High Court of Justice 63904-03-26 The Association of Journalists in Israel (NPO) v. Government of Israel - part 18

Yitzhak Amit

נשיא

Judge Ruth Ronen:

I agree.

Judge Alex Stein:

1. I give partial consent to the judgment of my colleague the President. Like my colleagues, I too am of the opinion that the appointment of   Yifat Ben Hai-Segev (hereinafter: Dr.  Ben Hai-Segev) to the position of Chairperson of the Council of the Second Authority for Television and Radio (hereinafter: the Council) was flawed in a way that goes to the root of the matter - and is null and void.
2. Like my colleagues, I am of the opinion that it is lawful to cancel the appointments of Adv. Kinneret Barashi (hereinafter: Barashi) and Dr. Haim Shine (hereinafter: Dr.  Shine) as members of the Council.  This is because their statements against various media outlets and figures were not considered by the Committee for the Examination of Appointments (hereinafter: the Appointments Committee or the Committee) - and at the very least, given the fact that these were well-known public statements, they were not given weight in the Committee's decision.  However, I am of the opinion that the Committee will be able to reconsider these appointments on the basis of a complete factual basis; and if the Committee deems it appropriate to approve, in the end, the appointments, it will be able to do so, subject to the making of meticulous and rigid conflict of interest arrangements.  This is because political statements - even those that express hostility towards political opponents of one kind or another - are not supposed to, as a rule, disqualify the speaker from serving as a member or member of the Council.
3. Contrary to the opinion of my colleague the President, I see no reason to reinstate the matter of the other members of the Council who were elected for a reexamination of the Committee. In my opinion, their re-examination is not necessary, since these appointments did not contain flaws that go to the root of the matter.
4. I will detail my reasoning.

The Matter of Dr.  Ben Hai-Segev

5. As my colleague notes in his judgment, in accordance with the conflict of interest arrangement that was made at the time for the Prime Minister, Mr. Benjamin Netanyahu, the Prime Minister was prevented from dealing with the appointment of Dr. Ben Hai-Segev.  Despite this, he took an active part in her appointment and supported it in complete contravention of that arrangement.  No one could argue that this move was invalid from the outset and that the appointment that followed was invalid.  For this reason, shortly after this appointment, a second decision was made by the Government of Israel to appoint Dr.  Ben Hai-Segev to the position of Chairperson of the Council.  This decision was made without a preliminary proceeding aimed at creating a real substantive disconnect between the two decisions, i.e., without neutralizing the effect of the first decision - and in particular the Prime Minister's support for the appointment of Dr.  Ben-Hai-Segev - on the second decision that was made by the Government.  To this, I will add that the second decision was made without prior consultation with the Attorney General as to the way to proceed in order to remedy the defect that occurred.
6. For example, it is said: "One cannot unring a bell" (Dunn v. United States, 307 F.2d 883,886 (5th Cir.  1962)).  The voice voiced by the Prime Minister in favor of the appointment of Dr.  Ben-Hai-Segev and the improper influence of this voice cannot be canceled or negated by another convening of the government in its literal terms.  The appointment process should have been cleaned of the flaw in it by means of a time-out and rethinking in order to ensure that a de novo decision was made, free from the influence of the Prime Minister; And there was certainly room to seek the advice of the Attorney General in this matter.  In the second decision, whose entire purpose, as she put it, "to prevent lip service, " was not segi.
7. From this arises my conclusion regarding the invalidity of the appointment of Dr. Ben-Hai-Segev to the position of Chairperson of the Council.  I am of the opinion that the petitions that came to attack this appointment should be accepted, so that we will issue before us an absolute order invalidating the appointment, as stated in the judgment of my colleague the President.

The case of Adv. Barashi and Dr.  Shine

8. In my opinion, the political positions and statements of Adv. Barashi and Dr. Shine are their personal affairs, and cannot in and of themselves serve as grounds for disqualifying them from serving as members of the Council.
9. However, as my colleague the President determined, the committee should have considered the various statements made by the two to the extent that they involved taking a hostile stance toward certain media bodies and people, such as Channel 12 television - a position that could translate itself into decision-making based on extraneous and discriminatory considerations. Since the committee did not do so, it made its decision regarding the appointment of Adv. Barashi and Dr.  Shine as members of the council on the basis of an insufficient factual basis.  Failure to give weight to the hostile statements made or published by the two is also a flaw that invalidates the committee's decision.
10. However, as I have already noted, I am of the opinion that the correct remedy in this case - alongside the cancellation of the appointments of Adv. Barashi and Dr. Shine - is to return their matter to the Appointments Committee so that it will reconsider the possibility of appointing them as members of the Council, subject to the determination of meticulous and rigid conflict of interest arrangements.  I am referring to arrangements that will prevent Attorney Barashi and/or Dr.  Shine from taking part in the Council's decisions that will be related to media persons or media bodies in relation to which any of their statements showed hostility.
11. In this context, it should be remembered that justice must not only be done but also seen - hence the need to be careful with the conflict of interest arrangements that will be required in relation to Adv. Barashi and Dr. Shine, if it is decided to appoint them as members of the Council.
12. Subject to the aforesaid, I am of the opinion that the petitions that come to disqualify the appointments of Adv. Barashi and Dr. Shine as members of the Council should be accepted, as proposed by my colleague the President.

The Matter of the Other Council Members

13. As I have already pointed out, there were no flaws in the appointments of the other council members that go to the root of the matter.
14. For this reason, I propose not to intervene in the decision to appoint them to the position. In this last matter, in my opinion, the petitions should be dismissed.