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466 Israel Law Reports [2004] IsrLR 466 HCJ 5261/04 Advocate Yossi Fuchs v Prime Minister of Israel, Ariel Sharon HCJ 5262/04 Advocate Naftali Gur-Aryeh and another v Prime Minister of Israel and another HCJ 5263/04 Yitzhak Vazana and others v Prime Minister of Israel and another HCJ 5264/04 Advocate Ben-Zion Gispan v Prime Minister of Israel, Ariel Sharon and others HCJ 5317/04 Minister of Tourism, Binyamin Elon v Prime Minister of Israel, Ariel Sharon The Supreme Court sitting as the High Court of Justice [26 October 2004] Before President A. Barak, Vice-President E. Mazza and Justices M. Cheshin, J. Türkel, D. Beinisch, A. Procaccia, E.E. Levy Petition to the Supreme Court sitting as the High Court of Justice Facts: The prime minister wished to promote a political plan, known as the ‘disengagement plan.’ In order to ensure that a majority of the Cabinet would support HCJ 5261/04 Fuchs v. Prime Minister 467 the plan when it was brought to a vote, the prime minister removed two ministers from office two days before the vote was scheduled to be held. The petitioners attacked the constitutionality of the prime minister’s action on both technical grounds and substantive grounds. They argued, inter alia, that it was improper for the prime minister to remove two ministers from office because they opposed his plan, in order to create an artificial majority in the Cabinet in favour of the plan. Held: The Supreme Court held that the discretion of the prime minister when exercising his power to remove ministers from office was very broad, and that the removal of ministers from office in order to further a political plan that the prime minister regarded as essential for the welfare of the State of Israel fell within the zone of reasonableness for his action in removing the ministers from office. Petitions denied. Legislation cited: Basic Law: the Government, 5728-1968, s. 21A. Basic Law: the Government (Amendment no. 3) (5741-1981). Basic Law: the Government, 5752-1992, ss. 35(b), 35(c). Basic Law: the Government, 5761-2001, ss. 1, 3, 4, 5(a), 7(a), 13(c), 13(d), 14(d), 15, 16(a), 19, 20, 22, 22(b), 24(b), 25, 28, 29(a), 31, 31(f), 39, 40, 40(c). Basic Law: the Knesset, ss. 1, 4. Government Law, 5761-2001, ss. 1(a), 2, 9(6). Interpretation Law, 5741-1981, s. 10(c). Transition Law, 5709-1949, s. 11(g). Israeli Supreme Court cases cited: [1] HCJ 621/76 Segal v. Government of Israel [1977] IsrSC 31(2) 8. [2] HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206. [3] HCJ 6741/99 Yekutieli v. Minister of Interior [2001] IsrSC 55(3) 673. [4] HCJ 3267/97 Rubinstein v. Minister of Defence [1998] IsrSC 52(2) 481; [1998-9] IsrLR 139. [5] HCJ 1601/90 Shalit v. Peres [1990] IsrSC 44(3) 353; IsrSJ 10 204. [6] HCJ 1080/99 Duek v. Mayor of Kiryat Bialik [2001] IsrSC 55(2) 602. [7] HCJ 3094/93 Movement for Quality Government in Israel v. Government of Israel [1993] IsrSC 47(5) 404; IsrSJ 10 258. [8] HCJ 1993/03 Movement for Quality Government in Israel v. Prime Minister 468 Israel Law Reports [2004] IsrLR 466 [2003] IsrSC 57(6) 817; [2002-3] IsrLR 311. [9] HCJ 5131/03 Litzman v. Knesset Speaker [2005] IsrSC 59(1) 577; [2004] IsrLR Error! Bookmark not defined.. [10] HCJ 4267/93 Amitai, Citizens for Good Government and Integrity v. Prime Minister [1993] IsrSC 47(5) 441. [11] HCJ 2533/97 Movement for Quality Government in Israel v. Government of Israel [1997] IsrSC 51(3) 46. [12] HCJ 1635/90 Jerzhevski v. Prime Minister [1991] IsrSC 45(1) 749. [13] HCJ 502/99 Cohen v. Prime Minister (unreported). [14] HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455. [15] HCJ 9070/00 Livnat v. Chairman of Constitution, Law and Justice Committee [2001] IsrSC 55(4) 800. The petitioner in HCJ 5261/04 represented himself. For the petitioners in HCJ 5262/04 — N. Gur-Aryeh. For the petitioners in HCJ 5263/04 — A. Nof. For the petitioners in HCJ 5264/04 — S. Samina, B.Z. Gispan. For the respondents — O. Mendel, A. Helman, High Court of Justice Department at the State Attorney’s Office. JUDGMENT President A. Barak The prime minister wishes to promote a national-political plan. He considers this plan to be vital to the future of the State of Israel. It has serious ramifications in terms of the foreign and defence policies of the State of Israel. The prime minister gives instructions that the plan should be submitted to the Cabinet for its approval. Shortly before the time of the vote, the prime minister decides to exercise the power given to him in s. 22(b) of the Basic Law: the Government, and to remove from office two of the Cabinet ministers who oppose the plan and are working to prevent its approval. He does this in order to obtain a majority vote in the Cabinet. Is this decision lawful? That is the question before us. HCJ 5261/04 Fuchs v. Prime Minister 469 President A. Barak The facts 1. During 2004, the prime minister, Mr Ariel Sharon, began to promote a political plan that is called the ‘disengagement plan.’ The plan includes the evacuation of all of the settlements in the Gaza Strip and several settlements in Samaria. The prime minister decided to submit the plan to the Cabinet for approval. A discussion of the matter was scheduled for Sunday, 6 April 2004. On Friday, 4 April 2004, the prime minister sent letters to two Cabinet ministers, MK Avigdor Lieberman (the Minister of Transport) and MK Binyamin Elon (the Minister of Tourism), both from the National Union faction, removing them from office. The removal from office was carried out by virtue of the prime minister’s power in s. 22(b) of the Basic Law: the Government. The grounds for the decision to remove the ministers from office were the fact that both of the ministers had said and made it clear that they were vehemently opposed to the ‘disengagement plan’ and that they would do everything they could to prevent it from being approved by the Cabinet, and the assumption that, in view of this opposition, the two ministers would in any case not remain in the Cabinet, if the plan were approved. The prime minister was of the opinion that this was a political plan ‘of historic significance’ (s. 2 of the Attorney-General’s response), that it was essential for ‘ensuring the future welfare of the State of Israel’ (ibid.) and that it was of decisive importance in the context of international relations between the State of Israel and other countries’ (ibid.). For this reason, in the prime minister’s opinion, ‘the rejection of the plan by the Cabinet would have had very grave implications for the foreign relations of the State of Israel’ (ibid.). Therefore, the removal of the ministers from office was intended to ensure that the ‘disengagement plan’ would be approved by a majority of the Cabinet and would be implemented. 2. The letters removing the ministers from office were signed as aforesaid on Friday, 4 June 2004. When they had been signed, but before they were delivered to the ministers who were removed from office, the members of the Cabinet were notified by telephone of the prime minister’s decision to remove the Minister of Tourism and the Minister of Transport from office. The letter to the Minister of Transport was delivered by a messenger from the prime minister’s office on the same morning. The prime minister informed the Minister of Tourism of his removal from office in a telephone conversation between them. Meanwhile, the efforts that were made to ascertain the physical location of the Minister of Tourism in order to deliver the letter removing him from office were unsuccessful. The Minister of 470 Israel Law Reports [2004] ILR 466 President A. Barak Tourism refused to divulge his location to the Cabinet secretary in conversations that they had during that day. A messenger, who was sent to the home of the Minister of Tourism as well as to his office, did not find him at those locations. Finally it was decided — after the Cabinet received guidelines from the Attorney-General in this respect — that in the circumstances it was sufficient to send the notice by facsimile and by messenger to the home and office of the Minister of Tourism, together with notice by telephone. Notice as aforesaid was given to the minister’s assistant, but the attempt to speak with the minister himself was unsuccessful. Equally unsuccessful was the attempt to send the notice by facsimile to the minister’s home. A driver was sent to the minister’s home, and he tried to leave the letter concerning the removal from office in the mailbox, but, according to what the Cabinet secretary was told by the security officer at the Ministry of Tourism, the sentry on duty had received orders from the minister himself not to accept the letter. Finally, on Friday afternoon the letter removing him from office was placed on the reception desk of the office of the Minister of Tourism. 3. On Sunday, 6 June 2004, petitions were filed in this court, asking that we make an order nisi and an interim order, to the effect that the letters removing the ministers from office should be suspended and not come into effect.
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