Case Number

EA 1/88

Date Decided

10-18-1988

Decision Type

Appellate

Document Type

Full Opinion

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.

Keywords

Administrative Law -- Discretion, Constitutional Law -- Judicial Review, Constitutional Law -- Rule of Law, Elections

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