1 New York Times v. Sullivan 376 U.S. 254 (1964).

2 Obviously, the two questions — status and content — are not unconnected. There are matters which from the point of view of substantive content are controversial, though this controversy has, as yet, taken no clear normative form. Formulating a constitution requires specific attention to various problems, particularly where these are of the kind without which it is difficult to imagine a constitution, such as a commitment to equality within the scope of a bill of rights. The argument as to the extent to which the Jewish character of the State, for example, can justify departures from what are usually regarded as manifestations of equality is a substantive argument, which is of particular importance in the context of the dispute over the adoption of a constitution.

3 Gavison, R., “The Controversy over Israel's Bill of Rights” (1985) 15 Israel Yearbook of Human Rights 113Google Scholar.

4 I agree with Shetreet that one cannot learn from England about our system for various reasons, inter alia, the differing traditions of England and Israel. It should also be taken into account that in in the field of human rights in England, the European Convention and the case law of the European Community Court are of considerable practical significance, and these act to a certain extent as a constitution.

5 There may be a certain problem in expecting a document to fulfil an educational or public role if it does not have the status of law. The problem is particularly acute if there are numerous statutes which are inconsistent with such a document. This is not the situation here, however, and the Declaration of Independence does have a unique solemnity and had the unanimous support of all the leaders of the Jewish community at the time of the establishment of the State.

6 Today, one of the great concerns of those who propose constitutions is what kind of solution should be adopted regarding equality between Jews and non-Jews in Israel; this concern is expressed at both ends of the political spectrum. Cf. the almost lone concern with this question on the part of Eri Jabotinsky of the Herut party at the time of the debate on the constitution in 1950. Gavison, supra n. 3. See also debate in the Knesset on the occasion of the adoption of the formula “State of the Jewish People” in sec. 7A of the Basic Law: The Knesset (S.H. (1985) no. 1155, p. 196).

7 Thus, for example, the U.S. Constitution consists of seven articles, of which the first three deal respectively with the establishment of the legislative, executive and judicial branches of government and the determination of their powers.

8 This illustrates well the point that it is often not sufficient to learn about the legal arrangements and the formal constraints, and that in constitutional matters in particular, one cannot comprehend the reality without a knowledge of the non-formal limitations and possibilities. These determine the way the system operates in practice, and the way it is reasonable to expect it to operate in the future, even if certain statutory amendments are passed which do not alter the non-formal characteristics of the system.

9 One should bear in mind, of course, that the pattern of relation between the Knesset and the government is partially due not to the special characteristics of the set-up in Israel, but is rather an almost inevitable result of a system whereby the government is chosen in accordance with the strength of the factions in parliament. This is basically the situation in England (where some of the problems we face are solved by the system of constituency elections which ensures a relatively small number of large blocs in Parliament), as opposed to separate elections for the legislature and the executive as practised, for example, in the United States. Each system has its advantages and drawbacks, and we must re-examine which of them, or what combination of both, we wish to institute in Israel.

10 38 L.S.I. 101. Sec. 10 provides: “(a) The salaries of judges and other payments to be made to them during or after their period of tenure or to their survivors after their death shall be prescribed by Law or by a decision of the Knesset or of a Knesset committee empowered by the Knesset in that behalf. (b) No decision shall be passed reducing the salaries of judges only”.

11 Thus, for example, Shetreet enumerates five basic requirements for protecting judicial independence: a prohibition on the establishment of ad hoc tribunals, non-frustration of particular judgments on the part of the executive or the legislature, a conception of the judge as not being part of the public administration system, noninterference with the judges' conditions of pay, and rules with regard to the composition of benches. Shetreet himself says that the last requirement is usual only in continental systems. However, in those systems the judge is definitely conceived of as a part of the public administration. And the prohibition on interference with working conditions and other aspects of personal independence apply, at least legally, to a very small number of the judges in England and in the United States. The methods of appointing judges also vary considerably, and the debate as to the proper methods of appointment or selection, and the relationship between them and the place of the judiciary in government, is only just beginning. See, e.g., symposium on selection, appointment and accountability of judges in (1988) 61 S. Cal. L.R. 1555–2074Google Scholar.

12 Shetreet finds fault with the fact that the Minister of Justice has the power to determine the opening hours of the courts. He does not want judges' vacations to be controlled by the executive. Why? Is it so obviously necessary for judicial independence that judges be able to determine themselves when to sit and when and for how long to go on vacation? Perhaps precisely in these matters, an element of responsibility is required, so that judges should not misuse their independence. Of course a situation where such arrangements are applied in a discriminatory manner should be avoided, but reasonable application of general arrangements regarding the judiciary by an extraneous body would seem to be at least acceptable.

13 Abu Seniora v. State of Israel (not published).

14 Abu Hatzeira M.K. v. State of Israel (1981) 35(iv) P.D. 699.

15 State of Israel v. Livni and 14 others (1990) (iii) P.M. 330.

16 Aloni et al. v. Ministry of Justice (1987) 41(ii) P.D. 1.

17 Compare, e.g., the critical approach of Landau, J., in “On Justiciability and Reasonableness in Administrative Law” (1989) 14 Iyunei Mishpat 5Google Scholar, with Prof. Zamir's more moderate approach at this symposium.

18 And see below, in the discussion on the place of security conditions in the Court's decisions.

19 Shalit v. Minister of Interior (1969) 23(ii) P.D. 477; S.J. Special volume 35.

20 In our system, the rights of suspects and of accused persons do not, for the most part, have constitutional status, as they do in the United States, for example. One should mention here, however, the latest developments concerning the right of a party list to participate in elections to the Knesset. It ought to be stated that before the beginning of the Intifada, the main points on which Israel was subject to world criticism in terms of the protection of human rights were the restrictions on the freedom to marry and the general obligation of conscription into the army.

21 Dweikat v. Government of Israel (1980) 34(i) P.D. 1.

22 Nevertheless, I do not believe that the Supreme Court in the early years confined itself to invalidating decisions which it was very easy to revalidate by serving an order or publishing a notice as to a closed area. There were a number of decisions of the Court which definitely upset the government, and which were not capable of being amended so quickly. One of them is the decision in the Sheib case, (Sheib v. Ministery of Defence (1951) 5 P.D. 399; 1 S.J. 1) which Shetreet himself mentions, and the second — the decision in the matter of the inhabitants of Rubasiyeh, which required the authorities to allow some of them to return to their village. The authorities frustrated the decision by blowing up the village: see Rubinstein, A., Constitutional Law, (Tel Aviv, Schocken, 1974) 163, nn. 32-33Google Scholar. However, it is true that in many cases the Court made do with the statement that it would not intervene in security considerations, without attempting to lay down guidelines for their application.

23 Regarding the Territories, the only two decisions where judgment was given against the authorities were in the Elon Moreh case, (supra n. 21) and the Samara case (Samara v. Commander of Judea and Samaria (1980) 34(iv) P.D. 1). The latter involved a single individual, and its facts were quite unique (an entry permit granted in the past to the petitioner, whose nuclear family resided in the Territories, was cancelled without any reason save for general policy considerations). The only case which really caused vexation and had an effect was that of Elon Moreh. There the special feature was not that the judges were prepared to examine unspecified “security considerations”, but that there was a conjunction of at least three unique facts: a real dispute between security experts of the first order, cogent evidence showing that selection of the site was not based on security considerations, and the unequivocal stand of the settlers themselves, who were party to the proceedings, that the settlement was permanent and not merely intended to serve security needs. It is difficult to see how, in such a situation, the decision could have been different. An interesting decision in this respect is the Kawasmeh case (Kawasmeh et al. v. Minister of Defence (1981) 35(i) P.D. 617). Against the minority opinion of Justice Haim Cohn, who would have denied altogether the power of deportation, the majority preserved that power and the principle of non-intervention, despite the fact that its recommendation to the government indicated it was not satisfied with the security considerations on their merits. See also Association for Civil Rights in Israel v. Commander of the Central Region (1989) 43(ii) P.D. 529. In Israel, alongside numerous decisions where there was no intervention, there is a prominent, notable exception where there was a readiness to intervene in the security considerations of the military censorship against the Hebrew press: Schnitzer and others v. Chief Military Censor (1988) 42(iv) P.D. 617.

24 And this is perhaps the difference which explains Schnitzer, (supra n. 23) on the one hand, and Affu et al. v. Minister of Defence (1988) 42(ii) P.D. 4: the court felt deportation was generated by a real emergency, but that such a situation did not prevail in the censor's demand not to publish the name of the retiring head of the Mossad in the Hebrew press in Israel.

25 This does not mean that all decisions of the Court are the inevitable outcome of this trap. Sometimes the Court “volunteers” more than it is required. This is how I view, for example, the decision of the majority in the Al-Affu case, supra n. 24, where it was held that Article 49 of the Fourth Geneva Convention does not prohibit deportations of protected individuals, but applies only to mass deportations. This holding is, in my opinion, incorrect. It was not necessary in order to decide the case. The Court could have approved the particular deportation without taking a stand on this issue. Such an interpretation accords the sanction of international law to deportations of individuals from their country by occupying forces, which is to my mind an unwarranted infringement of their human rights and exposes the Court, in my view, to severe — and unnecessary —criticism from the international legal community. But such cases are rare. Most decisions where security considerations are pleaded are different.

26 It should be recalled that the U.S. Supreme Court declared valid the administrative detention of tens of thousands of citizens of Japanese descent in detention camps in the centre of the country owing to security considerations during the Second World War: Korematsu v. U.S., 323 U.S. 214 (1944). The accepted view today is that this was a serious and unwarranted infringement of the detainees' rights, and that there was a failure — regrettable even if understandable — of the system of judicial review which is supposed to protect human rights.