Case Number
HCJ 3094/93, HCJ 4319/93, HCJ 4478/93, AHC 4409/93
Date Decided
9-8-1993
Decision Type
Original
Document Type
Full Opinion
Abstract
These petitions concern the continued tenure in office of the fourth respondent as a Minister in the Government, after he was charged with accepting a bribe, breach of trust on the part of a public servant, obtaining something by deceit under aggravating circumstances, false entry in corporate documents and stealing by a director
The petitioner in H.C. 4319, 3094/93, argued that proper legal and public norms demand an immediate end to the 4th respondent's tenure of office as a Minister. This petitioner's approach is similar to that of the third respondent, as expressed in his application to the second respondent. In the opinion of the second respondent he is not in duty bound by law to use the powers vested in him by section 2lA of the Basic Law: the Government in order to remove the 4th respondent from his office as a Minister. The second respondent drew attention to the letter which the fourth respondent had deposited with him before the fifth respondent had joined the Government, in which he undertook that "if and when an indictment be brought "against him in court, he would suspend himself from the Government of his own accord. The second respondent saw, and sees, this arrangement, as expressed in the said letter, not only as a unilateral undertaking by the 4th respondent, but also as a parallel undertaking on his part not to exercise his power under section 21A of the Basic Law: The Government unless the circumstantial conditions laid down in the letter are fulfilled.
According to the argument, the suspicions raised in the past against the fourth respondent, despite which he was elected to the Knesset, were no less serious than those contained in the indictment. It was argued, therefore, inter alia, that there was no real change of circumstances which justified the exercise of the power under the above section 21A, which is a discretionary power. It was argued further that the arrangment in the Basic Law: The Government with respect to Ministers and Deputy Ministers is a negative one - that is, there is no obligatory provision of law there.
The High Court held as follows:
A. (1) In section 21 A of the Basic Law: The Government the 3rd respondent was given the power to transfer a Minister from office without being bound by any extraneous obligations while exercising his power in accordance with its legislative purpose.
(2) An undertaking to restrict in advance the power to remove a person from office in the Knesset, the Government, a State service, an association established by law, a government company or any other public body, would be incompatible with the express and clear provisions of the Basic Law: The Government and would also not be consistent with the general principles of administrative law.
B. (1) Section l3A of the Basic Law: the Government was intended, from the point of view of legislative purpose, to prevent agreement and undertakings expressive of faulty and invalid processes in political life in general and in parliamentary life in particular.
(2) Section 13A(b) is intended to preserve and ensure the freedom of discretion of the holder of a statutory power in order to enable him to exercise his power to remove a person from office - when this is called for on the grounds of substantive considerations and all the more so when the law demands it. It is intended to prevent negation and cancellation in advance of the power of the authority, within the framework of a political deal.
(3) Exercise of the power must be reviewed against existing conditions or conditions created at the time when the exercise of the power was under consideration. A promise in advance not to exercise a power means that the holder of the power cannot exercise it even when the circumstances make it necessary to do so, as he fettered himself in advance. In this manner the power would be deprived of content and purpose.
(4) Where there are considerations which, in the light of all the data, require the exercise of the power to remove someone from office, it is unlawful for the holder of the power to refrain from exercising it because he has promised in advance that he would not do so even if the circumstances should demand it.
(5) In the present circumstances the 4th respondent's undertaking, which can be seen to be an agreed bilateral arrangement, drastically defies the prohibitions in section 13A(2) of the Basic Law: The Government and should be deemed to be absolutely invalid.
C. (1) The power conferred by section 21A(a) of the Basic Law: The Government is a discretionary one. Discretion is generally granted to any statutory authority in order that it may have freedom of action in fulfilling its variegated functions in circumstances which vary from time to time. In that way the authority is enabled to weigh up the circumstances in every problem brought before it and find an appropriate solution.
(2) Insofar as exercising discretion is concerned there is no difference between exercising a power and refraining from exercising that power: not only can the unreasonable exercise of a power be invalidated, but also refraining to exercise a discretionary power for unreasonable reasons can lead to the conclusion that it was invalid.
(3) Even when the legislator did not impose a duty to exercise a power in a defined manner, or when the duty to exercise a power does not follow from the substance of a matter, there is born and arises, together with the grant of a power, the duty to weight up also the very need and justification for exercising it.
D. (1) When examining the possibility of exercising a power the statutory authority must take account of all the relevant elements: that is, of all the subjects which create a mosaic of the data before it, it being obvious that it cannot take account of extraneous circumstances.
(2) Where parliamentary-political life is concerned, one cannot rule out taking account of circumstances which arise due to political considerations.
(3) The question of whether the result was reasonable or not would depend, amongst other things, on whether proper weight was given to all the various considerations.
E. (1) Discretionary power becomes a power which it is a duty to exercise when the factual circumstances are such that the basic values of our constitutional and legal system make failure to exercise it so unreasonable as to go to the root of the matter.
(2) The power granted by section 21A of the Basic Law: The Government can be exercised in order to enable the government to function properly and to lead to the removal of a minister who does not fit in the web of government policy or who defies the principle of collective responsibility. The power is vested also in order to enable a reaction, in the form of removal from office, to a serious event in which a member of the government is involved, when that event, be it either an act or an omission, reflects on the status of the government, on its public image, on its ability to provide, and serve as, an example, on its capacity to ingrain proper standards of conduct, land, mainly, when it has repercussions on the public's confidence in the system of government, on the values upon which the system of government and law is built, and on the duties of the ordinary citizen which arise from them.
(3) This has no reference to moral norms which have no basis in law. The reference is to the law of the country according to which failure to exercise a power vested in a functionary converts the omission, in certain circumstances, into something extremely unreasonable.
F. (1) The fact that the Government depends on the confidence of the Knesset, and that this gives transcendental expression to the broad public's confidence, does not make the exercise of the power under section 21 A of the Basic Law: The Government when the circumstances demand it, redundant.
(2) Suspending a decision, following upon the revelation of serious offences on the part of a minister, because of the contention that there is no room for action on the part of the Prime Minister until the Knesset- if in fact it does - brings a vote of no-confidence in the Government in order to effect, indirectly, the dismissal of the minister, would amount to interpreting the very meaningful legal provision in section 21A as a minor provision intended to promote internal disciplinary measures only. This is a mistaken estimate of the scope of the power given to the second respondent under this section.
(3) In the present case the indictment against the fourth respondent includes allegations of corruption of an extremely serious nature. Even though it only reflects the prima facie evidence collected by the prosecution and even though it is not a judgment, insofar as continued office in the Government is concerned even the prima facie evidence collated in the indictment, and which has now become public knowledge, is of significance. There are circumstances which are significant from the point of view of reasonability, not only for purposes of judicial determination but also for establishing the nature of the acts attributed in the indictment.
G. (Per Justice E. Mazza):
(1) The second respondent sought to take issue with the Attorney General concerning the very substance of the legal norm applicable to the subject of removing a minister from office and did not give expression to an independent public stand with the aid of his reasons.
(2) The approach is contrary to the constitutional principle according to which the Attorney General is the person qualified to interpret the law vis-a-vis the executive.
(3) Even after it has been explained to the second respondent that the agreement which he had made with the forth respondent was invalid ab initio, he had stuck to his original stand, while seeking to justify it with the aid of legal reasons which contradicted the binding legal opinion of the third respondent:
H. (Per Justice D. Levin):
(1) A minister who sits at the government table as a representative of a party or movement undoubtedly fulfills a political function. He gives expression thereby to opinions had points of view and to the political and social path of the public which elected him and of the movement which regards him as its representative in the government set-up.
(2) When the minister fulfills an administrative function he is subject to review by the High Court of Justice. Within the framework of this review the court will examine whether the minister was punctilious about applying proper administrative procedures, whether he exercised his authority in accordance with the general principles laid down by law and judicial precedents and whether, when providing a service to the citizen as a public trustee, he behaved fairly, reasonably, equitably and without prejudice. If he sins against any of these principles then his political function should, generally, not serve as a defence. If that be the position in general, how much more so would it be the case when a minister errs and becomes tainted with the stain of an offence against the law.
(3) If an indictment based on prima facie evidence is brought against a minister, indicating that he is suspected of serious offences which by their circumstantial nature and content involve ignominy, it would not be proper or reasonable for him to continue in office. It would be proper for the minister to reach this conclusion of his own accord for the sake of public hygiene and as a mark of respect for the principles of the rule of law, even if he be convinced of his own innocence and clean hands.
(4) If the minister does not do this then the second respondent must weight up whether circumstances have not arisen which would demand the exercise of his power under section 21A(a) of the Basic Law: The Government to remove the minister from office.
(5) When a demand that the exercise his discretion be made he may take into consideration parliamentary-political aspects, as it is only natural and understandable that the second respondent will seek to preserve his government and save it from collapsing. But the implications of the indictment cannot be ignored and the minister cannot be left in office as though nothing had occurred for the sake of the Government's survival and because of the desire to further government policy, however important this may be.
I. (Per Justice E. Goldberg):
(1) One cannot deny the existence of a political aspect in the matter under consideration. But this aspect must not be regarded as divorced from public administration.
(2) In any clash between the two aspects one cannot say that the public administration norm will not apply at all only because the functionary is a minister or deputy minister.
(3) A balance between the two aspects makes it obligatory that the court's power to intervene in the exercise of discretion of whosoever is empowered by law to remove a minister or deputy minister from office be limited to cases in which the seriousness of the circumstances in which the alleged offence was committed cannot be reconciled with continuation in office.
Keywords
Administrative Law -- Discretion, Administrative Law -- Judicial review, Constitutional Law -- Government, Constitutional Law -- Judicial Review
Recommended Citation
Shamgar, Meir; Barak, Aharon; Mazza, Eliahu; Levin, Dov; and Goldberg, Eliezer, "The Movement for Quality in Government v. State of Israel" (1993). Translated Opinions. 274.
https://larc.cardozo.yu.edu/iscp-opinions/274
