¹ Although precise statistics are not available, it may be stated that this practice is not entirely new and has considerably increased over the last few years.

² S.H. (1985), no. 1155, p. 196, Amendment No. 9 to Basic Law: The Knesset (12 L.S.I. 85).

³ (1965) 19(iii) P.D. 365. Cf. Guberman, Shlomo, “Israel's Supra-Constitution” (1967) 2 Is. L. R. 455Google Scholar.

⁴ Knesset Elections Law (Consolidated Version), 5729–1969 (23 L.S.I. 110).

⁵ The Chairman of the Committee is a Judge of the Supreme Court, but the other members are representatives of the political parties in the Knesset, proportionate to the size of the party.

⁶ The idea of supra-constitutional law is found mainly in the opinion of Sussmann J. See also Guberman, supra n. 3.

⁷ Cf. e.g., Burdeau, Georges, Traité de science politique (2nd ed., 1974) vol. III, p. 187et seqGoogle Scholar; also the abundant literature on Art. 21 of the Basic Law of the Federal Republic of Germany of 1949, as well as the decisions handed down on the basis of this Article.

⁸ (1981) 35 (iv) P.D. 837.

⁹ This is a general tendency in most modern systems of judicial review of the Administration. Over the last few years the Israeli system has developed guidelines regarding the “reasonable” character of the decision under review. Cf. on this subject, Shaked, M., “Comments on Judicial Review of Administrative Action” (1982) 12 Mishpatini 102Google Scholar, and Zamir, Eyal, “Unreasonableness — A Ground for Judicial Intervention in Administrative Law” (1982) 12 Mishpatim 291Google Scholar.

¹⁰ This same tendency is found in French and English law. It may perhaps be suggested here that it is not exactly a question of the “competence” of the Committee but, rather, of a valid reason for refusing to register a list. Indeed, the reversal of such a decision would be termed ultra vires, but would lack of competence, in the original sense of the term, be involved? An important and interesting analysis on this subject may be found in the opinion of Barak J. (para. 2 of his opinion, pp. 305–307): in analysing the Yeredor decision, Barak J. shows that, in any hypothetical case, in so far as the Committee possesses a certain competence, the problem will arise in terms of discretionary power, and therefore, ultimately, concerns the supervision of the exercise of discretionary power.

¹¹ The law (supra n. 2) provides the following reasons for refusal to register a list: “The negation of the existence of the State of Israel as the State of the lewish people; the negation of the democratic nature of the State; incitement to racial hatred.”

¹² Neiman, (1985) 39(ii) P.D. at 315.

¹³ We are not so naive as to think that such a legal provision could have avoided Hitler's rise to power. This is not the question. A legal problem of any kind must be considered solely in its context. In this connection, Shamgar P. makes an interesting observation in his judgment, in which he questions the actual basis of the “Weimar Syndrome”. The President recalls that, between 1922 and 1929, thirty political groups and parties were prohibited. This fact is obviously indisputable, but the success of the Nazis is even more so.

¹⁴ Neiman, supra n. 12 at 315–319.

¹⁵ Penal Law, 5737–1977, Chap. 8, Art. 2; Defence Regulations (Emergency) 1945, reg. 84; Ordinance Against Terrorism, 5708–1948, sec. 8.

¹⁶ The President quotes from abundant American legislation from the passing of the Smith Act in 1940, through the Subversive Activities Control Act of 1954. His reasoning here is linked to systems in which statutes exist (USA and DFR); we cannot but be struck by this fact.

¹⁷ Bejski J. does not clearly explain whether he rejects the criterion of Barak J. (reasonable danger) or whether the difference is more basic. It should be noted, moreover, that such a definite position (not the only one among the judges) on the nature of the Kach List may serve as an indication of the manner in which the Court might judge the eventual prohibition of the Kach List on the basis of the new law. This observation also applies to Barak J. The paradox here would be that his position, inclined to extending the Yeredor jurisprudence, might, on the contrary, (with regard to the criterion of reasonable danger) lead to a future reversal of the disqualification of the Kach party on the grounds that reasonable danger has not been proven.

¹⁸ It might be possible to provide detailed argumentation that such legislation is desirable but, on the contrary, for Barak J., such legislation is not desirable because it could endanger democracy.

¹⁹ 34 L.S.I. 181.

²⁰ See supra nn. 2 and 11.

²¹ An interesting development is also to be found in the judgment of Bejski J.

²² These decisions have been well analyzed by Lahav, Pnina, “Freedom of Expression in the Decisions of the Supreme Court” (1977) 7 Mishpatim 375Google Scholar.

²³ (1953) 7 P.D. 871; 1 S.J. 90.

²⁴ Yeredor, supra n. 3 at 381. Barak J. also refers to this passage.

²⁵ It should be recalled that the American criteria, consecutively considered are: “bad tendency”, “clear and present danger”, “balance of interests”.

²⁶ Neiman, supra n. 12 at para. 15, p. 260 et seq.

²⁷ Art. 21, Basic Law of the Federal Republic of Germany of 1949.

²⁸ E.g., Elon J. reiterates this point in his judgment, notably in the first paragraph (p. 288) (the Yeredor jurisprudence is defined as that authorizing the refusal to register a list “denying the right of existence to the State of Israel or its integrity”). In the fifth paragraph (p. 291) Elon J. even speaks of an “attack on the integrity of its borders” (this is surprising because Israel, apart from its frontier with Egypt, has no true borders). In the Yeredor decision itself, less stress was laid on this point; it first appears as a quotation from a passage in the initial decision reviewed by the Court (see p. 385 of the judgment). It reappears a few lines further down but that is all. It is true that from the analysis which considers Israel's right to a political existence as validation of the rights of the Jewish people, it may be deduced that the negation—or the questioning—of a border can serve as a basis for “the negation of the State of Israel as the State of the Jewish people”. This point may not apply, perhaps, to the region of the Golan Heights. Indeed, the first criterion adopted by the new law concerns “the Jewish character of the State of Israel”. It seems to us that it also involves a point of semantics; in order to avoid the new criterion it is not sufficient to declare the intention to keep the name of the State, i.e. Israel, if the true intention is to eliminate the State of the Jewish people (see, e.g., the Law of Return, 5710–1950 [4 L.S.I. 114]).

²⁹ Yeredor, supra n. 3 at 387.

³⁰ Ibid., at 389. Here there is a problem of translation: the words in Hebrew are “sidrei shilton” which literally mean “order of government” but which may be understood when it is recalled that one of the ordinances (normatively “a law”) adopted on 19 May 1948 by the Provisional Council of the State was entitled “Ordinance on the Order of Government”. (The official translation in the Laws of the State of Israel is Law and Administration Ordinance [1 L.S.I. 7]).

³¹ Ibid., at 372.

³² Neiman, supra n. 12, para. 3, p. 325.

³³ (1985) 39(iii) P.D. 141.

³⁴ HC 742/84 Meir Kahane v. Shlomo Hillel, Speaker of the Knesset et al. (not yet published).

³⁵ Rules of Procedure of the Knesset (9th ed., 1984) chap. 8, art. 134, p. 48.

³⁶ The decision was originally handed down and distributed to the parties in typewritten form. What is important, obviously, is the respective amount of space devoted to the two questions.

³⁷ (1982) 36(ii) P.D. 197.

³⁸ The petitioner, MK Yossi Sarid, accused the Speaker of the House of having postponed the debate for 24 hours in order to allow several members of the coalition, which was ruling with only a small majority, to return from abroad.

³⁹ Para. 14 of the decision, supra n. 34.

⁴⁰ Art. 134(c), Rules of Procedure of the Knesset, adopted 13 November 1985, Y.P., no. 3271, p. 772. The wording is practically identical to the amendment to the Basic Law: The Knesset (supra n. 2) which now provides that the registration of certain lists may be rejected. See supra n. 11.