Case Number
HCJ 3429/11
Date Decided
1-15-2012
Decision Type
Original
Document Type
Full Opinion
Abstract
Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel as a Jewish and democratic state; and the second, sub-section 3b(b)(4), referring to an expense which was “in essence” a marking of the day of Israel’s establishment as a day of mourning. A decision to reduce the budget in accordance with this section requires that the Minister of Finance first receive an opinion from a professional team composed of representatives from various ministries, the approval of the minister in charge of the budget item through which the entity received funding, and an opinion from the legal adviser to the Ministry of Finance. In addition, he must also grant the relevant entity a hearing on the matter.
The petitioners are the alumni association of an Arab school in Haifa, which runs various activities that are held at the school, dealing with issues of Arab and Israeli identity; several parents of students in a bilingual Arab-Jewish school, whose goals include education about respect for other cultures and in which activities are held that commemorate both Israeli Independence Day and Nakba events; and an academic who is the proponent of a model/theory that describes Israel as an ethnocracy, rather than as a democracy. All the petitioners argued that they could be harmed by the exercise of the Budget Elements Law’s provisions; the statutory provisions were also challenged on the ground that they effectively constituted a violation of the right to education, collective identity and freedom of expression and of occupation.
Held: Justice Naor held that the petition should be denied on the basis of the ripeness doctrine and because of the availability of an alternative proceeding and remedy. Because the statutory provisions had not actually been implemented against any of the petitioners or any other parties at all, and because there was therefore no way of knowing how the law would be implemented, if at all, against the petitioners, the Court could not reach an informed decision regarding the constitutionality of the manner and scope of its hypothetical application. The uncertainty (and consequently, the absence of sufficient ripeness) was heightened by the fact that the law itself prescribed an extensive process of supervision and review before any decision to reduce funding could be implemented. Justice Naor also found that the petition to the High Court of Justice could be denied because of the availability of an alternative proceeding and remedy; once the Law had been implemented, a petition challenging a reduction in funding could be brought in the Administrative Matters Court. An indirect attack on the constitutionality of the Law would also be permissible in that context. President Beinisch and Vice President Rivlin concurred, with President Beinisch adding that there was no need to decide the matter of the availability of an alternative proceeding and remedy. JUSTICES
Keywords
Administrative Law -- Discretion, Administrative Law -- Standing, Constitutional Law -- Basic Law: Freedom of Occupation, Constitutional Law -- Equality Before the Law, Constitutional Law -- Freedom of Expression, Contracts, Education -- Right to Education
Recommended Citation
Naor, Miriam; Beinisch, Dorit; and Rivlin, Eliezer, "Alumni Association of the Arab Orthodox School in Haifa v. Minister of Finance" (2012). Translated Opinions. 45.
https://larc.cardozo.yu.edu/iscp-opinions/45
Included in
Administrative Law Commons, Constitutional Law Commons, Contracts Commons, Education Law Commons
