Case Number

HCJ 652/81

Date Decided

3-1-1982

Decision Type

Original

Document Type

Full Opinion

Abstract

On December 1, 1981, the Alignment group in the Knesset submitted a motion of no confidence in the government. The Knesset Chairman (Speaker) set the following day, December 2, as the time for the debate and vote on the motion, and fixed the time for the opening of the session at 5 p.m. The Petitioner seeks an order nisi against the Chairman to show cause why he should not convene the Knesset session at its regular hour, 11 a.m. He contends that this is the hour at which Knesset sessions have always begun and that the Chairman fixed the time for this session at a later hour, in violation of the Knesset regulations, in order to enable supporters of the government to return from overseas in time to vote against the motion. The Chairman contends that he fixed the hour as he did for other proper reasons. The court denied the petition, holding:

1. The Chairman of the Knesset is one of the organs of State. In deciding to alter the time of the Knesset session, he fulfills a public function pursuant to Law- the Knesset regulations -which is subject to judicial review.

2. The heterogeneity of the various Knesset functions yields similar heterogeneity with respect to the scope of judicial review of its functions.

3. In determining the scope of judicial review of internal Knesset affairs that are concerned with the political relations between the Knesset and the government, two contradictory considerations clash. One is the preservation of the rule of Law, which applies to the Knesset as well as to other arms of the state. The other is the respect that must be shown for the separation of powers. Decisions of the Knesset concerning the political relations between it and the government are politically volatile and it is appropriate that the court stay its hand as much as possible in these matters so as to avoid politicization of the judiciary.

4. The desired balance between these considerations will be assured by adopting a test for judicial review which takes into account the extent of the violation claimed. When such violation is minor and does not affect the basic structure of our parliamentary system, the independence of the Knesset should prevail and the court will stay its hand. But when the violation is substantial and infringes upon basic values of our legal order, the need to ensure the rule of Law is dominant.

5. In this case, even if the Chairman deviated from the Knesset regulations, this was a minor deviation which should be resolved by internal parliamentary processes.

Keywords

Administrative Law -- Discretion, Administrative Law -- Judicial review

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