Case Number

HCJ 246/81

Date Decided

7-28-1981

Decision Type

Original

Document Type

Full Opinion

Abstract

The Elections (Modes of Propaganda) Law, 1959, provides free radio and television broadcasting time for each of the party lists participating in the Knesset elections. Until 1981, that Law provided that each such party shall receive 25 minutes on the radio and 10 minutes on television, and that each party represented in the outgoing Knesset shall receive an additional four minutes radio time and four minutes television time in respect of each of its members in the outgoing Knesset. An amendment of that Law in 1981 reduced the time allotted to each party participating in the election to 23 minutes on radio and eight minutes on television, while it increased the allocation of radio and television time per member of the outgoing Knesset to six minutes. The effect of this amendment was to decrease the radio and television time allocated to new party lists while it increased considerably the time allocated to the large parties represented in the outgoing Knesset. The amendment was not passed by an absolute majority of the members of the Knesset, as is required in the case of legislation that concerns elections and that deviates from the principle of equality.

The Respondents appear in response to orders nisi, issued at the request of the Petitioners who argue that the amendment violates the principle of equality in elections and is therefore void, not having been enacted by the required absolute majority. The court, composed of five Justices, ruled unanimously that the order be made absolute. The five Justices delivered five separate opinions, each setting forth his reasons for the decision.

The President of the court, Justice Landau, repeated his assertions in the Bergman case, supra, p. 13, to the effect that equality of opportunity in elections cannot be measured mechanically. Therefore, the substantial discrepancy in the broadcasting times allocated to the various lists under the amendment is not in and of itself determinative of the issue. Although there is a presumption in favor of the validity of legislation enacted by the Knesset, examination of the legislative history in this case reveals that at no point did the Knesset give any consideration to the impact of the amendment on the rights of new party lists, but rather, it completely disregarded this issue. In these circumstances, the presumption of validity fails and the amendment is invalid.

Justice Barak thought that the amendment fails to meet the requirement of equality since it does not allow small parties and new parties the time minimally necessary to enable them to present their views before the public while it gives the large veteran parties more than such minimal time. Although he agreed that the issue could not be determined mechanically, he was of the opinion that the judge's common sense, experience and sense of expertise enable him to distinguish between the permitted and the forbidden. In this respect, the decision is no different from judicial decisions frequently made concerning the fairness and reasonableness of acts done by government officials.

Justice Shamgar reaffirmed his preference for as simple and basic a standard of formal equality as is possible. Agreeing that there are circumstances and considerations which would justify deviations from such formal equality, he expressed the opinion that Basic Law: The Knesset provides for such contingencies but requires that the deviation be voted by an absolute majority of the Knesset. This approach is preferable, in his opinion, to the alternative, which waters down the concept of equality by taking into account other ideals and which results in the loss of any clear constitutional standard to serve as a guideline to the legislature.

Justice Bejski thought that all that could be demanded was relative equality, not absolute equality. surveying the solutions adopted in many countries, he concluded that even relative equality entails no small amount of problems. In his opinion, the principal fault of the new Law lies in the large and unreasonable gap that it creates between the broadcasting time allocated to large existing parties and that allowed new parties. This gap violates even the relative equality required by the Basic Law and, therefore, must be approved by an absolute majority of the Knesset.

Justice Ben-Porat pointed out that the allocation of equal time to each party is not a sine qua non of formal equality, since such formal equality might be achieved by means of some other criterion, such as one based on the relative sizes of the parties. The equality of opportunity to which the new parties are entitled requires allocation of time that is sufficient for their need to present their platform and special message before the viewing public in order to justify their presence in the Knesset. This standard was not met in the Amending Law.

Keywords

Communications, Constitutional Law -- Equality Before the Law, Constitutional Law -- Freedom of Expression

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