Judicial Deference to the Administration in Israel

See, e.g., HCJ 40/70 Becker v. Minister of Defence, 24(1) PD 238 (1970) (standing and justiciability); HCJ 8666/99 Temple Mount Faithful v. Attorney General, 54(1) 1999 (2000) (justiciability).

Note regarding citations of HCJ decisions. Until 2005, some of the decisions were published in Piskei-Din (PD), a series of volumes; when such published, this reference is cited, with an indication of the year the decision was made. Since, all post-2005 decisions are available online only, through the Nevo website, at https://​www.​nevo.​co.​il. the Supreme Court website offers texts of all decisions since 1997 (https://​supreme.​court.​gov.​il/​Pages/​fullsearch.​aspx). A good number of English translations of central decisions are available at (https://​supreme.​court.​gov.​il/​sites/​en/​Pages/​home.​aspx), hereinafter, “Supreme Court website”, at the Israel Law Reports library, at HeinonLine (http://​heinonline.​org/​HOL/​Index?​collection=​ilawr&​set_​as_​cursor=​clear), (“HeinOnline”), and through the Cardozo Law School Versa project (http://​versa.​cardozo.​yu.​edu/​opinions) (“Versa”).

This has happened when the HCJ distinguished between questions of legality and the remedy to be granted, often relying on its self-developed doctrine of “relative unlawfulness”. This has happened in at least three types of cases. First, despite the illegality or unreasonableness of an administrative act, the challenged action had already been completed and irreversible, hence the requested remedy was not available (e.g. HCJ 2683/92 Makkabim v. The Building Commission, 48(1) PD 535 (1994); faulty planning of a new town had already been implemented). Secondly, circumstances generated by the applicant herself may justify denial of remedy (decided e.g. in CrimA 4398/99 Harel v. State of Israel, 54(3) PD 637 (2000); despite illegality of an order suspending the applicant’s driving license the order and continued driving until apprehended, only then raising the argument for illegality of the original suspension order). Or, thirdly, general considerations of justice and the implication on broad social interests may lead to denial of the remedy despite the finding of unlawfulness (e.g. HCJ 2758/01 Movement for Quality of Government v. Jerusalem Municipality, 58(4) PD 289 (2004); contract between municipality and a cultural center found flawed for conflict of interests, but considerations of the public interest justified the denial of a remedy).

For examples see Sect. 4 below.

See but two examples: CE N^o 99536, 7 oct. 1977 (recognizing the margin of appreciation granted to officers under ministry circulars concerned with the marking of examinations, requiring a certain spread of marks); CE N^o 401043, 21 fév. 2018 (the lower court had properly considered the margin of appreciation granted to a planning body). Both available on Legifrance.​gouv.​fr (Conseil d’Etat decisions, search term, “marge d’appréciation”).

The doctrine’s nature was well-explained and well-established in Handyside (1976). Discussing the British laws of obscene publication, the ECtHR found that “it is not possible to find in the domestic law of the Contracting States a uniform conception of morals. The view taken by their respective laws...varies from time to time and from place to place… By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements.” App No 5493/72 Handyside v. the United Kingdom, [1976] ECHR 5, (1976) 1 EHRR 737, (1979) 1 EHRR 737, IHRL 14 (ECHR 1976). On the doctrine see, e.g., Hutchinson (1999); Shany (2005), both focusing on international law only.

Barak (2012), pp. 418–421. On a different use of the term see below, text to note 78.

In Alcalay’s dictionary, three terms are offered, best translated as “subservience (due to respect feelings), surrender (to another’s opinion), obedience.” In the Oxford’s student dictionary, “deference” is translated as “respecting someone’s will, accepting with surrender (someone’s opinion).” Neither are incorrect, but they do not offer a term-of-art. (Alcalay 1990; Oxford Students Dictionary 1993). Web-based dictionaries do not assist here: for example, the online translation site, Morfix, combines “responsivity/accession” with “respect”. See http://​www.​morfix.​co.​il/​deference.

The Academy of the Hebrew Language chose the term Akhrayut le’divuakh (literally, responsibility for reporting). This was not universally adopted—even the Academy admitted that another term (Akhrayutiut) seems to have more popularity. See Maor (2010). Note that Maor’s op-ed was published five years after the Academy’s decision). The newer term, Akhrayutiut, is attributed there to Moshe Negbi, probably the best known legal journalist in Israel. A popular web dictionary, Morfix, offers the newer term as a first option, followed by the 1995 one. See http://​www.​morfix.​co.​il/​accountability. Babylon does worse, with no term of art provided, only a definition that indicates “giving account”.

See Sect. 4.1.2 below.

See Sect. 3.4 below.

This overview draws on Cohn (2010), pp. 17–39; Navot (2007). See also Zamir and Colombo (1995), pp. 3–4; Maoz (1988).

Size within the Green Line is about 18,650 square kilometres; see e.g. http://​www.​sixdaywar.​org/​content/​israel.​asp. The higher figure includes Jewish settlers in the occupied territories (Central Bureau of Statistics 2017).

According to the Israel Central Bureau of Statistics, its population at the end of 2016 was 8,628,600. See Ibid, Table 2.1, retrieved from: http://​www.​cbs.​gov.​il/​reader/​shnaton/​templ_​shnaton_​e.​html?​num_​tab=​st02_​01&​CYear=​2017 Population consists of permanent residents—Israeli citizens and permanent residents without Israeli citizenship (including those who had been out of the country less than one year at the time of the estimate). Until 2008, tourists and temporary residents residing in Israel for more than one year (excluding diplomats and UN personnel) were included in the population estimates. Currently, the population estimates include persons listed in the Population Register only. See explanatory notes to Central Bureau of Statistics (CBS), Statistical Abstract of Israel 2017, No. 68, 2017, at http://​www.​cbs.​gov.​il/​shnaton68/​st_​eng02.​pdf.

CBS, Statistical Abstract of Israel 2017, No. 68, Tables 2.1, 2.2. See Ibid, Tables 2.1 and 2.2, retrieved from http://​www.​cbs.​gov.​il/​reader/​shnaton/​templ_​shnaton_​e.​html?​num_​tab=​st02_​01&​CYear=​2017 and http://​www.​cbs.​gov.​il/​reader/​shnaton/​templ_​shnaton_​e.​html?​num_​tab=​st02_​02&​CYear=​2017.

These include from the peace treaties with Egypt (1979, following the Camp David Accords, 1978) and the Jordan-Israel Peace Treaty (1994), negotiations and several agreements signed with Palestinian and other Arab representatives (the Madrid and Oslo Accords, 1991–1993; the Wye River Memorandum, 1998; the Camp David Summit, 2000; the Beirut Summit, 2000; the “Road Map”, 2002), Israeli withdrawal from some of the occupied territories (The Sinai Peninsula, Egypt, 1982; Unilateral Disengagement Plan, Gaza Strip, 2005).

The full arrangement is detailed in Basic Law: The Government, §§ 7-10.

Palestine Order in Council 1922–1947, Drayton, Laws of Palestine, Rev. Ed. 1933, Vol. III, p. 2569, Articles 51–55, still in force today. The list of recognized religions is provided in Palestine (Amendment) Order in Council, 1939, Palestine Gazette 1939, Supp 2, No 898, p. 459.

Central Bureau of Statistics (CBS) (2017).

For a short overview see https://​www.​knesset.​gov.​il/​lexicon/​eng/​LocalAuthorities​_​eng.​htm.

Palmer (2001).

Article 46, Palestine Order in Council, 1922–1947, above. Abolished in 1980.

Section 11, Law and Administration Ordinance, 5708-1948, 1 LSI 7 (for a short period, until the establishment of Israel’s parliament under national elections, primary legislation was still entitled ‘ordinance’). For analysis and discussion see Yadin (1962).

For information on the first eleven Basic Laws see Israel’s Knesset website, https://​www.​knesset.​gov.​il/​description/​eng/​eng_​mimshal_​yesod2.​htm.

For the texts of the main Basic Laws see https://​www.​knesset.​gov.​il/​description/​eng/​eng_​mimshal_​yesod1.​htm. For an overview see e.g. Navot (2016).

CA (Civil Appeal) 6821/93 United Mizrachi Bank v. Migdal Cooperative Village, 49(5) PD 221 (1995). For a summary and excerpts in English see Omi (1997), p. 764.

See further, Navot (2016), pp. 54–58.

The exact number cited varies according to the commentator’s understanding of what constitutes invalidation. Some lists include three decisions in which the court prohibited re-enaction of statutes that were about to expire: in one such list, the number reaches nineteen, including the decision that invalidated a statute for improper process; see https://​yuvalyoaz.​com/​%D7%A4%D7%A1%D7%A7%D7%99-%D7%93%D7%99%D7%9F-%D7%A9%D7%9C-%D7%91%D7%99%D7%94%D7%9E%D7%A9-%D7%94%D7%A2%D7%9C%D7%99%D7%95%D7%9F-%D7%A9%D7%91%D7%99%D7%98%D7%9C%D7%95-%D7%97%D7%A7%D7%99%D7%A7%D7%94/​ (in Hebrew). For Navot, only a dozen laws had been invalidated (Navot 2016, p. 46). This may be correct if three decisions concerned with three versions of a single law (amended twice) are counted as a single case of invalidation. For the 2017 decision see HCJ 10042/16 Quantinski v. the Knesset (6.8.17). Dicta concerning the possible application of other doctrines, for example the democratic principle, have been made, but to date have not been applied to invalidate statutes.

See http://​energy.​gov.​il/​English/​PublicInfo/​Pages/​GxmsMniLegislati​on.​aspx.

See further Navot (2016), pp. 54–59.

Other series in Reshumot include Kovetz Ha-Amanot (publishing all signed international agreements); Sefer Ha-Taktziv (publication of the annual budget); and Hatza’ot Chok (Bills that have passed the first reading).

Law and Administration Ordinance, Section 9. Replaced by a similar arrangement in the Basic Law: The Government (enacted 1992), Sections 48–49. For the latest extension to 2018 see http://​m.​knesset.​gov.​il/​News/​PressReleases/​pages/​press23.​10.​17ne.​aspx.

For an overview see Cohn (1998).

See, generally, Dotan (1996).

Section 6, Freedom of Information Law, 5759-1998, Sefer Ha-Chukkim 5759, p. 226; see also sections 3–4, Freedom of Information Regulations, 5759-1999, Kovetz Ha-Takkanot 5759, No. 5976, p. 878. For pre-legislation cases see HCJ 5537/91 Efrati v. Ostfeld, 46(3) PD 501; HCJ 4422/92 Ofran v. Israel Lands Administration, 47(3) PD 853.

Palestine Order in Council 1922–1947, Drayton, Laws of Palestine, Rev Ed 1933, Vol. III, p. 2569 (domestic law, a mix of Ottoman law, and British colonial laws, was to be “exercised in conformity with the substance of the common law, and the doctrines of equity in force in England, and with the powers vested in and according to the procedure and practice observed by or before Courts of Justice and Justices of the Peace in England”). Repealed by the Foundations of Law, 5740-1980, Sefer Ha-Chukkim No. 978 (31st July, 1980), p. 163; translation available at <http://​www.​israellawresourc​ecenter.​org/​israellaws/​fulltext/​foundationsoflaw​.​htm>. On this process see Shachar (1995), pp. 6–7.

In its very first years, decades before the adoption of human rights legislation, the High Court of Justice (HCJ) recognized human rights as key elements of the public sphere. This was effected, inter alia, through a judge-made strict rule of legality, under which interference with human rights required explicit statutory authorization and could not rely on a general grant of powers. See HCJ 1/49 Bejerano v. Minister of Police, 2 PD 80 (1949), English translation available through Supreme Court website (administrative action affecting human rights could not rely on a general authorization to act; explicit statutory authorisation that referred to the specific action was required). This requirement is stricter than tests set under international conventions protecting human rights, which generally require that under the clauses “prescribed by law” and “in accordance with law”, authorization to act must be found in an adequately accessible and sufficiently precise/clear and ambiguous legal rule (see, e.g., Sunday Times v. United Kingdom [1979] ECHR 1; the United Nations Siracusa Principles, UN, ECOSOC, UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights, Annex, UN Doc. E/CN.4/1984/4 (1984)).

The court also gradually expanded its review, first, by rejecting concepts of absolute discretion and ruling that all forms of discretion were amenable to review, secondly, by practically eliminating the threshold grounds of standing and justiciability, thirdly, by introducing a strong version of balancing in human rights contexts, and finally, by creating a new purposive theory of interpretation, under which all statutes embraced general constitutional principles as part of their legislative purposes. For the first development see FH 16/61 Registrar of Companies v. Kardosh, 16 IsrSC 1151 (no absolute discretion, even when statute granted seemingly unfettered discretion); for the second, see, e.g., the series of applications for judicial review regarding blanket exemption from military service to ultra-orthodox Jewish men. By 1986, both justiciability (national security grounds) and standing were gradually abandoned by the court: HCJ 40/70 Becker, note 1 above; HCJ 448/81 Ressler v. Minister of Defence, 36(1) PD 81 (1981); FH 2/82 Ressler v. Minister of Defence, 36(1) PD 708 (1982); HCJ 910/86 Ressler, note 3 above. Balancing tests were adopted early on: see, e.g., HCJ 73/53 Kol Ha’am v. Minister of the Interior 7 P.D. 871 (1953); English translation available through Supreme Court website; HCJ 153/83 Levi v. Southern District Police Commander, 38(2) PD 393 (1984) (freedom of speech); HCJ 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) PD 221 (1988) (freedom of religion). Finally, a substantive transformation of unreasonableness and the subsequent development of proportionality explored below are two additional examples of these far-reaching developments in Israel’s administrative law: see Sect. 3.4 below.

For an earlier formulation see HCJ 680/88 Schnitzer v. the Chief Military Censor, 42(4) PD 617 (1989); English translation available through http://​versa.​cardozo.​yu.​edu. For an overview of the ground in Israel see Barak-Erez (2010), pp. 723–769.

See e.g. Dotan (2002); Salzberger (2010), p. 217.

Barak-Erez (2009).

HCJ 3094/93 The Movement for Quality in Government in Israel v. State of Israel, 47(5) PD 404 (English translation available through Supreme Court website) (Deri 1993); HCJ 4267/93 Amitai v. The Prime Minister, 47(5) PD 441 (Pinchasi) (both decided on 8.9.93). See also, Dotan (2002), p. 96, and further below.

Barak-Erez (2009), p. 119. See also Dotan (2002), pp. 94–97.

Barak-Erez (2009), pp. 119–120; Dotan (2002), pp. 94–95.

For both developments see ibid., p. 121.

For the earliest decision that marked this readiness in each of these categories see HCJ 652/81 Sarid v. Knesset Chairman, 36(2) PD 197 (1982) (English translation at HeinOnline); HCJ 539/89 Ganor v. the Attorney General, 44(2) PD 458 (1990); HCJ 5167/00 Weiss v. the Prime Minister, PD 55(2) 455 (2001) (English translation at Supreme Court website). Only the second application of the three was successful. For a critical assessment see Dotan (2002).

Dotan (2002), pp. 96–98.

Ibid. p. 97.

Barak-Erez (2009), pp. 122–125, 130–131.

See Shachar et al. (1996); Shachar (2008) (both in Hebrew); Navot (2013).

HCJ 306/81 Flatto-Sharon v. The Knesset Committee, 34(4) P.D. 118 (1981). Most references below to decisions translated into English rely on the Supreme Court website; translation of decisions still missing in this website and translated elsewhere are linked to the origin, but are not to be considered formal. Two additional decisions that refer to literature only are PPA 4463/94 Golan v. Prisons Service, 50(4) P.D. 136, 161 (1996) (English version available through Supreme Court website); HCJ 2605/05 Academic Center for Law and Business v. Minister of Finance (2009), § 62.

Sebelius is the most popular citation, and if found in 4 decisions: HCJ 5113/12 Shlomi Friedman v. The Knesset (5.8.12); HCJ 2311/11 Sabach v. The Knesset (17.9.14); HCJ 5771/12 Liat Moshe v. The Committee for the Approval of Surrogacy (18.9.14); RCA 7204/06 Ehrlich v. Bartal (22.8.12).

The Citizenship and Entry into Israel Law (Temporary Provision) 5763-2003, recently extended by Government Decision no. 2613, 24 April 2017.

The right to a family was such recognized in HCJ 7052/03 Adalah v. Minister of the Interior (14 May 2006, English version of the latter searchable at https://​supreme.​court.​gov.​il/​sites/​en/​Pages/​fullsearch.​aspx). The court rejected the application by a majority of six against five, citing the term “deference” (to the legislature) twice, without discussing its nature or justification, For analysis of this decision that rejected a challenge to the same law (Adalah) see, e.g. Barak-Erez (2008).

For an informal English translation of the Act see http://​www.​acri.​org.​il/​en/​wp-content/​uploads/​2011/​07/​Boycott-Law-Final-Version-ENG-120711.​pdf.

In Golan, note 61 above, the Supreme Court granted the applicant, a prisoner, the right to publish a personal column in a local paper published in his native town: no deference was in fact practiced, although the term did feature in the decision, in a citation from a book (ibid. § 16, per Justice Mazza). In Izzat n. 2 above, the court couched its decision on precedents, offered dicta that commiserated with the problems faced by all parties, and, while not granting the applicants their wish to be given a permit, issued an order requiring the establishment of a committee that was to consider the grant of exceptions to the blanket refusal policy. Here, too, the same citation from Sebelius was cited (ibid. § H, per Justice Rubinstein).

These are: HCJ 1993/03 The Movement for Quality Government in Israel v. The Prime Minister, 57(6) P.D. 817 (2003), English translation through HeinOnline ([2002–2003] IsrLR 297) (petition concerning, in addition to the same affair, political appointments made by Hanegbi as former Minister of Transport, decided as unethical and tainted by conflict of interest by a Knesset committee); HCJ 8192/04 The Movement for Quality Government in Israel v. The Prime Minister, 59(3) PD 145 (2004) (Petition for removal of Hanegbi, at the time Minister of Internal Affairs in charge of the police, due to criminal investigations against him in the political appointments affair; denied); HCJ 1400/06 The Movement for Quality Government in Israel v. The Prime Minister (6.3.06) (petition for removal of Hanegbi, at the time Minister without portfolio, after a decision to indict was made subject to a hearing; denied); HCJ 8134/11 Asher v. Minister of Finance (29.1.12) (successful application against decision not to appoint the applicant as head of the Israel Tax Authority contrary to the recommendation of the search committee, in the absence of sufficient reasons); HCJ 39015/16 Yossef v. Minister of Finance (10.10.16) (Non-appointment of the applicant as a member of the board of directors of a government-owned corporation, for reasons including a decision to improve gender representation). On this context see generally Sect. 5.4 below.

HCJ 7871/07 Raphael v. Minister of Finance (6.2.11) (unsuccessful challenge of regulations that denied war compensation to corporations). The other two decisions concerned a rejection of an application to appoint a full commission of enquiry, rather than a government-appointed one, to review government action in the Second Lebanon War (HCJ 6728/96 Ometz v. the Prime Minister (30.11.06), and a failed challenge to a decision to make a plea-bargain with Israel’s former president, indicted for sexual offences (HCJ 5669/07 Jane Doe v. the Attorney General (6.2.11)).

Gal’on, id., at § 21 (per Justice Rivlin). See also, in the same vein, HCJ 11225/03 Bishara v. The Attorney General, PD 60(4) 287, 336–337 (2006) (per Justice Rivlin); HCJ 6728/96 Ometz, note 73 above, § 11.

Barak (2012).

Ibid., pp. 396–399.

Of course, the executive may adopt a transnational standard as its base for decision-making or policy, but in this case, too, judicial deference, if expressed, will be directed to the executive decision, rather than to the foreign source.

Ibid, per Justice Berinsohn.

See HCJ 156/75 Dakka v. Ministry of Transport, 30(2) PD 94, 105 (1976) (regulations concerning taxi licensing policy, citing Lazarovich); HCJ 257/89 Hoffman v. Director of the Western Wall, 48(2) PD 265, 347 (1994) (regulation of prayers in the Western Wall in Jerusalem, application rejected by majority); HCJ 5853/07 Emunah v. the Prime Minister (2007) §5 (per Justice Grunis) (concerned with appointment of minister, overview of the issue in obiter; English translation available through Supreme Court website).

Ibid., §10 (per Justice Danziger). For other iterations of this rule see, e.g., HCJ 491/86 Tel-Aviv-Yaffo Municipality v. Interior Ministry, 41(1) PD 757, 774 (1987); HCJ 9232/01 Noach v. the Attorney General, 57(6) PD 212 (2003), §26 (per Justice Grunis, in the minority) (challenge to regulations permitting, under conditions, force-feeding of geese). English translation available through Supreme Court website.

For examples of denied petitions see HCJ 6407/06 Doron v. Finance Minister (23.9.07) (regulations concerning war compensation); HCJ 702/81 Minzer v. The Central Committee of the Israel Bar, 36(2) PD 1 (1982).

See, e.g., Shapira (1974), pp. 498–508; Israeli and Ehrenfeld (1987).

See HCJ 1/81 Shiran v. Israel Broadcasting Authority, 35(3) PD 365, 378 (1981) (petition against the broadcasting of a series on the Holocaust, on the basis that it did not represent the suffering of non-European Jews at the time); HCJ 259/84 M.I.L.N. v. Israel Broadcasting Authority, 38(2) PD 673, 680 (1984) (petition against the broadcasting of a report that showed fraudulent practices of the petitioner); HCJ 399/85 Kahane v. The Governing Body of the Israel Broadcasting Authority, 41(3) PD 255, 300 (1987) (decision to screen and possibly remove, prior to broadcasting, interviews with the petitioner and his party members, to avoid broadcasting extremely seditious calls against the Arab population).

Well-known cases concerned with administrative action (rather than challenges to the constitutionality of statute-law) include HCJ 4541/94 Alice Miller v. Minister of Defence, 49(4) PD 94 (1995) (recognition of the protection of equality under the Basic Law: Human Dignity and Liberty); HCJ 11163/03 Supreme Monitoring Committee for Arab Affairs in Israel v. the Prime Minister, 61(1) PD 1 (2006) (government policy regarding aid to schooling invalidated for almost entire absence of aid to schools in Arab villages); HCJ 2056/04 Beit Sourik Village Council v. the Government of Israel, 58(5) PD 807 (2004) (part of the separation wall between Palestinian and Jewish settlements found disproportionately interfering with Palestinians’ rights). English translations are available through the Supreme Court website. Focus on the constitutional path is the norm, but some discussion of the administrative law path is evident, especially in the first decision.

For the new unreasonableness see text to note 47 above.

For an overview see Barak-Erez (2010), pp. 737–745.

HCJ 3094/93 Deri 1993, note 51 above; HCJ 4267/93 Pinchasi 1993, note 51 above.

See HCJ 2533/97 The Movement for Quality Government in Israel v. Government of Israel, 51(3) PD 46 (1997) (Challenge to continuing service of Tzachi Hanegbi as Minister, due to tainted and possibly unethical involvement in the appointment of a candidate to the position of Attorney General; denied); HCJ 7367/97 The Movement for Quality Government in Israel v. The Attorney General, 52(4) PD 547 (1998) (petition for removal of MK Pinchasi, the politician involved in the Amitai case above, from his position as chairman of Knesset committee, after having been found guilty; denied); HCJ 1993/03, above note 72; HCJ 8192/04, note 72 above; HCJ 1400/06, note 72 above; HCJ 5853/07 Emunah – National Religious Women’s Organization v. Prime Minister (6.12.07), English translation through Supreme Court website (petition against appointment to position of minister of a politician convicted of committing an indecent act; denied); HCJ 3095/15 The Movement for Quality Government in Israel v. The Prime Minister (13.8.15) (petition challenging the appointment of Arieh Deri, returning former politician who had served a three year prison sentence that ended about thirteen years earlier denied) (Deri 2015); HCJ 232/16 The Movement for Quality Government in Israel v. The Prime Minister (8.5.16) (petition challenging the appointment of Arieh Deri as Minister of Interior Affairs; rejected) (Deri 2016). On the latter decision see further below. See also Barak-Erez (2010), pp. 740–741.

For the successful exceptions see HCJ 7542/05 Portman v. Minister of Transport (11.2.07) (challenge to the appointment as head of transport licensing department in Ministry of Transport, appointee was found guilty of bribery in disciplinary proceedings; successful); HCJ 1262/06 The Movement for Quality Government in Israel v. Shas Party (5.3.06) (petition against continuing membership of the representative of Shas in the General Elections Committee who was convicted of breach of trust, by exploiting his position to receive preferential treatment from an officer in the Ministry of the Interior; successful); HCJ 4921/13 OMETZ v. Mayor of Ramat Hasharon (14.10.13) (two mayors indicted for bribery and fraud ordered to be removed from office, although they could stand for the upcoming elections).

Id., §§12, 16, 19. Emphases in the original. Translation by author.

See e.g. HCJ 10541/09 Yuvalim v. The State of Israel (5.1.12) (reform of the water sector); HCJ 1139/07 Bezeq Intl. v. Minister of Communication (5.9.07) (refusal to grant license).

For example, HCJ 5931/04 Mazurski v. Education Ministry, 59(3) PD 769 (2004), §16 (per Justice Mazza) (registration of pupils in special high-level class); HCJ 6407/06 Doron, note 86 above (regulations concerning war compensation); HCJ 9443/16 Movement for Quality Government in Israel v. the Attorney General (15.8.17), §24 (pre Justice Vogelman) (decision not to indict a suspect of collaboration in a political corruption scandal).

HCJ 6269/12 National Parents’ Leadership v. Minister of Education (29.4.15), at §16 (per Justice Vogelman); see also HCJ 6274/11 Delek v. Ministry of Finance (26.11.12), §11 (per President Beinisch) (“this court is not an instance deciding instead of the authority in professional issues within its authority; the court does not examine the wisdom or efficiency of the decision; it will not replace the discretion of the authority with its own discretion; and even it if would have decided otherwise had it been in the shoes of the authority, it shall not change the authority’s decision unless it was faulty on the level of legality that justifies intervention”. Rejecting a challenge to a regulatory decision lowering the ceiling of pricing an element of the retail price of petrol. Citing a large number of precedents). These are but examples of a general rule.

For the decisions regarding the oil refineries see HCJ 4999/03 Movement for Quality Government in Israel v. the Prime Minister (2006); HCJ 6273/06 Movement for Quality Government in Israel v. the Prime Minister (2007) (in both, the court voiced its “discomfort” with some of the government’s steps, but did not interfere). Decisions concerning aviation include HCJ 10089/01 Arkia v. Transport Minister, 58(4) P.D. 207 (2004); HCJ 900/06 El-Al v. Tourism Minister (2006) (non-intervention in two seemingly opposing policies—the first retaining the privileges of El-Al prior to its sale, despite government commitment to open the market to competition, the second applying the earlier policy and creating competition in the field).

Note 100 above.

Section 6(c): “If a person was convicted of an offense and sentenced to prison and if seven years have not yet passed since the day he on which he finished serving his period of punishment, or since the handing down of his sentence - whichever was later - shall not be appointed Minister, unless the Chairman of the Central Election Committee states that the circumstances of the offense do not involve moral turpitude.”

HCJ 333/68 Factories of Southern Settlements Co. v. Property Tax and Compensation Fund, 23(1) PD 508 (1969); ACA 3527/96 Axelberd v. Property Tax and Compensation Fund, 52(5) PD 385 (1998); CA 3847/16 Tel Calves v. The State of Israel (11.3.18). The question of whether these decisions fully support this ruling is debated.

Ibid., § 33.

Oren Tamir, “Towards the Americanization of Israel’s Administrative Law? The Strained Revolution of the Selgman Affair – Part I” (8.6.18), available at https://​thelegallongmarc​h.​wordpress.​com/​2018/​06/​08/​%D7%9C%D7%A7%D7%A8%D7%90%D7%AA-%D7%90%D7%9E%D7%A8%D7%99%D7%A7%D7%A0%D7%99%D7%96%D7%A6%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%9E%D7%A9%D7%A4%D7%98-%D7%94%D7%9E%D7%A0%D7%94%D7%9C%D7%99-%D7%91%D7%99%D7%A9/​ (in Hebrew); for a critique see Matan Guttman, “The Dangerous Precedent of the Seligman Affair - the Reasonable Interpretation Sphere and the Adoption of the Chevron rule in Israel’s Administrative Law”, Icon-S-IL Blog (12.6.18), available at https://​israeliconstitut​ionalism.​wordpress.​com/​2018/​06/​12/​%D7%94%D7%AA%D7%A7%D7%93%D7%99%D7%9D-%D7%94%D7%9E%D7%A1%D7%95%D7%9B%D7%9F-%D7%A9%D7%9C-%D7%A4%D7%A8%D7%A9%D7%AA-%D7%96%D7%9C%D7%99%D7%92%D7%9E%D7%9F-%D7%9E%D7%AA%D7%97%D7%9D-%D7%94%D7%A4/​ (in Hebrew) (for both, the decision has created a “revolution” in the law of Israel, by adopting the Chevron rule).

Compare Tamir and Guttman, ibid.

For a skeptic view about future immediate adoption see Oren Tamir, “Towards the Americanization of Israel’s Administrative Law? The Strained Revolution of the Selgman Affair – Part II” (8.6.18), available at https://​thelegallongmarc​h.​wordpress.​com/​2018/​06/​08/​%D7%9C%D7%A7%D7%A8%D7%90%D7%AA-%D7%90%D7%9E%D7%A8%D7%99%D7%A7%D7%A0%D7%99%D7%96%D7%A6%D7%99%D7%94-%D7%A9%D7%9C-%D7%94%D7%9E%D7%A9%D7%A4%D7%98-%D7%94%D7%9E%D7%A0%D7%94%D7%9C%D7%99-%D7%91%D7%99%D7%A9-2/​.