High Court of Justice 41953-07-26 Free Israel v. Knesset - part 20

Judge David Mintz:

I agree with the conclusion of my colleague the Vice President v.  Solberg With regard to the defects that occurred in the legislative process.  In my opinion, this is sufficient to order the injunction nisi to be made absolute and to cancel the amendment.  In view of the aforesaid, I did not see the need to invalidate the law because of its content, and to the position that I have already expressed in the past that this court has no authority to do so (see for example: High Court of Justice 5658/23 The Movement for Quality Government in Israel v.  The Knesset, paragraphs 9-25 of my opinion [Nevo] (1.1.2024); High Court of Justice 5969/20 Shafir v.  Knesset, paragraphs 8-9 of my opinion [Nevo] (23.5.2021); High Court of Justice 2905/20 The Movement for Quality Government in Israel v.  The Israeli Knesset, paragraphs 7-9 [Nevo] (July 12,2021)).  I will only note that even the approach according to which this Court has the authority to intervene in the content of a law is very difficult to accommodate a discussion of the content of a future-theoretical law that is not at all before us and that deviates from the four pillars of this petition, as some of my colleagues have done.

Judge Alex Stein:

1. Like my colleagues, Vice President Sohlberg and Justice D.  Mintz, I am of the opinion that in the proceedings of enacting the amendment to the law that is the subject of our discussion, there were flaws that go to the root of the matter, the result of which is the nullity of the amendment.
2. I will admit and not deny: I would have reached the same result even if the legislative procedures were completely proper - this is in accordance with my approach to examining the constitutionality of legislative acts. According to my approach, it is no coincidence that more than 100 different sections of the law that deal with the work of the Knesset - compiled in the Basic Law: The Knesset, in the Knesset Law, 5754-1994, and in the first chapter of the Transition Law, 5719-1949 - do not give, and do not even purport, to give, an answer to the basic question: "Does the legislative power of the Knesset have limits, and what are they?" In my opinion, as presented in my previous ruling, the answer to this question is found in the founding documents of Israeli law: the proclamation and the original Law and Government Ordinance, which subordinated the legislative powers of the Provisional State Council and subsequent revenues to what was stated in the Declaration of Independence, and in particular, to the legal-operative part of the declaration.  This part begins with the words "We determine...  and it grants, inter alia, the right to "absolute equality" to all residents of the state.  Accordingly, a Knesset law that is inconsistent with any accepted sense of "absolute equality" is a law that was enacted outside the scope of the Knesset's authority, and is null and void (see my opinion inHCJ 8987/22 The Movement for Quality Government in Israel v.  Knesset [Nevo] (January 2,2025); In High Court of Justice case 5119/23 The Movement for Moral Integrity v.  Knesset [Nevo] (October 26,2023); andin High Court of Justice case 5658/23 The Movement for Quality Government in Israel v.  Knesset [Nevo] (January 1,2024); see also the report of the Knesset's Constitution, Law and Justice Committee on the Constitution of the State, which was published close to the establishment of the State, in which it was stated that "the documents and laws of a constitutional nature" include the "Declaration of the Establishment of the State of Israel and the Proclamation" and the "Proclamation" and the "the original Ordinance on Government and Legal Orders, from 1948; Binyamin Aktzin, "The Prerogative in the State of Israel, " Part II, Ha-Hapraklit 7 590-592, H.S.  27 (1950); For a detailed explanation of my approach, see: Alex Stein, The Inevitability of Marbury v.  Madison, 26 ICL - Vienna J.    Const.  L.  (2026), https://ssrn.com/abstract=6431300).
3. It is plain that the granting of sweeping exemptions from criminal responsibility to violators of conscription orders, as well as the sweeping release of entire communities from the obligation to serve in the IDF, are inconsistent with the requirement of "absolute equality" in the Declaration of Independence, in all its meanings. Therefore, an act of legislation that purports to grant such an exemption and release was enacted without the authority of the Knesset, and has no validity.