Second, as detailed in detail above, the decision that was brought to the government for approval was not the product of an open discussion in which the members of the government were presented with the variety of alternatives on the agenda, but rather a closed and unequivocal resolution, formulated in advance, according to which the government was presented with only one alternative - closing the station altogether (despite the fact that the advisory committee itself presented another, more moderate alternative). In these circumstances, I am of the opinion that there is at least a real doubt as to whether the members of the government who voted in favor of the resolution exercised full independent judgment, or were influenced to one degree or another by the pre-formulated position of Ministers Kari and Katz.
On the basis of these data, I also believed that I Because Yes There is room for granting an order nisi, which will shift the burden to the government respondents to prove that even if extraneous considerations were taken into account by some members of the government in making the decision to close the station, these were not the dominant considerations underlying the government's decision to all its ministers (for the significance of granting an order nisi regarding the transfer of the burden of proof, see, for example: the case The Association for Civil Rights in Israel, paragraph 85 of the judgment of the Vice-President H. Melcer (13.5.2020); Yitzhak Zamir "Evidence in the High Court of Justice" Law & Government A 295,300-299 (1993)).
Such an order nisi was indeed issued by us - in which it was even clarified that the government respondents must focus "Arguments concerning the correctness of the decision-making process and the manner in which discretion is exercised".
- In my opinion, the government respondents have not been able to lift this burden.
To be precise: it has not escaped my attention that the government's respondents claimed, as detailed above, that the decision was based on four main reasons which, according to them, are purely practical considerations, which I will reiterate: the structural anomaly involved in the operation of a civilian radio station by a military body; the damage to the IDF's national character; the difficulty stemming from the fact that conscripts are engaged in covering controversial current affairs; and the competitive distortion in the radio market. I will reiterate that these are reasons that, on the face of it, constitute a substantive and valid basis for making such a decision. However, the fact that the government's respondents presented valid reasons retroactively, in the pleadings and in the hearings that took place before us, is not enough. The question we must decide is not whether it is possible to point to hypothetical valid reasons that could have justified the decision, but whether the Government respondents proved that these reasons, and not the improper consideration that I discussed at length above, were in fact at the basis of the vote of the majority of the members of the Government.