Rule of Law

Movement for Quality Government in Israel v. The Knesset

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

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

 

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

 

An abstract of the various opinions can be found here.

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

HCJ 5658/23

HCJ 5659/23

HCJ 5660/23

HCJ 5661/23

HCJ/5662/23

HCJ 5663/23

HCJ 5711/23

HCJ 5769/23

 

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

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

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

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

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

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

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

Petitioner in HCJ 5769/23:               Roni Numa

 

v.

 

Respondents in HCJ 5658/23:          1. The Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

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

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

3.  Knesset

4.  Attorney General

5.  Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5660/23:          1. Knesset

                                                            2. Government of Israel

 

Respondents in HCJ 5661/23:          1. Knesset

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Government of Israel

                                                            4. Attorney General

 

Respondents in HCJ 5662/23:          1. Knesset

                                                            2. Minister of Justice

 

Respondents in HCJ 5663/23:          1. Knesset

                                                            2. Government of the State of Israel

                                                            3. Knesset Constitution, Law, and Justice Committee

 

Respondents in HCJ 5711/23:          1. Knesset

                                                            2. Government of Israel

 

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

                                                            2. Knesset Constitution, Law, and Justice Committee

                                                            3. Knesset Foreign Affairs and Defense Committee

                                                            4. Knesset

 

Amici Curiae:                                    1.  Association for Civil Rights in Israel

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

 

                                               

The Supreme Court sitting as High Court of Justice

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

 

Israeli Supreme Court cases cited:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

English cases cited:

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

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

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

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

Indian cases cited:

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

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

Australian cases cited:

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

Canadian cases cited:

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

 

 

Judgment

(January 1, 2024)

 

President (emer.) E. Hayut:

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

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

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

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

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

 

Background

  1. The Reasonableness Standard in Israeli law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Legislative Process of the Amendment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

The Petitions

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

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

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

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

 

Summary of the Arguments of the Parties

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Examination and Decision

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

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

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

 

Part I: Judicial Review of Basic Laws

  1. The Power to adopt a Constitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

  1. Abuse of Constituent Power

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

 

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

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

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

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

            From the above we can conclude:

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

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

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

 

C.2. The Role of the Court

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

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

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

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

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

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

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

            Below, I will briefly address each of these aspects.

 

  1. “Chapter by Chapter”

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

 

            The Exercise of Constituent Power in Practice

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

  1. Interim Summary

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

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

 

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

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

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

  1. Threshold argument: The ripeness of the petitions

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

D.        The significance of the Amendment

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

            D.1.     Interpretation of the Amendment

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

                        The Supreme Court

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

            D.3.     Infringement of the separation of powers

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            D.4.     The harm to the rule of law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

            G.        Additional Defects raised by the petitions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[…]

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

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

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

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

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

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

 

Afterward

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

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

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

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

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

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

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

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

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

 

Before Concluding

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

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

 

Conclusion

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

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

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

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

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

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

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

 

                                                                                                            The President (emerita)

 

Movement for Quality Government v. Knesset

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

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

 

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

 

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

 

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

 

 

Voting Justices: 
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Full text of the opinion: 

 

 

 

Abstract

HCJ 5658/23 Movement for Quality Government v. Knesset

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

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

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

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

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

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

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

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

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

 

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

President (emer.) E. Hayut:

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

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

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

 

Justice Y. Elron:

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

 

Jusitce A. Stein:

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

 

Justice I. Amit:

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

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

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

 

Justice G. Canfy-Steinitz:

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

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

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

 

Justice R. Ronen:

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

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

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

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

 

Justice Y. Kasher:

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

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

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

 

Deputy President U. Vogelman:

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

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

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

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

 

Justice D. Mintz:

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

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

 

Justice K. Kabub:

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

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

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

 

Justice (emer.) A. Baron:

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

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

 

Justice O. Grosskopf:

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

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

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

 

Justice D. Barak-Erez:

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

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

 

Justice N. Sohlberg:

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

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

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

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

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

 

 

Kach v. Central Election Committee for the Twelfth Knesset

Case/docket number: 
EA 1/88
Date Decided: 
Tuesday, October 18, 1988
Decision Type: 
Appellate
Abstract: 

The Appeal revolved around the decision of the Central Election Committee for the Twelfth Knesset, under its authority according to section 63 of the Knesset Elections Act [Consolidated Version] 1969, that the “Kach” List be barred from participating in elections to the Knesset, under section 7A of Basic Law: The Knesset. The Appellant’s argue that section 7A, which was added to Basic Law: The Knesset is invalid for the following reasons: it is inconsistent with the principle of equality as established by section 4 of Basic Law: The Knesset; it is an extreme divergence from the principles of democracy and harms the citizen’s right to vote and to be elected, and that the causes for bar – which are listed within it in the absence of definitions – contradict each other. For the purposes of the considerations weighed by the Central Elections Committee, the Appellants argue, they are irrelevant considerations flawed by unreasonableness and discrimination. They further maintained that the “Kach” List must not be viewed a list to which section 7A of Basic Law: The Knesset applies. At the outset of the hearing in the Appeal, the Appellants sought to have three of the Supreme Court Justices recused from adjudicating the appeal, as they had previously adjudicated a matter involving the “Kach” List.

 

The Supreme Court held:

 

A.        1.         A judge is not barred from adjudicating a matter merely because he had previously adjudicated and decided the matter.

            2.        The resolution for the plight of a party, whose matters are often brought before a court, is in the nature and character of the judicial role and the judicial mental discipline.

            3.        It is presumed that a judge of the highest appellate level not be wrongfully influenced from things that are irrelevant or that are not raised in the particular matter before him, and that he is ready to hear any case with patience, tolerance and openness relevant challenges and new perspectives on issues he heard before and are raised before him again.

 

B.        1.         It is possible to change section 4 of Basic Law: The Knesset, once a majority of Knesset members give their voice to it. In this regard it is irrelevant whether we are concerned with a slight divergence or an extreme divergence from the principle laid in section 4 above, as in allowing an amendment passed by a special majority, the legislature did not establish an exception to the nature or material scope of the possible amendment.

            2.         Section 46 of Basic Law: The Knesset gives explicit support to conflicting legislation, which constitutes implicit amendment to section 4. Such treatment of implicit amendment results in the conclusion that there is no foundation for the argument that a piece of legislation that changes any of the norms provided by section 4 must include an explicit declaration that the new legislation comes to diverge from section 4 of Basic Law: The Knesset.

            3. Under the circumstances at hand, this is legislation made explicitly in order to create an exception for the principle in section 4 of Basic Law: The Knesset. It is a direct amendment of the Basic Law within the same legislative framework, by integrating an additional provision into the Basic Law, alongside section 4, when the implication for section 4 is apparent and clear to all.

 

C.        Even according to commonly acceptable principles, the court does not see itself authorized to review the validity of legislation by the Knesset, aside from cases where there is a formal argument as to the manner of the law’s enactment.

 

D.        1.         Exercising a basic right and implementing it de facto cannot be absolute, as there may be extreme circumstances created where exercising a particular right by one conflicts in those same concrete circumstances with the lawful right of another or become a serious and immediate risk that must be prevented.

            2.         Restricting liberties, including the right to be elected, requires direct and explicit legislation that would create clear limits and would not leave the matter to unfettered discretion of some administrative authority or another.

3.         Such legislation ought to include two substantive components: one, which would express the actual granting of the formal power, and the other which would define the circumstances under which it may be exercised.

4.         The possibility of legislation that would limit the right of lists that seek to put the mere existence of the state at risk to participate in elections does not raise difficulties on a principle level. However to the extent that there are attempts to expand the circle of the type of lists to be barred in advance from participating in elections process, the implication of such legislation on the very existence and realization of the fundaments of democracy would necessarily grow.

 

E.         1.         The amendment to the Basic Law: The Knesset as reflected in section 7A should be interpreted from within it according to its language and context and on the basis of the purpose of this piece of legislation.

            2.         The nature of the issue addressed by section 7A of the Basic Law is the limit of a constitutional basic right which carries by its nature the standard for the appropriate interpretation of the provision narrowly, strictly and limitedly and that its instructions not be implemented but for in extreme cases.

            3.         Such interpretive approach does not conflict with the written law. It is an understanding of the legislative purpose which did not seek to minimize protection of liberties but to protect them in light of a real risk.

 

F.         1.         Section 7A does not address the goals and action that reflect the nature of the list and which are a natural outcome of its identity. It targets phenomena such as those listed in paragraphs (1) to (3) of section 7A, which are dominant characteristic central among the aspirations or activities of the list, which for their purpose the list exists and acts and for whose advancement it seeks to participate in the elections.

            2.         In designing the elements of section 7A of Basic Law: The Knesset, the legislature did not include the element of a clear and imminent danger or of a probable possibility for realizing the danger reflected in the goals or actions of the lists, or any other similar test which ties between the wrongful action and the possibility of its materialization.

            3.         The term “explicitly” in section 7A of Basic Law: The Knesset refers to open and declared things, but also when one wishes to rely on implicit information, the final conclusion must be clear and unequivocally point to the issue being included among those listed in section 7A among the dominant characteristics of the list and its tendency to translate its goals into action.

            4.         The evidence in such case must be clear, unambiguous and persuasive.

 

G.        1.         There is not much to the argument as to a seeming conflict between the different paragraphs of section 7A of Basic Law: The Knesset. The existence of the State of Israel as the state of the Jewish people does not contradict the State’s democratic character, and these two can co-exist with complete harmony.

            2.         Incitement to racism can lead to barring a list from participation in elections, even if the alleged incitement seems to be done out of the goal to keep the State of Israel existing as the state of the Jewish people. The legislature’s premise is that the State of Israel can exist as the state of the Jewish people without incitement to racism.

            3.         Under the circumstances here, the goals and actions, attributed to the Second Appellant, implicate the principle that establishes the rights of the citizens of the state to vote and to be elected, which derives from the democratic nature of the state.

 

H.        1.         The legislature did not include in Basic Law: The Knesset a definition for the term “racism.” Under these circumstances, we may be assisted, among others, but the definition included in section 144A of the Penal Act 1977 in order to identify the elements of the phenomenon and in order to examine the Appellant’s goals and actions.

            2.         It is possible for a similar linguistic term to be interpreted differently across two different pieces of legislation, but it is all generally influenced by the legislative context and the legislative purpose of the law. Additionally, there is no converse interpretive rule that the same term in different statutes must lead to adopting a different and distinct interpretation for that term in each of the statutes.

            3.         The argument that “racism” refers only to distinctions and differences on a biological level – that is based on distinctions along the lines of the human races – must be rejected. Persecution in all its forms, whose reasons may be nationalistic, is included nowadays within the common meaning of the phenomenon of racism.

 

I.          1.         The Act for Correcting Administration Procedures (Decisions and Reasoning) 1958 is irrelevant under the circumstances here, whether in light of establishing the body which is entitled to the reasoned response or whether in light of the definition of a “public employee” in section 1 of the Act.

            2.         Following HCJ 620/85, when a collective body – such as the Knesset – is concerned, a body that is under no obligation to give reasons for its decisions, one can infer to some extent as to its considerations from reviewing the minutes of its discussions.

            3.         Under the circumstances, the Court has all the material that was before the Central Elections Committee, including the minutes of the discussions where the committee members expressed their reasoning. From the substantive review one may well surmise the basis for the decision to bar and the Second Appellant was aware of this.

 

J.          1.         When subjecting the decision of the Central Elections Committee to judicial review, the Court examines whether the process of the discussion was lawful. A lawful discussion means, generally, that the rules of natural procedure were not violated, that the procedures established by the legislation governing the committee or that were set out in its guidelines were maintained, that the decision was given by those authorized to do so, and that it fits the authority of the decision maker.

            2.         The Court further examines whether the Central Elections Committee exercised its authority while using it for its purposes. When no mistake in law occurred and when the decision is not flawed or influenced by fraud, the questions considered are whether the decision was given on the basis of evidence that supported it and whether it did not violate the law for another reason. The Committee must exercise its authority while using it for its purposes. This duty is comprised of several elements and they are that no irrelevant factors were considered, that the Committee did not ignore relevant information and that the decision was not so extremely unreasonable that a reasonable committee could not have made and that it was not proven that exercising the authority was merely an arbitrary act.

            3.         The political configuration of a body that is formed in order to organize the elections and exercise authorities under the Knesset Elections Act [Consolidated Version] when party activity is at its highest, it possibly carries natural incidental outcomes. Those who expect that a body comprised of clearly political elements would operate in a manner in which a court does, conflates one with the other.

            4.         Under the circumstances here, the Second Appellant’s arguments as to the self-interested considerations of the members of the Central Elections Committee and their parties and as to their lack of good faith are merely hypotheses and speculations by the Appellants, which are generally established by the structure of the system deciding as to bars and ineligibility. Should the decision be found by a court to be justified on its merits in light of the material before the court, this would undermine the meaning of the above arguments.

 

K.        1.         Under the circumstances, the list of the Second Appellant was lawfully barred by the Central Elections Committee because its publications, its speeches, its proposals and its actions or an incitement to racism as well as an undermining of the State’s democratic character, as provided by section 7A of Basic Law: The Knesset.

            2.         The level of activity by the Second Appellant, in all its forms, the extremity in presenting the issues and the actions that accompany them, and the serious distortion of the State’s nature and governance as a result, all paint the goals and actions the excessive seriousness that is sufficient in order to base the decision of the Central Elections Committee.

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

 

 

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

 

Election Appeal 1/88

 

Before their Honors:     President M. Shamgar

Deputy President M. Elon Justice M. Bieski

Justice S. Levin Justice D. Levin

 

 

Appellants: 1. Moshe Neiman,

2. The “Kach” Party

 

 

v.

 

 

Appellee:      The Chairman of the Central Election Committee for the 12th Knesset,

 

Argued:        30 Tishrei 5749 (October 11, 1988)

2 Cheshvan 5749 (October 13, 1988)

Decided:       7 Cheshvan 5749 (October 18, 1988)

 

 

On behalf of the Appellants: Adv. A. Papo

 

On behalf of the Appellee:     Adv. D. Beinish, Deputy State’s Attorney; Adv.

N. Arad, Director of the Department Handling Cases Filed with the High Court of Justice for the State’s Attorney’s Office

 

 

JUDGMENT

 

 

 

President M. Shamgar

 

1.5,1988,for12thpursuantunder63of5729/1969determined party not run because violationof7aofday,ofparty’spursuant64(a)ofpartyfromparticipatingongroundsviolationof(2)(3)of7aofaresultofdecision,rightunder64(a)of

2.fora ofreasonsoverruledecisionofhisorder.

3.(a)beginningofhearing,apreliminaryrequestforofonpanelrecusefromhearing,requestdenied,reasonforpostponed.firstdecision.

(b)ourdecision,ofrequest

 

made along with the other justices on the panel believe there is no reason for any justice to recuse himself from this case. Constitutional issues, like any other legal issue, frequently appear before this Court, and, on occasion, two parties may reappear as parties before this Court. Sometimes, a party may reappear after appearing before this Court sitting as either the High Court of Justice or as the Court of Appeals. The appealing party in this case, a political party in the Knesset, or its leaders, has petitioned this Court sitting as the High Court of Justice a number of times. It is, therefore, reasonable to assume that most of the judges on this Court have already heard a case in which the [Kach] party was a litigant. In many of these cases, if not all of them, questions involving the objectives and the conduct of the Appellant have been raised and adjudicated by various panels of this Court.

An opinion expressed by a judge in the context of a decision of the High Court of Justice addresses the specific issue raised by a particular case or a given time. The nature of the judicial role is to be open to arguments designed to shed light on a set of factual circumstances or to develop a legal theory. A judge is not disqualified by the mere fact that he has already adjudicated the legal issue in question.

Moreover, like in the U.S., the “rule of necessity” allows judges to sit in judgment in cases affecting the judiciary (See United States v. Will, 101 S.Ct 471, 480 (1980)). If in a case such as this Court members recused themselves, the Court would essentially deny the petitioner the ability to have his day in court (See State

v. Sage Stores Co., 157 Kan. 622 (1943)). The highest judicial authority never exhausts itself and can never become unapproachable because a litigant has turned to it too many times, either by appeal or petition. It is not superfluous to add that in this case there are only one or two judges on this Court who have never sat in a

 

case to which the Appellant was a party, and it is inconceivable that we would come to a point at which this Court would be unable to hear the case of the Appellant or any other concerned party (See CrimA 323/76 Nir v. State of Israel, IsrSC 30(3) 592, 594, n.7). If we were to adopt another approach, we could come to the untenable situation in which we would not be able to adjudicate such cases. As the U.S. Supreme Court has said, “There was no other appellate tribunal to which, under the law, he could go” (Evans v. Gore, 40 S.Ct 550, 551 (1920)).

(c)

  1. (a) In his first argument, counsel for the Appellants challenged the validity of Section 7a, added in 5785/1985 as Amendment 9 to the Basic  Law:  The Knesset. It reads:

Prevention of participation of candidates’ list

 

7A. A candidates’ list shall not participate in elections to the Knesset if its objects or actions, expressly or by implication, include one of the following:

  1. negation of the existence of the State of Israel as the state of the Jewish people;
  2. negation of the democratic character of the State;

 

  1. incitement to racism.

 

Adv. Papo claims that Section 7a is void because it contradicts Section 4 of the same Basic Law, which the legislature has granted superior status. In other words, he argues that disqualifying a party from participating in Knesset elections violates Section 4’s guarantee of equality, which, as mentioned is Section 4, is among the most basic foundations of our electoral system. Because [Section 4] states that it cannot be amended except by a majority of Knesset members, its provisions should be viewed not only as protected, but also as superior to any other legislation. Therefore, any legislation found to be inconsistent with Section 4 should be nullified by this Court.

  1. We do not accept this claim. Section 4 sets forth the principles of the Israeli election system and dictates, among other provisions, that the elections should be equal (See HCJ 98/69 Bergman v. Finance Minister, IsrSC 23(1) 693). However, Section 4 informs us how the legislature can legislate while deviating from the principles set forth by Section 4. It states, “This Section cannot be amended except by a majority of members of the Knesset.” This means that it can be amended so long as a majority of (more than 60) Knesset members vote to do so. It does not matter whether the deviation from the principles set forth in Section 4 is significant or not, because the legislature, allowing for the amendment of the Section, did not restrict the nature or extent of the potential amendment. By way of an absolute majority vote, various provisions have been enacted in the election laws that may constitute a deviation from the norms of equality (See, e.g., 5729/1969 Knesset and Local Elections Act (on funding, limiting expenses and auditing) (as amended, 5730); 5769/1969 Elections Law (on the validity of laws); see also, HCJ 260, 246/81 Derekh Eretz Organization v. Broadcasting Authority, IsrSC 35(4) 1; HCJ 141/82 Rubinstein v. Speaker of the Knesset, IsrSC 37(3) 141).

 

Therefore, Section 4 does not prevent the legislature from enacting provisions that deviate from the principles set forth in Section 4, so long as it does so in a manner consistent with the Basic Law.

Furthermore, Section 46 of Basic Law: The Knesset explicitly allows for contradicting legislation which implicitly changes Section 4. Once it is deemed permissible to make an implicit change, there is no longer a basis for the Appellants’ counsel’s additional claim that any legislation changing a norm established by Section 4 must explicitly say that the new law deviates from Section

4.

  1. Finally, counsel for the Appellants also confirmed that Section 7a was passed by a majority of Knesset members. In light of what we have said, nothing in Section 4 requires us to overturn Section 7a.

5.

(b) This claim also does not change our position as to the validity of Section

 

7a. The accepted principles of this Court do not allow it to invalidate legislation passed by the Knesset, except in cases formally challenging the procedure by which the law was adopted (See, e.g., HCJ 98/69). In this context, I see no reason to address this constitutional argument in depth. I would add though, that as far as I am concerned, this argument is essentially the same as the previous one comparing Section 7a and Section 4.

6.

7.

 

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 utilizing 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…

The decision then goes on to cite the enlightening quote from Justice Brandeis in Whitney v. California, 274 U.S. 357, 377 (1927), which addresses the issue of limiting free speech:

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.

 

Basic rights and their application cannot be absolute because of the likelihood that in extreme circumstances the use of such rights by one person will conflict with the constitutional rights of another or may create extreme and immediate danger that must be stopped. However, the authority for establishing general limitations or limitations in specific circumstances rests with the Knesset (HCJ 337/81 Mitrani v. Transportation Minister, IsrSC 37, 337).

In other words, limiting these freedoms, including the right to be elected, requires direct and explicit legislation, clearly delineating the limitations without allowing for unlimited discretion on the part of administrative or other authorities. We note, however, that in order to safeguard and honor these freedoms not only is a formal statute necessary, but also the establishment, within the statute, of the standards by which these powers can be activated. Such statutes must have two essential components. The first expresses the fact that formal authority has been granted, and the other clearly defines the circumstances in which such authority can be exercised.

It was stressed that the possibility that legislation limiting the right of parties wishing to harm the very existence of the State to participate in elections (see EA 1/65) is not, theoretically, difficult in principle; however, as one seeks to expand the number of parties excluded from the elections, the ramifications of such legislation upon the continued existence and realization of our basic democratic foundations will necessarily grow as well.

8.

 

here,  the  explicit  intent  of  the  legislature  prevails,  especially  because  we  are dealing with legislation that was enacted pursuant to a detailed ruling of this Court.

  1. The beginning of Section 7a refers to the sources from which indication of the negative behavior described in subsections (1), (2) and (3) can be inferred. In that context, the legislature refers to goals or actions. This means that we are dealing with the political party’s outlook and opinions which express its goals or, alternatively or additionally, the party’s conduct which demonstrates and reflects its character. A party’s objectives can generally be derived from its formal platform or from its advertisements, speeches or opinions expressed within political frameworks.
  2. The legislature added that the three grounds for disqualification, outlined in subsections (1) to (3), can be expressed either explicitly or implicitly. The terms “explicit” and “implicit” includes that which is clearly expressed and that which can be derived from the circumstances or concluded from a stated goal or action that, by itself, are not blatant expressions of unlawful conduct or intent pursuant to subsections (1), (2) or (3).
  3. In setting forth the principles of Section 7a, the legislature did not require the existence of clear and present danger, the probability of danger arising from the objectives and conduct of the party in question, or any similar test that looks to the connection between the condemned action and the possible results. Through this, the legislature changed the legal status until the enactment of Basic Law: The Knesset (amendment no. 9).
  4. Section 7a deals with objectives and conduct, but it does not become, as a result, a technical provision that takes effect only in certain  circumstances without any interpretive guidelines. The essence of such a matter, the limitation of a basic constitutional right, inherently carries a standard of interpretation that must

 

be strict and narrow, and Section 7a should be reserved for only the most extreme cases. This interpretive approach does not conflict with the statute, but is rather a result of a proper understanding of the purpose of the statute, which does not seek to limit  freedoms, but to protect them  against  actual danger. In other words, [Section 7a] should be applied in a way that takes into account the great weight given to our fundamental liberties.

  1. As previously mentioned, [Section 7a] includes both objectives and conduct. When we refer to “objectives” we mean ideological goals that the political party in question wants to implement and that reflect the party’s primary platform. As we understand it, the Section refers to objectives and conduct that reflect the character of the party, and those that flow naturally from the party’s identity. The authority granted by Section 7a is not intended for marginal matters whose realization would be insignificant and inconsequential. Subsections (1) to

(3) refer to dominant characteristics that are central to the aspirations or to the actions of the party characteristics that represent the reason for the party’s establishment and because of which the party wants to be elected. [We refer to] a platform or behavior that is prominent and typical of such a party, though it is certainly possible that they will be accompanied by other objectives and conduct as well. In any event, the facts should indicate that the objectives or conduct, as stated in Section 7a, are central among the objectives and conduct of the political party in question and that there is intent to implement the objectives and realize their [goals].

All this concerning the objectives and conduct must be clearly seen, and there must be no doubt that it falls under the categories specified in subsections (1) through (3). This also applies, mutatis mutandis, to the interpretation of the term “implicitly.” As noted, the meaning of that provision is that at times, we can derive

 

the objective from the circumstances that demonstrate the true nature of a particular action without an accompanying explicit declaration or statement. Sometimes we can arrive at a conclusion through logical reasoning even without an explicit declaration. On the other hand, the expression “explicitly” refers to clear and declared matters. However, even when arriving at a conclusion based on implicit data, the final conclusion must be clear and unequivocal that the behavior in question is included in subsections (1) through (3); that the trait is among the dominant characteristics of the party; and that it intends to act upon its objectives. Once again, the evidence in such a case must be clear, unequivocal and convincing.

9.

  1. As we have mentioned, Adv. Papo claims that there is an internal contradiction between subsections (1) and (2), since denying the democratic nature of the State (subsection (2)) can stem from the desire to maintain the State as the state of the Jewish nation (subsection (1)). Under this approach, the desire to be loyal to one of the stated goals that the legislature wishes to protect can also be what causes a party to be disqualified. Furthermore, within his critique of Section 7a, he argues that the term “democratic” in subsection (2) and the term “racism” in subsection 3 are not properly defined.
  2. The democratic nature of the State of Israel has been well established since its founding. This is clear from the language of the Declaration of Independence itself, which expresses the basic foundations of the State until this day (HCJ 73, 78/53 Kol Am, Ltd., Al-Etihad Newspaper v. Interior Minister, IsrSC 7, 781, 784; see also, Dr. Z. Segal, Israeli Democracy, Constitutional Principles in

 

the Regime of the State of Israel, at 262, (Ministry of Defense, 5748)).

 

The democratic concept as well as its implementation is reflected by the government and the legal and practical status of the State’s citizens and residents and, among other things, the principle of the rule of law, which includes equality before the law. The characteristics of democracy flow through the State’s political, social and cultural makeup. A great expression of this is the guarantee of basic rights and freedoms.

  1. The establishment of Section 7a expresses the desire of the legislature to block, in the most extreme cases, activities that intend to uproot the basic principles of the State. As stated in HCJ 620/85 Mitri v. Speaker of the Knesset, IsrSC 41(4) 169, 210:

The purpose of Section 7a is to create a separation between legitimate parliamentary activities and actions of the type described by the statute. It is as if it states that Knesset members are not allowed to take part in parliamentary positions adopting such objectives or conduct.

The history of the Jewish people is the basis for why we see the importance of eliminating racism, so much so that an explicit prohibition is enshrined in our constitution.

10.

The lack of such conflict has already been emphasized by President Agranat

 

in EA 1/65 at 385:

 

There is no doubt, as the Declaration of Independence has already made clear, that not only is Israel a sovereign, independent state, which seeks freedom and is characterized by a government of the people, it was also established as a “Jewish State in the Land of Israel.” The State was established, first and foremost, by virtue of “the natural and historical right of the Jewish people to live as any other people in its own sovereign state, and its [establishment] was the realization of the yearning of generations for the redemption of Israel.”

My colleague, Deputy President Elon also addressed this matter in EA 2, 3/84 at 297:

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 [is expressly found] 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.

The Appellants’ attempt to demonstrate a contradiction between subsections

(1) and (2) is doomed to failure even if we apply it to the purpose of the legislation. Each subsection is self-sufficient and exists alongside the other. Not only is there no contradiction between them, but we also cannot assume that the legislature intended for one of the provisions to diminish the illegal nature of an objective or conduct just because a party wishes to advance one provision that the legislature wishes to protect at the expense of another. To illustrate, from the wording of Section 7a it seems that incitement to racism (a term we will discuss further) can disqualify a party from participating in an election,  even if the incitement  is supposedly driven by the will to maintain the State of Israel as the state of the Jewish nation. The desire to maintain the State, as stated in subsection (1) cannot serve as a license for racism. The presumption of the legislature, with which we agree, is that it is possible for the State of Israel to be the state of the Jewish nation without inciting racism.

11.

 

There is no reason for us to fully define the term “democracy” in this context. The question before us does not require this, and it will suffice to address the implication of the Appellants’ objectives and conduct upon a citizen’s right to vote and be elected, which undoubtedly stems from the democratic nature of the State; and, all the more so when such objectives and conduct are part of a campaign that aims to harm the equality that exists between citizens in both rights and stature.

We already stated that the right to vote and to be elected is one of the foundations of a democratic regime, and, in this context, there is no reason to

 

expand upon this.

 

12.

 

When amendment 12 to the Basic Law: The Knesset was proposed, another bill, 5745/1985 amendment 24 to the Penal Code, was proposed as well. This second law was passed in the Knesset, although slightly after the amendment to the aforementioned Basic Law and is now part of Section 144a-144e of the 5737/1977 Penal Code. As explained in the comments for the then-proposed amendment 24 to the Penal Code, because incitement to racism has become a troubling phenomenon, there is an educational need to amend the Penal Code to explicitly prohibit incitement to racism, instead of settling for the more general prohibitions that were listed in Sections 133 and 134 of the Penal Code. The 5746/1986 amendment 20 to the Penal Code includes a definition of the term “racism,” and this is what is says (Section 149a of the Penal Code):

Racism is the persecution, humiliation, degradation, open hatred, hostility, or violence, or causing strife for a certain group or portions of the population because of their color or their membership in a certain race or national- ethnic origin.

No other law defines the term in question.

 

Additionally, the attorney for the Appellee, Assistant Attorney General Dorit Beinish, has brought to our attention the 1966 Convention on the Elimination of all forms of Racism as well as foreign criminal laws defining the term “racism.”

  1. As we have mentioned, the legislature has not defined the term “racism” in the Basic Law: The Knesset, and I do not believe it is necessary to come up with an exclusive definition of the term. For our purposes it suffices to determine whether  the  objectives  and  conduct  in  question  are  included  in  the  term  in

 

question. I believe we can look, inter alia, to the definition in Section 144a [of the Penal Code] to identify some of the characteristics of the aforementioned phenomenon in judging the nature of the objectives and conduct of the Appellants.

Section 144a of the Penal Code includes a definition for the term “racism.” At the beginning of the section its states that the two definitions in it refer to “this article,” which directly refers to Chapter 8, Article 1(a) of the Penal Code. Nevertheless, I see no reason for us not to use this definition in order to help us understand Section 7a of the Basic Law: The Knesset, without creating an exclusive list. The amendments to the Basic Law: The Knesset and to the Penal Code were proposed at the same time to further the same goal, namely, for the first time, to combat racism in different ways. The two amendments are explicitly in pari materia, meaning that they are meant to prevent the same behavior, and only differ as  to  where they  apply.  One of the  amendments was enacted to  fill a legislative void found by this Court (first mentioned in EA 1/65, and then in EA 3, 2/84), and the second amendment was enacted to stress the wrongness of racism by making it a separate crime listed in the Penal Code.

While we accept that a term can be interpreted differently for different pieces of legislation, they are all influenced by the legislative context and the purpose of the law (See CA 31/63 Feldberg v. Director of Tax Law Relating to Land Value Increase, IsrSC 17, 1231, 1235; HCJ 442/71 Lansky v. Interior Minister, IsrSC 26(2) 337, 349). There is no contradicting rule of interpretation compelling the interpretation of a term differently than the way it is interpreted in other statutes (HCJ 441/86 Masada Ltd. v. Appraiser of Large Factories, IsrSC 40(4) 788, 798 note b).

The fact that a definition is created for the needs of the statute in which it is found, does not prevent us from interpreting the term by using its definition in

 

another statute, when the definition is applicable under the circumstances, regarding its subject, context and legislative purpose (CA 341/80 Eili v. Sasson, IsrSC 36(3) 281).

  1. Adv. Papo claims over and over again that the term “racism” refers only to differentiations and distinctions based on biological features that distinguish between different races of people.

This claim is unfounded. As we have seen, the Penal Code definition of the term also refers to unlawful acts, as defined there, against people of different national origins. Likewise, the International Convention on the Elimination of All Forms of Racism and legislation in other countries, including Austria (section 283 and 302 of its 1974 penal code), Belgium (1981 law), Bulgaria (section 35 of their constitution and section 196 of its penal code), Denmark (section 266(b) of its penal code), Finland (chapter 13, article 5 of its penal code) and France (sections 72-545 of its 1972 Law Against Racism), as well as other examples. Different forms of persecution based on nationality are widely accepted today as a form of racism.

  1. Adv. Papo also claims that “incitement” is not listed among the prohibited actions in the provision defining racism. To support his claim, he turns to the Knesset debate regarding the suggestion to include incitement in the definition in the new Section 144a of the Penal Code, but notes that the suggestion was ultimately not accepted.

I do not see how the [Knesset] debate helps us interpret Section 7a. Subsection (3) explicitly mentions incitement; therefore, there can be no doubt that in the context, the legislature refers to incitement. Furthermore, even in the case of the Penal Code, such a claim cannot stand because the criminal offense (unlike the definition of “racism”) explicitly refers to publicizing with the intent to incite.

 

13.

14.

  1. The 5719 law is not relevant to this issue because of those entitled to a reasoned response, [who, in this case, are those seeking a disqualification], and in light of the definition of the term “public servant” under Section 1 of the law.
  2. The question of when the Knesset plenum or a Knesset committee must provide a reason for its decisions has been addressed by this Court in HCJ 306/81 Flatto-Sharon v. Knesset Committee, IsrSC 35(4) 118, and this judgment also applies to decisions made by the Election Committee. As then-Deputy President Y. Cohen stated (at 133):

The decision of the Knesset committee regarding the suspension did not provide any reasoning. I see no problem with this, as we are dealing with a body made up of various members, each of whom certainly had their own reasons. The decision is a reflection of the collective will of the members who voted in favor. To a certain extent we can find out the reasons by examining the transcripts of the hearings before the committee…

 

This issue came up again in HCJ 620/85 where my honored colleague, Justice S. Levin said (Id. at 285):

…When we refer to a collective body such as the Knesset, which has no requirement to rationalize its decisions, we can, to a certain extent, understand its considerations by examining the transcript of its hearings (HCJ 306/81).

We also have all the information that was before the committee, including transcripts from the hearings in which the members stated their reasoning. Included in the transcripts are the exhaustive and well reasoned summaries of the committee’s chairman. Thus, we see that the reasons and the background of the committee are available to us and to the Appellant.

  1. There can be no doubt that, practically speaking, the underlying reason for the committee’s decision can be understood, and that the Appellant was well aware of it. When informing the Appellant of its decision, the committee cited the paragraphs of Section 7a that it believed to be relevant to the matter and notified the Appellant of its right to appeal the decision as required by the Knesset Elections Act.
  2. Furthermore, as the court hearing this appeal, this Court has the right to reach, based on the material before it, any decision that the Committee could have made (HCJ 86/58 Boganim v. Chief of General Staff of the IDF, IsrSC 12, 1653, 1663, note d). Essentially, this Court, hearing such an appeal, has a lot of authority and, in light of this, one reason or another does not hold us back from reaching a decision on the merits.

Therefore, claiming  that there is a lack of reasoning in the decision is baseless.

 

15.

16.

 

the publicity.

 

  1. The claim of discrimination in the case before us is unfounded. This time, for the first time, there were many requests to disqualify parties, including that of the Appellant, which, asked to disqualify all the other parties. Therefore, from a factual standpoint, there is no basis for the claim that the committee only took up the Appellant’s case.
  2. If [the members of the committee] indeed met internally with their respective parties, a claim which has been denied, it would probably reveal a side effect of the statutory arrangement in the Knesset Elections Act, according to which, the Central Election Committee, which is made up of representatives of the parties, is the body that determines whether a particular party is approved or disqualified. In other words, it is a natural byproduct of the political segment of the committee, established to organize the elections and that also has authority pursuant to Section 63 of the aforementioned act, when political activity is at its peak (See also, HCJ 731/84 Kariv v. Knesset Committee of the Knesset, IsrSC 39(3) 337, 338 (S. Levin, J.); HCJ 620/85 at 242 (Deputy President). In both EA 1/65 and EA 2, 3/84, this Court has pointed out the problem of authorizing a political body to disqualify political parties. As it appears from [the law], the legislature disagrees and has left the current arrangement as is, even after enacting Section 7a. This demonstrates the importance of the right to appeal to the courts, which is guaranteed by the Knesset Elections Act.

Nevertheless, one cannot expect a politicized committee to conduct itself in the same way as a court.

  1. Regarding the claim that the committee members took into account their own interests and that of their respective parties, there has been no evidence from which we could conclude anything more than what we said above regarding the

 

allegation of bad faith. All we have are the assumptions and speculations of the Appellants, which, as we have said, are essentially anchored in the structure of the system by which disqualifications are decided. If we find the decision to be just on its merits based upon the information before us, the aforementioned allegations regarding bad faith and self-interest are irrelevant.

17.

  1. The general claim of Adv. Papo that we cannot take into account the legal actions of the Appellant (for example, proposing legislation, protesting with a permit, etc.) is unacceptable. When the legislature refers, in Section 7a, to objectives and conduct denying the democratic nature of the State or inciting racism, it did not distinguish between objectives and conduct according to the standard suggested by the Appellant, which distinguishes between legal actions and those which are illegal. The nature and content of an objective or behavior and their results are what make the determination, because the legislature wanted to prevent the occurrences described in Section 7a. Incitement against a portion of the civilian population and calling for their rights to be denied; suggesting that close relationships between Jews and members of another nation be outlawed; calling for discrimination  against  members  of  another  nation  in  matters   of  criminal

 

punishment; revoking their right to petition the High Court of Justice; separating where they can bathe; revoking their social rights and forbidding them  from serving in the army, while hurting and insulting those who already serve – all these actions and anything similar are all clear indicators of anti-democratic or racist acts. The same applies even if these suggestions are stated in a newspaper article which is published with a proper license or if the idea surfaces by way of proposed legislation in the Knesset (HCJ 620/85 at 210).

  1. My colleague, the Deputy President, has already extensively dealt, on the basis of his profound knowledge, with the Appellant’s claim requesting recognition that its goals and actions are justified under Jewish law, and dismissed [it] entirely. I will not repeat all of what he had to say on the matter, which is written in EA 2, 3/84 at 298 on, but I will quote a part of his decision (at 301-302):

[Jewish law] define[s] 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 civilized 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 [Jewish law] 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 ways are ways of pleasantness and all its paths are peace.

18.

 

  1. The objectives or conduct of a political party are included in subsections (1), (2) or (3).
  2. The objective in question is central and essential to the party’s platform and not merely a subordinate or marginal issue; the objective must reflect the party’s identity. The same applies, mutatis mutandis, regarding conduct, as it must be an act that prominently expresses the nature and character of the party.
  3. The party is acting to implement its goals in order to turn what is currently conceptual into a realization.
  4. [The party’s] participation in the elections is a method for the party to realize its objectives or further its conduct.
  5. The negative conditions listed in subsections (1), (2) and (3) manifest themselves with great gravity and are taken to the extreme.

 

  1. The evidence of the presence of all of the above must be clear, convincing and unequivocal.

Throughout the examination of the relevant factors listed above, it must always be remembered that it is preferable to allow the freedoms than to limit them.

19.

20.

The Appellant wishes to deprive a portion of the citizens of the State, which it distinguishes by its national origin and ethnicity, of their right to vote, to be elected and to be appointed to government positions. Stripping such rights is a clear and unequivocal infringement upon the very soul of democracy, which is based on equal political rights among all citizens, irrespective of race, religion, nationality or gender. The comparison to other countries who, for example, have only allowed women to vote in recent years, and who, even prior to that were

 

considered democratic, is pointless. We refer to the definition of democracy which is accepted today and in accordance with our own view, according to which, for example, not allowing women to vote would be considered a distinctly anti- democratic act, which no one would even think of doing. The same applies to the idea of collectively depriving citizens belonging to a certain group of their rights, which is also an absolutely anti-democratic act that one should not come to terms with.

The Appellant’s objectives and conduct are also clearly racist: systematically fanning the flames of ethnic and national hate, which causes divisiveness and animosity; calling for the forceful deprivation of rights; systematic and intentional degradation directed towards a specific part of the population selected because of their national origin and ethnicity; [calling] for their humiliation in ways very similar to the terrible experiences of the Jewish nation. All these reasons suffice, in light of the evidence presented, to come to this conclusion regarding incitement to racism. The extent of the actions taken by the Appellant in all its forms; the extremism through which it presents the action accompanying it; and the terrible distortion of the nature of the State and its regime that flow from it point to the severity of its objectives and conduct that requires that we affirm the decision of the Central Election Committee.

We have decided to dismiss the appeal.

 

 

Decided today, 7 Cheshvan 5749 (October 18, 1988)

Shibli v. Shibli

Case/docket number: 
HCJ 85/47
Date Decided: 
Friday, January 13, 1950
Decision Type: 
Original
Abstract: 

Under the Palestine Order in Council, 1922, a number of Christian "communities", including the Greek Catholic community but not including the Protestant community, were recognised and given the right to hold courts of their own with jurisdiction (which in some cases required the consent of the parties) in matters of personal status over members of their own community.

               

The petitioner was a Protestant and had married the first respondent, a member of the recognised Greek Catholic community, in a Greek Catholic church. There was one child of the marriage. The parties quarreled soon after the marriage and their disagreements led to incessant litigation. Upon an application by the husband to the Greek Catholic Court for (inter alia) custody of the child of the marriage, the wife refused to recognise its jurisdiction over her, claiming not to have been at any time a member of her husband's community.

               

The Greek Catholic Court granted custody of the child to the husband, but the wife refused to hand over the infant to him and returned to her mother's house in Nazareth. Since religious courts have no power to execute their own judgments, the only way the husband could recover the child was through the Chief Execution Officer of the civil court to whom an application was duly made by the husband.

               

The Execution Officer at first refused to order the execution of the order of custody, but after hearing evidence, changed his mind and made an order that the wife should hand over the child to the husband. The wife then petitioned this could to set that order aside, the husband and the Chief Execution Officer being respondents to the petition.

 

Held: that the Chief Execution Officer could change his decisions:

               

that the Greek Catholic Court might have had jurisdiction had this been a case where no consent to its jurisdiction was required, but as in this case such consent was required and had not been given, the religious court had acted without jurisdiction: that the Chief Execution Officer was wrong in ordering the execution of the order of custody.

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

H.C.J  85/47

 

 

MOUNEERA SHIBLI

v.

JAMIL SHIBLI and THE CHIEF EXECUTION OFFICER, DISTRICT COURT, HAIFA

 

 

 

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

[January l3, 1950]

Before: Smoira P., Assaf J., and Cheshin J.

 

 

 

Family Law - Personal Status - Jurisdiction of Religious Court of Greek Catholic Community - Custody of infant - Chief Execution Officer - Power to change decisions - Limitations on right to hear evidence.

 

                Under the Palestine Order in Council, 1922, a number of Christian "communities", including the Greek Catholic community but not including the Protestant community, were recognised and given the right to hold courts of their own with jurisdiction (which in some cases required the consent of the parties) in matters of personal status over members of their own community.

               

                The petitioner was a Protestant and had married the first respondent, a member of the recognised Greek Catholic community, in a Greek Catholic church. There was one child of the marriage. The parties quarreled soon after the marriage and their disagreements led to incessant litigation. Upon an application by the husband to the Greek Catholic Court for (inter alia) custody of the child of the marriage, the wife refused to recognise its jurisdiction over her, claiming not to have been at any time a member of her husband's community.

               

                The Greek Catholic Court granted custody of the child to the husband, but the wife refused to hand over the infant to him and returned to her mother's house in Nazareth. Since religious courts have no power to execute their own judgments, the only way the husband could recover the child was through the Chief Execution Officer of the civil court to whom an application was duly made by the husband.

               

                The Execution Officer at first refused to order the execution of the order of custody, but after hearing evidence, changed his mind and made an order that the wife should hand over the child to the husband. The wife then petitioned this could to set that order aside, the husband and the Chief Execution Officer being respondents to the petition.

               

                Held:      that the Chief Execution Officer could change his decisions:

               

                    that the Greek Catholic Court might have had jurisdiction had this been a case where no consent to its jurisdiction was required, but as in this case such consent was required and had not been given, the religious court had acted without jurisdiction: that the Chief Execution Officer was wrong in ordering the execution of the order of custody.

 

Palestine judgments referred to:-

(1)   H.C. 52/31 - Abraham Elmaleh, as administrator of the estate of Jacob Danon v. Chief Execution Officer, Jerusalem and others, (1918-33), 3 C.O.J., p. 853.

(2)   H.C. 36/38 - Ali Sheikh Ahmad Attar and another v. Chief Execution Officer, Magistrate's Court Ramleh and another, (1938), 1 A.L.R., p. 343.

(3)   H.C. 98/41- As'ad Mantsour Abd el-Nour v. Chief Execution Officer, Jerusalem and anotherr (1941) S.C.J. 632.

(4)   H.C. 51/45 - Anton Shomali v. Chief Execution Officer, Jerusalem and another, (1945), 12 P.L.R., p. 443.

(5)   H.C. 22/39 - Zussman Shtark v. Chief Execution Officer, Tel Aviv and another, (1939), 6 P.L. R., p. 323.

(6)   H.C. 6/43 - Malakeh Nasri 'Amer v. Chief Execution Officer, Jerusalem and  another, (1943), 10 P.L. R., p. 78.

(7)   H.C. 7/44 - Labibeh Ibrahim Baqluq v. Salibeh Yacub Baqluq and another, (1944), 11 P.L.R., p. 128.

(8)   H.C. 83/46 - Mary Ni'meh Saffouri v. Shukri Salman and another, (1947), 1 A.L.R., p. 71.

(9)   H.C. 100/41 - Elia Shubeita v. Chief Execution Officer Jaffa, (1942), 9 P.L.R., p. 121.

(10) H.C. 105/45 - Moshe Golddenberg v. Chief Execution Officer, Tel Aviv and another, (1946), 13 P.L. R., p. 180.

(11) H.C. 35/46 - Lana Levi (Hezkia) v. Assistant Chief Execution Officer, Tel Aviv and another, (1946), 13 P.L.R., C. 328.

(12) C.A. 60/43 - Yedidia Mizrahi Barzilay v. Yedidia Tova (Nee Bauman), (1943), 10 P.L. R., p. 241.

(13) H.C. 63/44 - Abed Yousef Salman v. Assistant Chief Execution Officer, Jerusalem and another, (1944), 2 A.L. R., p. 792.

(14) H.C. 2/46 - Yousef Habib Khasho v. Chief Execution Officer, Jerusalem and  another, (1946), 13 P.L. R., p. 76.

 

Weil for petitioner,

Klug for first respondent,

Levi for second respondent.

 

            CHESHIN J. This is the return to an order nisi granted by this court, during the period of the Mandate, namely on August 21, 1947, which was directed to the second respondent requiring him to show cause why he should not refrain from executing a judgment of the Religious Court of the Greek Catholic Community for the return of an infant to the custody of the first respondent.

           

2. The record of the relations between the two principal parties is not in dispute, and the following are the main points :

 

A.    The petitioner, Mouneera Shibli, and the first respondent, Jamil Shibli, were married on September 20, 1942, in the Greek Catholic Church at Nazareth, according to the marriage laws and the ceremonies observed by that Church. Both of them were and still are Palestinian subjects; but the husband was and remains a member of the Greek Catholic Community, while the wife was a member of the Protestant faith before the marriage, and the pivot on which the whole of this case turns, as will duly appear, is whether upon her marriage any change took place in her personal status.

 

B.    The marriage was not a success and, ever since 1944, the husband and wife have been incessantly in the courts. The husband brings his claims before the Religious Court of his Community, while the wife brings her claims against him before the civil courts for maintenance for herself and for their child. One attempt to resume their domestic relationship, made in consequence of a maintenance order given by the District Court in Haifa, was also unsuccessful, and in due course the wife left her husband, taking their infant child with her, and returned to her mother's home in Nazareth. The husband then sued her in the Greek Catholic Religious Court for an order of restitution of conjugal rights (in Arabic, houkoum at-ta'a-l-zawjia). The wife did not answer the summons of the court, and on December 11, 1945, the court dealt with her husband's case in her absence and ordered her to obey her husband and return to his home in order that they might continue normal marital relations.

 

C.    The wife, who contested the jurisdiction of the Religious Court to try the matter, lodged an objection to the restitution order, and when her objection was rejected, she appealed to the Court of Appeal of the Greek Catholic Community; but her efforts proved to be in vain, and the order of "ta'a" was confirmed by the Community Court of Appeal on July 9, 1946.

 

D.    On July 18, of that year, the wife was called upon by the Execution Office in Haifa, to comply with the order, and when she refused to do so the husband once more applied to the Greek Catholic Court with a request to order the wife to deliver their infant child into his custody. On July 27, the order of custody was granted stating, inter alia, that the husband had reserved the right to demand separation a mensa et thoro from his wife and the cessation of her conjugal rights; and when it became clear to the husband that his wife was adamant in her recalcitrance and refusal to return to his home or to deliver the child into his custody, he lodged a further application (his third one) with the Religious Court, claiming an order of separation a Mensa et thoro. On November 29, the court acceded to the husband's application and held that the couple were to live separately.

 

E.    In the meantime, the husband continued the proceedings for the execution of the order of custody. The wife objected thereto before the second respondent, namely, the Chief Execution Officer in Haifa, on the ground that the order could not be executed, because the Religious Court had dealt with the matter without jurisdiction. The second respondent at first decided to uphold the petitioner's objection and directed that the order was not to be carried into effect; but after hearing the evidence of priests of the Greek Catholic Church from Nazareth and Haifa on the question of the wife's personal status, he changed his view, and on June 30, 1947, reversed his previous decision and directed the order of custody to be executed. The petitioner applied to set aside this last order and, as stated, the order nisi was granted.

 

3. The first question - of lesser importance - to arise in the course of the proceedings before us was : is the Chief Execution Officer entitled to alter decisions previously made by him ?

 

4. That question has already been considered on a number of occasions by this court (in the time of the Mandate) and answered in the affirmative (see, for example, Elmaleh v Chief Execution Officer, Jerusalem (1) and Attar v. Chief Execution Officer, Magistrate's Court, Ramleh (2)). The jurisdiction of the Chief Execution Officer to alter decisions previously made by him is based upon article 2 of the Execution Law1); and there is hardly a single matter that comes before the Execution Officer which is not subject to reconsideration by him. Moreover, this court (in the time of the Mandate) has stated several times that before a person petitions this court, he would be well advised to apply first of all to the Chief Execution Officer (or to any other public official of whose acts he complains) with a final request to alter the decision which, in the petitioner's opinion, is in detriment of his rights.

 

5. Dr. Weil submits on behalf of the petitioner, that even if the Chief Execution Officer is empowered both to reconsider a matter within his purview and also to alter his previous decisions in that same matter, hie is certainly not entitled to turn himself into a judge, hear the testimony of witnesses, receive evidence and proof and give judgment; and in the present case, the second respondent made the order he did after taking evidence from priests and making findings of fact. That, submits Dr. Weil, is beyond the jurisdiction of one who is appointed to execute, and to execute alone, the judgments of competent courts.

 

6. No one disputes that the Chief Execution Officer is not a judge trying a case, and he is not entitled to make findings on the actual dispute arising between the parties, or to alter findings made by competent courts. In Nour v. Chief Execution Officer, Jerusalem (3), this court (in the time of the Mandate) decided that, "if (an order is) given by a competent court that matter must be executed whatever (the Assistant Chief Execution Officer) may think about its merits or demerits." It is clear, therefore, that the function and powers of the Chief Execution Officer are severely limited: but is he without authority to consider any form of proof before making his decision? Even the case of Nour (3), above, does not go as far as that: in that case it is stated that the Chief Execution Officer has to execute judgments and orders made by a competent court, and how can the Chief Execution Officer determine whether a certain court (especially when it concerns a court of one of the religious communities in Israel) was competent to give the judgment under execution, it he does not take evidence and hear proof?

 

7. This is perhaps a not inappropriate occasion to point out to Chief Execution Officers the necessity for keeping strictly within the framework of the powers conferred upon them, and for taking care not to exceed the limits of those powers; for indeed, it was in this that the second respondent was at fault in the present case, as I will explain.

 

8. I have already mentioned that since the marriage took place in the Catholic Church and having regard to the Canons of that Church there is no objection to the second respondent hearing evidence on the question of the personal status of the petitioner from priests of the Greek Catholic Community. He did not, however, content himself with that, but went on to hear explanations and commentaries on dicta appearing in the judgment of the Religious Court. Thus, for example, at one point in the judgment, it is stated that: "Whereas she (the petitioner) ...being a non-Catholic, etc. ...accordingly, etc." Those words do not seem to be capable of more than one interpretation. But what did the second respondent do ? He heard a long explanation from a priest - the priest that delivered the judgment - as to the supposedly real intention behind those words, and concluded from that explanation that the fact that the petitioner is not a Catholic does not mean that she has ceased to be a member of the Greek Catholic Church. But that was not stated, neither expressly nor impliedly, in the actual judgment. Furthermore, that explanation, changing the passage which was quite unambiguous, provided one of the foundations on which the second respondent's final conclusion was based. Now, two ways are open to an execution officer: either the language of the judgment is clear, in which case it must be executed without that officer hearing extrinsic evidence; or it is not clear, in which event the provisions of article 6 of the Execution Law 1) must be applied. The Chief Execution Officer is not authorised to hear evidence either in order to discover the meaning behind words and their context, or for the purpose of interpreting a judgment which is clear.

 

9. In that respect, therefore, it seems to me that the second respondent was wrong in reading into a judgment an intention inconsistent with that expressed in clear words. But the question still remains: is this defect by itself a sufficient ground for quashing the second respondent's later decision and restoring his first decision? The answer to that must, in my opinion, be in the negative. For it is not to the second respondent's reasons that the petitioner objects, but to the actual decision itself; and if the material to be found in the affidavits of the parties and in the other exhibits produced to us in fact shows that the decision is erroneous, the court will reverse it in substantio, whereas if the decision was right, then the reversal of that decision and the revival of the decision that preceded it Should be like repairing a technical defect by means of a grave injustice - something we are hardly likely to do.

 

10. The arguments of counsel for the petitioner and the first respondent as to the merits of the case may be summarized thus: counsel for the petitioner contends that the order of custody is not subject to execution, in that it was made by a Religious Court without any substantive jurisdiction, and that the order itself is contrary to the principles of justice and equity. Counsel for the first respondent argues, on the other hand, that the Religious Court of the Greek (Catholic Community was competent to decide what it did, and that the order itself cannot be regarded as offending against justice and equity.

 

11. The substantive law which we have to consider is contained in the Palestine Order in Council, 1922. Article 54 of the Order in Council reads, inter alia, as follows:

 

            "54. The Courts of the several Christian communities shall have:-

           

            (i) Exclusive jurisdiction in matters of marriage and divorce, alimony, and confirmation of wills of members of their community other than foreigners...

           

            (ii) Jurisdiction in any other matters of personal status of such persons, where all the parties to the action consent to their jurisdiction."

           

            Matters of personal status were defined in Article 51 of the Order in Council in these words:

           

            "...matters of personal status means suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies, and the administration of the property of absent persons."

           

12. Those Articles, therefore, deal with the definition of the nature of matters involving personal status, and determine the exclusive and concurrent jurisdiction of the Religious Courts of the various Christian communities in those matters, relating to members of their community other than foreigners. Before we can solve the question as to whether the Greek Catholic Court was competent to adjudicate in personal disputes between the petitioner and the first respondent, we must necessarily determine first of all what is the petitioner's religion and to which religious community she belongs.

 

13. No one disputes that before her marriage the petitioner was a member of the Protestant Community. Dr. Weil contends that, for the purpose of determining somebody's personal status, he is not to be regarded as having changed his religion unless he satisfies the requirements stated in section 2 of the Religious Community (Change) Ordinance. In the present case, he argues, the petitioner's change of religion was not registered in the register of the District Commissioner, as required by section 2(1) of that Ordinance, nor was the certificate, mentioned in section 2(2), sent either to the Greek Catholic Community which, according to counsel for the first respondent, she joined, or to the Protestant Community 1) which, according to the same submission, she left. Therefore, concludes Dr. Weil, and without taking into account the wedding ceremony that took place in the Catholic Church in accordance with the canons of that Church, the petitioner was and still remains a Protestant.

 

14. This argument was considered, and even answered, in Shomali v. Chief Execution Officer, Jerusalem (4). In that case, the court stated (ibid., at p. 444) : "As Protestants are not mentioned in the second schedule to Article 2, Palestine (Amendment) Order in Council, 1939, they do not belong to a Religious Community"; and further down on the same page : "Before it can be said that section 2(1) of the Ordinance applies, a person must already belong to one of the scheduled Religious Communities. We stress the use of the word "change" his religious community. She (the Respondent in that case), in first, never became a member of any Religious Community till her marriage, so it cannot be said that she ever changed her Religious Community." In other words, the aforementioned requirements in the Ordinance referred to apply only to such persons as belong to one of the religious communities recognised by law and who substitute their religious community for a different religious community which, too, is recognised by law. Exceptions to that rule are persons joining an unrecognised religious community or leaving such a religious community. Such persons are exempt from registering the change in their religious community. The present petitioner, like the second respondent in Shomali's case (4), had never belonged to one of the recognised religious communities until she married (and I shall further consider the question as to what extent that marriage affected her personal status at a later stage), and therefore it cannot in any way be said that she altered or changed her religious community. Moreover, to use the language of the court in Shomali's case (4), (ibid., at p. 445) : "She may have changed her religion, or to put it in another way, she may have become a member of another Church"; but that fact by itself does not impose on her the obligations, nor confer on her the benefits, set out in the Ordinance. That Ordinance does not, in fact, apply to her at all.

 

15. Accordingly, we must investigate the other circumstances of the case in order to see whether they include any factors likely to affect the petitioner's personal status and to determine the laws applying to that personal status. But fact we shall clarify certain fundamental rules deriving from both written and case law, which can serve as pointers for determining a person's personal status.

 

16. Dr. Klug, on behalf of the fact respondent, says that the final word on the question as to a person's belonging to a particular community is with those members of that community who speak with authority on its religion. Since in the present case the priests of the Greek Catholic Religion have expressed the view that the petitioner is numbered among their flock, there can be no disputing their opinion. In support of this submission, Dr. Klug quotes the rule laid down in Shtark v. Chief Execution Officer, Tel Aviv (5), but that case has nothing to do with the problem in hand. All that was decided there the question of the juridical validity and legal effect of a marriage contracted between a Jew and a Jewess is within the jurisdiction of the Religious Courts of the Jewish Community. The question of the membership or non-membership of either or both the spouses in the Jewish Community did not arise at all, and this court did not so much as hint in its decision that the Religious Court is the final authority on this question.

 

17. The weakness of Dr. Klug's argument becomes apparent especially in a case such as the one before us; for here the Anglican Church also claims the petitioner for itself, as can be seen from the letter from Bishop Khalil Jamal, head of the Arab-Anglican Community in Nazareth. Who can say which of the opinions of the rival religious heads is to be preferred ?

 

18. It should be noted in parenthesis that the Palestine legislator - or, more accurately, the constitution-maker for Palestine - foresaw the possibility of such differences of opinion as have been revealed in the present case. In order to settle those differences, he laid the foundation for legislation in the future which would enable these matters to be regulated. By Article 51(2)(b) of Council (which was added in 1989 to the Order in Council, 1922), the legislator was empowered to enact a law ''for determining the circumstances in which a person shall be regarded as a member of any religious community". Such a law, however, has not yet been enacted, and although the Religious community (Change) Ordinance is still in force, as stated in the proviso to Article 51(2)(b) (see Article 9(2) of the Palestine (Amendment) Order in Council, 1939), yet, as has already been stated, there is nothing in that Ordinance which can throw any light on the solution of the problem under discussion here.

 

19. Article 54 of the Order in Council empowers the Religious Courts of the various Christian communities to try matters relating to personal status. But, whether the jurisdiction conferred on those courts is exclusive as regards the matters set out in subsection (1) of Article 54, or concurrent as regards all other matters relating to personal status, a sine qua non for both of them is that the litigants be members of that community before whose religious court they bring their suits. Notwithstanding the plain meaning of that provision, the courts (in the time of the Mandate) were disposed in the public interest not to be too strict, and, in a long line of cases, held that that provision is not absolute, in the sense of "fiat justitia ruat coelum", and that there are instances where the public welfare demands that the law should not be strictly applied. Thus, for example, it was held in 'Amer v. Chief Execution Officer Jerusalem (6), that a husband who had conducted himself as a Catholic for several years before his marriage, and whose wedding took place with his consent according to the canons of the Catholic Church, could not be heard to say that he is a member of the Moslem faith and that the Latin Court was accordingly incompetent to try his wife's suit in the matter of alimony. Again, in Baqluq v. Baqluq (7), it was held, following 'Amer's case (6), mentioned above, that a person who had regarded himself as a member of the Latin Catholic Community for twelve years prior to his marriage, and had represented himself at the time of the wedding ceremony as being a member of that community, could not, when sued by his wife in the Latin Religious Court, be heard to contend that he had from the first been a member of the Greek Orthodox Community and that his change of community had not taken place in accordance with the Religious Community (Change) Ordinance. Finally, in Saffouri v. Salman (8), this court (in the time of the Mandate) held that a woman, who had married according to the rites of the Greek Orthodox Church and who sued her husband in the Religious Court of the Greek Orthodox Community, which gave its decision on her case, was estopped from arguing afterwards that the court was not competent to decide the matter because she was a Protestant.

 

20. It appears at first sight that the rule laid down in Shubeita v. Chief Execution Officer, Jaffa (9), in Goldenberg v. Chief Execution Officer, Tel Aviv (10), and in Levi v. Assistant Chief Execution Officer, Tel Aviv (11), is inconsistent with the principle embodied in 'Amer (6), Baqluq (7), and Saffouri (8), mentioned  above. But this "inconsistency" is capable of being explained. In it was decided that the Religious Court of the Greek Catholic (Melkite) Community was not competent to declare a husband, a member of that community, liable to pay alimony to his wife because the wife, who had been a member of the Latin Community before her marriage, had never changed her religious community and the marriage, though celebrated according to the rites of the Melkite Church, was not of itself sufficient to transfer her from one religious community to another. In Goldenberg (10), and in Levi (11), it was held that for the purposes of Article 54 of the Order in Council (which corresponds to Article 58 and determines the jurisdiction of the Religious Courts of the Jewish Community), it is essential that both spouses be members of Knesset Israel1), so that non-membership of one of them ousts the jurisdiction of the Rabbinical Court. Two facts, however, should be noted : first, both the latter cases concerned Jewish parties, and the question of the membership or non-membership of Jews in Knesset Israel may easily be settled by reference to the register of adults with the proper registering authority, namely, the Va'ad Leumi2), which is not the case with the members of other communities; when any doubt arises as to whether a person is a member of one or other of the communities, it cannot be so easily solved. Secondly, and more important, the question in each of the three cases mentioned above was to what extent the consent of the parties to have their case tried before a religious court affects the jurisdiction of that court, and the court held that consent whether given expressly or implied from silence, is insufficient to confer jurisdiction on a religious court when the law does not confer such jurisdiction upon it. The question whether a person is estopped from arguing non-membership of a particular religious community was not dealt with at all. In the case of 'Amer (6), and in the cases that followed that decision, on the other hand, the question of consent was not stressed at all, and in the present case we have not yet reached the stage of considering that question. The question that was asked there, and which is before us at the present stage of our deliberations is whether, in given circumstances and for a particular purpose, a person is estopped from arguing that he is not a member of a particular community. The court in the time of the Mandate, as we have seen, answered that question in the affirmative; and that view, with all due respect, seems to be the right one, and I propose to follow it.

 

21. I shall now pass on to the question whether any factors may be found in the conduct of the petitioner towards the first respondent which can conclusively establish her personal status for the purpose of the litigation with her husband, the first respondent, and what are those factors.

 

22. Both parties call in aid first and foremost the marriage certificates in their possession. According to what we have been told, those certificates are extracts of entries made at the time when the wedding ceremony took place in the books of the Court of the Greek Catholic Community. The certificate in the possession of the first respondent was apparently given to him shortly after the wedding, whereas the certificate produced by the petitioner was prepared in July, 1947, for the purpose of the present case. It should be said at once that those certificates contain nothing that can throw any light on the problem as they contradict each other on the most important details, even though, as stated, they were both presented as copies of the same original entry. Thus, for example, the copy produced by the wife states that her religion is Protestant, whereas in the copy that was delivered at the time to the husband the wife's religion is not noted at all. The husband says in his affidavit that he himself examined the register of entries in the Greek Catholic Church of Nazareth and discovered that the wife is not registered in it at all as a Protestant. An affidavit made by Archimandrite George Nonni, who delivered the copy to the wife, was also produced in support of the husband's contentions, and in that affidavit he states that the word "Protestant", appearing in the copy given to the wife, was interpolated by him (the Archimandrite) by mistake. What is the origin of that mistake? This is his explanation, in paragraph 8 of his affidavit : "This mistake in filling in the marriage certificate was caused because the petitioner told me then, in July 1947 (the date of the copy) the reason why she needed the certificate, but my attention was not drawn to the real reason which lay behind her contention that she was a member of the Protestant Community". That is a somewhat surprising explanation. It should not be forgotten that the petitioner applied to the Archimandrite, not in order that he might determine her religion, but in order to receive a certified copy of the entry once made in an official register in the custody and possession of the Greek Catholic Church in Nazareth. One would have thought that there is nothing simpler and easier than copying what is stated in a book precisely as it has been written. But such was not the case here. Details of a person's description were inscribed in a copy which do not appear in the original, and the explanation therefore is that the person requesting the copy did not disclose the real intention behind his contention that those details fit his description. The matter becomes even more puzzling when one considers another statement in Archimandrite George Nonni's affidavit. In paragraph 5 of his affidavit, he declares that "in the description of the marriage in question, appearing in the marriage register, it is not stated what is the religion of the spouses." Those remarks do not fit the facts, for in the body of each certificate - that of the husband and that of the wife - it is stated that the husband is a member of the Greek (in Arabic, the "Roman") Catholic religion. We have not been told whether an error has occurred here as well, but from another paragraph in Archimandrite Nonni's affidavit it may be gathered that the respondent's version is nearer the truth; for in paragraph 6 he declared that "the said register (the register of entries) notes the religion of both spouses only where one of them is not a member of the Greek Catholic (Melkite) Community." If these last words are in fact correct, since one of the spouses, namely, the husband in the present case, is described in the register as a member of the Greek Catholic religion, it may be assumed, on the basis of the Archimandrite's affidavit itself, that the second spouse, namely the wife, was not regarded at the time of the celebration of the marriage as a Catholic. However, those matters remain within the sphere of conjecture only, especially in the light of the abovementioned inconsistencies, and for that reason it would be best to ignore the marriage certificates, both the one in the respondent's possession and the one in the petitioner's possession, and for the purpose of determining the position of the petitioner as regards her personal status, I prefer to consider other factors, the correctness of which is not in doubt.

 

23. It is not disputed that the fact of the petitioner's being a Protestant before her marriage was not overlooked by the first respondent; but before the marriage was celebrated, the petitioner visited the Church of his community together with the fact respondent in order to participate in a Catholic Mass. The marriage itself took place in the Catholic Church, according to the rites and ceremonies of that Church. From the evidence of Archimandrite Zaton and Father Mosoubah (who based their observations on Canon 1061 of the Codex Juris Canonici) before the Chief Execution Officer, it appears that the Catholic Church does not permit mixed marriages unless certain formalities are previously observed and certain certificates are signed. Thus the two spouses, for example, undertake in writing to baptise the children born to them of the union and to educate them as Catholics, and the member of the alien religion has to declare and announce, when the ceremony of marriage takes place, that he elects to adhere to his own religion even after the wedding. Those formalities were not observed in the present case, the undertaking was not signed and the marriage took place as if between two Catholics. In point of fact, the petitioner behaved as a Catholic after the wedding too; she came to the Catholic Church to pray, and the child that was born to them was baptised with the consent of the Melkite Church. It should be emphasised - as was emphasised in Baqluq (7), mentioned above - that we are not dealing with a case of change of religion and with the determination of the membership of one of the parties in one religious sect or another, but with the question of the rights and duties as regards the spouses and in relation to each other, flowing from the marriage bonds created between them. In the light of the principle laid down in 'Aztec (6), Baqlua (7), and Saffouri (8), above mentioned, my opinion is that, for the purpose of investigating the question of personal status as between the petitioner and the first respondent, the petitioner is estopped from alleging that she is not a member of the Greek Catholic (Melkite) Community. I have not overlooked the fact that there is in that conclusion a certain extension of the scope of the principle that was laid down in 'Amer (6), and in the cases that followed that decision, but, in my view, the essential principle remains the same.

 

24. Having reached the conclusion that the petitioner is, in the circumstances of the case, estopped from arguing that she is not a member of the Greek Catholic (Melkite) Community. I have still to see whether the Religious Court of that community was competent to try the matter brought before it, in view of the other factors upon which the jurisdiction of a court is made conditional by Article 54 of the Order in Council.

 

25. It is clear - and no one disputes the fact - that if the matter in question falls within the compass of subsection (i) of Article 54, the Religious Court has exclusive jurisdiction to try it, and its judgment will be valid and effective even in the absence of consent on the part of the petitioner to have her case tried by that court; whereas if, on the other hand, it is held that subsection (ii) applies to the matter in question, the jurisdiction of the Religious Court is conditional upon the consent of the parties.

 

26. This case concerns the custody of an infant. Even though that matter is not expressly referred to among the matters enumerated in Article 54(i), it has nevertheless been held by this court (in the time of the Mandate) that where the application for the custody of infants is subsidiary to another suit involving a matter of personal status, which is subject to the jurisdiction of the Religious Court, that same court is competent to decide the question of custody also (see Yedidia v. Yedidia (12), Salman v. Assistant Chief Execution Officer Jerusalem (13), Khasho v. Chief Execution Officer, Jerusalem (14), and the authorities there cited). But the question is whether the fact respondent's suit before the Religious Court for the custody of his infant son was in fact subsidiary to some other suit in a matter of personal status which was before that court, and which the court was competent to try.

 

27.  Dr. Klug submits that the remedy of custody was subsidiary But if one speaks of "subsidiary", there is a presumption that there is a "principal" claim too. What is the principal claim in the present case? As stated, two orders were made by the Greek Catholic Court on the suits of the first respondent, in addition to the custody order : one of them was the "ta'a", before the custody order, and the other was the separation order, after it. "Ta'a" is, in substance, certainly a matter flossing from the marital relationship, within the meaning of Article 54(i); but custody can by no means be said to be subsidiary to it. For the very essence of the "ta'a" is that it is a vehicle for restoring the domestic peace of the couple. Had the petitioner, for example, complied with that order, the first respondent would not have had recourse to the action for custody. Those two remedies, therefore, are really a "contradiction in terms" and are, by their very nature, incapable of existing under one roof. The one may, at the very most, provide an alternative remedy to the other, that is to say, either a "ta'a" order or an order for custody. But apart from the fact that two alternative remedies are sought in one application and, when granted, are granted in the body of one single order, in the present case they were sought in two separate applications and granted in two separate orders. The custody order was not made until after the "ta'a" had been made final, when it was apparent to everyone that the petitioner would not comply with the directions contained therein. Apart from that, the very concept of an "alternative" remedy indicates that it is not consequential upon some other remedy, the main one, nor is it subsidiary to it, but stands on its own and only serves as a substitute for some other remedy, some main remedy, particularly where that main remedy cannot be granted. It is the failure of the application for the granting of the main remedy that gives rise to the application for the alternative remedy. Can then, that latter remedy be called subsidiary?

 

28. Further, can custody of a child be regarded as subsidiary to separation of husband and wife? A custody order may be subsidiary to a separation order. When does that occur? When the application contains a main prayer for separation and a consequential prayer for custody, or when the application for custody is no more than the natural continuation of an application for separation or of a separation order. Here, the custody order was made on July 27, 1946, and in the body of the order it was emphasised that it was final, whereas the separation order was only made two months or more later. Can the later order be regarded as a natural continuation of the earlier one? Dr. Klug contends that the custody order is no more than a single, intermediate chapter in one painful episode, that lasted over a period of time and terminated in the making of the separation order. No one disputes that. But from the very nature of things, each chapter in that episode has to be read independently, the object of one being different from that of the others. Each chapter must stand by itself, one independent of the other, though the story may be a single whole. Accordingly, this is not a case of a principal and a subsidiary claim, but a number of independent principal claims. When lodging the application for custody, it may be that the husband at no time considered that at some later stage he would have to ask for separation also. It may be that the main object of the application for custody was in order to force the wife to carry out the order of "ta'a" that preceded it, so that there would be no necessity either for separate custody or for living separately. At all events, each of the remedies the husband sought, and obtained, was designed for a particular end; and whilst this is a case of proximity of events, it is not a case of a principal and a subsidiary claim.

 

29. That being so, the question of custody was not within the exclusive jurisdiction of the Religious Court.

 

30. Here Dr. Klug submits that a distinction should be drawn between "guardianship" and "custody", and that the Codex Juris Canonici only recognises the institution of guardianship.

 

31. It is not essential for the purposes of the present case to investigate and examine the distinctions that Dr. Klug draws between those two concepts, for even if we are at one with him that the Religious Court made an order for the guardianship of the infant boy, and not for his custody, that does not further his principal argument. For guardianship is not included among the matters of personal status set out in subsection (i) of Article 54 and, as was stated earlier, since the application for this remedy was not joined as consequential relief to the other, the principal remedy, which is within the exclusive jurisdiction of the Religious Court, subsection (ii) of Article 54 is the one applying to the application for guardianship; and for the purpose of the matters stated in that subsection, the parties must consent to submit to the jurisdiction of the Religious Court. The petitioner did not consent to that jurisdiction and is adamant in her objection thereto to this very day. Hence, the order made by the Religious Court, be it an order for custody or for guardianship, was made without any jurisdiction, and cannot therefore, in my view, be carried into effect.

 

32. In the light of that conclusion, we are, in my opinion, relieved from the necessity of dealing with the other arguments of counsel for the petitioner, namely, that a Religious Court cannot grant a subsidiary remedy unless the parties submit to the jurisdiction and that in the case of custody of an infant the jurisdiction is conditional upon the infant's agreeing through his guardian, and that in the present case the benefit of the child demands that he should remain with the mother.

 

            SMOIRA P. I had the advantage, when considering this case, of having before me the comprehensive judgment of my learned colleague, Cheshin J.   I concur in his conclusion that we must make the order nisi absolute, and it is my intention to add, for my own part, only a few observations.

           

            I agree with his view that, generally speaking, the Chief Execution Officer is entitled to alter previous decisions made by him, especially in cases such as Elmaleh (1), and Attar (2). But in the case under consideration, the Chief Execution Officer would, in my opinion, have been better advised if, after giving his first decision, in which he refused to order the execution of the judgment of the Religious Court, he had referred the party that was not satisfied with his decision, namely, the husband (the first respondent) to the Supreme Court, instead of giving a second decision in the case. However, I do not wish to go into this point at length, for, in my opinion, our decision does not turn on it.

           

            I am in entire agreement with what my learned colleague said in paragraphs 25 to 32 of his judgment concerning the merits of this case. I consider, with respect, that my colleague demonstrates conclusively in that part of his judgment that in any case the Religious Court had no jurisdiction to try the question of tile custody of the infant son without the consent of both parties, as the question was not tried by the Religious Court as subsidiary to another suit in a matter of personal status. Since that ground is sufficient and decisive for making the order absolute I regard myself, together with my colleague, as relieved from the necessity of dealing with the submissions of Dr. Weil, counsel for the petitioner, mentioned in paragraph 32 of the judgment of Cheshin J., and relieved also from the necessity of considering the arguments dealt with by my colleague in paragraphs 13 to 23 inclusive of his judgment, namely, the question of the construction of section 2 of the Religious Community (Change) Ordinance, and the question whether the petitioner is estopped, by reason of her conduct, from arguing that she is a member of the Greek Catholic (Melkite) Community.

           

            I reserve to myself, therefore, the right to express my view, when the occasion calls for it, on these two questions, namely:

           

            (1) If Dr. Weil was right in his contention that section 2 of the Ordinance also applies when a Protestant enters a recognised community, was the Supreme Court correct in its judgment in Shomali (4) ?

           

            (2) Should the rule that follows from the judgments in 'Amer (6), Baqluq (7), and Saffouri (8), be preferred to the rule which follows from the judgments in Shubeita (9), Goldenberg (10), and Levi (11) (see the citations in the judgment of my learned colleague, Cheshin J., in paragraphs 19 and 20), in regard to the question whether a person is estopped, by reason of his behaviour, from arguing membership of a certain religious community.

 

            I cannot conclude without saying, on behalf of my colleagues and myself, that the court is indebted to Dr. Weil for volunteering to act as counsel for the petitioner, who appeared before us at first without any legal assistance, and that the court was greatly assisted by the able arguments of Dr. Weil and Dr. Klug.

           

            ASSAF J.   I agree, as to the main part of the judgment, with the opinions of my learned colleagues, and at the same time concur in the observations of the learned President.

 

                                                                                     Order nisi made absolute.

                                                                                     Judgment given on January l3, 1950.

 


1)              Ottoman Execution Law, Article 2:

          The Execution Office will pass orders for execution without awaiting an order from any Court. Any person aggrieved by such orders is entitled to object in writing. If his objection be found good the Court will correct, alter or cancel the said orders.

1)     Ottoman Execution Law, Article 6.

          If the decree be not clear and the Execution Officer think it necessary to obtain further information before executing, he shall apply for information in writing direct to the Court which granted the decree and shall give notice to the judgment-creditor of the objection requiring elucidation. Provided that the objection shall not delay the execution of any part of the decree which is clear and does not depend on the result of the objection.  

1)        Protestants are not a recognised "community". For a list of recognised Christian communities, see the amended schedule to the Order in Council

1)        Knesset Israel: lit. "Assembly of Israel". The Hebrew title for the Jewish Community in (Mandatory) Palestine. In the State of Israel "Knesset" means "Parliament".

2)        Va'ad Leumi: National Council. The elected representative body of the Jewish Community in Palestine 

Full opinion: 

Rubinstein v. The Minister of Defense

Case/docket number: 
HCJ 3267/97 HCJ 715/98
HCJ 715/98
Date Decided: 
Wednesday, December 9, 1998
Decision Type: 
Original
Abstract: 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

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

HC 3267/97

HC 715/98

1.  Amnon  Rubinstein       

2.  Chaim Oron

3.  Barak Katz

4.  Yossi Nechushtan

5.  Baruch Olshak

6.  Alon Porat

7.  Ilan Freedman                                                      HC 3267/97   

 

 

1.   Major (Res.) Yehuda Ressler

2.  New Student Association of Tel-Aviv University

3.  15,604 Students of Israeli Institutes of Higher Education

4.  1,100 Students of Israeli High Schools   

5.  Major (Res.) Ehud Peleg                                     HC 715/98     

 

v.

Minister of Defense

The Supreme Court Sitting as the High Court of Justice

[December 9, 1998]

President A. Barak, Deputy President S. Levin, Justices T. Or,
E. Mazza, M. Cheshin, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, D. Beinisch, I. Englard

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

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

Israeli Supreme Court Cases Cited

  

[1]     HC 910/98 Ressler v. Defense Minister, 42(2) IsrSC 441.

[2]     HC 337/81 Miterani v. Minister of Transportation, 37(3) IsrSC 337.

[3]     HC 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) IsrSC 824.

[4]     CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v. Sdeh Ya’akov Workers’ Village of Hapoel Mizrachi, Agricultural Cooperative Settlement, 45(4) IsrSC 529. 

[5]     HC 2740/96 Shansi v. Diamond Comptroller 51(4) IsrSC 491.

[6]     HC 5016/96 Horev v. Minister of Transportation, 51(4) IsrSC 1{[1997] IsrL 149}.

[7]     CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General, 8 IsrSC 785.

[8]     HC 3806/93 Manning v. Minister of Justice, 47(3) IsrSC 420.

[9]     CA 825/88 Association of Israeli Soccer Players v. Israeli Soccer Association, 45(5) IsrSC 89.

[10]   HC 144/50 Sheave v. Defense Minister, 5 IsrSC 399.

[11]   HC 113/52 Zachs v. Minister of Trade and Industry, 6 IsrSC 696.

[12]   HC 7351/95 Nevuani v. Minister of Religious Affairs, 50(4) IsrSC 89.

[13]   HC 2994/90 Poraz v. Government of Israel, 44 (3) IsrSC317.

[14]   HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem, 10 IsrSC 40.

[15]   HC 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) IsrSC 485.

[16]   CA 6821/93 United Bank Hamizrachi Ltd. v. Migdal Cooperative Village, 49(4) IsrSC 221.

[17]   HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior, 47(1) IsrSC 749.

[18]   HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa, 42(2) IsrSC 309.

[19]   HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya, 8  IsrSC 1524.

[20]   HC 200/57 Bronstein v. Beit Shemesh Local Council, 12 IsrSC 264. 

[21]   HC 124/70 Shemesh v. Companies Registrar, 25(1) IsrSC 505.

[22]   HC 144/72 Halipi v. Minister of Justice, 27(1) IsrSC 719.

[23]   HC 333/85 Aviel v. Minister of Labor and Welfare, 45(4) IsrSC 581.

[24]   CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co., 31(3) IsrSC 281.

[25]   FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co., 32(2) IsrSC 337.

[26]   HC 301/63 Streit v. Israeli Chief Rabbinate, 18(1) IsrSC 598.

[27]   HC 249/64 Baruch v. Customs and Duty Supervisor, 19(1) IsrSC 486.

[28]   HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court, 48(2) IsrSC 491.

[29]   HC 453/94 Israeli Women’s Network v. Government of Israel, 48(5) IsrSC 501.

[30]   HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority, 48(3) IsrSC 353.

[31]   HC 726/94 Klal Insurance Company v. Finance Minister, 48(5) IsrSC 441.

[32]   HC 1255/94 “Bezeq," Israeli Communications Company v. Communications Minister, 49(3) IsrSC 661.

[33]   HC 5319/97 Cogan v. Military Attorney General, 51(5) IsrSC 67.

[34]   HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Transport Minister, 49(4) IsrSC 808.

[35]   CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach, 48(2) IsrSC 66.

[36]   HC 4541/94 Miller v. Defense Minister, 49(4) IsrSC 94.

[37]   CrimApp 537/95 Ganimat v. State of Israel, 49 (3) IsrSC 355.

[38]   HC 4562/92 Zandberg v. Broadcasting Authority, 50(2) IsrSC 793.

[39]   HC 7111/95 Center of Local Government v. Speaker of Knesset, 50(3) IsrSC485.

[40]   HC 3434/96 Hopfnung v. Speaker of Knesset, 50(3) IsrSC 57.

[41]   HC 5503/94 Segal v. Speaker of Knesset, 51(4) IsrSC 529.

[42]   HC 450/97 Tenufa Manpower and Maintenance Services, Ltd. v. Minister of Labor and Welfare, 52 (2) IsrSC 433.

[43]   FH 2/82 Ressler v. Defense Minister, 36(1) IsrSC 708.

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

[45]   HC 114/78 Borkan v. Finance Minister, 32(2) IsrSC 800.

[46]   EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset, 43(4) IsrSC 221. 

[47]   HC 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) IsrSC 221.

[48]   HC 355/79 Katalan v. Prison Authority, 34(3) IsrSC 294.

[49]   HC 1715/97 Investment Managers’ Bureau v. Finance Minister, 51(4) 367.

[50]   HC 40/70 Becker v. Defense Minister, 24(1) IsrSC 238.

[51]   HC 448/81 Ressler v. Defense Minister, 36(1) IsrSC 81.

[52]   HC 179/82 Ressler v. Defense Minister, 36(4) IsrSC 421.

[53]   LCrim 1127/93 State of Israel v. Klein, 48(3) IsrSC 485.

American Cases Cited

[54]   Mistretta v. United States, 488 U.S. 361 (1989).

[55]   Industrial Union Dept. v.  American Petrol Inst., 448 U.S. 607 (1980).

[56]   Rapp v. Carey, 44 N.Y. 2d 157 (1976).

[57]   United States v. Robel, 389 U.S. 258 (1967).

[58]   American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981).

[59]   Myers v. United States, 272 U.S. 52 (1926).

[60]   Kent v. Dulles,  357 U.S. 116 (1958).

[61]   Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).

[62]   Wayman v. Southard, 23 U.S. 1 (1825)..

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

International Cases Cited

[64]   The Sunday Times  v. The United Kingdom (1979) 2 E.H.R.R. 245.

[65]   Malone v. United Kingdom (1984) 7 E.H.R.R. 14. 

[66]   Leander v. Sweden (1987) 9 E.H.R.R. 433.

German Cases Cited

[67]   8 BVerfGE 274 (1958).

[68]   33 BVerfGE 125 (1972).

[69]   34 BVerfGE 52 (1972).

[70]  49 BVerfGE 39 (1978).

Canadian Cases Cited

[71]   Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927.

Israeli Books Cited

[72]   2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (5th ed. 1996). 

[73]   1 B. Bracha  Mishpat Minhali [Administrative Law] (1987).  

[74]   1 I. Zamir, Hasamchut Haminhalit [Administrative Power] (1996).

[75]   Y. Dotan Hanchayot Minhaliot [Administrative Guidelines] (1996).

[76]   2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (1993).

 [77]  1 B. Aktzin, Torat Hamishtarim [Theories of Government[ (2 ed. 1968).

 

Israeli Articles Cited

[78]   I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency], 4 Mishpatim 63 (1973).

[79]   Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations], in Sefer Klinghoffer al Hamishpat Hatzibori 105 (I. Zamir ed., 1993).

[80]   B. Bracha, Chakikat Mishneh [Administrative Regulations], 1 Mishpat U’Mimshal 411 (1993).

[81]   B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations], 7 Iyunei Mishpat 390 (1979-1980).

[82]   A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations], 21 Hapraklit  (1965) 463.

[83]   C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime], 5 Mishpatim 308 (1973-1974).

[84]   I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General Guidelines], 11 Iyunei Mishpat 339 (1986-1987).

[85]   A. Barak, “Subordinate Legislation” 16 Scripta Hierosolymitana  (1966) 219.

[86]   F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law], 4 Shnaton Mishpat Haavodah 151 (1994).

[87]   R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law], 4 Shnaton Mishpat Haavodah 27 (1994). 

[88]   A. Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax], 23 Mishpatim 55 (1994).

[89]   A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

Foreign Books Cited

[90]   B. Schwartz, Administrative Law (3rd ed. 1991).

[91]   D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2d ed. 1997).

[92]   D. Schoenbrod, Power Without Responsibility (1993).

[93]   L.H. Tribe, American Constitutional Law (2d ed. 1988)

[94]   D.P. Currie, The Constitution of the Federal Republic of Germany (1994).

[95]   P.W. Hogg, Constitutional Law of Canada (3rd ed. 1992).

[96]   A.C. Aman and W.T. Mayton, Administrative Law (1993).

 

Foreign Articles Cited

[97]   U. Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law, 46 Admin. L. Rev. 213 (1994).

 

Miscellaneous

[98]   Standing Committee’s Report for Renewed Examination of Enlistment Exemption for Yeshiva Students (1988).

[99]   State Comptroller, 39th Annual Report – 1988 and Accounts for Fiscal Year of 1987 (1989).

[100]    State Comptroller, 48th Annual Report – 1997 and Accounts for Fiscal Year of  1996 (1998).

 

Jewish Law Sources Cited

[a]  Tractate Sabbath, 132:1.

[b]  Jerusalem Talmud, Tractate Yoma, 8:5.

 

 

JUDGMENT

President A. Barak

This court examined the deferral of military service for Yeshiva [religious seminary – ed.] students for whom “Torah is their calling” [who engage in full-time religious study – trans.] in HC 910/86 Ressler v. Minister of Defense (hereinafter- Ressler [1]). According to the statistics presented to the Court in Ressler [1] of those who enlisted in the I.D.F. in 1987, 1,674 Yeshiva students had their military service deferred (constituting 5.4% of the total). The total number of students included in the arrangement for the deferral of military service in that year was 17,017. Against this backdrop Ressler [1] held that the Minister of Defense was authorized to defer the drafting of Yeshiva students and that his exercise of discretion to that effect was within the zone of reasonableness.  In my opinion in that case, I stated:

... ultimately, the number of Yeshiva students who receive deferrals is significant. There is a limit, which no reasonable Minister of Defense is authorized to exceed. Quantity becomes quality.

Id. at 505.

 

Ten years have passed since that case was decided. The number of Yeshiva students included in the deferral of service arrangement has risen constantly.  According to the statistics presented to us, in 1997, about 8% of all the enlistees eligible for service were granted a deferral, based on their being full-time Yeshiva students.  The total number of Yeshiva students included in the arrangement that year was 28,772 (as of August 1997). The arrangement’s social ramifications are of gargantuan proportions. Indeed, increasingly, feelings of inequality are tearing the fabric of Israeli society. Moreover, some of the Yeshiva students being granted deferrals – namely, those who cannot successfully adjust to the full-time study of Torah – find themselves in an untenable predicament; they do not study for they are unsuited for it; they do not work, for fear of exposing their failure to meet the conditions of the arrangement. The result is an ongoing breach of the law, inhibited personal growth and harm to the work force. The issue before us today is whether or not these and other ramifications cross the line beyond which “quantity becomes quality." Does the complex situation in which Israeli society finds itself mean that this entire issue can no longer be regulated via the service deferral granted by the Minister of Defense? Does the situation presented before us today not warrant the conclusion that this entire matter ought to be resolved by Knesset legislation, capable of addressing the problem in all its complexity? These are the painstaking questions with which we are confronted today.  

The Facts

1.    The history of granting deferral of military service to full-time Yeshiva students (students for whom “Torah is their calling”) is in truth the history of the State of Israel itself. We dwelt upon this in Ressler [1] at 449-51. It was the first Defense Minister, Mr. David Ben-Gurion, who ordered that the enlistment of full-time Yeshiva students be deferred.  At the time, there was a fixed quota of Yeshiva students whose service was deferred, not exceeding about four hundred (400) Yeshiva students a year. This was the number of deferrals granted until 1970. From that year onwards the arrangement was altered to remove the limitation on the number of deferrals that could be granted. Hence, the number of Yeshiva students granted deferrals increased. In 1975, a yearly quota of 800 was established for the number of Yeshiva students who would obtain service deferral. Following the coalition agreement of 1977, the quota was abolished altogether, increasing the number of potential service deferrers.  These deferrers came to include the newly penitent, teachers in the independent educational system, and graduates of religious technical schools.  The conditions for authorizing a deferral were similarly relaxed, as were the requirements which the deferrers had to meet. For example, Yeshiva students over the age of thirty were allowed to give lessons in Judaic studies and receive modest scholarships in consideration thereof. It would seem that at that time there was also a change in the rationale underlying the arrangement. The arrangement originated as a result of the destruction of the European Yeshivas during the Holocaust and the desire to avoid having to close Yeshivas in Israel pursuant to the enlistment of their students. Today, this reasoning no longer holds.  Israeli Yeshivas are thriving and there is no real danger that drafting Yeshiva students within any particular framework would lead to the disappearance of these institutions. The arrangement today is, on the one hand, based on the desire to enable Yeshiva students to continue studying, while on the other hand, there is the perception that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them.

2.    The arrangement introduced by David Ben-Gurion and adopted by all subsequent defense ministers, sparked broad public controversy.  The Knesset debated it on a number of occasions. See Ressler [1] at 450. In effect, numerous efforts were made to petition the Supreme Court with regard to this matter. Id. at 453. These efforts failed, given the Supreme Court’s original view that the petitioners had no legal standing and that the issue itself was non-justiciable. The Supreme Court subsequently changed its position in Ressler [1] noting that the petitioner had standing before the Court and that his petition was in fact justiciable (both normatively and institutionally). Regarding the petition itself, the Court held that the deferral of military service for full-time Yeshiva students was within the Defense Minister’s authority and did not exceed the zone of reasonableness.  Even so, it held that “if the number of those whose service is deferred due to Torah studies continues to increase, to the extent of it comprising a significant portion of candidates for military service, thereby harming Israel’s security, there will definitely come a point at which we will say that the decision to defer enlistment is unreasonable and must be struck down.” Ressler [1] at 512. The Court emphasized that the Defense Minister’s discretion was ongoing, as was the obligation to exercise it. President Shamgar stressed this point, noting:

…this matter cannot be examined exclusively on the basis of its external manifestation, in light of its development since the establishment of the State to the present time; it must equally be examined according to its ongoing nature, its impact and its attendant consequences, year in and year out, for the foreseeable future. This means that our ruling today regarding the arrangement’s legality, after subjecting this arrangement to the relevant judicial review for the first time, does not exempt the Executive Branch from the obligation of periodically examining and reexamining the implications of granting exemptions to growing numbers of men of military age ... thus, we are not speaking of fixed data but rather of facts that change from one year to the next.  This means that the empowered authority is obliged annually to reassess the data and to consider its connection with other background factors.

Id. at 524-25.

 

3.    Public discussion of the issue of deferring the enlistment of full-time Yeshiva students persisted after the Ressler [1] case was decided. Immediately thereafter (August 1988), a report of the Knesset sub-committee of the Foreign Affairs and Security Committee was published.  The committee opined that the arrangement regarding the deferred enlistment of Yeshiva students must be changed by establishing frameworks which combined military service with the study of Torah. Particular attention was given to the model of the “Hesder Yeshivas” [combined religious study and military training – ed.].  It further recommended exempting 200 outstanding students from military service. The other Yeshiva students would be enlisted upon reaching the age of 24. They would undergo a short period of training and a shortened service period of one year. In the sub-committee’s view, the Knesset was obliged to adopt a definite position on the issue of service deferral for Yeshiva students. The sub-committee called upon the Defense Minister to “promptly initiate a bill for regulating the military service of Yeshiva students," in the spirit of the committee’s conclusions and recommendation. Report of the Standing Committee for the Renewed Examination of the Enlistment Exemption for Yeshiva Students [98] at 42.

4.    The State Comptroller’s Annual Report (No. 39) (1988 and Accounts for the 1987 Fiscal Year) [99] addressed the conditions for deferring Yeshiva students’ military service. The examination indicates the lack of adequate supervision as to whether the arrangement’s conditions are properly complied with. Indeed, there is no ongoing, comprehensive, and organized data regarding Yeshiva students who transfer from one Yeshiva to another, nor is there efficient monitoring regarding whether the Yeshiva students benefiting from the arrangement are not in fact engaged in other remunerative work. Furthermore, there is insufficient military enforcement of the students’ obligation to report at specific times for renewal of their service deferral. According to the report, there was no justification for leniency regarding contempt for the requirements of timely reporting for service deferral. Annual Report No. 39 [99] at 908.  The report adopted the view that the subject ought to be re-examined and “debated in the Knesset, in recognition of its immense public importance.” Id. In April of 1991, the Committee on Matters Related to the State Comptroller discussed the Report, criticizing the defects revealed in the Enlistment Board’s supervision of the maintenance of the enlistment deferral arrangement for Yeshiva students. It was the Committee's opinion that, “given the State of Israel’s critical security needs and the heavy burden born by its citizens in the area of military service, there is no justification for a situation in which tens of thousands of citizens receive prolonged deferrals of military service, the practical meaning of which, in most cases, is a total exemption from military service."

5.    On July 24th, 1992 the Defense Minister appointed a committee to examine the deferral of military service for full-time Yeshiva students.  The committee, chaired by the Defense Minister’s assistant and Director General of the Ministry of Defense, Mr. Haim Yisraeli, was asked to examine the procedures, criteria and manner of supervising the arrangement for the enlistment deferral of full-time Yeshiva students. The committee, which submitted recommendations to the Defense Minister in August of 1995, suggested methods for supervising the arrangement’s proper enforcement. Inter alia, the Yisraeli committee suggested shortening the deferral period for Yeshiva students to six months, until they reach the age of 25. This would mean that they would have to report to the enlistment bureau twice a year. It further recommended establishing a permanent formula, according to which the heads of the Yeshivas would report to the I.D.F. twice a year, in addition to a procedure for revoking recognition of those Yeshivas which fail to comply with the conditions of the arrangement. Moreover, the committee suggested improving the enforcement measures by conveying all the relevant data to the police and the State Attorney’s office, who would deal with students who violate the rules of the arrangement.

6.    In the Annual Report (No.48) (State Comptroller - 48th Annual Report for 1997 and Accounts for 1996 Fiscal Year) [100], the State Comptroller once again addressed the arrangements for enlistment deferral of Yeshiva Students into the Defense Service. At that time, the number of Yeshiva students whose enlistment had been deferred was 28,772, which constituted 7.4% of the total number of enlistees in 1996.  The report emphasized that there was no comprehensive and continuous supervision of compliance with the requirements established for full-time Torah students.  According to the State Comptroller, so long as this situation prevailed, it would be impossible to accurately establish whether there were individuals purporting to be full-time students who were in fact not studying at all, and what proportion of the deferrees they constituted. All that could be determined was that, as of March 1997, of all the Yeshiva students whose enlistment had been deferred (28,547), only 2.8% of them enlisted in the I.D.F in 1996. Furthermore, there had not been an attempt to ascertain how many full-time Yeshiva students, barred by the arrangement from working or pursuing any occupation save learning, were in fact not working or earning money.  The Report also emphasized that the Defense establishment had failed to conduct any systematic ongoing discussion regarding the steady increase of eligible enlistees who were full-time Yeshiva Students. Prior to concluding, the Report noted that “in view of the findings of the follow-up report and [Israel’s] present security needs ... the summary of the previous report has not merely retained its validity but has been bolstered ... and these findings strengthen the recommendation to conduct an in-depth inquiry into the subject of enlistment deferral for full-time Yeshiva students.” Id. [100] at 1011.

7.    The Knesset plenary discussed the enlistment deferral for full-time Yeshiva students on a number of occasions. On March 11th, 1992, the Knesset debated eight private bills proposed by members for amending the Defense Service (Amendment) Law [Consolidated Version] 1986. The bills attempted to limit the duration of the deferral that the Defense Minister was empowered to grant, as well as the number of those being granted deferrals.  There was also a bill to adopt a service framework for full-time Yeshiva students, similar to that of the Hesder students. All of these bills were stricken from the agenda. In November of 1993, the Knesset debated a bill to amend the Basic Law: The Knesset. The bill made the right to vote and be elected conditional upon having fulfilled the duty of national service, while restricting to a minimum those Yeshiva students who would be exempted from military service.  This bill, too, was stricken from the agenda.  Eight private bills were submitted before the fourteenth Knesset regarding the issue of granting deferrals to full-time Yeshiva students. The bills attempted to set quotas on the number of those whose service would be deferred, place restrictions on the duration of the deferral, and impose an obligation of full reserve duty for those whose service had been deferred. Three of these bills were stricken from the Knesset’s agenda.

The Current Situation

8.    As it now stands, deferrals of defense service are granted to full-time Yeshiva students (those for whom “Torah is their calling”). Joining this category is contingent on the enlistee having studied continuously in a Yeshiva High School, be it regular or vocational, since the age of 16. This category is also open to those who studied in a religious high school and whose matriculation exams included Talmud at the level of five units. The category of full-time Yeshiva students also includes the newly religious. The deferral is contingent on the following condition: anyone included in the category of “full-time Yeshiva student” cannot be engaged in any form of work or occupation that is ordinarily remunerative. An exception to this rule was recognized for Yeshiva students employed in a formal role as teachers in the schools of the various streams of the Ultra-Orthodox educational system; they are entitled to remuneration. The same applies to Yeshiva students over the age of 29 who teach children through the age of 13 in parochial primary schools.  The final category also includes teachers of at least 29 years of age who teach in Yeshivas for students between the ages of 13 and 17 or in Yeshivas for students 18 years and older. When the service deferral is terminated, the candidate for military duty who is a full-time Yeshiva student receives an exemption if he is at least 35 and has four children, or upon reaching the age of 41. The most recent data indicates that there are presently over 28,000 enlistees from among the service candidates of all of the years whose enlistment is currently being deferred. This data indicates a rise in the extent of the enlistment deferral.  Hence, in 1995, the number of Yeshiva students whose enlistment had been deferred stood at 26,262 - in 1996 (according to the data as of March 31st, 1997) there were 28,547 persons. In 1995 the percentage of those joining the arrangement was about 6.4% out of the entire year of enlistment candidates; in 1996 the percentage was 7.4%; and in 1997 it stood at 8% of the enlistment candidates of that year.

9.    A Yeshiva student registered for military service and included under the category of “full-time Yeshiva student," who no longer qualifies for this particular exemption, whether of his own accord or pursuant to the enlistment officer’s decision, will have the duration of his military service determined in accordance with his age and family situation. Thus, the number of those included in the arrangement is not static. During the entire year there is a constant ebb and flow of those entering and leaving the above category. Out of those born in 1973, for instance, in 1991 (when they reached enlistment age), the percentage of those included in the arrangement stood at 6%. For those born in 1973 and reaching the age of about 21 (in 1994) the number of those included in the arrangement stood at 4.8%.

10.  According to the current arrangement, the enlistment bureau commander approves the granting of full-time Yeshiva student status to those candidates who have, at one time, studied at one of the Yeshivas recognized by the Committee of Yeshivas in Israel. Acceptance is conditional on having completed the enlistment procedures and having declared oneself a “full-time Yeshiva student” who is not engaged in any work or occupation, remunerative or not, save Yeshiva studies. Thus, a candidate for defense service undertakes that if at any time during the period covered by the service deferral, any of the qualifying conditions is not fulfilled, he will immediately report to the enlistment bureau and give notice thereof. He also undertakes to notify the enlistment bureau if ever he transfers to study in another Yeshiva. In addition, the head of the Yeshiva in which the candidate is purporting to study must sign a declaration of his own on the back of the student’s declaration form (which must itself be renewed on a yearly basis) in which he undertakes to notify the secretary of the Committee for Yeshivas in Israel within thirty days if the student in question terminates his studies during the course of the year.  The secretary of the Committee for Yeshivas, for his part, must confirm that the candidate fulfills the requirements for being included in the category of “full-time Yeshiva students” and must further declare that, “if we receive notification that the aforementioned has discontinued his studies in the Yeshiva, during the course of the year, I undertake to immediately inform the commander of the enlistment bureau." The candidate for defense service receives an annual enlistment deferral. On an annual basis, he is required to renew his status and apply for an additional year of deferred service. The candidate is required to produce a valid current certification from both the head of the Yeshiva and the secretary of the Committee of Yeshivas attesting to his continued studies and must once again undertake to comply with all the requisite conditions for full-time Yeshiva students.

The Petitions

11.  Before us are two petitions. The first is the petition submitted by Member of Knesset Amnon Rubinstein, Member of Knesset Chaim Oron, and others (HC 3267/97). The second is that of Major Ressler (Res.) et al. (HC 715/98).  The first petition asks that the Defense Minister to show cause why he should not establish a maximum reasonable quota of Yeshiva students who are granted a deferral of military service. The second petition asks the Minister to show cause why he does not lack the authority to defer Yeshiva students’ enlistment into regular military service. Both petitions describe the situation regarding the deferral of service for full-time Yeshiva students in the present and the past. Both claim that the existing arrangement violates the principle of equality, deviates from the boundaries of reasonableness, and is disproportionate.  Moreover, the second petition claims that the Minister of Defense does not have the authority to regulate the matter through administrative regulations and that the entire issue ought to be regulated through legislation.

12.  In his response, the Defense Minister noted that he had re-examined the legal framework established in Ressler [1] respecting the exercise of his discretion in deferring full-time Yeshiva students’ service. He opined that the considerations that had motivated his predecessors in exercising their discretion were still valid today, highlighting the following considerations, cited in Ressler [1] which formed the basis for the Defense Minister’s response in that case:

a.  The fact that the Yeshiva students lead an ultra-Orthodox lifestyle, which makes induction into the military difficult, causing them serious problems in adapting to a society and culture, which are foreign to them, and creating difficulties in respecting strict observance of religious precepts. Thus, for example, the ultra-Orthodox do not recognize the Chief Rabbinate of Israel’s certification that food is kosher, while they themselves disagree over recognition of a number of special kosher certifications by various rabbis. Similarly, other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.’s ability to integrate them.

 b. The fact that the entire effectiveness of their military service is placed into doubt, given the psychological difficulties they experience as a result of neglecting their religious studies, and given their special education and lifestyle.

 c. No one can foresee whether the enlistment of thousands of Yeshiva students, who view their enlistment in the military as a blow to the foundations of their faith, which holds that the study of Torah takes precedence over the obligation to serve in the military, will add to the I.D.F.’s fighting power or, heaven forbid, impair its ability. It is by no means certain that enlisting these individuals, even if it serves to increase the military’s power numerically, will not have far-reaching implications for the State's internal and external strength. See HC 448/81 Ressler v. Miister of Defense 36(1) IsrSC 81, 86.

 d. Respect for the spiritual and historical commitment of students and teachers engaged in full-time religious studies to uphold the value of studying Torah.

 e. The desire not to violate the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora.

 f.  Recognition of the deep public sensitivity toward the topic which has embroiled the Israeli public in an ideological debate and of the need for a careful balancing  with respect to a dispute of this nature.

Further on in his response, the Defense Minister noted that having considered the entirety of factors and information within the parameters determined in Ressler [1] with military interests constituting the dominant consideration, and having consulted with the Prime Minister, he had concluded that, in view of the aforementioned considerations, the existing situation did not seriously impair Israel’s security needs. In the Defense Minister’s view, absent national consensus, and in the absence of clarity over whether it would benefit national security, as noted above, the military should not take steps which are liable to have harsh consequences both on the private level and on the military’s organization.

13.  In his examination of the issue, the Defense Minister considered the question that had been raised in the first of the two petitions before us (HC 3267/97), namely, whether there should be a yearly quota limiting those permitted to enter this arrangement.  In his view, at this stage, the current arrangement did not substantially impair security needs and therefore did not need to be replaced by a yearly quota. To this effect, the Defense Minister submitted that setting a quota would, inter alia, entail the establishment of criteria for distinguishing between those worthy of being included in the arrangement and those who are not and who would therefore be drafted in the I.D.F via ordinary enlistment. In view of the considerations underlying the arrangement itself, the Minister felt that prescribing criteria of this nature would raise serious legal and social problems. This being the case, he felt that such a step should not be taken at this stage.

14.  In his response, the Minister undertook to adopt and implement the Yisraeli Commission’s recommendations. To this end, he instructed the various bodies in the Ministry of Defense and the military to work towards subjecting the arrangement to proper supervision, in order to ensure that the deferment was not improperly exploited. In this context, the Minister appointed a team for the implementation of recommendations, which would include the incorporation of the main elements of the arrangement into administrative regulations; the regulation of the undertakings of the heads of the Yeshivas to the I.D.F; submission of affidavits by Yeshiva students; establishment of criteria for recognition of Yeshivas and Adult Studies Institutions (Kollel); increasing the number of reporting dates for young students (ages 18-20) to twice a year and increasing the sanctions against those who breached the arrangement, both by indicting those in breach and by establishing a procedure for revoking the recognition of those Yeshivas failing to comply with the conditions set forth by the arrangement. The Defense Minister stated that following the regulations’ actual implementation, their influence on the number of those joining the arrangement would be reviewed. The Minister further added that the security establishment would continue to keep track of the changes in the number of those included in the arrangement and the various implications of the arrangement, thereby permitting the security establishment to weigh the matter’s influence on state security, and the potential need for establishing a maximum annual quota of those who can benefit from the arrangement.

15.  In their oral pleadings, the attorneys for the sides repeated their basic positions respectively. Adv. Fogelman, who pleaded on the Defense Minister’s behalf, emphasized that his client was chiefly concerned with security. It was in the context of outlining this point that counsel indicated how ineffective imposing military service on full-time Yeshiva students would be. This consideration had figured in the rationale originally underlying the arrangement’s institution, and it remained relevant for the newer reasons justifying the arrangement. At this juncture, Mr. Fogelman mentioned that the Prime Minister had asked that a public commission, headed by Supreme Court Justice (Ret.) Tzvi Tal, convene in order to re-examine the arrangement. Due to the reservations of certain segments of the Ultra-Orthodox community, the proposal was not implemented. We asked Mr. Fogelman whether it would have been appropriate for bodies representing the Ultra-Orthodox population to be represented before us. He responded that the Ultra-Orthodox circles, in general, and the Committee of Yeshivas in Israel, were aware that the petitions were being deliberated, and that had they wished to do so, they could have asked to join the proceedings at bar. The Court asked Mr. Fogelman to call their attention to the pending petition and he undertook to do so.

16.  In his pleadings before this Court, Adv. Har-Zahav (who pleaded on the petitioners’ behalf in HC 3267/97) emphasized that no empirical analysis had been conducted to substantiate the claim that the Yeshiva students’ military service would not be effective. He argued that the population included in the arrangement was not homogenous and that there was no reason why many of them could not serve effectively. Adv. Har-Zahav further noted that the Defense Minister’s position highlighted that the present situation did not pose any significant risk to Israel’s security needs. From this, Adv. Har-Zahav inferred that, according to the Defense Minister’s own opinion, the arrangement does harms security needs, in a way that is not significant. Such insignificant harm is sufficient to justify establishing a quota, as the petition requests. This having been said, Adv. Har-Zahav noted the petitioners' position that the current arrangement does indeed significantly jeopardize security needs.

He contends that the feeling of national solidarity is in fact part of the security ethos. This feeling is deeply wounded by the present arrangement’s discriminatory nature.   Adv. Ressler (who pleaded on the appellant’s behalf in HC 715/98), for his part, similarly highlighted the arrangement’s discriminatory character. He argued that the Defense Minister was by no means authorized to grant draft deferrals to full-time Yeshiva students, and that the existence of a quota was immaterial. He also maintained that, the implication of the Defense Minister’s position is the arrangement does infringe on security needs in a way that is not significant. In his opinion, the Defense Minister bears the burden of proving that the arrangement does not impair security needs. Mr. Ressler once again emphasized that, in his opinion, the arrangement as a whole ought to be enshrined in legislation and not by way of exemptions granted by the Defense Minister. He also noted that this had been the recommendation of the sub-committee of the Foreign Affairs and Security Committee.

The Ressler Case

17.  In Ressler [1] the Court, after establishing that the petition was (both normatively and institutionally) justiciable, held that deferring the enlistment of full-time Yeshiva students was legal. This decision was the product of three interim decisions that the Court had rendered. Each of these “interim decisions” was a necessary link in the chain leading to the conclusion that the Defense Minister’s decision was legal. The first “interim decision” provided that, in principle, all of the arrangements (primary and secondary) relating to the deferral of full-time Yeshiva students’ enlistment could be promulgated via administrative regulations. It was therefore not legally necessary to anchor regulation of this matter in legislation, nor was it legally necessary to anchor these primary arrangements in legislation. The second interim decision was that section 36 of the Defense Services Law constituted a legal source for the regulation of the enlistment deferral for Yeshiva Students. The language of section 36 of the Defense Services Law is as follows:

Authority to

exempt  or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order:

(1)  exempt a person of military age from regular service duties or reduce the period of his service;

(2)  exempt a person of military age from reserve duties for a specific period or absolutely;

(3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

In the second interim decision, the Court held that the enlistment of Yeshiva students was being deferred for both religious and security related reasons, namely, “for reasons related to the size of the regular forces or reserve forces ... or for reasons related to education requirements ... or other reasons.”  The third and final interim decision examined the Defense Minister’s discretion in exercising his authority.  The Court held that the exercise of the Minister’s discretionary powers was “reasonable” and that the balance between the security interest (the dominant interest) and the religious (external to security) interest was reasonable. Each of these three interim decisions was based on a particular social and security reality, as they were presented to the Court. Indeed, the Court itself repeatedly emphasized that its decision was the product of that reality and that a change in the situation could engender a change in the legal conclusions drawn. In my opinion, I stressed that “at the end of the day, there is significance to the number of Yeshiva students whose service is deferred. There is a limit that no reasonable Defense Minister may exceed. Quantity makes a qualitative difference.” Ressler [1] at 505. We have now been presented with a new reality. As we have seen, there has been a significant increase in the number of Yeshiva students whose service has been deferred by reason of their being full-time students (in 1987 they totaled 17,997 whereas in 1997 they numbered 28,772). The percentage of enlistees who had their service deferred in that year was 5.4%. In 1997, they constituted 8% of the number of enlistees in that year. Opposition to the arrangement has continually increased. There is ever increasing antagonism between the population whose sons serve in the military and those whose sons are granted a deferral which ultimately becomes an exemption from service.  It is against this backdrop that old questions reawaken to be examined anew. Is it possible to continue regulating the enlistment deferrals granted to full-time Yeshiva students by way of primary arrangements, which are not based on legislation? Does the authorization stipulated in section 36 of the Defense Services Law constitute a sufficient legal basis for granting deferrals to Yeshiva students?  In view of today’s reality, is the decision to grant service deferrals to full-time Yeshiva students still a reasonable one? Each of these issues engenders a host of difficult legal questions. In light of the conclusion I have reached in this case regarding the first issue, namely whether the arrangement to defer the enlistment of full-time Yeshiva students must be enshrined in legislation, I may leave the other two questions to be decided at a more opportune time. Having said this, I will now proceed to examine the critical question at bar.

Statutory Enshrinement of Primary Arrangements Regarding Enlistment Deferrals

18.  May the entire arrangement regarding enlistment deferrals granted to full-time Yeshiva students (“for whom Torah is their calling”) be premised on the Defense Minister’s general prerogative, by virtue of the Defense Services Law, without specifying the principles and scope for the regulation of such a deferral in the statute itself? Can the Defense Minister be endowed with the authority to decide this matter, without the Knesset having addressed the issue (beyond the general authorization provided under section 36 of the Defense Services Law to defer service for “other reasons”)? As noted, this issue arose in Ressler [1] where I stated:

…by virtue of the Rule of Law, it is proper that ‘primary arrangements’ be set forth explicitly in legislation and that the administrative agency not be endowed with the general authority independently to determine primary arrangements.

Ressler [1] at 502.

 

To this I added:

…it is desirable, pursuant to the principles of a “true, democratic, parliamentary regime” that the Knesset adopt an explicit position regarding the issue of draft deferrals granted to Yeshiva students, and not satisfy itself with the Defense Minister’s general and sweeping empowerment to grant service deferrals “for other reasons” …

Id.

 

Even so, I averred to the fact that it could not be said “that the Knesset’s abstention from setting forth primary arrangements and from imposing supervision on the Defense Minister’s arrangements invalidates [the Defense Minister’s] general empowerment to this effect…” (Id.). I was confident that “having determined that ‘other reasons’ may serve as grounds for deferral of defense service, the Legislature by this very fact empowered the Defense Minister to determine what those other reasons are” (Id.).  Do these conclusions retain their validity in view of a new reality? In order to answer these questions, consideration must be given to the legal principle regarding the establishment of primary arrangements in legislation. In light of the scope and power of this principle, its application must be examined with respect to the issue of granting draft deferrals to full-time Yeshiva students. We will now proceed to examine each one of these issues.

Establishment of Primary Arrangements in Legislation

19. A basic rule of public law in Israel provides that where governmental action is enshrined in a regulation or an administrative guideline, then the general policies and basic criteria constituting the basis of the action must be established in legislation, pursuant to which the regulation was enacted or the administrative decision adopted. In more “technical language," - under this basic rule, “primary arrangements” that determine general policy and the guiding principles, must be enshrined in statute (Knesset Legislation), whereas regulations or administrative guidelines must only determine “secondary arrangements.” See I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency (hereinafter – Zamir, “Administrative Legislation” [78]); 2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (hereinafter - Rubinstein [72]) at 803.  Professor Klinghoffer also made this point:

... every administrative act, whether by force of administrative regulations, or even an individual act, must, as far as its basic contents are concerned, be prescribed by a statutory norm. In this sense, it can be said that in a state governed by the Rule of Law, the authority to set forth primary arrangements rests with the Legislature, whereas the administrative agencies are entitled to prescribe secondary arrangements alone, within the statutory framework.

Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations (hereinafter - Klinghoffer [79]) at 108.

 

Acting President, Justice Shamgar, cited these comments, adding:

In terms of the desired legislative policy for the division between the legislature and the administrative agency, I concur with Prof. H. Klinghoffer’s position ...

HC 337/81 Miterani v. Minister of Transportation (hereinafter - Miterani [2]) at 357.

 

In this spirit, the Courts repeatedly emphasized that primary arrangements must be determined by the Knesset whereas the administrative agency must, for its part, deal with secondary arrangements. See HC 266/68 Municipality of Petach Tikvah v. Minister of Agriculture (hereinafter – Petach Tikvah [3]); CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v.  Sdeh Ya’akov Workers’ Village of HaPoel Mizrachi, Agricultural Cooperative Settlement (hereinafter – Pri Ha’Emek [4]), at 552. My colleague, Justice Cheshin, similarly noted:

“Primary arrangements” must find their place in statute (Knesset Legislation) ... regulations are not, in principle, designed for anything other than the implementing statutes. This is the pillar of fire, this is the pillar of smoke that illuminate our path by night and by day, and by its lead we shall follow.

 

HC 2740/96 Shansi v. Diamond Comptroller, (hereinafter - Shansi [5]) at 504.

In the same vein, I commented in another case:

[I]t is also appropriate ... that the legislature establish primary arrangements and leave secondary determinations to administrative authorities … this is how a constitutional democracy operates …

HC 5016/96 Horev v. Minister of Transportation (hereinafter - Horev [6]) at 75-76 {[1997] IsrLR 149, 233)}.

 

We will refer to this as the basic rule regarding primary arrangements.

20.  The reasons underlying this basic rule are threefold: the first is enshrined in the doctrine of Separation of Powers. See B. Schwartz Administrative Law (1989) (hereinafter- Schwartz [90]), at 43; Mistretta v. United States [54] at 371.  According to this doctrine, the enactment of statutes is the province of the legislative branch. “There is no legislature other than The legislature, exclusively endowed with the power to legislate” (as per Justice Silberg, CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [7] at 819).

In Israel, this principle has found expression in the Basic Law: The Knesset, which provides that “the Knesset is the House of Representatives of the State” (sec. 1). It is “the Legislature” (sec.1 of the Transition Law, 1949) and the “Legislative Branch” (sec.7(a) of the Government and Judiciary Ordinance, 1948). HC 3806/93 Manning v. Minister of Justice [8] at 425.  It is by virtue of this principle that the power to legislate is vested in the Knesset. Indeed, a strict understanding of this principle would necessarily mean that the Knesset cannot delegate any kind of legislative power to the executive branch.  This, in fact, was the United States Supreme Court’s position in the nineteenth century, holding that the legislature had received its mandate to legislate from the people and was therefore not authorized to delegate that mandate to anyone else. Schwartz [90] at 43. This strict approach is no longer accepted in the United States or in Israel, for that matter. Modern reality, particularly that of the welfare state, required broad delegation to the executive authority for the performance of legislative acts. See President Shamgar’s remarks in CA 825/88 Association of Israeli Soccer Players v. Israel Soccer Association [9] at 105. This also fostered flexibility in such arrangements and allowed for the possibility of introducing changes according to the needs of the time and the place. See 1 B. Bracha  Mishpat Minhali [Administrative Law] (hereinafter – Bracha, Administrative Law [73]) at 82.

Thus, Professor Zamir correctly pointed out that “the legislative branch … is incapable of legislating all of the legislation required for implementing the duties that it imposes on the executive branch with the requisite speed and expertise. This is especially true in Israel, where there are exceptional requirements relating to national security, immigrant absorption and building the national economy. The public good necessitates exceptional powers for all of these.” 1 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (hereinafter – Zamir Administrative Authority [74]) at 68. The doctrine of separation of powers is thereby faced with the “dilemma between the desire to restrict the power of the administration and the need to allow it to exercise such power in order to achieve social goals as efficiently as possible.” Y. Dotan, Hanchayot Minhaliot [Administrative Guidelines] [75] at 310. The solution is found in many and varied avenues. Within these, we find the notion that in order to maintain the authority for administrative regulations in the hands of the executive, we must not relate to [this authority] “as to an evil that must be combated, or even as a necessary evil, but rather as a positive phenomenon that helps society advance.” Zamir, “Administrative Legislation” [78] at 65. Some of those measures do not relate to the petitions before us, but rather to the approach that requires Knesset ratification of administrative regulations. See B. Bracha, Chakikat Mishneh [Administrative Regulations] [80] at 413; B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations] (hereinafter – Bracha, “Parliamentary Supervision” [81]) at 392. See also, on the broadening of the bases for judicial review of administrative regulations, A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations] [82] at 465. One of the means found to be appropriate for this purpose allows for administrative legislation, while increasing the legislative branch’s supervision by way of its own legislation regarding administrative regulations enacted by the executive branch. It is within this framework that an approach developed by which the vesting of legislative authority in the executive branch is permitted, provided that the legislative branch itself establishes the fundamental parameters within which the executive authority can legislate. This point was made by Justice Rehnquist who stated:

... the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, “fill the blanks” or apply the standards to particular cases.

 

Industrial Union Dept. v. American Petrol. Inst. (1980) [55] at 675.

 

From this derives the rationale – enshrined in the modern understanding of the doctrine of separation of powers – which lies at the heart of the rule according to which legislation empowering the executive branch to perform legislative or administrative acts must establish the primary arrangements by virtue of which the administrative agencies act.  “[I]f the Knesset is indeed the ‘legislative branch’ then empowerment for administrative regulations which implement the basic principles and guidelines (primary arrangements) established in the legislation, is consistent with this principle.” 2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (hereinafter – Barak, Interpretation in Law [76]) at 528. On the other hand, if the legislation empowers the administrative agency to establish primary arrangements without any directives or guidance, the doctrine of separation of powers is violated. “When the Knesset is divested of its legislative cloak and transfers it to the expertise of the public administration, it severely undermines the principle of the separation of powers.” Bracha, “Parliamentary Supervision” [81] at 395. To this effect, the Constitutional Court of Germany expressed itself in a similar vein:

If [a statute] does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines, but will substitute its own decisions for those of the legislature. This violates the principle of the separation of powers.

 

8 BverfGE 274 (1958) [67] (trans. D.P. Kommers) in The Constitutional Jurisprudence of the Federal Republic of Germany (hereinafter – Kommers [91]) at 138.

 

21.  The second reason for the basic rule regarding primary arrangements is rooted in the Rule of Law. This principle is a complex one, with many different aspects. See Rubinstein [72] at 227. One of its numerous dictates is that legislation must establish guidelines and principles according to which the executive branch must act. Legislation must establish primary arrangements, and administrative regulations and individual acts must deal with implementation. This point was made by Professor Klinghoffer, who wrote:

We must distinguish between the concept of administrative legality, which is satisfied by formally binding the administration to the law, and the concept of specific legality, necessary for the realization of the Rule of Law. This latter concept signifies the maximum binding of the administration through the law ...

 [T]he Rule of Law ... does not permit the Legislature to waive its power to establish primary arrangements in favor of the administration - in other words to delegate this power.  Any transfer of that power to an administrative authority conflicts with the Rule of Law. Where the Rule of Law reigns, the Legislature is not at liberty to choose between options, in other words to personally bind the administration by establishing primary arrangements or to empower the administration to perform this legislative work in its stead. It is incumbent upon the Legislature to establish these arrangements itself. The Rule of Law dictates that the principle elements of any administrative act be anchored in primary arrangements set forth in the formal statute, and that the determination of those arrangements is within the exclusive authority of the legislature and cannot be transferred to administrative agencies.

Klinghoffer [79] at 108.

 

Prof. Zamir made similar comments:

[T]he Rule of Law requires that the legislature itself establish principles, primary arrangements, whereas the administration is only empowered to legislate the details for implementing the primary arrangements.

Zamir, “Administrative Legislation” [78] at 70.

 

This approach is not restricted to academia. It has been adopted by the case law. Hence, my colleague, Justice Cheshin noted:

The Rule of Law, in its substantive sense, instructs us that primary arrangements must find their place in the laws of the Knesset; regulations are in principle intended for the implementation of the laws only.

Shansi [5] at 504.

 

I too made this point in one of the cases:

“[T]he Rule of Law, in its substantive sense … means, inter alia, that legislative arrangements will ensure an appropriate balance between individual rights and public needs. In the realm of administrative regulations, this justifies the legislation being established by the legislature, not by the secondary legislature ...” Pri Ha’Emek [4] at 553.

This approach is not a new one. It is part of the fabric of Supreme Court rulings since the establishment of the State. Justice Olshan’s famous comments in this respect are well known:

[W]ere we to turn down the petitioner’s request we would become accomplices in rendering the Rule of Law governing the state a dead letter. The fundamental meaning of [the Rule of Law] is that restrictions ... whose imposition on individual freedom is unavoidable as a means of ensuring that individual freedom does not violate the freedom of others or the interests of society ... must be established by the Legislature, in other words, by the society that expresses its views in the statutes enacted by the legislature that represents it, and not by the administrative agency, whose task is limited to the implementation of these restrictions, in accordance with the said statutes.

HC 144/50 Sheave v. Defense Minister [10] at 411.

 

In another case, Justice Olshan emphasized:

[A]ccording to the principle of the ‘Rule of Law,' it is incumbent on the Legislature himself to determine and specify in the law, those cases in which licenses are to be granted or refused, while it is for the executive branch only to ensure the execution of those legal provisions. Accordingly, the legislative task must be discharged so that the citizen can find the answer in the law itself as to what is permitted and what is forbidden, and without being dependent on the discretion of the executive branch. However, as a result of the change of the social order in our generation and state intervention in all areas of life, not only in our state, the legislature is unable to foretell each and every case and to enact provisions in the law for each specific case. Consequently, the legislature satisfies itself with the determination of the general principles (though this is not always done).  The details and the modes of implementation of the general principles in each particular case are transferred to the discretion of the empowered branch; in other words, the Legislature confers the empowered branch with the authority to supplement that which was left out by the Legislature …

 HC 113/52 Zaks v. Minister of Trade and Industry [11] at 702.

 

Thus, the Rule of Law signifies that primary arrangements and standards will be provided by statute, whereas the administration’s role is to implement these primary arrangements by establishing secondary arrangements and methods of implementation. In the words of the New York Supreme Court:

Without such standards, there is no government of law, but only government by men left to set     their own standards, with resultant authoritarian possibilities.

Rapp v. Carey (1976) [56].

 

The Constitutional Court of Germany also made this point, stating:

“The basic tenets of the rule of law require that an empowering statute adequately limit and define executive authorization to issue burdensome administrative orders according to content, subject matter, purpose and scope ... so that official action [will] be comprehensible and to a certain extent predictable for the citizen.”

8 BVergGE 274 (1958) [67] in Kommers [91] at 138.

 

22.  The third reason for the basic rule targeting primary arrangements is rooted in the notion of democracy itself. See D. Schoenbrod Power Without Responsibility [92] at 14. Justice Cheshin wrote that “the democratic principle as such permeates the entire Israeli legal system, becoming part of the genetic code of all of the binding norms in Israel.” HC 7351/95 Nevuani v. Minister of  Religious Affairs (hereinafter- Nevuani [12]) at 121. This reason essentially parallels the first and second reasons, both of which also derive their vitality from the nature of democracy; however, it also emphasizes an additional aspect. This is the aspect of democracy itself. Democracy is a complex concept, based on two central tenets: the will of the people as expressed in the principle of representation and basic values such as the Rule of Law and the Separation of Powers. At the center of these values lies the idea of human rights. Indeed, “democracy is not merely formal democracy ... in which decisions are adopted according to majority will. Democracy is also substantive democracy ... in which the majority cannot suppress human rights.” Horev [6] at 45. The basic rule regarding primary arrangements derives its vitality from both these tenets of democracy. According to the first, democracy signifies the rule of the people. In a representative democracy, the nation chooses its representatives, who act within the context of its parliament. See C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime] [83]. The people’s elected representatives must adopt substantive decisions regarding State policies. This body is elected by the nation to pass its laws, and therefore benefits from social legitimacy when discharging this function. See B. Aktzin, Torat Hamishtarim [Theories of Government[ [77] at 239, 244.  Hence, one of the tenets of democracy is that decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions.  Society’s policies must be adopted by the legislative body, as echoed by Justices Sussman and Witkon, who wrote:

Administrative regulations regarding principled, cardinal matters, by force of an empowering law, is liable to lead us to a formal democracy only. A real parliamentary democracy requires that legislation be promulgated in the Legislature.

Petach Tikvah [3] at 831.

 

In this vein, Justice Brennan similarly noted:

Formulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate, and to the extent the Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people.

 

United States v. Robel (1967) [57] at 276.

 

A similar approach was taken by Justice Rehnquist who explained that in the United States, the delegation of legislative power to the executive branch was contingent on the standards being set out in legislation, because this requirement “ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will.” Industrial Union Dept. [55] at 685; See also American Textile Mfrs. Inst. v. Donovan (1981) [58] at 543.

Professor Tribe expressed the same idea:

 [B]road delegations are politically objectionable because, by enabling Congress to pass the buck on hard choices, and to leave such choices to administrative or executive processes less open to inputs from affected groups, such delegations may short-circuit the pluralist process of interest accommodation usually structuring legislative decision making.

L.H. Tribe, American Constitutional Law [93] at 365.

 

The Constitutional Court of Germany adopted a similar approach, noting that it is the legislature that must decide which interests justify the violation of individual freedoms. The Court added:

The democratic legislature may not abdicate this responsibility at its pleasure. In a governmental system in which the people exercise their sovereign power most directly through their elected Parliament, it is rather the responsibility of this Parliament above all to resolve the open issues of community life in the process of determining the public will by weighing the various and sometimes conflicting interests.

33 BVerfGE 125 (1972) [68] in D.P. Currie, The Constitution of the Federal Republic of Germany (hereinafter- Currie [94]) at 132.

 

In another case, the Court wrote:

In a free democratic and constitutional system, [P]arliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves of a 'delegated' legislation by the executive. However, the executive can legislate only within limits that the legislature prescribes. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of those delegated powers. If the legislature does not satisfy this requirement, then [it] will shift unfavorably the balance of powers presupposed by the basic law in the area of legislation.

34 BVerfGE 52 (1972) [69] in Kommers [91] at 145, 147.

Thus, the nature of representative democracy clearly demands that administrative regulations and administrative provisions of the executive branch be rooted, both formally and substantively, in legislation, enacted by the legislature. Indeed, the Legislature cannot transfer fateful and difficult decisions to the executive authority without first guiding its path. Even if elected directly by the people, as is the case here of the Prime Minister, the role of the executive, as indicated by its appellation – is to execute. Prof. Zamir was correct in writing that:

As a matter of principle, it is preferable that, where the circumstances permit, the Legislature set forth the general principles and primary arrangements itself, and not leave this to the enactor of regulations.  The democratic regime, according to its very essence, requires that the general principles that determine the people’s lifestyle be determined as a rule in legislation, by the Parliament and not through administrative regulations enacted by the public administration.

I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General  Guidelines] (hereinafter – Zamir, “The Attorney General’s Guidelines” [84]) at 345.

 

In another place, he writes:

[T]he Knesset is not able and probably should not deal with the details regarding the implementation of general principles, especially when setting forth such details requires special expertise, [when these details may be] subject to frequent changes, or when they must be established with relative speed. However, the Knesset can, and indeed must, discharge its central function, in the absence of which it loses its raison d'etre. This is the role of establishing general principles by way of statute. If the Legislature for any reason abdicates this task, it betrays its duty, undermines its very existence and furthermore, removes the basis for the regime’s democratic character. A regime in which the legislative branch transfers its legislative role in establishing general principles to the public administration remains a democracy in name and image only, and not in practice.

Zamir, “Administrative Legislation” [78] at 70.

 

This is an approach that attempts to preserve the status of the Knesset and the status of the democratic principle of representation upon which it is based. It is not restricted exclusively to the requirement that primary arrangements be determined via legislation. The desire to preserve the elevated status of the Knesset is of general application. “… we are duty-bound to take care not to overstep our bounds and enter the Knesset’s territory. We must take heed that our behavior be commensurate with democratic theory.” See Justice H. Cohn in Petach Tikvah [3] at 833. Hence this Court ruled, per Justice S. Levin, in respect of Emergency Regulations, that “where there is a possibility of regular, prompt legislation by the Knesset, then the legislative authority of the executive branch is usurped, because, as a matter of principle, the authority to enact emergency regulations should be used only where there is no possibility of waiting for the regular legislative procedures of the Knesset.” HC 2994/90 Poraz v. Government of Israel [13] at 322. Similarly, regarding the legality of raising pigs in Israel, Justice Berenson wrote:

Conceivably, attaining this goal is politically and nationally desirable as its advantages, from that perspective, outweigh the purely economic disadvantages presented by the petitioners. However, there are doubtless many who regard the government’s actions as religious coercion, at least indirectly. Either way, it is not for us to express an opinion on the matter. Nor is it the respondent's task to resolve religious national dilemmas using administrative tools conferred upon it for entirely different purposes and goals ... the problem is a national problem and not a local one, the solution to which is in the hands of the Legislature which is empowered, if it deems it necessary, to restrict individual freedom…

HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem [14] at 56.

 

Similarly, it was determined that restrictions or prohibitions on freedom of religion or freedom from religion of citizens of the State must be anchored in legislation. In this matter, my colleague, Justice Or, wrote as follows:

The issue is the possibility of violating rights included in the charter of the most fundamental and sensitive of basic rights, the rights to freedom of religion and conscience. It is therefore proper that the Legislature decide them. The reason for this is that only the Legislature can express the optimal consensus that accommodates the coexistence of people of different religions and different beliefs.

HC 3872/93 Mitral Ltd. v. Prime Minister and  Minister of Religious Affairs (hereinafter – Mitral [15]  at 498.

 

In the same vein, my colleague Justice Cheshin, wrote in that case:

[R]eligious commandments cannot be forced upon those who are not observant and those who are not interested in fulfilling religious commandments; no coercion, either direct or indirect, is possible, except according to statutes enacted by the legislature, the Knesset. The doctrine of separation of religion and state is part and parcel of the legal system. It is only by way of Knesset statute - on the national level, that the fulfillment of religious commandments can be imposed ...

Id. at 507.

 

Although the case at bar is unrelated to emergency regulations and does not regard matters that have been discussed in the judgments cited, the common denominator of all these cases is the understanding that there are certain issues that can be determined by the legislative branch alone. It represents the people, is elected by them for that purpose, and therefore has the power to choose the most appropriate alternative to advance, among the various paths available.

23.  The second tenet on which democracy is based (in the substantive sense) is a regime of values, including the doctrine of Separation of Powers and the Rule of Law, as noted above. There is also a third and central value, namely human rights. These three tenets are closely interrelated. Separation of powers is not a value in its own right, nor is it intended to ensure efficiency. The aim of the separation of powers is to increase freedom and prevent the concentration of power in one sovereign authority in a manner liable to violate individual freedom. To this effect, Justice Brandeis noted:

The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.

Myers v. United States (1926) [59] at 293.

 

The same can be said for the Rule of Law. This principle is not only intended to ensure the administration’s legality; it seeks to protect individual liberty, as Prof. Klinghoffer elucidates:

In view of the Rule of Law’s historical development, democracy was not its chief aim, but rather a means of achieving another principle aim - ensuring individual liberty.

Klinghoffer [79] at 107.

 

Hence, human rights form the central tenet of democracy. There can be no democracy without human rights. There is no democracy where the majority illegally deprives the minority of its rights. Obviously, human rights are not absolute. A democracy (in the substantive sense) is entitled to violate human rights in order to attain its objectives, provided that the violation is prescribed by law; promotes the values of the state; is for a worthy purpose and does not exceed that which is necessary. See sec. 8 of the Basic Law: Human Dignity and Liberty); sec.4 of the Basic Law: Freedom of Occupation, and also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village (hereinafter – United Mizrahi Bank [16]). This sensitivity to human rights leads to the conclusion that the violation of human rights, even when it promotes the values of the state, is for a worthy purpose and does not exceed that which is necessary, must be prescribed by a law specifying the primary arrangements. Indeed, one cannot be satisfied with the formal delegation of legislative authority to the executive branch. Hence, the requirement that primary arrangements be set forth in legislation and administrative regulations, or administrative orders concerning implementation, is anchored in the need to protect individual liberty. Indeed, in a democracy, it happens that the violation of individual rights is [at times] necessary for the realization of the general interest. Even so, the requirement is that this violation, even if justified, must be enshrined in legislation and not delegated to the executive branch itself. See Schwartz [90] at 61. One American case considered a statute that allowed the executive branch to issue or refuse to issue a passport to a citizen. The Court held that this constituted a violation of individual freedom. Such a violation was possible only if the violating statute, and not the executive power, established the basic criteria for exercising that authority. Justice Douglas wrote the following:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment ... If that “liberty” is to be regulated, it must be pursuant to the law-making functions of the Congress ... And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.

Kent v. Dulles (1958) [60] at 125, 129; See also Shuttlesworth v. Birmingham (1969) [61].

 

The Canadian Supreme Court adopted a similar approach. According to the Canadian Charter of Rights and Freedoms, protected human rights may be violated only where the conditions prescribed by the Canadian limitation clause (sec. 1 of the Charter) are met. Among these is the condition that the restriction be “prescribed by law." It was held that the import of this provision is that the fundamental and basic criteria must be set forth by statute. See P.W. Hogg, Constitutional Law of Canada [95] at 862. The upshot is that conferring authority to violate a protected human right is permitted, provided that this is done within the framework of the criteria established in the legislation. To this effect, Justices  Dickson, Lamer, and Wilson wrote the following:

Where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no limit “prescribed by law.”

Irwin Toy Ltd. v. Quebec (1989) [71] at 982.

 

A similar approach was taken by the European Court of Human Rights. The Sunday Times v. The United Kingdom (1979) [64] at 270; Malone v. United Kingdom (1984) [65] at 40; Leander v. Sweden (1987) [66]. This was also the path taken by the German Constitutional Court. See Currie [94] at 132. In the Constitutional Court’s own words:

Today it is firmly established by the decisions that, without regard to any requirement of an incursion [into individual freedom] in basic normative areas, and especially when the exercise of basic rights is at stake, the legislature is required ... to make all essential decisions itself.

49 BVerfGE 39 (1978) [70] at 126-127.

 

It is therefore clear that the democratic principle in all of its aspects, both in terms of representation and in terms of values, means that fundamental criteria (the primary arrangements) must be enshrined in legislation. Administrative regulations and the individual acts of an administrative agency (secondary arrangements) must implement the fundamental criteria established in the legislation. What are these primary arrangements and how are they determined? We shall now proceed to examine that question.

Primary Arrangements Defined

24.  The basic rule regarding primary arrangements, as we have seen, is that administrative regulations or individual administrative acts, based upon legislation (secondary arrangements), must set forth the manner in which statutes are to be implemented, whereas general policy and fundamental criteria (primary arrangements) must be prescribed in the principle legislation (statute). The reasons supporting the distinction between primary and secondary arrangements also determine the scope of each. Considerations of the Separation of Powers, the Rule of Law and Democracy (in both the formal, representative sense and the substantive sense), means that it is appropriate that legislation, which delegates the establishment of administrative regulations or administrative orders to the executive authority, determine the general plan, so that administrative regulations and implementing provisions can realize that which was set out in principle in legislation. The guidelines for the resolution of crucial issues, which are fundamental to the life of the individual, must be prescribed by statute. Hence, a primary arrangement exists where, on the basis of the law itself, in accordance with its interpretation by accepted interpretative methods, it is possible to infer the parameters within which the executive branch may act, as well as the direction, principles, or purpose that are supposed to guide the executive authority in its actions. To the extent that the regulation of a particular area requires that fundamental decisions which substantially affect the lives of individuals and society be taken, it is appropriate that such decisions be made within the confines of the statute itself. Hence, a primary arrangement exists where the statute itself sets out the principles or standards on a higher level, which must be brought to fruition at a lower level. The level of abstraction of the primary arrangement will change from issue to issue. As far as, and to the extent that the issue is one in which individual freedom is violated, so too the level of abstraction cannot be too high and an arrangement that establishes the nature of the violation and the extent of the violation of freedom enshrined in the legislation will be required. When the object of the regulation is a complex one, requiring considerable expertise, it is quite often possible to satisfy oneself with a very high level of abstraction. See Currie [94] at 42; U. Kischel, “Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law” (hereinafter – Kischel [97]).

25.  At this juncture, two comments should be made. First, the distinction between primary and secondary arrangements is not a sharp one. There is much ambiguity regarding where to draw the line between the two kinds of arrangements. As far back as 1825, the Chief Justice of the United States Supreme Court at the time, Chief Justice Marshall, wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made and power given to those who are to act under such general provisions, to fill up the details.

Wayman v. Southard (1825) [62] at 19.

 

In a similar vein, Prof. Klinghoffer wrote:

[T]he conceptual border distinguishing a primary arragenment from a secondary arrangement cannot be defined in the general, abstract sense. It depends on the nature and specific nature of the topic being regulated. Hence, the determination of whether a specific arrangement is primary or secondary can only be the product of induction, in accordance with common sense and logic.

Klinghoffer [79] at 122.

 

Prof. Zamir also dealt with this issue, stating:

It is difficult to establish the distinction or border between primary and secondary arrangements. To a certain extent, the two realms merge. Being overly strict about the distinction between these two realms is liable to disrupt administrative action and be detrimental to the public welfare.  Hence, in borderline cases, the question must be answered primarily on the basis of the balance between the administrative needs and public welfare and the degree of violation of the Rule of Law.

Zamir, “The Attorney General’s Guidelines” [84] at 354.

 

Thus, the nature of the arrangement, its social implications, and the degree of violation of individual freedom are all factors that influence the scope of the primary arrangement and the degree of specification required thereof.  Furthermore, the dictates of today’s reality necessitate compromising between principles and the imperatives of everyday life. In a modern democratic regime, it is difficult to fully realize the principles enshrined in primary arrangements. Quite often, compromise is required for reasons of administrative efficiency, in order to ensure public welfare. Even so, as a matter of principle, this does not detract from the power and the validity of the basic rule. Practically speaking, too, there are limits to the permissible compromise. In certain extreme cases the basic rule may prevail over considerations of efficiency, and it is appropriate to invalidate secondary arrangements that lack a statutory foundation (primary arrangements).

26.  Second, in determining the fundamental standards and lines of general policy, cognizance must also be had for leaving the legislature wide room to maneuver. As we have observed, the distinction between primary and secondary arrangements cannot be precisely drawn, because it varies from issue to issue. The reality of life often necessitates a compromise between the basic rule and other considerations, primarily considerations of efficiency.  Indeed, the legislature is familiar with the material, as well as with the extent of its capacity to deal with the material within the temporal confines within which it operates. It also understands the need to delegate the establishment of arrangements that require expertise and professionalism to the executive branch.  One cannot be overly strict with the Legislature in this matter. Occasionally, it is sufficient that the Legislature provide instructions at a high level of abstraction, in which the degree of guidance provided is limited. Such instructions, too, are capable of satisfying the requirements of the basic rule. See A.C. Aman and W.T. Mayton, Administrative Law [96] at 9; Schwartz [90] at 42. The basic rule regarding the establishment of primary arrangements is not primarily designed to negate the authority to delegate power to the executive branch due to the failure to comply with requirements to specify primary arrangements in legislation. The main function of the basic rule regarding primary arrangements is to give a limited interpretation to the delegation prescribed by the legislation. See Kischel [97] at 220-23. Thus, the main function of legal systems in recognizing the cardinal rule regarding primary arrangements is interpretative, as a means of narrowing the scope of authority conferred upon the executive branch. The primary rule is therefore of limited applicability as a constitutional rule that can invalidate statutes authorizing the administrative authority to establish primary arrangements.

The Basic Rule’s Legal Status in Israel

27.  What is the legal status of the basic rule regarding primary arrangements in Israeli law? In this respect, a distinction must be drawn between two periods. The first period, until the enactment of the Basic Laws regarding human rights and their interpretation by this Court in United Mizrahi Bank [16] and the second period, subsequent to the enactment of these laws, as the Court interpreted them in that case.

28.  During the first period, the basic rule regarding primary arrangements was one of the rules of Israeli public law. It formed part of the common law, “Israeli style.” It was first and foremost an interpretative rule. Accordingly, there was an interpretative presumption that delegation of power to enact administrative regulations or orders was delegation exclusively for the establishment of secondary arrangements. See Rubinstein [72] at 361. It was in relation to this interpretative presumption that I wrote:

[W]here power to enact administrative regulations has been delegated to the executive branch, we must presume that this power is intended for implementing those arrangements set out in the legislation. There is therefore a presumption that the power to enact administrative regulations is the power to enact implementing regulations (secundum legem). It cannot be assumed that the purpose of delegating authority for administrative regulations was to empower the administration to enact administrative regulations “external to the law” (praeter legem) or administrative regulations that goes “against the law” (contra legem). Thus, if the Knesset is the legislative branch, only a delegation of the power to enact administrative regulations that implements the basic principles and standards (primary arrangements) established in the legislation is consistent with this principle. Thus, the legislature will be presumed to have authorized the administrative agency to establish principles and standards that are prescribed in the legislation (“secondary arrangements”) only. Needless to say, this is a presumption that may be rebutted.

Barak, Interpretation in Law [76] at 528.

 

This having been said, a concrete expression of this presumption can be found in those cases in which the Court interprets the language of the law against the backdrop of the legal system’s basic principles. These principles include, inter alia, the doctrine of the separation of powers, distinguishing between the power of the Knesset as expressed in the Basic Law: The Government, the Rule of Law and democracy (both formal and substantive). All of these form the statute’s “general purpose," which was given interpretative weight by the Court. See HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior [17] at 769. Even so, this general purpose may be overridden when it conflicts with a particular, conflicting purpose. See HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa (hereinafter- Poraz [18]), at 329. The Knesset was therefore entitled not to take the basic rule into account, and to reject it. It was authorized to grant the executive branch the power to enact primary arrangements. Thus, Prof. Klinghoffer was correct in stating:

 [I]n the absence of a constitution, the Legislature is omnipotent and therefore entitled to delegate the authority to enact administrative regulations to the administration at its own discretion.  Legally speaking, there is no obstacle in the path of formal delegations.  It is sufficient that the law itself specify certain matters, empowering the administration to legally regulate them, without the statute itself taking any pain concerning their regulation. This path is legally acceptable.

Klinghoffer [79] at 117.

 

In fact, together with the basic rule regarding primary arrangements, the Court also ruled that the Knesset was entitled to delegate the power to determine primary arrangements to the administration. See e.g. HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya (hereinafter – Aksel [19]) at 1531; Petach Tikvah [3] at 831. Deputy President Justice Shamgar discussed this point, writing that:

“…[T]he boundary that is supposed to limit the administrative agency to setting out secondary arrangements alone is not always adhered to by the legislature itself. However, even though this phenomenon is undesirable with respect to the existence of a substantive rule of law, it does not invalidate the administrative regulations in question per se. The standard for ascertaining the validity of the administrative regulations is prescribed by the legislation, which sets out the areas in which the administrative agency may act, by specifically authorizing acts of administrative regulations in defined areas…” Miterani [2] at 357.

Thus, the Legislature is entitled to ignore the basic rule. It is permitted to empower the executive branch to establish primary arrangements in administrative regulations or in administrative orders. Indeed, an examination of the statutes indicates that there are numerous delegations made by the Legislature to the executive branch for the purpose of determining primary arrangements. See Zamir, “Administrative Legislation” [78] at 70; Bracha, Administrative Law [73] at 94. See also A. Barak, “Subordinate Legislation” [85]. As a result, the interpretative presumption is one that may be refuted.  In effect, it was refuted in all those cases in which the interpretation of the empowering law, in light of its special purposes and other interpretative presumptions, led the Court to conclude that the statute’s overall intention was to empower the executive branch to prescribe the primary arrangements. It was during this first period that the legal consultants of the Government were instructed by the Attorney General to word the bills in a manner that would include the primary arrangements so that the executive branch’s power would be limited to the authority to establish arrangements for implementing the relevant statutes. This point was made by the Attorney General at the time (Prof. Zamir) in a guideline that he issued, stating inter alia:

“It is appropriate that the authors of various bills in the government offices be aware, with respect to any bill, of the proper relationship between legislation and administrative regulations. In this context, the guiding principle is that it is appropriate that the statute itself establish primary arrangements, to the extent that it is possible in accordance with the nature of the subject and under the circumstances, whereas the enactor of the regulations is empowered to establish only secondary arrangements via regulations (in other words – regulations for the purpose of implementation.” Zamir, “Attorney General’s Guidelines” [84] at 346.

Even so, these were guidelines from which the Knesset was entitled to deviate.

29.  So, during the first period, the main question that arose was not whether the Legislature was entitled to empower the executive authority to enact primary arrangements. The clear answer to this question was in the affirmative. During that time, the decisive question was whether the legislature had in fact empowered the executive branch to establish primary arrangements. The answer to this question was found by interpreting the empowering statute. In this context, the crux of the matter was the power of the presumption that the legislature had not empowered the subordinate authority to establish primary arrangements. The key question was therefore, in which cases can one rebut the presumption that primary arrangements must be set out by the Knesset.

30.  The case law did not provide a complete answer to this question. A distinction between administrative regulations and administrative orders that do and do not violate human rights emerged. For administrative regulations and orders belonging to the first category, the presumption regarding primary arrangements was quite weak. This, however, was not the case with respect to administrative regulations and orders that do violate human rights. Here, there emerged a clear position in the case law, which held that where a legislative arrangement violates individual liberty, generally speaking, the empowerment in the legislation must be clear, specific, and unequivocal. This point was made by Deputy President Justice Shamgar with respect to legislation that empowered the administrative agency to violate freedom of occupation:

… empowerment in this context means “express empowerment” and my intention here is only to cases in which the Legislature clearly states that it has empowered the administrative agency to enact regulations that set out prohibitions or restrictions on engaging in a particular profession ...

...      

... in the absence of a constitution establishing the legal status of basic civil rights, there is no restriction on the provisions which may be prescribed by statute (ordinary legislation) (with the exception of a few areas. See e.g. sec. 4 of the Basic Law: The Knesset. Administrative regulations on the other hand, derive their validity exclusively from the empowerment conferred by the legislature. Thus, when the issue relates to imposing restrictions on basic rights, the administrative agency has no authority to act, in my opinion, in those areas except if specifically and expressly authorized by the Legislature to act in the said area by way of restriction or prohibition, respectively ...

Miterani [2] at 358-59.

 

This approach is not strictly limited to legislation empowering an administrative agency to violate the freedom of occupation. As was held in the Miterani [2] case, this approach is a general one, applicable to any case in which the empowerment violates basic human rights. See Aksel [19] at 1531; HC 200/57 Bernstein v. Beth Shemesh Local Council [20] at 268;  HC 124/70 Shemesh v. Companies Registrar [21] at 513; HC 144/72 Lipabski- Halipi v. Minister of Justice [22] at 723; HC 333/85 Aviel v. Minister of Labor and Welfare (hereinafter – Aviel [23]), at 600; Pri Ha’Emek [4] at 561.  Thus, the approach that required specific, clear, and unequivocal authorization in order to empower the executive authority to violate individual freedom was also applied to freedom of expression (CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co. [24] at 295; FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co. [25] p. 359), to the right to equality (HC 301/63 Streit v. Israeli Chief Rabbinate [26] at 639) and to property rights (HC 249/64 Baruch v. Customs and Duty Supervisor [27] at 489; Aviel [23] at 595). This line of case law led to increased protection of individual freedom. The legislature’s empowerment was generally interpreted as permitting the violation of individual freedom only if its expression was specific, clear and unequivocal, i.e. where the legislation determined that the administrative agency was entitled to restrict a particular occupation. This was interpreted as empowerment for administrative regulations that also included the power to establish primary arrangements. See Miterani [2] at 358-59.       

31.  The second period began with the promulgation of the Basic Laws regarding human rights and their interpretation in the United Mizrahi Bank case [16].  In fact, with the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, there was a substantial change in the status of the human rights that were entrenched in these laws.  They received a super-legal constitutional status. United Mizrahi Bank [16]; HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court [28] at 503; HC 453/94 Israeli Women’s Network v. Government of Israel [29] at 526; HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority [30] at 363; HC 726/94 Klal Insurance Company. v. Finance Minister [31] at 465; HC 1255/94 “Bezeq," Israeli Telecommunications Company, v. Communications Minister [32] at 680; HC 5319/97 Cogan v. Chief Military Attorney [33]; HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Minister of Transportation [34] at 814; CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach [35] at 71; HC 4541/94 Miller v. Defense Minister [36] at 110, 131. In fact, following the adoption of the two Basic Laws regarding basic rights and the meaning given to them in United Mizrahi Bank [16] Israeli law was constitutionalized. See F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law] [86]; R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law] [87]; A Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax] [88]; A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law] [89].  Constitutional rights are reflected (directly or indirectly) in all areas of law. See Lev [28] at 503. In one case, I addressed the meaning of the term “constitutionalization”:

The significance of constitutionalization is that every branch of law and every legal norm is influenced by the constitutional arrangements regarding human rights. The constitutional human rights are reflected in all branches of law and influence every legal norm.

CrimApp 537/95 Ganimat v. State of Israel [37] at 421.

 

And in the United Mizrahi Bank case [16] I stated:

Israeli law has been constitutionalized, and human rights are reflected in all branches of law (public and private) and influence their substance. Whereas in the past human rights were derived from the arrangements extant in the various areas of the law, now the same areas of law are derivatives of the constitutional human rights.

Id. at 447.

 

   These changes affect the legal status of the “basic rule," according to which primary arrangements must be set out in legislation. For the purposes of the case at bar we need not dwell on the entire scope of these changes, for the Defense Minister’s authority at issue is based upon legislation that preceded the constitutional changes, the validity of which is maintained as part of the old law. Hence, we have no need to adopt a position regarding the relationship between the exercise of the Defense Minister’s authority and the rights entrenched in the Basic Laws. Suffice it to note that the constitutional laws respecting human rights fortify the basic rule. This fortification is expressed by an interpretative presumption that the law did not intend to vest the executive branch with additional power to establish primary arrangements. Hence, the statutory power to prescribe primary arrangements in administrative regulations remains in force and its validity is not impaired. New Basic Laws, according to their interpretation in the United Mizrahi Bank case [16] cannot detract from the validity of existing legislation. Even so, in the absence of any contradictory provision, an interpretative effort must be made, where possible, to give this empowerment a restricted interpretation, so that it will be exercised, wherever possible, in a manner consistent with the basic rule governing primary arrangements. In this vein, there are cases in which the executive branch must refrain from making substantive decisions on basic social issues which are the subject of sharp public controversy. It must leave these decisions to the Legislature. For example, the matter of deferring the enlistment of women whose service during a particular year is not required is left to the Defense Minister’s discretion.  The decision will be a pragmatic one, based on the needs of a particular year, as such a decision will not seek to resolve the fundamental issue of the nature of women’s service in the military, which is the subject of a fierce public controversy.  Thus, the Minister is not empowered to adopt a decision by virtue of which women as such, or married women, or women whose religious convictions prevent them from serving in the defense service, are to be exempted from serving in the military.  This is a matter for the Knesset, which must determine, as part of the social resolutions that it is charged with, the State’s position on that matter. Indeed, the Knesset adopted this path regarding the exemption of married women (sec. 39 of the Defense Services Law) and that of women requesting an exemption for reasons of religious convictions (sec. 40).  The same applies to deferral of service for men. Where the considerations [underlying a particular decision] are practical – pragmatic, dynamic – the Defense Minister can make such a decision.  However, when the consideration is one relating to resolving a sharply disputed general social issue, the matter must be dealt with via a primary arrangement in legislation.  More specifically, the position we are adopting does not preclude the executive authority from determining general policies regarding the exercise of its powers. Generally speaking, it is both permissible and desirable that the executive branch set out general guidelines. Our position is simply that there are certain, special issues regarding which the executive authority is not endowed with the power to adopt fundamental decisions on fundamental issues that divide society. There are matters that the Knesset must resolve. Regarding these matters, the executive must be satisfied with determining the policy for implementation. Practically speaking, this means that, in general, the Court will give a limited construction to the powers that the law grants the executive branch. This has been the practice of the Courts in those legal systems in which this basic rule has constitutional status and not just interpretative status. Regarding the approach adopted in the United States, Kischel wrote the following:

 

The question whether a delegation is so broad that its constitutionality becomes doubtful, depends first on an interpretation of the exact scope of the statutorily conferred powers. Here it is of course possible for a court to accept a very broad interpretation, and to then declare even this maximum to be constitutional. Today, however, the Court takes the opposite path. The Court circumvents possible delegation problems by making a narrow interpretation of statutory language, thus using the delegation doctrine as an Ashwander like principle.

Kischel [97] at 222.

 

The Courts in Germany adopted a similar approach. Id. at 232. We, too, have followed this approach, incorporating the law established in Ashwander v. Tennessee Valley Authority (1936) [63]. Accordingly, all legitimate interpretative efforts must be made to avoid a law’s invalidation.  This rule was cited by President Shamgar in United Mizrahi Bank [16] at 350, stating that “when the validity of a law … is being adjudicated, even where there is serious doubt as to its legality, the central guiding rule is that the Court must first examine the possibility of a reasonable interpretation, by which it can avoid having to decide the question."  This Court has practiced this interpretative approach of statutory construction. HC 4562/92 Zandberg v. Broadcasting Authority [38] at 810, 814, 815; HC 7111/95 Center of Local Government v. The Knesset [39] at 496; HC 5503/94 Hofnung v. Speaker of Knesset [40] at 67; HC 5503/94 Segal v. Speaker of Knesset [41]; HC 450/97 Tenufa Manpower and Maintenance Services  Ltd. v. Minister of Labor and Welfare [42].  Needless to say, this approach is possible only where the statute’s language permits such a narrow construction.  The statute’s text cannot be forced, nor can interpretative rules be distorted. However, within the framework of accepted interpretative principles, the interpretative option that is consistent with the basic rule regarding primary arrangements should be selected.

 

From the General to the Specific

The Defense Services Law sets forth the duty of defense service (regular service or reserve service). It establishes the duty’s scope and the modes of fulfilling it. Together with these provisions, it also establishes the Defense Minister’s authority to defer service or grant an exemption. He may do so:

[F]or reasons related to the size of the regular forces or reserve forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement, or the national economy or for family or other reasons…

Sec. 36 of the Defense Services Law.

 

Is the Defense Minister authorized to exercise his authority and grant a deferral to full-time Yeshiva students of the dimension and scope which such deferrals have reached today? This question turns on the division of powers between the legislative and executive branches.  It goes to the issue of whether establishing principles and criteria respecting the social issue of service deferral for full-time Yeshiva students is the Legislature’s exclusive province, a matter that it alone should determine as part of the primary arrangements that it must establish.

33.  The question is not a new one for us. President Landau dealt with it in the petition concerning service deferral for full-time Yeshiva students preceding the Ressler [1] case. In dealing with a request for a further hearing, President Landau raised the issue of  “whether the matter required … a specific statutory resolution, pursuant to a comprehensive debate in the Knesset, precluding its resolution in an administrative decision of the Defense Minister, or by way of a government decision in its executive capacity as part of implementation of a coalition agreement.” He noted that “this is an argument … that, to my mind, is worthy of being heard.” FH 2/82 Ressler v. Defense Minister [43] at 711-12.  This having been said, he did not rule on the issue, for it had not been discussed in the judgment regarding which the petition for a further hearing had been filed, nor was it included in the petition for a further hearing.

34.  Ressler [1] discussed this question. In my judgment, I mentioned that the Rule of Law dictated that “primary arrangements” ought to be specifically prescribed by statute, and that the executive branch should not be endowed with general empowerment to independently establish primary arrangements. Ressler [1] at 502. I added that:

[I]t is desirable that by force of the principles underlying a “true parliamentary democracy,” the Knesset should adopt a specific position regarding the issue of deferring the enlistment of Yeshiva students, and not be satisfied with the general, across the board, empowerment of the Defense Minister to grant enlistment deferrals “for other reasons” …

Id. at 502.

 

This having been said, I emphasized that “I am not convinced that the Knesset’s failure to establish primary arrangements and its failure to supervise the arrangements established by the Defense Minister means that such general empowerment is invalid.” Id. I noted that the “other reasons” need not necessarily be security-related, and they extend to non-security based considerations, which in my opinion also include religious reasons. Id. at 502-03. In a later judgment, I cited Ressler [1], stating:

Our lives are replete with issues that in the past were anchored in administrative regulations but ought to be regulated by legislation. Suffice it to mention the issue of the Yeshiva students’ enlistment in the military.  It was argued before us that the latter issue, being an important one, ought to be regulated in legislation. Even so, we held that the absence of primary arrangements in legislation does not invalidate the administrative regulations in this matter.

Horev [6] at 76.

 

Thus, there is already a previous ruling in this matter.  The question before us is whether the new circumstances, both factual (relating to the increase of the number of Yeshiva students whose enlistment was deferred and the broadened scope of those entitled to a deferral) and legal (the strengthening of the interpretative power of the basic rule), justify reaching a different conclusion. In Ressler [1], the Court stressed that “quantity becomes quality.” Id. at 505. How do all of these affect the question currently confronting us? I will now proceed to examine this issue.

35. My point of departure is that, following the Ressler [1] case, the power granted to the Defense Minister to defer military service for “other reasons” also included the power to defer full-time Yeshiva students’ defense service.  Admittedly, the Defense Services Law does not set forth any criteria regarding how that power is to be exercised. We are therefore confronted with an extreme case of delegation of power to the executive branch, without the legislation containing guidelines for the Defense Minister with respect to the primary arrangements. In interpreting this provision today, I accept that, as a matter of principle, the Defense Minister is entitled to defer the defense service of full-time Yeshiva students. Even so, the exercise of discretion must be done with cognizance of the basic rule concerning primary arrangements. This is an interpretative principle that affects the considerations to be taken into account by the Defense Minister.  The interpretative conclusion dictated thereby is that the scope of the Defense Minister’s discretion is within the framework of the basic rule. He is authorized to grant a service deferral to full-time Yeshiva students, but this decision must be part of a national decision adopted by the Knesset, relating to the State of Israel’s position regarding the disputed social issue of granting service deferrals to full-time Yeshiva students.  A fundamental decision of this nature must be a parliamentary decision, not just a decision made by the Defense Minister. The Defense Minister’s discretion must be exercised regarding these particular issues, within the context of a fundamental Knesset decision.

The National Decision

36.  Granting enlistment deferrals to full-time Yeshiva students is a subject of controversy in Israel, and there is no national consensus on the matter. The dispute is not just between the observant and the non-observant. Within the religious camp itself there are many and varied views.  I referred to this in Ressler [1]:

There are those who maintain that the State could not exist without deferring their enlistment and those who maintain that the State cannot exist without their enlistment. Some see the deferral of their service as a noble act while others perceive it as vile. There is no social consensus on the matter.

Id. at 505.

 

    Far from being exclusively ideological, the rift in question involves a clash between various human rights. On the one hand, there is the ideal of equality, dictating that all of the members of society must contribute equally to its security. The current situation, in which a significant portion of these individuals of service age do not risk their lives for the security of the State is very discriminatory, engendering deep feelings of exploitation amongst those who serve.  Indeed, equality is “the very soul of our entire constitutional regime.” See Justice Landau’s comments in HC 98/09 Bergman v. Finance Minister [44] at 698. It is a principle “that pervades our legal thinking, forming an integral part thereof.” HC 114/78 Borkan v. Finance Minister [45] at 806 (Justice Shamgar’s opinion).  Thus, Deputy President Elon was correct in stating:

[T]he principle of equal rights and obligations for all of the State of Israel’s citizens is part of the State of Israel’s very essence.

EA 2/88 Ben Shalom v. Central Elections Committee for the Twelfth Knesset [46] at 272; See also his opinion in HC 153/87 Shakdiel v. Minister of Religious Affairs [47].

 

In another case, I noted:

 

[E]quality is a basic value in any democratic society, ‘which the law of any democratic society attempts to realize, for reasons of justice and fairness …’ The individual becomes part of the entire social fabric; he or she shares in building the society, in the knowledge that others, too, are acting as he does. The need to ensure equality is endemic to human beings; it is based on considerations of justice and fairness. A person desiring the recognition of his or her rights must recognize the rights of others to seek similar recognition. The need to maintain equality is critical for society and for the social agreement upon which it is based. Equality protects the government from caprice. In fact, there is no factor more destructive to a society than the feelings of its members that they are being dealt with unfairly. The feeling of inequality is a particularly harsh one. It undermines the unifying forces of the society. It damages the personal identity of a human being.

Poraz [18] at 332.

 

On the other hand, we have the rights relating to freedom of religion. This freedom includes, inter alia, the right to fulfill religious commandments and requirements.  It has been argued that the forced enlistment of full-time Yeshiva students may violate their freedom of religion and is liable to offend their religious feelings, which must also be taken into account. See Horev [6].

37.  The issue of enlisting full-time Yeshiva students is not merely an ideological one, in which human rights clash with each other. In Israel, it has become a major social problem. Full-time Yeshiva students whose enlistment has been deferred are not permitted to work. The material opportunities at their disposal and at their family’s disposal are meager, and poverty is their fate.  They are not absorbed into the work force. Even those who leave the arrangement are not absorbed into the workforce, for fear of being drafted into the military, and idleness is the mother of all sin. This creates an entire population, which is not incorporated into the work force, with the subsequent increase in poverty and reliance upon allocations both from the State and private sources.  A social problem of the first degree has thus arisen.

38.  The enlistment of full-time Yeshiva students also creates a complex social-military problem. This problem regards military considerations relating to the integration of these enlistees. Is it desirable for the military to enlist these Yeshiva students? Is it efficient to enlist them? Would it be efficient to enlist some of them, for example those found fit for military service, or those who do not remain in the Yeshiva framework? If we decide that their enlistment is not efficient, then what weight attaches to that consideration when compared with the other considerations, which we dealt with?  Quite frequently, the military enlists draft candidates despite the fact that the expected effectiveness of enlisting them is low, and even particularly low. It does so for a variety of reasons. Should a similar approach be adopted for the issue at bar? Is there any possibility of increasing the effectiveness of their service by preparing special structures for Yeshiva students? Is that effort worth it, in light of the Yeshiva students’ life style?

39.  The solution to these problems is by no means simple, because they raise fundamental social and military problems.  Our approach is that this sort of penetrating national question must be resolved by the legislative branch, the Knesset. This is the only way of expressing “the optimal national consensus that will facilitate communal life ...” See the comments of my colleague, Justice Or, in Mitral [15] at 498. This is the only way of “… examining the issue in all its aspects, considering the different alternatives.” HC 355/79 Katalan v. Prison Authority [48] at 303. Hence, it follows that the Knesset cannot “pass the buck” to the Defense Minister, so to speak. Instead, it must resolve the issue statutorily. This is how a legal system faithful to the doctrine of separation of powers operates, in which the Rule of Law is maintained and where the democratic principle constitutes part of the “genetic code of all of the binding norms in Israeli Law.” See the comments of my colleague, Justice Cheshin, in Nevuani [12] at 121. Needless to say, we do not adopt any position regarding the substantive questions requiring answers, and the enumeration of the various social options does not constitute the adoption of any position as to their legality. Examination of that would be done in accordance with the constitutional framework within which these social arrangements are established.

40.  Is our approach consistent with the Defense Minister’s power to defer enlistment for “other reasons?” Here, we are confronted with an interpretative problem. We must interpret the Defense Minister’s power against the backdrop of the need to bring to fruition, by way of interpretation, the basic rule regarding primary arrangements. Such interpretation leads us to the conclusion that the Defense Minister’s powers ought to echo the difficult social decisions adopted by the Legislature. It is not for the Defense Minister himself to arrogate the power to make this decision. Indeed, the ideological-social problem regarding the enlistment of full-time Yeshiva students and the various solutions thereof must be resolved through the legislative activities of the branch which, in a democratic system such as ours, deals with such problems. This is not the executive branch.  In Israel, it is the legislature.

41.  Is our conclusion consistent with our decision in Ressler [1]? It seems to me that we may answer this question in the affirmative.  In Ressler [1] we emphasized that “quantity becomes quality.” Id. at 505. Since rendering our decision in Ressler [1], the arrangement’s dimensions have expanded, to the extent of becoming a national problem. It was not presented to us as such back in Ressler [1]. Hence, our attention then was directed primarily at the issues of standing and justiciability. The actual problem of enlisting Yeshiva students was not presented to us as a national problem of urgent importance. Since then, there has been an increase in the number of Yeshiva students whose military service has been deferred, and the trend indicates a continued rise.  There is reason to assume that it will continue to increase in the future. There have also been changes in the kind of enlistees who are granted the service deferral.  Hence, the arrangement has been broadened to include those who did not study in a Yeshiva High School, but rather those who studied in a regular religious high school and whose matriculation examinations included Talmud at the level of five units. The arrangement was also broadened to include the newly penitent.  It was further broadened so as to include not only full-time students, but also those whose professions, which were also their livelihood, is teaching Torah.  There is a point at which the large quantity of those included in broad sections of military candidates becomes a qualitatively different category. Furthermore, since our decision in Ressler [1], there has been a substantive change in our conception of our constitutional structure. The basic rule regarding primary arrangements has been reinforced, which in turn affects the interpretation of the power statutorily conferred on the Defense Minister by the Defense Services Law and the understanding of the case law that interpreted that power. The strength of the basic rule has increased together with the interpretative weight attaching to it when interpreting the Defense Minister’s powers. All of these constitute “new circumstances,” which justify a new interpretation of the old power. In any event, I am convinced that the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time Yeshiva students receiving a military service deferral, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time Yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem.

42.  We have concluded that the service deferrals for full-time Yeshiva students as currently granted by the Defense Minister are illegal.  In view of this conclusion, it is unnecessary to adopt a position regarding the manner in which the Defense Minister’s discretion is exercised. Suffice it to say that the Defense Minister’s discretion, as evidenced by the factual foundation presented before us, is problematic: it is unclear whether the security consideration is the dominant one, and there is cause for concern that, due to the massive increase of those receiving service deferrals and the addition of new categories of recipients of service deferrals, the zone of reasonableness has been overstepped, in terms of the quantity making quality (Ressler [1] at 505) and in terms of the weight that ought to have been accorded and which was not accorded to the principle of equality. However, as stated, since we have decided that the Defense Minister is not authorized to make a fundamental decision in this matter, we need not address the question of whether he legally exercised his discretion.

The Remedy

43. Our conclusion is that, in the present situation, the Defense Minister exercises his discretion in granting service deferrals to full-time Yeshiva Students in accordance with a principled decision that should be made by the Knesset. Consequently, the current exercise of power is illegal. Accordingly, decisions adopted by the Defense Minister regarding service deferrals for Yeshiva students were illegally adopted. Even so, there is no pragmatic way, overnight, to alter a situation that has endured for so long. The Defense Minister or the Knesset should be allowed to conduct a serious and organized discussion regarding the entire issue and all of its ramifications. Moreover, if a decision to alter the current situation is made, the necessary framework should be established. It is impossible to adopt an alternate arrangement from one day to the next. In these circumstances, there is no way of immediately ruling that the current arrangement is invalid. We must postpone the impat of our decision. With respect to our authority to do so, we mentioned in another case that:

“Our power to postpone the date upon which the declaration of invalidity goes into effect is well founded ... in comparative law. A similar power is given to a court that declares legislation invalid…

...

A similar law applies in Israel. Needless to say, this court will make use of its power to postpone only in special cases that warrant it.” HC 1715/97 Investment Managers’ Bureau v. Finance Minister [49] at 416.

The case at bar warrants the use of the said power. Having considered the period of the delay, we have reached the conclusion that the appropriate period of postponement is twelve months from the day this judgment is rendered, i.e. until December 9, 1999.

Consequently, the matter is decided as per section 43 of the judgment.

Deputy President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Zamir

I agree.

 

Justice D. Dorner

I  agree.

Justice J. Türkel

I agree.

Justice D. Beinisch

I agree.

Justice I. Englard

I agree.

Justice M. Cheshin

The phenomenon is as old as the State itself. It is the deferral of and exemption from military service granted to full-time Yeshiva students. This exceptional phenomenon has accompanied us over the years and is a source of dissatisfaction for many people. How is it, they ask, that part of the population bears the yoke for the collective, while another part is exempt from bearing that yoke, yet benefits from the burden that others bear on their shoulders? Is this right and appropriate in a society in which all are supposed to be responsible for each other?  Many have not come to terms with this unique state of affairs, and hence, the issue has reached the High Court of Justice.  The Court has addressed petitions regarding the deferral/exemption of military service for Yeshiva students on at least five occasions, each time dismissing the petitioners empty-handed.

2.    In the beginning, the issue was raised in the High Court of Justice in HC 40/70 Becker v. Defense Minister (hereinafter- Becker [50]). That petition argued that 5,000 Yeshiva students had been released from military service. The petitioner requested that he, too, be released from the period of his military service equivalent to the period that had been added to his service, due to the exemption of 5,000 Yeshiva students. The Court did not even trouble the respondent's lawyer to appear before it to explain why certain things had happened and why other things had not happened. Instead, it decided to reject the petition outright, by reason of the petitioner’s lack of standing and the injusticiability of the subject.

Justice Witkon characterized the petition as a “collective public petition,” and for that reason, he held that that there was no cause for addressing it. Justice Witkon stated, inter alia, that the Court must be careful “…not to be dragged into the general, public debate which is entirely a dispute on its own merits. It is preferable that it be left in the hands of the political elements responsible for it … this clearly being a political issue, there is reason to apply a stricter application of the requirement that the petitioner have standing ….” For his part, Justice Y. Kahn concurred with Justice Witkon’s reasoning, adding that “it is well known that the reason given for granting service deferrals to Yeshiva students is the need to preserve the institutions in which Torah is studied, after the destruction of such learning centers during the Holocaust.” Id. at  249.

I confess that, even when the judgment was rendered, it made no sense to me. The statement that the subject is of “a clearly political nature” and that the Court ought therefore to distance itself from it, was as difficult for me to understand then as it is today.  Is serving in the I.D.F. a political issue? Did the Court think that political agreements as such could exempt the youth from serving in the I.D.F.?  Furthermore, had the issue been one of an exemption for 50,000 Yeshiva students, would the Court have maintained its position? And if, in the latter case, a different answer had been given, then does the “character” of the subject change from political to non-political, purely on the basis of the number of those benefiting from the exemption/deferral?  With respect to the (additional) reasoning of Justice Y. Kahn regarding what is termed the preservation of the burning embers [preservation of tradition – ed.], I say that even if we presume that Justice Kahn was correct in assuming that we are charged with the national task of restoring and rejuvenating the Torah Study centers that were destroyed, are we not still justified in examining the propriety of benefiting so many Yeshiva students, 5,000 specifically, by granting the exemption/deferral? Would it not have been appropriate, at least, to hear the respondent's opinion on the matter? We all know that a judgment of this nature could not be handed down today, and personally, I think that even at that time, the judgment was exceptional and extreme.

3.    The issue of granting exemptions/deferrals to Yeshiva students was once again presented to this Court in HC 448/81 Ressler v. Defense Minister [51], and, once again, the petition was rejected. The Court relied on the Becker [50] decision and decided to dismiss the petition for essentially the same reasons that Becker [50] was dismissed. To quote Deputy President Kahn: “In my opinion, the petitioners have not succeeded in establishing their right of standing, which would justify this Court actually deliberating on the petition, which on its face appears to be non-justiciable.” Id.at 86. He added that “…the petition before us cannot be upheld, for its subject is not amongst the matters that can be adjudicated by a Court. The question of whether or not to enlist full-time Yeshiva students is one on which the Court lacks any legal standards upon which to base a judicial finding. Id. at 88. Deputy President Kahn added:

 …even if the petitioners were to prove with signs and wonders (and as I said, I do not think that such proof can be made) that their reserve duty would decrease as a result of the enlistment of Yeshiva students, I would not see this as providing cause for issuing an order nisi. The issue of whether or not to enlist Yeshiva students is essentially a public problem, the resolution of which must be left to the political elements, whose task it is to decide these issues. The arrangement of deferral of service for Yeshiva students has existed since the establishment of the state, and the respondent has not made any significant change in the matter.

Id.

Deputy President Kahn further said:

 The petition clearly evidences an effort to drag this Court into a public-political debate regarding a sensitive and volatile issue, regarding which there are serious differences of opinion in the public at large.  The petitioners cannot succeed, due to their lack of standing, the fact that the subject is non-justiciable, and the fact that they have shown no cause for this Court’s interference with the exercise of discretion that was conferred on the respondent by the legislature.

Id. at 89.

In this case, too, no one was summoned from the State Attorney’s office to explain what (in my opinion) ought to have been explained.  Today we know (from the information provided by the State Attorney’s office) that at that time there were more than 11,500 Yeshiva students who were benefiting from the exemption/deferral.

I confess that I find this ruling particularly difficult, and I found it difficult at the time it was rendered.  I am prepared to agree that the issue is a public, political one. I am also prepared to agree that the issue is sensitive and explosive. I will further agree that the matter is the subject of serious public controversy.  I agree to all of these, but I still find it difficult to understand why those particular factors have the effect of locking the gates of the Court, at a time when it is claimed that the Defense Minister is making arbitrary use of his power and illegally exempting thousands of Yeshiva students from service. Is the statement that the issue is “political” a magic word that closes gates? Can this statement shelter the Defense Minister, allowing him, albeit indirectly, to systematically and sweepingly breach the law, with none of us, the people of the law, having anything to say?  Is there no real legal aspect to the Defense Minister’s activities? The judgment in HC 448/81 [51] was handed down at the end of December, 1981. We all know that no more than six months later, the Yeshiva students’ contemporaries went to war, some of them never to return.

4. The petitioners in HC 448/81 [51] did not give up and requested a further hearing in FH 2/82 [43]. President Landau’s decision signaled a fresh approach. First of all, the President ruled that the petitioners’ locus standi had been proved, even if only for the reason that an “entire additional division” could be created from the aggregate number of draft candidates who benefited from exemptions and deferrals from military service. Even so, President Landau denied the petition due to it not being justiciable, albeit he did so reluctantly. Finally, President Landau mentioned the claim that had been raised, that the issue of the deferral/exemption “required a specific legislative resolution, following a comprehensive Knesset debate” and that “"it could not be resolved via the Defense Minister’s administrative decision nor by a Government decision in its executive capacity, seeking to implement a coalition agreement.” Id. at 711-712. Referring to this claim, President Landau opined that in his view “it ought to be heard,” but that given that there hadn’t been any ruling in the case that was the subject of the further hearing, it could not serve as the foundation of the further hearing. The claim was dismissed, but the seed was planted. Years would pass until the seed would begin to mature, and now it has sprouted from the ground.

5.    Ressler and his companions were not deterred. About one month after the decision in their petition for a further hearing, they filed a new petition: HC 179/82 Ressler v. Defense Minister [52]. However, this petition, too, was rejected due to the petitioners’ lack of standing.

6.    Thus, we arrived at the next Ressler case, namely HC 910/86 Ressler v. Defense Minister, IsrSC 32(2) 441.  This time, the Court held that the petitioners had standing and that the question of exempting Yeshiva students is one that should be heard on its merits. Having reached this conclusion, the Court reviewed the Minister’s discretion, and decided the two following points:  First, that the Defense Minister had been statutorily endowed with the discretion to grant a deferral/exemption to Yeshiva students. Second, that the Defense Minister had not exceeded the zone of reasonableness. At the time, over 17,000 Yeshiva students benefited from the exemption/deferral. We should recall that sixteen years prior to the Ressler case, there were 5,000 Yeshiva students affected, and five years prior thereto, the number of those receiving the deferrals/exemptions was 11,500.   Nevertheless, the Court opined that the number of those receiving releases from military service did not deviate from the statutory parameters established for the Defense Minister’s discretion. Even so, Justice Barak wrote to add the following:

 In balancing the various considerations forming the basis for the Defense Minister’s discretion under section 36 of the statute [the Defense Services Law [Consolidated Version] 1986] the determining consideration must be that of security. It was for that purpose that the Defense Services Law was enacted and some of the exemptions from military service are formulated in that spirit ¼ at the end of the day, there is significance to the number of Yeshiva students whose enlistment is deferred.  There is a limit that no reasonable Minister of Defense may exceed. Quantity becomes quality. In this matter the petitioners have not discharged their burden of showing that the harm to security is not minor.

Id. at 505.

     And further on (at 506-07):

…if the number of those whose service is deferred by reason of Torah study continues to increase until it includes a very large number of men of military age, to an extent that harms security, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be canceled.

President Shamgar added to this (at 525-26):

 ¼what we now determine regarding the legal validity of the arrangement, when it is subjected to substantive judicial review for the first time, does not exempt the Executive from the duty of periodically continuing to examine and reexamine the significance of granting an exemption to increasing numbers of men of military age.

¼ therefore, we are not speaking of static data but rather of facts which change and which are updated on a yearly basis. This means that it is incumbent upon the authorized body to examine the data annually and state its opinion concerning the ramifications of the data, against the background of other considerations.

 When I read the judgment at the time – a judgment that is both brilliant and unique for its addition to the doctrines of standing and justiciability – I had considerable difficulty with it. I asked myself whether an interpretation of the Law, under which the Defense Minister is authorized to exempt over 17,000 youths from military service could be appropriate. Is it appropriate that so much authority be concentrated in the hands of one person, the Defense Minister, even with the Government’s consent, and indeed under its orders?  Is an interpretation of the Law according to which the Defense Minister is endowed with such far-reaching powers consistent with the main principles of a parliamentary democracy, or if you prefer, of a Jewish democratic State?  This question has haunted me, unceasingly, since then, perhaps even from the time of Becker [50].  

Primary Arrangements and the Interpretation of Law

7.    My colleague, the President, rules that, in a social framework governed by the Rule of Law in its substantive sense; in a society in which governmental powers and the power to coerce are divided between the legislative and executive branch; in a society in which human rights are at the pinnacle; in these social-governmental frameworks, first principles unequivocally instruct us that the broad exemption granted to Yeshiva students must be prescribed by statute. I unreservedly concur with the words of my colleague.

            For my part, I will add that this conclusion, which derives from the roots of our society and government, is also mandated by virtue of the Defense Services Law, from the time of its enactment (in 1949 and in its current form, [Consolidated Version] 1986) and from the legal infrastructure upon which it rests. The Defense Services Law [Consolidated Version] rests upon two foundations. The first – the principle that those reaching military age are subject to military service, including both regular and reserve duty.  The second – the principle that the Defense Minister is empowered to grant an exemption from military duty, to reduce the period of service, or to defer service. With respect to all of these, section 36 of the Defense Services Law states:

 

Authority to 

exempt   from or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order:

(1)  exempt a person of military age from regular service duties or reduce the period of his service;

(2)  exempt a person of military age from reserve duties for a specific period or totally;

(3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

To complete the picture, I will cite section 55 of the Law, under which an order pursuant to section 36 of the law can be “personal or for a particular class,” distinct from orders issued under other provisions of the law which can be general, for a particular class, or personal. 

I will also mention section 54(a) (opening section) of the law under which the Defense Minister may delegate his powers under section 36 of the law to another person. The Defense Minister exercised this power and delegated his authority to exempt men of military service from regular service and to reduce or defer the service period for a long list of positions: Assistant to the Defense Minister, the Chief of the General Staff, Deputy Chief of General Staff [… ed.]. All these positions are specified in the notification of delegation of authority published in the Official Gazette No. 202 (Nov. 4, 1997).

8.    We can all agree that the basic duty of men of military age to serve in the military, in regular or reserve duty, must be prescribed by statute. The duty to serve in the military is like the obligation to pay taxes, and we would never agree, nor would it even occur to anyone, to impose it by force of administrative regulations, irrespective of how lofty the executive power creating the regulations may be (obviously this does not refer to emergency legislation). Thus, when it became clear that there was a lacuna respecting men of military age’s duty to serve, this is to say complete regular service for a period of 36 months, the Knesset responded immediately and amended the Defense Services Law [Consolidated Version] and specified in the Law itself that the period of service was 36 months. See Defense Services Law [Consolidated Version] (Temporary Provision), 1995; Bill for Defense Service Law (Amendment 6) 1994; Defense Services Law [Consolidated Version] (Temporary Provision) (Amendment) 1997; A Rubinstein, The Constitutional Law of the State of Israel [72] at 828-29.

Personally, I have found no operative distinction between the general obligation, in principle, to serve in the military and the general exemption, in principle, from service in the military. If the general obligation, in principle, to serve in the military can only be imposed by statute, then a general exemption, in principle, from military service must also find its place in legislation. An example of this is found in section 40 of the Defense Services Law [Consolidated Version] under which an exemption is granted to a woman of military age who declares in writing that reasons of religious conviction prevent her from serving in the military service and that she observes Jewish dietary laws at home and outside and does not travel on the Sabbath.  The same applies to the case at bar. The authority granted in section 36(1) of the Defense Services Law [Consolidated Version] "to exempt someone of military age from regular service, or to reduce the period of service," is no more than the authority to issue individual orders: to Rueben, to Simon, to Levi, to Yehuda. The Defense Minister was not endowed with the authority to issue a general exemption.

The Knesset signed a sovereign order establishing mandatory military service. In signing that order, in essence, the Knesset gave public notification that the cancellation of that order, either partially or completely, was exclusively within its authority. The one who prohibits is the one who can permit [in Jewish tradition – ed.].

9.    Even so, just as we cannot accept that the Knesset can establish a basic obligation of defense service whereas the Defense Minister – and not the Knesset – is endowed with the authority to abrogate that basic obligation either partially or otherwise, so too, for reasons of efficiency, it is inconceivable that the legislature be charged with issuing individual exemptions from military service. Consequently, the Knesset delegated the power to issue personal exemptions to the Defense Minister.  Then, with the Knesset's approval, the Defense Minister delegated this power to various position-holders. However, a normative exemption, an exemption from service to a very large section of the population, is a power that the Knesset reserved for itself. Any other interpretation given to the law will inevitably lead us to the conclusion that all the Defense Minister’s delegates also have the authority to grant a general exemption from military service. It is clear that the Defense Minister is not authorized to delegate normative power to various position-holders, and this interpretation of the law is unacceptable.

10.  The current Defense Minister, like all his predecessors in successive Israeli Governments since 1977, did not take care to ensure that he acted exclusively within the parameters of his statutorily-determined authority. Instead of granting exemptions to Rueben and Simon, to Levi and Yehuda, or having his agents do so, the Defense Minister took the normative step of granting a general exemption to Yeshiva students. The Defense Minister was not authorized to do so, and neither were the Defense Ministers who preceded him. His actions were ultra vires with respect to his legally conferred powers.

Just as the authority to issue general orders does not include the authority to issue individual orders, so too, the authority to issue individual orders does not include the authority to issue general orders.  In this context we wrote in LCrim. 1127/93 State of Israel v. Klein [53] at 510:

…the power to enact regulations must be distinguished from the power to issue individual orders. An agency’s power to enact regulations, as such, does not include the power to issue individual orders. This is certainly true in the reverse situation, to the extent that the power to issue individual orders does not encompass the power to enact regulations. By its very nature and essence, a regulation is a piece of [administrative – ed.] legislation with independent standing, and it is not equivalent to the sum total of individual orders that could have been legally issued during the same period of time. By its very nature, a statutory order carries more weight than any number of individual orders that may be issued from time to time. Consequently, it should be regarded as a single act, which cannot be divided into parts (i.e. individual orders). For the same reason, because the respective nature of the powers is inherently different, the power to issue statutory orders does not include the power to issue individual orders.

11.  To sum up this point: upon closer examination of the exemption/deferral arrangement currently open to Yeshiva students, there can be only one inescapable conclusion: Yeshiva students are granted an automatic exemption/deferral provided that they are full-time students (we are not concerned here with the faulty supervision over compliance with this condition, which is the necessary and sufficient condition for the exemption/deferral). These exemptions/deferrals have the Defense Minister’s blessing (supposedly) in accordance with section 36 of the Defense Services Law when, in fact, this statute does not endow him with the authority to grant the exemptions that he grants in practice. The Defense Minister has the authority to grant individual exemptions from service, but the situation at hand is one in which the Defense Minister is granting a general exemption to Yeshiva Students.  In doing so, the Defense Minister exceeds his authority and the exemptions/deferrals granted are void.

Just as the Defense Minister would not have the authority to exempt “agriculturists” from regular or reserve duty, so too he does not have the authority to create the exemption – deferral for Yeshiva students – that he purports to do. Furthermore, from the arrangement as presented to us, it is clear that the Defense Minister does not consider individual applications for an exemption-deferral. Instead, the arrangement operates autonomously, without the need for anyone’s assistance to implement it. In so doing, the Defense Minister greatly exceeds the authority with which he was endowed.

12.  My position is therefore that a "universal," normative exemption from military service must have a statutory basis, and the Defense Services Law [Consolidated Version] does not empower the Defense Minister to exempt Yeshiva students from military service exclusively by virtue of their being Yeshiva students.

Quantity and Quality

13.  My colleague, the President, states that quantity becomes quality, and the conclusion is therefore that since the last Ressler [1] case, we have progressed from the quantitative stage to the qualitative stage. Personally, the issue of quantity alone is sufficient for me – a small quantity, a medium quantity, and a large quantity. There are quantities that are de minimus and there are quantities that we cannot ignore. It is not the straw that breaks the camel’s back, but rather the burden already on his back prior to that straw being placed there. It would seem that the deferrals/exemptions granted to 17,000 Yeshiva students, as presented to the Court in the last Ressler [1] case, were already too much. However, even if this was not our view, this is definitely the case today with respect to the 29,000 Yeshiva students receiving exemptions/deferrals.

14.  Let me clarify and explain. I did not say, and I will not say, that studying in a Yeshiva is not an appropriate reason for receiving a service deferral.  This was the ruling in the last Ressler [1] case and I accept that view entirely. This would also be the law if it were decided to grant a service deferral in order to enable computer studies, the study of engineering or any other profession that was deemed important to the military and the State.  Both of these are problematic in the case at bar (both theoretically and substantively-legally). First, there is no limit on the number of deferrals granted, whether a priori or post factum. That is how the quantity grew to its current dimensions. Second, the deferrals became, and are in fact, exemptions.  Hence, for full-time Yeshiva students, a priori, the issue is not one of service deferral but rather of exemption from service. "Torah as a way of life" has come to mean and is coming to mean, de facto and ex ante, not just deferral of service but rather exemption from service. The routine has become ingrained, to the point where it has become an accepted way of life

It has reached the point where the exemption-deferral is regarded as an  inseparable, integral part of the life of the society and state, as if the burden of proof lay with those claiming that the Minister of Defense acted illegally, in an ultra vires manner. In our view, the reverse is true.

In the Future

15.  With respect to the future, administrative regulations cannot, in the normative sense, provide Yeshiva students with an exemption from military service. We all agree on this point.  Personally, I will not reach the issue (which we were not asked to decide) of whether legislation passed by the Knesset could exempt Yeshiva students from military service. There are those who would argue (and I will not elaborate) that even a Knesset statute would not be sufficient. It could further be argued that even a Basic Law would not be sufficient. There are limits to the Knesset’s legislative powers (see my comments in United Bank Hamizrachi  [16]). The saving of a life overrides the prohibition on doing work on the Sabbath. Tractate Shabbat [a]. Some say that even when it is uncertain whether a life is at stake, the prohibition is to be overridden. Jerusalem Talmud, Tractate Yoma [b]. We should remember that we are concerned with no less than saving lives.

Justice T. Strasberg-Cohen

I concur with the judgment of my colleague, President Barak, as well as with the comments of my colleague, Justice Cheshin.

Decision of the Court

The Court  ruled in accordance with the judgment of President Barak.

Decided today, December 9, 1998.

 

Herut--The National Jewish Movement v. Cheshin

Case/docket number: 
HCJ 212/03
Date Decided: 
Thursday, January 16, 2003
Decision Type: 
Original
Abstract: 

Facts: Petitioner attacked the decision of the respondent to disqualify an election commercial it had prepared for broadcast over both radio and television. The jingle included praise for Yasir Arafat and a call for the expulsion of Jews from Jaffa and Ramle. In addition, the television version of the commercial depicted an Israeli flag, flying over the Knesset, as it changed into a Palestinian flag. The Chairman of the Elections Committee disqualified this commercial, reasoning that the jingle caused severe injury to the dignity of the flag and the national anthem. In the context of the petition, respondent also asserted that the Court did not have the jurisdiction to intervene in his decision.

 

Held: The Supreme Court held that it did have jurisdiction to consider the petition. It held that the authority of the High Court of Justice originates in the provisions of the Basic Law: The Judiciary, a constitutional law. As such, section 137 of the Elections Law cannot negate this authority. The Court further held that the authority of the Chairman of the Elections Committee to approve broadcasts should apply to both television and radio broadcasts. The fact that the statute did not expressly grant him that authority regarding radio broadcasts was a lacuna that should be filled by judicial interpretation. Finally, the Court held that, in his decision, the Chairman of the Elections Committee was to balance the competing values of freedom of speech and of public order. The Court held that the decision of the Chairman did properly balance between these competing considerations. In a dissenting opinion, the President of the Court stated that the Chairman did not achieve a proper balance between the two competing values.

 

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

 

HCJ 212/03

Herut – The National Jewish Movement

v.

Justice Mishael Cheshin, Chairman of the Central Elections Committee for the Sixteenth Knesset

 

 

The Supreme Court Sitting as the High Court of Justice

[January 8, 2003]

Before President A. Barak, Justices E. Mazza and T. Strasberg-Cohen

 

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

 

Facts: Petitioner attacked the decision of the respondent to disqualify an election commercial it had prepared for broadcast over both radio and television. The jingle included praise for Yasir Arafat and a call for the expulsion of Jews from Jaffa and Ramle. In addition, the television version of the commercial depicted an Israeli flag, flying over the Knesset, as it changed into a Palestinian flag. The Chairman of the Elections Committee disqualified this commercial, reasoning that the jingle caused severe injury to the dignity of the flag and the national anthem. In the context of the petition, respondent also asserted that the Court did not have the jurisdiction to intervene in his decision.

 

Held: The Supreme Court held that it did have jurisdiction to consider the petition. It held that the authority of the High Court of Justice originates in the provisions of the Basic Law: The Judiciary, a constitutional law. As such, section 137 of the Elections Law cannot negate this authority. The Court further held that the authority of the Chairman of the Elections Committee to approve broadcasts should apply to both television and radio broadcasts. The fact that the statute did not expressly grant him that authority regarding radio broadcasts was a lacuna that should be filled by judicial interpretation. Finally, the Court held that, in his decision, the Chairman of the Elections Committee was to balance the competing values of freedom of speech and of public order. The Court held that the decision of the Chairman did properly balance between these competing considerations. In a dissenting opinion, the President of the Court stated that the Chairman did not achieve a proper balance between the two competing values.

 

Legislation Cited:

Flag and Emblem Law-1949, § 5

Knesset Elections Law (Consolidated Version)-1969 § 137

Elections Law (Propaganda Methods)-1959, § 20b

Basic Law: The Judiciary § 15

Administrative Courts Law-2000

Foundations of Law Act-1980, § 1

Broadcasting Authority Law-1965, §§ 15(a), 15A(b), 15B, 16b & 16c

Penal Law-1977, § 1

Basic Law: The Knesset, § 7

 

Israeli Supreme Court Cases Cited:

[1]HCJ 344/81 Negbi v. Central Elections Committee for the Tenth Knesset IsrSC 35(4) 837

[2]HCJ 637/88 Laor Movement v. Chairman of the Knesset Elections Committee IsrSC 42(3) 495

[3]CA 6821/93 Bank Hamizrahi v.  Migdal Association Village IsrSC 49(4) 22

[4]HCJ 1384/98 Avni v. The Prime Minister IsrSc 52(5) 206

[5]HCJ 3434/96 Hofnung v. Chairman of the Knesset IsrSc 50(3) 57

[6]HCJ 2208/02 Slama v. Minister of Interior (unreported decision)

[7]HCJ 8071/00 Jacobowitz v. The Attorney-General (unreported decision). 

[8]HCJ 4562/92 Zandberg v. Broadcasting Authority IsrSc 50(2) 793

[9]CA 733/95 Arpel Aluminum v. Kalil Industries IsrSC 51(3) 577

[10]HCJ 89/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset IsrSC 5(2) 692

[11]CA 108/59 Pritzker v. Niv. IsrSC 14 1545

[12]CA 164/47 Minkowitz v. Phishtzener IsrSC 2 39

[13]BAA 663/90 Doe v. Regional Committee of the Bar Association of Tel-Aviv/Jaffa IsrSC 47(3) 397 

[14]CA 4628/93 State of Israel v. Apropim IsrSC 49(2) 265

[15]CA 3622/96 Haham v. Macabee Health Management Organization IsrSC 52(2) 638

[16]CA 205/7 Ross v. State of Israel IsrSC 27(2) 365

[17]CA 10596/02 Leah Ness v. Likud Party (unreported decision)

[18]HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board IsrSC 47(2) 22

[19]HCJ 5016/96 Horev v. Minister of Transportation IsrSC 51(4) 1

[20]HCJ 1514/01 Gur Arieh v. The Second Television and Radio Authority IsrSC 55(4) 267

[21]CA 697/98 Sostzkin v. State of Israel IsrSC 52(3) 289

[22]HCJ 4804/94 Station Film v. Film Review Board IsrSC 50(5) 661

[23]HCJ 73/53 Kol Ha’am v. Minister of Interior IsrSC 7 871). 

[24]HCJ 1/81 Shiran v. The Broadcasting Authority IsrSC 35(3) 365

[25]HCJ 2888/97 Novik v. The Second Television and Radio Authority IsrSC 51(5) 193, 200 

[26]HCJ 6126/94 Senesh v. The Broadcasting Authority IsrSC 53(3) 817

[27]CA 6024/97 Shavit v. Rishon Letzion Burial Society IsrSC 53(3) 600

[28]HCJ 8507/96 Oreen v. State of Israel IsrSC 51(2) 269

[29]HCJ 399/85 Knesset Member Rabbi Meir Kahane v. The Administrative Council of the Broadcasting Authority IsrSC 41(3) 255

 

Petition denied.

 

For the petitioners— Shai Zuckerman

For the respondent— Shai Nitzan; Dani Hurin

 

JUDGMENT

President A. Barak

 

1.  The National Jewish Movement Herut [hereinafter Herut] is a list of nominees participating in the elections for the Sixteenth Knesset.  Herut approached the Chairman of the General Elections Committee for the sixteenth Knesset, Justice M. Cheshin [hereinafter the Chairman of the Elections Committee] on January 6, 2003, requesting that he approve the following jingle for broadcast on radio, during the time set aside for election propaganda broadcasting, in Arabic, and accompanied by the tune of “Hatikva:”

 

Original

                 

Biladi Biladi
Phalastin

Arafat Salah-A-Din

Mabruk Yah Shahid

Al-Hamdu Li’llah

Fatah Ashaf Hizballah

Yaffo Aco Ramleh V’Lod

Ya Habibi Imshi al-Yehud

Allah Hu Akbar Allah Al-Karim

Phalastin Al-Quds Yerushalayim

 

Translation

 

My State My State

Palestine

Arafat, Salah-A-Din

Congratulations, O Martyr

Praise to God

Fatah, PLO, Hizballah

Jaffa, Aco, Ramleh, and Lod

My Friend, Jews Out

Allah is Great, Allah is Generous

Palestine Al-Quds Jerusalem

 

Herut also requested that a broadcast, during which this jingle is heard, be approved for the time set aside for election propaganda broadcasting on television.  During the first five seconds of the broadcast an Israeli flag is seen waving above the Knesset building, gradually changing into the Palestinian flag.

 

2.  The Chairman of the Elections Committee disqualified the jingle and the radio broadcast.  He considered them both “a show of contempt towards the national anthem and a desecration of it—contempt and desecration which lead to provocation and even incitement.”  The Chairman of the Elections Committee also drew attention to the provisions of section 5 of the Flag and Emblem Law-1949.  The petition before us is directed against this decision.  On January 8, 2003, we decided, by majority decision, to deny the petition.  These are our reasons.

 
The Authority of the High Court of Justice

 

3.  At the beginning of this proceeding, the State Attorney raised the argument that the decision of the Chairman of the Elections Committee is final, and that the High Court of Justice lacks the authority to review it.  He based his argument on section 137 of the Knesset Elections Law (Consolidated Version)-1969 [hereinafter the Elections Law], which states:

 

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 by 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-Chairman of the Committee, the Chairman of the Committee, a District Committee or Voting Committee.

 

This provision also applies to the decisions of the Chairman of the Elections Committee regarding the broadcasting of election propaganda over radio and television. See Elections Law (Propaganda Methods)-1959, § 20b. It has been interpreted in various judgments as granting “procedural immunity” against judicial review, including the review by the High Court of Justice." See HCJ 344/81 Negbi v. Central Elections Committee for the Tenth Knesset [1]; HCJ 637/88 Laor Movement v. Chairman of the Knesset Elections Committee [2]. Respondent claimed that, pursuant to this case law, the petition should be denied.

 

4.  We cannot accept this argument.  The authority of the High Court of Justice originates in the provisions of the Basic Law: The Judiciary, § 15.  As such, it is enshrined in a constitutional, superior law.  An ordinary legal provision does not have the power to change a provision of a Basic Law.  I clarified this in Bank Hamizrahi:

 

Basic Laws are chapters of the state’s constitution.  They are products of the Knesset’s constitutional authority.  A Basic Law exists at the highest normative level.  Consequently, Basic Laws and their provisions should not be changed by anything but Basic Laws.

 

CA 6821/93 Bank Hamizrahi Ltd. v.  Migdal Association Village [3]. See also HCJ 1384/98 Avni v. The Prime Minister [4]. Similarly, a regular law does not have the power to infringe upon the provisions of a Basic Law, unless such is allowed by the limitations clauses which are part of the Basic Laws themselves. See Hofnung v. Chairman of the Knesset [5].   Consequently, we ruled that the Administrative Courts Law-2000 does not have the authority to deny the authority of the High Court of Justice in administrative matters. We noted that “regular legislation, whether it was legislated before or after the institution of a Basic Law, cannot change the provisions of a Basic Law…. As such, legislation which grants authority to a different court in matters already granted to the High Court of Justice by the Basic Law, cannot alter the authority of the High Court of Justice. HCJ 2208/02 Slama v. Minister of Interior (unreported case) [6]; see also HCJ 8071/00 Jacobowitz v. The Attorney-General  [7] (unreported case). 

 

5.  Therefore, section 137 of the Elections Law does not have the power to negate the authority of the High Court.  The decisions cited by the State Attorney in support of its arguments were handed down before our Bank Hamizrahi [3] judgment, and they are inconsistent with it.  Thus, inasmuch as section 137 of the Elections Law—which states that “no court” shall grant the remedies there stated—can be interpreted as negating the authority of the High Court of Justice, it is unconstitutional, and thus void regarding its application to the High Court of Justice. Of course, the law continues to apply to all other courts. This same conclusion may be reached—and I think more properly—by reinterpreting the phrase “no court” as referring to all other courts besides the High Court of Justice.  This interpretation reflects the view that “it is preferable to limit the scope of a law through interpretation, rather than achieve the same result by declaring a part of that law as being unconstitutional and void.” HCJ 4562/92 Zandberg v. Broadcasting Authority, [8] at 814.  This interpretation is consistent with the approach that “the right to the access to court is not a basic right in the ordinary sense of a basic right.  Its existence is a necessary and essential condition for the existence of all other basic rights.” CA 733/95 Arpel Aluminum v. Kalil Industries [9].  As such, find that we have the authority to consider the petition at hand.  We now move on to consider the remaining arguments before us.

 

The Authority of the Chairman of the Elections Committee

 

6. Petitioner claims that the Chairman of the Elections Committee does not have the authority to prevent the broadcasting of election propaganda over the radio. Petitioner points to section 15A(d) of the Elections Law (Propaganda Methods)-1959 [hereinafter the Propaganda Methods Law],  which establishes the authority of the Chairman of the Elections Committee regarding televised propaganda. The provision states:

 

Only election propaganda, whether produced by a political party or by list of nominees at their own expense, which has been approved by the Chairman of the Central Elections Committee, shall be televised pursuant to this section.

 

No such provision exists regarding propaganda broadcasting over radio.  Mr. Zuckerman argues that this arrangement—an explicit grant of authority over television propaganda broadcasting, and the absence of such an explicit grant for radio broadcasting—implies that the Chairman has no authority over the radio broadcasting. Petitioner argues that we should not interfere with this statutory scheme—we should not fill in the blanks, nor we should not exercise our inherent authority, nor should we interfere by any other means. As such, even if the Chairman of the Central Elections Committee lawfully instructed that the propaganda broadcast not be televised, he lacks all authority to give similar instructions regarding a radio propaganda broadcast.   

 

7.  Indeed, an inspection of the Propaganda Methods Law reveals that it contains no explicit provision similar to section 15A—a provision which only relates to television—that would provide that no election propaganda shall be broadcast over radio unless it has been approved by the Chairman of the Elections Committee. The legislative history regarding this matter is short. The regulation of propaganda methods was first set out in the Elections Law (Propaganda Methods)-1959.  This law was legislated during the era of radio, before television was introduced into Israel. It forbade certain propaganda methods, and included a prohibition against election propaganda in film.  Its central purpose was to empower the Chairman of the Elections Committee to set aside time slots that would be allotted to each party for radio broadcasting.  He was not given the authority to intervene in the actual content of the broadcasts. When television was introduced into Israel, the legislature regulated televised election propaganda in the Elections Law (Propaganda Methods) (Amendment 3)-1969.  This law provided that the absolute prohibition against broadcasting election propaganda in film would be extended to television as well, aside from the time explicitly allotted to televised election propaganda broadcasting. All election propaganda broadcasting over television was prohibited, except that which was approved by the Chairman of the Elections Committee. 

 

Two questions arise concerning the broadcast of election propaganda over radio. First, is there a prohibition against broadcasting election propaganda over radio? As we have seen, the law which originally regulated propaganda methods during elections did not include a provision regarding this issue.  The amendment of the original law, after the introduction of television into Israel, applied only to the prohibition against broadcasting election propaganda over television.  What is the law regarding broadcasting election propaganda over radio?  This question arose in HCJ 89/92 Zweely v. Chairman of the Central Elections Committee for the Thirteenth Knesset, [10] at 713. There, the court ruled that the prohibition against broadcasting election propaganda over television did not apply to broadcasting election propaganda over radio.  It noted: “not including radio in the original language of the provision reflects a conscious policy against extending the prohibition towards election propaganda over radio.” Id. at 713.  At the same time, Zweely [10] stated that the lack of authority of the Chairman of the Elections Committee is balanced by the authority of the Broadcasting Authority. The Broadcasting Authority, when broadcasting election propaganda over the radio, must take into consideration the prohibition against broadcasting election propaganda over television. Zweely [10] emphasized that “it is not proper that the legislature’s policy of limiting televised broadcasting be completely defeated by allowing the breach of those limitations through radio.” Id. at 713.  While Zweely [10] was pending before this Court, the law was amended and extended the prohibition against broadcasting election propaganda on television or in film to include election propaganda on radio as well.  We are left with the second question, which refers to the authority of the Chairman of the Elections Committee to approve election propaganda broadcasts.  This authority originally concerned, as we have seen, the approval of election propaganda broadcasts for television. What is the law regarding the Chairman’s authority to approve election propaganda broadcasts for radio?  This is the question before us.

 

8.  Petitioner argued that the authority of the Chairman of the Elections Committee to approve election propaganda broadcasts for television indicates that he lacks any such authority regarding election propaganda on radio. The State Attorney argued, in contrast, that the silence of the Election Law in this matter constitutes a lacuna.  The Court may complete this lacuna through inference, in comparison with the provisions regarding television broadcasts, by virtue of the authority granted to it in the Foundations of Law Act-1980.

 

9.  We agree with the State Attorney.  The authority of the Chairman of the Elections Committee to approve election propaganda over television should not be interpreted as negating his authority to approve the broadcast of election propaganda over radio. Such a negative inference may be drawn where the silence is “conscious.” See CA 108/59 Pritzker v. Niv, [11] at 1549 (Sussman, J.). A negative inference may also exist where the silence “speaks.” See CA 164/47 Minkowitz v. Phishtzener, [12] at 43 (Silberg, J.).  Silence is “conscious,” and silence “speaks” when making a negative inference is necessary for realizing the objective of the law. See BAA 663/90 Doe v. Regional Committee of the Bar Association of Tel-Aviv/Jaffa, [13] at 404. There is no reason to assume that realizing the goals of the Propaganda Methods Law demands that the Chairman of the Elections Committee be denied the authority to approve election propaganda over radio.

 

10.  Even so, should we view the silence of the Election Propaganda Methods Law as a lacuna in the law?  Should we not say, as we did in Zweely, that “the legislature was aware of radio and he even mentioned it in other provisions of the law.” Zweely [10] at 713. This is not a simple question.  In Zweely we did not see the silence of the Propaganda Methods Law concerning the radio broadcast of election propaganda as a lacuna, primarily because were of the opinion that the resolution of the problem could be found in a normative arrangement external to the Propaganda Methods Law. This arrangement was the Broadcasting Authority Law-1965. We were of the opinion that, regarding the radio broadcast of election propaganda, the discretion of the Broadcasting Authority—under the Broadcasting Authority Law-1965—was a substitute for the authority of the Chairman of the Elections Committee. We added that the Broadcasting Authority, in exercising its discretion with reference to broadcasting election propaganda, should presume “that the legislature prohibited the broadcasting of election propaganda on television, and it is not proper that the legislature’s policy of limiting televised broadcasting be completely defeated by allowing the breach of those limitations through radio.” Id. at 713. 

 

No such external arrangement is present here. The Broadcasting Authority and the Second Television and Radio Authority do not have the authority to interfere with the content of radio election propaganda broadcasts. See the Broadcasting Authority Law-1965, §§ 15(a), 15A(b), 15B, 16b & 16c.  Thus, the silence of the Propaganda Methods Law should not be seen as “neglecting to take a stand on a legal issue, while leaving its regulation to other normative arrangements, external to the law being interpreted.” BAA 663/90 [13], at 404.  It is our opinion that the only possible way to interpret the silence of the Propaganda Methods Law regarding the authority of the Chairman of the Elections Committee to approve radio election propaganda broadcasting is that it is a legislative oversight. Indeed, a lacuna will exist whenever a legislative arrangement is incomplete, and this incompleteness acts to counteract the objective of the arrangement. See CA 4628/93 State of Israel v. Apropim, [14] at 323; CA 3622/96 Haham v. Macabee Health Management Organization, [15] 648.  Such is the case before us.  There is no reasonable justification to distinguish between granting the Chairman of the Elections Committee the authority to approve election propaganda broadcasting for television and denying him this authority regarding radio. There is no reasonable justification for a state of affairs where there is no supervision of election propaganda broadcasting over radio.  In building a wall around election propaganda broadcasting the legislature forgot to lay a brick, thus creating a void which constitutes a lacuna, regarding the authority of the Chairman of the Elections Committee to approve election propaganda for radio.

 

11.  When a statute contains a lacuna, the court must fill in the lacuna. Section 1 of the Foundations of Law Act-1980 considers this issue:

 

Where the court, faced with a legal question, finds no answer in statute, case law, or by analogy, it shall decide the question in the light of principles of Israel's heritage—freedom, justice, equity, and peace.

 

This provision states that, as a first step towards filling in a lacuna, analogies should be drawn. If no suitable analogy may be drawn, we must turn to the principles of Israel’s heritage: freedom, justice, equity, and peace.  In this case, an analogy may be drawn from the provisions of section 15a of the Propaganda Methods Law.  Thus, the provision that states that election propaganda shall not be broadcast unless it has been approved by the Chairman of the Elections Committee, also applies to election propaganda over radio. As such, the Chairman also has the authority to prohibit the broadcast of election propaganda over radio, as he has similar authority over televised election broadcasting. 

 

We shall now turn to consider the scope of respondent’s authority and discretion in this matter. Before leaving the issue of interpretation, however, we would like to make three comments. First, a criminal offence should not be created by filling in a lacuna in the law. See Penal Law-1977, § 1; CA 205/7 Ross v. State of Israel, [16] at 372.  Therefore, though a failure to adhere to the decisions of the Chairman of the Elections Committee constitutes a criminal offence with regard to television broadcasting, it does not constitute a criminal offence in the case of radio broadcasting.  Here, the lacuna and its interpretation produce constitutional and administrative law, and do not create criminal offences. Second, in filling in the lacuna, a new text is added to the law.  This text has the same status as the law in which the lacuna was found.  Therefore, the remainder of the law’s provisions also apply to that text, as if it itself was an integral part of the law. Thus, for example, section 137 of the Elections Law, which we have discussed, see supra paras. 3-4, which also applies to decisions made according to sections 15 and 15A of the Propaganda Methods Law, see the Propaganda Methods Law § 20, will also apply to the decisions of the Chairman of the Elections Committee regarding election propaganda broadcast over radio. Third, the current legal situation, where a lacuna exists in the Propaganda Methods Law, is unsatisfactory. Our filling in the lacuna is not a substitute for a legislative act which will regulate the matter comprehensively.

 

The Authority of the Chairman of the Elections Committee

 

12.  What is the scope of the authority of the Chairman of the Elections Committee pursuant to section 15A(d) of the Propaganda Methods Law?  This question arises regarding television broadcasts, which are explicitly regulated by section 15A, as well as radio broadcasts, which are regulated by the interpretation of the lacuna discussed above. The principles stated in section 15A of the Propaganda Methods Law apply to both these cases:

 

Only election propaganda, whether produced by a political party or by list of nominees at their own expense, which has been approved by the Chairman of the Central Elections Committee, shall be televised pursuant to this section.

 

Petitioner asserts that the authority of the Chairman of the Central Elections Committee extends only to those two grounds explicitly mentioned in the Propaganda Methods Law for the disqualification of election propaganda broadcasting. These two grounds restrict election propaganda broadcasts involving the security forces or victims of terrorism, see Propaganda Methods Law, § 2B, and broadcasts that involve the participation of children, see Propaganda Methods Law, § 2C.  The State Attorney, on the other hand, argues that the authority of the Chairman of the Elections Committee is more expansive—it includes the disqualification of election broadcasts that contain incitement, racism, and violations of privacy.  The State Attorney claims that if this authority is not granted, the electoral system will descend into anarchy—a situation well described by the passage: “each man will swallow up his fellow man alive.”

 

13.  We agree with the State Attorney. The authority of the Chairman of the Elections Committee to approve election broadcasts is not limited to the two matters above. The proper interpretation of this authority demands that it extend to additional matters associated with election propaganda. Not only have the Chairmen of the Election Committees acted in this manner over the years, this interpretation is also essential to ensure the public interest.

 

The Discretion of the Chairman of the Elections Committee

 

14.  The Chairman of the Elections Committee was authorized to approve election propaganda broadcasts for both radio and television.  This discretion is exercised in order to achieve the goals of the Propaganda Methods Law.  These goals are both specific and general, and both subjective and objective.  The application of these goals differs with regard to each specific matter.  They naturally include those goals associated with the organization of elections, and which constitute the foundation of the Elections Law and the Propaganda Law. These include the preservation of equality in elections, the fairness of elections, the integrity of elections, preventing the deception of voters and preventing distortion in the electoral process and its results. See, e.g., CA 10596/02 Leah Ness v. Likud Party [17] (unreported case).  In this petition we must consider two opposing goals. We consider the realization of the freedom of speech as well as the attainment of public order. We must balance these two goals. The discretion of the Chairman of the Elections Committee is exercised within the context of this balance. 

 

15.  On one side of the scales lies the freedom of speech. We discussed the essence of this freedom, as embodied in the Propaganda Methods Law, in Zweely:

 

Freedom of speech is a central and fundamental principal, which is important for forming the goals of a law.  This freedom reaches every expression.  It has special significance regarding political expressions in general, and specifically regarding political expressions articulated during election struggles. … One of the principle justifications of freedom of speech relates to the democratic regime.  The spirit of democracy is lost without freedom of speech.  Freedom of speech cannot exist without democracy.  “True democracy and liberty of speech are one.  This is true throughout the life of a democracy and especially true during elections.” …  Freedom of speech ensures the exchange of ideas between members of the public, and thus allows them to form opinions regarding issues which are on the national agenda. … “Only in this way will a person be able to form his own opinions with regard to critical issues—both social and national—whose resolution is ultimately in his hands by virtue of his right to choose the institutions of the state.” … The result, which was expressed by President Shamgar in HCJ 372/84 Klopfer-Neve v. Minister of Education and Culture, at 239, is that “[i]t is not feasible to think that elections may be held in a democratic regime without allowing the exchange of ideas and mutual persuasion, and without allowing those debates in the context of which public opinion is formed, and which play an essential part in any free regime, whether during elections or during any other time of the year…” Id. at 706-07.

 

16.  On the other hand, we have the public’s interest in security, peace, and civil order. In the case at hand, these interests include protecting the feelings of members of the public regarding the anthem and the flag.  Indeed, protecting the feelings of members of the public, whether they be religious, national or other feelings, is an integral part of the public interest. See HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board, [18] at 34; HCJ 5016/96 Horev v. Minister of Transportation, [19] at 34; HCJ 1514/01 Gur Arieh v. The Second Television and Radio Authority, [20] at 275; CA 697/98 Sostzkin v. State of Israel, [21] at 307-08; HCJ 4804/94 Station Film v. The Film Review Board, [22] at 678.

 

17. In the petition before us these values and principles—freedom of speech on the one hand and the public interest on the other—are in conflict. Balancing is necessary to resolve this clash. This balance has been with us since Kol Ha’am. See HCJ 73/53 Kol Ha’am Company v. Minister of Interior [23]. In Kol Ha'am we held that freedom of speech should not be subject to prior restraint unless there is near certainty that, if the expression were to be articulated, the public interest would suffer serious and substantial injury. See HCJ 1/81 Shiran v. The Broadcasting Authority, [24] at 378.  My colleague, Justice Mazza has noted:

 

Preventing the expected publication of expression constitutes a direct and serious injury to the freedom of speech.   It is a well established law…that granting such relief may only be considered, where neglecting to do so creates a danger, whose probability reaches near certainty, of substantial injury to public peace or civil order, or of causing severe harm to any other protected value.

 

HCJ 2888/97 Novik v. The Second Television and Radio Authority, [25] at 200. When the protected value concerns the feelings of the public, one of the things which must be shown is that the injury to such feelings is so serious and severe that it exceeds tolerable levels. See HCJ 5016/96, [19] at 55; HCJ 6126/94 Senesh v. The Broadcasting Authority, [26] at 836; CA 6024/97 Shavit v. Rishon Letzion Burial Society, [27] at 657.

 

18.  Does the decision of the Chairman of the Elections Committee properly balance between freedom of speech and the public interest?  My answer to this question is negative.  There is no certainty— neither near, nor reasonable, nor substantial—that publicizing the propaganda broadcast of the petitioner—a national movement that holds the sanctity of the anthem and flag especially dear—will cause painful and serious injury to feelings concerning the flag and the anthem, and which will exceed levels that are tolerable in a democratic society.  I am willing to assume that there will be a number of people who will raise their brows and question the tastefulness of the broadcast.  However, that is not our concern here.  We are concerned with the censorship of freedom of speech; we are concerned with prior restraints on the freedom of political speech during the critical time of elections.  Imposing such restrictions requires the utmost caution.  Only when there is near certainty that the realization of freedom of speech will lead to painful and serious injury to the feelings of a considerable part of the public, will restrictions on political expressions be justified.  Such circumstances do not exist in this case.  For these reasons, I am of the opinion that the petition should be granted.

 

19.  The desecration of the sanctity of the flag, which the Chairman of the Elections Committee referred to, is severe. See HCJ 8507/96 Oreen v. State of Israel [28].  Nevertheless, I do not believe that in the case at hand there is a sufficient factual basis, regarding either the actus reus or the mens rea, to satisfy the elements of the offence established in section 5 of the Flag and Emblem Law-1949. Under these circumstances, this consideration—the desecration of the flag—cannot justify curbs on the freedom of speech. See HCJ 399/85 Knesset Member Rabbi Meir Kahane v. The Administrative Council of the Broadcasting Authority [29]. 

 

The Scope of Judicial Review

 

20.  It is well established that authority and discretion are not the same.  The High Court of Justice has the authority to review the decisions of the Chairman of the Elections Committee.  Yet, does this case require us to exercise our authority?  The decisions of the Chairman of the Elections Committee are subject to judicial review just as the decisions of any other public officer.  Of course, our discretion is not a substitute for the discretion of the Chairman of the Elections Committee.  We explained this in Zweely:

 

We do not act as a superior Chairman of the Elections Committee.  We will not interfere with his decisions unless a decision is made which is radically unreasonable.

 

Zweely, [10] at 703. We do not place ourselves in the position of the Chairman.  However, if the Chairman’s interpretation of a law differs from our own, and if the Chairman does not act within the boundaries of the proper balance, we have no choice but to intervene. See Zweely [10].

 

21.  In exercising our discretion, we must be aware of the special circumstances under which the Chairman of the Elections Committee acts.  He must make a large number of decisions in a short period of time.  We do not wish to act—nor can we act—as a court of review over each and every decision. Section 137 of the Elections Law is another example of this approach. Although that section itself does not apply here, its presence influences us. Of course, the Chairman has broad discretion in setting out the scope of freedom of speech on the one hand and the scope of the public interest on the other. The balance which we have discussed creates a “zone of reasonableness.” Any given balance allows for a variety of results which may occasionally contradict each other. Balancing is not an exact science.  It allows for discretion.  We will usually not intervene in this discretion, and this is especially true when it is the Chairman of the Elections Committee who exercises this discretion.  Thus, had I been of the opinion that the respondent’s decision falls within the “zone of reasonableness,” I would not have intervened, even in a case where, had I myself been the Chairman of the Elections Committee, I would not have made the same decision. This, however, is not the case in the petition before us.

 

Had my opinion been accepted, we would issue a final order and instruct the respondent to approve the petitioner’s broadcast.

 

Justice E. Mazza

 

I agree with President Barak’s reasoning with regard to our authority to deal with the petition, as well as with regard to the subjecting of radio election propaganda to the approval of the Chairman of the Central Elections Committee, and also with regard to the extent of the Chairman of the Elections Committee’s authority to intervene in the content of radio and television propaganda broadcasts. I also agree that, in exercising his extensive authority, the Chairman of the Elections Committee must appropriately balance between the freedom of speech— to which every nominee list is entitled—and between other protected values. I cannot agree, however, with the President’s conclusion that, in the case at hand, there is just cause for our intervening in the Chairman of the Elections Committee’s decision to disqualify the petitioner’s broadcasts. 

 

In the broadcasts which were disqualified, petitioner made use of the flag and the anthem.  In the propaganda jingle, which was intended to be broadcast over both radio and the television, words which attempt to imitate the Palestinian anthem “Biladi Biladi” were adapted to the tune of Hatikva.  Examining the words of the song, cited in their original and accompanied by a Hebrew translation in the President’s opinion, reveal that the song includes praise of Arafat, the “Shahid,” the Fatah Movement, the Hizballa Organization, and the PLO. The song also calls for the expulsion of Jews from Jaffa, Aco, Ramla and Lod, and connects the greatness of Allah to that of Jerusalem and “Holy Palestine.”  At the beginning of the propaganda film, which was intended to be broadcast on television, the Israeli flag is shown waving above the Knesset building.  Within a few seconds, during which the jingle plays in the background, the flag gradually turns into a Palestinian flag.  In his explanation as to why he disqualified the broadcast, the Chairman of the Elections Committee stated that the two broadcasts contain “a show of contempt towards the national anthem and a desecration of it—contempt and desecration which lead to provocation and even incitement.” Regarding the manner in which the state flag is shown in the propaganda television broadcast, the Chairman referred to section 5 of the Flag and Emblem Law-1949, which categorizes acts that desecrate the Israeli flag as criminal offences.

 

In his opinion, the President refers to the accepted tests regarding the prior restriction of expression: in general, freedom of speech should not be restricted unless there is near certainty that, if the expression were to be articulated, the public interest would seriously and substantially be injured. Furthermore, restricting freedom of speech, due to the suspicion that the public’s feelings may be harmed, may only be justified if the expected injury from the expression exceeds the level of tolerance that can expected of the public. After laying down these tests, the President states that the decision of the Chairman of the Elections Committee to disqualify the broadcasts does not accord with this balancing equation.  He is of the opinion that “There is no certainty—neither near, nor reasonable nor substantial—that publicizing the propaganda broadcast of the petitioner—a national movement that holds the sanctity of the anthem and flag especially dear—will cause painful and serious injury to feelings concerning the flag and the anthem, and which exceed levels that are tolerable in a democratic society.” The President, however, is willing to assume that, as a result of permitting the broadcasts, “there will be a number of people who will raise their brows and question the tastefulness of the broadcast.” 

 

I am not willing to concur with this position, and have thus supported the denial of this petition.  As my honorable colleague has suggested, the petitioner’s broadcasts do indeed suffer from a lack of “tastefulness.”  If this were their only shortcoming, my colleague and I would be of the same opinion, as the point of departure in this matter is that each nominee-list is entitled to express its propaganda messages in whatever manner it chooses.  However, this case is not that simple.  I have not found any basis for our intervening in the Chairman’s determination that these broadcasts contain contempt and injury towards the anthem and the desecration of the sanctity of the flag, and that permitting the broadcasts may lead to provocation and incitement. 

 

Furthermore, I accept that the intervention of the Chairman of the Elections Committee in the content of propaganda broadcasts, produced by the list of nominees and submitted for his approval, is only justified when there is a an actual suspicion that another protected value may be injured. Even so, the Chairman of the Elections Committee has broad discretion in deciding whether, under the specific circumstances, the suspicion of such injury exists.  The normative framework for his decision of whether to approve a broadcast is similar to the way this Court itself balances between the freedom of speech and other values.  However, his implementation of the balance must take additional considerations into account. These additional considerations are necessary since all propaganda broadcasts are subject to his approval.   Thus, for example, the Chairman of the Elections Committee may disqualify a propaganda broadcast which includes expressions that incite racism, or expression opposition to the existence if the State of Israel as a Jewish and democratic state, even if there is no probability that the broadcast will harm the values which section 7 of the Basic Law: The Knesset is intended to protect.  This also applies to the Chairman’s power to prevent the improper use of values, which the public is generally sensitive about, for propaganda purposes, even if the goal of the broadcast is not to harm these values, but rather to associate them with a specific nominee list. By virtue of this principle, Chairmen of Elections Committees have, in the past, disqualified broadcasts which made use of IDF soldiers, children, and members of bereaved families for the purposes of election propaganda. Such actions were taken even before the legislation of sections 2B(b) and 2C of the Propaganda Methods Law in 2001, which enshrined these prohibitions in legislation

 

An additional consideration, intrinsic to subjecting all election propaganda broadcasts to the approval of the Chairman of the Elections Committee, is in his duty to form identical, equivalent standards—which may occasionally be technical—for the examination of the broadcasts.  The significance of this is that, in examining the broadcast, the Chairman should refrain from assuming that the broadcast is not intended to cause the injury which the broadcast, at face value, is likely to cause.  In the appropriate circumstances, this consideration may lead him to disqualify propaganda broadcasts, which, according to an ordinary balancing approach, may have deserved approval.  Take our case as an example:  the President is of the opinion that as the petitioner is “a national movement that holds the sanctity of the anthem and flag especially dear.” Thus, there is no reason to be concerned that its use of the anthem and flag in the propaganda broadcasts, in the specific manner in which they were used by the movement, will harm public feelings.  I suspect that had the Chairman of the Elections Committee decided to approve the broadcasts, based on the consideration that the petitioner is not suspect of intending to desecrate the sanctity of the flag and anthem, he would have difficulties disqualifying other propaganda broadcasts which make similar use of the anthem and the flag, by a nominee list not known for holding the sanctity of the anthem and flag dear. 

 

For these reasons, I am of the opinion that the disqualification of the propaganda jingle and television broadcast, which were produced by the petitioner, does not establish a cause for our intervention.  The Chairman of the Elections Committee was within his discretion in deciding as he did. With all due respect, I am of the opinion that his decision was correct.  As such, I cannot agree that his decision deviates from the zone of reasonableness.

 

 

Justice T. Strasberg-Cohen

 

I too am of the opinion, as is my colleague Justice Mazza, that the petition should be denied.

 

I do not disagree with my colleague, the President, with reference to the rules, principles and norms which should guide us in our decision in the matter at hand.  I too am of the opinion that “[o]n one side of the scales lies the freedom of speech … On the other hand lies the public’s interest in security, peace, and civil order.  In the case at hand, these interests include protecting the feelings of members of the public regarding the anthem and the flag.  Indeed, protecting the feelings of members of the public, whether they be religious, national or other feelings, is an integral part of the public interest.”  We differ, however, with regard to the question of the application of those principles to this case, and the question of our intervening to invalidate the decision of the Chairman of the Elections Committee.

 

Regarding the application of the above-mentioned principles, I am of the opinion that that using the anthem and flag, as the petitioner has done, crosses the bounds of legitimacy, in such a way that subjects its right to express its opinions to the public’s interest in security, peace and civil order.

 

In reviewing the decisions of the Chairman of the Elections Committee, “our discretion is not a substitute for the discretion of the Chairman of the Elections Committee.” See para. 20 of the President’s opinion. Similarly, “we do not act as a superior Chairman of the elections committee.  We will not interfere with his decisions, unless the decision made is radically unreasonable.” Zweely, at 703.

 

I am of the opinion that the decision of the Chairman of the Elections Committee properly balances between the freedom of speech and the public interest, and in any case, his decision falls within the zone of reasonableness and does not suffer from radical unreasonableness.  Therefore, there is no room for intervention in the decision. 

 

Petition Denied.

January 16, 2003

 

 

 

Translated by:   Leora Dahan

Edited by:             Eli Greenbaum

 

Comments, questions and suggestions are all welcomed, and may be directed towards elig@supreme.court.gov.il

 

 

 

 

Barzilai v. Government of Israel

Case/docket number: 
HCJ 428/86
Date Decided: 
Wednesday, August 6, 1986
Decision Type: 
Original
Abstract: 

The petitions to the court related to the decision of the President of the State to pardon the Head of the General Security Service (G.S.S.) and three of his assistants in respect of all the offences attributed to them connected with the incident known as "bus no. 300". The pardons were granted by the President under sec. 11 (b) of the Basic Law: The President of the State, by which he is empowered "to pardon offenders and to lighten penalties by the reduction or commutation thereof." The principal issue raised in the petitions was whether the President had the power to pardon persons before conviction. The court was also asked to order the competent authorities to investigate the incident referred to.

               

1. In regard to the interpretation of sec. 11(b) of the Basic Law, the court examined the import of the terms "offence" and "offender," and reviewed the legislative background to the enactment of sec. 11(b) above, in particular Article 16 of the Palestine Order in Council of 1922 and sec. 6 of the Transition Law, 1949. The court also considered the influence on the interpretation of sec. 11(b) of the Basic Law of the Anglo - American Practice in regard to pardon, as well as the place of the Presidential power of pardon in Israel in relation to the powers of other State authorities charged with the administration of criminal justice.

 

Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring):

 

Having regard to the legislative purpose in the light of the above considerations, to the need for a "spacious" interpretation in matters of constitutional content, and to the accepted construction of the pardoning power since enacted in its original form, sec. 11(b) was to be interpreted as empowering the State President to pardon offenders both before and after conviction.

               

Per M. Ben-Porat D.P.:

 

The grant of a pardon involves a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor and the State President was faced with the same predicament when making his pardoning decision.

 

Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed:

               

Per Barak J., dissenting:

 

Upon a proper interpretation of sec. l l(b) of the Basic Law: The President of the State, the Israel Legislature cannot be presumed to have favoured Presidential intervention in criminal proceedings before these have run their full course. Under the Israel "constitutional scheme" the Presidential power of pardon must not be construed as a paramount power, or as rivaling the powers of other State authorities, such as the police, the prosecution, the courts. It must be construed as a residual or a "reserve" power to be exercised only after the other authorities concerned have exhausted their own powers, i.e. after conviction of the accused. The pardons granted in the present case therefore are void and of no effect.

               

2. Held by the court (per Shamgar P.):

 

(a) The absence of a real personal interest on the part of any of the petitioners, does not justify the immediate dismissal of the petition. The Supreme Court will take a liberal view on this aspect and grant access to petitioners where the question that arises is "of a constitutional character" or of "public interest related directly to the advance of the rule of law". This entails no general recognition of the actio popularis, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

 

(b) In granting the pardons, the State President was acting in a matter "connected with his functions and powers" as provided in sec 13 of the Basic law: The President of the State. Hence he is not amenable to the jurisdiction of the courts in connection therewith, including the Supreme Court's powers of direct review - its authority to demand of the president himself an explanation of his decisions. This immunity relates to the direct challenge of any Presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions in proper cases and when the proceedings are directed against some other respondent.

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

H.C.J 428/86

H.C.J 429/86

H.C.J 431/86

H.C.J 446/86

H.C.J 448/86

H.C.J 463/86

M.A.A 320/86

 

 

Y. BARZILAI, ADV.

v.

1       GOVERNMENT OF ISRAEL

2.       ATTORNEY-GENERAL

3-6. A-D                                                                                                                                                                         H.C.J 428/86

 

1.       Y. SARID, M.K.

2.       D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3.       CITIZENS RIGHTS AND PEACE MOVEMENT

4.       S. ALONI, M.K.

5.       R. COHEN, M.K.

v.

1.       MINISTER OF JUSTICE

2.       ATTORNEY GENERAL

3.       INSPECTOR-GENERAL OF POLICE

4.   DEPUTY PRIME MINISTER ANDMINISTER OF FOREIGN AFFAIRS

5-8. A-D.                                                                                                                                                                        H.C.J 429/86

 

1. M. MAROZ, ADV.

2. D. YIFTAH, ADV.

v.

1. MINISTER OF POLICE

2-5.A-D.                                                                                                                                                                         H.C.J 431/86

 

A. ZICHRONI, ADV.

v.

1.       INSPECTOR-GENERAL OF POLICE

2.       ATTORNEY-GENERAL

3.       MINISTER OF JUSTICE

4.       HEAD OF THE GENERAL SECURITY SERVICE (G.S.S.)

5.       ASSISTANT NO. 1 TO HEAD OF G.S.S.

6.       ASSISTANT NO. 2 TO HEAD OF G.S.S.

7.       ASSISTANT NO. 3 TO HEAD OF G.S.S.

8.       DEPUTY PRIME MINISTER AND MINISTER OF FOREIGN AFFAIRS                                                                                                                                                                                                                                                                   H.C.J 446/86

 

1. DR. J.M. EDREY

2. DR. H. BEN-MENAHEM

3. DR. B. BRACHA

4. DR. M. GUR-ARIEH

5. DR. K. MANN

6. DR. A. MAOZ

7. DR. C. PASBERG

8. DR. M. KREMNITZER

9. PROF. D. KRETZMER

10. DR. A. ROZEN-ZVI

11. DR. Y. SHACHAR

12. PROF. M. SCHIFMAN

v.

1. INSPECTOR-GENERAL OF POLICE

2. MINISTER OF POLICE

3. HEAD AND THREE OTHER MEMBERS OF THE G.S.S.

                              H.C.J 448/86

 

 

1. M.A. ABU GAM'A

2. S.H. ABU GAM'A

v.

1. GOVERNMENT OF ISRAEL

2. MINISTER OF POLICE

3. ATTORNEY-GENERAL

                  H.C.J 463/86

 

A. BARAK

v.

1.       Y. SARID

2       .D. ZUCKER, SECRETARY-GENERAL OF CITIZENS RIGHTS AND PEACE MOVEMENT

3.       CITIZENS RIGHTS AND PEACE MOVEMENT

4.       S. ALONI, M.K.

5.       R. COHEN, M.K.

6.       MINISTER OF JUSTICE

7.       ATTORNEY-GENERAL

8.       INSPECTOR-GENERAL OF POLICE

M.A.A 320/86

 

 

In the Supreme Court sitting as the High Court of Justice

[6 August 1986]

Before: Justice Meir Shamgar, President

                                    Justice Miriam Ben-Porat, Deputy-President

Justice Aharon Barak.

 

         

Constitutional and Administrative Law - Pardon of offenders by President of the State - Presidential power to pardon unconvicted suspects - Basic Law: The President of the State. sec. 11(b) - Interpretation of Statutes -Meaning of the expression "to pardon offenders" - A "spacious interpretation" of constitutional provisions - Attorney-General's power to stay criminal proceedings - Presidential power of pardon and the powers of other State authorities relating to criminal justice -Pardon and Amnesty-High Court of Justice - Locus Standi - Amenability of State President to jurisdiction of the courts - Indirect judicial review of Presidential functions - Rule of Law.

 

          The petitions to the court related to the decision of the President of the State to pardon the Head of the General Security Service (G.S.S.) and three of his assistants in respect of all the offences attributed to them connected with the incident known as "bus no. 300". The pardons were granted by the President under sec. 11 (b) of the Basic Law: The President of the State, by which he is empowered "to pardon offenders and to lighten penalties by the reduction or commutation thereof." The principal issue raised in the petitions was whether the President had the power to pardon persons before conviction. The court was also asked to order the competent authorities to investigate the incident referred to.

         

1. In regard to the interpretation of sec. 11(b) of the Basic Law, the court examined the import of the terms "offence" and "offender," and reviewed the legislative background to the enactment of sec. 11(b) above, in particular Article 16 of the Palestine Order in Council of 1922 and sec. 6 of the Transition Law, 1949. The court also considered the influence on the interpretation of sec. 11(b) of the Basic Law of the Anglo - American Practice in regard to pardon, as well as the place of the Presidential power of pardon in Israel in relation to the powers of other State authorities charged with the administration of criminal justice.

 

          Held, per Shamgar P. (Miriam Ben-Porat D.P. concurring):

          Having regard to the legislative purpose in the light of the above considerations, to the need for a "spacious" interpretation in matters of constitutional content, and to the accepted construction of the pardoning power since enacted in its original form, sec. 11(b) was to be interpreted as empowering the State President to pardon offenders both before and after conviction.

         

Per M. Ben-Porat D.P.:

          The grant of a pardon involves a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor and the State President was faced with the same predicament when making his pardoning decision.

          Minority opinion in A. v. The Law Council [2] and the decision in Attorney-General v. Matana [3] followed:

         

          Per Barak J., dissenting:

          Upon a proper interpretation of sec. l l(b) of the Basic Law: The President of the State, the Israel Legislature cannot be presumed to have favoured Presidential intervention in criminal proceedings before these have run their full course. Under the Israel "constitutional scheme" the Presidential power of pardon must not be construed as a paramount power, or as rivaling the powers of other State authorities, such as the police, the prosecution, the courts. It must be construed as a residual or a "reserve" power to be exercised only after the other authorities concerned have exhausted their own powers, i.e. after conviction of the accused. The pardons granted in the present case therefore are void and of no effect.

         

2.       Held by the court (per Shamgar P.):

          (a) The absence of a real personal interest on the part of any of the petitioners, does not justify the immediate dismissal of the petition. The Supreme Court will take a liberal view on this aspect and grant access to petitioners where the question that arises is "of a constitutional character" or of "public interest related directly to the advance of the rule of law". This entails no general recognition of the actio popularis, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

          (b) In granting the pardons, the State President was acting in a matter "connected with his functions and powers" as provided in sec 13 of the Basic law: The President of the State. Hence he is not amenable to the jurisdiction of the courts in connection therewith, including the Supreme Court's powers of direct review - its authority to demand of the president himself an explanation of his decisions. This immunity relates to the direct challenge of any Presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions in proper cases and when the proceedings are directed against some other respondent.

 

Israel cases referred to:

 

[1] H.C. 73/85, "Kach"Faction v. Chairman of the Knesset 39(3) P.D. 141.

[2] H.C. 177/50, A. v. Chairman and Members of the Law Counci15 P.D. 137.

[3] F.H. 13/60, Attorney-General v. Matana 16(1) P.D. 430; S.J., vol. IV, p.112.

[4] H.C. 249/82, Wakhnin v. Military Appeals Tribuna1 37(2) P.D. 393.

[5] Cr. A. 224/85, Alba Pharmacy Ltd. v. State of Israel 39(4) P.D. 798.

[6] H.C. 156/56, Schor v. Attorney-General 11 P.D. 285; 21 P.E. 227.

[7] H.C. 329/81; M.A. 217/82, 376, 670/83, Nof v. Attorney-General 37(4) P.D. 326.

[8] Cr. A. 117/50, Haddad v. Attorney-General 5 P.D. 1413; I P.E. 318.

[9] H.C. 171/69, Filtzer v. Minister of Finance 24(1) P.D. 113.

[10] H.C. 228/84, unpublished.

[11] H.C. 270/85, unpublished.

[12] H.C. 659/85, Bar Yosef (Yoskovitz) v. Minister of Police 40(1) P.D. 785.

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

[14] H.C. 483/77, Barzilai v. Prime Minister of Israel et al. 31(3) P.D. 671.

[15] H.C. 652/81, Y. Sarid M.K. v. Knesset Chairman Savidor 36(2) P.D. 197.

[16] H.C. 40/70, Becker v. Minister of Defence 24(1) P.D. 238.

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

[18] H.C. 1/81, Shiran v. Broadcast Authority 35(3) P.D. 365.

[19] E.A. 23/84, Neiman et al v. Chairman of the Eleventh Knesset Elections Central Committee 39(2) P.D. 225.

[20] H.C. 186/65, Reiner v. Prime Minister of Israel et al. 19(2) P.D. 485.

[21] M.A. 838/84, Livni et al. v. State of Israe1 38(3) P.D. 729.

[22] H.C. 58/68, Shalit v, Minister of the Interior 23(2) P.D. 477; S.J., Spec. Vol. (1962-1969), 35.

[23] H.C. 390/79, Diukat v. Government of Israe134 (1) P.D. 1.

[24] H.C. 561/75, Ashkenazy v. Minister of Defence 30(3) P.D. 309.

[25] Cr.A. 185/59, Matana v. Attorney-General 14 P.D. 970.

[26] H.C. 742/84, Kahana v. Chairman of the Knesset 39(4) P.D. 85

[27] H.C. 94/62, Gold v. Minister of the Interior 16 P.D. 1846; S.J., vol. IV p. 175.

[28] C.A. 165/82, Kibbutz Hatzor v. Rehovot Tax Assessment Officer 39(2) P.D. 70.

[29] C.A. 481/73, Administrator of Estate Late E. Bergman v. Stossel 29(1) P.D. 505.

[30] H.C. 246,260/81, Agudat Derekh Eretz v. Broadcast Authority 35(4) P.D.1.

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

[32] H.C. 547/84, "Of Ha-emek" Registered Agricultural Cooperative Society v. Ramat Yishai Local Council 40(1) P.D. 113.

[33] H.C. 98/69, Bergman v. Minister ofFinance 23(1) P.D. 693.

[34] M.A. 67/84, Haddad v. Paz 39(1) P.D. 667.

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

[36] C.A. 507/79, Raundnaf (Korn) v. Hakim 36(2) P.D. 757.

[37] H.C. 73,87/53, "Kol Haam"Co. Ltd. et al. v. Minister of the Interior 7 P.D. 871; 13 P.E. 422; S.J., vol. I, p. 90.

[38] C.A. 150/50, Kaufman v. Margines 6 P.D. 1005; 5 P.E. 526.

[39] C.A. 214/81, State of Israel v. Pahima 39(4) P.D. 821.

[40] H.C. 732/84, Tzaban v. Minister of Religious Affairs 40(4) P.D. 141.

 

English cases referred to:

 

[41] Reg. v. Boyes (1861) 9 Cox C.C. 32.

[42] R. v. Foster (1984) 2 All E.R. 678 (C.A.).

[43] McKendrick et al. v. Sinclair (1972) S.L.T. 110 (H.L.).

[44] Jennings v. United States (1982) 3 All E.R. 104 (Q.B.).

[45] Church Wardens & C. of Westham v. Fourth City Mutual Building Society (1892) 28 Q.B. 54.

[46] Thomas v. The Queen (1979) 2 All E.R. 142 (P.C.).

[47] Mistry Amar Singh v. Kulubya (1963) 3 All E.R. 499 (P.C.).

[48] Godden v. Hales (1686) 89 E.R. 1050 (K.B.).

 

American cases referred to:

 

[49] Ex parte Grossman (1925) 267 U.S. 87; 45 S.Ct. 332; 69 Law Ed. 527.

[50] M'Culloch v. Maryland (1819) 4 Law Ed. 579; 17 U.S. 316.

[51] Youngstown Sheet and Tube Co. v. Sawyer (1952) 26 A.L.R. 2d. 1378; 343 U.S. 579; 96 Law Ed. 1153.

[52] Ex Parte Garland(1866) 71 U.S. 333.

[53] Burdick v. United States (1915) 236 U.S. 79; 59 Law Ed. 476.

[54] Murphy v. Ford (1975) 390 F. Supp. 1372.

[55] United States v. Wilson (1833) 32 U.S. 149.

[56] Biddle v. Perovich (1927) 274 U.S. 480.

[57] Montgomery v. Cleveland (1923) 32 A.L.R. 1151; 98 So. III.

[58] Schick v. Reed (1974) 419 U.S. 256.

[59] Osborn v. United States Bank (1824) 22 U.S. 738.

[60] New York v. United States (1951) 342 U.S. 882.

[61] Ex Parte Wells (1855) 15 Law Ed. 421; 18 How. 307.

 

          The petitioner in H. C. 428/86 appeared in person; A. Gal- for the petitioners in H.C. 429/86; The petitioners in H.C. 431/86 appeared in person; A. Zichroni and I. Hanin - for the petitioners in H.C. 446/86; M. Soaked - for the petitioners in H.C. 448/86; H Langer- for the petitioners in H.C. 463/86; D. von Wiesel and A. Barak - for the petitioner in M.A. 320/86; Y. Harish, Attorney-General and Y. Ben-Or. Senior Assistant State Attorney and Director of the Criminal Department of the State Attorney's Office - for the respondents; Y. Arnon and D. Weisglas for A-D.

 

SHAMGAR P.

The Matter in Issue

 

1.(a) On 25 June 1986 the State President granted the Head of the General Security Service and three members of that Service a pardon in respect of

all the offences connected with the so-called bus no. 300 incident, and committed from the time of the incident on the night between 12 April and 13 April until the date of this Warrant.

 

The pardon was preceded by certain events which became the subject of debate for a period of several months, both in the Government and among the general public, centering mainly on the proper steps to be taken by the authorities in consequence of the stated offences, which had meanwhile become known collectively as the "bus no. 300 incident".

          The President was apprised of the details of the matter in two conversations with the aforementioned Head of the Service, and the decision to grant the pardon followed formal requests to that end. The pardon was granted before any legal proceedings had been instituted in respect of the matters mentioned in the Warrant of Pardon. On the day the pardon was granted, the President made a public statement in which he explained the reasons for his decision, inter alia as follows:

         

Acting under the power vested in me by law, I have today granted Avraham Shalom, Head of the General Security Service, and three of his assistants, a full pardon in respect of every offence prima facie committed in connection with the "bus number 300 incident". I have so acted with a view to putting a stop to the "devils' dance" raging around the incident and so preventing further grave harm to the General Security Service. In so exercising my power, I have acted upon the recommendation of the Minister of Justice following a cabinet meeting held last night with the participation of the Attorney-General.

   My decision was based on the deep conviction that it was for the good of the public and the State that our security be protected and the General Security Service spared the damage it would suffer from a continuation of the controversy surrounding the incident. This Service is charged with waging the difficult war against terrorism, and the remarkable work of its members saves us tens of casualties every month. Last year alone the Service uncovered some 320 terrorist bands who were responsible for 379 outrages and attempted assaults in all parts of the country. So far this year the Service has exposed the perpetrators of 255 terrorist acts, apprehending among them also those who had committed murder.  I wish to mention another aspect of the war against terrorism, which relates to the security arrangements for the protection of Israel's diplomatic missions and other agencies abroad.  It may be recalled that only recently a murderous assault on an El-Al aircraft was prevented when members of the Service foiled the attempt to smuggle aboard a bomb in a suitcase in London. The public in Israel does not really know what debt we owe to all those anonymous heroes of the General Security Service, and how many lives have been saved thanks to their efforts."

   As President of the State, I feel it my duty to rally to the support of members of the Service; knowing as I do the vitally important and arduous task fulfilled by them, devotedly and in secrecy, daily and hourly. I do so in the hope of preventing moral harm to the intelligence organisation and the security network, and to the war against terror.

   In the special conditions of the State of Israel we cannot allow ourselves any relaxation of effort, nor permit any damage to be caused to the defence establishment and to those loyal men who guard our people.

   The effect of the Attorney-General's unequivocal intimation at the cabinet meeting, that there was no alternative but to open a police investigation into the incident, was to create a situation which requires members of the Service to submit to the investigation without being left any possibility of defending themselves, short of divulging security information of the utmost secrecy. In this situation I saw it as my primary duty to act as I have done in protecting the interests of the public and the security of the State.

         

          (b) Two principal issues have been raised in these petitions. The first concerns the President's power to pardon an offender before his trial and conviction; the second relates to a demand for the holding of an investigation into the events known as the "bus no. 300 incident". Concerning the latter issue, on 15 July 1986 we received the Attorney General's intimation, confirmed by the Inspector General of Police, that the police would investigate the complaints lodged in connection with that incident.

          We accordingly have to deal here with the scope of the presidential power of pardon, and shall refer also to two related matters, namely: the reasons for our decision on 30 June 1986 concerning joinder of the President as a respondent in three of the petitions (H.C. 431/86, H.C. 446/86 and H.C. 463/86); and our ruling on the question of locus standi.

         

2. The President's power of pardon is defined in sec. 11(b) of the Basic Law: The President of the State (1964) (hereinafter "the Basic Law"), thus:

 

The President of the State shall have power to pardon offenders and to lighten penalties by the reduction or commutation thereof.

 

          This legal provision is formulated to deal with two subjects, i.e. the pardoning of offenders and the lightening of penalties. The latter subject is not in issue in the present matter, so what remains to be decided here is whether the power to pardon offenders extends also to someone who has not yet been convicted.

 

The Approach in the Case Law

 

3. (a) For the reasons I shall set out below, it has to be concluded that in the case now before us the State President based the exercise of his power under the above section upon a legal construction in accordance with the accepted approach of this court for the past thirty-five years, which sees the President as empowered to grant a pardon also before conviction. I am not unaware of efforts made over the years by a few distinguished jurists to challenge that interpretative approach. That even they, however, have had to take the view enunciated by this court as the starting point of their analysis, is understandable and clear, for the reason succinctly stated by my learned colleague, Barak J., in "Kach"Faction v. Speaker of the Knesset [1], at p. 152:

 

In a democratic regime, based on the separation of powers, the authority to construe all legislative enactments - from Basic Laws to regulations and orders - is entrusted to the court.... Inherent in every statutory provision, naturally and axiomatically, is a delegation of the interpretative authority to the court. It is true that every state organ - and in the present context also every individual - will seek to interpret the law in order to plan ahead. In the case of certain organs, it is sometimes customary for the interpretative authority to be entrusted to a particular functionary. Thus, for instance, the Executive's interpretative function is entrusted to the Attorney-General, and his construction binds the Executive internally. But where the question of interpretation arises in court, this authority rests with the court and its construction will bind the parties. And where the construction is that of the Supreme Court, it will bind everyone (by virtue of the doctrine of stare decisis - sec. 20(b) of the Basic Law: The Judicature). In this regard Shamgar J. remarked as follows:

   "Every governmental authority must on occasion contend with the interpretation of a legislative enactment, for the application of statutory law frequently (in theory invariably) entails the formulation of an attitude as to its substance and content. But the final and decisive interpretative word respecting the law in force at any given time, rests with the court; and in respect to issues raised for deliberation within the legal system, this last word rests with the supreme judicial tribunal" (H.C. 306/81, at p. 141).

   Any other approach would strike at the very heart of the judicial process and completely undermine the doctrine of the separation of powers, and the checks and balances between them. Hence, relations both between the Judiciary and the Executive and between the Judiciary and the Legislature, are governed by the principle that the binding interpretation is that given by the court, no matter what other interpretations may be given.

         

I might add that the reservations expressed about this court's approach have related, as we shall see presently, to the recognition not only of a pardon before conviction, but also a pardon after serving the punishment and in other cases (see Prof. S.Z. Feller, "Rehabilitation", Mishpatim, 113 [1969], 497, 507). In fact, a complete alternative system of pardon has been prepared, and this proposed legislative revision is deserving of deeper study and deliberation than is possible in the framework of this judgment. (See the proposed Bills in the appendix to Prof. Feller's abovementioned article, which also include a proposed rephrasing of sec. 11(b) of the Basic Law by replacing the words "to pardon offenders" with an expression connoting remission of punishments.) Such further study of the subject would accordingly be important for shaping the desirable law in the future, if indeed it is sought to depart from the existing arrangement.

 

          (b) I shall now review the pronouncements of this court on the subject of pre-conviction pardoning under the prevailing law. The subject was first mentioned in A. v. The Law Council [2]. The petitioner asked for the restoration of his name to the Roll of Advocates following upon a presidential pardon granted him (after having served his sentence of imprisonment) in respect of the offence for which his name had been removed from the Roll. The petition was dismissed by a majority of the Court, for reasons relating both to the powers of the Law Council and to the Supreme Court's modes of exercising its discretion.

          Justice Agranat was the only member of the court to address the question of the pardoning power. The statutory provision underlying the President's power of pardon at that time (sec. 6 of the Transition Law, 1949) was phrased, so far as is relevant here, in language identical to that in sec. 11(b) of the Basic Law. It appears from the judgment of Agranat J. (as he then was) that he saw the power of pardon conferred on the President of the State of Israel as generally parallel to that vested in the King of England or in the President of the United States, whether in underlying perception, in nature and scope, or in the consequences of its exercise. In this connection the learned Judge referred, inter alia, to a statement in Halsbury's Laws (2nd. ed., Hailsham, vol. 6, p. 477) that "Pardon may, in general be granted either before or after conviction." Also referred to was the decision of the U.S. Supreme Court in Ex Parte Grossman (1925) [49], where it was held with regard to the Constitutional power to grant pardons for offences, that the Executive could grant a pardon for an offence at any time after its commission. Summing up his opinion on the scope of the power of pardon in Israel, Agranat J. clearly held that the President has the power to pardon offenders either before or after conviction (at p. 751; my italics - M.S.).

          It is true, of course, that the question of the power of pardon before conviction was not part of the ratio on which Justice Agranat founded his decision in that case. Nevertheless, the wider question of principle involving the substance and scope of the pardoning power, the matter of its historical roots and its present day construction, on which the decision of Agranat J. was founded, encompassed also this specific aspect of the exercise of the power before conviction. This aspect arose directly out of and became an integral part of the interpretative method adopted. That is to say, inherent in Justice Agranat's adoption of the view that the President's pardoning power was the same as that of the British King or the American President, was the conclusion that the definition of that power likewise derived from the interpretative process on which the learned Judge had founded his decision, as he himself in fact noted.

          Justice Agranat's abovementioned opinion has come to be recognized as representing the prevailing and commonly accepted interpretation of this court, whether this be due to the fact that no contrary judicial opinion on the matter has been expressed or whether this be attributed to the Further Hearing in the Matana case, a landmark decision in our constitutional law to which I shall presently return.

 

          (c) This subject arose again in the rehearing in Attorney-General v. Matana [3], representing the leading and most comprehensive decision so far on the power of pardon. Once again the substance of the power was analysed, this time in the court's full consciousness that the decision which had occasioned the rehearing amounted to a rejection of the minority opinion of Agranat J. in A. v. The Law Council, insofar as he had found a parallel between the power of the President of Israel and that of the British Monarch. In his judgment in the Further Hearing, Deputy President Agranat (as he then was) reiterated his view expressed in A. v. The Law Council that the President's power of pardon was exercisable also before conviction. He noted that while there was indeed no room for an equation of the President's power of pardon with that of the High Commissioner of Palestine (under Art.l6 of the Order in Council, 1922), he also had no hesitation in reaffirming his approach in A. v. The Law Council as regards the scope of the President's power and its comparison with that of the Executive under the corresponding Anglo-American constitutional law. The power under sec. 6 of the Transition Law, 1969 (which for our present purpose is the same as that set forth in sec. 11(b) of the Basic Law) was termed by Agranat D.P. an "original" power forming part of a "Constitution in miniature of an independent State." Hence it was not comparable to the pardoning power instituted under the Mandatory legislation, and the model for comparison was the power of the British or the American Head of State.

          In this regard the learned Deputy President added, by way of an interpretative guideline, that in view of its constitutional content the statutory provision concerned did not need a restrictive interpretation ( M'Culloch v. Maryland (1819) [50] at p. 602; Youngstown Sheet & Tube Co. v. Sawyer (1952) [51] at 1399, per Frankfurter J.). From the Youngstown case Agranat D.P. cited the statement of Jackson J. that because the American President enjoyed only those powers mentioned in the constitution it "does not mean that the mentioned ones should be narrowed by a niggardly construction."

          In short, it emerges from the Deputy President's judgment that while the relevant provision did indeed relate to a new and independent legislative enactment, for the proper understanding of its substance it was nevertheless permissible to refer also to the corresponding powers that existed in the countries looked upon as the principal models for comparison, and which had nourished and shaped our own legislation.

          Cohn J. (as he then was) - who together with Silberg J. concurred with Agranat D.P. in forming the majority opinion of the court - wrote a separate opinion stressing certain matters which appear to be particularly relevant in relation to the background of the problem now before the court, inter alia holding as follows (at p. 462):

 

Under sec. 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (23 June 1960), in the manner laid down for them in the judgment of this court (per Agranat J.) in A. v. The Law Council (at p. 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England, and which was possessed by the High Commissioner of Palestine. It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949, even then I would not venture today to change this practice which has received the seal of the Knesset at least by its silence, and more especially since the practice followed by the President of the State adds the "grace" extended by him to its citizens.

   I have no doubt, however, that the said provision in sec. 6 should be given a wide and not a narrow interpretation. But for the principles laid down in A v. The Law Council, which the Deputy President has again adopted in his instructive judgment in this Further Hearing, I would perhaps have gone further and interpreted the said provision even without reference to the powers of the King of England under the common law, which were also given to the High Commissioner of Palestine by virtue of the Order in Council, 1922. For the purposes of the decision in the present case, however, the principles laid down in the judgment referred to are sufficient for me too, and I arrive at the same conclusions as those reached by my colleague, the Deputy President, but without resort to the English and American authorities which he cites in his judgment.

 

          (d) In a dissenting judgment Berinson J. disputed the abovementioned interpretative theses. In essence, however, and notwithstanding the divergence between the minority view (of himself and Landau J.) and the majority view as to the President's power of substituting one sentence for another, even he was expressly of opinion that the President's pardoning power extended also to an act for which the offender had not yet been tried and convicted. In this sense, as Berinson J. expressly pointed out, the President's power was wider than that of the High Commissioner at the time:

 

Moreover the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial (ibid. p. 469).

 

4. Recently Justice Cohn has had further occasion to express his opinion on the subject ("Symposium on Pardon," hereinafter "Symposium," Mishpatim 15/1 [1984], 14). It was decided law, in his view, that it was never intended by the Israel lawgiver - whether in the Transition Law, 1949,or in the Basic Law - to curtail the scope of the pardoning powers vested in the King of England under the constitutional conventions; it followed that the power to pardon offenders before their conviction availed also in Israel.

 

5. (a) In view of the reference in our decisions to the Anglo-American comparative model, it is fitting that we supplement our above remarks with a brief review of the law of those countries on our present subject. It is consistently asserted in the literature of English constitutional law, that the King is empowered under the common law to grant also a pre-conviction pardon. It is so stated in Blackstone's Commentaries on the Laws of England (San Francisco, 1916; vol. II, p. 400). In Halsbury's Laws (4th ed., vol. VIII, 8, par. 949, p. 606) it is stated:

 

          In general, pardon may be granted either before or after conviction.

         

          S.A. De Smith opines that "a pardon may be granted before conviction" (Constitutional and Administrative Law, 5th ed., Street and Brazier, 1985, p. 150, note 121). He holds that this prerogative power, though not exercised today, has not become abrogated by disuse and, like Sleeping Beauty, "it can be revived in propitious circumstances" (p. 143). In other words, in exceptional circumstances which so justify, the King may conceivably have renewed recourse to this power. A like view is expressed by O. Hood Phillips - "A pardon may generally be granted before or after a conviction" ( Constitutional and Administrative Law, 6th ed., 1978, p. 378). English decisions and treatises on the subject are replete with statements to the same effect and one need not repeat them all here (see Reg. v. Boyes, [41] ).

         

          (b) In the U.S.A. the pre-conviction pardoning power is clearly enunciated in the classical work on the U. S. Constitution prepared by the Research Service and the Library of Congress: The Constitution of the United States of America, Analysis and Interpretation (Washington, 1973), p. 474. In Am. Jur. 59, 2d (Rochester & San Francisco, 1971) par. 25, the presidential power of pre-conviction pardoning is explicitly asserted, and with regard to the separate States it is added:

 

if the constitution does not expressly prohibit the exercise of the power until after conviction, it may be exercised at any time after the commission of an offense before legal proceedings are taken.

 

          That is to say, the customary interpretation is that any State wishing to preclude the grant of a pre-conviction pardon has to make express constitutional provision to that effect, and a power of pardon mentioned without such a reservation means that it may be exercised also before conviction of the offender. See also W.W. Willoughby, The Constitutional Law of the United States (New York, 2nd ed. 1929), vol. III, at p. 1491; B. Schwartz, A Commentary on the Constitution of the United State (New York, 1963), vol. II at p. 87; B. Schwartz, Constitutional Law (N.Y. and London, 2nd ed. 1979) at p. 198; L.H. Tribe, American Constitutional Law (Mineola, 1978) at p. 191.

          In the American precedents the power of pre-conviction pardoning is constantly reiterated. In the celebrated case of Ex Parte Garland (1866) [52], it was held (at p. 380) that the pardoning power

         

….extends to every offence known to the law and may be exercised at any time after its commission either before legal proceedings are taken, or during their pendency or after conviction and judgment.

 

          See also L.B. Boudin, "The Presidential Pardons of James R. Hoffa and Richard M. Nixon: Have the Limitations on the Pardon Power been Exceeded?" Un. Colo. L. Rev. 48 (1976/77), p. 1.

         

6. In Attorney-General v. Matana [3] the majority agreed with Agranat D.P. as regards the substance of the pardoning power. In the wake of this decision came a legislative development which also throws some light on the attitude of the authorities at the time to the abovementioned legal questions. When the Bill for the Basic Law: The President of the State came before the Knesset, it was decided to vary the text of the provision concerning pardon in a manner clearly enunciating the President's power to commute sentences, this being a matter on which divided opinions had been expressed in the Matana rehearing. However, no attempt at all was made to vary the existing statutory arrangement so far as its interpretation in the rehearing was concerned - both by Agranat D.P. who expressed the majority opinion and by Berinson J. - as empowering the President also to grant pre-conviction pardons. The amendments pertaining to the commutation of sentences clearly stemmed from the wish to eliminate possible doubt resulting from the divergent interpretations on this point in the Matana case. Thus, for instance, Dov Joseph, Minister of Justice at the time, had this to say in support of the proposed amendment:

 

   As to the presidential power to pardon offenders dealt with in sec. 6 of the Transition Law, the matter is now regulated in sec. 12 of the proposed new Law. The change in relation to the existing Law is that the new provision expresses the commutation of punishments to be, along with their reduction, a presidential power of pardon. This is no fundamental change, for even under the existing Law, which mentions the reduction of punishments but not their commutation, the latter was held to fall within the purview of the pardoning power vested in the President. However, since the Supreme Court arrived at this conclusion after much toil, with a minority of the Justices holding otherwise, we thought it desirable to clarify in the proposed new provision that such was the lawgiver's intention from the start (Minutes of the Knesset, 36 (1963/4), 964).

 

          Also of interest in this connection are the comments made in the same debate by Prof. Y. H. Klinghoffer:

         

In a decision of the Supreme Court a year ago, it was decided - as already indicated by the Minister of Justice in his opening remarks - that sec. 6 embodied a power of substitution of a lighter punishment for the one imposed, and in particular to commute a sentence of imprisonment to one of conditional imprisonment" ( ibid., p. 966).

 

          A year later (in 1965) Professor Klinghoffer rested on the same foundation his argument that if difficulties were to arise in consequence of the adoption of a certain proposal raised by him for debate, recourse could be had to the pre-conviction pardoning power in order to solve hard personal problems of punishment for which no other solution was available:

         

Another unconvincing argument advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council, H.C. 177/50 ( Minutes of the Knesset, 43(1965), 2319):

 

          Statements made in the course of Knesset debates do not, of course, bind the court when construing the law, let alone the fact that here we are seeking mainly to draw an inference from the non-amendment of the existing statutory arrangement on the subject. We do accept, however, that a particular enactment's legislative history may be a valuable aid in its interpretation (Wakhnin v. Military Appeals Tribunal [4] at p. 424), and we may be so guided here too. An inference may properly be drawn from the fact that at the time when the Knesset debated the implications of the decision in A. v. The Law Council, not a single voice was raised in favour of narrowing the President's power in 'respect of pre-conviction pardoning. Legislatively speaking, it has so far not been seen fit to disturb the wording of the pertinent provision nor, indeed, its manner of interpretation - by Justice Agranat in A. v. The Law Council and by  the Justices of the majority as well as the minority opinion in A. G. v. Matana- as empowering the President to pardon offenders also before conviction. The opportune time for having effected an amendment in curtailment of the pardoning power, should anyone have disapproved of its judicial interpretation, was surely at the stage when the Law was amended anyway to clarify operation of the pardoning power in a different respect, as already mentioned. The fact that the power as it stood was left intact in relation to the matter of our present inquiry, is proof that neither the Legislature nor the Executive saw fit to alter the legal situation that emerged from the expansive interpretation given the pardoning power in A.G. v. Matana.

          Incidentally, though at the time there may have been room for debating whether or not the provisions of the Transition Law, 1949, including sec. 6, were endowed with any permanent constitutional standing, there could certainly have been no doubt as to the constitutional content and standing of the Basic Law: The President of the State. Yet sec. 11(b) thereof repeats verbatim the part of sec. 6 of the Transition Law that is pertinent to our present inquiry, and which the court construed as it did in the Law Council and Matana cases.

         

7. The fact that the Knesset did not vary the court's construction of the power "to pardon offenders" as embracing also pre-conviction pardoning, has contributed to a general recognition of the approach in the two precedents cited as the accepted approach on this subject. Prof. A. Rubinstein, for instance, writes as follows ( The Constitutional Law of  Israel, 3rd ed., at p. 394; in Hebrew):

 

(e) Pardoning of offenders before conviction. The Law does not restrict the President's power to pardon offenders, and he may do so even before they have been convicted. English law is the same as regards the prerogative of pardon of the British Crown. The High Commissioner, however, was delegated only a part of the stated royal power and, in terms of Art.16 of the Order in Council, 1922, was able to pardon offenders only upon their conviction. In this respect the President's power is like that of the British Crown. Even Justice Berinson who interpreted the presidential power narrowly in the Matana case, held that "he has power to pardon any offender also before he is brought to trial."

 

          A more restrictive construction of the expression "to pardon offenders" - even if centering more on the meaning of the term "offenders," which point I shall presently discuss in greater detail - was proposed by Prof. Klinghoffer at a symposium on this subject, though with express acknowledgment that his own view differed from the interpretation given by the Supreme Court (see Prof. Y. Klinghoffer, "Pardon's Constitutional Framework," Lectures at the Symposium "Amnesty in Israel", held in Jerusalem on 13-14 May 1968, Publications of the Hebrew University Institute of Criminology, 2, 5; hereinafter "Lectures on Amnesty"). A similar view was expressed by Prof. S.Z. Feller in his abovementioned article, "Rehabilitation" (at p. 507, note 28). Also present at the symposium was the then incumbent Attorney-General, M. Ben-Zeev, who made these observations:

         

   Prof. Klinghoffer's constitutional analysis of the pardoning power is undoubtedly comprehensive and interesting. I feel it necessary, however, to mention one matter on which I disagree with him - if only to ensure that a different opinion also be heard on this important point. Prof. Klinghoffer interpreted the President's power "to pardon offenders" as applying only to convicted offenders and not to unconvicted suspects, a conclusion felt by him to flow from the very expression here used. Since in our law a person is presumed innocent until convicted he cannot be an "offender" until he is convicted; therefore, in Prof. Klinghoffer's opinion, the President has no power to pardon any person before he has been convicted. In this connection I might mention the case of A. v. The Law Council, cited by Prof. Klinghoffer, in which the wording of the relevant provision in the Transition Law was construed - and from which wording there was no departure, in the instant context, in sec. 11(b) of the Basic Law: The President of the State. This identical expression in both the above enactments was interpreted by Justice Agranat, after lengthy analysis in his abovementioned judgment, to mean that the President "has the power to pardon offenders either before or after conviction." This authority accordingly contradicts the approach of Prof. Klinghoffer and I myself, in my capacity as Attorney-General, have relied on this authority in giving my opinion that the President may pardon offenders also before conviction. The term "offender" obviously cannot be understood here to mean someone who has been duly convicted, but rather someone who comes to the President saying: "I have committed an offence and I ask you to pardon me." It is inconceivable that a person should come before the President and say: "I have not in fact committed an offence, but if I have, please grant me a pardon." Such alternative kind of pardon naturally finds no place in our law. But if a person should come and say that he has committed an offence for which he asks to be pardoned, then he is among the offenders whom the President has the power to pardon ( ibid., p. 53).

 

          Another participant in the abovementioned symposium was Dr. Leslie Sebba of the Criminological Institute of the Hebrew University, Jerusalem, who made this comment on the legal situation as portrayed there ("Summary of the Lectures at the Symposium 'Amnesty in Israel' " p.x):

         

Finally, there was some doubt as to the proper interpretation of the phrase "to pardon offenders." Did this include persons not yet convicted? In the opinion of the Government, which based its view on judicial opinion, such persons could be regarded as offenders for the purpose of the pardon, for the request for a pardon could in itself be regarded as an admission of the offence .

 

          This leads us to Dr. Sebba's illuminating work, On Pardon and Amnesty: Juridical and Penological Aspects (Ph.D. dissertation, Faculty of Law of the Hebrew University, Jerusalem, 1975; hereinafter On Pardon and Amnesty), in which the writer examined the scope of the pardoning power in Israel, inter alia making this comment (at pp. 152-153):

         

   Sometimes pardon before conviction or "advance pardon" is treated as an independent form of pardon. This power, which has a legal foundation in both English and American law (but not in France), is generally attributed also to the State President. This view is challenged, however, by Prof. Klinghoffer on the ground that everyone is presumed innocent until duly convicted: "Hence no person is an 'offender' until a final convicting judgment be given against him."

   In our view, the law does indeed enable a pardon to be granted without prior conviction. For certain purposes the Legislature has seen fit to describe an unconvicted suspect as an offender, and the Supreme Court has also held that an unconvicted suspect may be deemed to have a "criminal past" under sec. 2(3) of the Law of Return, 1950 (see H.C. 94/62, Gold v. Min. of Interior, 16 P.D. 1846). Finally, Art. 16 of the Order in Council conferred express power to pardon a person who turned "King's evidence" and whose evidence led to conviction of the principal offender.

         

          The introduction to Article 16 of the Order in Council clearly related to unconvicted suspects who were willing to give evidence for the prosecution. This was envisaged as the main area for application of this provision, which, as in English law for the past centuries, has been the main justification for preserving the power of "advance" or pre-conviction pardon.

         

8. We have so far described the ruling interpretative thesis. Having regard, however, to the arguments advanced during the hearing, it is necessary to examine the reservations and doubts raised as to the President's power to pardon unconvicted offenders under sec. 11(b) of the Basic Law. We shall pursue this examination, and the formulation of our interpretative standpoint regarding sec. 11(b), along three principal lines of inquiry: first, the linguistic import of the statutory provisions under consideration; second, the contention as to abrogation of the disputed power following the enactment of other, new powers; and third, the juridical-constitutional substance of the power.

 

The Language of the Section

 

9. Sec. 11(b) of the Basic Law speaks of the power "to pardon offenders." There is no definition of the term "offender" in either the Basic Law or the Penal Law of 1977. As already mentioned, Prof. Klinghoffer founded his narrow interpretation of the presidential power on the perception that the term "offender" applied only to someone duly tried and convicted (see "Lectures on Amnesty",supra; "Symposium," at p. 5). The like opinion was expressed by H. Zadok, former Minister of Justice (ibid., p. 9) and by Prof. S.Z. Feller (ibid., p. 10; and see also "Rehabilitation," at p. 507). Disagreeing with these views, Justice H. Cohn argued that the existence of a pre-conviction pardoning power was also indicated in the language of the Law. He commented that an enactment aimed at expanding civil rights and benefits called for a spacious and liberal interpretation. For purposes of the President's power, an "offender," in his opinion, was anyone who testified to himself as being such “ Symposium," at p. 14).

          I do not think the term "offender" must be understood as referring only to someone who has been tried and convicted. It is accepted in this court that an expression in a particular Law must be interpreted in the light of its legislative context, as was held by my colleague the Deputy President in Alba Pharmacy Ltd. v. State of Israel [5] at p. 802:

         

Expressions and directives in a Law must be interpreted in the light of the purpose it is intended to achieve. Hence it will sometimes happen that the identical expression appearing in different enactments is differently construed, all in accordance with the inherent purpose and intent of the enactment (C.A. 480/79, Treger v. Customs Collector, at p. 306).

 

          According to its plain meaning, the term "offender" relates to someone who has committed an act defined as an offence, and from the word offence or offender itself one can hardly learn that it has no other legislative application than to someone proved, in final criminal proceedings ending in a conviction, to have committed an offence. Fundamental to our perception of criminal justice is the presumption that a person is innocent until duly proven guilty, but this presumption is an incident of the individual's rights and obligations in confrontation with the judicial process, or with any other authority, or individual. It does not necessarily reflect upon all the possible linguistic nuances of a descriptive term employed in a variety of legislative contexts and conjoined to a variety of eventualities in the penal law and related area. Not infrequently one finds mention in enactments of the term "offence" or "offender," when it is intended to refer simply to a criminal act or omission, or to the person to whom such is attributed, even though not yet convicted in criminal proceedings. And this is so even though the circumspection needed when a person's status may be affected in criminal proceedings, would seem to indicate the use of other expressions such as "a person accused of..." or "charged with..." or "alleged to have committed an offence," or like language. The Penal Law of 1977, for example, makes frequent mention of the term "offence" in a variety of contexts. But when it speaks in sec. 4 of bringing an offender to trial, the reference is clearly to someone charged with, and not already convicted of, the offence. (In like vein see also secs. 7, 8 and 10(d) of the Law.) In this connection Dr. L. Sebba refers ( On Pardon and Amnesty, at p. 153) to the Criminal Procedure (Arrest and Search) Ordinance (New Version), sec. 3(3) of which empowers a police officer to arrest a person without warrant if he "has committed in the police officer's presence, or has recently committed" a certain kind of offence; here too one is clearly dealing with someone suspected of committing the offence rather than someone already convicted thereof.

          It is provided in sec. 3 of the Police Ordinance (New Version) that "the Israel Police shall be employed for the prevention and detection of offences, the apprehension and prosecution of offenders." There undoubtedly cannot be any reference here to already convicted offenders. The definition of the term offender in the Interpretation Ordinance (New Version), stresses the element of the sanction but nowhere mentions a finality of legal proceedings. And so one could without difficulty quote many more examples.

          We might, for the purpose of our linguistic inquiry, also examine other provisions of law on matters which may be said to be in pari materia. In this respect the wording of sec. 6 of the Transition Law, 1949 sheds no additional light on the meaning of the term "offender" in the Basic Law. However, besides the individual pardon provided for in the Basic Law, two other Laws were enacted dealing with the subject of general amnesty. The first was the General Amnesty Ordinance of 1949, which in see 2 provided that a person who prior to a specified date "committed an offence... shall not be arrested, detained or prosecuted for it, or if he is already being prosecuted... the proceedings shall be discontinued and he shall not be punished." Clearly the words "...committed an offence" extended the benefit of the amnesty also to offenders who had not yet been tried and convicted. The wording of sec. 2 spoke for itself, and a statement to the same effect was made by the then Minister of Justice, Mr. Y.S. Shapiro, when introducing the Bill for the Amnesty Law of 1967 before the Knesset:

         

This is the second occasion on which a general amnesty is extended by the State directly through the legislature. The first time the general amnesty was granted by the Provisional Council of State in its final session, prior to the convention of the elected assembly - the First Knesset. In the Law passed at the time by the Provisional Council of State, it was laid down that any person who had committed an offence, other than one entailing sentence of death or life imprisonment, should receive a pardon, whether already tried and convicted or not (Minutes of the Knesset, 49, p. 2484).

 

          In sec. 5 of the Amnesty Law of 1967, the second enactment of its kind, mention was again made of a "discontinuance of proceedings" taken in any court for "any offence committed" before a specified date. Thus the amnesty was once more extended in respect of "offences" for which the offender had not yet been tried or the proceedings concerning which had not yet been completed.

          The manner of use of the term "offence" in a Knesset enactment dealing with a general amnesty has implications for the construction of the same term in an analogous Knesset enactment dealing with individual pardons.

          In sum, it may be learned from a linguistic examination of pertinent statutory provisions, that the terms "offence" and "offender" may, according to the subject matter and context, simply import a criminal act or the person accused or suspected of having committed that act, and not necessarily a conviction, or a convicted offender. By analogy, the same term in sec. 11(b) of the Basic Law was intended to embrace also a person to whom a criminal act, attempt or omission is attributed, and not only someone already convicted of the same.

          By way of comparison it may be noted that the same term mentioned in the constitution of the U.S.A., in the context of "pardons for offences" (art. II, sec. 2, clause 1), has also not been interpreted as applying solely to criminal conduct which is followed by trial and conviction.

         

 Parallel Statutory Powers

 

10. It was a central argument of the petitioners that the power of pardon before conviction was abrogated by the effects of later, as it were, superseding legislation. This argument assumed diverse forms and I propose to deal with its different aspects. Since, for purposes of our present inquiry, it first found expression in a directive of the Attorney-General included in one of the petitions now before us, I shall start therewith.

 

11. (a) In his capacity as Attorney-General, Prof. Y. Zamir published a directive (no. 21.333) concerning the President's power to pardon offenders before completion of the trial. The learned writer first referred to the opinion of Justice Agranat in the case of A. v. The Law Council, contending that the equation there of the power of the High Commissioner with that of the British Crown was erroneous, as the former was not competent to pardon any person before his conviction. It followed that if the High Commissioner was not so empowered, no power of that nature could possibly have been conferred under sec. 6 of the Transition Law of 1949, when it was enacted.

          The above conclusion as to an equality of pardoning power displayed indeed a certain inaccuracy, for the power delegated to a colonial Governor or to the High Commissioner of a Mandated Territory did not coincide with the prerogative power of the King. But this point was clarified in the Matana case and, I might add, the Attorney-General himself fell victim to an inaccuracy when writing that the High Commissioner had no power to pardon unconvicted offenders. For it was expressly provided in the first part of art. 16 of the Order in Council that the High Commissioner might pardon "any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender." This empowerment therefore did not relate specifically to already convicted persons, and further proof is to be found in the continuation of art. 16, where express reference is made to convicted offenders in quite a different context.

         

          (b) The stated directive was further predicated on the premise that the abovementioned statements of Justices Agranat and Berinson (on the instant issue) did not amount to binding precedent. I do not accept this reasoning, since it overlooks the connection between the court's overall decision, as already described above, and the specific conclusion concerning the power of pre-conviction pardoning. The existence of this nexus has not only been acknowledged in extra-judicial commentaries, but was also expressly mentioned by Justices Agranat and Berinson in their respective judgments in the Matana case, both clearly having regarded the power of pardon before conviction as flowing integrally from their underlying legal perception of the wider issue before them. The fact that the learned Justices saw fit to recognise the possibility of pre-conviction pardoning, is evidence that such recognition was a natural corollary of a viewpoint shared by the Judges of the majority as well as the minority opinion in the Matana rehearing. Moreover, the fact that the question of a pardon before conviction was directly addressed in the abovementioned decisions, even though the question was not directly in issue on the facts in either of the two cases concerned, is further evidence of a clear and patent connection seen between the essential pardoning power - as interpreted by the court - and the possibility of a pardon granted before conviction. What I am saying is that one has to examine the judgments of the majority opinion in the Matana rehearing according to their essential legal rationale, rather than merely answer the question whether the judgments dealt directly with the power to pardon before conviction. The ratio of the majority opinion in the Matana rehearing is to be found in the conclusion that the presidential power, although original and autonomous by virtue of an Israel enactment, was nevertheless shaped by and for its legislative purpose according to the Anglo-American model. At the same time the court added its conclusion that the Presidential pardoning power in Israel was equal in scope to that of the King of England, or of the President of the U.S.A. The details of the power, also in the pre-conviction contingency, were but a derivative legal consequence. It was the constitutional analogy with the corresponding Executive powers in the above two countries - whose legal systems, far more than others, have inspired and nourished our own legal and constitutional notions and doctrines - that gave birth to the conclusion that is now the subject of our deliberation.

          A like opinion was expressed by Prof. C. Klein ("Symposium," at p. 17):

         

The source of the pardoning power is the royal prerogative. There is a clear connection between the method of pardon in Israel and the corresponding English method, from which one can learn about the scope of the presidential power of pardon in Israel (a divergence of opinion on this matter is echoed in the Matana case).

 

          The power of pardon is not everywhere the same and, as we shall presently see, a variety of methods are followed in other countries. At the time, however, it was not the constitutions of such other countries that served as the models for shaping our own powers of pardon, so that no conclusion whatever can be drawn from any comparison with them, and their situation cannot now reflect on our own, except as an exercise in the desirable.

          It would also be wrong to conclude from the analysis of principles in the abovementioned precedents that we are, as it were, held captive by our legal heritage and that we lack the vigour to fashion our own constitutional doctrines. Not so! Our essential constitutional form has throughout been autonomously our own, and remains so today. What is at stake is a historical-interpretative question that is concerned with the legal perspectives adopted at the time, with the constitutional result distilled from and founded on the same, and with the tenor of our precedents - representing, for some considerable time now, the accepted legal interpretation.

          Of course, there always remains the possibility that the Legislature may be disposed to replace the existing order with a new arrangement considered more suited to our time. Interesting proposals to this effect have been made, some of them ranging in substance far beyond the limited question of our immediate inquiry. Only in an appropriate manner, however, should we abandon a chosen path of the Knesset and the legislative purpose enshrined in the relevant provisions of the Transition Law and the Basic Law, especially when the powers conferred thereunder are of known scope after lengthy judicial analysis and circumscription. We should take care that any material change contemplated be not impelled by passing events, however stormy their nature, but result from orderly constitutional research and discussion. Any change resolved upon should be effected in a manner showing proper deference to a constitutional norm followed for a comparatively long time, that is to say, it should be done by way of legislative enactment.

 

12. In his directive the Attorney-General founded his conclusions as to the scope of the presidential pardoning power largely upon its comparison with his own power to issue a nolle prosequi:

 

A wider use of the power to order a stay of criminal proceedings has always been made in Israel, and in recent years thousands of requests for such a stay have been lodged annually with the Attorney-General. In practice, therefore, the power to pardon accused persons before completion of their trial needs less to be exercised in Israel than in England....

   A presidential power to intervene in criminal proceedings pending before the court, in a manner permitting termination of such proceedings at any time, is undesirable in principle. The pardoning power of the President bears no comparison with the Attorney-General's power to intervene in criminal proceedings by way of staying the same. The Attorney-General functions from the start as an integral factor in criminal proceedings, for he is empowered by law to prefer the charge on behalf of the State.... The President, on the other hand, is an extraneous factor in criminal proceedings. In this situation, his grant of a pardon in the course of a trial might be seen as an unwarranted intrusion into the domain of the court....

   Any interpretation that would empower the President to pardon also unconvicted suspects, suffers in addition the practical disadvantage of a concurrence between this power and the power of the Attorney-General to stay the proceedings against such suspects.

         

          In this connection it was contended that even in England the prerogative of pardon before conviction was no longer exercised. Accordingly, it was concluded in the directive that the President was competent to pardon only convicted persons, for the reason that his power to pardon unconvicted suspects had been replaced by the Attorney-General's power to order a stay of criminal proceedings.

         

13. The above argument is complex and involves, as we shall see presently, not only the matter of a nolle prosequi and its effects, but also other legal processes and their ramifications, including problems of interpretation. The full import of the argument is that a whole array of new penal laws enacted over the years have served to abrogate the power of pardon before conviction. It is true that the argument was not presented to us in precisely this form, but this was clearly its substance. It would be helpful, therefore, for us to dissect the argument into its component parts and different legal aspects, and to examine each in turn, namely:

          (a) First, what is the nature of the order staying a criminal prosecution, and what are the points of similarity and difference between this step and the power of pardon before conviction?

          (b) Second, what ground is there for the contention that the power of pardon before conviction is no longer existent in Anglo-American law?

          (c) Third, what other relevant statutory provisions exist on the issue before us, even if not mentioned in the Attorney-General's directive, or in the arguments addressed to us?

          (d) Fourth, can a constitutional directive deriving from statute or from the common law (where it exists) be considered to have been implicitly repealed or abrogated by later legislation dealing with the same subject?

          (e) Fifth, does the emergence, in practice, of a pragmatic legal substitute for an existing constitutional arrangement, implicitly repeal the latter, and is there any difference for this purpose between a constitutional or legal arrangement deriving from express statutory provision, and one which is solely the creation of judicial interpretation?

         

14. (a) As regards the issue of a nolle prosequi, it is provided in sec. 231 of the Criminal Procedure Law (Consolidated Version) of 1982, that the Attorney-General may stay the proceedings by reasoned notice to the court at any time after lodging of the information and before judgment; upon such notice the court shall discontinue the proceedings in that trial. The Attorney-General may also delegate to his deputy - either generally or in respect of a particular matter or classes of matters - his power to stay any criminal prosecution except in cases of felony. In a recent Bill for the amendment of the above Law (no. 1703, p. 34) it is further envisaged that the Attorney-General may delegate this power - in charges other than felonies, preferred by a prosecutor who is not an attorney of the State Attorney's Department (e.g. a police prosecutor) - also to the State Attorney or his deputy, to the District Attorney, or to any other attorney of the State Attorney's Department given the power of a District Attorney under see. 242 of the above Law. In the explanatory notes to that Bill, it was stated that the Attorney-General and his deputies were experiencing difficulty in handling the greatly increased number of requests made for a stay, and hence the proposed widening of this delegatory power.

          This proliferation of requests is apparently attributable, inter alia, to the proportion of such requests acceded to, and it is clear from the cited passage in the Attorney-General's directive, that thousands of requests are made annually in what seems latterly to have become a regular and widespread practice. I see no need to express any detailed opinion on the question (which is not in issue here) of the proper use of the power to stay a prosecution, and but for it having become interwoven with the argument now before the court, would have preferred not to deal with it at all. I shall merely state my lack of conviction that the wide use of the staying power, as described in the directive, is in accord with the lawgiver's underlying intentions and the character of the staying procedure. Any misgivings one might have with regard to the implications of a pre-trial exercise of the pardoning power, must also to a large extent accompany this phenomenon of a stay of criminal proceedings before the trial has run its course. We appear to be dealing here, not with the rare and exceptional exercise of a given power, but with a rapidly widening process which entails no public deliberation, no participation of any other authority, and which, by its very nature, allows little opportunity for judicial or any other kind of scrutiny (cf. K.C. Davis, Discretionary Justice, Baton Rouge, 1969, pp. 211-212). And, as already indicated, there are proposals afoot for a further, vertical, diffusion of this power.

 

          (b) Sec. 232 of the same Law provides that, following a stay of proceedings under sec. 231, the Attorney-General may upon written notice to the court renew the proceedings, provided no more than a specified period has elapsed from the time of the stay. Upon such notice, the court renews the proceedings and may commence them again from the start or continue from the stage of their discontinuance. Upon a second stay of the same proceedings, they may not again be revived. This means that the first stay does not finally close the matter, for it does not preclude the revival of the proceedings within a specified period, and only thereafter is finality reached.

         

          (c) The power to order a stay of proceedings is not to be seen as an institution of later legislative vintage than the pardoning power. The Attorney-General's power of stay did not first come into being in the Criminal Procedure Law of 1965, but existed before that under the Mandatory Art.16 of the Order in Council 1922. It continued to exist after the establishment of the State when the pardoning power was later re-enacted, first under sec. 6 of the Transition Law of 1949, and then under sec. 11(b) of the Basic Law of 1964 (see sec. 59 of the Criminal Procedure [Trial upon Information] Ordinance of 1924, and sec. 18 of the Magistrates Courts' Jurisdiction Ordinance of 1939). It follows that the theoretical parallel between the power to pardon and the power to order a stay of proceedings was there from the start - i.e. from the very inception of the pardoning power in its new constitutional guise after the establishment of the State - and that the power to stay a prosecution indeed antedated the Knesset's enactments on the power to pardon offenders.

          This fact alone should suffice to controvert the proposition that the presidential power of pardon was abrogated or curtailed by a later conferment of power on the Attorney-General to order a stay of criminal proceedings. The latter power coexisted with Art. 16 of the Order in Council 1922, and was still operative when the power to pardon offenders was widened in the Transition Law of 1949 and in sec. 11(b) of the Basic Law. And the construction of the power conferred under these enactments, in Matana and in A. v. The Law Council, did not precede, but followed the creation of the Attorney-General's power of stay.

         

          (d) On the relationship between the two powers, Justice Cohn, for instance, has said:

         

There is no similarity or parallel between the stated presidential power and the power of the Attorney-General to order a stay of proceedings: the one is a prerogative power, the other purely administrative; the one is subject to revocation and change at the Attorney-General's wish, the other is an act of much solemnity and by its very nature of rare and exceptional exercise ("Symposium," at p. 15).

 

          I myself am not inclined to view the Attorney-General's power as being administrative. It relates to a criminal procedure involving the exercise of a quasi-judicial discretion (see Schor v. Attorney-General [6]; Nof v. Attorney-General [7]). The purpose of the staying function was to reserve for the chief prosecution authority the power to halt criminal proceedings, without this entailing the consequences set forth in sec. 93 of the consolidated version of the Criminal Procedure Law (withdrawal of the charge), but retaining the possibility of resuming the proceedings within a given period. However, I do recognize differences between this power and the power of pardon, which I shall summarise presently.

         

          (e) There can be no full parallel between the power of stay and the power of pardon, since the former comes into play only after the suspect has been charged (sec. 231 of the Criminal Procedure Law [Consol. Version]). An immunity from prosecution promised a state witness who has not yet been charged, cannot be founded on the power of stay under see. 231, but only upon an Executive commitment or, if deemed fit, a pardon.

         

          (f) To sum up, the points of difference between the two powers are the following:

          (1) A stay of proceedings is inconclusive until expiry of the statutory prescribed period. A full and unconditional pardon, on the other hand, cannot be withdrawn (see Killinger, Kerper and Cromwell, Probation and Parole in the Criminal Justice System, St. Paul, 1976, p. 318).

          (2) A stay of proceedings under sec. 231 is possible only after the suspect has been charged.

          (3) A pardon (according to the decision in Matana ) acts to remove the stain of guilt utterly (in contrast, for example, to the prevailing approach in Britain, as expressed in R. v. Foster [42] and holding the pardon to wipe out only the consequences of the conviction; and see, in the U.S.A., Ex Parte Garland [52], and cf. Burdock vs. U.S. [53]; see also Killinger, Kerper and Cromwell, Probation and Parole, p. 322). A stay of proceedings is merely a trial procedure which, under the Criminal Procedure Law (Consolidated Version) of 1982, calls a halt on further activities from the time the stay is ordered, without any retroactive effect.

          (4) As a trial procedure acting to halt the proceedings, the stay of a criminal prosecution is not unique, as appears from sec. 93 of the abovementioned Law concerning withdrawal of a charge by the prosecutor.

          (5) It is necessary for the Attorney-General to give his reasons for issuing a stay of proceedings, whereas no reasons need be given for the issue of an instrument of pardon.

         

15. The comparison made with English law and the contended disuse of the pre-conviction pardoning power, as advanced in the Attorney-General's above directive no. 21.333, seems to show a confusion between the continued existence of a power and the frequency of its exercise. The fact of an abrogation of the royal prerogative to grant a pardon at any time after commission of the offence, is nowhere postulated in English legal writings. One view, stated for example by Hood Phillips (Constitutional and Administrative Law, p. 378) and by R.F.V. Heuston ( Essays in Constitutional Law, 2nd ed., London,l964, at p. 69), takes the form of a mere recital of the power as existing and valid, without any comment or reservation. Another view, advocated by De Smith, holds the prerogative power to be valid but slumbering, and capable of reawakening in special circumstances of need (Constitutional and Administrative.Law, at p. 150, n. 121):

 

It would seem that a pardon may be granted before conviction; but this power is not exercised.

 

Also (at 143):

 

In a Scottish appeal to the House of Lords ( McKendrick v. Sinclair [43] at pp. 116, 117 - M.S.), Lord Simon of Glaisdale said that "a rule of the English common law, once clearly established, does not become extinct merely by disuse"; it may "go into a cataleptic trance", but, like Sleeping Beauty, it can be revived "in propitious circumstances."

 

          It is noteworthy that under the heading "Pardon" it is provided in sec. 9 of the English Criminal Law Act of 1967, that "nothing in this Act shall affect her Majesty's royal prerogative of mercy." As formulated, the section makes no distinction between classes of free pardon. It is at all events clear that the exercise of this prerogative power has greatly diminished in England. Already in 1926 Sir Edward Troup wrote ( The Home Office, 2nd. ed., 1926, p. 57) that the prerogative was not exercised before conviction except in rare cases where the pardon would enable an important witness to testify without incriminating himself in respect of a minor offence. There is reason to believe that since then the power has come to be even less frequently exercised. But, as I have already said, the existence of the power and the measure of its use are two separate matters.

          The question of the continued existence of the prerogative power of pardon, alongside and notwithstanding the power to order a stay of proceedings, is discussed in an article written by A.T.H. Smith in which he states this conclusion ("The Prerogative of Mercy, the Power of Pardon and Criminal Justice," Pub. L. [Autumn 1983], 416-417):

 

   Whether or not the power continues to exist is a matter of some conjecture, but the better view would seem to be that it does. It has certainly not been abrogated by statute, and although it is true that prerogative powers can be lost or modified merely by disuse, as in the case of the royal power to sit as a judge, the criteria for deciding whether or not a power has become "obsolete" are far from clear. As a general principle, the rules of the common law (of which the prerogative is undoubtedly part) do not lapse through desuetude or obsolescence. Even though the power does not at present seem to serve any identifiable constitutional purpose, the prerogative has proved itself to be a remarkably enduring power, and one that can reappear at unexpected moments, and until the advance pardon is expressly abrogated by statute, the possibility that its use will revive at some future time cannot be discounted.

 

          In other words, the accepted view is that the prerogative power, which in England emanates from the common law and not from statute as does the power of pardon in Israel, has not been abrogated by disuse but continues to exist; moreover, neither in theory nor in practice is there anything to prevent its renewed use in special circumstances, and only an express statutory directive can extinguish its efficacy.

          As for the situation in the U.S.A., it will be recalled that the presidential power of pardon was exercised on two recent, well-known occasions. On the first occasion it was exercised in favour of President Nixon (39 Fed. Reg. 32601-02 [1974]). (In this connection see Murphy v. Ford [54] in which the grounds for exercise of the power were discussed; see also Mark P. Zimmett, "The Law of Pardon," Annual Survey of American Law, 1974/5.) On the second occasion, in 1977, the power was exercised by President Carter in favour of evaders of conscription in the Vietnam War, i.e. a form of pardon for a class of persons and a class of offences, bearing the character of a partial "general" amnesty. The pardon was formulated to extend, inter alia, to "all persons who may have committed any offence between August 4, 1964 and March 28, 1973 in violation of the Military Selective Service Act or any rule or regulation promulgated thereunder" (42 Fed. Reg. 4391 [1977]). Bernard Schwarz writes of this pardon of 1977, "the legality [of which] was never questioned" (Constitutional Law, at p. 198). (On this pardon, see also G.S. Buchanan, "The Nature of a Pardon under the U.S. Constitution," Ohio St. L. J. 39 [1978], 36, 61, where the writer comes to the same conclusion.)

          The English system, so far as it is of comparative significance, seems accordingly to invite a conclusion that is the opposite of the one we have been asked to draw. If in England a power stemming from the common law has not lapsed or become obsolete notwithstanding the lack of its use, how much less so in our own case involving a statutory power construed by the Supreme Court (in 1960, in the Matana rehearing) as a valid and existing power in the opinion of all.

          As in England, so with us, the situation is one of a practical non-exercise of the debated power (see e.g. par. 5a of the Attorney-General's directive no. 62.100), rather than its explicit repeal. That is to say, the power itself has been reserved for use in exceptional cases, and its use knowingly restricted. The legal situation in the U.S.A. reflects a similar sparing use of the power of pardon before conviction, but its validity is clearly accepted there.

 

16. Our next assignment is to trace such other legal directives as may have a bearing on the aspect of pardon with which we are now concerned. In this regard Prof. Klinghoffer observed ("Lectures on Amnesty," at p. 7):

 

Showing mercy is not a monopolistic power of the State President. Other authorities too are competent to extend grace and clemency - as does the Attorney-General when issuing a nolle prosequi, or the Minister of Police when authorizing the early release of prisoners, with or without the recommendation of the competent board. The Military Justice Law likewise provides for the functioning of a penalty review board, with power to mitigate or substitute punishments, without derogation from the Presidential power of pardon. Already at the beginning of the lecture it was hinted that the contemporary trend is to permit the courts an increasing measure of mercy along with the doing of justice. Other matters affecting pardon and having constitutional implications, come into play when the quest for a pardon is pursued along the lines of a retrial.

 

          As already indicated, the statutory creation of an alternative legal framework for some of the processes for which the pardoning power is now used - in its various forms, mainly after conviction but also before - was proposed by Prof. Feller in his abovementioned article, "Rehabilitation." His proposal included a draft Rehabilitation Law, a supplemented and expanded rehearing facility, and an express narrowing of the provisions of sec. 11(b) of the Basic Law so as to encompass only respite or remission of punishments not yet served (as distinct from a pardon in respect of the conviction). Prof. Feller proposed a synthesis between new legislation and amendments to existing enactments, aimed at supplementing the existing arrangements on matters such as a stay of proceedings, review of punishment, mitigation of punishment and retrial.

          Some years ago the trend embodied in the above proposals gained momentum with the enactment of the Crime Register and Rehabilitation of Offenders Law of 1981, which provides, inter alia, for the automatic deletion from the register in certain cases of a person's previous convictions, for restricting the availability of information concerning the same, and like directives. In other words, we witness here the completion of part of the legislative program designed to establish new legal machinery that will give expression to and aid in the practical attainment of an equality of rehabilitative opportunity and rights.

          In sum, we see in existence today a number of statutory provisions to reach many of the same results as are attained through exercise of the power of pardon. Some of these provisions precede the Knesset's enactment of the existing power of pardon and its judicial construction, for instance those concerning the prosecution's discretion as to charging a suspect, or the power to stay criminal proceedings. Other such provisions have sprung up contemporaneously and in coexistence with the statutory directives concerning pardon, such as the provisions relating to retrial and review of punishment, while more recently provision was made, as already mentioned, for expunging a person's criminal record. Thus some of the new provisions apply in the pre-conviction stage of the trial, while others - and these form the bulk - are applicable in the post-conviction stage, i.e. the stage where most of the decisions affecting exercise of the pardoning power are in practice made today.

 

17. We must now give attention to the fourth of our questions posed above, namely, the nature of the reciprocal tie between existing legislation and new legislation on the same subject or, more specifically: does the emergence of a new statutory arrangement alongside and overlapping an existing provision entail any abrogation of the latter?

          The prevailing Anglo-American interpretative approach is to start on the premise that the lawgiver intends no tacit repeal of earlier enactments, particularly not when the enactments are all of modern date (see F.A.R. Bennion, Statutory Interpretation j London, 1984, p. 433, with reference to the decision in Jennings v. United States [44]; the same view is taken by R. Cross, Statutory Interpretation, London, 1976, 3). Incidentally, according to Cross. English law also does not recognize the possibility of abrogation of a law through desuetude, so that a statute will not cease to be valid merely on account of obsolescence. Generally speaking, express legislative direction is required for such invalidation.

          It is interesting that a similar approach was advocated by Prof. Klinghoffer, speaking at the time in a Knesset debate (Minutes of the Knesset, 43 (1965), 2319):

         

It is not the function of the prosecution to determine whether certain provisions of the penal enactments have become a dead letter. As long as they remain inscribed in the statute book they must be observed, and if their further observance be undesirable, it is up to the lawgiver - and not the prosecution - to repeal them.

 

          English law does not regard the mere concurrent existence of earlier and later legislative enactments on the same subject as warranting the inference of an implied repeal. This consequence flows only from contradiction between two enactments (see E.A. Driedger, Construction of Statutes, 2nd ed., Toronto, 1983, p. 226; also W.F. Craies, On Statute Law, 7th ed., London, 1911, p. 366). Cross succinctly states the situation thus ( Statutory Interpretation, p. 13):

         

The test of whether there has been a repeal by implication by subsequent legislation is this: are the provisions of a later Act so inconsistent with, or repugnant to, the provisions of an earlier Act that the two cannot stand together.

 

          In support the writer quotes the decision in Westham Church Wardens v. Fourth City Mutual Building Society (1892) [45], adding, "The fact that two provisions overlap is therefore not enough."

         

18. (a) The question of a repeal by implication was deliberated by this court in Haddad v. Attorney-General [8], which involved the relationship between different penal enactments prescribini different measures of punishment for one and the same offence. In a majority decision it was held, inter alia, as follows (at p. 1421):

 

If the contradictions and inconsistencies between the two Laws cannot be aligned and reconciled with each other, the conclusion cannot be avoided that the earlier enactment has been implicitly repealed by the new one. In keeping with that rule, it has been laid down that even though the new Law deals with an offence that is also dealt with in the earlier Law, both Laws may continue to exist together if the new Law is found to have a different purpose and for that reason prescribes a substantially different penalty for the offence concerned; in such event, the offender may be charged under either Law. If, however, the penalty varies in degree only, that is to say, the one enactment prescribes a heavier or a lighter penalty than does the other, the earlier enactment will be deemed repealed by the subsequent one (see Maxwell, pp. 193-194; also Henderson v. Sherborne [1837].

 

          Reliance upon the interpretative rule concerning repeal by implication, was founded in the above case on the doctrine that an accused person is entitled to be held to account under the less stringent of two penal directives applicable to him. Therefore, the directive of earlier date, which differs from the later one only in the heavier punishment it prescribes for the same criminal act, will be deemed repealed by implication. This interpretative rule operates only in respect of punitive criminal directives which are laid down in two separate enactments, each dealing with the identical act, omission or attempt. In other words, the contradiction finds expression, in the situation described above, in the different measure of punishment prescribed. That situation has little bearing on the problem now before us, and certainly the above rule of interpretation has no application to the situation described in the Attorney-General's directive, namely, a concurrence of the power of staying criminal proceedings and that of pardoning offenders. There is neither a contradiction nor an identity between the two.

         

          (b) The question of the rule to apply when the same power is extended in two overlapping Laws arose directly before this court in Filtzer v. Minister of Finance [9]. The issue was the effect on certain powers conferred under the Land (Acquisition for Public Purposes) Ordinance of 1943, of other powers to achieve the same objective conferred subsequently under the Rehabilitation Zones (Reconstruction and Evacuation) Law of 1965.

    For our present purpose, the above case is directly in point, since there too it was contended that the existence of parallel powers of different legislative vintage (in our own case the presidential pardoning power and the Attorney-General's power of stay) implied an abrogation of the earlier power. More specifically, it was argued in Filtzer that the Finance Minister's power of land expropriation under the Land Ordinance had been abrogated by the subsequent conferment of a parallel power on the rehabilitation authority constituted underthe later statute. Landau J. (as he then was) rejected the contention as to an invalidation of the power under the Ordinance of 1943, holding that even if the same purpose could be achieved under two different Laws, that did not preclude application of the earlier Law, though its provisions were less favourable to the citizen than those of the later Law. He noted that the two enactments were of equal status, and the Law of 1965 did not serve to deprive the Minister of his powers under the Ordinance of 1943, merely because the rehabilitation authority could achieve the same objective under the Law of 1965. Yet this conclusion had been said by the petitioners to be self-evident, in reply to which the learned Justice said (at pp. 119, 120):

 

The gist of the petitioner's argument is that the Law had effected a pro tanto repeal by implication of the earlier Ordinance in respect of all the eventualities covered in the Law of later date. Were it not for such an implicit repeal, it would anyhow be impossible to attribute to the Minister of Finance an abuse of his power under the Ordinance, when the exercise of such power is competent under the Ordinance as it stands. In H.C. 5/48 there arose a similar question in relation to the application of regulation 48 of the Defence Regulations of 1939. It was argued that this regulation had been implicitly repealed by regulation 114 of the Defence (Emergency) Regulations of 1945. This argument was rejected, the learned President (Smoira), quoting the following passage from Maxwell:

Repeal by implication is not favoured. A sufficient Act ought not to be held repealed by implication without some strong reason. It is a reasonable presumption that the Legislator did not intend to keep really contradictory enactments on the Statute book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention.

The reason for such extra caution in declaring a statute implicitly repealed, is clear: to act otherwise is to introduce an undesirable element of uncertainty into the interpretation of laws which derive their validity directly from the will of the Legislature.

 

          Landau J. referred also to the Haddad case [8], mentioning that ground for holding an earlier enactment to be implicitly repealed by later overlapping legislation, existed in the area of penal statutes, with specific reference to differences in the mode of trial or the punishment prescribed in the later legislation. Landau J. then quoted this passage from the judgment of Smoira P. in the above criminal appeal (at p. 1426):

         

Great importance attaches, in my opinion, to the principle of such an implied repeal specifically in the area of the penal law. One finds the theory as to a possible coexistence between two penal Laws dealing with the same offence, to be accompanied by the routine statement that the public prosecution may choose as it sees fit to prosecute either under the more stringent or the more lenient law. However, this statement has no foundation other than its   routine recital, and in my view violates the fundamental penal law rule: nulla poena sine lege. A plurality of penal statutes from among which the public prosecution has a right of selection, is tantamount to a situation of having no defined and certain law.

 

          The abovementioned statements are particularly instructive in the context of our present inquiry, as they show the court frowning in that case on the development of a situation in which the citizen who has committed an offence is dependent upon the prosecution's discretionary choice of the penal provision under which he be charged, whether the more onerous or the more lenient provision. "The penal law can affect the citizen' s freedom and reputation" Landau J. pointed out, adding that there was no like reservation with regard to other legislation in the public field.

          These views expressed by Smoira P. and Landau J. have a bearing on the contention that the Attorney-General's power of stay operates as an implied pro tanto repeal or curtailment of the presidential pardoning power. At stake is the repeal or abrogation of a recognized constitutional power, the power of pardon of such scope and substance in our law as fundamentally perceived and construed in the decisions of our courts. Any interpretation that seeks to narrow the hitherto understood scope of this power, would normally require to be unequivocally established, for, as already indicated, the tendency is to give constitutional powers a wide interpretation. It is all the more difficult, therefore, to adopt the perspective that a power entrusted to the prosecution, at the exercise of its sole discretion, should oust a constitutionally endowed presidential power. It would seem difficult enough to accept the proposition advanced even if we were talking about a power of the prosecution that was new, rather than one already in existence when the pardoning power was enacted. I must reiterate what I have already stressed, that the question here is the existence of the power and not the manner of its exercise.

          Our inquiry accordingly leads to the conclusion that the rule as to an implied repeal of a statutory provision by later overlapping legislation, is not applicable in the matter now before us. This is so not only for the reasons stated in the Filtzer case [9], but because the question of an implied repeal by later legislation actually fails to arise at all in our present matter, inasmuch as the Attorney-General's power of stay antedated the modern enunciation of the presidential pardoning power.

         

19. The fifth question we posed was whether the pragmatic development of defined processes in our current legal reality can curtail the operational scope of an existing constitutional arrangement which is essentially the product of statutory interpretation. This question entails here the notion of a pro tanto repeal of the concurrent part of an earlier enactment, a notion which was explained by Justice Landau in the Filtzer case to have no application in circumstances of the kind now before us. The answer to the question is negative.

          In the first place, the answer to the question would normally depend upon the substantive nature of the processes at work, as weighed against the degree to which the constitutional arrangement evolved from statutory interpretation, and upon which the stated processes would impinge, has taken root. If this arrangement is the outcome of a wide, basic constitutional perspective, its efficacy will not be diminished by processes which are not contradictory thereto.

          Second, we are dealing here with a contention that is in fact predicated upon a change in the rate and frequency of exercise of the power of stay. This change, so the argument runs, should be seen as justification for viewing the presidential power of pardon as having been curtailed. That is tantamount to saying that the Attorney-General, by the number of nolle prosequi's he issues, determines whether or not the presidential power continues to exist. I do not believe that this proposition finds any existing legal foundation. Jurisprudence does not yet recognise a biological process by which, within a complex of existing interrelated statutory provisions, a kind of law of natural selection functions as a mechanism for the abrogation of Laws for which there is abated need because they have, as it were, fallen into disuse.

          Third, there will be scant inclination in a democratic regime espousing the rule of law and individual rights, to adopt an interpretation that suffers the whittling down, and even negation, of a power destined mainly to serve the individual, and it matters little that there exist other parallel institutions exercising like powers.

         

20. We might conveniently summarise our above reasoning as follows:

          (1) It is our accepted view that a legislative overlapping or even duplication does not in itself abrogate an existing enactment or power.

          (2) The validity of a statutory directive is not annulled by the fact of its disuse or rare use.

          (3) An implied repeal of statute law may result either from directives which are contradictory in content or, in the penal field, from the prescription of a lighter punishment in a later enactment. The presence of such contradictory directives was not argued in the matter before us, nor have we perceived it to exist. That the existence of two concurrent competent authorities does not in itself amount to a contradiction is clear from the ruling in Filtzer [9].

          (4) The mere fact of an overlapping between the power of stay and the power of pardon before conviction, does not invoke the rule of interpretation that would negate one of the two arrangements. The one is a procedural power, whereas the other is among the powers vested in the person who functions as the formal Head of State. The latter powers were fundamentally, by their very nature, intended to produce similar consequences to those resulting - to one extent or another, whether by legal design or in practice - from the acts of other governmental authorities. The two powers are of different juridical substance and the one does not negate the other.

          (5) The crucial question is whether the power of pardon before conviction was ever actually created. Once it transpires that this court has recognised the existence of such a constitutional power, and regarded it as an element of the wider presidential pardoning power, the same can no longer be amenable to an inadvertent or implied repeal. It is proper that the repeal of a constitutional power be effected only after due consideration and in a patent and advertent manner, as befits the subject of the repeal. Moreover, the rule of law is fortified when we show respect for our constitutional directives, inter alia, in the way we set about their amendment or repeal.

 

21. Were we to hold that the very enactment of new legislation can curtail the scope of an existing statute, or even implicitly repeal an express constitutional provision, then surely even the presidential power to pardon after conviction should be overtaken by the same consequence. A retrial, or the different punishment review boards, or the operation of the abovementioned Law concerning the rehabilitation of offenders, all serve purposes which overlap, partly at least, those of a pardon after conviction. As already indicated, this situation lately assumed added significance with the enactment by the Knesset of the Crime Register and Rehabilitation of Offenders Law of 1981, incorporating the ideas of Professors Klinghoffer and Feller.

          The argument as to legislative duplication and overlapping mechanisms, can hardly be confined to comparison of a stay of proceedings with the power of pardon before conviction (and substitution of the one for the other), but should properly embrace all the pertinent parallel mechanisms in the field of the constitutional as well as the penal law. An interesting illustration of the possible co-existence of parallel powers in the post-conviction stage, is provided by the Privy Council decision in Thomas v. The Queen [46], where the power of pardon of the New Zealand Governor-General was not considered invalid in relation to the class of cases in which the law permitted a retrial.

          There is no logical basis for a mode of interpretation that would differentiate, for the purpose of determining the scope of validity of the pardoning power, between the various new statutory provisions and their effects, and single out precisely those pertaining to the pre-trial stage. The power of pardon has been interpreted in our law in relation not only to the post-conviction stage, but also the pre-trial as well as the trial stages, and the fact of a gradual evolution of overlapping and parallel mechanisms provides no justification for a selective kind of interpretation.

          In fact we have here no implied repeal, nor any other phenomenon of an extinction without trace. When dealing with a constitutional directive such as sec. 11(b) of the Basic Law, we cannot sanction the elimination of any part thereof except by an explicit statutory provision which, after all, is the product of methodical study and preparation and is founded upon tried and tested legal concepts rather than chance eventualities. It is important that objectives of constitutional import be attained in a seemly manner.

          In recapitulation, it seems clear that an enacted constitutional power is not repealed except upon express statutory directive, and that the statutory conferment on the prosecution of a power which is similar in content to that exercised by the President, does not act as an implied repeal of the constitutionally bestowed presidential power. It follows that the presidential power as construed in the cases of A. v. The Law Council and Matana, continues to exist and remain valid so long as not repealed by the Knesset.

          I would not disparage the view that the power of pardon needs to be reconsidered in a manner leading perhaps to revisory legislation. Any deliberation towards this end should, in the nature of things, encompass also a solution of the problem that arises, not infrequently, from the contradiction between the judicial decision and the pardon that follows it. The search for a proper balance and separation between the different Executive organs, and the coordination of their separate activities, does not come to an abrupt halt at the chance limits set by the legal dispute in a particular matter.

 

Juridical Substance of the Pardoning Power

 

22. Our next matter for inquiry, as I have already indicated in paragraph 8 of this judgment, is the juridical substance of the pardoning power.

          The power of pardon has ancient roots, and has for thousands of years been so interwoven with the ruler's status, as to induce an opinion that it finds no place in a democracy (see e.g. Blackstone's Commentaries, p. 397). The view that pardon was a feature of autocratic rule also found expression at the time of the French Revolution, when the power was abolished for the first time and left without trace for some years. Beccaria (On Crime and Punishment, New York 1963, pp. 58-59) saw an unbridgeable gap between his own penological perspectives and the power of pardon. Yet the power has survived in an overwhelming majority of world legal systems, although in a rich variety of forms so far as concerns its scope and the authority in whom it is vested (see Dr. L. Sebba, "The Pardoning Power - A World Survey," J. Crim. L. and Criminology 68 [1977], 83). The prevailing constitutional perspective is that the pardoning power now reposes in the people who, by the force of legislation, confer it in turn on a defined authority ( Am. Jur., supra, at p. 10).

          As to the variety of constitutional arrangements, I might briefly mention that sometimes the power of pardon vests in the Head of State, i.e. the President or the King; sometimes it entails the functioning of an advisory board representing all or some of the connected governmental authorities, or consultation with the court or a special judicial tribunal, or a judge (see J. Monteil, La grace en droit francais moderne, Paris, 1959, p. 22). In other countries the actual power is wielded by the legislature as such (for instance, in Switzerland and Uruguay), or by the judiciary. Sometimes the power is vested in the Council of State (for instance, in a number of Eastern European countries and in South Korea), or in the Presidium or a council specially constituted for this purpose. In Sweden the power rests with the Government and in the U.S.S.R. with the Supreme Soviet Presidium.

          These examples illustrate, without exhausting, the range of pardoning powers, which vary also in their prescribed procedures, such as the manner of lodging the request, of consultation with judicial bodies or other agencies, and of arrival at the decision. In Australia, for instance, an inquiry is conducted in all cases by a Justice of the Peace appointed by the Governor-General or by a Judge of the Supreme Court.

          In some countries the power of clemency is confined to the reduction of punishment alone (as in France, but there one finds also the special power of la grace amnistiante, which enables the grant of a full pardon to certain classes of persons; see Monteil, La grace, at p. 207). Pardon before conviction is possible in numerous countries, inter alia, the U.S.A., Britain, New Zealand, Singapore, Malawi, Sri Lanka, Iceland, Czechoslovakia, Lichtenstein, and the State of Queensland in Australia (see Dr. L. Sebba, On Pardon and Amnesty, at p. 291). In many other countries, however, there is pardon after conviction only (for instance in India, where the restriction is statutorily prescribed). The legal consequences of a pardon also vary greatly from country to country.

          In some countries the actual decision may be directly or indirectly challenged in the courts, whereas elsewhere, for instance in France, the decision offers no ground for recourse to the courts, whether as to the legality of the decision or as to its substance within the national framework. F. Luchaire and G. Conac phrase the situation thus: tant au niveau de leur legalité qu'au plan de la responsibilité de l'Etat (La constitution de la republique francaise, Paris, 1979, p. 351). The writers rely in this connection on a resolution of the Conseil d'Etat (30.6.1892; Gugel, Dalloz Periodique, 1894, III p. 61; 28.3.1947, Gombert, Sirey, 1947, III p. 89).

          Sometimes pardon is granted for political offences alone (for instance in Colombia), and at other times these are specifically excluded as a type of offence for which a pardon may be granted.

          Our purpose in sketching the abovementioned varieties and possibilities of pardon, is to illustrate the lack of any uniform model and the fact that virtually every legal system has fashioned its own peculiar perspective on the subject, in harmony with its other governmental institutions. For comparative purposes, it is of no moment that in the U.S.A. the President, in whom the power of pardon is vested, serves to head the executive, whereas in Israel the President fulfills the function of a titular and formal Head of State - much like the arrangement in England, adopted also in many of the European democracies after World War I. There is no uniform tie between the nature and general status of the executive office filled by the holder of the pardoning power, and the power itself, since it is sometimes vested in authorities other than the President or King. When this court made reference in Matana and in A. v. The Law Council to the constitutional situation in Britain or the U.S.A., it did so, not in order to link the Israel arrangement to one or another foreign complex of powers, but to indicate the source and substance of the viewpoints we ourselves adopted. These the court found reflected in what was taken at the time to be the prototype for our own constitutional mould when our initial autonomous directives to this end came to be enacted. Once domestically fashioned, the powers became independent of any influence other than our own perspectives and concepts. Processes in other countries may be of instructive and comparative interest, but cannot deflect us from what is customary and accepted here until such time as we ourselves decide to change the approach, and do so in the appointed manner, having regard to the character of the subject and the substance of the power concerned. For this reason, too, there is little logic in seeking guidance from other systems structured upon essentially different perspectives. If, for instance, French law decrees that grace, in the case of an individual, shall relate only to the punishment and not to the conviction (except in the case of grace amnistiante ), there is little we can learn from it as regards the possibility of pardon before conviction. The French method of grace, incidentally, seems to differ also from our own method of remission of punishment, for instance in relation to a mandatory death sentence. (On the reservations of former French President Giscard d'Estaing in this connection, see Luchaire et Conac, La constitution, at p. 348.) The opposite applies in Belgium, where remission Of a mandatory minimal punishment is possible (see Dr. Sebba's article "The Pardoning Power," at p. 86). In short, the lack of a power of pardon before conviction in France or Germany, for instance, has no bearing on the present situation in our law since the models in those countries played no part in the shaping of our constitutional framework of pardon. Furthermore, for a proper evaluation of standards, we should put the emphasis on the substance of the pardoning power, and not on the functionary who exercises it, or the manner of its exercise. In our law it has been held that the President is invested with the widest form of the power of pardon (as regards offences) and clemency (as regards punishment), being empowered to obliterate even the stain of the offence and not only its consequences. That is our existing legal situation and it is in the light of this conclusion that we have to draw further inferences as to specific aspects of the power. The fact that proposals have been made to change the legal situation - and I certainly am not opposed to the discussion of these ideas, and even the adoption of some of them - does in no way affect the substance of the existing law.

 

23. It accordingly transpires that in the present case the decision to pardon came within the formal scope of the State President's power. In this regard it should be noted that the lawgiver has made provision for the preliminary ascertainment of this court's views on matters of pardon. Thus sec. 32 (a) of the Courts Law (Consolidated Version) of 1984, provides that upon a request for a pardon or reduction of sentence lodged with the President, any question which arises and in the opinion of the Minister of Justice deserves to be dealt with by the Supreme Court, but which provides no ground for retrial under sec. 31 of the Law, may be referred by the Minister to that Court.

 

Exercise of the Power

 

24. Having concluded that the President has a valid power to pardon before conviction, we might now inquire as to the occasion for its exercise. In fact the power has so far remained virtually unused, such a pardon having been granted until now in only a small number of exceptional cases, some of which were brought to our notice in the course of our deliberations here. It is only right that the power be used sparingly, for only the most exceptional circumstances of paramount public interest or personal plight - for which no other reasonable solution can be envisioned - will justify such anticipatory intervention in the normal course of the trial proceedings. It would be wrong, therefore, to attempt to classify in advance the proper cases for the exercise of this power.

          The decision to pardon was held by Justice Marshall of America to be generally motivated as an act of grace ( United States v. Wilson [55], at pp. 160-161), but the prevailing American approach is to rest the decision on considerations of the public welfare (see: Biddle v. Perovich [56] at p. 486; and see also C.C. Joyner, "Rethinking the President's Power of Executive Pardon," Federal Probation 43 (1979) 16).

          As the general starting point for examining an exercise of the pardoning power, I am disposed to accept the approach enunciated in Montgomery v. Cleveland [57] at p. 1157:

         

While a pardon is a matter of grace, it is nevertheless the grace of the State, and not the personal favor of the Governor. It is granted out of consideration of public policy, for the benefit of the public as well as of the individual, and is to be exercised as the act of the sovereign state, not of the individual caprice of the occupant of the executive office as an individual. He is supposed to act in accordance with sound principles and upon proper facts presented to him.

 

          Normally, a pardon is not a natural further progression in the course of judicial proceedings, but should properly come into play only in exceptional circumstances which involve a material change in the situation after completion of the trial proceedings, and warrant an alteration of the judicial decision. All the more rarely and exceptionally, therefore, should the power of pardon be exercised before conviction, this being a reserve or residual constitutional power left with the President - something in the nature of a "safety valve."

          A theoretical example of circumstances warranting the grant of a pre-conviction pardon, was outlined by Prof. Klinghoffer in his abovementioned statement before the Knesset, the relevant passage from which I shall repeat below for the sake of convenience:

         

Another unconvincing argument advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council, H.C. 177/50.

 

          As a further example one might mention that reasons of state, involving arrangements with hostile elements, have been recognized in the past as legitimate grounds for the early release of prisoners from custody, even before completion of the trial and, implicitly at least, as warranting also the grant of a pardon (cf. H.C. 228/84 [10]; H.C. 270/85 [11] and Bar-Yosef v. Min. of Police [12]). Of course, even in the stated circumstances every case would still require to be examined independently and the situation would vary from one concrete set of circumstances to another.

         

25. Just as it would be inconsistent with the purpose of pardon for it to become converted into a kind of instance of appeal from judicial proceedings, so too pardon before conviction ought not to become a mode of appeal against the decisions (to prosecute) of the public prosecution. This slumbering, residual kind of power has been preserved for sole use in the exceptional situation of a risk of serious harm which the holder of the power may legitimately take into account, which is incapable of being warded off by other means, and thus warrants relaxation of the essential restraint on the exercise of the power.

          In concluding my remarks on the instant point, I should like to recall, and endorse with such changes as may be necessary, the recommendation made by Dr. L. Sebba (On Pardon and Amnesty). He proposes that even upon adoption and completion of the comprehensive legislative program proposed by him for the creation of machinery to deal effectively with all matters and foreseeable problems connected with or likely to result from punishment under the criminal law, there should still be left with the President a reserve or residual power, as he put it, to deal with exceptional cases (at p. 267):

         

However, even if all the proposed solutions be accepted, we do not recommend the complete abolition of this power. Even if the parole arrangement be instituted, even though it embody regulation of the penalty of life imprisonment, and even upon the abolition or qualification of prescribed minimal punishments, there will always remain special cases in which the offender will not find salvation unless the President be empowered to come to his aid. It is true that the flexibility contributed by the pardoning power to the process of meting out the punishment, has largely become redundant in view of the increased freedom allowed the courts over the years in this regard. It is also customary nowadays to enable the Executive to intervene in the more advanced stages of implementation of the punishment, so as to maintain flexibility in these stages as well. But in the end it is still necessary to leave an opening for intervention on the part of some additional authority, in the event that the other two authorities be unable to effect the desired solution. The proper authority for this purpose is indeed the State President, who ranks in status above the other two authorities, and especially since there is sometimes involved a departure from the policy laid down by the third authority, i.e. the Legislature. In these residual cases there remains room, therefore, for entrusting the President with a power that will function as a kind of "safety valve" in the event the customary processes provide no solution.

 

          And now, arising out of the hearing of the instant petitions, there are some additional observations I have to make.

         

The State and the Rule of Law

 

26. (a) The rule of law is not an artificial creation. It is to be observed in a concrete day-to-day manner in the maintenance of binding normative arrangements and their actual application to one and all, in the upholding of the basic freedoms, in the insistence upon equality and the creation of an atmosphere of trust and security. The rule of law, the public welfare and the approach of the State to problems are not opposing conceptions but complement and sustain each other.

          The court is specially charged with the practical realisation of these expectations, but all of the State organs are committed to the attainment of the stated objectives. One cannot conceive of a sound administration without maintenance of the rule of law, for it is a bulwark against anarchy and ensures the State order. This order is essential for the preservation of political and social frameworks and the safeguarding of human rights, none of which can flourish in an atmosphere of lawlessness. National security also leaned on the rule of law, both in protecting internal policy measures, and in aiding the creation of means to combat hostile elements. There can be no organized activity of any body of persons, or any discipline, without norms based on binding legal provisions.

         

          (b) Sound government requires that the authority concerned be in full possession of the relevant facts before acting. It is not necessary that the information be known to all, and the confinement thereof to a few persons is sometimes not only desirable but also legally imperative. Yet the need for the responsible authority fully to acquaint itself with the facts increases as the subject takes on greater importance. It must be remembered that the "leaking" of classified information does not happen by itself, but by its deliberate or accidental disclosure by some person involved.

         

          (c) Sound government is founded upon the faculty of sound decision making, which there can never be without prior knowledge of the relevant particulars, no matter the subject of the decision. The matter was discussed by this court in Berger v. Minister of the Interior [13], in the context of the Minister's duties with regard to the introduction of summer-time or "daylight saving." In background importance the subject, of course, did not match that which is now under deliberation, but the principle enunciated there is equally applicable elsewhere. In the above case the court formulated rules affecting the manner of ministerial decision making, reiterating the obvious proposition that this should result from and be structured upon knowledge of the factual situation.

          Sound administrative procedures will ensure diverse facilities for obtaining information, maintaining constant supervision and overseeing the implementation of directives. The process of gathering information or holding an investigation, when necessary, may also assume different forms. Here one golden rule has to be observed, valid for purposes of administration as well as inquiry, namely: the sooner a matter calling for investigation is examined, the better from all points of view. A particular authority may perhaps confine information departmentally, or otherwise restrict its dissemination and ensure that no harm result from the disclosure or obtaining of information. But there are no circumstances that allow an administrative authority to refrain totally from investigating a matter which may bear upon its capacity, and that of its subordinates, to function properly, and to decide issues within the scope of its immediate responsibility, or perhaps affecting its responsibility to the public at large. There is a world of difference between a decision to hold a controlled and protected investigation, and a decision not to conduct one at all. The latter option would be like trying to cross a busy road with one's eyes shut.

 

          (d) There are different ways to conduct a confined or departmental inquiry or investigation into any subject - including recourse to whatever legal proceedings be considered necessary - without prejudicing the national security. Such problems have been dealt with before, and I shall say no more on the subject on the assumption that the processes mentioned by the Attorney-General in his intimation of 15 July 1986, have been set in motion.

 

The President as a Respondent

 

27. On 30 June 1986 we ruled to delete the President's name as a respondent in petitions H.C. 431/86 and H.C. 446/86, and ruled likewise on 20 July 1986 in petition H.C. 463/86. Our reason for so doing is set forth in the Basic Law: The President of the State, sec. 13(a) of which reads as follows:

 

The President of the State shall not be amenable to any court or tribunal, and shall be immune from any legal act, in respect of anything connected with his functions or powers.

 

When he granted the instant pardon, the President was acting in a matter "connected with his functions and powers," so that he is not amenable to the jurisdiction of the courts in connection therewith, including this court's powers of direct review - its authority to demand of the President himself an explanation of his decisions. This immunity relates to the direct challenge of any presidential act, but there is no obstacle to indirect judicial review of the President's discharge of his functions - in proper cases and when the proceedings are directed against some other respondent, as happened, for instance, in the case of Bar-Yosef v. Minister of Police [12].

 

28 (a) The question of the legality of the pardon granted is of wide range, embracing as it does both the power itself and the manner of its discretionary exercise. As regards the power itself, we have dealt extensively with the matter and sought to provide the correct answer above. With regard to the exercise of the presidential discretion, this court has had occasion to comment as follows, in connection with a ministerial recommendation for a pardon referred to the President:

 

Even if the President was misadvised, or even if he himself erred in the exercise of his discretion, the legal validity of his decision remains unaffected thereby and this court does not sit in appeal from the President's decision" (Barzilai v. The Prime Minister [14] at p. 672).

 

          The matter calls for a measure of clarification and qualification. It is accepted that in exercising judicial review, the court does not assume the role of the functionary whose conduct is under challenge (even if indirect) but examines whether the functionary acted as one in his position should have done ( Nof v. Attorney-General [77] at p. 334). The court does not seek to project and substitute its own decision but intervenes only when convinced that no reasonable authority in a similar situation could have arrived at that same conclusion. The degree of reasonableness required depends upon the status of the authority and the nature of its powers. That is to say, in exercising its jurisdiction the court will also have regard to the identity of the constitutional authority whose conduct is under review. The norms for the judicial review of discretionary power will in any event incorporate reference to the functional character and nature of the authority concerned (cf. Sarid v. Knesset Chairman [15] at pp. 203-4).

 

          (b) The petitioners' criticism of the President's exercise of his discretion extended also to the paucity of the information made available to him prior to his decision, as well as the haste, so it was further contended, with which the different pardons were deliberated and granted, and like contentions. I find none of them to provide any ground for intervention by this court. First, as regards the facts, there is no reason to dispute the declaration before us that the President was fully informed and had also met twice with one of the persons later granted a pardon. The fact that he did not meet with the other three applicants can hardly be regarded as an impropriety, as in fact the President normally deals only with written requests for a pardon and it is exceptional for him to meet with the applicant (see E. Abramovitz and D. Paget, "Executive Clemency in Capital Cases," N.Y.U.L. Rev. 39 [1964], 136, 137; and see Dr. Sebba, On Pardon and Amnesty, at p. 194). Once it is established that there was evidence before the President of the commission of offences as set forth in the pardon applications referred to him, whether verbal or in writing, and also that the applicants admitted having committed the criminal acts for which they asked to be pardoned, then clearly the President had before him sufficient particulars upon which to decide, thus leaving no ground for the court's intervention.

         

29. A further argument concerning the presidential pardoning power, focused on the distinction between amnesty and individual pardon, was addressed to us by Adv. Michal Shaked, learned counsel for the petitioners in matter H.C. 448/86. She contended that the circumstances of the grant of the pardons indicate them to have been in the nature of an amnesty, whereas the President enjoyed no such power, but the power to grant individual pardons alone. In support of her contention counsel quoted the following statement (extract from The Attorney-General's Survey of Release Procedures, Department of Justice, Washington, 1939 vol. III):

 

In an attempt to classify the institution of amnesty, we may state that it belongs to the upper concept of pardon. It is a plurality of pardoning acts, and its main feature is that the amnesty determines the conditions and the extent of the pardon by groups of persons or groups of crimes or by certain general attitudes of the individuals concerned. There is a pronounced predilection to lay stress on the motive. Even the exceptions and limitations in an amnesty are generally given by groups, regardless of the merits of the single case.

 

          It indeed appears from the decision in Matana [3] (at p. 445) that the President enjoys the power of individual pardon only (as is the case in England). But that exactly was the power exercised by the President in the instant case. It is true that he issued four different warrants of pardon, but each of them related solely to the individual named in that warrant and to the offence therein stated. The warrants did not define the right to the pardon according to a class of persons, or offences, or qualifying conditions. The fact that a number of pardons are granted simultaneously to several individuals involved in the same act or incident, does not serve to convert each separate warrant, or all of them together, into an amnesty (see Dr. Sebba, On Pardon and Amnesty, at p. 61).

         

Locus Standi

 

30. At the commencement of the hearing learned counsel for the respondents asked for dismissal of the petitions in limine, on the ground that the petitioners had no legal standing to contest the validity of the pardons granted. It was argued that these were in the nature of an individual act of the President and of concern to the recipients of the pardon alone. It was contended that the petitioners could not point to any real and direct personal interest in the invalidation of the pardons, as these operated solely for the benefit of the individuals pardoned (certain of the respondents in these proceedings), so that the petitioners, far from seeking any relief for themselves, were motivated merely to deprive others of a benefit (see Becker v. Minister of Defence [16], at p. 147).

          The absence of a real personal interest, even if this be true of the petitioners in the present case, does not, however, justify the immediate dismissal of the petition. This court has already held that it would take a liberal view on this aspect and grant access to petitioners where the question that arose was "of a constitutional character" ( Segal v. Minister of the Interior [17] pp. 429, 433), or "of public interest related directly to the advance of the rule of law" ( Shiran v. Broadcast Authority, [18] at 374; see also Dr. Zeev Segal's illuminating book, Standing Before The Supreme Court Sitting as the High Court of Justice, Papyrus Publishing, 1986). Needless to say, there is no general recognition here of the actio popularis, a "public petition" to the court, only a general guideline that enables the court to open its doors in suitable cases of a public-constitutional character.

          Guided by the above rule I find the petitions now before us, which centre on the scope of the presidential pardoning power under the Basic Law: The President of the State, to disclose sufficient petitioner interest for recognition of their standing.

         

The Approach of Justice Barak

 

31. I have meanwhile had the opportunity of reading the interesting opinion of my learned colleague Barak J., and I am prompted to make several further observations in elucidation of our divergent approaches.

 

          (a) I naturally take no issue with the fundamental doctrine that we must decide according to our best knowledge and understanding of the law, regardless of the surrounding influences of the time and the subject concerned. That standpoint has always been customary with this court, and nothing new has happened in this generation to change the court's perspective.

         

          (b) A perusal of Justice Barak's opinion may lead one to think that our present subject has no acknowledged legal starting point founded in precedent, and that one is being referred (in Matana and in A. v. The Law Council) to nothing more, as it were, than some forgotten obiter dictum raised here from oblivion for the first time and elevated - without legal justification - to the standing of a recognized legal thesis. One might further gain the impression that even Justices Agranat and Berinson intended no differently in the above precedents. I must reject this approach because it does not accord, with all due respect, with the factual situation. The legal proposition that the President is endowed with the power of pardon before conviction, was clearly demonstrated first in the case of A. v. The Law Council and later, even more emphatically, in the Matana majority decision. Incidentally, even Landau J., at the end of his dissenting opinion in Matana. noted his complete agreement with the opinion of Berinson J. (at p. 461), whose remarks on the presidential power to pardon before conviction have already been quoted in full above.

          In brief, the ruling in Matana has become known and accepted as faithfully reflecting, for some decades now, the prevailing law on the subject. Confirmation thereof is to be found in the written commentaries and in all academic discussion of the subject. This situation has been so clear to all as to have prompted the two distinguished jurists who advanced a different perspective on the subject (Professors Klinghoffer and Feller), to acknowledge that their view was not in accord with the approach of the Supreme Court - which they interpreted substantially as I have understood and set it out above. One of them, moreover, relied on the very existence of the pre-conviction pardoning power for a proposed solution to other legal problems discussed by him at the time (see Prof. Klinghoffer's abovementioned remarks in the Knesset - Minutes of the Knesset, 43, p. 2319). It will be recalled that one of these jurists (Prof. Klinghoffer) based his approach upon a construction of the language of the pardoning directive, while the other (Prof. Feller) argued on the basis of the working of a complex of new (overlapping) statutory enactments, but I gather from the remarks of Justice Barak that his own viewpoint is founded on neither of the above two perspectives.

          There is no escaping the fact that Justices Agranat, Berinson and Cohn (to whose clear statements on the subject Justice Barak has not referred) all unequivocally expressed their opinion on the power of pardon before conviction within the general framework of pardon. That opinion has held sway until now. It was on the strength of an identical opinion that a past Minister of Justice, P. Rosen, acting upon the Attorney-General's advice, referred recommendations to the President for certain pre-conviction pardons which were subsequently granted. Our task here is not to search for the desirable constitutional framework, but rather to ascertain the existing legal situation concerning pardon in Israel, just as it was in fact enunciated by this court many years ago, without so far having undergone any change.

 

          (c) The constitutional development towards the existing situation was clearly traced in the Matana decision, from which one can gather the court's reasons for construing as it did the scope of the pardoning power under sec. 6 of the Transition Law and sec. 11(b) of the Basic Law: The President of the State. It is not possible to ascertain the meaning of an expression in a Law by seeking to unravel the true wishes of Knesset committee members from the surviving summaries of their statements in minutes of proceedings never published. In my recognition, the answer lies in an understanding of the legislative purpose. This is to be derived from the "spacious" interpretation to be given to constitutional provisions; from the construction of expressions according to their manifest purpose; and from factors such as legal background and development, constitutional analogy, the characteristics of our legal system and our own constitutional notions as given expression, inter alia, in the very determination of the presidential office, its object and functions. All these were dealt with in the Matana case and I shall not cover the same ground again.

          Justice Barak has sought to point out a divergence between the interpretative approach in Matana, and my own approach. Little substantiation of this has been provided, however. There is no substantial difference between the "historical-interpretative approach" said to have been adopted by me here, and the so-called legal-constitutional approach ascribed to Justice Agranat, and the difference in title is but a semantic one. Substantively speaking, the two approaches are alike: that followed on the one hand by Justices Agranat, Berinson and Cohn and - on the question of pardon before conviction - also adopted without reservation by Justices Silberg and Landau, and on the other hand, my own approach here. My learned colleague has commented thus:

         

Justice Agranat accordingly did not construe the Transition Law on the basis that its legislative purpose "was fashioned in the Anglo-American mould, which served as its prototype."

 

          In support of this connection he quotes the following observation of Agranat J.:

         

The result is that the ground of the absence of any similarity or comparison between the status of the President of our country and that of the British thrown (or of the President of the United States) is erroneous.

 

          This observation speaks for itself and, with all due respect, refutes my learned colleague's contention in indicating the opposite conclusion.

         

          (d) The legal situation in France, Germany and Italy was not fully portrayed in the Matana case, and I should like to clarify some additional facets. As far as I am aware, pardon before conviction is known in Italy too, but the pardon only comes into operation if the suspect is later convicted. This arrangement does not preclude putting the suspect on trial, and allows for an acquittal on the merits without recourse to the pardon. Briefly, in Italy and in Germany there has evolved the duality of a judicial pardon side by side with an extra-judicial one justizgebundener Gnadenakt and justizfreier Gnadenakt, see Mario Duni, Il Perdono Giudiziale, Milan, 1957; Richard Drews, Das Deutsche Gnadenrecht, Cologne, 1971; Klaus Huser, Begnadigung und Amnestie als Kriminalpolitisches Instrument, Hamburg, 1973).

 

          Judicial pardon or clemency, I believe, should be seen as a convincing reason for gradual curtailment of the Executive pardon. This process, which is also discussed by Prof. Feller within the wider framework of his proposed legislative program, has acted to shift the focal centre of the pardoning decision from the King, or President, to the judicial tribunal or special statutory bodies created to deal directly with the review of conviction and punishment (retrial, release and parole boards, and the like). The comparison of our system with those applied on the Continent is therefore questionable and premature in the existing state of affairs.

         

          (e) As to the pre-conviction pardoning power in England, concerning which too Barak J. has expressed reservations, I need only reiterate that there is not a single English constitutional text that fails to mention the continued legal validity of this power, though it be reserved for use in exceptional cases. Even the post-conviction pardoning power would seem to be somewhat less frequently exercised in England nowadays.

          I must also contest Justice Barak's endeavour to distinguish the American constitutional situation from our own on the basis of the President's status there as Head of the Executive. In fact, the power of pardon was originally conferred on the U.S.A. President as part of the legal continuity adopted there, with the concomitant imitation of the English model of the King's prerogative power (see the majority decision in Schick v. Reed [58], per Burger C.J.). The view that the U.S.A. President holds the pardoning power in his capacity as Executive Head, runs counter to authority:

         

Our government is established upon the principle that all governmental power is inherent in the people. Hence, crime is an offense against the people, prosecuted in the name of the people, and the people alone can bestow mercy by pardon. As subsequently is noted, the people may confer the pardoning power upon any officer or board that they see fit ( Am. Jur., at p. 10).

 

          The import of the passage is that the U.S.A. President holds his power as representative of the people and it is not his executive capacity, designation or status that determine its scope.

          In our own constitutional framework the President stands outside the political arena, and this neutrality should allay at least one of the apprehensions expressed by my learned colleague. Moreover, the conferment and exercise of all power can and should properly be subjected to supervision and review, as was indeed noted by Justice Agranat in Matana (at p. 461):

         

   Nor have I overlooked the fact that to endow the power in question with its "full" content may lead to its excessive use, which in turn involves the danger that the authority of the law in the eyes of the public will be weakened. My reply to this point, however, is that every instrument of pardon by the President requires the countersignature of the Prime Minister or one other Minister (sec. 7 of the Transition Law, 1949). This means that even if the decision to pardon or to reduce a sentence must be the personal decision of the President, it is also conditional upon the recommendation of the Minister concerned. This Minister will ordinarily be the Minister of Justice who has the means of conducting a precise investigation into the circumstances of the case before submitting his recommendation to the President. It is clear that this recommendation, and therefore the decision to pardon as well, are subject to review by the Knesset and it is this possibility which must be regarded as the guarantee laid down by law against the danger referred to.

 

And Justice Cohn had this to say on that same point (at p. 465):

I have no fear whatsoever of any supposed impairment of the courts power to judge and to punish by the extent that the President of the State is empowered to change or set aside the results of their judicial acts. I could see some slight ground for fear and some small degree of impropriety if the power in question were possessed by the government or one of its organs, or even by the Knesset, for that would perhaps involve some confusion of the boundaries between the judicial on the one hand and the executive or legislative authorities on the other. The President of the State, however, stands above all these three authorities. He embodies in his person the State itself.

 

          So far as I am concerned, the existing Israel form of the pardoning power is not a sine qua non for the maintenance of orderly constitutional government. The variety of arrangements made on this subject in different countries is indicative of more than one solution to a universal problem. Our own arrangement is hardly, therefore, to be seen as the sole possibility. The central feature of the pardoning power wielded is a personal, selective decision which is dependent, inter alia, on the recommendation and countersignature of an authority of a political character, i.e. the Minister. My own inclination is to prefer some new legislative arrangement that will introduce appropriate statutory mechanisms free to function, as regards judicially decided matters, without recourse to the decisions of political organs. At the same time, however, one has to reject the view that the full pardoning power presently prevailing is inconsistent with the rule of law. It should be remembered that we are dealing here with legally valid constitutional arrangements of the kind found today in countries of recognised democratic character, and to say that the existence of an effective rule of law is negated by reason of a pardoning power of full scope, where it exists, is an extreme proposition lacking any real foundation.

          I must also refer to the contention that the very overlapping of the presidential power with like administrative powers is inconsistent with the maintenance of good government. I have already pointed out that there is no complete parallel between the two kinds of power. Pardon in all its existing forms represents an institution which by its very nature and working contradicts the rulings of other authorities, just as it does whether it is extended before or after conviction. Such overlapping is therefore an inherent feature of the entire pardoning process and in this respect its exercise before conviction is not exceptional.

          It is only right that the abandonment of the existing arrangement in favor of newly devised systems should be preceded by a comprehensive study of the subject - of the kind undertaken by Prof. Feller - and be followed by orderly legislation embracing all aspects of pardon and clemency. But until the fundamental constitutional perspective underlying our recognition of the pardoning power be revised in the appointed way, there is no room for the abrogation - in a sporadic manner, by the method of interpretation - of one of the facets of that power which has been recognised for many years now, and is rooted in the fundamental judicial understanding of the pardoning institution in our legal system. The ad hoc erosion of an existing legal arrangement in answer to the needs of the hour, weakens rather than strengthens the rule of law. This was the kind of situation I had in mind when I remarked thus in Neiman v. Central Knesset Elections Committee [19] (at 260):

         

When constitutional matters are under review, their import and implications have to be considered in the long term, and proper weight has to be given to their influences on the political and social frameworks within which they operate. If these be subjugated to the needs of the hour and we adopt a casuistic approach in matters of constitutional content, we shall miss the mark and deal less than justly with the subject.

 

          (f) It is, in sum, an inescapable conclusion that the Matana precedent adopts a wide and embracing interpretation of the presidential pardoning power. It was explicitly decided there by Justices Agranat, Berinson and Cohn that it also encompassed pardon before conviction. Though the product of autonomous Israeli legislation, the power cannot be divorced from its repeated comparison and equation, in the Matana case, with the parallel power held in the Anglo-American legal system by the King or President, as the case may be. This equation had a direct bearing on the reach of the constitutional power unfolded in the above precedent. Much as I try, I find no evidence in the Matana decision to support the suggestion of Barak J., that at that time the origin and substance of the power in England and in the U.S.A. had not been properly understood. I also find no evidence that this court had overlooked, as it were, differences of constitutional structure between those countries and Israel or, for that matter, the prosecution's own powers and independence in Israel, or the clash of the presidential power with other overlapping, frequently exercised powers - both before and after conviction. This suggestion is in entire disaccord with the long-accepted Matana ruling.

The constitutional situation is, therefore, that enunciated in Matana, by which precedent we have to be guided - as regards the scope of the pardoning power until the lawgiver sees fit to intervene. We have to contend with the legal and factual circumstances as we find them unfolded before us, rather than with hypothetical or desirable situations, and without circumventing or bypassing the decisions of this court and their consequences. It is our judicial task, in the present context, to give a principled, normative decision, structured upon existing legal foundations. In the pursuit of this objective we should do well to apply Chief Justice Marshall's well-known dictum in Osborn v. United States Bank [59] (at p. 866):

 

Judicial power is never exercised for the purpose of giving effect to the will of the judge; always for the purpose of giving effect .... to the will of the legislature.

 

The Investigation

 

32. We understand from the State's reply, as intimated by the Attorney-General, that the police will conduct an investigation into the events forming the subject of these petitions. This leaves no room, in my opinion, for intervention by this court in connection with the holding of an investigation.

          Following the Attorney-General's intimation, the petitioners in file H.C. 431/86 gave notice of withdrawal of their petition, and the petitioner in file H. C. 428/86 advised that he was confining his petition to the sole issue of the legality of the pardons granted.

          As to the petition in file M.A. 320/86, I see no reason to question the decision on the investigation as intimated by the Attorney-General, the nature of which I find acceptable in principle.

         

33. I would accordingly dismiss the petitions and discharge the order nisi.

 

MIRIAM BEN-PORAT D.P.

 

1. The divergence of opinion between my learned colleagues, President Shamgar and Barak J., persuaded me to await their written judgments before giving my own decision on the important question under consideration here, namely: is the President of Israel empowered to grant a pardon to a person before trial and conviction? I find my learned colleagues to have unfolded in their judgments a wide and colourful tableau of concepts, precedents and scholarly comment, which have aided me greatly in formulating my own opinion. Their painstaking and comprehensive analyses leave me free to concentrate mainly and briefly on my reasons for concurring in the judgment of the learned President - more particularly, my reasons for agreeing that the pardons granted by the President are legal and valid and, primarily, my reason for holding that the stated presidential power of pardon before conviction effectively exists.

 

2. In see. 11(b) of the Basic Law: The President of the State, it is provided that the President

   shall have power to pardon offences (and to lighten penalties by the reduction or commutation thereof).

 

          I have put the latter part of the directive in parentheses since the first part is the focus of our deliberation here, although I shall of course deal with the whole in substantiation of my viewpoint. As already clarified by my learned colleagues, the power "to pardon offenders" was previously vested in the President under sec. 6 of the Transition Law of 1949, and remained so vested until the repeal of this provision by sec. 26(a) of the above Basic Law. A comparison of the language of the two sections shows only a slight difference in wording, of no material significance. We may accordingly treat anything stated or decided on the basis of sec. 6 of the Transition Law as equally applicable to sec. 11(b) of the Basic Law, with which we are now concerned. For the better understanding of my exposition below, it should be recalled that until the enactment of the Transition Law, the President's power was anchored (pursuant to sec. 14 of the Law and Administration Ordinance of 1948), in Article 16 of the Palestine Order in Council, 1922, which provided as follows:

         

When any crime or offence has been committed within Palestine, or for which the offender may be tried therein, the High Commissioner may, as he shall see occasion, grant a pardon to any accomplice in such crime or offence who shall give such information and evidence as shall lead to the conviction of the principal offender or of any such offenders if more than one; and further may grant to any offender convicted of any crime or offence in any court.... a pardon either free or subject to lawful conditions, or any remission of the sentence.

 

          I have stressed, in the above passage, the word "offender" and the phrase "a pardon.... subject to lawful conditions," for purposes which I shall presently elucidate. At this stage, however, I merely wish to summarize the President's power at that time (from the transfer to him of the High Commissioner's powers under the above Ordinance) as embracing a pre-conviction pardon granted an accomplice who was willing to give information leading to the conviction of the principal offender or any such offenders, as well as a pardon granted any convicted offender. The pardoning power, as already indicated, was formulated differently in the Transition Law, and this version was later repeated without material change in the Basic Law.

         

3. Our search for the proper interpretation of the statutory provision in issue here, hardly breaks new ground. Justice Barak is aware of this fact, but attaches little weight to the precedents cited, for two reasons. In the first place, he holds the statements made in these precedents to have been obiter, and secondly, he considers certain passages therein actually to support his own view. Thus he mentions, for instance, that Justice Agranat saw the power conferred under sec. 6 of the Transition Law as an "original" one, and therefore offering no basis for analogy with the corresponding power in English law. Justice Barak also attaches no significance to the practice that has evolved out of those precedents.

 

          I accept Justice Agranat's determination, in the Matana case [3] (at p. 443), that the language of sec. 6 of the Transition Law- and likewise of sec. 11(b) of the Basic Law - was not comparable with that of Art.16 of the Order in Council, since the Transition Law provision represented an "original" Israel power of constitutional content, in contrast to the class of powers delegated by the English King to colonial Governors. The latter were much narrower than the King's own powers, and required a restrictive interpretation.

          However, I disagree with Barak J., that in the Matana case Agranat D.P. (as he then was) did not view the presidential power of individual pardon under the Transition Law (as opposed to a general amnesty), as being basically the same as that of the English King or the American President. In other words, Justice Agranat's remarks on the original nature of the power set forth in sec. 6 of the Transition Law, and on the universality of the pardoning concept, were only intended, I believe, to explain why the non-repetition in sec. 6 of the Transition Law of certain parts of Art.16 of the Order in Council, could properly be ignored in construing that section. For the purposes of the issue in Matana, Agranat D. P. was not prepared to regard the non-repetition in sec. 6 of the Transition Law, of the words "pardon.... subject to lawful conditions" (appearing in Art.16 of the Order in Council and stressed by me in the above citation), as being in derogation or restriction of the presidential power. On the contrary, his opinion was that the general language used in sec. 6 was characteristic of a constitutional directive and called for a wide interpretation, and he saw the Anglo-American legal sources as prompting the proper interpretation of our own statutory provisions (see the Matana case [3], at pp. 453, 454). It was his opinion (which became the majority opinion of the court) that notwithstanding the absence of an express empowerment of the President to grant a pardon subject to conditions, the general wording ("the power to pardon offenders") sufficed, by virtue of the wide interpretation, to invest the President with this power as well (i.e. to pardon conditionally).

          Any remaining doubt as to Justice Agranat's recognition (in Matana) of the link between Israel and England as regards the power of individual pardon, is surely dispelled upon reading his judgment in the earlier case of A. v. The Law Council [2]. While the learned Justice erred there with regard to the power of colonial Governors (i.e. the High Commissioner of Palestine), an error he subsequently corrected, his basic standpoint has nevertheless prevailed. This standpoint he expressed in the following terms, and in other statements to the same effect in his judgment:

         

   I am of the opinion that the power of pardon of the President of Israel is the same, generally speaking, as the power of pardon of the King in England, in its nature and in respect of the consequences which flow from its exercise" (ibid., p. 750).

         

          Agranat J. (as he then was) was indeed alone in considering the full arguments of counsel as to why the name of A., the petitioner, was to be restored to the Roll of Advocates following upon the full pardon granted him (after he had served his full sentence). Yet the related comments of Agranat J. were not mere obiter dicta - and as is known, these too can carry considerable weight - but were made in the deliberation, on its merits, of what he considered to be the real question underlying the dispute in that case:

 

The real dispute being waged today between the petitioner and the community, has its origin in the former's argument that the pardon gave him an absolute right to the restoration of his name to the Roll of Advocates....  It is clear that this court alone is competent to adjudicate upon this dispute between the petitioner and the public.... The fact that the petitioner, for the reason of having misconceived the powers of the Law Council, turned to that body for the enforcement of his right, does not negate the possibility that the petitioner's abovementioned argument may be finally disposed of in the present proceedings.... If we find the petitioner's argument to be well founded, and declare him entitled to renew practice as an Advocate, such a declaration will bind everyone, and the petitioner should experience no difficulty in having his name restored to the Roll. If, on the other hand, we decide that the pardon does not bring about the desired result, that ruling will equally resolve this dispute between the citizen and the public. One way or the other, I believe it is required of us to decide this whole question.... which is what I now proceed to do (my italics-M.B.P.).

 

          It seems to me that Justice Agranat's attitude reflected his clear perception that the power of pardon in Israel required to be widely interpreted, as in England and America, as embracing also the pardon of an offender before his conviction. This attitude is to be gathered from his judgments, in A. v. The Law Council and in Matana. It so transpires from his citation and adoption of a statement in Halsbury's Laws of England that "pardon may, in general, be granted either before or after conviction," and especially from his own conclusion (in A. v. the Law Council [2], at p. 751):

         

from which I learn that the President has the power to pardon offenders both before and after conviction, either unconditionally, or with qualifications.

 

          Justice Agranat gave practical implementation to his above perception by interpreting the consequences of the pardon in issue there in accordance with the customary approach in England and in the U.S.A. (ibid., p. 751).

          A perusal of the two precedents reveals that none of the other Justices dissented from the interpretation according to which the President of Israel was competent to pardon offenders also before conviction; indeed, most of the Justices explicitly took the same view. Thus the difference of opinion between Berinson J. and Agranat J. in Matana, as to the comparison of sec. 6 of the Transition Law with Art.16 of the Order in Council (with Berinson J. refusing to recognize a presidential power to grant a pardon subject to conditions, owing to the absence in sec. 6 of such express provision), did not prevent Berinson J. from holding (perhaps on account of the first part of Art. 16) that the presidential power of pardon was exercisable also before conviction ( ibid., at p. 469):

         

the President's power of pardon is in a certain sense wider than that possessed by the High Commissioner. Whereas the High Commissioner was unable to pardon a crime before the offender was tried and convicted unless he turned King's evidence and led to the conviction of his accomplice (the first part of Article 16 of the Order in Council), the President is not bound by this condition and, so it seems to me, may pardon any offender even before he is brought to trial.

 

          Landau J., at the end of his opinion in Matana, expressed his "complete agreement" with the judgment of Berinson J., from which it follows that he agreed also with the content of the above passage, or at least had no reservations about it.

          Justice Cohn fully supported Justice Agranat's interpretative approach, and emphasized his view that the Presidential power was to be widely construed.

          The general opinion, therefore, was that there was in Israel an existing, valid presidential power of pre-conviction pardoning. There was, however, a divergence of opinion in Matana on the question of equating the power of the President of Israel with that of the British Monarch.

          It may be noted that Justice Agranat's approach has been followed in practice ever since the decision in A. v. The Law Council. This fact is confirmed in the judgment of Cohn J. in Matana (at p. 461):

         

Under sec: 6 of the Transition Law, 1949, the President of the State is empowered to pardon offenders and to reduce punishments. The Presidents of the State have exercised this power from 1949 until the day on which judgment was delivered in Matana v. Attorney-General (June 23, 1960, in the manner laid down for them in the judgment of this court (per Agranat J) in A. v. The Law Council, at 745 et seq.). That is to say, both the President of the State and the Minister of Justice, whose countersignature of the President's decision is required by the Law, and also the wide body of citizens who have had need of the President's grace, have always regarded this power of the President as equal and parallel in nature and scope to the power of pardon and reduction of punishments possessed by the Queen of England.

 

          This practice (with which few were as familiar as Justice Cohn, who had held office as Attorney-General for a lengthy period) had been followed for some ten years when the decision was given in Matana, and in this context the learned Justice went on to comment as follows (at p. 462):

         

It has already been said more than once by this court (both during the Mandate and after the establishment of the State) that the court will hesitate very much to reverse a particular practice which has taken root during the years, and if this was said in respect of matters of practice which did not rest upon the authority of judicial precedent, how much more is it applicable to a matter of practice which rests upon a specific decision of the Supreme Court. As for myself, even if I were inclined to agree with the opinion held by my colleagues Berinson J. and Landau J. that the practice followed by the President of the State year after year is based upon too wide an interpretation of sec. 6 of the Transition Law, 1949 [and it will be recalled that the opinions differed there on the question of a pardon subject to conditions, and not as regards a pardon before conviction - M.B.P.], even then I would no venture today to change this practice which has received the seal of the Knesset at least by its silence (my italics - M.B.P.).

 

          We are, therefore, talking about a practice that has now been followed for some decades. Initially the practice was founded on the single opinion of Agranat J, that is, on the ratio of his decision in A. v. The Law Council, and later also on the Matana decision.

          That even distinguished jurists treated the decision in A. v. The Law Council as laying down a rule to be accepted, may be gathered from the following extract from a statement made by Prof. Y. H. Klinghoffer in a Knesset debate on 29 June 1965 ( Minutes of the Knesset, 43, p. 2319):

         

Another unconvincing argument sometimes advanced is that if a suspect be very ill, it would be an act of cruelty to put him on trial. Unconvincing, because in rare cases of this kind the President of the State would be able to grant a pardon before the trial commenced. The President is empowered to pardon offenders either before or after conviction. That was laid down by Justice Agranat in the case of A. v. The Law Council (my italics-M.B.P.).

 

          The above remarks were made with reference to the question whether it were better to render it obligatory for the prosecution to charge a suspect and put him on trial when the evidence so warranted, or to leave the decision to the discretion of the prosecution. Prof. Klinghoffer clearly favoured the former option, reasoning thus:

         

In expressing my reservations I would recommend we abandon this method in favour of one that obliges the prosecution to put a person on trial when it is in a position to substantiate the charge upon sufficient evidence. When a particular act or omission is defined by statute as a criminal offence, the matter should properly be submitted for judicial determination, and it is not the concern of the prosecution, which is a part of the Executive authority, to relieve the suspect of responsibility for his act or omission by not putting him on trial, and precluding the competent court from judging him according to law. To entrust the prosecution with the option to decide on its own whether or not there be any public interest in holding a particular trial, and accordingly whether or not to institute criminal proceedings against the suspect, is to invite dangers of a political nature. This arrangement would amount to a conferment of power to pardon someone in advance, and convert the prosecution into a kind of pardoning institution, something that is not in keeping with its essential function (my italics - M.B.P.).

 

          We accordingly see that Prof. Klinghoffer drew a clear distinction between an unqualified discretion given the prosecution whether or not to charge a suspect - according to its perception of the public interest in the matter - and the exercise of the pardoning power. The distinguished jurist saw such an option as holding out certain dangers, and undesirably conferring a power of advance pardon, whereas he accepted as a matter of fact the presidential power to grant a pardon, in rare cases, even "before the trial commenced."

In the end the Knesset took the middle path, but I shall come back to this aspect later.

         

4.       Two conclusions may be drawn from what I have said so far:

          (a) As regards the scope of the presidential power to pardon offenders before conviction, we are not without guidance, for the existing judicial pronouncements on the subject to the effect that the President does possess such power, cannot be said to be purely obiter;

          (b) We are confronted with a practice that has taken root in Israel ever since the decision in A. v. the Law Council, that is to say, for some decades now.

          There can be no doubt as to the importance of these two considerations in the determination of our attitude.

          (c) Also carrying weight, purely as an interpretative indicator for me (and not as a source of legislation), is the fact of the lawgiver's silence on the instant point when the content of sec. 6 of the Transition Law was reenacted in sec. 11(b) of the Basic Law. This silence was maintained despite the clear trend of the precedents and the practice evolved and based thereon, and it stands out against the express addition in the Basic Law of a presidential power to "commute" sentences, the lack of which had been established in the precedent cited, together with the court's unanimous opinion that the President was empowered to pardon also before conviction. This silence and its implications are fully elucidated in the judgment of Shamgar P.

         

5. It is true, however, that a later legislative development sometimes does dictate a change in interpretative approach. Attitudes also change with the passage of time, and these changes come to be reflected in the decisions of the courts - in the manner of new wine poured into an old flask - if weighty reasons be found for departing from an existing rule, deeply rooted though it may be. If, for instance, the customary interpretation be found necessarily to misconceive the purpose of the provision concerned, or that it has not even the slightest foundation in the language of the provision, or that its implementation in the exigencies of new reality poses a real threat to the maintenance of good government, then I should be inclined to construe the pardoning power restrictively as being confined to the post-conviction stage alone.

          I have come to the conclusion, however, that there are no weighty reasons for disturbing the existing precedents and practice. My reasons for so concluding are the following:

          (a) The wide interpretation given the term "offender" finds ample justification in the language of the statutory provision in question. My colleague, Barak J., acknowledges that, linguistically speaking, the term "offender" could embrace also a suspect who has yet to be tried and convicted; hence, in his opinion, the wording of the provision alone does not advance our inquiry one way or the other. Yet the learned Justice suggests at the same time that only someone who has already been convicted is an offender, as appears, for instance, from the following passage in his judgment (par. 25):

         

   Even an admission by the applicant for a pardon that he committed an offence, is of no consequence, for he is presumed innocent until convicted by the court.

 

          I must confess that I find the emphasis given to circumscription of the term "offender" in the context of our instant inquiry, somewhat perplexing. It is common cause that the main (some hold, the only) purpose of a full pardon, is to make amends for a serious miscarriage of justice which has resulted in the conviction of an innocent person. If that be the main (or sole) purpose, then the recipient of the pardon is no "offender" at all, but the victim of an error. If we adopt the arguments of the petitioners, and of certain jurists, that only the court is competent to stamp a person as an "offender" for the purposes of pardon, we shall find that it is precisely that kind of error which the President is unable to repair - a situation that is contrary to all logic. Of what avail is it for the court to find, upon hearing evidence and argument, that the accused indeed committed the crime - and thus branding him an "offender" - if the essence, and main purpose, of a pardon be to proclaim that he is not such? This reasoning alone would warrant the conclusion that an "offender" includes someone to whom the commission of an offence is attributed.

          It is pertinent, moreover, to recall that Art. 16 of the Order in Council empowered the High Commissioner to pardon an offender (an accomplice) before conviction, if he was prepared to give information and evidence concerning the principal offender or any such offender. We must bear in mind the proximity in time between the repeal of the said Article 16 and the enactment of sec. 6 of the Transition Law, a proximity which provides further indication that the term "offender," as already pointed out in the judgment of Shamgar P., was intended to refer to someone to whom the commission of an offence "is attributed." The learned President cited many convincing examples of the lawgiver's use of the term "offender," in a variety of contexts, from which too one may learn that this term does not necessarily mean someone who has already been convicted. In other Laws the term may indeed import otherwise, depending upon the legislative context and intent, but the abovementioned examples all relate to the same or closely the same kind of material as our present matter (for instance, general amnesty), and convincingly show that the term "offender" should not be understood only as someone who has been tried and convicted. In addition to the above illustrations, among many other possible ones, I might also mention sec. 6 of the Secret Monitoring Law of 1979, which provides a framework for secret monitoring, inter alia, if necessary "to prevent offences or detect offenders." It is clear from the context that the Law envisages the monitoring and exposure of the conversations of a person involved in a criminal act (whether not yet committed, in the process of commission or after its commission) and all, of course, in the stage preliminary to the trial and, certainly, before conviction of the suspect.

          In essence, my learned colleagues and I all agree that linguistically speaking sec. 11(b) of the Basic Law suffices, as it stands, to encompass also the power of pardon before conviction. The requisite interpretative nexus for this purpose is there, and the statutory provision cannot be said to lack a linguistic foundation for such a construction.

 

          (b) We must now, after disposal of the linguistic aspect, deal with the main criterion, namely, the legislative purpose of the pardoning directive.

          Justice Barak holds in his judgment that a construction according to which the President of the State may pardon someone before his trial and conviction, is inconsistent with the purpose of the pardoning directive. He states that in order to choose between the possible linguistic options we must turn to the legislative purpose, and he holds the true objects of the pertinent statutory provision to be those enunciated by Justice Agranat in A. v. The Law Council and in Matana, and none other, namely:

         

The primary purpose... is to redress the wrong done to a person who was convicted while innocent, and the second purpose - the value of which should also not be underestimated - is to reduce the sentence of the offender in circumstances which justify this. It is clear that the exercise of such a power by one of the highest State authorities is essential for the effectiveness of any governmental regime, since in no country whatever has there yet been created a system of justice capable of perfect and unerring operation, and of dispensing justice in every case without fail ( A. v. The Law Council, at p.751).

Justice Barak then goes on to make this comment:

This reasoning naturally only holds true in relation to a convicted offender. It is not at all applicable to someone who has yet to be convicted. How, then, is this reasoning of Justice Agranat to be reconciled with his view that the President has power to pardon before conviction? Such power would necessitate a different rationalisation, of the kind that is not to be found either in A. v. The Law Council or in Matana (my italics - M.B.P.).

 

          This seems a cogent argument in support of the conclusion that, measured by the test of legislative purpose, the presidential power is restricted in its exercise to a pardon after conviction only. It is not so, however. Thus, for instance, in A. v. the Law Council Justice Agranat mentioned additional objects of a pardon, remarking inter alia as follows (at p. 755):

Third, I have not overlooked the possibility that a pardon may also be granted for reasons which do not stem, necessarily, from the innocence of the convicted person.

 

          These remarks link up with what Justice Agranat said later in the Matana decision (at p. 451):

         

It is quite easy to think of a case in which the need to use this system would arise when the public interest alone, and not that of the prisoner, requires his release from custody. It may, for example, be proper to liberate a prisoner who is a national of an enemy state on condition that he leave Israel territory immediately and permanently, in order to facilitate an international arrangement which will ensure, in return for such a pardon, the immediate release of a "Zionist prisoner" in custody in that state.

 

          The above example happens to relate to a convicted prisoner, yet this underlying purpose is not to reverse an injustice but to prefer the public interest, to which the rule of equality before the law must bow. That is to say, we have here a conflict between two very important interests: one - equality before the law, which requires that every offender against the law should answer for his conduct; the other - the safeguarding of a vital public interest. The proper balance between the two is the determining factor. The President of the State was in the same predicament in relation to the matters raised in the petitions before us. Thus he declared his conclusion that despite finding merit in the opposing viewpoint, he was satisfied at the time that vital security interests of the State were at stake and also that it was necessary to put an end to the "devils' dance," as he described it, and therefore he decided to accede to the requests for a pardon.

          The primary purpose of a pardon, at least until the retrial procedure was instituted, has indeed been to correct an injustice resulting from an error in judicial proceedings. But that has not been the only purpose of a full pardon. Thus, as already mentioned, it was possible under Article 16 of the Order in Council to pardon an accomplice (before trial) in order to induce him to give information and evidence against the principal offender or any such offenders. The purpose of such a pardon was not to reward its recipient, but to achieve an object considered by the pardoning authority more important than trying the person pardoned. (A similar approach is also to be discerned in civil law - see Mistry Amar Singh v. Kulubya [47], where the plaintiffs claim, though tainted with illegality, was sustained in order that the purpose of the law should not be defeated.) For the attainment of the same purpose a pardon or clemency may conceivably also be granted to a convicted offender, by way of a reduction of sentence, if the latter, only at that late stage, is prepared to disclose important information against other offenders who committed serious crimes.

          Furthermore, such rationalisation - that the public interest sometimes prevails over the interest of bringing the offender to trial or of having the trial run its full course - is to the best of my understanding, contrary to the opinion of Barak J., also to be found in the cases of A. v. The Law Council, and Matana. I base this conclusion in the first instance on the abovementioned remark of Agranat J. in A. v. The Law Council (at p. 755), that a pardon may also be granted for reasons "which do not stem, necessarily, from the innocence of the convicted person," and also on his following statement in the same case (at p. 747) :

         

lts main purpose - and I do not overlook its other purposes - was and remains to declare before all that the person tried and convicted, and now receiving a pardon, is free of guilt and that his offence has been wiped out (my italics-M.B.P.).

 

          Thus, we seem to find in the two abovementioned precedents precisely such "different rationalisation," according to which a full pardon may also be granted to someone other than a wrongly convicted person who is serving his sentence. This pardoning consideration, provided it is applied correctly and carefully in the proper cases, operates with the same validity and force both before and after the conviction of the offender. In fact, even Justice Barak countenances the possibility that it may be better, in rare cases, to pardon a person before conviction rather than to stay the proceedings against him - for instance when the person is suffering from a malignant disease - save that my learned colleague does not consider such exceptional cases to warrant a wide interpretation of the statutory directive. By the same token I would hold it desirable, in a rare case, for a person to be pardoned before trial and conviction for the sake of protecting a vital public interest. The Attorney-General is indeed the competent party to decide whether a person shall stand trial or not, to which end he may, even must, weigh considerations of a social or security nature. Like Justice Barak, I too find support for my view in the report of the Agranat Commission on the Powers of the Attorney-General (1962), where it was stated, inter alia, that

 

In certain circumstances a matter of security, political or public interest may dictate that no criminal charge be preferred (p. 6).

 

          The Commission dealt also with the Attorney-General's need to consult with the political authorities when making his decision, reporting thus (p. 13):

         

The stated duty to consult arises particularly when criminal proceedings are being instituted in relation to a matter of security, political or public interest. In such event it is always incumbent on the Attorney-General to consider whether the act of instituting criminal proceedings (or halting the same) is not more likely to prejudice the interests of the State than refraining from taking such action. This the Attorney-General will only be able to do after having sought information and guidance from those who carry the primary responsibility for safeguarding the State from the security, political and public aspects - that is to say, from those who, so we must presume, are more experienced and knowledgeable in those fields than we are. As already indicated, he will generally need to refer to the Minister of Justice for the required direction and advice; but sometimes, that is in cases which give rise to questions of "high policy," there will be no alternative but to obtain guidance from the Government as a body (my italics - M.B.P.).

 

          I shall come back to these statements later. First, however, I wish to consider the situation that arises when pursuant to sec. 59 of the Criminal Procedure Law (Consolidated Version) of 1982, a police investigation has to be opened upon a complaint of the commission of a felony, and it transpires that the very conduct of the investigation (including the taking of statements from witnesses) may seriously impair the security of the State. Who will then be empowered to decide whether the investigation shall be completed or discontinued?

          Mr. Harish, the Attorney-General, has submitted that he lacks the authority to order that a police investigation be discontinued (or not opened after the police learn of the commission of a felony). It is arguable, perhaps, that the police, being an arm of the Attorney-General for criminal investigation purposes ( Reiner v. Prime Minister of Israel [20], pp. 485, 486), is obliged to act as directed by him, thus rendering the Attorney-General competent to order discontinuance of the investigation. The matter, however, is far from clear. For instance, there is the express directive in sec. 60 of the above Law, that upon completion of the investigation of a felony, the police shall transmit the material to the District Attorney; the police, however, may refrain from investigating lesser offences, though only for the reasons set forth in sec. 59 of that Law. A measure of support for this separation of powers is even to be found in the following passage from the judgment of Justice Barak (in paragraph 25, though his remarks were intended for a different purpose):

 

This conclusion as to a "separation of powers", between the presidential pardon and the powers of other State authorities, is reinforced when regard is had to Israel's general constitutional framework. The other State authorities (the police, the prosecution and the courts) have the means to establish the facts. The police has its investigating facilities and seeks to reach an assessment of the factual situation. The prosecution, to whom the police must transmit the material, will handle and process the same until delivery of the judgment. The courts possess the institutional and normative facilities for elucidating the question of innocence or guilt.

 

          That is to say, each authority has its own field of responsibility. The police, upon receiving a complaint or otherwise learning of the commission of a felony, is obliged to conduct an investigation, and upon its completion to transmit the evidence to the appointed authority, the prosecution, which only then comes into the picture. It is even doubtful whether the police may halt its investigation in cases of felony, even where the police considers the Attorney-General to have good reasons for wishing to do so. On a plain reading of the conclusion to sec. 59 of above Law, the police has such a discretion (on the grounds of there being no public interest involved) only in relation to misdemeanours, and not felonies. And most important, even the Attorney-General's power to intervene in the investigation by directing that it be discontinued is, as already mentioned, a matter of doubt. Thus, there is the express provision (sec. 61 of the Law) that the Attorney-General may direct the police to continue investigating if, after receiving the material, he "considers it necessary for a decision as to prosecution or for the efficient conduct of the trial." This provision would seem to be superfluous if the Attorney-General is indeed competent to decree at will the completion or halting of police investigations.

          On the assumption that the police is legally obliged to complete its investigation of a felony, and then to refer the material to the District Attorney, the grant of a pardon would indeed be the only way of halting an investigation if it endangered a vital public interest such as the security of the State. The abovementioned view of the Agranat Commission that the security, political or public interests of the State may in certain circumstances require that no criminal charge be preferred, holds good also as regards the halting of an investigation for similar reasons. It is quite li