Case Number

HCJ 219/09

Date Decided

11-29-2010

Decision Type

Original

Document Type

Full Opinion

Abstract

Facts: The respondent was convicted of various crimes and sentenced to life imprisonment in 1996, after which he was given additional sentences for crimes committed while on leave from jail. In 2004, he applied to the then-President of the State, Moshe Katzav, to reduce the duration of his sentence. Although the Minister of Justice at the time (Tzipi Livni) recommended that the application be denied, the President signed a letter limiting the respondent’s sentence to 32 years. The Minister of Justice refused to countersign the document approving the reduced sentence, as did other Ministers of Justice who served after her. The respondent petitioned the High Court of Justice, asking the Court to order the Minister of Justice to join her signature to that of the President of the State or, alternatively, to declare that the letter approving the reduction of the respondent’s sentence was valid despite the absence of the countersignature. In the original judgment, the majority (Justices Levy and Danziger) granted the petition, with Justice Rubinstein dissenting. The Minister of Justice petitioned for a further hearing.

Held: Majority opinion (President Beinisch; Deputy President Rivlin, Justices Naor, Arbel, Rubinstein, Joubran, Hayut concurring; Justice Levy concurring in part). The pardoning power of the President of the State is an Israeli creation and is not an unqualified presidential prerogative. The basic principles of the Israeli democratic regime necessitate the imposition of a review mechanism for the President’s exercise of the power to pardon. This process is expressed in the statutory requirement that the Minister of Justice must countersign and in the discretion he exercises with respect to the issue of the countersignature. The countersignature, through which the Minister of Justice assumes parliamentary responsibility for his actions, thus enables both parliamentary and judicial review of the exercise of the pardon power. This necessary review process does not grant the Minister of Justice a veto right. The Minister may exercise his discretion to refuse to countersign only in extreme and unusual circumstances – such as when he is persuaded that the pardon decision has been reached improperly. The narrow scope of the Minister’s discretion also reduces the concern that political considerations will enter into the pardoning process.

Concurrence in part (Justice Levy) – The discretion given to the Minister of Justice does not allow him to refuse to sign when he finds the President’s decision unreasonable, but only when he finds that decision to have been based on irrelevant considerations, that it was made in bad faith or that it is ultra vires.

Minority opinion (Justice Danziger) – The Minister of Justice has no discretion with respect to the countersignature requirement, as the power to pardon has been given only to the President of the State. The entire purpose of the countersignature is to ensure that all relevant material is submitted to him for review and that there were no errors whatsoever. The possibility of the exertion of political pressure on the President – through a grant of discretion to the Minister of Justice – creates the potential for prior understandings between the President and the Minister. The indirect judicial review mechanism described in the judgment in the original petition is the preferred review mechanism with respect to the presidential pardoning power.

Petition granted. Respondent’s matter to be returned to the Special Parole Committee, to the President of the State and to the Minister of Justice.

Keywords

Constitutional Law -- Separation of Powers

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