1 (1977) (III) 31 P.D. 671.

2 See Basic Law: President of the State, sec. 13; but see infra section entitled Immunity and Non-Justiciability.

3 His offences included theft by a director, fraud, and offences against the Banking Ordinance, 1941, and the Emergency (Finance) Regulations, 1941.

4 State of Israel v. Ben-Zion (1976) (I) 30 P.D. 119.

5 State of Israel v. Ben-Zion, ibid., at 140. The reasoning of the Court was as follows: According to the medical prognosis Ben-Zion's fate would be determined in the next few years; if he survived these., the prognosis would be good. Thus there was no justification for a modest reduction in the twelve year sentence, and the Court was clearly not prepared to countenance a reduction so drastic as to prevent his reaching the critical period while in prison.

6 Apart from various ailments from which Ben-Zion suffered at the time of his sentence, in particular pericarditis, he is reported to have suffered two brain haemorrhages while serving his prison term.

7 This provision is now found in sec. 49(d) of the Crimes Law, 1977. When confirming the prison term, the Supreme Court alluded both to the provision in the Prisons Ordinance providing for transfer to a government hospital for treatment, and to the provision for early release, as possible courses which might be followed if the appellant's medical condition were to worsen.

8 See Ben-Zion v. Minister of Police and Release Board (1977) (I) 31 P.D. 484. Among the points referred to by the Court were: (a) the availability to Ben-Zion of adequate medical treatment; (b) the fact that there were other prisoners who suffered from similar ailments and (c) that the Release Board was justified in contemplating the wider implications which Ben-Zion's release would entail, and was not confined to considerations of the medical aspects of the case.

9 See the reported contents of the letter of the President of the Supreme Court (infra) in Haaretz, 29 September 1977.

10 The report of this panel has not been officially published, but its contents were leaked to the public.

11 The dimensions of the crime were undoubtedly the greatest ever known in Israel for a property offence. The police have assessed the damage caused as at least 130 million dollars. See Crime in Israel (The “Buchner Report”), (Israel Police, 1977) 82.

12 The President of the Supreme Court, Sussmann P. (who presided over the High Court in the proceedings referred to supra n. 8), took the unusual step of sending a note of protest to the Prime Minister.

13 The additional point was reportedly made by the President of the Supreme Court, in his letter of protest, that the matter was in a sense still sub judice at the time of the pardon, since the Release Board had not yet ruled upon the opinion of the medical panel. The Prime Minister, for his part, explained that his advice was influenced by a medical opinion submitted by Ben-Zion's private physicians, which, unlike the officially appointed medical committee, emphasised the danger to Ben-Zion's health which his continued incarceration could bring about.

14 An attempt was made to raise the matter in the Constitutional, Legislative and Judicial Committee of the Knesset, but this failed on procedural grounds. The question of parliamentary review of the pardoning power will not be dealt with in this note, which is concerned exclusively with judicial review. A discussion of the former topic may be found in Sebba, L., “Pardon and Amnesty — Juridical and Penological Aspects” (Hebrew University of Jerusalem, doctoral thesis, Chap. 9.)Google Scholar

15 The terms “pardon” and “clemency” are used in this article in a generic sense. Israel law vests in the President the power to “pardon offenders and to lighten penalties by the reduction or commutation thereof”. See sec. 11 (b) of the Basic Law: President of the State (18 L.S.I. 112). Ben-Zion was granted a mitigation of sentence rather than a “full pardon” for the offence.

16 Following an amendment to the High Court Rules, 1963, this Court has the power to dismiss a petition without calling upon the petitioner to appear before it, but only where “it is of the opinion that the petition does not disclose any ground on its face” (Rule 5).

17 If the release of Ben-Zion from prison were regarded as an error, it seems that the case would fall within the powers of the Court under sec. 20 of the Criminal Procedure Law, 1965 (as amended), to issue such a warrant on the strength of testimony on the part of a police officer “that there is reasonable cause for believing that person to have committed an offence and there were grounds for arresting him” (27 L.S.I. 249). The police (and indeed the private citizen too) has the power even without a warrant to arrest a person who has “escaped from lawful custody”. There might be a problem in such a case, however, as to whether the beneficiary of an unlawful pardon could be said to have “escaped”. The police has, of course, a general power to arrest persons suspected of having committed felonies — although this provision is directed primarily at persons who have not even been charged with an offence, let alone convicted and imprisoned.

18 18 L.S.I. 113.

19 Sec. 9(a) of the State President (Tenure) Law, 1951 stated that “The President shall not be called to account before any court or tribunal in respect of a matter relating to his functions or powers” (6 L.S.I. 5). See also infra n. 22.

20 Sofrin v. The President of the State (1959) 13 P.D. 1147. The Court was of the opinion that the issue of a declaration was also precluded by the above provision.

21 Matana v. A.G. (1960) 14 P.D. 970. It was subsequently held, in a Further Hearing (A.G. v. Matana (1962) 16 P.D. 430), that the President had not in fact commuted the sentence, but rather had remitted it subject to conditions. When the Basic Law: President of the State was subsequently enacted, the power to commute was expressly conferred upon him.

22 The words of Berinson J., at 980. At the Further Hearing the Attorney General's representative withdrew the argument based upon immunity. It should be noted that sec. 13 of the Basic Law is less far-reaching than the provision which applied previously, namely sec. 9 of the State President (Tenure) Law, 1951, which in addition to subsec. (a) cited above, stated categorically in subsec. (b) that: “No legal action shall be taken against the President during his tenure of office”. (6 L.S.I. 5).

23 See preceding note.

24 Jabotinsky v. Weizman (1951) 5 P.D. 801.

25 The prevailing provisions relating to Presidential clemency were then found in sec. 6 of the Transition Law, 1949 (3 L.S.I. 3).

26 In the case of Bergmann v. Minister of Finance (1969) (I) 23 P.D. 693 ((1969) 4 Is.L.R. 559), in which the Court for the first time considered the validity of a statute passed by the Knesset, it overcame the issue of justiciability by relying upon the Attorney General's waiver of any objection based upon this argument, while emphasising the need for a speedy decision. However, it seems doubtful whether the courts should be prepared to consider a non-justiciable issue simply on the ground that the parties do not object. See, on this point, the comments on the Bergmann case in the Is.L.R. ibid., and the view expressed by Witkon J. on this approach to the question of standing (see infra n. 2B), which applies a fortiori to the issue of justiciability. Cf. however, the view expressed by Professor Akzin in the course of his comment on the Bergmann case that “There is nothing in the common law approach that compels a court to consider justiciability of an issue and the doubts concerning its own jurisdiction when neither party has raised these points…” (Is.L.R. ibid., at 577).

27 See Klein, C., “The Temple Mount Case” (1971) 6 Is.L.R. 257, 264.Google Scholar The confusing state of the case law relating to justiciability has been discussed by Witkon, J. in his lecture entitled “Justiciability” published (1966) 1 Is.L.R. 40Google Scholar, and more recently in Ressler v. Minister of Finance et al. (1976) (II) 30 P.D. 337. The issue of justiciability is linked in his view to the question of standing to be considered below. “The nexus between these two types of cases is functional and may broadly be expressed by saying that the more standing a petitioner can show, the readier will the court be to overcome its reluctance to interfere in matters of policy. Conversely, ‘weak standing’ will strengthen such reluctance” (Witkon, “Justiciability” op. cit., at 48). This approach might tend to create doubts as to the justiciability of the issue in the present case, owing to the weakness of the petitioner's claim to standing (see infra). With respect, however, it is submitted that the clear differentiation between the concepts of justiciability and standing portrayed by Shamgar, J. in Ashkenazi v. Minister of Defence et al. (1976) (III) 30 P.D. 309, is to be preferred.Google Scholar

28 The issue of the petitioner's standing, like that of justiciability, was not determined in Bergmann's case, owing to the omission of the Attorney General to object on this ground. Witkon J. has criticised this approach (see Ressler's case at 345) which in his view demoted the courts to the role of arbitrators, while vexatious petitioners were encouraged to try their luck, entertaining the hope that no objection would be voiced by the respondents.

29 Becker v. Ministry of Defence et al. (1970) (I) 24 P.D. 238. The main exceptions in which no special personal injury need be shown, relate to matters pertaining to elections and local government (ibid.)

30 See Rubinstein, A., “The Standing of a Petitioner Seeking the Denial of Another's Rights in the High Court of Justice” (1972) 27 HaPraklit 499, 504.Google Scholar See also Pioni v. Prison Commissioner (1965) (IV) 19 P.D. 281.

31 See Eacret v. Holmes 333 P. 2d 741 (1958).

32 Reichbach v. A.G. (1960) 14 P.D. 2127. For certain offences a private party may instigate a criminal prosecution on his own account. In other cases, his only remedy is an appeal to the Attorney General against a refusal to prosecute. See Criminal Procedure Law, 1965, secs. 58, 62 and the Schedule (19 L.S.I. 158).

33 The independence of the Attorney General in bringing prosecutions has been considered in Shor v. A.G. (1957) 11 P.D. 285, and Vagner v. A.G. (1964) 18 P.D. 29. See also Ashkenazi's case, op. cit., at 320–1. Possible effects of the victim's conduct on sentence are discussed in Bein, D., “The Impact of the Victim's Behaviour on the Severity of the Offender's Sentence (with Special Reference to Israeli Law)” in Drapkin, I. & Viano, E. (eds.), Victimology: A New Focus (Lexington Books, Lexington, 1975) vol. III, p. 49.Google Scholar

34 The former President of the Supreme Court, Agranat P., once expressed the view that the President of the State had no power to grant reprieves, and thus was not empowered to suspend a prison term (as distinct from remitting a prison term subject to conditions). Should the President purport to exercise such a power, could any citizen then challenge the validity of the Presidential action in the High Court, by indirect proceedings for the immediate implementation of the penalty?

35 Thus, the view has been expressed that in the Bergmann case (supra n. 26), in which the petitioner ultimately prevailed the ruling may not necessarily be regarded as a precedent ((1969) 4 Is.L.R. 575).

36 “‘The government has decided that: (a) petitions for pardon will be brought before the Minister of Justice, who will forward them to the President of the State, attaching his recommendations; (b) petitions for pardon from members of the armed forces will be brought before the Minister of Defence, who will forward them to the President, attaching his recommendations’.” Cited by Zidon, A., Beth Hanivcharim (The Knesset — Israel's Parliament) (Jerusalem, 5th ed., 1969) 298, n. 21.Google Scholar

37 The power is thus vested primarily in the Prime Minister; and in the present case Mr. Begin did not need to act “in his capacity as acting Minister of Justice”, but could have countersigned in his capacity as Prime Minister.

38 Documents connected with the establishment of a new government or with the resignation of the President do not require countersignature. (See secs. 12 and 19 of the Basic Law).

39 See L. Sebba, Pardons and Amnesties — Juridical and Penological Aspects, op. cit., at 185, 272.

40 A.G. v. Matana (1962) 16 P.D. 430, 461–462. For this view he was taken to task by Berinson J. at 469–470.

41 What Dicey called “conventions of the constitution” were called by Anson “custom of the constitution”; see Jennings, W.I., The Law and the Constitution (London, 5th ed., 1959) 81.Google Scholar This expression is applied in particular to the area with which Cohn J. was concerned here, namely, the exercise of the prerogative, and the practice whereby the King of England acted on the advice of his ministers (ibid., at 87).

42 The conventions applying to the prerogative in England appear to have such force (see Jennings, ibid., at 87).

43 Conventions of the constitution are distinguished by Jennings from “mere practice”. “The fact that an authority has always behaved in a certain way is no warrant for saying that it ought to behave in that way. But if the authority itself and those connected with it believe that they ought to do so, then the convention does exist”. (Ibid., at 134—135).

44 This, however may be the true position; see Sebba, L., “The Power to Grant Pardons — The President's Prerogative” (1977) 8 Mishpatim 227, 248.Google Scholar

45 On the distinction between administrative and quasi-judicial decisions in the context of the clemency process, see Sebba, , Pardons and Amnesties — Juridical and Penological Aspects, op. cit., at 191–193.Google Scholar

46 On the other hand, in those rare cases where a pardon is known to be under consideration but no recommendation has yet been made, such as occurred in the case of Archbishop Hilarion Capucci, an injunction could be sought to prevent a favourable recommendation (assuming that there were legitimate grounds for such an injunction). Alternatively, an injunction could be sought to prevent the application of the countersignature.

47 Klinghoffer, H., “The Constitutional Framework of Pardon in Israel” (1969) 27 Ha'umah 320, 325–6.Google Scholar

48 L. Sebba, op. cit., supra n. 44.

49 See Gulley v. Budd 189 S.W. 2nd 385 (1945). The possibility of judicial annulment of a pardon obtained by fraud was provided in England under the Pardon of Felony Statute 1353 (27 Edw. 3 Stat. I).

50 See Bognim v. Chief of Staff (1958) 12 P.D. 1653. The President's immunity would of course prevent a direct attack on a decision which was merely voidable. A tendency has been observed to extend the grounds of collateral attack where direct attack is not possible (see Zamir, I., Adjudication in Administrative Cases (Academic Press, Jerusalem, 1975) 34, n. 41)Google Scholar, but this may not be applicable in the present context.

51 See Attorney General's Survey of Release Procedures, Vol. III: Pardon, (Washington, Dept. of Justice, 1939) 184–5.

52 Exp. Paquette 27 A 2d 129 (1942); Gulley v. Budd, op. cit. In the present case, Cohn J. stated that a mistake of fact “could not derogate from the legal validity of the (pardoning) decision”, thereby implicitly excluding voidability as well as voidness.

53 Professor Zamir, however, suggests that discrimination should constitute a legitimate ground for collateral attack; see Zamir, op. cit. supra n. 50, at 29.

54 In the Matana case Cohn J. described the pardoning power as containing an element of “free and unlimited will, even arbitrariness” (A.G. v. Matana, op. cit., at 463). Moreover, in Ozer v. A.G. (1965) (IV) 19 P.D. 31, Agranat J. described the President's power in this respect as “absolute”, so that “if he makes a negative decision, no doubt may be cast upon it and no question of mistaken exercise of discretion can arise” (ibid., at 41). His words were, however, obiter dicta.

55 See: Ex p. Grossman 69 L Ed. 527 (1925); A.G. v. Matana, op. cit., at 454.

56 Bognim v. Chief of Staff, op. cit., at 1659–1660.

57 See L. Sebba, op. cit. supra n. 44, at 243.

58 Under some legal systems the very purpose of the countersignature is to bestow upon the countersigning Minister legal responsibility for the President's acts; see Laferrière, J., “Le Contreseing Ministériel” (1908) Revue Générale d'Administration 9, 17.Google Scholar

59 Following Professor Klinghoffer's view of this act; see supra.

60 It seems somewhat surprising that the Court should have regarded a petition which potentially raised such important questions as vexatious, even if the arguments were ultimately unlikely to succeed. It may be that the Court was influenced by the careless drafting of the petition, reflected in the mélange of alleged vitiating grounds, attributed somewhat indiscriminately both to the decision of the President and the recommendation of the Minister, as well as the confusion between the terms “void” and “voidable” — and even in the identification of the two respondents!