For the reasons that I discussed above, and which I will refer to below, the petitioners and the Attorney General argue that in our case, this point of departure should be deviated from and it should be determined that the closure of the station requires primary legislation. I will preface by pointing out that the argument that the closure of a military unit is obligated to be done by way of primary legislation is grounded from the outset, and the person who claims it has a heavy burden. In this context, it is not superfluous to note that the government's respondents, on the other hand, claim that by virtue of the Section 2A(a) According to the Military Justice Law, the closure of the station could also be ordered by the decision of the Chief of Staff, with the approval of the Minister of Defense. Given that the decision challenged in the petitions in this case is the government's decision, I do not believe that there is room to set rivets on this argument, but it must be remembered when we are discussing the arguments of the petitioners and the Attorney General, to which I will now address.
A.1. Does the decision to close the station constitute a preliminary arrangement?
- All the preliminary arrangements stipulate that arrangements that anchor general policy and principled standards, in matters that infringe on the basic rights of the individual or in other matters of the highest importance, must be established in primary legislation. This is unless it is possible to point to an explicit authorization of the legislature, which allows the executive branch to determine a preliminary arrangement on a particular issue on its own (see, among many: High Court of Justice 598/22 Abu 'Aram v. Minister of Defense, paragraph 27 of the [Nevo] judgment (December 4,2025); High Court of Justice 2109/20 Ben Meir v. Prime Minister, paragraph 27 of the judgment of President Hayut [Nevo] (April 26,2020); High Court of Justice 4374/15 The Movement for Quality Government v. Prime Minister of Israel, paragraph 127 of the opinion of Vice-President A. Rubinstein [Nevo] (March 27,2016) (hereinafter: the Gas Outline Matter); The Rubinstein case, at p. 502; for a comprehensive review of the various approaches regarding the essence of all the initial arrangements, see: Uri Shfrach, "From the Recruitment of Yeshiva Students to To the Gas Outline: On the Need to Change the Doctrinal Framework of the Principle of Preliminary Settlements, " Iyunei Mishpat 41 605 (2019)).
In the case law of this court, it was determined that the decision on the question of whether or not a certain arrangement is a preliminary arrangement will be made in any case according to its circumstances, with regard to the nature and substance of the issue under discussion. In doing so, the case law outlined an indefinite list of considerations that can be taken into account in this regard, including: the extent of the violation of individual rights involved in the arrangement; the extent of its influence on the public; the extent to which the arrangement is in public dispute; the financial implications of the arrangement; and the degree of complexity and professional knowledge required to determine it (High Court of Justice 11163/03 The Higher Follow-up Committee for Arab Affairs in Israel v. Prime Minister of IsraelIsrSC 66(1) 1,68 (2006); See also: High Court of Justice 6215/12 Bastakar v. Minister of Finance, paragraph 25 of the judge's judgment Y. Amit [Nevo] (16.6.2015); High Court of Justice 616/11 Israel Student Union v. Government of IsraelIsrSC 66(3) 819,865-864 (2014); Yitzhak Zamir "Initial Arrangements" The Book of Yaakov Ne'eman 713,723-719 (Aharon Barak and David Gliksberg eds., 2023)).
- In our case, the petitioners and the Attorney General claim that the decision to close the Army Radio station constitutes a preliminary arrangement, since as a result of it, there will be a real violation of freedom of expression. In this context, it was argued that Galatz is one of the only two public radio stations that broadcast current affairs nationwide, and is listened to by close to a million Israelis every day; that its closure will reduce the scope of public broadcasting on radio by about half and detract a significant voice from the arena of public expression, and hence this is a decision with profound structural implications for the map of public broadcasting in Israel, which requires anchoring in primary legislation and an orderly parliamentary debate. Moreover, it was argued that the status that the station has acquired over the course of its decades of operation, along with the fierce public controversy surrounding its closure, also show that we are not dealing with a routine administrative decision, but rather with a preliminary structural arrangement in which the Knesset has the authority to decide.
- As described above, the question of whether the decision to close the station constitutes a preliminary arrangement due to its inherent infringement on freedom of expression, was the focus of Levin's opinion. There, Deputy Attorney General Levin noted that in light of the existence of the Public Broadcasting Corporation, which is an independent and significant public body that operates broadcasting channels nationwide, the violation of freedom of expression resulting from the station's closure is only "peripheral." Thus, the Deputy Attorney General noted that: "Even if the right to freedom of expression establishes an obligation on the state to conduct public broadcasting, and we do not prescribe in this matter, in our opinion, the argument that by virtue of that right the state is obligated to maintain two radio stations that broadcast current affairs nationwide is not at all simple. In other words, according to our approach, there is considerable doubt that the right to freedom of expression includes the existence of two radio stations as aforesaid" (emphasis in original - Y. 20). In these circumstances, Deputy Attorney General Levin reached the conclusion that in view of the limited scope of the violation of the right to freedom of expression inherent in the closure of the station, against the background of the existence of an independent and functioning public broadcasting corporation that constitutes an adequate alternative to the existence of a free public media, it is not necessary that the decision to close the station be made by primary legislation.
- As can be seen, Levin's opinion was based on the assumption that the closure of the Galei Tzahal station violates freedom of expression to the extent that it justifies that it should be done only by primary legislation, only when we recognize that the state is obligated to conduct public broadcasting, or, at the very least, to refrain from shutting down public broadcasting after it has been established. However, recognition of such a duty is not at all self-evident.
Indeed, the case law of this Court has long held that the constitutional right to freedom of expression includes not only the right to be heard, but also the right to be heard (High Court of Justice 243/62 Israel Film Studios Ltd. v. Levy, IsrSC 16 2408,2415 (1962) (hereinafter: The Levy Matter); High Court of Justice 399/85 Kahane v. Board of Directors of the Broadcasting Authority, IsrSC 41(3) 255,267 (1987); High Court of Justice 2194/06 The Change Party, the Center Party v. Chairperson of the Central Elections Committee, paragraph 10 of the President's judgment A. Barak [Nevo] (28.6.2006); High Court of Justice 2996/17 Israel Journalists Association v. Prime Minister, paragraph 35 of the Deputy President's judgment H. Melcer [Nevo] (January 23,2019) (hereinafter: The Public Broadcasting Corporation Matter); Aaron Barak Basic Law: Human Dignity and Liberty and Basic Law: Freedom of Occupation Volume 2: The Right to Human Dignity 978-979 (Yitzhak Zamir ed., 2023)). There is no doubt that the existence of a free and independent media is a condition without which this aspect of the right to freedom of expression cannot be realized. Therefore, case law recognized that one of the derivatives of the right to freedom of expression is the right to access the media (High Court of Justice 5404/22 Success for the Promotion of a Fair Society v. Minister of Communications, paragraph 71 of the judge's judgment A. Grosskopf [Nevo] (12.5.2026) (hereinafter: The Corporation's Board Matter); High Court of Justice 7200/02 DBS Satellite Services (1998) Ltd. v. Cable and Satellite Broadcasting Council, IsrSC 59(6) 21,35-34 (2005); For more information, see: Dafna Barak: "Freedom of Access to the Media - Balancing interests in the areas of the right to freedom of expression" Law Studies 12 183 (1987)).