Case Number
CA 4926/08
Date Decided
10-9-2013
Decision Type
Appellate
Document Type
Full Opinion
Abstract
[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.]
An appeal addressing the Water (Extraction Levy) Regulations, 5760-2000, in the framework of which the extent of the water levies for extracting water in Israel were prescribed (hereinafter: the "Water Regulations" or the "Regulations"), the legality thereof and the validity of the process of promulgation thereof. The main question in the matter at hand relates to whether or not, pursuant to Section 116(d), as worded at the time of the publication of the Regulations, pursuant to which - "The water extractors and the consumers from the water source with respect to which a levy shall apply, shall be granted the opportunity to voice arguments prior to the extraction levy being determined" - there was a duty to also publish the invitation to voice arguments prior to promulgating the Water Regulations, in Arabic, concurrently with the publication in Hebrew in the national press.
The Supreme Court (by Justice S. Joubran, with the consent of Justices E. Rubinstein and N. Hendel) ruled:
There was a duty to also publish the invitation to voice arguments in Arabic and in the Arabic press, concurrently with the publication in Hebrew in the national press. However, in light of the unique circumstances of this case, notwithstanding the flaw of refraining from publishing the invitation in Arabic and in the Arab press, and pursuant to the relative voidness doctrine, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof, and therefore, subject to the there being a duty to also publish the invitation to voice arguments in Arabic when the water extraction levies are updated – the appeal is denied based on the following grounds:
According to Israel's common law, in the framework of which the rules of administrative law, including the rules of natural justice, are prescribed through case law, the authority's obligation to grant any party who could be adversely affected by its actions an opportunity to voice arguments, does not apply in a procedure of promulgating regulations of legislative effect. Hence, only in cases in which there is an explicit statutory provision which imposes upon the authority an obligation to allow the voicing of arguments in a secondary legislating procedure, or that grants the said right to voice arguments, will the individual who is to be adversely affected by the regulations be entitled to voice his arguments, all in accordance with the terms and conditions appearing in the law. This is also the case in the case before us, in the provisions of Section 116(d). (At hand is a constitutive section, in the sense that it creates the right, which otherwise would not exist).
In light of the above, there is no doubt that the promulgation of the Water Regulations pursuant to Section 116(a), as was previously worded, is subject to the Minister of Infrastructures' obligation to give the public that may be adversely affected by the regulations that prescribe the extent of the water levy, a proper opportunity to voice its arguments. This raises the question whether the duty to grant an opportunity to voice arguments, as stated in Section 116(d), includes the duty to inform the relevant public of the anticipated promulgation of the Regulations and to invite them to voice their arguments with respect thereto; and if the answer is affirmative, we also shall address the question of the language of notification.
There is no dispute that there is no real substance to the right to voice arguments or to the duty to grant an opportunity to voice arguments, if the individual is not informed, at the relevant time, of the administrative procedure which may adversely affect or impact him. The realization of the right is intertwined with knowledge of its existence and of the occurrence of the event that creates the circumstances upon which its realization depends. In the case at hand, in order to be able to voice arguments regarding the Water Regulations, the extractors and the consumers must be aware of their said right and of the fact that the minister is contemplating the promulgation of regulations with respect to which they are entitled, pursuant to the law, to voice their arguments, prior to their promulgation.
However, at hand is a type of public hearing which is distinguished from a personal private hearing on a number of levels, the most important of which relates to the right of being notified and the extent of notification that will be deemed reasonable. According to the Court, in a public hearing, the duty to inform, with respect to the publication of the invitation to voice arguments, does not require taking measures that would ensure universal notification, and general publication via popular media channels, or by any other means to which the majority of the relevant public is likely to be exposed, is sufficient. Since, as mentioned above, in the absolute majority of cases, excluding a few exceptions, most of the claims that relate to the matter will be argued, and consequently, the data, or at least the majority of the data, necessary for reaching a reasonable and proportional decision that is based on a broad factual basis, will be brought to the authority's attention. This also obtains in the case at hand. The Respondent was not required to send each water extractor and consumer a personal invitation to voice arguments in order to fulfill its duty to inform. Therefore, Respondent's decision to publish the invitation to voice arguments in the press, in and of itself, does not, in principle, deviate from the zone of reasonableness.
However, this raises the question whether the duty to inform includes the duty to adjust the content of the invitation to the Arabic speaking public, by means of publishing the invitation also in the Arab press and in the Arabic language. The Court's answer to this question was affirmative.
Section 82 of the Palestine Order in Council, 1922 (hereinafter: "Section 82"), which is entitled "Official Languages", provides that the Arabic language is, alongside the Hebrew language, an official language in Israel. The justices differed, however, in their opinions as to the practical significance of Arabic having the status of an official language.
Justice Joubran reaches the conclusion regarding the duty to also publish the invitation in the Arabic press and in the Arabic language, according to each of the three interpretative methods presented in HCJ 4112/99 In Re Adalah which addressed the use of the Arabic language on municipal signs.
Literal interpretation of Section 82 – This section imposes a duty to use Hebrew and Arabic in all "the ordinances, official notices and official forms of the government". The Court's position is that the publication of the invitation to voice arguments falls within the definition of "official notices" (in accordance with the criterion of the identity of the publishing party and the linkage between the publication and the governmental function). Accordingly, based on the literal interpretation of the text of Section 82, there emerges a duty to publish the invitation, which, as mentioned, is an official notice, both in Hebrew and in Arabic.
Even if we shall refrain from searching for the meaning of the term "official notice" and from answering the question whether or not the invitation in the press falls within the definition thereof, this outcome can be established also in accordance with the courses that were presented in the positions of the majority justices in the Adalah Matter – President Barak and Justice D. Dorner.
According to Justice D. Dorner's approach, the essence of the provision in Section 82 is the determination of the status of the Arabic language as an official language of the State of Israel and the specification in the section is not an exhaustive list. Justice Dorner reaches this conclusion by interpreting Section 82 with reference to the historical background.
There can be no dispute that the intensity of the positive facet of the right deriving from the Arabic language's status as an official language and by virtue of which an individual has a claim against the authority, changes in accordance with the objective and importance of the publication. For this matter, the right of the Arab minority "to live its life in the State of Israel in its own language" and to "only know Arabic" (as spoken by Justice D. Dorner), imposes upon the authority a duty to make the information and its relevant publications accessible to the group to which the members of the Arab population belong. Otherwise, what would remain from the duty of the "authorities to grant the Arab minority the possibility of living its life in the State of Israel in its own language" other than fine words devoid of content? It follows, that in the case at hand, based on the interpretative approach adopted by Justice D. Dorner, there was a duty to also publish the invitation in Arabic, by virtue of the duty in Section 82 of the Palestine Order in Council.
In Re Adalah, President A. Barak was of the opinion that Section 82 does not include the duty to include Arabic writing on municipal signs, so he turned to the section appearing in the Municipalities Ordinance, empowering and authorizing the local authorities to post municipal signs. According to this approach, in the case at hand, our interpretation should be of the duty pursuant to Section 116(d) of the Water Law. This section imposes upon the minister a mandatory power and authority, instructing him to grant an opportunity to voice arguments, but it does not determine the terms and conditions regarding the manner of exercising this power and authority. In this situation, the exercise of the power and authority (the discretion) is limited by the special purposes that underlie it and by its general purposes, and the balance between them (a balance between the purposes of protecting an individual's right to his language and ensuring equality, including making the authority's services accessible to a language minority group, on the one hand, and the purpose of the efficiency of administrative authority's actions, on the other hand). Such a balance, in accordance with the analytical course outlined by President A. Barak in Re Adalah, leads to the conclusion that there is an obligation to publish the invitation to voice arguments also in Arabic.
Hence, the decision not to publish the invitation in Arabic and via a platform to which the Arab public is exposed, is unreasonable, based upon the three approaches mentioned above. It was clarified that it should not be implied that these approaches are mutually exclusive. Be the preferred approach of the interpreter as it may, the conclusion that emerges from the entire context is that the decision to only publish the invitation to voice arguments in Hebrew and in the Hebrew press is not a reasonable one, and, at the very least, it is a decision that was made in violation of a statutory obligation, all as per the interpretational approach applied.
However, in light of the unique circumstances of the case - in light of the fact that the Appellants' arguments, even had they been presented before the Minister of Infrastructures, would probably not have changed the Regulations' wording that became binding; in light of the manner in which the Appellants chose to attack the violation of the obligation to conduct a hearing in their matter – by means of an indirect attack; in light of the extensive damage to the public interest and the public funds which would be caused by invalidating the Regulations; and in light of the associated damage of the cancellation of the Appellants' debt – the Court reached the conclusion, based on the relative voidness doctrine, that despite the flaw of refraining from publishing the invitation in Arabic and in the Arabic press, it is inappropriate to invalidate the Water Regulations or the notices of debt that were sent by virtue thereof, and the Court's order that that when the water extraction levies are updated, it shall be mandatory to also publish the invitation to voice arguments in Arabic (this obligation is currently imposed on the Water Council pursuant to Section 116(d) of the Water Law), is sufficient. Now, therefore, subject to that stated, the appeal is denied.
Keywords
Administrative Law -- Judicial review, Constitutional Law -- Conscientious Objection, Constitutional Law -- Government, Constitutional Law -- Legislation, Economy, Water Rights
Recommended Citation
Joubran, Salim; Hendel, Neal; and Rubinstein, Elyakim, "Wael & Co. v. National Water and Sewage Authority" (2013). Translated Opinions. 393.
https://larc.cardozo.yu.edu/iscp-opinions/393
