the Administration of Law", 1 Mishpasim 292 (1969), at 306.)

 

          That is my opinion as well. We are dealing with the interpretation of a legislative text through recourse to the ordinary rules of interpretation. One of those rules is that the statutory language should be interpreted in light of the accepted fundamental values of our legal system (Cr. A. 696/81[35], at 574; C.A. [42]), one of which - among the more important of them, but not the only one - is the principle of maintaining the state's existence. This interpretative approach exhausts the judicial process and lies at its core. It follows from the doctrine of the separation of powers and is consistent with our conception of the democratic state. My colleague, Elon J., is of the opinion that this interpretative approach entails a denial of the Elections Committee's authority. If that is the case, whence the judge's power to contradict the word of the legislature? Let us suppose an express statutory provision that the Elections Committee may refuse (to), or shall not, disqualify a list that negates the very existence of the state. Would Justice Elon still persist in holding that the Elections Committee must prohibit the list's participation in the elections? In my opinion, that result indeed follows from his approach. But how can it be reconciled with the approach of my colleagues - to which I too subscribe - that the judge may not raise himself above the legislature, and that the rule of law, not the rule of the judge, governs our regime? Indeed the "extra-interpretative" approach is not new, and it has been referred to in the past. (See, e.g., Guberman, "Israel's Supra-Constitution", 2 Israel L R 455 (1967).) In this respect I need only adopt again the comment of Landau J. with reference to the Yeredor case, made in his above mentioned article (at p. 306):

         

That decision has evoked criticism. It is said that the court exceeded its authority, thus violating the principle of the rule of law. In my opinion, that is too mechanistic a view of the court's role in interpreting the law. I agree with the statements of Dr. Rubinstein in his article "The Rule of Law: The Formal and the Substantive Perspective":

 

The rule of law is meaningless without basic premises that stand above the positive system of law...The role of the jurist, who has the knowledge and training for this purpose, is to apply the meta-legal principle and to effectuate it through the deductive methods offered him by the juridical technique.

 

That is the role of judicial discretion in the interpretation of the law, so as to bring it into harmony with the foundations of the existing constitutional regime in the state. We know too that the boundaries between the interpretation of statutes and their supplementation where needed, are not defined, and that there are borderline areas. The leading decisions given in this spirit in the first twenty years of the state's existence - and their number is significant - have given our constitutional regime its special character, no less than the legislative enactments of the Knesset. This line of thought is the principal heritage to come down to us from the world of the Common Law, and it links our legal system to that world.

 

            Indeed, my approach in the instant case is based not on "supernorms", raised above the law, but on "supreme principles" that pervade the law and emerge from it. My approach posits no "supra-constitutional" "natural law" that overrides the statutory law. It is a positivist "intraconstitutional" approach, which examines the nature of the law and interprets it according to accepted interpretative criteria. The law, in the words of Sussman P. (H.C. 58/68[43], at 513) is "a creature that thrives in its environment", which environment includes not only the immediate legislative context but also broader circles of accepted principles, fundamental purposes and basic standards that comprise a kind of "normative umbrella" encompassing the entire field of the statutory law (C.A. 165/82[42]). In this manner the judge fulfills his proper role and does not trespass upon the domain of the legislature.

           

            17. I would note, nevertheless, that even were I to resort to such "supra" principles, I would reach the same conclusion. The supra-constitutional rule relied upon by Sussman J. "is actually, so far as concerns the instant matter, no more than the right of self-defence of a society organised within a state" (Yeredor [1], 390.) But when, and in what circumstances, is this rule to be applied? Is a remote fear of a theoretical danger a sufficient ground for applying these principles? The answer appears to be that even with the application of a "supra" principle one must determine a ratio of probability between the danger and its avoidance. Indeed, even the supra-constitutional rule is a legal rule, and as such it too requires interpretation. It appears to me, therefore, that if I were to have recourse to it, I would hold that the supra-constitutional principle may be applied only in the case of a reasonable possibility that the danger will be realised. It follows that I would reach the very same conclusion as I did through interpretation of the Elections Law itself.

 

            18. From the aspect of the general constitutional structure, it is desirable that this question of barring a list from participation in the elections, on grounds relating to the content of its platform, be regulated by legislation and not be left open to judicial interpretation. In this respect I am in agreement with my colleague, Deputy President Miriam Ben-Porat. But the main problem is the substance of that legislation. In my opinion the present situation is preferable to legislation lacking a proper balance, from which might result damage to democracy outweighing any benefit to the democratic process. It cannot be denied that a democracy wishing to withhold the electoral right from lists which reject democracy, is confronted with a philosophico-political difficulty. The difficulty lies in the dilemma - or, if you wish, the paradox: is the barring of antidemocratic lists from participation in the elections compatible with democracy itself, or is the democratic entity not itself taking an anti-democratic measure? This is an old question, and Plato discerned it in asking whether complete freedom does not entail enslavement, and whether the freedom of choice granted by democracy does not lead to tyranny (see, in this respect, Popper, The Open Society and Its Enemies, vol. 1, 123, 265). Opinions on this issue are divided among philosophers and political scientists. Some maintain that the essence of democracy lies in full freedom of expression, extended under all circumstances and for all opinions, including those that might undermine the very democracy itself (see A. Meiklejohn, Political Freedom; Constitutional Powers of the People (N.Y. 1965)). Others - who constitute a majority - hold that a democracy has the right, under its own internal logic, to exclude election lists that disavow democracy itself from participation in the democratic process (see J.R. Pennock, Democratic Political Theory (1979), 377; Kirchheimer, Political Justice (1961), 119). But even those holding the latter view lack agreement as to the desirable solution. Some advocate the solution adopted in Germany, in both the Weimar and the post World War II periods, according to which a party that negated the democratic character of the state could not take part in the democratic process. In Yeredor ([1] at 384), Cohn J. noted that this legislative course might also serve our own legislature as an example. For all its merits, one cannot ignore its many deficiencies, since it denies a fundamental political right solely on grounds of content (of party platform), without any examination of the prospects of its realisation. Ought it not be said that the true test of the ideas of liberty, justice and equality, and the other fundamental principles that form the "credo" of our constitutional regime, is in their inner strength, their inherent truth, and not in their coercive power? Ought it not be maintained that the weakness of racism and incitement lies in their inherent falsehood which is exposed to all precisely in the free exchange of opinions and ideas that is unique to democracy. Justice Holmes explained the notion thus (Abrams v. U.S. [65], at 630):

 

            The ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.

 

            Is there no danger that boundaries will be trespassed and that the stamp of racism and incitement will be imprinted on the views of a political opponent merely because they are unpopular? Should we not say that the test of democracy, where there is no reasonable probability of danger that the controversial views will be realized, lies precisely in its toleration of opinions, however odious they may be? Freedom of expression is not the freedom to express an accepted opinion, but rather the freedom to express a deviant opinion. Bach J. elucidated the point in instructing the Elections Committee. He noted that the Elections Committee could extend the Yeredor ruling also to bar the participation of a list whose platform rejects the foundations of democracy, and he also believed that this extended principle should be applied in relation to the Kach list. Nevertheless, he wished it to be taken into consideration that

           

...above all, the right to elect and be elected to the Knesset is among every citizen's central and most hallowed civil rights in a democratic regime - the denial of this right is an exceptional measure which can be justified only in extraordinary cases... This rule is put to the test especially in relation to controversial lists. Ordinary, accepted lists present no challenge to it. But the rule is tested precisely where there is strong objection and aversion to the list on the part of certain or broad sections of the public. Precisely in such case must we generally take care to allow the expression of those opinions and leave the decision as to their weight and justification to the public in a free vote.

 

            As Jackson J. said in West Virginia State Board of Education v. Barnette ([66] at 642):

           

But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

 

            One might argue that these words are fit and proper for the great and powerful America, which can allow itself such a "liberal" approach, whereas we must act very cautiously since our state is small, its regime is young, and it is surrounded by enemies that pose a real threat to it. Indeed, that difference exists, but our own strength is in our moral force and our adherence to the principles of democracy notwithstanding the surrounding danger. In this respect our strength is great, and we can say out loud that even if we do not agree with a certain opinion we would give our lives for the right to make it heard. The legislative question involved is truly weighty and hard. We should hope to find the proper balance, that takes into account the entire picture, in all its complexity.

 

            For these reasons I joined my colleagues in admitting the appeals, setting aside the decision of the Elections Committee, and confirming the participation of the two lists - Kach and the Progressive List for Peace - in the Knesset elections.

           

            BEJSKI J.: 1. Because of the proximity of the elections, we were pressed for time in deciding the two appeals brought before us. Despite the different considerations and reasons of the Elections Committee in refusing to confirm each of the two lists, we found a common denominator that required us to admit both appeals, since that result followed from adoption of the majority opinion in Yeredor [1], and even more so were we to adopt the minority opinion there. My esteemed colleagues have elaborated extensively and incisively upon the important constitutional issue in all its varied complexities, as regards both principles and consequences, and the absence of statutory guidance has brought to the fore differences of approach to the desirable solution of a conflict between basic fundamental rights. If one accepts the minority opinion in Yeredor, as does the esteemed Deputy President, the conclusion is unequivocal as regards each of the two lists concerned. According to this perspective, the Knesset Elections Law [Consolidated Version], 1969 does not grant the Central Elections Committee authority to deny any list the right to contend in the elections, irrespective of its objectives and declared platform.

           

            If such list meets the formal, technical conditions determined in the Law, and none of its candidates are found to be disqualified under section 6 of Basic Law: The Knesset, the position is clear-the list must be confirmed as a lawfully submitted one. And if one adheres to the majority opinion in Yeredor - in its narrow, restrictive sense one might also reach the same result, since the majority opinion is limited in application to a list whose objectives negate the integrity of the State of Israel and its very existence. The reason for the refusal of the Central Elections Committee (hereinafter "the Committee") to confirm the Progressive List for Peace comes very close to attributing such objectives to it, and with regard to this list the decision turns on the evidence, that is, whether the objectives attributed to it were proven sufficiently. In this connection I can already say at this point that I am in agreement with the reasoning in the esteemed President's instructive opinion, and this list's appeal should accordingly be upheld.

 

            The reason for the refusal to confirm the Kach list attributes to it subversion of the foundations of the democratic regime in that it propounds racist principles, supports acts of terrorism, attempts to incite to hatred and hostility among different sectors of the population in Israel, and intends to violate the religious sentiments and values of a section of the state citizens. It is clear that this reason strays from the basis of the majority ruling in Yeredor. Hence, adherence to the majority ruling, as regards the narrow issue of negation of the state's very existence, provides no ground for disqualifying the Kach list, unless the ruling is expanded, by way of judicial legislation, to disqualify also a list which in essential nature propounds anti-democratic principles and seeks to undermine the foundations of the state's democratic regime. Obviously, this reasoning too would require the Committee to examine and be persuaded, in accepted probative manner, that the allegations against that list are substantial. In the case of Kach the Committee reached that conclusion.

           

            2. Counsel for the state indeed invites us to expand the Yeredor ruling, and to hold that the Committee is authorised to disqualify not only a list that negates the very existence of the state but also one that disavows and undermines the principles of democracy as perceived by the free Western world. He contends that Kach is such a list, and therefore it was justly disqualified by the Committee.

           

            It is possible to understand Mr. Yarak's argument that it is not necessary to regard this reasoning as an expansion of the majority opinion in Yeredor, because it was said in that case (following the Kol Ha'am decision [26] at 884) that any element posing a danger to the perpetuity of the State of Israel could not be countenanced; this was a constitutional foundation "which no state authority, whether administrative, judicial or quasi-judicial, may disclaim when exercising its power" (Yeredor [1] at 386). The existence of the state in its present form is tightly linked to the democratic foundations on which it is based and the state cannot be protected without protecting its democratic foundations. In other words, subversion of the principles of democracy is tantamount to subversion of the very existence of the state, for the State of Israel inscribed in the Declaration of Independence, as a constitutional principle, that "it will rest upon foundations of liberty, justice and peace as envisioned by the prophets of Israel. It will maintain complete equality of social and political rights for all its citizens, without distinction of creed, race or sex; it will guarantee freedom of religion, conscience, language, education and culture...".

           

            Mr. Yarak argues further that if the legislator has not seen fit to provide express statutory protection for the values of democracy, that is because these supra-principles have always been acknowledged in the case law as the basis of our regime, as regards both the recognition of rights and the creation of corresponding duties (H.C. 1/49[10] at 83; H.C. 73,87/53[26]; H.C. 148/79[40]), including rights and duties that are not written in the statute book but are recognised in law as stemming from the essential nature of our democratic regime (H.C. 29/62[44], at 1027; H.C. 112/77[45]; H.C. 262/62[46]; H.C. 337/ 81[5]; C.A. 723/74[3], at 295).

 

            3. It is true that to undermine the foundations of democracy is largely the same as undermining the foundations of the state as presently constituted. A democracy may defend itself against such phenomena, and the difficult dilemma which faces most Western democracies relates to the permissible means of defence. That defence is not at all easy since subversive groups often, perhaps mostly, take advantage of the benefits of freedom of speech and assembly under a democratic regime, in order to achieve their goals. Extreme examples of this phenomenon are found in the events overtaking Italy in the 1920's, Germany in the 1930's and Czechoslovakia in the 1940's. The dilemma as to the methods of self-defence - and perhaps also of waging war against groups of a totalitarian nature, is compounded sevenfold because of the fundamental values of democracy which, by its nature, is open to a plurality of opinions and world views. In 1763 Voltaire is reputed to have said that even if he objected to all that his opponent said, he would defend the right to say it with his own life. Open discourse, the right to make unconventional statements, exertion of influence to change ways of thinking on controversial And in the aforementioned Dennis case, Frankfurter J. said ([54] at 551):

           

            This difficult dilemma does not spare us either, and we have to contend with it from time to time. I choose to mention only one decision, the well-known El-Ard case (H.C. 253/64[2], at 679), from which reverberates the warning of Witkon J. concerning events of the kind seen in the recent past, when different totalitarian entities exploited the freedoms of speech, press and association granted them by the state, under the auspices of which to carry out their own destructive policies. It was said there (following H.C. 241/60[47], at 1170):

           

"These freedoms are valuable possessions, the tradition of a democratic regime in a free country, but precisely for that reason they may not be used as a pretext or tool by those who seek to undermine that regime." Likewise in the present matter. And the encouragement given the El-Ard Movement from across the borders alerts us to its potential danger to the State of Israel. It would be blind folly to sanction it.

 

But at the same time the other side of the dilemma was expressed:

 

The freedom of association is of the essence of a democratic regime and a fundamental civil right. Far be it from us to deny that right and disqualify an association for the sole reason that its goal, or one of its goals, is to strive towards changing the existing legal situation in the state. ... However, no free regime will lend support and recognition to a movement that undermines the regime itself.

 

            If we maintain that the right to freedom of association and speech is of the essence of a democratic regime, and that "a regime that does not honor the freedom and right of a minority to express its views cannot claim to be a true democracy" (G. Leibholz, Politics and Law (Leyden, 1965) 44), that does not imply that one may deviate from the fundamental doctrines of that regime in the name of democracy and under its guise. One who claims rights in the name of democracy must himself act in accord with its rules. In the words of Schauer (Free Speech, A Philosophical Enquiry, Cambridge University Press, p. 190):

           

            Superficially, we might say that advocacy of legal change should be permitted, but that advocacy of violent or unlawful means of change should not be protected by the Free Speech Principle. After all, people should not be able to rely on freedom of speech derived, here, primarily from the argument from democracy, for the purpose of going outside the process of democracy. It is not that fairness or consistency requires that those who claim rights under a principle must themselves subscribe to that principle, although such an argument is quite plausible. Rather, speech that produces extra-legal change undermines the process of rational deliberation that is the a priori value of a democratic system.

 

And further on (at 194):

 

That is, if freedom of speech is justified by its relationship to the legal system, and especially if it is justified by its ability to ensure the functioning of a system of laws, then speech directed at weakening or destroying that legal system would appear to have little claim to protection.

 

            Pennock's comment is apposite (Democratic Political Theory, Princeton University Press, p. 377):

           

...It would seem strange to dub as undemocratic a provision designed to prevent democracy from committing suicide.

 

            4. Measures of self-defence against acts subversive of the foundations of democracy are accordingly not considered prohibited, although in theory one can say that self-defence by the extreme method of suppressing or forbidding organisation entails an antidemocratic act. That is a price that must be paid, and it does not appear to be too heavy where a danger to national security or a state of emergency arises, which dangers are regarded as sufficient to deny freedom of speech or organisation. Against this background, the doctrine of a "clear and present danger" was evolved in the U. S. A. , as expressed in Whitney v. People of State of California [58] and modified in Dennis v. U.S.[54] at 507), and especially in Brandenburg v. Ohio (1969 [67]), 444). The doctrine's development and the considerations that guided the U.S. courts were discussed extensively in the opinion of the esteemed President, and there is no need for repetition, except to note that when Douglas J. retreated from the "clear and present danger" test in the Brandenburg case, he said (at p. 456):

 

            The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation, is the line between ideas and overt acts.

           

            Any test we adopt, be it the criterion of a clear and present danger, or that of an overt act, or the "reasonable possibility" test now suggested by my esteemed colleague Barak J., immediately poses a twofold dilemma: one relates to the proper time when the defensive reaction may and should come; the other concerns the dimension of the permissible measures, that is, whether radical elimination of the danger, in its infancy, or other lesser means. The tolerance that democracy espouses calls for forbearance also with respect to the timing, until the maturation of the selected test. Still, Leibholz warns (op.cit., at 87):

           

But usually the process of enlightening a misled public opinion in democracy is a very delicate undertaking. The slowness of its tempo may even have disastrous consequences: the warning voices may remain unheard and the reversal of public opinion may come too late.

 

            After comprehensively analysing the lurking dangers, when a democracy fails to act in time and tolerantly seeks to reach compromise and understanding, the author adds (at 160):

           

All these well-timed, tactical, so called understandings only confirm the old experience, that states, like men, are very slow to learn the lesson taught by history, even contemporary history, and to guide their policy and actions accordingly.

 

            It is commonly agreed that governmental intervention against subversive bodies is justified and even necessary. Our historical memory also justifies timely, even prior intervention. That is necessary especially where the group does not stop at mere words but proceeds to act in destructive ways. However, the concrete dilemma concerns the permissible active modes of protection and their limits. Ought the conclusion be to bar the group from participation in public life, to outlaw it, or does it suffice to impose some form of control over the group's activities. The answer involves many factors and considerations - political, educational, economic, military, and the like, and above all the virility of the democracy, the composition of the population and its capacity to withstand external onslaughts. This complex array suggests that the answer lies properly in the political domain. Thus Lippincott opines (Democracy's Dilemma (1965) 199-220) :

 

            It is a task of the highest statesmanship. In order to carry it out, at a minimum cost, democracy will need all the wisdom of which it is capable.

 

            5. I have made these observations to explain why I believe we cannot admit the argument of counsel for the state, i.e. that it is supposedly self-evident that the Yeredor ruling [1] should be extended also to bodies which undermine the foundations of democracy, since that amounts to undermining the very existence of the state; likewise the argument that at in any event, and for the same reason, there is room to expand the Yeredor ruling beyond the narrow confines of the matter decided there. It is clear to me, and so it was unequivocally stated in the majority opinion, that only the vital need and the interest in the state's continued existence moved the court to take the extreme position of withholding the right to be elected, albeit by virtue of inherent authority, based on natural law, from someone whose avowed purpose is the destruction of the state. In the words of Sussman J. (Yeredor [1] at 390):

           

            Just as a man does not have to agree to be killed, so a state too does not have to agree to be destroyed and erased from the map. Its judges are not allowed to sit back idly in despair at the absence of a positive rule of law when a litigant asks them for assistance in order to bring an end to the state.

 

            The majority judges were not prepared to go any further, as was explicitly stated by Agranat J. (ibid. p. 387):

           

As already indicated, I agree that the Central Elections Committee, in exercising its power to decide upon the confirmation of a candidates list, is not ordinarily empowered to inquire into the candidates' worthiness or to reflect upon their political views.

 

            Sussman J. spoke in a similar vein (ibid. p. 389). One might ask: since in the Yeredor case the court, without statutory sanction, assumed the power to deny a fundamental right, why shouldn't we extend that power to another cardinal matter that poses a danger to democracy, and is closely related to that dealt with in Yeredor - where the court saw fit to forestall the danger? The answer is that the two are not alike. Negating the very existence of the state is not the same as subverting the foundations of democracy. If in regard to the former question the court felt itself constrained to go beyond its ordinary bounds and to resort to natural law, that does not mean that the court will extend such judicial legislation beyond the call of necessity. Certainly not where it is concerned with an essentially political matter lying primarily in the domain of the legislature - upon which the court will not encroach except through the modes of interpretation. Even in the Federal Republic of Germany, where section 21(2) of its Basic Law of 1949 expressly authorises the Constitutional Court to decide whether the objectives or tendencies of a party are to impair the democratic foundations of the Republic, that court is enjoined to act with restraint when exercising powers of a political nature. Leibholz says (op.cit., at 299):

 

As custodian of the constitution, the constitutional judge has to watch out that the Supreme Court does not usurp political power and authority. He must respect the well-determined tendencies of the modern state. Out of this, it results that the constitutional judge, in the exercise of his powers, must wisely restrain himself.

 

And in the aforementioned Dennis case, Frankfurter J. said ([54] at 551):

 

To make validity of legislation depend on judicial reading of events still in the womb of time - a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations - is to charge the judiciary with duties beyond its equipment.

 

            The authors Nowak, Rotunda and Young comment in similar vein (Constitutional Law (2nd ed.) at 779):

           

Although the Supreme Court has recognized that basic constitutional rights are intertwined in the electoral process, the Court also has noted that elections are largely political creatures and the Courts should refrain from getting too involved in basically political decisions.

(See also G. Marshall, Constitutional Theory (Oxford, 1971).)

 

            If that is the situation in relation to the review and interpretation of the provisions of a written constitution, a fortiori in our case where there is no enacted provision and we are asked to usurp the legislator's function by way of expansive judicial legislation.

           

            It bears reminder that it is the Committee's function to decide on disqualification and the court has only a power of review. The Committee is a clearly partisan political body, and it is constituted only for the purposes of, and with the powers granted by, the Knesset Elections Law [Consolidated Version], 1969 - and no more. If without defined and qualified legislative authority this Committee is extended the power to decide which lists undermine the foundations of the democratic regime, lists might be disqualified on grounds of narrow party interests, as deemed fit at the time by a chance or contrived majority in the Committee. Nor should one forget the fervour of elections, with all it entails.

 

            It follows from everything I have said that I adopt the majority opinion in the Yeredor ruling, as it was limited and confined to the disqualification of a list that negates the very existence of the state or aspires to its destruction and the repudiation of its sovereignty.

           

            That is the outer limit. Like my esteemed colleagues, I too am aware of and troubled by those occasional subversive forays, which from time to time might cause serious harm to the values of democracy if there is no planned, timely defence against them. However, I am not prepared to uphold the extreme sanction of disqualifying a list and denying the fundamental right to be elected, without legislative authority.

           

            6. I have read attentively and with pleasure the interesting opinion of my esteemed colleague, Barak J., who, in his own way, finds it possible to expand the Yeredor ruling to apply also to a list whose platform negates the democratic character of the state, provided a reasonable possibility of the realization of its objectives has been shown. My colleague proceeds on the assumption that this authority stems from section 63 of the Knesset Elections Law, and, therefore, the court may apply its system's rules of interpretation to hold that this is an empowering provision; that despite the mandatory language, the Elections Committee must be vested with discretionary authority so as to realize the fundamental principles of the system.

           

            My understanding is that the authority granted under section 63 is not merely limited to a "lawfully submitted" candidates list but, moreover, the power to refuse to confirm a list can only be based on section 6 of Basic Law: The Knesset (apart from technical-formal grounds that do not concern us here). That section grants the right to be elected to every national who is twenty-one years of age or over, and provides that a candidate may be disqualified only if a court has deprived him of that right by law or if he has been sentenced to five or more years imprisonment for certain offences against national security, as prescribed in that Law.

           

            We are accordingly dealing with a very circumscribed and narrow authority, deviation from which is not a matter of interpretation or discretion, but one of legislation proper on a subject that has no connection whatever with the matter for which the authority was granted. Moreover, the judicial exception made related only to a danger to the very existence of the state, as was the opinion of Sussman J. in Yeredor, with which I find myself in agreement. It is one matter to refuse to confirm a list that was not lawfully submitted, with which alone section 63 deals, and an entirely different matter to disqualify a list because of its platform or the views of its members, which is nowhere mentioned in the statute. Where the legislature sought to obstruct the path to election of a person sentenced to five or more years of actual imprisonment for an offence against state security, it said as much; in that respect there is room for judicial interpretation, for example as to what constitutes an offence against national security, and so on.

 

            In his instructive article on "Judicial Legislation", (13 Mishpatim (1983), 25 at 39) Justice Barak said:

           

The judiciary is not omnipotent; it is not 'sovereign' in judicial legislation. It is not free to choose the content of a legal norm. Judicial legislation is subject to external limitations that define its formal legitimate sphere ... It is clear that the judge interpreter may not impart to the law a meaning that commends itself to him as interpreter, without it being rooted in minimal connections to the legislative enactment.

 

            And in another article he said ("On the Judge as Interpreter", 12 Mishpatim (1982) 248, at 255):

           

It is possible to give the language of the law a broad or narrow interpretation, an ordinary or exceptional interpretation, but generally one must find an Archimedean foothold for the purpose in the statutory text. There must be, generally, a minimal verbal connection between the language and the purpose. The interpreter may not achieve a purpose that has no hold, however weak, in the statutory language.

 

            I am in full agreement with the above statements, and precisely for that reason I cannot find it possible to extend the Yeredor ruling beyond the issue decided according to the majority opinion, since the statute lacks that "Archimedean-foothold" upon which broad and expansive interpretation can be grounded and constructed. As far as I am concerned, we are not facing here any option of broad or narrow interpretation, but rather the total absence of any statutory provision on the matter concerning us in which we could find some foothold. We cannot forget that we are dealing with such a fundamental matter as the denial of the right to be elected; and if the majority opinion in the Yeredor case followed the unusual course that it did, the matter is explained by the disproportionate weight between the considerations, on the one hand, of negation of the existing integrity of the state and, on the other hand, the right to be elected. From this aspect of both the issue and the conclusion are indeed exceptional, and every other consideration must give way in face of the danger entailed in the negation of the very existence of the state. It is different in the instant case, where the court has little justification for invading so deeply the preserve of the legislature merely on the ground that for nearly two decades that body has kept silent on such an important question of principle as that which arose so acutely in the Yeredor case.

 

            Indeed, my esteemed colleague Barak J. also spoke of the desirability that this issue - the barring of a list from participation in the elections on grounds relating to the content of its platform - be regulated through legislation and not be left open for judicial interpretation. My difficulty is that I cannot find any basis and foothold upon which to construct such judicial interpretation, and for that reason I cannot adopt the solution proposed by my colleague. However, the very appeal to the legislature as regards the need for statutory regulation of the matter, to which I wholeheartedly subscribe, reinforces my view that in its absence we should not trespass upon the domain of the legislature in such a cardinal matter. Like my colleague Barak J., I too am apprehensive of an unbalanced legislative treatment of the subject, but one can assume that the broad considerations and difficult deliberations that accompanied each of us in deciding this case will not escape the attention of the legislature. And once it has spoken, the court will have a basis for interpretation for which there will undoubtedly yet be need.

           

            7. I now come to the other question on which I disagree with my esteemed colleague, Barak J. If I had found it possible to agree with him on the principled question regarding the Committee's authority to disqualify a list on grounds of its platform, objectives and activity - if designed to endanger the foundations of democracy, I would have reached the conclusion that the Kach list had been lawfully disqualified and that we should not intervene.

           

            My colleague says: "Words, opinions and views are not sufficient. There must be evidence that there exists a reasonable possibility of acts that endanger the democratic character of the state." For the sake of argument I am prepared to accompany him this far, though it should not be inferred that I accept the "reasonable possibility" test. However, even according to that test, if one accepts it as correct, I ask myself: what more evidence is required and could be offered in discharge of the burden of proof, than was actually proven with respect to the Kach list?

           

            The Committee had before it scores of publications, booklets, pamphlets, posters, articles, all full of insufferable racist hatred. They speak of deporting the Arab population to other countries, while those remaining in Israel are to become alien residents without national rights. They advocate denying social security benefits to Arabs so as not to subsidize population growth in that sector.

  

          At press conferences views are voiced, mainly by the head of the list, in support of terrorism against Arabs as a religious act in sanctification of God's name. In one public appearance Rabbi Kahana said that if he were appointed Minister of Defence, there would be no mosques and Arabs on the Temple Mount within half a year. In his platform he calls for enacting a law that would impose a sentence of 5 years mandatory imprisonment on a non Jew who engages in intercourse with a Jewish woman. There were also calls against the employment of Arabs, as well as justification for laying explosives on the Temple Mount.

 

          Lest one say that these are only words and opinions which do not amount to a "reasonable possibility" of endangering the democratic character of the state, the Committee had information about members of the list who went to Arab settlements to convince them that they had no place in this country, and that if they did not leave voluntarily with compensation paid, other means would be found. Legal and illegal demonstrations were held to disseminate these views. The Committee had before it court judgments convicting members of the movement in respect of these activities (Cr.F.(Jerusalem)134/82; Cr.F.(Tel Aviv) 167/73). In A.D.A. 1/80[41], this court justified the administrative detention of the head of the list and his comrade, and it was said there:

         

          ...in the instant case the danger to national security, which the orders were intended to prevent, is of such gravity that it is proper to confirm the detention orders despite the violation of the detainees' right to defend themselves.

         

          Lack of space prohibits the specification of all these activities and suffice it to say that they go beyond mere words and opinions, amounting to continuous and consistent action and deeds. And if indeed all these are not sufficient evidence of a danger to the democratic character of the state, then I do not know what more need or could be proven. And in appearing before the Committee, the head of the list gave a lengthy explanatory speech, in which he not only did not deny what was attributed to him and proven against the list, but actually repeated the racist "credo". The speech was long and there is no need to repeat it here, except for one or two extracts by way of illustration: "I now ask all the members of the Committee whether an Arab may live in a Jewish democratic state in peace, in quiet, in democracy, in procreation, to become a majority here and turn this state into one that is not Jewish but Arab?" (p.38). After explaining his conception of an "alien-resident" - that is, "he is not a citizen, does not cast a vote for the Knesset, he has cultural, religious, economic, social rights and no more" - he says: "If he is willing, then by all means, let him dwell here; if not, he shall leave. How? Whoever is prepared to leave quietly, nicely, peacefully, receives money for his property. If not so, the Government will send him out, as did the Poles, the Czechs, the Greeks, the Turks, and all those" (page 39 of the Committee minutes).

 

            These tones reverberate so ominously from the not too distant past, that a democratic state like ours may justifiably defend itself against them despite all the patience and tolerance decreed by democracy for the another person's views. And, as was proven, the Kach list does not even try to disguise its platform, as is sometimes done so as not to arouse fear and suspicion regarding the true goals. Even the affidavit submitted to this court in support of the notice of appeal displays plentiful mention of these views, and without quoting them I shall refer particularly to pages 2-4 of the affidavit. Still I feel obliged to add that even if the platform of the Kach list were untainted with these blemishes, the platform alone does not present the full picture. A platform can be camouflaged. Therefore, the Committee is certainly allowed to base itself on material other than the platform, to the extent that it is indicative of the real objectives of the list and its activity, and so far as reliable. And here, as aforementioned, there was no denial-quite the contrary!

           

            Like the Central Elections Committee, with all the material before it, I am persuaded that there was good reason to regard the Kach list as one that advocates racist and antidemocratic principles, as set forth in the letter of the Committee Chairman, Justice G. Bach, dated June 17th, 1984.

           

            And if in our decision on June 28th, 1984, I concurred in the opinion of my colleagues on the bench that this list should not be disqualified - that was not due to lack of evidence as to its character and purposes constituting a danger to the foundations of democracy, by any standard. As I have explained, it was because I found no lawful authority to do so and did not consider it possible to extend the Yeredor ruling without having been granted such authority by the legislature.

           

            Both appeals allowed.

           

            Judgment given on May 15, 1985.