Judge Dafna Barak-Erez:
- Decision Guided by Extraneous considerations cannot stand. This is one of the first foundations of administrative law The Israeli, since the early days of the State of Israel, and it serves as an important condition The trust that must prevail between the citizens and the government. As my colleague the judge showed Y. Kosher, The decision that is the subject of the petition regarding the closure of the Radio Galei Tza"30 (hereinafter: Gal"Tz") was infected with this root defect, and therefore could not stand. In the circumstances of the case, the foreign consideration is also of a particularly problematic nature: according to the statements of the sponsors of the decision themselves, it was explicitly based on a preference for a certain political position and on the desire to limit the expression of another position in public broadcasting. This is the common denominator of the judgment of my fellow judges Kosher andA' Stein, and I agree with him, too.
- At the same time, Because of the importance of the issues on the agenda Also, taking into account the differences in approaches that arise from the judgments of my colleagues with respect to additional arguments raised on behalf of the petitioners, I will also briefly address the following Fundamental Aspects Others of the discussion.
- I will also begin by emphasizing, like my friends, Because the significance of our decision is not the existence of a Gal station."Tz is a necessary and unchangeable state of things. As my colleague the judge noted Kosher, the dispute regarding Gal's activities"Z., against the background of the complex combination of current affairs broadcasts and military activity, is not new, and over the years various positions have been expressed on the subject. Needless to say, our personal opinion on the subject is not relevant at all. The Petitioners' Argument"Z has made an important contribution to public broadcasting in Israel over the years, and does not contradict the possibility that a decision will be made to close it. In addition, there is no distinction between the recognition of the importance of public broadcasting and the question of Gal's future"Z. My position regarding the contribution and importance of public broadcasting is completely different from that of my colleague Justice Stein (See: Judgment In a High Court of Justice case 2996/17 Israel Journalists Association - The New General Workers' Union v. the Prime Minister [Nevo] (January 23,2019)). However, as stated, this is a separate question and it is not before us here. I will also add that even in my opinion, the issue of the continued activity of the Gal station"Z, with all its importance, does not amount to a preliminary arrangement. Legislation on the subject might have been desirable, but it is not a necessity.
- What, then, is left? On many issues, opinions in the Israeli public are divided. It is precisely for this reason that all governmental decisions must be made in a format that meets the basic rules of fairness, including the absence of extraneous considerations, as well as strict adherence to a decision-making process that is not tainted by bias.
- In many respects, the cause of extraneous considerations is one of the grounds "The Basics" most of administrative law. It is not for nothing that my colleague the judge referred Kosher to one of the founding rulings of the Supreme Court in its early years - High Court of Justice 98/54 Lazarovich v. Superintendent of Alimony, Jerusalem, P"D 40 (1956). As my colleague pointed out, the use of the pretext of extraneous considerations is not very common, mainly because in many cases it is people's way of hiding things in the heart that may reveal extraneous considerations. The case before us is exceptional even in the sense that the ministers who promoted the initiative to close the wave"Tz did not seek to hide their extraneous considerations in making the decision. On the contrary, in many ways it was possible to get the impression that they took pride in these considerations and sought to make them present. Indeed, within the framework of the litigation here, an attempt was made after the fact to downplay the value of the statements made in this vein, while emphasizing other reasons that were also ostensibly at the basis of the decision. The problem is that it is not possible to hide things that are written in black and white.
- And what is the foreign consideration in this case? The answer to this question adds even more severity to the discussion. Sometimes, the extraneous consideration underlying the decision is not inherently invalid, but it is considered foreign in the sense that it is irrelevant and deviates from the substantive considerations that the decision-maker was entrusted with. This is not the case before us. Our case focuses on extraneous considerations that are inherently improper when it comes to decision-making by government authorities, in the sense of "Bad in itself" (mala in se). In the circumstances of the case, the closure of a public media outlet is only due to the fact that, according to the authority holder's view, this "Supports" In a different political position than his own - It is de facto censorship and silencing of voices that oppose the position of the government. Obviously, this is an improper consideration in the making of decisions that have a direct impact on freedom of expression in the country.
- Over the years, various tests have been discussed in case law to prove the defect of extraneous considerations, the main of which are known as the test of the dominant purpose and the test of actual influence (see: Dafna Barak-Erez Administrative Law Volume 2 667-668 (2010) (hereinafter: Barak-Erez)). In this context, it may be mentioned that there are those who maintain that the nature of the extraneous consideration may also affect the appropriate test for implementation. This position was expressed by the judge in the past M. Cheshin When he says:
"The various improper considerations have no equal weight: some of them are clearly disqualified, blinding disqualifications - and they deserve to be denounced in any language (for example: discrimination on political or racial grounds), and there are those whose disqualification is disqualification, but they are not painted in bright colors. We will apply one test to the first type of considerations, while in the other type of considerations we will satisfy ourselves with another test" (High Court of Justice 706/94 Ronen v. Minister of Education and Culture, IsrSC 35(5) 389,421 (1999)).