"The inherent difficulty in proving an improper subjective consideration led to an understandable relief of the evidentiary burden required to establish its existence. It is sufficient to create a real doubt as to the validity of the considerations of the competent public authority, in order for the burden of proof to pass to it to prove that its considerations were relevant. In circumstances such as these, the authority must be persuaded that weighty objective and substantive considerations led to its decision [...] and finally, in order to deal with the difficulty accompanying the examination of the subjective discretion of the administrative authority, it is apparent in case law a willingness to use various factual presumptions based on life experience, which sometimes even work to shift the burden of bringing the evidence to Nablus, the governmental authority, which must provide an explanation for its action" (High Court of Justice 6840/01 Peltzman v. Chief of the General Staff, IsrSC 60(3) 121,138 (2005)).
- Thus, we are dealing with a two-stage process: in the first stage, the petitioner must point to signs that give rise to a real concern that the authority has considered extraneous considerations. If he is able to do so, an order nisi will be issued and the burden will shift to the Authority. In the second stage, the authority must show that it did not consider extraneous considerations; and at the very least, even if it did consider extraneous considerations, these were not the dominant considerations that led it to make the decision that is subject to judicial review.
Equipped with this normative baggage, we can now turn to the application of the words to the circumstances of our case.
However, before I turn to this, I would like to discuss the exact nature of the improper consideration that is at the center of the arguments of the petitioners and the Attorney General in the petitions at hand, since this is the key to deciding whether the decision to close the station was made on the basis of extraneous considerations or not.
- The argument, as argued by the petitioners and by the Attorney General, is that the basis of the decision to close the station was a consideration concerning the content of the broadcasts of Galatz, which was not to the liking of the initiators of the decision. Thus, it was claimed that the members of the government decided to order the closure of the station because its broadcasts were perceived by them as representing the positions of the political camp that was contrary to their own, and because the station's broadcasts were replete with criticism of the government's actions and policies.
I'll clarify right now: Insofar as this consideration is indeed the dominant consideration that underpinned the decision to close the station, it is a clear improper consideration, and the decision is doomed to be disqualified.