High Court of Justice 61683-12-25 The Movement for Quality Government in Israel v. The Government of Israel - part 46

It is not superfluous, therefore, to note that the foreign consideration in our case is of the first type, a clearly unacceptable consideration.

8. In any event, in the circumstances of the present case, there is no need to address the differences between the tests.  This is due in view of the fact that no affidavits were submitted by the government ministers at all at the deliberative stage after the order nisi was issued, despite the repeated opportunity to do so.  This fact speaks for itself and leads to the conclusion that the decision that was made was indeed based on extraneous considerations that had a real influence or were dominant.
9. At this stage, I would like to add to the words of my colleagues and say that, from my point of view, the flawed procedure that underpinned the decision that was made is no less important than the acceptance of the petition.  My colleague the judge Kosher focused his judgment on the grounds of extraneous considerations and addressed flaws in the scope of the proceeding only "More than necessary".  My colleague the judge Stein It is not required to elaborate on the procedural aspects.  On the other hand, from my point of view, there is room to relate to - And not only incidentally, but also to the flawed procedure that underpinned the decision that was made.  Without exhausting, this impropriety was expressed both in the bias of the ministers, in the bias of some of the members of the advisory committee, and in the absence of an appropriate factual basis.
10. I will begin by saying that the ministers involved expressed their negative position regarding the station's activity at the very beginning of the dealing, and even before that. They went even further by announcing along the way that their goal was to bring about the closure of the station and the privatization of its frequencies, and that what was there would never be more.  In other words, there was not only an opinion regarding the current situation, but also a firm opinion regarding the desired situation that the process is aimed at.  The same prejudice also characterized two of the members who were appointed to sit on the advisory committee regarding the continued operation of the Gal station"Z.  My colleague the Judge Kosher This was addressed within the framework of the discussion on the grounds of extraneous considerations, but I am of the opinion that in the circumstances of the case, the existence of impartiality is a separate and independent reason for the invalidation of the decision that was made.
11. Indeed, there is no prohibition on an office holder, and even an elected official, to have a Previous position or background on the subject for which he was entrusted. However, he cannot be a Prejudice "Locked" and formulated on the subject he was entrusted with, in a way that would turn the decision-making process into a meaningless misrepresentation.  According to the rules of administrative law, and this rule was also planted at the dawn of this court, the involvement of a prejudiced party in the process of making a decision harms it against the background of the fear of a real possibility of bias (see long ago: High Court of Justice 3/58 Berman v.  Minister of the Interior, P"IV 12 1493,1511 (1958).  See more: High Court of Justice 701/81 Malach v.  Chairman, District Planning and Building Committee, Jerusalem, P"46(3) 1 (1982); High Court of Justice 12220-02-26 Tamir v.  Minister of Religious Services, paragraph 27 [Nevo] (March 9,2026).  See also: Barak-Erez, vol.  1, pp.  546-548).  In the circumstances, the accumulation of so many people involved with a solid position regarding the closure of the wave"C is definitely exceptional.  The metaphor seems to be beautiful here.  "A Chronicle of a Predetermined Death".
12. I will add that the deficiency in the factual basis on which the decision was based is, from my point of view, a particularly serious defect in the circumstances of the case.  Indeed, a factual basis is always an institutional foundation for the adoption of a proper decision.  However, it was precisely when those engaged in the work came from a starting point of reservations about the station's activity - As mentioned, it even amounts to real bias - Examining the facts is of particular importance.  The entire hearing, also before us, took place under the shadow of Gal's claims"The Tz is characterized by politically biased and hostile broadcasts to Tz soldiers"However, the factual basis for this was not laid at all.  Needless to say, an anecdotal reference to broadcasts or certain content that aroused resentment or difficulty is not a substitute for a comprehensive and systematic examination of the broadcasts insofar as this is the source of the difficulty.  It can be assumed that over the course of decades of broadcasting, the Gal station has known"9 more beautiful and less beautiful moments.  There are examples here and there, but they are not the decisive ones.  The question of the content of the broadcasts and their appreciation for the tribe or chesed is not before us at all.  I cannot accept either the negative assessment of the government in relation to the broadcasts nor even the words of praise for them by the petitioners.  What is required in such contexts is an examination of things in an orderly and systematic manner, as opposed to in an anecdotal and fragmentary manner.  From my point of view, it is sufficient for me to determine that the assumption of the factual basis underlying the decision was flawed.
13. The factual basis was important not only for the decision regarding Gal's closure"in and of itself, but also for examining the implications of the decision on the matter on the communications market as a whole and on the allocation of frequencies in it.  This test was also flawed.  In this context, it should be added that the Attorney General emphasized in her arguments that the closure of the"Z does not stand alone, but is intertwined with a series of other parallel actions that have the potential to negatively affect the free media in Israel - Each one separately, and all the more so when they accumulate together.  As my fellow judge Kosher, I do not share her position that these consequences should have been examined within the scope of the issue of authority.  At the same time, this is of great importance when it comes to the necessary meticulousness in the manner in which the decision is made.
14. I will also note that in the framework of the litigation, an argument was made that the Advisory Committee was established without being obligated to do so, and therefore it is not necessary to examine its modus operandi scrutiny. In the circumstances of the case, I am unable to accept this argument.  Sometimes, it is possible to be lenient with regard to a proceeding that is not obligated to be conducted, but not when it is stated in basic principles of administrative law, such as the prohibition on impartiality.  This is all the more reinforcing when the recommendation of the advisory committee serves as an additional reason in support of the decision that was made, in contrast to the recommendations of a previous committee appointed by the same government (see also: Barak-Erez, vol.  1, p.  317).
15. In the end, we must repeat the obvious: there is no answer Legal Correct to the question of whether wave broadcasts"T should be continued or not.  At the same time, there is a clear legal answer to the question of whether such a decision can be made based on political considerations and in a predetermined proceeding.  The answer is no.