Shas v. Director of Population Registration
The petitions concerned the registration of the Petitioners as Jews in the Population Registry.
The High Court of Justice held:
A. (1) Under the provisions of the Population Registry Law, 5725-1965, the conversion of an oleh [an immigrant under the Law of Return] shall be registered in accordance with his declaration, and that, if requested, the document attesting to the conversion, or a public document, will be submitted with the declaration. Therefore, a declaration accompanied by a document attesting to conversion in any Jewish community abroad are sufficient to require the registration of a person as a Jew, and it makes no difference whether the community is Orthodox, Conservative, or Reform.
(2) (Deputy President M. Elon – dissenting): The holding in regard to “conversion in any Jewish community abroad” leaves more undecided than decided. It attributes to the legislature a definition that lacks a minimal, objective, normative test, and it is a fundamental principle that we should not attribute such a vague definition to the legislature, particularly when we are concerned with a subject that holds a sacrosanct place in Israeli constitutional law.
(3) The registration clerk is not authorized to examine the validity or lack thereof of the conversion ceremony conducted in a community abroad, attested to by the document submitted to him. For the clerk, a certificate that attests on in its face that a conversion ceremony was conducted in a Jewish community abroad reflects that such a ceremony requiring registration was, indeed, conducted.
B. (Deputy President M. Elon – dissenting):
(1) In accordance with what is stated in the Population Registry Law, the registration of the item of “Jewish” ethnicity must be in accordance with the definition established by the legislature in sec. 4B of the Law of Return, 5710-1950, that is, a person who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion.
(2) The term “has become converted” is a normative legal term that derives from Jewish law, and that does not exist in any other normative system. In addressing the meaning of this term, the Court must, therefore, make recourse to the legal system from which it derives, that is, to the world of Talmudic halakha, its commentators, decisors, and responders.
(3) This conclusion regarding the interpretation of the term “has become converted” in accordance with its meaning in the halakhic system is also reached through examining another element of the definition in sec. 4B of the Law of Return: “who was born of a Jewish mother”. This fundamental element is rooted in the Jewish legal system since ancient times, and by analogy and every appropriate method of interpretation of law, we must assume and conclude that the element that immediately follows it – “who has become converted” – is to be understood in accordance with the meaning that it has had in the halakhic system since ancient times.
(4) Since the legislature established, in sec. 4B of the Law of Return, that the criterion for the registering of the item of ethnicity is in accordance with the halakhic normative system, if the registry clerk has reasonable grounds to assume that the notice does not meet the requirements of the definition, he is permitted to refuse to register the item of ethnicity, and under sec. 3A(a) of the Population Registry Law, he actually must refuse to register it as long as the validity of the conversion has not been examined.
|Shamgar, Meir||Primary Author||majority opinion|
|Barak, Aharon||Non-writer||majority opinion|
|Bejski, Moshe||Non-writer||majority opinion|
|Bach, Gavriel||Non-writer||majority opinion|