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Chapter 4— In Quest of Progressive Reform

1. H.C. 16/48, Brun v. Prime Minister and Minister of Defense, 1 P.D. 109, 112 (1948). Emphasis added. On the panel with Smoira sat Olshan and Dunkleblum; the three were the troika that led the Court. [BACK]

2. Dan Horowitz and Moshe Lissak, Origins of the Israeli Policy: Palestine under the Mandate, trans. Charles Hoffman (Chicago: University of Chicago Pres, 1978), 131. [BACK]

3. The confiscation was limited and did not include passage of title. Among those who benefited from the confiscations were the attorney general and a few judges. In interview, Agranat emphasized that he loathed the procedure and was determined not to resort to it, even though the Ministry of Justice did indicate that he could benefit from it should he need housing when he moved from Haifa to Jerusalem. The issue of confiscation of Arab land should not be confused with the one discussed here. Ian Lustick, Arabs in the Jewish State: Israel's Control of a National Minority (Austin: University of Texas Press, 1980), 173; David Kretzmer, The Legal Status of the Arabs in Israel (Boulder, Colo.: Westview Press, 1990), 49-69. [BACK]

4. H.C. 10/48, Zeev v. Gubernik, 1 P.D. 85, 88-89 (1948); "The provisional state council is the superior institution in whose jurisdiction lies the discretion to prefer the needs of public security over individual rights," Brun, 112. See also Marbury v. Madison, 5 U.S. 137 (1803). [BACK]

5. Amnon Rubinstein, Ha-Mishpat ha-Konstitutsyoni shel Medinat Yisrael [The Constitutional Law of the State of Israel] (Jerusalem: Schocken, 1991), 44-45; Ruth Gavison, "The Controversy over Israel's Bill of Rights," 15 Israel Yearbook on Human Rights 113 (1985). break [BACK]

6. Prevention of Terrorism Ordinance, 5708-1948, 1 L.S.I. 76. [BACK]

7. See for example, Itzhak Zamir, "Labour and Social Security," in Studies in Israel Legislative Problems, ed. Gad Tedeschi and Uri Yadin, Scripta Hierosolymitana (Jerusalem: Magnes Press, Hebrew University, 1966), 298. [BACK]

8. The very first case to be decided by the Court was the appeal of an Englishman who had been convicted of spying. The hearing took place in a charged and volatile atmosphere, hypersensitive to "spies and traitors." The acquittal, a direct rejection of the position of the government, was accomplished through a narrow reading of the Criminal Code and a meticulous evaluation of the evidence. This methodology set the boundaries of judicial intervention. See Cr.A. 1/48, Sylvester v. Attorney General, 1 P.D. 5 (1948).

Later, the Court overturned the government's decision to end the institution of "petition writers," which deprived a whole group of people of their livelihood. The government's decision was well intentioned and typical of the period. The "petition writers," a part of the oriental landscape, were a go-between the citizenry and the bureaucracy. Their elimination thus signified planning and modernization, an end to the age of undue influence. The Court held that the "right to pursue an occupation" was a "natural right" that could not be taken away from a citizen without an authorizing statute, through administrative fiat. See H.C. 1/49, Bezerano v. Minister of Police, 2 P.D. 80 (1949). See also H.C. 144/50, Sheib v. Minister of Defense, 5 P.D. 399 (1951), where the Court invalidated the dismissal of Israel Eldad Sheib, a LEHI leader, from his position as an educator, by Prime Minister and Secretary of Defense Ben-Gurion. [BACK]

9. Olshan had been a partner at Eliash's law firm, where Agranat had clerked in the early 1930s. See discussion on p. 49. [BACK]

10. In one of Agranat's first opinions, decided 28 February 1949, he expressed an understanding for the need to use emergency powers in violation of civil rights and refused to interfere with a confiscation order:

Everyone knows that when this [emergency] statute was enacted (May 1948) it was a few days after we declared independence--when the state was fighting to defend itself against enemy armies which had attacked it from almost all sides. It was, in fact, a situation of emergency in the full sense of the term. Section 9 was designed . . . to invest full authority in the . . . [executive] to act in order to defend the state, the public security and the . . . essential services, without facing any obstacle or hindrance. . . . [I]t would be a serious harm to the above purpose--to the point of foolishness--if we [gave the statute a narrow interpretation]. (H.C. 9/48, Selinger v. Commander of the Dan Region, 2 P.D. 190, 195 [1949]).

In H.C. 37/49, Goldstein v. Custodian of Property of Missing Persons, 2 P.D. 716, 729 (1949), decided 11 September 1949, Agranat held that a governmental entity can evacuate a person from property only through legal means, even if that person took hold of that property through illegal means. The above is a sample of Agranat's opinions during the period under discussion. [BACK]

11. H.C. 95/49, Al-Couri v. Chief of Staff, 4 P.D. 34A (1950). [BACK]

12. "Two Jews were killed and one is missing as a result of Arab attacks in the Gaza area today. A truck on the way to Negba settlement from Gath was ambushed and Ernst Miller, an immigrant from Chile, was killed and another reported missing. Later, a party that set out from Negba to search for the missing man was en- soft

gaged by an Arab band and Moshe Litvak was killed." "Two Killed in Attack in South," Palestine Post , 7 December 1947, 1. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

13. Al-Couri , 41-46.

14. Ibid., 46-47.

15. Ibid., 37.

16. Ibid.

17. Ibid.

18. Ibid. [BACK]

19. Amos Shapira, "Judicial Review without a Constitution: The Israeli Paradox," 56 Temple L. Q. 405, 417-26 (1983). [BACK]

20. Karl Llewellyn's distinction between formal-and grand-style opinions and their respective role in the development of the law is relevant here. Israeli Supreme Court opinions of the 1950s were written in the formal, not the grand, style. Agranat's opinions, written in the grand style, were clearly exceptional in the Israeli judicial landscape. See Karl N. Llewellyn, The Common Law Tradition: Deciding Appeals (Boston: Little, Brown, 1960), 62. [BACK]

21. Protocol in the author's files. [BACK]

22. On 17 February 1952, one day before Cr.A. 95, 99/51, Podamsky v. Attorney General , 6 P.D. 341 (1952) was argued and six weeks before the Podamsky opinion was delivered, Justice Olshan rebuked the government for having repealed a license previously granted to open an ice-cream factory, on the ground that such a factory was not vital to the state: "I doubt whether members of the civil service in our state . . . understand their [responsibility]. . . . [T]hey have to follow certain principles, tantamount to first principles, such as: every citizen is innocent until otherwise proven [guilty], justice should be done and also seen. . . . [E]lementary justice requires that before a decision is reached the citizen be granted the opportunity to explain so as to remove doubts. We are convinced that in this case this was not done." Olshan's emphasis. The Court, however, only partially granted the petition. See H.C. 113/52, Sax v. Minister of Trade and Industry , 6 P.D. 696, 703 (1952).

Agranat had personal reasons for being aggravated with the bureaucracy as well. On 16 April 1954 he wrote the following letter (on file with the author) to the customs officials:

[L]ast Saturday we celebrated my son Hillel's Bar Mizvah. At the same time, I received a notice . . . that a parcel containing a Parker fountain pen 51, and a mechanical pen, sent to him by my uncle . . . a Chicago resident . . . has arrived, and that I should pay duty in the sum of 39.305 Israeli pounds. All would agree that this sum is much higher than the value of the gift. Indeed, it is a wonder that when an American Jew sends his relative here a Bar Mizvah gift, he [should pay such a high fee]. . . . It is hard to accept the thought that the authorities in the state of Israel shall turn their back to this typical Jewish institute [the Bar Mitzvah] and require a sum so high as to force me to return the gift to its sender. I hope that your honor will exempt the parcel from the above said taxes.

23. Podamsky. [BACK]

24. Wesley Newcomb Hohfeld, "Some Fundamental Legal Conceptions as Applied in Judicial Reasoning," 23 Yale L. J. 16 (1913); Wesley Newcomb Hohfeld, "Fundamental Legal Conceptions as Applied in Judicial Reasoning," 26 Yale continue

L. J. 710 (1917). Hohfeld's work was incorporated into John William Salmond, Jurisprudence , 10th ed. (London: Sweet and Maxwell, 1947), 238. [BACK]

25. The judge issuing the detention order on 1 September 1950 had jurisdiction to detain the prisoners for a period of only fifteen days. Hence, by 15 October (the day these events took place) the detention order had expired, and the prisoners were free men. Podamsky , 346. [BACK]

26. The problem of law enforcement was so acute that Prime Minister Ben-Gurion, in a broadcast speech to the nation on the occasion of Israel's first anniversary, devoted a whole paragraph to it, emphasizing the need to change national attitudes toward the judge and the policeman: "In exile, and for a long time in our own land, we saw the alien judge and policeman--as a hostile enemy. With independence, we have the opportunity to . . . see in the agents of the law and its guardians loyal friends of the people. . . . In particular, a difficult and heavy responsibility rests on the young police force." Luah ha-Arets li-Shnat Tashay [Ha-Arets Yearbook, 1949], 300. The program of austerity and rationing, introduced by the government in an effort to rebuild the economy, caused a black market to flourish and an almost universal violation of the austerity laws. In addition, the large influx of immigrants, embattled and disoriented, caused significant law-enforcement problems. See Tom Segev, 1949: The First Israelis (New York: Free Press, 1986), 297-323. [BACK]

27. Criminal Code Ordinance, 1936, Palestine Gazette , 1936, Supp. 1, 285, 316-17. [BACK]

28. Podamsky , 353. [BACK]

29. Justices Cheshin and Assaf concurred. The Court also overturned the conviction for carrying a weapon without license. In the indictment the appellants were charged not with this offense but rather with a violation of section 66(a) of the Criminal Code (carrying a weapon for the purposes of committing treason against the government). The district court decided that even though section 66(a) did not apply, it had jurisdiction to convict the appellants of carrying a weapon without a license. The Court held that section 66(a) had already been held as implicitly repealed by a new law and that the district court could not substitute a valid offense for one which was void. Ibid., 346-50.

30. Ibid., 354. [BACK]

29. Justices Cheshin and Assaf concurred. The Court also overturned the conviction for carrying a weapon without license. In the indictment the appellants were charged not with this offense but rather with a violation of section 66(a) of the Criminal Code (carrying a weapon for the purposes of committing treason against the government). The district court decided that even though section 66(a) did not apply, it had jurisdiction to convict the appellants of carrying a weapon without a license. The Court held that section 66(a) had already been held as implicitly repealed by a new law and that the district court could not substitute a valid offense for one which was void. Ibid., 346-50.

30. Ibid., 354. [BACK]

31. In Hebrew this second category appeared as "liberty rights"; that is, the term right was used for this category as well as for the first one. [BACK]

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid. [BACK]

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid. [BACK]

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid. [BACK]

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid. [BACK]

32. Podamsky , 354. Agranat's emphasis.

33. Ibid.

34. Ibid., 355.

35. Ibid., 357.

36. Ibid. [BACK]

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break [BACK]

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break [BACK]

37. "A homeowner empowering another to sell his house invests in him the power to deny the homeowner's right in the property." Ibid.

38. Ibid. The significance of this statement lies in its emphasis on the premise of the coequality of the branches of the government and the concomitant assumptions that executive actions not warranted by law are ultra vires. These should be read in the context of the attack on judges in the Knesset that took place at about the same time.

39. Ibid., 359. break [BACK]

40. It is important, however, to reemphasize that the appeal was partially successful, in that the Court overturned the conviction for holding weapons without a license. Thus, even in terms of the result alone, the case cannot be seen as a straight triumph for the police. [BACK]

41. Sax , 703. [BACK]

42. "It should be clear that in our discussion we [relied on] . . . a few principles which are relevant to our subject matter and which were derived from . . . writings of authoritative legal scholars--as follows:--Salmond, Jurisprudence , 10th ed. chapter 10; Paton, Jurisprudence (1946) part III chapter 10; the article Legal analysis and Terminology by Corbin, published in Hall's Readings in Jurisprudence , p. 471." Podamsky , 354. [BACK]

43. Hence Agranat's dictum that had they petitioned the Court for habeas corpus they probably would have won their freedom through legal means. Ibid., 361.

44. Ibid. [BACK]

43. Hence Agranat's dictum that had they petitioned the Court for habeas corpus they probably would have won their freedom through legal means. Ibid., 361.

44. Ibid. [BACK]

45. Mitchell Cohen, Zion and State: Nation, Class and the Shaping of Modern Israel (New York: Basil-Blackwell, 1987), 201. [BACK]

46. This is amply clear when one looks at the sources that inspired the model and also at the various examples offered by Agranat, mostly related to issues of private law. [BACK]

47. Joseph W. Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," 1982 Wis. L. Rev. 975, 1057.

48. Ibid., 984. [BACK]

47. Joseph W. Singer, "The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld," 1982 Wis. L. Rev. 975, 1057.

48. Ibid., 984. [BACK]

49. I am indebted to Morton J. Horwitz for helping me clarify this relationship between Podamsky and American law. [BACK]

50. For a discussion of Israeli legal education in its formative period, see Asher D. Grunis, "Legal Education in Israel: The Experience of Tel-Aviv Law School," 27 J. Legal Ed. 203 (1975). [BACK]

51. There were, however, legal consequences to the categorization of the policemen's actions as liberty. It precluded a criminal or civil charge against the police for such actions. It should also be mentioned that the Israeli legal academy was enchanted by Hohfeld, whose model was taught extensively in introductory courses in jurisprudence as the epitome of legal philosophy. [BACK]

52. It may well be that the pragmatic Israelis had no patience with the highly analytical concepts embedded in the opinion. Shortly thereafter, when Israeli Supreme Court opinions were proudly translated into English to show the world the fruit of Israeli judicial labor, Podamsky was not included. [BACK]

53. Indeed, Agranat himself returned to his Podamsky opinion in 1956 and introduced to Israel's legal landscape the fourth category put forward by Hohfeld, immunities. C.A. 22/56, Cohen v. Ministry of Defense , 10(2) P.D. 1375 (1956). [BACK]

54. Other Agranat opinions related to civil liberties at this time concerned Israeli Arabs, particularly their right to stay in Israel and their freedom of movement, and the government's often rough treatment of the right wing and of free speech. For example, in H.C. 112/52, Khalf and Issa Halil Khalf v. Minister of Interior , 7 P.D. 185 (1953), Agranat rejected a challenge to a deportation order. He did, however, urge the minister of the interior to let the petitioner stay in Israel. The petitioner, a seventeen-year-old, had been a student in Lebanon during the 1948 war, had no relatives in Lebanon, and had a large family in Israel. In H.C. continue

46/50, Al-Ayoubi v. Minister of Defense , 4 P.D. 222 (1950), Agranat sustained an order limiting the right to travel of an Israeli Arab. The petitioner asserted that he was sick and in need of relocating to Jaffa, where he could obtain medical treatment. Agranat held that the military governor had acted within his powers when he decided to confine the petitioner to his village on the grounds of danger to the public peace and that the governor was not obliged to disclose his reasons in court. Agranat, however, recommended that the governor reconsider his order. But in H.C. 183/52, Abu Gosh v. Minister of Interior , 6 P.D. 862 (1952), Agranat dissented from a decision to sustain a deportation order on the ground that the petitioner left during the war "out of his own free will." Agranat held that there was no free will, because the petitioner, being known for his help to the Israeli forces, was in real danger of retribution. Similarly, in H.C. 8/52, Moustafa Saad Bader v. Minister of Interior , 7 P.D. 366 (1953), Agranat held three deportation orders against an Israeli Arab as invalid on grounds of due process and deployment of irrelevant considerations.

In Cr.A. 37/50, Sternhal v. Attorney General , 6 P.D. 119 (1952), Agranat upheld a conviction for contempt of court. Appellant Sternhal was convicted for having written in a letter to the minister of justice that, "because there is in the Supreme Court an atmosphere of fear of lawyers, there must be [a greater fear] of [judges in the rabbinical courts] because they have a connection to the court in Heaven." In Cr.A. 139/52, Attorney General v. Amos Keynan , 7 P.D. 619 (1953), Agranat rejected the prosecution's appeal of the acquittal of a defendant who was known as a former member of LEHI. The appellee was charged with placing a time bomb near the residence of former Minister of Transportation David Zvi Pinkas on 22 June 1952. Agranat spoke at length about the significance of the right to remain silent and then, refusing to interfere with the holding of the district court that the appellee, a journalist, did not have to testify about a telephone message he had received concerning the bomb, explaining that it was "a professional secret, that he should not divulge to others, including to the police." It was, probably, the first recognition of a reporter's privilege in Israel. Ibid., 644-48. The above is a sample of Agranat's opinions during this period. [BACK]

55. A bill on the judiciary was presented to the Knesset on 26 February 1951, 8 Divre ha-Knesset [Israeli Parliamentary Protocol], 1176 (1951). It was passed to the Constitution, Statutes and Law Committee. [BACK]

56. From its inception and until 8 October 1951, the Ministry of Justice was in the hands of the Progressive Party. A crisis related to a disagreement between the government and the Knesset about elementary-school education led to the organization of a new government in which the Progressive Party did not participate. During this period Bernard Joseph, known in Israel by his Hebrew name, Dov Yoseph, served as minister of justice. The Progressive Party returned to the government on 23 December 1952, and the Ministry of Justice was returned to Pinhas Rosen, who had held it previously. See Gad Yaacobi, Ha-Memshalah [The Government] (Tel Aviv: Am Oved & Zmorah, Bitan, Modan, 1980), 341. [BACK]

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116. [BACK]

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116. [BACK]

57. 11 Divre ha-Knesset , 1115-29 (1952).

58. Ibid.

59. Ibid., 1116. [BACK]

60. After observing that Israel's press is licentious and is damaging the inter- soft

ests of the state, Joseph continued: "It is true that our financial situation is bad, but it is not necessary to publicize it so that the enemy will know." "Ha-Hok al Tkifat Shotrim Hu'avar la-Va'adah [The Law of Assault on Policemen Was Transferred to the Committee]," Ha-Arets , 25 June 1952, 2. [BACK]

61. Olshan, Din u-Dvarim , 244. [BACK]

62. Elyakim Rubinstein, Shoftey Erets [Judges of the Land] (Jerusalem: Schocken, 1980), 98. [BACK]

63. On grounds of separation of powers. Ibid. [BACK]

64. 11 Divre ha-Knesset , 1146 (1952). [BACK]

65. "Sar ha-Mishpatim etsel Nesi Bet ha-Mishpat ha-Elyon [The Minister of Justice Visited the Chief Justice]," Ha-Arets , 5 March 1952, 10. [BACK]

66. Simon Agranat, "Trumatah shel ha-Rashut ha-Shofetet le-Mifal ha-Hakikah [The Contribution of the Judiciary to the Legislative Endeavor]," 10 Iyune Mishpat 233, 234 (1984). [BACK]

67. Judges Law, 5713-1953, 9 L.S.I. 124, sec. 13. [BACK]

68. Smoira was in bed with a stroke, and Justices Olshan and Silberg were not on speaking terms. In addition, the Court was in the midst of a confrontation with the Ministry of Foreign Affairs, which had refused to issue the justices diplomatic passports. Agranat's travel on an ordinary passport was viewed as a setback in this struggle. There were also some personal considerations against traveling: a fifth child had just been added to the family. [BACK]

69. Durham v. United States , 214 F.2d 862 (1954). [BACK]

70. Bartley C. Crum was a partner in the law firm of Hays, Podell, Algase, Crum & Feuer in New York City. He had been a member of the Anglo-American Committee of Inquiry on Palestine in 1946, an experience that turned him into a staunch supporter of the Jewish state, as he revealed in his book, Behind the Silken Curtain: A Personal Account of Anglo-American Diplomacy in Palestine and the Middle East (New York: Simon & Schuster, 1947). [BACK]

71. Simon Agranat, letter to Dr. Arthur Fishzohn, 30 October 1953, Agranat papers, Agranat family, Jerusalem, acknowledging receipt of books and ink. [BACK]

72. H.C. 73/53, 87/53, Kol ha-Am v. Minister of the Interior , 7 P.D. 871 (1953) (Hebrew), 1 Selected Judgments of the Supreme Court of Israel 90 (1948-1953) (English) (known as Kol ha-Am ). [BACK]

73. Dennis v. United States , 341 U.S. 494 (1951). [BACK]

74. See Abrams v. United States , 250 U.S. 616 (1919); Gitlow v. New York , 268 U.S. 652 (1925); Whitney v. California , 274 U.S. 357 (1927) (concurrence). [BACK]

75. Terminiello v. Chicago , 337 U.S. 1 (1949). [BACK]


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