Dafna Barak-ErezJudge
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Judge Gila Kanfi-Steinitz:
I agree with the judgment of my colleague the Vice President v. Solbergand to his conclusion that we are dealing with an invalid law: not only was it born in a defective proceeding, but its content most profoundly violates the right to equality - and it is null and void.
At the same time, I will note that I found a real difficulty in the fact that we did not have before us any position defending the validity of the amendment, while the legal counsel to the Knesset did not see fit to oppose the petitions. And to be precise: Section 17(c1) of the Knesset Law, 5754-1994 (hereinafter: The Knesset Law), states that "If a court considers in the proceeding before it that it is required to clarify the question of the validity of a law, it will invite the Knesset to appear in the proceeding, and it will be entitled to present its arguments to prove its validity.". An open question is, is the Knesset entitled to That to protect the validity of a law. This question has arisen in the past in the matter Kwantinsky, and it remains to be studied (High Court of Justice 10042/16 Kwantinsky v. Knesset of Israel, paragraph 4 of the judge's opinion A. Hayut [Nevo] (6.8.2017); See also: Yigal Marzel: "The Knesset's Status in Petitions on the Matter The Constitutionality of the Law" Law 39 347,395-396 (5770)). In the same matter, a representative of the Knesset noted in a hearing held in the petition that "We are inclined to the opinion that if we stand up, we must defend the validity of the law"; He added that "If we don't show up, we can contact someone who has represented us, but we can't claim that the petition should be accepted.". Indeed, in this last context, Section 17(b)(4) The Knesset Law allows the Knesset Legal Advisor, "With the consent of the Attorney General, to request that the Knesset be represented by the State Attorney's Office, or to delegate the power of another lawyer to represent the Knesset". This track of separate representation to the Knesset has not been examined, to the best of our knowledge, in the case at hand; and since the matter has not been clarified before us, there is no room to put rivets in it. However, in view of the difficulty that arises from a situation in which an adversary proceeding is not properly conducted on a weighty issue such as the constitutionality of legislation, the Knesset would do well to consider the matter and formulate an orderly position on the matter. As is well known, the advantage and power of the adversarial proceeding is not only in granting the relevant parties the right to argue, but also in broadening their perspective, improving the proceeding and bringing it closer to the correct and just outcome.