Case Number

AAA 1207/15

Date Decided

11-5-2015

Decision Type

Appellate

Document Type

Summary

Abstract

Note: The translation of this case only covers portions of the opinions written by Justices Hendel and Rubinstein that concern Jewish law.

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Facts: In the elections for the Bnei Brak Municipal Council, held on Oct. 22, 2013, the “Central Torah List” – a subsidiary faction of the United Torah Judaism Party (hereinafter: UTJ) – won 17 seats, the Shas faction won six seats, and the “Bnei Torah” list won only two seats. A Municipal Council coalition was formed by the UTJ and the Shas faction, while the Bnei Torah faction remained in the opposition.

In its first session, the Council appointed the members of the Council’s permanent committees. Although only the Bnei Torah faction was not part of the coalition, Mr. Yaakov Verzhbinsky (Respondent 3), who was elected to the Council on the UTJ list, appeared on the appointments list for the various committees as a representative of the opposition, and he was subsequently elected to serve as the opposition representative on the Municipal Property Tax Discount Committee, a defined under sec. 149D(a) of the Municipalities Ordinance [New Version] (hereinafter: the Municipalities Ordinance). At the conclusion of the session, Verzhbinsky informed the Council that he had decided to resign from the coalition.

The Appellants, who are members of the Bnei Torah faction, filed an administrative petition against the appointment of Verzhbinsky as opposition representative on the Discount Committee, arguing that the Municipalities Ordinance requires that one of the members of the Discount Committee be “a member of the largest faction that is not represented in the Management Committee, that received the largest number of votes”. Since the largest faction not represented on the Management Committee was the Bnei Torah faction, Verzhbinsky’s appointment did not meet that requirement. They further argued that 150A(a) of the Municipalities Ordinance required that the composition of every permanent committee must reflect the factional composition of the Council “to the extent possible”, and must include “at least one opposition representative”. Inasmuch as Verzhbinsky was elected as a member of the coalition, his resignation from the coalition on the day of the vote did qualify him to be defined as a member of the opposition. Therefore, there was no opposition representative on the Discount Committee, as required under sec. 150A(a) of the Municipalities Ordinance.

The Respondents argued that sec. 149D(b)(1) only concerns a situation in which the coalition is composed of a number of small factions, while the largest faction remains in the opposition. They further argued that Verzhbinsky met the definition of a member of the opposition under sec. 125A of the Ordinance.

In granting the appeal, the Court ruled:

1. (Per Justice N. Hendel): Sec. 150A expresses the democratic principle of “proportional representation”. According to this principle, the right of the minority is not expressed solely in its participation in the elected body, but also in the indirect activities of the elected body that are performed by means of committees and subsidiary bodies. The Court has interpreted the expression “to the extent possible” not as a restrictive term, but rather as requiring that where the number of committee members does not permit maintaining a factional ratio, preference will be given specifically to the small factions that are not represented, rather than grant over representation to the large factions. When proportional representation cannot be achieved due to the small number of members of a committee, it is necessary to deviate from the factional composition in favor of the unrepresented opposition factions. This broad interpretation expresses the democratic principle that the minority must be party to all the activities of the authority.

2. Jewish law also supports the principle that the majority opinion must be arrived at with participation of the minority also applies to decisions of elected public officials. In this regard, Rashba wrote: “There is no majority consent unless the majority consent is arrived at in the presence of all as a matter of general law”. Similarly, Maharit (Rabbi Joseph of Trani) held that the requirement that decisions be made with the participation of all applies not only to judicial decisions but also to edicts dependent upon consent. Maharit’s reasoning is based upon the view that the minority does not agree to accept the decisions of the majority when its view is not heard. Maharit does not explain the requirement of hearing the minority on the basis of the potential of the minority to persuade the majority, but rather upon the broader principle that the minority has an inherent right to participate in the process by virtue of agreement. Here we find a democratic principle of participation according to which the consent of the minority to accept the decision of the majority is contingent upon being afforded the right to participate in the decision-making process. Only when the minority is granted the right to be heard is the majority opinion democratic rather than tyrannical.

3. (Per Justice E. Rubinstein - concurring): The majority is not necessarily right. There is importance to it being a majority, and it is significant for the purpose of deciding, but hearing the voice of the minority is essential both in order to persuade, and so that another option may be available when the time comes. When we are treating of the opposition, in all its ramifications, and the role of the opposition and its participation, we are concerned with substantive, and not merely formal participation. In other words, this is the theory of limits – the theory of proportionality stans pede in uno.

4. Respect for the minority is foundational to a democratic system. Knesset committees are composed on a factional basis (rule 102 of the Knesset Rules), and the opposition is mentioned in the rule (rule 6(a)(2)) that the chair of the State Control Committee will be a member of the opposition. But the legislature went further in the Municipalities Ordinance in requiring opposition representation under sec. 150A, and even further in sec. 149D(b)(1) in requiring that the Discounts Committee will include “a member of the largest faction that is not represented in the Management Committee, which receives the largest number of votes”. While the term “opposition” was not employed here, it is clear that that is the intention. Also see sec. 149C(a)(c)(1) according to which the chair of the Municipal Control Committee must be a member of the opposition, as in the case of the Knesset. The above are in the spirit of protection of minority rights, and it is in that spirit that we must interpret the law.

5. There is a reason for the Discounts Committee warranting “special treatment”. We should bear in mind the simple facts – we are concerned with a lot of money. Representation of the largest opposition faction on the Discount Committee under sec. 149D(b)(1) creates one of the gatekeepers, alongside the Treasurer, the Welfare Administration, the Collections Administration, and the Legal Adviser. The opposition member is meant to be the political “gatekeeper”. That being so, we have before us a specific section as opposed to general section 150A. Perhaps there should be better harmony between the wording of the relevant sections 149 and 150A, and that “opposition” should be written in each case (it is mentioned in sec. 150A, but not in the prior sec. 149D). But clearly the intention is one, and even if sec. 150A was enacted later, its specificity prevails.

Keywords

Jewish Law

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