Case Number
HCJ 141/82
Date Decided
6-16-1983
Decision Type
Original
Document Type
Full Opinion
Abstract
The Elections Financing Law set limitations on the amounts which the various party groups were allowed to spend. as a condition of their obtaining public funding of their election expenses. A party that exceeded the established amounts, was denied part of such public funding. to an extent determined by the degree of such excess.
In the course of the elections for the tenth Knesset, in 1981, several party groups exceeded these limits, some by substantial amounts After the elections, the Knesset amended the above Law, retroactively, raising the allowable spending limits and reducing the sanctions applicable to those parties which exceeded the new higher limits, so that these changes in the financing Law applied to the elections previously held. This amendment was passed by an ordinary majority of the Knesset members participating in the vote, rather than by an absolute majority of all Knesset members, required by Basic Law: The Knesset, in the case of an amendment that infringes the principle of equality in elections. See the Bergman case, supra. p. 13.
The individual Petitioners are members of the Knesset who represent the Shinui party, the third Petitioner. They assert - and this assertion is not contradicted - that the Shinui party adhered to the spending limits as fixed in the original legislation which was in effect at the time the elections were held. They contend that the retroactive amendment of the Law raising these limits violates the principle of equality in the elections and is void because it was not voted by the absolute majority of the Knesset required in such cases.
The court issued an order nisi. directing the Chairman of the Knesset and the Minister of Finance to show cause why it should not declare that the amendment is of no legal validity and should not be acted upon. The Respondents, in opposition to the order, argue that the Law satisfied the requirements of equality before it was amended, and that the amended Law, judged on its own, also meets these requirements. The retroactive application of the Law, whatever else might be said about it, does not violate the principle of equality and its enactment did not require an absolute majority.
The court, composed of five Justices, ruled unanimously that the order nisi be made absolute, on the ground that the amendment violated the requirement of equality. The lead opinion was delivered by Justice S. Levin, who was joined by two additional Justices. He held:
1. Equality does not have a single unitary meaning. It is a substantive, not a formal concept, which cannot be weighed without taking into account other values, which may differ from one society to another. It is a derivative concept, and one may sometimes replace it with other terms, such as reasonableness, justice and rationality. One must examine in each case the nature of the rights, in the broad sense, which the legislature has required to be applied equally, and judge what is the most reasonable, fair and just way in which they can be applied, taking into account the particular social conditions prevailing.
2. With regard to elections, equality means not merely "one man, one vote", but also equality of opportunity to be elected.
3. Legitimate expectations that are worthy of protection create protected rights. Retroactive legislation violates the principle of equality when it changes the relative rights of those entitled to share benefits. The amendments to the Election Financing Law, which altered the rules of the game retroactively, violated the Petitioners' legitimate expectations, which are entitled to legal protection, and must be enacted by an absolute majority as set forth in Basic Law: The Knesset.
Justice Kahan, the President, concurred in the decision in a separate opinion. He pointed out that a party that receives public financing of its election expenses but exceeds the amount of expenditure permitted by the Law may have contravened section 286 of the Penal Law, 57371977, which makes it an offense to deliberately violate a legislative provision, by doing an act forbidden under that enactment, if the matter concerns the public. Each party list participating in the elections is entitled to assume that the limits fixed by the Law for the public financing of the elections will be observed by all of the lists, and that any list which violates such limitations will suffer the consequences of such violation, whether these be the criminal sanctions set forth in section 286 or the financial sanctions provided in the financing Law itself. When the parties that have the power to do so, amend these limitations retroactively, they nullify these sanctions, which is a violation of the principle of equality, in its broad sense.
The Deputy President, Justice Shamgar, also concurred in the result, in a separate decision. There is no need in this case, he writes, to consider the abstract and theoretical meanings of the term equality. In the context of elections, as set forth in section 4 of Basic Law: The Knesset, equality means formal equality, to be determined by as basic and simple a standard as is possible. There is no reason to assume that such formal equality, as it relates to both the right to vote and the right to be elected, is always optimal from the viewpoint of a democratic regime. It may occasionally conflict with other significant social interests, equally important. Section 4 of Basic Law: The Knesset provides the framework for the solution in such situations, by permitting a deviation from such formal equality upon the vote of an absolute majority of the Knesset.
This approach is preferable, in Justice Shamgar's opinion, to one that subordinates the equality principle to other values and treats as equal that which is not equal, in order to serve such other values. The latter approach runs the danger that, in the long run, the judges may approve inequality because in their judgment, such inequality is necessary in order to protect other democratic values.
In this case, the amending legislation violated the requirement of equality by converting that which was forbidden to that which was permitted with respect to those parties that exceeded the limitations. It is not the retroactivity of the legislation that renders it unequal, but the fact that it set different limitations for some of the parties. Legislation setting such different limitations would have been no less unequal had it been prospective.
Keywords
Constitutional Law -- Equality Before the Law, Constitutional Law -- Government
