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Published online by Cambridge University Press: 04 July 2014
Ganimat v. The State of Israel (1995) 49(iv) P.D. 589.
The appellant was indicted in the Jerusalem Magistrate Court for two incidents of car theft. His detention was requested on the grounds that he posed a “danger to society”. The Magistrate Court agreed to his arrest, holding that a custom has been established whereby custody may be justified in crimes which have become “a nationwide scourge”, including car theft. The District Court rejected the appeal. The appellant was granted permission to appeal the decision in the Supreme Court (decision of Dorner J. and Barak J.; Cheshin J. dissenting) and his conditional release was ordered. However, it was decided to hold Special Proceedings in order to discuss some of the important issues raised by the case. The principal constitutional question raised by the case was whether the Basic Law: Human Dignity and Liberty influences the interpretation of the existing law, in the present case, the law of arrest as regulated by the Law of Criminal Procedure.
1 S.H. 1992, no. 1391, p. 150, as amended S.H. 1994, no. 1454, p. 90.
2 S.H. no. 1592, p. 338 (12 May 1996).
3 The only point of unanimous agreement among the Ganimat Court, is that “a nationwide scourge” does not, by itself, justify arrest, but it may be taken into account when assessing whether the accused poses a danger to society. Regarding the specific circumstances of Ganimat, Cheshin J.'s conclusion as to the existence of grounds for arrest, was supported by the majority (Barak J. and Dorner J. dissent). However, only President Shamgar thought that there was no room for alternatives to arrest. The remaining judges were divided in their opinions between those who asserted that there was room for an alternative, and those who found no need to discuss the matter.
4 First, it placed the burden of rehabilitation exclusively upon the creditors, as opposed to the public as a whole, and second, it created arrangements for only part of the agricultural sector rather than for the entire sector. Further, the District Court held that the law did not serve a “worthy purpose”, and did not meet the conditions of proportionality (sec. 8 of the Basic Law).
5 Cheshin J. also gives his view (also a minority view) regarding the Knesset's authority to limit its own power. According to Cheshin, in keeping with the principle of majority rule, a majority of 61 cannot restrict the powers of the Knesset; any requirement of a law or Basic Law that an amendment be made by a majority of more than 61 members of Knesset lacks force.
6 According to Bach J., the Court would be required to determine this issue only if the Knesset were to enact a Basic Law that is challenged as unfit to be included in the framework of Basic Laws.
7 As demonstrated by the excerpts below, Barak J. opts for a broad construction of the right, including any possession or interest that has financial value. Zamir J. was hesitant in adopting such a broad definition lest the courts be flooded with cases, and the right itself be diluted. Mazza J. prefers to postpone deciding on the issue. Shamgar agrees in principle with Barak, however, regarding the “property right”guaranteed by the Basic Law, he believes intervention in fiscal legislation to be warranted only in the case of a clearly and obviously illegal law that presents an extreme deviation from the bounds of reasonableness, such as, confiscation without compensation, or a confiscatory tax.
8 However, in the Basic Law: Freedom of Occupation it is provided that four years after its commencement its provisions will also be binding retrospectively.
9 Rawls, , Political Liberalism (New York, 1993) 223 Google Scholar.
10 Ibid., at 298.
11 Levin J., at 468; Zamir J. at 471; Mazza J. at 577; Bach J. at 588 and subject to his reservations regarding the source of the Knesset's authority to enact a constitution; Tal J. and Goldberg J. concur with the operative decision with no explicit mention of para. 108.
12 In full, the three ancillary tests which constitute the test of proportionality are as follows: 1) there is a relationship between the objective of the law and the means chosen to achieve that aim; 2) there is no possibility of attaining that aim by alternative means whereby the violation would be reduced — the element of necessity; 3) in implementing the chosen means, the benefit to the public must be balanced against the damage to the individual.
