Case Number

HCJ 3132/15

Date Decided

4-13-2016

Document Type

Full Opinion

Abstract

The petition challenged the authority of the Prime Minister to serve simultaneously as a minister responsible for a ministry under Basic Law: The Government. The Petitioners argued that the Basic Law does not empower the Prime Minister to serve simultaneously as a minister, due to the omission of sec. 33(d), which was part of the prior Basic Law: The Government of 1992, from the current Basic Law established in 2001 (hereinafter: the current Basic Law). The said provision expressly stated that “The Prime Minister may also function as a Minister appointed over an office”. The Petitioner also pointed to sec. 24 of the current Basic Law, which provides for situations in which the Prime Minister may temporarily serve as an acting minister.

The High Court of Justice (President Naor, with Deputy President Rubinstein and Justices Joubran and Hendel concurring, and Justice Melcer dissenting) denied the Petition, holding:

Per President Naor: Purposive interpretation of the current Basic Law shows that the Prime Minister has the authority to serve simultaneously as a minister. The current Basic Law is silent on the issue of the Prime Minister’s authority to serve as a minister responsible for a ministry. The Basic Law’s silence does not constitute a negative constitutional arrangement that denies the Prime Minister authority for parallel service, but rather constitutes a positive constitutional implication. The silence of the current Basic Law is not intended to deny the Prime Minister authority to serve simultaneously as a minister. This interpretive conclusion is required by the purposes grounding the current Basic Law.

The Knesset, as a constituent authority, cannot be ascribed the desire to prevent the Prime Minister from serving as a minister. The practice of the Prime Minister appointing himself as a minister has been adopted since the earliest days of the State. It was invoked even after the Basic Law of 1992 entered into force, and even after its repeal and the entry into force of the current Basic Law. The language of the current Basic Law also provides no support for the Petitioner’s approach. The arrangement under sec. 24 of the current Basic Law, which concerns the temporary appointment of an acting minister, does not indicate an intention to deny the Prime Minister authority to appoint himself as a minister in an additional ministry, nor does it indicate any material change in the accepted practice. The provision in regard to serving as a temporary acting minister was also included in the prior Basic Law. It treats of a focused, specific aspect that does not affect the issue of a permanent appointment of the Prime Minister as a minister. Moreover, the full range of the Prime Minister’s authority should be examined from a broad perspective, and in a manner that acknowledges the Prime Minister’s authority to make a permanent appointment, along with other particular powers established by the legislature. In addition, when the Basic Law sought to exclude the Prime Minister from the scope of the term “minister”, it did so expressly.

It is difficult to ascribe to the framers of the current Basic Law an intention to create a negative arrangement in regard to the authority of the Prime Minister. In any case, in interpreting Basic Laws, it is not the subjective purpose, but rather the objective purpose of the current Basic Law that is decisive. That purpose requires an interpretation by which the Prime Minister is authorized to serve simultaneously as a minister responsible for a ministry. One of the objective purposes underlying the current Basic Law: The Government is the Prime Minister’s status as “first among equals” in his government, and as possessing the power to shape his government and assign the roles therein. This is a fundamental concept of our democratic regime, which reflects the constitutional value of the separation of powers.

Justice Melcer (dissenting) was of the opinion that Basic Law: The Government does not grant the Prime Minister authority to serve simultaneously as a minister responsible for a ministry, except in the situation provided for under secs. 24(b) and (c) of Basic Law: The Government.

In conclusion, in light of the holding that the Prime Minister possesses the authority to hold additional ministerial portfolios, the Petition was denied by the Court majority, subject to the condition (per Deputy President Rubinstein, Justices Melcer and Hendel concurring) that the Court issue a “warning of voidance” granting the Government a period of eight months for an in-depth examination of the subject of parallel service.

Keywords

Constitutional Law -- Basic Law: The Government, Constitutional Law -- Government

Download

Share

COinS