Defending the Arab Right to Incorporate:
Agranat's 1960 Qardosh Opinion

Throughout his life, Agranat had displayed a tolerant attitude toward Arabs. Since his arrival in Palestine, he had encountered Arabs from all walks of life, had represented a few in court, had adjudicated cases in which litigants were Arab, and had cooperated with fellow Arab judges in the common struggle to improve the working conditions of the judiciary in Mandatory Palestine. His goodwill survived the War of Independence. In the early 1950s, as a junior associate justice, he had erected the first barriers against the army's heavy-handed use of the Defense (Emergency) Regulations against Arabs.^[15] In 1955, as chairman of the Central Elections Committee, shortly before the Sinai Campaign, Agranat sympathized with the plight of the Arab population, which had been subjected to military rule since 1948. Refusing to avert his eyes from the abuse and harassment inflicted on them by the military governors who quelled dissent while engineering Arab voting patterns, Agranat insisted on a more tolerant policy.^[16] In the celebrated Kol ha-Am case he invalidated the suspension order of both the Hebrew Communist newspaper and its Arabic counterpart, Al Itihad, thus insisting on the equal protection of the laws whenever fundamental liberties, such as the freedom of the press, were at stake.^[17]

When in 1960 Al-Ard challenged the government's decision to prohibit its registration as a corporation, Agranat applied the same liberal attitude.^[18] The statute that invested power in the companies' registrar was typical colonial legislation. It allowed the executive branch "absolute discretion" in deciding whether to allow groups to incorporate. The registrar argued that the term "absolute discretion" meant no or minimal judicial review of his action. Justice Haim Cohn, who as attorney general defended the army in the Al-Couri case, agreed. No matter how arbitrary the decision, he opined, the Court could not intervene.^[19]

Agranat had a different view. For him, the concept of the rule of law was richer than mere adherence to the letter of the law.^[20] The fact that administrative agencies were vested with "absolute discretion" did not mean that their powers were standardless. Agranat feared that Cohn's purist positivism would turn "the government of law" into "a government of men," because it would give officials a free hand to limit civil liberties. Agranat took the jurisprudence he developed in Al-Couri and Kol ha-Am one step further, holding that "[t]he general principle is that every administrative agency should act within the four corners of the purpose for which it was vested with powers by the law," regardless of whether the statutory language created absolute or limited discretion.^[21]

In order to grasp the significance of this result, it is important to understand the strong appeal of the government's argument. The registrar had based his decision on considerations of national security—the need to dismantle the base that enabled Al-Ard to accelerate its grass-roots campaign—and had been supported by both the police and the attorney general. Agranat could easily have concluded that the argument from national security, coupled with the government's solid conviction that Al-Ard had subversive potential, legitimized the decision. He declined this option, preferring a more Liberal course of action. In essence, he said, the ban amounted to censorship in that it purged a certain voice from the public discourse. Censorship, he said, was "a difficult, complex and delicate matter," even when national security concerns were clearly at stake. Quoting at length from his Kol ha-Am opinion, he reiterated his warning that fear for security might subvert the democratic spirit: "It would be a failure of the first order if the enemies of democracy were to force us to abandon our belief in the power of deliberation built upon credible information . . . and thereby lowered us to their own level."^[22]

Because of Israel's democratic nature, Agranat held, censorship should be exercised only by officials who were explicitly vested with the power to censor. It was not necessary to add yet another means to the repressive arsenal already available to the government. The powers of the registrar should not be interpreted to include ideological monitoring. Agranat made a classic point in administrative and constitutional law, but his choice of words gave it added panache. Evidently, he had reservations about the government's habit of using Mandatory legislation to consolidate its own hegemony.

Putting the government's characterization of Al-Ard's ideas as dangerous in quotation marks, twice describing censorial powers as "harsh," twice posing rhetorical questions, and ending with an expression of be-

wilderment accompanied by an exclamation mark, Agranat brought his opinion to a powerful finale: "In view of the detailed and drastic measures, available [in] the Defense (Emergency) Regulations, one should pose, again, the question: is it conceivable that the wish to prevent "dangerous" opinions . . . is within [the Registrar's] . . . jurisdiction . . .? Is there room for the view—given the proliferation of the censorial means, and their harsh nature—that the [Registrar's] power . . . was meant to serve as yet another means? I wonder!"^[23] The fact that the petitioners were Palestinian Arabs was not mentioned in Agranat's opinion, as if to state that the Court was ethnically blind.

Stunned, the government asked for a further hearing. The Court convened a five-justice panel, with Chief Justice Olshan and Justice Sussman joining the original panel composed of Agranat, Witkon, and Cohn. A majority of 3–2 sustained Agranat's result. Agranat could not have been surprised by Olshan's dissent or by Olshan's wry observation that although he "could not disagree with Agranat's progressive views," he still thought the result smacked of too large a dose of judicial activism.^[24] Olshan, who identified with the government in matters of national security, appreciated "progressive views" as long as they stayed clear of national-security policy. One wonders whether that was the reason why Agranat, then deputy chief justice, was not included in any of the successive panels adjudicating Al-Ard's petitions to the Court between 1961 and 1965.^[25]

It may well be that Al-Ard harbored hopes that, with Agranat as chief justice, the Court would be willing to defend the group's political rights. But this time Agranat upheld the Central Elections Committee decision to ban Al-Ard from the ballot. The core of Agranat's Yeredor opinion revolved around the fundamental values of the Jewish state. For the first time in Israeli history, the "Jewishness" of the state was declared a core constitutional value, to which political and civil liberties were subordinated.^[26]