1 On the question of lacunae in the law see Gavison, R., “Abolition of the Mejelle: Custom as a Source of Law” (1984) 14 Mishpatim 325, at 337 Google Scholar.

2 See Tedeschi, G., “Custom in Israel Law: Present and Future” (1973) 5 Mishpatim 9 Google Scholar; see also Gavison, supra n. 1; Even, D., “Custom in Public Law – Following the Agranat Report” (1976) 7 Mishpatim 201 Google Scholar.

3 34 L.S.I. 181.

4 S.H. (1984) no. 119, p. 156 Google ScholarPubMed.

5 This, among other things, is by virtue of the provisions of sec. 2(b) of the Foundations of Law Act, whereby: “The provision of subsection (a) shall not derogate from the law which was accepted in Israel before the coming into force of this law”, and by virtue of the fact that the custom was determined by the provision of the Mejelle and was not integrally connected to English law.

6 Procaccia, G., “Foundations of Law, 1980” (1984) 10 Iyunei Mishpat 147 Google Scholar; Gavison, supra n. 1, at 358-360.

7 Gavison, supra n. 1, at 349, 353.

8 Ibid., at 366.

9 See Tedeschi, supra n. 2, at 52; Even, supra n. 2, at 205-207; compare with Gavison, supra n. 1, at 349.

10 See Gavison, supra n. 1.

11 See the list of laws in Tedeschi, supra n. 2, at 10, nn. 8-10; see also Gavison's analysis of legislative provisions, supra n. 1, at 353.

12 17 L.S.I. 58. See also sec. 47.

13 K.T. (1958) no. 797, p. 1256 Google ScholarPubMed.

14 See Military Justice (Amendment No. 12) Law, 1979 (33 L.S.I. 133), sec. 4.

15 Basic Law: The Knesset (12 L.S.I. 85).

16 Landau, M., “Rule and Discretion in the Administration of Justice” (1969) 1 Mishpatim 292 Google Scholar.

17 Lavi v. Officer in Charge of Recompensation (1972) 26(ii) P.D. 509.

18 Kohen v. Minister of Defence (1962) 16 P.D. 1023.

19 Ibid., at 1027. The appellant was not successful in the Kohen case. But see Yunes v. Director-General of the Prime Minister's Office (1981) 35(iii) P.D. 589.

20 For a discussion on judicial creativity and gaps, see Gavison, supra n. 1, at 337.

21 Zilbiger v. Dickman (1956) 10 P.D. 253. Custom in Israel is distinct from custom in England in that the requirement of antiquity and the condition that the custom not encompass the entire country do not constitute conditions for the creation of custom.

22 See Wolfsohn v. Sphinx Co. Ltd. (1951) 5 P.D. 267, in which Silberg J. defines custom as certain behaviour which the public has accepted as an obligatory legal norm as if it were the product of legislation. The pattern of behaviour which constitutes custom does not have to be shared by the general public, but may relate to holders of certain office.

23 In the process of judicial recognition of custom there is a process of filtering according to certain criteria, such as public policy or reasonableness. See Gavison, supra n. 1, at 338-339.

24 See the general discussion on custom in Israel, Tedeschi, supra n. 2.

25 Ibid., at n. 19.

26 See the discussion on the essence of international law. The test based upon the requirement of sanctions, as espoused by Austin, does not see international law as law. Austin, J., Lectures on Jurisprudence (Campbell, 4th ed., 1873) 231–232 Google Scholar; Austin, J., Lectures on Jurisprudence (Campbell, 5th ed., 1911) 77–103 Google Scholar. Some scholars, such as Kelsen, see the possibilities of war and retaliation as fulfilling the requirement of sanctions. See Dinstein, Y., International Law and the State, Vol. 1 (Tel Aviv, 1971, in Hebrew) 22 Google Scholar. Yet, not all scholars view the obligatory foundation in the definition of law as requiring the existence of sanctions. Pollock, for example, maintains that the perception of an obligation to honour a norm is sufficient to term it law and that there is no need for sanctions: Pollock, J., First Book of Jurisprudence (London, 1896) 1–15 Google Scholar.

27 Salmond On Jurisprudence (London, 12th ed. by Fitzgerald, P.J., 1966) 201–203 Google Scholar.

28 See Silberg J.'s ruling in the Wolfsohn case, supra n. 22.

29 English law requires that custom be recognized as such from 1189. See Salmond, supra n. 27.

30 See Tedeschi, supra n. 2, at 36.

31 For example, the procedure of appointing the Chief of Staff. See Even, supra n. 2, at 201.

32 Compare with Tedeschi, supra n. 2, at 55.

33 Usage cannot change law or prevail over a contract between parties. It is necessary to recall the distinction between “contract usage” – conditions adopted by the parties into the terms of contract – and “legal usage” – factual usage adopted by the law. See Tedeschi, supra n. 2, at 9-12. English law requires that the usage be known, reasonable, and limited to a certain realm or domain.

34 Tedeschi, supra n. 2, at 9-15; see Glicksman v. Chairman Ra'anana Local Council (1960) 14 P.D. 1085, especially Cohn J.'s comments on p. 1088.

35 Tedeschi, supra n. 2, at 16.

36 Gavison, supra n. 1, at 353.

37 Paton, , A Textbook of Jurisprudence (Oxford, 3rd ed., 1964) 279–283 Google Scholar; Salmond, supra n. 27, at 233-234.

38 See Procaccia, G., “Legal Action in New Civil Legislation” in Collection of Lectures delivered at a Seminar for Judges, Shetreet, S., ed. (Jerusalem, 1975, in Hebrew) 31 Google Scholar.

39 Mizrachi v. Mizrachi (1964) 18(i) P.D. 325, at 334. Here the concept is discussed in the context of the Capacity and Guardianship Law, 1962 (16 L.S.I. 106). See also Tedeschi, G., “Authorization of Torts” (1969) 4 Is.L.R. 1 Google Scholar and Barak, A., Agency Law, 1965 in Commentary on Laws Relating to Contracts, Tedeschi, G., ed., (Jerusalem, 1975, in Hebrew) 27–86 Google Scholar.

40 See Adiri v. The State Comptroller (1965) 19(i) P.D. 401, in which Cohn J. discusses the legal significance of usage. The ruling implies that usage, as opposed to law, does not inherently constitute a source of rights and obligations. This case may be a basis for a line of reasoning that administrative guidelines should be viewed as usage.

41 See Miller v. Jerusalem District Income Tax Assessor and Others (1957) 11 P.D. 219.

42 Zemurot. Ltd. v. Attorney-General (1960) 14 P.D. 1436.

43 Velt v. Director of the Development Authority and Others (1959) 13 P.D. 891, at 895. A similar approach may be seen in Olshan J.'s commentary in Zamir v. Road Traffic Supervisor (1953) 7 P.D. 358, at 363, which recognized the road traffic supervisor's right to determine the guidelines that constitute principles of action in order to preclude discrimination in the distribution of taxi licences. Such discrimination is likely to be manifest inasmuch as all applicants cannot be granted licences. For a detailed, general discussion of administrative guidelines see Directives of the Attorney-General, no. 60.013.

44 See Nochimovski v. Minister of Justice and Others (1954) 8 P.D. 1991; Nachisi v. Chairman, Herzliya Local Council and Others (1958) 12 P.D. 272. An authority may not discriminate out of unfit motivations. Barad v. Minister of Development (1962) 16(iii) P.D. 2141. The citizen may be entitled to rely upon and demand rights on the basis of previous usage, even though new usage was subsequently established, if he can prove that he acquired the right by virtue of the prior usage. See Va'anunu v. Ministry of Transport (1967) 21(ii) P.D. 710, especially at 710-717.

45 Tedeschi, supra n. 2, at 55.

46 Ibid., at 25, and Gavison, supra n. 1, at 340-344.

47 In this sense, custom fills lacunae in the system of written law. See Gavison, supra n. 1, at 336-337.

48 For a comprehensive review of the literature and a comparative analysis of the positions of various systems of law, see Even, D., Desuetudo (Doctoral Thesis presented in Jerusalem, 1976) 79 Google Scholar. Continental law recognizes the possibility of later custom repealing law.

49 See, for example, supra n. 41, at 220.

50 Even, supra n. 48, at 174.

51 Ibid.

52 A fascinating example of this judicial technique may be found in the issue of key-money in protected tenancy. In Israel, a custom developed whereby an incoming tenant would pay the outgoing tenant key-money, part of which would be transferred to the owner of the dwelling. This key-money embodied the difference between the real worth of the rental and the rent actually paid by a tenant protected under Tenants' Protection (Tenancy Involving Key-Money) Law, 1962 (16 L.S.I. 119). The payment was contrary to the declared intention of the legislator to protect weak socio-economic sectors, and its receipt was therefore forbidden in Article 7 of The Rent Restriction (Dwelling-Houses) Ordinances, No. 44, 1940 (Palestine Gazette, 1940, Supp. I, p. 289). Despite the prohibition, social reality prevailed over legislative imperatives, and the custom of key-money remained in effect. According to the approach of Israeli law, not only was the existence of contrary custom incapable of repealing the law, but the Court had to view it as illegal and, consequently, declare it invalid. Actually, limited interpretation of the article by the courts facilitated the emergence of a number of methods of paying key-money without violating the law. The result was that the custom of keymoney was no longer contrary to the law, but existed alongside of it. For additional examples see Even, supra n. 48, at 180.

53 Gavison, supra n. 1, at 340-341.

54 Ibid.; see also Wilcox, A.F., The Decision to Prosecute (London, 1972)Google Scholar.

55 18 L.S.I. 111.

56 Kamiar v. The State of Israel (1968) 22(ii) P.D. 89.

57 See Marshall, G. and Moodie, G.C., Some Problems of the Constitution (rev. ed., 1961) 29 Google Scholar et seq.; Jennings, I., The Law and the Constitution (5th ed., 1959) 134–136 Google Scholar; Jennings, I., Cabinet Government (3rd ed., 1959) 5–13 CrossRefGoogle Scholar; Philips, O. Hood, Constitutional and Administrative Law (5th ed., 1973)Google Scholar; Munro, , “Laws and Conventions Distinguished” (1975) 91 L.Q.R. 218 Google Scholar.

58 Consider the writing of the scholar Sir William Holdsworth on this issue: Holdsworth, W., “The Conventions of the Eighteenth Century Constitution” (1932) 17 Iowa L.R. 161, at 162 Google Scholar: “In fact, conventions must grow up at all times and in all places where the powers of the government are vested in different persons or bodies – where, in other words, there is a mixed constitution. ‘The constituent parts of a state’, said Burke, (French Revolution, 29)Google Scholar, ‘are obliged to hold their public faith with each other, and with all those who derive any serious interest under their engagements, as much as the whole state is bound to keep its faith with separated communities’. Necessarily conventional rules spring up to regulate the workings of the various parts of the Constitution, their relations to one another, and to the subject”.

59 I. Jennings, The Law and the Constitution, supra n. 57, at 136.

60 For example, in the imperial discussions between the British authorities and representatives of the former colonies of Canada, Australia, and New Zealand, or in the preamble to the Westminister Law of 1931, which determined the constitutional arrangement between the aforementioned States and Britain.

61 Hogg, P., Constitutional Law of Canada (1977) 7 Google Scholar.

62 See Attorney-General of Manitoba v. Attorney-General of Canada (1981) 6 W.W.R. 1, at 99 (per Martland, J.). This ruling dealt with provincial participation in the process of amending the constitution.

63 Gallant v. R (1949) 2 D.L.R. 425 (P.E.I. CA.); see comment on the case of KM Martin in (1946) 24 Can. B.R. 434 Google ScholarPubMed.

64 Modzimbamuto v. Lardner-Burke (1969) 1 A.C. 645, (1968) 3 All E.R. 561; Reference re Weekly Rest in Industrial Undertakings (1936) S.C.R. 461, (1936) 3 D.L.R. 673Google ScholarPubMed; (1937) A.C. 326 (The Labour Convention Case); see Duff C.J.C. in (1936) S.C.R. at 466-467; Br. Coal Corp. v. R. (1935) A.C. 500; A.G. v. Jonathan Cape Ltd., A.G. v. Times Newspapers (1976) 1 Q.B. 752, (1975) 3 All E.R. 484; Copyright Owners Reproduction Society Ltd. (1958) 100 C.L.R. 597 (Aust. H.C.); Blackburn v. A.G. (1971) 1 W.L.R. 1037; (1971) 2 All. E.R. 1380 (C.A.) A.G. Man. v. A.G. Canada, supra n. 62, at 102 and the authorities cited therein.

65 Copyright Owners Reproduction Society Ltd., Ibid.

66 Howard, C., Australian Federal Constitutional Law (3rd ed., 1985) 135–138 Google Scholar.

67 See the cases mentioned in n. 64, supra.

68 “It is our view that it is not for the courts to raise a convention to the Status of a legal principle”. A.G. Manitoba v. A.G. Canada, supra n. 62, at 131 (per Laskin, C.J.).

69 Ibid., at 1.

70 Majority: Laskin, C.J., Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer, JJ.; Minority: Martland and Ritchie, JJ.

71 Majority: Martland, Ritchie, Dickson, Beetz, Chouinard, Lamer, JJ.; Minority: Laskin, Estey, and McIntyre, JJ.

72 For example, there are those who maintain that constitutional convention cannot constitute a base for the development of obligatory constitutional law. See supra n. 68. This is not the case in Israeli law; it is decidedly likely that constitutional practice may develop into obligatory constitutional custom.

73 Sec. 15, Basic Law: The Government (22 L.S.I. 257).

74 Sec. 24, Ibid.

75 Dicey, , The Law of the Constitution (London, 10th ed., 1959) 30–31 Google Scholar.

76 Attorney-General v. Matana (1962) 16 P.D. 430; HaEtzni v. Amos Ben-Gurion (1957) 11(i) P.D. 403.

77 Kamiar, supra n. 56, especially the commentary by Cohn J. at 97.

78 1 L.S.I. 7.

79 Supra n. 77.

80 Tedeschi, supra n. 2, at 52.

81 The concept of “public law” in its wide sense is not limited to administrative and constitutional law, but includes laws of evidence, criminal law, civil and criminal procedure and other realms in which governmental power is unilaterally exercised by a public authority. See Akzin, B., “On Public Law”, in Israel Academy of Sciences and Humanities, Proceedings (Jerusalem, 1968, in Hebrew) Vol. 3, No. 5Google Scholar.

82 See Tedeschi, supra n. 2, at 56.

83 Civil Procedure Rules, 1984 (K.T. (1984) no. 4685, p. 2220).

84 Criminal Procedure Law (Consolidated Version), 1982 (36 L.S.I. 85).

85 Hason v. Attorney-General (1950) 4 P.D. 843.

86 Ibid., at 855; see also Harnon, A., Law of Evidence (Jerusalem, 1985, in Hebrew) Part 2, pp. 16–22 Google Scholar.

87 2 L.S.I. [N.V.] 198, at 200.

88 See Harnon, supra n. 86, at 278.

89 (1956) 10 P.D. 1720, at 1732–1733 Google ScholarPubMed.

90 Kapon v. Attorney-General (1948) 1 P.D. 793.

91 (1953) 7 P.D. 296, at 304 Google ScholarPubMed.

92 24 L.S.I. 112. The issue is currently governed by sec. 45 of the Penal Law, 1977 (L.S.I. – Special Volume).

93 (1953) 7 P.D. 1105, at 1109 Google ScholarPubMed.

94 (1949–1950) 2 P.D. 837 Google ScholarPubMed.

95 Levi v. Attorney-General (1950) 3 P.D. 8; Attorney-General v. Hussein Hamdan, supra n. 94; Blecher, supra n. 93.

96 Formerly, sec. 189 of the Criminal Procedure Law, 1965 (19 L.S.I. 158), and currently sec. 208 of the Criminal Procedure Law (Consolidated Version), 1982, supra n. 84.

97 Brand v. State of Israel (1978) 32(i) P.D. 217; Proshinski v. Tik (1959) 13 P.D. 832.

98 Zmiro Mahmoud Said v. District Court (1974) 28(ii) P.D. 37, at 42-43 (correction of an error in the ruling pursuant to the appeal of the litigant's representative).

99 Zucker v. Tax Assessment Officer (1958) 35 P.E. 102; Kuwart and Geller v. Official Receiver (1959) 13 P.D. 95.

100 Kramer v. Zingler (1953/4) 9 P.M. 36; Stauber v. Muha (1972) 26(i) P.D. 416, at 419; Yehezkel v. Head of the Execution Office (1955) 9 P.D. 1617.

101 Derevski v. Attorney-General (1958) 12 P.D. 662.

102 Cohen v. State of Israel (1978) 32(i) P.D. 575.

103 Bukbeza v. Bukbeza (1967) 21(ii) P.D. 3.

104 See Zidon, A., The Knesset – Israel's Parliament (Jerusalem, 5th ed., 1969, in Hebrew) 101–114 Google Scholar.

105 22 L.S.I. 257.

106 Approved in its meeting of June 8, 1968. The Government has since then revised the text of its Rules of Procedure several times.

107 Kamiar, supra n. 56.

108 Barzilai v. Prime Minister (1977) 31(iii) P.D. 671.

109 Etzion v. Head of the Execution Office (1952) 6 P.D. 484.

110 Shochat v. Sahar (1953) 7 P.D. 987 (custom regarding the appointment and dismissal of policemen).

111 Suleiman Ali Faru v. Kadi Mazhab (1966) 20(ii) P.D. 342.

112 1 L.S.I. [N.V.] 145. Ezra Eliyahu v. State of Israel (1978) 32(i) P.D. 536-537; Malka v. State of Israel (1978) 32(i) P.D. 250.

113 Publishers, Ltd. v. Tax Assessment Officer (1961) 27 P.M. 111.

114 State of Israel v. Paldom Steel, Ltd. (1978) 32(i) P.D. 16, at 18.

115 See text at supra n. 34.

116 See text at supra nn. 33-47.

117 See, for example, Kamiar, supra n. 56; Brand, supra n. 97.

118 See Barzilai, supra n. 108.

119 See Shochat, supra n. 110.

120 See Blecher and Hamdan, supra nn. 93-94; Levi, supra n. 95; Ploni, supra n. 89, Hason, supra n. 85.

121 See n. 87, supra.

122 Eliyahu and Malka, supra n. 112; Publishers, Ltd., supra n. 113; Paldom Steel, supra n. 114.

123 Terlo, Z., Governmental Powers (Jerusalem, 1975, in Hebrew) 1–24 Google Scholar.

124 A similar debate centers around the question of whether international law constitutes law. See n. 26, supra.

125 This approach was adopted in the Prescription Law, 1958 (12 L.S.I. 129), sec. 2: “… prescription shall not per se void the right itself”.

126 (1973) 27(i) P.D. 245, at 252 Google ScholarPubMed.

127 An extreme example of this may be seen in the Suleiman Balan case, (1968) 22(i) P.D. 617 Google Scholar. The litigant had the right to hunt under the Wild Animals Protection Law, 1955 (9 L.S.I. 8), but the High Court of Justice ignored that right because its sense of justice had been prejudiced. For criticism of the ruling, see Zamir, I., “On Justice in the High Court of Justice” (1970) 26 HaPraklit 212 Google Scholar, as well as Osnat, A., “Concepts of Justice in the High Court of Justice” (1971) 27 HaPraklit 243 Google Scholar.

128 Igud Ha Ye'ul v. Minister of Labour (1975) 29(i) P.D. 645, at 649. On the essential and procedural rights of standing, see Segal, Z., Standing Before the Supreme Court Sitting as a High Court of Justice (Tel Aviv, 1986, in Hebrew) 23 Google Scholar et seq. See also Builders' Centre v. Government of Israel (1980) 34(iv) P.D. 729; Doron v. Foreign Currency Comptroller (1984) 38(ii) P.D. 323.

129 Corroboration of this approach may be found in Fogel v. Broadcasting Authority (1977) 31(iii) P.D. 657. Landau D.P. repeats Witkon J.'s comments in the Igud Ha Ye'ul case (supra n. 128), but adds: “It is not to be concluded that the contrary also holds true, that when the litigant has the procedural right of standing to appear before the Court, he has already proven his essential right … in any case, the right of standing is one thing and the substantive right another”. In other words, the right of standing and the substantive right are not synonymous. According to Justice Landau's method, there may be cases in which the rejection of a petition due to the lack of the right of standing does not mean that there is no substantive right.

130 Sarid v. Speaker of the Knesset (1982) 36(ii) P.D. 197; see also Kahane v. Speaker of the Knesset (1985) 39(iv) P.D., 85; Kach v. Speaker of the Knesset (1985) 39(iii) P.D. 141; Miari v. Speaker of the Knesset (1985) 39(iii) P.D. 122.

131 See infra, sec. H1.

132 Jabotinsky v. Weizmann (1951) 5 P.D. 801. At that time the Court resorted to the argument of injusticiability. Today, the President is immune to legal proceedings under the Basic Law: The President of the State.

133 Attorney General v. Matana, supra n. 76; Barzilai and Others v. Government of Israel (1986) 40(iii) P.D. 505 (The General Security Services Case).

134 Tedeschi, supra n. 2, at 27.

135 30 L.S.I. 150.

136 See discussion of these issues in Shetreet, S., “The Grey Area of War Powers: The Case of Israel” Jerusalem Quarterly, forthcoming, 1987 Google Scholar.

137 On the status of military orders prior to the legislation of the Basic Law: The Army, see Rubinstein, A., “Mandatory Defence Regulations: The Law and The Necessity for Change” (1972/1973) 28 HaPraklit 486 Google Scholar; Hadar, Z., “The Legal Status of Army Orders” (1974) 29 HaPraklit 232 Google Scholar.

138 Supra n. 14.

139 29 L.S.I. 273.

140 See, for example, Article 37 of the Government Rules of Procedure, Nov. 5, 1961; Article 19 of the Government Rules of Procedure, June 9, 1974.

141 Supra n. 105.

142 See Zidon, supra n. 104, at 305-306 and n. 9.

143 13 L.S.I. 7. See speech by Raphael, M.K.I. (1958) 25 Divrei HaKnesset 303 Google Scholar et seq.

144 Shetreet, , “The Relationship Between the Rules of Natural Justice and Procedural Provisions in Statutes and Regulations” (1977) 31 HaPraklit 42 Google Scholar.

145 Saviyon Local Committee v. Minister of Interior (1977) 32(i) P.D. 566.

146 Ein Harod v. Lugasi (1959) 13 P.D. 1883, at 1899.

147 Haifa Refineries Inc. v. Labour Court (1972) 26(i) P.D. 18, at 25 (The claim was rejected). See also Artic Factories v. Director of the War Compensation Fund (1958) 16 P.M. 367, at 370.

148 Yavneh v. Minister of Agriculture (1976) 30(i) P.D. 437, at 441. For a corroborating opinion, see Southern Moshavim v. Property Tax (1969) 23(i) P.D. 512, at 568.

149 Katan v. Holon Municipality (1978) 32(i) P.D. 494, at 498. This dealt with interpretation of a document relating to a tender.

150 Ibid.; see also State of Israel v. Asher Maoz (1976) 30(iii) P.D. 748.

151 (1956) 10(iii) P.D. 1643, at 1645 Google ScholarPubMed.

152 Brill v. Attorney-General (1953) 7 P.D. 561, at 562.

153 See supra, sec. D2.

154 For erroneous interpretation, see Haifa Refineries, supra n. 147; see also Tedeschi, supra n. 2, at 34. And see more recently Ohf Ha'Emek v. Ramat Ishai Municipal Council (1986) 40(i) P.D. 113, at 146.

155 (1951) 5 P.D. 1017, at 1022 Google ScholarPubMed.

156 Supra n. 56.

157 See the examples, reviewed in Section E of this article, dealing with recognition of the court's jurisdiction, such as dismissal of an appeal due to failure to appear and its reinstatement upon presentation of convincing reasons See text at n. 96.

158 (1973) 27(ii) P.D. 20, at 23 Google ScholarPubMed.

159 (1952) 6 P.D. 1132 Google ScholarPubMed.

160 Nationalist Circles v. Minister of Police (1970) 24(ii) P.D. 141, at 178; Coptic Mutran (High Priest) v. Minister of Police (1971) 25(i) P.D. 225, at 434.

161 See comments by Zadok, M.K. H., Chairman of the Sub-committee for Basic Laws, in (1968) 52 Divrei HaKnesset 3097 Google Scholar, “There will always be a realm of matters that have not yet been governed by explicit law. In that realm the government must act, and we must authorize it and say: in those domains not governed by explicit laws, the government is the acting power on behalf of the State”.

162 See Shetreet, S., Laws of Public Administration: Fundamental Concepts, Authorization Systems and Institutional Decisions (Jerusalem, 1979, in Hebrew) 100–101 Google Scholar.

163 Supra n. 56.

164 Coptic Mutran, supra n. 160.

165 Klinghoffer, H., “Israel's Ombudsman” (1972) 4 Mishpatim 148, at 165 Google Scholar.

166 Secs. 59-62 of the Criminal Procedure Law, supra n. 84.

167 On the guidelines of the Attorney-General and their status, see Zamir, I., “Publication of the Attorney-General's Opinion” (1974) 5 Mishpatim 750 Google Scholar.

168 See, in general, Rubinstein, A., The Enforcement of Morals in a Permissive Society (Tel Aviv, 1975, in Hebrew)Google Scholar; Gavison, , “Prof. Rubinstein's ‘The Enforcement of Morals in a Permissive Society’” (1976) 7 Mishpatim 353, at 354 Google Scholar; Gavison, supra n. 1, at 310-313.

169 Winograd v. Attorney-General (1980) 34(ii) P.D. 634.

170 On the question of publishing see Yehudit Naot and Others v. Haifa Municipality (1983) 37(iv) P.D. 183.

171 See Attorney-General Guideline 21.779 (February 1, 1985).

172 See Tedeschi, supra n. 2, at 41.

173 Barby v. Attorney-General (1960) 14 P.D. 925, and see also Ziv Cohen v. State of Israel (1978) 32(i) P.D. 572.

174 In one case, that of Hinshaveeli, the Supreme Court reduced the sentence in the appeal from six years to three years imprisonment, due to the circumstances at hand (Unpublished).

175 Supra n. 102.

176 Supra n. 103.

177 Supra n. 101.

178 See Bar-Sela, Y., “Enforcement of the Law in East Jerusalem”, in Jerusalem: Legal Aspects, Avimeir, O., ed. (Jerusalem, 1980) 26 Google Scholar.

179 Hershkowitz v. District Committee (1966) 20(ii) P.D. 465; Edith Lash v. Assessment Committee (1964) 18(i) P.D. 318; Shmeelowitz v. Tel Aviv–Jaffa Municipality (1970) 24(i) P.D. 304. For situations in which U.S. courts prevent selective enforcement, see U.S. v. Falk, 479 F. 2d 616 (1973).

180 Gavison, supra n. 1, at 343.

181 Winograd, supra n. 169.

182 See, for example, State of Israel v. Sheffer (1976) 30(iii) P.D. 466; Klein v. State of Israel (1976) 30(iii) P.D. 275; Tamir v. State of Israel (1976) 30(ii) P.D. 169.

183 Eliyahu v. State of Israel, supra n. 112; State of Israel v. Zeidel (1974) 28(ii) P.D. 19, at 26; Malka v. State of Israel, supra n. 112.

184 The main provisions of the agreement stipulate that: 1) the defence regulations are valid, but will not be exercised against the newspapers participating in the Editors' Committee; 2) no censorship will be exercised regarding political affairs, opinions, commentary or any other publication unless the article discloses military information; 3) certain issues will be submitted for prior censorship; 4) a special committee will be established, to include an officer appointed by the Chief of Staff, an editor who is a member of the Editors' Committee and a public official elected by the two former members, who will serve as the committee chairman. This committee will be authorized to decide on complaints of the censor and the newspapers regarding violations of the agreement. The decisions of the committee are subject to the veto of the Chief of Staff (unless unanimous), but if he exercises the right to overrule a decision against the censor he must personally hear the arguments of the editor involved prior to the overruling of the decision.

185 In the framework of empirical research undertaken in the late 1970s, Brigadier-General Braun, the previous chief censor and the editors of five newspaers organized by the Editors' Committee attested that they viewed the agreement as a norm which obligates them and that they abide solely by it. The research data is on record with the author.

186 It should be noted that the spirit of the agreement applies to all the newspapers, even those which are not members of the Editors' Committee, i.e., the foreign press, radio and television. The difference lies in the sanction. The press organized by the Editors' Committee turns to a special committee. The rest of the media do not, due to the Editors' Committee objection to receiving newspapers which are not dailies; the parties have no choice, therefore, but to refer to the courts. Special guidelines apply to the radio and television, conducted by the Israel Broadcasting Authority, which is a statutory body.

187 Sec. 9 of the Transition Law, 1949 (3 L.S.I. 3), stipulated that “after consultation with representatives of the party groups within the Knesset, the President of the State shall entrust a member with the task of forming a Government”. Today sec. 6 of the Basic Law: The Government determines: “When a new Government has to be constituted, the President of the State shall, after consultation with representatives of party groups in the Knesset, assign the task of forming a Government to a Knesset Member who has notified him, within three days from the day on which he was asked, that he is prepared to accept the task”. The change in the Basic Law: The Government as opposed to the Transition Law (representatives of party group rather than of the party groups) left the matter to arrangements of customs.

188 See also Zidon, supra n. 104, at 302, who writes about this usage that evolved throughout the years of the State's existence: “The Law does not limit the President in his choice of the person upon whom he will entrust the role of forming the government; according to the Law, he is free to impose it upon a member of a small faction … but for practical reasons the President gives this role to a member of the largest party, whose chances of succeeding in this task are greater”.

189 See the President's speech on the occasion of assigning the task of forming the Government, August 5, 1984.

190 The Canada Assistance Plan Act, whereby welfare expenditures between the states and the federal government are divided equally between the two. See Inventory of Income Security Programs in Canada, July 1985 (1986).

191 See supra n. 145.

192 Zucker v. Tel Aviv-Jaffa Municipality (1986) 40(i) P.D. 77.

193 For a detailed discussion of the subject, see Shetreet, S., “The Role of the Knesset in Treaty Making” (1985) 36 HaPraklit 349 Google Scholar.

194 See the Government Memorandum sent to the U.N.: Law and Practices Concerning the Conclusion of Treaties (United Nations, 1953) 67 Google Scholar et seq., Legislative Series St./Leg/Seri B/3.

195 See supra n. 56.

196 Ibid., at 97 (per Cohn J.), and at 112 (per Landau, J.).

197 The Court employs the term “constitutional usage” but, theoretically speaking, it is more precise to use the term “constitutional custom”.

198 “The fact that this is the ‘constitutional usage’ of the State [that the government is authorized to conclude treaties – S.S.] is proven by the numbers brought before us by the Attorney-General in the beginning of his arguments; to date, the government, on behalf of the State of Israel, has concluded 780 international agreements, 356 of which required ratification; all were ratified by the government. This is provided in the Mejelle – all that is determined by custom, is deemed as if provided by statutory law (sec. 45)”. Kamiar, supra n. 56, at 98 (per Cohn J.). See also 113 b-c (per Landau J.).

199 Ibid., at 97 (per Cohn J.), 112-113 (per Landau J.), 129 (per Agranat J.).

200 To be precise, it speaks of the approval of the Knesset, and not its ratification. It must be clarified that this deals with the process of concluding treaties according to local constitutional law, and not according to international law. Therefore, the two distinct concepts of approval and ratification must not be confused. It is maintained that national constitutional law requires the consent of the Knesset to treaties of particular importance. After receiving its consent (i.e., approval) the treaty can be validated; if ratification is required, the government will do so. This approach follows the opinion of Justice Agranat in the Kamiar ruling (supra n. 56, at 123-124). My submission is that the approval of important treaties by the Knesset is required by national constitutional law in the framework of establishing the consent of the State of Israel to be a party to the treaty, while ratification is necessitated by international law in the framework of declaring the State's consent therein. I do not take issue with the accepted opinion that ratification is effected by the government regarding all treaties; this is the actual practice. According to Israeli constitutional law, by virtue of constitutional custom, agreements and treaties of particular importance must be brought before the Knesset for approval prior to their validation. In 1983 it was announced that treaties which need ratification will be laid before the Knesset two weeks prior to their coming into effect. I have expressed the view that this newly established procedure did not affect the existence of custom. See Shetreet, supra n. 193.

201 See detailed discussion of agreements, Shetreet, supra n. 193, at 362-366; see also discussion of the foundations of custom, at 376-381.

202 The armistice agreements, Shetreet, supra n. 193, at 362, the interim agreements with Egypt and Syria subsequent to the Yom Kippur War, ibid., at 362, 363-364, the Israeli-Lebanese agreement, ibid., at 365.

203 The armistice agreements, the post-Yom-Kippur War interim agreements and the Lebanon War. See also the Camp David accords and the peace treaty with Egypt, Shetreet, ibid., at 364-365.

204 The peace treaty with Egypt, the Camp David accords and the reparations agreement.

205 The accession to the U.N. Charter, Shetreet, supra n. 193, at 362, accession to the Treaty Against Genocide, ibid., at 363.

206 It should be noted that there have been a number of cases in which the Knesset has expressed its dissatisfaction with the fact that a treaty was not brought before it for approval prior to the submission of legislation consolidating the treaty with local law, even when the treaties involved were not of political importance. See, for example, Binational Industrial Research and Development Foundation Law, 1978 (32 L.S.I. 91). See “Parliamentary Participation in the Conclusion of International Treaties and Agreements”, p. 38 (Dr. Y. Rosenthal), p. 27 (Toubi, M.K. T.), in Seminar of the Parliamentary Association, May 14, 1978 Google Scholar.

207 Substantial monetary burden, as opposed to joining an international organization requiring the payment of membership dues, for example.