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Reflections on the Protection of the Rights of the Individual: Form and Substance

Published online by Cambridge University Press:  12 February 2016

Shimon Shetreet
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In the absence of a written constitution in Israel, the protection of fundamental rights of the citizens depends upon a variety of legal sources. In the course of resolving questions concerning individual rights, the courts rely upon statutory law as well as basic principles of democratic government and concepts of individual freedoms as expressed in the Israel Declaration of Independence and in international covenants.

In the Draft Basic Law: Rights of the Man and the Citizen (hereinafter referred to as the Draft Basic Law), which has passed the first reading in the Knesset, the fundamental rights will be embodied into a written Basic Law. This Basic Law together with the Basic Laws already enacted and those in preparation will eventually become the Constitution of Israel. The chapter by chapter legislative policy for enacting Israel's Constitution was laid down in 1950 by the Knesset in what has become known as the Harari Resolution. In the last eight years the drive for legislating Basic Laws, i.e., the chapters of the future Constitution, has gained momentum. It is hoped, therefore, that the day when the State of Israel will have a Constitution is not very far off.

The Draft Basic Law extends its protection over the basic civil rights commonly recognized by civilized nations and their constitutions and by international covenants. But social rights, except for the freedom of workers to “associate in labour unions for the protection and furtherance of their economic and social interests”, which is explicitly provided, are not dealt with in the Draft Basic Law.

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Israel Law Review , Volume 12 , Issue 1 , January 1977 , pp. 32 - 67
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1977

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References

1 See generally, Shapira, , “The Status of Fundamental Individual Rights in the Absence of a Written Constitution” (1974) 9 Is. L.R. 497Google Scholar; Shetreet, , “Some Reflections on Freedom of Conscience and Religion in Israel” in (1974) 4 Israel Yearbook on Human Rights 194.Google Scholar

2 (1973) H.H. no. 1085, p. 448.

3 (1973) 68 Divrei HaKnesset 4437 ff. The Bill has been redrafted by the Sub-Committee on Basic Laws which has been considering it for over two years.

4 Basic Law: The Knesset (1958) 12 L.S.I. 85; Basic Law: Israel Lands (1960) 14 L.S.I. 48; Basic Law: The President of the State (1964) 18 L.S.L 177; Basic Law: The Government (1968) 22 L.S.I. 257; Basic Law: The Finances of the State (1975) S.H. no. 777, p. 206; Basic Law: The Army (1975) S.H. no. 806, p. 154 (English translations not yet available).

5 The Draft Basic Law: Legislation; the Draft Basic Law: The Courts; the Draft Basic Law: The State.

6 “The First Knesset charges the Constitutional, Legislative and Judicial Committee with the duty to prepare a draft Constitution for the State. The Constitution shall be composed of separate chapters in such a manner that each shall in itself constitute a basic law. Each chapter shall be submitted to the Knesset as the Committee completes its work, and all the chapters together shall form the State Constitution”. 5 Divrei HaKnesset 1717, 1743. See Rubinstein, , Constitutional Law of Israel (1974, in Hebrew) 271–72.Google Scholar

7 The first version of the Draft contained 20 provisions; the revised version contains 25 provisions. The references are to the revised version. Personal freedom (secs. 1, 4); no restriction upon a man except under the law (sec. 1); equality before the law, and in the execution thereof (sec. 2); freedom of movement (secs. 4–5); protection of man against unlawful deportations (secs. 4–5); protection against unlawful search and seizure and of man's privacy (secs. 6–7); freedom of trade (sec. 7); right of contract and property (secs. 8–9); freedom of speech (secs. 10–11); freedom of assembly and association (secs. 12–13); freedom of worship (sec. 14); right of access to courts (sec. 15); presumption of innocence (sec. 16); the rule against self-incrimination (sec. 17); the rule against post factum criminal laws except in case of genocide or war crimes (sec. 18); due process of law: a statutory power must be exercised in a fair process, without bias and without irrelevant considerations (sec. 20). For comments on the Draft Basic Law, see Klein, , “The Draft Basic Law on Civil Rights: The Formal Constitutional Aspects” (1974) 5 Mishpatim 696Google Scholar; see also Livneh, “Basic Law: Human Rights—Bill” ibid., at 703; Lahav, and Kretchmer, , “A Bill of Rights for Israel: A Step Forward?” (1976) 7 Mishpatim 154.Google Scholar

8 Sec. 13 (a) of the Draft Basic Law, which is only one of many social rights commonly recognized. See “The International Covenant on Economic, Social and Cultural Rights, 1966” (1967) 61 Am. J.I.L. 861.

9 Kremer v. Jerusalem Municipality (1971) (I) 25 P.D. 767 at 782.

10 See e.g., Hausner, G., “The Rights of the Individual in Court” (1974) 9 Is. L.R. 477.Google Scholar

11 Miron v. Minister of Labour (1970) (I) 24 P.D. 340. It is perhaps appropriate to emphasize that the role of the Courts in the protection of civil rights is most significant whether the Constitution is written or unwritten; and see infra.

12 See e.g., Bejerano et al. v. Minister of Police et al. (1949) 2 P.D. 79, at 82; Sheib v. Minister of Defence (1951) 5 P.D. 399, at 411–12; Yeridor v. Chairman of the Central Elections Committee (1965) (III) 19 P.D. 365 at 377 (per Cohn J. dissenting); S.Z.M. Ltd. v. Mayor of Jerusalem (1974) (II) 28 P.D. 113 at 117–18. And see Shapira, op. cit., supra n. 1, at 499–500.

13 See the excellent survey of ProfessorKlinghoffer, , “Freedom of Trade and Business Licensing” (1973) 3 lyunei Mishpat 582Google Scholar; and see also the cases cited (preceding note); Shapira, supra n. 1, at 501; Shetreet, , “Freedom of Conscience and Religion” (1972) 3 Mishpatim 473 at 490–91Google Scholar; Shetreet, supra n. 1, at 217–18, and the authorities cited therein.

14 S.Z.M. Ltd. v. Mayor of Jerusalem and Others (1974) (II) 28 P.D. 113 at 117–18. The Court ruled that refusal was invalid and the licence should be granted.

15 See e.g., Kochavi Shemesh v. Company Registrar (1971) (I) 25 P.D. 505, at 523: “When dealing with an authority which involves actual harm to basic rights of a citizen in a free society, we shall not hesitate to rule in favour of the interpretation which minimizes the harm to civil rights since it is presumed that the legislature respects these rights and if it thinks fit to restrict one of them, will do so in express words which leave no shadow of doubt as to its intention.” (per Etzioni J.); see Shetreet, supra n. 1, at 195–6.

16 Thus, dealing with religious liberty the Court said: “The freedom of conscience and freedom of worship is one of the individual's liberties assumed in every enlightened democratic system of government.” Yosifof v. A.G. (1950) 2 P.D. 481, at 486; cf. Peretz v. Kfar Shmaryahu Local Council (1962) 16 P.D. 2101 at 2107; Kol Ha'am v. Minister of Interior (1953) 7 P.D. 871.

17 Peretz (see preceding note) at 2116 (per Sussmann J.) see also e.g., Streit v. Chief Rabbi (1964) (I) 18 P.D. 598, at 912; Israel Films Studio v. Films Censorship Council (1962) 16 P.D. 2407; and see Shetreet, supra n. 1, at 195 and the cases cited therein.

18 American-European Beth El Mission v. Minister of Social Welfare (1967) (II) 21 P.D. 325, at 333. See also Segev v. Safad Rabbinical Court (1967) (II) 21 P.D. 505, at 551; Streit, supra n. 17 at 611.

19 Rogozinsky v. State of Israel (1972) (I) 26 P.D. 129, at 136.

20 Israel Films Studios, supra n. 17; Kol Ha'am, supra n. 16.

21 Kardosh v. Company Registrar (1961) (II) 15 P.D. 1151, was reconsidered and upheld in (1962) 16 P.D. 1209. Company Registrar could not refuse registration of a company on security grounds, even though sec. 14 of the Companies' Ordinance provided that he “may in his absolute discretion either authorize or refuse the incorporation of the company.” Security grounds were held irrelevant to the Companies' Ordinance.

22 See e.g., Ezra v. Minister of Transport (1974) (II) 28 P.D. 729. (Requirement of hearing is not affected by a regulation allowing the administrative authority to make a decision without first hearing the applicant). See also Peloni v. Military Police (1975) (II) 29 P.D. 169; but see Haifa Town Planning and Building Committee v. Wiener (1973) (II) 27 P.D. 661.

23 See e.g., the duty of disclosure, Fitel v. Assessment Committee (1967) (I) 21 P.D. 69; Shapira v. District Committee of the Chamber of Advocates, Jerusalem (1971) (I) 25 P.D. 325; the right of hearing even when the authority exercised administrative functions, Berman v. Minister of Interior (1958) 12 P.D. 1492; an action in breach of the rules of natural justice is null and void, Municipality of Petach Tikva v. Tahan (1969) (II) 23 P.D. 398; the duty to state reasons (which was later embodied into a statute), Ahjij v. Controller of Traffic (1957) 11 P.D. 370; Epstein v. Municipal Council of Givataim (1957) 11 P.D. 1322; the duty to enact subordinate legislation in order to ensure the enforcement of primary legislation, Oppenheimer v. Minister of Interior (1966) (I) 20 P.D. 309, which is the subject of a comment in (1966) 1 Is. L.R. 479; Feranio v. Minister of Health (1972) (I) 26 P.D. 809.

24 Peretz, supra n. 16, acts in the sphere of private law by a local authority in regard to its property, are also subject to judicial review; Polak Ltd. v. Minister of Commerce and Industry (1971) (II) 25 P.D. 3 (the grant of subsidies is subject to judicial review); Alkourdi v. National Labour Court (1972) (II) 26 P.D. 66 (decisions of highest Labour Court is subject to judicial review by High Court of Justice and this Court will intervene in cases of substantial legal mistakes); Troudler v. Election Officers for the Agricultural Committees (1963) 17 P.D. 2503 (judicial review ol quasi-judicial decision on mistake of law even when it is not apparent on the face of the record).

25 The High Court of Justice acting in proceedings in the form once known as prerogative writs, ruled that compensation deriving from the public law (not from law of tort or contracts) should be paid to a company which was awarded a bid to carry out public works project and later the award was cancelled by the Government. See Binui Upituach v. Minister of Defence (1974) (II) 28 P.D. 449, commented upon in the recent book of ProfessorZamir, , Adjudication in Administrative Law (1975, in Hebrew) 193–6Google Scholar; see also Klein, , “New Remedies in the High Court of Justice” (1975) 10 Is. L.R. 582.Google Scholar

26 See the excellent report of ProfessorZamir, , Article 46 of the Order-in-Council and Administrative Procedure (1974, in Hebrew)Google Scholar and id., (1975) 6 Mishpatim 294. See also his critical analysis of judicial decisions in administrative law in Adjudication in Administrative Law and cf. Friedmann, , “Independent Development of Israeli Law” (1975) 10 Is. L.R. at 525–536.Google Scholar

27 Rehovot Packing House v. Minister of Agriculture (1962) 16 P.D. 20, 27. See also Zamir, , “The Law of Public Tenders” (1964) 20 HaPraklit 226, 403Google Scholar; Friedmann, , “Application of the Public Law Duties on Public Bodies Acting in the Private Sphere” (1973) 5 Mishpatim 598.Google Scholar

28 (1957) 11 P.D. 403.

29 The same principle was adopted in England by the House of Lords in Conway v. Rimmer [1968] A.C. 910.

30 Which is prevalent, also, and perhaps much more in the field of private law. See e.g., Zim Lines v. Miziar (1963) 17 P.D. 1323, where the Court invalidated an exemption clause excluding liability of carriers for body injuries of passengers. For general discussion of case law and codification see Tedeschi, and Zemach, , “Codification and Case Law in Israel” in Dainow, J., ed., Judicial Decisions and Doctrines in Mixed Jurisdictions (1974) 272Google Scholar; Gavison, , “The Relationship in Contemporary Legal Systems Between Written and Unwritten Sources of Law” in Feller, S., ed., Israel Reports to the Eighth International Congress of Comparative Law (1970) 36.Google Scholar

31 See discussion infra at text between n. 33 and n. 39.

32 Supra text between n. 16 and n. 18.

33 Risenfeld v. Jacobson (1963) 17 P.D. 1009 at 1026. But personal attitudes and value judgments are bound to influence judicial decisions. This is inevitable since judges are men with individual feelings and opinions. See e.g., Cardozo, , The Nature of the Judicial Process (1922) 13, 167Google Scholar; Frank, J., The Law and the Modern Mind (1949)Google Scholar; Witkon, , “Some Reflections on Judicial Law Making” (1967) 2 Is. L.R. 475Google Scholar; S halit v. Minister of Interior (1969) (II) 23 P.D. 477 at 600 (per Agranat P.), (1971) Special Volume, S.J. at 181 (hereafter referred to as Shalit. Reference is made to the Hebrew text in P.D. and to the English text in the Selected Judgments).

34 The State of Israel v. Ruth Pessler (1962) 16 P.D. 103 at 109 (Cohn J.); Funk-Schlesinger v. Minister of Interior (1963) 17 P.D. 222 at 238 (Silberg J.), at 256 (Sussmann J.); Zinn v. Miziar (1963) 17 P.D. 1329 at 1335 (Landau J.); Shalit at 520 (Landau J.), at 600–601 (Agranat P.).

35 Peretz v. Helmut (1966) (IV) 20 P.D. 337 at 352.

36 Shalit at 532; S.J. at 97.

37 R. v. Commissioner of Police Ex Parte Blackburn (no. 2) (1968) 2 W.L.R. 1204 at 1207.

38 (1962) 16 P.D. 1023, 1027.

39 Thus it has been an established practice to appoint two religious judges to the Supreme Court (beginning with Rabbi Asaf J., later Silberg J., and Kister J. and now Kahn J. and Sherashevski J.). Likewise there is a convention that one judge in the Supreme Court should be a Sephardi.

40 See e.g., Landau, , “Rule and Discretion in the Administration of Justice” (1969) 1 Mishpatim 292 at 304–307.Google Scholar

41 See Shapira, supra n. 1, at 505–8; see also Shapira, , “On the Problem of Judicial Discretion in Borderline Cases” (1970) 2 Mishpatim 57Google Scholar, and Shapira, , “The Supreme Court as Guardian of the Individual's Fundamental Freedoms in Israel—a Fortified Bastion or a Paper Tiger?” (1973) 3 Iyunei Mishpat 625 at 634–5.Google Scholar

42 Shalit at 477; S.J. at 35.

43 In the ethnic sense of the term, not in its citizenship meaning.

44 Even this seemingly narrow approach involved the broader issue of what constituted “good faith”. Cf. Akzin, , “Who is a Jew: A Hard Case” (1970) 5 Is.L.R. 259.CrossRefGoogle Scholar

45 Shalit at 574 (per Agranat P.) and at 521 (per Landau J.); S.J. at 148–149 (per Agranat P.), at 83 (per Landau J.).

46 Shalit at 521; S.J. at 83.

47 Shalit at 605–8; S.J. at 185–191.

48 Shalit at 532; S.J. at 96–7.

49 347 U.S. 483 (1954).

50 In fact some critics did argue that the Supreme Court of the United States went too far in Brown and in similar decisions see, e.g., Bickel, Alexander, The Least Dangerous Branch of the Government (1962) 82, 97, 128, 244–254.Google Scholar Similar objections can be raised with regard to the U.S. Supreme Court's decisions on the unconstitutionality of Abortion Statutes; see Roe v. Bolton 93 S. Ct. 739, 410 U.S. 179 (1973); Roe v. Wade 93 S. Ct. 705, 410 U.S. 113 (1973).

51 Shalit at 534; S.J. at 99–100.

52 Sussmann, , “The Courts and the Legislature” (1971) 3 Mishpatim 213, at 216Google Scholar; cf. Zemach, Y., Political Questions in the Courts (1976) 214.Google Scholar

53 Devlin, Lord, “Judges and Lawmakers” (1976) 39 Mod. L.R. 1.Google Scholar

54 Supra nn. 39–43, particularly the quotation at p. 10a and n. 41. This is generally the view of judges who are normally categorised as advocates of judicial self-restraint, see Y. Zemach, op. cit. supra n. 52 at 219; cf. in particular Frankfurter J.

55 See the excellent essay of Attorney General Levi, Edward H., “Some Aspects of Separation of Powers” (1976) 76 Colum. L. R. 371.CrossRefGoogle Scholar

56 See generally, Shapira, A. E., “Self-Restraint of the Supreme Court and the Preservation of Civil Liberties” (1973) 3 Iyunei Mishpat 640Google Scholar; Shetreet, S., Judges on Trial (1976) 196–200, 320–322.Google Scholar

57 Kol Ha'am v. Minister of Interior (1953) 7 P.D. 165, 871.

58 Ibid., at 166.

59 Ibid., at 871.

60 Shapira, supra n. 56 at 646.

61 Supra text between n. 38 and n. 39.

62 [1942] A.C. 206. For comments see Shetreet, S., “Judges and the Executive in England” (1975) 27 Administrative L. R. 185 at 192.Google Scholar

63 [1942] A.C. 624. See generally Simon, , “Evidence Excluded by Considerations of State Interest” (1955) 15 Camb. L. J. 62CrossRefGoogle Scholar; Clark, , “Administrative Control of Judicial Action: The Authority of Duncan v. Cammell Laird” (1967) 30 Mod. L.R. 489.CrossRefGoogle ScholarDuncan was reversed in Conway v. Rimmer [1968] A.C. 910.

64 E.g., R. v. Halliday [1917] A.C. 260 sustaining defence regulations for administrative detention at the discretion of the executive, was criticised by Harold Laski as “the outcome of a desire upon the part of the judges not to embarrass the action of the executive in time of war”. Laski, H., Parliamentary Government in England (1938) 363.Google Scholar

65 An examination of recent English cases which attracted public attention reveals that judges have been affected by the intense public interest in the case when marking their decisions. See Heaton's Transport (St. Helens) Ltd. v. Transport and General Workers Union [1972] 3 All E.R. 101, where, as one writer wrote, “the Law Lords stretched the definition of legal reality to include the economic chaos which would result from an economic strike”, and see his commentary in Paterson, , “Judges:: Political Elite” (1974) 1 British J. of Law and Society 118, 130.CrossRefGoogle Scholar On Heaton's see also infra text at n. 65 to n. 66. See also R. v. Anderson et al. [1971] 3 W.L.R. 939; R. v. Pauline Jones (1972) 56 Cr. App. R. 212 and the commentary of S. Shetreet, supra n. 56 at 198.

66 Paterson, preceding note at 127.

67 Morris and others v. Crown Office [1970] 2 Q.B. 114, 122. Proceedings in trial courts are also speeded up: see the Nabarro case, reported in (1972) 116 Solicitors J. 473; and see Shetreet, supra n. 56 at 320.

68 E.g., the trial of Dennis Rohan who set fire to the al-Aqsa Mosque on the Temple Mount: State of Israel v. Dennis Rohan (1970) 68 P.M. 344; the trial of Archbishop Capucci who was convicted of collaborating with Palestinian terrorists: The State of Israel v. Archbishop Hilarion Capucci (1975) (2) P.M. 3; the trial and the appeals of Yehoshua Peretz, leader of Ashdod port workers, convicted and sentenced to jail for closing down the port in 1975; the appeal of the State in the case of Jews who were brought to trial before a magistrate for breach of the peace by praying on the Temple Mount and acquitted (1976).

69 10 L.S.I. 103.

70 (1971–2) K.T. 284.

71 It may be noted that in the Bergmann case, (1969) (I) 23 P.D. 693, the court justified certain actions by stressing the urgency of the situation. See id. at 696.

72 (1969) (I) 23 P.D. 693. An English translation of the decision appears in (1969) 4 Is.L.R. 559. Reference is made to both the English and Hebrew versions.

73 Knesset and Local Authorities Elections (5730) Financing, Limitation of Expenses and Audit) (Amendment) Law, 1969 (23 L.S.I. 218).

74 (1958) 12 L.S.I. 85.

75 Bergmann (1969) (I) 23 P.D. 697; (1969) 4 Is.L.R. 562.

76 See (1969) 4 Is.L.R. 559 for commentaries by P. Elman, C. Klein and B. Akzin; Klein, C., “A New Era in Israel's Constitutional Law” (1971) 6 Is.L.R. 376Google Scholar; Boim, L., Party and Election Financing in Israel (Tel Aviv, Miph'al Hashichpul, 1971/1972, in Hebrew) 31–46Google Scholar; Zemach, Y., “The Manner of Creating the Power of Judicial Review” (1975) 29 HaPraklit 515Google Scholar; Nimmer, Melville B., “The Uses of Judicial Review in Israel's Quest for a Constitution” (1970) 70 Colum. L. R. 1217CrossRefGoogle Scholar; Klein, C. “The Constitutive Authority in the State of Israel” (1970) 2 Mishpatim 51Google Scholar; Likhovski, , Israel's Parliament (Oxford U.P., 1971) 73–104.Google Scholar

77 (1969) (I) 23 P.D. 696; (1969) 4 Is.L.R. 560.

78 Abu Hilo v. The Government of Israel (1973) (II) 27 P.D. 169, 181.

79 Bergmann, supra, n. 72 at 696; (1969) 4 Is.L.R. 560, “…when asked what his attitude would be were the court to find that the petition indeed had some foundation, he replied by saying that in such event he would readily be available to the court to express his opinion on the question of justiciability”.

80 Sussmann, , Civil Procedure (4th ed., 1973) 56Google Scholar; cf. Zemach, supra n. 76 at 52.

81 Bergmann v. Minister of Finance (1973) (II) 27 P.D. 785 (hereinafter referred to as the second Bergmann case).

82 (1973) (I) 27 P.D. 794.

83 Id. at 798.

84 Sussmann, supra n. 52 at 217. It should be noted that under Rule 386 of the Rules of Civil Procedure, 1963 an appellate court may rule on the appeal on an argument not raised by the parties. See Sussmann, supra n. 80 at 629. See especially Helka 62 Block 6946 Ltd. v. Monik Zemel (1972) (II) 26 P.D. 226, per Berinson J. at 232; but contra Sussmann J.'s opinion that this may be done only rarely.

85 (1970) (I) 24 P.D. 238.

86 (1970) (I) 24 P.D. 698.

87 (1950) 4 P.D. 319. See also Kinross v. State of Israel (1973) (I) 27 P.D. 238.

88 In Kaniel the Court did not raise the issue of standing either, but the Court said it left open the question of the standing of Kaniel to sue, (but cf. supra n. 71); see id. at 798, quoted supra n. 82.

89 See Akzin, , “Basic Laws and Entrenched Laws in Israel” (1963) 17 HaPraklit 230Google Scholar; Likhovski, , “Can the Knesset Adopt a Constitution which will be the Supreme Law of the Land?” (1969) 4 Is.L.R. 61.Google Scholar

90 Supra n. 72 at 700; (1969) 4 Is.L.R. 564.

91 See P. Elman, supra n. 76 at 567.

92 See supra n. 72 at 697; (1969) 4 Is.L.R. 562–3.

93 See supra text at n. 16 to n. 19.

94 Thus Berinson, J. said in Bassul v. Minister of Interior (1965) (I) 19 P.D. 337 at 349Google Scholar; “I doubt whether we have at all the power to deny the validity of an Act; or any part thereof, duly passed by the Knesset even if we are sure that it contains an error of fact or is based on faulty premises”. And in another case the Court said that “no one can consider the possibility of invalidating an Act of the Knesset duly passed on this or other ground”, Azuz v. Azuz (1963) 17 P.D. 2541 at 2547.

95 5 U.S. (1 Cranch) 137 (1803).

96 (1975) H.H. no. 1221, p. 133.

97 Sec. 4(c) requiring any statute amending a Basic Law to carry an explicit instruction to that effect, overrules the holding of Kaniel that a Basic Law could be amended implicitly. See Kaniel, (1973) (I) 27 P.D. at 796. It adopts the view of Professor Klein (see Klein, , “The Constitutive Authority in the State of Israel” (1970) 2 Mishpatim 51Google Scholar) that since Basic Laws are enacted by a supreme power (using “original constitutive powers”) any amendment to them must be done explicitly by the Knesset (using its “derived constitutive powers”) and not implicitly in a later statute. See also Klein, , “A Special Majority and an Implied Amendment” (1974) 28 HaPraklit 563.Google Scholar But from the legislative debate on the Draft Basic Law: Legislation, it appears that this view will be rejected and the version which allows for a Basic Law to be amended implicitly will be adopted.

98 In Bergmann the Supreme Court said that the Knesset, “could repass the invalidated provisions in spite of their inequality, if the required majority of the Knesset will support them”. See Bergmann, supra n. 72 at 700 and (1969) 4 Is.L.R. 565; in Kaniel relying upon Bergmann the Court said that “if the amendment to the Elections to the Knesset Act implicitly violates the principle of equality in sec. 4 of the Basic Law: The Knesset, as the petitioner argues, then [the answer to that is that] the Basic Law itself granted the Knesset the power to deviate from the principle of equality in the manner set forth by itself in sec. 4 of the Basic Law [by an absolute majority of the Knesset], and by passing the amendment the Knesset followed this procedure”. (1973) (I) 27 P.D. at 796.

99 Zemach, supra n. 76 at 531.

100 (1965) (III) 19 P.D. 365.

101 Id. at 369.

102 Legislation did not deal with this question at all.

103 Yeridor, supra n. 100 at 386.

104 Id. at 398.

105 The approach of Cohn J. emerges also in the case of Kardosh, supra n. 21. But there it did not produce a favourable result for the individual. Cohn J. dissenting in the light of the absolute discretion granted to the authority, sustained its power to refuse registration on security grounds.

106 Sometimes a matter is deliberately left to the Courts for political reasons, e.g., to satisfy a political party participating in the Coalition Government, or when there is no common consensus in the Legislature. In the United States the same method is used by the Legislature when for political reasons, members do not want their votes to be recorded on controversial issues. See for example, Levin, and Amsterdam, , “Legislative Control over Judicial Rule-Making: A Problem in Constitutional Revision” (1958) 107 Penn L. R. 1.CrossRefGoogle Scholar But this issue of excluding from the elections lists of candidates advocating the destruction of the State, is not such a case.

107 (1971) (I) 25 P.D. 767.

108 Id. at 771.

109 Id. at 771.

110 See secs. 20, 23, 34(5) of the State Education Law 1953, 7 L.S.I. 113; secs. 1–3, Public Education Regulations (Transfer) 1959, see Kremer, supra n. 107 at 773 (per Berinson J.) and at 781 (per Kister J.).

111 The Court ruled that the choice may be exercised only once at the initial registration. Thereafter, the transfer is subject to the discretion of the educational authorities. Kremer, supra n. 107 at 773–74. It is very questionable whether the Court would have reached the same result, had the request been to transfer the child from a non-religious to religious school, or vice versa.

112 See sec. 13 of “The International Covenant on Economic, Social and Cultural Rights” (1967) 61 Am. J. I. L. 861. See also Pierce v. Society of Sisters 268 U.S. 510 (1925); and see in the United Kingdom sec. 76 of the Education Act 1944, 7 and 8 Ge. 6 C 31; see also Manual of Guidance Schools No. 1, on Choice of Schools, quoted in Taylor, S. and Saunders, J. B., The New Law of Education (7th ed., 1971) 500–506.Google Scholar See particularly, provision 28 on transfer, id. at 505.

113 Kremer, supra n. 107 at 769.

114 Id. at 783 quoting from Beliti v. Greek Catholic Educational and Medical Associates in Israel (1971) (I) 25 P.D. 578 at 585. This view raises again the question how the judges ascertain the realistic considerations and the social ramifications of their decisions, which has already been discussed, see supra text at n. 38 and text at n. 56 to n. 60.

115 Kremer, supra n. 107 at 783. Etzioni J. was referring to the rise at the time of a radical movement provocatively called the Israeli Black Panthers. The movement protested against social and economic inferiority of Sephardi Jews in Israel and was involved in a series of violent clashes with the police (in the course of demonstrations called for by the movement). Etzioni, J. also mentioned the serious riots which took place in 1959 in the Wadi Salib quarter in Haifa involving underprivileged inhabitants of a slum area, all of whom were Sephardi Jews. Etzioni J. quoted at length from a report of a committee headed by him which reported on the Wadi Salib riots.

116 See recently Regev v. Minister of Education (1975) (II) 29 P.D. 792.

117 (1975) (II) 29 P.D. 804.

118 See e.g., supra section on Rule of Law up to n. 12.

119 See Oved v. Chief of Staff (1973) (IV) 27 P.D. 169; Suleiman Abu Hilo v. The Government of Israel (1973) (II) 27 P.D. 171; Marar v. Minister of Defence (1971) (I) 25 P.D. 139. See also Abu Ghosh v. Varbin, The Military Commander in Jerusalem Corridor (1953) 7 P.D. 741; and see Geva, , “On the Proper Balance Between the Security of the State and Civil and Human Rights” (1974) 5 Mishpatim 685Google Scholar; Rubinstein, , Constitutional Law of Israel (2nd ed., 1974, in Hebrew) 209Google Scholar, and the authorities cited therein; Zemach, , “The Non-Justiciability of Military Measures” (1974) 9 Is. L. R. 128.Google Scholar

120 See Alkhouri v. Chief of Staff (1950) 4 P.D. 34 (administrative detention order set aside, because Chief of Staff did not himself instruct where detainee should be held in custody); Alkharboteli v. Minister of Defence (1949) 2 P.D. 5 (administrative detention order invalid because advisory committee to review the orders was not constituted as required); and see also Kol Ha'am, supra n. 16; Asalan v. Military Governor for the Galilee (no. 2) (1955) 9 P.D. 689.

121 See supra text at n. 58 to n. 60.

122 See Dershowitz, , “Preventative Detention of Citizens During National Emergency—A Comparison Between Israel and the United States” (1971) 1 Israel Yearbook on Human Rights 296Google Scholar; and the other papers presented at the Symposium, id. at 191–333. And see the English cases of Liversidge v. Anderson (1942) A.C. 206; see supra, text at n. 62 ff; Scarman, , English Law—The New Dimensions (1974) 14–15.Google Scholar The discussion of the stringency of national security legislation is beyond the scope of this work, but on this too Israel is only doing what countries in a similar situation have done, see e.g., the stringent British emergency measures to combat I.R.A., and the Canadian measures to face the activities of separatist movements in Quebec.

123 See the cases reported in (1974) (II) 28 P.D. 785–805.

124 The Sultan case, ibid., at 794; Masrawa case, ibid., at 896, contra dissenting opinion of Kahn J. in both cases, ibid., at 800, 809 respectively.

125 (1957) 11 L.S.I. 186.

126 Livneh v. Prison Authority (1974) (II) 28 P.D. at 789. Students of American law will immediately notice that this question, which in Israel is put in the framework of construction of a criminal statute, would fall in the United States in the category of free speech cases and would raise the issue of over-breadth and vagueness. See Brandenburg v. Ohio 395 U.S. 444 (1969); United States v. Robel 389 U.S. 258 (1967); Apotheker v. United States 378 U.S. 500 (1964); Keyshan v. Board of Regents 385 U.S. 589 (1967).

127 Clark v. Minister of Interior (1973) (I) 27 P.D. 113 (Minister's discretion under the Entry to Israel Act 1952 is absolute, and as long as he does not give reasons for his different treatment of foreign visitors, who apply for permanent residence, the High Court of Justice wil not review his decisions, unless it is proved that he has acted in bad faith, or as a result of corruption or fraud; Oda v. Minister of Interior (1974) (I) 28 P.D. 13. (In matters of immigration to the country, preferential treatment by the Minister of people who have connections with holders of higher offices in the Government, was not enough to move the Court to order that the Minister act similarly in the case of the petitioner whose case was similar.)

128 See, e.g., Morris Benin v. Minister of Finance (1971) (II) 25 P.D. 466 at 469 (per Kahn J.); at 470–71 (per Landau J.).

129 See Klinghoffer, , “Linking Expropriated Land to its Designated Use” (1972) 2 Iyunei Mishpat 784Google Scholar, commenting on Geolat Hakrach v. Minister of Finance (1971) (II) 25 P.D. 466; and see also Spolinski v. Minister of Finance (1970) (II) 24 P.D. 397.

130 See Klinghoffer, , Administrative Law (1957, in Hebrew) 145Google Scholar; see also Klinghoffer, supra n. 129 at 875; and see Avivim v. Minister of Finance (1970) (II) 24 P.D. 397, at 405 per Landau J., dissenting. In the area of fair and timely compensation for expropriated land the Court can extend greater assistance to the land owners. Kamar, , “Compensation for Expropriated Land” (1974) 29 HaPraklit 264, 396.Google Scholar

131 See Commissioner for Public Complaints, Report No. 2, (1973) 29–39.

132 Yalkut HaPirsumim 5735, No. 2158, p. 232 (24 Oct. 1975).

133 See supra text at n. 19–26 and notes.

134 See Livneh v. Prison Authority, supra n. 126 at 686 (Right of prisoner to read Marxist books without restriction); see also the series of cases dealing with members of subversive organizations which were mentioned supra text at n. 117 to n. 118, text and footnotes. See Hevrat Sirtei Noah Ltd. v. Films Censorship Board (1976) (I) 30 P.D. 757.

135 (1974) (II) 28 P.D. 620.

136 Id., at 634.

137 (1974) (II) 28 P.D. 692; for critical comment on Yitzhaki see Lahav, P., “The Right to Know, Freedom to Publish and Official Secrets” (1976) 6 Mishpatim 562.Google Scholar

138 See (1974) (II) 28 P.D. at 697–698.

139 See e.g., Landau v. Minister of Agriculture et al. (1692) 16 P.D. 2540; Lehem Hai v. Minister of Commerce and Industry (1961) 15 P.D. 197; Savitzki v. Minister of Finance (1965) (II) 19 P.D. 369.

140 Oniot Mechal Omassa v. Minister of Finance (1957) 11 P.D. 1490; Bickel v. Minister of Agriculture (1974) (II) 28 P.D. 827; Electra Ltd. v. Minister of Commerce and Industry (1968) (II) 22 P.D. 552.

141 S.Z.M., supra n. 14; Retef Aspakat Mazon v. Minister of Commerce and Industry (1963) 17 P.D. 2730; and other cases involving the administrative orders which purported to restrict the raising and sale of pigs, reported in Rubinstein, , Constitutional Law in Israel (2nd ed., 1974, in Hebrew) 151–153Google Scholar; Rubinstein, , “Law and Religion in Israel” (1967) 2 Is.L.R. 380 at 411–412.Google Scholar On political considerations see Vanouno v. Ministry of Transport (1967) (II) 21 P.D. 710; Rotenstein v. Local Municipal Council (1956) 10 P.D. 1205.

142 Supra text at n. 42 ff.

143 See Bela Isaac (Skik) v Minister of the Interior (1971) (I) 25 P.D. 544 (Cohn J. found for the petitioner; Kister J. and Landau J. found against); Bela Isaac (Shik) v. Minister of the Interior (No. 2) (1972) (II) 26 P.D. 33 (Sussmann J. for; Kahn and Agranat JJ. against), Zevulun v. Minister of the Interior (1966) (IV) 20 P.D. 645 (Witkon, Berinson JJ. for; Halevi, Kister, Landau JJ. against).

144 Funk-Schlesinger v. Minister of the Interior (1963) 17 P.D. 231 (Sussmann, Witkon, Berinson and Mani JJ. for, Silberg J. against); Gurfinkel v. Minister of the Interior (1963) 17 P.D. 2054 (Witkon and Mani JJ. for, Kister, Landau and Berinson JJ. against—Berinson later expressed regret for his decision and changed it in Batia Kedar, infra; Segev v. The Rabbinical Court (1967) (II) 21 P.D. 505 (Sussmann J. for, Silberg, Kister, Agranat and Etzioni JJ. against); Rodnitsky v. The Rabbinical Court of Appeal (1970) (I) 24 P.D. 708 (Sussmann, Witkon, Landau and Berinson JJ. for, Kister J. against); Batia Kedar and Shmuel Cohen v. The Rabbinical Court (1972) (I) 26 P.D. 609 (Sussmann and Berinson JJ. for, Kahn J. against).

145 Supra, text at n. 42 ff.

146 (1962) (IV) 16 P.D. 2428. (Cohn J. for the petitioner, Landau and Silberg JJ. against).

147 (1968) (II) 22 P.D. 347. This was a criminal appeal before the Supreme Court, and thus was not heard by the High Court of Justice, as were most of the other cases.

148 (1973) (I) 27 P.D. 10. This case was a civil appeal.

149 18 L.S.I. 51.

150 (1973) (I) 27 P.D. 17.

151 (1971) (II) 25 P.D. 821.

152 Id., at 840.

153 (1975) (I) 29 P.D. 505.

154 (1975) (I) 29 P.D. 449.

155 See also Bilt v. Rav Shlomo Goren (1975) (I) 29 P.D. 98; Tepper v. State of Israel (1974) (II) 28 P.D. 7; P'lonit v. The Rabbinical Court (1975) (II) 29 P.D. 433.

156 For behavioural studies of judges and a model for measuring conservatism and liberalism of supreme court judges in several countries see G. Schubert and B. J. Danelski, Comparative Judicial Behaviour (O.U.P., 1969). See in particular the studies on Canada (which bear more relevance to Israel) D. E. Fouts, “Policy Making in the Supreme Court of Canada, 1950–1960” at 257 and F. R. Pack, “A Scalogram Analysis of the Supreme Court of Canada 1958–1967” at 293.