Administrative Law

HCJ 9441/07

Mahmad Mesbah Taa Agbar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

HCJ 9454/07

Tariq Yusuf Nasser Abu Matar

v.

1.         IDF Commander in Judaea and Samaria

2.         Military Appeals Court

3.         General Security Service

4.         Military Prosecutor

 

 

The Supreme Court sitting as the High Court of Justice

[20 December 2007]

Before Justices E.E. Levy, E. Rubinstein, Y. Danziger

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: In 2007, an administrative detention order was made against the petitioner in HCJ 9441/07 on the ground that he was active in the Hamas organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for an additional period of  six months.

In 2006, an administrative detention order was made against the petitioner in HCJ 9454/07 on the ground that he was active in the Popular Front terrorist organization and presented a threat to security in the territories. The order was made for six months and was subsequently renewed for two further periods of six months.

The petitioners claimed that there was no evidence to show they presented a threat to security. The respondents argued, on the basis of privileged evidence, that the two petitioners did indeed present a threat to security.

 

Held: The main difficulty in administrative detention cases is that much of the evidence is privileged, because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court. The risks in these contexts are real. A detainee does not have a proper and complete opportunity of defending himself against what is alleged against him; he is not shown most of the evidence, he cannot examine it and he is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully. When doing so, the court should regard itself as being a  ‘temporary defence counsel.’

Administrative detention is the last resort. Because of the manifestly problematic nature of administrative detention, every effort should be made to bring the detainee to a criminal trial.

In the specific cases, the evidence against the petitioners was sufficiently serious to justify their continued detention.

 

Petition denied.

 

Legislation cited:

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988.

Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005, ss. 4(b), 6(a).

Defence (Emergency) Regulations, 1945.

Emergency Powers (Detentions) Law, 5739-1979, ss. 2, 2(a), 2(b), 4, 4(c) 5, 6, 7.

Law and Admininstration Ordinance, 5708-1948, s. 9.

 

Israeli Supreme Court cases cited:

[1]      ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258.

[2]      ADA 2/82 Lerner v. Minister of Defence [1988] IsrSC 42(3) 529.

[3]      ADA 1/88 Agbariyeh v. State of Israel [1988] IsrSC 42(1) 840.

[4]      HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [2003] IsrSC 57(6) 721; [2002-3] IsrSC 289.

[5]      ADA 8788/03 Federman v. Minister of Defence [2004] IsrSC 58(1) 176.

[6]      ADA 1/82 Kawasmah  v. Minister of Defence [1982] IsrSC 36(1) 666.

[7]      ADA 2/86 A v. Minister of Defence [1987] IsrSC 41(2) 508.

[8]      HCJ 4400/98 Braham v. Judge Colonel Shefi [1998] IsrSC 52(5) 337.

[9]      ADA 4794/05 Ofan v. Minister of Defence (unreported).

[10]    HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [1992] IsrSC 52(3) 346.

[11]    CrimA 889/96 Mazrib v. State of Israel [1997] IsrSC 51(1) 433.

[12]    ADA 6183/06 Gruner v. Minister of Defence (unreported).

[13]    HCJ 5100/94 Public Committee against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998-9] IsrLR 567.

[14]    HCJ 5555/05 Federman v. Central Commander [2005] IsrSC 59(2) 865.

[15]    HCJ 5994/03 Sadar v. IDF Commander in West Bank (unreported).

[16]    HCJ 297/82 Berger v. Minister of Interior [1983] IsrSC 37(3) 29.

[17]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[18]    HCJ 1546/06 Gezawi v. IDF Commander in West Bank (unreported).

[19]    HCJ 3722/06 Gitt v. IDF Commander in West Bank (unreported).

[20]    HCJ 5287/06 Zatri v. Military Prosecutor (unreported).

[21]    HCJ 2233/07 A v. IDF Commander in Judaea and Samaria (unreported).

 

American cases cited:

[22]    Rasul v. Bush, 542 U.S. 466 (2004).

[23]    Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

 

English case cited:

[24]    R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58 (decision of 13 December 2007).

 

Jewish law sources cited:

[25]    Babylonian Talmud, Sanhedrin 6b.

 

For the petitioner in HCJ 9441/07 — J. Boulus.

For the petitioner in HCJ 9454/07 — R. Mahagna.

For the first respondent — I. Amir.

 

 

JUDGMENT

 

 

Justice E. Rubinstein

Background and proceedings

1.    These are two petitions in which the petitioners are petitioning the court to order that the administrative detention orders made against them be set aside. The petitions were heard on the same day and give rise to similar questions, so this judgment is being given in respect of both petitions.

(a) The petitioner in HCJ 9441/07 (hereafter: the first petitioner), who was born in 1973, was detained on 29 March 2007, for six months, on the ground that he is active in the Hamas organization and is involved in activity that supports terrorism. On 5 April 2007 the order and the term stipulated therein  were approved by a Military Court judge (ADC (JS) 1729/07). The decision states:

‘I have been shown reliable,  quality, and updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in current activity that endangers the security of the territory and the security of the public.’

The first petitioner’s appeal against this decision was denied by the Military Appeals Court in the territory of Judaea and Samaria on 9 May 2007 (ADA 2252/07). On 7 September the administrative detention was extended until 6 March 2008. On 9 September 2007 the detention order was approved (ADC (JS) 3077/07) and on 29 October 2007 the petitioner’s appeal against that decision was denied (ADA 3733/07).

(b) The petitioner in HCJ 9454/07 (hereafter: the second petitioner), who was born in 1989, was arrested on 15 September 2006 on the grounds of being active in the Popular Front terrorist organization. On 20 September 2006 an administrative detention order was issued against him for six months, and this was extended from time to time. On 10 September 2007 the military commander in the territory extended the administrative detention order until 13 March 2008. On 18 September 2007 the order and the term stipulated therein were approved (ADC (JS) 3138/07). In the decision the judge said that —

‘I have been shown quality, updated intelligence information that indicates a definite risk to the security of the territory should the detainee be released, and the involvement of the detainee in grave activities in support of terrorism in the Popular Front prior to his detention.’

The second petitioner’s appeal against this decision was denied by the Military Appeals Court on 17 October 2007 (ADA 3780/07).

The arguments in the petitions

2.    According to the first petitioner, the decision of the military commander is unreasonable in the extreme. He claims that the detention was based on old and unreliable intelligence information, and it amounts to a punitive act because the petitioner is a Hamas activist. He also argues that since the order was made in his case, he has not been interrogated and his rights have been seriously violated, because the information on which the order was based is privileged and he is not allowed to examine it. Finally he argued that a more proportionate alternative was not considered in his case.

The second petitioner claims that he has no criminal or security record, that no additional intelligence material was collected in his case after his detention, that the possibility of indicting him in a criminal trial rather than administrative detention was not considered, and that  no investigation effort was made to obtain evidence that would allow this. He argued that the longer his detention lasts, the greater the amount of evidence that is needed to justify the continuation of the detention. The second petitioner denies any activity in the Popular Front organization or that he planned to carry out a revenge attack for the death of ‘martyrs,’ as alleged against him. He claims that the activity under discussion was the desire of a group of students to honour the memory of one of the ‘martyrs’ in the school where he studied.

He argued that weight should attach to the passage of time since he was detained, his youth (he was detained before he turned seventeen), the fact that no security incidents were reported in the past in the area where he lives, and the calm that he claims currently prevails given the commencement of  political negotiations.His family also expressed a concern that in prison the second petitioner will associate with undesirable elements, go astray and not continue his studies.

3.    The respondents argue that the petitions should be denied. With regard to the first petitioner, they claim that ‘This is a petitioner who is a Hamas activist and endangers the security of the territory. These reasons necessitate the administrative detention of the petitioner, and there is no other measure that can neutralize the risk that he presents.’ With regard to the second petitioner, they claim that this is ‘a petitioner who is involved in serious terrorism-supporting activity in the Popular Front, and therefore he endangers the security of the territory. These reasons necessitate the administrative detention of the petition, and there is no other measure that can neutralize the risk that he presents.’ Therefore the respondents argue that there was no flaw in the decisions of the authorities that approved the detention orders with respect to the petitioners.

4.    (a) At the hearing before us, counsel for the first petitioner argued at length that the state’s reply is a standard reply that disguises an excessive use of the measure of administrative detention by means of expressions such as ‘terrorism-supporting activity.’ The interrogations that are carried out as a result of the courts’ decisions were not real interrogations but merely sham interrogations, even though the GSS knows very well how to conduct an interrogation. Questions were also raised with regard to the evidence, i.e., whether the information on which the state relied was accurate or not.

(b) Counsel for the second petitioner claimed that his client’s interrogation amounted to only three or four questions. The fact is that  the second petitioner is an inexperienced twelfth-grade high-school student. Older and more important persons than he were not detained. Not enough was done to indict him in a criminal trial. It was argued that the background to the arrest of the second petitioner, who comes from an ordinary family, was the fact that, together with friends at school, where social and political activity takes place, he sought  to conduct a students’ assembly in memory of someone who was killed by the IDF.

(c) Following the oral pleadings of counsel for the state, which reiterated its written pleadings, at the request of counsel for the petitioners we reviewed the privileged material ex parte and conducted a dialogue with representatives of the State Attorney’s office and the defence establishment.

(d) To complete the picture we should point out that the first petitioner was interrogated by the police on 26 March 2007. He was suspected of belonging to and being active in the Hamas organization. The first petitioner, who refused to sign, denied any connection to the organization and described himself as a taxi driver who was a graduate of the An-Najah University in the field of Islamic law. He was asked, inter alia, whether he recruited a certain person (whose name was mentioned) to Hamas, and he answered no. He also denied that he introduced that person to a military activist, he denied that he was a teacher of religious studies, except for classes at the mosque, and he confirmed that he took part in religious studies. He was asked specifically about certain persons.

(e) In his interrogation on 12 June 2007, the second petitioner was suspected of activity against the security of the territory and of  military activity in the Popular Front. He also refused to sign the statement since it was written in Hebrew. He denied the suspicions (incidentally, in his interrogation he said that he had also been interrogated previously), and he claimed that collaborators lied about him for payment. He denied that he intended to carry out military activity as revenge for the death of a ‘martyr’; he also said ‘that if there is anything against me, take me to the Russian Compound [Police Station] for interrogation, and I will prove to you that I am innocent.’

 

Deliberations

5.    This Court has said:

‘An administrative detention order that is made against someone is an exceptional measure that is taken by the competent authority, and it lies outside the ordinary set of laws that lay down the prior conditions for detaining a person. Administrative detention violates personal liberty. This violation is justified under the law only when special and exceptional conditions that require the use of this extreme and unusual measure are satisfied… For the purpose of administrative detention, a balance should be struck between the values of safeguarding the liberty and dignity of the individual and the need to protect the security of the state and the public. This balance is naturally a difficult one, but sometimes it is unavoidable because of the security realities of the state and society. When striking this balance, care should always be taken to ensure that the administrative detention order is used proportionately’ (ADA 8607/04 Fahima v. State of Israel [1], at p. 262, per Justice Procaccia).

This Court regards itself as duty-bound to remind itself of the foregoing from time to time. Administrative detention is the last resort, and it should remain so. The authorities therefore have a duty, notwithstanding the considerable burden that it imposes on them, to try to prosecute detainees in a criminal trial. This is also the reason that we patiently deal with such petitions which constantly come before us, even though in reality they are applications for leave to appeal to a third instance, and some of these petitions have no merit. Counsel for the petitioner does not always know the real facts, and they are disclosed in the privileged evidence. Indeed, our experience in very many administrative detention cases, if truth be told, is that the privileged material that we are authorized to see under the law at the request of the petitioners is usually serious and prima facie justifies detention, but it is based on methods of collecting information that cannot be disclosed because it may strongly harm the security interest in general or specific persons. There are of course exceptions to this, and in these cases  a the  dialogue in the courtroom occasionally persuades the state representatives to change their position. But it is quite likely  that in certain cases additional efforts to interrogate suspects would produce evidence that would allow a prosecution, without revealing what cannot be revealed.

 

Administrative detention and a criminal trial

6.    Hear it bears mention  that in a series of judgments this Court has called for the use of criminal trials to be preferred to the use of administrative detention. The ordinary criminal trial should certainly be preferred to the use of a power given to the Minister of Defence or the military commander in the territories to issue an administrative detention order (ADA 2/82 Lerner v. Minister of Defence [2] (per President Shamgar); ADA 1/88 Agbariyeh v. State of Israel [3] (per Justice Shlomo Levin); see also HCJ 5784/03 Salama v. IDF Commander in Judaea and Samaria [4], at p. 727 {296-297 (per President Barak); ADA 8788/03 Federman v. Minister of Defence [5] (per Justice Grunis). This position is obviously based on the fact that a criminal trial allows greater protection of the defendant’s rights. For this reason, this Court has issued a call — which, as will be explained below, has been heard — to interrogate all administrative detainees, inter alia in order to examine the possibility of bringing them to trial. Indeed, from a theoretical viewpoint, the criminal trial and the administrative proceeding are intended to serve different purposes. Whereas the criminal trial is retrospective and seeks to call a person to account for offences that have already been committed, the administrative proceeding is prospective and seeks to prevent the commission  of offences. The preference for criminal trials should be understood in three different contexts. First, in a criminal trial evidence is presented to the defendant and he has the opportunity of responding to it. Second, it sometimes happens that prospective plans in themselves constitute a criminal offence, such as forming an unlawful organization, offences of conspiracy and attempt. Third, in many cases criminal activity in similar contexts in the past testifies to a future threat. This was mentioned by the president of the Jerusalem District Court, Judge Yehuda Cohen, who said: ‘I am of the opinion that the detainee’s past, namely the offences that are attributed to him, is a warning light for the future’ (cited by President Yitzhak Kahn in ADA 1/82 Kawasmah  v. Minister of Defence [6]). For this reason, the criminal trial is preferable to the administrative proceeding, and that is why a proper interrogation is needed. For the reasons that will be explained below (see paragraph 9), the court that scrutinizes the administrative detention is shown intelligence evidence that testifies to past activity, but since its disclosure will almost certainly undermine security in the territory, there is no alternative but to rely on it as a basis for preventative detention that is prospective.

On administrative detention in Israel and the territories

7.    (1) Administrative detention in Israel proper is governed by the Emergency Powers (Detentions) Law, 5739-1979 (hereafter — the Emergency Powers (Detentions) Law or the law). The explanatory notes to the draft law (the draft Emergency Powers (Detentions and Miscellaneous Provisions) Law, 5738-1978, Draft Laws, 5738, 294) described the draft law as a solution to the criticism that had been levelled against the Defence (Emergency) Regulations, 1945, which were introduced in an attempt to subdue the Jewish underground organizations during the British Mandate. It was said that although —

‘… in the state of siege in which the state has found itself since its establishment, special measures are necessary to ensure the proper defence of the state against persons who plan to destroy it, nonetheless the existence of the extreme regulations that are still in force should not be acceptable, even though democratic countries employ similar regulations in less difficult circumstances.’

It was therefore proposed to that an Israeli law should be enacted to ‘satisfy security needs while safeguarding important principles of the rule of law.’ The use of the Emergency Powers (Detentions) Law is contingent upon the existence of a state of emergency under s. 9 of the Law and Administration Ordinance, 5708-1948, which, as is well known, has never been cancelled, because of the position in which Israel has been placed since it was declared when the state was founded. Section 2 of the law provides that the Minister of Defence may order administrative detention for a period that does not exceed six months if he has ‘a reasonable basis for assuming that reasons of state security or public security require a certain person to be held in detention’ (s. 2(a) of the law). The Minister of Defence may extend the period of detention from time to time by an additional six months (s. 2(b) of the law). Admittedly, on each occasion it is only possible to extend the order by six months, but there is no limit upon the number of extensions. If a person is arrested, he should be brought within 48 hours before the president of the District Court, who may approve the order, set it aside or shorten it. If he does none of the aforesaid, the detainee shall be released (s. 4 of the law). If the order is approved, the detainee should be brought within three months before the District Court for a de novo hearing (s. 5 of the law). An appeal of the decision shall be heard before the Supreme Court by one justice (s. 7 of the law).

(b) Administrative detentions in the territories are governed by the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (Amendment no. 30) (no. 1555), 5765-2005 (hereafter — the Administrative Detentions Order), which was originally the Administrative Detentions (Temporary Provision) (Judaea and Samaria) Order (no. 1226), 5748-1988, that underwent many changes over the years, especially with regard to the periods of time stated therein. The detention order is issued by the military commander in the territory or someone who has been authorized by him. In this arrangement also the initial period of detention may not exceed six months, but the military commander is entitled to extend it from time to time.

(c) One of the differences between administrative detention in Israel and administrative detention in the territories lies in the timing of the judicial review. According to the provisions of the Administrative Detentions Order, the detainee should be brought before a military judge within eight days of the time of his arrest. In one case  this period was extended to 18 days, such as during the ‘Protective Shield ’ operation and the difficult struggle against suicide bombers in 2002. This is different from the law applicable in Israel, which, as stated above, requires the order to be subjected to judicial review within 48 hours. The grounds for setting aside a detention order are set out in s. 4(c) of the Emergency Powers (Detentions) Law and in s. 4(b) of the Administrative Detentions Order, and they are both worded in the same way, namely that it has been proved that ‘the reasons for which it was made were not objective reasons concerning the security of the territory or the security of the public, or that it was made in bad faith or as a result of irrelevant considerations.’ There are also provisions with regard to periodic judicial review. Both under the law that applies in Israel and under the law that applies in the territories, the judge may depart from the rules of evidence if he thinks that it is necessary to do so in order to discover the truth and to dispense justice (s. 6 of the law, s. 6(a) of the Administrative Detentions Order). These provisions naturally relate to the type of evidence that is used in such cases; the court inspects privileged material ex parte. Judicial review in the territories is exercised by a Military Court judge and his decision may be appealed before a judge in the Military Appeals Court; finally, petitions are frequently filed in this Court. The detainees are entitled to representation by lawyers, which they actually receive.

 

The nature of judicial review

8.    (a) To complete the picture we should mention that the Emergency Powers (Detentions) Law was preceded by Regulation 111 of the Defence (Emergency) Regulations, according to which the military commander was entitled to issue an order that a person should be placed in detention, without any trial, if he thought ‘that it was necessary or beneficial to make the order in order to safeguard the welfare of the public, to protect the State of Israel, to maintain public order or to subdue an uprising, rebellion or riot.’ The same applied to detention in the territories before the Administrative Detentions Order was enacted. In ADA 2/86 A v. Minister of Defence [7] Justice Bejski accepted the approach of Prof. Y.H. Klinghoffer (in his article, ‘Preventative Detention for Security Reasons,’ 11 Hebrew Univ. L. Rev. (Mishpatim) 286 (1981)), that since the law was enacted with its requirement of judicial review, we are no longer dealing with an administrative act; the court said (ibid. [7], at p. 513) ‘that the judicial review that is required by the provisions of the law is a safeguard against the arbitrariness of the administrative authority.’ I should mention the remarks of Prof. Klinghoffer in that article: ‘… the great principle of the rule of law, which provides that a person should not be deprived of his personal liberty unless a judge has so decided, is to some extent satisfied.’ In view of the aforesaid, the court does not merely examine, as it used to do, the legality of the administrative order, while refraining from replacing the discretion of the administrative authority with its own discretion, but it exercises independent discretion (per Justice Bejski, in A v. Minister of Defence [7], at p. 515; Klinghoffer, ibid., at p. 287). The scope of the review carried out by the president of the District Court when he considers an administrative detention is greater than the discretion given to the court in other contexts, when it examines the decisions of an administrative authority (HCJ 4400/98 Braham v. Judge Colonel Shefi [8], per Justice Or), and the same is true of the jurisdiction of the Supreme Court when it hears an appeal against a decision of the president of the District Court (for a comprehensive analysis of the Emergency Powers (Detentions) Law and the judicial discretion thereunder, see Federman v. Minister of Defence [5]; ADA 4794/05 Ofan v. Minister of Defence [9], per Justice Adiel). The authority of the military courts in the territories should be regarded in the same way (see para. (c) below).

(b) We should add that the Minister of Defence also does not have the authority to extend an administrative detention after the court decides that it should be shortened, subject to certain exceptions (HCJ 2320/98 El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 362, per Justice Zamir). In that case, emphasis was placed on the importance of thorough and effective judicial review: ‘Judicial review is the guardian of liberty, and it should be carefully protected’ (ibid. [10], at p. 350, see also at p. 360); for a criticism of this approach, see A. Sharon, ‘Administrative Detention: Limits of Authority and Scope of Review,’ 13 Mishpat veTzava (Law and the Army: IDF Law Review) 205 (1999). See also my article, ‘Security and Law: Trends,’ 44 HaPraklit (Israel Bar L. Rev.) 409 (2000), which is also included in my book, Paths of Government and Law — Public Law Issues in Israel (Hebrew) (2003), at pp. 263, 270. For a discussion of the subject of administrative detentions and a critique of Prof. Klinghoffer’s approach regarding the status of the court, see E. Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects (2004), at p. 289. I should add that, ultimately, even if the theoretical basis for the powers may be disputed, it is clear that the court, whether civil or military, is limited to the evidence brought before it, and ‘a judge only has what his eyes see’ (Babylonian Talmud, Sanhedrin 6b [25]). It may also be said that the power is regarded as ‘jointly’ exercised by the minister and the president of the court.

(c) As stated, the court has also applied the criteria practised in Israel to administrative detentions in the territories (El-Amla v. IDF Commander in Judaea and Samaria [10], at p. 361:

‘It would appear that despite the differences between the Emergency Powers (Detentions) Law that applies in Israel and the Administrative Detentions Order that applies in Judaea and Samaria, there is no basis for distinguishing in this respect between judicial review of a detention order under the Emergency Powers (Detention) Law and judicial review of a detention order under the Administrative Detentions Order.’

There is much logic in this, since, from a substantive viewpoint, what difference is there between a loss of liberty in Israel and a loss of liberty in the territories (in this regard, see also the article of N. Benisho, ‘Criminal Law in Judaea, Samaria and the Gaza Strip: A Brief Description and Trends,’ 18 Mishpat veTzava (Law and the Army: IDF Law Review) 293 (2005), on the subject of the general trend of equating the law in Israel and that of the territories.

Administrative detention: evidentiary  issues and privileged information

9.    (a) The main difficulty that gave rise to administrative detentions lies first and foremost in the evidentiary sphere. In practice, much of the evidence in these cases is privileged, usually because of the concern of revealing sources and intelligence methods and witnesses’ fears with regard to appearing in court (E. Nun, ‘Administrative Detention in Israel,’ 3 Plilim (Israel J. of Crim. Justice) 168 (1993), at p. 170). The risks in these contexts are real (see also Gross, The Struggle of Democracy against Terrorism: Legal and Moral Aspects, at pp. 298-299). Notwithstanding, it should be remembered that in this situation a detainee does not have a proper and complete opportunity of defending himself against the allegations against him he is not shown most of the evidence, he cannot examine it and is unable to conduct a cross-examination. This requires the court to be especially careful and to examine the evidence brought before it very carefully; the court should appoint itself ‘temporary defence counsel’ (CrimA 889/96 Mazrib v. State of Israel [11], at p. 463 (per Justice M. Cheshin) and act as ‘an advocate for the detainee, and examine the material brought before it scrupulously and thoroughly’ (Federman v. Minister of Defence [5], at p. 187; ADA 6183/06 Gruner v. Minister of Defence [12], per Justice D. Cheshin). The court has also said:

‘… and when the defence establishment operates within the limits of the law, with its hands tied in various contexts for good and proper reasons of human rights (see the remarks of President Barak in HCJ 5100/94 Public Committee Against Torture v. Government of Israel [13], at p. 845 {605}, on democracy and security), privileged material that is not shown to the person involved is a tool that cannot be avoided… Obviously, this  imposes a special and enhanced duty on judicial authorities in the military courts and this Court, when these matters come before it (and they do so almost on a daily basis), to examine the material  brought before them with care, as they act as a kind of advocate on behalf of the person for whom the material is privileged’ (HCJ 5555/05 Federman v. Central Commander [14], at p. 869).

(b) With regard to the evidence, the court should direct itself in accordance with the following:

‘Information relating to several incidents cannot be compared to information relating to a single incident; information from one source cannot be compared to information from various sources; and information that is entirely based on the statements of agents and informers only cannot be compared to information that is also corroborated or supported by documents filed by the security services or by intelligence obtained from carrying out special operations’ (HCJ 5994/03 Sadar v. IDF Commander in West Bank [15], per Justice Mazza).

Therefore the court not only hears counsel pleading for the Minister of Defence, but also explanations from members of the General Security Service (Federman v. Minister of Defence [5], at p. 189). The quantity and quality of evidence that is required in order to justify the administrative detention can and should change with the passage of time; evidence that was sufficient to justify the making of the administrative detention order may not be sufficient to justify an extension of that detention, and evidence that will justify an extension of an administrative detention order may not be sufficient to justify a further extension thereof (see Salama v. IDF Commander in Judaea and Samaria [4]). The security establishment should therefore take into account new relevant material (HCJ 297/82 Berger v. Minister of Interior [16], at p. 44, per Justice Barak), and it should continually act in order to obtain evidence, so that it may discover the truth in so far as that is possible.

The war against terrorism — the United States

10. (a) Other countries too have  contended with the problem of the war against terrorism, especially in recent years. The United States, for example,underwent  a difficult legal odyssey  since the terrorist attacks on 11 September 2001, and initially whoever was captured in Afghanistan or other places in the pursuit of Al-Qaida personnel who were behind the 11 September attacks was held at the Guantanamo Bay base outside the United States with a minimum of rights, according to the approach that these detainees were not subject to judicial review in the United States. For a brief description of the historical perspective of aspects of administrative detention at a time of crisis in the United States itself, see my article, ‘Public Law in Times of Crisis and Times of War,’ in my book, Paths of Government and Law — Public Law Issues in Israel, supra, at pp. 18, 20 (Hebrew). But in 2004 the United States Supreme Court decided in Rasul v. Bush [22], contrary to the administration’s position, that the Federal courts had jurisdiction to consider the detentions of alien nationals at Guantanamo Bay within the scope of habeas corpus, and the administration did not have the power to deny them access to the court. In terms of the Israeli experience — and unfortunately we have been compelled to acquire such experience over decades — granting a right of standing in the High Court of Justice to detainees who are situated in the occupied territories has been recognized for a very long time, since the decision of Attorney-General Meir Shamgar (later  president of the Supreme Court) after the Six Day War not to argue the lack of a right of standing. Since then, the cases of detainees in the territories have been heard by this Court. See M. Shamgar, ‘Legal Concepts and Problems in Military Government in the Territories Administered By Israel 1967-1980,’ The Israeli Military Government –The Initial stage, vol. l (M. Shamgar, ed.) at pp. 13, 56; E. Nathan, ‘The Power of Supervision of the High Court of Justice over Military Government,’ ibid, at p. 109; D. Shefi; ‘The Reports of the U.N. Special Committee on Israeli Practice in the Territories,’ ibid, at pp. 285, 306-308. See also J.M. Seltzer, ‘From a Chessboard to the Matrix: the Challenge of Applying the Laws of Armed Conflict in the Asymmetric Warfare Era,’ in War and Peace in the Jewish Tradition (L. Schiffman, J.B. Wolowelsky (eds.), R.S. Hirt (series editor), 2007). But the pendulum between personal rights and national security in the United States did not reach equilibrium after Rasul v. Bush [22], as we shall briefly explain (incidentally, I should point out that the expression of ‘rights vs. security’ that is commonly used in legal discussions is problematic, since the rights of victims and the public as a whole to security and life are also rights, but they are located on the ‘security’ side of the equation, and therefore perhaps the correct expression is ‘rights vs. rights,’ or the balancing of individual rights against the rights of the public in the war against terrorism; see by analogy the remarks of President Shamgar in CrimFH 2316/95 Ganimat v. State of Israel [17], at pp. 620-621).

(b) Following Rasul v. Bush [22], the United States administration decided to establish a network of military commissions for judicial proceedings relating to the detention of alien combatants. The United States Supreme Court considered this in Hamdan v. Rumsfeld [23]. It held in 2006 that the commissions had not been established with the necessary congressional authorization, and they therefore were not valid. It also held that the commissions did not provide the necessary procedural safeguards. Following this decision, the Military Commissions Act was enacted the same year. This law approved the commissions, and it also deprived the courts of power to hear habeas corpus petitions of detainees from Guantanamo Bay and persons in similar positions. Admittedly an appeal was permitted to the Court of Appeals in the District of Columbia (Washington D.C.), but under very limited conditions, including a presumption that the evidence before the commissions is accurate and complete. Currently, a third case is being heard (Boumediene v. Bush (D.C. Cir., 2006)), in which it is claimed by detainees at Guantanamo Bay that the procedure laid down in the Military Commissions Act that was passed after Hamdan v. Rumsfeld [23] does not sufficiently protect the rights of detainees with regard to evidence (hearsay testimony), representation by defence counsel and interrogation techniques. The administration argued in reply that the rights given to detainees under the Military Commissions Act were extensive. The Federal Court of Appeals accepted the administration’s position that in the absence of constitutional rights there was nothing improper in the fact that the Military Commissions Act of 2006 denied the Federal courts habeas corpus jurisdiction; therefore the detainees’ claims were not heard on their merits. The United States Supreme Court did not agree initially to hear the case, but it changed its mind and the matter is currently under consideration. The key question is whether the detainees are entitled under the United States Constitution to the right of habeas corpus and the right to a fair trial, since jurisprudential history in the United States allows an ‘adequate substitute’ to ‘formal’ habeas corpus by means of a ‘suspension clause,’ when that substitute is ‘adequate and effective.’

English case law — effective control and imperative reasons of security

11. Recently the House of Lords gave judgment in R (Al-Jedda) v. Secretary of State for Defence [24]. It was held in the judgment, which concerned detainees in Iraq who were being held by British forces, that they were being held under the effective command and control of the United Kingdom rather than the United Nations, as the Secretary of State argued. Notwithstanding, it was held that the UK was entitled to detain persons for ‘imperative reasons of security,’ while ensuring that the detainees’ rights under article 5(1) of the European Convention on Human Rights (which concerns detention) were not infringed to any greater extent than was inherent in such detention.

The criminal investigation

12. (a) This Court has on several occasions addressed the necessity of conducting a proper interrogation of someone held in administrative detention soon after being detained, in which the information that can be disclosed is shown to him. This should be regarded as a basic right:

‘Our approach… is based on the fundamental outlook regarding the rights of a person held in administrative detention, no matter how serious his actions are believed to be…

Within the basic scope of human dignity — and the rules concerning this apply to everyone, even to persons suspected of the most serious, despicable and depraved offences, whose perpetrators are as far removed from respecting human beings as the east is distant from the west — there is a duty to interrogate a person soon after his detention, and to disclose to him whatever information can be shown to him and is not privileged material that cannot be disclosed. The purpose, beyond allowing him to claim that he is a victim of mistaken identity and other similar claims, is that a person should not be detained without being given an opportunity, even if he makes no use of it, to present his side of the case in order to show, and to try and persuade the authorities, that there is no justification for his detention. As stated, what is shown to him should reflect the most that the unprivileged material allows to be disclosed. There is no need to speak at length about the fact that administrative detention is a serious sanction, because in view of the privileged nature of the evidence the detainee cannot contend with all of the accusations against him, and the court should act as his advocate (see Federman v. Central Commander [14], at p. 869)… Procedural rights are not luxuries; they also do not impose any real burden on the system (to remove doubt, they should exist even if they did impose a real burden)’ (HCJ 1546/06 Gezawi v. IDF Commander in West Bank [18], at para. 6 of my opinion).

See also HCJ 3722/06 Gitt v. IDF Commander in West Bank [19] and HCJ 5287/06 Zatri v. Military Prosecutor [20], where Justice D. Cheshin, after considering the reported or planned establishment of permanent arrangements for conducting interrogations at places of detention, said the following:

‘We would like to point out that the interrogation of the administrative detainee should admittedly be done on the basis of the unprivileged material, but it should be done by someone who is familiar with the details of the privileged material. There is no real purpose or significance to a meaningless interrogation. A proper interrogation should be practical, credible and effective, in a sincere attempt to obtain evidence to bring the administrative detainee to a criminal trial. To this end, the interrogator should have in his possession the privileged material relevant to the case.’

We should add that a proper interrogation should obviously not be conducted merely for the sake of appearances; it is precisely because of the manifestly problematic nature of administrative detention that, as aforesaid, every effort should be made to bring the detainee to a criminal trial.

(b) There are some interrogations where we see that the documentation is not satisfactory from the viewpoint of the effort made to obtain evidence that may be used for a criminal prosecution. Indeed, today — following the rulings of this Court — there is greater awareness of the need to carry out interrogations, and we have been informed of concerted efforts to do this. We are still of the opinion that there is room for improvement in this regard, to make the interrogations sufficiently meaningful. Although the evidence is mainly privileged for the reasons mentioned, in some cases there is a clue or room to manoeuvre that enables the conduct of a more through interrogation even though we are constantly being told of priorities and budgetary problems. Sometimes we even wonder why someone who is presented to us in privileged evidence as a person of considerable importance, or even a leading figure, is not interrogated in the framework of a comprehensive intelligence interrogation rather than a brief police one. For example, we should point out that in the present case, as far as the first petitioner is concerned, he was asked in the police interrogation of 26 March 2007 about the fact that someone, whose name is mentioned, said (admittedly in the year 2000) ‘that you recruited him to the Hamas organization.’ The first petitioner denied this. We do not know the significance of the passage of time in this context, but in such a case the current ‘criminal’ implications of this matter should be examined more thoroughly. Returning to the general principle, there is in our opinion room for more extensive and more thorough interrogations in order to reduce the number of administrative detainees.

On the art of striking a balance

13. Ultimately, in conditions of an unceasing war against ongoing terrorism, in which, day by day and hour by hour, both the security establishment and the court are called upon to strike a balance between security needs and human rights, it would appear that the use of the measure of administrative detentions is still an unavoidable necessity, but we should ensure, in so far as possible, that the use made of it is proper and proportionate. The art of striking a balance between the serious violation of individual liberties and the security of the public is complex:

‘The longer the period of administrative detention, the greater the weight of the detainee’s right to his personal liberty in the balance against public interest considerations, and the greater the burden on the competent authority to prove the necessity of continuing to hold the person in detention’ (HCJ 2233/07 A v. IDF Commander in Judaea and Samaria [21], per Justice Procaccia).

It is not superfluous to mention that administrative detention anticipates a future danger; it is not essentially a punitive measure, but a preventative one (Gruner v. Minister of Defence [12]; Fahima v. State of Israel [1]). Given this purpose of administrative detention, it is self-evident, as we have said, that orders that extend the period of administrative detention should be examined in accordance with the length of the detention and the extent of the threat that the detainee presents, or. as Justice Grunis said, a probability test should be conducted to examine whether harm to security is almost certain (Federman v. Minister of Defence [5], at p. 188). Ultimately —

‘Everything depends on the circumstances of the case. In each case the evidence before the security authorities should be examined in order to ascertain the extent of the threat presented by the detainee to see whether it justifies his continued detention. For example, the nature of the suspicions against the detainee, the strength of the existing evidence against him and similar considerations should be taken into account (Salama v. IDF Commander in Judaea and Samaria [4], at p. 728{297}) , per President Barak).

Morality and combat in a Jewish and democratic state

14. Israel, which is both a Jewish and a democratic state, has outlooks on combat morality that are based on Jewish law. As Rabbi Aharon Lichtenstein said (‘The Combat Morality of our Ancestor Abraham,’ 2006, Yeshivat Har Etzion web site): ‘We should continue to follow the path outlined by our ancestor Abraham [i.e., the manner in which he conducted his war] — to be sensitive to morality and justice even during war and combat that are just and right in themselves; see also Yaron Unger, ‘Do not Fear, Abraham — On Combat Morality in Israel,’ Portion of the Week (A. HaCohen, M. Vigoda, eds.), at p. 230; A. HaCohen, ‘I Am for Peace, But When I Speak, They Are for War — Law and Morality in Times of War,’ ibid., at p. 260.

Conclusion

15. Our intention in this judgment was merely to outline once again the judicial policy with regard to administrative detentions, and to mention once again, in addition to the fact that administrative detention is an unavoidable necessity, the duties of conducting a real interrogation, the need for great care in judicial scrutiny of privileged material, and the issue of proportionality. It would not be superfluous to also reiterate that bringing someone to a criminal trial, where it is possible, is far preferable to administrative detention.

From the general rule to the specific case

16. As we have said, with the consent of counsel for the petitioners, we examined the privileged evidence in their cases ex parte, and we conducted a dialogue with the representatives of the State Attorney’s office and the security establishment. We have been persuaded that there is a real basis to the respondents’ claim regarding the petitioners’ activity, according to updated information. We also considered the young age of the second petitioner, but the seriousness of the position could be seen from the material that we have seen, and the position is not as his counsel claimed. At the end of the day, we see no grounds for intervention in the decisions of the military courts, and we are unable to grant the petitions, subject to what was stated above. There is no order for costs.

 

 

Justice E.E. Levy

I agree.

 

 

Justice Y. Danziger

I agree.

 

 

Petition denied.

11 Tevet 5768.

20 December 2007.

 

HCJ 2605/05

1.  Academic Center of Law and Business, Human Rights Division

2.  Major-General (ret.) Shlomo Twizer

3.  Yadin Machness

v.

1. Minister of Finance

2. Minister of Public Security

3. A.L.A. Management and Operation (2005) Ltd

4. Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[19 November 2009]

Before President D. Beinisch, Vice-President E. Rivlin
and Justices A. Procaccia, E.E. Levy, A. Grunis,
M. Naor, E. Arbel, S. Joubran, E. Hayut

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The Knesset enacted the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (‘amendment 28’), which provides that the State of Israel will establish, for the first time, a (single) prison that will be operated and managed by a private corporation rather than by the state. The constitutionality of this law was challenged by the petitioners, who argued that amendment 28 disproportionately violated the rights of prison inmates as a result of the actual transfer of imprisonment powers to a private enterprise, and as a result of the concern that human rights in a private prison would be violated to a greater extent than in a state-run prison.

 

Held: (Majority opinion — President Beinisch, Vice-President Rivlin, Justices Procaccia, Grunis, Naor, Arbel, Joubran, Hayut) Amendment 28 violates human rights disproportionately and is therefore unconstitutional.

(President Beinisch, Vice-President Rivlin, Justices Grunis, Naor, Arbel, Joubran, Hayut) The concern that human rights in a private prison will be violated more than in state managed prisons addresses a future violation of human rights, and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. However, the human rights of prison inmates are violated ipso facto by the transfer of powers to manage and operate a prison from the state to a private concessionaire that is a profit-making enterprise. The denial of personal liberty is justified only if it is done in order to further or protect an essential public interest, and therefore the question whether the party denying the liberty is acting in order to further the public interest (whatever it may be) or is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. Therefore, amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself.

When the state transfers power to manage a prison, with the invasive powers that go with it, to a private profit-making corporation, it violates the human dignity of the inmates of that prison, since the public purposes that give imprisonment legitimacy are undermined and the inmates becomes a means for the private corporation to make profits (Justice Grunis reserved judgment on this issue).

The main public purpose underlying amendment 28 is the economic purpose of saving the state money.

The ‘additional’ violation of constitutional rights deriving from giving imprisonment powers to a private profit-making corporation is disproportionately greater than the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

The unconstitutionality of amendment 28 requires it to be set aside in its entirety, because it is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part. Were only the provisions concerning the granting of the invasive powers set aside, the remaining provisions would be unable to stand independently.

(Justice Procaccia) The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment depend upon the exercise of authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Transferring this power to a private enterprise undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional authority over the individual offender.

The main purpose of amendment 28, as can be seen from its legislative background and context, is to promote the welfare of prison inmates by reducing overcrowding in the prisons, improving services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. However, this benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign authority to a private concessionaire. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state.

(Minority opinion — Justice Levy) The state has not divested itself of its powers but merely exchanged them for supervisory powers. It is hard to see how this conflicts with the constitutional role of the government, and the mechanisms of indirect government should be examined on their merits.

It is premature to determine whether a private prison will violate human rights disproportionately. Time will tell. The law should be put to the test before the court reaches any conclusions on this matter.

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

 

Legislation cited:

Basic Law: The Judiciary, s. 15(d)(2).

Basic Law: Freedom of Occupation, s. 4.

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 5, 8, 9.

Basic Law: the Army, ss. 2, 3.

Basic Law: the Government, ss. 1, 44(a).

Basic Law: the Knesset, ss. 7(8), 7(9), 7A.

Criminal Procedure Law [Consolidated Version], 5742-1982, s. 12(a)(1)(b).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 23, 67.

Deferral of Service of Full-Time Yeshivah Students, 5762-2002.

Emergency Powers (Arrests) Law, 5739-1979.

Execution Law, 5727-1967, s. 5.

General Security Service Law, 5762-2002, ss. 3, 4.

Internment of Unlawful Combatants Law, 5762-2002.

Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969.

Parole Law, 5761-2001.

Penal Law, 5737-1977, art. B1.

Police Ordinance [New Version], 5731-1971, s. 8.

Prisons Ordinance [New Version], 5732-1971, ss. 45A, 76(a), 78, 95B, 95D, 95E, 128F, 128G(a), 128G(b), 128I, 128K, 128K(c)(1), 128L, 128L(a)(1), 128L(a)(2), 128L(a)(3), 128M, 128O, 128R, 128R(c)(1), 128R(c)(4), 128R(c)(5), 128S, 128U-128X, 128V-128X, 128Y, 128Z, 128AA, 128AB, 128AE, 128AF-128AG, 128AF-128AL, 128AJ, 128AO, 128AS-128BA, 128AW.

Prisons Ordinance Amendment Law (no. 28), 5764-2004.

Release from Imprisonment on Parole Law, 5761-2001, s. 9(7).

State Comptroller Law [Consolidated Version], 5718-1958, s. 9(6).

Taxes (Collection) Ordinance.

Torts (State Liability) Law, 5712-1952

o t applies the provs  provision e same way as civil servants. toerein or an inmate held in custody therein'wever, for decidingTreatment of Mentally Ill Patients Law, 5751-1991, s. 9.

 

Israeli Supreme Court cases cited:

[1]      AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [2002] IsrSC 56(3) 673.

[2]      AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel (unreported decision of 7 December 2006).

[3]      HCJ 3434/96 Hoffnung v. Knesset Speaker [1996] IsrSC 50(3) 57.

[4]      HCJ 4769/95 Menahem v. Minister of Transport [2003] IsrSC 57(1) 235.

[5]      HCJ 6055/95 Tzemah v. Minister of Defence [1999] IsrSC 53(5) 241; [1998-9] IsrLR 635.

[6]      CrimA 6659/06 Iyyad v. State of Israel (unreported decision of 11 June 2008).

[7]      HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [1997] IsrSC 51(4) 367.

[8]      CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [1995] IsrSC 49(4) 221; [1995] IsrLR 1.

[9]      HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[10]    HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security (unreported decision of 12 February 2007).

[11]    PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[12]    CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

[13]    HCJ 164/97 Conterm Ltd v. Minister of Finance [1998] IsrSC 52(1) 289; [1998-9] IsrLR 1.

[14]    HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673; [1998-9] IsrLR 537.

[15]    HCJ 2303/90 Philipovitz v. Registrar of Companies [1992] IsrSC 46(1) 410.

[16]    HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [2004] IsrSC 58(5) 202.

[17]    HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [2001] IsrSC 55(3) 79.

[18]    HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [2003] IsrSC 57(3) 652.

[19]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset (unreported decision of 11 May 2006).

[20]    HCJ 355/79 Katlan v. Israel Prison Service [1980] IsrSC 34(3) 294.

[21]    HCJ 1163/98 Sadot v. Israel Prison Service [2001] IsrSC 55(4) 817.

[22]    CrimFH 10987/07 State of Israel v. Cohen (unreported decision of 2 March 2009).

[23]    HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [2006] IsrSC 60(1) 38; [2005] (1) IsrLR 340.

[24]    HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[25]    HCJ 5578/02 Manor v. Minister of Finance [2005] IsrSC 59(1) 729.

[26]    HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (unreported decision of 10 May 2006).

[27]    AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [2004] IsrSC 58(3) 782.

[28]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [2006] (1) IsrLR 443.

[29]    HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (2) IsrLR 352.

[30]    HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [1993] IsrSC 47(1) 749.

[31]    HCJ 1384/98 Avni v. Prime Minister [1998] IsrSC 52(5) 206.

[32]    HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [2006] (3) 464; [2005] (2) IsrLR 335.

[33]    CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[34]    CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [1992] IsrSC 46(2) 464.

[35]    HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[36]    HCJ 5100/94 Public Committee Against Torture v. Government of Israel [1999] IsrSC 53(4) 817; [1998 9] IsrLR 567.

[37]    CrimA 4855/02 State of Israel v. Borovitz [2005] IsrSC 59(6) 776.

[38]    HCJ 39/82 Hanfling v. Mayor of Ashdod [1982] IsrSC 36(2) 537.

[39]    HCJ 2245/06 Dobrin v. Israel Prison Service [2006] (2) IsrLR 1.

[40]    LCA 4905/98 Gamzu v. Yeshayahu [2001] IsrSC 55(3) 360.

[41]    HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[42]    HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [1953] IsrSC 7 871; IsrSJ 1 90.

[43]    HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(2) 393; IsrSJ 7 109.

[44]    HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 529.

[45]    HCJ 410/90 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[46]    HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [1995] IsrSC 49(1) 758.

[47]    HCJ 4676/94 Meatreal Ltd v. Knesset [1996] IsrSC 50(5) 15.

[48]    HCJ 10203/03 National Census Ltd v. Attorney-General (unreported decision of 20 August 2008).

[49]    HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [1998] IsrSC 52(3) 679.

[50]    HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[51]    CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[52]    HCJ 5319/97 Kogen v. Chief Military Prosecutor [1997] IsrSC 51(5) 67; [1997] IsrLR 499.

[53]    CrimA 40/58 Attorney-General v. Ziad [1958] IsrSC 12 1358.

[54]    PPA 7440/97 State of Israel v. Golan [1998] IsrSC 52(1) 1.

[55]    HCJ 4253/02 Kariti v. Attorney-General (unreported decision of 17 March 2009).

[56]    CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [2000] IsrSC 54(2) 433.

[57]    CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [2003] IsrSC 57(4) 769.

[58]    HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [2001] IsrSC 55(3) 625.

[59]    HCJFH 5361/00 Falk v. Attorney-General [2005] IsrSC 59(5) 145.

[60]    HCJ 2334/02 Stanger v. Knesset Speaker [2004] IsrSC 58(1) 786.

[61]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[62]    CrimA 7053/01 A v. State of Israel [2002] IsrSC 52(1) 504.

[63]    LHCJA 818/03 Zarka v. Israel Prison Service (unreported decision of 11 March 2003).

[64]    HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security (unreported decision of 9 March 2003).

[65]    HCJ 1319/03 Israel Bar Association v. Minister of Public Security (unreported decision of 1 March 2004).

[66]    HCJ 572/04 Berry v. Minister of Justice (unreported decision of 6 April 2005).

[67]    HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [1980] IsrSC 34(2) 566.

[68]    CA 404/61 Skivinskaya v. Uroshitz [1962] IsrSC 16(1) 347.

[69]    HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [1987] IsrSC 41(2) 449.

[70]    HCJ 98/69 Bergman v. Minister of Finance [1969] IsrSC 23(1) 693; IsrSJ 8 13.

[71]    EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [1988] IsrSC 42(4) 177.

[72]    HCJ 410/91 Bloom v. Knesset Speaker [1992] IsrSC 46(2) 201.

[73]    EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [2003] IsrSC 57(3) 793.

[74]    HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [2003] IsrSC 57(2) 102; [2002-3] IsrLR 165.

[75]    HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [2003] IsrSC 57(1) 750.

[76]    HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [2004] IsrSC 58(1) 529.

[77]    HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister (not yet reported).

[78]    EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [1965] IsrSC 19(3) 365.

[79]    HCJ 1074/93 Attorney-General v. National Labour Court [1995] IsrSC 49(2) 485.

[80]    HCJ 761/86 Miari v. Knesset Speaker [1988] IsrSC 42(4) 868.

[81]    HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [1991] IsrSC 45(3) 154.

[82]    HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [2005] IsrSC 59(2) 14; [2004] IsrLR 383.

 

American cases cited:

[83]    Pischke v. Litscher, 178 F. 3d 497 (7th Cir. 1999).

[84]    Montez v. McKinna, 208 F. 3d 862 (10th cir. 2000).

[85]    White v. Lambert, 370 F. 3d 1002 (9th cir. 2004).

[86]    Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County, 2000 OK 2 (2000).

[87]    Richardson v. McKnight, 521 U.S. 399 (1997).

[88]    Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001).

[89]    Skelton v. Pri-Cor, Inc., 963 F. 2d 100 (6th Cir. 1991).

[90]    Rosborough v. Management and Training Corporation, 350 F. 3d 459 (5th Cir. 2003).

 

For petitioners 1-2 — G. Barnea, A. Wasserman, E. Michaely, Y. Berda.

The third petitioner represented himself.

For respondents 1-2 — Y. Genessin, R. Giladi, R. Keidar.

For the third respondent — Y. Shalheveth, B. Fiel, R. Kook, O. Roth.

For the fourth respondent — N. Elstein, R. Scherman-Lamdan, I. Eshet.

 

 

JUDGMENT

 

 

President D. Beinisch

The Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), provides that the State of Israel will establish for the first time a (single) prison that will be operated and managed by a private corporation rather than by the state. The arrangement provided in amendment 28 leads to a transfer of basic powers of the state in the field of law enforcement — imprisonment powers — the exercise of which involves a continuous violation of human rights, to a private profit-making corporation. As we shall explain below, this transfer of powers violates the constitutional rights to personal liberty and human dignity, which are enshrined in the Basic Law: Human Dignity and Liberty. The question of the constitutionality of this violation lies at the heart of the petition before us. It should already be said at the outset that, for the reasons that will be set out below, we have arrived at the conclusion that the aforesaid amendment does not satisfy the test of constitutionality.

The main facts and the arguments of the parties

1.    On 31 March 2004, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’) was published. According to the amendment, chapter C2 was added to the Ordinance. This chapter is entitled ‘Privately managed prison.’ The amendment, which resulted in the addition of sections 128F-128BB, regulates the establishment of one prison that will be built, managed and operated by a private corporation, which will enter into an agreement for this purpose with the Israel Prison Service and act as a concessionaire in accordance with a special permit that it will receive. The amendment provides, inter alia, the procedure for granting and cancelling the permit, the qualifications that should be satisfied by the corporation and its employees, the scope of the powers of the corporation’s employees and the supervisory measures that the state is required to undertake with regard to the activity of the corporation and its employees. In the Third Schedule to the Prisons Ordinance, it is provided that the privately managed prison will be constructed in the prison compound south of the city of Beer-Sheba, and its maximum capacity will be eight hundred inmates. The Schedule also lays down the conditions that should be satisfied with regard to inmates that will be imprisoned in the privately managed prison.

The petition before us was filed on 16 March 2005. The first petitioner is an academic institution, which is acting as a public petitioner in the petition before us. The second petitioner is a retired senior officer in the Israel Prison Service. The third petitioner, who was subsequently joined as a party to the petition at his request, was, on the date that he was joined as a petitioner, an inmate of a prison managed by the Israel Prison Service. On 27 October 2005 an initial hearing of the petition took place before a bench of three justices. On 15 November 2005, the third respondent (hereafter: ‘the concessionaire’) was chosen as the winning group in the tender for the construction and operation of the private prison, and the concession agreement was signed with it on 2 January 2006. On 18 June 2006 a further hearing of the petition was held before a bench of seven justices, which was presided over by President A. Barak. Following this, an order nisi was made. On 31 August 2006, following a further hearing that took place before a bench of nine justices, and after the court was notified by the Knesset’s legal adviser that draft laws had been tabled to repeal amendment 28, it was decided to postpone the hearing of the petition in order to allow the legislative proceedings that had apparently been restarted in the Knesset to be exhausted. Since these proceedings did not progress and the legal position set out in the statute under discussion was not changed, on 8 July 2007 we heard the actual petition. While the hearing of the petition was taking place, the proceedings for setting up the privately managed prison also progressed, and the third respondent was given the permit required under the law. The construction of the prison and its preparation for the initial partial admission stage were supposed to be completed by June 2009, but on 18 March 2009 we made an interim order that prevented the prison being put into operation. It should be noted that the delay that has occurred in giving this judgment derived from the complexity of the issues under consideration, which raised constitutional questions of significant importance that have not yet been decided in our case law, but mainly from the court’s desire to allow the Knesset to exhaust the legislative proceedings mentioned above and the public debate that the Knesset wished to hold on the privatization phenomenon during the 2007-2008 winter session, as stated in the Knesset legal adviser’s notice of 28 June 2007, before we considered the complex question concerning the setting aside of primary legislation of the Knesset.

2.    The petition is directed at the constitutionality of amendment 28 of the Prisons Ordinance, and the petitioners’ argument is that this amendment should be regarded as a choice by the state ‘to carry out a complete privatization of prisons in Israel.’ As will be explained below, the petition has two main arguments.

In the first argument the petitioners claim that a complete privatization of the prisons constitutes an unconstitutional violation of the constitutional rights to personal liberty and human dignity. In this context, the petitioners claim that several factors combine in this respect to cause an unconstitutional violation of constitutional basic rights. The main cause of this lies in the combination of the following: the nature of the powers that are being privatized, which include the actual power of imprisonment and the powers relating to the human dignity of the inmate and his personal liberty (such as holding a prisoner in administrative isolation, carrying out an external examination of a inmate’s naked body and using reasonable force to carry out a search on an inmate); the low standards that have been set, according to the petitioners, for staffing the positions in the privatized prison in comparison to the standards in the Israel Prison Service; and the inadequate supervision, according to the petitioners, of the actions of the private enterprise that will operate the prison. The petitioners claim that this combination is likely to lead to a violation of the inmates’ rights to liberty and human dignity in the privatized prison. According to the petitioners, this expected violation of constitutional basic rights does not satisfy the limitations clause tests laid down in s. 8 of the Basic Law: Human Dignity and Liberty.

It is argued that a violation of the basic principle that the power to enforce criminal judgments is exercised exclusively by the state, in order to achieve an economic purpose, is not a violation that is made for a proper purpose. The petitioners argue that it is also not a proportionate violation. In this respect, the petitioners claim that from the viewpoint of whether the chosen means will lead to the desired purpose, they have expert opinions that indicate that experience around the world does not show a clear connection between the privatization of prisons and an economic saving; that there are other less harmful measures that are capable of realizing the economic purpose underlying amendment 28, including the building of additional public prisons or a partial privatization that only involves powers that do not contain a predominant element of the exercise of sovereign power; and that the damage that will result from a complete privatization of prisons is disproportionate to the benefit that will arise from such a privatization (especially, according to the petitioners, in comparison to the possibility of a partial privatization of prisons).

3.    In the other argument, the petitioners claim that amendment 28 constitutes a violation of the constitutional rule laid down in s. 1 of the Basic Law: the Government, according to which ‘The government is the executive branch of the state.’ The reason for this is that the power of the state to operate prisons constitutes, according to the petitioners, a part of its authority to exercise executive power in order to enforce the law and maintain the peace; and as such the power lies at the heart of the basic principle that ‘The government is the executive branch of the state.’ According to the petitioners, since the Basic Law: the Government is a Basic Law, its normative status is a super-legislative one, and therefore any ordinary law that violates it should satisfy two requirements, one formal and the other substantive.

First, in the formal sphere, the petitioners argue that the violating law should be passed by a majority of at least 61 members of the Knesset in each of the three readings, according to the entrenchment provision set out in s. 44(a) of the Basic Law: the Government. Since amendment 28 was not passed with this majority, the petitioners claim that this alone should lead to its being set aside. Second, in the substantive sphere, the petitioners claim that the violating law should satisfy the tests of the limitations clause. The petitioners argue that these tests should also be applied, by way of judicial interpretation, to laws that violate the Basic Laws that concern the organs of the state, such as the Basic Law: the Government, even though these Basic Laws do not contain an express limitations clause like the ones provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation.

4.    It should also be mentioned that we also heard the arguments of the third petitioner, Mr Yadin Machness, who at that time was serving a custodial sentence at Maasiyahu Prison. The third petitioner’s arguments focused on the practical aspects relating to the services provided to inmates in the prisons of the Israel Prison Service, in fields such as health, food and education. According to him, there is a concern that the standard of these services will decrease in the privately managed prison as a result of the economic considerations that will motivate the concessionaire operating the prison. The third petitioner also raised in his arguments a concern that use will be made of the various powers given to the private concessionaire in such a way that will allow the concessionaire to worsen the conditions of the inmates in the privately managed prison and punish them, without it first being necessary to charge the inmates in disciplinary proceedings, for which the Israel Prison Service remains responsible, even under amendment 28.

5.    All of the respondents oppose the granting of the petition. Replies to the petition were filed by respondents 1-2 (hereafter: ‘the state’), the concessionaire and the Knesset. In its reply to the petition, the state says that the construction of a privately managed prison is one of the solutions planned by it for contending with the serious shortage of prisons in Israel, and this is the main purpose underlying the enactment of amendment 28. The state also claims in the affidavit in reply that in addition to an improvement of the inmates’ prison conditions, the construction of the prison that is the subject of the petition is very much in the public interest, since it will lead to an economic saving of an estimated amount of approximately 20-25 per cent in comparison to a prison of similar standards operated by the Israel Prison Service, and on the basis of experience around the world it can be estimated that the construction of a private prison may also lead to greater efficiency in state-run prisons.

According to the state, the privatization model adopted in amendment 28 of the Prisons Ordinance is a unique and experimental model, which constitutes a ‘pilot’ test that is expressly limited to one prison and includes mechanisms to protect the rights of the inmates and effective supervision and intervention mechanisms that are available to the state and will allow it, inter alia, to reverse the process at any stage and take back control of the prison because of a breach of the terms of the permit given to the concessionaire. The state emphasizes in its pleadings that the existence of a real concern of a serious violation of inmates’ rights is one of the grounds provided in amendment 28 for the state to take away the power to manage the prison from the concessionaire. In this regard, the state further argues that amendment 28 provides measures for supervising the manner in which the concessionaire exercises the powers granted to it: these include the activity of the designated supervision unit of the Israel Prison Service inside the prison (even though the location of the supervision unit was not stipulated in amendment 28 itself, but only in the concession agreement and the permit); the supervisory powers given to the state with regard to the appointment of officers in the privately managed prison; and the extensive reporting duties imposed on the concessionaire with regard to various incidents, both under amendment 28 and under the concession agreement. According to this argument, the supervisory measures will guarantee the prison inmates’ rights. The state also points out that amendment 28 also provides that the permit for operating the prison and the concession agreement may be revoked by the state, if the permit’s conditions are breached.

The state also goes on to say that, under s. 15(d)(2) of the Basic Law:  The Judiciary and according to the case law of this court, from the moment that the concessionaire receives sovereign powers, it becomes directly subject to both administrative law and the jurisdiction of the High Court of Justice, without even resorting to the doctrine of the dual-nature corporation. In addition to the judicial scrutiny of the High Court of Justice to which the concessionaire is subject, the state says that an inmate in the privately managed prison, like every inmate in the Israel Prison Service, has the right to file a prisoner’s petition to the District Court under the provisions of the Prisons Ordinance. This possibility of judicial scrutiny of the prison conditions constitutes, according to the state, an independent and very powerful means of supervision and control that is available to every inmate at all times. Additional control mechanisms with regard to the activity of a privately managed prison to which the state refers are the scrutiny of the State Comptroller, since the concessionaire is an audited body within the meaning of this term in s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958, and the scrutiny of an advisory committee chaired by a retired District Court justice. According to amendment 28, this committee will advise the Commissioner of Prisons on the subject of upholding the rights of inmates in the privately managed prison, and also on the subject of their rehabilitation, welfare and health, and it shall submit its recommendations to the Minister of Public Security, the Commissioner of Prisons and the Internal Affairs and Environment Committee of the Knesset once a year. In view of the aforesaid, the state argues that there is no basis for the claim that it has divested itself of its powers, and it adds that in the Israeli model chosen for the privatization of the prison, a significant part of the sovereign powers is retained by the state.

The state goes on to argue that the rights of the inmates will be guaranteed not merely by the mechanisms provided in the law itself but also in the administrative sphere, by the permit for constructing and operating the prison, as well as in the contractual sphere, by the concession agreement with the concessionaire. In this regard, the state says that various powers that are potentially particularly harmful and are not essential for the ongoing management of the prison (which are given to governors of prisons managed by the state) were not given by amendment 28 to the governor acting on behalf of the concessionaire. The state also says that, even if this court holds, contrary to its position, that amendment 28 violates constitutional human rights to a greater extent than the violation of prison inmates’ rights under the general law, this violation satisfies the tests of the limitations clause.

6.    Regarding the provisions of s. 1 of the Basic Law: the Government, which provides that ‘the Government is the executive branch of the state,’ the state claims that this provision is intended to define in a ‘ceremonial’ manner the nature and character of the government in relation to the other organs of state. According to the state, the purpose of this provision does not concern any specific executive power at all, merely the general position of the government within the democratic system. The state goes on to argue that in any case the government carries out its functions as the executive branch in a variety of ways, including by relying on private entities. Therefore the government does not stop acting as ‘the executive branch of the state’ when it carries out its functions through private entities or delegates certain powers to them. The state goes on to argue that even if s. 1 of the Basic Law: the Government can be used to set aside the delegation of powers made pursuant to a statute, there is no basis for using it to disqualifying amendment 28, since the privately managed prison will be run with the full involvement of the state, and therefore the amendment will not undermine the principle that the government is the executive branch of the state. The state further argues that even if amendment 28 can be regarded as a violation of the principle provided in the Basic Law: the Government, it is a negligible and very remote violation that lies at the margin of the principle and not at its centre.

The state also says that the Israeli model chosen for entrusting a prison to private management is based on the English model that is characterized by a regulatory approach, according to which the supervision of the activity of the private concessionaire is carried out by state inspectors who are stationed inside the supervised prison. Notwithstanding, according to the state, the Israeli model of delegating powers to manage one prison to a private concessionaire is more moderate with regard to the powers given to the concessionaire and more comprehensive, compared to similar legislative models in other countries, with regard to the powers to supervise the concessionaire, and it should therefore be regarded as an ‘improved English model.’

In view of the aforesaid, the state claims that since the petition challenges a privatization determined by law, which does not violate constitutional rights, the intervention of the court should be limited to rare and extreme cases, in which the privatization shakes the foundations of democracy and the fundamental principles of the system of government; according to the state, circumstances of this kind do not exist in the case before us.

7.    The concessionaire that was chosen in the tender to build and operate the privately managed prison also argues that the petition should be denied. It argues that not only will the operation of a privately managed prison not harm the liberty, dignity and rights of the inmates, but it will result in an improvement of their conditions, because of the high standards laid down by the state in the minimum requirements of the tender for the construction and operation of the prison (standards that the concessionaire claims it undertook to improve upon) and because of the extensive supervisory powers retained by the state. The concessionaire emphasizes in its reply to the petition the importance that it attaches to the social goals that the prison is intended to realize, including the rehabilitation and education of the inmates. The concessionaire further argues that there is no basis to the petitioners’ claims regarding the concern of a violation of inmates’ rights as a result of the legislation of amendment 28. In this context, the concessionaire argues that the petitioners’ claim that the running of a prison with the assistance of a private enterprise necessarily leads to a greater danger of a violation of inmates’ basic rights than a prison entirely managed by the state needs to be proved factually on the basis of research and empirical evidence; according to the concessionaire, however, the petitioners did not even attempt to discharge this heavy burden. The concessionaire goes on to argue that even if amendment 28 violates a constitutional right protected in the Basic Law: Human Dignity and Liberty, that violation satisfies the conditions of the limitations clause. With regard to the third petitioner’s arguments regarding the concern that the concessionaire’s economic motives will result in a deterioration in the inmates’ prison conditions at the privately managed prison, the concessionaire argues that these claims do not address the constitutionality of amendment 28, merely the manner in which it is implemented, and in any case they are without merit, in view of the high standard for operating the prison set out in the conditions of the tender, the concession agreement and the concessionaire’s bid.

With regard to the petitioners’ claims that are founded on the provisions of s. 1 of the Basic Law: the Government, the concessionaire argues that this provision is a declarative constitutional provision that does not prevent a delegation of powers by the government, or the state availing itself of the assistance of private enterprises to carry out its duties.

8.    An additional argument that is raised both by the state and by the concessionaire is the claim of laches. The state and the concessionaire say that the petition before us was filed approximately a year after the Knesset enacted amendment 28, without any justification for the delay in filing the petition. In this respect, it was argued by the state and the concessionaire that the delay in filing the petition adversely changed their position, since by the date of filing the petition they had already gone to considerable expense and invested significant work and time in the project — the state in preparing the tender and the documents of the tender, and the concessionaire in studying the documents of the tender and preparing a detailed bid for the tender. It was also argued that the cancellation of the project at a late stage would harm the foreign parties who had entered into contracts with the concessionaire and relied on the legislation of the Knesset, and it might even prejudice the attractiveness of the State of Israel to foreign investors and experts, as well as other national projects requiring large investments. We should already point out at this stage that we see no reason to dismiss the petition on the ground of laches. Even if we assume in favour of the state and the concessionaire that the rules of laches also apply to constitutional petitions, and that in the present case there were both an objective delay and a subjective delay on the part of the petitioners, in view of the constitutional importance of the issues raised in the petition — both from the viewpoint of the principles of the system of government in Israel and from the viewpoint of the effect on the human rights of prison inmates — there is no basis for dismissing this petition because of the delay in filing it (with regard to the tests for examining a claim of laches, see, for example: AAA 7142/01 Haifa Local Planning and Building Committee v. Society for the Protection of Nature in Israel [1], at pp. 678-679; AAA 2273/03 Blue Island General Partnership v. Society for the Protection of Nature in Israel [2], at paras. 86-101 of the judgment).

9.    In addition to the replies of the state and the concessionaire, we also heard the position of the Knesset with regard to the petition. According to the Knesset, s. 1 of the Basic Law: the Government, which it will be recalled is the basis for the petitioners’ constitutional argument concerning the state divesting itself of its powers, does not contain any provision with regard to the manner of carrying out the government’s powers; it does not contain any provision that restricts the Knesset’s power to permit the government to act in various ways to discharge its executive function; nor does the section provide criteria for examining the constitutionality of laws. Therefore, the Knesset claims that s. 1 of the Basic Law: the Government is not relevant at all when considering the constitutionality of amendment 28. The Knesset goes on to argue that there is no basis for examining the constitutionality of the amendment in accordance with the provisions of a ‘judicial limitations clause’ that is based on the limitations clauses provided in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation. In this respect the Knesset argues that no clear case law ruling has yet been made that the Knesset’s legislative power is limited by the tests in the limitations clause even when the relevant Basic Law does not have an express limitations clause, and it adds that a substantive restriction of the kind that is found in the limitations clause in the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation is unsuited to the examination of legislation that prima facie conflicts with a provision in a Basic Law that concerns the organs of the state. It should be noted that in so far as the concrete question of the privatization of prisons is concerned, the Knesset included in its arguments a comprehensive description of the phenomenon of prison privatization around the world. The Knesset emphasized that this is a ‘hard case’ of privatization and it argued that the state needs to carry out close supervision of the private entity, and that the concessionaire should be made subject to the rules of public law.

Deliberations

10. Amendment 28 of the Prisons Ordinance, whose constitutionality is being challenged by the petitioners in this case, introduced a material change in the sovereign outlook of our system of government; it departs from the ordinary and accepted outlook of privatizing government activities in that it gives a private concessionaire various powers that, when exercised, necessarily involve a serious violation of human rights. In this petition we are required to decide whether granting these powers to a private concessionaire, i.e., privatizing these powers, is constitutional (with regard to the various definitions of the concept of privatization, see Y. Katz, Privatization in Israel and Abroad (1997), at pp. 23-30). On this question, our approach will be as follows: first, we shall address the nature of the arrangement provided in amendment 28. Thereafter, we shall consider in brief the scope of judicial review of Knesset legislation. Our main deliberations on the question of the constitutionality of amendment 28 will focus on the Basic Law: Human Dignity and Liberty. At the end of our deliberations we shall address the arguments of the parties regarding the constitutional scrutiny of the amendment from the viewpoint of the Basic Law: the Government. It should immediately be pointed out that in view of the conclusion we have reached, that the amendment under discussion does not satisfy the constitutionality tests in the Basic Law: Human Dignity and Liberty, various questions that arise with regard to the constitutionality of the amendment from the viewpoint of the Basic Law: the Government do not require a decision.

The nature of the arrangement provided in amendment 28

11. The following are the main relevant provisions that were introduced by the aforesaid amendment 28.

Section 128G(a) of the Prisons Ordinance provides that ‘The service [i.e., the Israel Prison Service] may, for the purpose of carrying out its functions as stated in section 76, rely on a corporation’ that satisfies certain minimum requirements stipulated in the section, ‘and to this end it may enter into an agreement with it to construct, manage and operate one prison’ (it should be noted that the functions of the Israel Prison Service are defined in general terms in s. 76(a) of the Prisons Ordinance, which provides that the Israel Prison Service ‘shall engage in the management of the prisons, the security of inmates and everything entailed therein’). The corporation to which s. 128G(a) of the Prisons Ordinance refers is therefore the concessionaire, which is supposed, according to the provisions of amendment 28, to construct, manage and operate the ‘privately managed prison.’ The various powers given to the concessionaire under amendment 28 are naturally derived from the scope of the responsibility imposed on it. Section 128L of the Prisons Ordinance defines the spheres of responsibility imposed on the private concessionaire in the following terms:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The powers of the concessionaire and its employees, whose privatization within the framework of amendment 28 lies at the heart of the petition before us, are those powers that are derived from the spheres of responsibility provided in ss. 128L(a)(1) and 128L(a)(2) of the Prisons Ordinance, namely the responsibility of maintaining order, discipline and public security in the prison and the responsibility of preventing the escape of inmates that are held in custody in the prison. In order that the private concessionaire that manages and operates the prison can discharge its responsibility in these fields, the governor of the private prison on behalf of the concessionaire and the concessionaire’s employees (subject to several important exceptions) were given various powers, which are parallel to the powers given to the governor of an Israel Prison Service prison and the prison employees that are subordinate to him. Exercising these powers — and this petition is directed against granting them to a private concessionaire rather than against their actual existence — naturally entails a serious violation of various human rights, including the right to life, the right to personal liberty and the right to human dignity. Below we shall discuss several of the powers given to the private concessionaire’s employees at their various levels.

12. The powers of the governor of the privately managed prison are defined in s. 128R of the Prisons Ordinance, which states the following:

‘Functions and powers of the governor of a privately managed prison

128R. (a) The governor is responsible for the proper management and operation of a privately managed prison, as stated in section 128L(a), and in this respect all of the provisions under this Ordinance that apply to a prison governor shall apply to him, subject to the provisions of this section.

 

(b) In order to carry out his functions as stated in subsection (a), the governor shall be given the powers given to a governor of a prison under this Ordinance and under every other law, except for the powers according to service orders and the following powers:

 

(1) Making an order to transfer an inmate because of a contagious disease, under the provisions of section 13(b);

 

(2) Extending a period during which an inmate is held in isolation under the provisions of section 19C(a);

 

(3) Confiscating a possession under the provisions of section 44;

 

(4) Jurisdiction regarding prison offences under the provisions of article 8 of chapter 2;

 

(5) The power of an examiner with regard to a letter to a member of Knesset under the provisions of section 47D;

 

(c) In addition to the powers given to the governor under the provisions of subsection (b), he shall also be given the following powers:

 

(1) The power given to a senior prison officer to order the holding of a prisoner in isolation, under the provisions of section 19C(a);

 

(2) The power to order the conducting of an external examination of the naked body of a prison inmate, when he is admitted into custody, as stated in section 95D;

 

(3) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a prison inmate, under the provisions of section 95E(b);

 

(4) The power given to an Israel Prison Service officer to approve the use of reasonable force in order to conduct a search on a prison inmate, under the provisions of section 95F(b);

 

(5) The power given to an Israel Prison Service officer to order the taking of a urine sample from a prison inmate, an external examination of his naked body or the making of an external search, under the provisions of sections 95H(a) and 95I(c);

 

(6) The power given to an Israel Prison Service officer to order the conducting of an external examination of the naked body of a visitor under the provisions of section 95J(b);

 

(7) The powers given to a prison security guard under the provisions of section 128AA.’

A study of the provisions of the aforementioned s. 128R shows that although the governor of the privately managed prison was not given important powers that are given to the governor of an Israel Prison Service prison (including the power to extend the period for holding an inmate in administrative isolation for more than 48 hours and jurisdiction regarding prison offences), the law still gives him powers that, when exercised, involve a serious violation of the rights to personal liberty and human dignity. These powers include, inter alia, the power to order an inmate to be held in administrative isolation for a maximum period of 48 hours; the power to order the conducting of an external examination of the naked body of an inmate; the power to order the taking of a urine sample from an inmate; the power to approve the use of reasonable force in order to carry out a search on the body of an inmate; and the power to order an inmate not to be allowed to meet with a particular lawyer in accordance with the restrictions provided in s. 45A of the Prisons Ordinance.

It should be further pointed out that in addition to all these there is a series of invasive powers that are given to the governor of the prison on behalf of the private concessionaire, which are embodied in the concession agreement rather than in amendment 28 itself.

13. Additional invasive powers are also given to the concessionaire’s employees that are subordinate to the governor of the privately managed prison. Thus, for example, s. 128Y provides which powers are given to a ‘senior employee of the concessionaire,’ which is defined in s. 128F of the Prisons Ordinance as a ‘employee of the concessionaire who carried out command and management functions’:

‘Powers of a senior employee of the concession­aire

128Y. In order to carry out his functions, a senior employee of the concessionaire shall have the following powers:

(1) The powers given to a prison security guard under the provisions of section 128AA;

 

(2) The powers set out in section 128R(c)(1) to (6), in whole or in part, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(3) The powers that are given to an examiner under the provisions of sections 47A to 47C, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization;

 

(4) The power given to the governor to deny privileges, if the governor authorized him for this purpose, with the approval of the commissioner, and in accordance with the authorization.’

An additional position that was created within the framework of amendment 28 is the position of ‘prison security guard.’ This position in the privately managed prison is de facto equivalent to the position of a prison officer in the Israel Prison Service. The functions of a ‘prison security guard’ are set out in s. 128Z of the Prisons Ordinance as follows:

‘Functions of a prison security guard

128Z. The functions of a prison security guard are:

(1) To maintain public safety and security in the privately managed prison;

 

(2) To prevent the escape of the inmates who are held in custody in the privately managed prison;

 

(3) To maintain order, discipline and routine in the privately managed prison;

 

(4) To discover or prevent offences that are committed within the compound of the privately managed prison or the surrounding area, when accompanying an inmate out of the privately managed prison or when chasing an escaped inmate, all of which with regard to a privately managed prison or inmate;

 

(5) To carry out any additional function that the agreement provides shall be carried out by a prison security guard.’

The powers given to a ‘prison security guard’ in order to discharge his aforesaid functions (powers that are all also given to the governor of the privately managed prison and to a ‘senior employee of the concessionaire’) are set out in s. 128AA of the Prisons Ordinance as follows:

‘Powers of a prison security guard

128AA. (a) (1) When carrying out his job and for that purpose only, a prison security guard has the powers given to a prison officer under the provisions of this Ordinance, including powers to carry out the instructions of the governor or of a senior employee of the concessionaire, as stated in section 125R(c)(1), (3), (5) and (6), subject to the following changes:

 

(a) The power under the provisions of section 95 with regard to a weapon that is a firearm, according to the meaning thereof in the Firearms Law, 5709-1949, is given to a prison security guard in the following circumstances only:

 

(1) When he is carrying out perimeter security functions on the walls of the privately managed prison or in the area surrounding the prison;

 

(2) When he is accompanying an inmate outside the privately managed prison;

 

(3) In circumstances where there has been a serious violation of order and discipline in the privately managed prison, as stated in section 128AJ(a)(1), in accordance with a permit from the commissioner and according to the conditions set out in the permit;

 

(b) He shall have the power to make an external examination of the naked body of an inmate when he is admitted into custody, under the provisions of section 95D, only in accordance with an order from the governor or from a senior employee of the concessionaire under the provisions of section 128R(c)(2);

 

(2) In this subsection, ‘senior employee of the concessionaire’ — a senior employee of the concessionaire who has been authorized for this purpose under the provisions of section 128Y(2).

 

(b) Notwithstanding the provisions of subsection (a)(1), a prison security guard shall not have the following powers:

 

(1) The powers given under the provisions of this Ordinance to a prison officer who belongs to the Anti-Drugs Unit, as defined in section 95A;

 

(2) The power to order an inmate to be held in isolation under the provisions of section 19C;

 

(3) Jurisdiction regarding prison offences, under article 5 of chapter 2, and any other power that is given to a prison officer under the aforesaid chapter.

 

(c) A prison security guard shall have the powers as stated in this section within the compound of the privately managed prison, or in the surrounding area, and when accompanying an inmate outside the prison or when chasing an escaped inmate; nothing in the provisions of this subsection shall derogate from the provisions of subsection (a)(1)(a).’

The aforesaid s. 128AA therefore gives a prison security guard, who it will be remembered is a employee of the concessionaire who operates the privately managed prison, powers that are given to a prison officer of the Israel Prison Service, subject to certain restrictions. These powers include, inter alia, the power to use a weapon in order to prevent the escape of an inmate from the prison, the power given to a policeman to arrest and detain a person without a warrant under ss. 23 and 67 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996 (a power that is given to a prison employee under s. 95B of the Prisons Ordinance), and the powers provided in ss. 95D and 95E of the Prisons Ordinance to carry out a search on the person of an inmate when he is admitted into custody and during his stay in the prison. Exercising these powers also leads, of course, to a serious violation of the inmates’ human rights. It should also be noted that a employee of the concessionaire who is not a prison security guard is also entitled in certain circumstances to use reasonable force and to take steps to restrain an inmate, in accordance with s. 128AB of the Prisons Ordinance, which provides the following:

‘Powers of a employee of the concessionaire to use force

128AB. A employee of the concessionaire that is not a prison security guard, who has undergone training as provided in the agreement, may use reasonable force and take measures to restrain an inmate, until a prison security guard or a prison officer comes, if one of the following is satisfied:

 

(1) The inmate commits in his presence a violent offence or causes real damage in his presence to a person or property;

 

(2) There is a real concern of harm to the health or physical integrity of a person;

 

(3) There is a reasonable concern that the inmate is escaping or is trying to escape from the privately managed prison.’

The petition before us does not address the actual existence of the aforesaid harmful powers, nor does it deny the need for them in order to operate and manage a prison properly. As stated above, the petitioners’ claims address the constitutionality of giving the aforesaid functions and powers to a private concessionaire and its employees.

The scope of judicial scrutiny of Knesset legislation

14. The premise for examining the constitutionality of amendment 28 is that it is a law passed by the Knesset that reflects the will of the representatives of the people, and as such the court is required to respect it; the court will therefore not determine lightly that a certain statute is unconstitutional (see HCJ 3434/96 Hoffnung v. Knesset Speaker [3], at p. 67; HCJ 4769/95 Menahem v. Minister of Transport [4], at pp. 263-264). Moreover, it should be recalled that a law that is enacted by the Knesset enjoys the presumption of constitutionality that imposes on someone claiming unconstitutionality the burden of showing, at least prima facie, that the statute is unconstitutional, before the burden passes to the state and the Knesset to justify its constitutionality. The presumption of constitutionality also requires the court to adopt the assumption that the statute was not intended to undermine constitutional principles (see Hoffnung v. Knesset Speaker [3], at p. 68; HCJ 6055/95 Tzemah v. Minister of Defence [5], at pp. 267-269 {663-667}). At the same time, the court should carry out the role given to it in our constitutional system and examine the constitutionality of the legislation enacted by the legislative branch. This examination should be made by striking a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the protection of human rights and the basic values underlying the system of government in Israel, on the other. This also means that the constitutional scrutiny should be carried out with caution and restraint, without reformulating the policy chosen by the legislature (see CrimA 6659/06 Iyyad v. State of Israel [6], at para. 29 of the judgment). This rule of caution and restraint when intervening in the policy chosen by the legislature is particularly applicable with regard to court intervention in matters reflecting economic policy. President A. Barak said in this respect:

‘The court does not seek to replace the thinking of the legislature with its own thinking. The court does not put itself in the legislature’s place. It does not ask itself what measures it would choose, were it a member of the legislature. The court exercises judicial scrutiny. It examines the constitutionality of the law, not its wisdom. The question is not whether the law is good, effective or justified. The question is whether it is constitutional. A “socialist” legislature and a “capitalist” legislature may enact different and conflicting laws, which will all satisfy the requirements of the limitations clause. Indeed, the Basic Laws are not a plan for a specific political course of action. Nationalization and privatization can both exist within their framework. A market economy or a centrally planned economy can both satisfy judicial scrutiny, provided that the economic activity that violates human rights satisfies the requirements of the limitations clause. Therefore, where there is a range of measures, the court should recognize a margin of appreciation and discretion that is given to the legislature… Determining social policy is the province of the legislature, and its realization is the province of the government, which both have a margin of legislative appreciation’ (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386; see also Menahem v. Minister of Transport [4], at pp. 263-264. For criticism regarding the limited scope of judicial intervention in economic policy, see B. Medina, ‘“Economic Constitution,” Privatization and Public Funding: A Framework of Judicial Review of Economic Policy,’ Itzchak Zamir Book on Law, Government and Society (2005) 583, at pp. 648-652).

Moreover, it is important to clarify that when speaking of legislation that results in a serious violation of protected human rights, the fact that the motive underlying the legislation is an economic one does not decide the question of the scope of constitutional scrutiny of that legislation. In such circumstances, the predominant element in the constitutional scrutiny will be the nature and degree of the violation of human rights, as well as the existence of possible justifications for that violation. The deciding factor will therefore not be the economic aspect of the legislation causing the violation, but the question whether the legislation leads to a serious and grave violation of constitutional human rights and does not satisfy the tests of the limitations clause.

15. The constitutional issue lying at the heart of the petition before us is whether and to what extent the state — and especially the government, which is the executive branch of the state — may transfer to private enterprises the responsibility for carrying out certain tasks that for years have been its exclusive concern, according to the basic constitutional principles of the democratic system in Israel, when those tasks involve a significant and fundamental violation of human rights. The question that we are called upon to decide is, therefore, whether it is possible to determine that the privatization of sovereign powers in this case is unconstitutional, even though it is done pursuant to primary legislation of the Knesset.

An examination of the constitutionality of amendment 28 in accordance with the Basic Law: Human Dignity and Liberty

16. When we examine the petitioners’ arguments that are founded on the provisions of the Basic Law: Human Dignity and Liberty, we should first decide the question whether granting the various powers involved in the management and operation of a prison to a private concessionaire, as was done in amendment 28, violates a constitutional right that is protected in the Basic Law: Human Dignity and Liberty. If we find that such a right has been violated, we should examine whether the violation is lawful, i.e., whether the violation satisfies the tests of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty. If we ultimately arrive at the conclusion that amendment 28 violates a constitutional right that is protected by the Basic Law: Human Dignity and Liberty, and that this violation does not satisfy the tests of the limitations clause, we shall need to determine what is the appropriate constitutional remedy for the unlawful violation (regarding the three stages of constitutional scrutiny, see CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 428; HCJ 4128/02 Israel Union for Environmental Defense v. Prime Minister of Israel [9], at p. 517).

17. The first question that we need to decide, therefore, is whether the provisions of amendment 28 involve a significant violation of a constitutional right that is protected by the Basic Law: Human Dignity and Liberty. Our deliberations as to whether amendment 28 violates the human rights of the inmates of the privately managed prison are based on the premise that imprisoning a person and holding him in custody in itself violates his right to liberty and freedom of movement. This is the case even when the imprisonment is lawful. In addition to this premise, there is another premise that has become a rule in our legal system, that the loss of personal liberty and freedom of movement of an inmate, which is inherent in the actual imprisonment, does not justify an additional violation of the other human rights of the inmate to an extent that is not required by the imprisonment itself or in order to realize an essential public interest recognized by law (see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 11 of the judgment; PPA 4463/94 Golan v. Prisons Service [11], at pp. 152-156 {501-504}). In this respect, the remarks of Justice E. Mazza are apt:

‘It is established case law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law’ (Golan v. Prisons Service [11], at pp. 152-153 {501}).

18. On the basis of these premises, we should examine the petitioners’ arguments with regard to the violation of basic constitutional rights that arises from the provisions of amendment 28, which focus de facto on two issues. First, the petitioners argue that there is a real concern that the powers that were provided in amendment 28 will be exercised by the private concessionaire in a manner that violates the human rights of the inmates to a greater degree than the manner in which the corresponding powers are exercised in the prisons managed by the Israel Prison Service. Second, the petitioners argue that the transfer of powers to manage and operate the prison to a private concessionaire ipso facto violates the constitutional rights of the inmates in the privately managed prison to their personal liberty and human dignity.

As we shall clarify below, amendment 28, which allows the construction of a prison that will be managed and operated by a private corporation, leads to a violation of the constitutional rights to personal liberty and human dignity of inmates who are supposed to serve their sentence in that prison. This is because of the actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise. We therefore do not need to decide the arguments of great weight raised by the petitioners regarding the potential for violating the inmates’ human rights in the privately managed prison to a greater degree than the violation of the inmates’ human rights in the prisons managed by the state. It should be noted that the petitioners’ claims in this regard were mainly based on the provisions set out in amendment 28 with regard to the nature of the powers granted to the concessionaire’s employees, the state’s supervision of the private concessionaire’s actions, the economic inducements that will present themselves to the concessionaire and the state with regard to the manner in which the prison is managed and the minimum conditions determined for the professional qualifications of the concessionaire’s employees. In this context, the petitioners also raised arguments concerning the violation of human rights that has been caused by the operation of privately managed prisons in other countries, and especially in the United States.

19. We have examined the petitioners’ claims that are based on the concern that the human rights of inmates will be violated in the privately managed prison to a greater extent than in state managed prisons. In this respect, we are of the opinion that the concerns raised by the petitioners are not unfounded and that there is indeed a concern that the manner of operating the privately managed prison will lead to a greater violation of inmates’ human rights than in state managed prisons, because of the fact that the private prison is managed by a corporation that is a profit-making enterprise. It would appear that the aforesaid concern troubled both the primary legislature and the granter of the concession, and for this reason broad supervision and inspection powers were provided in amendment 28 to allay this concern. Notwithstanding, we have reached the conclusion that although the concerns raised by the petitioners are not unfounded, they address a future violation of human rights and there is no certainty that this will occur; therefore, it is questionable whether it constitutes a sufficient basis for setting aside primary legislation of the Knesset. In this regard it should be noted that the petitioners’ claims regarding the ramifications of the privatization of prisons in other countries (and especially the United States) are an insufficient basis for this court to reach an unequivocal and a priori determination that the method of operating a prison by means of private management will necessarily result in a violation of human rights that is significantly greater than the violation of human rights in state managed prisons. The reasons for this are, first, that the legislative arrangements in other countries are different from the legislative arrangement in Israel (especially with regard to the degree of state supervision of the concessionaire and the scope of the concessionaire’s powers), and, second, that the comparative figures are not unambiguous (see: A. Volokh, ‘Developments in the Law — The Law of Prisons: III. A Tale of Two Systems: Cost, Quality and Accountability in Private Prisons,’ 115 Harv. L. Rev. 1838, 1868 (2002); U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 85-88; D.E. Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ 19 Journal of Law & Politics 253 (2003), at pp. 271-276). Our decision will therefore be based on the assumption that, despite the potential violations indicated by the petitioners, there is no empirical proof that the manner of operating private prisons necessarily leads to a greater violation of the inmates’ human rights than that in the state managed prisons. Notwithstanding, we have reached the conclusion that the actual transfer of powers to manage a prison from the state, which acts on behalf of the public, to a private concessionaire that is a profit-making enterprise, causes a serious and grave violation of the inmates’ basic human rights to personal liberty and human dignity — a violation that should, of course, be examined from the viewpoint of the limitations clause. Let us now turn to clarify our reasons for this conclusion.

The violation caused by amendment 28 to the constitutional right to personal liberty

20. Sending someone to prison — whether it is managed privately or by the state — first and foremost violates the constitutional right to personal liberty. This right is set out in s. 5 of the Basic Law: Human Dignity and Liberty, which states the following:

‘Personal liberty

5.  A person’s liberty shall not be denied or restricted by imprisonment, arrest, extradition, or in any other way.’

The right to personal liberty is without doubt one of the most central and important basic rights in any democracy, and it was recognized in our legal system before it was enshrined in the Basic Law. Denying this right is one of the most severe violations possible in a democratic state that upholds the rule of law and protects human rights. A violation of the right to personal liberty is especially serious because it inherently involves a violation of a series of other human rights, whose potential realization is restricted physically, mentally and ethically. The special status of the right to personal liberty and the serious ramifications arising from a violation thereof were discussed by Justice Zamir in Tzemah v. Minister of Defence [5]:

‘By virtue of s. 5 of the Basic Law: Human Dignity and Liberty, personal liberty is a constitutional right. Moreover, personal liberty is a constitutional right of the first order, and from a practical viewpoint it is also a prerequisite for realizing other basic rights. A violation of personal liberty, like a stone hitting water, creates a ripple effect of violations of additional basic rights: not only the freedom of movement, but also the freedom of speech, privacy, property rights and other rights… As stated in s. 1 of the Basic Law: Human Dignity and Liberty, “Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free….”. Only someone who is free can realize his basic rights fully and properly. It is personal liberty, more than any other right, that makes man free. For this reason, denying personal liberty is a particularly serious violation. Indeed, a denial of personal liberty by means of imprisonment is the most serious sanction that a civilized state imposes on offenders’ (see Tzemah v. Minister of Defence [5], at pp. 261-262 {656}; see also Iyyad v. State of Israel [6], at para. 28).

But like all human rights, the right to personal liberty, despite its exalted constitutional status, is not an absolute right.

From the provisions of s. 5 of the Basic Law: Human Dignity and Liberty, it can be seen that imprisoning a person — whether in a state managed prison or in a privately managed prison — violates his constitutional right to personal liberty. In this respect it is important to emphasize that even when a person is convicted of an offence and sentenced to imprisonment, this does not mean that he no longer has the basic constitutional right to personal liberty; however, in consequence of the conviction and the sentence that follows it, the scope of the protection afforded to this right is reduced and it is denied for the period stipulated in the sentence. This denial is justified under the provisions of the limitations clause (see CrimA 4424/98 Silgado v. State of Israel [12], at p. 550).

21. The special constitutional status of the right to personal liberty and the fact that it constitutes a condition for exercising many other human rights mean that the legitimacy of denying that liberty depends to a large extent on the identity of the party that is competent to deny that liberty and on the manner in which that liberty is denied. The basic constitutional principle underlying this approach is that in a democracy that respects human rights, the basic justification for denying the personal liberty of the individual lies in the fact that denying his liberty results in the realization of some essential public interest. Of course, this condition is insufficient in itself for denying the personal liberty of the individual, but it is an essential condition. This essential public interest that may justify, and sometimes even necessitate, the denial of the personal liberty of a particular individual, can be of various kinds. Thus, for example, usually when we are dealing with the denial of personal liberty in criminal proceedings, the public interest is expressed in the various goals of criminal punishment, such as deterrence, retribution or rehabilitation. In addition to considerations of criminal punishment, the public interest in denying the personal liberty of a particular individual may also be based on the danger that he presents to state security (see, for example, the Emergency Powers (Arrests) Law, 5739-1979, and the Internment of Unlawful Combatants Law, 5762-2002).

22. According to our approach, which will be explained below, since the denial of the right to personal liberty is justified only if it is done in order to further or protect an essential public interest, the question whether the party denying the liberty is acting first and foremost in order to further the public interest (whatever it may be) or whether that party is mainly motivated by a private interest is a critical question that lies at the very heart of the right to personal liberty. The answer to the aforesaid question is of importance to the very legitimacy of the denial of liberty. According to the basic principles of modern political philosophy, the violation of the right to personal liberty resulting from giving a private enterprise the power to deny liberty within the context of the enforcement of criminal law derives ipso facto from the fact that the state is giving that party one of its most basic and invasive powers, and by doing so the exercise of that power loses a significant part of its legitimacy. In order to clarify the nature of the violation of the right to personal liberty that is caused by amendment 28, let us now examine the principles underlying our aforementioned approach and the manner in which these principles apply to amendment 28.

23. According to modern political philosophy, one of the main factors that led to the organization of human beings in society, whereby invasive powers — including the power to send convicted offenders to prison — were given to the authorities of that society and especially the law enforcement authorities, is the aspiration to promote the protection of personal security and public order. This approach lies at the heart of the approach of the founders of modern political philosophy. In his classic work Leviathan, which was published in 1651, Thomas Hobbes discussed the nature of the roles of ‘publique ministers’ that are employed by the ‘Soveraign’:

‘For Execution

Publique Ministers are also all those, that have Authority from the Soveraign, to procure the Execution of Judgements given; to publish the Soveraigns Commands; to suppresse Tumults; to apprehend, and imprison Malefactors; and other acts tending to the conservation of the Peace. For every act they doe by such Authority, is the act of the Common-wealth; and their service, answerable to that of the Hands, in a Bodie naturall’ (Thomas Hobbes, Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil (1651), at chap. XXIII).

An additional expression of the manner in which modern political philosophy regards the role of the ‘political society’ in enforcing the law and punishing offenders can be found in the work of the English philosopher John Locke, Two Treatises of Government, which was published in 1690. In the Second Treatise, Locke presents his position that society rather than each of the individuals within it has jurisdiction regarding offences and the punishment for them:

‘But because no political society can be, nor subsist, without having in itself the power to preserve the property, and in order thereunto, punish the offences of all those of that society; there and there only is political society, where every one of the members hath quitted this natural power, resigned it up into the hands of the community in all cases that exclude him not from appealing for protection to the law established by it. And thus all private judgment of every particular member being excluded, the community comes to be umpire, by settled standing rules, indifferent, and the same to all parties; and by men having authority from the community, for the execution of those rules, decides all the differences that may happen between any members of that society concerning any matter of right; and punishes those offences which any member hath committed against the society, with such penalties as the law has established: whereby it is easy to discern, who are, and who are not, in political society together (John Locke, Second Treatise of Government (1690), at para. 87).

This outlook concerning the responsibility of society or the sovereign (and those acting on their behalf) to enforce the criminal law and preserve public order became over the years a cornerstone in the modern political philosophy of democratic states. Although, naturally, many changes and developments have occurred since the seventeenth century in the way in which the nature and functions of the state are regarded, it would appear that the basic political principle that the state, through the various bodies acting in it, is responsible for public security and the enforcement of the criminal law has remained unchanged throughout all those years, and it is a part of the social contract on which the modern democratic state is also based. An expression of the fundamental outlook concerning the nature of the basic functions of the state and the relationship between it and the citizen can be found in the remarks of Justice I. Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 320 {34}:

‘... the relationship between the authority and the citizen is, in practice, a two-way relationship. Therefore, in my opinion, the authority’s duty to act fairly necessitates a corresponding duty to act fairly on the part of the citizen. This requirement is deeply rooted: it springs from the social contract on which the state is based. Under this contract, as it is understood in a democratic state, the authority and the citizen are not opposing forces on different sides of a barricade but stand side by side as partners in the state. In a democracy, as Justice Silberg said, “... the government and the citizen are one and the same” ... The government (in my opinion we should say: the public administration) has a duty to serve the public – to keep peace and order; to provide essential services; to protect the dignity and liberty of every citizen; to do social justice. But the public administration, which has nothing of its own, can only give to the public if it receives from the public. The proper relationship between the administration and the public, which is in fact the essential relationship, is a reciprocal relationship of give and take.’

In principle, the dispute between supporters and opponents of the privatization of the prisons depends largely on the question of who is the authority that is competent to deprive a person of his liberty in order to enforce the criminal law, and whether it is permitted and desirable to depart from the rule that the exercise of power in this regard lies with the state in its capacity as the representative of the public, and entrust this power to a private enterprise, such as an interested capitalist. This debate has been conducted in academic and public circles, but it has not yet been decided in the courts (see: I.P. Robbins, ‘The Impact of the Delegation Doctrine on Prison Privatization,’ 35 UCLA L. Rev. 911 (1988); J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987); A.A. White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ 38 Am. Crim. L. Rev. 111 (2001), at pp. 134-145). This highlights the special role of the state in enforcing the criminal law and in managing public prisons for the aforesaid purpose. The remarks of the American scholar, Prof. J.J. Dilulio, Jr., are pertinent in this regard:

‘At a minimum, it can be said that, both in theory and in practice, the formulation and administration of criminal laws by recognized public authorities is one of the liberal state’s most central and historic functions; indeed, in some formulations it is the liberal state’s reason for being… It is not unreasonable to suggest that “employing the force of the Community” via private penal management undermines the moral writ of the community itself’ (J.J. Dilulio, Jr., ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ Private Prisons and the Public Interest (D.C. McDonald ed., 1990), 155, at pp. 175-176).

24. According to the aforesaid constitutional principles and the basic social and political tenets of the system of government in Israel, the state — through the government and the bodies that answer to it — is regarded as the party that has the responsibility for ensuring security, public order and the enforcement of the criminal law. The various security services in Israel — including the Israel Defence Forces, the Israel Police, the Israel Prison Service and the General Security Service — take their orders from the government, and as a rule their heads are appointed by it (see ss. 2 and 3 of the Basic Law: the Army, s. 8 of the Police Ordinance [New Version], 5731-1971, s. 78 of the Prisons Ordinance and ss. 3 and 4 of the General Security Service Law, 5762-2002). When these agencies, which all constitute a part of the executive branch of the state, exercise their powers, they are acting on behalf of the state as an organized force that receives its orders from the government. Indeed, the subordination of the various security services to the elected government has always been one of the hallmarks of the State of Israel as a modern democratic state, and it is one of the basic constitutional principles underlying the system of government in Israel (for the constitutional basis for the special status of persons serving in the various security services (including the Israel Prison Service), see ss. 7(8) and 7(9) of the Basic Law: the Knesset, and the special limitations clause provided in s. 9 of the Basic Law: Human Dignity and Liberty).

25. In addition to the subordination of the security forces in the state to the government, one of the hallmarks of the great power that has always been held by the executive branch in Israel is the power given to it, through the police, the state attorney’s office and the prison service, to enforce the provisions of the criminal law in Israel. The issue before us concerns the manner of implementing one of the main elements of the criminal law enforcement mechanisms in Israel — the power to deprive of their liberty those persons who have been convicted under the law and sentenced to imprisonment. This power is one of the most invasive powers that a modern democratic state has over its subjects.

It should be noted that prima facie, in so far as imprisonment as a sentence in a criminal trial is concerned, it might be argued that the violation of the right to personal liberty caused by the imprisonment derives in its entirety from the custodial sentence imposed by the court. Indeed, from a normative viewpoint, the decision of the competent courts of the state to sentence a particular person to imprisonment is the source of the power to violate the constitutional right of that individual to personal liberty. But the actual violation of the right to personal liberty takes place on a daily basis as long as he remains an inmate of the prison. This violation of the right to personal liberty is inflicted by the party that manages and operates the prison where the inmate is held in custody, and by the employees of that party, whose main purpose is to ensure that the inmate duly serves the term of imprisonment to which he has been sentenced (subject, of course, to the provisions of the law) and complies with the rules of conduct in the prison, which also restrict his personal liberty.

In Israel the power to punish someone who has been convicted under the law and to imprison him in order that he may serve his sentence is, therefore, one of the most significant powers of the state, and under the law the body that is responsible for carrying out this function of the state is the Israel Prison Service. This power, as well as the powers of the other security services, is an expression of a broader principle of the system of government in Israel, according to which the state — through the government and the various security services that are subordinate to it — has exclusive authority to resort to the use of organized force in general, and to enforce the criminal law in particular (for a critical discussion of the question of the monopoly given to the state to use force, see C.J. Rosky, ‘Force, Inc.: The Privatization of Punishment, Policing and Military Force in Liberal States,’ 36 Conn. L. Rev. 879 (2004).

26. The monopoly given to the state — through the executive branch and the bodies acting through it — with respect to the use of organized force is of importance in two spheres. In one sphere, we need to take into account that the democratic legitimacy for the use of force in order to restrict the liberty of individuals and to deny various human rights relies on the fact that organized force exercised by and on behalf of the state is what causes the violation of those rights. Were this force not exercised by the competent organs of the state, in accordance with the powers given to them and in order to further the general public interest rather than a private interest, this use of force would not have democratic legitimacy, and it would constitute de facto an improper and arbitrary use of violence. In the other sphere, the fact that the organized force is exercised by a body that acts through the state and is subject to the laws and norms that apply to anyone who acts through the organs of the state and also to the civil service ethos in the broad sense of this term is capable of significantly reducing the danger that the considerable power given to those bodies will be abused, and that the invasive powers given to them will be exercised arbitrarily or in furtherance of improper purposes. Naturally, both of these spheres are interrelated and affect one another, since the democratic legitimacy given to the bodies that exercise organized force on behalf of the state is what allows them in a substantive sense to exercise the powers given to them vis-à-vis any individual. At the same time, since those bodies act within the framework of the democratic political mechanism and are subject to its rules, their legitimacy is enhanced. Prof. Dilulio discussed the close connection between the identity of the party that uses force against prisoners and the legitimacy of the actual use of force in the following terms:

‘In my judgment, to continue to be legitimate and morally significant, the authority to govern those behind bars, to deprive citizens of their liberty, to coerce (and even kill) them, must remain in the hands of government authorities. Regardless of which penological theory is in vogue, the message “Those who abuse liberty shall live without it” is the philosophical brick and mortar of every correctional facility. That message ought to be conveyed by the offended community of law-abiding citizens, through its public agents, to the incarcerated individual. The administration of prisons and jails involves the legally sanctioned coercion of some citizens by others. This coercion is exercised in the name of the offended public. The badge of the arresting police officer, the robes of the judge, and the state patch of the corrections officer are symbols of the inherently public nature of crime and punishment’ (Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 173).

27. Now that we have discussed the constitutional principle regarding the monopoly given to the state to use force in general, and to deny the personal liberty of individuals in order to enforce the criminal law in particular, let us now examine the relationship between this general principle and the arrangement provided in amendment 28. The main provision of amendment 28, which will form the focus of the constitutional scrutiny and from which all of the other provisions of the amendment whose constitutionality is under consideration are derived, is s. 128L of the Prisons Ordinance. This provision defines the spheres of responsibility of the private concessionaire, who is supposed to construct, manage and operate the privately managed prison. The wording of s. 128L appears in para. 11 above, but because of its importance in this case we shall cite the wording of the section once again:

‘Responsi­bility of the concession­aire

128L. (a) The concessionaire is responsible for the proper construction, management and operation of the privately managed prison, including:

 

(1) maintaining order, discipline and public security in the privately managed prison;

 

(2) preventing the escape of inmates that are held in custody in the privately managed prison;

 

(3) ensuring the welfare and health of the inmates and taking steps during the imprisonment that will aid their rehabilitation after the release from imprisonment, including training for employment and providing education;

 

all of which in accordance with the provisions of every law and the provisions of the agreement and while upholding inmates’ rights.

 

(b) The concessionaire shall adopt all the measures required in order to discharge his responsibility as stated in subsection (a), including measures as aforesaid that are stipulated in the agreement, and inter alia he shall appoint for this purpose the concessionaire’s governor and employees in accordance with the provisions of this chapter.’

The constitutional difficulty presented by amendment 28 concerns the management and operation of the prison by a private concessionaire, and in particular the responsibility imposed on it for the matters set out in the aforesaid ss. 128L(a)(1) and 128L(a)(2), namely the responsibility for ‘maintaining order, discipline and public security’ and the responsibility for ‘preventing the escape of inmates that are held in custody.’ These spheres of responsibility, from which all the other invasive powers given to the governor of the prison on behalf of the concessionaire and the concessionaire’s employees are de facto derived, are the spheres in which, according to the petitioners, the state may not delegate or transfer its responsibility to a private enterprise. Moreover, it is important to point out that the provisions of amendment 28 may also to some degree affect the length of the term of imprisonment, since the conduct of the prison inmate has a not inconsiderable effect on the possibility of his early release from prison under the Parole Law, 5761-2001. In this respect it should be pointed out that under s. 9(7) of the Parole Law, the parole board acting under the law is required to consider, inter alia, the recommendation concerning the prisoner that was given by the governor of the privately managed prison, who, it will be recalled, is appointed by the concessionaire (it should be noted that the aforesaid s. 9(7) also relates to the possibility that one of the supervisors acting in the prison on behalf of the Israel Prison Service will submit a recommendation regarding the prisoner in the privately managed prison).

28. The powers involved in maintaining order, discipline and public security in the prisons and the powers involved in preventing the escape of prisoners from custody are traditionally powers that manifestly belong to the state. The sovereignty of the state and its power to use coercive force against its subjects are typified by the power given to it to imprison persons who have been convicted by the court, to supervise those prisoners strictly, continuously and closely, in a manner that seriously (but justifiably) violates their personal liberty, human dignity and privacy, and to take various steps — including the use of deadly force in a manner that endangers the right to life and physical integrity — in order to prevent the escape of the inmates from the prison. Therefore, a prison, even when it operates within the law, is the institution in which the most serious violations of human rights that a modern democratic state may impose on its subjects may and do occur.

We have already discussed the fact that according to the basic values of society and the system of government in Israel, the legitimacy for exercising powers that involve a serious violation of the constitutional right to personal liberty derives from the fact that these powers are exercised by and on behalf of the state, after the person with regard to whom they are exercised has been tried and convicted by the legal system of the state. Imprisoning a person is the culmination of the criminal proceeding initiated against that person by the state on behalf of the entire public. The power of imprisonment and the other invasive powers that derive from it are therefore some of the state’s most distinctive powers as the embodiment of government, and they reflect the constitutional principle that the state has a monopoly upon exercising organized force in order to advance the general public interest. In this context it should be remembered that when an offender who has been convicted by a competent court and sentenced to imprisonment serves his sentence, this is not merely a technical stage of implementing the criminal law; it is a significant and integral part of the criminal proceeding that the state initiates against the individual, without which the earlier parts of the proceeding lose a significant part of their significance. Indeed, just as the state through the legislature is responsible for regulating criminal legislation, so too it is responsible for enforcing the criminal law and punishing offenders according to the law through the executive branch — a responsibility that is realized, inter alia, by imposing the role of managing and operating prisons on the state (see Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

29. The scope of the right to personal liberty and the power to violate this right lawfully are derived from the basic principles of the constitutional system in Israel that we discussed with regard to the responsibility of the state and those acting on its behalf to maintain public order and enforce the criminal law — a responsibility that justifies giving them extensive powers to violate human rights. Therefore, it is possible to say that when it is the state through its competent organs that exercises the coercive power inherent in denying prison inmates their liberty and when the state is de facto responsible for denying the liberty, the violation of the constitutional right to liberty of those inmates has greater legitimacy. Indeed, when the state, through the Israel Prison Service, denies the personal liberty of an individual – in accordance with the sentence that is imposed on him by a competent court — it thereby discharges its basic responsibility as sovereign for enforcing the criminal law and furthering the general public interest. By contrast, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined, since the sanction is enforced by a party that is motivated first and foremost by economic considerations — considerations that are irrelevant to the realization of the purposes of the sentence, which are public purposes.

30. It would therefore appear that amendment 28 gives rise to a question of paramount constitutional important that lies, as we explained in paragraph 22 above, at the very heart of the right to personal liberty, namely whether it is possible to entrust the power to deny liberty to a party that operates in order to further an interest that is essentially a private one.

 Amendment 28 provides an arrangement that authorizes a private profit-making corporation to violate the constitutional right to personal liberty; by making the prison inmates subservient to a private enterprise that is motivated by economic considerations, amendment 28 creates a violation of the constitutional right to personal liberty, which is an independent violation that is additional to the violation caused by the actual imprisonment under lock and key. This violation goes to the heart of the right to personal liberty, since it involves the actual power to hold a person in prison and the conditions of his imprisonment (including the possibility of denying various benefits inside the prison). The source of the violation of the constitutional right to personal liberty that is caused by amendment 28 is therefore inherent to the identity and nature of the body that has been given the powers to violate liberties that are involved in the management and operation of a prison, in two respects. First, the state, after it has determined through its courts that a custodial sentence should be imposed on a certain person, does not bear complete responsibility for the implementation of this decision, with the violation of human rights that arises from it. This situation undermines the legitimacy of the actual sanction of imprisonment and of the violations of various human rights that derive from it (and especially the constitutional right to personal liberty). Second, in addition to the aforesaid, the inmate of a privately managed prison is exposed to a violation of his rights by a body that is motivated by a set of considerations and interests that is different from the one that motivates the state when it manages and operates the public prisons through the Israel Prison Service. The independent violation of the constitutional right to personal liberty of inmates in a privately managed prison exists even if we assume that from a factual-empirical viewpoint it has not been proved that inmates in that prison will suffer worse physical conditions and invasive measures than those in the public prisons.

Indeed, when we examine the extent of the violation of the right to personal liberty inherent in placing a person under lock and key we should take into account not merely that person’s actual loss of personal liberty for a certain period but also the manner in which he is deprived of liberty. The broad scope of the protected right finds expression in various ways, and this too justifies affording it broad protection. The right to liberty is not violated only by denying it in its entirety. The right can be violated on various levels. The manner in which the constitutional right is violated and the nature and extent of the violation naturally affect the constitutional scrutiny of the violation from the perspective of the limitations clause (see and cf. HCJ 5936/97 Lam v. Director-General of Ministry of Education, Culture and Sport [14], at pp. 681-683, 692-693, 693-694 {545-549, 562-563, 564-565}; Menahem v. Minister of Transport [4], at pp. 260-261).

31. In this respect it should be stated that we see no reason to accept the concessionaire’s argument that all that amendment 28 provides is tantamount to the state availing itself of the assistance of a private enterprise rather than delegating or transferring powers to it. It is well known that a distinction between an authority availing itself of the assistance of a private enterprise in order to carry out its duties and a delegation of powers to a private enterprise has been made in our administrative law, and the main distinction between the two situations concerns the scope of the powers and the discretion given to the party to whom the competent authority delegates its powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at pp. 422-424; HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16]; I. Zamir, Administrative Authority (vol. 2, 1996), at pp. 541-550, 561-562). In the circumstances of the case before us, even if there are certain differences between the scope of the powers given to the employees of the private concessionaire that operates the prison and the scope of powers given to prison officers of the Israel Prison Service, an examination of the provisions of amendment 28 shows that the private concessionaire was given wide-ranging powers with regard to the day-to-day management of the prison, including the enforcement of order and discipline therein.

The powers given to the private concessionaire are not merely technical powers. They are invasive powers that are involved on a regular basis when discretion is exercised by the prison governor acting on behalf of the concessionaire and the employees subordinate to him, who are in control of the managing the lives of the inmates in the prison on a daily basis. Moreover, the management and operation of a prison naturally require dealing with unexpected situations in the course of direct contact with the inmates and making quick decisions on an immediate basis, where the supervision and scrutiny of the making of the decisions and the manner of exercising the discretion can only be carried out retrospectively. Indeed, it would seem that in so far as the management of private prisons is concerned, there is a very significant difficulty in making a clear distinction between the policy decision of the state and the actual manner in which it is implemented by the private concessionaire (see J. Freeman, ‘The Private Role in Public Governance,’ 75 N. Y. U. L. Rev. 543 (2000), at pp. 632-633; Dilulio, ‘The Duty to Govern: A Critical Perspective on the Private Management of Prisons and Jails,’ supra, at p. 176). In these circumstances, it is clear that the arrangements provided in amendment 28 constitute a transfer (or at least a delegation) of powers from the Israel Prison Service to the private concessionaire, which is responsible for the management and operation of the prison, rather than a government authority merely availing itself of the assistance of a private enterprise, as the concessionaire claims.

32. We should further mention that, in their pleadings in reply to the petition, the respondents (the state and the concessionaire) argued that there are various other arrangements that allow private enterprises to exercise different sovereign powers. Examples of such arrangements are the possibility of appointing a private lawyer as a prosecutor in a criminal trial by virtue of an authorization from the attorney-general under s. 12(a)(1)(b) of the Criminal Procedure Law [Consolidated Version], 5742-1982 (see HCJ 8340/99 Gorali Kochan & Co. Law Offices v. Attorney-General [17]; HCJ 1783/00 Haifa Chemicals Ltd v. Attorney-General [18]); the possibility provided in s. 5 of the Execution Law, 5727-1967, of appointing a private individual, who has been authorized for this purpose, as an ‘officer’ for the enforcement of civil judgments; and the existence of nursing and psychiatric institutions, which operate for profit, where the members of staff have full control of the various aspects of the lives of the inmates of those institutions. The question of the constitutionality and legality of these arrangements does not arise in the petitions before us, and therefore we are not required to adopt any position with regard to it. But it is hard to deny that these are functions that are not so closely related to the manifestly sovereign functions of the state and that the violation of human rights that results from exercising them is less than that involved in the management and operation of a prison, which is the subject of the petition before us (for a discussion of the question of the constitutional and legal restrictions imposed on the privatization process, see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001); D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007); cf. also C.P. Gillette & P.B. Stephan III, ‘Constitutional Limitations on Privatization,’ 46 Am. J. Company. L. 481 (1998)).

33. In summary, the conclusion that we have reached is that amendment 28 causes an additional independent violation of the constitutional right to personal liberty beyond the violation that arises from the imprisonment itself. It can therefore be said that our position is that the scope of the violation of a prison inmate’s constitutional right to personal liberty, when the entity responsible for his imprisonment is a private corporation motivated by economic considerations of profit and loss, is inherently greater than the violation of the same right of an inmate when the entity responsible for his imprisonment is a government authority that is not motivated by those considerations, even if the term of imprisonment that these two inmates serve is identical and even if the violation of the human rights that actually takes place behind the walls of each of the two prisons where they serve their sentences is identical. This conclusion gives rise to a question, which we shall consider below, as to whether it is possible to determine that this independent violation was made lawfully in accordance with the limitations clause.

Amendment 28 violates the constitutional right to human dignity

34. In addition to the violation of the right to personal liberty, amendment 28 also violates the constitutional right to human dignity that is enshrined in section 2 of the Basic Law: Human dignity and Liberty as follows:

‘Preservation of life, body and dignity

2.  One may not harm the life, body or dignity of a person.’

In order to examine the claim that the provisions of amendment 28 cause a violation of human dignity, we first need to discuss the content of the constitutional right to human dignity and the extent to which it applies in the circumstances of the case before us. In the judgment in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19] it was held that the model adopted by the Supreme Court with regard to the scope of application of the constitutional right to human dignity is an ‘intermediate model’; in other words, the right to human dignity does not only include those clear violations that relate to a person’s humanity, such as physical and emotional injuries, humiliation and defamation, but it does not encompass all human rights. In that case President Barak addressed the content of the constitutional right to human dignity in the following terms:

‘What is human dignity according to the approach of the Supreme Court? This question should be answered by means of constitutional interpretation of the language of the statute against the background of its purpose. This interpretive approach is based on the history of the provision in the Basic Law, its relationship to other provisions in the Basic Laws, the basic values of the legal system and comparative law. It gives central weight to the case law of this court regarding the scope of human dignity. On the basis of all of these, our conclusion is that the right to human dignity constitutes a set of rights that needs to be upheld in order for dignity to exist. The right to human dignity is based on the recognition that man is a free creature, who develops his body and mind as he wishes in the society in which he lives; the essence of human dignity lies in the sanctity of his life and his liberty. Human dignity is based on the autonomy of the individual will, the freedom of choice and the freedom of action of a human being as a free agent. Human dignity relies on the recognition of the physical and spiritual integrity of a human being, his humanity, his worth as a human being, all of which irrespective of the degree of benefit that others derive from him’ (see Movement for Quality Government in Israel v. Knesset [19], at para. 35 of the judgment).

35. Whatever the content of the constitutional right to human dignity may be, no one denies that the right to dignity applies with regard to preventing the denigration of a person and preventing any violation of his human image and his worth as a human being. The right to dignity is a right that every human being is entitled to enjoy as a human being. Admittedly, when a person enters a prison he loses his liberty and freedom of movement, as well as additional rights that are violated as a result of the imprisonment; but an inmate of a prison does not lose his constitutional right to human dignity. A long time before the Basic Law: Human Dignity and Liberty was enacted, Justice Barak discussed how prison inmates and persons under arrest also enjoy the right to human dignity. Justice Barak held in this regard in HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298:

‘Every person in Israel enjoys a basic right to physical integrity and to the protection of his human dignity. These rights are included in the “charter of judicial rights”… that has been recognized by this court. The right to physical integrity and human dignity is also a right of persons under arrest and prison inmates. The walls of the prison are not a barrier between the inmate and human dignity. The regime in the prison naturally requires a violation of many liberties that free people enjoy… but the regime in the prison does not demand that the inmate is denied his right to physical integrity and to protection against a violation of his dignity as a human being. The inmate loses his freedom, but he is not deprived of his human image.’

This finding regarding the right of prison inmates and persons under arrest to human dignity was, of course, given extra force when the Basic Law: Human Dignity and Liberty was enacted and the right to human dignity became a super-legislative constitutional right that every government authority is liable to respect. The social importance that should be attributed to the protection of the human dignity of prison inmates was discussed by Justice E. Mazza in the following terms:

‘We should remember and recall that the human dignity of the prison inmate is the same as the dignity of every human being. Imprisonment violates the prison inmate’s liberty, but it should not violate his human dignity. A prison inmate has a basic right not to have his dignity violated, and every government authority has a duty to respect this right and to prevent it from being violated… Moreover, a violation of the human dignity of a prison inmate does not merely affect the inmate, but also the image of society. Humane treatment of prison inmates is a part of a humane-moral norm that a democratic society is required to uphold. A state that violates the dignity of its prison inmates breaches the obligation that it has to all of its citizens and residents to respect basic human rights’ (Golan v. Prisons Service [11], at p. 256).

36. Indeed, it is hard to deny that imprisoning someone under lock and key and imposing upon him the rules of conduct in the prison violates his human dignity. This violation is caused whether that person is imprisoned in a public prison or in a privately managed prison. Therefore, the question that we need to decide in this case is whether imprisoning a person in a privately managed prison causes a greater violation of his human dignity than imprisoning him in a public prison.

Imprisoning persons in a privately managed prison leads to a situation in which the clearly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose, namely the desire of the private corporation operating the prison to make a financial profit. There is therefore an inherent and natural concern that imprisoning inmates in a privately managed prison that is run with a private economic purpose de facto turns the prisoners into a means whereby the corporation that manages and operates the prison makes a financial profit. It should be noted that the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings, and this violation of the human dignity of the inmates does not depend on the extent of the violation of human rights that actually occurs behind the prison walls (cf. in this respect the question of employing employees in a prison (HCJ 1163/98 Sadot v. Israel Prison Service [21])).

37. The violation of the human dignity of prison inmates described above, which inherently derives from the existence of a privately managed prison, is naturally exacerbated by the invasive character of the powers that amendment 28 allows the private concessionaire and its employees to exercise vis-à-vis the inmates in addition to the violation inherent in the actual imprisonment. These include, as aforesaid, placing an inmate in administrative isolation for a period of up to 48 hours, the use of firearms in order to prevent inmates escaping from the prison, the use of reasonable force in order to conduct a body search on the inmates, a visual examination of the naked bodies of inmates and taking urine samples from inmates. It should also be noted that we do not accept the state’s claim that the injury caused by the exercise of authority over an inmate by a employee of a private company lies in the subjective feelings of the person making the claim and  that this is not essentially a legal argument. The violation of the human dignity of inmates in a privately managed prison is not an injury that derives from the subjective feelings of those inmates, but an objective violation of their constitutional right to human dignity.

38. An additional aspect of the violation of the constitutional right to human dignity that is caused by amendment 28 lies in the social and symbolic significance of imprisonment in a privately managed prison. This aspect of the right to human dignity, which distinguishes it from other human rights, is discussed by the learned Prof. Meir Dan-Cohen, who expresses a view that the existence of a violation of human rights that derives from a certain act or institution depends on the symbolic significance that society attributes to that act or institution, whether the source of that symbolic significance lies in its clear and express content or in some form of social consensus with regard to the aforesaid act or institution, irrespective of the empirical data regarding that act or institution (which may be the source of that symbolic significance), and irrespective of the specific intention of the party carrying out an act of that type in specific circumstances. Prof. Dan-Cohen writes in this respect:

‘Once an action-type has acquired a symbolic significance by virtue of the disrespect it typically displays, its tokens will possess that significance and communicate the same content even if the reason does not apply to them… As long as certain actions are generally considered to express disrespect, one cannot knowingly engage in them without offending against the target’s dignity, no matter what one’s motivations and intentions are’ (see M. Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality (2002), at p. 162).

This fundamental approach to the special nature of the right to human dignity expresses an approach that befits the matter before us, when we consider the narrow and essential meaning of the right. Indeed, in many cases a violation of human dignity is accompanied by a violation of additional human rights such as a violation of the right to life and physical integrity and a violation of the right to privacy. Notwithstanding, a violation of human dignity may also be an ‘independent’ violation, when a certain act that is done or a certain institution that is created do not inherently violate other human rights, but they reflect an attitude of disrespect from a social viewpoint towards the individual and his worth as a human being. In so far as amendment 28 is concerned, this approach requires us to examine the significance that Israeli society attached to the imprisonment of a person in a prison that is managed and operated by a private corporation, whose employees are given various invasive powers over the inmates in that prison.

39. As we explained above, amendment 28 admittedly violates the constitutional right to personal liberty, but in addition it independently violates, as described above, the human dignity of the inmates in a privately managed prison. This is because the imprisonment of a person in a privately managed prison is contrary to the basic outlook of Israeli society (an outlook that we discussed in paragraphs 24-25 above) with regard to the responsibility of the state, which operates through the government, for using organized force against persons subject to its authority and with regard to the power of imprisonment being one of the clear sovereign powers that are unique to the state. When the state transfers the power to imprison someone, with the invasive powers that go with it, to a private corporation that operates on a profit-making basis, this action — both in practice and on an ethical and symbolic level — expresses a divestment of a significant part of the state’s responsibility for the fate of the inmates, by exposing them to a violation of their rights by a private profit-making enterprise. This conduct of the state violates the human dignity of the inmates of a privately managed prison, since the public purposes that underlie their imprisonment and give it legitimacy are undermined, and, as described above, their imprisonment becomes a means for a private corporation to make a profit. This symbolic significance derives, therefore, from the very existence of a private corporation that has been given powers to keep human beings behind bars while making a financial profit from their imprisonment (see, in this regard, I.P. Robbins, ‘Privatization of Corrections: Defining the Issues,’ 40 Vand. L. Rev. 813, at pp. 826-827 (1987)).

The relationship between the restrictions on the concessionaire’s powers and the supervisory mechanisms provided in amendment 28, on the one hand, and the violation of the right to personal liberty and human dignity, on the other

40. When we seek to assess the nature and the intensity of the violation of the constitutional rights to personal liberty and human dignity that is caused by amendment 28, we are required to take into account the various restrictions on the private concessionaire’s activity provided in amendment 28 and the various supervisory measures for the concessionaire’s activity that were provided within the framework of the amendment. According to the state and the concessionaire, in view of the aforesaid restrictions and supervisory arrangements, it should not be said that the amendment reflects a shirking by the state of its basic responsibility for enforcing the criminal law.

41. Indeed, the respondents correctly argue that a significant attempt was made by the legislature to limit the violation of human rights caused by amendment 28; it is important to point out that no provisions were included in the amendment that allow a more serious violation of the human rights of the inmates of a privately managed prison than the violation of human rights of the inmates in state managed prisons. Moreover, it should be noted that certain invasive powers that are given to the officers of the Israel Prison Service — including the power to disciplinary adjudicate inmates and the power to order an extension of the period during which an inmate is held in administrative isolation beyond 48 hours — are not given to the employees of the private concessionaire. Moreover, section 128K of the Prisons Ordinance, which was enacted within the framework of amendment 28, regulates the manner in which the provisions of the law regarding a state managed prison will apply to a privately managed prison, and in this regard s. 128K(c)(1) of the Ordinance provides that an inmate held in a privately managed prison shall have all the rights, benefits and services that are given to an inmate in a prison that is not privately managed. Moreover, s. 128I of the Prisons Ordinance imposes on ‘the concessionaire, individuals with significant influence therein, the governor and the concessionaire’s employees’ the provisions of the Penal Law, 5737-1977, that apply to civil servants (cf. CrimFH 10987/07 State of Israel v. Cohen [22]). This provision was also intended to result in making the legal norms that apply to the employees of the private concessionaire the same as those that apply to the officers of the Israel Prison Service. In this respect it is not superfluous to point out that it would appear that the concessionaire operating the privately managed prison is subject to the judicial scrutiny of the High Court of Justice and the rules of administrative law, as it is a body that fulfils a public function under s. 15(d)(2) of the Basic Law: The Judiciary. In view of this, and since the powers of the employees of the private concessionaire are subject to restrictions parallel to those imposed on the powers of the officers of the Israel Prison Service, we cannot determine that the provisions of amendment 28, in themselves, allow the private concessionaire and its employees to violate the human rights of inmates in the privately managed prison to a greater degree than the violation of the human rights of inmates in a state managed prison.

42. In addition to the provisions described above, which were intended to make the normative position of the inmates in the privately managed prison equal to those of the inmates in the state managed prisons, amendment 28 provides various mechanisms for the state to supervise the activity of the private concessionaire (see sections 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). These supervisory mechanisms, which are apparently more comprehensive than the supervisory mechanisms that exist in other countries where private prisons operate in a similar format, are prima facie capable of reducing the concern that the violation of human rights in the privately managed prison will be greater than that in the prisons of the Israel Prison Service (regarding the supervisory mechanisms for private prisons that exist in the United States, Britain and other countries, see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 276-281; C.M. Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective (2007), at pp. 105-108; R.W. Harding, Private Prisons and Public Accountability (1997), at pp. 51-55). In this context it should also be pointed out that according to the presumption of constitutionality that amendment 28 enjoys, we should assume that the supervisory mechanisms provided in the amendment will operate properly; in any case, the arguments with regard to the manner of exercising them are the kind of arguments that are more suited to being examined in an administrative petition than in a constitutional one.

We have not overlooked the fact that amendment 28 contains a provision that is intended to contend with the concern that the violation of the human rights of inmates in the privately managed prison will be greater because of improper economic considerations. This provision appears in s. 128G(b) of the Prisons Ordinance, which provides the following:

‘Agreement between the Israel Prison Service and the corporation regarding the construction, management and operation of a privately managed prison

128G. ...

(b) The amount of the consideration for the concessionaire that will be determined in the agreement shall not be made conditional upon the number of inmates that will actually be held in a privately managed prison, but it may be determined in accordance with the availability of prison places in the number provided in the schedule or on a smaller scale as the commissioner shall determine with the approval of the comptroller-general at the Ministry of Finance.’

This provision is indeed intended to limit the concern that economic inducements will motivate the concessionaire operating the privately managed prison to act in improper ways to increase the number of inmates in the prison or to extend their terms of imprisonment.

43. The creation of the aforementioned supervisory mechanisms for the activity of the private concessionaire, as well as the various restrictions on the scope of its powers as provided in amendment 28, show that the legislature was also aware of the constitutional difficulty inherent in transferring powers to manage and operate a prison to a private corporation that is a profit-making enterprise. But the supervisory measures described above cannot provide an answer to the difficulty inherent in the very management and operation of a prison by a private concessionaire. As we clarified at length in paragraphs 29-30 and 36-39 above, and for the reasons set out there, in view of the degree of the violation of the constitutional rights caused as a result of the actual transfer of the powers of imprisonment and the invasive powers included therein to a private corporation, public supervision is insufficient to eliminate the violation and the damage that it involves. We shall discuss the relationship between the violation and the possibilities of supervision in greater detail in paragraphs 52-54 below.

Does amendment 28 satisfy the limitation clause tests?

44. Since we have found that granting powers to manage and operate a prison — together with the invasive powers involved therein — to a private corporation and its employees, as was done in amendment 28, violates the constitutional rights to personal liberty and human dignity of the inmates in the privately managed prison, we are called upon to examine whether this is a permitted violation. Indeed, the rights to personal dignity and human dignity, like the other human rights recognized in our constitutional law, are not absolute, and a certain act of legislation will not be unconstitutional solely because it violates a constitutional right. The violation of the constitutional rights to liberty and human dignity in amendment 28 will be lawful it is satisfies the conditions of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty, which provides the following:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose, and to an extent that is not excessive, or under a law as stated by virtue of an express authorization therein.’

The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (see HCJ 5026/04 Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 52 {355}; HCJ 1661/05 Gaza Coast Local Council v. Knesset [24], at p. 546). The limitations clause provides that four cumulative conditions need to be satisfied in order that a violation of a constitutional right that is protected in the Basic Law: Human Dignity and Liberty, will be lawful: the violation of the right should be made in a law (or by virtue of an express authorization in a law); the law should befit the values of the State of Israel; the purpose of the law should be a proper one; and the violation of the constitutional right should not be excessive. If one of these four conditions is not satisfied, this means that the violation of the constitutional right is not lawful, and the provision of the law that violates the constitutional right is unconstitutional. Since we have found that amendment 28 violates the constitutional rights to personal liberty and human dignity, we should examine whether the conditions of the limitations clause are satisfied by it.

45. Regarding the first condition provided in the limitations clause — the demand that the violation of the protected constitutional right should be made by a law — no one disputes that amendment 28 satisfies this condition.

The second condition provided in the limitations clause, according to which the law that violates the constitutional right should befit the values of the State of Israel does not give rise to any real difficulty in our case. This condition refers, according to the purpose clause provided in s. 1A of the Basic Law: Human Dignity and Liberty, to ‘the values of the State of Israel as a Jewish and democratic state’ (see Design 22 Shark Deluxe Furniture Ltd v. Director of Sabbath Work Permits Department, Ministry of Labour and Social Affairs [23], at p. 53 {356}). In their petition, the petitioners raised a claim that amendment 28 is inconsistent with the values of the State of Israel as a democratic state because it violates the principle of the separation of powers. We see no reason to accept this claim in the case before us. Indeed, the values of the State of Israel as a democratic state also include the principle of the separation of powers and it is possible that a particularly serious violation of this principle in a certain law will justify a determination that the law is unconstitutional, since it is inconsistent with the values of the State of Israel as a democratic state. Notwithstanding, the petitioners’ claims in the petition before us did not focus on the question of whether this condition is satisfied, and it is indeed hard to see how this condition may be violated by anything other than unusual and exceptional circumstances; it is therefore possible to assume that amendment 28 satisfies the condition of befitting the values of the State of Israel.

The third condition provided in the limitations clause is that the violation of the constitutional right should be done for a proper purpose. The purpose of the law should be regarded as a proper purpose when it is intended to protect human rights or to realize an important public or social purpose, in order to maintain a basis for coexistence within a social framework that seeks to protect and advance human rights (see Menahem v. Minister of Transport [4], at p. 264). The nature of the violated right and the extent of the violation may also shed light on whether the purpose of the violating law is a ‘proper purpose’ (see Iyyad v. State of Israel [6],at para. 30 of the judgment). According to the state, the purpose of amendment 28 is to bring about a direct and indirect improvement of inmates’ prison conditions at a reduced budgetary cost. This purpose of improving the prison conditions of inmates in Israel — even if it is combined with an economic purpose — is a proper purpose. It should be noted that the petitioners’ claim with regard to the requirement of the proper purpose is that the purpose of economic efficiency does not in itself constitute a proper purpose that justifies a violation of constitutional rights. This claim of the petitioners is too sweeping, since there are situations in which an economic purpose will be considered a proper purpose that justifies a violation of human rights, depending on the type of purpose, its importance to the public interest and the extent of the violation of the constitutional right (see, for example, HCJ 5578/02 Manor v. Minister of Finance [25], at pp. 739-740; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [26], at para. 11 of the judgment). As we shall clarify below, the weight of the economic purpose in amendment 28 is very significant, and this aspect is capable of affecting the manner in which we consider whether amendment 28 satisfies the requirement of proportionality and the constitutional balance that it requires between various principles and values. But in the circumstances of the case before us, the mere existence of an economic purpose that is combined with an attempt to realize the purpose of improving prison conditions, as expressed in amendment 28, cannot prevent the amendment from satisfying the requirement of a proper purpose. It follows that we need to examine whether the means chosen by the legislature to realize the proper purpose of amendment 28 satisfy the requirement of proportionality.

46. The fourth condition provided in the limitations clause, on which we shall focus our main deliberations, demands that the violation caused by the law under discussion to the protected constitutional right shall be ‘to an extent that is not excessive.’ This condition concerns the proportionality of the violation of the constitutional right; in other words, even if the violation of the constitutional right is effected by a law that befits the values of the State of Israel and that is intended for a proper purpose, the law may still be found to be unconstitutional if its violation of the constitutional right is disproportionate. The requirement of proportionality therefore examines the means chosen by the legislature to realize the (proper) purpose of the legislation.

The case law of this court has recognized three subtests that are used to examine the proportionality of the violation of a protected constitutional right by an act of legislation. The first subtest is the rational connection test, which examines whether the legislation that violates the constitutional right is consistent with the purpose that it is intended to realize. The second subtest is the least harmful measure test. This test requires us to examine whether, of all the possible measures for realizing the purpose of the violating law, the measure that harms the protected constitutional right to the smallest possible degree was chosen. The third subtest is the test of proportionality in the narrow sense. This test requires the violation of the protected constitutional right to be reasonably commensurate with the social advantage that arises from the violation (see Menahem v. Minister of Transport [4], at pp. 279-280; Movement for Quality Government in Israel v. Knesset [19], at paras. 57-61 of the opinion of President Barak).

The three aforementioned subtests do not always require one option to be chosen in order to realize the purpose of the legislation. In many cases the legislature may be confronted by several options that differ in the degree to which they violate the constitutional right under discussion and the extent to which they realize the relevant legislative purposes. When there are various possibilities that may satisfy the requirement of proportionality, the legislature has a margin of legislative appreciation that we call the ‘margin of proportionality,’ within which the legislature may choose the possibility that it thinks fit. The limits of the margin of appreciation given to the legislature in a concrete case are determined by the court in accordance with the nature of the interests and the rights that are at issue. The court will intervene in the legislature’s decision only when the measure that was chosen by it departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate (see Menahem v. Minister of Transport [4], at p. 280; AAA 4436/02 Tishim Kadurim Restaurant, Members’ Club v. Haifa Municipality [27], at pp. 812-813; Gaza Coast Local Council v. Knesset [24], at pp. 550-552).

47. With regard to the first subtest of proportionality — whether the legislative measure chosen is consistent with the legislative purpose — the dispute between the parties focuses on the question whether amendment 28 is expected to realize the economic aspect of its purpose. The petitioners claim in this respect that they have in their possession opinions that indicate that global experience does not show a clear connection between the privatization of prisons and an economic saving, and they argue that this conclusion can also be seen in various works of academic research. The state, on the other hand, relies on an opinion that was submitted to the tenders committee for the privately managed prison project, which argues that the bid of the concessionaire that won the tender is expected to bring about a saving for the state, which is estimated at approximately 20%-25% of the cost of operating a prison, with similar standards, that is built and operated by the Israel Prison Service. According to this opinion, the saving over the whole period of the concession is estimated at approximately NIS 290-350 million. This question of achieving the budgetary savings goal, as well as the goal of improving the prison conditions of the inmates, is a question that naturally depends on the manner in which the provisions of amendment 28 will actually be implemented. In the case before us, we are not speaking of a situation in which prima facie there is no rational connection between the provisions of the legislation that violates the protected constitutional right and the purposes that the act of legislation is supposed to realize. In any case, at this stage of the ‘privatization’ planning process, the state cannot prove that better conditions for the inmates will indeed be achieved with the expected budgetary savings, nor are we able to determine that amendment 28 is not prima facie capable of realizing the purposes of an economic saving and improving the prisons conditions of inmates that it was designed to achieve. Therefore, we are prepared to assume for the sake of argument that the rational connection regarding the purpose of amendment 28 does exist.

48. The second test of proportionality is, as we have said, the least harmful measure test, which requires that of all the possible measures for realizing the purpose of the legislation, the measure that violates the protected constitutional right to the smallest extent should be chosen. With regard to this subtest, the petitioners argued that it is possible to achieve the economic purpose underlying amendment 28 with measures that violate human rights to a lesser degree. This can be done, according to the petitioners, by building additional state managed prisons or by means of only a partial privatization of powers that do not contain a predominant element requiring the exercise of sovereign power. The state claims in reply that it has not yet found a sufficiently effective means of furthering the purpose of improving the prison conditions of inmates in Israel at a reduced budgetary cost that involves a lesser violation of human rights (in so far as such a violation actually exists). In this regard the state emphasizes that the arrangement provided in amendment 28 includes many significant safeguards. The state further argues that when the policy concerning the privatization of the prisons was formulated, the ‘French model’ in this field was also examined. According to the ‘French model’ for privatizing prisons (which is also used in a similar form in Germany), there is cooperation between the state and the private enterprise in managing the prison, which is reflected in the fact that various logistical services provided in the prison are outsourced, but the issues of security and enforcement are not entrusted to the private enterprise.

As can be seen from the state’s affidavit in reply, in June 2002 the Minister for Public Security approved the privatization of prisons on an ‘expanded French model,’ which also included the transfer to the private enterprise of certain powers in the fields of security and guarding. However, the state claims that ultimately, after examining the experience that has been obtained around the world in operating prisons, it was decided that the privatization would be done in accordance with the ‘English model’ (according to the state, in accordance with an ‘improved English model’), in which the management of the prison is entrusted to a private enterprise operating under the supervision of the state, which retains for itself a limited number of powers (especially powers to try and sentence inmates). The main reason given in the state’s pleadings for rejecting the ‘French model’ for privatizing prisons is that the division of responsibility and powers between the Israel Prison Service and the private enterprise that operates the prison is expected, on the basis of experience around the world, to cause many problems in the proper management of the prison. The concessionaire states in this regard that there is serious criticism of the ‘French model,’ which in the opinion of many does not give expression to the advantages of privatization and the involvement of the private sector, and that the separation of the security functions from the administrative functions makes it difficult to create a uniform policy and to define goals. The concessionaire further argues that, to the best of its knowledge, at the stage when the state considered implementing the ‘French model,’ a considerable difficulty was discovered in finding international enterprises that would be prepared to enter into an investment and partnership in Israel on the basis of this model. From these arguments it therefore follows that, according to the state and the concessionaire, the model that was ultimately adopted in amendment 28 is the one that best realizes the purposes that giving the powers to manage and operate a prison to a private concessionaire was intended to realize.

49. From the state’s affidavit-in-reply it can therefore be seen that after various options were examined with regard to the manner of implementing the privatization, each with its various administrative and economic significances, the option called by the state ‘the improved English model’ was chosen. This option is the one embodied in amendment 28. Since this option provides that powers to exercise force, which is essentially a sovereign function, will be transferred to the private enterprise’s employees, it results in a more serious violation of the personal liberty and human dignity of the inmates than the ‘French model’ for prison privatization (a model which, as aforesaid, only includes outsourcing of the logistic powers in the prison, rather than the powers relating to security and enforcement). In the circumstances of the case, we have arrived at the conclusion that the data presented to us is insufficient for determining that the option that was chosen does not satisfy the second subtest of proportionality. It is well known that the second subtest of proportionality does not merely examine whether there is a measure that violates the protected constitutional right to a lesser degree, but it requires us to examine whether that less harmful measure realizes the legislative purpose to the same degree or to a similar degree as the measure chosen by the legislature (see HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak). The state claims, with regard to the difficulty in implementing the French model, that this model does not realize the purpose of improving prison conditions with a budgetary saving to the same extent as this purpose may be realized by amendment 28. Since we are unable to determine in what less harmful way it is possible to achieve the combined purpose of improving prison conditions while making a budgetary saving, which according to the state underlies the purpose of amendment 28, and since this issue naturally requires proof that we do not have before us, the conclusion that follows is that amendment 28 also satisfies the second subtest of proportionality.

50. The third subtest of proportionality is the test of proportionality in the narrow sense. This test is essentially an ethical test in which we are required to examine whether the public benefit that arises from the legislation whose constitutionality is under discussion is commensurate with the damage to the constitutional right caused by that act of legislation (see Gaza Coast Local Council v. Knesset [24], at p. 550; Movement for Quality Government in Israel v. Knesset [19], at para. 60 of the opinion of President Barak). The existence of this proper proportion is examined by striking a balance between the relative social importance of the various principles underlying the expected public benefit from the act of legislation against the degree of harm to the violated human right. Within the framework of this subtest, we should examine the additional social benefit that arises from the legislation relative to the position before the law was enacted, and the additional damage to the constitutional right that is caused by enacting the law (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 91-92 of the opinion of President Barak). The third subtest of proportionality assumes that the constitutional violation satisfies the first two subtests of proportionality. It assumes that there is a rational connection between the act of legislation that violates the constitutional right and the purpose that the act of legislation is intended to achieve, and that the measure chosen by the legislature inflicts upon the constitutional right the least possible harm that is required in order to realize the legislative purpose. Subject to the existence of these requirements, the third subtest examines whether the purpose of the legislation justifies the measures chosen to realize it. The special function of the third subtest of proportionality was discussed by President Emeritus Barak in HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29] in the following terms:

‘... there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the judgment).

In the case before us we are required, within the context of the test of proportionality in the narrow sense, to examine the relationship between the public benefit that arises from amendment 28 and the damage caused by amendment 28 to the constitutional rights to personal liberty and human dignity of inmates in the privately managed prison. When implementing this subtest of the requirement of proportionality, we are also obliged to take into account the provisions provided in amendment 28, which we discussed in paragraphs 41-42 above, that were intended to address the concerns of a violation of the human rights of the inmates as a result of transferring imprisonment powers to a private corporation motivated by a desire to maximize its financial profits.

51. In our deliberations above, we discussed at length the type of violation of human rights created by amendment 28. In paragraphs 22-30 above, we set out in detail the special significances of the violation of liberty as a result of privatization of the prison. Inter alia, we clarified that the violation of the rights to liberty and dignity deriving from introducing a private prison system is not reflected in the actual power of imprisonment, which is invasive in itself, since the actual violation of the personal liberty also occurs when the imprisonment takes place in a state managed prison. In the case of a privately managed prison, the violation lies in the identity and character of the body to which powers are given to violate liberties in the format provided in amendment 28 of the Prisons Ordinance.

We mentioned the democratic legitimacy of the use of force by the state in order to restrict the liberty of individuals and to deny various rights that they have, when this violation is carried out by the organs of the state and for the purposes of protecting the public interest. By contrast, as we clarified above, when the power to deny the liberty of the individual is given to a private corporation, the legitimacy of the sanction of imprisonment is undermined and the extent of the violation of liberty is magnified. As graphically described by one of the scholars that criticize the privatization of prisons, there is a significant difference between a situation in which the party holding the keys to the prison is the state acting for and on behalf of the public, where the inmate is one of the members of that public, and a situation in which the key is entrusted to a commercial enterprise, which represents its own personal economic interest (N. Christie, Crime Control as Industry (second edition, 1994), at p. 104). This difference has implications for the type and extent of the violation. Imprisonment that is based on a private economic purpose turns the inmates, simply by imprisoning them in a private prison, into a means whereby the concessionaire or the operator of the prison can make a profit; thereby, not only is the liberty of the inmate violated, but also his human dignity.

52. Now that we have addressed the violation of human rights that will be caused by amendment 28, we need to examine, within the framework of the third subtest of proportionality, what lies on the other pan of the scales, namely the public benefit that amendment 28 is intended to advance. In its affidavit-in-reply, the state argued that this benefit is a twofold benefit — achieving a significant financial saving, which according to the state is expected throughout the whole period of the concession (which according to the wording of the permit that was attached to the state’s affidavit-in-reply is twenty-four years and eleven months) to reach the amount of NIS 290-350 million, while improving prison conditions for the inmates. In other words, it can be said that the state, in enacting amendment 28, was aware of the need to contend with the serious overcrowding that exists in Israeli prisons, which has also been addressed by this court (see Physicians for Human Rights v. Minister of Public Security [10]). The question before it concerned the means it should adopt in order to contend with this crisis, and in these circumstances the state chose a measure of dealing with the aforesaid crisis that in its opinion is the most economically viable. The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state.

It is important to mention in this context that the special defence mechanisms for prison inmates’ rights that were provided in amendment 28, on which the state and the concessionaire base their replies to the petition, do not constitute a part of the public benefit that amendment 28 is intended to achieve. An examination of these mechanisms as a whole — starting with the various restrictions that were imposed on the powers of the concessionaire’s employees that operate the prison, continuing with the state’s ongoing means of supervising the concessionaire’s activity and ending with the possibility that the state will intervene in what is happening if the private concessionaire does not carry out its undertakings — show that these mechanisms were intended to prevent the private concessionaire abusing the invasive powers given to it within the framework of amendment 28. The introduction of these mechanisms, as we said in paragraph 43 above, is an expression of the fact that the legislature was also aware of the difficulties that amendment 28 raises and the concerns inherent in giving imprisonment powers and the invasive powers deriving therefrom to a private concessionaire. We are therefore not dealing with legislative measures that were enacted merely because the legislature recognized a need to improve the protection of the human rights of inmates in Israeli prisons, but with preventative measures that were intended to neutralize, in so far as possible, the concerns that arise from a transfer of imprisonment powers to a private concessionaire, which was designed to achieve as large an economic saving as possible for the state. In this context we should further add that we are of the opinion that there is an inherent difficulty in estimating the economic benefit that is expected to accrue to the state from the operation of the privately managed prison, certainly when we are speaking of a concession period of almost twenty-five years. Prima facie, in view of the supervisory mechanisms that the state is required to operate by amendment 28, it would appear that the actual economic benefit of amendment 28 can be questioned. Notwithstanding, since it is impossible to determine categorically that amendment 28 is not expected to give rise to an economic benefit to the state, we are prepared for the purposes of our deliberations to assume, as we said in paragraph 47 above, that the economic benefit underlying amendment 28 will indeed be realized.

53. When we examine the question whether the expected benefit that will arise from realizing the purpose of amendment 28 — improving prison conditions while maximizing economic savings — is commensurate with the damage inherent in giving a private concessionaire power to harm inmates, we should remember that since the third subtest of proportionality is essentially an ethical test, it depends to a considerable extent on the values and norms that are accepted in the society under discussion. Naturally, in different countries there may be different outlooks with regard to the question of the scope of state responsibility in various fields and the relationship that should exist between the fields of activity that should be managed by the public sector and the fields in which most activity will be carried out by the private sector. These outlooks are determined, inter alia, by political and economic ideologies, the special history of each country, the structure of the political system and the government, and various social arrangements. These differences between the various countries are expressed in the content of the constitutional arrangements laid down in each country. The role of the court, which is required to interpret and give content to the various constitutional arrangements is not, of course, to decide between various economic and political ideologies; notwithstanding, the court is required to reflect the values enshrined in the social consensus and in the ethical principles that are common to the members of society, to identify the basic principles that make society a democratic society and identify what is fundamental and ethical, while rejecting what is transient and fleeting (see HCJ 693/91 Efrat v. Director of Population Registry, Ministry of Interior [30], at p. 780).

54. As to whether amendment 28 satisfies the test of proportionality in the narrow sense, we have reached the conclusion that the relationship between the intended social benefit of achieving an improvement in prison conditions while making a maximum financial saving by using a private concessionaire, as described in the state’s affidavit-in-reply, and the degree of the violation of human rights caused by the provisions of amendment 28 is a disproportionate one. The violation of the inmates’ human rights that is caused by establishing a privately managed prison in which the private concessionaire’s employees are given extensive powers to use force, which is in essence a sovereign power, is not a violation that is limited to a single issue or an isolated incident. Amendment 28 results in the establishment of an organizational structure whose very existence seriously violates the personal liberty of the inmates of the privately managed prison, to an extent that exceeds what is required by imprisonment itself, and the human dignity of those inmates in the basic and fundamental sense of this concept. This violation is an ongoing violation that occurs continuously for as long as an inmate is confined within a prison where he is subject to the authority of the employees of a private concessionaire. As we have said, this violation is exacerbated by the invasive character of the powers given to the private concessionaire. Indeed, the various supervision and control measures may reduce, and maybe even prevent, the concrete violation of the inmates’ human rights in the privately managed prison as compared with the violation of the human rights of inmates in state managed prisons from the viewpoint of prison conditions and routine; but as we said in paragraph 43 above, these mechanisms do not eliminate the violation of human rights involved in the actual transfer of imprisonment powers over inmates to a private profit-making corporation. In other words, in view of the great social importance of the principles underlying the granting of power to imprison offenders and the invasive powers that derive from it solely to the state, in comparison to the result achieved by realizing the goal of improving prison conditions while making as large a financial saving as possible for the state, the ‘additional’ violation of the constitutional rights to personal liberty and human dignity deriving from granting the aforesaid powers to a private profit-making corporation is disproportionate to the ‘additional’ public benefit that will allegedly be achieved by amendment 28.

It should further be noted that the fact that amendment 28 allows the establishment of only one prison as a ‘pilot’ cannot affect the constitutional analysis that we have made. The reason for this is that, from the viewpoint of the inmates who are supposed to be housed in that prison, the violation of their human rights that derives from their imprisonment in the privately managed prison is caused irrespective of the question whether there are additional inmates imprisoned in other privately managed prisons (in this respect it should be noted that no argument was raised before us with regard to discrimination against inmates in the privately managed prison relative to the inmates in the prisons of the Israel Prison Service, and therefore we see no reason to address this issue).

Therefore, our conclusion is that the damage described above — the greater violation of rights that are in the ‘hard core’ of human rights — is not commensurate with the benefit, in so far as there is any, in the economic saving expected from the construction, management and operation of a prison by a private concessionaire. The purpose of having state managed prison authorities is to realize the law enforcement process by imprisoning persons who have been lawfully sentenced to imprisonment, and to realize sentencing goals with tools and means that the system of democratic government provides for this purpose. No one denies the need to take action to improve the welfare and living conditions of prison inmates in Israel; but blurring the boundaries between this proper purpose and the goal of financial saving, by allowing a private concessionaire of a prison to make financial profits, disproportionately violates human rights and the principles required by the democratic nature of the regime.

55. It should be noted that the petitioners claim that the important purpose of improving the prisons conditions of inmates in Israel can also be achieved in other ways that they indicated, such as building additional state managed prisons or building a prison in which the powers that will be privatized do not include giving the private concessionaire’s employees sovereign power over the inmates. Prima facie, it would appear that the main disadvantage inherent in these methods lies in the economic-administrative sphere, and we are prepared to assume in favour of the state and the concessionaire that the method of operating prisons adopted in amendment 28 will lead to greater economic and administrative efficiency than the methods indicated by the petitioners. But when we balance the violation of the human rights of prison inmates as a result of their being imprisoned in a privately managed prison that operates in the format set out in amendment 28 against the realization of the purpose of improving prison conditions while achieving greater economic and administrative efficiency, the constitutional rights to personal liberty and human dignity are of greater weight. In other words, for the reasons that we have explained above, the benefit to the public interest arising from a realization of the purpose of amendment 28 — improving the prison conditions of inmates while achieving a maximum saving by employing a private concessionaire — is disproportionate to the damage caused as a result of the violation of the human rights of inmates in the privately managed prison. Indeed, in so far as the state is required to improve the prison conditions of inmates — a proper and important purpose — it should be prepared to pay the economic price that this involves, and it should accept that ‘efficiency’ (whatever the meaning of this concept is) is not a supreme value, when we are dealing with a violation of the most basic and important human rights that the state is obliged to uphold.

Therefore, our decision in the case before us is that the social benefit arising from amendment 28 is not commensurate with the violation of protected human rights caused by the provisions of the amendment.

56. Since we have found that amendment 28 does not satisfy the third subtest of proportionality, we are led to the conclusion that the violation of the constitutional rights to personal liberty and human dignity caused by amendment 28 is a disproportionate one that does not satisfy the conditions of the limitations clause. Amendment 28 is therefore unconstitutional.

A comparative analysis of the question of prison privatization

57. Before we conclude our deliberations and examine the consequences of the unconstitutionality of amendment 28, we think it right to address in brief the parties’ arguments regarding the phenomenon of prison privatization around the world. The petitioners argued that experience in other countries shows that the violation of the human rights of inmates of private prisons is greater than the violation of the human rights of their counterparts in state prisons. The respondents for their part argued that the phenomenon of privatizing prisons is not unique to Israel, and various democratic countries, including the United States and Britain, have adopted this method of dealing with the problem of overcrowding in prisons and in order to save on the cost of imprisoning offenders. In none of these countries, it is claimed, has it been held that the privatization of prisons is unconstitutional, or that the state has a constitutional obligation to manage the prisons itself.

58. ‘Privatized’ prisons operate today in various countries around the world, but the manner in which the privatization is implemented and regulated differs from one country to another. This difference is reflected both in the spheres of activity within the prison that can be privatized and in the degree of the state’s supervision of the activity of the party operating the private prison. Thus, for example, the possibility of entering into a contract with private enterprises in order to manage and operate prisons is regulated in legislation, inter alia, in the United States (both on the Federal level and at state level) and Britain. The various acts of legislation that regulate the privatization of prisons differ from one another, inter alia, in the scope of the powers given to the concessionaire in fields that have a potentially significant effect on the human rights of the inmates. In this respect it should be noted that the approach adopted in the United States is that it is possible to give the private concessionaire the responsibility for all of the aspects involved in managing and operating the prison, including the enforcement of discipline in the prison and the use of force against inmates; however, various individual states have determined in their legislation various arrangements regarding the degree of influence given to private enterprises that operate prisons on the dates of the inmates’ release, determining disciplinary rules in the prison and determining disciplinary offences, classifying the inmates from the viewpoint of the benefits to which they are entitled and the degree of state supervision over the activity of the private enterprise (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997)). In Britain too, like in the United States, the private concessionaire and its employees have been given powers that include maintaining security and discipline in the prison and using force against the inmates; but, as a rule, the scope of the powers given to private enterprises that operate prisons is more limited in the British model than in the American model. It would also appear that the state’s supervision over the activity of the private prisons in Britain is more significant than the accepted level of supervision in the United States (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 277-278). As we said in paragraph 48 above, a different model of prison privatization has been adopted in France (and in Germany). According to the French model, private concessionaires were not given all of the duties and powers involved in managing and operating a prison, but, as can be seen from the Knesset’s reply to the petition, only those relating to logistic services. The aforementioned differences in the characteristics of the privatization of prisons in various counties may naturally have considerable significance with regard to the question of the constitutionality of the privatization.

59. From the expert opinions that were filed in this petition — the opinion of Prof. I.P. Robbins for the petitioners and the opinion of Prof. J.F. Blumstein for the concessionaire — it would appear that the courts in the United States have not hitherto held that any of the various legislative arrangements in force in the United States regarding the privatization of prisons are unconstitutional. Indeed, it would appear that the premise of the courts in the United States when considering matters concerning the privatized prisons is that the privatization of the prisons does not in itself give rise to any constitutional difficultly (a good example of this is the judgment of the Federal Court of Appeals for the seventh circuit, in which Judge Posner explained that inmates who raised a constitutional argument against their transfer from a state prison to a private prison ‘would be foolish to do so’; see Pischke v. Litscher [83], at p. 500; for a similar approach of the Federal Courts of Appeal in the United States, see: Montez v. McKinna [84], at p. 866; White v. Lambert [85], at p. 1013. See also the judgment of the Supreme Court of the State of Oklahoma, in which it rejected a claim that giving a permit to counties in the state to enter into contracts with private enterprises in order to manage and operate prisons was an unconstitutional delegation of powers by the legislature: Tulsa County Deputy Sheriff's Fraternal Order of Police v. Board of County Commissioners of Tulsa County [86]). It would therefore seem that the main questions that have been considered by the courts in the United States regarding the privatization of prisons concerned the scope of the tortious liability of the private prisons and their employees in relation to that of the state prisons and their employees (see Richardson v. McKnight [87]; Correctional Services Corporation v. Malesko [88]). It should be noted, however, that several judgments in the United States have held that the public nature of the role fulfilled by the corporations that operate private prisons makes them subject to the provisions of the Constitution (see Skelton v. Pri-Cor, Inc. [89], at pp. 101-102; Rosborough v. Management and Training Corporation [90]).

60. It should also be noted that we have not found any consideration by the courts in Britain, South Africa and the European Union, as well as by the European Court of Human Rights, of the question of the constitutionality of the privatization of prisons. From the opinion of Prof. J. Jowell that was filed by the state, it would appear that hitherto no claims have been raised before the aforesaid courts with regard to the constitutionality of the privatization of prisons. Prof. Jowell’s opinion is that were arguments of this kind to be raised before those courts, they would not be expected to be successful, inter alia because of the economic character of the issue and the lack of a ground of incompatibility with the provisions of the European Convention on Human Rights.

61. It is therefore possible to summarize by saying that a comparative analysis of the case law on the question of the privatization of prisons shows that no court has yet held that the privatization of prisons is unconstitutional. On the other hand, we have also not found any significant consideration of the questions of constitutionality that the matter raises. This situation is not insignificant and it is capable of justifying great care on our part when we consider the constitutionality of amendment 28, since a comparative examination of the law applying to the privatization of prisons in other countries around the world and of the constitutional questions that this phenomenon raises may help us decide some of the questions that arise in our case and show us additional aspects of these issues. But ultimately the manner in which we interpret the Basic Laws in general and the Basic Law: Human Dignity and Liberty in particular is determined in accordance with the fundamental principles of the system of government and the legal system in Israel.

62. As we said in paragraph 53 above, different countries are likely to have different outlooks on the subject of the duties and obligations of the state in general and of the government in particular. These outlooks are capable of influencing the manner in which the specific issue of the constitutionality of the privatization of prisons is examined. In this context it should be noted that both in the United States and in Britain — unlike in Israel — there is a historical tradition of operating private prisons, which naturally is capable of influencing the manner in which the constitutionality of the privatization of prisons is regarded (see Pozen, ‘Managing a Correctional Marketplace: Prison Privatization in the United States and the United Kingdom,’ supra, at pp. 257-258); White, ‘Rule of Law and Limits of Sovereignty: The Private Prison in Jurisprudential Perspective,’ supra, at pp. 122-126). Notwithstanding, it should be emphasized that even in countries where prisons have been privatized the matter is subject to serious public debate, and there is also very critical literature regarding the experience that has been accumulated with respect to the operation of private prisons. The main concern raised in this critical literature is that economic considerations will give the private enterprise operating the prison an incentive to increase the number of inmates in the prison, extend their terms of imprisonment or reduce prison conditions and the services provided to inmates in such a way that ultimately this will lead to a greater violation of the inmates’ human rights that what is necessitated by the actual imprisonment. Moreover, the literature raises a concern that parties with economic interests will have an influence on the length of the terms of imprisonment and the types and levels of sanctions. We should point out that this criticism should not be regarded as separable from the arrangements that exist in those systems (see, for example, S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L.J. 437 (2005), at pp. 518-523; D.N. Wecht, ‘Breaking the Code of Deference: Judicial Review of Private Prisons,’ 96 Yale L.J. 815 (1987), at pp. 829-830; J. Greene, ‘Lack of Correctional Services’ in Capitalist Punishment – Prison Privatization & Human Rights (edited by A. Coyle, A. Campbell and R. Neufeld, 2003), 56-66; M.J. Gilbert, ‘How Much is Too Much Privatization in Criminal Justice,’ in Privatization in Criminal Justice – Past, Present and Future (edited by D. Shichor & M.J. Gilbert, 2001), 41, at pp. 58-65 ; Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 110-111; White, op. cit., at pp. 138-139).

In any case, we have not found anything in the pleadings on the subject of comparative law raised by the respondents that is capable of changing our position with regard to the unconstitutionality of amendment 28.

The petitioners’ claims that are based on s. 1 of the Basic Law: the Government

63. Since we have found that amendment 28 is unconstitutional because it disproportionately violates human rights that are protected under the Basic Law: Human Dignity and Liberty, we do not need to consider the petitioners’ claims that are based on s. 1 of the Basic Law: the Government. Indeed, we accept that the Basic Law: the Government, as a Basic Law, enjoys a super-legislative constitutional status, and therefore it is possible to engage in judicial scrutiny of provisions of ‘ordinary’ legislation that are alleged to conflict with the provisions of the Basic Law: the Government (see HCJ 1384/98 Avni v. Prime Minister [31], at p. 209); but in the case before us it would indeed appear, as the respondents argue, that s. 1 of the Basic Law: the Government, which provides that ‘The government is the executive branch of the state,’ is essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system. There is therefore a difficulty in using it as a basis for arguments against the constitutionality of the privatization of various government services. The source of the aforesaid difficulty is that s. 1 of the Basic Law: the Government does not expressly determine specific duties or spheres of activity where the government has an exclusive responsibility to act. Notwithstanding, despite the aforesaid difficulty and especially in view of our outlook concerning the broad interpretation that should be given to provisions that have a constitutional status, we are inclined to interpret the provision of s. 1 of the Basic Law: the Government in a manner that enshrines on a constitutional level the existence of a ‘hard core’ of sovereign powers that the government as the executive branch is liable to exercise itself and that it may not transfer or delegate to private enterprises. As can be seen from the aforesaid, the powers involved in the imprisonment of offenders and in the use of organized force on behalf of the state are indeed included within this ‘hard core.’ Naturally, adopting an interpretation of this kind will require us to define clearly the limits of that ‘hard core,’ since it may be assumed that there is no constitutional impediment to privatization of the vast majority of services provided by the state, and this matter lies mainly within the scope of the discretion of the legislative and executive branches. Nonetheless, in view of the result that we have reached, we are not required to make any firm determination with regard to the interpretation of s. 1 of the Basic Law: the Government, and this issue can be left for consideration at a later date. Moreover, the absence of an express limitations clause in the Basic Law: the Government gives rise to the question of how the constitutionality of a provision of ‘ordinary’ legislation can be examined when it is alleged that it conflicts with a provision of the Basic Law: the Government. In any case, in the matter before us no decision is required on the question of the manner of exercising judicial scrutiny with regard to ordinary legislation that conflicts with one of the Basic Laws that relate to the system of government, such as the Basic Law: the Government. In these circumstances, we are naturally also not called upon to decide the petitioners’ claims regarding the majority with which amendment 28 was passed in the Knesset, since these claims are based on the assumption that amendment 28 conflicts with s. 1 of the Basic Law: the Government.

The constitutional relief

64. Amendment 28 is contrary to the basic principles of the system of government in Israel, since it gives the invasive powers involved in the management and operation of a prison, which until now have belonged exclusively to the state, to a private corporation that operates on a profit-making basis. We have therefore reached the conclusion that amendment 28 violates the constitutional rights to personal liberty and human dignity of the prison inmates that are supposed to serve their sentences in the privately managed prison. This violation does not satisfy the conditions of the limitations clause in the Basic Law: Human Dignity and Liberty, since it is disproportionate. Therefore we have reached the conclusion that amendment 28 is unconstitutional. This, then, gives rise to the question of the relief for the unconstitutionality.

65. Amendment 28 creates a complete arrangement regarding the privatization of one prison that will be managed and operated by a private corporation. From our judgment it can be seen that the unconstitutionality inherent in amendment 28 derives from the transfer of powers to imprison inmates and the invasive powers incorporated therein to a private corporation. Indeed, not all the provisions of amendment 28 directly concern the exercise of invasive powers against the inmates in the privately managed prison, and therefore prima facie we need to ask whether there is a basis for declaring amendment 28 void in its entirety. We see no alternative to this outcome, because the arrangement in amendment 28 is a comprehensive arrangement in its structure and content, in which the granting of the powers relating to using force against the inmates is an integral part, and therefore were we to set aside only the provisions concerning the granting of the invasive powers, the remaining provisions would be unable to stand independently and the purpose of amendment 28 would not be realized (see Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 97-98 of the opinion of President Barak; A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at pp. 736-737). In this context it should be noted that we have not heard any claim that it is possible to separate the various provisions of amendment 28, and during the hearing of the petition the constitutional deliberations concerned the provisions of amendment 28 as a whole. It should be made clear that we are not adopting any position with regard to the ideal arrangement that should replace amendment 28, but we think it right to point out that the petitioners did not dispute the constitutional propriety of transferring logistical powers in the prison, such as those relating to food services, construction work and laundry, to private corporations, and our rulings in this judgment do not exclude this possibility. In any case, when this court has reached the conclusion that a certain act of legislation is unconstitutional, it is not our role to determine the details of the legislative arrangement that will replace the unconstitutional act of legislation. This is the responsibility of the Knesset (see and cf.: Israel Investment Managers Association v. Minister of Finance [7], at pp. 415-416; Tzemah v. Minister of Defence [5], at p. 284 {687}).

It is also important to point out that our decision in this case is based on the violation of human rights that derives from the transfer of the actual powers to imprison offenders, which involve a violation of their human rights, to a private corporation that operates on a profit-making basis. We are not adopting any position on the legality of the transfer of other functions within the law enforcement system to private enterprises or to any other public authority. Similarly, our conclusions in this judgment do not express any opinion on the legality of the privatization of government services in other fields (such as health, education and various social services), which both in the extent to which they relate to the basic powers of the state and in the extent to which they violate human rights are different from the powers involved in holding prison inmates under lock and key.

66. After writing the aforesaid, I saw the opinion of my colleague Justice Procaccia. Obviously I am in agreement with her opinion, in so far as it relates to the state’s liability to enforce the criminal law and the protection of public order and the importance of executive power being exercised by the state in order to protect the individuals under its authority. Our paths diverge with regard to the analysis of the nature and character of the violation of constitutional human rights caused by amendment 28.

67. According to my colleague Justice Procaccia, the constitutional violation caused by amendment 28 is not a concrete violation of human rights but a risk that arises from the potential disproportionate violation of human rights of the inmate of the privately managed prison, beyond the violation caused to each inmate by his actual imprisonment. In her opinion, my colleague Justice Procaccia points to the concern that economic considerations that motivate the private concessionaire, which has been entrusted with sovereign authority, and the lack of control and deterrent measures such as those that restrict the exercise of authority by the civil service, will result in a potentially ‘major, profound and ongoing’ violation of the most fundamental basic rights of the inmates of the privately managed prison. These concerns are not unfounded, and as I said in paragraph 19 above, I too share them. Notwithstanding, in my opinion, were we only speaking of a potential violation of human rights, it is questionable whether this would justify a judicial determination regarding the unconstitutionality of primary legislation of the Knesset. As a rule, we exercise caution and restraint when exercising judicial review of Knesset legislation. Sometimes there is no alternative to exercising judicial review of legislation enacted by the Knesset, and the case before us is such a case; but I am of the opinion that the premise in constitutional scrutiny is that a mere potential violation of human rights is an insufficient basis for setting aside primary legislation of the Knesset.

Indeed, in so far as a certain provision of a Knesset law violates constitutional human rights in a manner that is inconsistent with the Basic Laws, its constitutionality should be examined in accordance with the accepted tests that our case law provides for this purpose. But in so far as we are dealing with a potential violation of human rights, as opposed to an actual violation, then as a rule such a violation will not justify judicial intervention to set aside legislation. The constitutional scrutiny of an act of legislation will take place at the stage of examining the results, after the manner in which it is implemented de facto has become clear (see and cf. HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at pp. 483-484 {354}). Therefore, my position regarding the unconstitutionality of amendment 28 is not based on a potential violation of human rights caused by the provisions of the amendment, but on the actual violation of the constitutional rights to personal liberty and human dignity caused by the provisions of the amendment themselves, irrespective of the manner in which they will actually be implemented. Moreover, apart from the fundamental difficulty inherent in exercising judicial review of Knesset legislation that is entirely based on a potential violation of human rights, I do not think that it is possible to do this in the circumstances of the case before us. The reason for this is that no adequate probative basis has been brought before us for a judicial decision regarding the potential violation that amendment 28 may cause to the human rights of inmates in the privately managed prison in comparison to the state prisons; certainly no sufficient basis was established in order for us to determine that there exists the degree of likelihood proposed by my colleague Justice Procaccia, namely ‘a near certainty that when realized will materially and seriously violate a constitutional basic right’ (see the end of para. 26 of her opinion). It should be remembered that the supervisory mechanisms provided in amendment 28 are capable, prima facie, of reducing the extent of the potential violation of the human rights of inmates discussed by my colleague Justice Procaccia. For this reason also it is hard to determine that the aforesaid probability test is satisfied in the circumstances of the case before us.

68. I should also point out that the approach of my colleague Justice Procaccia regarding the legislative purpose of amendment 28 is also, in my opinion, problematic. Indeed, I agree with the position of my colleague Justice Procaccia that the enactment of amendment 28 was based on a desire to improve prison conditions of inmates in Israeli prisons. Notwithstanding, I do not think that in the circumstances of the case and as can be seen from the state’s reply it is possible to hold that improving the welfare of the prison inmates is the main purpose of amendment 28. As I said in paragraph 52 of my opinion, if it were not for the fact that amendment 28 is based on an economic purpose, there would have been no need to enact it. The purpose of improving the welfare of prison inmates is desirable and praiseworthy, and prima facie it could have been achieved without any need for any normative change. In the circumstances of the case, the purpose of improving the welfare of the inmates cannot be separated from the economic purpose underlying the privatization, which is the main purpose of amendment 28. For this reason, I also have difficulty in examining the constitutionality of the violation of inmates’ rights caused by amendment 28 in relation to the proper purpose of improving the welfare of the inmates as proposed by my colleague. Moreover, in my opinion there is a concern that if we accept the balancing formula proposed by my colleague Justice Procaccia, this will undermine to a large degree the manner in which the limits of permitted violations of human rights are defined within the context of the limitations clause, because it may be assumed that in a considerable number of cases (and especially when we are speaking of an act of legislation that satisfies the requirement of the proper purpose), it will also be possible to ‘translate’ the value of public interest that is weighed on the scales against the violated human right into another human right (and in this regard I attach no special importance to whether we are supposedly speaking of the rights of the same individual). An analysis of this kind is likely to obscure the distinction between the human rights that are protected in our constitutional system and the values and interests that may justify a violation of those rights. My concern is that this conceptual obfuscation contains a potential for weakening the extent of the constitutional protection of human rights in our legal system.

Conclusion

69. Amendment 28 of the Prisons Ordinance causes an unconstitutional violation of the human rights to personal liberty and human dignity that are protected in the Basic Law: Human Dignity and Liberty, and therefore amendment 28 should be set aside. Since the privately managed prison whose establishment is regulated by amendment 28 has not yet begun to operate, we see no reason to suspend the declaration that amendment 28 is void for the purpose of the prison being operated and managed by a private concessionaire. Therefore, if my opinion is heard, we shall determine that amendment 28 of the Prisons Ordinance is set aside with immediate effect because of its unconstitutionality. In order to remove doubt, it should be clarified that we are not adopting any position with regard to the ramifications of the finding that amendment 28 is unconstitutional on the relationship between the state and the concessionaire in the field of private law.

 

 

 

 

Justice E. Arbel

I agree with the opinion of my colleague the president and with her reasoning.

1.    In the president’s comprehensive opinion, she set out at length the functions and powers imposed on the private concessionaire within the framework of the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’), by virtue of which a privately managed prison is being built in Israel. All of the aforesaid functions and powers have been entrusted to the state since its establishment and throughout its history and have served as a fundamental element of its sovereignty. The question that lies at the heart of the petition is whether the state can unburden itself of these functions and powers and entrust sovereign functions and powers to private enterprises. Like the president, I too am of the opinion that the answer to this question is no. I would like to add three emphases of my own to her opinion: these relate to the exclusive role of the state in employing coercive force, the violation of the human right to dignity as a result of establishing the privately managed prison and the concern inherent in the privatization of prisons of a conflict of interests in certain matters.

2.    Following the classical philosophers in the field of political science, which my colleague reviewed in her opinion, the power to exercise coercive force to deny or restrict liberty is given to the state by virtue of a metaphorical ‘social contract’ that is made between it and the citizens living in it, in which the citizens voluntarily given the state the power to deny liberties and to make use of coercive force, inter alia in order to guarantee their protection and security and to protect their property (see also Élie Barnavi’s survey in his book The Rise of the Modern State (1995) (Hebrew), at pp. 68-76, 82-89, 97-108). This power that was entrusted to the state as the agent of the political community lies at the very heart of the government’s sovereign functions, alongside the power to maintain an army, a police force and courts. The transfer of these functions from the state to a private enterprise undermines the justification that underlies the exercising of the power and amounts to a refusal by the state, albeit only a partial one, to play ‘its part’ in the social contract. It makes the state a bystander that does not seek to realize independent goals of its own.

Indeed, it is the state that, by virtue of the social contract, realizes the wishes of the community. It is the state that, under that same contract, is given the powers to implement these wishes. And it is the state only that is entitled to exercise coercive measures and employ force in order to realize this purpose, while taking into account public considerations and no others. Only the state has the power to distil the collective aspiration of the community and to reflect the ‘general wishes’ inherent therein of upholding the human rights of each of its individuals (see E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 92), including those whose voices are not heard, since it alone is motivated by the interests of the general public. Only when the state wields this power does it have democratic legitimacy because of the consensual aspect and the nature of its purposes. The agreement between the citizens and the government is not fully realized by transferring the power to employ coercive force, including by means of holding someone in prison, but also by the state being the one that exercises the power as the agent of the political community, since otherwise the justification for its existence will be undermined (see P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations,’ 41 British Journal of Criminology 83 (2001)).

By transferring these powers to a private enterprise, we are no longer dealing with the realization of the wishes of the individuals members of society on the basis of their consent to transfer natural rights to the community in order to promote order and security, but with the transfer of powers to an outsider that is not a party to the social contract, is not bound by the norms inherent therein and does not necessarily seek to realize its goals. This weakens the moral standing of the state vis-à-vis the public in general, and vis-à-vis prison inmates in particular, and it de facto weakens the responsibility and commitment that it owes to the prison inmates, which are now based only on indirect supervision while the role of formulating criteria for exercising the power is left in the hands of the private enterprise. This also erodes to some extent the concept of justice, which no longer stands on its own as a goal in itself, and it may weaken the authority of the organs of state, the integrity with which they are regarded, public confidence in government and the nature of democratic government in its widest sense. In such circumstances, depriving the prison inmates of their liberty loses a significant element of the justification for it.

3.    Transferring the relevant type of powers, which includes significant and persistent aspects of the use of coercive force that are given to the state as sovereign, to a private enterprise inherently violates human rights, including the human right to dignity and the human right to liberty.

The value of human dignity on which I will focus, which for a decade and a half has enjoyed a special status of a super-legislative constitutional right in our legal system, recognizes the worth of human beings and regards them as an end in themselves (see A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 421; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at pp. 277, 280). As the philosopher Immanuel Kant said, a person should not be treated solely as a means of achieving external goals, since this involves a violation of his dignity, or in his words: ‘Accordingly, the practical imperative should be as follows: act in such a way that you treat humanity, whether in yourself or in any other person, always also as an end, and never merely as a means’ (Immanuel Kant, Fundamental Principles of the Metaphysics of Morals). In particular, the value of human dignity contains a set of rights without which man’s being a free creature has no meaning (see HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32]). In the context before us, this right includes, inter alia, ‘minimal civilized humane arrangements for the manner of satisfying these needs in order to uphold his dignity as a human being from a psychological viewpoint’ (see CrimApp 3734/92 State of Israel v. Azazmi [33]). Indeed, when he enters the prison, the inmate takes with him all his human rights, except for those that he is necessarily deprived of by the imprisonment, and especially the right to freedom of movement. Therefore, the state and the organs of government have the duty not to violate the inmate’s right to human dignity to a greater extent than required for achieving the purposes of the imprisonment. These are not mere words but a determination that has operative significance (see CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34], at p. 526). The question of what will be regarded as a violation of human dignity requires us to take into account, inter alia, ‘the circumstances of time and place, the basic values of society and its lifestyle, the social and political consensus and normative reality’ (Commitment to Peace and Social Justice Society v. Minister of Finance [32], at para. 13). Within this framework, care should be taken, on the one hand, not to interpret ‘human dignity’ so broadly that every human right is included in it, and on the other hand not to limit its scope merely to extreme cases of torture and degradation, since this will frustrate the purpose underlying the right (see HCJ 4128/02 Man, Nature and Law — Israel Environmental Protection Society v. Prime Minister of Israel [9], at p. 518; Barak, ‘Human Dignity as a Constitutional Right,’ supra, at p. 285).

4.    Imprisoning someone in a privately managed prison involves a violation of the right to dignity that is not merely a potential violation that depends upon the realization of concerns regarding the nature, standard and quality of the service that will be provided by the private operator, but a violation that is realized and comes into existence when the imprisonment powers and the powers ancillary thereto are exercised by a private concessionaire.

Indeed, in addition to the inmate being placed under lock and key, for the whole period of his sentence he is subject to a regime that is marked by the use of force against him in respect of each facet of his life. During his term of imprisonment, the inmate loses his independence, the strict daily schedule is dictated by the prison authorities, and his access to the protections that the law affords him against a violation of his rights is indirect and restricted. Alongside this, in prison an inmate is likely to encounter, often in an unexpected manner, concrete situations of an increased violation of his rights in certain circumstances and conditions, including the possibility of being held in administrative isolation, undergoing a body search that is carried out forcibly, being prevented from meeting a lawyer subject to various restrictions, being subjected to a visual inspection of his naked body, etc.. The power to carry out these actions, which include direct and potential aspects of a violation of the right to privacy, the right to liberty, the freedom of movement, the right to dignity and additional rights, is also granted under section 128R of the Prisons Ordinance, albeit subject to various conditions, to the governor of the privately managed prison.

Granting a power to employ invasive powers of these kinds to someone that is chosen by a private concessionaire, who is motivated by business concerns and is not subject to the authority and direct supervision of the government authority, its public traditions, its written and unwritten rules, the interest of the general public or the considerations that underlie the imposition of the sentence, undermines the rationale justifying the use of force as a proportionate measure for realizing public purposes. It implies arbitrariness, lessens the worth of human beings and violates their dignity. Employing coercive force in such a situation no longer relies on the broad consensus that is intended to allow a safe society, but on a shirking of a significant part of the direct responsibility and the need for accountability. It abandons the prison inmate, who is already at the bottom of the social ladder and in a sensitive and vulnerable situation, to his fate.

5.    Moreover, transferring imprisonment powers from the state to a party whose main purpose is by definition the pursuit of profit invites the inclusion of foreign and irrelevant considerations among those weighed by that party. These are inconsistent with the need to guarantee the rights and welfare of the inmates. This conflict of interests does not need to be realized de facto or to find any practical expression, but it is not eliminated even if, as the respondents claim, the privatization may achieve its stated goal of benefiting the inmates and improving their conditions in certain respects. The fact that a private enterprise, which is chosen and operates on the basis of its ability to maximize income and minimize expenditure, is given the powers under discussion, with their invasive elements, is sufficient reason to regard actions that are usually permitted as forbidden; it violates the human dignity of the prison inmates and exacerbates the violation of their liberty that is caused by the actual imprisonment.

Indeed, imprisonment powers are not limited merely to ‘technical’ administrative matters that do not involve any exercise of discretion by the responsible party in questions concerning a violation of human rights. Examples of this can be found in amendment 28, inter alia, in the power given to the governor of the prison to order an inmate to be held in isolation for a period of up to 48 hours in certain circumstances and under certain conditions (s. 128R(c)(1) of the Prisons Ordinance); the power of the governor of the prison to order an inmate to provide a urine sample, to conduct an external examination of his naked body and to search his body while using reasonable force in certain circumstances and under certain conditions (s. 128R(c)(4)-(5) of the Prisons Ordinance); the duty of the parole board, when it considers the possibility of commuting the term of an inmate’s imprisonment, also to take into account, among its other considerations, the recommendation regarding the inmate given by the governor of the privately managed prison (s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001), etc.. These powers involve a large element of discretion regarding parameters and criteria for exercising the power. Introducing economic considerations as independent considerations and even paramount ones, without it being necessary to reconcile the profit considerations with those underlying the imprisonment and the manner of implementing it, subordinates those considerations that are normally of the greatest importance to business considerations and allows them to be realized only in so far as they are consistent with the economic purpose, which constitutes the premise. Thus the main goal of exercising the power of imprisonment openly and unashamedly becomes a business goal; the inmates become de facto a means of realizing this goal; the ‘customers’ to whom the corporation is accountable are its shareholders; the scope of considerations is restricted and may become distorted; and the public purposes underlying imprisonment unintentionally become a secondary goal. The aspiration to reduce costs, which according to the supporters of the market economy approach is restrained in ordinary business activity by the ‘concealed hand’ in the free market mechanism and competition, has no restraint in the present case where there is no competition (which is certainly as it should be). In such circumstances, this aspiration is likely to conflict with the need to protect inmates’ rights, which costs money. Peleg, who considered the problem in a broader context, aptly said that —

‘The altruistic trust approach, which prevails today in public law, will not be voluntarily upheld by the privatized body. Between the interests of the individual and the privatized enterprise there is a huge conflict of interests (emphasis in the original). Respecting the constitutional rights of the individual costs a considerable amount of money. The privatized enterprise seeks to make a profit… Minimizing expenditure also implies a reduction in the welfare and even the health of the patient. The corporation seeks to provide a service, but mainly to make as large a profit as possible as quickly as possible. It regards itself as loyal to itself only… The worker in the privatized corporation regards the owner as his “boss,” as a kind of sovereign, who influences his welfare. Naturally he will do whatever serves his employer’s interest, thereby serving his own interest. In a choice between the employer’s interest and the patient’s interest, his choice will be clear…

The inherent conflict of interests is between the aspiration of the privatized enterprise to make as much profit as possible and the interest to improve the quality of the privatized service. The concern is strengthened when the customers are needy and weak. Privatization in the public interest is a privatization that ultimately improves the quality of the service; otherwise, one may well ask whether the privatization is really in the public interest’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 63).

As we have said, the violation of the rights of prison inmates, and especially the right to dignity, is not necessarily a concrete or a direct one. Admittedly, it is not possible, for example, to allay utterly the concern that in so far as the directors of the privately managed prison choose to reduce their costs for the salaries of prison employees whom they employ, this will lead, inter alia, to the employment of less experienced and qualified staff, who will change frequently and find it increasingly difficult to contend with the sensitive situations that arise from time to time in the prison. It is also not possible to rule out for certain the fear the hidden interests will be taken into account and that there is an increased risk of corruption when the party operating the prison is a private enterprise. But it is difficult to draw unequivocal operative conclusions from this potential that there is a greater probability of a worse violation of inmates’ human rights in a privately managed prison. The same is true with regard to concerns that the quality of services that will be provided by a privately managed prison in fields such as health care, drug addiction rehabilitation, professional training and general rehabilitation, which prima facie are addressed in the contract between the state and the operator of the prison (see Y. Feld, Crime Pays: What can be Learned from the American Experience in Privatizing Prisons (Adva Centre, 2002)). But even if it is not possible to point to a specific violation, the transfer of the power to operate a prison to a private enterprise creates the impression that irrelevant considerations are involved when the invasive powers are exercised, something that undermines the moral authority underlying the activity of that enterprise and public confidence in it (Feld), since even if justice is done, it is not seen to be done. This is not a mere matter of aesthetics; the harm is real, since it upsets the delicate balance between the need to deny the liberty of the inmates in order to realize the social purposes at the heart of the criminal law and sentencing policy, and the desire to protect the basic rights of the inmates even while they are paying their debt to society. This results in an independent violation of the right of prison inmates to dignity.

6.    It is true that the supervision for which the state is responsible and the standards which the private concessionaire is required to meet seriously curtail the concessionaire’s ability to sacrifice the rights and welfare of the inmates in the privately managed prison to its profits. Indeed, as the president said, amendment 28 includes several mechanisms that reduce the concern of a violation of the basic rights of the inmates and provide an effective ‘address’ to which complaints and grievances about what happens in the prison may be sent.

However, not only is it questionable whether these supervisory mechanisms are capable of ‘covering’ all the situations in which there is a concern that the human rights of the inmates will be violated, since it is sometimes hard to predict how these will occur, but it is also doubtful whether they can truly locate and identify the nature of the considerations underlying the employment of an invasive measure that is formally permitted by the law, and prevent the preference of economic considerations when these involve a violation of the inmates’ rights. At the same time, it should be remembered that prison inmates are often a particularly weak sector of the population, and while in the prison they are in a susceptible and vulnerable position where they have been deprived of a significant number of their rights. In these circumstances, since the activity that takes place in the prison is hidden from the light of day, it is questionable whether some of the components of the supervision mechanism, which depends upon a direct flow of information from the victim to the supervisory body so that the latter can exercise its authority, will be effective. Therefore, the supervisory mechanism may become of limited value in ensuring that the privately managed prison discharges its duties, with the result that the concerns are not addressed. Moreover, the supervisory mechanism naturally provides relief in certain situations only after the event, and sometimes a period of time may pass before it is possible to prevent the continuation of an invasive practice. When we are dealing with the most basic of human rights like those that concern prison inmates that are serving their sentences, this fact may have serious repercussions. Even in places where the private concessionaire has incentives that are designed to induce him to improve from the outset the services that he provides, there is a difficulty in the fact that his decision as to whether to succumb to these incentives depends upon the degree of benefit that they afford him relative to the cost of improving the service he provides. Finally, as the president said, the aforesaid supervisory mechanism, which seeks to contend with every problem on an individual basis, cannot contend with the fundamental difficulty inherent in the transfer of imprisonment powers and the accompanying powers to a private enterprise. To a large extent, the detailed provisions regarding the mechanism highlight this difficulty.

7.    This court has said many times that —

‘Any human right that a human being has is retained even when he is held under arrest or in prison, and the mere fact of the imprisonment does not deny him any right unless it is required and implied by the actual loss of his freedom of movement, or when there is an express provision of law to this effect’ (HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; PPA 4463/94 Golan v. Prisons Service [11]; HCJ 355/79 Katlan v. Israel Prison Service [20], at p. 298).

The harm to a prison inmate held in a privately managed prison includes an independent element of a violation of his dignity that goes beyond the violation that derives from the imprisonment itself. Indeed, if the state chooses to discharge its responsibility for a prison inmate by means of indirect supervision of the prison in which he is held, the dignity of that inmate is violated. If an inmate is held in a prison where the prison employees are chosen by a private profit-making enterprise on the basis of unclear criteria, the dignity of that inmate is violated. If the liberty of an inmate is denied on an ongoing basis by a private concessionaire that has discretion to employ again him far-reaching powers that violate his basic rights, the dignity of that inmate is violated. The value of human dignity deserves broad protection, even if it is not absolute, and in the struggle against conflicting interests it should be given great weight and protected against any violation that is unnecessary or excessive. Since in my opinion the aforesaid violations of the inmates’ rights that result from the creation of the privately managed prison exceed their economic benefit, which itself is not free from doubt, and since the mechanisms provided by amendment 28 are incapable of preventing the aforesaid violations, which are of greater scope than any solution that may be given to a specific violation, I have decided to join my opinion to that of my colleague the president and order amendment 28 to be set aside.

 

 

Justice A. Grunis

I agree with the opinion of my colleague the president, subject to the reservation that I see no need to address the issue of human dignity in the context under discussion. It is sufficient merely to hold that there is a violation of personal liberty.

 

 

Vice-President E. Rivlin

I concur with the opinion of my colleague, the president. My colleague holds that transferring powers of imprisonment entrusted to the state over to a private enterprise violates the constitutional human rights protected under the Basic Law: Human Dignity and Liberty. My colleague also finds that this violation does not satisfy the provisions of the limitations clause, and as such, the Prisons Ordinance Amendment Law (no. 28), 5764-2004, should be set aside. I agree with my colleague’s reasoning and her conclusions. There is no doubt that setting aside Knesset legislation is reserved for cases in which there is a fundamental violation of protected constitutional principles that fails to satisfy the limitations clause provisions. In this case, the arrangement provided for in the law does not merely allow the state to seek assistance of private enterprise in carrying out its sovereign obligations, but rather constitutes a real privatization of imprisonment and transferral of a significant part of its powers. The violation involved in the arrangement undermines the very structure of the democratic constitution. It is also possible to hold that we are dealing with a violation that exceeds the scope of the Basic Laws, and lies in the field of the social contract upon which the existence of the state is founded. Releasing the state from the monopoly granted to it with regard to the use of force in order to protect the public interest undermines the principles upon which the entire social and constitutional foundations of the state rest.

For this reason, as well as for those set out by my colleague the president in her comprehensive opinion, I concur with the conclusion that amendment 28 of the Prisons Ordinance is void.

 

 

Justice A. Procaccia

1.    This proceeding concerns a constitutional question of great importance that touches on the limits of what the state may and may not do when exercising the coercive authority given to it in order to maintain public order and security, and regarding the transfer thereof to private hands. By the expression ‘coercive authority’ in this context I mean the powers that the state is given under the law to prosecute criminal proceedings at all of its stages — investigation, arrest, trial and imprisonment — while exercising the institutional power that allows it to restrict a person’s liberty and violate additional human rights that he has, including the rights to privacy, freedom of occupation, property and sometimes even his dignity as a human being.

2.    My colleague, President Beinisch, devoted extensive legal research and analysis to the complex subject of the relationship between the duty of the state to maintain public order and security in its broadest sense and to afford a basic protection of human rights — in this case, the rights of prison inmates — in the context of the question whether the state may unburden itself of its direct sovereign duty to manage prisons and transfer it to private hands. I agree with the conclusion that in the complex balance between these values, the necessary outcome is that the sovereign responsibility of the state to manage a prison and its duty within that framework to exercise coercive authority over the individual as a part of the process of enforcing the criminal law and implementing sentences, cannot be transferred to private hands. This is because of the potential that the core human rights given to a prison inmate may be violated to a greater extent than is permitted under the limitations clause in the Basic Law: Human Dignity and Liberty (hereafter: ‘the Basic Law’). Therefore, amendment 28 of the Prisons Ordinance [New Version], 5732-1971 (hereafter: ‘the Prisons Ordinance’ or ‘the Ordinance’) should be set aside.

3.    I would like to make several comments regarding the analysis of the constitutional violation inherent in amendment 28 of the Ordinance, and especially with regard to the manner of striking the constitutional balance between it and conflicting interests and rights for the purpose of examining whether it satisfies the conditions of the limitations clause in the Basic Law.

The limits and restraint of sovereign power — the doctrine of balances in the exercise of sovereign power

4.    The state has authority over and responsibility for all stages of criminal proceedings. The social contract on which the democratic political system is predicated assumes that for the purpose of ensuring the existence of human society, public order is essential, as well as a sovereign body that will be responsible for maintaining it. The state is responsible for preserving a normative system that will define the rules of what human beings may and may not do, and it will enforce compliance with these as an essential part of the protection of public order (H.L.A. Hart, Punishment and Responsibility (second edition, 2008), at pp. 4-5).

5.    The enforcement of norms of conduct, for which the state is responsible, incorporates a power to exercise authority over individuals who breach the rules of conduct and thereby undermine the social order. For this purpose, the executive branch is given powers to investigate, arrest, try, sentence and imprison. Exercising these powers naturally involves a potential violation of the basic rights of the individual — his liberty, occupation, property, privacy and sometimes even his dignity.

6.    The potential violation of human rights that is inherent in the exercise of sovereign coercive authority within the context of criminal proceedings requires a strict definition of the limits of sovereign power. Indeed, the rules concerning the exercise of sovereign power have an inbuilt system of checks that defines its limits. The existence of sovereign power and the restrictions inherent in the exercise thereof are inseparable. The legitimacy of the exercise of sovereign coercive authority over the individual is derived from the restrictions on this power. It originates in the outlook that it may be exercised only to the limited degree necessary for maintaining public order, while violating the basic rights of the individual to the smallest degree possible. The restraint of sovereign power that is exercised over the individual lies at the heart of the democratic system of government, and is of its very essence (CrimFH 10987/07 State of Israel v. Cohen [22], at paras. 4-6 of my opinion).

7.    Alongside the substantive criminal norms determined by the state for the purpose of ensuring public order, it is given powers to enforce these norms in a criminal proceeding. Within the scope of these powers, it is authorized to conduct interrogations and searches, seize property, carry out arrests, hold trials, impose sentences and imprison convicts. In the course of enforcing the norms in the criminal trial, human rights are violated, sometimes seriously. The rights to liberty and dignity, freedom of movement, freedom of occupation, property and privacy may be violated. The criminal proceeding and the basic rationale underlying it are based on an essential balance between the enforcement power given to the sovereign authority and the protection of the basic rights of the individual involved in that proceeding. The basic rules of the criminal proceeding are intended, inter alia, to restrain the sovereign power that is exercised over the individual involved in it and restrict it to the minimum necessary for achieving its proper purpose.

8.    Therefore, at every stage of the criminal proceeding, whether it is the criminal investigation, the trial, the sentence or the imprisonment, a balance is continually required between the exercise of sovereign force that is required to enforce the law and the protection of the human rights of the suspect, accused, convict and prison inmate. The organs of the state, which are each responsible for a different stage of the criminal proceeding, are constantly required to strike a balance between the essential degree to which executive coercive authority is exercised over the individual and the maximum possible protection of his basic rights as a human being, on as wide a scale as possible, subject only to realization of the proper purpose of the criminal proceeding. This applies to police officers at the investigation stage and when arresting a suspect; it applies to the court during the trial and when passing judgment; and it applies to the Israel Prison Service authorities when an inmate is serving a custodial sentence, which is also a part of the criminal proceeding (A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008) (according to the version in the appendix attached to the petitioners’ notice)).

9.    The enforcement power that is given to the state in the criminal proceeding is a power that is limited to the achievement of the enforcement purpose and no more, and it is based on a concept of proportionality: human rights should not be violated in the criminal proceeding unless it is to uphold an essential public interest, and to an extent that is not excessive in the constitutional sense of this term. The police investigators, who are responsible for exercising the authority of conducting a criminal investigation and who have the powers to carry out interrogations, make arrests and conduct searches, are subject to restrictions on the exercise of the powers given to them in order to protect the rights of the person under investigation, including his liberty, dignity and privacy. These limits on their power are dictated solely by the essential needs of the investigation, and exceeding these limits is not permissible (cf. HCJ 5100/94 Public Committee Against Torture v. Government of Israel [36]). In conducting the trial and passing sentence, the court is responsible for striking a balance between the sentencing power that it exercises over the offender and the concern for his rights as a human being and his rehabilitation. In the last stage of the criminal proceeding — the offender’s imprisonment — the prison authorities, as organs of the state, have sovereign coercive authority to take steps against inmates in order to maintain order and security inside and outside the prison. This power is also limited in nature to what is absolutely essential in order to achieve the purpose for which it is exercised, and the authorities may not exercise it in a given case beyond what is necessary. Thus sovereign coercive authority and the exercise thereof over the individual are rooted in a constant tension between guaranteeing the basic rights of the individual and protecting the community’s interest in maintaining order and public security.

10. Limiting and restraining sovereign enforcement power derives from the respect for human rights in a constitutional system of government. The recognition of human rights as elevated rights is intended to protect the status of the individual in society and the status of the minority against the power-wielding majority. Basic rights, which include the rights to life, liberty, dignity, occupation, property and privacy, are intended to safeguard not merely the life of the individual per se but also the quality and meaning of his life in accordance with modern constitutional thinking. The principle of limiting sovereign power is a part of a general constitutional philosophy that is based on a recognition that in order to maintain a proper communal life, it is essential to provide a solution to society’s need for order and public security, while at the same time respecting the basic rights of the individual. This combination of guaranteeing the public interest while protecting the rights of the individual lies at the heart of the constitutional system of government. It requires a continual balance between these two forces, around which the constitutional world revolves. The duty of striking a balance makes each of these values a relative one that cannot be realized absolutely. Notwithstanding, these conflicting values derive from the same source and reflect a general ethical outlook of a recognition of human rights in a civilized society. Human rights, despite the elevated status given to them in the constitutional system, are not absolute but relative, and they need to be balanced against and coexist with the essential interests of society. On the other hand, the sovereign enforcement power that is intended to protect public order, which is reflected in the criminal proceeding, is limited solely to what is absolutely essential for achieving its proper goal, since exercising it involves a violation of human rights. The tension that exists between the public interest in maintaining order and public security and the protection of basic human rights and the duty to strike a balance between them are among the most prominent characteristics of the system of government and constitutional law.

‘The constitutional revolution does not set aside the right of society to protect itself against offenders… Our constitutional revolution was intended to allow a violation of human rights in order to maintain a social framework that upholds human rights. It recognizes a need to restrict human rights in order to build a state that promotes human rights. Indeed, human rights and the restrictions imposed on them derive from the same source and reflect the same values. Basic rights are not absolute. They may be restricted. But the restrictions on basic rights are limited to what is necessary to protect human dignity and liberty’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and Its Implications for (Substantive and Procedural) Criminal Law,’ 13(1) Bar Ilan Law Studies (Mehkarei Mishpat) 5 (1996), at p. 10).

In this tension between the public interest and the rights of the individual, the tendency is to protect in so far as possible the scope of human rights up to the point beyond which the public interest in law enforcement may be seriously and materially harmed.

The nature of sovereign coercive authority and the state’s exercise thereof

11. The place of institutional coercive authority in modern human society, the restraint required in exercising it while continually striking a balance between it and human rights, the danger of a violation of basic rights inherent in any departure from the proper balance and the tools and means given to the state when exercising institutional power, as the party that laid down the rules for exercising that authority and that bears the legal, moral and public responsibility for implementing those tools and means, all lead to the conclusion that the sovereign body that is responsible for making the rules for exercising the authority should not be separated from the body that operates and implements them in practice.

12. The social contract, which gave the sovereign the responsibility to define norms of conduct in society, is what also gave it the responsibility for enforcing them. It delineates, in accordance with the principles of the system of government, the limits of the exercise of institutional power, the limits whereof are defined by the duty of respecting rights of the individual as a human being. The sovereign, which is responsible for determining the criminal norm and which has been given the power to punish criminals, within the broad meaning of this term, is legally, socially and morally responsible for exercising this power, while complying with all of its restrictions. In so far as the state is responsible for exercising sovereign coercive authority, so too it is responsible for guaranteeing the human rights of anyone over whom it exercises this authority. This responsibility determines the limits and restraints of power, and it restricts its scope solely to what is essential in order to achieve the proper social purpose. The exercise of sovereign coercive authority and the limits upon the exercise thereof are one and the same and cannot be separated from one another.

13. The basic rights of persons under interrogation, defendants, convicts and prison inmates within the framework of the criminal proceeding are not safeguarded solely by the existence of proper norms that are enshrined in law. Safeguarding them is conditional upon the manner in which the norms provided by law are enforced in practice by the police, the courts and the prison authorities. Restraint in the exercise of institutional power, which is the result of the balance that needs to be struck between sovereign coercive force and the basic rights of the individual, is examined de facto by its implementation on a daily basis. In the criminal proceeding, the identity of the party exercising institutional coercive authority over the individual is of supreme importance in guaranteeing the proper balance in implementing the limits of the use of power.

14. It is the state that has always exercised sovereign coercive authority over the individual in criminal proceedings. As the party that determined the norms of conduct and is responsible for their enforcement, it is the party that is directly responsible for the restraint and checks required by the exercise of power. It is the party that is supposed to be accountable to the public for the manner in which its powers in the criminal proceeding are exercised, and it has the weight of education, knowledge and experience, the tools and all the essential resources for making the necessary balances that dictate the limits of the use of power. The doctrine of balances in the exercise of sovereign coercive authority over the individual is part of the ‘genetic code’ of the sovereign authority. It is not found in the makeup of some other party that originated outside the sovereign authority, for which the duty of striking balances is foreign to its thinking and is not an inherent part of its modus operandi.

15. Moreover, the state has an effective deterrent mechanism for the manner in which sovereign coercive authority is exercised by organs acting on its behalf, in the form of administrative and judicial scrutiny of its representatives’ actions. This scrutiny has a significant deterrent effect against the abuse of sovereign power and authority by representatives of the state at the various stages of the criminal proceeding. The existence of this supervisory mechanism is a most important guarantee of the restraint and limits of sovereign coercive authority that is exercised over the individual in a criminal proceeding. An organ of the state that exercises coercive authority over the individual is subject to the administrative supervision of state authorities, is bound by the rules of ethics and disciplinary procedures of the civil service and is required to comply with strict legal criteria within the framework of the judicial scrutiny of its mode of conduct (HCJ 2303/90 Philipovitz v. Registrar of Companies [15], at p. 424). It is therefore unsurprising that there are unequivocal restrictions on the recognition, by way of interpretation, of an implied power to delegate sovereign powers to private enterprises (I. Zamir, Administrative Authority (vol. 2, 1996), at p. 562). Indeed, such an interpretation is adopted sparingly, and only when there is a real need that justifies it (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 656). If there are restrictions on inferring the permissibility of a delegation of a sovereign power involving the exercise of administrative discretion to a private enterprise, similar restrictions apply a fortiori to the delegation of power involving coercive authority that can be exercised over the individual in a manner that violates the most basic of his human rights. It has been said of the power of criminal investigation:

‘The power to conduct a criminal investigation involves a power, and therefore also a danger, of violating the privacy, dignity, liberty and property of persons under investigation (Public Committee Against Torture v. Government of Israel [36], at p. 831). For this reason, as a rule a power given by legislation to a government authority, which authorizes someone to investigate a suspicion that an offence has been committed, should be interpreted as referring to the appointment of a civil servant who is subject to the authority and supervision of the government authority and who is subject to the disciplinary procedures and rules of ethics that apply to members of the civil service… and because of the special character of the investigative function, which when exercised involves a concern of a violation of the basic rights of the individual, it should be entrusted to civil servants’ (CrimA 4855/02 State of Israel v. Borovitz [37], at pp. 833-834 (emphases added)).

16. Ensuring the limits of sovereign power exercised over the individual in the criminal proceeding at all its stages also requires it to be exercised in such a way that it is entirely free of any suspicion of a conflict of interests of any kind. The involvement of an improper and irrelevant consideration in the exercise of sovereign coercive authority in the criminal proceeding creates a real potential risk of a distortion of the proper balance between the need to use power to achieve a purpose in the public interest and the protection of the human rights of the individual. The involvement of an improper consideration in the necessary balance between the public need for the preservation of public order and compliance with the law, on the one hand, and the individual’s rights to liberty and personal dignity, on the other, may undermine the proper equilibrium between the various forces operating in this sphere and result in improper harm to the individual. Exercising sovereign power over the individual in criminal proceedings should be entirely divorced from improper considerations, and it should be done with a complete commitment to the rules of restraint in the use of force, upon which the fate of the individual who is subject to sovereign authority depends.

17. Finally, the sovereign coercive authority exercised by the state over the citizen in the criminal proceeding is a part of a broad social consensus according to which exercising it is essential for maintaining public order and a proper social life. This consensus assumes that the exercise of coercive force will be done by the state authorities, which derive their moral and legal power from the public that has placed its confidence in them. The sovereign authority is regarded as the trustee of the public and as someone who is entrusted by it to manage society’s affairs, while showing concern for the individual that lives in that society. This public confidence is not given to any entity other than the state authorities. A private enterprise that exercises sovereign coercive authority over the individual in the criminal proceeding does not act as a public trustee. Its status and actions are not based on a broad social consensus, and its exercise of sovereign coercive authority over the individual does not enjoy the essential legitimacy that characterizes the actions of the government.

The risk in transferring the exercise of sovereign coercive authority to a private enterprise

18. Transferring the exercise of sovereign power to a private enterprise, which is not one of the organs of the state, is problematic in several respects, even though it is likely to bring with it, at the same time, social, economic and cultural benefits that serve the public interest in various fields. When speaking of a transfer of executive power that includes a real potential for violating major human rights — including a violation of liberty and dignity — the difficulty in such a transfer is particularly problematic. The balance and restraint in the exercise of enforcement power at every stage of the criminal proceeding, for the purpose of protecting human rights, cannot be relied upon in the hands of a party that is not an organ of the state. The limits of power are not protected by the basic guarantees that are intended to serve as a deterrent against any overstepping in the exercise of sovereign power and against any abuse thereof: the private enterprise that is entrusted with sovereign power involving a potential for violating core rights of the individual is not governed by the rules of conduct and the criteria that dictate the manner of exercising institutional coercive authority and regulate the action of the organs of state. The private enterprise was not born and brought up in this framework, it is unfamiliar with its concepts and it has never internalized the doctrine of balances in the exercise of sovereign power, in all of its particulars and aspects. The doctrine of balances, which demands that the public interest in maintaining order should be weighed against the duty to limit the violation of human rights to what is absolutely essential for achieving the purpose, is a doctrine that it does not know. The mechanisms of training, education, supervision and discipline that are built into the civil service for its employees, and which define the rules of exercising sovereign power, do not apply to it. The constitutional doctrine of balances that directs the way in which sovereign coercive authority is exercised at every stage of the criminal proceeding is not a part of the experience of the private enterprise when it exercises this power.

19. Moreover, when it receives authority to exercise sovereign power, the private enterprise is unavoidably associated with substantial concerns regarding conflicts of interests in its actions. Its entry into fields that are clearly areas of sovereign activity is motivated by private considerations of profitability. Considerations of economic feasibility and private profit-making are completely foreign to the doctrine of balances in the exercise of sovereign coercive authority in the criminal proceeding. Introducing various elements of viability into considerations of exercising power involves a potential for a real violation of the proper equilibrium between the relevant considerations that should be taken into account when exercising the power (HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at p. 213; HCJ 39/82 Hanfling v. Mayor of Ashdod [38], at pp. 540-542; Haifa Chemicals v. Attorney-General [18], at p. 656; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 309-310).

20. When sovereign coercive authority is exercised in a manner that violates core human rights — including the rights to liberty and dignity — a real concern arises that transferring it to a private enterprise will result in disproportionate harm to the individual, which may make such a transfer illegitimate. When sovereign authority given to the state, which is capable of violating core human rights, is exercised by a private enterprise that is motivated by considerations of its own profit, the moral and ethical basis underlying the exercise of sovereign power is undermined. According to the principles of the system of government, this power was entrusted to the sovereign as a result of a broad social consensus in order to achieve a defined purpose, and exercising it requires a strict observance of the criteria that are built into the system. There is no guarantee that these criteria will be observed by the private enterprise, and when the risk that they will be breached is likely to violate core human rights, the transfer of the powers becomes unacceptable a priori from a constitutional viewpoint. Finally, the private enterprise that exercises sovereign coercive authority does not lean in its actions on the broad confidence that society has in the state as a part of the social consensus, which gives the sovereign power and responsibility to uphold public order. The exercise of coercive authority by a party that is not the state, which violates core human rights, necessarily does not enjoy the confidence and acceptance of society. It lacks social, moral and constitutional legitimacy.

21. The existence of state supervision over the manner in which the coercive authority is exercised by the private enterprise may to some extent diminish the potential for harming the individual, but it cannot materially reduce the extent of the violation inherent therein. Such supervision is mainly an umbrella supervision, which extends over the whole system and has difficulty in encompassing, before the event, the whole scope of the routine actions of the party exercising the power, which are carried out continually. A supervisory mechanism, by its very nature, reacts only after the occurrence of an unconstitutional violation of human rights and focuses on the general normative aspect of the activity, as distinct from ordinary everyday activity, which presents the great danger of harm to the individual. By privatizing the exercise of sovereign coercive authority, the discretion to exercise this authority is given to the private enterprise, even if the general guidelines and policy guidelines are laid down by the sovereign supervisory body. State supervision does not provide a proper solution to the dilemma involved in privatizing a power to exercise sovereign coercive authority, nor does it materially reduce the potential for harm to the individual that is likely to result from such a privatization.

22. Severing the essential connection between the party responsible for exercising the sovereign authority in order to maintain public order and the party responsible for guaranteeing the core human rights of the individual as the authority is exercised is likely to cause considerable harm to the democratic constitutional basis on which the political system in Israel is based. Entrusting sovereign coercive authority in the criminal proceeding to a private enterprise involves significant harm of this kind.

The constitutional violation in transferring sovereign coercive authority to manage a prison to a private enterprise

23. Sovereign coercive authority, which is exercised within the framework of the criminal proceeding, does not end when sentence has been passed and the judgment becomes absolute. Enforcement of the judgment by way of imprisonment is an additional element of the criminal proceeding, in which the organ of state is given the power to exercise its coercive authority in order to carry out the judgment, while guaranteeing order and security both inside the prison and outside it.

24. The prison inmate is subject to inherent restrictions that derive directly from his imprisonment. The infringement upon the freedom of movement, the freedom of occupation, the right to privacy, the right to property and the freedom of expression are a direct consequence of his imprisonment. But the restrictions on the human rights of the prison inmate are not limited to these. His rights may suffer additional violations as a result of the measures taken against him by the prison authorities in order to ensure the proper running of the prison and to protect the safety of its inmates and the public outside it. The authority that manages the prison has powers to impose various restrictions on inmates in order to maintain order and security inside it, protect the safety of the inmates and the security of prison visitors, and ensure the security of the public outside the prison against risks that the inmates imprisoned inside it may present. The management of the prison should protect the public from the concern that criminal offences may be committed by inmates inside the prison or outside it, and from serious infractions of order and security inside it. Sometimes, restrictions need to be imposed on inmates for general considerations of state security (HCJ 2245/06 Dobrin v. Israel Prison Service [39]). The exercise of sovereign coercive authority for achieving these purposes adds to the infringement upon the inmate’s core human rights that is a necessary consequence of his imprisonment. It depends on the existence of public purposes of special weight that justify an additional violation of inmates’ rights that are required by the management of the prison. The exercise of coercive authority for this purpose should satisfy the tests of the limitations clause in the Basic Law. The more significant the human right involved, the stronger the reasons that are required for violating it. The measures adopted against a prison inmate to maintain order and security in their broad sense should not become an additional element of the sentence that was imposed on him. Their purpose is to achieve essential public goals that are required by the proper management of a prison (PPA 4463/94 Golan v. Prisons Service [11]; HCJ 337/84 Hukma v. Minister of Interior [35], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [33], at p. 81). The exercise of coercive authority in managing the prison is subject to the doctrine of balances that applies to the exercise of sovereign coercive authority throughout the criminal proceeding at all its stages. The guiding principle in this doctrine is intended to give maximum protection to the rights of the prison inmate so that they are not violated to a greater extent than what is essential for achieving the proper public purpose.

25. Thus, the exercise of sovereign coercive authority in the management of a prison, which involves violations of the core rights of the inmates — beyond the violation caused by the imprisonment per se — is subject to the doctrine of balances that characterizes the exercise of power at all stages of the criminal proceeding. The legality of the exercise of coercive authority in managing the prison, which is intended to secure a public interest, is dependent upon maximum insistence on the rights of the inmate, so they are not violated to a greater extent than what is required in order to achieve the proper purpose. The complex balance between the protected rights of the inmate and the needs of the prison system is the responsibility of the public authority, which is responsible for enforcing the sentence. The permitted violation of the human rights that an inmate retains while in prison depends upon the existence of a clear public purpose justifying the violation and the proportionality thereof (Dobrin v. Israel Prison Service [39], at para. 23). The responsibility for such a violation of the core human rights of the inmate is a weighty one, and it requires full awareness and recognition of the criteria required for permitting such a violation, the existence of administrative, ethical and judicial scrutiny of its propriety, and especially the absence of improper considerations that may taint the proper discretion of the authority, which should be exercised when considering whether to carry out the action that causes the violation.

26. The protection of the core human rights that an inmate retains in the prison is not consistent with the transfer of the power to exercise sovereign coercive authority to a private enterprise that will be responsible for managing the prison. Such a transfer is inconsistent with the competent authority being aware and internalizing the need for restraint and limits in the exercise of power in light of the balance required by the protection of human rights. The private enterprise is not subject to the complex rules of checks and deterrents that are included in the rules of conduct that govern the civil service. Sovereign supervision of the acts of the private concessionaire, which amendment 28 of the Ordinance regulated, is an umbrella supervision that does not guarantee sufficiently effective control of the manner of exercising the discretion and the motives involved therein. In many cases, the supervision is carried out after the event and is incapable of preventing from the outset the harm to the inmates that is likely to result from the adoption of administrative, disciplinary and punitive measures that are disproportionate. In addition to all this, the private concessionaire is motivated by extrinsic considerations of profit, which naturally taint the objective discretion that should be exercised for the purpose of using force in accordance with the doctrine of balances. The management of a prison by a private concessionaire, which involves exercising coercive authority over inmates, is likely to be motivated by inappropriate considerations, including considerations of economic viability and profit, which were the goals that led it to accept the role. In view of this reality, the degree of the potential violation of the inmates’ rights is significant, of great weight and persistent. It is directed at a particularly weak sector of the population, whose members in any case have been deprived of some of their human rights as a result of their conviction and the custodial sentence imposed upon them. The danger that irrelevant considerations will guide the private enterprise in carrying out its duties and in exercising coercive authority over the inmates is immediate and real. The considerations of increasing economic efficiency and the profits of the private enterprise may lead, for example, to a reduction in the staff that operates the prison, a lowering of standards in order to reduce costs, and consequently to harsher methods of supervising the inmates, which could potentially involve a reduction in the measure of movement and freedom given to them within the prison compound. The violation of the remaining liberty of the inmates, beyond the essential violation caused by the sentence of imprisonment as such, is a distinct possibility, that if realized would materially and seriously violate a constitutional basic right (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 25).

27. Moreover, the exercise of sovereign coercive authority over prison inmates by a private concessionaire does not enjoy a wide social consensus and public confidence as the nature of the power requires. It does not guarantee that the umbrella of human rights, which extends over every human being as such, including an offender in prison, will be upheld and protected, and that any violation thereof will always be conditional upon the reservations required by the constitutional system (Dobrin v. Israel Prison Service [39], at para. 23; HCJ 355/79 Katlan v. Israel Prison Service [20]). The exercise of sovereign coercive authority by a private enterprise in the context before us contradicts our basic sense of justice, which tells us that the exercise of coercive authority over prison inmates, whose core human rights have in any case been violated, should be done by the state, which is familiar with the requirements of the restraint of power, and which has full administrative, legal and moral responsibility for exercising this power. This was well defined by Prof. Harel in the aforementioned article, where he said:

‘The most fundamental task of the state is the task of governing justly. Just governance requires the state to govern its citizens under constraints dictated by justice. Just governance presupposes the guidance of behaviour and the issuing of prohibitions. Note that the integrationist justification provided here is premised on the assumption that the state is justified in issuing prohibitions and that the violations of these prohibitions justifiably trigger the infliction of sanctions. The integrationist justification aims to show that when these conditions are satisfied, the state, and the state alone, ought to make determinations concerning the severity of these sanctions, and then inflict them. The state cannot thus delegate these powers to private entities’ (Harel, ‘Why Only the State may Inflict Criminal Sanctions: The Case Against Privately Inflicted Sanctions,’ supra, at p. 18).

28. The legal justification and moral authority for violating the basic liberty of a person by means of imprisonment and exercising coercive force over him in prison depend upon the exercise of coercive authority being entrusted to organs of the state, which are the people’s representative in protecting the values of social order, on the one hand, and the basic rights of the individual, on the other. Failing to comply with this condition undermines the legitimacy of law enforcement and sentencing, and the moral basis for exercising institutional coercive authority over the individual offender (J.J. Dilulio Jr., ‘What’s Wrong with Private Prisons,’ 92 Pub. Int. 66 (1988), at pp. 79-83).

The purpose underlying amendment 28 of the Prisons Ordinance

29. Investigating the purpose of amendment 28 of the Ordinance is essential for the value-balancing endeavour needed to assess the constitutionality of the legislative arrangement that transfers the management of a prison to a private concessionaire.

The president in her judgment emphasized the economic purpose — of realizing an economic saving for the state by transferring the management of the prison to a private enterprise — that underlies the amendment of the Ordinance as the one that reflects the main concrete purpose of this legislation. According to her, if improving prison conditions is the general purpose underlying the amendment, the economic purpose of saving money is the specific purpose of the legislation. This is what she says in this regard:

‘The purpose underlying the enactment of amendment 28 and the special arrangements provided in it was, therefore, an economic purpose. In our opinion this is the main public purpose that amendment 28 sought to achieve and it is the raison d’être that underlies it; had the economic savings not been the main consideration taken into account by the legislature, there would have been no need to enact amendment 28, and it would have been possible to contend with the problem of overcrowding in the prisons by building additional state managed prisons or by improving the existing prisons, in accordance with the normative framework that existed prior to the enactment of amendment 28. It can therefore be said that although amendment 28 was enacted with the aspiration of improving the prison conditions of the inmates, the purpose of the concrete legislative arrangement chosen as a means of achieving this worthy aspiration is to achieve as great an economic saving as possible for the state’ (at para. 52).

In my opinion, the crux of the basic purpose of amendment 28 is somewhat different, and even though it does contain an element of economic efficiency, that is not the main motif but only a secondary one. Identifying the purpose of the law and its emphases is of great importance for its ramifications on the balancing of values required for examining the constitutionality of the law.

30. As I understand it, the main purpose of the amendment to the Ordinance, as can be seen from its legislative background and its context, is to promote the welfare of the prison inmate by reducing the serious overcrowding that currently exists in the prisons, improving the services provided in them and expanding the treatment and rehabilitation programmes available to the inmate. These purposes might have been realized by privatizing the management of the prison, which would allow the state to save large amounts of money over the period of the concession, which is twenty-five years.

31. The prison system has always struggled with the obligation to uphold the right of the prison inmate to basic living conditions as a part of the protection of his dignity as a human being, even when he is imprisoned for an offence that he committed against society. Guaranteeing basic living conditions for the prison inmate, as a part of his human dignity, also requires a proper balance between the inmate’s human right to minimum living standards and the state’s obligation, with its available resources, to budget for these standards (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10]).

32. The phenomenon of major overcrowding in Israeli prisons seriously violates the movement and breathing space of the inmate in the prison compound. Over the years, the state has struggled with a situation in which even the basic right of every inmate in Israel to sleep in a bed during his prison term has not been fully respected. The significant increase in the number of prison inmates and persons held under arrest in Israel, the serious long-term security problems that result in an increase in the number of security prisoners and detainees, the rise in serious crimes and the escalating number of foreign workers and illegal aliens held under arrest until they are deported have all significantly increased the need for the resources and means required to maintain prison facilities to the required standards. These basic needs ‘consume’ the resources allocated in the state budget for managing prisons and detention facilities, and it is hard to find the additional resources needed to improve the welfare of prison inmates.

33. This court has held that the Basic Law: Human Dignity and Liberty enshrined the right to human dignity as a constitutional right and that this also includes the right to basic living standards that are intended to preserve the image in which humanity was created (LCA 4905/98 Gamzu v. Yeshayahu [40], at pp. 375-376; HCJ 5578/02 Manor v. Minister of Finance [25], at p. 736; HCJ 366/03 Commitment to Peace and Social Justice Society v. Minister of Finance [32], at paras. 14-15; Physicians for Human Rights v. Minister of Public Security [10], at para. 9). This approach has also been applied to the constitutional human rights of inmates in state prisons. It has been held that —

‘A sentence of imprisonment imposed on a person does not deprive him of the constitutional human rights given to him by the principles of the constitutional system in Israel. The prison inmate is deprived of these rights only to the extent that the restriction thereof is a necessary consequence of his loss of liberty as a result of the imprisonment, and to the extent that the violation of a protected right satisfies the elements of the limitations clause in the Basic Law’ (Physicians for Human Rights v. Minister of Public Security [10], at para. 10).

When a person enters a prison, he loses his liberty, but he does not lose his dignity (HCJ 7837/04 Borgal v. Israel Prison Service [41], at p. 101). Providing a person’s basic needs, which is an absolute condition for living with dignity, is also necessary for an inmate serving his sentence in prison, and the state is obliged to provide them and allocate the necessary resources for this purpose. If the state has a duty to provide the basic needs of its inhabitants as a part of the right to human dignity, it has an even greater obligation to the persons who are in its custody and under its protection, for whom it is directly and immediately responsible. Protecting the dignity of the prison inmate as a human being goes beyond the interest of the individual inmate. It is the interest of society as a whole, which is responsible for determining the moral and ethical norms that apply within it to its members, including prison inmates, as human beings (Golan v. Prisons Service [11], at p. 156). Thus it has been recognized that every prison inmate has a basic right to sleep on a bed, as a part of the protection of human dignity (Physicians for Human Rights v. Minister of Public Security [10], at p. 14). These basic needs are joined by the needs for food and drink, clean clothes, fresh air, a minimum living space inside the prison and responsible medical treatment. The right of a prison inmate to basic living conditions in prison has therefore been recognized as a protected constitutional right that can be qualified only when there is a conflicting value of special importance and particularly great weight, such as an exceptional emergency that may justify, in certain circumstances, a violation of the protected right. The state is obligated to provide these basic living conditions for inmates in its custody, and it must allocate the necessary budget for this purpose (see, for example, on the subject of realizing the right of every prison inmate to a bed, Physicians for Human Rights v. Minister of Public Security [10]).

34. Beyond the concern for the basic living conditions of prison inmates, which the state is obliged to provide regardless of any budgetary restrictions, there are additional elements of the inmate’s welfare that go beyond the ‘hard core’ of the basic conditions. These elements include matters concerned with reducing the overcrowding in prisons, increasing the physical living space of the inmate in the prison beyond the basic minimum provided in prison regulations, improving treatment and rehabilitation programmes for the inmates, adding cultural enrichment programmes, improving the standard of the food and medical treatment, and additional matters. Providing these conditions, which goes beyond the basic needs that there is an obligation to provide, is of an optional nature, and depends upon the national priorities reflected in the budgets of state institutions. A welfare-state should strive unceasingly to provide these welfare conditions, which go beyond the basic needs, for its prison inmates. Notwithstanding, its ability to do this depends upon the complex picture of all the national needs and on the position of the question of prison conditions on the ladder of social issues for which the state is responsible, according to the relative importance of all the national needs. In the complex reality of social life in Israel, with its many essential needs, giving budgetary preference to improving the welfare of the prison inmate beyond the basic standards required by law is not assured.

35. As I understand it, amendment 28 of the Ordinance was mainly intended to promote the welfare of the prison inmate beyond the basic conditions that the state is obliged to provide without any qualification to prison inmates, in circumstances where the allocation of budgetary resources for this purpose in the normal budgetary track is not guaranteed. The amendment to the Ordinance was intended to allow the welfare of the inmate to be advanced beyond the basic conditions that are provided for him and to which he is entitled, with an attendant significant financial saving to the state — an objective that is not guaranteed by means of ordinary budgetary measures. Indeed, the explanatory notes to the draft amendment to the Ordinance begin with the following remarks:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that it has on the conditions in which prison inmates and persons under arrest are held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Laws 73, 5764, at p. 270).

36. In enacting amendment 28 of the Ordinance, the state’s main goal was to reduce overcrowding in the prisons and to improve significantly the living conditions of the inmates beyond the essential minimum. The state gives details in its reply of 24 October 2005 and in later replies, inter alia, that the living space of prison inmates in Israel is currently between two and four and a half square metres per person, as compared with a space of between six and ten square metres that is accepted around the world; that some of the existing prison facilities are very old and do not provide proper living conditions; and that a constant increase in the number of prison inmates each year exacerbates the existing crisis in prison conditions. According to the state, the privatized prison will significantly advance the welfare of inmates from the viewpoint of improving the inmate’s living space, as well as in the fields of rehabilitation and treatment for inmates and the standard of the physical services that are provided in the prison. The average living space per inmate will increase significantly, as will the number of social workers; a major increase in the number of hours of education that inmates receive will also be possible. In addition to these improvements, the state will make a considerable financial saving (the state’s supplementary response of 16 February 2006, at paras. 15-19).

37. In its response of 29 August 2006, the concessionaire also emphasized all of the planned improvements for inmates (para. 98 of the response). These include more formal education, an increase in the scope of the employment of inmates in various jobs, an increase in the financial remuneration for the work, an increase in the physical living space far beyond the essential minimum, an improvement in the food, an increase in the number of family visiting days, an increase in the educational staff, an improvement in medical treatment, an increase in the hours of activity for the inmates and additional improvements. According to the concessionaire:

‘In practice, a careful examination… shows precisely to what extent the considerable thought that was devoted by the state and its representatives to drawing up the transaction with the concessionaire provides comprehensive and thorough solutions that allay the concerns raised by the additional petitioner in a manner that ensures that not only will the privately managed prison not harm the welfare of the inmates in comparison to a prison managed by the Israel Prison Service but to a large extent the opposite is the case: in the privately managed prison the conditions of the inmates are expected to be better than in the other prisons in Israel (supplementary main arguments of 31 December 2007).

38. The possibility of overcoming the problem of serious overcrowding in prison facilities, of improving the welfare of the inmates beyond the minimum conditions that need to be provided at all times and in all situations, while increasing efficiency and making a financial saving for the state, are to my mind the main purposes of amendment 28 of the Ordinance. It should be added that the amendment speaks at this stage of setting up one prison as an experiment, but the long-term planning is that if the experiment is successful, it will be expanded and this may affect a large population of prison inmates, inter alia by significantly improving both the physical and the therapeutic and psychological conditions in which they are held in custody in Israel.

 The constitutional balance — the relationship between the harm caused to the prison inmate by privatizing the exercise of sovereign power and the expected improvement in prison living conditions

39. The privatization of the management of the prison in amendment 28 gives rise to a constitutional question of great significance. This question in essence is whether the potential violation of the prison inmate’s core basic rights that is caused by privatizing the sovereign coercive authority of managing a prison satisfies the constitutional test of proportionality, in view, inter alia, of the purpose of the amendment to the law which was intended to improve the welfare of the inmate beyond the minimum conditions guaranteed to him and at the same time to make a financial saving for the state. The potential violation of the inmate’s core basic rights, which is expected to occur as a result of the privatization of the sovereign power, conflicts with the potential benefit to the inmate deriving from the improvement in his welfare and his living conditions, together with an economic benefit to the public. What is the result of the balance between these values, and which of them takes precedence? In this conflict, is the harm to the prison inmate so great that it justifies setting aside a law of the Knesset despite the benefit to the inmate’s welfare that it bestows?

40. Constitutional law embodies the basic values and principles of the legal system. These values and principles require decisions that involve conflicting interests, values and rights. Often the conflict is between types of interests, values and basic rights that are all of the highest importance (HCJ 73/53 Kol HaAm Co. Ltd v. Minister of Interior [42], at p. 880 {100}). The conflict is resolved by striking a balance between the competing values, where each of the competing factors has its own importance and relative weight. The decision is made on the basis of the relative weight of the conflicting values.

‘It is only natural that there are more important principles and less important principles; … the basic difficulty involved in constitutional thinking is how to ensure objective normative criteria… for deciding between the conflicting principles… The balance and weighing need to reflect the social consensus rather than the subjective outlooks of the constitutional jurist… The judge should reflect the basic values of a nation, as reflected in its national way of life… The Israeli jurist formulates the basic principles and their relative weight against a background of the spiritual, cultural and social mores of modern Israeli society. These mores are naturally influenced by our ancient heritage, but they reflect the social consensus of the present. However, objective criteria that provide a solution to every constitutional problem do not exist. Where objective guidelines cease, the constitutional jurist is left “on his own,” and “his moment of truth” arrives. From this moment, the only guiding star that lights up his path is the constitutional principle of justice; the jurist should aspire to the solution that seems to him most just’ (A. Barak, Legal Interpretation: Constitutional Interpretation (vol. 3, 1994), at pp. 71-72).

41. The constitutional purpose is built on the values and principles that the constitutional norm is intended to realize. Sometimes these values lead in the same direction; sometimes they conflict with one another. In cases where there is a conflict, a balance needs to be struck between them in accordance with their relative weight. The balancing formula reflects the relative weight of each value. There is no single balancing formula, but a wide variety of balancing formulae that adapt themselves to the wide variety of possible situations that occur in life and the innumerable conflicts that may arise (HCJ 153/83 Levy v. Southern District Commissioner of Police [43], at p. 401 {117}).

42. In our case, the constitutional balancing formula between the conflicting values is especially complex. On one side of the equation there is the potential harm to the core human rights of the prison inmate, and especially his rights to liberty and dignity, which is inherent in the privatization of the sovereign coercive authority in the management of a prison and its transfer from an organ of state to a private enterprise. The potential harm to the individual inherent in privatizing the sovereign coercive authority in managing a prison is very considerable for the reasons that I have discussed above. It undermines and erodes the guarantees inherent in the foundations of the legal system for protecting the limits and constraints of power, which apply to the state when it exercises its sovereign power. Any undermining of these guarantees, which may result in a significant violation of the core human rights of the prison inmate, is of particularly great weight.

43. On the other side of the balancing equation, there is the main value of the amendment to the law, which is intended to promote the welfare of the prison inmate and improve his prison conditions in various fields of life, while enhancing economic efficiency for the state. This purpose is of great weight in itself, since it is intended first and foremost to promote the welfare of individuals who are already in difficult circumstances. It contributes to the protection of his dignity and welfare. Expanding treatment and rehabilitation programmes may also lead to the inmate being released early, thereby influencing his liberty and the other basic rights derived from the right to liberty.

44. The potential harm involved in the privatization of sovereign coercive authority, which is likely to violate the liberty and dignity of the prison inmate, is countered by the purpose of the privatization, which has an aspect of improving his living conditions in the prison. The improvement in such conditions has a direct effect on the realization of the inmate’s basic rights. How can this conflict be resolved, when at its heart there are forces, on the one hand, that violate the inmate’s rights and there are forces, on the other hand, that benefit him and promote his rights?

45. The dilemma in this balancing equation is particularly complex. It is not similar to the typical dilemma in which a right of one individual conflicts with the right of another individual or with a general public interest. In the equation in this case, there are conflicting interests and opposing forces that concern the same individual, the prison inmate. One seeks to eliminate the potential harm inherent in the privatization of sovereign coercive authority exercised against him in the prison, and the other seeks to uphold the law, despite the aforesaid harm, in order to enhance his welfare and improve prison conditions in the long term. We are confronted with a clash between conflicting forces that work on the prison inmate as an individual, where one seeks to prevent a violation of his basic rights resulting from a privatization of the force exercised against him, while the other seeks to contribute to his physical and emotional welfare that cannot be realized, at least at the moment, in any other way. The general public interest, which is reflected in the financial saving and greater economic efficiency that establishing the private prison will give the state, complements the factor of enhancing the welfare and improving the quality of life of the inmate in the privatized prison.

46. According to the president’s approach in her opinion, with which I agree, the main problem in the process of balancing the conflicting values, which is required in order to examine the constitutionality of amendment 28, lies in the third subtest of proportionality, within the meaning thereof in the limitations clause in the Basic Law. The third subtest focuses on the nature of the violation of a human right that is caused in order to achieve a proper purpose, and it recognizes that the realization of the purpose does not justify every means that has a rational connection to the purpose and minimizes the harm. ‘This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). The third subtest of proportionality is ethical in nature. It is intended to resolve the conflict between the various relevant factors in a manner that properly reflects the social and moral values enshrined in the social consensus, on which the democratic regime in Israel is based.

47. In our case, the question in its ethical context is what is the proper proportional balance between the improvement in living conditions for the prison inmate, together with the advancement of the economic interest of increased efficiency and a financial saving for the state, and the potential harm to the core rights of the inmate that is inherent in the privatization of sovereign coercive authority under the amendment to the Ordinance. Striking the proportional balance between the violation of the rights of the inmate caused by the privatization of the exercise of coercive authority against him and between the benefit that will arise in the future to the welfare of the inmate and the public in general from establishing a private prison is not easy. We need to decide which has greater weight: the expected harm to the prison inmate from the privatization of the coercive authority exercised against him, or the importance of improving the living conditions of the same inmate in the privatized prison, together with the saving and increased efficiency in the use of public money. It is possible to state the question as follows: does the enhanced welfare of the prison inmate anticipated from the amendment, together with the economic benefit to the state, diminish the potential harm to the inmate as a result of the privatization of the exercise of coercive authority to such an extent that it makes this harm constitutional in accordance with the test of proportionality in the narrow sense in the limitations clause?

48. The need to strike a balance between the constitutional violation of core human rights and the benefit to the very same person within the context of the same act of legislation that is subject to constitutional scrutiny does not arise often. It requires a comparison between ‘good’ and ‘evil’ that affect the same person, largely with respect to the same human rights. This is an atypical balancing equation that requires scrutiny in the special circumstances of this case.

49. In my opinion, in this balance, which is essentially an ethical one, the benefit to the welfare of the prison inmate, accompanied by a public economic interest, that will arise from the amendment to the law does not mitigate the potential harm to the inmate that will arise from the privatization of the sovereign coercive authority to such an extent that the harm becomes constitutional according to the test of proportionality in the narrow sense. The benefit to the prison inmate and the economic benefit to the state are not commensurate with, and are even dwarfed by, the violation of the prison inmate’s core human rights that can be expected to result from entrusting sovereign coercive authority to a private concessionaire.

50. The potential harm to the individual that is inherent in the privatization of sovereign coercive authority in the criminal proceeding is great, and it goes to the very heart of the social order that gives the state the legal and moral force to exercise sovereign authority over the citizen, while restraining and limiting this power to the absolute minimum, in order to protect core human rights. The ethical, moral and legal structure of the system of government in Israel is inconsistent with the transfer of sovereign coercive authority involved in the management of a prison to a private enterprise, which may seriously harm the individual, even when it is accompanied by the positive and important purpose of improving the physical living conditions of the prison inmate and also by increased efficiency and a saving of public money. In the ethical sphere, the duty of protecting the core human rights of the prison inmate against a serious potential violation overrides the positive purpose of improving the living conditions of prison inmates and increased economic efficiency for the state. It should also be recalled in this respect that improving prison conditions, which is a part of the amendment to the law, does not concern the basic prison conditions that are in any case assured by the existing legal position, but conditions that go beyond the absolute minimum. Achieving an improvement in prison conditions, although important, cannot outweigh the potential violation of the core rights of prison inmates, which is inherent in giving power to the private concessionaire to exercise sovereign authority over individuals under its control. In a democratic constitutional state, the price of enhancing the welfare of a person should not be paid in a manner that causes a possible violation of his core human rights. Such a price should not be paid, and does not satisfy the constitutional test.

51. The potential harm that is inherent in the privatization of sovereign authority is integral to it and of such a degree that it does not allow for a process of experimentation and arriving at conclusions in consequence thereof. We should seek to improve the welfare of the prison inmate, but not at the price of allowing injurious measures to be carried out against him and allowing his core rights to be violated, as the legislation that is under scrutiny in this proceeding entails.

52. The exercise of coercive authority in the criminal proceeding, in so far as it violates the core human rights of the individual, should remain in the hands of the sovereign authority, which is answerable to the public and to the foundations of the constitutional system for restraining and limiting it. This applies to police power, it applies to judicial power and it also applies to the power to manage prisons and to exercise coercive authority over prison inmates.

53. The privatization of public services by transferring the responsibility to provide them to private enterprises has been effected in recent years in several fields (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at pp. 472-473; A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). The fields that have been privatized include, inter alia, the enforcement of civil judgments, private security guards and security companies, tax collection, etc.. The problems that arise with regard to the privatization of the management of a prison are completely different from those that arise in the other fields of privatization from the viewpoint of the scope of the exercise of sovereign coercive authority over the individual that they necessitate, and from the viewpoint of the extent of their potential violation of fundamental constitutional rights.

54. The privatization of the exercise of sovereign coercive authority in the management of a prison by transferring it to a private concessionaire should therefore be set aside, since it does not satisfy the test of proportionality in the narrow sense under the limitations clause.

55. It need not be said that there is nothing that prevents a privatization of all of the operations and services that are a part of managing a prison and that do not involve the exercise of sovereign coercive authority over prison inmates.

56. I agree with the president’s position that the amendment to the Ordinance should be set aside in its entirety because it is difficult to apply a “blue pencil” to it and distinguish between its various terms that are all part of one whole. As stated, this does not preclude the privatization of those fields of management and services in the prison that do not involve the exercise of sovereign coercive authority, in so far as the competent authorities decide that this is proper.

For the aforesaid reasons, I agree with the president’s conclusions that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice E. Hayut

I agree with the opinion of my colleague the President, and with her conclusion that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: Amendment 28), according to which powers to imprison inmates were transferred to a private concessionaire (as well as a long list of invasive powers inherent therein)  should be struck down. This is due to the unconstitutional violation of the inmates' human rights to personal liberty and dignity that results from the establishment of a prison managed by a private corporation in which the inmates are subject to the authority of its employees.

1.    ,The President discussed In her opinion how, according to the basic views of modern political thinking, the state is responsible to enforce criminal law and to preserve public order by virtue of the Social Contract whereunder humans have organized themselves as a society. The President goes on to say that this state function holds an invasive power to deprive offenders of their liberty and that the transfer of this basic and invasive power to a private corporation operating for profit, is contrary to the Social Contract that originally gave these powers to the state, since as a result of that transfer ‘the exercise of that power loses a significant part of its legitimacy’ and the constitutional right of prison inmates to personal liberty is violated (para. 22 of the President’s opinion), to a greater degree that the actual imprisonment requires (para. 33 of the President’s opinion). The President also discusses in her opinion additional aspects of the violation of the constitutional rights of prison inmates, and she mentions in this regard the violation of their dignity as human beings resulting from their imprisonment in a privately managed prison; she says that this model creates a situation in which the manifestly public purposes of the imprisonment are blurred and diluted by irrelevant considerations that derive from the private corporation's desire to make a financial profit. Thereby, in her opinion, the prison inmates become ‘a means whereby the corporation that manages and operates the prison makes a financial profit’ and therefore her conclusion is that ‘the very existence of a prison that operates on a profit-making basis reflects a lack of respect for the status of the inmates as human beings’ (para. 36 of the President’s opinion). I agree with the President in this reasoning and her conclusion that these violations of the personal liberty and dignity of the prison inmates do not satisfy the tests of the limitations clause in the Basic Law: Human Dignity and Liberty, in which these basic rights are enshrined, because of the lack of proper proportionality between the social benefit that Amendment 28 provides and the human rights violation that it causes.

2.    In addition to the examination of the constitutionality of Amendment 28 from the perspective of the prison inmates' rights to personal liberty and dignity, I am of the opinion that it is also possible to discuss the difficulties that this amendment presents from the perspective of the general public, as a law that conflicts with the basic principles of the system of government and the legal system in Israel. Much has been written about the Social Contract on the basis of which human beings have organized themselves into states. Since the ‘Social Contract’ is a fiction that was invented by the fathers of modern political thought, there is a wide range of different views with regard to the nature and content of this contract (see M.D.A. Freeman, Lloyd’s Introduction to Jurisprudence (seventh edition, 2001), at pp. 111-118; W. Friedmann, Legal Theory (fifth edition, 1967), at pp. 117-127; C. Klein, ‘On the Social Contract Before the High Court of Justice,’ 5 College of Management Academic Studies L. Rev. (HaMishpat) 189 (2000)). Generally the state is regarded as having taken upon itself the role of protecting the safety, security and property of its citizens after they waived their natural rights to protect these interests and to punish anyone who harms them. For the purpose of realizing the role that is designated for it as aforesaid, the government is given powers and authorities that involve a violation of liberty. One of the core sovereign powers given to the state in order to enforce the law and protect the security of its citizens and the public order is the power to imprison anyone who has been found guilty in a trial and who has been given a custodial sentence, together with all the invasive ancillary powers that go with it. Indeed, the imprisonment of someone who has been convicted in a criminal proceeding is the last link in the sequence of actions that comprise the criminal proceeding for which the state has responsibility throughout. This link, which concerns the realization and enforcement of the sentence, is admittedly the last stage in the aforesaid sequence of actions that comprise the criminal proceeding, but it is by no means the least important. On the contrary, to a large extent it is capable of being an indication of the effectiveness of the whole criminal proceeding. In view of the importance of the powers of imprisonment as a major link in the sequence of actions that are required to enforce the law and according to the view that the Social Contract creates a relationship of trust between the government as trustee and the citizens as beneficiaries, the divestment by the state of its powers of imprisonment that it was given by the Social Contract violates the terms of that contract and the fundamental principles on which the whole system of government is based and on which law-abiding citizens and victims of crimes rely, since, as we have said, in the Social Contract they waived the right that they themselves may bring offenders to justice (for another outlook, which some regard as a basis for a totalitarian system of government and which holds that the Social Contract can be undermined only by the individual and not by the sovereign, see Klein, ‘On the Social Contract Before the High Court of Justice,’ supra, at p. 199).

3.    I concur with the President that it is difficult to locate a constitutional basis in s. 1 of the Basic Law: the Government for determining that the power of imprisonment is a core government power that cannot be transferred to private hands. Therefore, the question is whether the transfer of this power to a private enterprise — with all that this means from the viewpoint of the public in general – violates the basic principles of the system of government in a way that makes it is possible to strike down Amendment 28 even though these principles are not enshrined in the Basic Laws. Such a constitutional move raises problems that this court has addressed in its decisions over the years (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at p. 551; HCJ 410/90 Bloom v. Knesset Speaker [45], at p. 205; HCJ 5364/94 Welner v. Chairman of Israeli Labour Party [46], at pp. 801-802; see also A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel (vol. 1, sixth edition, 2005), at pp. 61-62, 67-69; Y. Dotan, ‘A Constitution for the State of Israel? Constitutional Dialogue after the “Constitutional Revolution”,’ 28 Hebrew Univ. L. Rev. (Mishpatim) 149 (1997), at pp. 177-179). It can be said that the approach  of  this court in this regard is that the examination of questions of the constitutionality of a law on the basis of fundamental principles ‘that are not enshrined in a Basic Law’ is possible, if at all, only in very exceptional and extreme cases, when the law undermines the foundations of the system of government on which the whole constitution is based. President Barak discussed the great caution that should be adopted in this regard in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], where he said:

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

And President Barak goes on to say there that even if there is a narrow margin that allows the constitutionality of a law to be examined outside the framework of the Basic Laws, this will happen only in special and extraordinary cases where the law in question undermines ‘the essence of democracy and negates the most basic characteristics required for a democratic system of government,’ such as ‘a law or Basic Law that denies the character of the State of Israel as a Jewish and democratic state’ (ibid. [19], at para. 74; see also HCJ 4676/94 Meatreal Ltd v. Knesset [47], at p. 28; A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 99). Thus, even according to the approach that it is not impossible for this court, in an appropriate case, to strike down a law that violates fundamental principles of the system that are not enshrined in the Basic Laws, this will only happen in very exceptional cases, when the law in question shakes the basic foundations of the whole constitutional and democratic system and threatens to destroy it.

4.    The phenomenon of privatization that is becoming more wide-spread in Israel has many aspects (see D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008); E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005)). But not everything can be privatized and no one would appear to dispute that certain powers and authorities that are given to government agencies may not be privatized, even by the legislative branch (see Barak-Erez, op. cit., at pp. 493-496; Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 329-330). As stated above, the divestment by the state of the powers of imprisonment given to it as the sovereign authority and as the body responsible for public safety and security and for maintaining public order, and the transfer of those powers to a private profit-making corporation, violate the basic principles of the system of government in Israel. Notwithstanding, it cannot be said that the statutory arrangement in Amendment 28 threatens to shake the foundations on which the whole constitution is based, especially since the model of privatization adopted in that amendment requires the state to closely supervise the private concessionaire's activities (see ss. 128S, 128U-128X, 128AF-128AL, 128AO and 128AW of the Prisons Ordinance). It can therefore be said that in Amendment 28 the state admittedly divested itself of its powers of imprisonment and transferred them to private hands, but it should not be regarded as having entirely abandoned and shirked its responsibility for carrying out these actions, at least as a supervisory body.

To sum up, I agree with the President’s opinion that Amendment 28 should be struck down as it is disproportionately violates the human rights of prison inmates to personal liberty and dignity.

 

 

Justice S. Joubran

I agree with the comprehensive opinion and reasoning of my colleague the president.

The imprisonment of someone convicted in a criminal trial as the main sanction prescribed by the Penal Law does not constitute merely a marginal aspect of the criminal process, and there are even those who claim it is the main element in the modern penal process. As my colleague the president said, a prison inmate will be deprived of his liberty regardless of whether he is imprisoned in a privately managed prison or not; the walls of the privately managed prison are no higher than those of their state managed counterpart. But the essence of the prison cannot be summarized by the actual loss of liberty; despite its centrality, this characteristic cannot express the manner in which prisons serve as an institution that is sanction – an institution the entrance into and very existence of constitute the response of the state to offences against its laws.

This phenomenon of the prison and the development of its nature as a sanction carried out by the modern state are aptly described by the French philosopher Michel Foucault in his book about the ‘birth’ of prisons. Because of their great relevance to our case, his remarks are worthy of consideration:

‘In several respects, the prison must be an exhaustive disciplinary apparatus: it must assume responsibility for all aspects of the individual. His physical training, his aptitude to work, his everyday conduct, his moral attitude, his state of mind; the prison, much more than the school, the workshop or the army, which always involved a certain specialization, is “omni-disciplinary”... Lastly, it gives almost total power over the prisoners; it has its internal mechanisms of repression and punishment: a despotic discipline. It carries to their greatest intensity all the procedures to be found in the other disciplinary mechanisms. It must be the most powerful machinery for imposing a new form on the perverted individual; its mode of action is the constraint of a total education:

“In prison the government may dispose of the liberty of the person and of the time of the prisoner; from then on, one can imagine the power of the education which, not only in a day, but in a succession of days and even years, may regulate for man the time of waking and sleeping, of activity and rest, the number and duration of meals, the quality and ration of food, the nature and product of labour, the time of prayer, the use of speech and even, so to speak, that of thought, that education which, in the short, simple journeys from refectory to workshop, from workshop to the cell, regulates the movements of the body, and even in moments of rest, determines the use of time, the time-table, this education, which, in short, takes possession of man as a whole, of all the physical and moral faculties that are in him and of the time in which he is himself” (Charles Lucas, De la Réforme des Prisons (1836), at pp. 123-124)’

(Michel Foucault, Discipline & Punish: The Birth of the Prison (trans. Alan Sheridan, 1977), at pp. 235-36).

Indeed, the prison is not merely the walls that separates the inmate from the rest of society. Therefore, if one asks - what difference it makes whether the walls are owned privately or by the state? We should answer that by sending the convicted offender behind the prison walls the state has not ended its role in the sanctioning process, and in many ways the imprisonment is only the beginning and the heart of the process. Even if we say that the loss of liberty alone constitutes the offender’s punishment, it cannot be denied that the entrance into the prisons caries with is myriad effects on the inmate’s life,- whether it is restrictions laid on his way of life and on his body that are required in order to prevent his escapes and protect public safety; determining regulations that are required to maintain public order; or by controlling the inmate’s daily schedule by other arrangements required by  because the prison is a “total” institution that requires the address of every aspect of the lives of its inmates. All these are accompanied by internal sanctioning mechanisms, for the establishment and enforcement of discipline inside the prisons. Even if we do not see in all of these ‘punishment’ in the traditional sense, we cannot disregard the fact that the nature of the prison as a sanctioning institution revolves around these characteristics, when each and every moment in the lives of the inmates is dictated and formed by them. Thus, it is possible to claim that all of these actions carried out against the prison inmate in practice constitute the very heart of the exercise of sovereign force against the individual, far beyond the mere decision to send him behind bars.

It follows that the transfer of the management of a prison to private hands does not merely constitute a privatization of powers that are ancillary or supplementary to the punishment, but the divestment by the state of a central layer in its sovereign authority to punish its citizens. Even if it is possible to accept this decision as a matter of policy, from the perspective of the prison inmates it is an unacceptable step. As stated, all of their lives inside the prison walls, beyond the actual decision to imprison them, are replete with the exercise of sovereign force, which regulates and disciplines their lives and their bodies. The transfer of these powers over the inmates to private hands effectively makes ‘pseudo-subjects’ of the private enterprise. Even though the powers of that enterprise over the inmates do not go down to the very root of punishment in its traditional sense and do not include the actual decision to deprive them of their liberty, and even if the powers given to them to impose disciplinary sanctions are limited in scope (although they should not be treated lightly even within that scope), this does not negate the fact that the private enterprise has overwhelming control over their lives, through the accumulation of all these minute regulations of these lives — from the use of force against the inmates, placing them in isolation, examining their naked bodies, forcing them to give urine samples, confiscating their possessions, searching their bodies, through maintaining order, discipline and security in the prison, ending in making arrangements for the welfare, health, rehabilitation, training and education of the inmates. Giving this control to a private enterprise, which, despite the supervisory restraints retained by the state, is still motivated in its actions by commercial considerations, constitutes a violation of the dignity of the inmates as human beings that cannot be accepted.

Therefore, I agree as aforesaid with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance should be set aside.

 

 

Justice M. Naor

I agree with the finding of my colleague the president that the Prisons Ordinance Amendment Law (no. 28), 5764-2004 (hereafter: ‘amendment 28’) unconstitutionally violates two constitutional rights that are enshrined in the Basic Law: Human Dignity and Liberty. I agree with her approach that the right to personal liberty (s. 5 of the Basic Law) and the right to human dignity (s. 2 of the Basic Law) of those inmates who are supposed to serve their sentences in the private prison is violated by the ‘actual transfer of powers of management and operation of the prison from the state to a private concessionaire that is a profit-making enterprise’ (para. 18 of the president’s opinion). In view of the importance of the constitutional question that has arisen in this case and the existence of certain differences in approach, I would like to set out my position.

The violation of the constitutional rights enshrined in the Basic Law: Human Dignity and Liberty

The violation of liberty

2.    Even though imprisonment ipso facto violates liberty, when it is implemented by the state, the violation is proportionate (see and cf. CrimA 4424/98 Silgado v. State of Israel [12], at p. 550). The question before us is simply whether the identity of the party that implements the imprisonment (a private profit-making enterprise) is likely to cause an independent violation of the right to liberty that is additional to the violation that arises from the actual imprisonment. My colleague the president answers this question in the positive, and I agree with her position. Imprisonment that is carried out by a private profit-making enterprise causes a separate violation of the right to liberty. This violation may vary in its degree: it may be a minor violation, such as when the private enterprise exercises ‘technical-administrative’ sovereign powers (see HCJ 2303/90 Philipovitz v. Registrar of Companies [15]), and it may be a serious violation, such as when the private enterprise exercises the main and invasive powers of the state that involve broad discretion.

3.    The doctrine of the delegation of administrative powers allows the state to avail itself of the ‘assistance’ of a private enterprise (Philipovitz v. Registrar of Companies [15], at p. 429; CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). This doctrine applies mainly in administrative law (see: Y. Dotan and B. Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at pp. 308-311; D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008)). By analogy to this doctrine, were the concessionaire to exercise merely a ‘technical’ or ‘administrative’ power, it could be said that even if a separate violation of the right to liberty were proved, it would only affect the periphery of the right, or alternatively it would be an insignificant violation. Such a determination would probably justify judicial restraint (for the requirement that a violation is a ‘real’ one, see HCJ 10203/03 National Census Ltd v. Attorney-General [48], at para. 17 of my opinion).

In our case, however, the concessionaire is acting as an extension of the state in order to exercise one of its main and most invasive powers — the power to enforce the criminal law and to maintain public order. We are not speaking merely of a ‘technical’ or ‘administrative’ power. The concessionaire is wielding, on behalf of the state, real sovereign authority that involves the exercise of discretion (on discretion as ‘the most important part of authority,’ see I. Zamir, Administrative Authority (vol. 2, 1996), at p. 546). Inter alia, the concessionaire has been given powers to maintain order and discipline in the prison and to prevent the escape of inmates (as explained in para. 31 of the opinion of my colleague the president). The power given to manage the prison — the exercise of authority, power and discipline — is clearly recognized as one of state sovereignty and requires discretion when exercising it (see and cf. HCJ 5009/97 Multimedia Co. Ltd v. Israel Police [49], at p. 693; see also: A. Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ 14(2) Legal Theory 113 (2008), at p. 117).

Therefore the law does not merely enshrine a ‘policy of privatization’ (see for example HCJ 5167/00 Weiss v. Prime Minister [50], at p. 471, but it changes the distribution of the state’s sovereign powers. I agree with the president that powers that are characterized by the exercise of sovereign authority in order to enforce the criminal law and maintain public order, when they are exercised by a private profit-making enterprise, inflict a separate and real violation of the constitutional right to liberty. Therefore the judicial scrutiny required lies in the field of constitutional law.

4.    My colleague bases her determination regarding a violation of liberty on the approach that the legal system in Israel has a basic principle that the state has a monopoly on the use of organized force, and this basic principle is a part of the constitutional right to personal liberty (para. 26 of her opinion). In my opinion, it is possible to determine that our case involves a violation of the constitutional right to liberty even without resorting to a fundamental principle regarding the system of government. My approach is that in view of the nature of the criminal proceeding and the fact that imprisonment is a part of the criminal trial and criminal law, the transfer of responsibility for it to private hands in itself violates liberty as a constitutional right in Israel.

5.    According to my approach, the distinction between the handing down of a custodial sentence and its de facto implementation is an artificial one; we are speaking of one process of administering criminal justice that involves various levels of discretion (see and cf. P. Moyle, ‘Separating the Allocation of Punishment from its Administration: Theoretical and Empirical Observations” 11 Current Issues in Crim. Just. 153 (1999), at pp. 157, 159, 170). According to my approach, both the sanction (imposing the custodial sentence) and its actual enforcement (in the prison) are a part of the ‘process of administering criminal justice’ and both involve the exercise of discretion. The tasks imposed on the inmates in the prison, as a part of ‘prison management,’ are also an integral part of the sentence imposed on them. This is obvious when dealing with matters of inmate discipline (see and cf. R. Harding, ‘Private Prisons,’ 28 Crime and Justice 265 (2001), at pp. 273-278, which is cited in the ‘Knesset’s Position’ in paras. 244-248). It should be recalled that the law may also affect to some degree the duration of the term of imprisonment (see para. 27 of the opinion of my colleague the president; s. 9(7) of the Release from Imprisonment on Parole Law, 5761-2001). Indeed, imprisonment is a part of criminal law and procedure (see and cf. L. Sebba, ‘Human Rights and the Sentencing System,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 183 (1996), at p. 188). Against this background, an opinion has been expressed that the question of privatizing prisons should be considered within the framework of criminal law rather than within the framework of the law concerning privatizations in general:

‘… prison privatization could be reviewed in conjunction with criminal justice policy and not just as part of the question of privatization more generally’ (C.M. Donnelly, Delegation of Governmental Power to Private Parties: A Comparative Perspective (2007), at p. 76.

See also S. Dolovich, ‘State Punishment and Private Prisons,’ 55 Duke L. J. 437 (2005), at pp. 544-545; Donnelly, op. cit., at p. 256.

6.    The constitutional right to personal liberty has been interpreted broadly, and it has been held that imprisoning a person ipso facto violates his constitutional right to liberty (see HCJ 6055/95 Tzemah v. Minister of Defence [5], at p. 261 {656}). When we say that the imposition of the custodial sentence and its actual implementation in the prison are a part of the criminal trial and criminal law, it follows that the manner in which the imprisonment is implemented — including the identity of the party implementing the imprisonment — is also ‘covered’ by the constitutional right to personal liberty. The whole process of criminal justice, including the element of implementing the actual imprisonment, is subject to the constitutional restrictions: ‘Most of the government activity in the field of criminal law — whether legislative, administrative or judicial — is now subject to the Basic Laws. Criminal law and its enforcement need to be constitutional’ (A. Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ 13 Mehkarei Mishpat (Bar Ilan Law Studies) 5 (1996), at p. 13). As President Barak said, the administration of criminal justice ‘is naturally closely connected to human rights. It protects the right of every human man to dignity, physical integrity and property’ (CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 654; see also HCJ 5319/97 Kogen v. Chief Military Prosecutor [52], at p. 81 {512}).

7.    One might ask how it is possible to deduce from the right to ‘liberty’ that the state has a duty to exercise its powers in a certain way, i.e., by itself. The answer to this is twofold.

In the constitutional sphere, the violation of liberty as a constitutional right should satisfy the conditions of the limitations clause. The limitations clause is likely to require the state to exercise its powers in a manner that legitimizes the violation of the constitutional right. The centre of gravity therefore focuses on whether the violation is constitutional within the context of the limitations clause, which has great weight in determining the constitutional balance in the criminal sphere (Barak, ‘The Constitutionalization of the Legal System Following the Basic Laws and its Implications for (Substantive and Procedural) Criminal Law,’ supra, at pp. 13-14).

In the administrative sphere, the value of liberty is also likely to require the state to exercise its powers in a certain way. Thus, for example, this court has held that the power of a prison employee in carrying out his duties does not give him the authority to compel the inmates to carry out the work of cleaning the prison cells themselves: ‘We find ourselves here in the area of the liberty of the citizen, and the rule is that in such a case great care should be taken only to deprive him of liberty to the degree and in the manner that are clearly dictated by the law’ (per Justice Agranat in CrimA 40/58 Attorney-General v. Ziad [53], at p. 1364, and therefore ‘it should be concluded, in the absence of any conflicting evidence, that it is practically possible that [the cleaning of the cells] will be done by persons whose job it is and who will be appointed specially for this task’ (Attorney-General v. Ziad [53], at p. 1635). Thus the state was de facto required to carry out the cleaning of the prison cells itself or through another party, but not through the prison inmates themselves (as long as there is no contrary stipulation in legislation).

Moreover, in the theoretical sphere, constitutional interpretation is carried out with a ‘broad perspective’ (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 24 of the opinion of President Barak). Thus, with regard to the word liberty the court should also give an interpretation that reflects values that are enshrined in the social consensus and in the ethical principles that are shared by society (see the remarks of my colleague the president at para. 53 of her opinion). This is the place to consider the interpretation of the word liberty in greater detail.

8.    Montesquieu says in The Spirit of Laws:

‘Il n’y a point de mot qui ait reçu plus de différentes significations, et qui ait frappé les esprits de tant de manières, que celui de liberté’ (Montesquieu, De L’Esprit des Loix (The Spirit of Laws) (1748), XI, 2).

‘There is no word that has been given more different meanings, and that has influenced the human spirit in more ways, than the word liberty’ (tr. by the editor).

The word liberty has a strong relationship with political philosophy (for a survey, see Harel, ‘Why Only the State may Inflict Criminal Sanctions: the Case Against Privately Inflicted Sanctions,’ supra, at pp. 117-122; see also J.P. Day, Liberty and Justice (1987), at p. 101). Liberty is a central element in humanistic thinking (for the importance of liberty in Rawls’ theory of justice, see J. Rawls, A Theory of Justice (1971), at pp. 201-205; J. Rawls, Political Liberalism (1993), at p. 181; see also Y. Dahan, ‘On Democracy of Property Owners and Liberal Socialism: Economy and Welfare in Rawls’ Theory of Justice,’ in The Philosophy of John Rawls (D. Hyed and D. Attas eds., 2007) 126). Liberty is a central element in every definition of democracy (for the influence of various definitions of democracy and liberty on the legitimacy of privatizing prisons, see in detail Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 84-96).

We can use this theoretical basis to interpret the right to ‘liberty.’ It should be remembered that the question is not how ‘liberty’ is understood in the political philosophy of one person or in the moral beliefs of another. The question is how the right to ‘liberty’ is conceived as one of the values of the State of Israel (see and cf. A. Barak, Legal Interpretation — Constitutional Interpretation (1994), at p. 318). The court is supposed ‘to reflect the outlooks of society… [and to give] expression to the values of the constitution as they are understood by the culture and tradition of the people, as it moves across the face of history’ (per President Barak in CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 425). These are values that reflect ‘deeply held beliefs of modern society’ (ibid. [8], at p. 424; see also R. Dworkin, Taking Rights Seriously (1977), at pp. 116-117; cf. also the outlook of John Rawls regarding the overlapping consensus (Rawls, Political Liberalism, supra, at pp. 144-150), and the moral role of the Supreme Court in determining constitutional values (Rawls, op. cit., at pp. 227-240).

9.    My colleague the president cited in her opinion the remarks of two of the classical political philosophers of the seventeenth century, Thomas Hobbes and John Locke. This classical approach that is reflected in her opinion is still valid today. A clear expression of the approach accepted in the modern state, according to which it is part of the responsibility of the state to ensure public order and enforce the criminal law within its territory by itself, appears in the writings of Max Weber on sovereign authority:

‘Today the relation between the state and violence is an especially intimate one… a state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory’ (Max Weber, ‘Politics as a Vocation,’ in H.H. Gerth and C. Wright Mills (eds.), From Max Weber: Articles in Sociology 77 (1946), at p. 78).

It would appear that even those who espouse the ‘night watchman state’ philosophy, in which the role of the state is limited solely to protecting the lives and property of citizens, recognize the duty of the state to enforce public order:

‘In the nineteenth century, the philosophy of the laissez faire state was widespread. According to this approach, the state has a very limited role, mainly in the field of security… It is obliged to maintain an army, a police force, courts and prisons… It is not supposed to involve itself in other fields of social and economic life beyond what is essential for maintaining public order’ (Zamir, Administrative Authority (vol. 1), at p. 31).

Even those who espouse capitalism as a necessary condition for freedom (M. Friedman, Capitalism and Freedom (1962)) are of the opinion that the state has two ‘clear and self-evident’ duties:

‘[the first duty is] the protection of individuals in the society from coercion whether it comes from outside or from their fellow citizens. Unless there is such protection, we are not really free to choose… [the] second duty goes beyond the narrow police function of protecting people from physical coercion; it includes “an exact administration of justice”’ (Milton and Rose Friedman, Free to Choose (1980), at p. 29).

Milton and Rose Friedman base themselves in their book on Adam Smith, the author of the ‘invisible hand’ theory, who defined the basic role of the state as follows:

‘According to the system of natural liberty, the sovereign has only three duties to attend to; … first, the duty of protecting the society from the violence and invasion of other independent societies; secondly, the duty of protecting, as far as possible, every member of the society from the injustice or oppression of every other member of it, or the duty of establishing an exact administration of justice; and, thirdly, the duty of erecting and maintaining certain public works and certain public institutions, which it can never be for the interest of any individual, or small number of individuals, to erect and maintain; because the profit could never repay the expense to any individual or small number of individuals, though it may frequently do much more than repay it to a great society (Adam Smith, Wealth of Nations (1776, Book IV, Chap. IX)’ (Friedman and Friedman, Free to Choose, at pp. 28-29).

It would appear that on this basis it can be said that an accepted approach is that ‘by virtue of the basic principles of liberal democracy, certain products need to be included in the public sphere in such a way that privatizing them is not legitimate’ (Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-330; see also B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583, at pp. 588, 654-655, 660), where he discusses the role of the state in ‘protecting the public and maintaining public order’; also cf. E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at pp. 92-93, and the references cited there).

10. In my opinion, on the basis of the classical political philosophers that were discussed by my colleague the president in her opinion, and on the basis of the aforesaid and the values of the State of Israel as a Jewish and democratic state, it is possible to interpret the word liberty in the Basic Law: Human Dignity and Liberty as having two aspects: a ‘negative’ aspect (‘The freedom that is guaranteed to every human being by the law, i.e., to conduct himself and act, think and speak however he wishes, unless the law imposes on him a duty to act in a certain way, is what we have called the “supremacy of the law”’ — see H.H. Cohn, The Law (1996), at p. 138; also see Day, Liberty and Justice, supra, at p. 103); and a ‘positive’ aspect, that may require the state, in certain circumstances and in a narrow range of basic roles, to exercise its powers itself. This was discussed by Isaiah Berlin:

‘The first of these political senses of… liberty…, which… I shall call the “negative” sense, is involved in the answer to the question “What is the area within which the subject — a person or group of persons — is or should be left to do or be what he is able to do or be, without interference by other persons?” The second, which I shall call the “positive” sense, is involved in the answer to the question “What, or who, is the source of control or interference that can determine someone to do, or be, this rather than that?”’(Isaiah Berlin, ‘Two Concepts of Liberty’ (1958), in Isaiah Berlin, Four Essays on Liberty (Oxford, 1969)).

This approach also finds expression in the context before us. Thus, for example, the ‘Right to liberty and security’ in art. 5 of the European Convention for the Protection of Fundamental Rights and Freedoms, which has also been adopted in the United Kingdom in the Human Rights Act 1998, has been interpreted as having a ‘positive’ aspect that in certain circumstances prevents imprisonment by private enterprises:

‘… the positive obligations recognized under Article 5 have been relatively limited. It has been accepted that Article 5 imposes an obligation to protect vulnerable individuals from deprivation of liberty by private actors’ (J. Wadham, H. Mountfield, C. Gallagher, E. Prochaska, Blackstone’s Guide to The Human Rights Act 1998 (fifth edition, 2009), at p. 168).

(For further discussion of the various meanings of liberty, see in general P. Pettit, ‘Law, Liberty and Reason,’ in Reasonableness and Law (G. Bongiovanni, G. Sartor, C. Valentini eds., 2009) 109).

11. One might ask whether the aforesaid interpretation of the word liberty overly limits the power of the state to transfer to private enterprises the responsibility for carrying out certain tasks. The answer to this is also twofold.

First, we are dealing in this case with privatization in the context of criminal law. Establishing and managing a prison is part of law enforcement and the administration of criminal justice:

‘The construction and operation of a prison has traditionally been a government responsibility and an indispensable part of the administration of the criminal law. Corrections is not separate from the criminal law; rather, it is a component of an integrated criminal justice system. Just as the state is responsible for promulgating the criminal code, it also has a responsibility to see that the laws are enforced and its offenders are punished. Transferring the provision of corrections to the private sector is tantamount to transferring an important element of government responsibility’ (J.E. Field, ‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ 15 Hofstra L. Rev. 649 (1987), at p. 669).

In this context, in the field of criminal law enforcement, the law violates the right to liberty in its most basic sense — personal liberty:

‘The danger of self-interested decision-making can be even more strikingly illustrated in the involvement of private actors in the administration of the criminal justice system, where a very fundamental right, the right to liberty, is at stake’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

The power that was transferred from the state to a private profit-making enterprise in our case — the power to manage and carry out sentences imposed by the criminal law — is a complex and very sensitive power. This is not an ‘ordinary’ administrative power, since is includes a predominant element of discretion in the exercise of authority. This was discussed by Field:

‘Not only is corrections one of the government’s most basic responsibilities, it is probably the most sobering. The ability to deprive citizens of their freedom, force them to live behind bars and totally regulate their lives, is unlike any other power the government has’ (‘Making Prisons Private: An Improper Delegation of a Governmental Power,’ supra, at p. 669).

Similarly, Justice Zamir said:

‘The management of a prison is a very complex task. Just as it requires great power, it also requires great sensitivity… The power of the Israel Prison Service is not similar, from the viewpoint of its nature and scope, to an ordinary administrative power… Because of the great dependence of inmates on prison officers, and because of the concern that the power wielded by prison officers may be abused, since it is a power that is exercised behind tall walls, there is a very great need for judicial scrutiny of the Israel Prison Service. Admittedly, it is the court that sent the inmates to prison; but now, when they are behind the prison walls, the court is the protector of prison inmates’ (PPA 7440/97 State of Israel v. Golan [54], at pp. 7-8).

Judicial scrutiny of an administrative power of this kind is exercised not only in the field of administrative law, but also in the field of constitutional law. As I have shown, a transfer of power to ‘manage a prison’ from the state to a private profit-making enterprise is a provision from the field of criminal law that amounts to a violation of the constitutional right to personal liberty. As such, it should satisfy the tests of the limitations clause (see Y. Karp, ‘Criminal Law Legislation in Light of the Basic Laws,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 175 (1996), at p. 276).

It should be noted that even with regard to an ‘ordinary’ administrative power there may be matters that will usually be managed by the state itself. Thus, for example, it has been held with regard to the power of the attorney-general to appoint a prosecutor in criminal trials that ‘it should be held that for certain types of offences — including the main offences of criminal law — the prosecution should be conducted by the District Attorneys’ offices’ (HCJ 1783/00 Haifa Chemicals v. Attorney-General [18], at p. 657) and that ‘The rule is that where a power has been given to appoint a person as an organ of a competent authority or to delegate a sovereign power to him, that person should be a part of the sovereign authority’ (ibid. [18], at p. 655).

12. Second, it is possible to say that the law before us is an extreme expression of the ‘“age of privatization” in which we find ourselves today’ (per my colleague the president in CrimFH 10987/07 State of Israel v. Cohen [22], at para. 14 of her opinion, and see also paras. 7-13 of the opinion of Justice Rubinstein). It was with good reason that Justice Cheshin pointed out in Multimedia Co. Ltd v. Israel Police [49] that ‘We have not yet arrived at the privatization of the police. It is also to be hoped that we will never do so’ (ibid. [49], at p. 689). But it would appear in a certain sense that we have.

Our judgment, however, does not determine any hard and fast rules regarding the broad range of products and services that may be privatized. The ‘age of privatization,’ which seeks to reduce government involvement in economic and social life, includes a broad range of matters that may fall within its scope: the sale of publicly owned companies; carrying out government activity or building public infrastructures through private contractors (‘outsourcing,’ as in our case); changing over from the supply of publicly funded products and services to their supply in return for payment (‘commercialization’), etc. (see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 467-478). Every type and case of privatization should be considered on its merits (for an all-inclusive model proposed in the field of administrative law, on the basis of the principle of constitutionality, see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 329-333; for an all-inclusive model proposed in the field of constitutional law, see Barak-Erez, op. cit., at pp. 492-498; for another model, which is based on the principle of ‘publicization,’ see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, who takes for granted the actual legitimacy of privatization (ibid., at p. 37), but raises constitutional questions while discussing theoretical justifications for ‘publicization’ (ibid., at pp. 77-78)). Public law is one entity, but its application may change from one type of privatization to another and according to the circumstances of the case.

13. I should emphasize that we are dealing with a privatization of a power that is integral to criminal law. The interpretation give above to the right to ‘liberty’ was given in this context. The aforesaid interpretation does not lay down any hard and fast rules with regard to other senses of the right that may be derived from it with regard to the privatization of government services in the civil sphere (for privatization in the field of health care, see HCJ 4253/02 Kariti v. Attorney-General [55]; for privatization in the field of welfare, see A. Benish, ‘Outsourcing from the Perspective of Public Law,’ 38(2) Hebrew Univ. L. Rev. (Mishpatim) 283 (2008)). Therefore, the interpretation given to the right to ‘liberty’ in our case does not shed any light on the nature of the ‘economic constitution’ in Israel or enshrine the values of the State of Israel as a ‘welfare state’ (see A. Barak, ‘The Economic Constitution of Israel,’ 4 Law and Government (Mishpat uMimshal) 357 (1998), at p. 378). The identification of an ‘economic constitution’ is a complex matter that is not required in this case (see Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at pp. 588, 654-655, 669; for further discussion of the difficulties involved in the identification of the economic constitution in the institutional sphere, see Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at pp. 493-494, and Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 341-343; on the range of ideological approaches to this matter with regard to public products, see Dotan and Medina, op. cit., at pp. 301-303; see also different approaches that have been expressed on this matter in case law, such as in CA 975/97 Eilabun Local Authority v. Mekorot Water Company Ltd [56], at p. 446; CA 8558/01 Eilabun Local Authority v. Mekorot Water Company Ltd [57], at p. 782; for further discussion of these and other judgments, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 48-51; see also HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650).

Consequently, our judgment does not depart, in my opinion, from the premise of ‘constitutional neutrality’ in the context of political economics (see HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7], at p. 386). All that has been said in this case, in brief, is that in the field of criminal law a transfer of power to enforce the criminal law and to maintain public order at the imprisonment stage, when we are dealing with a power that has a predominant element of discretion for exercising authority, from the state to a private profit-making enterprise, violates the constitutional right to liberty. It therefore needs to satisfy the conditions of the limitations clause.

The violation of human dignity

14. As I have said, I agree that there is also a violation of the constitutional right to human dignity. I would like to explain this violation from an additional perspective.

15. It is well established in case law that the principle of equality is a part of the constitutional right to human dignity, according to the ‘intermediate model’ adopted in the case law of this court with regard to the interpretation of the right to human dignity:

‘It is also possible to include within the scope of human dignity discrimination that does not involve degradation, provided that it is closely connected with human dignity as expressing the autonomy of the private will, the freedom of choice and the freedom of action, and similar aspects of human dignity as a constitutional right’ (Movement for Quality Government in Israel v. Knesset [19], at para. 38 of the opinion of President Barak).

In my opinion, the law violates the principle of equality between inmates. The violation of equality is reflected in the fact that the law creates a distinction between two groups of prison inmate: one group will be imprisoned in a private prison that is managed by a profit-making concessionaire, and the other group will be imprisoned in a state prison (see appendix H of the concession agreement, which gives details of the categories for selecting inmates for the private prison). The first group, which will be imprisoned in a private prison, is discriminated against relative to the second group, since the private profit-making enterprise is not subject to the same ‘civil service ethos in the broad sense of this term’ (per my colleague the president, at para. 26 of her opinion); in particular, it is tainted by an inherent conflict of interests in exercising sovereign authority, because it is an entity that is motivated by considerations of profit, which are improper considerations when exercising a sovereign power regarding the imposition of imprisonment and the manner in which it is imposed. This is an a priori conflict of interests that does not require any specific factual proof (see and cf. HCJFH 5361/00 Falk v. Attorney-General [59], at paras. 16 and 18 of the majority view in the opinion of Vice-President Mazza). This inherent conflict of interests creates a distinction that contains a relevant difference for the purpose of the discretion in exercising the power. The conclusion is that the first group that is imprisoned in the private prison are victims of discrimination. This discrimination is closely connected to human dignity according to the ‘intermediate model’ (see and cf. the requirement of equality in the possibility of consuming products and services in a privatization of the commercialization type, in Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 299-300, 330).

16. In her opinion, my colleague the president discussed the inherent conflict of interests. I agree with her remarks and will add two perspectives: first, the modus operandi of commercial confidentiality that typifies the concessionaire conflicts with the modus operandi of transparency and openness that typifies the civil service as a part of the concept of accountability (on this idea, see Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at pp. 68-69); second, and following from this, the disparities in knowledge between the concessionaire and the state, despite its supervisory role, may be abused for the self-interest of the concessionaire and to the detriment of the inmates in its custody (R. Mandelkern and A. Sherman, ‘The Privatization of Social Services Implementation in Israel,’ (State Responsibility and the Limits of Privatization Research Project, The Centre for Social Justice and Democracy in Memory of Yaakov Chazan at the Van Leer Jerusalem Institute), at para. 2.3). This conflict of interests can also be understood from an economic perspective, as Prof. Chaim Fershtman says:

‘Private ownership changes the inducements according to which the service is managed. It affects the accountability of the service providers to the recipients of the service and to the public. Considerations of maximizing profit — even if they are restrained by regulation — will change the product itself… Even if the payment for a certain prison will be based on the existing number of prison places, it is clear that if the prison is full an additional prison will be needed to make additional profits. The opposition to private ownership is based on the desire that industry, which operates on a profit-making basis, will not influence or encourage imprisonment’ (C. Fershtman, The Limits of Privatization (2007), at p. 25).

And as Donnelly says:

‘… the private interest of maximizing profit may conflict with the public interest in sound correctional policies: private managers in prisons may choose to lower costs by minimizing staff numbers, hiring under-qualified guards, or providing minimally adequate but substandard care’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at pp. 91-92).

Against this background, I agree with my colleague the president that the supervisory mechanisms in the law (including s. 128AE of the law) do not allay the concern that the discretion in exercising a power will reflect the business or other interests of the private enterprise in such a way that violates the rights of the inmates (see also Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 136). The concern is built into the discretion of a private entity. This was discussed by Walzer, who said that a private prison —

‘… exposes the prisoners to private or corporate purposes, and it sets them at some distance from the protection of the law’ (M. Walzer, ‘Hold the Justice,’ New Republic (April 1985), at p. 12).

As Donnelly says:

‘Private prison operators make decisions affecting the liberty interests of prisoners on a daily basis — even though they are incapable of removing their own profit interest from these decisions’ (Donnelly, Delegation of Governmental Power to Private Parties – A Comparative Perspective, supra, at p. 110).

17. Section 76 of the Prisons Ordinance [New Version], 5732-1971, provides that the Israel Prison Service will engage ‘in the management of the prisons, the guarding of inmates and everything involved therein.’ As a rule, a power ‘to manage a prison’ is inherently ripe for abuse. A clear example of this concern relates to prison inmates’ work. When the state, through the Israel Prison Service, is responsible for the inmates’ work, the concern that the sovereign power to manage the prison will be abused is weaker, since the state regards the purpose of the inmates’ work as mainly rehabilitative, whereas ‘the economic interests involved in the inmates’ work, although they exist, are only marginal’ (per Justice Zamir in HCJ 1163/98 Sadot v. Israel Prison Service [21], at p. 836; see also the remarks of Justice Beinisch at p. 864: ‘The work of a prison inmate… from the outset involves restrictions and is not for making profit’). By contrast, when the private enterprise is responsible for inmates’ work, a problem of an inherent conflict of interests clearly arises. Does the private concessionaire also share the outlook that ‘the work of inmates serves important purposes from the viewpoint of the inmates, the Israel Prison Service and the general public’ (Sadot v. Israel Prison Service [21], at p. 837, per Justice Zamir)? I think that the answer to this is no, as Peleg says:

‘The privatized enterprise tends to regard itself as a private concern that is accountable to itself and its owners. Its purpose is to maximize its profits. It seeks to be efficient and to reduce costs; it seeks to be profitable. Therefore the welfare of the individual is not one of its priorities… A private prison is capable of violating the dignity and liberty of the inmate on a daily basis, in view of the existence of an inherent interest in keeping as many inmates as possible in the prison’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 38).

In this situation, there is a concern that the sovereign authority given with regard to inmates’ work will be abused (see W.L. Ratliff, ‘The Due Process Failure of America’s Prison Privatization Statutes,’ 21 Seton Hall Legis. J. 371 (1997), at p. 381, which was cited in the Knesset’s Position in paras. 227-276). This concern becomes greater when we are speaking of a weak population, like the one in our case, which concerns a population of prison inmates who have lost their liberty (see Peleg, op. cit., at p. 63). The aforesaid concern, in view of the character and nature of the power under discussion, is an inherent concern that is real and immediate (cf., in the context of administrative law, HCJ 4884/00 Let the Animals Live Association v. Director of Field Veterinary Services at the Ministry of Agriculture [16], at pp. 212-213; Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at p. 310).

18. In my opinion, the inmate’s work for the private concessionaire turns him into a ‘means of making profits’ in a way that violates  dignity. The ‘intermediate model’ for a violation of human dignity is also sufficient for reaching this conclusion, and there is no need for the ‘degradation’ model.

‘When a person is treated not as an “end in himself” but as a “means only,” the value of human dignity is violated’ (A. Parush, ‘Moral Responsibility, Criminal Liability and the Value of Human Dignity — On Some Recent Developments in Israeli Criminal Law,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 87 (1996), at p. 95). Recognizing a human being as an end and not as a means is ‘closely and objectively’ related to human dignity as a part of the ‘intermediate model’ in the interpretation of the constitutional right to human dignity (see Barak, Constitutional Interpretation, at pp. 406-407, 416). According to the ‘intermediate model,’ which was adopted as aforesaid in the judgment in Movement for Quality Government in Israel v. Knesset [19], ‘human dignity regards a human being as an end and not as a means of achieving the ends of others’ (Barak, Constitutional Interpretation, at p. 421). Admittedly, inmates’ work is only a part of the activity in the prison, and according to law the concessionaire is also responsible for the activity of ‘work training and providing education’ (s. 128L(a)(3) of the law), but this fact does not negate the actual violation of the constitutional right but merely concerns the question of the proportionality of the violation.

19. In summary, the violation of the principle of equality between inmates is built into the manner in which the private enterprise exercises its discretion when it exercises the power to ‘manage the prison.’ This violation of the principle of equality violates the constitutional right to human dignity — a violation that is separate from the violation of human dignity as a result of the actual imprisonment. It falls within the scope of the ‘intermediate model’ of the constitutional right to human dignity. It should be recalled that the law violates equality with respect to a very weak and vulnerable sector of society, which is a minority group of prison inmates who have lost their liberty (see M. Elon, ‘The Basic Laws — Enshrining the Values of a Jewish and Democratic State: Criminal Law Issues,’ 13 Bar Ilan Law Studies (Mehkarei Mishpat) 27 (1996), at pp. 68-69). This violation should also satisfy the conditions of the limitations clause.

The constitutionality of the violation of rights — the limitations clause

20. The determination that the constitutional rights to personal liberty and human dignity have been violated in this case does not rule out any kind of cooperation between the public sector and the private sector in managing a prison. The limitations clause makes it possible to ‘legitimize’ a violation that satisfies its conditions. I agree with my colleague the president that in our case the constitutional scrutiny focuses on the test of proportionality (with its three subtests).

I do not rule out the possibility of cooperation in the management of a prison if it is proportionate and constitutional. Administrative law allows cooperation as aforesaid on the level of the state availing itself of ‘assistance’ even without an express provision in primary legislation (‘the law is presumed to have granted the power, since its purpose is to allow the person having the authority to receive assistance from others in exercising his authority,’ and the scope of the assistance ‘varies from one case to another and from one function to another,’ (Philipovitz v. Registrar of Companies [15], at p. 429)). In my opinion, the fact that in our case the cooperation was expressly enshrined in primary legislation gives the executive authority a broader margin of appreciation than mere ‘assistance’ (for the legislature’s margin of appreciation in primary legislation, see Israel Investment Managers Association v. Minister of Finance [7], at p. 386). But in view of the violation of constitutional rights, this margin of appreciation, which derives from enshrining the privatization in primary legislation, needs to satisfy the tests of the limitations clause, including the constitutional proportionality test:

‘The separation of powers gives the role of formulating a position as to the proper arrangement to the legislature, but the legislature’s freedom of choice is subject to constitutional restrictions. These are not ideological restrictions of a political nature… The constitutional restriction imposed on the legislature is the one provided in the limitations clause’ (HCJ 2334/02 Stanger v. Knesset Speaker [60], at pp. 794-795).

 I shall therefore focus on the proportionality test.

The proportionality test

21. ‘The violation of the rights of the prison inmate is subject to the general test of proportionality’ (Tzemah v. Minister of Defence [5], at p. 266 {662}). The proportionality test should be examined against the background of the purpose of the law. I agree with the position of my colleague the president that the purpose of the law is an economic purpose combined with an attempt to improve prison conditions, and that this is a proper purpose (see para. 45 of her opinion; on the urgent need to improve prison conditions in Israel see HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at paras. 12-14 of the opinion of Justice Procaccia). The question is whether the measure chosen in the law — a massive privatization of the power of managing the prison, including a predominant element of discretion when exercising authority — is a proportionate measure for the purpose of realizing the aforesaid purpose. In my opinion, the key to answering this question lies in the second subtest and the third subtest of proportionality and how they interrelate. I should point out here that I agree with the determination of my colleague the president that the supervisory measures set out in the law are incapable on their own of achieving a proportionate balance with regard to the law before us (para. 43 of her opinion).

22. The second subtest of proportionality (the least harmful measure test) stipulates that of the possible measures that realize the purpose of the legislation, the measure that violates the constitutional right to the smallest degree is chosen: ‘The legislative measure is compared to a ladder, which the legislature climbs in order to achieve the legislative purpose’ (Israel Investment Managers Association v. Minister of Finance [7], at p. 385).

As we have said, we are dealing with a law in the field of Israeli criminal law. Within the context of the question of proportionality, we need to examine ‘the question of whether there are alternative less harmful measures that achieve the purpose which the provision of criminal law is intended to promote’ (M. Gur-Arye, ‘The Effect of the “Constitutional Revolution” on Substantive Criminal Law Following the Silgardo Judgment,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 325, at p. 330). From the state’s position it can be seen that in the course of preparing the law, a ‘softer’ option that the model that was finally adopted in the legislation was considered. This ‘softer’ option is based on the ‘French model’ of privatization (in the sense of ‘outsourcing’), in which the concessionaire is given powers to build and operate the prison on a regular basis (maintenance, food, laundry, providing medical services), whereas the powers of management, security and discipline enforcement in the prison are retained by the state (hereafter: ‘the French model’; details of the French model appear in the ‘Knesset’s position’ that was filed in this court, in paras. 118 and 121-123). Section 2 of the French law concerning services in a state prison (Loi n°87-432 du 22 juin 1987 relative au service public pénitentiaire) provides that the state may authorize a private enterprise to build and operate a private prison, provided that it is not given powers relating to management, record-keeping and surveillance of inmates.

The French model is one of a partial privatization rather than a complete one (see U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at pp. 102-103). This model may extend the scope of the ‘assistance’ that may be received from a private enterprise to include fields that are not technical, provided that these do not include the power to ‘manage the prison.’ It should be noted that the constitutionality of a law with a similar model of a ‘partial privatization’ was upheld by a majority in the Supreme Court of Justice of Costa Rica (see Sala Constitucional de la Corte Suprema de Costa Rica, Sentencia N. 2004-10492 de fecha 28 de septiembre de 2004), which is discussed in J. Troen and L. Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions (Knesset Research and Information Centre (10 August 2006)), at pp. 21-25; see also the Knesset’s Position, at paras. 258-268).

The main reason given in the state’s pleadings for rejecting a model similar to ‘partial privatization’ is that on the basis of the experience accumulated around the world, it may be expected that there will be difficulties in operational collaboration and problems in the division of responsibility between the Israel Prison Service and the concessionaire (see para. 18 of the respondents’ response, as discussed in para. 48 of the opinion of my colleague the president). Against the background of this position, my colleague the president holds that the law satisfies the second subtest, since it is not possible to say whether the ‘French model’ will satisfy the purpose of the law to the same degree or to a similar degree as the model that was ultimately adopted by the law (para. 49 of her opinion). It will be recalled that the second subtest requires the less harmful measure to realize the purpose of the legislation ‘to the same degree or to a similar degree’ as the measure chosen by the legislature (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at paras. 88-89 of the opinion of President Barak).

23. In my opinion, the state’s argument for rejecting the ‘French model’ on the basis of ‘experience accumulated around the world’ is unconvincing. In Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], the state presented what constituted in my opinion weighty arguments for rejecting the alternative measure proposed in that case, and it proved that the proposed alternative was totally impractical in view of the security position (Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 20 of my opinion). In our case, the state did not present any such weighty considerations. The ‘partial privatization’ model, like the ‘French model’ has not been tried and tested in Israel ‘in the field.’ Comparative research shows that ‘softer’ models of partial privatization have been operating for years in European countries such as France and Germany (see Troen and Ben-David, Privatization of Prisons from a Comparative Perspective: Trends, Models and Constitutional Questions, supra, at p. 5; Harding, ‘Private Prisons,’ supra, at p. 274). Therefore, in my opinion, the state did not succeed in showing that the ‘French model’ cannot be implemented in Israel. Consequently, it is possible that it could already have been determined at this stage that the law is unconstitutional because it does not satisfy the second subtest. Notwithstanding, it would not be right, in my opinion, to decide the question of the second subtest on the basis of burdens of proof. The fundamental question of who bears the burden of proof at the proportionality stage has not yet been determined in this court, and there are different approaches on this subject (see Movement for Quality Government in Israel v. Knesset [19], at paras. 21-22 of the opinion of President Barak; although in that case the court reached the conclusion that the burden of proof regarding the second subtest rests with the state, see para. 69 of the opinion of President Barak). It should be recalled that ‘frequently there are several models that satisfy the requirements of the limitations clause. All of these fall within the “margin of limitations.” The choice between them rests with the legislature’ (Stanger v. Knesset Speaker [60], at p. 795). In view of the margin of appreciation of the legislature in enacting primary legislation, the state ‘passes’ the second subtest.

According to my approach, however, this does not mean that the state can simply ignore the ‘partial privatization’ model. The ‘partial privatization’ model may serve as a comparative basis when implementing the third subtest of proportionality. Neither the concessionaire nor the state denies the constitutionality of this model. According to the concessionaire, ‘for the purpose of adopting the French model, there was no need to make any legislative amendments, and it was possible to rely on existing legislation’ (para. 30.5.3 of the third respondent’s response to the petition); in a similar vein, counsel for the state said during the hearing before us, in reply to the court’s question why the state did not choose legislation along the lines of the ‘French model,’ that ‘this did not constitute a privatization at all, nor did it involve a transfer of powers… For this, not even the most prosaic delegation of power was needed; it is merely the purchase of services.’ The petitioners, for their part, argue that the ‘partial privatization’ model is the proper alternative:

‘There are other less harmful measures that realize the purpose underlying the passage [of the law]…. A partial privatization of powers that does not contain a predominant element of exercising sovereign power would achieve a similar purpose to the one achieved within the framework of a complete privatization as determined [in the law]… Therefore, this possibility should constitute an additional option within the framework of this constitutional test’ (para. 143 of the petition).

24. The third subtest is the test of proportionality in the narrow sense. This test focuses not only on the measure, but also on the violation of the human right (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [29], at para. 30 of the opinion of President Barak). This is an ethical test that requires the benefit arising from the realization of the purpose to be commensurate with the damage that is likely to be caused as a result to the constitutional right. As we have said, the petitioners, the state and the concessionaire do not deny the constitutionality of the ‘partial privatization’ model, and de facto it is not the subject of dispute (the ‘partial privatization’ model will be referred to below as: ‘the alternative’). In these circumstances, the question is whether the law is proportionate (in the narrow sense) in comparison to the alternative. This question is limited in scope since the balance is examined in comparison to the alternative. This was discussed by President Barak:

‘The test of proportionality “in the narrow sense” is usually applied with “absolute values,” i.e., by directly comparing the benefit of the executive act with the damage that results from it. But it is also possible to apply the test of proportionality in the narrow sense “relatively.” According to this approach, the administrative act is considered in comparison to a possible alternative to it, whose benefit is somewhat less than that of the original executive act. The original administrative act will be disproportionate, according to the proportionality test “in the narrow sense,” if a small reduction in the benefit obtained from the original act, for example by adopting the possible alternative, ensures a significant reduction in the harm caused by the original act’ (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [61], at p. 840 {297}; see also A. Barak, ‘The Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ The Barak Book — Studies in the Judicial Work of Aharon Barak (E. Zamir, B. Medina and C. Fassberg, eds., 2009) 39, at pp. 60-64).

Against this background, we should apply the third subtest in our case as follows: the question is whether the additional benefit in prison conditions and financial savings obtained by adopting the model ultimately chosen in the law rather than the alternative is commensurate with the additional violation of the personal liberty and human dignity of the inmates in a private prison.

From general principles to the specific case — is the enactment of the law rather than the alternative proportionate (in the narrow sense)?

25. Quantifying the ‘realization of the purpose’ side of the equation, namely the additional benefit in prison conditions and financial savings obtained by enacting the law as it stands rather than the alternative is a complex matter, and the tools available to the court for quantifying this are limited (see and cf. Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ supra, at pp. 328-329). The quantification should take into account, inter alia, the standard of the prison, the reduction in prison overcrowding, the cost of making the transaction with the concessionaire, the cost of supervision and regulation, the cost of unforeseen developments, etc. (see Mandelkern and Sherman, ‘The Privatization of Social Services Implementation in Israel,’ supra, at para. 2.4). There are opinions that we should also take into account in this context the cost of the harm to ‘social preferences,’ i.e., the fact that there are people who are ‘concerned’ that the service should be provided exclusively by the state:

‘There may be a basis for regarding the Israel Prison Service as a product that the whole public consumes, and by means of this product the public enforces the rule of law… The very fact that the Israel Prison Service is universal is a value in itself, for which we are prepared to pay. It is important to us that the government will have a monopoly on bodies that have permission to employ coercive measures on behalf of the state (such as an army, a police force, a prison service, etc.). These preferences are no less important than our preferences regarding consumer products that we actually consume… Social preferences should not be dismissed as being of less value’ (Fershtman, The Limits of Privatization, supra, at pp. 23-24).

It would appear that in the circumstances of the case before us, and in the absence of a sufficient factual basis for a decision, the quantification of the ‘realization of the purpose’ side of the equation does not lead to an unequivocal result. It cannot be determined that the enactment of the law as it stands rather than the alternative leads to a critical additional benefit in achieving the purpose.

26. By contrast, the quantification of the ‘violation of the right’ side of the equation leads to an unequivocal result. The enactment of the law as it stands rather than the alternative results in an additional violation of the personal liberty and human dignity of the inmates in a private prison that is clear and has ‘critical mass.’ Enacting the law as it stands rather than the alternative gives the private concessionaire sovereign authority to enforce the criminal law and to maintain public order, and it gives it invasive sovereign powers that involve the exercise of a large degree of discretion. Indeed, the scope of the (partial or complete) privatization is of decisive important for quantifying the violation of the constitutional right (see and cf. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 497). The aforesaid additional violation constitutes the main violation of the constitutional rights to personal liberty and human dignity. The extent of the violation of constitutional rights will be very greatly reduced by adopting the alternative to the law.

27. Therefore, in the balance between the realization of the purpose side of the equation and the violation of the constitutional right side of the equation when comparing the law as it stands to the alternative, the additional realization of the purpose of the law (in so far as there is any) is not commensurate with the additional violation of the constitutional rights of the inmates in a private prison. The conclusion is that the third subtest of proportionality is not satisfied, and it should therefore be held that the law is unconstitutional.

The constitutional relief

28. I agree with the conclusion of my colleague the president that there is no alternative to setting the law aside (para. 65 of her opinion). Nonetheless, I should point out that the finding that the enactment of the law as it stands rather than the alternative is not proportionate (in the narrow sense), such that it requires the law to be set aside, is a relatively moderate finding, since it leaves the legislature with a choice:

‘Despite the unconstitutionality of the law, in this situation the legislature is not left with no resort. It does not need to return to the situation that prevailed before the law was enacted. It is able to limit the “damage” of the unconstitutionality. It will do so if it enacts the alternative… [thereby] the whole benefit will not be realized and the entire damage will not be undone. But the partial realization may satisfy the legislature’s policy’ (Barak, ‘Fundamental Constitutional Balance and Proportionality: the Jurisprudential Aspect,’ supra, at p. 63).

Regarding additional tools for constitutional judicial scrutiny

29. In view of the president’s reasoning, with which I agree, there is no basis in my opinion for resorting to additional tools for constitutional judicial scrutiny and relying — as proposed by some of my colleagues in this case — on the basic principles of the legal system (see HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554) or on the social contract (see Movement for Quality Government in Israel v. Knesset [19], at para. 6 of Vice-President Emeritus Cheshin). In my opinion, these tools are a ‘last resort’ that should be used with care and great restraint, especially when the constitutional paradigm accepted in our legal system, which is built on the Basic Law: Human Dignity and Liberty and its limitations clause, leads to an identical result. The content of the social contract in Israel — as an idea that gives expression to society’s common denominator — is susceptible to various interpretations and there is no need for us to make a decision on this matter in the case before us (see and cf. the different opinions of President Barak and Justices Cheshin and Zamir in HCJ 164/97 Conterm Ltd v. Minister of Finance [13]). These tools require profound consideration with regard to the constitutional remedy that results from applying them. At the present time, it is sufficient in my opinion to use the social contract as a tool for the interpretation of the constitutional rights enshrined in the Basic Laws.

Summary

30. For the above reasons, I agree with the opinion of my colleague the president that amendment 28 of the Prisons Ordinance unconstitutionally violates the constitutional human rights of personal liberty and human dignity, and should therefore be set aside.

 

 

Justice E.E. Levy

1.    I regret that at this time I am unable to agree with the main conclusions that my colleagues have reached, or even with the result of their decision. I am of the opinion that this complex issue, with the question of its effect on basic human rights and other protected values, ought to be put to the test before we reach in this matter even those conclusions that the legal tools in our possession allow us to reach. If I have decided to speak further on the subject, it is because I am of the opinion that the judicial course that is the subject of this petition is extremely complex, and it ought to be properly clarified.

 The rights argument

2.    One of the main issues relating to the question of the privatization of prisons, in which I am in complete agreement with my colleagues’ position, is the need to guarantee the basic rights of the inmates. Admittedly, the act of imprisonment implies, almost as a purpose, a violation of the right to liberty, but this should not exceed the proper degree. And as for human dignity, this is given to every human being, prison inmates as much as anyone else. ‘When a person enters prison, he loses his freedom. A person loses his freedom, but he does not lose his dignity. A person’s dignity accompanies him wherever he goes, and his dignity in prison is the same as his dignity outside prison’ (per Justice Cheshin in PPA 4463/94 Golan v. Prisons Service [11], at p. 172 {529}). From this pair of rights one can derive a further right, which is the right to proper prison conditions, which has aspects of a social right that addresses the position of a prison inmate in society both before he is convicted and after he has served his sentence. As such, the state has a central role in realizing it: ‘Social rights have huge importance from the viewpoint of the weaker echelons of society, who particularly require help and protection from the public administration. Social rights require considerable involvement on the part of the public administration’ (I. Zamir, ‘Public Supervision of Private Activity,’ 2 Law and Business (Mishpat veAsakim) 67 (2005), at p. 85).

3.    It cannot be denied, however, that at the present, because of budgetary and other crises, the subject of imprisonment finds itself frequently relegated to a low place in the order of the government’s priorities.

‘It has become clear that the public administration is incapable of providing certain services at the required time and in the proper manner, including services that were until recently regarded as proper, and even almost essential, ones for direct administration. One reason for this is the budgetary crisis and national priorities’ (ibid., at p. 80).

In such circumstances, basic rights of persons under arrest and prison inmates are violated on a daily basis as a matter of course.

The heart of the problem is, in general, hidden from the public eye, and for many people it is a matter of no importance. But applications that are made to the courts shed light on it and portray quite a chilling picture of what happens in the prisons, despite the efforts of the Israel Prison Service to improve the situation. In one case my colleague Justice A. Procaccia described —

‘a serious picture of blatant departures from the minimum requirements for holding persons under arrest as determined in the law and regulations, especially with regard to the problem of overcrowding and overpopulation and the lack of sufficient living space for each person, sleeping on the floor without a bed, the lack of cleanliness and sanitary rules and the lack of sufficient ventilation’ (CrimA 7053/01 A v. State of Israel [62], at p. 511).

In another case it was found that ‘The Israel Prison service was compelled to have inmates sleep on mattresses on the floor, because of a serious shortage of prison places that currently exists in Israel’ (HCJ 4634/04 Physicians for Human Rights v. Minister of Public Security [10], at para. 5). Regarding this practice it was said in another case that ‘It is obvious that sleeping on the floor is not necessary, and it involves a serious violation of human dignity’ (per Justice Dorner in LHCJA 818/03 Zarka v. Israel Prison Service [63]). These are merely several examples; see also HCJ 5678/02 Physicians for Human Rights v. Minister of Public Security [64]; HCJ 1319/03 Israel Bar Association v. Minister of Public Security [65]; and HCJ 572/04 Barry v. Minister of Justice [66].

Year after year, reports of the Public Defender’s Office also reflect a very serious picture of the prison conditions of inmates in some of the prisons. Thus, inter alia, in a review that was carried out in 2008 of fifteen prison facilities of the Israel Prison Service, serious findings were discovered, which were summarized as follows:

‘At the facilities that were inspected, the staff of the Public Defender’s Officer noticed several serious violations of inmates’ rights. The picture that was obtained at some of the prisons is, inter alia, one of physical neglect and very difficult living conditions, major overcrowding and suffocating cells, and of buildings that do not satisfy the basic criteria required by law’ (The Public Defender’s Office, Arrest and Prison conditions in the Prison Facilities of the Israel Police and the Israel Prison Service in 2008, at p. 7 (Ministry of Justice Web Site).[1]

Not only in the field of infrastructure — a critical issue that lies at the heart of the question of privatization — have problems been discovered. In some prisons the persons making the inspection encountered —

‘complaints of violence of prison staff against inmates; extreme and collective disciplinary punishment; a shortage of basic equipment that exposes the inmates to the vicissitudes of the weather; problems in providing medical treatment for inmates; and problems in realizing the right to contact with family members, the right to meet with a lawyer and the right of free access to the courts… There is a serious shortage of therapy and educational groups for security inmates and preventative therapy groups for sex offenders [and] a shortage of positions for social workers’ (ibid.).

More tangibly —

‘In the isolation wing, the inmates are allowed out of the cell once a day for a short time only, and the rest of the time they are shut up in their cell. Instead of a wash basin and toilets, the inmates receive one bottle of water per day and also another bottle and a bag for relieving themselves’ (ibid., at p. 30). ‘In the solitary confinement wing, there was a persistent and nauseating stench’ (at p. 26); ‘during the visit the staff of the Public Defenders’ Office saw many cockroaches running around the cells (ibid.); ‘in most of the prison facilities inmates are compelled to shower in the same place where they or their cell mates have recently relieved themselves’ (at p. 29); ‘lunch is dirty with a poor selection’ (at p. 42); ‘the walls of the room were all smeared with blood stains and splattered insects, which resulted from attempts to deal with the abundance of fleas that plagued the cell’ (at p. 46).

And in several recent cases we have addressed the well-known problem of protecting the life of the inmate, even when he is determined to take it himself. Can there be anything more important than this?

Indeed, even those who have concerns about the consequences of privatization will be compelled to admit that in the current situation the basic rights of inmates are being seriously violated:

‘Israel still has a number of prisons in unsuitable buildings and in a terrible physical state, completely unsuitable for holding prisoners and caring for them. In addition, there is severe crowding in Israeli prisons, that among other things results in hundreds of prisoners sleeping on mattresses on the floors of their cells. In these conditions, on the face of it, it is difficult to provide prisoners with the rights to which they are legally entitled’ (U. Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ 39 Isr. L. Rev. 81 (2006), at p. 100).

Justice H.H. Cohn also addressed this matter:

‘Most of the moral problems that I have mentioned derive from the very nature of imprisonment. I do not ignore the many important improvements that have been made and that are being made to prison conditions; and I am aware of the fact that in practice modern penology focuses on finding new ways of making further improvements to prison living conditions. But de facto the nature of imprisonment has not changed, and is not changing; while there are important improvements and amendments that give hope, there are also frequent deteriorations of greater or less seriousness, whether because of the ever increasing number of inmates and the terrible overcrowding in the prisons, or because of the lack of trained staff with sufficient and proper motivation in the Israel Prison Service, or because of the decline in moral and disciplinary standards among the general public. The lack of resources is exacerbated by the tendency (which is not only found amongst jurists) to cling to established practices and to be suspicious of innovations…’ (H.H. Cohn, ‘“Just” Sentencing — Thoughts After Judicial Service’ 1 Plilim — Isr. J. Crim. Just. 9 (1990), at p. 11).

4.    Amendment 28 of the Prisons Ordinance is an innovation. The arrangement proposed in it sought to contend with the problems that currently characterize the imprisonment of inmates. This arrangement is based on two foundations, which from time to time are associated with the idea of outsourcing executive activity and entrusting it to private enterprises: an improvement in professionalism, which is based on the assumption that private enterprises will succeed in doing what needs to be done better than government authorities, and economic efficiency, which is encapsulated in the ability to carry out the same tasks at a lower cost. Prof. Zamir explained:

‘In certain spheres, the service that the public administration provides to the public is not cost-effective, it is inefficient or it is simply not good. The reason is sometimes a lack of financial resources and manpower, but there are additional reasons. One possible reason is bad procedures or bad management. Another common reason is the employment of employees who are not of sufficient calibre, either because of low salaries or because of political considerations, or difficulties in dismissing careless employees’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 81).

Without resorting to unjustified generalizations, I would say these circumstances that are described by the learned Prof. Zamir are true of many of public services in the State of Israel. One does not need to study the matter in depth in order to understand that dealing with complex management tasks is often beyond the capabilities of government officials, and they do not have the same degree of success as persons in the private sector, who acquire — literally in both senses of the word — expertise in carrying out these tasks.

It is possible that scholars who called for a change in the situation were not thinking of an amendment of the kind that has been examined in this case. It is possible that the arrangement enacted with regard to the private prison is unsuited for the desired improvement. It is possible, as my colleague Justice Procaccia emphasizes in her comprehensive opinion, that granting the concession will exacerbate the present situation. It is possible that government officials that sometimes have difficulty in carrying out the task themselves, will have no less difficulty in properly supervising the activity of the private operator. It is possible that the state will not properly understand the dimension of accountability that remains its lot even after the concession is given to the private enterprise. Prof. Zamir also wrote this: ‘There are already signs of an awakening to the fact that privatization is not a magic solution to the problem of efficiency in public administration’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Moreover, research around the world shows there is a concern that privatization and its incentives will undermine motivation to rehabilitate inmates and will thereby contribute to an increase, rather than a decrease, in the number of offenders (Timor, ‘Privatization of Prisons in Israel: Gains and Risks,’ supra, at p. 83). There is an ongoing debate regarding the effectiveness (including in the economic sphere) of privatizing prisons (ibid, at p. 85). It has been argued that the existence of a private prison will increase the concern of an improper relationship between ‘big money’ and government (ibid., at p. 91). See also Y. Peled, ‘Crime Pays: What Can be Learned from the American Experience in Privatizing Prisons,’ 82 HaSanegor (The Defence Attorney) 5 (2004); N. Carmi and E. Gal, Crime and Punishment — the Privatization of Prisons: Position Paper (Report of Physicians for Human Rights, 2005). On the other hand, it is possible that these serious consequences will not materialize, as can be seen from other opinions and research, which, as my colleague the president has already noted, often rely on conflicting findings.

5.    It is fundamental in my opinion that my colleagues, who sought not to consider at this time the future state of the aforesaid rights, did not address all of the above. I am in full agreement with this approach. In my opinion, prospective constitutional scrutiny is possible only when there is a high probability — perhaps I should say a very high probability — that the assumptions underlying it will be realized. A concern of a future violation of a protected right can be used to prevent that violation ab initio — and it is better to prevent evil before it occurs (HCJ 531/79 Petah Tikva Municipality Likud Faction v. Petah Tikva Municipal Council [67], at p. 572) — provided that there is a sufficiently strong basis for this in current data. This is the reason why I have difficulty in reconciling myself to a position that is based on a potential violation of rights, when the chances that it will occur are not currently known.

6.    Indeed, the deliberations in this petition should focus on the current, rather than the future, violation inherent in delivering sovereign powers, and particularly the most fundamental ones, into private hands. I am prepared to agree that the privatization of prison services inherently exacerbates the violation of the dignity of the prison inmate. There is an element of humiliation in a person knowing that another, who is no different from him, is responsible for his imprisonment and exercises force to deprive him of what only the state usually has the power to deny, while that other is deriving a personal profit, which some say is considerable, from that imprisonment. I am also prepared to assume — and this requires further study of the conceptual basis of the idea of liberty that is comprehensively discussed in the opinion of my colleague Justice M. Naor — that imprisonment at the hands of a private concessionaire also exacerbates the violation of this important right. The essence of the matter lies in the idea connecting the power of the state to deny someone his liberty and the protection that he seeks against its being denied by another (a private individual), and in the words of the English philosopher John Lo>‘Men being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community…’ (John Locke, The Second Treatise of Government, chap. 8, para. 95).

7.    Two interrelated elements are subject to the scrutiny of the law that seeks to protect these rights: entrusting the power to private hands and the financial benefit involved therein. But before I discuss these, I will say that in my opinion it is a mistake — and in this I am in full agreement with my colleague Justice Procaccia — to think that the privatization naturally focuses on the economic interest of the concessionaire or on the savings in the state’s expenditure relating to the prisons. Not merely from the public perspective, although this is of paramount relevance, the privatization seeks first and foremost to realize the public interest in having a proper and efficient prison system. This can be seen from the introductory remarks of the draft law that ultimately became amendment 28 of the Prisons Ordinance:

‘The proposed arrangement is needed because of the crisis in Israeli prisons and the direct repercussions that this has on the conditions in which prison inmates and persons under arrest are  held, as required by the provisions of the Basic Law: Human Dignity and Liberty, and by the provisions of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996. The proposed law was drafted and formulated with a view to the main purpose — ensuring that giving the power to obtain assistance from the private sector will not harm the proper management and operation of the prison and the rights of the inmates, and that during the period of the contract with the private enterprise, the Israel Prison Service will carry out close supervision and control over it to ensure that it fulfils in every particular its undertakings under the agreement that will be signed with it and under the provisions of the proposed law’ (explanatory notes to the Draft Prisons Ordinance Amendment (Privately Managed Prison) Law (no. 26), 5764-2003 (Government Draft Law 73, 5764, at p. 270).

The economic incentive is merely a tool in the service of the public interest. The financial profit is merely a means of achieving the purpose of the amendment, which is an improvement in prison conditions and making the prison system more efficient. The degree to which it is possible to further this purpose depends, inter alia, on the incentive mechanisms stipulated in the arrangements with the concessionaire and on their proper functioning. There is therefore a similarity between the economic incentive given to the private concessionaire and incentives that influence the activity of government officials — promotion in salary and rank, recognition and decorations, professional training or the accumulation of pension rights. Even if I assume that the private concessionaire will always place his economic benefit first, the supervision of the activity of the private prison, which the public administration retains under its control, is solely a matter of the public interest. ‘Public supervision of private activity is intended to serve the public interest’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 72). This, in my opinion, is capable of mitigating the extent of the aforesaid violation of rights, but not eliminating it in its entirety.

8.    Let us return to what is the heart of the question under consideration, namely the judicial scrutiny of the constitutionality of the violation of human rights. This focuses on the question of a balance of benefits that requires us to compare the extent of the violation of inmates’ rights that is inherent in the actual privatization with the potential better protection of these rights as a result of that very same privatization. But what is the proper ‘geographic’ place (to use the term of Justice Y. Sussman in CA 404/61 Skivinskaya v. Uroshitz [68], at p. 363) for making this comparison of the benefits? It may be claimed that the proper place for making this comparison is at the stage of considering the violation of the right, when approaching the limitations clause but before entering into its conditions. Thus, if an executive act detracted from the protected right to a certain degree but at the same time added to it (or it is reasonable that it will add to it in the future), does this not mean that the right is not violated at all? And in the absence of a violation, there is no need to consider the conditions for legitimizing it, namely the limitations clause.

I cannot accept this approach.

Like my colleague the president, my approach also relies on the recognition that amendment 28 of the Prisons Ordinance should be examined by considering its effect on protected basic rights in the light of the provisions of the limitations clause. The balance of the benefit usually finds its main place within the scope of the last part of this clause — the test of proportionality in the narrow sense — which makes it possible to consider all the aspects of the violation of the right, not merely from within, i.e., the balance of the benefit and the damage that are directly related to the right, but also from without, i.e., those that encompass principles and interests that are external to it.

9.    Unlike my colleagues, however, I am of the opinion that there may be no need to make a comparison of the benefits that is naturally required for an ethical decision on whose outcome not everyone will agree. If it is found that the amendment of the Prisons Ordinance is incapable of achieving the purpose for which it was intended (the first test of proportionality), or, alternatively, if it is possible to point to an executive act that will violate the protected right to a lesser degree (the second test of proportionality), then it is possible to reject the executive act that causes the violation, irrespective of the complex question of whether ultimately it is a force for good or not. Judicial scrutiny ought to act in this way, especially where it concerns a law of the Knesset, which reflects decisions of the greatest importance, which in our case are decisions of economic and social policy that the legislature addressed in depth. Indeed, if it is possible (although this is not always the case) to base the judicial scrutiny of laws on clear reasons, which are not vague or the subject of dispute, it is best to do so. This is the case with regard to the type of test that is applied by constitutional scrutiny, and it is also the case with regard to the content of the test that is used in each individual case.

However this may be, the main point in my opinion is that the limitations clause does not provide a firm foothold when we are dealing with theoretical assumptions. As I have said, it requires a high probability that each of the elements that need to be considered exist. It is only natural that it should prefer an examination that can be placed in perspective. But for my colleagues this is unimportant, since it would appear that according to their approach the violation of rights resulting from the privatization is so serious that nothing can mitigate it. By way of analogy, even if the private prison were to promise a seven-day feast for everyone in it, this would not mitigate the degradation and loss of liberty that is the lot of those imprisoned in it, because they are at the mercy of a private concessionaire.

On this point also I cannot follow in my colleagues’ footsteps. Personally, I am of the opinion that another outcome of the comparison of benefits is possible, depending upon the manner in which the arrangement is implemented in the future. According to my approach, it is therefore not right to make the comparison at this time, but since we are dealing with a question that is basically an ethical one, I would like to make two comments in this regard.

First, whatever the attitude to privatization may be, it is not possible to ignore the fact — and this should be placed on the scales to counter the factors that oppose the privatization — that there are other cases where the privatization of core powers has already become firmly rooted in our legal system and it is clear that we have become reconciled to them (but see and cf. CrimA 4855/02 State of Israel v. Borovitz [37], at p. 833). One example actually comes from the field of sentencing. I am referring to the serving of a custodial sentence by way of unpaid work, which is enshrined in article B1 of the Penal Law, 5737-1977, and which is not necessarily served in state institutions but also in institutions that, although they do not operate on a profit-making basis, are defined as private. Another example is provided in the Treatment of Mentally Ill Patients Law, 5751-1991, which authorizes a district psychiatrist to hospitalize mental patients forcibly even in private hospitals (s. 9 of the law). An additional prominent example is that of administrative collection under the Taxes (Collection) Ordinance, in which various authorities are given a possibility of resorting to the assistance of private collection companies, and nothing need be said about the coercive force that they employ. We have also for many years reconciled ourselves to the de facto privatization of security services at public sites, especially in the last decade. And is not the reliance on defence counsel from the private sector, within the framework of the praiseworthy activity of the Public Defender’s Office, not a de facto privatization of a task that the state sought to take upon itself? The same is true of the implementation by private enterprises, in a manner that some claim also involves the use of coercive force, of the ‘Wisconsin plan’ for increasing employment (D. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ 30 Tel-Aviv University Law Review (Iyunei Mishpat) 461 (2008), at p. 473). It is possible to discuss the similarities and differences of each of the examples brought, but it is hard to ignore the weight that has already been acquired in our society by the privatization of sovereign powers, some of which are quite close to the core activity of the state.

Second, we should set against the concern of a disproportionate violation of protected rights the supervisory mechanisms that have not been omitted from the normative arrangements surrounding the operation of the private prison. Those provided in the amendment to the Prisons Ordinance can be divided into two main classes: internal supervisory mechanisms, namely the restrictions that apply to the activities of the concessionaire and its officers, and external supervisory mechanisms, namely the control exercised by bodies that are not a part of the prison management. The internal supervisory mechanisms are made up of several layers, where each layer adds a new element to the one before it, and all of them make up the complete system of control reserved for the state. The outermost layer gives the commissioner of the Israel Prison Service, with the approval of the responsible minister, the power to cancel the permit to operate the prison that was given to the concessionaire, when the concessionaire does not comply with the conditions laid down for it (s. 128I of the Ordinance). An additional layer concerns the identity and functioning of the prison governor, whose appointment requires approval and is subject to both continuous and periodic review (s. 128AJ of the Ordinance). At the same time, the governor is required to report to the chief supervisor on behalf of the Israel Prison Service of the use of various coercive powers against inmates, and of a concern of a breach of the duties that are imposed on the concessionaire’s employees (ss. 128O and 128S of the Ordinance). The third layer of control mechanisms imposes similar restrictions on the other employees of the concessionaire (ss. 128V-128X of the Ordinance). The external supervisory mechanisms deal with the duty to appoint supervisors for the prison, whose function is to ascertain that the concessionaire and its employees are in compliance with the terms of the agreement and the law, and they are obliged to make investigations in any case where a complaint is received from an inmate with regard to his prison conditions (ss. 128AF-128AG of the Ordinance). An additional supervisory mechanism lies in the definition of the privately managed prison as an audited body within the meaning of s. 9(6) of the State Comptroller Law [Consolidated Version], 5718-1958 (s. 128AO of the Ordinance). Finally the law provides, in article 10, a broad supervisory mechanism in the form of an advisory committee for prison inmates’ rights, rehabilitation, welfare and health, which has six members, including a retired justice of the District Court, a representative of the Public Defender’s Office, a representative of the Criminology Council, a social worker and a representative of the Prison Inmates Rehabilitation Authority. This committee may speak with prison inmates and receive from the concessionaire any information that it needs (ss. 128AS-128BA).

10. Alongside all of these, the agreement deals extensively with the services that the concessionaire is liable to provide, including therapy and rehabilitation, education, food, and religious and health services; the rights of inmates to furloughs, visits and the filing of claims and petitions regarding their prison conditions (appendix F of the agreement). An additional element in the agreement (appendix M, whose exact content was not brought before us, but which is discussed by the respondents in their response) provides criteria for examining the extent to which the concessionaire satisfies all the requirements. In this regard the agreement provides financial sanctions that will be imposed should the concessionaire not comply with targets or should an inmate die of unnatural causes (clauses 97-99 of the agreement). The agreement goes on to provide that if the prison is found to be unsuitable for inmates to live in, according to specified minimum conditions, the concessionaire will lose the payment for it. The respondents also claim there is a positive incentive mechanism, namely a payment to the concessionaire for strict observance of his duties, but I found no evidence of this in the text of the agreement submitted for our inspection. Finally, the agreement requires the concessionaire to permit Israel Prison Service authorities to conduct a professional inspection of the prison at any time (clause 91 of the agreement), and to establish a commission of inquiry for events that have major ramifications on its operation (chap. B5). In any case of an act, omission or breach of the agreement, the concessionaire is liable to the state and its representatives (clause 111 of the agreement).

In addition to the mechanisms that are addressed in detail in the amended law and the concession agreement, it is clear that the operation of an institution such as a privately managed prison — which is, at the very least, a dual-nature body and in my opinion is closer in status to an actual public body — is required to comply with the rules of administrative law. To these should be added the special rules for inmates’ appeals against interim decisions; the rules of private law, including the application of constitutional public law norms; and the provisions of the criminal law; all of these are additional forms of protection that are prima facie capable of filling the void created by the lack of the disciplinary provisions and the rules of ethics that apply to civil servants (see D. Barak-Erez, ‘Human Rights in an Age of Privatization,’ 8 Labour, Society and Law (Israeli Society for Labour Law and Social Security Yearbook) 209 (2001), at p. 214; D. Spivak, ‘The Rights of Prison Inmates and Arrestees in the Privatization Age,’ 95 HaSanegor (The Defence Attorney) 40 (2005), at p. 43; HCJ 731/86 Micro Daf v. Israel Electric Corp. Ltd [69], at p. 460; CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [34]).

If the question of financial incentives was discussed above, I should point out that I doubt whether the opponents of the law have taken into account in their decision an additional factor, which is that, in general, unlike the public administration in most respects, a private enterprise has no immunity against actions in tort. There is no basis, however, for deciding at this stage the question whether the umbrella of protection given to the state and its agents in the Torts (State Liability) Law, 5712-1952, can apply to the private concessionaire or not. In this matter s. 128K of the Ordinance, which states that ‘The provisions under this Ordinance or under any other law, which apply to a prison, prison employee or inmate shall apply to a privately managed prison, a prison employee who has a position therein or an inmate held in custody therein,’ may be relevant. On the other hand, see s. 128M of the Ordinance, which saw the need for an express provision that applies the provisions of the Penal Law, 5737-1977, to the concessionaire and its agents in the same way as it applies to civil servants. See also what is stated in the appendix to the concession agreement, namely that ‘The concessionaire knows that an inmate is entitled to file claims [in addition to inmates’ petitions] in the competent courts, on any matter and subject whatsoever (chap. 7, chap. C4: Inmates’ claims and petitions, clause 1.1, p. 769 of vol. 2 entitled ‘Appendix of Operating Services, part 1 (appendix F of the concession agreement — emphasis added)). However this may be, it is clear that the law of torts, whether its scope is the same as that applicable to a public authority or broader, has a significant effect when we are dealing with a private concessionaire that is motivated by economic considerations. Prof. Zamir wrote:

‘Even in the absence of public supervision there are legal arrangements that are intended to prevent a violation of rights and to compensate for such a violation. These are, inter alia, the law of contracts, the law of torts and the law of unjust enrichment. These laws make private supervision possible in a certain sense. The concern of a business enterprise that it may be sued in tort is likely, in certain circumstances, to be no less effective that a whole department of supervisors’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 91).

If I have seen fit to describe at length the supervision and control measures, it is because in my opinion a significant effort has been invested in these aspects from the outset, and this should be given weight when examining the amended law. Adding these to the range of tools in the law creates the complete final picture that is designed to ensure that the state has not divested itself of its powers but merely exchanged them for powers with a new content, namely that of supervision. These mechanisms of indirect government (ibid., at p. 89) should be examined on their merits. Their action needs to prove that it is effective. Their weight, in an age of privatization, is of paramount importance, since ‘the change that has recently taken place in the character of the state, the spirit of the free market, increases the importance of supervision’ (HCJ 7721/96 Israel Loss Adjusters Association v. Commissioner of Insurance [58], at p. 650). But not only is it too early to determine whether there is any basis for a concern that the limitations upon the operations of the prison at the moment will be transferred, possibly even with greater effect, to the field of supervision, but — and this is the main point — it is possible to increase the investment in their implementation before it is determined that the amendment to the Prisons Ordinance cannot stand.

11. My position, in brief, is therefore this: time will tell. It is possible that had this petition been brought before us several months after the arrangement began to be implemented, I would find that my colleagues, the majority justices, are right, and I would not hesitate to add my opinion to theirs. But it is possible that an improvement would take place in the miserable state of prison conditions in Israel, and then the law would satisfy the limitations clause and emerge from it crowned with a constitutional seal of approval. Moreover, it is possible that we would see, if only in part, a realization of the hope that the objects of the privatization, the concessionaires, will have the wisdom to not discharge their obligation to protect the rights of the individual (E. Peleg, Privatization as Publicization — Privatized Bodies in Public Law (2005), at p. 17), and the conflict between a policy of privatization and the protection of basic rights would no longer appear to be predestined. As I have already said, since judicial scrutiny cannot rely on vague assessments, my position is that it should be left to the proper time rather than the point in time in which we find ourselves today. We are therefore dealing with an egg that has not yet been laid. We do not yet know if the day on which it will come into the world will be a good one or not, nor do we know if it will be edible (Mishnah, Moed, Betzah ch. A).

I think that the rights argument is not only premature, but also does not properly reflect the nature of the main difficulty in the privatization of prisons. This difficulty lies in the intuition of many of the persons who consider this issue, and not so much in the discussion of rights. Prof. Dafna Barak-Erez wrote:

‘The question of the limits of privatization in constitutional law arises in two spheres. In the institutional sphere, the question is whether there are actions that cannot be privatized at all, since they are an integral part of the character of the state. In the field of rights the question is whether privatizations violate basic rights in a way that does not comply with the constitutional tests’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

Taking the bull by the horns — which is an essential element in any decision made by the court — therefore requires us to consider the institutional question, both from a fundamental viewpoint and also with regard to what it tells us about the areas where judicial scrutiny should be exercised in relation to Knesset legislation. Some of my colleagues discussed this question within the context of the issue of rights, since in their opinion the breach of the institutional principles in itself is capable of exacerbating the violation of inmates’ rights. But some of the reasons that were given in my colleagues’ opinion relied, as I see it, on the impropriety of the state divesting itself of its powers and its departure as a result from the basis on which a state is based, namely the idea of the social contract, which I shall consider now.

The political philosophy argument

12. According to Prof. Barak-Erez —

‘First, there is no consensus with regard to the definition of the minimum core activity of every state. The variety of opinions in this field is large. Some people give the state a monopoly on the use of coercive force; others give it a monopoly on acts that have elements of sovereignty; still others give it a monopoly on the role of supplying public commodities’ (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 493).

The question that lies at the heart of defining the powers of the executive branch in particular and of the state in general is a hard and complex one. Any discussion of it gives rise to many difficult and profound questions. Any decision on this issue involves ethical and moral outlooks. Its ramifications touch upon all walks of life, not merely legal ones. In general, it is best to leave it, inter alia, to philosophers and scholars of political science. But in view of the position that the privatization involves a violation that ‘lies in the field of the social contract on which the existence of the state is based’ (per my colleague Vice-President E. Rivlin, supra), it would appear that there is no alternative but to address this matter in brief.

The heart of the matter is the principle of state sovereignty. An accepted outlook is that the sovereign state contributes to the combined happiness of its subjects by guaranteeing their safety and welfare. It is also possible to say that each member of the community has ‘a civil genetic code,’ which leads him to define himself not only as an independent and separate entity but also as a part of a larger social-human fabric, of which the prime expression today is the sovereign state. An important theoretical basis for the principle of sovereignty lies in the concept of the social contract, which is a cornerstone in the life of modern civil society.

The theories of the social contract, which were developed during the seventeenth and eighteenth centuries, give an answer to the question why people chose to abandon the natural state and change over to the civil state, i.e., to membership of communities, and later a state. They describe a process in which, supposedly, human beings had the sense to realize that if they formed a society, they could protect their natural rights in the optimal fashion. Therefore they agreed to assign coercive power and the power to make decisions and adjudicate issues that they had as individuals to one entity — the state, which is called sovereign — and to look to it to act in accordance with their combined will.

Although it is quite old, the idea of the social contract has not lost its appeal, and it is also used with reference to political issues in the modern age. Notwithstanding, like most philosophical theories, its practical application is not at all simple. It admittedly equips someone who is seeking a broad conceptual outline, which is of unparalleled importance, to understand and analyze issues, but it does not provide a specific solution to them. It has been said in our case law that ‘the social contract is not a historical fact whose content can be determined, nor even a legal document, whose meaning can be debated. The social contract is merely an idea that gives expression to the ideal image of society’ (HCJ 164/97 Conterm Ltd v. Minister of Finance [13], at p. 340 {62}). In the case before us, the theory of the social contract makes it possible to hold a general discussion of the question of the state’s powers, including its most central ones, but it does not provide us, in my opinion, with a clear answer to the question of the privatization of prisons.

The primary explanation for this determination can be found in the supreme importance that some of the social contract approaches attribute to the legislature or to the actual acts of legislation. These are regarded by those approaches as the acme of the political entity, since they express the sovereign outlook and the combined will — a synopsis of the essence of the whole theory (Locke, The Second Treatise of Government, supra; Jean-Jacque Rousseau, Du contrat social, ou Principes du droit politique, 1762). And if this is the case, the idea of the social contract will not easily support the setting aside of a law of the Knesset.

Another aspect concerns the relationship between the sovereignty of the state and the manner in which it makes use of its powers. If the sovereign has a course of action which, if implemented, will further the safety and welfare of the citizens, not by leaving the stage but by replacing direct action with control and supervision, is it impossible that this method will be consistent with the concept on which the political framework is based? As I have already shown, supervisory tools that are properly exercised may be very powerful. Correct use of them, which is planned in the case before us, will not necessarily result in a reduction of the state’s sovereign power. This use will allow the state to keep in its possession a significant part of the sovereign discretion, the ability to make decisions and exercise discretion in important matters, and the supreme and ongoing duty to ensure that human rights, personal security and public order are preserved. Thus the state can go on to realize the purposes of its existence and carry out its duties faithfully. ‘A privatized state,’ in the words of Prof. Zamir, is not necessarily ‘any less of a state’:

‘The policy of privatization, which has the status of a conceptual approach or a social ideology, has left its mark on the way in which the proper relationship between the state and the citizen is conceived… According to this approach, the public administration does not need to provide services that the private economy is capable of providing efficiently and properly. Therefore, the main role of the public administration, alongside the provision of essential services that the private economy is unsuited to providing or is not capable of providing, is to supervise the provision of the other services by the private economy. In other words, according to this approach, direct administration should be limited, in so far as possible without undermining the quality of the service to the public, and should be replaced by indirect administration, which will ensure that the private activity does not harm the public interest. An accepted analogy in this context speaks of the ship of state; the ship contains both public administration officials and private individuals. According to this analogy, the public administration does not need to pull the oars, but should leave the rowing to private individuals, while it stands at the helm and navigates the ship in the correct direction… It is perhaps possible to call a state that is run in accordance with this approach a “privatized state”’ (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 82).

The modern state is a developing and changing entity, and the arrangements in force in it also reflect the changes in the times, without this implying that the state has lost its sovereignty. Prof. Zamir goes on to say:

‘The pendulum of services, which has for years moved from the private sphere to the public sphere, recently changed direction, and is beginning to move from the public sphere to the private sphere. There are those who say that the state is currently at a stage where it is changing into a new kind of state — a contract state. Notwithstanding, the state is not expected to lose its status as a main player in social and economic affairs in the near future’ (I. Zamir, Administrative Authority (vol. 1, 1996), at p. 34).

This is the place to consider the idea — which sometimes appears to be merely a wish, but this does not mean that we should not seek to realize it — according to which a proper pattern of privatization is one in which the private concessionaires are regarded as active partners of the organs of government (Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ supra, at p. 469), in such a way that adds weight to the duty of public trust. It adds but does not detract. Thus, the constitutional and administrative duties that apply to these concessionaires beyond their obligations in the private sphere will also become a part of the broad and extensive structure of the state (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra; G.E. Metzger, ‘Privatization as Delegation,’ 103 Colum. L. Rev. 1367 (2003)).

13. The ambivalence in applying the idea of the social contract to a concrete issue such as the one before us can also be seen from the writings of the main philosophers of the theory, inter alia in those passages that address the sovereign power to punish. The position of the English philosopher Thomas Hobbes, who was the first to lay the foundations of the theory of the social contract, is perhaps the closest to the position of the petitioners. In his work Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil, 1651, Hobbes listed what he called the rights given exclusively to the sovereign, including the right to punish, ‘which make the Essence of Soveraignty’ and therefore cannot be forfeited without an express renunciation of the sovereign power (Hobbes, Leviathan, chap. XVIII, para. 12). The task of administering punishment, which also includes the apprehension and imprisonment of offenders, was seen by Hobbes as the sole prerogative of public officials (ibid., at chap. XXIII), and he clarifies that he is speaking of agents of the sovereign — ‘Ministers, in that they doe it not by their own Authority, but by anothers; and Publique, because they doe it (or should doe it) by no Authority, but that of the Soveraign’ (ibid.). But in Leviathan there is another statement, according to which —

‘and whosoever has right to the End, has right to the Means; it belongeth of Right, to whatsoever Man, or Assembly that hath the Soveraignty, to be Judge both of the meanes of Peace and Defence; and also of the hindrances, and disturbances of the same; and to do whatsoever he shall think necessary to be done…’ (ibid., at chap. XVIII, para. 6).

Thus Hobbes apparently left in the possession of the sovereign the choice of the means to be used in realizing his goal. In any case, we should remember that Hobbes’s theories, in addition to the fact that they were written in the seventeenth century and were influenced by the historical circumstances of the time, also include outlooks that are not consistent with — and are even the complete opposite of — those of the modern democratic state.

I shall return to the philosophy of John Locke, the author of the Two Treatises of Government (1690). With regard to the power to administer punishment, he held that every individual who is a partner to the social contract should forfeit his power to punish others ‘to be exercised by such alone, as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on’ (Locke, Second Treatise of Government, at para. 127). Locke went on to say:

‘Of other ministerial and subordinate powers in a commonwealth, we need not speak, they being so multiplied with infinite variety, in the different customs and constitutions of distinct commonwealths, that it is impossible to give a particular account of them all. Only thus much… we may take notice of concerning them, that they have no manner of authority, any of them, beyond what is by positive grant and commission delegated to them, and are all of them accountable to some other power in the common-wealth’ (ibid., at para. 152).

It follows that there is no fundamental impropriety in the idea of assigning sovereign powers under certain conditions, and each community has different ways of realizing the social contract on which it is based.

I shall conclude this short and inexhaustive discussion by referring once again to the teachings of the Swiss-French philosopher Jean-Jacques Rousseau. In his aforementioned work, Du contrat social, ou Principes du droit politique (1762), he described the state as a combination of the strength, rights and wills of the individuals, and gave it the power to lead society to a life of peace and welfare, according to the general will. But even Rousseau did not explain the content of this general will, and it may be assumed that this was for the reason that it may change from time to time and from one society to another.

To the aforesaid I would add that although the importance of the social contract theory is not disputed, the many ideas relating to it are merely a part of a broad spectrum of ideas regarding political philosophy, and it has not infrequently been the subject of criticism. The Scottish philosopher David Hume, for example, argued in his work Of the Original Contract, 1748, that the social contract is nothing more than a conceptual development that was intended to justify the outlooks of its authors or to explain the prevailing political situation, but it lacks universal application. Hume thought that the basis for the existence of states is not a valid agreement between their inhabitants, which was never actually made, but the pragmatic realization of human beings that compliance with sovereign power is preferable to a state of anarchy. Therefore, civil societies continue to exist even when the sovereign who stands at their head does not meet the needs of the public in the optimal manner, and even when they are conquered by a foreign ruler (David Hume, ‘Of the Original Contract,’ in Three Essays, Moral and Political, 1748). Approaches of this kind can also be found in modern-day philosophers, who hold that the idea of the social contract does not correctly define the existence of the political society, which is not based on a real contract between its citizens (F. D’Agostino, ‘Contemporary Approaches to the Social Contract,’ in Stanford Encyclopedia of Philosophy (1996, revised 2008)). Much more could be written about the variety of outlooks concerning the proper image of the state, in which we could mention the approaches of socialist philosophy, according to which many activities of the state should not be abandoned to market forces, and by contrast libertarian philosophies that seek to reduce the scope of state intervention in the lives of individuals to a minimum. Thus there are different outlooks on both sides of the political spectrum.

The main point is that an attempt to rely on a general reference to the ‘social contract’ as support for an approach concerning the process of privatization will, in my opinion, have difficulty in succeeding. It is admittedly possible to speak of an ‘Israeli social contract’ (Peleg, Privatization as Publicization — Privatized Bodies in Public Law, supra, at p. 85), but then it will be necessary to give this idea content and outline its boundaries, so that it will be clear to what extent this or any other outlook is incorporated in the concept of privatization.

Even then, even if a strong basis is found for the position that the basic principles of political philosophy support the principle of leaving sovereign power — and especially its most fundamental elements — in the hands of the executive authorities, we shall still need a connecting link that explains in what way that a breach of this principle justifies judicial intervention in an act of legislation. This link may take the form of an express or an implied constitutional provision — possibilities that I shall now consider.

Arguments concerning constitutional values

14. The tools that are used for constitutional scrutiny are limited, and the reason for this is the restraint that this court has imposed on itself with regard to intervention in the acts of the legislative branch. The far-reaching consequences of judicial intervention in a legislative act — the result of the democratic decision of the members of parliament, who are the representatives of the sovereign, i.e., the people — are what dictate this restraint. Unlike administrative scrutiny, which is exercised with regard to appointed government officials that are required to limit their actions to the narrow confines of the law and are not entitled to overstep the authority given therein, constitutional scrutiny focuses on the actual source of the law, either with regard to the manner in which it was enacted, or — which is more complex — with regard to its content.

Much ink has been spilled on the sources of constitutional scrutiny. At various points during its history — and not merely in the age of protected basic rights, as is sometimes thought — it has been a subject that has engrossed Israeli law. Contrary to what some people think, the courts, and especially this court, have acted with considerable restraint and with great caution in applying it. There are those who try to portray this involvement in constitutional scrutiny as a struggle of titans over the sources of influence and power. In reality, it is more similar to walking on eggshells. The great importance of legislative activity and of the activity of its source, the Knesset, runs like a golden thread through the case law of this court.

The constitutional idea was not invented by the Supreme Court. It was the Knesset that laid down the principles of the legal system in Israel. The mechanisms of entrenchment, both in form and in substance, were introduced into the Basic Laws by parliament. This court followed the instructions of the Knesset when it held that the Knesset and Local Authorities 5730 Elections (Funding, Limits on Spending and Scrutiny) Law, 5729-1969, violated the entrenchment provision in the Basic Law: the Knesset (HCJ 98/69 Bergman v. Minister of Finance [70]). It followed the instructions of the Knesset when it held that a list whose principles conflicted with what is provided in s. 7A of the Basic Law: the Knesset could not stand for election (EA 1/88 Neiman v. Chairman of the Elections Committee for the Twelfth Knesset [71]). The court followed the instructions of the Knesset when it determined that holding someone under military arrest for a protracted period (HCJ 6055/95 Tzemah v. Minister of Defence [5]) or that prejudicial transition provisions for regulating the occupation of investment management (HCJ 1715/97 Israel Investment Managers Association v. Minister of Finance [7]) were inconsistent with the limitations clause laid down by the Knesset in the Basic Law: Human Dignity and Liberty and in the Basic Law: Freedom of Occupation — Basic Laws that were deliberately drafted by members of the Knesset and that were enacted after comprehensive deliberations in the plenum of the Knesset and in committees.

15. There are different opinions regarding the theory underlying the restriction that the Knesset imposed on its power of legislation (CA 6821/93 United Mizrahi Bank Ltd v. Migdal Cooperative Village [8]; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28]). A case law rule that has been formulated, and which has been affirmed in a host of cases that have come before the courts in almost a decade and a half since, is that the Knesset has the power to restrict itself not merely with regard to the majority that is required to enact legislation or with regard to other aspects of the legislative process, but also with regard to the substance of the legislation.

Thus, if the decision in Bergman v. Minister of Finance [70] reflected what may be called the first constitutional age, i.e., restricting the legislature to its own instructions regarding formal entrenchment (and see also HCJ 410/91 Bloom v. Knesset Speaker [72]), following the human rights Basic Laws, and in accordance with the express instructions of the Knesset, the second constitutional age began, which is characterized by a recognition of the Knesset’s power to restrict itself with regard to matters of substance, for which the criteria are provided in the limitations clauses (s. 4 of the Basic Law: Freedom of Occupation and s. 8 of the Basic Law: Human Dignity and Liberty). This automatically led to the question of the status of the provisions laid down in the other Basic Laws in relation to ‘ordinary’ legislation of the Knesset. Justice I. Zamir addressed this for the first time in HCJ 3434/96 Hoffnung v. Knesset Speaker [3] with regard to the substantive restriction imposed by the principle of equality in the Basic Law: the Knesset. This is what he said:

‘Does one law apply to a violation of a basic right and another law to a violation of the principle of equality in elections to the Knesset? I tend to think that despite the difference in the language of the laws, in this respect there should not be a difference in the meaning of the laws. Indeed, equality in the elections is a central value, and it deserves maximum protection, like that of the most important constitutional values, like that of basic human rights, like that of human liberty and human dignity. But I do not think that equality requires absolute protection, beyond the protection given to basic human rights, since equality, like basic human rights, is not an absolute right… It may therefore be possible that there is a basis for saying that a violation of substantive equality, in the context of the elections to the Knesset, is a violation of the equality of opportunities that does not satisfy the threefold test: the values of the state, a proper purpose and proportionality. Such an interpretation will lead to a proper harmony between the laws that lay down the constitutional values, which the interpreter seeks to achieve’ (ibid. [3], at p. 70).

16. This idea has been adopted in recent decisions of this court and has become established case law. It has been held that by means of an analogy it is possible to import into the provisions of Basic Laws that do not relate to rights of the individual a ‘judicial limitations clause’ by means of which legislation will be examined in accordance with core values on which the Basic Law is based:

‘The threefold test of the limitations clause has been regarded by our judicial consciousness as a proper tool for examining the constitutionality of legislation. Now that it is one of the basic principles of our constitutional system, the court is entitled to apply it even when there is no limitations clause in the Basic Law in relation to which the legislation under scrutiny is being examined’ (per Justice E. Mazza in EA 92/03 Mofaz v. Chairman of the Central Elections Committee for the Sixteenth Knesset [73], at p. 811).

See also the interim decision in HCJ 3511/02 Negev Coexistence Forum v. Ministry of Infrastructure [74], at p. 106 {170}; HCJ 212/03 Herut National Movement v. Chairman of Central Elections Committee [75], at p. 755; HCJ 1435/03 A v. Haifa Civil Servants Disciplinary Tribunal [76], at p. 539; HCJ 4593/05 United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6 of the opinion of President A. Barak; HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Interior [28], at para. 53 of the opinion of President Barak.

This development led to a new chapter — a third age — in the constitutional law of the State of Israel (see A. Bendor, ‘Four Constitutional Revolutions?’ 6 Law and Government (Mishpat uMimshal) 305 (2003), at p. 306). In this, not only has it transpired that the Knesset, as the author of the Basic Laws, has the power to protect basic provisions by means of the tool of formal entrenchment, and not only does it have the power to protect basic rights against executive acts that violate them, but additional constitutional values enjoy substantive protection, the limits of which still remain to be ascertained. With regard to the constitutional protection of these additional values, it has been argued that the idea of a case law limitations clause, which derives its form from the limitations tool mandated by the Knesset in the human rights Basic Laws, has been raised until now in the context of values, which even if they are not enshrined in the Basic Law: Freedom of Occupation or the Basic Law: Human Dignity and Liberty, are conceptually related to the idea of the protection of rights. The following was said by Prof. A. Barak several years ago:

‘Indeed, the elevation of all the Basic Laws — and not merely those relating to human rights — to a super-legislative constitutional status requires a recognition of judicial limitations clauses in all those cases where these Basic Laws determine human rights… When the constitutional arrangement does not concern human rights at all, there is no reason to assume ab initio the existence of a judicial limitations clause and each case should be examined on its merits’ (A. Barak, The Judge in a Democracy (2004, Hebrew edition), at p. 352).

This qualification needs to be reconciled with the finding that constitutional scrutiny applies also to ‘government arrangements provided in a Basic Law (such as the Basic Law: the Government)’ (per President Barak in United Mizrahi Bank Ltd v. Prime Minister [77], at para. 6), and also to ‘a finding that is implied by the Basic Laws (such as a violation of the principle of the separation of powers and the independence of the judicial branch)’ (per President Barak in HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion). Personally, since I am of the opinion that the principle of the Knesset having the ability to restrict itself applies to all those values that the Knesset thinks should to be protected against the passing majority, on the one hand, and that no value is absolute but only relative, on the other, I see no basis for making a distinction between values relating to human rights and other important values. I am prepared to assume that a limitations clause, in the form accepted by our constitutional law, will apply in determining the limits of the protection of all those constitutional values, i.e., even those constitutional values that express an important public interest that does not involve rights. I will even say the following: I see no reason for concern that this will lead to basic rights losing their special status in our law (cf. the remarks of Justice Dorner in CrimFH 2316/95 Ganimat v. State of Israel [51], at p. 645). Obviously, not every public interest should be recognized as a constitutional value, and those that should can find their proper place relative to constitutional rights in so far as a conflict between the two will arise. In A v. Haifa Civil Servants Disciplinary Tribunal [76] the court did indeed consider, albeit in obiter, the difficulty that arises prima facie when an act of legislation is required to satisfy the tests of two limitations clauses in two Basic Laws that enshrine values that conflict with one another (see the remarks of Justice Dorner, ibid. [76], at p. 541). Notwithstanding, I am of the opinion that a solution to this problem can be found in the principle of constitutional harmony, which is presumed to lead to uniformity in the result of scrutiny of the law in relation to each of the limiting principles (and see the position of President Barak in that case [76], at p. 539).

17. I have only discussed all of the above for the reason that the basic principle on which the opposition to the privatization of prisons is based — that the sovereign authorities should have a monopoly on sovereign power — may be regarded as a basic constitutional principle even though it does not directly relate to human rights. The same is true with regard to the idea that undermining the symbols of sovereignty — for example by allowing prisons to be run by employees of a private concessionaire who will not wear state uniforms or don its symbols — may obscure the representative character of the state authorities, its image and its status as the source of the power to impose sanctions, thereby leading to a contempt for the law, enforcement and sentencing (D. Shichor, ‘Private Prisons in Perspective: Some Conceptual Issues,’ 37 Howard Journal of Criminal Justice 82 (1998), at p. 93; J.J. Dilulio, ‘The Duty to Govern: A Critical Perspective in the Private Management of Prisons and Jails,’ in Private Prisons and the Public Interest 155 (D.C. McDonald, ed., 1990), at p. 174).

However, within the framework of the construction that I have just discussed, the condition for this is that these and similar principles will find a foothold in one of the provisions of the Basic Laws (other than the Basic Law: Human Dignity and Liberty and Human Dignity: Freedom of Occupation). It might be argued that these principles are based on the provision at the beginning of the Basic Law: the Government, which states:

‘Nature

1. The government is the executive branch of the state.’

However, I think that some of my colleagues rightly pointed out that ‘there is a difficulty in finding a constitutional basis in s. 1 of the Basic Law: the Government for the power of imprisonment as a core government power that cannot be transferred’ (para. 3 of the opinion of my colleague Justice Hayut, supra), since it is ‘essentially a declarative section that is intended to establish in principle the role of the government in the Israeli constitutional system’ (para. 63 of the opinion of my colleague the president). I also think that it is going too far to introduce into this provision far-reaching institutional arrangements, which provide a basis for the existence of the political society and reflect protected constitutional values.

This conclusion can be seen, first, from the legislative history of the Basic Law. The discussion of the nature of the first section was brief and inexhaustive, and as can be seen from the Knesset debates before the Basic Law was enacted, s. 1 was intended to be a ‘declarative section that does not intend to exhaust all of the functions of the government’ (minutes of the subcommittee of the Constitutional, Law and Justice Committee of the Knesset of 29 Shevat 5728 (28 February 1968)). From the drafting of the other clauses of the Basic Law, which sometimes are phrased in no uncertain terms, it can be seen that when the Knesset wished to do so, it knew how to define the powers of the government precisely and specifically.

Second, and more importantly, the meaning of the section may be seen from the way in which our law works in practice, which is not consistent with the explanation give by the petitioners. Prof. Zamir said:

‘The impressive declaration [in the aforesaid s. 1] is imprecise. If it intends to say that the government has the role of implementing laws, as opposed to legislative and judicial functions, it is imprecise, since the government often carries out legislative and judicial functions also. If it intends to say that only the government implements the laws, this too is imprecise, since additional bodies are involved in the implementation of the laws… and if it intends to say merely that the government is the third branch of state, which completes the full complement of the branches of the state, this too is a description that leaves something to be desired, since the government is only a part, albeit a central part, of the third branch’ (Zamir, Administrative Authority, supra, at p. 328).

Even if I read the provision of s. 1 literally, in a parliamentary democracy the executive branch is the branch responsible for the implementation of the norms that are determined by the legislative branch (see Locke and Rousseau, supra; E. Rubinstein, Paths of Government and Law (2003), at p. 92; M. Cohen, General Powers of the Executive Branch (2008), at p. 8). If the Knesset determined, therefore, that the government would transfer a part of the power of imprisonment to private enterprises, and that instead it would focus its activity, as the executive branch, on the control and supervision of those enterprises, without losing its power to cancel the privatization process at any time, I find it hard to understand how this conflicts with the constitutional role of the government. This does not mean that the Basic Law: the Government, including s. 1 thereof, does not enshrine constitutional values, but merely that ascertaining what those values are goes beyond the scope of this case, and should be left to the proper time. In this regard, the remarks of Prof, Barak-Erez are apt:

‘Of course, the Basic Law enterprise has not yet been completed, and those Basic Laws that exist do not address the question of what are the issues that the state and its organs must administer and what may be entrusted to the responsibility or the implementation of private enterprises. In practice, it is hard to expect there to be detailed arrangements in this sphere, even if the work of the Basic Laws were completed. The constitutions of other countries do not contain concrete provisions regarding the spheres of activity of the public administration. Accordingly, decisions [concerning privatization] are usually regarded as policy decisions’ (Barak-Erez, ‘Human Rights in an Age of Privatization,’ at p. 211).

But even were we to follow the petitioners’ approach, then, in my opinion, we should put the proposed principle to the test of the judicial limitations clause, and this would lead to the conclusion that in the absence of data that we could scrutinize with the aid of this legal tool, the scrutiny is premature. If it were found, for example, that the proposed arrangement allows the government to retain in its possession a sufficient degree of control over the imprisonment of the inmates in the private prison, would it be possible to determine with certainty that this constitutional principle, according to the petitioners, has been violated? For these reasons, I am of the opinion that, even in a written constitutional provision in the same vein as the provisions that protect human rights, there would currently be no basis for setting aside the amendment to the Prisons Ordinance at this time.

The argument concerning the basic values of the legal system

18. A discussion of the fundamental problem that lies, in the opinion of many, in the delegation of the power of imprisonment to a private concessionaire, creates a basis for the belief that even in the absence of a written constitutional source the necessary outcome would be that the law should be set aside. It is therefore impossible to escape the conclusion that according to those who hold this opinion, an alternative proposition, that would serve to develop judicial tools of a kind that has not yet been accepted in case law, would allow judicial intervention to eradicate that fundamental problem.

An idea of this kind is not unrealistic. It is also not new. It has a clear and express foothold in remarks uttered in the past by justices of this court, in minority opinions or in obiter. The misgivings of Justice Barak in this regard in Laor Movement v. Knesset Speaker [44] are well known:

‘What is the validity of a law that conflicts with basic principles, such as the principle of equality? The question is relatively “simple” if the basic principles are enshrined in a rigid constitution or in an entrenched Basic Law. But what is the law if there is no rigid constitution, and there are no entrenched Basic Laws: is an “ordinary” law capable of determining an arrangement that conflicts with the basic principles of the system? … In principle and in theory, there is a possibility that a court in a democracy will set aside a law that conflicts with basic principles of the legal system… [but] according to the social and legal outlook that is accepted in Israel, the court does not assume this power to set aside a law that conflicts with basic principles of our legal system. It is not desirable that we should depart from our approach… at this stage of our national life’ (HCJ 142/89 Laor Movement v. Knesset Speaker [44], at pp. 551, 554, and see also the references cited there).

A similar conclusion was reached by President Barak in the yeshivah students case (Movement for Quality Government in Israel v. Knesset [19]), in which he said, as my colleague Justice Hayut has already mentioned above, that —

‘We should do all we can to decide questions of the constitutionality of a law that conflicts with basic values within the context of a decision regarding the constitutionality of the law in relation to a Basic Law. Israel is currently in the middle of a constitutional process that is being carried out through Basic Laws. Every interpretive effort should be made to decide the question of the constitutionality of the law within the framework of the arrangements provided in the Basic Laws’ (ibid. [19], at para. 73 of the opinion of President Barak).

But if at this time our ‘national life’ implies a different approach, an expression of this can be found in the position of Vice-President M. Cheshin, who considered in Movement for Quality Government in Israel v. Knesset [19] the constitutionality of the Deferral of Service of Full-Time Yeshivah Students, 5762-2002. In his remarks, which are consistent with his position in United Mizrahi Bank Ltd v. Migdal Cooperative Village [8], at p. 545, he said:

‘The legal pyramid is built on the fundamental values of society and the state. These values nourish at the roots the norms prevailing in the state, without which the state could not exist. Even the Knesset, which itself exists by virtue of those values, will bow its head before them. [We should recognize] a possibility — admittedly, an exceptional possibility — that the basic principles as such will decide a legal dispute that undermines basic values of the state’ (ibid. [8], at para. 11 of his opinion).

Vice-President Cheshin went on to consider the relationship between those fundamental values and the Basic Laws that had already been enacted:

‘The Basic Laws are the most exalted laws in the legislative and legal fabric of the state, both in their essence and partially also in their formal strength. This is the case, even according to those who think — and I am one of them — that the Knesset does not have constituent power. But even the Basic Laws are not at the summit of the pyramid, or perhaps we should say, at its lowest foundations. They are surpassed by basic principles in our lives — principles from which even the Basic Laws derive their life-force. These principles are principles of natural law and principles of the theory of Jewish democracy. These are what watch over us from the highest heights’ (ibid. [8]).

A similar expression of this idea served as the basis for the decision of this court four years earlier to the Bergman case in EA 1/65 Yardor v. Chairman of the Central Elections Committee for the Sixth Knesset [78]). There, admittedly, no law of the Knesset was set aside, but basic principles of the legal system resulted in the prospective frustration — in the sense of a ‘future voidance’ — of future laws ‘that undermine the existence or integrity of the state’ (ibid. [78], at p. 378).

19. It could be argued that recognizing the existence of basic values of the legal system as a tool for quasi-constitutional scrutiny is inconsistent with the positive constitutional arrangement, according to which what has not yet been included in the Basic Laws amounts to an expression that there is no constitutional protection for those missing values. Those who support constitutional theories that do not place the emphasis on the formal status of the norm, i.e., on the fact that it is written, but only on its content, would argue that this position should be rejected. This idea of a material constitution focuses on the identification of norms that inherently seek to realize the constitutional purpose, and for this reason alone they become a part of the constitution (see, for example, B. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ in Zamir Book on Law, Government and Society (Y. Dotan and A. Bendor eds., 2005) 583; S. Weintal, ‘Eternal Clauses’ in the Constitution: The Strict Normative Standard in Establishing a New Constitutional Order (Doctoral thesis, The Hebrew University in Jerusalem, E. Benvenisti (supervisor), 2005)). Thus, for example, theories will be proposed that regard the constitution as a means of expressing the economic and political theory on which a community is based, or a means of enshrining the narrative on which it is based, since anything that is a part of the constituent elements of that community will be considered a super-legislative norm, whether it is expressly listed in the constitutional provisions or not.

But it seems to me that resorting to these constitutional or quasi-constitutional tools has not yet found a firm foothold in our law. Adopting an approach of this kind amounts to the beginning of a new constitutional era, a fourth age, whose boundaries have not yet been sufficiently outlined, and the same is true of the criteria on which it is based and on the operative consequences of a decision within that framework (see Prof. Medina, ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ supra, at p. 666). In the yeshiva students case (Movement for Quality Government in Israel v. Knesset [19]), President Barak did indeed say that:

‘Even if there is a narrow field in which it is possible to examine the constitutionality of a law other than within the framework of the Basic Laws, this restriction on the power of the legislature applies in special and exceptional cases where the constitutional change undermines the essence of democracy and denies the minimum characteristics necessary for a democratic system of government’ (Movement for Quality Government in Israel v. Knesset [19], at para. 73 of his opinion).

But the characteristics of a scrutiny of this kind have not yet been discussed, and a limitations clause is not merely designed to limit the legislature, but also the scope of the constitutional scrutiny exercised by the judicial branch. We are therefore entering a legal field that has not yet been fully ploughed, and if it has been ploughed, it has not been fully sown, and if it has been sown, the time of harvest has not yet arrived, since this issue has only been addressed in a limited number of cases and has not become established case law. It is possible that it is also for this reason that my colleagues decided to focus their consideration of this case on rights, a very fertile soil which has been well cultivated in our legal system.

20. But if there is a difficulty in adopting at this time a constitutional position that examines the privatization of a prison from the perspective of the basic values of the legal system, it too is subject to a premature decision. The basic principles of the legal system, the constituent values, if you will, are not subject to perpetual immutability. Even if they are not exposed to the whims of passing trends, they develop and change just as a new page is written from time to time in the story of the nation. It is difficult, in my opinion, to accept the finding that an innovative idea of privatization, which only recently hatched in the nest of the law, is doomed by the basic principles of the legal system even before it has spread its wings. Were this idea given sufficient time, and especially if it were regarded as a success, who can say that it would not be welcomed and become an integral part of the accepted principles of our legal system, just as other expressions of the idea of privatization have been incorporated in it? It is also for this reason that, in my opinion, the issue at the heart of this petition should be left to be examined from a satisfactory perspective, which is not yet possible.

Moreover, if we are dealing with fundamental outlooks, is there no basis for the question of what the constituent values of our legal system would tell us with regard to the proper scope of judicial scrutiny? Is the approach that ‘Such an important and fundamental decision should be made — at this stage of our national life — by the people and its elected representatives’ (Laor Movement v. Knesset Speaker [44], at pp. 554) still valid for deciding this petition? This issue should be considered carefully before it is decided one way or the other.

The question of privatization as a policy issue and public debate thereon

21. I do not want my remarks to be understood as support for the idea of privatization, nor as expressing any reservation with regard thereto. One can conceive of arguments against this idea, such as the argument that the first to be harmed by it, as well as the first to be used by it as social ‘guinea pigs,’ will be the weaker elements of society (Zamir, ‘Public Supervision of Private Activity,’ supra, at p. 83, note 63). Like every case of privatization, it is possible to examine the issue from the perspective of the concern of a negative effect on work relations in the economy. And naturally, the question of its influence on the image of the state lies at the heart of the matter. But these claims, contrary to those that I discussed in the previous part of my remarks, basically amount to policy and outlook (see Dotan and Medina, ‘The Legality of Privatization of the Provision of Public Services,’ 37 Hebrew Univ. L. Rev. (Mishpatim) 287 (2007), at p. 330). As such, these arguments cannot be used — and, in my opinion, have not been used — by this court in its decision. This is not for the reason that the court does not make value-based decisions. We make these when we determine the proper model for defining a protected right (Prof. Medina in ‘“Economic Constitution,” Privatization and Public Finance: A Framework of Judicial Review of Economic Policy,’ at p. 648). We sometimes make these when we examine a violation of a protected right by means of the test of proportionality ‘in the narrow sense,’ or when striking a balance between it and the values of the State of Israel as a Jewish and democratic state. We make value-based decisions in additional contexts. But case law has always sought to keep away from decisions in which the weight of political policy is predominant:

‘The basic premise is that the role of legislation has been given to the legislature. It is the faithful representative of the sovereign — the people. The question is not whether the law is beneficial, effective or justified. The question is whether it is constitutional’ (per President Barak in Israel Investment Managers Association v. Minister of Finance [7], at p. 386).

Indeed —

‘The proper scope of the phenomenon of privatization [is] generally a function of an extra-legal worldview. Consequently, the decision concerning it should be made in the public arena, and in general it should not be removed from the political sphere to the legal one. It is important to maintain the distinction between presenting a civil outlook with regard to actions that should not be privatized and presenting a legal position with regard to actions that may not be privatized. Establishing legal restrictions of a constitutional character should not be the typical way of dealing with all privatization initiatives’ (Prof. Barak-Erez, ‘The Public Law of Privatization: Models, Norms and Challenges,’ at p. 466).

In this regard it should be emphasized that there has been great debate in recent years on the subject of privatization. The literature, both legal and otherwise, is considerable and it would seem that the public is not apathetic to what is happening. The subject has been discussed in the Knesset in proceedings that led to the enactment of the amendment to the Prisons Ordinance. The committee responsible for the law — the Internal Affairs and Environment Committee — considered the idea of privatization at length, together with representatives of a wide variety of bodies, including the Israel Prison Service, the Ministry of Finance, the Ministry of Public Security, the Ministry of Justice, the Attorney-General’s Office, the Association for Civil Rights in Israel, academics and even a representative of the petitioners. The deliberations focused not merely on the proposed amendment, but on a variety of subjects relating to the question of privatization in general and privatization of prisons in particular, including overcrowding in Israeli prisons, the likelihood of the idea of privatization succeeding and its economic efficiency, the supervisory mechanisms provided in the law and the question of how effective they will be, economic incentives in the agreement with the concessionaire and the degree of protection for inmates’ rights, as well as the nature and scope of the powers given to the holders of various positions in the private prison. Positions were heard from both camps, and one of the sessions was even devoted to a guest lecture of an expert opposed to the privatization (see the minutes of the meetings of the Internal Affairs and Environment Committee of the Knesset, between the months of December 2003 and March 2004).

In such circumstances as these, when, as I have said, the constitutional scrutiny is premature, my reply to the petitioners is that the ‘conceptual and mental process,’ to use the expression of Prof. Zamir (‘Public Supervision of Private Activity,’ supra, at p. 84), which is inherent in the decision to privatize a prison, should be left to the various fora of public debate. Whether ‘the needs of society and the ways of the leadership of the modern state should limit themselves to the legal frameworks of the past’ (per Justice M. Cheshin in HCJ 1074/93 Attorney-General v. National Labour Court [79], at p. 505), or whether they should find new tools should be left at this stage to the democratic dialogue. It is true that ‘Where the sovereign finds that social and economic conditions justify changes in economic policy by means of a privatization of public services, the sovereign’s right to implement such a policy should be recognized’ (per Justice D. Levin, ibid. [79], at p. 504), but only — I would add — when constitutional conditions so permit.

Finally, regarding the legislative proceedings

22. Rejecting the substantive constitutional argument, with its various aspects, makes it necessary to return to arguments raised by the petitioners in another sphere, with regard to the propriety of the legislative proceedings, and I shall do this briefly. No one denies that the court also has power to exercise judicial scrutiny over proceedings in the Knesset, where a fundamental flaw has occurred (HCJ 761/86 Miari v. Knesset Speaker [80], at p. 873); HCJ 975/89 Nimrodi Land Development Ltd v. Knesset Speaker [81], at p. 157). But when it does this, the court acts with caution and restraint, and it will not lightly set aside a law, which is as it should be, in view of the principle of the separation of powers and the exalted status of the legislative assembly (HCJ 4885/03 Israel Poultry Farmers Association v. Government of Israel [82], at p. 40 {408}).

The petitioners ended their petition with a claim that in the course of enacting the amendment to the Prisons Ordinance major defects occurred, and these go to the heart of the democratic parliamentary process. It was claimed that the sessions of the Internal Affairs and Environment Committee of the Knesset took place very frequently and with undue haste, which prevented the participants from assimilating the material and considering their position in depth. The holding of a tender by the respondents, in which they undertook to compensate the winners if ultimately the privatization process was unsuccessful, before the law was passed, tied the hands of the members of the Knesset, who no longer regarded themselves as free to consider rejecting the idea of the privatization in its entirety. The respondents even refrained, so it is claimed, from presenting to the Knesset the draft tender and the names of the companies that won it, and thereby they undermined the transparency of the legislative proceedings. Finally, in the vote on the approval of the law in the committee, members of the Knesset took part without participating in the deliberations, and one of the opponents of the law was even replaced by another representative of his party, who supported the law.

These claims do not give rise to a ground for our intervention in the content of the law that was passed. First, an examination of the minutes of the deliberations of the Internal Affairs Committee and the comprehensive proceeding that took place as set out above undermine the claim that the members of the Knesset did not succeed in understanding the nature of their decision. Second, even if taking steps to realize the draft law when it was still under consideration was inappropriate, there is no basis for the conclusion that advertising the tender prematurely tied the hands of the members of Knesset or affected their discretion in any other way. Third, this petition focused on the constitutionality of the law, as opposed to the legality of the tender proceedings, an issue that was the basis for another proceeding that took place in the District Court, and in that too the opponents’ claims were rejected. The failure to disclose the tender documents is therefore not a substantive matter, and I fail to see how the lack of disclosure led to a fundamental defect in the legislative proceedings that justifies judicial intervention. Finally, and most important of all, this court has held in the past — per my colleague President Beinisch — that the role of judicial scrutiny ‘is not to ensure that the Knesset carries out the optimal legislative process… [and] also not to ensure that the Knesset carries out a responsible and balanced process for each draft law’ (Israel Poultry Farmers Association v. Government of Israel [82], at p. 54 {426}). Judicial scrutiny limits itself to the elimination of a concern of a serious and blatant violation of the basic principles of the parliamentary system — a departure from the principles of majority decision, free voting, equality between voters and the publicity of the proceeding (ibid. [82]), and I have found no such violation in the case before us. In view of all this, the claims concerning defects in the legislative proceeding cannot stand, and should be dismissed.

Summary

23. ‘Before the court sets aside a law’ — Justice Zamir wrote — ‘it needs to take time to consider the matter, to examine thoroughly the language and purpose of the law and to ensure that it is absolutely convinced that it contains a problem that cannot be remedied’ (Hoffnung v. Knesset Speaker [3], at p. 67). I have not been persuaded, at this time, that the legislature passed a law that contains a problem that cannot be remedied.

It seems to me that this is a case in which it would have been better to have first exercised judicial restraint and allowed the Knesset, public debate and experience to have their say.

Therefore, if my opinion were accepted, we would deny the petition.

 

 

Petition granted by majority opinion (President Beinisch, Vice-President Rivlin, and Justices Procaccia, Grunis, Naor, Arbel, Joubran and Hayut), Justice Levy dissenting.

2 Kislev 5770.

19 November 2009.

 

 

[1]    See http://www.justice.gov.il/MOJHeb/SanegoriaZiborit/DohotRishmi for the reports for the years 2001-2008.

HCJ 2887/04

Salim Abu Madigam

and others

v.

1.         Israel Land Administration

2.         Ministry of Industry, Trade and Employment

3.         Ministry of Agriculture

 

 

The Supreme Court sitting as the High Court of Justice

[14 April 2007]

Before Justices M. Naor, E. Arbel, S. Joubran

 

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: In response to large scale incursions onto state land in the Negev by Bedouins and their planting of agricultural crops on that land, the respondents decided to destroy the crops by spraying herbicide from the air. The petitioners challenged this policy on the grounds that the spraying of herbicide was done ultra vires and also endangered the health and dignity of Bedouins in the vicinity of the spraying. The respondents denied that the herbicide used presented any risks to health.

 

Held: (Justice Joubran) The respondents have no power under the law to spray herbicide in order to prevent incursions onto state land. The policy of spraying herbicide from the air is therefore ultra vires. Additionally, the user instructions and warnings on the herbicide used indicate that the spraying of herbicide does involve a potential danger to health.

(Justices Arbel and Naor) The respondents have power under the law to enforce their property rights, and the law does not exclude spraying as a means of enforcing those rights. Therefore the spraying is not ultra vires. However the use of spraying to enforce property rights is disproportionate, in view of the potential risks to health and dignity that the spraying presents, even if only as a result of accidents.

 

Petition granted. Costs awarded by majority decision, Justice Naor dissenting.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, s. 8.

Basic Law: Israel Land.

Emergency Defence Regulations, 1945.

Israel Land Administration Law, 5720-1960.

Land Law, 5729-1969, chapter 3 article 2, ss. 18, 18(b), 21, 22.

National Parks, Nature Preserves, National Sites and Memorial Sites Law, 5752-1992, s. 60(a).

Penal Law, 5737-1977, ss. 336, 452.

Planning and Building Law, 5725-1965, s. 238A.

Plant Protection (Use of Herbicides) Regulations, 5729-1969, rr. 1, 5, 12.

Plant Protection Law, 5716-1956.

Public Land (Eviction of Squatters) (Implementation of Order) Regulations, 5765-2005, r. 4(a).

Public Land (Eviction of Squatters) Law, 5741-1981, ss. 4(a), 5(a), 5(c), 5(e).

Torts (State Liability) Law, 5712-1952.

 

Israeli Supreme Court cases cited:

[1]      HCJ 36/51 Het v. Haifa Municipal Council [1951] IsrSC 5(2) 1553.

[2]      LCA 4311/00 State of Israel v. Ben-Simhon [2004] IsrSC 58(1) 827.

[3]      HCJ 477/81 Ben-Yisrael v. Chief Commissioner of Police [1982] IsrSC 36(4) 349.

[4]      LCrimA 5584/03 Pinto v. Haifa Municipality [2005] IsrSC 59(3) 577.

[5]      HCJ 7611/01 Maccabi Mutual Insurance against Disease Cooperative Society Ltd v. Minister of Finance [2006] (3) 2680.

[6]      HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [1991] IsrSC 45(3) 678.

[7]      HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [1996] IsrSC 50(3) 2.

[8]      HCJ 492/79 A v. Ministry of Defence [1980] IsrSC 34(3) 706.

[9]      HCJ 297/82 Berger v. Minister of Interior [1983] IsrSC 37(3) 29.

[10]    HCJ 624/06 Ron-Gal Transport Ltd v. Minister of Education [2007] (1) TakSC 1174.

[11]    HCJ 528/88 Avitan v. Israel Land Administration [1989] IsrSC 43(2) 297.

[12]    HCJ 390/79 Dawikat v. Government of Israel [1980] IsrSC 34(1) 1.

[13]    HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (2) TakSC 1754; [2006] (1) IsrLR 443.

[14]    HCJ 1661/05 Gaza Coast Local Council v. Knesset [2005] IsrSC 59(2) 481.

[15]    HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[16]    HCJ 3939/99 Sedei Nahum Kibbutz v. Israel Land Administration [2002] IsrSC 56(6) 25.

[17]    CA 5964/03 Estate of Edward Aridor v. Petah Tikva Municipality [2006] (1) TakSC 2149.

[18]    HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[19]    HCJ 9593/04 Morar v. IDF Commander in Judaea and Samaria [2006] (2) TakSC 4362; [2006] (2) IsrLR 56.

[20]    HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [2005] (4) TakSC 49; [2005] (2) IsrLR 206.

[21]    HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [2006] (2) TakSC 1559.

[22]    HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [2006] (4) TakSC 3675; [2006] (2) IsrLR 352.

 

For the petitioner — M. Dalal.

For the respondent — O. Koren.

 

 

JUDGMENT

 

 

Justice S. Joubran

1.    This petition, in which an order nisi has been made, concerns the petitioners’ request to prevent the respondents continuing to spray from the air agricultural crops that are cultivated by Bedouin Arab citizens in the Negev (hereafter: the spraying), because according to the petitioners this spraying is unlawful and endangers human life and health, and in addition it is dangerous to the lives and health of animals in the vicinity of the spraying.

2.    Petitioners 1-3 live in the area of El-Arakib, south of Rahat and north of Beer-Sheba. The fourth petitioner lives in the area of Wadi Albakar, south-west of Sedeh Boker in the Negev. The fifth petitioner is a human rights organization that is involved in the field of public health. The main occupation of the fifth petitioner is to protect and advance health rights in Israel and the territories. The sixth petitioner is a non-profit organization registered in Israel that focuses on protecting the rights of the residents of unrecognized villages in Israel. The seventh petitioner is an organization of activists, including many academics, who are mainly from the southern part of the country. The eighth petitioner is a company registered in Israel, which seeks to increase awareness of the position of the Bedouin Arab population in the Negev. The ninth petitioner is an organization of activists whose purpose is to achieve equality and peace for everyone. The tenth petitioner is a registered non-profit organization in Israel, which is active in protecting the rights of Bedouin Arab citizens in Israel. The eleventh petitioner is a human rights organization whose main sphere of operations is to document human rights violations in Israel and to educate people to respect human rights. The twelfth petitioner is a registered non-profit organization, whose goal is to increase public awareness of the importance of the right to health. The thirteenth petitioner is a human rights organization whose main activity is to protect the right of the Arab minority in the legal sphere.

The respondents spray agricultural crops of Bedouin Arab citizens in unrecognized villages in the Negev. The spraying is carried out from the air, by means of airplanes, by or on behalf of the Israel Land Administration, in order to clear areas that have been unlawfully entered for the purpose of agricultural cultivation and planting crops.

3.    The petitioners claim that the spraying of the agricultural crops by the respondents is carried out from the air on crops of wheat, barley, corn and watermelons, as well as on people. No warning is given before the spraying occurs. According to them this is a very dangerous act, since the first respondent makes use of a ‘Roundup’ type substance for spraying the agricultural crops; this is a toxic substance and the respondents attach no importance to the disastrous repercussions that may ensue.

This led to the petition before us.

The petitioners’ arguments

4.    According to the petitioners, the Plant Protection Law, 5716-1956, authorizes the Minister of Agriculture to carry out pest control activities for one clear main purpose only, which is the protection of plants and the environment in general. We are speaking of a power and a course of action whose environmental and sanitation objectives are manifest from the language, purpose and normative context of the law. The power in the law is not given in order to achieve any purpose beyond the interest protected by that law, which is the environmental and sanitation interest. Therefore the petitioners argue that the action of the Israel Land Administration is ultra vires and its purpose is a complete violation of constitutional basic rights.

According to the petitioners, not only have the respondents carried out dangerous acts for which they have no authority in statute, but they have also sprayed from the air a substance that is not approved by the competent authority.

According to the petitioners, the respondents’ argument that the spraying is a legitimate act in its enforcement of rights under the laws of protection of ownership and possession under the Land Law, 5729-1969, should not be accepted. This is because s. 18 of the Land Law is not relevant, if only because the spraying carried out by the first respondent is not being done during the thirty days allotted by the law, even on the assumption that the respondent has the right to use force. Moreover, not only is spraying a measure that they are not permitted to use in order to enforce an alleged right, but it is also extremely unreasonable and disproportionate for the alleged purpose, even if it is justified, namely the enforcement of alleged rights in the land. After all, it is not permitted to endanger human beings and their environment solely in order to realize a conflicting property interest.

The petitioners also claim that the spraying being carried out by the first respondent has immediate and long-term negative repercussions on their right to life and their right to health.

The petitioners further claim that the spraying of the agricultural crops of Bedouin Arab citizens in unrecognized villages in the Negev is a blatant violation of the constitutional rights of those persons to dignity. The first respondent or people acting on its behalf are spraying agricultural crops, and in many cases people as well, with a substance that is dangerous and toxic to human beings, animals and the environment. This harmful and dangerous activity of the first respondent is being carried out without prior warning and without explaining the inherent danger in their activity to the persons who are being harmed by it. According to them, the respondents’ airplane looks down on the reality beneath it, but it does not succeed in seeing the small but significant details — neither the presence, nor the toil and certainly not the memory of the population that is being sprayed in the unrecognized villages in the Negev.

The respondents’ arguments

5.    The respondents argue that the State of Israel is confronting a serious problem whereby nomadic Bedouin inhabitants make repeated incursions onto land owned and held by the state in the Negev. According to them, the phenomenon of incursions onto state land in the Negev is characterized in many cases by ploughing and planting during the relevant season, after which the land is abandoned until the harvest season, when the same people return in order to collect the crops that they planted. This means that the act of incursion is expressed in the act of planting, which results in agricultural crops that are growing on land owned by the state. In some cases the incursions are made in order to build illegal sturdy structures, including the building of residential buildings, businesses, various factories or petrol stations, on a scale of thousands of buildings throughout the Negev.

According to the Israel Land Administration Law, 5720-1960, the duty to administer land belonging to the state, the Jewish National Fund and the Development Authority was entrusted to the Israel Land Administration. By virtue of its aforesaid duty, the Israel Land Administration is required to protect the state’s ownership and possession of its land in a way that will allow it to manage the land for various purposes according to objective considerations, in an equal and transparent manner, and in accordance with the objectives that are determined by the Israel Land Council. For this purpose the state acts in order to remove squatters from the land, with the assistance of other authorities. Of these the main one is the ‘Green Patrol’ that operates by virtue of government decision no. 6014 of 22 August 1995 and by virtue of an inter-ministerial agreement that was signed on 5 August 2001 with regard to determining the budget and regulating the activity of the Open Spaces Supervisory Unit (hereafter: ‘the Green Patrol’). The Israel Land Administration is also assisted by the Israel Police.

The supervisory and enforcement powers are given to the Green Patrol by virtue of s. 60(a) of the National Parks, Nature Preserves, National Sites and Memorial Sites Law, 5752-1992.

According to the respondents, in so far as the problem of incursions by means of seasonal planting on state land in the Negev is concerned, there is a need to use active force to realize the powers provided in the law in order to protect the rights of the state as the owner and occupier of the land, including the powers provided in article 2 of chapter 3 (‘Protection of Ownership and Possession’) and chapter 4 (‘Building and Planting on Land Belonging to Others’) of the Land Law, 5729-1969, and the powers provided by law in order to protect army firing ranges against incursions, since all the other possible methods of removing squatters who were cultivating state land without permission, such as signposts, warnings and lawsuits, achieved nothing.

The respondents claim that over the years the Israel Land Administration has tried various methods of realizing the aforesaid powers, including technologies for ploughing up land that has been planted illegally and spraying from the ground, but these have only met with limited success. The scale of the incursions has grown every year and the rate of removing the squatters cannot keep up with this increase. Moreover, the use of these methods resulted in friction between law enforcement officers and the squatters and their supporters, which resulted in physical injuries and damage to property, in addition to a concern that the situation would deteriorate and more widespread disturbances would ensue. For this reason, the operations required large-scale police participation for each eviction operation that took place on the ground. Since we are speaking of many thousands of dunams, carrying out the eviction operations involved considerable difficulties. These circumstances led to a reduction in the scale of the operations, so much so that they were completed stopped during the years 1999-2001. Moreover, the operations made considerable demands upon the Israel Police, which was called upon to deploy considerable manpower to support the eviction operations.

Therefore, in view of the great public interest in protecting the land resources of the state and in view of the problems encountered by the other law enforcement measures in confronting the phenomenon of incursions for the purpose of seasonal agricultural cultivation of its land in the Negev, the respondents decided that in appropriate cases it would also make use of the measure of spraying from the air, when the incursions onto open tracts of state land in the Negev occurred on a large scale.

According to the respondents, the use of the measure of spraying from the air, in order to vacate areas where incursions had occurred for the purpose of agricultural cultivation and planting, only began after the squatters by their conduct in the past caused serious disturbances of the peace, when the state tried to protect its property by other means such as ploughing. In these cases, on more than one occasion the state encountered violent behaviour on the part of the squatters, who resorted to force in order to try and prevent the ploughing operations that were used to remove squatters who were trespassing for the purpose of seasonal cultivation and planting. This violent behaviour led to physical injuries both to the persons carrying out the eviction and those being evicted. Disturbances of the peace led at that time to a complete moratorium on the part of the state in dealing with the phenomenon of incursions onto land in the Negev, because of the fear of violence and a concern that the situation would deteriorate and more widespread disturbances would ensue. As a result, the respondents argue that the state was compelled to search for alternative measures to physical ploughing of the land, by means of which it could protect its ownership of public land without conflicts and danger to human life, and spraying from the air was found to be a suitable alternative measure for this purpose.

The respondents also claim that the results on the ground show the effectiveness and the safety of the measure of spraying from the air in general, and particularly in view to the serious consequences of the other measures available to the state in the circumstances of the case, both in terms of efficiency and in terms of the physical injuries to which the persons concerned are exposed.

According to the respondents, the spraying activities are carried out by and on behalf of the state with authority and according to law, mainly by virtue of provisions of statute that allow owners of land and/or lawful occupiers to take action to evict squatters from it. They further claim that the operations themselves are carried out by a properly licensed operator, who abides strictly by the rules that set out the method of using the spray preparation ‘Roundup’ that it used in these operations.

With regard to the safety of spraying the crops, the respondents claim that the use of the sprays for various agricultural purposes, including for dealing with seasonal crops, is widespread and the ‘Roundup’ preparation that the state uses in the spraying operations is the most common herbicide in Israel and around the world.

According to the respondents, the use of spraying as one of the measures for dealing with the incursions onto the land for the sake of seasonal agricultural cultivation is an essential and necessary measure in the special circumstances of the case that relate to the incursions for the sake of seasonal agricultural cultivations of state land in the Negev.

The respondents further claim that there is no indication at all that the spraying operations from the air that the state has carried out have caused any health hazard at all. According to the respondents, if the petitioners had any proof of any real harm that gives rise to a cause of action in torts, they would undoubtedly have made use of it in an appropriate civil action. The fact that the petitioners have made no use of such an action until now speaks for itself.

The respondents further claim, with regard to the effectiveness of this measure, that experience shows that since the state began to make use of spraying from the air, there has been a real decrease in the scope of the incursions into its land in the Negev. At the same time there has been a decrease in the level of violence involved in the law enforcement operations to evict the petitioners.

Deliberations

6.    Are the spraying operations from the air that are carried out by and on behalf of the state on land that it owns and possesses in the Negev a legitimate tool for contending with the problem of incursions that are carried out by the Bedouin nomads? This is the main question that lies at the heart of this petition.

I will therefore consider this question.

The normative framework

7.    According to the Israel Land Administration, all of the inhabitants of the unrecognized villages are nothing more than trespassers in the area. It follows, according to the Israel Land Administration, that it has the right and duty to contend with this civilian population in order to protect the land.

In this regard, the respondents claim that the law permits several legal measures for dealing with situations of incursions onto land, some of which are common to all persons who own or have possession of land, including the state, and some of which are only available to the state. According to them, with regard to all owners and lawful occupiers of land, the matter is regulated in the Land Law, 5729-1969 (hereafter: the Land Law), in article 2 of chapter 3 (Protection of Ownership and Possession) and in chapter 4 (Building and Planting on Land Belonging to Others), and with regard to state land the matter is also regulated in the Public Land (Eviction of Squatters) Law, 5741-1981 (hereafter: the Public Land (Eviction of Squatters) Law). According to the respondents, as we have said, problems arose as a result of using agricultural methods of removing crops that were unlawfully planted on state land. They therefore wish to reduce the size of the forces and the time required to carry out the operations to evict squatters, and to avoid friction between the forces carrying out evictions and the squatters as much as they can, since in the past this has exacted a price in terms of physical injuries both to the law enforcement authorities and to the local population. Consequently the respondents decided also to make use of spraying from the air in appropriate circumstances.

I cannot accept this argument. Let me explain.

Incursions onto state land are certainly illegal acts that are intended to deprive the state of its right and duty to administer its land in accordance with the criteria and needs determined by the competent authorities. But the way in which the state deals with the phenomenon of these incursions by spraying from the air is not lawful, even though according to the state it observes all the instructions for using the pest control preparation with which the spraying is carried out.

Article 2 of chapter 3 (Protection of Ownership and Possession) and chapter 4 (Building and Planting on Land Belonging to Others’) of the Land Law, 5729-1969, are not relevant in the case before us, since spraying is a measure that cannot be used in order to realize any alleged right of the respondents. Pest control may not be used by anyone as a means of enforcing an alleged right, and this is especially the case when the person claiming a right has no authority to carry out pest control measures. The same applies also to the Public Land (Eviction of Squatters) Law, 5741-1981. Spraying in Israel, whether from the air or from the ground, is carried out in accordance with the Plant Protection Law, 5716-1956 (hereafter: ‘the Plant Protection Law’), solely for environmental and sanitation purposes.

The respondents’ claim — that because of the serious violence that the authorities in charge of protecting state land in the Negev encountered, they decided to carry out spraying operations to remove squatters from state land — should be completely rejected. As long as the respondents have not been given authority in statute to act by means of spraying crops in order to remove squatters, the respondents cannot protect state land and discharge their duties properly by carrying out spraying operations whenever they wish, even if they think that spraying is an effective measure for evicting the squatters.

With regard to carrying out operations to eliminate diseases, s. 2A1 of the Protection of Plants Law provides as follows:

‘Authority to carry out operations to eliminate diseases (amended: 5726, 5730)

2A1. (a) The Minister of Agriculture may carry out operations, throughout the state or in any part of it, in order to eliminate diseases, including the destruction of plants and associated items, whether infected or not infected (hereafter — pest control operations), if he sees a need to do so in order to prevent the spread of diseases, after consulting an advisory committee under section 9 on matters of pest control (hereafter — the pest control committee);

 

(b) If the Minister of Agriculture decides upon pest control operations, the pest control committee shall prepare, itself or by means of others, and approve a plan for carrying out the operations (hereafter — the pest control plan); the details that will be included in the plan, the conditions for implementing it and the ways of publishing it shall be determined in regulations.’

(Emphases supplied).

Moreover, r. 12 of the Plant Protection (Use of Herbicides) Regulations, 5729-1969, provides:

‘Prohibition of spraying from the air

12. Approval will not be given for the spraying of herbicides from the air, if in the opinion of the director [the director of the Plant Protection Department at the Ministry of Agriculture] a crop in the neighbourhood of the field being treated may be harmed.’

It follows that the authority to carry out pest control operations on plants is given to the Minister of Agriculture only and not to the respondents or anyone acting on their behalf. In addition, the specific purposes of the Plant Protection Law and the regulations thereunder concern health, sanitation and the environment, and they are intended to protect the health of human beings and the environment against potential hazards in plants. It is inconceivable that an authority should spray agricultural crops with chemicals in order to enforce its alleged rights in land. It would appear that the purpose for which the spraying is carried out is illegal. In these circumstances I am of the opinion that even though the state has the power to remove squatters from its land, this power does not include the activity of spraying the agricultural crops of the inhabitants of villages in the Negev, and these operations are being carried out ultra vires.

The dangers of spraying

8.    The first respondent is making use of a substance of the ‘Roundup’ type to carry out the spraying of the agricultural crops.

As we have said, the petitioners claim in their petition that the spraying causes irreversible harm, including a risk of causing birth defects and an increased risk of contracting cancer.

In reply the respondents claim, as we have said, that there is no indication that the spraying operations from the air, which the state is carrying out, cause any harm to health at all. According to the respondents, if the petitioners had any evidence of real tangible harm that gives rise to a cause of action in torts, they would have made use of it in an appropriate civil action. According to them, the fact that until now the petitioners have not filed such an action speaks for itself.

The petitioners filed two expert opinions in this court. These set out the serious risks of the spraying that is being carried out by the first respondent. The first opinion is that of Dr Eliahu Richter, a senior lecturer and head of the Environmental and Occupational Health Department at the Hebrew University; the second opinion is that of Dr Ahmad Yazbak, an expert in toxic substances who has a doctorate from the Chemistry Faculty at the Technion Institute in Haifa.

Dr Eliahu Richter sets out in his opinion the risks inherent in the use of a ‘Roundup’ type substance. According to him, we are speaking of risks to fertility, the causing of congenital defects and the danger that the substance is carcinogenic. Dr Richter summarizes in his expert opinion the risks that the ‘Roundup’ substance presents to human beings and the environment by saying the following:

‘Herbicides are unique in that they are the only chemicals whose purpose is to harm living organisms. Literature has shown a true potential for negative toxic effects on health, even if there is uncertainty with regard to the existence and seriousness of the effects of “Roundup,” as it is used, of glyphosate and of the inert substances. The evidence from research shows a risk to fertility as a result of exposure of fathers and mothers in animals and humans. There is a possibility that the substance is carcinogenic. There are testimonies regarding the effects on the ecosystem that harm the quality of the crops.

The criterion for protection should be the protection of the persons most susceptible to risk. Children — both born and unborn — are among those who are exposed to the spraying. Toxicological figures that are based on health risk figures relating to adult humans or adult mammals cannot serve as an index for children or infants that may be exposed in the case under discussion. Children, infants and foetuses develop rapidly, the facial area is greater relative to body weight, the kinetics and absorption ratios are higher per kilogram of body weight, there are no figures in epidemiological literature with regard to the effects of exposure in childhood for human beings since these risks have not been researched. These risks have not been researched because exposure of this kind is not supposed to happen.
The dispersion of herbicides or insecticides when spraying from the air near inhabited settlements is dangerous and should be stopped. A preliminary warning that may or may not take place is not a reason to disregard this finding since there is a possibility of exposure to residues after the spraying. Ground spraying with a machine may also cause dispersion, but not to such great distances as spraying from the air. Spraying from the air, depending on the height at which it is dispersed, the quantity, size of the particles and the method of spraying may result in dispersion over distances of several kilometres.

Without solid testimony that there is no risk, spraying herbicides from the air is clearly an immoral stratagem of human testing, where the subjects of the test, i.e., the inhabitants including children who are exposed to the spraying, are participating against their will.’

Dr Ahmad Yazbak states in his opinion that the dangers of the ‘Roundup’ substance include eye and skin irritations, more frequent abortions, nausea, breathing difficulties and more. The following is what Dr Yazbak says with regard to toxicity:

‘Toxicity

Several tests with glyphosate have shown acute toxic effects such as eye and skin irritation as well as effects on the circulatory system. Tests made upon rats resulted in LD50 values at 4,320 mg/kg bodyweight…

Surfactants often have more toxic effects then the glyphosate itself…

Skin and eye irritations are the most common symptoms. Table 1 shows a summary of chemicals used as surfactants in Roundup and other herbicides. The information about their toxic effect is obtained from tests made on animals.’

In reply the respondents argue that the use of crop sprays is done on an everyday basis throughout Israel for various agricultural needs, including for dealing with seasonal crops. The respondents supported this argument with an opinion of Prof. Gary Winston, the chief toxicologist of the Department of Environmental Health at the Ministry of Health. According to the opinion, the spraying operations that are carried out by the state do not present any health danger to human beings. Prof. Winston’s opinion relates to glyphosate, which is the active substance in the herbicides that the respondents claim were used for the spraying. Prof. Winston says in his opinion that of all the herbicide preparations, glyphosate is the most commonly used active substance in the world. In his opinion, Prof. Winston reviews various research that was carried out with regard to the effects of glyphosate on the skin, the risk of contracting a cancerous disease and the creation of congenital defects, and he shows that the effect of glyphosate on the skin is no greater than the effect of domestic cleaning substances and also that there is no connection between glyphosate and cancer. Prof. Winston also claims that various research works that have been carried out show that glyphosate has no mutagenic effect; in other words, it does not harm DNA.

I think that there is no need to make a decision with regard to the different opinions, since it would appear that the danger presented by the substance ‘Roundup’ to human beings and the environment can be seen from the user instructions and warnings that appear on the spray container itself, where it is stated that whoever uses that substance should take great care not to come into any contact with it. Moreover, the user instructions on ‘Roundup’ specifically state that this substance should not be used for spraying over fish tanks. The following are the user instructions and warnings that appear on the one litre container of the substance:

‘Warnings: Roundup may irritate the skin and eyes. The substance is dangerous to fish. Do not spray into fish tanks.

Precautions: All the precautions that are customary when using pest control preparations should be adopted. When dealing with the concentrated preparation, wear gloves and do not breathe in the fumes from the preparation. When spraying, wear clothes that cover all parts of the body. Do not eat and do not smoke when using the preparation. After spraying, wash all the parts of the body that came into contract with the substance with water and soap. Do not feed animals or enter a sprayed area within seven days of the spraying.’

The precautions on the one litre container of the spray substance Roundup go on to say:

‘User instructions:

…

Warning: Roundup attacks metals apart from stainless steel. Use only spraying devices that have canisters made of synthetic materials or stainless steel. Do not allow the spray or mist to come into contact with foliage and fruits of cultivated plants and tree trunks that do not yet have bark and all beneficial plants, fish tanks and water sources…’

The instructions on the Roundup spray container also say expressly that it is a toxic and dangerous substance: ‘Toxicity level IV — dangerous.’

In reply, the respondents argue that the relevant label for the Roundup preparation is the label that is approved for the 20 litre container, and not the label that was approved for the 1 litre container as claimed by the petitioners. According to the respondents, a reading of the label on the 20 litre container shows that, contrary to the representation made by the petitioners, the preparation is classified with the lowest toxicity level of a pesticide preparation and that the Roundup preparation, when it is in a 20 litre container, is also intended for spraying from the air. According to them, the label on the 20 litre containers includes various instructions concerning the volume of the spray that should be used when spraying from the air and the conditions of the area and the spraying where it is done from the air.

It seems to me, however, that the user instructions and warnings on the 20 litre container of Roundup are similar to the user instructions and warnings on the 1 litre container. The following are the instructions and warnings that appear on the 20 litre container:

‘All the precautions that are customary when using pest control preparations should be adopted:

When dealing with the concentrated preparation, wear gloves and protective goggles. Do not breathe in the fumes from the preparation.

Roundup may irritate the skin and eyes. When spraying wear clothes that cover all parts of the body.

Do not eat and do not smoke when using the preparation.

After spraying, wash all the parts of the body that came into contract with the substance with water and soap…

The substance is dangerous to fish. Do not spray into fish tanks.

Do not feed animals or enter a sprayed area within seven days of the spraying.

In the event of contact with skin, wash well with water. In the event that some substance was splashed into the eyes, rinse for 15 minutes with flowing water and have a medical check.’

In these circumstances it seems to me that it can be said that the risks of the Roundup spray substance can be seen from the user instructions and the warnings that appear on the preparation itself.

The respondents also point out that spraying from the air with the Typhoon preparation has not been permitted, but in view of the chemical composition of Typhoon, which they claim is based, like Roundup, on the active substance glyphosate, it is reasonable to assume that there would be no difficulty from a health perspective in obtaining its approval for spraying from the air. Therefore the Israel Land Administration says that from now on, in future contracts if there are any, it will take care to ensure that spraying from the air will be done only with preparations that have been approved for this purpose by the Ministry of Agriculture.

So far we have seen that not only have the respondents carried out spraying operations for which they have no authority in statute, but they even sprayed from the air a spray substance that was not approved by the competent authority, the Ministry of Agriculture.

9.    It should be pointed out that the United Nations Committee on Economic, Social and Cultural Rights, which addresses matters relating to the International Covenant on Economic, Social and Cultural Rights of 1966, determined in 1998 with regard to the inhabitants of the unrecognized villages that the spraying of the agricultural crops of those inhabitants deprived them of basic rights, including the right to health. On 4 December 1998 the committee determined the following:

‘28. The Committee expresses its grave concern about the situation of the Bedouin Palestinians settled in Israel. The number of Bedouins living below the poverty line, their living and housing conditions, their levels of malnutrition, unemployment and infant mortality are all significantly higher than the national averages. They have no access to water, electricity and sanitation and are subjected on a regular basis to land confiscations, house demolitions, fines for building “illegally,” destruction of agricultural fields and trees, and systematic harassment and persecution by the Green Patrol. The Committee notes in particular that the Government’s policy of settling Bedouins in seven “townships” has caused high levels of unemployment and loss of livelihood.’

Similar remarks were determined by the United Nations Committee on Economic Social and Cultural Rights on 23 May 2003:

‘27. The Committee continues to be concerned about the situation of Bedouins residing in Israel, and in particular those living in villages that are still unrecognized… the quality of living and housing conditions of the Bedouins continue to be significantly lower, with limited or no access to water, electricity and sanitation.

Moreover, Bedouins continue to be subjected on a regular basis to land confiscations, house demolitions, fines for building “illegally,” destruction of agricultural crops, fields and trees, and systematic harassment and persecution by the Green Patrol, in order to force them to resettle in “townships”.’

In the circumstances of our case, I have been persuaded that the Israel Land Administration is carrying out the spraying operations without having been given any authority in law, even if these operations are in its opinion effective in removing squatters from state land. The fact that there is a concern that these operations may cause harm to human life and health in the area being sprayed exacerbates the position.

10. In conclusion, and for all of the aforesaid reasons, I shall propose to my colleagues that the petition should be granted and the order nisi should be made absolute.

Moreover, in the circumstances of the case I shall propose to my colleagues that the respondents should be ordered to pay the petitioners legal fees in a sum of NIS 20,000.

 

 

Justice E. Arbel

1.    Between the years 2002-2004 the state made use of the measure of spraying from the air in order to remove agricultural crops

belcen E. Arbel, S. JoubranCabdwhere he said:is vein in CA 285/73ge whatever its source' 485/60 ute liability which Prof. I. Enthat were planted unlawfully on state land in the Negev by citizens of the state who are Bedouin nomads. The use of this measure was stopped in 2005 after this court made an order nisi that the state should not continue using this measure until we decided the petition that was filed in this matter.

2.    At the heart of the petition lies the question whether the state is entitled to carry out spraying from the air on agricultural crops as a means of dealing with the phenomenon of Bedouin incursions onto land that the state claims is owned by it.

The issue is very difficult. The decision in it requires a balance between conflicting values and interests, which is complex. On the one hand, we have the property interest of the state and its rights as the owner of land to protect the land and to prevent incursions onto it. This right is in fact also a duty — the duty of the state as a public trustee to administer the use of its land in a deliberate and logical manner and in accordance with the criteria and needs that were determined by the competent authorities. In addition to this interest, and of no less importance, we have the right and duty of the state not to give in to acts of lawlessness and violations of the rule of law, which are expressed in our case both in the phenomenon of the incursions themselves and also in the violent responses to the attempts to remove the squatters from the land. On the other hand we have the various rights of the Bedouin squatters, as citizens of the state, including their right to fair and proper treatment by the state authorities and preservation of their dignity, lives and health.

3.    My colleague, Justice Joubran, reached the conclusion that the spraying operations that were carried out by the state were done ultra vires, because the state’s authority to evict squatters from its land does not include a power to spray the agricultural crops of the Bedouin inhabitants in the Negev, and because use was made of a spray substance that was not approved by the competent authority, the Ministry of Agriculture. My colleague is also of the opinion that in view of the danger presented by the spray substance that the state used, which can be seen from the user instructions and the warnings that appear on the spray substance container, there is a concern that the aforesaid spraying operations may cause damage to human life and health in the vicinity of the area being sprayed. In view of this, my colleague is of the opinion that the petition should be granted and the order nisi should be made absolute.

4.    After lengthy and strenuous consideration, I too have reached the conclusion that my colleague reached, and I too am of the opinion that the petition should be granted and an absolute order should be made against the aforesaid spraying operations that are being carried out by the state. But I have reached this result by means of a different path from that of my colleague. Because of the complexity and importance of the issue that is before us, I too shall address the matter.

The background to the petition

5.    For many years there has been a dispute between the Bedouin population and the state authorities over the question of the ownership of extensive tracts of land in the Negev. We are not required to decide this dispute in the current petition. We are only concerned with one of the indirect consequences of it, namely the state’s decision to make use of the measure of spraying a pest control substance from the air in order to deal with incursions carried out by the Bedouin citizens by way of sowing and planting agricultural crops on land that the state claims belongs to it. It should be remembered that the petitioners’ position on this issue is that this is not land that belongs to the state, but land that is undergoing land settlement proceedings in which the question of ownership has not yet been decided.

6.    In response to the petition, the respondents describe in detail the situation that led to the decision to make use of the measure of spraying from the air in order to stop the incursions. I will state the matter in brief. According to the respondents, every year the state authorities, and mainly the first respondent, the Israel Land Administration, which has been given the responsibility of administering state land, are compelled to deal with a phenomenon of repeated incursions onto extensive tracts of land owned by the state in the Negev. One of the expressions of this phenomenon takes the form of incursions that are made by means of seasonal agricultural cultivation of state land. In some cases, the respondents point out, we are speaking of land that has been leased by the state to other Bedouin citizens who have been expelled by those squatters, and in some cases we are speaking of state land that has been declared army firing ranges.

In view of the clear public interest in preserving the limited land resources of the State of Israel, the state carries out operations to remove the squatters, by using all the legal measures available to it. With regard to those incursions that are made by means of seasonal agricultural cultivation of the land, since the act of squatting is reflected in the procedure of sowing and planting the agricultural crops, the incursion is dealt with by means of removing those crops, and the state acts in order to realize this purpose.

7.    In their reply the respondents made it clear that originally, until 1998, the agricultural incursions were dealt with from the land itself, by using agrotechnological methods, and especially tractors, that ploughed the cultivated land and thus removed the crops. According to the respondents, this measure proved to be ineffective: the scope of the incursions increased each year and the rate of removing the crops did not succeed in keeping up with the incursions. Moreover, another significant difficulty arose in the use of agrotechnological methods. Ever since 1995 the authorities who were involved in dealing with the incursions were required to contend with intense and violent opposition to the clearing of the land, which was accompanied by attacks on the forces carrying out the eviction, and on more than one occasion resulted in eviction operations being stopped before they were completed. Despite this, the eviction operations continued, albeit on a smaller scale. In 1998, the respondents claim that there was a serious deterioration in the violence towards the persons working for the authorities in removing the agricultural crops. Thus, for example, in one case before a planned eviction operation was begun on a parcel where there had been an incursion, groups of inhabitants gathered around that parcel and within a short time they began to act violently against the eviction forces by throwing stones and using private cars to trample policemen. These violent phenomena resulted in personal injuries both to the eviction forces and to the inhabitants, and because of a concern as to the safety and health of both parties, the authorities were compelled to stop the aforesaid eviction operations.

In view of the serious situation that had arisen on the ground, a reassessment was made with regard to the appropriate methods of removing squatters from state lands. Until a solution was found, because of the concern that violent incidents would reoccur, no activity was carried out in the years 1999-2001 in order to stop the agricultural incursions. As a result of the cessation of activity the scale of the incursions during that period increased significantly.

Eventually, because of the problems that arose in using the agrotechnological measures to deal with the incursions, because of a desire to reduce the size of the forces and the time required in order to carry out the eviction operations, and in order to avoid in so far as possible any friction between the forces carrying out the evictions and the inhabitants, as well as any injuries or fatalities, it was found that in the appropriate cases, i.e., with regard to large scale incursions that were at a safe distance from inhabited areas, the procedure of spraying from the air might be a proper alternative measure for protecting the state’s ownership of the land. As we have said, this is the measure that is under scrutiny in this petition.

8.    Now that I have presented the background, I will turn to examine the main issues that arise in the petition. The order that I shall address these is as follows: I shall begin by examining the provisions of statute relevant to the matter and the question whether the spraying operations carried out by the state were done intra vires. After that I shall consider the question whether these operations involve a violation of any basic rights of the Bedouin citizens. Finally I shall examine the question whether this violation was constitutional.

The normative framework — the question of authority

9.    It is a basic rule of administrative law and our legal system that administrative authorities may not act without being authorized to do so in statute or in accordance with statute. Administrative authorities only exist by virtue of statute and they have no right or authority unless it is provided in statute. Therefore every administrative act that is carried out by an authority should have direct or indirect, express or implied authorization in statute (I. Zamir, Administrative Authority (vol. 1, 1996), at pp. 49-54; B. Bracha, Administrative Law (vol. 1, 1997), at p. 35; B. Bracha, ‘Constitutional Human Rights and Administrative Law,’ Izhak Zamir Book — On Law, Government and Society (Y. Dotan and A. Bendor, eds., 2005) 161, at p. 167; HCJ 36/51 Het v. Haifa Municipal Council [1], at p. 1557).

10. The petitioners’ position is that the spraying operations were carried out by the state ultra vires. They argue that under the Plant Protection Law, 5716-1956 (hereafter: the Plant Protection Law), the authority to carry out pest control operations on plants is given to the Minister of Agriculture and not to the first respondent or anyone acting on its behalf, and it is given for health, sanitation and environmental purposes only. In other words, the power is given solely in order to protect the health of human beings and the environment against potential hazards from the plants themselves. Since this is the only law that regulates the use of herbicides, they claim that no use may be made of this measure for any purpose other than the purposes that underlie the power, including for enforcing the alleged right of the state in the land. According to them, the lack of authority to carry out the spraying operations also derives from r. 12 of the Plant Protection (Use of Herbicides) Regulations, 5729-1969 (hereafter: the Plant Protection Regulations), according to which no approval may be given for spraying herbicides from the air where it may harm crops near the field being treated, as in our case. The petitioners also claim that in the spraying operations the first respondent is committing the criminal offences set out in ss. 336 and 452 of the Penal Law, 5737-1977, which concern the use of a dangerous poison and deliberate damage.

11. The respondents claim in reply that the source of authority for carrying out the aforesaid spraying operations is not in the Plant Protection Law but in the provisions of law that permit the owner of land or someone who has lawful possession thereof to take action to remove an incursion onto his property. In particular the respondents mention the provisions set out in chapter 3 (article 2) and chapter 4 of the Land Law, 5729-1969 (hereafter: the Land Law) and the provisions set out in the Public Land (Eviction of Squatters) Law, 5741-1981 (hereafter: the Public Law (Eviction of Squatters) Law). With regard to land that is used as firing ranges, it is argued that the state has power to remove squatters under the Emergency Defence Regulations, 1945, by virtue of which the areas were declared closed military zones.

12. I will at once say that on this issue, unlike my colleague, I agree with the respondents’ position. Israeli legislation gives a landowner and someone who has lawful possession of land various legal tools to contend with an incursion onto the land. Some of the tools apply equally to all owners or persons who have lawful possession of land, including the state, and some apply only to the state. In our case the relevant provisions are those that permit the state, as the owner of land and by virtue of its lawful possession of the land, to act to enforce the law itself in order to contend with incursions onto its land. I shall review the relevant provisions in brief.

The arrangements in the Land Law

13. According to s. 18(b) of the Land Law, a person who has lawful possession of land may exercise reasonable force in order to expel a person who has entered the land unlawfully, on condition that the action is carried out within thirty days of the date of the incursion. On the considerations underlying this permission, Justice Procaccia said the following:

‘Although the Land Law clearly prefers a resolution of disputes by legal means, it recognizes the need, within narrow limits, to strike a proper balance between the recognition of a person’s natural need to take action himself to prevent interference by others to his property and the general public interest of limiting the use of force as much as possible in order to protect public safety. This balance characterizes the fact that the law recognizes a person’s human needs, which include the need to react naturally and immediately to a loss of possession of a property that occurs very soon after the act of interference. But this is countered by the recognition that resorting to self-help can be done in very limited cases only’ (LCA 4311/00 State of Israel v. Ben-Simhon [2], at p. 839).

The permission to adopt the measure of resorting to self-help to expel a squatter under s. 18 is limited to someone who actually had lawful possession of the land and was deprived of possession. Someone who has unlawful possession of land and someone who is entitled to possession of land but has not had actual possession of it may not resort to self-help under the section in order to take back possession; he needs to apply to the courts to obtain relief (State of Israel v. Ben-Simhon [2], ibid.). In addition, the use of this measure is limited to a situation where the fact of the incursion has a high degree of certainty, and it is only intended to allow a response to a ‘recent incursion,’ which is an incursion that took place no more than thirty days before the action is carried out (see for example HCJ 477/81 Ben-Yisrael v. Chief Commissioner of Police [3], at p. 353; State of Israel v. Ben-Simhon [2], at pp. 839, 846-848). As we have said, the permission to use force is limited to reasonable force only.

14. Whereas s. 18 relates to a situation in which ‘a person occupies land unlawfully,’ the Land Law recognizes that an unlawful incursion onto land may also be carried out by way of building or planting on someone else’s property. In this situation, s. 21 of the Land Law gives the landowner — whether he actually has possession of the land or not — the possibility of choosing between leaving the fixtures in place or removing them. If the landowner chooses to remove the fixtures, he is entitled to demand that the person who built them unlawfully should remove them from the land and return the land to its original state, and if that person does not do this within a reasonable time, the landowner may remove them himself, at the expense of the person who built them. We can therefore see that this section also gives the landowner permission to resort to self-help to protect his right in the land, without applying to the law courts to receive relief (Y. Weisman, Property Law (General Part) (1993), at pp. 157-158; according to Prof. Weisman, we are speaking of resorting to self-help in two respects: the first derives from the ability to remove the fixtures, and the second derives from the ability to recover the expenses of the removal by realizing the removed fixtures; see also M. Deutch, ‘The Law of Building and Planting on the Land of Others according to the New Civil Codex,’ Land D/2 17 (March 2005), at p. 19). It should also be noted that the right of the landowner to make the aforesaid choice is limited, according to s. 22 of the law, to a period of six months from the date on which he receives a written demand from the builder to choose one of the alternatives. Should the landowner not expressly choose one of the options, he is regarded as having chosen to keep the fixtures, and therefore he can no longer demand that the builder should remove them (see Weisman, Property Law (General Part), at p. 159).

The arrangement in the Public Land (Eviction of Squatters) Law

15. The permission in s. 18(b) of the Land Law to resort to self-help is given, as we have said, to every person who has lawful possession of land, whereas the permission to resort to self-help under s. 21 of the Land Law is given to every landowner. The state, as a landowner and as a lawful occupier of land, may exercise these powers like any private individual. Notwithstanding, the widespread phenomenon of seizing possession of public land has led over the years to the development of an approach that regards the general arrangements that we have described for removing squatters as insufficient where public land is concerned. The inability of the general law to deal with the realistic needs concerning public land are reflected in two main ways: first, in many open areas that are owned by the state, the state does not realize its right of ownership by actually taking possession of the land, and therefore it is not entitled to resort to self-help under s. 18 of the Land Law. Second, when we are speaking of public land, a long period of time may sometimes pass between the date of the incursion and the date on which the fact of the incursion becomes known to the landowner, and therefore in this respect also it is difficult with regard to public land to satisfy the requirement in s. 18 of the Land Law that the eviction operation should be a response to a ‘recent incursion’ (State of Israel v. Ben-Simhon [2], at pp. 841-842; see also the explanatory notes to the draft Public Land (Eviction of Squatters) Law, 5741-1980, Draft Laws 1484, 20; Weisman, Property Law (General Part), at pp. 270-271). The Public Land (Eviction of Squatters) Law, which was enacted in 1981, is designed to contend with these problems. It applies to Israel land as defined in the Basic Law: Israel Land, and to the land of local authorities:

‘… Special administrative needs that derive from the extent and location of state land and the need to protect it from incursions and thereby to protect an important public interest are what dictated the need for a significant broadening of the ability to act to remove squatters without going through the courts. It may be assumed that these measures were also needed in order to give the state an effective means of acting against mass incursions of large groups of people, without which it would be necessary to file individual legal actions against each member of the group, something that it would be very difficult to do. The protection of public land against incursions of trespassers and giving the public authority an effective means of dealing with this phenomenon are what led to the enactment of the law and giving the powers to issue evictions orders thereunder’ (State of Israel v. Ben-Simhon [2], at p. 842).

16. The Public Land (Eviction of Squatters) Law significantly extended the right of the state to protect its land by resorting to self-help (State of Israel v. Ben-Simhon [2], at p. 840). Originally the law gave the competent authority the power to make an eviction order against a squatter, which demanded that the squatter should remove himself from the public land and vacate it, and the status of this order was similar to the status of a judgment which can be implemented by means of the Enforcement Office authorities. But as the years passed, it transpired that even this power was insufficient. The enforcement authorities encountered significant difficulties in contending with the problem of incursions onto public land, and once again it was necessary to change the existing legislation in order to give the authorities improved tools for dealing with incursions and squatters (the explanatory notes to the draft Public Land (Eviction of Squatters) Law (Amendment), 5763-2002, Government Draft Laws 14, 169). Ultimately this need led in 2005 to a wide-ranging amendment of the Public Land (Eviction of Squatters) Law, which included, inter alia, the following changes:

First, the provision in the law that provided that an order made under the law had the same status as a judgment of a court was repealed. Instead s. 5(a) of the law now provides that should the date for the eviction or for vacating the land provided in the order pass and its provisions are not implemented by the occupier, the director is competent to instruct the supervisor to carry out the order, provided that more than sixty days have not passed from the date stipulated in the order for the eviction or for vacating the land. The instruction to carry out the order is conditional upon approval from the director of the supervision department at the Israel Land Administration, in the case of Israel Land, and upon the approval of the legal adviser of the local authority in the case of land belonging to that authority. Section 5(c) is particularly relevant to our case; it provides that in order to carry out the order the supervisor may enter the public land to which the order applies, remove from it any property and persons and take all the steps required to ensure the implementation and performance of the order. When necessary, the supervisor may even use reasonable force and receive appropriate help from the police for this purpose.

Second, the times within which the directors under the law are entitled to issue an order for an eviction and for vacating public land were extended. Whereas in the past the director was entitled to issue an order within three months of the date on which it became clear to him that the occupation was unlawful, and no later than twelve months from the date on which the land became occupied, under s. 4(a) of the law as it now stands the director may make such an order within six months from the date on which it became clear to him that the occupation was unlawful, and no later than thirty-six months from the date on which the land became occupied.

Third, a definition of the term ‘vacating public land’ was added to the law; this clarifies that the term includes vacating the land ‘of every person, movable property, animals, everything built and planted on it, and everything else that is permanently affixed to it’ (s. 1 of the law; on the Public Land (Eviction of Squatters) Law before and after the amendment, see A. Caine, ‘The Public Land (Eviction of Squatters) Law — Between Resorting to Self-Help and Administrative Enforcement,’ Land D/5 24 (September 2005)). The measures available to the competent authority for the purpose of removing fixtures from public land were also given greater detail and clarification in the Public Land (Eviction of Squatters) (Implementation of Order) Regulations, 5765-2005, which were enacted in the same year by the Minister of Justice at that time by virtue of her authority under s. 5(e) of the Public Land (Eviction of Squatters) Law. Regulation 4(a) of these regulations provides, with regard to fixtures that are found on the land when implementing the order that was made or at a later date, if they are not removed by the occupier in accordance with the order, that the supervisor may ‘remove them, destroy them, uproot them or do any other act in order to return the land, in so far as possible, to its original state prior to the occupation.’ It need not be said that ‘fixtures’ in this context also include plants or other agricultural crops that were sown or planted on the land.

17. As we have said, in this petition we are concerned with incursions onto land that are carried out by sowing and planting agricultural crops on land that the state claims belongs to it. The first question that we are called upon to decide is whether the measure of spraying the crops from the air, which was adopted by the state in order to remove the crops, was done intra vires. In order to answer this question, we need to determine whether the powers given to the state in order to prevent incursions onto its land, which derive from the provisions of statute that we have described, also include a power to carry out spraying from the air.

An examination of the relevant provisions of statute (ss. 18 and 21 of the Land Law and the aforesaid sections of the Public Land (Eviction of Squatters) Law) shows that the power to remove squatters is described by using various terms that all have the same meaning: according to s. 18 of the Land Law, the lawful occupier may ‘expel’ from land anyone who has seized possession of it; according to s. 21 of the Land Law the owner of the land may ‘remove’ from land any building or planting that was done unlawfully; and according to s. 5 of the Public Land (Eviction of Squatters) Law and the regulations enacted thereunder the competent authority is entitled to clear public land of fixtures, including plants, by destroying or uprooting them or by doing any other act in order to return the land to its original state. The authority is also entitled under this law to take all the steps that are required in order to ensure the implementation and performance of the order to remove the incursion. These provisions contain no express mention of the possibility of removing or evicting an incursion that was carried out by way of sowing or planting agricultural crops by destroying them by spraying them from the air. Should we infer from this that the aforesaid spraying operations were done ultra vires? I think not.

The question whether, when exercising a power granted to it by statute, an authority may make use of one measure or another, like the question whether a statute gives an authority a power that is not mentioned expressly therein, is mainly a question of interpretation of the statute (cf. Zamir, Administrative Authority, supra, at p. 256). This interpretation, like any interpretation, begins with the language of the law, continues with its purpose and ends — when applying the purpose to the text raises more than one interpretive possibility — with judicial discretion (A. Barak, Legal Interpretation (vol. 2, ‘Statutory Interpretation,’ 1993), at pp. 79-81). As a rule, it is obviously desirable that the powers of the administrative authority should be determined in statute expressly and specifically. But on some occasions the power of the authority is defined in relatively general terms or without the statute expressly stating the possible ways of exercising it. This kind of drafting is intended to allow the administrative authority to exercise its functions effectively (cf. Zamir, Administrative Authority, supra, at p. 257). It gives it the possibility of examining and assessing various courses of action and exercising its discretion in choosing the most appropriate one. Often the choice of a certain course of action is a result of changes in the realities and the development of needs that were not originally foreseen by the legislature. Sometimes it is a result of the conclusion that a certain measure that was adopted in the past has not realized its purpose as hoped and therefore it is necessary to adopt another measure in its stead.

18. In LCrimA 5584/03 Pinto v. Haifa Municipality [4] the court considered a question somewhat similar to the one before us. That case concerned a couple who carried out building works, without a permit, to take advantage of a storage area that was situated under their apartment. In response to these building works the chairman of the Local Planning and Building Committee made an administrative demolition order with regard to what had been built. In an application for leave to appeal that was filed by the couple, this court considered whether, in view of the fact that the chairman of the committee was competent to order the demolition, dismantling or removal of a structure that was built unlawfully, was he also entitled to order the performance of these operations by way of building (for example, by sealing up an entrance that had been made in a wall illegally), where this was required in view of the character of the illegal building. In order to decide this question, the court was required to interpret the provisions of s. 238A of the Planning and Building Law, 5725-1965, by virtue of which the demolition order was made. It was held (per Justice M. Cheshin) that the chairman of the committee was competent to make an administrative order that the building should be returned to its original state both by means of demolition — according to the narrow meaning of the concept — and by means of building. In examining the language of the statute Justice Cheshin said the following:

‘In everyday language, the words demolish, dismantle and remove have the meaning that the applicants claim, namely a meaning of destruction and demolition. But there are two main reasons for rejecting the applicants’ claim that the scope of these concepts should be limited in this context solely to destruction and demolition. First, these verbs are intended to describe the final result of an order of the competent authority, i.e., that the unlawful building will be destroyed, dismantled or removed, but the aforesaid verbs do not exhaust the spectrum of actions that can be carried out in order to arrive at the intended result. The concern of the law is that at the end of the process the illegal building will disappear as if it had never happened, and this is the result that the legislature ordered. The law is not concerned with the manner of the demolition’ (Pinto v. Haifa Municipality [4], at p. 584).

I am of the opinion that this approach is also correct in our case. As we have said, the relevant provisions of the statute speak in relatively general terms and do not expressly and unambiguously define the courses of action that the landowner is entitled to adopt in order to exercise his authority. Notwithstanding, an examination of the language and purpose of the provisions of the statute shows, in my opinion, that the legislation did not intend specifically to rule out the possibility of spraying. As in Pinto v. Haifa Municipality [4], so too in our case the provisions of statute are directed towards describing the final result of the operation, i.e., the removal of the incursion, and not necessarily the variety of operations that may be carried out to arrive at this result. The purpose of the provisions of the statute is to give the landowner or the lawful occupier of the land an effective means of contending with the incursion onto his property, which will allow him to frustrate the incursion and to return the land to its original state, subject to the restrictions of the statute that are intended to ensure that this measure is adopted only in the appropriate cases. Even though spraying is not mentioned in the statute expressly, I am of the opinion that as a part of the state’s power to remove and evict incursions onto its land, which includes the power to demolish and uproot fixtures that were attached to it, it may also destroy crops that were sown or planted on it unlawfully by way of spraying from the air, provided that this is done strictly in accordance with the procedures that are required by the use of this measure.

19. It should be emphasized, as we will make clear below, that in my opinion there can be no real dispute that the use of pesticides may involve risks, and for this reason it requires clear instructions and significant and satisfactory supervision. We can also not ignore the fact that originally this measure was intended for purposes other than the ones for which the first respondent made use of it. But I do not think that the fact that the Plant Protection Law gives the Minister of Agriculture power to carry out pest control operations to prevent the spread of diseases in plants completely rules out the possibility that this measure may also be used for other purposes by other authorities — subject, as we have said, to compliance with the conditions required by the actual use of pesticides. An interpretation of the kind that the petitioners proposed is also not supported by the explanatory notes to the draft Plant Protection Law (Amendment), 5726-1965, which introduced the power of the Minister of Agriculture to carry out operations to destroy diseases in plants (see the explanatory noted to the draft Plant Protection Law (Amendment), 5726-1965, Government Draft Laws 678, 63). We should also point out that r. 12 of the Plant Protection Regulations, on which the petitioners relied in support of their claim that the spraying operations were carried out unlawfully, is totally irrelevant to our case, since the pesticide that the first respondent used (Roundup) does not appear on the list of herbicides to which the regulations apply and for which spraying from the air is a use that requires approval under r. 5 (see also r. 1 of the Plant Protection Regulations, which lists the preparations that are considered ‘herbicides’).

20. In summary of what we have said so far, on the first question that we are required to decide — the question of the actual authority of the first respondent to carry out spraying operations from the air to destroy agricultural crops that were sown or planted on state land unlawfully — I have not found that the operations were carried out ultra vires. According to my approach, the first respondent and those acting on its behalf had the authority to carry out these operations, and this is enshrined in the provisions of statute that were described, and especially in the arrangement provided in the Public Land (Eviction of Squatters) Law and the regulations enacted thereunder. Since this is my conclusion, I shall turn to consider the question whether — as the petitioners allege — these operations involve a violation of human rights.

The question of whether there is a violation of basic rights

21. According to the petitioners, even if it is possible to say that the first respondent was authorized to carry out the spraying operations, the use of this measure should not be permitted because of the risk that it presents to human beings and animals that are exposed to the spray substance. According to them, spraying the Roundup substance, which the state used, involves a real risk to human beings who are exposed to the spraying: it is alleged that on an immediate basis the spraying causes increased tension, skin and eye irritations, breathing difficulties, dizziness, nausea and fainting. In the long term the spray substance may cause congenital deformities in children whose parents were exposed to the spray substance, fertility problems, miscarriages and an increased likelihood of contracting cancer. In addition, the spray is also dangerous to animals that are exposed to it, and these constitute a significant part of the food and livelihood resources for the citizens whose crops are being sprayed. According to the petitioners, even though the spraying is directed at agricultural crops, in many cases human beings are sprayed as well, without any prior warning, without any explanation as to the danger involved in exposure to the spray substance and without the relevant authorities having examined the repercussions of spraying human beings. According to the petitioners, the impression that this gives is that the respondents do not regard the Bedouin citizens as entitled to minimal human treatment, and the message that this conveys is degrading, humiliating and violates their dignity. In view of all this, the petitioners argue that the spraying operations clearly violate the constitutional rights of the Bedouin citizens to life, dignity and health, and this violation does not satisfy the conditions of the limitations clause prescribed in s. 8 of the Basic Law: Human Dignity and Liberty. It is an extremely unreasonable and disproportionate act and therefore the state should not, in their opinion, be allowed to use it.

22.  The respondents reject the petitioners’ position utterly and argue that there is no basis for their contention that the spraying operations endanger the life and health of human beings and animals in the sprayed area. First, the respondents emphasize that the spraying operations are not directed at human beings, but against incursions that are carried out by way of agricultural cultivation of land. The sole purpose of the spraying is to cause the plants and seedlings on the land where the incursions have taken place to wither, and the spraying is carried out solely on land where incursions have taken place on a large scale and the land is at a sufficient distance from residential areas. Second, the respondents claim that according to the opinion of the chief toxicologist of the Ministry of Health, the spraying operations that are carried out by the state do not give rise to any health danger to human beings at all and there is no indication that any harm to health has been caused as a result. The proof of this, according to the respondents, is that since the use of this measure began, no legal proceeding has been filed in which it is alleged that there has been any medical injury or loss of health as a result of the spraying, and therefore there is no judicial finding to this effect. In addition, the respondents say that spraying agricultural crops from the air is done throughout Israel on a regular basis, and they claim in particular that the Roundup substance that was used is the most commonly used herbicide in the world. In view of all this, the respondents’ position is that the spraying operations from the air do not violate any human rights of the Bedouin citizens.

23. Examining the question whether the spraying operations are capable of violating any rights of the Bedouin citizens in the Negev requires us first to consider the question whether these operations involve any risk. With regard to this question the parties presented us with three professional opinions. The petitioner submitted an opinion of Dr Eliahu Richter, the head of the Environmental and Occupational Health Department at the School of Public Health and Community Medicine at the Hebrew University, and an opinion of Dr Ahmad Yazbak, who has a doctorate from the Chemistry Faculty at the Technion Institute in Haifa and is an expert in toxic substances. In both of these opinions it is alleged that the spraying that was carried out involves a significant risk to the health of human beings who are exposed to it. In addition to this, the petitioners rely on the user instructions and the warnings that appear on the spray substance container, which also indicate the risk presented by the substance. The respondents, on the other hand, filed the opinion of the chief toxicologist of the Ministry of Health (the Department of Environmental Health), Prof. Gary Winston, who is of the opinion that there is no merit to the claim of any health risk to human beings that is involved in the spraying as it was carried out. Each of the three opinions relies on various works of scientific research that have been carried out on this issue.

Deciding between the opinions

24. Professional disagreements frequently occur in cases where questions of assessment and expertise arise, and therefore this is not the first time and it will certainly not be the last time that this court is required to decide between positions that are based on conflicting professional opinions on different areas of expertise (see, for example, HCJ 7611/01 Maccabi Mutual Insurance against Disease Cooperative Society Ltd v. Minister of Finance [5], at p. 2691).

Whenever a decision is required between the position of the responsible authority, which relies on experts that it has consulted, and the position of another party that also relies on the opinion of experts, a clear and unambiguous rule has been formulated in our case law over the years, according to which the court will tend not to intervene in a decision of the authority that is based as aforesaid on a professional opinion, even if there are opinions that present conflicting conclusions (see, for example, HCJ 2324/91 Association for Civil Rights in Israel v. National Planning and Building Council [6], at pp. 687-689; HCJ 1554/95 Shoharei Gilat Society v. Minister of Education [7], at pp. 21-23 and the references cited there). This rule is based on the recognition that where there is a genuine and real dispute between experts in what are clearly fields of professional expertise, the court is unable to research the issue on its own and to arrive at an independent conclusion on the matter (HCJ 492/79 A v. Ministry of Defence [8], at p. 713). It follows that the court will usually not intervene in questions that are clearly a matter of professional expertise unless the decision of the competent authorities reveals a clear and extreme departure from the margin of reasonableness. But where there is no reason or justification for preferring another opinion over the opinion of the competent authorities, this court will not replace the discretion of the authority with its own discretion nor will it intervene in its decision (see, for example, HCJ 297/82 Berger v. Minister of Interior [9], at p. 55 (per Vice-President Shamgar in a minority opinion); HCJ 624/06 Ron-Gal Transport Ltd v. Minister of Education [10]; HCJ 528/88 Avitan v. Israel Land Administration [11], at p. 305). The remarks of Justice Witkon in another well-known case are pertinent in this context:

‘It is well known that the courts are frequently called upon to decide questions requiring special expertise — an expertise that is usually not within the scope of judicial knowledge. We are presented with the opinions of respected experts, and these contradict each other in every particular. This sometimes happens in cases that raise medical questions, and also, for example, in every case of a breach of patent that gives rise to problems in the fields of chemistry, physics and the other natural sciences. In security matters, when the petitioner relies on an opinion of an expert on security matters, whereas the respondent relies on the opinion of someone who is both an expert and also the person responsible for security in the state, it is natural that we give special weight to the opinion of the latter. As Vice-President Landau said in HCJ 258/79 Amira v. Minister of Defence: “In such a dispute on professional military matters, where the court does not have any established knowledge of its own, we rely on a presumption that the professional assessments of the deponent on behalf of the respondent, who speaks for those people who are actually in charge of maintaining security in the occupied territories and within the Green Line, are genuine ones” ’ (HCJ 390/79 Dawikat v. Government of Israel [12], at p. 25).

This is the position in security matters, and it is also the position in the various fields of science, in planning and building matters and other areas of expertise, and prima facie it is also the case in this petition. When the respondents rely on the opinion of the chief toxicologist of the Ministry of Health as someone who has the responsibility, on behalf of the administrative authority, of ensuring the health of the inhabitants of the state in the field of poisons, the presumption is that his position was reached after examining the issue on its merits and it is well founded. As the court has said:

‘Even if there are conflicting opinions of respected experts, the court will presume that the public authority has examined the matter on its merits and will respect its decision since it is the authority responsible for making the decision’ (HCJ 492/79 A v. Ministry of Defence [8]).

25. However, in that case the court held — immediately after the remarks cited above — that ‘Even in this matter no firm guidelines should be laid down; there is no absolute rule, and each case should be considered on its merits according to its special circumstances.’ Indeed, in the circumstances of the case before us, I am of the opinion that there is a basis for determining that this presumption should not be given the validity and weight that it is usually given.

After the respondents filed the opinion in support of their position, the petitioners claimed that parts of the opinion were copied from a public relations statement of the Monsanto Company, which manufactures the spray substance that was used, without saying that this statement was a source for the opinion. Moreover, ten of the sixteen references that appear in the opinion are taken from the statement of the manufacturing company. In reply to this claim, the respondents argued that although the scientific material that was published by the Monsanto Company with regard to the Roundup preparation and its components was used as a starting point for the examination made by their toxicologist, giving significant weight to scientific information that has been assembled by manufacturers during the application process for the approvals required for registration and distribution of preparations from the regulatory authorities in the various countries is an accepted practice, since in order to obtain approvals as aforesaid, the manufacturers are required to comply with very strict criteria, and for this purpose they hire reputable experts to prepare research on which the registration applications are based. Articles that summarize the examination findings of those persons are also published on a regular basis in scientific journals. The respondents also argue that the chief toxicologist did not accept what was stated as holy writ, but he examined the references on which those researchers based their articles, as well as additional references to the spray preparation and its components in scientific articles and publications of regulatory authorities and international health organizations.

In my opinion, the state’s reply in this regard is unsatisfactory. I do not of course regard it as improper to avail oneself of information published by the manufacturing company. But this cannot explain the fact that this information was cited — almost word for word — in the opinion filed on behalf of the state, without its source being mentioned as one of the sources that were used when writing the opinion. This fact, together with the fact that more than half of the references cited in the opinion are taken from the synopsis published by the manufacturing company, gives rise to questions concerning the thoroughness of the examination that was made, and in any case it gives rise to a doubt as to whether we can accept the declaration of the state’s toxicologist that the assessment contained in his opinion is based on the most up-to-date and best literature and information in his possession. As we have said, the premise for the aforementioned presumption in favour of the authority’s position is the assumption that the state authorities make their decisions on the basis of a thorough and comprehensive examination of the professional issues in their sphere of responsibility. It is difficult to persuade ourselves that their conduct in this case supports that assumption.

In these circumstances, I think that we cannot make any a priori assumption in favour of the respondents’ position, and therefore the opinion filed by them should be regarded as having the same status as the opinions filed by the petitioners.

26. After reading and rereading the three opinions, as well as some of the references on which they rely, I have not been persuaded that it is possible to say that a coincidental exposure to the spray substance involves a real risk or a concrete potential risk to human life, as the petitioners claim. The research on which the petitioners rely in this regard — and especially the research of Garry et al. and the research of Hardell & Eriksson, from which it appears prima facie that there is a possibility that there is a link between exposure to the Roundup spray substance and a certain type of cancer and that exposure to this spray substance may lead to fertility problems and to deformities in children whose parents were exposed to the spray substance — is only preliminary research, and even according to the petitioners’ experts additional research is required in order to authenticate and support the findings in them. We can also not ignore the fact that the position presented in those research papers is exceptional in the scientific world in that it is inconsistent with the position of the regulatory bodies of various countries around the world, such as Health Canada and the United States Environmental Protection Agency, and international health organizations such as the World Health Organization and the European Commission, which have researched the issue and found that the aforesaid spray substance does not pose a health risk to human beings. Thus, for example, the United States Environmental Protection Agency states in a report concerning the substance glyphosate, which is the active component of the Roundup preparation, that:

‘Glyphosate is of relatively low oral and dermal acute toxicity… Several chronic toxicity / carcinogenicity studies using rats, mice and beagle dogs resulted in no effects based on the parameters examined, or resulted in findings that glyphosate was not carcinogenic in the study. In June 1991, EPA [the Environmental Protection Agency] classified glyphosate as a Group E oncogen — one that shows evidence of non-carcinogenicity for humans — based on the lack of convincing evidence of carcinogenicity in adequate studies.

…

… Glyphosate does not cause mutations.

…

EPA’s worst case risk assessment of glyphosate’s many registered food uses concludes that human dietary exposure and risk are minimal. Existing and proposed tolerance have been reassessed, and no significant changes are needed to protect the public.

Exposure to workers and other applicators generally is not expected to pose undue risks, due to glyphosate’s low acute toxicity…

…

The use of currently registered pesticide products containing the isopropylamine and sodium salts of glyphosate in accordance with the labeling specified in this RED [Re-registration Eligibility Decision] will not pose unreasonable risks or adverse effects to humans or the environment. Therefore, all uses of these products are eligible for reregistration’ (U.S. Environmental Protection Agency Re-Registration Eligibility Decision (RED): Glyphosate (U.S. Environmental Protection Agency, Office of Prevention, Pesticides and Toxic Substances, Washington D.C., 1993), at pp. 2, 4 & 6).

Similarly the World Health Organization determines in its report on the substance glysophate, inter alia, that:

‘In animals, glyphosate has very low acute toxicity by the oral and dermal administration routes…

Animal studies show that glyphosate is not carcinogenic, mutagenic or teratogenic. Reproductive effects were only seen at dose levels producing maternal toxicity.

…

Glyphosate and its concentrated formulations produce moderate to severe eye irritation, but only slight skin irritation. Neither glyphosate nor tested formulations induce sensitization’ (World Health Organization Environmental Health Criteria 159: Glyphosate (World Health Organization, Geneva, Switzerland, 1994), at p. 82).

27. Notwithstanding all this, I have not been persuaded that it can be determined that the spraying operations, as carried out by the state, have absolutely no harmful potential. In my opinion, it is sufficient that exposure to the spray substance can cause skin and eye irritation, breathing difficulties (even if minor), or feelings of nausea or dizziness in order to determine that the spray substance may at least result in harm to health, and in extreme cases to the physical integrity of those who are exposed to it. This conclusion is supported by the opinion filed by the petitioners and the affidavits that they filed (see petitioners’ exhibit 2) and it can also be seen from the user instructions and warnings that appear on the spray substance container that was used. It will be recalled that these instructions say, inter alia, that:

‘Roundup may irritate the skin and eyes… When spraying wear clothes that cover all parts of the body… After spraying, wash all the parts of the body that came into contact with the substance with water and soap… In the event of contact with skin, wash well with water. In the event that some substance was splashed into the eyes, rinse for 15 minutes with flowing water and have a medical check’ (see respondents’ exhibit 4).

28. In my opinion, in addition to the concern of harm to health there is also a violation of the dignity of the Bedouin citizens. Even without accepting the petitioners’ claims in full, I am of the opinion that it can be determined that there is at least a doubt — contrary to the respondents’ argument — that the spraying operations that were carried out were not preceded on each occasion by warnings to the inhabitants whose crops were sprayed, and in any case it would appear that the information did not always reach them; perhaps not all the sprayings were carried out in areas sufficiently distance from inhabited areas; and perhaps, despite the precautions taken, in some cases the Bedouin citizens, including children, were exposed to the spray substance, even if it was a minor and temporary exposure. In this context I should point out that in affidavits filed by the petitioners, which in my opinion were not challenged in this respect by the respondents, it was alleged that at least some of the spraying operations that were carried out were not preceded by warnings to the inhabitants and only after the spraying occurred were signs placed on the site to give notice that the area had been sprayed with pesticide (see petitioners’ exhibit 4). It can also be seen that at least some of the sprayings were carried out in areas near the homes of the persons cultivating the crops, areas in which the inhabitants also tend their sheep (see petitioners’ exhibit 9). Given the fact that some of the Bedouins whose crops were sprayed live close to those agricultural areas, I doubt whether in practice those Bedouins who were exposed to the spraying on the occasions when it was carried out had any real possibility of avoiding it. No matter how minor or temporary this exposure was, carrying out spraying operations, without taking care to give an advance warning to the inhabitants of the intention to spray their crops and without giving an explanation concerning the risks that may be caused as a result of exposure to the substance and concerning the precautions that should be taken in the areas that were sprayed, is improper and is unworthy of the state authorities, and it caused deep feelings of degradation and humiliation among the Bedouin citizens. Even if we are speaking of citizens who are lawbreakers, the state has a duty not to endanger them by its actions, to protect their welfare and to treat them decently. I have not been persuaded that the state succeeded in discharging this duty in its actions that are under review in the present petition. The way in which the spraying operations were carried out not only harmed the health of the Bedouin citizens, but also injured their dignity.

29. One might ask how we can determine that this specific spraying, as opposed to other spraying operations, involves a violation of dignity and physical integrity when both in Israel and around the world frequent use is made of the spray substance that the state used in the case before us. I would answer this by saying that in my opinion there is a major difference between the two: spraying that is carried out on a regular basis for agricultural purposes is carried out by the farmers themselves — who are the de facto occupiers and cultivators of the land — or by another administrative authority that carries it out in coordination with them. When the spraying is done to further the interests of the farmer and in coordination with him, no violation of dignity can occur. In addition, there is a presumption that the farmer takes all the necessary steps in order to protect himself or anyone acting on his behalf from being harmed. In the case before us, however, the spraying was carried out without the cooperation of the persons who are occupying and using the land, even if they are doing so illegally, and therefore the concern that they or even innocent bystanders will be unintentionally exposed to the spraying is much greater. This increased risk, and the fact that there remains a concern that the spraying was carried out without taking sufficient care to give a prior warning to the inhabitants and to prevent their possible exposure to the spray substance, are what give rise in my opinion, in the specific circumstances of the case before us, to the risk of harm to the health of the Bedouin citizens, and in extreme cases to the concern, even if it is a remote one, of harm to their physical integrity, as well as a constitutional violation of the dignity.

My conclusion is therefore that the spraying operations that were carried out by the state, in the manner that they were carried out, violated the constitutional rights of the Bedouin citizens to physical integrity, health and dignity. What is the significance of this violation?

Constitutionality of the violation

30. It is well known that the fact that a law or an executive action violates a human right does not automatically lead to the conclusion that this violation is unlawful. Sometimes the state violates human rights, but the violation remains constitutional because it satisfies the requirements of the limitations clause in s. 8 of the Basic Law: Human Dignity and Liberty (see, for example, HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13], at p. 1765 {507-508}, and the references cited there). We should therefore examine the violation in accordance with the tests in the limitations clause, which provides the following:

‘Violation of rights

8.  The rights under this Basic Law may only be violated by a law that befits the values of the State of Israel, is intended for a proper purpose and is not excessive, or in accordance with such a law by virtue of an express authorization therein.’

Much has been written about the importance of the limitations clause and about its role in striking a balance between the needs of society and the rights of the individual:

‘This test reflects a balance between basic rights and other important values. It arises from a reality in which there are no absolute truths and no absolute values. It is built on a perspective that regards both human rights and social values as relative. It is based on the assumption that achieving harmony between the rights of the individual and the needs of the public requires a compromise, and that the nucleus of the compromise is what underlies the harmonious arrangement between all the rights of the individual and the values of society. It is a prerequisite for a civilized society and proper constitutional government’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13], at p. 1884 {689}).

31. As stated above, the limitations clause sets out four conditions that, when they are all satisfied, will permit a lawful violation of human rights enshrined in the Basic Law. The conditions are: that there is authority in statute for the violation, that the violation befits the values of the state; that the violating norm has a proper purpose; and that the violation is not excessive. The petitioners’ claim is that the first, third and fourth conditions are not satisfied.

On the question of authorization, I have already held at the beginning of my remarks that in my opinion the law can be interpreted in a manner that recognizes the authority of the state to carry out the spraying operations that are under discussion and therefore there is no need for me to repeat this. With regard to the condition of befitting the values of the state, the petitioners raised no argument, and therefore the scope of the dispute that still requires a decision is limited to whether the third condition, which concerns the existence of a proper purpose that underlies the violation, and the fourth condition, which concerns the proportionality of the violation, are satisfied.

For a proper purpose?

32. As we have said, according to the third condition that is laid down in the limitations clause, the violation of a constitutional right should be ‘for a proper purpose.’ The meaning of this expression with regard to a decision of an administrative authority is different from its meaning with regard to a statute: the purpose of a statute will be deemed proper if it serves a public purpose whose realization may justify a violation of human rights (see for example HCJ 1661/05 Gaza Coast Local Council v. Knesset [14]). But with regard to an administrative decision, we first should examine the question whether the purpose of the decision falls within the scope of the general and particular purposes of the law that provides the authority (HCJ 4541/94 Miller v. Minister of Defence [15], at p. 140 {234}, and the references cited there). Notwithstanding the petitioners’ position that the spraying operations were carried out for an improper purpose, I agree in this matter with the position of the respondents, and there is no doubt in my mind that the purpose underlying the operations under consideration in this petition is a very proper one.

33. The State of Israel is a small country. Its territory is limited, and its land is a very valuable resource. Public land in particular constitutes an important national asset, since it is an essential basis for future development of the state and society in the fields of urban planning, industry, agriculture, tourism, etc.. The first respondent, which is responsible under the law for retaining possession of state land and managing it, has the duty to protect it so that it can be used to further various national and other goals, according to the land policy that is determined from time to time by the government and by the Israel Land Council. The supreme importance of state land was discussed by Justice Or:

‘Land is a unique asset among state assets. It is hard to exaggerate its importance to society and the state. If the nation and its cultural enterprise are the “soul” of the people, then its land is its “body.” On the basis of land the individual and society conduct their whole lives:

“Land is the source of all material wealth. From it we get everything that we use or value, whether it be food, clothing, fuel, shelter, metal, or precious stones. We live on land and from the land, and to the land our bodies or our ashes are committed when we die. The availability of land is the key to human existence, and its distribution and use are of vital importance” (S.R. Simpson, Land Law and Registration (Cambridge, 1976), at p. 3).

… Land is an unparalleled vital resource and it has great value. It is of especially great importance in a country like Israel, where the territory is small, the population density is high and there is a policy of absorbing immigration. It is impossible to create land, and therefore a state should decide its policies with a view to the land resources in its possession…

In such circumstances, the state and those to whom it entrusts its land should act with careful discretion with regard to any waiver of rights in land and ensure that it has sufficient land reserves for the various needs in the future, whether for building, agriculture, industry and other gainful occupations, or whether for open areas for various purposes, including protecting the environment, all of which in accordance with current and future city building plans. Awareness of the need to spread the population is also required. A considered and balanced land policy that takes all of these considerations into account is required (HCJ 3939/99 Sedei Nahum Kibbutz v. Israel Land Administration [16], at pp. 62-63).

Indeed, a ‘considered and balanced land policy,’ in the words of Justice Or, is needed in order to manage state land properly and effectively. But no less important is the need for real enforcement of this policy in order to implement it, and in this framework, inter alia, the state is required to act forcefully, through its various executive organs, against incursions onto its land. The widespread phenomenon of incursions onto state land in the Negev in particular requires the state to take effective measures to remove the squatters and the incursions. With regard to incursions that are carried out by way of sowing or planting agricultural crops unlawfully, the state decided, as we have said, that after other measures were tried, it would take action to stop the incursions by means of spraying the crops from the air. The purpose of this decision is consistent with the purpose of the arrangements in the law by virtue of which these operations were carried out — both the purpose of the general arrangements provided in the Land Law, as described earlier in my remarks, and especially the specific arrangement provided in the Public Land (Eviction of Squatters) Law. These arrangements are intended as aforesaid to give the landowner, or in our case the state, a possibility of resorting to self-help to remove squatters and stop incursions, without applying to the courts, all of which in order to protect its rights in the land, including the clear public interest inherent therein. Here we should mentioned that the property right that the state is seeking to protect by means of the actions under discussion is a right that has been recognized in our legal system since its earliest days as an important and central right, and it has been given the status of a basic right that enjoys constitutional protection within the framework of the Basic Law: Human Dignity and Liberty (see for example CA 5964/03 Estate of Edward Aridor v. Petah Tikva Municipality [17]).

34. Moreover, apart from the clear interest in preserving the land resources of the State of Israel, there is also another important interest that lies at the heart of the decision to carry out the spraying operations and at the heart of the arrangements in the law by virtue of which the operations were carried out. This is the public interest of upholding the rule of law in the state. Incursions onto the land of others — whether it is private land or public land — are illegal acts that are intended to deprive the landowner of his rights and to profit at his expense. Recurring incursions and acts of resistance towards the representatives of the state that act against those incursions constitute an attack upon the rule of law that cannot be tolerated. Against this background it can be understood that the state is required to adopt an unequivocal and uncompromising position in order to frustrate the attempts of persons who act in illegal ways to realize their goals.

Therefore my conclusion is, as I have said, that the purpose underlying the spraying operations is a very proper one. But is this proper purpose realized in a proportionate manner? This, in my opinion, is the question that lies at the heart of our decision in this petition.

Proportionality of the violation

35. The essence of the limitations clause lies in the fourth condition, which concerns the proportionality of the violation of human rights. It is well known that the requirement of proportionality was formulated in the case law of this court as a criterion for examining every act of administrative authorities. According to this condition, an act of an authority will only be regarded as lawful if the executive measure that was adopted in order to realize the executive purpose is proportionate. We therefore examine in this context the question of the correlation between the purpose that the authority is trying to achieve and the means adopted to achieve it (HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [18], at pp. 836-839 {293-296}).

36. As in other legal systems around the world, Israeli law also lays down three fundamental subtests that give the principle of proportionality concrete content. According to the first subtest, which is the ‘appropriate measure’ or the ‘logical measure’ test, there should be a logical connection between the purpose and the means of achieving it, so that the means should lead rationally to the achievement of the purpose; in the second test, which is the ‘least harmful measure’ or the ‘need/necessity’ test, we ask whether the measure adopted causes the least possible harm to the right of the individual under consideration; finally, in the third subtest, which is the test of proportionality ‘in the narrow sense’ or the ‘proportionate measure’ test, a balance is made between the benefit arising from the action and the harm that it causes, and we consider the question whether the harm caused to the individual as a result of the measure that the administrative authority is adopting is commensurate with the benefit that arises from it. Only if these three subtests are all satisfied will the measure adopted by the authority be deemed a proportionate measure (on the nature of the requirement of proportionality, the elements of the requirement and the manner of implementing it, see for example the fundamental and comprehensive analysis of President Barak in Beit Sourik Village Council v. Government of Israel [18], at pp. 838-840 {296-298}), as well as the references cited there; I see no need to add to what he says). How is this implemented in our case?

37. There is no doubt in my mind that there is a logical connection between the aforesaid spraying operations and the purpose of protecting state land by removing squatters. The spraying causes the destruction of agricultural crops that are sown or planted on state law unlawfully, and in this way the unlawful incursions are removed and the ability to realize the rights in the land is recovered by the state, as well as by the person to whom it transferred these rights. Therefore it is certainly possible to say that the spraying operations further the purpose for which this measure was adopted and they lead in a logical manner to its realization. I am aware of course that this subtest is not satisfied with merely a technical causal relationship between the measure and the purpose, and therefore the requirement that there is a logical connection is directed, inter alia, to the fact that an arbitrary, unfair or irrational measure should not be adopted (see HCJ 9593/04 Morar v. IDF Commander in Judaea and Samaria [19], at p. 4375 {78}, and the references cited there). But in the circumstances of the case I have not been persuaded that the measure that we are considering does indeed fail to comply with these criteria.

38. With regard to the second subtest, the respondents claim that the measure of spraying is the safest and most effective measure for protecting state land against incursions by way of seasonal agricultural cultivation. According to them, the use of this measure began because in the past when the state tried to protect its property in other ways, and especially when it tried to stop incursions by ploughing the land, it encountered fierce opposition from squatters who resorted to violence in order to prevent the ploughing operations. This opposition resulted in physical injuries both to the persons carrying out the evictions and to the squatters. In an attempt to find a course of action that would remove the crops most effectively as well as reduce the fear of disturbances of the peace during the eviction process, the measure of spraying was chosen as aforesaid.

39. In their reply to the petition, the respondents set out all of the steps that they took to ensure the safety of the measure of spraying: first, it was clarified that adopting this measure was done only after the squatters were given the usual warnings: warning signs were set up in the area, stating that the land was state property and entering the land was prohibited; warnings were sent to the squatters in which they were required to vacate the land and remove the crops; in appropriate cases complaints were filed with the police. After it became clear that these measures had no effect, there was no alternative to taking effective measures to remove the incursions, including spraying the crops from the air. Second, it was argued that, in the spraying operations that were carried out, the provisions of the law regarding this matter and the user instructions for the spray substance that was used were strictly followed. In this context, the respondents observed the instructions concerning the safety limits from other agricultural crops, orchards and gardens and those concerning the weather conditions at the time of spraying, the direction of the wind and the size of the drops of the spray substance. They also took into account greater safety limits that the ones required for various parameters addressed by the package label on the spray container and they maintained a distance of at least 300 metres from nearby buildings, if and in so far as there were any in the vicinity. Third, the respondents point out that before each spraying the area designated for spraying was marked by the ‘Green Patrol,’ after it checked that there were no human beings or animals in the area, and during the whole spraying process persons from the ‘Green Patrol’ stood at a distance of 120 meters from the area holding flags. If it transpired that a human being or animal entered the area being sprayed, the spraying was stopped until the area was completely evacuated. In remote areas and in areas where there is a considerable chance of friction with the population, the spraying was carried out by means of two airplanes, where one of them outlined to the other the borders of the spray area and supervised to make sure that the spraying did not go beyond the designated area.

In summary, the respondents claim that the results on the ground show the effectiveness and the safety of the measure of spraying from the air in general, and especially in comparison with the alternative measures that are available to the state in the circumstances of the case. During the period when use was made of this measure, there was a substantial decrease in the scope of the incursions onto state land in the Negev and also a decrease in the violence that resulted from the law enforcement operations to remove the squatters, so that it was also possible to carry out these operations with a limited amount of eviction personnel and police assistance. On the other hand, it was alleged that since the order nisi was made in this petition, there has once again been a significant increase in the amount of the incursions onto state land.

40. Indeed, from the reply of the respondents it can be seen that the use of the measure of spraying from the air began only after previous measures that were adopted did not provide a proper and satisfactory solution to the problem of the incursions. It was also alleged that when this measure was chosen, the state carried out all of the actions required to avert all the possible risks that might be involved.

But despite the actions carried out and despite the respondents’ declaration that the spraying was carried out in strict compliance with the requirements of the law and the user instructions on the spray container as aforesaid, in my opinion there remains a doubt as to whether sufficient warning was in fact given in every case of the state’s intention to spray the crops. There is also a doubt as to whether all the spraying operations were carried out at the required distance from inhabited areas, in order to rule out the possibility that the Bedouins, whether those whose crops were sprayed or those passing by, would be exposed to the spray substance. If this is not enough, then in addition it transpires that the pest control company that carried out the spraying on behalf of the state also made use of spray substances that were not permitted for use by law, which was in breach of the agreement made with it, even though it has been made clear that this use was stopped.

41. The risks involved in the spraying operations are substantially different from the risk created as a result of the agrotechnical operations that were carried out by the state in the past in order to contend with the phenomenon of the incursions. Therefore there is a real difficulty in comparing the two measures in order to determine which of them, if at all, is the less harmful measure. I deliberated for a long time as to whether it is possible to determine, with the required degree of certainty, that the measure of spraying is indeed the less harmful measure. I had difficulty in doing so. I also seriously considered the possibility of ordering the state to prepare a detailed work procedure, which would include strict conditions for the manner in which the spraying should be carried out, so that subject to compliance with this we would be able to permit the continued use of spraying while minimizing the harm to the Bedouin population. Ultimately I reached the conclusion that it is not possible, nor would it be right, to content ourselves with this. There are two main reasons for my conclusion.

First, I have not been persuaded that in the situation that has been created and in the circumstances that have been described it will be possible to allay the concern of harm to the Bedouin citizens to the required degree. The longstanding disputes between the Bedouin citizens and the state authorities with regard to the ownership of land in the Negev have created a very complex reality on the ground, and only certain aspects of this are expressed in the petition before us: I will mention briefly that the state, for its part, is trying to protect its alleged rights in the land and is acting in accordance with the powers given to it in the law to do so, whereas the Bedouins, for their part, refuse to recognize the state’s ownership claims and take action in order to prevent their eviction from the land, even at the cost of danger to themselves. In this complex situation there are a large number of concerns: given that we are speaking of extensive amounts of land, where the identity of the party making the incursions is not always known to the authorities, there is a difficulty in knowing who exactly will be present on the land, and therefore it is difficult to ensure that before the spraying operations are carried out, everyone who may be exposed to risk — including innocent passers-by, children and the elderly — is given a warning so that any likelihood that human beings or animals will be exposed to the spray substance is averted. In the circumstances that have been described, and especially in view of the state’s description of the reactions of the Bedouins to its attempts in the past to vacate the land where there were incursions, which included their deliberate entry into these areas in an attempt to prevent the vacating of the land and the use of violence, there is a real concern that the citizens will not pay attention to the warnings and will enter the sprayed areas despite the danger. Even if in such a case of a deliberate entry into the sprayed areas despite the warnings, the liability for the risks involved rests with whoever ignores the warnings, in view of the fact that the aforesaid scenario is foreseeable, the state also cannot shirk its responsibility to its citizens and it is bound to protect them and prevent any harm to them as a direct or indirect result of its operations. In addition, even if we assume that warnings will be given as necessary before the spraying is carried out, there remains a concern that human beings and animals will be exposed to the spray residue that will remain on the sprayed land after the spraying, and that the spray substance will be carried by the wind to nearby population centres and nearby agricultural land that is being cultivated legally. Finally, we also cannot ignore the concern that there will be various flaws in the system, whether as a result of accidents in the spraying or as a result of failures to observe the instructions and procedures for carrying it out. This concern, which prima facie exists in every case where operations involving potential risks are concerned, is exacerbated in the light of experience and the accidents that have already occurred in the state’s operations, as described above, and because the realities of life teach us that even when spraying is done for agricultural purposes, accidents involving a clear departure from the procedures sometimes happen. This can be seen, for example, from the information provided by the Ministry of the Environment, which supervises the use of pesticides in agriculture:

‘Accidents occur

Admittedly the spray pilots are aware of the regulations concerning spraying from the air, but sometimes they do not comply with the regulations. Economic constraints, competition between spray companies and human errors with regard to the precise location of spray areas cause mistakes, such as spraying in the vicinity of homes at a distance of less than 120 metres, and spraying over and near sources of water’ (see the website of the Ministry of the Environment (information last updated on 21 December 2003)).

In the circumstances of the case before us, and especially in view of the fact that, despite the accidents that occurred in the past, the respondents’ position still remains that apart from the use made by the spraying company of a spray substance that was not permitted, no mishap has occurred in the spraying operations that were carried out and everything was done in strict compliance with all of the necessary instructions, whereas at the same time there is as aforesaid a real concern that the Bedouins who regard themselves as injured by the spraying operations will not abide by the warnings, I am not persuaded that any work procedure that seeks to ensure that the risks are averted will be sufficient to allow us to determine that the measure that is under scrutiny in this petition is indeed the least harmful measure (on the difficulty of ensuring the implementation of a written procedure in problematic conditions, see the remarks of Vice-President Cheshin in a case where the court considered the legality of the ‘prior warning’ procedure: HCJ 3799/02 Adalah Legal Centre for Arab Minority Rights in Israel v. IDF Central Commander [20], at p. 59 {227}; see also the remarks of Justice Beinisch in that case, at p. 61 {229-230}).

Second, in addition to this, I am of the opinion that it is not possible and would not be right to permit the spraying to continue even subject to the formulation of a procedure as aforesaid, since I have reached the conclusion that even if the spraying operations that are carried out by the state satisfy the first subtest of the requirement of proportionality, and even if it can be said that they satisfy — or in certain conditions they may satisfy — the second subtest of this requirement, they do not satisfy the third subtest, and therefore in any case it should be held that these operations are not proportionate.

42. As we have said, this last test concerns the question of whether the purpose for which the measure was adopted is proportionate to the damage that it causes to constitutional human rights. Although it is usual to call this test the test of proportionality ‘in the narrow sense,’ in the case law of this court it has on several occasions been said that this test is in fact a ‘value’ test, which concerns a balance between conflicting values and interests. The remarks of Vice-President Cheshin in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13] are pertinent in this context:

‘… there are three subtests in the test of proportionality, and for reasons that I do not understand the third subtest is called by the name of the test of proportionality “in the narrow sense.” This name is a mystery to me. The test of proportionality “in the narrow sense” is, in my opinion, actually the second subtest, since it is a test whose beginning, middle and end all concern proportionality (United Mizrahi Bank Ltd v. Migdal Cooperative Village, at p. 437). But the third subtest before us, the test in which we place on each pan of the scales the values that conflict with one another, the benefit values against the damage values, ought to be called the test of proportionality “in the value sense.” This test is concerned with values, and therefore it should be given that name’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13], at para. 107 {635-636} of the opinion of Vice-President Cheshin); see also HCJ 6427/02 Movement for Quality Government in Israel v. Knesset [21], at para. 60 of the opinion of President Barak).

43. The relationship between this subtest and the two other subtests of the requirement of proportionality was, as usual, well explained by President Barak in a case that examined the question of the constitutionality of amendment no. 7 to the Torts (State Liability) Law, 5712-1952, which added to the law sections that exempted the state from liability in torts for damage caused in a conflict zone as a result of an act carried out by the security forces:

‘… there is a major difference between the first and second subtests and the third subtest. The first two subtests — the rational connection and the least harmful measure — focus on the means of realizing the purpose. If it transpires, according to these, that there is a rational connection between realizing the purpose and the legislative measure that was chosen, and that there is no legislative measure that is less harmful, the violation of the human right — no matter how great — satisfies the subtests. The third subtest is of a different kind. It does not focus merely on the means used to achieve the purpose. It focuses on the violation of the human right that is caused as a result of realizing the proper purpose. It recognizes that not all means that have a rational connection and are the least harmful justify the realization of the purpose. This subtest seeks in essence to realize the constitutional outlook that the end does not justify the means. It is an expression of the concept that there is an ethical barrier that democracy cannot pass, even if the purpose that is being sought is a proper one’ (HCJ 8276/05 Adalah Legal Centre for Arab Minority Rights in Israel v. Minister of Defence [22], at p. 3689 {379}).

Indeed, as President Barak said in Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13], the third subtest of the requirement of proportionality ‘returns us to first principles that are the foundation of our constitutional democracy’ (ibid. [13], at para. 73 of his opinion {p. 539}):

‘A proper purpose, a rational connection between it and the provisions of the law and the minimization of the violation of human rights that is capable of realizing the proper purposes are essential conditions for the constitutionality of the violation of human rights. But they are not sufficient in themselves. A constitutional regime that wishes to maintain a system of human rights cannot be satisfied only with these. It determines a threshold of protection for human rights that the legislature may not cross. It demands that the realization of the proper purpose, through rational measures that make use of the lowest level for realizing the purpose, will not lead to a disproportionate violation of human rights…

This subtest therefore provides a value test that is based on a balance between conflicting values and interests (see Alexy, A Theory of Constitutional Law, at p. 66). It reflects the approach that there are violations of human rights that are so serious that a law cannot be allowed to commit them, even if the purpose of the law is a proper one, its provisions are rational and there is no reasonable alternative that violates them to a lesser degree.

…

Examination of the test of proportionality (in the narrow sense) returns us to first principles that are the foundation of our constitutional democracy and the human rights that are enjoyed by Israelis. These principles are that the end does not justify the means… Our democracy is characterized by the fact that it imposes limits on the ability to violate human rights; that it is based on the recognition that surrounding the individual there is a wall protecting his rights, which cannot be breached even by the majority’ (ibid. [13], at paras. 75 and 93 {pp. 525-526 and 539}).

Against this background we should consider how the third subtest of the requirement of proportionality applies in our case. We should mention that when we endeavour to carry out the necessary act of balancing within the framework of this test we should consider, on the one hand, the nature of the violated right and the scope of the violation and, on the other hand, the nature of the public interest under discussion: when the right is a more fundamental one and the violation of it is more serious and acute, the considerations underlying the public interest will have to be of greater weight and of more decisive importance in order to justify the violation. Conversely, when the public interest is substantial and the benefit to the public that arises from its realization is substantial, it is capable of justifying a more serious violation of human rights (see Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [13], at para. 74 {pp. 523-524} of the opinion of President Barak).

44. The basic rights that are in the balance in this petition — the right to health, the right to physical integrity and the right to dignity — are all fundamental human rights that are protected in the State of Israel. Of course, the state’s property interests in its land, as well as the public interest in upholding the rule of law in Israel, also lie at the heart of our legal system. But in the circumstances of the case before us, I am of the opinion that these interests should yield to the need to prevent harm to the aforesaid rights, since the balance between the benefit that may arise from employing the measure of spraying from the air in order to remove incursions onto state land and the harm that may be caused to human rights as a result thereof, against the background of all the values of our legal system, leads in my opinion to the conclusion that the relationship between the two is not a proportionate one.

Indeed, the arrangements in the Land Law and in the Public Land (Eviction of Squatters) Law give the state a power to resort to self-help in order to remove squatters from its land. Clearly the premise in our case is that the state is acting legitimately in order to realize this purpose, and certainly it seeks to prevent any harm to the Bedouin citizens. Moreover, the measure of spraying from the air serves the purpose of removing agricultural incursions and it is possible — even though, as I have said, I have not been entirely convinced of this — that it may be said that of all the measures available to the state in the circumstances of the case, this is the measure that causes the least harm to human rights. But it is still not a proper measure. It is not a measure that a state should use against its citizens in order to protect its property rights. No matter how important these rights are, the advancement thereof does not, in my opinion, justify the use of a harmful measure such as the spraying that was carried out, in the way that it was carried out.

45. In my opinion, the spraying operations, in the way that they were carried out, violate a series of rights and values that need to be protected in order to safeguard the life and dignity of a person as a human being. Alongside the duty of the state to protect its land, it has another duty of supreme importance — to protect the safety and welfare of its citizens, men and women, the young and the old, upright citizens and lawbreakers. In this framework the state has a duty to protect the health, physical integrity and dignity of the members of the Bedouin population in the Negev, each of whom is a citizen of the state, and therefore it is obliged to realize its goals and policy, with regard to land and in general, by means that are consistent with its responsibility to protect the basic rights of its citizens.

Take the case of a Bedouin citizen who cultivates his crops lawfully in an area that is adjacent to land where the crops that were sown are designated for destruction by spraying; take the case of a young child who plays with his friends in the open areas around his home, which also are adjacent to the areas where there was an incursion; take the case of a woman who is tending a flock of sheep for pasture near the parcel that is designated for spraying (or even in it). In certain circumstances one of them — unwittingly and unintentionally — may be harmed by the spray substance that will be dispersed from the sky by the spray airplane, either because the wind is blowing a little stronger than expected and disperses the spray substance beyond the boundaries of the parcel, or because from the outset the boundaries of the parcel were not sufficiently clear, and that farmer, child or woman entered it, or because the sheep that provide milk and food for the inhabitants ate grass that had been sprayed. Those inhabitants may, at the very least, suffer from breathing difficulties, skin irritations and feelings of nausea and dizziness; the crops of that farmer — which as we said were cultivated lawfully — may wither; the sheep may also be harmed. Ultimately it is possible that the inhabitants will suffer harm to their health and safety as well as to their economic welfare and their ability to provide for their families. In addition, some will also mention the terrible feeling that is likely to be experienced by a farmer who ploughs, sows, waters and weeds the land in order to earn his bread — his family’s livelihood — from it, and in a moment all of his efforts are destroyed.

The expression ‘the end does not justify the means’ is not merely an empty slogan, but a rule of great value and importance. The end in our case does not, in my opinion, justify the means of using the measure that was chosen, which sends (even if unintentionally) a message of insensitivity and disrespect to the Bedouin citizens. In addition to this there is, as we have said, the concern of danger to their health, and perhaps even to the physical integrity of Bedouin citizens who may, in the complex situation that prevails in the area, be exposed to the spray substance and be harmed by it. In the balance between the public interest in the furtherance of which the state seeks to act and the fear of harm to the rights of the individual, I am of the opinion that the considerations that require us to prohibit the possibility that the state may destroy the crops of citizens by means of spraying from the air — and especially the concern of potential harm to their health, physical integrity and dignity — should prevail.

46. As I said, I considered ordering the state to draw up a work procedure that would ensure that the spraying operations would be carried out legally and without any risk to human life or any harm to the health and dignity of the inhabitants. I repeatedly asked myself whether it was possible, by means of such a procedure, to minimize the risk and limit the possibility of harm to citizens, whether they are squatters and lawbreakers or innocent passers-by. Ultimately I was not convinced that such a procedure would be capable of achieving the proper purpose of protecting state land in a way that is proportionate, appropriate and proper. I have already described the wide variety of concerns that arise in the complex reality on the ground and I have explained that it cannot be taken for granted that it is possible to eliminate these concerns. Even though I would like to assume that such a procedure could ensure no harm befalls, I fear that in view of the difficulties and the scenarios that I described, just as in the case of the accidents that have already occurred, an assumption of this kind may turn out to be unrealistic and unfounded. In such circumstances, taking a risk of harm to the Bedouin inhabitants, their health, their dignity, their safety and their welfare, even if it is minimal, is not in my opinion proportionate to the purpose of protecting state land, important though it is. Therefore I cannot approve it.

47. Finally I would like to emphasize that we should not ignore the fact that the Bedouin citizens themselves have considerable responsibility for the situation that has been created, and that some of their actions should be unequivocally condemned. Their adoption of illegal methods in order to achieve their purposes and certainly the use of violence against the authorities are problems in themselves and merit a proper response. I have also not overlooked the claim that some of the petitioners themselves did not observe orders made by courts in their cases, and the conclusion that I have reached does not justify their actions nor should it prevent the state from acting against the incursions. At the same time, since the matter under scrutiny addresses the manner in which the state acts, rather than the conduct of the petitioners, my position is that even if we are speaking of squatters, and even if we are speaking of lawbreakers, the state cannot continue to act in this way. They are still entitled to retain their dignity. The state’s responsibility for the safety and welfare of its citizens requires it to act towards the Bedouin citizens with greater respect and to protect their safety and health with greater care and diligence than it has done in the past and it seeks to continue to do by carrying out the spraying operations.

48. My conclusion is therefore that the spraying operations that were carried out by the state, by virtue of its power under the law, do not satisfy the tests of the limitations clause in the Basic Law: Human Dignity and Liberty, since they create a disproportionate relationship between the benefit arising from them and the damage caused by them. In these circumstances, we have in my opinion no alternative but to find that the result of this unconstitutional violation is that the state may not continue to make use of this measure for the purpose for which it was chosen.

A final remark

49. The issue that was brought before us in this petition is an important and complex issue: it required us to look into questions of fact, questions of law, and also, to some extent, complex questions of ethics. But no matter how important and complex it may be, this petition brought before us only one issue out of a much wider spectrum of issues that need to be resolved; all of these concern the situation of Bedouin society in the State of Israel and the relationship between it and government authorities. From a broader perspective than what is required in this case, I would like to add several remarks on this matter.

The Bedouin population has been a part of the population of the State of Israel since its foundation and it is an integral part of Israeli society. As I have already said, it is not possible to ignore the fact that those citizens who trespass onto state land are lawbreakers. The repeated and extensive incursions amount to an attack on the rule of law, a disrespect for the basic principles of our legal system and a danger to human life. At the same time, we cannot ignore the fact that at least in part this reality is the result of their distress:

‘The Bedouin population in the Negev is the poorest population in Israel. During the period under consideration, 65%-70% of this population lived below the poverty line. Six out of seven Bedouin towns were rated on the lowest socio-economic level. The Bedouins are at the top of the unemployment table in Israel. The living conditions of this population are very difficult. The nomadic inhabitants, most of whom live in shacks and huts, do not have regular electricity and running water, refuse collection services and paved roads. Sewage flows in the open, and in addition waste from the towns in the Negev is deposited into streams in the areas where they live. The health, education and welfare services also fall a long way short of what is required’ (see the Report of the State Commission of Inquiry into the Conflicts between the Security Forces and Israeli Citizens in October 2000, chaired by Justice Emeritus T. Or, at p. 53).

Distress, no matter how great it is, cannot justify breaking the law. Lawbreaking, resorting to violence and undermining the rule of law are all courses of action that cannot be tolerated in a civilized country that is governed by the rule of law, and the public interest requires the state to take determined and uncompromising action against those who choose to act in these ways.

Alongside this, the situation described in this petition, together with the distress and problems that I have described, should remind all of us that, as we already knew, the serious situation in which the Bedouin population finds itself in the State of Israel requires a complete and comprehensive systemic solution, and the sooner the better. Solutions in specific cases, whether better or worse, cannot be genuine solutions in the long term. The time has come to formulate and realize a genuinely wide-ranging solution in this matter.

We do not have the authority or the ability to provide or even to suggest such a solution within the framework of the current petition. We have been called upon solely to decide the specific issue that was brought before us, and this is what we have done. But I will take advantage of this opportunity to call for a comprehensive examination of the issue and for speedy action in order to reach a comprehensive solution, which will be capable of allowing the integration of the Bedouins once and for all in Israelis society as citizens of equal status, who have equal rights and equal obligations. It should be emphasized that this call is not directed solely at the state authorities. It is also directed at the Bedouin population itself, which as I have said is also responsible for the position in which it finds itself, as well as for the nature of its relationship with the authorities. The two sides are jointly responsible for the situation which I call upon them to change, even if in greater or lesser degrees and in different ways. Only by means of communication, collaboration, tolerance, a recognition of joint interests and a willingness to make compromises — on both sides — will it be possible to succeed in changing the situation. This change is in the interests of the state and it is certainly also in the interests of the Bedouin population.

50. Therefore, for all of the reasons set out in my opinion, I agree with the result reached by my colleague Justice Joubran. My conclusion is also that the petition should be granted and the order nisi should be made absolute. I also agree with my colleague’s proposal that the respondents shall be liable to pay the petitioners’ legal fees and court costs.

 

 

Justice M. Naor

Like my colleague Justice Arbel, I too am of the opinion that the state had the authority to carry out the spraying operations that it did. This issue is of practical importance, since after our judgment the state will presumably consider adopting other, more proportionate, means of stopping the incursions onto public land.

I also agree with my colleague’s conclusion that the spraying operations do not satisfy the tests of the limitations clause in the Basic Law: Human Dignity and Liberty. The measure of spraying, which may harm human beings, albeit slightly, is unacceptable to us, even when we are speaking of lawbreakers. The state should adopt other, more proportionate, means of protecting state land.

It is therefore also my opinion that the order nisi should be made absolute. I would refrain from making an order for costs.

 

 

Petition granted. Costs awarded by majority decision, Justice Naor dissenting.

27 Nissan 5767.

14 April 2007.

HCJ 6204/06

Dr Yossi Beilin

v.

1.            Prime Minister of Israel

2.            Government of Israel

HCJ 6235/06

Guy Yoren

and 25 others

v.

1.            Ehud Olmert, Prime Minister

2.            Government of Israel

3.            Minister of Finance

HCJ 6274/06

Movement for Quality Government in Israel

v.

1.            Government of Israel

2.            Minister of Defence

3.            Minister of Finance

4.            Finance Committee of the Knesset

5.            Foreign Affairs and Defence Committee of the Knesset

 

 

The Supreme Court sitting as the High Court of Justice

[1 August 2006]

Before Justices D. Beinisch, A. Procaccia, E. Arbel

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: On 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight Israel Defence Forces (IDF) soldiers were killed and two other soldiers were kidnapped and taken over the border into Lebanon. In response, the IDF began military operations in Lebanon, and the State of Israel was attacked at the same time with thousands of missiles and Katyusha rockets, which caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property.

The petitioners argued that the government was constitutionally required to make a declaration of war and that it should have taken action to compensate the residents in the north of Israel for the economic losses that they suffered from the Hezbollah attacks.

 

Held: What constitutes ‘starting a war’ is a complex question. The definition of ‘war’ cannot be separated from the foreign affairs of the state. A government decision that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations. In any case, the government complied with all the constitutional formalities that would be required by a declaration of war.

The Knesset and the government have enacted legislation to address the compensation of the residents of the north of Israel. There has therefore been a change in the legal position since the petitions were filed. In so far as these arrangements do not satisfy the petitioners, the doors of the court will be open to them.

 

Petition denied.

 

Legislation cited:

Basic Law: the Army, s. 2(a).

Basic Law: the Government, ss. 4, 40, 40(a), 40(b), 40(c).

Civil Defence Law, 5711-1951, ss. 9C(b)(1), 9C(b)(3).

Customs Ordinance [New Version], s. 211(c).

Declaration of Death Law, 5738-1978, s. 1.

Penal Law, 5737-1977, s. 99.

Property Tax and Compensation Fund Law, 5721-1961, ss. 35-38B.

Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973.

Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006.

Protection of Workers in a State of Emergency Law, 5766-2006.

 

Israeli Supreme Court cases cited:

[1]          CrimA 6411/98 Manbar v. State of Israel [2001] IsrSC 55(2) 150.

[2]          HCJ 5128/94 Federman v. Minister of Police [1994] IsrSC 48(5) 647.

[3]          HCJ 5167/00 Weiss v. Prime Minister [2001] IsrSC 55(2) 455.

[4]          HCJ 3975/95 Kaniel v. Government of Israel [1999] IsrSC 53(5) 459.

[5]          HCJ 963/04 Laufer v. State of Israel [2004] IsrSC 58(3) 326.

 

For the petitioner in HCJ 6204/06 — H. Ashlagi, H. Peretz.

For the petitioners in HCJ 6235/06 — Y. Goldberg.

For the petitioner in HCJ 6274/06 — T. Medadluzon.

For the respondents in HCJ 6204/06 and HCJ 6235/06 and respondents 1-3 in HCJ 6274/06 — E. Ettinger.

For respondents 4-5 in HCJ 6274/06 — R. Scherman-Lamdan.

 

 

JUDGMENT

 

 

Justice D. Beinisch

The three petitions before us were filed against the background of the state of hostilities in which Israel has found itself since 12 July 2006, when the hostilities began between Israel and the Hezbollah organization, which is operating against the IDF and against the citizens of the State of Israel from the territory of Lebanon.

The background to the petitions

1.            On the morning of 12 July 2006, the Hezbollah organization carried out an offensive operation inside the territory of Israel, as a result of which eight IDF soldiers were killed and two other soldiers were kidnapped and taken over the border. Following this attack, the government adopted a decision on the same day, in which, inter alia, it decided the following:

‘Israel must respond with the severity required by this offensive operation, and it will indeed do so. Israel will respond in a forceful and determined manner against the perpetrators of the operation and the parties responsible for it, and it will also act to frustrate efforts and activity directed against Israel’ (government decision no. 258).

Within the framework of that decision, the government approved the recommendations presented to it by the security establishment, and it also authorized the prime minister, the Minister of Defence, the various deputy prime ministers and the Minister of Public Security to approve the specific operations presented by the security establishment for implementation. Since 12 July 2006, the IDF has been carrying out massive military operations in the territory of Lebanon, and the State of Israel has been attacked at the same time with thousands of missiles and Katyusha rockets, which have caused death and injuries to dozens of Israeli citizens in the north of Israel, as well as substantial damage to property. On 13 July 2006, the Minister of Defence appeared before the Foreign Affairs and Defence Committee of the Knesset, and at that session descriptions were given by the minister and by intelligence and operations officers. It should also be stated that on 15 July 2006 the Minister of Defence decided to make use of the power given to him under s. 9C(b)(1) of the Civil Defence Law, 5711-1951 (hereafter: the Civil Defence Law) and he declared the existence of a ‘special situation on the home front.’ This declaration has significance with regard to granting powers to give orders concerning defence of the home front against military attacks. On 16 July 2006, the government convened a second time to discuss the security position and it also considered, inter alia, the special situation on the home front. The government decided, inter alia, that it would consider extending the order made by the Minister of Defence within 48 hours of the date of the declaration after it had received the recommendations of an inter-departmental committee chaired by the director-general of the Prime Minister’s Office (government decision no. 273). The next day, on 17 July 2006, the prime minister made a statement with regard to the security situation before the Knesset. In his statement in the Knesset he announced, inter alia, that:

‘Extreme, terrorist, violent elements are disrupting the life of the whole area and putting its stability in jeopardy. The area in which we live is threatened by these murderous terrorist groups; it is an interest of the whole area — and an international interest — to control them and to stop their activity… We will continue to act with all our power until we achieve this… In Lebanon we will fight in order to achieve the conditions that the international community has determined, and this was given a clear expression only yesterday in the decision of the eight leading nations of the world:

The return of the hostages Ehud (Udi) Goldwasser and Eldad Regev.

An absolute cessation of hostilities.

The deployment of the Lebanese army throughout Southern Lebanon.

The removal of Hezbollah from the area by implementing United Nations resolution no. 1559.

Until then, we will not cease to act.

On both fronts we are speaking of self-defence operations in the most fundamental and basic sense. In both cases we have an interest whose importance and significance go far beyond the scope of the individuals concerned.’

On the same day, the government also adopted decision no. 282, in which it was decided, inter alia, to extend the declaration of the Minister of Defence concerning ‘a special situation on the home front’ in accordance with the power given to the government under s. 9C(b)(3) of the Civil Defence Law. The government also decided ‘to apply to the Foreign Affairs and Defence Committee of the Knesset and to ask for its approval to extend the period during which the declaration is valid until the date on which the government will decide to cancel the declaration.’ It should also be pointed out that the Foreign Affairs and Defence Committee of the Knesset held two additional sessions with regard to the situation. At the session that took place on 18 July 2006, the chief of staff, the Home Front Commander and the Head of the Research Division in the Intelligence Branch appeared before the committee. At the session that took place on 26 July 2006 the prime minister gave the committee a report concerning the security position. An additional government decision that is relevant to the petitions before us is decision no. 309 that the government adopted on 23 July 2006. This decision approved the draft Protection of Workers in a State of Emergency Law, 5766-2006 (hereafter: the Protection of Workers in a State of Emergency Law), which was intended to prevent the dismissal of workers who are unable to go to work during the period of the hostilities. With regard to the economic loss caused to Israeli residents as a result of the current security position, we were told in the response to the petitions that was filed on behalf of the attorney-general that on 27 July 2006 an agreement was signed between government representatives, the General Federation of Labour and the Manufacturers Association of Israel. This agreement was intended, inter alia, to regulate matters concerning employment relations that were affected by the security position and the directives of the security forces. The aforementioned agreements in the sphere of labour relations were enshrined in an agreement that the government regards as a collective agreement, and the government also gave notice of its intention to table a draft law in order to apply the provisions of the aforesaid agreement to all the workers in the economy. The Minister of Finance also announced, within the framework of the agreement of 27 July 2006, that he intended to submit, for the approval of the Finance Committee of the Knesset, the Property Tax and Compensation Fund (Payment of Compensation) (War Damage and Indirect Damage) Regulations (Temporary Provision), 5766-2006 (hereafter: the Property Tax Regulations, 2006), which would provide, inter alia, a mechanism that would allow compensation to be given to towns that were not considered border towns under the Property Tax and Compensation Fund Law, 5721-1961 (hereafter: the Property Tax Law) and the regulations enacted thereunder. The Property Tax Regulations would also determine the areas and periods in which employers would be entitled to compensation from the state for indirect damage, and would also determine the amount of the indirect damage. On 31 July 2006, the Finance Committee of the Knesset did indeed approve the aforesaid regulations, and on the same day the Knesset also passed the Protection of Workers in a State of Emergency Law, whose purpose, as aforesaid, was to protect workers who were absent from their work because of the security situation.

The petitions

2.            As stated, three petitions were filed against the background of the events arising from the hostilities, and these were heard jointly before us on 30 July 2006. All of them concern the legal steps required by the situation that has arisen. In the petition filed by the petitioner in HCJ 6204/06, MK Dr Y. Beilin argues that the government of Israel acted unlawfully in that it did not make a decision to start a war in accordance with s. 40(a) of the Basic Law: the Government, even though Israel has de facto been in a state of war since 12 July 2006. The petitioner also argues that, contrary to the provisions of s. 40(c) of the Basic Law: the Government, the government did not deliver a notice of its intention to start a war to the Foreign Affairs and Defence Committee of the Knesset, nor did the prime minister give such a notice to the plenum of the Knesset. The petitioner emphasizes that the matter at issue in the petition is not the question whether the decisions made by the political leaders concerning the war were justified, but whether they complied with the constitutional obligations imposed on them with regard to the manner of making the decision to start a war. The petitioner also addresses in his petition the economic ramifications that he claims are the result of not making a declaration of war. The petitioner therefore requests that the respondents make use of the power given to them in s. 40(a) of the Basic Law: the Government, and that the government should decide to make a declaration of war. The petitioners in HCJ 6235/06, who are business owners in Haifa and Tiberias, request that a state of emergency should be declared in Israel that will have immediately effect in the area of Haifa and the north, and that the government shall be liable to enact emergency regulations in order to prevent the collapse of the petitioners’ businesses and to enable them to continue to survive from an economic viewpoint during the emergency period. The petitioner in HCJ 6274/06, the Movement for Quality Government in Israel, requests that the respondents should exercise the powers given to them under the law in order to give real financial compensation to the workers and their employers, especially in the north of Israel, who have been harmed economically by the military hostilities taking place at this time. According to the petitioner, the respondents are liable to compensate financially those citizens who have been harmed economically by the war and the refusal of the respondents to exercise their powers amounts to a shirking of the state’s duty to the residents in the line of fire, which is unreasonable and results in an unequal division of the economic burden, as well as undermining the values of solidarity and collective responsibility.

Deliberations

3.            Let us first consider the arguments of the petitioner in HCJ 6204/06 with regard to the relief he is seeking that a state of war should be declared. These arguments are based on the provisions of s. 40 of the Basic Law: the Government, which states the following:

‘Declaration of war          40. (a) The state shall not begin a war other than by virtue of a government decision.

                (b) Nothing in this section shall prevent military operations that are required for the purpose of the defence of the state and the security of the public.

                (c) A notice of a government decision to start a war under subsection (a) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity; the prime minister shall also deliver the notice at the earliest opportunity to the plenum of the Knesset; a notice of military operations as stated in subsection (b) shall be delivered to the Foreign Affairs and Defence Committee of the Knesset at the earliest opportunity.’

Section 40(a), which according to the petitioner is the relevant section in this case, was intended to ensure that the State of Israel would not begin a war without a decision of the government, which has collective responsibility to the Knesset (see s. 4 of the Basic Law: the Government). Section 40(c) of the Basic Law: the Government provides that the government should give notice of a decision that it makes under s. 40(a) of the Basic Law to the Foreign Affairs and Defence Committee of the Knesset, and that the prime minister should also give the notice at the earliest opportunity to the plenum of the Knesset. These provisions are a tangible expression of the responsibility of the government to the Knesset.

In his arguments before us, counsel for the petitioner, Advocate Ashlagi, discussed at length the constitutional importance of the aforesaid s. 40(a), and how important it is that the government should act according to law and carry out the constitutional processes required by the Basic Laws, which are the basis for the government’s collective responsibility to the Knesset. The state argued before us, in so far as the current conflict between Israel and Hezbollah is concerned, that the government saw no reason in the present situation why it should make use of its power under s. 40(a) of the Basic Law: the Government; according to its outlook, it is carrying out military operations in accordance with s. 40(b) of the Basic Law: the Government, and the government decision of 12 July 2006 was made accordingly.

4.            The constitutional propriety of the proceedings whereby a government decision is made with regard to starting military activity in Lebanon is what lies at the heart of the petition of MK Y. Beilin. According to the Basic Law: the Government, the government is the executive authority of the state and it has collective responsibility to the Knesset. By virtue of its role as the executive authority of the state, the government is responsible for managing the foreign affairs of the state and by virtue of its status and according to s. 2(a) of the Basic Law: the Army, the army is subservient to it. Part of the democratic character of our system of government is that all the security authorities are subservient to the government, whereas the government, as aforesaid, is responsible to the Knesset (see, in this regard, A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel — the Organs of Government and Citizenship (sixth edition, 2005), at pp. 979-981; M. Kremnitzer and A. Bendor, The Basic Law: the Army (Commentary on the Basic Laws edited by I. Zamir, 2000), at pp. 44-45). Indeed, in order to uphold the principles of our system of government, it is very important that no significant military operations are carried out without a government decision and without parliamentary scrutiny. This is also the premise underlying the provisions of s. 40 of the Basic Law: the Government; the provisions of the section are intended to ensure that there is no departure from the basic principles concerning the responsibility of the government on behalf of the state for military operations and also to ensure that the government is responsible to the Knesset for carrying out such operations. The provisions of ss. 40(b) and (c) of the Basic Law: the Government were also enacted to this end; these provide the exception to the rule in s. 40(a) and the duty of reporting to the Knesset. It should be emphasized that s. 40(a) of the Basic Law did not define what constitutes ‘starting a war’ within the meaning of the section. This is a complex question that is multi-faceted. The definition of the concept of ‘war,’ when we are speaking of the government’s powers with regard to military operations, cannot be separated from the foreign affairs of the state and the functioning of the government in the sphere of international relations. Therefore, the interpretation of the concept of ‘war’ in this context, which has ramifications in the international sphere, is based mainly on the rules of international law. A decision of the government that can be interpreted as a declaration of war is likely to have extreme consequences in the sphere of international relations, and indeed in the international sphere formal declarations of war have not been customary in recent decades. It is not superfluous to add that according to international law a formal declaration of war is not a condition for the existence of a state of war or an armed conflict, nor is it required for the application of the rules of international law concerning the manner of conducting the fighting (see C. Greenwood, ‘Scope of Application of Humanitarian Law’ in D. Fleck, Handbook of Humanitarian Law in Armed Conflicts (1999), at p. 43; I. Detter, The Law of War (second edition, 2004), at pp. 9-17; R. Sabel, International Law (2003), at pp. 423-424).

It should be noted that in Israeli law there is also no binding connection between the existence of a state of war, with all of its legal ramifications, and an official declaration of the government to start a war. The expression ‘war’ appears in various pieces of legislation and the interpretation given to it depends on the purpose of the legislation and the legislative environment in which the expression appears, rather than on the formal proceeding of a declaration of starting a war (see, for example, s. 99 of the Penal Law, 5737-1977, concerning the offence of aiding an enemy in a war; s. 1 of the Declaration of Death Law, 5738-1978, concerning the definition of the term ‘killed’; s. 211(c) of the Customs Ordinance [New Version], concerning the commission of an offence of smuggling during a state of war. See also CrimA 6411/98 Manbar v. State of Israel [1], at pp. 194-197). In support of his arguments, counsel for the petitioner contends that in the last few days steps have been taken to effect a large-scale call-up of reserve forces. He also argued that the Minister of Defence said publicly that we are at war and all of these show that we are indeed speaking of a war within the meaning of s. 40(a). This argument is not convincing, because it has no legal foundation. Large-scale military operations, firing by hostile forces (including a terrorist organization) on a civilian population, the civil population’s feeling of emergency and threat and the casualties suffered as a result of military operations on both sides of the border all lead to a security situation in which the State of Israel is regarded by the public as in a state of war. It should be emphasized that even from a legal perspective, for the purpose of various laws, the current security position may be considered a state of war. But this is insufficient to establish a basis for making a declaration to start a war for the purpose of the provisions of s. 40(a) of the Basic Law: the Government. The provisions of s. 40(a) say that ‘The state shall not begin a war other than by virtue of a government decision’ (emphasis supplied). In the circumstances that have arisen, the government is entitled to determine that the military operations that it decided to carry out do not constitute ‘starting a war’ but merely military operations that constitute self-defence in response to aggression. The government acted in this regard within the framework of its clear authority in accordance with the broad discretion given to it with regard to all matters of foreign and defence policy (see and cf. HCJ 5128/94 Federman v. Minister of Police [2]; see also HCJ 5167/00 Weiss v. Prime Minister [3], at pp. 471-472, and the references cited there).

We should also add that the concern expressed by counsel for the petitioner with regard to a violation of the constitutional purpose of the provisions of the section has no foundation. Even though the government decided that the military activity in Lebanon falls within the scope of the provisions of s. 40(b) of the Basic Law, de facto it also carried out all of the procedures stipulated in the law that are relevant to a decision under s. 40(a). The decision to carry out military operations against the Hezbollah organization was made by the government as a whole. The Foreign Affairs and Defence Committee was given a report about this decision, and several reports were also given to the committee with regard to the developments that took place. These reports satisfy the requirement that the government’s decision is subject to parliamentary scrutiny. In this way, the government de facto discharged its duty even in accordance with the more stringent requirements of s. 40(a). We should also add that the fact that no use was made of s. 40(a) of the Basic Law is of no significance for the purpose of the economic compensation and aid required by the residents of the north of the country. For this reason, the manner in which the government acted in making the decisions under discussion is consistent with its powers and the scope of discretion given to it, and it does not give rise to any ground for our intervention (cf. HCJ 3975/95 Kaniel v. Government of Israel [4], at p. 493; HCJ 963/04 Laufer v. State of Israel [5], at pp. 334-335).

5.            The question of determining the method of compensating the residents of the north of the country, which was raised in all the petitions before us, is a serious question that deserves the immediate consideration of the government and the Knesset. There is no doubt that the residents of the areas that lie within range of the continual shooting carried out by the Hezbollah without respite are entitled to be compensated by the state for the direct and indirect damage suffered by them. A large sector of the population has been harmed and is confined to reinforced rooms and shelters. Ordinary life — business, trade, agriculture and industry — has been disrupted. Workers have been prevented from going to their places of work and employers have been reduced to economic difficulties. All of this requires the special attention of the government and the Knesset in order to find appropriate solutions. We see from the statement of counsel for the Attorney-General that at the very moment steps are being taken by the government, which will also be submitted for the approval of the Knesset, and these will include various compensation arrangements for the residents of the north. It can also be seen from this statement that there are also proper legal tools in existing legislation (see ss. 35-38B of the Property Tax Law, and the Property Tax and Compensation Fund (War Damage and Indirect Damage) Regulations, 5733-1973), and in so far as adjustments are required for the current situation the government will take steps to initiate legislation and to enact regulations immediately. The Knesset has notified us that there are private bills pending before the Knesset, and these are intended for the same purpose. The government also gave notice, as we said above, that on 27 July 2006 it reached an agreement with the General Federation of Labour and the Manufacturers Association of Israel with regard to the regulation of employment relations between workers and employers that are affected by the current security position. The agreement also contains a mechanism that will allow compensation for towns that are not currently considered ‘border towns’ under the Property Tax Law and the regulations enacted thereunder. It should be noted, however, that this agreement is valid for a period that ended on 31 July 2006 and it was argued before us that the agreement does not encompass all of the problems that have arisen as a result of the military operations. In any case, in view of the statements given to us with regard to the steps being taken for this purpose, it can be assumed that the government will indeed act as quickly as possible in order to ensure an immediate reduction of the damage caused to the residents of the north and proper compensation for the severe economic harm caused to them. And so, as we said above, on 31 July 2006 the Knesset passed the Protection of Workers in a State of Emergency Law, which concerns the protection of workers’ rights in the current security situation. On the same date, the Finance Committee of the Knesset also approved the Property Tax Regulations, 2006, whose purpose is to regulate the compensation for certain aspects of the economic loss of residents of the north resulting from the military operations. The provisions of the law and the regulations enshrine the provisions of the agreement that was signed on 27 July 2006. Therefore, in so far as the petitions relate to the lack of compensation arrangements, there has been a change in the legal position since the petitions were filed. In so far as the arrangements that have been made do not satisfy the petitioners and their dissatisfaction is well-founded, the doors of this court will be open to them. In concluding our judgment, we should point out that with regard to the claims of the petitioners in HCJ 6235/06, who are requesting that a state of emergency should be declared and that emergency regulations should be enacted, there is no need for the relief sought by them. The Knesset already decided on 31 May 2006 to extend the state of emergency that has existed in Israel since it was founded by another year, by virtue of the power given to the Knesset in s. 38 of the Basic Law: the Government. Moreover, the petitioners also did not succeed in showing any reason why the measure of enacting emergency regulations should be adopted in order to regulate the granting of compensation to which they claim they are entitled.

For these reasons the petitions should be denied.

 

 

Justice A. Procaccia

I agree.

 

 

Justice E. Arbel

I agree.

 

 

Petition denied.

7 Av 5766.

1 August 2006.

 

HCJ 2245/06

1.            MK Neta Dobrin

2.            MK Ronen Tzur

v.

1.            Israel Prison Service

2.            Yigal Amir

3.            Dr Larissa Trimbobler

 

 

The Supreme Court sitting as the High Court of Justice

[13 June 2006]

Before Justices A. Procaccia, S. Joubran, E. Hayut

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: The second respondent (Amir) was convicted of the murder of the late Prime Minister Yitzhak Rabin and was sentenced to life imprisonment. While in prison, he married the third respondent. When the first respondent refused, on security grounds, to allow Amir conjugal visits with his wife, Amir applied to the first respondent to be allowed to provide his wife with a sperm sample for the purposes of artificial insemination. The first respondent granted his request.

The petitioners, two members of the Knesset, consequently filed the petition, arguing that the first respondent did not have any authority in statute to grant the request and its decision was therefore ultra vires. In addition, the petitioners argued that it was immoral to allow the murderer of the prime minister to have children; that he had no right to start a family while in prison, that the parental capacity of the third respondent should have been considered; and that the decision was contrary to the natural rules of justice and unreasonable, in that it gave no weight to the feelings of deep abhorrence felt by most citizens at the despicable acts perpetrated by Amir.

 

Held: The first respondent’s decision was made intra vires. A prisoner has a constitutional human right to parenthood. This does not cease automatically as a result of the sentence of imprisonment, although it may be restricted for reasons relevant to the imprisonment. The first respondent does not need an authorization in statute to permit a prisoner to realize his rights. The premise on which the petition is based is fundamentally unsound; it effectively turns the law upside down and undermines basic principles of public and constitutional law. When a person has a right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: authority is required in statute in order to restrict or violate the right.

The first respondent does not have a power to add to a prisoner’s punishment that was imposed on him in the sentence handed down by the court. The public’s feelings of abhorrence at Amir’s crime cannot affect the scope of the human rights given to him in prison, and the nature of the restrictions upon them that are permitted.

 

Petition denied.

 

Legislation cited:

Basic Law: Human Dignity and Liberty, ss. 1A, 2, 4, 8.

Knesset Elections Law, 5729-1969, s. 116.

Penal Law, 5737-1977, ss. 1, 48.

Prisons Ordinance [New Version], 5732-1971, ss. 25, 56(30), 58, 76.

Release from Imprisonment on Parole Law, 5761-2001, ss. 9, 10.

 

Israeli Supreme Court cases cited:

[1]          LHCJA 3172/99 Amir v. Israel Prison Service (unreported).

[2]          LHCJA 5614/04 Amir v. Israel Prison Service (unreported).

[3]          HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [2006] (1) IsrLR 443.

[4]          LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) (unreported).

[5]          HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [2003] IsrSC 57(1) 419.

[6]          CFH 2401/95 Nahmani v. Nahmani [1996] IsrSC 50(4) 661; [1995-6] IsrLR 320.

[7]          CA 232/85 A v. Attorney-General [1986] IsrSC 40(1) 1.

[8]          LCA 3009/02 A v. B [2002] IsrSC 56(4) 872.

[9]          CA 2266/93 A v. B [1995] IsrSC 49(1) 221.

[10]        LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [2003] IsrSC 57(5) 385.

[11]        HCJ 355/79 Katlan v. Prisons Service [1980] IsrSC 34(3) 294.

[12]        LHCJA 3713/04 A v. State of Israel (not yet reported).

[13]        LHCJA 1552/05 Hajazi v. State of Israel (not yet reported).

[14]        LHCJA 8866/04 Hammel v. Israel Prison Service (not yet reported).

[15]        PPA 4463/94 Golan v. Prisons Service [1996] IsrSC 50(4) 136; [1995-6] IsrLR 489.

[16]        PPA 1076/95 State of Israel v. Kuntar [1996] IsrSC 50(4) 492.

[17]        PPA 5537/02 State of Israel v. Sarsawi [2004] IsrSC 58(1) 374.

[18]        PPA 4/82 State of Israel v. Tamir [1983] IsrSC 37(3) 201.

[19]        HCJ 114/86 Weil v. State of Israel [1987] IsrSC 41(3) 477.

[20]        LHCJA 4338/95 Hazan v. Israel Prison Service [1995] IsrSC 49(5) 274.

[21]        HCJ 221/80 Darwish v. Prisons Service [1981] IsrSC 35(1) 536.

[22]        HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [1986] IsrSC 40(1) 567.

[23]        HCJ 89/01 Public Committee Against Torture v. Parole Board [2001] IsrSC 55(2) 838.

[24]        LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [2005] IsrSC 59(2) 176.

[25]        LHCJA 9837/03 A v. Parole Board [2004] IsrSC 58(2) 326.

[26]        HCJ 337/84 Hukma v. Minister of Interior [1984] IsrSC 38(2) 826.

[27]        CrimApp 3734/92 State of Israel v. Azazmi [1992] IsrSC 46(5) 72.

[28]        HCJ 1/49 Bajerno v. Minister of Police [1948] IsrSC 2 80.

[29]        HCJ 9/49 Bloi v. Minister of Interior [1948] IsrSC 2 136.

[30]        HCJ 144/50 Sheib v. Minister of Defence [1951] IsrSC 5 399; IsrSJ 1 1.

[31]        HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [1954] IsrSC 8 1524.

[32]        HCJ 112/77 Fogel v. Broadcasting Authority [1977] IsrSC 31(3) 657.

[33]        HCJ 935/89 Ganor v. Attorney-General [1990] IsrSC 44(2) 485.

[34]        HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1; [1997] IsrLR 149.

[35]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [1988] IsrSC 42(2) 309.

[36]        HCJ 217/80 Segal v. Minister of Interior [1980] IsrSC 34(4) 429.

[37]        HCJ 6358/05 Vaanunu v. Home Front Commander (not yet reported).

[38]        HCJ 4541/94 Miller v. Minister of Defence [1995] IsrSC 49(4) 94; [1995-6] IsrLR 178.

[39]        CA 518/82 Zaitsov v. Katz [1986] IsrSC 40(2) 85.

[40]        HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 58(5) 807; [2004] IsrLR 264.

[41]        BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [2004] IsrSC 58(4) 55.

[42]        HCJ 543/76 Frankel v. Prisons Service [1978] IsrSC 32(2) 207.

[43]        HCJ 7837/04 Borgal v. Israel Prison Service [2005] IsrSC 59(3) 97.

[44]        HCJ 96/80 Almabi v. Israel Prison Service [1980] IsrSC 34(3) 25.

[45]        HCJ 144/74 Livneh v. Prisons Service [1974] IsrSC 28(2) 686.

 

American cases cited:

[46]        Turner v. Safley, 482 U.S. 78 (1987).

[47]        Overton v. Bazzetta, 539 U.S. 126 (2003).

[48]        Hudson v. Palmer, 468 U.S. 517 (1984).

[49]        Pell v. Procunier, 417 U.S. 817 (1974).

[50]        Washington v. Harper, 494 U.S. 210 (1990).

[51]        Skinner v. Oklahoma, 316 U.S. 535 (1942).

[52]        Eisenstadt v. Baird, 405 U.S. 438 (1972).

[53]        Carey v. Population Services International, 431 U.S. 678 (1977).

[54]        Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974).

[55]        Stanley v. Illinois, 405 U.S. 645 (1972).

[56]        Anderson v. Vasquez, 28 F.3d 104 (9th Cir. 1994).

[57]        Hernandez v. Coughlin, 18 F.3d 133 (2nd Cir. 1994).

[58]        Toussaint v. McCarthy, 801 F.2d 1080 (9th Cir. 1986).

[59]        Goodwin v. Turner, 908 F.2d 1395 (8th cir. 1990).

[60]        Percy v. State of New Jersey, Department of Corrections, 278 N.J. Super. 543 (App. Div. 1995).

[61]        Gerber v. Hickman, 291 F.3d 617 (9th cir. 2002).

 

English cases cited:

[62]        R. v. Secretary of State for the Home Department, Ex Parte Simms [1999] 3 All ER 400.

[63]        R. (Mellor) v. Secretary of State for the Home Department [2001] 3 W.L.R. 533.

 

European Commission of Human Rights cases cited:

[64]        X v. UK (1975) 2 D&R 105.

[65]        X v. Switzerland (1978) 13 D&R 241.

[66]        Hamer v. UK (1979) 4 EHRR 139.

[67]        Draper v. UK (1980) 24 D&R 72.

[68]        ELH and PBH v. UK (1997) 91A D&R 61.

 

European Court of Human Rights cases cited:

[69]        Dickson v. United Kingdom, no. 22362/04 [2006].

[70]        Hirst v. United Kingdom, no. 74025/01 [2005].

[71]        Aliev v. Ukraine, no. 41220/98 [2003].

[72]        Evans v. United Kingdom, no. 6339/05 [2006].

 

For the petitioners — S. Ben-Ami.

For the first respondent — I. Amir.

For the second and third respondents — A. Shamay, O. Schwartz.

 

 

JUDGMENT

 

 

Justice A. Procaccia

1.            Yigal Amir, a prisoner serving a life sentence, was convicted of the murder of the late Prime Minister Yitzhak Rabin. He submitted an application to the prison authorities in which he requested permission to send a sperm sample out of the prison in order to enable the artificial insemination of his wife, Larissa Trimbobler. On 5 March 2006, the competent authority at the Israel Prison Service decided to grant the request (hereafter — ‘the decision).

2.            The petitioners, who were both members of the last Knesset, filed a petition against the Israel Prison Service and against the prisoner and his wife in order to cancel the decision. Alternatively, they request that the Israel Prison Service establish a special committee composed of professionals who will consider and examine the conditions required for granting a permit to a security prisoner regarding artificial insemination, which should take into account, inter alia, the factor of the best interests of the child that will be born and examine the consent and ability of the wife to take responsibility for raising him, and it should make recommendations in this regard. We were also asked to stay the decision of the Israel Prison Service that is the subject of this petition until the proceedings in the proposed committee are completed. As a third option, the petitioners request that they be allowed to table a draft law in this matter, and that the implementation of the decision should be stayed in the interim.

Background

3.            The respondent was convicted of the murder of the late Prime Minister Yitzhak Rabin and of the wounding of his bodyguard in aggravated circumstances. He was sentenced to life imprisonment and to an additional six years imprisonment. He was also convicted in another trial of conspiracy together with his brother, Haggai Amir, and another person, Dror Edni, to murder the prime minister, and of conspiring with them to assault residents of Arab towns and Palestinian police personnel in Judaea and Samaria. For this conviction he was sentenced to an additional eight years imprisonment, to be served consecutively.

4.            Because of the nature of the risk presented by Amir, he was classified by the prison authorities as a ‘security prisoner.’ This classification led to the imposition of various restrictions upon him, of which the main ones are that he is held separately from other prisoner, surveillance cameras are installed in his cells and there are visitation restrictions. Various objections by Amir to these restrictions were rejected (LHCJA 3172/99 Amir v. Israel Prison Service [1], PPA (BS) 2077/01, and see also PPA (TA) 2853/05-A). Notwithstanding, Amir’s application to allow him to have meetings with the third respondent, his wife, was approved by the court; this was because, inter alia, no evidence was presented with regard to her activity (PPA (BS) 2077/01).

5.            In January 2004, Amir submitted a request to the Israel Prison Service to be allowed to marry Larissa and to have conjugal visits with her. When the response was slow in coming, Amir filed a prisoner’s petition in this matter to the Tel-Aviv District Court. In response to the petition, the Israel Prison Service gave notice that it decided to deny the request for conjugal visits, and that it had not yet formulated a position on the question of marriage. The District Court, in reliance on privileged intelligence information, decided to deny Amir’s petition with regard to conjugal visits. Amir applied for leave to appeal this decision in the Supreme Court, which denied the application (LHCJA 5614/04 Amir v. Israel Prison Service [2]; hereafter — LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits)). In its decision (per Vice-President M. Cheshin), the court examined the conflict of values between the right of a human being to conjugal visits, and the interest of state security that is likely to conflict with it, and it evaluated their weight in order to balance them. The court found that in the circumstances of the case there was a real concern that allowing conjugal visits between the couple would lead to a security risk. It said that the great risk presented by Amir had not decreased since he committed the offences for which he was serving his sentence, and he remained committed to the terrorist ideology that he espoused in the past. The court also found that Amir was the subject of adulation and a role model in certain circles, there was concern that unsupervised meetings with his wife would be abused in order to transmit messages in the spirit of his extreme views, and that he would thereby influence others to carry out extreme acts of the kind that he committed. The concern regarding security interests was greater, in the opinion of the court, because of information that was submitted, according to which Larissa had independent contacts with extreme activists who identified in their ideologies with Amir’s beliefs. All of this led to the court’s conclusion that the refusal of the competent authority to allow Amir conjugal visits with his wife was reasonable and proper. The question of Amir’s right to marry his wife was not decided in that case, since at that stage the decision of the Israel Prison Service on this matter had not been made. At a later stage Amir and Larissa married by proxy, and on 10 July 2005 the marriage was declared valid by the Rabbinical Court.

6.            On 27 July 2005 Amir made a request to the Israel Prison Service to allow him to carry out procedures for the purpose of artificial insemination treatments for his wife, in order to allow them ‘to realize their desire to bring children into the world,’ and he produced a medical certificate in this regard as required by the authority. On 3 January 2006, before a decision was made with regard to the request, Amir filed a prisoner’s petition in which he applied ‘to carry out artificial insemination with his wife, Ms. Larissa Trimbobler.’ On 5 March 2006, after considering the legal position, the Israel Prison Service decided to approve Amir’s request. The following is the language of the decision:

‘1.           After the petitioner’s request has been examined [it has been decided] to allow the petitioner to send sperm outside the prison for the purpose of the artificial insemination of Ms. Larissa Trimbobler.

2.            The transmission of the sperm sample will be allowed within the framework of a visit by Ms. Larissa or within the framework of a visit by another person who is permitted to visit the petitioner.

3.            Nothing in the aforesaid amounts to consent for the prisoner to be allowed outside the prison for the purpose of any fertility treatments or for other fertility treatments to be administered in the prison, something that was not even requested by him.

4.            It is also clarified that no change whatsoever will be allowed in the rules governing the terms in which the petitioner is held, including the number of visits to which the petitioner is entitled.

5.            If you wish to clarify anything concerning the manner of transmitting the sperm sample, we ask you to refer the matter to us and the matter will be examined by us.’

The petition before us is directed against this decision.

The arguments of the parties

The arguments of the petitioners

7.            The petitioners’ arguments are composed of several strata: first, they argue that the Prison Service Commissioner does not have the authority to grant a permit to a security prisoner to transmit a sperm sample for the purpose of insemination within the framework of the powers given to the Commissioner under the Prisons Ordinance, which gives him power to regulate matters of prison administration and discipline. According to the petitioners, a permit for artificial insemination, if at all, should be found in express legislation and not in administrative guidelines, and therefore the decision of the Israel Prison Service concerning Amir should be set aside because it was made ultra vires. Alternatively, even if the decision was made intra vires, it should be set aside on the merits because it is immoral and violates the basic outlooks of an enlightened society. It is not right to allow the murderer of a prime minister, who has not expressed regret for his despicable act, to give life to a new generation of his progeny and to bequeath the heritage of his despicable beliefs through his child. This decision, so it is alleged, departs from the natural rules of justice, runs contrary to administrative reasonableness and is also contrary to the rules of equality between prisoners, since it was made without carrying out a process of properly examining the right of all security prisoners to have children. The petitioners further argue that a prisoner has no inherent right under the law to create a family while he is in prison. Giving permission for artificial insemination by a prisoner constitutes a privilege that requires the discretion of the competent authority in the specific case, and this should be exercised by balancing the wishes of the prisoner to bring children into the world with maintaining discipline in the prison. In this case, no balance was made between these values, and for this reason also the decision is defective. Amir’s special personal circumstances, the seriousness of his actions, his current attitude to his actions and his conduct in the prison were not considered. In giving this kind of permission, the authority should also consider questions of the parental capacity of the mother to raise on her own the child that will be born, as well as the interests of the child, and no weight was given to these matters in the decision of the Israel Prison Service. Finally, the petitioners argue that the unreasonableness of the decision is also reflected in the fact that no weight was given to the serious injury to the feelings of the public that will be caused by granting this permission, in view of the deep abhorrence felt by the citizens of Israel towards Amir for his despicable acts.

The position of the state

8.            The state’s position is that there is no basis for intervening in the decision of the Israel Prison Service to allow Amir to send a sperm sample out of the prison for the artificial insemination of his wife. According to case law, a distinction should be made between restrictions on human rights required by the actual imprisonment, such as a restriction on the freedom of movement, and restrictions on other rights that are not inherent to the imprisonment and are not limited by an express provision of statute. A restriction on the ability of the prisoner to provide a sperm sample for artificial insemination is not inherent to the actual imprisonment, and there is no provision of statute that prohibits or restricts it. In the absence of such an express provision of statute, and in the absence of a security reason or any concern of prison discipline that requires such a restriction, there is no basis for denying Amir’s request to give a sperm sample to his wife. In the course of the hearing, the state gave notice that the Israel Prison Service intends in the near future to formulate a general procedure concerning the sending of sperm samples by prisoners to their wives.

The position of the second and third respondents

9.            The argument of the second and third respondents, Amir and his wife, is that even if we assume that the offences that Amir committed are despicable offences, there is no legal or moral basis for depriving them of the right to have children. The sentence imposed on Amir is limited to depriving him of his freedom for his whole life; it does not extend to the basic right to have a family and to bring children into the world, nor does it permit these to be restricted without a conflicting consideration of great weight. A prisoner retains his human rights as long as there is no public interest of great weight that justifies depriving him of them, and in this case there is no such interest. The consideration of the best interests of the child, which was raised by the petitioners as a reason for denying Amir his right to hand over a sperm sample, is unfounded, since it is clear that the wife has full parental capacity, and this assumption has not been rebutted.

Decision

10. A prisoner serving a life sentence, who has been convicted of the despicable murder of a prime minister, wishes to realize the right to have children by giving a sperm sample to his wife outside the prison. The Israel Prison Service granted his request, while stipulating certain conditions for it that concern the administrative arrangements of the prison. Were there any defects in this administrative decision that justify the intervention of this court to amend it or set it aside?

In view of the petitioners’ arguments, it is clear that we are required to examine the validity of the commissioner’s decision in two respects: the issue of authority and the issue of administrative discretion. With regard to the issue of authority, the question is whether the commissioner required express authority under the law to grant permission to a prisoner to transfer a sperm sample to his wife outside the prison. With regard to the issue of discretion, the question is whether the decision is reasonable and proportionate; were all the relevant considerations and no others taken into account? Was the balance between the relevant considerations a proper and proportionate one, in view of the fact that we are concerned with a basic right which can only be violated if the tests of the limitations clause in the Basic Law: Human Dignity and Liberty are satisfied?

I will start with my conclusion and say that the commissioner’s decision was made intra vires and it contains no departure from the powers given to him by law; the decision on its merits is founded on relevant considerations, it is reasonable and proportionate and it does not contain any defect that justifies judicial intervention.

The following are my reasons.

The commissioner’s powers — a normative outline

11. Does the commissioner’s decision to allow Amir to hand over a sperm sample fall within the scope of his authority under the law? Is special authorization required in the law in order to give this permission, such that without such authorization the permission falls outside the scope of the authority’s power?

There is currently no express statutory arrangement with regard to the right of a prisoner to give a sperm sample to his wife for the purposes of insemination outside the prison. Notwithstanding, the existence of such a legislative arrangement is not a precondition for permitting this, for the following reason: according to general constitutional principles of law, a person in Israel has constitutional human rights. These are reflected, inter alia, in the Basic Law: Human Dignity and Liberty (hereafter — ‘the Basic Law’), which enshrines some of the human rights and gives them a super-legislative status. These rights include the human right to dignity, from which the right to family and parenthood is derived.

The constitutional outlook that focuses on the protection of human rights is based on the assumption that the constitutional rights of a person are not absolute, and sometimes there is no alternative to allowing a violation of them in order to realize a conflicting essential public interest. In circumstances where tension arises between a human right and a conflicting public purpose, a balance needs to be struck between them for the purpose of finding the balancing point that will reflect the proper relative importance of the conflicting values. The tests in the limitations clause in s. 8 of the Basic Law are what define the criteria for a permitted violation of the Basic Law, and they are an essential tool for properly balancing the right and the public interest, whose realization necessarily involves a violation of the right. A violation of the right will only satisfy the required constitutional test if the act that violates the right is done pursuant to statute, is consistent with the values of the state, is for a proper purpose and satisfies the test of proportionality.

This normative constitutional basis also lies at the heart of the proper approach to the rights of prisoners who have been sentenced to imprisonment, including those serving a life sentence. It is an established rule that a criminal sanction, including imprisonment, does not automatically deprive someone serving a sentence or a prisoner of his human rights, except to the extent that the restriction of those rights is necessarily implied by the imprisonment and is consistent with the nature of the permitted constitutional violation in accordance with the limitations clause.

The Prison Service Commissioner was given his powers under the Prisons Ordinance [New Version], 5732-1971. Beyond the specific powers given to the competent authority in the Ordinance, the Israel Prison Service is responsible for administering the prisons, guarding the prisoners and doing everything required by these duties (s. 76). The prisons and the warders shall be under the command and management of the commissioner, subject to the directives of the minister (s. 80). The authority of the commissioner extends to the organization of the prison service, administrative arrangements, prison management, discipline and ensuring the proper functioning of the service, and he is authorized to issue general orders in this regard. Within the scope of its authority, the Israel Prison Service is subject to the general principles of the constitutional system and to the fundamental constitutional recognition of human rights and the rights of prisoners that derive therefrom. The restrictions that it is authorized to impose on the prisoners derive from the enabling law, which is the Prisons Ordinance, but where these restrictions violate human rights, they must also satisfy the constitutional test of the limitations clause in the Basic Law. When we are speaking of a constitutional human right, which is given by the Basic Law to a person as a human being, we should not look in the enabling law for a right to uphold it, but the opposite: where the authority wishes to restrict it, we should examine whether it has the power to do so and whether the use made of that power amounts to a permitted constitutional violation in accordance with the limitations clause in the Basic Law.

As we shall describe below, the right of a prisoner to be a parent and to have a family is a constitutional human right, which does not automatically cease to exist as a result of the sentence of imprisonment, even though it is likely to be subject to various restrictions as a result of the conditions of the imprisonment. It follows that the Prison Service Commissioner does not need an authorization in the law to permit a prisoner to realize the various aspects of the right to have a family and to be a parent that he has by virtue of recognized basic rights in Israel. It is a refusal to allow a prisoner to realize the right to have children and to be a parent that makes it necessary to satisfy the tests for a permitted constitutional violation. Such a situation will exist where the prisoner’s right to be a parent and to have a family is opposed by a conflicting value of sufficient weight that it justifies denying the right to a proper degree, in view of the relative weight of the conflicting values.

In our case, Amir, like any other prisoner, has a human right to establish a family and to be a parent. He was not deprived of the right to establish a family and to bring children into the world by the actual sentence that was imposed on him, even if the loss of liberty resulting from the imprisonment deprives the prisoner of the ability to realize family life in full. The Prison Service Commissioner therefore does not need an express authorization in order to give practical expression to the realization of this right, which is one of the supreme constitutional human rights in Israel. Had the commissioner denied the basic right, this would have required him to show that there were good reasons that supported the violation, and defining the scope of the violation in accordance with the tests of the limitations clause.

In addition to the scrutiny of the decision from the perspective of the authority to make it, we shall also examine the question of its reasonableness in view of the arguments that were raised. This scrutiny will focus on the question whether the authority addressed the relevant considerations and balanced all the relevant considerations in the case properly. The principles of constitutional scrutiny also apply to the consideration of this question, as we shall make clear below.

Let us examine in greater detail the principles of the normative framework that apply to this case.

Constitutional human rights and the right to family and parenthood

12. The Basic Law: Human Dignity and Liberty enshrines the human rights to dignity and liberty and thereby expresses the values of the State of Israel as a Jewish and democratic state (s. 1A). It provides that the dignity of a person as a human being may not be violated and that every person is entitled to protection of his dignity (ss. 2 and 4); it recognizes the possibility of violating a person’s basic constitutional rights, provided that the violation satisfies the tests of the limitations clause (s. 8). The tests in the limitations clause make the constitutional legitimacy of the violation conditional: it should be done pursuant to statute or by virtue of an express authorization therein; it should be consistent with the values of the state; it should be for a proper purpose and it should not be disproportionate.

Within the scope of the right to human dignity lies the right of a person to have a family and to be a parent (HCJ 7052/03 Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3]). The right to family is one of the most basic elements of human existence. It is derived from the protection of human dignity, from the right to privacy and from the realization of the principle of the autonomy of the will of the individual, which lies at the very essence of the concept of human dignity. The family and parenthood are the realization of the natural desire for continuity and for the self-realization of the individual in society (LFA 377/05 A and B (prospective adoptive parents) v. C and D (biological parents) [4]; HCJ 2458/01 New Family Organization v. Surrogacy Agreements Approval Committee [5], at p. 447; CFH 2401/95 Nahmani v. Nahmani [6], at p. 719 {390}). Within the scope of the human right to dignity, the right to family and parenthood is a constitutional right that is protected by the Basic Law (cf. also CA 232/85 A v. Attorney-General [7], at p. 17; LCA 3009/02 A v. B [8], at p. 894; CA 2266/93 A v. B [9], at p. 235).

On the scale of constitutional human rights, the constitutional protection of the right to parenthood and family comes after the protection of the right to life and to the integrity of the human body. The right to integrity of the human body is intended to protect life; the right to family is what gives life significance and meaning. I discussed this in one case:

‘These are first principles; the right to parenthood and the right of a child to grow up with his natural parents are rights that are interrelated, and together they create the right to the autonomy of the family. These rights are some of the fundamental principles of human existence, and it is difficult to describe human rights that are equal to them in their importance and strength’ (A and B (prospective adoptive parents) v. C and D (biological parents) [4], at para. 6 of my opinion).

This right is therefore very high on the scale of constitutional human rights. It is of greater importance than property rights, the freedom of occupation and even the privacy of the individual. ‘It reflects the essence of the human experience and the concrete realization of an individual’s identity’ (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], at para. 6 of my opinion).

A violation of the right to parenthood and family will be legitimate only if it satisfies the tests in the limitations clause. These tests reflect a balance of the weight of the basic rights against other needs and values that are essential for the existence of proper social life. Basic rights, including the right to family, are not absolute; they derive from the realities of life that make it necessary to give a relative value to human rights and other substantial interests, whether of other individuals or of the public. A harmony between all of these interests is a condition for a proper constitutional system (LCA 3145/99 Bank Leumi of Israel Ltd v. Hazan [10]). In order for a violation of a human right to satisfy the constitutional test, it must fall within the proper margin of balances, which weigh the right against the conflicting value. The more elevated the status of the constitutional right, the greater the weight of the conflicting interest that is required in order to derogate from or counter the right (Adalah Legal Centre for Arab Minority Rights in Israel v. Ministry of Interior [3], ibid.).

Prisoners’ rights

13. The constitutional outlook that gives human rights a supreme normative status also has ramifications on the human rights of a prisoner, and his ability to realize these rights when he is in prison. The constitutional system in Israel is based on the presumption that a person’s basic rights should not be denied or restricted unless there is a recognized conflicting interest, whether private or public, that is of sufficient weight to justify this. The same presumption also applies to sentences that are handed down to offenders. Its significance is that the protection of human rights is extended to prisoners even after they have been sentenced, and a violation of their rights is possible only where a conflicting public interest of great significance justifies it. Such a violation is recognized only to the extent necessary in order to achieve the conflicting interest, but no more. In this spirit it has been said that:

‘The walls of the prison do not separate the person under arrest from human dignity. Life in the prison inherently requires a violation of many liberties that are enjoyed by a free man… but life in the prison does not necessitate a denial of the right of a person under arrest to bodily integrity and to protection against a violation of his dignity as a human being’ (per Justice Barak in HCJ 355/79 Katlan v. Prisons Service [11], at p. 298).

Restrictions on prisoners’ rights

14. According to the prevailing constitutional system, an offender who is sentenced to imprisonment does not automatically lose all of his human rights. The violation of his rights is limited solely to the degree that it is required in order to achieve the goals of a substantial public interest. These goals include, first and foremost, the purpose of the sentence of imprisonment, which is intended to deprive the prisoner of his personal liberty during the term of imprisonment that was imposed.  By being deprived of his personal liberty, a prisoner suffers a violation of a basic right, but the violation is made pursuant to a law that befits the values of the state; it is intended for the proper purpose of isolating the offender from society for a defined period in order to protect the security of the public from the realization of an additional danger that the offender presents, and to rehabilitate him; the assumption is that it is a proportionate sentence relative to the severity of the offence that was committed and the other circumstances that are relevant to the sentence. Restricting the liberty of a prisoner is an inevitable consequence of the sentence that was imposed upon him, and therefore the violation of liberty receives constitutional protection. The restriction upon personal liberty, which is a consequence of the imprisonment, also gives rise to a necessary violation of certain other human rights that cannot be realized because a person is imprisoned. Thus, for example, the prisoner suffers a violation of his right to engage in his occupation, his right to privacy, and to a certain extent also his right of expression, with all the liberties that derive from it. The violation of human rights that accompanies imprisonment as an inherent consequence thereof is limited solely to an essential violation arising necessarily from the loss of personal liberty, but no more than that.

Another purpose that may justify a violation of a human right of a prisoner concerns the need to ensure the proper administration of the prison and to safeguard the welfare of its inmates. The competent authority has the responsibility to impose various restrictions that are required for managing life in prison in an effective manner, and these include maintaining order, security and discipline in the prison, as well as protecting the security of the inmates, the safety of the warders and the safety of the public from the dangers that are presented by the prison inmates (LHCJA 3713/04 A v. State of Israel [12]; LHCJA 1552/05 Hajazi v. State of Israel [13]; LHCJA 8866/04 Hammel v. Israel Prison Service [14]; and PPA 4463/94 Golan v. Prisons Service [15]). For the purpose of achieving the objective concerned with the proper administration of the Israel Prison Service, the Commissioner is competent to give comprehensive orders with regard to all the aspects of prisoners’ lives, and these may in several respects restrict their personal autonomy in various spheres (PPA 1076/95 State of Israel v. Kuntar [16], at p. 299; PPA 5537/02 State of Israel v. Sarsawi [17], at p. 379; Golan v. Prisons Service [15], at pp. 152 {506} and 172-175 {534-539}).

An additional reason for the restrictions on the rights of a prisoner may derive from other needs that involve an important general public interest, which is not directly related to the prison administration, such as, for example, a need that derives from general reasons of state security that are relevant mainly to security prisoners. Considerations of this kind may make it necessary to impose various restrictions on a prison inmate, which may violate his human rights.

When restrictions that are imposed by the public authority violate the human rights of a prisoner and they do not arise inherently from the loss of his liberty as a result of the imprisonment, they should materially satisfy the tests of the limitations clause in order to comply with the constitutional test. They should be consistent with the values of the state, intended for a proper purpose and satisfy the requirement of proper proportionality.

According to the prevailing legal outlook, a sentence that imposes imprisonment on an offender — and this includes a life sentence — is directly intended to deprive him of his personal liberty for the term of the sentence. The restrictions on the other rights, whether they are inherent to the imprisonment or they are intended to achieve other purposes, are not a part of the purpose of the sentence (PPA 4/82 State of Israel v. Tamir [18], at p. 206; HCJ 114/86 Weil v. State of Israel [19], at p. 483; Golan v. Prisons Service [15], at pp. 152-153 {506}; LHCJA 4338/95 Hazan v. Israel Prison Service [20], at pp. 275-276). The constitutional justification for imposing them depends upon the existence of a public purpose of special importance that justifies the violation in accordance with the tests of the limitation clause (Katlan v. Prisons Service [11], at p. 298). The greater the importance of the human right on the scale of human rights, the stronger the reasons required in order to justify a violation of it (Golan v. Prisons Service [15], at para. 13; HCJ 221/80 Darwish v. Prisons Service [21], at p. 546; HCJ 540/84 Yosef v. Governor of the Central Prison in Judaea and Samaria [22], at p. 573).

It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their inherent purpose is not to increase the severity of the sentence that was handed down to the prisoner. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts. Where this is the purpose of the restrictions, they are likely to fail the constitutional test, since this is not a proper purpose. A restriction that is not required by the realization of the purposes of imprisonment or that is not required by another legitimate public purpose constitutes, de facto, the imposition of an additional sentence on the prisoner for the offence of which he was convicted. Such a restriction that adds to the sentence imposed on the prisoner falls outside the scope of the power to limit the rights of prisoners that is granted to the Israel Prison Service. It is a departure from the principles of criminal sentencing, and especially from the principle of legality that is enshrined in s. 1 of the Penal Law, 5737-1977, according to which there are no offences or sanctions unless they are prescribed in statute or pursuant thereto. The penal sanction takes the form of the actual loss of freedom of movement in a prison, which is determined by the court that handed down the sentence; in view of this, the Israel Prison Service is not competent to add a punitive measure to the sentence that was handed down (ss. 9 and 10 of the Release from Imprisonment on Parole Law, 5761-2001; HCJ 89/01 Public Committee Against Torture v. Parole Board [23], at p. 869, and also LHCJA 6803/04 Angel v. Tel-Aviv-Jaffa District Court [24], at p. 185; LHCJA 9837/03 A v. Parole Board [25], at p. 333).

The principles of this approach to the rights of a prisoner in Israel have been expressed in case law over the years. In Golan v. Prisons Service [15], at p. 152 {501-502} the court said (per Justice Mazza):

‘It is established law in Israel that basic human rights “survive” even inside the prison and are conferred on a prisoner (as well as a person under arrest) even inside his prison cell. The exceptions to this rule are only the right of the prisoner to freedom of movement, which the prisoner is denied by virtue of his imprisonment, and also restrictions imposed on his ability to realize a part of his other rights — some restrictions necessitated by the loss of his personal freedom and other restrictions based on an express provision of law…

The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison. If the authorities wish to suspend, or to restrict, his ability to exercise even liberties of this kind, it is required to show that its power to do so is enshrined in a specific provision of law.’

(See also HCJ 337/84 Hukma v. Minister of Interior [26], at p. 832; CrimApp 3734/92 State of Israel v. Azazmi [27], at p. 81).

The right of a prisoner to family life and parenthood

15. The criminal sanction involved in imprisonment was not intended, in itself, to violate the right of the offender to family life and parenthood directly. Notwithstanding, it is clear that a prisoner is de facto deprived of the physical ability to have a regular family life and thereby to realize the right to family as a result of the loss of his personal liberty that is a result of the imprisonment. The violation of the ability to realize a family life in the prison is inherent to the restriction of liberty, and therefore it lies within the margin of the permitted constitutional violation. Isolating the prisoner from society in order to realize the purposes of the sentence also results in a separation from his spouse, children and wider family circle. But even though this restriction is inherent to the imprisonment, the existence of a human right to family and parenthood requires that the scope of the violation is reduced as much as possible, to its essential limits only, such as by way of giving controlled permission for family visits to prisoners, granting furloughs when defined conditions are satisfied, providing facilities that allow conjugal visits between spouses, etc.. This preserves the proportionality of the violation of the human right, which is inherently required by the loss of liberty resulting from imprisonment.

The right to have children is an integral part of the right to family life. It is given to every human being and a prisoner is not deprived of it merely because of the sentence that was imposed on him. The de facto realization of the right to have children given to a prisoner depends on the question whether there is a public-systemic consideration of sufficient weight that justifies preventing a prisoner from realizing it, whether in general or in a specific case. Whereas a prisoner cannot realize a full family life since it is inconsistent with the restriction of liberty resulting from imprisonment, the right to bring children into the world as such may be consistent with the framework of imprisonment, if certain conditions are fulfilled. The realization of this right may be consistent with conjugal visits between spouses, which are ordinarily allowed when certain conditions are fulfilled, in accordance with the procedures of the Israel Prison Service. Because of the need to limit the violation of the prisoner’s human right merely to the most essential cases, where it is not possible to allow conjugal visits because the prerequisites for this are not satisfied, the prisoner may be left to realize his right to be a parent by way of artificial insemination outside the prison, which does not require a conjugal visit. This possibility is consistent with the purpose of the sentence to keep the prisoner isolated from society, and it does not usually involve a disturbance to the Israel Prison Service administration from the viewpoint of the procedures and resources at its disposal. If, however, there is another reason that justifies the realization of the right to be prevented or restricted, it needs to be a substantial reason that can justify a violation of a human right of the greatest importance, to which even a prisoner is entitled.

The right to have children is a human right that is enshrined in the value of human dignity. This value includes the right of a person to personal autonomy and to self-realization in the form of bringing children into the world. The status of the right to have children imposes on the executive authority a duty to uphold it and to give it significant weight in the course of its deliberations, even when the person seeking to realize it is serving a life sentence in prison. The restriction on the right to have children by means of artificial insemination of the wife outside the prison is not necessarily implied by the restriction of the prisoner’s liberty. Notwithstanding, like all human rights, this right too is not absolute, and it may in certain circumstances give way to conflicting interests of great weight. But in view of the strength of the right, reasons of particular importance are required in order to outweigh it and to justify a violation of it, and the principles used to balance them should be consistent with the conditions of the limitations clause, with the elements of the proper purpose and proportionality that are enshrined therein (New Family Organization v. Surrogacy Agreements Approval Committee [5], at pp. 444-445).

It has been held in the past that:

‘We must remember and recall that the human dignity of a prisoner is like the dignity of every person. Imprisonment violates a prisoner’s liberty, but it must not be allowed to violate his human dignity. It is a basic right of a prisoner that his dignity should not be harmed and all the organs of government have a duty of respecting this right and protecting it from violation… Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic State is liable to uphold. A State that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

As an enlightened society, we should ensure that the dignity of the prisoner is upheld and that his rights are protected as long as it does not conflict with the true purposes of the imprisonment or is inconsistent with a public interest of great importance that justifies a restriction of his rights. This duty applies to every prisoner as such. It applies to a prisoner who is serving a short sentence and it applies to a prisoner who is serving a long sentence for serious felonies. It is also the case with regard to a prisoner serving a life sentence for murder, whether the murder was committed against a background of gang wars in the criminal underworld or it is the murder of a prime minister. The same is true of a security prisoner. The set of principles is the same for every prisoner as such, even though the specific application to individual prisoners may vary from case to case according to the conditions and the circumstances.

The power of the commissioner to give permission to hand over a sperm sample — conclusions

16. The premise on which the petition is based is that express authority is required in statute for the competent authority to allow a prisoner to undergo a procedure of artificial insemination with his wife; without this, granting such permission goes beyond the powers given to it under the law. This premise is fundamentally unsound, and it effectively turns the law upside down and undermines basic principles of public and constitutional law. The reason for this is that when a person has a right, and certainly when he has a constitutional right, a public authority does not need authority in statute in order to uphold and respect the right. The opposite is true: it requires an authorization in statute in order to restrict or violate the right, and where the violation restricts or denies the realization of a human right, it should satisfy the tests of the limitations clause as a condition for its validity and legitimacy. Already in HCJ 1/49 Bajerno v. Minister of Police [28], at p. 82, it was held (per Justice S.Z. Cheshin) that:

‘Where an applicant complains that a public official prohibits him from doing a certain act, the applicant does not need to prove that there is a statute that imposes a duty on the public official to allow him to do the act. The opposite is true: the public official has the duty of proving that there is a justification for the prohibition that he is imposing’ (see also HCJ 9/49 Bloi v. Minister of Interior [29], at p. 140; HCJ 144/50 Sheib v. Minister of Defence [30], at p. 411 {14}; HCJ 122/54 Axel v. Mayor, Council Members and Residents of the Netanya Area [31], at p. 1532; HCJ 112/77 Fogel v. Broadcasting Authority [32], at pp. 663-664).

It follows that in our case there is no need to ask whether the Israel Prison Service is competent to permit a prisoner to realize his right to parenthood by means of artificial insemination; at most, we may need to ask whether there is a power to restrict this right, and what is the scope of such a possible restriction in the special circumstances of the case. This question does not arise directly in this case, since the competent authority has recognized and respects the right of the prisoner to parenthood, and it has thereby given expression to a recognition of the human right to family and parenthood that the prisoner has, in so far as possible, even within the framework of imprisonment. It has thereby recognized that the protection of human rights is given to a prisoner in so far as possible, including a prisoner serving a life sentence for a despicable murder, and that the ability to restrict the right does not depend on the nature of the offence but, if at all, on public or systemic purposes that are not a part of the purposes of sentencing. In the circumstances of this case, the commissioner acted within the limits of his authority when he did not find any systemic or other reasons that justify a restriction on the prisoner’s right. His decision relies on recognized basic principles of constitutional law and it gives expression to the right of the prisoner when no basis was found for restricting it.

The decision of the public authority according to the test of reasonableness

17. In addition to the petitioners’ argument that the commissioner’s decision to allow Amir to give a sperm sample to his wife outside the prison was made ultra vires, they also argued that this decision does not satisfy the test of reasonableness. According to this argument, the unreasonableness is expressed first and foremost in the fact that the permission given to Amir to realize his right to have children conflicts with public morality and injures the feelings of the public, when it is given to the murderer of a prime minister; it is also argued that granting the permission ignores the interests of the child who will grow up without a father; finally it is argued that in giving the permission the commissioner did not make a comprehensive examination of the significance of the issue for all prisoners, and in the absence of a general procedure in this regard, he acted in a manner that violates the principle of equality between prisoners.

An examination of the reasonableness of a decision of an administrative authority requires, in the first stage, a clarification of whether it considered factors that are relevant and pertinent to the case; second, we consider the question whether, when making its decision, the authority made a proper balance between all the factors that should be taken into account, and whether a proper relative weight was given to each of these. An examination of the reasonableness of an administrative decision is therefore conditional on a proper balance of the relevant considerations (HCJ 935/89 Ganor v. Attorney-General [33]; HCJ 5016/96 Horev v. Minister of Transport [34], at p. 34 {183}; HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [35]; HCJ 217/80 Segal v. Minister of Interior [36]; HCJ 6358/05 Vaanunu v. Home Front Commander [37]).

Where a decision of the public authority violates a human right, an examination of the administrative reasonableness of the decision is conditional upon its satisfying the tests of the limitations clause — proper values, a proper purpose and proper proportionality. The criterion for balancing derives from the limitations clause (Horev v. Minister of Transport [34], at para. 54 of the opinion of President Barak). The elements of the limitations clause are incorporated in the criteria that have been formulated in public law rulings for examining a violation of basic human rights by an administrative authority (HCJ 4541/94 Miller v. Minister of Defence [38], at p. 138 {231}). The court has also held:

‘This connection between the constitutional limitations clause and all the principles of public law — including human rights that are not covered by the Basic Laws… The general purposes are the values of the State of Israel as a Jewish and democratic state. The specific purposes are the “proper purpose” in the limitations clause. The principle of proportionality that is provided in the Basic Law is an additional expression of the principle of reasonableness, according to which we have also been accustomed in the past to interpret legislation. It follows that the transition from the previous law to the limitations clause is “quick” and “clean,” and it involves no difficulty’ (per President Barak in Horev v. Minister of Transport [34], at p. 43 {194-195}).

When an administrative decision violates a constitutional human right, the premise is, first, that the conflicting value whose realization leads to the violation befits the values of the state; second, that this value should be a relevant objective consideration that to a large extent overlaps with the conditions of the ‘proper purpose’ in the limitations clause; and finally, whether in the overall balance proper relative weight was given to the human right, on the one hand, and the conflicting value, on the other, and whether the administrative decision chose a balancing point that properly balances the conflicting values. This is the requirement of proper proportionality in its constitutional sense.

In our case, on one side of the equation is the right of a human being, who is a prisoner serving a life sentence, to realize his right to be a parent by way of fertilizing his wife with a sperm sample that will be sent out of the prison. His application is filed against a background of the refusal of the public authority to allow him conjugal visits with his wife, because of security considerations. The petitioners argue that there are values that conflict with the right of the prisoner to parenthood, which were not given any weight, and therefore the permission that was granted is invalid. These conflicting values are, first and foremost, an outrage to public morals and public feelings that, it is argued, results from permission to have children being given to a criminal who was convicted of murdering a prime minister. Such permission runs contrary to the feeling of natural repulsion that the public feels towards a vile offender of this kind. It seriously injures the feelings of the public, which is repulsed by the despicable offence and the offender who committed it, and which expects that he will spend the rest of his life in prison in absolute isolation, without him being allowed to realize his rights to family and parenthood, or any aspect thereof.

I cannot accept this position. The values that are under discussion, on which the petitioners base their objection to the permission that was given, do not satisfy the test of administrative relevancy or the element of the proper purpose in the limitations clause. The public’s feelings of repulsion towards Yigal Amir for the despicable crime that he committed are, in themselves, understandable and natural, but they are not relevant to the restriction of the right of a prisoner to become a parent by way of artificial insemination. They do not achieve a ‘proper purpose’ that is required as an essential conditional for a violation of a human right.

No one denies that the offence of murder that Amir committed and for which he was sentenced to life imprisonment deserves public condemnation and will be recorded in the history of the state as one of the most terrible offences committed in Israel since its founding. But the seriousness of the offence that was committed, with all of its ramifications, found full and final expression in the criminal sanction that was handed down to Amir. The sentencing considerations that are taken into account within the framework of the sentence lie solely within the sphere of authority of the judiciary, and when the sentence is handed down, the sanctions imposed on the offender are exhausted. The Israel Prison Service does not have jurisdiction to punish the prisoner in addition to the sentence that was imposed on him by restricting human rights that even he has as a prisoner. The argument of showing abhorrence for the base acts of the offence that he committed is insufficient. The public’s feelings of repulsion for an offender who took human life and murdered the state’s leader are also incapable of affecting, in themselves, the scope of the human rights given to him in the prison, and the nature of the permitted restrictions upon them. Basic principles of public morality and the desire for revenge that is felt by a part of the public towards one prisoner or another do not constitute a relevant consideration or a proper purpose for preventing a prisoner from realizing his human right to parenthood, as long as this realization does not amount to a significant administrative disruption in the management of the prison or another relevant violation of a significant public interest that justifies its restriction. The human right is also retained by a prisoner who was convicted of the most terrible offences, and no matter how great the feeling of abhorrence at his acts, it cannot constitute an objective reason for restricting his rights. The strict application of the test for the scope of permitted violations of a human right in accordance with the elements of the limitations clause is what guarantees that the protection of the right does not become neglected; it ensures, especially in difficult cases like the one before us, that the constitutional principles are observed. Since the considerations of public morality, public sentiment and especially the deep abhorrence that most of the public feels towards Yigal Amir for his act are not relevant to a restriction of his right to parenthood and are therefore not a proper purpose, they also cannot serve as an objective conflicting value that may compete with the prisoner’s right to become a parent. Therefore we do not need to consider the question of proportionality, which would have arisen had these considerations constituted a relevant objective reason to restrict Amir’s right and which would have given rise to a need to balance them against his right.

We ought to add in this context that it is precisely because Amir was not given the possibility of conjugal visits by his wife for security reasons that the possibility of realizing his parenthood by being allowed to carry out artificial insemination remains his last resort. These circumstances provide even greater justification for the decision of the Israel Prison Service authorities concerning Amir.

Even the petitioners’ additional argument that Amir should not be given permission because of the damage that can be anticipated to the best interests of the child that will be born to the couple cannot serve as a valid ground for violating the right to parenthood in the circumstances of this case.

The question when the consideration of the best interests of the child may justify preventing his birth is a profound question in the field of ethics and philosophy. The question when the law may intervene in this, and when a public authority has power to intervene in the human right to have a child for reasons of the best interests of the child and for other reasons, is a very difficult and complex one. The right to have a child and the right to be born are concepts that lie to a large extent in the field of morality and ethics that are outside the law. Whether and in what circumstances the Israel Prison Service has a power to restrict the right to have a child against a background of considerations of the best interests of the child is a difficult and loaded question. Thus, for example, a question may arise as to whether the Israel Prison Service may prevent a prisoner’s conjugal visits or the realization of his right to parenthood because of a serious and contagious disease from which he suffers that is likely to infect his wife and child (CA 518/82 Zaitsov v. Katz [39], at pp. 127-128; Nahmani v. Nahmani [6], at pp. 729-30). Is it entitled to restrict the right of women inmates in the prison to have children when they have been sentenced to long terms of imprisonment for the reason that it is not desirable from the viewpoint of the best interests of the child to raise him inside the prison or, alternatively, to condemn him to be placed in a foster home or in an adoption, or to separate him from his mother when he reaches a certain age? Are these considerations that the Israel Prison Service may address and do they fall within the scope of its authority? These questions do not require an answer in this case, since with regard to the best interests of the child it has only been argued that he is expected to be born to a single-parent mother because the father has been sentenced to life imprisonment. This argument has no merit in the specific context. No reasons have been brought before us to show, on the merits, any real grounds why the best interests of a child that will be born from artificial insemination to the Amir couple will be harmed. No basis has been established for the argument that Amir’s wife lacks the capacity to raise a child. Moreover, the raising of a child by a single-parent mother while the father is sentenced to life imprisonment does not in itself indicate that the child’s best interests are harmed, nor does it allow the public authorities to restrict the right of his parents to have children. In the modern world, the single-parent family has become a common and accepted phenomenon, and it does not in itself indicate harm to the interests of the child on such a scale and to such an extent that it justifies the intervention of the public authority in a way that violates the right of individuals to self-realization by bringing children into the world. The mere fact that one of the parents is in prison does not constitute, prima facie, a ground for violating the right of the couple to parenthood and the right of a child to be born, for reasons of his best interests. The remarks of Prof. Shifman in his book Family Law in Israel, vol. 2, at p. 156, are pertinent:

‘… In artificial insemination we are concerned with planning the coming into the world of a child who has not yet been born, in order to realize the expectations of persons to be parents. Is it possible to determine categorically that it would be better for that child not to be born than for him to be born? Will the situation of that child necessarily be so wretched merely because he is born into a single-parent family that for this reason we have a duty ab initio to prevent him from coming into the world?’

In this case, no factual basis was established to show harm to the best interests of the child that may be created as a result of giving the permission to the Amir couple. Therefore the question of balancing the relevant conflicting values to the right to parenthood does not arise, and this argument should be rejected.

18. This leaves the argument that the prison authorities did not conduct a comprehensive examination of the question of prisoners sending sperm samples to their wives, nor did they formulate a general procedure for all prisoners in this regard, nor did they make the proper balances in this regard with regard to the case of Amir, who in their opinion has received better treatment in comparison to other prisoners.

In this matter also the petitioners’ arguments are general and they do not establish a concrete factual basis for the existence of conflicting values to the prisoner’s right, which would justify a restriction or denial thereof. Indeed, the prison authorities have stated that they will take action to prepare general procedures concerning the transfer of sperm samples of prisoners to their wives for the purpose of artificial insemination outside the prison. But their willingness to do this, which is important in itself, has no bearing on the specific decision in Amir’s case, which is reasonable. From the state’s response we see that, first and foremost, it took into account as a relevant factor the right of the prisoner to artificial insemination, and it gave this right the proper weight. There is no real public or administrative need that can be a consideration that conflicts with the prisoner’s right in this case, to the extent that it might justify a violation of the right. The security considerations that were the basis for the refusal of the Israel Prison Service to allow Amir conjugal visits with his wife are not relevant to the transfer of a sperm sample out of the prison, and no other legitimate administrative argument was raised that might justify a violation or restriction of the aforesaid right of the prisoner.

Since there is no important value that conflicts with the prisoner’s right to parenthood, no proportionate balance is required here between relevant conflicting considerations, nor is there a proper reason to violate the prisoner’s human right (see Horev v. Minister of Transport [34], at p. 37 {187}; Ganor v. Attorney-General [33], at pp. 513-514; HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [40], at paras. 40 and 41).

In addition, no concrete information was brought before us to support the petitioners’ claim with regard to a violation of equality between prisoners as a result of granting the permission to Amir. Moreover, the concept of equality in this context is loaded and complex, and it may justify possible distinctions between types of prisoners from the perspective of the possibility to realize the right to have children while in prison. Thus, for example, it is possible that there will be a distinction between the ability of male prisoners to realize parenthood by sending sperm samples to their wives for the purpose of insemination and raising children outside the prison, which does not involve any responsibility on the part of the public authority for the birth and raising of the child and does not require any special institutional and budgetary arrangements, and the ability of the authority to allow pregnancies and childbirths of female prisoners in the prison on a large scale, which gives rise to difficult questions concerning the manner of raising and caring for the child after his birth, as well as questions involving resources and budgets that are required for this purpose. This issue involves difficult moral and practical questions that relate both to the prisoners and to the children who are born to a difficult fate. Logic therefore dictates that in this area of realizing the right to parenthood there may be a legitimate distinction between types of prisoner according to various criteria, which should satisfy the constitutional test.

In view of the aforesaid, there is no merit to the petitioners’ argument that the decision of the commissioner to permit the transfer of Amir’s sperm sample to his wife outside the prison was tainted by a defect of unreasonableness. The Israel Prison Service acted in making its decision in accordance with its responsibility by virtue of general legal principles, which recognize the right of the prisoner to realize his right to parenthood, and it saw fit to allow its implementation by way of giving a sperm sample to his wife outside the prison, in the absence of significant conflicting considerations that justify a restriction of the right.

Comparative law

International conventions and the position of the United Nations

19. The position of Israeli constitutional law on this issue and its ramifications upon the rights of prisoners serving a prison sentence is in essence consistent with the outlook of the international conventions and the position of the United Nations. This is the case with regard to the Universal Declaration of Human Rights of 1948, the International Covenant on Civil and Political Rights of 1966, which was ratified by Israel in 1991, and also with regard to the position of the Human Rights Commission of the United Nations and the basic principles that were determined by its institutions with regard to the treatment of prisoners. According to these sources, the right of a person to have children is considered to be a natural right, and it may only be restricted by statute, in accordance with the purposes of the United Nations Universal Declaration of Human Rights, and on reasonable grounds according to the circumstances of the case. With regard to the rights of prisoners, the principle enshrined in these conventions is that these should only be limited by those restrictions that are required by the actual imprisonment.

The right to found a family

Article 16 of the Universal Declaration of Human Rights establishes the right to marry and found a family.

This is also provided in art. 23 of the International Covenant on Civil and Political Rights:

‘1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be recognized.’

In interpreting this article, the United Nations Human Rights Commission has held that the significance of the right to found a family in its fundamental sense is the right to procreate and to live together (General Comment no. 19 (1990)):

‘The right to found a family implies, in principle, the possibility to procreate and live together.’

The right to protection against arbitrary intervention in family life

Article 12 of the Universal Declaration of Human Rights enshrines the right to privacy and protection against arbitrary intervention in family life.

Article 17(1) of the International Covenant on Civil and Political Rights also enshrines the right to privacy and protection against arbitrary intervention in family life:

‘No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.’

The United Nations Human Rights Commission has commented that this right should only be restricted by law and in accordance with the objectives of the Covenant and should be reasonable in the particular circumstances. It also said that the term ‘family’ should be given a broad interpretation (General Comment no. 16 (1988)).

Prisoners’ rights

Article 5 of the Universal Declaration of Human Rights provides that:

‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.’

In addition, article 7 of the International Covenant on Civil and Political Rights provides (inter alia) that no one should be subjected to degrading punishment, and article 10(1) of the Covenant provides that:

‘All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.’

With regard to this article, the United Nations Human RiOPghts Commission has determined that a person who has been deprived of his liberty should not suffer a violation of additional rights except to the extent that the restrictions are required by the actual imprisonment:

‘3.           … Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment’ (emphasis added).

Similarly the Basic Principles for the Treatment of Prisoners, 1990, that were adopted by the United Nations provide that:

‘5.           Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and, where the State concerned is a party, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and the Optional Protocol thereto, as well as such other rights as are set out in other United Nations covenants.’

Human rights and prisoners’ rights under the European Convention on Human Rights

20. The European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, regulates the protection of human rights in the European Community. Article 8 of the convention provides the right to respect for private and family life, and article 12 provides the right to marry and to found a family:

‘Article 8 – Right to respect for private and family life

1.            Everyone has the right to respect for his private and family life, his home and his correspondence.

2.            There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

…

Article 12 – Right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.’

The European Prison Rules of the Council of Europe, 1987, (Recommendation no. R (87) 3 of the Committee of Ministers of the Council of Europe) constitute recommendations for standard minimum rules of imprisonment for the countries of Europe, in which the inherent basic outlook is that the deprivation of liberty is itself a punishment, and it should not be aggravated by imposing conditions of imprisonment that are unnecessary:

‘64. Imprisonment is by the deprivation of liberty a punishment in itself. The conditions of imprisonment and the prison regimes shall not, therefore, except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in this.’

(With regard to the centrality of this principle, see the explanatory notes to the rules, para. 64, ibid.). These principles are consistent with the constitutional outlook underlying the legal system in Israel.

In X v. UK [64] an English prisoner applied to be allowed to have a conjugal visit with his wife. The European Commission of Human Rights (hereafter also: ‘the commission’), to which individuals had to apply at that time in order to file a case in the European Court of Human Rights, held that under art. 8(2) of the convention, it was possible to prevent prisoners from having conjugal visits for reasons of public security. In X v. Switzerland [65], a married couple from Switzerland, who were held separately in the same place of arrest for a period of approximately two months, applied to be allowed to have conjugal visits. The commission held that considerations of public security in a prison might justify preventing married persons under arrest from having conjugal visits. It also held that the persons under arrest were married and had already established a family, and it therefore followed that they were entitled to respect for family life under art. 8, and that a violation of the right to family which is justified under art. 8(2) cannot be considered at the same time a breach of art. 12, which addresses the right to marry.

In two additional cases that considered the right to marry, the commission held that the prisons should allow prisoners to realize their right to marry, since marriage does not create any risk to the security of the prison (Hamer v. UK [66]; Draper v. UK [67]). The commission in these cases rejected the argument that the existence of personal liberty was a precondition for realizing this right, and in the absence of personal liberty the right should not be recognized (Hamer v. UK [66]), and also the argument that imprisonment includes a public interest that justifies preventing the marriage of someone serving a life sentence (Draper v. UK [67]). A particularly important decision for our case was ELH and PBH v. UK [68]. In that case a prisoner requested a conjugal visit with his wife, for the purpose of the wife becoming pregnant. It was also requested that the visit would take place shortly after a surgical operation that the wife would undergo, which was expected to increase her chances of fertility for a short period of time only. The commission reiterated the rule that, notwithstanding the fact that preventing conjugal visits violates the right to respect of family life in art. 8 of the convention, preventing them is justified for the purpose of preventing breaches of discipline and the commission of offences under art. 8(2), and that a justified violation under this provision will not be regarded as a violation of the right to marry under art. 12. Notwithstanding, the commission added that it regarded in a favourable light reforms that were being made in several European countries to prepare prisons to facilitate conjugal visits:

‘The commission considers that it is particularly important for prisoners to keep and develop family ties to be able better to cope with life in prison and prepare for their return to the community. It therefore notes with sympathy the reform movements in several European countries to improve prison conditions by facilitating “conjugal visits”’ (p. 64).

More importantly, the commission went on to say that in the circumstances of the specific case, preventing the visit did not constitute a violation of arts. 8 and 12 of the convention since the local law did not prevent the prisoner having the possibility of artificial insemination:

‘The Commission considers that the same conclusions should be reached under articles 8 and 12 of the convention in the present case, despite the exceptional circumstances invoked by the applicants. Thus, although the first applicant requires major surgery to be able to conceive and this surgery can only be performed when the couple are in a position to attempt conception, domestic law, as the applicants themselves accept, does not exclude artificial insemination in the case of prisoners… The Commission, therefore, considers that no appearance of a violation of Articles 8 and 12 of the convention is disclosed…’ (emphasis added).

From these remarks it can be deduced, prima facie, that the position of the European Commission of Human Rights was that the absolute prevention of a prisoner’s possibility of having children is unconstitutional. But an interesting development in this matter occurred in a judgment that was given only recently by the European Court of Human Rights: Dickson v. United Kingdom [69]. A prisoner who was sentenced to life imprisonment for murder applied, together with his wife (a former prisoner, whom he married in prison), for access to facilities for artificial insemination. The couple argued that when the husband would be released from the prison, the wife would be 51 years old, and if their application would not be granted, their chances of having children would be non-existent. The Secretary of State for Home Affairs refused the application, while clarifying his policy with regard to artificial insemination. According to this policy, requests by prisoners for artificial insemination will be considered on an individual basis, and they will be granted only in ‘exceptional circumstances.’ The policy will give special weight to several factors, including: whether artificial insemination is the only possible means of having children; the date of the prisoner’s release (if the release is very close, it is possible that waiting to be released will not cause much hardship to the prisoner, and if the date is particularly distant, it can be assumed that the prisoner will not be able to function as a parent); whether both parents are interested in the procedure and are able to undergo it from a medical viewpoint; whether the relationship between the couple was stable before the imprisonment, so that it can be assumed that it will continue to be good after the imprisonment; the financial resources of the parent who will raise the child; and whether, in view of the prisoner’s criminal past and other relevant facts, there is a public interest in depriving him of the possibility of artificial insemination. The Home Secretary decided that, even though in that case a refusal of the request meant that the couple would lose most of their chances of having a child, on the other hand the considerations of the seriousness of the offence that was committed and the harm to the interests of the child who would be raised for many years without a father prevailed. The majority justices in the European Court of Human Rights adopted the position of the United Kingdom. First they confirmed that according to the case law of the European Court, the prisoners retain all of their rights under the convention (including the right to respect for privacy and the family) apart from the right to liberty (Hirst v. United Kingdom [70], at para. 69). Notwithstanding, the restriction of liberty naturally results in a restriction upon the ability to realize additional rights, and therefore the key question is whether the nature of the restriction and its degree are consistent with the convention. According to the majority justices, within this framework a distinction should be made between an intervention in the right of the prisoner to respect for family and privacy and a violation that takes the form of non-performance of a positive obligation that is imposed on the state with regard to that right. According to them, even though restrictions on family visits and conjugal visits have been recognized in its previous decisions as intervention in the rights of the prisoner (Aliev v. Ukraine [71], at pp. 187-189), the restriction on the possibility of the prisoner carrying out artificial insemination merely constitutes the non-performance of a positive duty that applies to the state. But when determining the scope of the positive duties, the member states of the convention have a broad margin of appreciation. Further on, the majority justices approved the principle that the convention does not permit an automatic denial of prisoners’ rights merely because of adverse public opinion, but notwithstanding this, according to their approach considerations of public confidence in the penal system are legitimate considerations within the framework of determining policy in the prison. They were also of the opinion that a legitimate consideration in this matter is the question of the best interests of the child. According to these principles, the majority justices held that the criteria determined in the policy of the United Kingdom were neither arbitrary nor unreasonable. With regard to the specific case, the majority justices held that according to the broad margin of appreciation, it was possible to give the considerations of public confidence and the best interests of the child greater weight than the harm to the prisoner in losing the possibility of bringing children into the world. Three justices dissented from this approach. The president of the court, Justice Casadevall, and Justice Garlicki emphasized that the right to have children is a constitutional right, which is enshrined in the convention (Evans v. United Kingdom [72], at para. 57). It follows that the access of a prisoner to artificial insemination facilities is a part of the right to respect for family life in art. 8 of the convention, and where the couple are married, it is also enshrined in art. 12. The minority justices said that the premise adopted by the majority justices, according to which the prisoner retains his constitutional rights apart from the right to liberty is correct. But the logical conclusion that follows from this is that a violation of the right to have children is lawful only if it is necessitated by the restriction on liberty. The minority justices also emphasized that the premise adopted by the United Kingdom in its policy was erroneous, since, according to it, access to artificial insemination would be granted only in special circumstances. This is the opposite of the basic philosophy of human rights and the European Convention, according to which the right is the rule, whereas the restriction of the right is the exception. They held that in the specific case, in which refusing access to artificial insemination facilities means the loss of the possibility of having children in its entirety, the refusal of access was disproportionate. The third minority justice dissented from the majority position that took no account of the mother’s right to have children.

It would appear that the minority opinion in that case is more consistent with the approach to the principles of the convention according to the opinion expressed by the majority, and it is consistent with the principles of the constitutional system in Israel.

English law

21. According to the case law of the House of Lords, imprisonment is intended to restrict the rights and liberties of the prisoner. Therefore, it restricts the personal autonomy of the prisoner and his freedom of movement. At the same time, the prisoner retains all of his civil rights, apart from those that have been taken from him, either expressly or as a necessary consequence of the imprisonment:

‘A sentence of imprisonment is intended to restrict the rights and freedoms of a prisoner. Thus, the prisoner’s liberty, personal autonomy, as well as his freedom of movement and association are limited. On the other hand, it is well established that “a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication”: see Raymond v. Honey…; R. v. Secretary of State for the Home Department, Ex parte Leech…’ (R. v. Secretary of State for the Home Department, Ex Parte Simms [62]; emphasis added).

The Human Rights Act 1998, which came into force in 2000, applied the main parts of the European Convention on Human Rights (including the rights under discussion in this case) to English law. Without purporting to exhaust the question of how the new statute affected English law, we can say that the various public authorities, including the prisons, are required to act in accordance with the convention (s. 6 of the law). Similarly the courts have a duty to take into account the case law of the European Court of Human Rights (s. 2 of the law; see also P.B Proctor, ‘Procreating from prison: Evaluating British Prisoners’ Right to Artificially Inseminate Their Wives Under the United Kingdom’s New Human Rights Act and the 2001 Mellor Case,’ 31 Ga. J. Int’l & Copm. L. (2003) 459, at pp. 467-470). It should be noted that even before the new law came into force, prisoners were entitled to apply to the European Commission of Human Rights with regard to prima facie breaches of the convention (after exhausting proceedings in England), and the public authorities in England acted in accordance with its decisions. A detailed consideration of the right to have children by means of artificial insemination was made by the English Court of Appeal in R. (Mellor) v. Secretary of State for the Home Department [63]. The Court of Appeal decided that the right of a prisoner to artificial insemination had not yet been recognized in case law under the European Convention, and that a prisoner should not be allowed artificial insemination in every case where he has not been allowed conjugal visits. The implication of the case law, in its view, was that only in exceptional cases, in which the violation of the right granted in the convention was disproportionate, would it be justified to impose a duty to allow artificial insemination. According to the approach of the Court of Appeal, the judgment of the House of Lords in R. v. Secretary of State for the Home Department, Ex Parte Simms [63] means that it is possible to justify a restriction of a prisoner’s rights even when this is not required for reasons of the proper functioning of the prison, but it is a result of the loss of liberty that is inherent in the penal objective:

                ‘They recognised that a degree of restriction of the right of expression was a justifiable element in imprisonment, not merely in order to accommodate the orderly running of a prison, but a part of the penal objective of deprivation of liberty.’

Consequently, according to the approach of the Court of Appeal, there may be a justification for restricting the right to artificial insemination for reasons of public interest:

‘A policy which accorded to prisoners in general the right to beget children by artificial insemination would, I believe, raise difficult ethical questions and give rise to legitimate public concern.’

According to the court in England, an additional legitimate consideration for restricting the right is the consideration of the best interests of the child, who will grow up while one of his parents is in prison:

                ‘By imprisoning the husband, the state creates the situation where, if the wife is to have a child, that child will, until the husband’s release, be brought up in a single parent family. I consider it legitimate, and indeed desirable, that the state should consider the implications of children being brought up in those circumstances when deciding whether or not to have a general policy of facilitating the artificial insemination of the wives of prisoners or of wives who are themselves prisoners.’

The Court of Appeal did not consider in depth the question when a restriction of the right of a prisoner to carry out artificial insemination will be considered disproportionate. Notwithstanding, it said, as a premise, that it must be shown that preventing the possibility of carrying out artificial insemination does not lead only to a delay in realizing the prisoner’s right to establish a family, but to his being completely deprived of it:

                ‘I would simply observe that it seems to me rational that the normal starting point should be a need to demonstrate that, if facilities for artificial insemination are not provided, the founding of a family may not merely be delayed, but prevented altogether.’

American law

22. The premise in American law is that prisoners retain their constitutional rights inside the prison:

                ‘Prison walls do not form a barrier separating prison inmates from the protection of the constitution’ (Turner v. Safley [46], at p. 84).

Therefore, the prisoner retains constitutional rights such as the right to equal protection before the law, the right to due process in the Fourteenth Amendment of the United States Constitution, and the right to privacy. At the same time, other constitutional rights that are not consistent with the actual imprisonment are not retained by the prisoner:

                ‘An inmate does not retain [constitutional] rights inconsistent with proper incarceration’ (Overton v. Bazzetta [47], at p. 132; Turner v. Safley [46], at p. 96).

According to the stricter opinion in the United States Supreme Court, the rights of which prisoners can be deprived are only those that are fundamentally inconsistent with imprisonment (‘we have insisted that prisoners be accorded those rights not fundamentally inconsistent with imprisonment itself…’, Hudson v. Palmer [48], at p. 523). But an opinion has been expressed that the rights that are consistent with the actual imprisonment may also be restricted, if this is done for the purpose of realizing legitimate penal objectives:

                ‘It is settled that a prison inmate “retains those [constitutional] rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system,” Pell v. Procunier [49], at p. 822’ (Turner v. Safley [46], at p. 95).

In the leading decision in Turner v. Safley [46], it was held that the appropriate standard for scrutinizing a violation of the constitutional rights of prisoners is the lowest level of scrutiny, the rational connection. The reason for this lies in the complexity of the task of administering the prison, and the court not having the proper tools to consider the matter (ibid. [46], at pp. 85, 89).  In addition, details were given of four tests for examining the constitutionality of the violation, in accordance with the aforesaid standard. The judgment in Overton v. Bazzetta [47], at p. 132, adopted the tests laid down in Turner v. Safley [46] and summarized them as follows:

                ‘Whether the regulation [affecting a constitutional right that survives incarceration] has a “valid, rational connection” to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are “ready alternatives” to the regulation’ (ibid. [47], at p. 132).

The aforesaid standard of scrutiny also applies when the constitutional right that is violated is a fundamental and basic one and when in other circumstances a stricter test would be applied (Washington v. Harper [50], at p. 223). Notwithstanding, restrictions that are imposed in reliance upon a classification that gives rise to a suspicion of a racist consideration are examined with the constitutional strict scrutiny test (Johnson v. California, 543 U.S. 499 (2005)).

The right to have children is recognized in American law as a constitutional right, which lies at the very heart of the right to personal freedom (see: Skinner v. Oklahoma [51], at p. 541; Eisenstadt v. Baird [52], at p. 453; Carey v. Population Services International [53], at p. 685; Cleveland Board of Education v. LaFleur [54], at p. 639; Stanley v. Illinois [55], at p. 651).

In view of these principles, the United States Supreme Court has held that the right to marry is retained even during imprisonment (Turner v. Safley [46]). Notwithstanding, the Federal courts have consistently refused to recognize a right to conjugal visits and intimacy with a spouse as a constitutional right (Anderson v. Vasquez [56]; Hernandez v. Coughlin [57]; Toussaint v. McCarthy [58]). The question whether allowing a prisoner to provide a sperm sample for the purpose of artificial insemination and realizing his constitutional right to have children is consistent or inconsistent with the actual imprisonment and what are the potential conditions for restricting it has not yet been brought before the United States Supreme Court, but other courts in the United States have approved administrative decisions that restrict the realization of the right. These decisions raise the question of whether they are consistent with constitutional principles and the substantive rules of conventional international law on this issue. In Goodwin v. Turner [59] the Federal Court of Appeals of the Eighth Circuit approved a policy that denied prisoners the possibility of artificial insemination. It was held that even if the right survived imprisonment, there was a rational connection between this policy and the duty of the prison to treat all prisoners equally. The argument was that the prisons would also be required to allow female prisoners to realize the right to have children, and as a result also to care for their needs during pregnancy and for their infants, and that this would lead to imposing substantial costs on the prisons and make it necessary to divert resources from important programs and the security needs of the prison. Therefore, for this reason it was possible not to approve artificial insemination for spouses of male prisoners.

                ‘According to the Bureau’s artificial insemination policy statement, if the Bureau were forced to allow male prisoners to procreate, whatever the means, it would have to confer a corresponding benefit on its female prisoners. The significant expansion of medical services to the female population and the additional financial burden of added infant care would have a significant impact on the allocation of prison resources generally and would further undercut the Bureau’s limited resources for necessary and important prison programs and security’ (ibid. [59], at p. 1400; the Supreme Court of the State of New Jersey made a similar ruling in Percy v. State of New Jersey, Department of Corrections [60], at pp. 548-549).

The minority justice in that case thought otherwise. According to him, the right to have children, like the right to marry, survives the imprisonment. In addition, in his opinion it is not legitimate to make use of the principle of equality in order to deny the constitutional right of another (ibid. [59], at pp. 1403-1407). Further detailed consideration of this issue can be found in Gerber v. Hickman [61], in an opinion of the Federal Court of Appeals of the Ninth Circuit. In that case a majority (of six judges) held that the right to have children is inconsistent with the nature of imprisonment, since imprisonment naturally separates the prisoner from his family and his children. It was also stated there that restricting the right to have children is consistent with the legitimate objectives of the penal system, including deterrence and retribution:

                ‘… “these restrictions or retractions also serve… as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction”…’ (ibid. [61], at p. 621).

Following from these remarks it was held that the right to have children is inconsistent with imprisonment, even when it is possible to realize it by means of providing sperm for artificial insemination:

                ‘Our conclusion that the right to procreate is inconsistent with incarceration is not dependent on the science of artificial insemination, or on how easy or difficult it is to accomplish. Rather, it is a conclusion that stems from consideration of the nature and goals of the correctional system, including isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation’ (ibid. [61], at p. 622).

By contrast, the five minority justices were of the opinion that realizing the right to have children by means of a process that does not require an intimate meeting does not pose a security risk, and therefore it is consistent with the substance of imprisonment and should be respected:

                ‘… the right to intimate association and the right to privacy — are clearly inconsistent with basic attributes of incarceration because of security concerns. Procreation through artificial insemination, however, implicates none of the restrictions on privacy and association that are necessary attributes of incarceration’ (ibid. [61], at pp. 624-625).

They also emphasized that the majority judges had not shown why the right to have children was inconsistent with the penal objectives, and in so far as their intention was to deny the right to have children as a method of punishment, a determination of this kind should be made by the legislature:

                ‘The majority identifies correctional goals such as isolating prisoners, deterring crime, punishing offenders, and providing rehabilitation that are supposedly inconsistent with the right to procreate, yet does not explain how the right is inconsistent with any of these goals. If, in fact, the purpose behind prohibiting procreation is to punish offenders, this is a determination that should be made by the legislature, not the Warden’ (ibid. [61], at p. 626).

It would appear that the minority position in this proceeding corresponds in essence to the outlook that has become accepted in the Israeli legal system, whereby human rights are retained by the prisoner in so far as they are not inconsistent with the substance of the imprisonment, and restricting and limiting them is permitted only in so far as this is essential for achieving a very weighty public purpose, such as security and disciplinary arrangements in the prison, or another important public interest. In the absence of such an interest, the remaining rights should be respected, and the prisoner should be allowed to realize them de facto.

Conclusion

23. Yigal Amir was and remains one of the most abhorred criminals in the Israeli national consciousness in recent generations, if not the most abhorred. He was convicted of the murder of a prime minister, and first introduced into the public consciousness the possibility that a terrible event of this kind, in which an ordinary Israeli citizen would murder his leader, could also take place in Israel. Amir has been sentenced by the legal system in so far as the law requires, and his punishment has been exhausted. But his sentence has not reduced the feelings of abhorrence towards him, for the nefarious deed of taking the life of a man who was the symbol of the democratic system of government in the independent State of Israel.

Notwithstanding, from the moment that Amir’s sentence was handed down and he became a prisoner serving a sentence of life imprisonment, his punishment was exhausted. From this stage, like all prisoners, Amir is subject to severe restrictions on his liberty, and additional restrictions on his human rights, that derive inherently and essentially from the loss of his liberty. In addition he is subject to further restrictions that concern the discipline and order that are required by life in the prison. It is also permitted, where necessary, to impose restrictions on him that are derived from the needs of state security or from other essentials needs that are a public interest. But apart from these restrictions he retains, like every prisoner, basic human rights that were not taken from him when he entered the prison (cf. BAA 2531/01 Hermon v. Tel-Aviv-Jaffa District Committee, Israel Bar Association [41], at para. 19). The executive authority is required to respect these rights and to do all that it can in order to allow them to be realized, unless they are confronted by conflicting considerations of public interest whose weight justifies a limitation of the human right. These considerations do not include the consideration of desiring to worsen the conditions of imprisonment of someone who is serving a life sentence because of the severity of his crime, or the consideration of restricting his human rights as revenge for his deeds. These considerations are irrelevant to the issue and they are inadmissible.

The outlook that it is possible to violate the prisoner’s right to parenthood because of the gravity of the offence that he committed, for reasons of deterrence and to show abhorrence towards the offender, is foreign to the basic principles of criminal law and to penal theory. This approach is also clearly inconsistent with the prevailing constitutional approach in the Israeli legal system. It is inconsistent with the ethical principles of the State of Israel as a Jewish and democratic state; it does not reflect a proper purpose nor is it proportionate. This court has already said, in another context:

                ‘A restriction upon contact with persons outside the prison should not be imposed on security prisoners if it is not required by security considerations or other objective considerations, but merely derives from considerations of retaliation or revenge, or if it harms the prisoner to a degree greater than that required by objective considerations’ (per Justice Zamir in State of Israel v. Kuntar [16], at p. 501, and LHCJA 5614/04 Amir v. Israel Prison Service [2] (conjugal visits), at p. 5).

With regard to the realization of human rights that are retained by a prison inmate, Amir’s status is the same as any other prisoner. In the absence of substantial conflicting considerations of public interest, the human rights that he retains as a prisoner serving a life sentence should be respected and not violated, and the right to parenthood is among the most exalted of these. This is what the competent authority decided in this case, and it was right to do so.

Respect for human rights and the protection of human rights lie at the heart of the constitutional system in Israel. The protection of the human rights of prison inmates is derived from and required by this outlook. Without de facto implementation of this protection, to the extent that it is possible, even for someone who has lawfully been deprived of his liberty, the value of human dignity may be diminished. This is equally true of all prisoners, whether less serious or more serious offenders. It is also true with regard to prisoners serving a life sentence because they have taken human life; society’s recognition of the human rights retained by the prisoner preserves his dignity as an individual. But no less importantly it preserves the dignity of society as a civilized society that does not merely protect the rights of its ordinary citizens, but also those of persons who have committed crimes against it, even if the crime is the worst of all — the murder of a human being — and even where the victim of the murder symbolized in his life and his death the image of Israeli society as a democracy that is built on constitutional values that give precedence to human rights.

                ‘Moreover, a violation of a prisoner’s human dignity does not merely harm the prisoner but also the image of society. Humane treatment of prisoners is a part of a moral-humanitarian norm that a democratic state is liable to uphold. A state that violates the dignity of its prisoners breaches the duty that it has to all of its citizens and residents to respect basic human rights’ (per Justice Mazza in Golan v. Prisons Service [15], at p. 156 {506}).

We should remember that a civilized country is not merely judged by how it treats its faithful citizens, but also by how it treats the criminals living in it, including the most despicable criminals who wish to undermine its ethical foundations. In a proper constitutional system, the umbrella of human rights extends over every human being, including the criminal sitting in prison, subject to conditions and restrictions that satisfy constitutional criteria. The public authority acted in this case in accordance with the proper constitutional criteria, and its decision was made according to the law.

On the basis of all of the aforesaid, the petition should be denied. The interim order that was made is set aside.

In the circumstances of the case, I propose that no order is made for costs.

 

 

Justice E. Hayut

1.            I agree with the opinion of my colleague Justice Procaccia and I would like to add several remarks.

This petition concerns a decision of the Prison Service Commission of 5 March 2006 to allow Yigal Amir, who is serving a life sentence, to send sperm outside the prison for the purpose of the artificial insemination of his wife, Mrs Larissa Trimbobler. Like my colleague, I too am of the opinion that the argument of the petitioners that the Prison Service Commissioner is not competent to allow the sperm to be transferred as aforesaid should be rejected. The question in this context is not what is the source of the authority to allow this but by virtue of what authority was the Prison Service Commissioner entitled to refuse the request of this prisoner in this regard. It would appear that in so far as the commissioner’s decision does not restrict the human rights of the prisoner but realizes them, his decision enjoys the presumption of being made with authority and no fault can be found with it in this regard. A completely different question is whether the authority has a duty to exercise its power in this matter and what are the limitations and restrictions that it may determine in this regard. These questions do not arise in the case before us, and therefore we can leave them until they do.

2.            With regard to the question of the reasonableness of the decision, the petitioners as public petitioners sought in their petition to give expression to the feeling of abhorrence that the Israeli public feels to the murderer of the late Prime Minister Yitzhak Rabin. According to them, the punishment incorporated in the criminal sanction should also receive expression after the sentence has been imposed, when the murderer is serving his sentence of imprisonment. Therefore, so it is alleged, he should not be allowed to realize his right to parenthood. The petitioners further argue that the decision of the Israel Prison Service to allow the Trimbobler-Amir couple artificial insemination is an improper decision from a moral viewpoint, and according to them ‘a person who commits such a serious crime ought to know that not only will he lose his personal liberty, but also other basic rights may be impaired… someone who takes the life of his fellow-man may discover that that he cannot give life to his progeny.’ The petitioners emphasize, however, that it is not in every case that a prisoner is not entitled to have children, but in their opinion ‘the murder Amir does not have this right.’

3.            In his book A Judge in a Democracy (2004), President Barak discussed how a judge ought not to estrange himself from the society in which he lives and functions. In his words:

‘The administration of justice is a form of life that involves a degree of seclusion; it involves distancing oneself from social and political struggles; it involves restrictions on the freedom of expression and response; it involves a considerable degree of solitude and introspection. But this is not a form of life that involves an estrangement from society. A wall should not be built between the judge and the society in which he functions. The judge is a part of his people’ (ibid., at p. 52).

Indeed, as an integral part of Israeli society we ought to be aware and sensitive to the strong feelings that the public has to the terrible act of murder committed by Amir, and these feelings have been well expressed by the petitioners in their petition. But as judges in a democracy, we are enjoined to decide the petition according to the law, by applying the basic principles of our legal system even if our decision is not consistent with these feelings. In his aforementioned book, President Barak outlines the important distinction between the need to maintain the confidence of the public in its judges and being carried away unprofessionally by public opinion and public feelings. He says:

‘The need to ensure public confidence does not imply a need to ensure popularity. Public confidence does not mean following the prevailing trends among the public. Public confidence does not mean making decisions on the basis of public opinion surveys. Public confidence is not pleasing the public. Public confidence does not mean making decisions that are inconsistent with the law or with the conscience in order to reach a result that the public wants. On the contrary, public confidence means making decisions according to the law and in accordance with the judge’s conscience, irrespective of the public’s attitude to the actual decision’ (ibid., at p. 51).

In our case, it is possible to understand the collective feeling of revenge that the petitioners are expressing in view of the national trauma caused by Amir by means of the political murder that he committed. But this feeling cannot dictate an outcome that is inconsistent with the basic principles of our legal system. According to these principles, which my colleague discussed at length in her opinion, the punishment to which Amir was sentenced, according to which he was removed from society and imprisoned behind bars for life, does not inherently deprive him of the right to parenthood. Therefore, we can find no unreasonableness in the decision of the Israel Prison Service to allow the transfer of the sperm (subject to the restrictions stipulated in the decision), in order to give Amir a chance to realize his right to parenthood by means of artificial insemination.

 

 

Justice S. Joubran

1.            I agree with the opinion of my colleague Justice A. Procaccia and the reasons that appear in her profound and comprehensive opinion. Notwithstanding, in view of the complexity of the question before us, I think it right to add several remarks of my own, if only in order to present the difficulties raised in this case from a different and additional viewpoint.

2.            From time to time the court is asked to consider petitions concerning the conditions of imprisonment and the various restrictions that are imposed on prisoners who are serving sentences in the prisons. On a theoretical level, these petitions involve complex questions concerning the purpose of the sanction of imprisonment. In this context, it is possible to identify two main approaches that conflict with one another. According to one approach (hereafter — the first approach), the purpose of imprisonment is limited to depriving the prisoner of his personal liberty, by restricting his freedom of movement when imprisoning him behind bars for the period of imprisonment to which he has been sentenced. According to this approach, restricting any other rights of the prisoner is not a part of the sentencing purpose. In this regard it makes no difference whether we are dealing with rights whose violation is a consequence of the restriction of the liberty because of the fact that the ability to realize them depends upon the freedom of movement, or we are dealing with rights that are being violated in order to achieve other public purposes, including ensuring the proper management of the prison service, security considerations and other legitimate public interests (see para. 14 of the opinion of my colleague Justice A. Procaccia).

3.            According to the other approach (hereafter — the second approach), a restriction of additional basic rights of a prisoner, apart from the right to personal liberty, will be possible if this is consistent with the additional legitimate purposes underlying the objective of the sentence, including the removal of the prisoner from society, the suppression of crime, (specific or general) deterrence, a denunciation of the offender and punishment (with regard to these reasons, see the memorandum of the draft Penal (Amendment — Incorporation of Discretion in Sentencing) Law, 5765-2005, which is based on the opinion of the committee chaired by Justice Emeritus E. Goldberg; an expression of the second approach can be found in the majority opinion in the judgment in Gerber v. Hickman [61], which is mentioned on page 33 of my colleague’s opinion). In other words, according to this approach, the purpose of the sentence of imprisonment that is imposed on the prisoner is not limited to sending him to prison in itself, and the restriction of the prisoner’s freedom of movement, together with the other violations of his rights that accompany it, do not express the full sentence that is imposed on him.

4.            It is not superfluous to point out that the distinction between the aforesaid two approaches is not merely a matter of semantics but a difference that goes to the heart of the purpose of sentencing. Thus it may be asked most forcefully why sentencing should only take the form of a denial of the prisoner’s liberty and freedom of movement and not a restriction of other rights. It should be emphasized that the distinction between the different approaches has major ramifications on the scope of the protection given to the rights of the prisoner. Thus it is not difficult to see that whereas the first approach results in a restriction of the violation of the prisoner’s basic rights, the second approach actually extends the possibilities of violating them. To a large extent it can be said that the approach that the sanction of imprisonment should realize the various purposes underlying the sanction, including punishment and deterrence, leads to an approach that holds that the mere restriction of the freedom of movement does not exhaust, in every case, the sentence that is imposed on the prisoner. According to this approach, imprisonment should fully reflect the society’s abhorrence at the acts that the prisoner committed and the severity with which society regards them. In this way, not only is the prisoner placed behind bars for his acts, but his imprisonment should reflect, in all its aspects, his isolation and removal from society.

5.            The difference between the aforesaid two approaches may easily be clarified by giving several examples: serving a prison sentence within the confines of a prison inherently results in a violation of the prisoner’s right to engage in an occupation, since he is subject to various restrictions that deprive him of the possibility of leaving the prison confines. But consider, for example, a case in which a prisoner, who committed crimes that gave rise to public outrage, wishes to publish, from the prison, a novel that he has written, which is based on the story of his personal life. Assuming that the writing of the book during the prisoner’s free time does not interfere with the proper functioning of the prison and does not affect the maintenance of order and discipline in the prison, according to the first approach the prisoner should not be prevented from publishing the book, by which means he realizes his right to the freedom of expression and the freedom of occupation. In parenthesis I will point out that the need to examine the writings of the prisoner and to ensure that they do not include details that may affect order and discipline in the prison may impose a significant burden on the prison service so that it will be justified in refusing publication of the book (see and cf. Golan v. Prisons Service [15], at pp. 165-166 {524-527}). In any case, it should be noted that according to the second approach it is possible that the publication of the book may be prevented for very different reasons. It may be argued that the purposes underlying the sentence of imprisonment, including punishment, expressing revulsion at the acts of the prisoner and isolating him from society, justify not allowing that prisoner, while he is in prison and before he has finished serving his sentence, to derive an economic benefit from the commission of his despicable acts or achieving public recognition as a result of the publication of the book.

Another interesting example concerns the question of the rights of a prisoner to participate in elections to the Knesset. Whereas according to the first approach there is no basis for restricting the right of a prisoner to vote, as long as this does not harm the proper management of the prison, according to the second approach it is possible to regard the refusal of the right to vote as a measure that reflects the purpose of isolating the prisoner from society, which derives from the idea that there is no reason to allow a prisoner who has been removed from society for a certain period to influence the shaping of its system of government and other aspects of society. This is the place to point out that, in Israel, the arrangement that allows prisoners to realize their right to vote is enshrined in legislation (see s. 116 of the Knesset Elections Law, 5729-1969; HCJ 337/84 Hukma v. Minister of Interior [26]; Golan v. Prisons Service [15], at pp. 158-159 {514-516}).

The same applies to the restrictions imposed on the prisoner’s ability to have contact with members of his family and with additional persons outside the prison, whether by means of visits to the prison or by sending letters or making telephone calls. It may be argued that the aforesaid restrictions were not only imposed because of the need to prevent a disruption to the running of the prison but they were also intended to realize the purpose of removing and isolating the prisoner from society.

6.            Several different variables may increase the disparity between the aforesaid two approaches. One of these variables concerns the seriousness of the offence that the prisoner committed. Thus, for example, according to the second approach, the more serious the offence, the greater the degree of revulsion that the public feels towards the acts of the prisoner, and this should be reflected to a more significant degree in his sentence. This can be done, inter alia, by preventing him from benefitting from additional rights that he would have had, were he a free man.

7.            It can be said that the petitioners’ arguments are based to a large extent on the second approach. According to what is alleged in the petition, when considering a request of someone who committed such a despicable and serious offence as the second respondent to be allowed to have children, the competent authority should take into account considerations that go beyond the effects of the application on the mere ability to keep him behind bars, and it should also balance the violation of his rights against the principles of punishment and deterrence that underlie his sentence. Thus they request that the administrative authority should also take into account the profound feelings of abhorrence that the citizens of the state feel towards his despicable acts, when it decides whether there are grounds for allowing the artificial insemination of his spouse. It follows from this, the petitioners seek to argue, that someone who committed such a serious act against the Israeli public should not be allowed to realize his right to have a family.

8.            But as my colleagues say in their opinions, the path that the petitioners seek to follow is not the path of the Israeli legal system. It is the first approach presented above that has established over the years a firm basis in our case law. The remarks of this court in Golan v. Prisons Service [15], which are cited in the opinion of my colleague Justice A. Procaccia, are pertinent in this regard:

‘The basic assumption is that the human rights “package” of a prisoner includes all those rights and liberties conferred on every citizen and resident, except for the freedom of movement of which he is deprived as a result of the imprisonment. Notwithstanding, it is clear that the imprisonment also suspends the prisoner’s ability to exercise some of his other liberties. With regard to some of these, where the ability to exercise them depends on the freedom of movement, the suspension of the right is “inherent” to the imprisonment. Other liberties that can be exercised (at least in part) irrespective of freedom of movement and that can be realized even in a prison cell (or from it) continue to be enjoyed by the prisoner even when he is in the prison’ (ibid., at p. 152 {502}; see also the references cited there).

Or as my colleague expressed so well in her own words:

‘It should be emphasized that the restrictions on human rights that are imposed by the public authority were not intended to add an additional sanction to the sentence that was handed down. Their purpose is not to increase of the severity of the sentence that was handed down to the prisoner as a goal in itself. Their purpose is not to punish the prisoner for his crimes, for which he has been sentenced to imprisonment, or to make the conditions of his imprisonment more difficult as recompense for his despicable acts’ (para. 14 of the opinion of Justice A. Procaccia).

9.            Admittedly it is possible to find instances in Israeli case law in which it appears that a prisoner’s rights were in practice denied as a part of his punishment. In this regard, the following examples can be mentioned: the refusal of a prison governor to allow a prisoner to have use of a ‘sex doll’ in order to release his tensions and as a substitute for having marital relations (LHCJA 4338/95 Hazan v. Israel Prison Service [20]); a refusal to allow a book that was held to contain inflammatory and inciting content into a prison (HCJ 543/76 Frankel v. Prisons Service [42]); a decision not to allow prisoners on a hunger strike salt and milk powder and to remove these products from their cells, where it was held that the right to allow a prisoner to participate in a hunger strike is not one of the rights granted to him when he is in prison (HCJ 7837/04 Borgal v. Israel Prison Service [43]); a prohibition against security prisoners having radio receivers (HCJ 96/80 Almabi v. Israel Prison Service [44]). Naturally it is possible to point to many more examples, but for the sake of brevity I will not mention them. But it is important to note that all of these cases concerned a restriction of the prisoner’s rights that derived from the principle that his punishment was exhausted by his being placed behind bars, and any additional restriction was intended to serve the needs of the imprisonment only. Thus, in all the examples that were mentioned above, the restriction of the additional rights was made in order to ensure the proper running of the prison and the disciplinary and security arrangements in the prison. Notwithstanding, in order that these case law rulings with regard to the importance of preserving the human rights of the prisoner do not become empty words, the court should ensure that the Israel Prisons Service does not make improper use of its power to ensure the proper functioning of the prison as a means of restricting additional rights of prisoners, even where this is not necessary. The remarks of Justice H. Cohn in HCJ 144/74 Livneh v. Prisons Service [45] are pertinent in this regard:

‘Many evils that are a necessary part of prison life are added to the loss of liberty. But we should not add to the necessary evils that cannot be prevented any restrictions and violations for which there is no need or justification. The powers granted to prison governors to maintain order and discipline need to be very broad; but the broader the power, the greater the temptation to use it unnecessarily and without any real justification.’

10. It is proper at this stage to make two additional points. First, it is possible to mention incidents that can perhaps be regarded as expressing the second approach. These are cases where certain aspects of the sentence of imprisonment reflect to some extent purposes that go beyond those concerning the restriction of liberty. Thus, for example, s. 9 of the Release from Imprisonment on Parole Law, 5761-2001, provides that among the considerations that should be taken into account when considering the question of the early release of a prisoner from imprisonment, there are considerations concerning the severity and type of the offence, the circumstances in which it was committed, its scope and consequences, and also considerations relating to the prisoner’s criminal record. Moreover, s. 10 of the same law states that:

‘In cases of special seriousness and circumstances in which the board is of the opinion that the parole of the prisoner will seriously harm the public, the legal system, law enforcement and the deterrence of others, when the severity of the offence, its circumstances and the sentence handed down to the prisoner are unreasonably disproportionate to the term of imprisonment that the prisoner will actually serve if he is released on parole, the board may also take these factors into account in its decision.’

Another example of this can be found in the duty imposed on every prisoner to work in the course of the sentence of imprisonment imposed on him (s. 48 of the Penal Law, 5737-1977, together with s. 25 of the Prisons Ordinance [New Version] (hereafter — the ordinance)). According to what is stated in s. 56(30), if a prisoner refuses to work, this will lead to the sanctions listed in s. 58 of the ordinance. Thus, even though the rationale underlying this provision is a rationale that is intended to rehabilitate the prisoner, it does involve a conflict with his freedom of choice.

Notwithstanding, it is important to point out that in all of these examples and others, the violation of the prisoner’s rights in addition to his actually being held in prison is enshrined in a specific provision of statute (see for example Golan v. Prisons Service [15], at p. 152 {502}). The position is different when the Prison Service Commissioner wishes to violate additional rights that are not inherent to the loss of liberty without such a power being given to him expressly in statute.

11. Second, there is an additional category of cases in which the gravity of the offence or the fact that a prisoner has not expressed regret for his actions would appear to have an effect on the scope of the violation of rights that is not necessarily inherent to the loss of liberty. Even though the circumstances relating to the severity of the offence do not constitute in themselves a justification for violating the rights of the prisoner, they are capable of indicating the risk presented by him, and consequently they are capable of justifying imposing additional restrictions that violate the basic rights given to him. Notwithstanding, it is important to note that this is not a continuation of the sentencing or an additional sentence resulting from these circumstances, but a violation that is incidental to the actual sentence of imprisonment (see and cf. LHCJA 5614/04 Amir v. Israel Prison Service [2]).

12. In conclusion, as I pointed out in my opening remarks, I agree with my colleagues that in the circumstances of the present case there was no reason to prevent the second respondent realizing his right to have children by means of artificial insemination. Notwithstanding, I saw fit to add these remarks, in order to try to focus upon the difficulty in the issue before us and to clarify why even when we are dealing with someone who committed one of the most abhorrent crimes in the history of our state, we are obliged to continue to adhere to the principles that lie at the heart of our legal outlook.

 

 

Petition denied.

17 Sivan 5766.

13 June 2006.

 

 

 

 

President D. Beinisch

I concur with the judgment of my colleague, Justice E. Hayut, and would like to briefly add my own comments in support of the conclusions elucidated in her opinion.

1.    First, it should be mentioned that in the initial stages of these judicial proceedings, the respondents were not opposed to handing over the protocols of the Investigation Committee and additional documents submitted to the Committee, without revealing the names of the witnesses or other identifying details (see e.g. the letter of Adv. Lin of 25 May 2004 to the University's attorneys, at the beginning of which she suggested the non-disclosure of the witnesses' names, as opposed to the contents of their testimony or their letters – Appendix 16 of Rs/1 of the respondents' response to the application for an interim order; see further, para. 17 of the Regional Labour Court's judgment and para. 9 of the  National Labour Court's judgment, from which it emerges that the respondents proposed deleting the names of witnesses from the material requested in order "to prevent prejudice to the interests of the parties").  In their response to the petition in this Court, the attorneys for the respondents similarly "agreed to the deletion of the names in the interest of striking a balance as is customary in this kind of case", despite their observation that the identity of the witnesses might be relevant in assessing the reasonability of the conclusions reached by the Investigation Committee (response to petition, paras. 303-304). At all events, it is undisputed that the respondents did not appeal against the National Labour Court's ruling that the names of the speakers and any other identifying detail were to be deleted from any protocols that had not yet been submitted for examination, and that the other documents would be submitted to the Regional Labour Court, which would decide on the deletion of details "liable to be prejudicial to persons who had no interest in the proceedings". Under these circumstances the question for us to decide is whether the University was entitled to refuse to disclose the contents of the protocols that had yet to be submitted for the respondents' inspection and the contents of the additional documents that were presented to the Investigation Committee, subject to the deletion of the witnesses’ names and other identifying details.

In this context it should also be mentioned that the University is not a "public authority" for purposes of the Freedom of Information Law, 5758-1998, and as such the provisions of that Law are not directly applicable to it, other than with respect to its financial management (see O.G 5766, 1050; also cf. per President Barak in Technion – Israeli Technological Institute v. Datz [36], p. 433, para. 15). Under these circumstances I concur with the finding of Justice Hayut, which was also accepted by Justice Naor, to the effect that we were not presented with a suitable factual-legal background for the purpose of determining whether the University is a hybrid body with the characteristics of a public body.  Bearing this in mind, the guiding assumption exclusively for purposes of this litigation, and without ruling on the matter, must be that the voluntary Investigation Committee established by the University does not have public characteristics for purposes of the respondents' application for the disclosure of documents, and therefore, the norms of public law should not be applied (see para. 17 of the judgment of Justice Hayut and para. 7 of Justice Naor's judgment).

2     For the reasons set out at length in the judgment of my colleague, Justice Hayut, I too am of the view that the protocols and other documents under discussion are relevant to the dispute between the parties in the Regional Labour Court, and that the University has not demonstrated any privilege that could prevent the disclosure of the material requested.

There is no real disagreement between the parties that no actual statutory privilege exists that is applicable under the circumstances of this case. The University's central argument was that a new case-law privilege should be recognized in order to protect the constitutional right to privacy of the witnesses who appeared before the Investigation Committee, and in view of the public interest in protecting the proper functioning of voluntary investigation committees in academic institutions.  On this matter, we have already held in previous cases that "[i]n civil litigation the rule is that the disclosure of any material relevant to the dispute being adjudicated by the court should be as broad as possible", and [therefore], "…only in special and exceptional cases will a privilege be recognized" (per Justice D. Dorner, Shimshon v. HaPoalim Bank Ltd. [25], at p. 193; per President A. Barak in Hadassah Medical Association v. Gilead [5], at para. 5). In the current circumstances, I share the view of my colleagues, Justice Hayut and Justice Naor, that the gravity of the damage to the occupation and dignity of the respondents, and the need to ensure a fair proceeding which enables them to effectively defend themselves from the allegations, mandates the disclosure of the contents of the protocols and other documents that were before the Investigation Committee.  This conclusion stands even under the assumption that the disclosure may cause damage – the extent of which is unclear - to the privacy of the witnesses and to the activities of voluntary, internal university investigation committees.

       Here it should be noted that we have not examined the requested documents, and we therefore agree that one cannot categorically rule out the possibility of the witnesses' privacy having been infringed as a result of the disclosure. Justice Hayut stated that "Prima facie… any disclosure of the information in a proceeding between the petitioner and the respondents in the Regional Labour Court infringes the privacy of the complainants and the witnesses to the extent that they received a promise of confidentiality restricting the scope of disclosure of information…". According to Justice Hayut, however, the extent of the damage is relatively limited, and it is not equivalent to the respondents’ right to a due process, a right which would be impaired without the disclosure of the protocols and the other requested documents (para. 21 of her judgment).  Justice Naor too noted that “since these testimonies are not before us, I am prepared to assume, for argument’s sake, that there was an infringement of privacy with respect to some of the complaints or testimony… Even assuming that there was a certain infringement of privacy, when balanced against the harm to the respondents, the respondents would seem to have the upper hand" (para. 4 of her judgment; emphasis at source – D.B).  In support of the above we would emphasize that in the current case the respondents do not oppose receiving material from which the names of witnesses and other identifying details have been deleted. This detracts from the force of the University’s claims concerning the infringement of the witnesses’ privacy resulting from the submission of the material, and its subsequent “chilling effect” on the activities of voluntary investigation committees. As such, in my view, even without having examined the material that the respondents wish to see, it may be said that the severity of the infringement to the witnesses’ privacy is mild, even if only because of the agreement not to reveal the witnesses’ names and other identifying details. Considering all the above, I too am of the opinion that the circumstances of this case do not warrant the non-disclosure of the requested material.

Further to the above, and without ruling on the matter, I would note that in my view one cannot rule out the possibility that in exceptional cases, the public interest might justify recognition of a case-law based privilege which would prevent the divulging of sources who testified before voluntary investigation committees, for example - committees charged with the investigation of matters in which there is a major public interest in receiving information, the non-disclosure of which is a condition for its submission, or the revealing of which may jeopardize the possibility of its continued receipt (see and compare to the arrangement prescribed in s. 9 (b)(7) of the Freedom of Information Law, 5758-1998).  Exceptional circumstances of this kind do not exist in the case before us. The University set up a voluntary Investigation Committee in order to examine difficulties that arose in the management of the Theatre Department from both the academic and administrative perspectives. Without detracting from the importance of this kind of committee as a tool for enhancing the quality of teaching and the streamlining of the support systems in academic institutions, it cannot be said that there is a critical public interest that supersedes the broad principle of disclosure, the reasons for which lie in the public welfare and the aspiration to expose the truth and do justice in the judicial process, and in the respondents’ personal interest in properly defending themselves against the damage to their occupation and their dignity.

3.    As to the contractual promise of confidentiality – the differences between Justice Hayut and Justice Naor in this respect do not appear to be substantive.  The assumption is that the Investigation Committee ought to have anticipated the possibility of its conclusions serving as the basis for measures taken against the respondents, and even that legal action may ensue. Bearing that in mind, both of my colleagues agree that the Investigation Committee was unauthorized to give the witnesses any absolute promise regarding the confidentiality of their testimonies which in the nature and scope would contradict the law governing the disclosure of documents; this is also the case in the absence of a critical, weighty public interest which could justify the recognition of a privilege by force of the very existence of a contractual promise of confidentiality,

As noted in para. 21 of Justice Hayut’s judgment, the University’s central argument against the disclosure of the requested material is based on the concern that the respondents would settle accounts with those who had testified against them.  Without expressing a view as to whether this concern is substantiated and justified on its own merits, it appears that from the University’s perspective the solution lies in the non-disclosure of the names and other identifying details of the witnesses, as distinct from the disclosure of the details of the testimony itself.   My view is that in the absence of any recognized privilege, as explained above, the most that the Investigation Committee could have promised the witnesses and complainants would have been to attempt  to avoid disclosure of their names or of any other identifying details – as distinct from the contents of their testimony.  This could be regarded as a promise of sorts to endeavor not to divulge the identities of the witnesses in the event of a legal proceeding, so as to encourage the cooperation of those giving information with the Committee, in accordance with the applicable statutory provisions (on the "obligation to make an effort” see and compare: CA 444/94 Orot Artists Representation  v. Atari [59], at para. 7).

In the circumstances of this case, the effort not to disclose the identity of the witnesses who appeared before the Committee bore fruit, because as stated, it was agreed, or at least the respondents were not opposed, that the material requested be examined without disclosure of the witnesses’ names. Absent that consent, the promise to “make the effort” may have been translated into an argument  on  the University’s part that it was initially necessary to ascertain whether the disclosure of the witnesses’ identity was essential to the respondents’ defense, in view of the infringement of the privacy of witnesses who were not party to the proceeding, and whose position on the disclosure of the material had not been heard (see and compare, in another context, AP 3542/04 Salas v. Salas [60], per Justice Proccaccia at para. 14, hearing an application for the disclosure of private material in the possession of a third party who was not a litigant in the proceeding). Either way, the University would have been left with the option of deciding whether to refrain from disclosing the witnesses’ identity by agreeing to accept the suit in the Labour Court (on this matter, see para. 6 of Justice Naor’s judgment).

Thus, as opposed to the ruling of the National Labour Court, my view is that the absence of privilege does not mean that the Investigation Committee was not permitted to make any promise regarding the disclosure of the testimonies given before it. At the same time, the nature and extent of such a promise must derive from the statutory conditions applicable to the matter. On the face of it, I think that in these specific circumstances the promise given by the Investigation Committee was not, in essence, violated, in view of the decision that the material would be given to the respondents without revealing the witnesses’ names. However, the contractual relationship between the Investigation Committee and the witnesses who appeared before it is not the subject of this case, and I therefore see no reason to decide on the matter.

I therefore concur in the judgment of Justice Hayut. I would add that any disputes arising between the parties relating to the practicalities of the deletion of witnesses names and other identifying details from the protocols before their submission to the respondents - should be resolved before the Regional Labour Court.

Petition denied.

9 Iyyar 5768.

14 May 2008.

 

HCJ 11339/05

State of Israel

v.

1.             Beer-Sheba District Court

2.             Meir Zano

3.             Yisrael Ganon

4.             David Tzafir

5.             Yaron Sanker

6.             Rafi Ohana

7.             Moshe Ohana

8.             Shalom Shitrit

9.             David Akiva

10. Gal Bugnim

11. Public Defender’s Office

12. Israel Bar Association

 

Applicants to join the proceeding:

1.             Ilana Shelhov

2.             Amir Shelhov

 

 

The Supreme Court sitting as the High Court of Justice

[8 October 2006]

Before President Emeritus A. Barak, President D. Beinisch,

Vice-President E. Rivlin

and Justices A. Procaccia, E.E. Levy, A. Grunis, M. Naor

 

Petition to the Supreme Court sitting as the High Court of Justice.

 

Facts: In 1976 the Supreme Court held in Kinsey v. State of Israel [1] that when two accomplices are indicted in separate trials, one (the ‘witness-accomplice’) should not be called to testify against the other (the ‘defendant’) until the witness-accomplice’s own trial has ended. This became known as the Kinsey rule. Thirty years later, the court is being requested to reconsider the Kinsey rule.

 

Held: The Kinsey rule, which was originally intended as a rule of proper practice, became over the years a binding rule from which the courts rarely departed. The court recognizes that the rule in its all-encompassing scope is no longer suited to present conditions and legal realities. It today constitutes an obstacle to conducting effective criminal trials. The time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule, and the rule as it is interpreted today can no longer stand.

(Majority opinion — President Beinisch, President Emeritus Barak, Vice-President Rivlin, Justice Naor) The time has come to cancel the rule of practice formulated in the Kinsey rule. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state.

(Minority opinion — Justices Levy, Grunis) The Kinsey rule should no longer be followed. The court should exercise great caution when considering the credibility of the testimony of a witness-accomplice, whose separate trial has not ended, against the defendant. The right to a fair trial, which was protected by the Kinsey rule, should be protected instead by other means, particularly by the requirement of supporting evidence for the testimony of a witness-accomplice in s. 54A of the Evidence Ordinance, and by the privilege against self-incrimination in s. 47(b) of the Evidence Ordinance, which should be interpreted broadly so that any incriminating statement made during the testimony of the witness-accomplice in the trial of the defendant may not be used directly or indirectly against the witness-accomplice in his subsequent trial.

(Minority opinion — Justice Procaccia) The proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended. (The scope of these exceptional cases was regarded as too broad by the majority opinion).

 

Petition granted.

 

Legislation cited:

Basic Law: Administration of Justice, s. 2.

Basic Law: Human Dignity and Liberty, ss. 5, 8.

Courts Law [Consolidated Version], 5744-1984, s. 77A(a).

Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, ss. 21, 60-62, 61, 62.

Criminal Procedure (Testimony) Ordinance, 1927, s. 2(2).

Criminal Procedure Law [Consolidated Version], 5742-1982, ss. 74(e), 134, 145, 147, 155, 186, 196.

Evidence Ordinance [New Version], 5731-1971, s. 10A, 10A(c), 47, 47(a), 47(b), 53, 54A(a).

Evidence Ordinance Amendment Law (no. 4), 5740-1979.

Evidence Ordinance Amendment Law (no. 6), 5742-1982.

High Court of Justice Procedure Regulations, 5744-1984, r. 20(b).

Rights of Victims of Crime Law, 5761-2001.

 

Israeli Supreme Court cases cited:

[1]           CrimA 194/75 Kinsey v. State of Israel [1976] IsrSC 30(2) 477.

[2]           HCJ 398/83 Avitan v. Bench of Three Justices [1983] IsrSC 37(3) 467.

[3]           HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [1987] IsrSC 41(4) 683.

[4]           HCJ 6371/94 Deri v. Jerusalem District Court [1995] IsrSC 49(1) 133.

[5]           HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court (unreported decision of 18 November 2001).

[6]           HCJ 8800/05 Duha v. Tiberias Magistrates Court (unreported decision of 22 September 2005).

[7]           HCJ 267/88 HaIdra Rabbinical College Network v. Local Affairs Court [1989] IsrSC 43(3) 728.

[8]           HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [2003] IsrSC 57(4) 625.

[9]           HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court [2005] (1) IsrLR 400.

[10]         HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [1997] IsrSC 51(3) 750.

[11]         CrimA 725/95 Mandelbrot v. State of Israel (unreported).

[12]         CrimA 169/74 Kadouri v. State of Israel [1975] IsrSC 29(1) 398.

[13]         CrimA 949/80 Shuhami v. State of Israel [1981] IsrSC 35(4) 62.

[14]         CrimA 501/81 Abu-Hatzeira v. State of Israel [1982] IsrSC 36(4) 141.

[15]         CrimA 777/80 Beinashvili v. State of Israel [1983] IsrSC 37(2) 452.

[16]         CrimApp 9474/04 State of Israel v. Alzam (unreported).

[17]         CrimApp 5899/00 Ivorkin v. State of Israel (unreported).

[18]         CrimFH 2316/95 Ganimat v. State of Israel [1995] IsrSC 49(4) 589.

[19]         CrimApp 8087/95 Zada v. State of Israel [1996] IsrSC 50(2) 133.

[20]         CrimApp 12047/04 State of Israel v. Ben-Yishai (unreported).

[21]         CrimApp 1657/04 State of Israel v. Ben-Yishai [2004] IsrSC 58(5) 577.

[22]         HCJ 5091/03 Turk v. Attorney-General [2003] IsrSC 57(5) 665.

[23]         CrimApp 7971/01 State of Israel v. Teakman (unreported).

[24]         CrimA 125/75 Meirom Ltd v. State of Israel [1976] IsrSC 30(1) 57.

[25]         HCJ 8850/02 Pastinger v. Minister of Justice [2004] IsrSC 58(2) 696.

[26]         CrimApp 8639/05 State of Israel v. Almarboa (unreported).

[27]         CrimApp 2846/97 State of Israel v. Maharom (unreported).

[28]         CrimApp 7372/03 State of Israel v. Moses (unreported decision of 14 August 2003).

[29]         CrimA 1774/02 Kadosh v. State of Israel (unreported decision of 20 November 2002).

[30]         CrimA 330/84 State of Israel v. Sha’ashua [1985] IsrSC 39(1) 85.

[31]         CrimA 64/87 Gerstal v. State of Israel [1988] IsrSC 42(3) 533.

[32]         CrimA 579/88 Suissa v. State of Israel [1990] IsrSC 44(1) 529.

[33]         CrimA 67/85 Abeid v. State of Israel [1986] IsrSC 40(3) 391.

[34]         CrimA 44/81 Moyal v. State of Israel [1982] IsrSC 36(1) 505.

[35]         CrimA 124/93 Masada v. State of Israel [1993] IsrSC 47(1) 480.

[36]         CrimA 4596/05 Rosenstein v. State of Israel [2005] (2) IsrLR 232.

[37]         CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [2006] (1) IsrLR 320.

[38]         RT 3032/99 Baranes v. State of Israel [2002] IsrSC 56(3) 354.

[39]         HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [2004] IsrSC 58(2) 746.

[40]         CrimApp 4157/00 Nimrodi v. State of Israel [2000] IsrSC 54(3) 625.

[41]         CrimApp 1355/98 Ben-Ari v. State of Israel [1999] IsrSC 53(2) 1.

[42]         CrimA 400/84 State of Israel v. Anjel [1986] IsrSC 40(3) 481.

[43]         CrimApp 2043/05 State of Israel v. Ze’evi (unreported decision of 15 September 2005).

[44]         CrimA 6613/99 Smirk v. State of Israel [2002] IsrSC 56(3) 529.

[45]         HCJ 58/68 Shalit v. Minister of Interior [1969] IsrSC 23(2) 477; IsrSJ SV 35.

[46]         CrimA 1538/02 A v. State of Israel [2004] IsrSC 58(3) 590.

[47]         CrimA 209/87 Shahada v. State of Israel [1987] IsrSC 41(4) 594.

[48]         CrimA 348/88 Abu-Assad v. State of Israel [1990] IsrSC 44(3) 89.

[49]         CrimA 2642/99 Masaraweh v. State of Israel (unreported decision of 3 July 2003).

[50]         CrimFH 4390/91 State of Israel v. Haj Yihya [1993] IsrSC 47(3) 661.

[51]         FH 3081/91 Kozali v. State of Israel [1991] IsrSC 45(4) 441.

[52]         CrimA 5329/98 Dejani v. State of Israel [2003] IsrSC 57(2) 273.

[53]         CrimA 7450/02 Eid v. State of Israel (not yet reported decision of 17 March 2005).

[54]         CrimA 2910/94 Yefet v. State of Israel [1996] IsrSC 50(2) 221.

[55]         CrimA 29/86 Barrett v. State of Israel [1986] IsrSC 40(2) 430.

[56]         CrimA 228/87 Karmi v. State of Israel [1988] IsrSC 42(1) 332.

[57]         CrimApp 1572/05 Zuartz v. State of Israel [2005] (2) TakSC 64.

[58]         CrimA 951/80 Kanir v. State of Israel [1981] IsrSC 35(3) 505.

[59]         CrimA 639/79 Aflalo v. State of Israel [1980] IsrSC 34(3) 561.

[60]         MApp 838/84 Livni v. State of Israel [1984] IsrSC 38(3) 729.

[61]         CrimFH 4971/02 Zagouri v. State of Israel [2004] IsrSC 58(4) 583.

[62]         CrimA 4391/91 Hawaja v. State of Israel [1995] IsrSC 49(2) 45.

[63]         CrimA 2309/90 Sabah v. State of Israel [1991] (4) TakSC 324.

[64]         CrimA 3427/91 Salah v. State of Israel [1993] (3) TakSC 444.

[65]         CrimA 4391/03 Abu Ria v. State of Israel (unreported).

[66]         CrimA 573/72 Habura v. State of Israel [1974] IsrSC 28(2) 57.

[67]         CrimA 144/92 Cavalero v. State of Israel [1994] IsrSC 48(2) 407.

[68]         CrimA 474/75 Salem v. State of Israel [1976] IsrSC 30(3) 113.

[69]         CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[70]         CrimA 4424/98 Silgado v. State of Israel [2002] IsrSC 56(5) 529.

 

Israel District Court cases cited:

[71]         CrimC (TA) 40063/01 State of Israel v. Kadosh (unreported).

[72]         CrimC (Naz) 43/03 State of Israel v. Khalil (unreported).

[73]         CrimC (Naz) 37/03 Fatali v. State of Israel (unreported).

[74]         CrimC (Naz) 1215/02 State of Israel v. Masri (unreported).

[75]         CrimC (Naz) 1014/04 State of Israel v. Otmala (unreported).

[76]         SFC (Jer) 4059/01 State of Israel v. Kaloti (unreported).

[77]         CrimC (TA) 40067/02 State of Israel v. Abu-Ras (unreported).

[78]         CrimC (Hf) 384/00 State of Israel v. A (unreported).

[79]         SFC (TA) 1164/02 State of Israel v. Ben-Yishai (unreported decision of 27 October 2003).

[80]         MApp (Naz) 2303/03 State of Israel v. Masri (unreported decision of 22 December 2003).

[81]         MApp (BS) 20659/05 State of Israel v. Abu-Sevila (unreported decision of 15 May 2005).

[82]         CrimC (TA) 3160/04 State of Israel v. Levy (unreported).

[83]         CrimC (Jer) 3088/02 State of Israel v. Malca (unreported).

[84]         CrimC (TA) 40056/04 State of Israel v. Abramov (unreported).

 

American cases cited:

[85]         Counselman v. Hitchcock, 142 U.S. 547 (1892).

[86]         Kastigar v. United States, 406 U.S. 441 (1972).

[87]         United States v. North, 910 F. 2d 843 (D.C. Cir., 1990).

[88]         United States v. Hylton, 294 F. 3d 130 (D.C. Cir., 2002).

[89]         United States v. McDaniel, 482 F. 2d 305 (8th Cir., 1973).

[90]         United States v. Hsia, 131 F. Supp. 2d 195 (D.D.C., 2001).

[91]         United States v. Danielson, 325 F. 3d 1054 (9th Cir., 2003).

[92]         Byrd v. Wainwright, 428 F. 2d 1017 (5th Cir., 1970).

[93]         U.S. v. Echeles, 352 F. 2d 892 (7th Cir., 1965).

 

Canadian cases cited:

[94]         R. v. S. (R.J.), [1995] 1 S.C.R. 451.

[95]         R. v. Primeau, [1995] 2 S.C.R. 60.

 

English cases cited:

[96]         R. v. Farler (1837) 173 Eng. Rep. 418 (K.B.).

[97]         R. v. Winsor (1865) 10 Cox C.C. 276.

[98]         R. v. Pipe (1967) 51 Cr. App. R. 17 (C.A.).

[99]         R. v. Richardson (1967) 51 Cr. App. R. 381 (Central Criminal Court).

[100]      R. v. Turner (1975) 61 Cr. App. R. 67 (C.A.).

[101]      R. v. Weeks (1980) 74 Cr. App. R. 161.

[102]      R. v. Palmer (1994) 99 Cr. App. R. 83.

[103]      R. v. Pentonville Prison Governor, ex p. Schneider (1981) 73 Cr. App. R. 200 (D.C.).

[104]      R. v. Reed (2003) EWCA Crim. 2667; [2003] All ER (D) 289.

[105]      Winsor v. R. [1866] 1 Q.B. 390.

[106]      Tillett v. R. (1999) Privy Council Appeal no. 56 of 1998.

 

For the petitioner — E. Barzilai, A. Hulata, U. Corinaldi-Sirkis.

For the second respondent — D. Yiftach, D. Inbar.

For the third respondent — A. Himi.

For the fourth and eighth respondents — E. Bar-Zion, V. Uzan.

For the fifth respondent — T. Aner, A. Cohen.

For the sixth respondent — A. Feldman, A. Yariv.

For the seventh respondent — A. Wishnia.

For the ninth respondent — D. Qual, A. Goer.

For the tenth respondent — L. Felus.

For the eleventh respondent — T. Aner, A. Kobo.

For the twelfth respondent — R. Toren.

For the applicants to join the proceeding — D. Pugach.

 

 

 

JUDGMENT

 

 

Justice E.E. Levy

1.             Two persons are indicted for the same incident, but in separate indictments. Can the prosecution summon one, whose case is pending, as a prosecution witness in the trial of the other?

Three decades ago this court, per Justice M. Etzioni, decided this question in what was later to become known as the Kinsey rule:

                ‘The proper practice should be that one defendant should not be brought to testify against another defendant, even if separate indictments have been filed against them, as long as there is a concern that the witness may expect a benefit in the form of a more lenient sentence in the trial pending against him. This can be prevented either by holding his trial before the testimony is given or by making him a state’s witness and a stay of proceedings or a declaration by the prosecution that the trial against him will be cancelled when the testimony is concluded’ (CrimA 194/75 Kinsey v. State of Israel [1], at p. 482).

Justice M. Shamgar agreed with these remarks, and he discussed the difficulty inherent in such testimony:

                ‘In my opinion, there is a valid and real concern that the testimony of a witness as aforesaid in the trial of his accomplice will be nothing more than a dress rehearsal of the testimony that he intends to give at his own trial; in other words, he will of course seek to present his version of the sequence of events and his goal is likely to be to increase his chances at his separate trial by blackening his partner, his accomplice in the offence, against whom he is testifying, or by describing his own part in the offence as minimal. In this way the witness will increase his chances of being acquitted in his trial or he will minimize the relative weight of his part in the offence. An additional concern that arises in this context is that such a witness will indeed testify for the prosecution, but because his trial is pending, he can limit the scope of the cross-examination that he can expect from the defendant by relying on what is stated in the aforesaid section 47 of the Evidence Ordinance’ (ibid. [1], at p. 489).

The roots of the Kinsey rule have spread out and taken a firm hold in Israeli law. The purposes underlying it — as well as the criticism of it — have been studied in colleges and universities. What was originally intended to be a ‘proper practice’ has become, de facto, a binding rule from which the courts rarely depart. Now, thirty years on, we are required to consider whether there is a basis for changing this rule.

Factual background

2.             Three indictments were filed in the District Courts in Tel-Aviv and Beer-Sheba. These reveal a disturbing picture of a sequence of serious offences in which respondents 2-10 were allegedly involved. They concern several conspiracies that were made by these respondents, some of which had a common purpose — assassinating rivals in a power struggle between criminal gangs, in order to bring about in this way what has become known as ‘settling accounts.’ These acts, of which the respondents are accused, resulted in the deaths of three persons, and serious injury to others. Two of the persons murdered, the late Shaked Shelhov and Tomer Shevet, were killed as a result of mistaken identity, after they happened upon the scene of the murder.

Two of the indictments were filed in the Tel-Aviv District Court. One of them concerns the activity of the fifth respondent (SFC 1119/04), and the other concerns the acts of respondents 6-10 (SFC 1120/04). The third indictment (SFC 994/04) was filed in the Beer-Sheba District Court against respondents 2-4. The three indictments contain many pages and include long lists of prosecution witnesses, which presaged lengthy trials to come.

The following, in brief, are the facts of the indictments.

a.             SFC 994/04

In the first charge it is alleged that the respondents, with others, decided to kill a resident of Ashkelon, Shalom Domrani, because of a dispute whose particulars are of no importance to our case. For this purpose, they initiated contact with another criminal gang, which included the fifth respondent, Yaron Sanker, which also had an interest in targeting Domrani. The conspirators decided to carry out their plan on 2 June 2003, in the morning, when Domrani was supposed to leave his home on the way to the Beer-Sheba Magistrates Court. Some of the conspirators waited nearby, and when it appeared that Domrani was about to leave his apartment, Sanker and the second respondent entered the building and waited for the lift to arrive, on the assumption that their victim would be in it. In fact, Shay Ben-Amu, a friend of Domrani, was using another lift, and when Sanker and the second respondent, Yisrael Ganon, saw him, they opened fire with pistols that were in their possession. As a result Ben-Amu was wounded and required medical treatment to save his life.

The second charge in the indictment also concerns Domrani. It is alleged that in a further attempt to assassinate their victim, the second respondent, on the orders of the first respondent, fired a ‘Galil’ rifle at a vehicle in which Domrani was supposed to be travelling, according to the information in their possession. As a result of this shooting, the late Shaked Shelhov, a girl who was only sixteen years old, was killed; unfortunately she was caught up in the incident after she entered the vehicle which Domrani had exited several minutes earlier. Other passengers who were in the vehicle, Dennis Shemesh and Yaniv Revach, were wounded.

b.             SFC 1119/04 and SFC 1120/04

The indictment in SFC 1119/04 contained six charges, in which Sanker was alleged to have committed a host of offences when he was escaping from a twelve year prison sentence. It should be stated at this stage that during his interrogation Sendar confessed to all the incriminating facts attributed to him, and he even described to his interrogators the role of the other respondents in the various events.

The first charge in this indictment concerned an armed robbery that Sanker committed, according to the prosecution, on 20 February 2003, in a money-changing business in Ashdod, by threatening the teller and taking away with him the contents of the safe, which amounted to approximately NIS 140,000.

The other charges concerned the conspiracy which Sanker made with respondents 6 and 7, in which respondents 8-10 also took part. The indictment in SFC 1120/04, which was filed against respondents 6-10, also concerns these five charges. In order to understand the background to the offences, it should be stated that respondents 6 and 7 are the brothers of the late Hanania Ohana (hereafter: ‘the deceased’), who was murdered on 5 March 2003, and with whom Sanker became acquainted during his term of imprisonment. Following the murder of the deceased, his brothers reached a decision to kill everyone who was involved in the incident, and also everyone who was connected with them or expressed satisfaction at the deceased’s death. Inter alia, these respondents wished to cause the death of Domrani, Shelomo Zarihan, the brothers Yaakov and Nissim Alperon, Yitzhak Abergil and Hayim Shabi. In order to carry out the conspiracy, respondents 6 and 7 agreed with Sanker that in return for carrying out the planned assassinations he would receive their protection, as well as a place to live and a car. It was also agreed that the eighth respondent would serve as the contact between respondents 6 and 7 and Sanker, take Sanker to the scene of the crime and provide him with the means of carrying out the offences.

The first charge concerns an attempt to bring about the death of Shelomo Zarihan. It was alleged that on 6 May 2003 Sanker and respondents 8 and 10, together with one Guy Yehezkel, came to a meeting that was arranged with Zarihan at a café in Tel-Aviv. Sanker came to the meeting disguised as a security guard, and he carried on his person a loaded pistol. During the meeting, the fifth respondent directed his gun at Zarihan’s head and pulled the trigger, but because his pistol jammed he did not succeed in carrying out his plan. Zarihan, who saw what was happening around him, began to flee while Sanker fired at him several times and hit him in the chest, the hip and the knees. It was also alleged that shortly after the event, Sanker and respondents 8 and 9 came to the hospital where Zarihan was being treated, for the purpose of finishing their job. But, after they saw the close security that had been stationed around him, they decided to leave.

An additional charge brought in the indictments concerns the attempt to assassinate Domrani, which was described above. A third charge concerns an attempt to murder Yaakov Alperon. It is alleged that Sanker was instructed by respondents 6 and 7 to hide in Alperon’s car an explosive charge that had been prepared in advance. But Sanker had difficulty in closing the cover of the spare wheel in which he wanted to hide the explosive charge, and therefore he was compelled to take it out and leave as he came.

The fourth charge concerns an attempt to kill Yitzhak Abergil and persons with whom he was associated. It is alleged that on 24 September 2003 Sanker and the eighth respondent went with another person to a banqueting hall in Rishon LeZion, to which Abergil and his associates were invited. Sanker, the eighth respondent and their accomplice were equipped with gas canisters and an explosive charge, and their plan was to explode a car bomb at the entrance to the banqueting hall. But on their way there, Sanker, who was concerned about the killing of innocent bystanders, staged a road accident, and thus his accomplices’ plot was foiled. On the same day the three persons concerned returned to the banqueting hall, and this time they were equipped with an M-16 rifle that had a telescopic sight attached. But this time also they did not succeed in carrying out their plan, since they did not succeed in identifying Abergil and his associates.

The last charge concerns the decision of respondents 6 and 7 to assassinate the late Hayim Shabi. It is alleged that these respondents ordered Sanker and the eighth respondent to kill Shabi, and they even promised them a reward of 10,000 dollars if they succeeded in carrying out their mission. For this purpose Sanker was given a stolen car which had forged licence plates, and he was also given two pistols. On 1 October 2003, the ninth respondent, who was given the task of following Shabi, telephoned the eighth respondent and told him that he had located the victim and that he was following him. After a while, following reports that were given by the ninth respondent, Sanker and the eighth respondent arrived at the entrance of a hairdressing shop in Hod HaSharon where Shabi was present. Sanker entered and fired one shot at Shabi. Subsequently Shabi began to run away but Sanker did not stop firing more shots at him. When Shabi fell to his knees, Sanker approached him, shot him in the head and killed him. During this shooting, Sanker noticed the late Tomer Shevet, who was sitting on a fence outside the hairdressing shop and who had a similar appearance to Shabi. Consequently, in order ‘not to take any risks,’ Sanker also shot Tomer and caused his death.

3.             As I have already said, Sanker, who was arrested in March 2004, described to his interrogators the events in which he claimed to have taken part, and also the role of the other persons involved in those events. It should be emphasized that it was only due to the evidence given by Sanker that the petitioner succeeded in drawing up indictments and arresting the other persons involved. But Sanker went back on his confessions in the course of his trial, and consequently he denied carrying out the acts attributed to him.

The respondents’ trials

4.             On 25 September 2006, while this petition was pending before us, the Tel-Aviv District Court (the honourable Vice-President B. Ofir-Tom and Justices M. Sokolov and I. Schneller) convicted Sanker of all of the six charges of which he was indicted. The trial took a long time, and this can be attributed not only to the fact that more than 200 prosecution witnesses were heard, but also to Sanker himself, who contested his confession, changed his lawyers no less than three times and also filed two petitions in this court that were dismissed in limine; in these he challenged interim decisions given in his case, and attached applications to stay the proceedings until the petitions were decided (HCJ 9141/05 Sanker v. Police, on 20 October 2005; HCJ 1747/06 Sanker v. Tel-Aviv District Court, on 19 March 2006). Until his case was decided, Sanker was held under arrest, and it should be emphasized that the period of his arrest was extended, with his consent, no less than seven times.

Indeed, Sanker was in no hurry to end his trial, but this conclusion should not cause any real surprise, if only for the reason that his being held under arrest for these charges took place concurrently with another sentence of imprisonment that he was serving.

The rate of progress in the trials of the other persons involved in the various events is also not encouraging. In the trial of respondents 6-10, 79 prosecution witnesses have been heard to date, and notwithstanding the declaration of the respondent that it waives the testimony of 63 of its witnesses, there remain another 75 witnesses, of whom the main witness will be Sanker. In the trial of respondents 2-4 admittedly most of the prosecution witnesses have been heard, but even in this case the prosecution case is far from complete, in view of the case law ruling that is being reconsidered in this petition, which stipulates that the completion of Sanker’s trial is a precondition for his giving testimony for the prosecution in the trial of the persons alleged to be his accomplices. This prolongation of the proceedings also results in another side effect: I am referring to the prolonged period of arrest of the other persons involved. In this regard I will add that the period of arrest of respondents 2-3 has been extended so far seven times, and an application to extend it an eighth time is pending before the Supreme Court; the period of arrest of respondents 6-8 has been extended eight times and an application to extend it a ninth time has also been set down for a hearing; by contrast, respondents 4, 9 and 10 have been released under house arrest with various restrictions.

The reason why I have gone into detail is in order to emphasize the plight of the defendants arising from the legal position that currently prevails, in which they are compelled to wait a long time — sometimes a very long time — until their trial ends. This plight led to an application of the petitioner to the Beer-Sheba District Court to be allowed to have Sanker testify in the trial of respondents 2-4 even before his trial has ended. The petitioner pointed to the fact that of the six charges levelled against Sanker in the indictment, only in one — namely the attempt to assassinate Domrani — was he an accomplice of respondents 2-4, whereas the other charges against him were in no way related to those respondents. It was therefore argued that in view of the considerable sentence that Sanker was likely to receive following his conviction, there was no real danger that he would try to improve his position by giving false incriminating testimony in the trials of his accomplices. It was also argued that Sanker should not be regarded as someone who anticipated a benefit or reduction in sentence if he incriminated his accomplices. The reason for this was that the negotiations that he held with the prosecution authorities, in an attempt to reach a plea bargain with them, had failed. Finally it was argued that Sanker’s testimony should be allowed also because of the considerable harm to the public that was involved in compelling the prosecution to stay the proceedings being conducted against respondents 2-4 until his trial ended.

The District Court rejected these claims, while emphasizing the importance of the Kinsey rule in protecting the rights of the defendant and the witness-accomplice. It said:

                ‘There is a concern that giving permission to have a witness who is an accomplice in the offence testify may violate the rights of the defendant and also the rights of the witness himself as the accused in the other case. We should not forget that according to what is accepted in our legal system the prosecution may give a benefit to a witness who is an accomplice in an offence, in order to encourage him to testify in the other trial. It is obvious that such a situation, even if we agree that this is an unavoidable necessity, is problematic with regard to the defendant against whom the accomplice in the offence testifies. The power given to the prosecution to file indictments and to make offers that include benefits to one defendant, prima facie at the expense of another defendant —again, even if this is necessary in view of the rampant and serious nature of the crime — does indeed require deep consideration and a broad perspective’ (p. 3 of the decision of 9 October 2005).

The District Court went on to discuss how there may be cases that require a departure from the Kinsey rule, but in its opinion the conditions justifying this were not satisfied in the present case:

                ‘[Sanker’s] reasons for testifying are complex, and this court cannot determine that he definitely has no personal interest that relates to his trial, if he testifies before us at this stage’ (ibid., at p. 4).

The dispute in this petition and the scope of judicial review of interim decisions in criminal proceedings

5.             The current petition concerns the aforesaid decision of the District Court, and in essence it seeks to persuade the court to abandon the ‘Kinsey rule.’ In this petition the petitioner also includes the case of respondents 6-10 and it requests that the court allows it to summon Sanker to testify in their trial as well. As we have said, Sanker’s trial ended recently, and therefore the petition has prima facie become moot, since there is no longer any obstacle — even according to the prevailing normative position — to his testifying in the trials of respondents 2-4 and 6-10. Moreover, it is well known that, unlike in civil proceedings, interim decisions given in criminal proceedings may be appealed within the framework of an appeal against the final judgment, and not previously or in any other framework. It is only in exceptional cases, by virtue of special provisions of statute that allow this, that the parties to the criminal proceeding may challenge decisions that have been given before the proceedings have ended (see ss. 74(e) and 147 of the Criminal Procedure Law [Consolidated Version], 5742-1982).

This matter, i.e., the inability to challenge judicial decisions immediately after they are given, has resulted and continues to result in the filing of many petitions in this court. These are designed, in practice, to serve as a substitute for the possibility of appealing interim decisions in criminal cases. These attempts are consistently rejected, and this was discussed by Vice-President M. Shamgar:

                ‘The various procedural arguments that are raised before the criminal court and are within its jurisdiction are not considered by the High Court of Justice, but only — if there is a basis and need to do so — in the appellate court, which reviews the judgment of the trial court in a criminal case, as long as there is no contrary provision in statute.

                …

                In summary, if a decision is made in criminal proceedings, and a party is of the opinion that it is erroneous, he has the right to include this argument in the appeal on the verdict, if one is filed. He does not have a parallel right to apply to this court sitting as the High Court of Justice in a matter of procedure, and the court will not intervene in such a case nor adopt for itself the role of the court of appeal in criminal proceedings’ (HCJ 398/83 Avitan v. Bench of Three Justices [2], at pp. 470-471, and see also HCJ 583/87 Halperin v. Vice-President of Jerusalem District Court [3], at p. 700; HCJ 6371/94 Deri v. Jerusalem District Court [4]; HCJ 6876/01 Barlai v. Justice of Tel-Aviv Magistrates Court [5]; HCJ 8800/05 Duha v. Tiberias Magistrates Court [6]).

There has been a whole host of decisions in the same vein, that the intervention of the High Court of Justice in decisions given in the course of a criminal trial will be restricted only to rare cases in which there is an argument concerning a lack of jurisdiction or an extreme case of arbitrariness in a purely administrative field (Halperin v. Vice-President of Jerusalem District Court [3], at p. 702); it has also been held that such intervention is also possible in a case where the petition raises a fundamental question that has widespread ramifications, in circumstances where dismissing the petition will cause irreversible damage that cannot be repaired by means of an appeal on the final judgment (HCJ 267/88 HaIdra Rabbinical College Network v. Local Affairs Court [7], at pp. 732 et seq.; HCJ 620/02 Chief Military Prosecutor v. Appeals Court Martial [8], at p. 631; HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court   [9]).

Notwithstanding all this, in our opinion the current petition falls within the scope of the exceptional cases in which this court can consider a petition that is brought before it. The significance of the arguments raised in the petition goes far beyond the concerns of the parties in this case, and in practice these arguments may affect every criminal act in which several perpetrators are involved. The ‘Kinsey rule,’ which the petitioner wishes to have reconsidered, is one of the cornerstones on which the criminal law and the rules of evidence in our legal system are currently based. Moreover, the doubts that have arisen as to the suitability of the Kinsey rule to the legal position today also justify our considering this petition. Finally it should be emphasized that dismissing the petition in limine, for the reason that this court is not a court of appeal for interim decisions in criminal cases, would not leave the petitioner any practical possibility of bringing before us the fundamental arguments that it wishes to make. Admittedly the proceedings that are currently taking place against the other persons involved in the incidents, with the exception of Sanker himself, are, at the moment, in their early stages, but after they end — whether in a conviction or an acquittal — the arguments of the petitioner will have become hypothetical and irrelevant, and therefore it was not be able to challenge the decision then either. This unique situation will only allow the petitioner to bring its arguments before us by filing a petition that is directed at the interim decision.

Application to join the state’s petition

6.             As I have said, respondents 2-4 are alleged, inter alia, to be responsible for the death of the late Shaked Shelhov. Her parents, Ilana and Amir Shelhov, applied, by virtue of r. 20(b) of the High Court of Justice Procedure Regulations, 5744-1984, for an order that they should be joined as respondents in the petition. In their opinion, the prolongation of the proceedings caused by the Kinsey rule affects not only the defendant, but also the victims of offences and their families, whose interests were recognized by the legislature in the Rights of Victims of Crime Law, 5761-2001. These persons cannot continue their lives in a normal manner while the completion of the legal proceedings against the persons accused of harming them or their loved ones cannot be foreseen, and this problem increases the longer the proceedings are drawn out.

I understand the applicants’ pain. It is genuine and sincere. Notwithstanding, I will recommend that they are not joined as parties, in order not to complicate the issue that requires a decision, and also because we were cognizant of their arguments when we considered this petition.

The petitioner’s arguments

7.             On 16 Tevet 5766 (16 January 2006) we gave an order nisi, and after the detailed written replies of the respondents were filed, we also heard their oral argument. Below I shall state the arguments of the parties, and I will begin with those of the petitioner.

8.             The petitioner’s position, in a nutshell, is that the application of the Kinsey rule deals a serious blow to law enforcement, the protection of the public against dangerous criminals and even the constitutional rights of persons under arrest. It argues that since the 1970s, when the Kinsey rule was enshrined in the case law of this court, there have been changes in the legal climate in Israel: the basic outlooks on which our legal system is based have changed; many changes have been made to legislation and case law; the offences with which the law enforcement system is required to contend are more complex and involve more parties than in the past. In view of all this, it argues that the Kinsey rule has become a millstone and it is no longer suited to the legal reality of today. Moreover, the petitioner claims that the concerns that gave rise to the Kinsey rule are not supported by experience, since in many cases the witness has no interest at all in incriminating his accomplice. On the contrary, the prevailing phenomenon is that many witnesses wish to aid their accomplices who are their co-defendants or who are indicted separately, and very often — too often — the court is required to declare them hostile witnesses and to prefer the evidence that they gave during their interrogation, in accordance with the provisions of s. 10A of the Evidence Ordinance.

In the petitioner’s opinion, the Kinsey rule created a strict rule of admissibility, which prevents the court, albeit temporarily, from hearing the testimony of the accomplice before his trial has ended. This rule, according to the petitioner, is not only contrary to the provisions of s. 2 of the Evidence Ordinance, which provides that everyone is competent to testify, but it conflicts with the trend that can be seen in many judgments, which has gradually abandoned the rules concerning the admissibility of evidence and replaced them with rules concerning its weight. The impetus driving this trend, in the petitioner’s opinion, is the desire to place before the court as much of the relevant evidence as possible, in the belief that this will lead to a more effective discovery of the truth. In contrast, the petitioner goes on to argue that the Kinsey rule prevents the prosecution from placing before the court a complete factual picture, and therefore it is nothing more than an obstacle in its quest to discover the truth. According to the prosecution, the court should not be burdened with strict rules, but it should be allowed to act as it does on a daily basis when it is required to determine questions of the credibility of witnesses, the weight that should be attributed to their testimony and the additional evidence that is required, if at all, in the circumstances of the case.

In this context, the petitioner goes on to point out that the Kinsey rule was not applied to state’s witnesses, who are promised consideration for their testimony, even though in their case there is a real fear that they will seek to satisfy the prosecution even at the cost of giving false or fabricated testimony. By contrast, the witness-accomplice is not promised any consideration, and therefore the fear that he will expect to receive consideration for his testimony is merely theoretical, and so too is the fear that his testimony is unreliable. The petitioner also says that under the current state of the law and as a result of the heavy burden laid upon the legal system — which causes proceedings to be dragged out, sometimes to an intolerable degree — the prosecution may regard itself as having no choice other than to make an agreement with the accomplice, for reasons that are inappropriate, in which he is given various benefits in order to bring about a speedy conclusion to his trial. This situation may lead to an additional undesirable result, namely that defendants seek to prolong their trials deliberately, in order to exert pressure on the prosecution to make agreements with them that may undermine the administration of justice and the public interest.

The petitioner further argues that where defendants are brought to trial in one indictment and they testify in their own defence, the court may rely on the testimony of one defendant against his accomplice, notwithstanding the conflict of interests that there may be between them. Against this background, it questions whether there is any material difference that makes it essential to refrain from doing this where accomplices in a crime are brought to trial in two separate indictments. In this respect, the petitioner also refers to the provisions of s. 155 of the Criminal Procedure Law, which allows a defendant who has pleaded guilty to the commission of the offences attributed to him to be called to testify against his co-defendants after he has been sentenced. It also emphasizes that a defendant’s guilty plea, especially where it relates also to the role of the other defendants, may prejudice the judges sitting on the case, and notwithstanding this the legislature saw fit to allow his testimony.

An additional provision which the petitioner thinks is inconsistent with the Kinsey rule is s. 10A of the Evidence Ordinance. It is well-known that this provision allows statements that were made by the witness in interrogations to be adduced as evidence against an accomplice who is on trial where he changes his story in the course of his testimony before the court. The petitioner emphasizes that it is possible to make use of this provision even when the testimony of the accomplice is heard only after the accomplice’s trial has ended, so that the Kinsey rule is likely to be rendered meaningless.

The petitioner goes on to refer to a whole host of rulings made by this court, which have limited the application of the Kinsey rule. In the petitioner’s opinion, these cases prove that the court is no longer entirely satisfied with the logic of this rule, which raises questions as to whether its existence is justified.

9.             At this point, the petitioner discusses at length what it defines as the ‘Kinsey rule damage,’ which includes matters that we have already mentioned, namely that the implementation of the rule leads to a considerable prolongation of proceedings as a result of the need to wait until the trial of the witness-accomplice is concluded; in many cases, and especially in serious felony cases in which defendants are held under arrest pending trial, this leads to prolonged periods of arrest that are sometimes unreasonable; in this respect, there is a concern that defendants who have been classified as a danger to the safety and security of the public may be released before their cases are decided. An additional side effect is that the prosecution authorities are sometimes compelled to reduce the seriousness of the charges, waive essential witnesses and make plea bargains that are unduly favourable to accomplices. It is argued that this reality gives the witness-accomplice an expectation that he will receive a benefit in return for his testimony, and this expectation results in the witness-accomplice doing whatever he can in order to delay the proceedings in his case.

But the petitioner argues that the deleterious effects of the Kinsey rule are not limited to the aforesaid, but that the rule also affects the quality of the actual legal proceeding. This is because the rule dictates the order in which the witnesses testify, and may also result in the prosecution waiving the testimony of the accomplice, even though it is important and pivotal to the case. The failure to bring the testimony of the accomplice before the court at the right time — and, in the worst case scenario, not bringing it at all — undermines the ability of the court to weigh the evidence, arrive at the truth of the matter and do justice. Moreover, the Kinsey rule requires the trial court to determine, already at a preliminary stage, whether the concerns upon which this rule is based exist in the case before it or whether the prosecution should be allowed to have the accomplice testify. This determination, in addition to its inherent difficulty, requires the court to decide questions of credibility at a preliminary stage, rather than when it should do so, at the end of the trial.

Finally, the petitioner is of the opinion that the Kinsey rule does not need to be cancelled in statute. It was emphasized that the Kinsey rule is the creation of the court, and therefore the court also has the power to cancel it. Moreover, the rule outlined in the Kinsey case was originally defined as nothing more than a ‘proper practice.’ It does not embody any basic right that the respondents would like to see in it, and for this reason also the power to cancel or change it is not within the sole jurisdiction of the legislature.

The arguments of the eleventh respondent — the Public Defender’s Office

10. The Public Defender’s Office, which was joined as a respondent in this petition, is of the opinion that there is no reason to cancel the Kinsey rule, since it has become embedded in Israeli law as an inherent part of the constitutional right to a fair trial. In the opinion of this respondent, any violation of this right should satisfy the conditions of the ‘limitations clause’ provided in s. 8 of the Basic Law: Human Dignity and Liberty, namely it should only be done in statute; it should be for a proper purpose, and in this context the Public Defender’s Office believes that considerations of efficiency are not a basis for such a purpose; and it should be to an extent that is not excessive, a requirement that it is argued is also not satisfied in view of the serious harm to defendants that will arise from a departure from the Kinsey rule. It is argued that the interest of shortening the length of the legal proceeding may be achieved in other ways that are less harmful, such as increasing the number of judges in the legal system.

In the opinion of the Public Defender’s Office, the rationale underlying the Kinsey rule remains valid today. Moreover, in its opinion, arguments that were made in the past against this rule have, over the years, become arguments that support it, and therefore today, even more than in the past, it should remain unchanged. In this context it was emphasized that the Kinsey rule came into existence when the prosecution was required to supplement the testimony of an accomplice with the stringent requirements of ‘corroboration,’ something which reduced the concerns inherent in such testimony. But this requirement was repealed in 1982, and now, under s. 54A(a) of the Evidence Ordinance, the testimony of an accomplice only requires ‘support,’ something that makes the concern for the rights of the defendant even greater than it was in the past.

The Public Defender’s Office emphasizes that the Kinsey rule was originally defined as a ‘proper practice’ and not as a strict rule without exceptions. Indeed, this respondent set out in its reply a thorough review of judgments in which the court limited the rule’s application and even held than in circumstances where the rationale underlying it does not exist, it should not be used. Notwithstanding, the importance of the rule should not be underrated precisely in those cases where it has not been qualified. It was therefore argued that the current state of the law is that the court has discretion to consider, in each case on its merits, whether the principle outlined in the Kinsey rule should be applied or not. Granting the petition and cancelling this rule are tantamount, in the opinion of the Public Defender’s Office, to depriving the courts of this discretion and imposing upon them a strict rule that will undermine its ability to arrive at the truth.

The Public Defender’s Office emphasizes that the Kinsey rule belongs to the field of criminal procedure and not to the rules of evidence. It is argued that it is not — as can be understood from the petitioner’s arguments — a rule of admissibility that concerns the competence of the accomplice to testify against his co-defendant, but a rule that postpones the date of hearing the testimony to a later stage of the trial. For this reason, it believes that there is no basis to the argument that the cancellation of the Kinsey rule is consistent with the outlook that is currently prevalent in the rules of evidence, namely the replacement of rules of admissibility with rules of weight.

It is also argued that the difficulties created by the application of the Kinsey rule are a result of the immense burden of cases placed on the legal system, but these reasons do not justify a violation of a defendant’s right to a fair trial. It is also argued that the concern expressed by the petitioner, that the application of the Kinsey rule will result in defendants who are a serious danger to the public being released on bail is purely theoretical. In support of its position, the Public Defender’s Office presented us with empirical data that it assembled, from which it can be seen that that the courts grant applications to extend the period of arrest under s. 62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, at a rate of almost 99 per cent. In this regard, the Public Defender’s Office added that according to the figures in its possession, 75 per cent of persons under arrest consent to the extension of their period of arrest, and for this reason also the concern that they will be released is unfounded.

Finally, The Public Defender’s Office points to new issues that may arise if the Kinsey rule is cancelled. It is argued that when preparing the witness to testify, the prosecutors will be required to meet with him while both parties wear two hats: the accomplice is a witness but also a defendant, whereas the prosecutors are not only the prosecutors in the trial of his accomplices but also in his trial. In such a scenario, the witness will be subjected to pressure, on the one hand, and an open and hidden agenda, on the other, and these will have ramifications on the testimony that he will give in the court. It was also argued that cancelling the Kinsey rule will lead to several criminal trials taking place simultaneously, and this increases the danger that conflicting decisions will be given.

The arguments of the twelfth respondent — the Israel Bar Association

11. The Israel Bar Association (hereafter: ‘the Bar Association’) adds several arguments to those of the Public Defender’s Office. It complains that the consequences of the relief sought in the petition may be wider than necessary. In its opinion, the circumstances of the case that is the subject of the petition are difficult and exceptional, but this difficulty should not be exploited to achieve the general purpose of speeding up criminal trials by denying defendants a protection of paramount importance. Moreover, the Bar Association is of the opinion that the cancellation of such a fundamental element of the rules of evidence should be made in a criminal appeal, and not in a petition to the High Court of Justice.

The Bar Association refers in its arguments to s. 10A of the Evidence Ordinance. It argues that the arrangement set out in this section undermined the rights of the defendant, and this now justifies the existence of the Kinsey rule, so that they are not undermined even further. Just as s. 10A is the result of legislation, so too any additional violation of the rights of defendants should be made in legislation. It also argued that in view of the well-known policy of the prosecution authorities, which only rarely file indictments on the offence of perjury, the fear of miscarriages of justice becomes even greater.

Moreover, it was emphasized that two government-sponsored draft laws relating to the cancellation of the Kinsey rule were tabled in the Knesset, but did not become law (see the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992; the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999). It is argued that this fact shows that the legislature did not desire the cancellation of the Kinsey rule, and the court should not do what the Knesset refused to do.

The arguments of respondents 2-10

12. The second respondent concentrated on the manner in which the petitioner chose to attack the decision of the trial court. He argues that this was an interim decision made in a criminal proceeding, which may not be appealed. He also argues that the petition suffers from a significant degree of delay, in view of the considerable amount of time — more than a year — that passed between the date of filing the indictment against Sanker and the filing of the petition. This delay shows that the petitioner did not do enough in order to increase the speed of the trial and thereby to minimize the damage caused by the application of the Kinsey rule.

The third respondent is of the opinion that the petitioner is to blame for the slow rate at which Sanker’s trial is being heard, and the court should not allow him to suffer because of the petitioner’s failings. The fifth respondent also supports this argument concerning the responsibility for the delay in the hearing of the trial. The third respondent further believes that the decision of the trial court shows that there is a real concern that his defence will be prejudiced if Sanker’s testimony is heard now, and for this reason too it should not be set aside. Finally, if the petition is granted, the third respondent petitions that we disqualify the panel of judges that is trying his case in the District Court.

Respondents 6-10 also mentioned in their arguments the reasons underlying the Kinsey rule. These respondents also expressed the concern that cancelling the rule will result in a flood of appeals and applications for retrials, where it becomes clear that there is a disparity between the accomplice’s story when testifying and the story he tells in his own trial. This result, it is argued, will further increase the burden of cases in the courts.

Respondents 6-10 are also of the opinion that the Kinsey rule de facto completes the provisions set out in s. 155 of the Criminal Procedure Law, which concerns the testimony of accomplices who are charged in the same indictment, and it determines that a defendant who pleads guilty should not be brought to testify as long as his trial has not ended. They argue that the Kinsey rule prevents the prosecution from being able to render this provision meaningless by indicting the accomplices in separate trials. Finally, these respondents complain against what they call ‘a systematic and continuing reduction of the rights of defendants,’ and they too argue that they should not be held responsible for the considerable burden that weighs upon the court system.

Deliberations

Testimony of an accomplice

13. The source of the difficulty inherent in the testimony of an accomplice in crime lies in the other role — the role of a defendant — which he has while he is testifying. The main concern that the Kinsey rule is intended to allay is that a witness, who is indicted for the same incident with regard to which his testimony is required, will focus — when he is giving his testimony — upon obtaining a benefit in his trial, and consequently he will seek to exaggerate the role of his accomplice in the commission of the offences, while minimizing his own role. This difficulty increases in view of the concern that when the defendant has the opportunity to cross-examine the witness, the latter will become silent and invoke the privilege against self-incrimination, and thereby it will not be possible for the defendant to undermine the credibility of the story that the witness presented in his evidence-in-chief. In the words of Lord Abinger that were uttered in the first half of the nineteenth century:

                ‘The danger is that when a man is fixed and knows that his own guilt is detected, he purchases impunity by falsely accusing others’ (R. v. Farler [96], at p. 419).

Although the seriousness of this concern should not be belittled, it should also not be denied that it is more significant in legal systems where the verdict is given by a jury, and not by professional judges for whom the task of weighing up the testimony of witnesses is an everyday matter. Here we should mention once again that in our legal system there is also no prohibition against — or restriction upon — calling as a witness anyone whose testimony may give rise to questions of credibility, such as mentally-ill persons, children, state’s witnesses or persons who have been convicted in the past of perjury, even though no one denies that these cases also give rise, prima facie, to questions of credibility. Against this background, Justice T. Strasberg-Cohen emphasized the role of the court in weighing up the testimony heard by it:

                ‘A concern that the truth may be distorted does not justify a exception to the duty to testify. Such a concern exists in many cases where witnesses may give testimony that is untruthful for various reasons, whether revealed or hidden, and this does not prevent them from testifying; otherwise, I fear that there would be grounds for preventing the testimony of very many witnesses and the evidence that is brought before the court would be diluted. The proper party to address this concern is the court, which carefully and responsibly examines and weighs the credibility of the testimony given before it. The solution is certainly not to declare the testimony inadmissible ab initio because of a concern that the truth may be distorted. The witness should therefore be compelled to testify and it is the task of the judge who hears his testimony to give it the proper weight, with the aid of the various tools that the law, knowledge and experience have given him’ (HCJ 6319/95 Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at pp. 766-767).

Similar remarks were also uttered by Justice Y. Kedmi:

                ‘It is well known that “everyone is competent to testify” — as stated in section 2 of the Evidence Ordinance — including those persons who have an interest in the outcome of the trial; and the fact that they are “interested” in the outcome as aforesaid only affects the question of their credibility and the weight of their testimony’ (CrimA 725/95 Mandelbrot v. State of Israel [11]).

14. The origins of the practice that was adopted in our law by means of the Kinsey rule lie in the English common law, in which it is the jury that decides the verdict. I am referring to the two well-known judgments of R. v. Winsor [97] and R. v. Pipe [98], which were discussed at length in Kinsey v. State of Israel [1] (see also the remarks of Justice Y. Kahan in CrimA 169/74 Kadouri v. State of Israel [12], at p. 402).

This significant difference between the legal systems was not ignored by the justices who sat in Kinsey v. State of Israel [1] (see p. 488 of the judgment), but they saw fit to adopt this practice despite it (for criticism of the adoption of this practice by the Israeli legal system, against the background of the fact that our legal system does not rely on juries, see U. Struzman, ‘The King is Naked or the Jury that Controls the Court,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1988) 175; Y. Ginat, ‘Has the Time Come to Re-examine the Kinsey Rule,’ 42 HaPraklit (1995) 376). Additional concerns about the question whether the Kinsey rule should be allowed to continue should have arisen when the Evidence Ordinance was amended in 1979 (the Evidence Ordinance Amendment Law (no. 4), 5740-1979), and the arrangement that today is provided in s. 10A of the Ordinance was adopted. It is well-known that this arrangement, which was designed to provide a solution to the problems created by the considerable pressure that was exerted on prosecution witnesses in order to deter them from testifying, allowed the court to prefer the contents of a witness’s statement as recorded in his police interrogation to a later version which he gives in his testimony in the court, which is a result of the pressure exerted upon him. A reading of s. 10A shows that the legislature did not see fit to distinguish between an ordinary witness and a witness-accomplice who is involved in a trial for the same incident with regard to which his testimony is required. Consequently this court has held that there is nothing to prevent the arrangement enshrined in s. 10A from also being used with regard to accomplices in a crime:

                ‘The addition to the aforesaid Ordinance, which finds expression in section 10A, was only designed for cases in which the witness denies in court the content of the statement, claims that he does not remember the content or gives in the court testimony that differs from the statement in a material detail. Such a change in the presentation of the facts may find expression in the statements of a witness that has no connection or involvement in the offence, and it may occur in the statements of a witness that is an accomplice in the offence; as stated in the explanatory notes that accompanies the draft Evidence Ordinance Amendment Law (no. 4), 5738-1978, the purpose of the law is to remedy injustices that sprout from the fertile soil of the criminal trial, and in this regard there is, of course, no difference whether we are speaking of an accomplice in the offence or any other witness… In summary, it is obvious that the fact that a certain witness is an accomplice in the offence is not capable of excluding him from the class of persons whose testimony may be subjected to the aforesaid section 10A’ (CrimA 949/80 Shuhami v. State of Israel [13], at p. 69, and see also CrimA 501/81 Abu-Hatzeira v. State of Israel [14], at pp. 149-150).

Vice-President Shamgar affirmed this position in another case as well, where he said that the express wording of the legislature in s. 10A of the Evidence Ordinance overrides the proviso that was established in Kinsey v. State of Israel [1] concerning the need to postpone the date of hearing the accomplice’s testimony until the proceedings against him have been concluded:

                ‘There is no basis for a distinction between types of witness according to their connection to the offence or according to whether they are, or are not, accomplices in the offence, because the wording of s. 10A cannot serve as a basis for a distinction between a witness who was involved in the offence or was an accomplice in it and a witness who was not involved or an accomplice… Above the rules of evidence… there is an express and later stipulation of the legislature, and in the areas where it applies, it has greater weight, and if it arises from its wording that it provides a new qualification of the application of a rule of evidence that was previously accepted, the express stipulation of the statute naturally prevails’ (CrimA 777/80 Beinashvili v. State of Israel [15], at pp. 470-471). 

15. The arrangement provided in s. 10A of the Evidence Ordinance, when applied to the witness-accomplice, prima facie undermines the Kinsey rule. By this I mean that even when the testimony of the accomplice is heard only after he is sentenced, the filing of the confession that he made during his interrogation exposes the court to that early version that was given before the legal proceedings against him were concluded, a situation that the Kinsey rule sought to prevent. How can these contradictions be resolved? It can only be that this is another expression of the outlook that leaves the work of weighing up the testimony to the court, which has before it all of the versions uttered by the witness, so that it can determine — as it so often does — which it thinks is the most credible version in view of the special circumstances of each case that comes before it. It should be emphasized that, when considering these versions, there is nothing to prevent the court from also taking into account the fact that the earlier version that was uttered in the course of the investigation was put forward by an accomplice, and consequently it should be treated with caution. But this in itself does not result in the inadmissibility of the version (for the reasons justifying this outlook, see A. Strasnov, ‘In Favour of Applying Section 10A of the Evidence Ordinance to Co-defendants,’ 38 HaPraklit (1988) 660, and for those opposing it, see N. Zaltzman, ‘Co-defendants and Section 10A(a) of the Evidence Ordinance [New Version],’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) (1984) 625).

16. A further remark on the subject of s. 10A of the Evidence Ordinance: the Kinsey rule concerns a witness who made a statement in his interrogation that incriminates himself and his accomplice in a criminal act. Where this witness admits during his trial the facts of the indictment that was filed against him, the situation is simple because immediately after he is sentenced it is possible for him to testify against his accomplice. The difficulty focuses therefore on those witnesses who go back on their previous statement and deny in their trial the offences attributed to them. The considerable experience that has been accumulated during the many years since the Kinsey rule was determined and since s. 10A of the Evidence Ordinance was enacted shows that the majority of these witnesses, when they are called to testify in the trial of their accomplices, deny the confessions that they made in their interrogation even if they confessed willingly in their own trials. In such cases, the prosecution is compelled, almost as a matter of course, to resort to what is stated in s. 10A(c) of the Evidence Ordinance. Against this background, we are compelled to ask whether there exists any longer a reason for the lengthy delay in finishing the witness’s trial, when what will ultimately be used to decide the trial of the accomplice is the witness’s statement to the police and the witness’s explanations for going back on it during his testimony in the court. With regard to the concern that even the statement made to the police was wholly or partially false, the answer to this lies in the requirement of s. 10A(d) of the Evidence Ordinance concerning additional evidence that constitutes ‘support.’

The difficulties inherent in applying the Kinsey rule

17. Only a short time after the Kinsey rule was enshrined in the case law of this court did its consequences begin to emerge. As time passed, and the burden on the court system increased, the calls to change it became stronger (see A. Kammar, ‘Towards a Cancellation of the Kinsey rule,’ 42 HaPraklit (1995) 548, at p. 559). The criticism mainly targeted the fact that the rule, which provides that a witness should not normally testify until the proceedings against him have been completed, led to a significant prolonging of the proceedings, caused a miscarriage of justice to the defendant who was compelled to wait until the case of the witness-accomplice ended and increased the burden placed on the legal system. This was discussed by my colleague Justice M. Naor:

                ‘The Kinsey rule governs the holding of trials and makes it difficult, very difficult, to end them quickly, in addition to many objective difficulties that are encountered by the judicial system’ (CrimApp 9474/04 State of Israel v. Alzam [16]).

Elsewhere this was discussed by Justice M. Cheshin:

                ‘Once again we are encountering, as we do on a frequent basis — on too frequent a basis — the stumbling block known as the Kinsey rule. The main prosecution witness is the applicant’s accomplice in the horrifying act. That accomplice, who is supposed to testify against the applicant, has himself been indicted for the killing of the girl, and because his trial is still in progress, the proceedings against the applicant have ground to a halt’ (CrimApp 5899/00 Ivorkin v. State of Israel [17]).

18. This problem became more acute in view of the provisions of the law concerning arrests and the concern that defendants that are a danger to the public will be released before their trial ends. There is no need to re-emphasize the seriousness of the violation of the individual’s basic freedoms resulting from his being held under arrest until the end of proceedings, during a period when the defendant enjoys the presumption of innocence (see CrimFH 2316/95 Ganimat v. State of Israel [18]; CrimApp 8087/95 Zada v. State of Israel [19]). This outlook has also led to restricting the length of the period of arrest (see ss. 21, 61 and 62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996). The longer it continues and the violation of the defendant’s rights increases, the smaller the justification for ordering the arrest to continue. Against this background, this court has on more than one occasion found itself in a real dilemma, where the barrier erected by the Kinsey rule compels the parties to postpone the trial until the proceedings taking place against the witness-accomplice have been completed, while this delay involves the defendant remaining under arrest for a protracted period. Justice E. Hayut referred to this choice of two evils when she was asked to order the continued arrest of a defendant for the ninth consecutive time:

                ‘The situation before us forces us to choose between two evils. One is the release of the respondent who is charged with a terrible act that led to terrible consequences — the death of a three year old child. Such an act indicates the considerable danger that the respondent poses and the concern that his release on bail represents a real risk to public safety and security. The other evil is leaving the respondent under arrest for such a long period, despite the presumption of innocence that he has’ (CrimApp 12047/04 State of Israel v. Ben-Yishai [20]).

On another occasion Justice M. Cheshin said the following:

                ‘It is not an everyday occurrence that the state applies for a fifth time to hold a defendant under arrest for more than nine months… Nonetheless, not only has the respondent been under arrest for such a long period, but it is difficult for us to know when his trial will end. The reason for this is that the state wishes to call Yihya Turk, his accomplice in the conspiracy, to testify against the respondent, but it is prevented from doing so because Yihya Turk is standing trial in a separate proceeding for the very same incident, and the Kinsey rule prevents the state from calling him immediately to testify against the respondent. Admittedly, the state applied to the court to allow it to call Turk to testify against the respondent, but the court refused to grant the application. The respondent’s trial appears to be unable to proceed: it cannot progress until Turk’s trial ends, and we do not know when Turk’s trial will end… The Kinsey rule strikes us again and again, and it appears that nothing can help us’ (CrimApp 1657/04 State of Israel v. Ben-Yishai [21], at p. 581, and see also HCJ 5091/03 Turk v. Attorney-General [22], at p. 672).

This issue — the inclination to release a defendant who has been under arrest for a prolonged period without the end of the proceedings against him being on the horizon — has led to another serious phenomenon. I am referring to the creation of a considerable opportunity for manipulations on the part of defendants, who have an incentive to exert pressure on the witness-accomplice in order to obtain — at the end of a ‘war of attrition’ — the release of the defendant from arrest. Moreover, some authorities have expressed a concern that the sword hanging over the prosecution’s head — that a defendant who is standing trial will be released from arrest because of the protracted proceedings against him — may induce it to enter into lenient plea bargains with defendants or to remove serious offences from the indictment and other steps whose purpose is solely to achieve a speedy conclusion of the trial.

A general criticism has also been levelled at the Kinsey rule for causing a delay in hearing the most central testimony — the testimony of the person who is alleged to have been the defendant’s accomplice and as such has first-hand knowledge of the facts, since he was involved in them. In view of this, it has even been argued that preventing the testimony from being heard denies the court important and relevant evidence and impairs its ability to arrive at the truth, and therefore also its ability to do justice (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 759).

19. It follows from this that the rule that was intended to further the interests of doing justice — by preventing the hearing of testimony whose reliability is questionable — is precisely what may result in justice being undermined, or at least to leniency being shown to defendants who have committed the most serious offences. This, I think, was what Justice M. Cheshin meant when he compared the Kinsey rule to a ‘chemical compound that is capable of dissolving justice’ (CrimApp 7971/01 State of Israel v. Teakman [23]). Another result of the protraction of proceedings is that it undermines the interest that the court will arrive at the truth and dispense justice to defendants within a reasonable time, since, in the words of Dr. H. Sandberg, ‘in order to realize the goals of the criminal law, it is also necessary that the sentence that is imposed on the defendant is effective; effective means immediate, since the effect of criminal sentencing is significant only when the sentence is immediate’ (H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 27; see also CrimA 125/75 Meirom Ltd v. State of Israel [24], at p. 75). It should be said at this stage that in the past it is possible that the legal system was able to withstand the huge burden and the lengthy proceedings inherent in the application of the Kinsey rule. But it seems to me that those times have passed and will not return. The case load that exists in the courts today cannot be compared to the case load that existed when the Kinsey rule was made (see the report of the Commission for Examining the Structure of the Regular Courts in Israel (1997), chaired by Justice T. Or, and especially pp. 15-17 of the report; HCJ 8850/02 Pastinger v. Minister of Justice [25]; CrimApp 8639/05 State of Israel v. Almarboa [26]; CrimApp 2846/97 State of Israel v. Maharom [27]). Similarly, the scale of crime that we encounter today, which sometimes spans the whole globe, is incomparably greater than the scale of crime with which the legal system was required to contend when it created the Kinsey rule. Moreover, the sophistication of crime, the number of persons involved in it and its gravity are not what they were in 1976, the year in which the Kinsey rule was introduced.

20. In view of these difficulties, two draft laws were tabled with the aim of cancelling the Kinsey rule (see the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992 (Draft Laws 5752, at p. 170); the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999 (Draft Laws 5759, at p. 314)). The explanatory notes to the draft law of 1992 state:

                ‘Often it is not possible to bring a person to trial if his accomplice in the offence is not called to testify in that proceeding. If the accomplices are charged in one indictment and the accomplice who gave incriminating testimony at the police station and whose testimony is required does not plead guilty, it will not be possible to sentence him and to call him to testify as a state’s witness… Without the accomplice’s testimony, it is possible that the prosecution will be unable to prove guilt, even on a prima facie basis, and in any case the silence of the defendant, the accomplice, at the trial will be sufficient to result in the acquittal of his accomplice in the offence. Filing separate indictments will also be of no avail in view of (the Kinsey rule)… This delay in the proceedings harms the social interest of deterring offenders and bringing them to justice within a reasonable time. The rule also harms defendants who suffer from an injustice by waiting for their trials… The draft law will correct this legal position. The draft law does not ignore the concern that the testimony of the witness will be self-serving and may besmirch his accomplice with a story that will benefit him in his forthcoming trial. This will be considered by the court, taking into account the circumstances and the other evidence, as in any other case where a witness has an interest or inclination to pervert the truth’ (emphases supplied).

These legislative proposals did not become law, but the recognition of the difficulties inherent in the application of the rule — in an attempt to limit its scope — resulted in a whole host of cases that established an approach that gave the Kinsey rule a purposive interpretation, and where the rationale underlying it did not exist, the courts did not see fit to order the testimony of the witness to be postponed. This was discussed by my colleague, Justice D. Beinisch:

                ‘In circumstances where we are not dealing with accomplices in the same overlapping factual parts of the offence, when there is no concern that the proposed witness has an interest in incriminating his accomplice and omitting his own part in the offence or minimizing it, and when it is clear from all the circumstances of the case that we are not dealing with a witness who is seeking a benefit for himself in return for that testimony, and there is also no reason to assume that he has been promised any benefit, it is difficult to see any justification for refraining from calling the witness-accomplice to testify until his trial ends. Moreover, since the Kinsey rule acquired a foothold in our legal system, there have been changes in legislation and often we are dealing with a witness who is not interested at all in testifying against that defendant… In cases such as this, when counsel for the defence has an opportunity to try and undermine the weight of the testimony, the reason for following the “Kinsey rule” and for preferring it to the need to realize the purpose of the proceedings and to hold a criminal trial efficiently and fairly is weakened’ (CrimApp 7372/03 State of Israel v. Moses [28]; see also CrimA 1774/02 Kadosh v. State of Israel [29], at para. 12 of the judgment).

 For decisions in a similar vein that were made in the trial courts, see CrimC (TA) 40063/01 State of Israel v. Kadosh [71]; CrimC (Naz) 43/03 State of Israel v. Khalil [72]; CrimC (Naz) 37/03 Fatali v. State of Israel [73]; CrimC (Naz) 1215/02 State of Israel v. Masri [74]; CrimC (Naz) 1014/04 State of Israel v. Otmala [75].

It has therefore been held that a defendant may waive the application of the Kinsey rule in his case. This approach is logical since the Kinsey rule was intended to protect the defendant and therefore there is no reason why he should not be entitled to waive it. Consequently it has been held that a defendant should not be prevented from calling his accomplice as a witness on his behalf, as a witness for the defence, even when the witness’s trial is pending (see the opinion of Justice G. Bach in CrimA 330/84 State of Israel v. Sha’ashua [30], at pp. 89-90; see also CrimA 64/87 Gerstal v. State of Israel [31], at p. 536). It has also been held that where the defendant does not object at the relevant time to the testimony of an accomplice whose trial has not yet ended being heard — namely before the testimony is heard — he cannot do so after the event, and he should be regarded as someone who agreed to the testimony being heard (CrimA 579/88 Suissa v. State of Israel [32]).

21. In a whole host of decisions, the application of the Kinsey rule has been restricted, when the courts did not think it right to apply it in every case where the testimony of someone who was an accomplice in an offence was required. Thus it was held in the Kinsey rule itself that it does not apply in a case of an accomplice who is a state’s witness, since he cannot be regarded as a witness who expects a benefit that will be expressed in the sentence, and therefore there is no concern that he will try to minimize his role at the expense of the defendant (see CrimA 67/85 Abeid v. State of Israel [33], at pp. 395-396). In another case, the court restricted the application of the Kinsey rule when it held that it was insufficient that the witness was the accomplice of the defendant in an offence, and it was even insufficient that he was being interrogated by the police, but it was necessary, as a condition for applying the rule, that at the time of giving the testimony an indictment had already been filed against the witness, or at least that there was a proven intention of filing one (CrimA 44/81 Moyal v. State of Israel [34], at p. 522). A similar trend was also expressed in the trial courts: in one case (SFC (Jer) 4059/01 State of Israel v. Kaloti [76]) it was held that an ‘accomplice’ for the purpose of the Kinsey rule was only someone who was being tried for the same offence for which the defendant was indicted. In another case (CrimC (TA) 40067/02 State of Israel v. Abu-Ras [77]) it was held that the Kinsey rule did not apply to persons who aided an offence, and in a third case (CrimC (Hf) 384/00 State of Israel v. A [78]) it was held that the Kinsey rule did not apply to offences that involved a large number of participants.

It is of interest to point out that a similar process has also occurred in England, where the application of the rulings in R. v. Pipe [98] and R. v. Winsor [97] has been restricted. Cf. R. v. Richardson [99]; R. v. Turner [100]; R. v. Weeks [101]; R. v. Palmer [102]; R. v. Pentonville Prison Governor, ex p. Schneider [103], at p. 212; R. v. Reed [104].

Thus we see that the application of the Kinsey rule has involved and continues to involve considerable difficulties, since it seriously undermines not only the due process of the legal proceeding but also its quality and the values of liberty and justice. These difficulties cannot be ignored. They require us to reconsider the nature of that rule, its place and its purpose in our legal system.

The Kinsey rule — proper practice and not a substantive right

22. Anyone who studies the judgment in Kinsey v. State of Israel [1] will see that the court did not intend to prevent utterly the hearing of an accomplice’s testimony in a defendant’s trial or to create, ex nihilo, a rule of inadmissibility. All that the Kinsey rule sought to do — and this can be clearly seen from the language of the judgment in which it was introduced — was to indicate a practice that should be followed, without undermining the discretion given to the justices of the trial court to depart from this path in cases where they would see fit to do so. The court discussed this in the past when it held:

                ‘[The Kinsey rule] did not intend to affect the competence of the witness-accomplice and by means of case law to change the provision of statute that “Everyone is competent to testify in any trial, subject to what is stated in sections 3 and 4”… as stated in section 2 of the Evidence Ordinance [New Version], 5731-1971. [The Kinsey rule] is a “practical guideline” (State of Israel v. Sha’ashua [30], at p. 89) that prevents one defendant from testifying as a prosecution witness in the trial of another defendant who is his accomplice in the offence, as long as his own trial is pending’ (Suissa v. State of Israel [32], at p. 533; see also Kadosh v. State of Israel [29]).

A study of the judgments in R. v. Winsor [97] and R. v. Pipe [98] shows that the courts in England also sought to arrive at this normative position. Chief Justice Cockburn described the proper process concerning the testimony of an accomplice as follows:

                ‘In all such cases, if it be thought necessary, where two persons are in the same indictment, and it is thought desirable to separate them in their trials, in order that the evidence of the one may be taken against the other, I think, in order to ensure the greatest amount of truthfulness on the part of the person who is coming to give evidence under such remarkable circumstances, it would be far better that a verdict of not guilty should be taken first, or if the plea of not guilty is withdrawn and a plea of guilty taken, sentences should be passed, in order that the person coming forward to give evidence may do so with the mind free of all the corrupt influence which the fear of impending punishment and the desire to obtain immunity at the expense of the prisoner might otherwise be liable to produce in the mind of the witness’ (R. v. Winsor [97], at pp. 314-315).

Justice Blackburn also agreed with this conclusion:

                ‘It would be judicious as a general rule, where the accomplice is indicted, that his case should be disposed of before he is called as a witness’ (R. v. Winsor [97], at p. 320).

This was emphasized in later case law, where it was held that the rule outlined in R. v. Pipe [98] is a rule of practice, which was intended to direct the trial court and nothing more:

                ‘The rules referred to in Pipe … are rules of practice and not rules of law’ (R. v. Pentonville Prison Governor, ex p. Schneider [103], at p. 212).

See also in this context the judgment in the aforementioned case of R. v. Turner [100].

23. The Kinsey rule restricted itself to cases where the defendant and the witness are indicted separately. The problem is that the concern that this rule sought to eliminate — harming the defendant’s defence — also exists when the indictment contains the cases of both defendants together (see CrimA 124/93 Masada v. State of Israel [35], at p. 483; see also Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at pp. 121-138). But this latter scenario was addressed by the legislature in s. 155 of the Criminal Procedure Law [Consolidated Version], 5742-1982:

‘Sentencing of a defendant who pleads guilty                155. (a) If several defendants are charged in one indictment and some of them plead guilty to facts that are sufficient for them to be convicted and others do not plead guilty, the court shall not sentence the defendants who have pleaded guilty before the trial of the defendants who have not pleaded guilty has been held; but

                (1) If a defendant does plead guilty in this way, and the prosecutor or defence counsel give notice that he will be called to testify in the trial of the other defendants, he shall not testify until he has been sentenced;

                (2) In special circumstances that the court shall record, it may sentence the defendant who has pleaded guilty before the trial of the others has ended.’

Section 155 sought to prevent a defendant who has pleaded guilty from testifying against his accomplice before he is sentenced, and there is a considerable amount of logic in this. But the same danger, if not a more serious one, exists when all the defendants deny having committed the offences that are attributed to them, and therefore their inclination to exaggerate the role of their accomplices during their testimony, in order to minimize their own role, is likely to be greater. Notwithstanding this, the legislature did not stipulate any restriction with regard to the testimony of a defendant in such a scenario. Whatever the reason for this, the restriction provided in s. 155 with regard to the testimony of a defendant who has pleaded guilty was, as we have said, restricted to defendants who have been brought to trial in a joint indictment, and it is a fact that a similar provision was not also provided in the case of defendants who have been brought to trial in separated indictments. Some will say that this is the lacuna that the Kinsey rule seeks to fill, but I wonder whether this lacuna was not intentional, in view of the central approach of the legislature that everyone is competent to testify, except for those persons who have been excluded by virtue of a statutory provision.

In view of what we have said so far, the premise for our deliberations will be that an argument that the Kinsey rule gave defendants in a criminal trial a ‘right’ cannot succeed. This rule is merely a procedural guideline, which was intended to guarantee a certain aspect of the right to a fair trial, by preventing the defendant from being exposed to a risk that his conviction would be based on the false testimony of his accomplice. This leads me to the opinion that we should reject the argument that the cancellation of the practice determined in the Kinsey rule will lead to a violation of the right to a fair trial. But because of the great importance of this issue — the constitutional status of the right to a fair trial — and because the respondents focused their arguments on this, I see a need to discuss it at some length.

On the right to a fair trial

24. The state’s authority to bring a person to trial gives it great power. The significance of the right to a fair trial is, in essence, that where the state wishes to make use of this power, it should do so within the framework of a fair trial, in which the justification for violating the basic freedoms of the defendant will be examined. Holding fair trials is ‘an expression of the commitment of a civilized society to take deliberate action, in so far as possible, to prevent miscarriages of justice in the trials of individuals’ (A. Stein, ‘The Right to a Fair Trial,’ Human Rights and Civil Rights in Israel (T. Ben-Gal, D. Alexander, A. Bendor and S. Rabin eds., volume 3, 1992), at pp. 355-356). Therefore conducting fair trials is not merely a purpose in itself, but also a means that was designed to further the public interest to do justice and discover the truth.

Moreover, a fair trial is supposed to guarantee the protection of the ‘general’ human rights that the defendant has as a human being (see D. Bein, ‘The Police Interrogation Rules — Are there Grounds for Codification of the Entrapment Laws?’, 12 Tel-Aviv University Law Review (Iyyunei Mishpat) 129, at p. 32; Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at p. 32; S. Trechsel, ‘Why Must Trials Be Fair?’, 31 Isr. L. Rev. 94 (1997), at p. 96). Therefore, in order that a trial may be considered fair, it should comply with various criteria, which include the need for impartiality and the absence of bias on the part of the persons sitting in judgment; the need for the trial to be transparent and public; the holding of the trial within a reasonable period of time; protection of the presumption of innocence and the right not to incriminate oneself; protection of the defendant’s right to present evidence to prove his innocence, to object to prosecution evidence and to cross-examine its witnesses; the right of a suspect or defendant to know of the existence of investigation and trial proceedings against him (see Trechsel, supra, at p. 95, and R.B. Saphire, ‘Specifying Due Process Values: Toward a More Responsive Approach to Procedural Protection,’ 127 U. of Pa. L. Rev. (1978) 111).

The right to a fair trial does not merely realize a personal interest of suspects or defendants that are brought to trial. It is a public interest that every individual in society, as a potential defendant, knows that if and when criminal proceedings take place against him, they will be conducted duly and fairly. This was discussed by Prof. Goldstein:

                ‘The criminal trial serves complex psychological functions. In addition to satisfying the public demand for retribution and deterrence, it permits the ready identification of the same public, now in another mood, with the plight of the accused. Both demand and identification root deep in the view that all men are offenders, at least on a psychological level. And from the moment the offender is perceived as a surrogate self, this identification calls for a “fair trial” for him before he is punished, as we would have it for ourselves’ (A.S. Goldstein, ‘The State and the Accused: Balance of Advantage in Criminal Procedure’ (69 Yale L.J. (1960) 1149, at p. 1150).

What emerges from this is that the right to a fair trial is like a jigsaw puzzle. It is not reflected in a specific procedural arrangement or a specific right, but is based on an assortment of measures, procedural arrangements and substantive rights that combine together in order ‘to rectify the unequal balance of power between the accused and the prosecution, which usually enjoys a preferred procedural status and additional advantages, and to ensure that the accused is given a proper opportunity to state his innocence and to act in order to prove it’ (CrimA 4596/05 Rosenstein v. State of Israel [36], at p. 308). This was discussed by my colleague, Justice Beinisch, when she addressed the characteristics of the right to due process in the criminal trial:

                ‘… first, the purpose of the aforesaid right is to ensure a fair procedure and proper procedural safeguards for the fairness of the criminal trial vis-à-vis the accused. Procedural fairness is, therefore, what lies at the heart of the aforesaid right. Second, the right to a fair criminal proceeding applies to all stages of the criminal proceeding… Indeed, the police investigation stage is a preliminary proceeding to the trial itself, such that defects that occurred in it may have ramifications on the fairness of the criminal proceeding as a whole… Third, the protection of the right to a fair criminal trial is not confined to examining the potential effect of procedural defects specifically on the outcome of the trial; this context requires a broader perspective that is based on general considerations of fairness, justice and preventing a miscarriage of justice. Finally, we should point out that the right to a fair criminal trial is a multifaceted right, which may serve as a basis for deriving many procedural rights of the person under interrogation, the suspect and the accused in criminal proceedings’ (CrimA 5121/98 Yissacharov v. Chief Military Prosecutor [37], at para. 66).

At this point we should emphasize that the right to a fair trial cannot and also need not be identical in different legal systems. These may have procedural mechanisms and arrangements that vary from one another, or give litigants different rights without this signifying that any of them is a legal system that does not have fair trials. The choice between the different measures that are capable of guaranteeing fair trials, and the balance between the various competing interests are influenced by the character of the legal system, the prevailing legal tradition, the existing legal arrangements, etc.. Thus, for example, the measures that are intended to guarantee a fair trial in a legal system where verdicts are given by juries cannot be identical to measures adopted in a legal system where verdicts are given by professional judges. The scope of the right to a fair trial may also vary in accordance with the values that the legal system seeks to promote and in view of the balance between them. Thus, for example, there may be differences between legal systems as a result of different outlooks concerning the proper balance between the public interest in eradicating crime and the interest in conducting fair trials (see in this regard: Sandberg, Rights of Defendants: the Right to a Separate Trial, supra, at pp. 30-31, and H.L. Packer, ‘Two Models of the Criminal Process,’ 113 U. Pa. L. Rev. (1964), which is cited by Sandberg). Moreover, the balancing point may also be influenced by considerations such as the activity of the legal system, in view of the interest that legal proceedings should be completed within a reasonable time, and the desire to deter potential offenders. This was also addressed by my colleague, Justice Beinisch, in Yissacharov v. Chief Military Prosecutor [37], where she described the right to a fair trial as —

                ‘... a multifaceted right that is open-ended, and its title and precise content vary from one legal system to another, even in the various international conventions… defining the boundaries of the right to a fair criminal trial is a difficult and complex task, and it must be done while taking into account all of the principles and characteristics of the relevant legal system’ (ibid. [37], at para. 66).

The right to a fair trial in Israel

25. The Israeli legislature has not included the right to a fair trial expressly in any legislation, and several attempts to enshrine it in statute have also not succeeded (see the draft Basic Law: Legal Rights, Draft Laws 5754, 2219, at p. 99). Despite this, the right has always enjoyed an exalted position, and when the Basic Laws were enacted, it was recognized, according to some authorities, as a constitutional right that derived from the right to dignity (see A. Barak, Legal Interpretation (vol. 3, Constitutional Interpretation, 1994), at pp. 431-432), and according to others, as a constitutional right derived from the right to liberty (see E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) 155 (1996), at pp. 169-170). In one case this was discussed by Justice D. Dorner:

                ‘The Basic Law: Human Dignity and Liberty… gave the right of a person to a fair criminal trial the status of a constitutional basic right, especially by virtue of s. 5 of the Basic Law, which provides a right to liberty, and by virtue of ss. 2 and 4 of the Basic Law, which provide a right to human dignity. Under s. 11, the Basic Law binds all government authorities — the legislative branch, the executive branch and the judicial branch — to respect the rights provided in the law’ (RT 3032/99 Baranes v. State of Israel [38], at p. 375).

This was also discussed by B. Okon and O. Shaham, who said:

                ‘The Basic Law: Human Dignity and Liberty fundamentally changed rights in criminal law. The right of a person to liberty was enshrined. This has a special consequence for criminal law. This right struggles for supremacy in this field perhaps more than in any other field of the law. Within this context, a person’s right to a fair trial has been recognized. The significance of this is a change in the ethical pyramid. Criminal procedure has become more important. From being merely a matter of procedure it has become a main tool in the service of the constitutional basic right’ (B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 5 HaMishpat 11 (1995)).

(For more on the status of the right to a fair trial in our legal system, see Yissacharov v. Chief Military Prosecutor [37]; HCJ 9264/04 State of Israel v. Jerusalem Magistrates Court [9], at para. 8; HCJ 1437/02 Association for Civil Rights in Israel v. Minister of Public Security [39], at p. 761; Y. Shahar, ‘Criminal Procedure,’ Israel Law Yearbook, 1992, (A. Rosen-Zvi ed.) 375; A. Barak, ‘Human Dignity as a Constitutional Right,’ 41 HaPraklit 271 (1994), at p. 281; D. Wiener, ‘Further to the Amos Baranes Case,’ 4 Kiryat HaMishpat 169 (2004), at p. 186).

26. Several legislative arrangements give the right to a fair trial in our legal system practical content. Section 2 of the Basic Law: Administration of Justice provides that ‘In matters of the administration of justice, anyone who has judicial power is subject only to the authority of the law.’ Section 77A(a) of the Courts Law [Consolidated Version], 5744-1984, is also intended to prevent a danger of a predisposition or a concern of bias; in the words of the section: ‘A judge should not hear a case if he finds, on his own initiative or upon an application of a litigant, that there are circumstances that are capable of creating a real concern of bias in conducting the trial.’

The Criminal Procedure Law also addresses the issue of the fairness of the criminal trial in many of its sections. Thus, for example, s. 74 of the law provides that a defendant and his defence counsel may inspect the investigation material that was assembled by the prosecuting authority. The rationale underlying this provision is that a fair trial requires, inter alia, that a defendant is able to prepare his defence with reference to the evidence that has been accumulated against him (cf. CrimApp 4157/00 Nimrodi v. State of Israel [40], at pp. 632-633; CrimApp 1355/98 Ben-Ari v. State of Israel [41]; CrimA 400/84 State of Israel v. Anjel [42], at p. 487; CrimApp 2043/05 State of Israel v. Ze’evi [43], at para. 12).

Section 186 of the Criminal Procedure Law provides that where there is no provision to the contrary, ‘a person should only be tried in criminal cases in his presence,’ and s. 134 of this law requires the court to keep a record that will reflect everything that occurs in the courtroom during the hearings. These two sections are intended to guarantee the transparency of the criminal trial; transparency is also an aspect of procedural fairness. Section 145 of the law provides that ‘During the trial, the court shall explain to the defendant, if it sees a need to do so, the rights that he has for his defence,’ whereas s. 196 provides that ‘When the reading of the sentence has ended, the court shall explain to the defendant his right to appeal against the judgment and shall notify him of the period for filing the appeal.’ The purpose of these sections is to ensure that anyone standing trial is aware of his rights, so that the criminal trial is not conducted in circumstances where the prosecution, which has an advantage because of the information in its possession, has the upper hand. Another right that is merely another aspect of the right to a fair trial is the right given to the defendant in s. 61 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996, which provides that his trial should end within the time frame provided in the law. An additional facet is the right of the defendant to refrain from testifying or giving evidence that may incriminate him. This right is enshrined in s. 2(2) of the Criminal Procedure (Testimony) Ordinance, 1927, and s. 47 of the Evidence Ordinance.

Notwithstanding, the right to a fair trial, like every basic right, is not an absolute right. It takes its place alongside conflicting rights and interests. These include the interest that the criminal trial should be efficient, the ability to bring someone who has committed offences to justice, the desire to discover the truth, the intelligent use of the resources of the legal system, the sensible conducting of the trial and the desire to do justice to persons who unwillingly became victims of criminal acts. In the criminal trial, a proper balance should be found between all the rights and interests that are involved (see also the remarks of my colleague, Justice Beinisch, in Yissacharov v. Chief Military Prosecutor [37], at para. 68; and CrimA 6613/99 Smirk v. State of Israel [44], at p. 554).

27. In my opinion, the Kinsey rule was intended for this very purpose. In the circumstances in which it was introduced, which, as I have already said, were completely different from the situation that prevails today with regard to the ability to realize the interest of efficiency, the rule was suited to achieving the goal for which it was created. The balancing point that was determined in the Kinsey rule originally allows the right to a fair trial and the interest of efficiency of the trial to be satisfied simultaneously. But since then, a significant change has occurred in circumstances, and the Kinsey rule is no longer able to satisfy the balancing point that was determined. Continuing today to apply the practice that was determined in that rule means a displacement of the balancing point in the direction of the fairness of the trial, and a weakening of the element of its efficiency, which cannot be accepted. A change in circumstances naturally makes it necessary to adapt the trial, including the criminal law with its procedural rules, to the prevailing reality (cf. HCJ 58/68 Shalit v. Minister of Interior [45], at p. 513; Rosenstein v. State of Israel [36], at para. 30). In such a situation, the remarks that I uttered earlier with regard to the Kinsey rule being merely a means, and not an end in itself, become clearer. Since this rule can no longer sustain the burden of balancing, it is clear that we must find another method that is capable of retaining the balancing point, notwithstanding the changing circumstances, in such a way that it will prejudice the fairness of the trial or give it less weight in relation to the status of the interest of the efficiency of the trial.

This leads us almost automatically to ask the question: what is this other practice that will combine with the other measures of which I spoke above and how can it ensure the realization of a proper balance between the conflicting values?

Protecting the right of a defendant to a fair trial

28. Of the variety of measures that our legal system provides to safeguard the right of a defendant to a fair trial, I think there are two that should be discussed in detail. The first is the requirement of the supporting evidence that is required by s. 54A(a) of the Evidence Ordinance:

‘Verdict based on sole evidence in a criminal trial        54A. (a) The court shall not convict a defendant solely on the basis of the evidence of his accomplice in the offence unless it finds in the evidence something to support it.’

The purpose of this provision, like the idea underlying the Kinsey rule, is to contend with the concern that relying solely on the evidence of a person, who because he was the accomplice of the defendant in committing an offence may give false testimony, may lead the court to an erroneous result. The court therefore needs evidence of the truthfulness of the witness’s statements, which is provided by additional evidence that constitutes ‘support.’ Naturally, when the restriction in the Kinsey rule is cancelled, attention will once again focus on this requirement of support.

In this regard, it should be emphasized that before the Kinsey rule was introduced, the requirement of additional evidence for the sole testimony of an accomplice in an offence was more stringent. Additional evidence that amounted to corroboration was required. This means evidence that implicates the defendant in the commission of the offence, as opposed to evidence that can merely authenticate the testimony against him. It was only in 1982, when the Kinsey rule was already in force, that the Evidence Ordinance was amended and stipulated the more lenient requirement of support (see the Evidence Ordinance Amendment Law (no. 6), 5742-1982). However, contrary to what was originally proposed (see the explanatory notes to the draft amendment (no. 6), Draft Laws 5740, no. 1477, at p. 396), it was provided in the amendment wording of the ordinance that the requirement of corroboration would continue to be required where a state’s witness was concerned, since in such a case the personal interest that may affect the testimony of the witness who has been promised a benefit is very considerable. Notwithstanding, in view of the very real danger that relying on the testimony of an accomplice in crime may lead to a false conviction, case law recognized the existence of a ‘scale’ of supporting evidence on the basis of strength. The court trying a case is authorized to determine, at its discretion, what is the degree of the support that is required in the circumstances of the case before it in order for the prosecution to satisfy the requirement of support. When it has determined this, evidence that authenticated the testimony of the witness will be insufficient if it does not satisfy the required degree of support. The rule is therefore that ‘the greater the credibility that the court attributes to the testimony requiring support, the lower the degree of the supporting evidence may be’ (per my colleague Justice A. Grunis in CrimA 1538/02 A v. State of Israel [46], at p. 598; see also CrimA 209/87 Shahada v. State of Israel [47], at p. 596; CrimA 348/88 Abu-Assad v. State of Israel [48], at p. 98; CrimA 2642/99 Masaraweh v. State of Israel [49], at para. 9 of the opinion of my colleague Justice Beinisch). Thus, where the court — on the basis of its impression of the witness-accomplice, his statements and the other circumstances — has grounds for concern that the witness before it has an especially strong interest to incriminate his accomplice and give a distorted account of events, it may determine that a high level of support is required. I think that at this point it is possible that the difference between the requirement of support and the requirement of corroboration will not be so great.

29. A second measure for the protection of defendants is derived from the provisions of s. 47 of the Evidence Ordinance, which I addressed earlier. The section, which is entitled ‘Incriminating evidence,’ says the following:

‘Incriminating evidence      47. (a) A person is not liable to give evidence if it contains an admission of a fact that is an element of an offence of which he is charged or of which he may be charged.

                (b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.

                (c) …’

This provision was intended to give a person a defence against the use of statements that he uttered, or made in any other manner, to incriminate him in a legal proceeding against him. The principle of immunity against self-incrimination has a direct ramification on the matter before us, first and foremost in the sense of the right of a person brought to trial to have a fair trial. As I have said, the Kinsey rule sought to protect a defendant against damage that he might suffer as a result of the testimony of his accomplice whose trial has not yet ended — testimony that may turn out to be untruthful because of the witness’s interest in the outcome of the trial. Therefore, where the procedural restriction introduced by the Kinsey rule has been removed, there is no longer any reason why testimony of this kind should not be heard. But then the witness may, by virtue of his right under the aforesaid s. 47(a), refuse to undergo cross-examination from the defendant, on the ground that what he might say in his cross-examination might incriminate him. The defendant and the court may then find themselves helpless in the attempt to discover the weight of the testimony that was given. This utterly contradicts the principle of seeking justice and discovering the truth in the judicial proceeding, a principle that attributes great importance to the legal tool of cross-examination. This was discussed by Vice-President M. Elon in CrimFH 4390/91 State of Israel v. Haj Yihya [50], at p. 694, where he says:

                ‘This conclusion derives not only from the express language of the statute, but also from our accepted basic principles concerning the manner of conducting a fair criminal trial. The right of the accused to cross-examine the witness is one of his basic rights, both in order to discover the truth and also because every person has a right to argue that his fate should not be determined until he has been given an opportunity to know about the proceedings that are taking place with regard to him and against him and to be a party to them.’

See also FH 3081/91 Kozali v. State of Israel [51], at p. 478; CrimA 5329/98 Dejani v. State of Israel [52], at p. 281; CrimA 7450/02 Eid v. State of Israel [53], at para. 11).

In these circumstances, it is necessary to examine the proper interpretation that should be given to the provisions of the aforesaid s. 47, and especially to the relationship between the first two subsections thereof. An interpretation that would solve the problem that we have posed would be one that stipulates that in every case the witness-accomplice will be required to answer the questions directed at him in cross-examination, but when his replies contain anything that may incriminate him, it will not be possible to use them against him in a future trial. Are the language and the purpose of the section consistent with an interpretation of this kind? My answer to this is yes. According to this approach, the provisions of s. 47(a) should be read together with what is stated in s. 47(b), and the two provisions together are the basis for the court’s power to exercise its discretion as to whether or not to grant the application of a witness not to reply to questions addressed to him on the grounds of self-incrimination. When the court refuses to grant it, the witness will be liable to reply, but he will be immune from being hurt by what he says. This approach has some support in the case law of this court. Thus, in Kinsey v. State of Israel [1] itself Justice Shamgar said that ‘Cross-examination, which is an important means of examining the credibility of a witness, may be restricted, unless the court exercises its authority under s. 47(b) of the Ordinance’ (ibid. [1], at p. 489). In Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], Justice Strasberg-Cohen added that ‘the court may reject the application of a person to refrain from giving evidence that may incriminate him, but if it does so, the incriminating evidence will not be brought against that person’ (ibid. [10], at p. 764). This has also found expression in the case law of the trial courts; see, for example, SFC (TA) 1164/02 State of Israel v. Ben-Yishai [79], at para. 23; MApp (Naz) 2303/03 State of Israel v. Masri [80], at para. 6; MApp (BS) 20659/05 State of Israel v. Abu-Sevila [81], at para. 8; see also Sandberg, Rights of Defendants: the Right to a Separate Trial, at p. 178.

We therefore see that a departure from the Kinsey rule does not undermine the substantive right of a defendant to a fair trial, if it is accompanied by other measures that are capable of guaranteeing this right effectively. Cross-examination is one of the most important of these other measures, and it is numbered among the other measures that I discussed earlier. But we are left with the question whether the proposed interpretive approach sufficiently considers the rights of the witness. I will now turn to examine this question.

The right of a witness-accomplice to a fair trial

30. In Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], the court held that:

                ‘An examination of the reasons underlying the Kinsey rule show that the rights of the witness whose separate trial for the same incident is pending, and especially the right to remain silent and the right not to incriminate himself, are not the reason for the rule. When formulating the rule in that case, the court was considering the interest of the defendant who objects to his accomplice testifying against him’ (ibid. [10], at p. 759).

These perceptive remarks written by Justice Strasberg-Cohen emphasize that the question before us has an additional facet, which even if it was not addressed at length in Kinsey v. State of Israel [1] is directly affected by any reconsideration of that rule. This is because where the prosecution wishes also to indict the accomplice of a defendant who has testified for the prosecution, the witness may find himself in a situation where remarks that he made in his testimony will be used against him. His right to refrain from incriminating himself, which as I have said is one of the elements of the right to a fair trial, will thereby be violated.

In an attempt to solve this problem, the legislature provided in s. 47(b) of the Evidence Ordinance, as we have said, a prohibition against using a witness’s testimony to incriminate him. I will cite the wording of this provision once again:

‘(b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.’

In this provision the legislature adopted a model of immunity against self-incrimination that is also known as ‘use immunity.’ This immunity gives a witness substantive protection with regard to statements that he made in his testimony, but it does not actually rule out the possibility that he will be indicted in that matter. Thus Israeli law rejected an alternative model of ‘transactional immunity,’ in which the nature of the protection given to the witness is that he may not be indicted at all with regard to the matter on which he was required to testify. Adopting the model of ‘transactional immunity’ would compel the prosecution authorities to decide which of the two — the defendant or the witness — should be brought to justice, and which should not be brought to justice because it would be procedurally impossible or because there is insufficient evidence.

Prima facie, the model of ‘use immunity’ offers a satisfactory solution that allows two central interests that are important to the case at hand to coexist: there is nothing to prevent all the persons involved in the criminal incident being brought to justice and there is a fitting solution to the right of a person not to incriminate himself. But implementing this model in practice gives rise to two questions: the first concerns the proper scope of ‘use immunity.’ Should it apply to any use of the protected evidence, even an indirect one, such as where it is used as a springboard for discovering new evidence or as support for the existing evidence? Or should it be limited only to direct use, meaning that the production of the protected evidence before the court alone is prohibited? The second question is: who has the burden of showing that the use of the evidence is consistent with the law, or alternatively that it violates the principle of immunity from self-incrimination? On both of these questions we can learn several lessons from the experience of foreign legal systems that have encountered similar questions.

31. American law and Canadian law have both encountered the difficulty that arises in the circumstances that gave rise to the Kinsey rule. But, unlike in Kinsey v. State of Israel [1], in those countries the court did not focus on the right to a fair trial of the defendant who is brought to trial first, but on the right of the witness who will be brought to trial in the future after delivering his testimony in the trial of the defendant, his accomplice.

In American law, the normative basis for the witness’s right can be found in the Fifth Amendment to the Constitution, which establishes the principle of due process. In the past, the accepted approach in the United States recognized the model of ‘transactional immunity’ (see Counselman v. Hitchcock [85], at p. 563). But later it transpired that this led to an abuse of the principle of immunity, since witnesses who were in danger of facing criminal proceedings hastened to testify against their accomplices in the same matter and thereby acquired for themselves an absolute immunity against being brought to trial. This was addressed by Justice D. Levin in CrimA 2910/94 Yefet v. State of Israel [54], at p. 292 (with regard to investigations of congressional committees):

                ‘The opponents of the immunity argued, justly, that such a comprehensive immunity would in practice induce offenders to appear before Congress and thereby protect themselves from being indicted. This immunity even acquired the popular name of “immunity baths.” Because it was abused, this position was unsatisfactory.’

Therefore, in the 1970s the Federal statute, the Witness Immunity Act, 18 U.S.C. §6002 (1970), was amended, so that American law adopted a model of ‘use immunity’ which naturally restricted the protection given to a witness. The Supreme Court of the United States held that this model was consistent with the provisions of the Constitution, provided that it included all uses, both direct and indirect, that could be made of the protected testimony (see Kastigar v. United States [86]). This means in practice that nothing stated in a person’s testimony may be used either as evidence against him or in order to obtain evidence that is external to the testimony, and separate and independent evidence will be required for a conviction. In the words of the American court:

                ‘… [the “use immunity” rule] prohibits the prosecutorial authorities from using the compelled testimony in any respect, and it therefore insures that the testimony cannot lead to the infliction of criminal penalties on the witness’ (ibid. [86], at p. 453).

In several cases the courts in the United States have addressed the question of what constitutes an indirect and prohibited use as evidence of something arising from the testimony. Inter alia it has been held that no use may be made of ‘immune’ testimony in order to refresh the memory of a witness by referring him to what he said in that testimony; in order to clarify other evidence that is not sufficiently clear; in order to reach a decision as to which witnesses to summon and in which order; and to aid in preparing skeleton arguments and concluding arguments (United States v. North [87], at p. 857). It was also held that a conviction may not be based on testimony that was influenced by statements made in the ‘immune’ testimony (United States v. Hylton [88], at p. 134). Moreover, the model of immunity that was adopted does not allow the testimony to be used to focus a police investigation; to decide whether to file an indictment; to decide whether to enter into a plea bargain; and to plan the cross-examination of witnesses (United States v. McDaniel [89], at p. 311; see also G.S. Humble, ‘Nonevidentiary Use of Compelled Testimony: Beyond the Fifth Amendment,’ 66 Tex. L. Rev. 351 (1987); K. Strachan, ‘Self-Incrimination, Immunity, and Watergate,’ 56 Tex. L. Rev. 791 (1978)). This list is not exhaustive. The rule is that where the evidence assembled by the prosecution, without relying on the privileged testimony, is insufficient for obtaining a conviction, the conviction should not be allowed to stand, since it violates the immunity against self-incrimination. American case law has further held that no weight should be attached to the question of the subjective intentions of prosecution authorities or their knowledge that they were making use of privileged information (United States v. Hsia [90], at p. 201).

On the question of the burden of proof, American law has held that the burden rests almost entirely with the prosecution. All that the witness needs to show is that he gave testimony that relates to the incident with regard to which he has been indicted, and when he has done this, the prosecution authorities need to prove that no use has been made of statements that he made (Kastigar v. United States [86], at p. 441; United States v. Danielson [91]). For this purpose, a kind of ‘trial within a trial’ is held in each proceeding in order to ascertain whether the principle of immunity has been observed, and this may be done at any stage of the trial (United States v. North [87], at p. 854).

                                32. Canadian law has also adopted this model of immunity. In s. 5 of the Canada Evidence Act, 1985, and in s. 13 of the Canadian Charter of Rights and Freedoms, there is a similar rule to the one found in s. 47(b) of the Israeli ordinance. In the leading judgment of the Supreme Court of Canada in 1995, it was held, by a majority, that a witness may be compelled to reply to any question that he is asked, but no direct or indirect use may be made of his replies in order to incriminate him (R. v. S. (R.J.) [94]; see also R. v. Primeau [95]).

                In my opinion, we should adopt this approach in our legal system. A narrow literal interpretation of s. 47(b) — ‘the evidence shall not be submitted against that person’ — might admittedly lead to the conclusion that only a direct use of the testimony is prohibited by law. But my opinion is that this expression should be interpreted in accordance with the purpose of the section, which is, as I have said, to give effective protection against self-incrimination. It follows that there is no reason, a priori, to prevent a person testifying against his accomplice even before the witness’s trial has ended, provided that his testimony will not be used, even indirectly, to assist the prosecution authorities in proving the charges against him, and they shall not be allowed to make use of the witness’s testimony to ‘fish’ for additional evidence against him.

Notwithstanding, as Dr Sandberg says in her book (Rights of Defendants: the Right to a Separate Trial, at p. 176), in the United States the prosecution authorities have on several occasions been confronted with a major problem in proving that no use had been made of privileged testimony, even indirectly, for the purpose of assembling evidence against someone who gave such testimony. This, I would imagine, is because, inter alia, it is inherently difficult to prove something that is essentially a negative, and because it is difficult to trace such a complex and prolonged process as the assembling of prosecution evidence (see also in this regard the remarks of Justice L’Heureux-Dubé of the Supreme Court of Canada in her minority opinion in R. v. S. (R.J.) [94], at p. 594. The result has been that sometimes the prosecuting authorities in America are compelled to forego bringing the witness to trial or, alternatively, to forego calling him to testify in his accomplice’s trial before his own trial has ended. This result, in Dr Sandberg’s view, is similar to the outcome of the Kinsey rule, and in her opinion the problem discussed at the beginning of my opinion arises once again.

In my opinion, the problem described above should not lead us to reject the proposed model, especially since it is possible to limit the scope of this difficulty. This is because, first, as I have repeatedly said, we rely on the discretion of professional judges that try criminal cases, and they can be presumed to know how to distinguish between a remote or negligible use of the testimony and one that is capable of affecting the outcome of the trial. Second, even with regard to the issue of the burden of proof, I think that the witness who argues that there has been a prohibited use should be required to bear a slightly heavier burden, in the sense that he will be required to show not only that he gave testimony about the incident before his trial ended, but that there is a prima facie concern — which is more than merely hypothetical — that use was made of this testimony in a manner that may affect the outcome of the trial. When the witness is able to do this, the burden will pass to the prosecuting authorities, who naturally have better access to the evidence and can therefore prevent a violation of the rule of immunity. They will be required to satisfy the court trying the case that there is no basis for the prima facie concern that was raised, namely that the other evidence that they have, which is external to and separate from the testimony, was insufficient for reaching a conviction.

When weighing all the interests that are involved, and when one considers that in such complex circumstances any path that one follows will be the result of balancing and compromise, I think that the proposed solution is a proper one. Unlike the position that arises from applying the Kinsey rule, this solution gives the prosecution authorities a greater degree of influence, which is appropriate to their position, when determining the policy of indicting persons who are suspected of carrying out criminal acts jointly. This also respects the rights of the accomplices who are indicted, whether in their capacity as defendants or when testifying against one another.

Summary

33. At the beginning of my remarks I discussed the rationale that underlies the Kinsey rule. I went on to discuss the difficulties inherent in that rule — difficulties that not only grew with the passage of time, but now undoubtedly inflict an injustice on defendants who are under arrest, and result in an intolerable disruption to the administration of justice. I determined that the Kinsey rule was intended to propose a desirable practice and therefore it did not give a defendant a substantive right. I went on to determine that the cancellation of the Kinsey rule does not deprive the defendant of the right to a fair trial. In doing so, I pointed to changes that had occurred in the law (s. 10A of the Evidence Ordinance), which together with additional provisions of statute (ss. 47 and 54A of the Evidence Ordinance and s. 155 of the Criminal Procedure Law) have recognized the possibility of calling a witness to testify against his accomplice in the criminal act, by using a control tool of ‘support’ or ‘corroboration,’ which were intended to assist the court when deciding questions of the credibility of witnesses. Finally, I discussed the witness-accomplice’s privilege against self-incrimination, and my conclusion was that the broad interpretation of s. 47(b) of the Evidence Ordinance should be adopted.

34. What arises from all of the aforesaid is that there is no longer any justification for the existence of the Kinsey rule, first because the circumstances that prevailed when it was introduced have changed unrecognizably, and second because the court today has tools that, in addition to the impression that it obtains directly from the witnesses who appear before it, can enable it to arrive at the truth.

I therefore propose that we determine that the existing law that originated in the judgment of this court in Kinsey v. State of Israel [1], according to which an accomplice to an offence who is standing trial in a separate indictment may not be called to testify until his trial has ended, is no longer valid and therefore it should no longer be followed. Notwithstanding, I would emphasize that the court should exercise great caution when considering the credibility of the testimony of such a witness, and where necessary it should also insist that there is additional evidence of significant weight.

Postscript

35. I have read and reread the differing opinions of my colleagues, but I see no reason to change my position. The Kinsey rule does indeed reflect a need to contend with a complex situation, and striking a delicate balance between competing rights and interests. Unfortunately it would appear that it is impossible to find a perfect solution that is capable of solving all the problems that arise. Notwithstanding, I do not think that leaving the trial court with discretion is a proper way of contending with these problems.

First, I find it difficult to see a significant difference between the majority opinion and what is stated in the opinion of my colleague Justice A. Procaccia. My colleague proposes that ‘there are clearly grounds for restricting the continued application of the rule’ (para. 3 of her opinion), and it should be applied only as ‘the exception to the rule’ and ‘sparingly in special cases’ (para. 18). This approach, which advocates that ‘the rule will therefore become the exception, and the exception will become the rule’ (ibid.) is not materially different from the majority opinion that holds that the Kinsey rule should be used ‘very narrowly, in exceptional cases only and for special reasons’ (para. 4 of the opinion of President D. Beinisch), and in ‘very exceptional and extreme’ cases (para. 3). Even though it would appear that each of the opinions relates to a different degree of refraining from applying the Kinsey rule — the majority is of the opinion that it should be applied less often than my colleague Justice Procaccia proposes — I doubt whether in the practical world a distinction of this kind has any significance.

As I have shown, even today the Kinsey rule is only used as a rule of practice, but although there was always a possibility of departing from it, the trial courts rarely made use of that possibility. Whatever the reasons for this, I fear that adopting the majority position will not lead to a real change in the manner in which the rule is currently applied.

Let us place ourselves in the position of a trial judge who is asked to hear the testimony of a witness whose trial has not yet ended. We have already emphasized that it is suspected from the outset that this witness will give self-serving testimony, and therefore the judge is likely to say to himself, with a considerable degree of logic: why should I address the question of the credibility of the witness and his testimony, when it is better that I wait until judgment has been given in the witness’s trial, also for the reason that I will not end up making findings of fact that conflict with those that will be determined by the other court? This gives rise to the concern that the rule being made today by the Supreme Court will be undermined and the Kinsey rule will once again become the widespread practice. It will be hard to prevent this happening in view of the clear difficulty in carrying out judicial review of the decisions of trial courts in cases such as this, since they are interim decisions concerned with procedure in criminal proceedings (see in this regard what is stated in para. 5 of my opinion).

36. Second, I doubt whether the trial court will be able to assess correctly the content of the testimony and the degree of injustice that it is likely to cause, before it is heard. This is precisely the inescapable outcome of the rule that my colleagues wish to introduce, as can be clearly seen from the opinion of my colleague Justice M. Naor (in para. 5). At this stage of the proceedings, the court trying the case is likely to find itself, to a large extent, stumbling in the dark with regard to the as yet unheard testimony. Is it conceivable that the ‘indications of the truth’ (s. 53 of the Evidence Ordinance) that the court is required to seek will reveal themselves sufficiently before it has heard even one word from the witness? In such a situation, every little concern, even if only speculative, is likely to lead the court to prefer taking the safe path and applying the Kinsey rule, rather than choosing the dangerous path of hearing the testimony during which it may discover that it is dealing with self-serving testimony. We should remember that even the witness’s statement that was made to the investigation authorities before the trial began is not before the judge at this preliminary stage, since, according to s. 10A of the Evidence Ordinance — and these are first principles in the rules of evidence — the statement may be brought before the court only when difficulties are found in the testimony that has been heard.

37. My remarks above may prima facie imply an excessive restriction upon the discretion which is in principle the prerogative of the judges of the trial court in matters of procedure. My colleague Justice Naor touches upon this in the second paragraph of her opinion. But this is not the case. De facto, the prevailing practice, both before and since the Kinsey rule was created, is that the trial court in any case does not have discretion in determining the order of hearing the witnesses. This remains the prerogative of the prosecution authorities, and any departure from this requires the consent of the parties. What I said above is consistent with this approach, which leaves the prosecution authorities with the responsibility and the discretion for the whole task of bringing suspects to trial.

38. Finally, my colleague the president (in the fourth paragraph of her opinion) holds that it is not necessary to decide, in the case before us, the question of the other possible solutions for protecting the accomplice who testifies before his trial has ended, including the question of the scope of the immunity offered to him. My colleague, Justice Naor, agrees with this position and adds to it an unwillingness even to determine the extent of the additional evidence that is required, whose purpose is to protect the interests of the defendant. My opinion is that we cannot leave these questions until they arise. The issue before us is complex, both because of its nature and also because it is not likely to come before the court again. In my opinion it is therefore proper that we should propose a comprehensive solution now, and this is what I sought to do in my opinion when I presented a model that strikes a balance between the need to continue to protect the rights of the defendant and the need to ensure that, when a witness is compelled to testify, this does not lead to a violation of his right not to incriminate himself. A failure to decide the question of the protection for the witness is tantamount to removing one of the foundations on which my proposal to cancel the Kinsey rule is based, and I cannot agree to this.

 

 

Justice A. Procaccia

Conflicting considerations

1.             The renewed deliberation upon the question of the application of the Kinsey rule requires a complex balance between conflicting values: the value of holding a just trial that seeks to convict the guilty and acquit the innocent against the value of the efficiency and fairness of the criminal trial, which endeavours to protect the basic rights of the defendant and to ensure the deterrent effect of the norms of criminal law; this includes the value of protecting the right of a defendant who is under arrest so that his personal liberty is not violated disproportionately while he enjoys the presumption of innocence by a prolongation of the period of arrest as a result of a delay in the trial. This deliberation sets the right of the defendant to a fair trial, in which he will not be wrongly convicted on the basis of the false testimony of a biased witness-accomplice who is trying to obtain an indirect benefit in his own trial that has not ended, against the right of that same defendant to an effective criminal trial that will end within a reasonable time since he is being held under arrest until verdict is given. It raises an ethical question concerning the right of a witness-accomplice, who is called to testify in the separate trial of another defendant before his own trial has ended, not to incriminate himself when giving his testimony. It raises questions of the effect that this right has on the other defendant’s trial and the witness’s own trial. It highlights the conflict between the fear of a miscarriage of justice and the fear of a delay of justice in criminal trials. This ethical conflict exists when the Kinsey rule is applied and it exists to the same degree when it is cancelled. The solution to this dilemma lies in weighing the conflicting values and striking a balance that will harmonize them by making the most of their relative advantages while minimizing, in so far as possible, their shortcomings.

The solution to the complex conflict of values that arises with regard to the Kinsey rule was not simple or straightforward even then the case law rule was formulated at the beginning of the 1970s; the difficulty has become greater as a result of changes that have occurred in recent years in the nature of criminal trials and the tools that are available to the judiciary for contending with them. The continually increasing burden on the courts, together with the ever greater scope and sophistication of crime resulting from the significant increase in organized crime and the larger number of defendants who are involved in serious and complex criminal offences all place special demands upon the resources of the legal system that have a direct effect on the prolongation of trials. This has a direct effect on trials where defendants are held under arrest until the end of proceedings, and it extends the periods of time during which they are held under arrest, sometimes to a very considerable degree; this reality violates the rights of defendants to their personal liberty while they enjoy the presumption of innocence; it undermines the efficacy of the criminal trial and weakens its deterrent effect. This changing reality has given rise to the need to reassess what role the Kinsey rule should continue to have in criminal trials in Israel.

2.             My colleague Justice Levy concludes his comprehensive opinion with the following:

‘I therefore propose that we determine that the existing law that originated in the judgment of this court in Kinsey v. State of Israel [1], according to which an accomplice to an offence who is standing trial in a separate indictment may not be called to testify until his trial has ended, is no longer valid and therefore it should no longer be followed. Notwithstanding, I would emphasize that the court should exercise great caution when considering the credibility of the testimony of such a witness, and where necessary it should also insist that there is additional evidence of significant weight.’

My colleague discusses the nature and purpose of the Kinsey rule and the complex considerations that conflict with its application. His conclusion is that thirty years after it was first introduced, the nature of criminal trials and the conditions and circumstances for applying it have changed to such an extent that they justify cancelling the rule in its entirety so that nothing remains of it. His position is based on the premise that, in the overall balance, allowing a witness-accomplice to testify in the trial of a defendant before his own trial has ended does not present any real threat to justice, the fairness of the trial and the protection of defendants’ rights. At the same time, cancelling the rule will put an end to lengthy delays in the trial of a defendant who is usually held under arrest until the end of proceedings; he will no longer be compelled to wait until a witness’s trial has ended so that the witness can testify in the defendant’s trial. The court has the tools of common sense and professional expertise for assessing the credibility and weight of the testimony of a witness-accomplice who testifies in the trial of a defendant before his own trial has ended. This is supplemented by the supporting evidence that is required to substantiate this testimony. That the evidence is assessed by a professional trial court and that it needs to be substantiated by supporting evidence are sufficient to safeguard against self-serving and unreliable testimony of a witness-accomplice who is seeking to obtain an indirect benefit from testimony that he gives before his own trial has ended. As for the possibility that the testimony of the witness-accomplice, when it is given in the separate trial of the defendant before the witness’s own trial has ended, may violate the witness’s right not to incriminate himself, my colleague is of the opinion that the solution to this lies in exercising the power of the court to order the witness to answer questions even when they may incriminate him, within the framework of s. 47(b) of the Evidence Ordinance [New Version], 5731-1971; according to this provision, this incriminating evidence may not be used against the witness in a separate trial of his own, and therefore it should not be regarded as a reason why the Kinsey rule should not be cancelled. When weighing the benefit derived by the defendant from the Kinsey rule against the considerable damage that is caused by its implementation to the effectiveness and fairness of the criminal trial, and especially the inevitable violation of the personal liberty of a defendant who is being held under arrest, the latter consideration clearly outweighs the former and therefore justifies the cancellation of the rule in its entirety.

3.             The Kinsey rule was formulated in another era, when the ethical conflict that led to its adoption was of a different character and more pressing. Criminal trials were fewer, less sophisticated and less complex. They required less judicial resources and were consequently of shorter duration. I agree with my colleague’s opinion that the passage of time, the significant changes that have occurred in the scale of criminal proceedings and in the nature and complexity of the matters brought before the court and the effect of these on the length of criminal trials require a reassessment of all the factors that are relevant to the Kinsey rule, in order to examine whether the rationale that underlies it is still valid, or whether it should be applied differently. But a reassessment of all the conflicting factors and interests that bear upon the matter, against the background of the changes that have taken place in criminal proceedings in Israel in recent decades, leads me to the conclusion that, although there are clearly grounds for restricting the continued application of the rule, there is no justification for cancelling it in its entirety. Confronting the conflicting considerations and values against the background of current needs does, admittedly, justify the determination of a different balancing point today from the one that was determined when the rule was formulated three decades ago, but there is still a margin in which it should be left to judicial discretion to apply it, in order to achieve the main purpose of the trial — arriving at the truth — while protecting the right of the defendant to a fair trial and the character and effectiveness of criminal proceedings, as well as safeguarding the general public interest that seeks to give the court effective tools to realize these purposes.

Let me explain my reasons.

The rationale underlying the Kinsey rule

4.             Two separate indictments are filed against two accomplices in crime, after the prosecution decides to hold their trials separately. The prosecution wishes to summon one defendant (hereafter — ‘the witness-accomplice’) as a witness in the trial of the other defendant (hereafter — ‘the defendant’). The Kinsey rule provides that the testimony of the witness-accomplice in the defendant’s trial should be take place after the witness’s own trial has ended. The main reason for the rule derives essentially from the goal of maximizing the potential of the witness-accomplice’s evidence from the viewpoint of its credibility and weight, in order to ensure ‘the maximum degree of truthfulness of a person who is about to give testimony’ (per Justice Shamgar in Kinsey v. State of Israel [1], at p. 489; State of Israel v. Sha’ashua [30]). The value of arriving at the truth in a judicial proceeding depends, inter alia, on exhausting the probative value of testimonies, and this includes hearing the testimonies at a time when the circumstances give rise to the greatest likelihood of the testimonies being presented in a reliable and truthful manner. Where the hearing of testimony at a certain time gives rise to an inherent concern of bias because of improper considerations that motivate the witness when giving his testimony, then, in so far as possible, the judicial proceeding will seek to schedule the hearing of the witness’s testimony at a stage when the concern of bias is nullified, or at least reduced. In our case, the testimony of the witness-accomplice in the defendant’s trial, before his own trial has ended, may be influenced in various ways by his desire to improve his own position in his trial that has not yet ended, since his criminal liability has not yet been determined and he has not yet been sentenced. The bias may be reflected in the witness’s desire to please the prosecution in order to obtain a benefit, or in an attempt to exaggerate the role of the defendant in the offence and to distance himself entirely from it or minimize his own role in it, in the hope that this will result in his being treated more leniently in his own trial. The bias may also sometimes be reflected in an attempt to portray the defendant and himself as entirely innocent, while placing the blame on others. Postponing the testimony of the witness-accomplice in the defendant’s trial until after his own trial has ended may make the witness’s testimony more credible, since he can no longer expect his testimony in the defendant’s trial to be of indirect benefit to him in his own trial. The fear of a perversion of the truth and the desire to arrive at the truth are a major factor in the Kinsey rule (H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 163). The value of arriving at the truth that the Kinsey rule is intended to serve seeks to prevent an erroneous conviction of an innocent defendant or an erroneous acquittal of someone who is guilty of a criminal act as a result of relying upon the self-serving testimony of a witness-accomplice. In this respect, the Kinsey rule was intended to further the general purpose of arriving at the truth in criminal trials, while safeguarding the rights of the defendant to a fair trial, which will protect him from the risk inherent in allowing incriminating evidence that is given for the self-seeking motives of the witness-accomplice.

An additional aspect of the Kinsey rule is the restrictions that are imposed on the testimony of a witness-accomplice before his own trial has ended, from the viewpoint of his right not to incriminate himself (s. 47(a) of the Evidence Ordinance). A witness-accomplice who testifies in the separate trial of a defendant before his own trial has ended has immunity against self-incrimination. Therefore he may refuse to answer questions in cross-examination that may incriminate him. This restriction naturally increases the risk inherent in allowing the self-serving testimony of the witness-accomplice, since it will be difficult to test it in cross-examination because of the aforesaid immunity. A possible solution to this problem lies in the provisions of s. 47(b) of the Evidence Ordinance, which gives the court discretion to order a witness to answer questions in cross-examination even on a matter that may incriminate him, but in such a case the evidence may not be used in the witness’s trial unless he consents thereto. This provision raises a complex issue concerning the scope of the immunity given to the witness-accomplice in his own trial where he is required to answer incriminating questions in the defendant’s trial before his own trial has ended. There are different schools of thought and approaches regarding the nature of the immunity given to a witness and its ramifications on the outcome of his trial. The conclusion that follows from the aforesaid is not only that the testimony of an accomplice before his own trial ends may be tainted by an inherent defect of improper considerations but also that the opportunity of testing it in cross-examination is limited, and the method that may be used to remove the restriction on cross-examination as aforesaid has a direct effect on the witness’s right not to incriminate himself in his own trial, to a greater or lesser degree.

The Kinsey rule is mainly a rule that concerns the timing for giving the testimony. In the circumstances described above, the timing may affect the reliability of the testimony, its weight and its probative value. The timing may affect the outcome of the trial and the purpose of arriving at the truth. The testimony of a witness-accomplice before his own trial has ended may result in erroneous convictions, and sometimes erroneous acquittals. Against this background, the rule provides that the timing of the accomplice’s testimony in the defendant’s trial should be after the accomplice’s own trial has ended. In such circumstances, the fear of an extrinsic motive affecting the testimony is allayed, and the likelihood of him giving true testimony is greater. Moreover, at this stage the restriction upon the cross-examination of the witness is removed, since the immunity from self-incrimination is not longer relevant, and at this stage all the probative tools may be employed in order to examine the credibility of the testimony.

The Kinsey rule — a rule of procedure as distinct from a rule of evidence

5.             The Kinsey rule is in essence a rule of procedure, as opposed to a rule of evidence. It is not intended to render the witness-accomplice incompetent to testify in the trial of his colleague before his own trial has ended, nor does it render his testimony inadmissible if he did testify. It is consistent with the general principle in s. 2 of the Evidence Ordinance that ‘everyone is competent to testify in any trial’ (State of Israel v. Sha’ashua [30], at p. 89). It is a procedural rule that seeks to exhaust the full probative potential of the witness-accomplice’s testimony by determining that the time he should testify is after his trial has ended, thereby allaying the fear of an improper motive that may accompany this testimony as long as his trial has not ended (J.D. Heydon, ‘Obtaining Evidence Versus Protecting the Accused: Two Conflicts,’ [1971] Crim. L. R. 13, at p. 18; Kinsey v. State of Israel [1], at pp. 480-481; Suissa v. State of Israel [32], at p. 533). Since it is a procedural rule that is intended, inter alia, to protect the procedural rights of a defendant, he may waive his rights and agree to the witness-accomplice testifying before the end of his trial. This case therefore focuses on a rule concerning the timing of the testimony of a witness-accomplice whose is being tried separately, and the premise is that his testimony at every stage of the trial is valid and admissible. Therefore, as a practice direction, the Kinsey rule sought to outline a desirable procedural method of determining the time when the witness-accomplice’s testimony will be heard; since it was formulated, and as long as it is law, the rule does not exclude judicial discretion to depart from it in such circumstances where its application is unsuited to the purposes that it seeks to achieve.

The Kinsey rule is not a strict rule either in theory or in the manner in which it is applied de facto; it is a procedural guideline that leaves room for judicial discretion to determine when it should not be followed (Kadosh v. State of Israel [29]; State of Israel v. Moses [28]). In practice, the courts have departed from the Kinsey rule more than once where they thought that applying it in the specific case did not achieve its purpose (CrimC (TA) 3160/04 State of Israel v. Levy [82]; CrimC (Jer) 3088/02 State of Israel v. Malca [83]; CrimC (TA) 40056/04 State of Israel v. Abramov [84]; see also details of additional cases in the concluding arguments of the Public Defender’s Office, at p. 12).

It should also be stated that over the years case law has restricted the scope of the Kinsey rule, as, for example, by determining that the rule does not apply to a witness-accomplice who has not yet been indicted (Moyal v. State of Israel [34]), nor to a state’s witness (Abeid v. State of Israel [33]) nor to a witness-accomplice who is called to testify for the defence (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10]). We are therefore dealing with a procedural rule that can be applied by the court in a flexible manner in order to implement it where it is required to achieve its purpose. Nonetheless, it should be emphasized that in its everyday application the courts have implemented the Kinsey rule on a regular basis. Departures from the rule occurred sparingly and only in a handful of cases.

The Kinsey rule is a procedural rule that has no constitutional significance, and therefore any change to it does not require compliance with the limitations clause in the Basic Law: Human Dignity and Liberty, as argued by some of the respondents. When a procedural rule is formulated in case law it may also be changed in judicial proceedings, when this is required by the needs of both individuals and the general public that change with the times.

A reassessment of the Kinsey rule is not directly related to the general trend that is occurring at this time in the field of the rules of evidence, which seeks to replace rules of the admissibility of evidence with rules concerning its weight (State of Israel v. Haj Yihya [50], at p. 671). This is because this rule does not address the admissibility of the accomplice’s testimony but only the proper timing for giving it, as a matter of procedure.

Although we are dealing with a rule of judicial practice, the Kinsey rule has considerable influence on the process of discovering the truth in criminal trials. It has an effect on whether the defendant is convicted or acquitted. It has an effect on the witness-accomplice’s own case, not only with regard to the testimony given by him, but also with regard to the effect of his testimony on his own case, and on the scope of the immunity that he is supposed to enjoy in his own case. This rule has diverse repercussions — on the criminal trial from a general public viewpoint, on the defendant and on the witness-accomplice. We shall briefly discuss all of the conflicting considerations that arise with regard to the Kinsey rule, and thereafter we shall draw from this discussion the required operative conclusions, in so far as they concern the need to change the rule and are suited to the needs of the changing reality.

The considerations supporting the Kinsey rule

6.             The Kinsey rule concerning the timing of the testimony of a witness-accomplice in the separate trial of the defendant, his accomplice, is a creation of case law. But the rationale underlying it has a basis in the statutory arrangement in s. 155 of the Criminal Procedure Law [Consolidated Version], 5742-1982, concerning accomplices in crime that are charged jointly in one indictment. According to that provision, where one defendant pleads guilty to facts that are sufficient to convict him, and counsel for the prosecution or the defence wish to summon him to testify in the trial of a defendant who has not pleaded guilty, then the defendant who has pleaded guilty should not testify until he has been sentenced. The following is the language of the section:

‘Sentencing of a defendant who pleads guilty                155. (a) If several defendants are charged in one indictment and some of them plead guilty to facts that are sufficient for them to be convicted and others do not plead guilty, the court shall not sentence the defendants who have pleaded guilty before the trial of the defendants who have not pleaded guilty has been held; but

                (1) If a defendant does plead guilty in this way, and the prosecutor or defence counsel give notice that he will be called to testify in the trial of the other defendants, he shall not testify until he has been sentenced;

                (2) In special circumstances that the court shall record, it may sentence the defendant who has pleaded guilty before the trial of the others has ended.’

The purpose of this statutory rule is to ensure that a defendant who has pleaded guilty shall not testify in the trial for or against his accomplice before he is sentenced, because of the concern that his testimony will be biased because of the improper consideration of obtaining a benefit for himself in the sentence that has not yet been handed down. The probative interest in exhausting the reliability potential of the accomplice’s testimony led the legislature to depart from the general guiding principle that all the accomplices in the offence who are tried together should be sentenced at the same time, and it saw a justification for creating an exception that the sentence of a witness-accomplice who has pleaded guilty should be handed down before he gives testimony for or against his accomplices in the same indictment. The rationale underlying this provision was that the law should not allow a situation in which an accomplice who has pleaded guilty testifies when he has an expectation of receiving a benefit from his testimony, ‘where because of an expectation of that kind there are grounds to fear that the testimony will be false’ (per Justice H.H. Cohn in Kadouri v. State of Israel [12]).

It should be noted in parenthesis that s. 155 is limited to a case where the defendant who is summoned to testify has already pleaded guilty and his liability has been proved, in which case he should be sentenced before he gives his testimony with regard to his accomplice. But where he has not pleaded guilty, the rule is that accomplices in one indictment are not competent to testify as prosecution witnesses against one another in the same trial; but an accomplice may testify as a defence witness on his own behalf or on behalf of another of his co-defendants. In such circumstances, his testimony may also be used to incriminate another co-defendant. Thus, where an accomplice testifies as a defence witness in a trial in which the partners in crime are tried together, whether in his own defence or in defence of another defendant, his testimony may be used as evidence against another co-defendant. In such circumstances, it is also possible to submit in evidence his statement to the police, and to make use of it within the framework of s. 10A of the Evidence Ordinance, inter alia, for the purpose of incriminating the accomplice in crime who is his co-defendant in the same trial (CrimA 29/86 Barrett v. State of Israel [55]; CrimA 228/87 Karmi v. State of Israel [56]; Abu-Hatzeira v. State of Israel [14], at p. 152; CrimApp 1572/05 Zuartz v. State of Israel [57]).

There is therefore a difference between an accomplice who has pleaded guilty and may be sentenced before he testifies with regard to his co-defendant (whether as a prosecution witness or as a defence witness), in which case the testimony can be ‘cleansed’ of its defects by passing sentence before hearing the testimony, and an accomplice who does not plead guilty and is summoned as a defence witness, and in the process of testing the reliability of his testimony, his statement to the police is presented and he is cross-examined on his version of events. Here it is not possible to allay the concern that there is an improper motive in the accomplice’s testimony simply by postponing the hearing of the testimony to a later date. This is because the witness’s criminal liability has not yet been determined and splitting the trial of co-defendants by giving separate verdicts with regard to their criminal liability is regarded as an undesirable step that undermines the purpose of discovering the truth. Where it is possible from a procedural point of view to repair the ‘defect’ inherent in the accomplice’s testimony because of the concern of an improper motive and to sentence him before he gives his testimony, the law requires this with regard to defendants who are tried together.

This rationale, mutatis mutandis, lies at the heart of the Kinsey rule, which concerns accomplices who are tried separately. The essence of the rule is that a witness-accomplice who is summoned to testify as a prosecution witness in the separate trial of his partner ought to testify in circumstances that allow the probative potential of his testimony to be maximized. These circumstances exist when the witness’s trial has ended and there is no longer a concern that he is impelled by motives of self-interest in giving his testimony. In the absence of a statutory arrangement for this situation where partners in crime are tried separately, case law has filled the lacuna in the form of the Kinsey rule, which constitutes a direct offshoot of the rationale underlying s. 155 of the Criminal Procedure Law, which concerns partners in crime who are tried together.

The importance of the Kinsey rule should be examined from three different angles: first, the public interest in having criminal trials in which the truth is discovered, while giving the court the best tools for arriving at the truth; second, safeguarding the right of the defendant to a fair criminal trial that will protect him from an erroneous conviction; third, the effect of the immunity from self-incrimination that accompanies the witness-accomplice’s testimony both from the viewpoint of the defendant and from the viewpoint of the witness himself. Let us examine each of these angles.

The public interest in the Kinsey rule: discovering the truth and arriving at a correct result in criminal trials

7.             The criminal trial is designed to enforce and apply the norms of criminal law in order to ensure proper standards in society and to protect the safety of the inhabitants of the state. The ultimate purpose is to achieve a determination of guilt or innocence — to convict the guilty and to acquit the innocent. In order to arrive at a correct result in a trial, the rules of procedure seek to discover the truth. Without truth there can be no justice, and without justice the main purpose of the criminal trial will be frustrated.

‘The method whereby a trial achieves justice is by seeking after the truth. The trial is founded on the truth. Judicial proceedings are based on discovering the truth. Without truth there is no justice. Without truth there is no law. The truth — which judicial proceedings seek to discover — is reality as it truly is’ (A. Barak, ‘On Law, Dispensing Justice and Truth,’ 27 Hebrew Univ. L. Rev. (Mishpatim) 11 (1996).

The purpose of the criminal law to discover the truth in order to arrive at a correct result is not its only value. There is another conflicting value, which is the right of the defendant to a fair trial that will take into account his rights as a human being and as a defendant, and a balance is always required between society’s need to realize the purpose of the criminal law in ensuring the public interest and concern for the needs of the defendant so that no injustice is done to him in the course of seeking to discover the truth. The nature and main goal of the criminal trial was discussed by the court in CrimA 951/80 Kanir v. State of Israel [58], at p. 516, where it said (per Justice Barak):

‘The criminal trial is a legal framework that seeks to realize the criminal law, namely to determine innocence or guilt. To this end, the criminal trial should reveal the truth, and this is its main purpose. Naturally, requiring compliance with rules and revealing the truth are not two conflicting tasks. On the contrary, the rules are intended to determine a standard for conducting a trial, which from experience will make it possible to discover the truth, and in this these two goals are compatible. But there are cases where a formal insistence upon compliance with the rules of procedure in a certain matter will cause a miscarriage of justice, whether by way of an innocent person being convicted or a guilty one being acquitted. In these circumstances, we should seek to have the rules themselves give the court power and discretion to do justice… The experience that has formulated the rules of procedure has determined a delicate balance between the needs of the defendant on the one hand and the needs of society on the other. The needs of the defendant are his real needs for a fair trial, whether at the investigation stage or at the trial stage. The needs of society are its real needs to convict the guilty and acquit the innocent.’

Discovering the truth in a criminal trial is intended to bring about the conviction of the guilty and the acquittal of the innocent. It is intended to prevent erroneous convictions and at the same time also to prevent erroneous acquittals. It embodies the public interest in proper law enforcement and proper norms of conduct, which are essential for the running of a civilized society; it is intended to protect the rights of the defendant not to be erroneously convicted and to prevent an improper violation of his rights as a human being. At the same time, its purpose is to bring the guilty to justice and to protect society from the risks inherent in allowing a felon to go free. Ascertaining the truth serves the main purpose of the criminal trial: establishing the guilt or innocence of the defendant (CrimA 639/79 Aflalo v. State of Israel [59], at p. 575; MApp 838/84 Livni v. State of Israel [60], at pp. 733-734; D. Menashe, ‘The Ideal of Discovering the Truth and the Principle of Safeguarding against Erroneous Convictions — An Anatomy of a Complex Relationship,’ 1 Kiryat HaMishpat (2001) 307, at pp. 307-308).

The main goal of the criminal trial — establishing innocence or guilt — and the value of discovering the truth that is intended to realize this goal have an effect first and foremost on the right of a defendant to a fair trial that will result in a just outcome and prevent his being convicted erroneously. But this goal does not end here. It is intended to serve a larger public interest of obtaining a correct result in criminal trials, which includes the prevention of erroneous convictions and erroneous acquittals. Protecting the rights of the defendant in the criminal trial is not necessarily the same as or as comprehensive as the goal of obtaining a correct result in the trial. An outcome of a trial that is not a correct outcome — whether an erroneous acquittal or an erroneous conviction — undermines justice and the public interest in discovering the truth in criminal trials, even where the right of a defendant from the viewpoint of the fairness of the criminal trial is not violated. It is possible that the trial of a defendant will be conducted fairly and that all of his rights will be upheld, and at the same time it may arrive at a mistaken outcome of an erroneous conviction or an erroneous acquittal. The rules of criminal law seek to harmonize between the needs of the defendant to be given a fair trial and the public interest that the criminal trial should reach a correct outcome, even though these goals are not exactly the same and sometimes there is a tension between them that requires balancing and reconciling:

‘An erroneous acquittal, and certainly a false conviction, harm both the doing of justice and the appearance that justice is being done, and it may undermine public confidence in the ability of the judicial authority to do justice to the individual and to society’ (Yissacharov v. Chief Military Prosecutor [37], at para. 43 of the opinion of Justice Beinisch).

The value of discovering the truth in the criminal trial affects the rights of the defendant on trial, but it also goes beyond them and seeks to promote the general public interest of enforcing proper norms of conduct in society, a condition for which is that trials should reach a correct outcome. This value is indicative of the place of the law in the structure of government, and it realizes the values of the rule of law and law enforcement in a society that is built on a democratic system of government.

Within the scope of the goal of discovering the truth and arriving at a correct outcome in criminal trials, the rules of evidence have been built on two main foundations: the rules of admissibility, which determine ab initio what evidence is admissible in a trial and what is not, because of a concern that relying upon it will lead to an erroneous result, and the rules of assessing the reliability and weight of admissible evidence. The evolving trend of restricting the rules of inadmissible evidence and developing the sphere of assessing its probative reliability and weight makes it necessary to give the trial court tools to take full advantage of the probative potential of the admissible evidence that is brought before it. The general effect of the Kinsey rule on the judicial proceeding is that it improves the tools given to the court to reach the truth by taking full advantage of the reliability potential of the witness-accomplice’s testimony. It is difficult to argue against the premise that the timing of the witness-accomplice’s testimony in the defendant’s trial, at a stage after the witness’s own trial has ended, increases the likelihood that the full reliability potential of his testimony will be realized, which is not the case when his testimony is heard before his own trial has ended.

Those who support the cancellation of the Kinsey rule place their reliance on the ‘support’ that is required for the testimony of the witness-accomplice as a protective measure against relying on testimony that is biased and unreliable because of the interests of the witness whose trial has not yet ended. There is no doubt that the support that is required for the testimony of the witness-accomplice constitutes a protective measure against reliance upon false testimony as such. Notwithstanding, it should not be forgotten that we are speaking of a requirement of support for evidence that exists, which is intended to safeguard against a person being convicted when there is insufficient evidence to convict him. The requirement of support does not satisfy the need to realize the full potential of the evidence in order to arrive at the truth. It is not a substitute for evidence that does not exist. The supporting evidence that is required guards against the fear that reliance will be placed on unreliable and incorrect testimony. It is not a substitute for achieving the goal of discovering the truth in a criminal trial, which is realized by hearing testimony at a time when it is most likely to be reliable. The supporting evidence that is required will therefore safeguard against placing reliance on false testimony, and determining the outcome of the trial accordingly, but it will not satisfy the goal of discovering the truth that truthful testimony may provide. Relying solely on the requirement of support as a safeguard measure against erroneous convictions protects the rights of the defendant to a fair trial. It does not necessarily provide a complete solution for the need to discover the truth, which seeks to maximize the reliability potential of the witness’s testimony that is achieved, inter alia, by determining the timing for hearing his testimony.

It has been argued on more than one occasion that the Kinsey rule, which determines the timing of hearing the witness-accomplice in an attempt to remove the defects of the testimony, is inconsistent with the prevailing legal system in which other ‘defective’ testimonies are allowed at any stage of the trial and are assessed in accordance with their value and weight, to the best of the judicial discretion of the judge trying the case. This is the case, for example, the defence testimony of a witness-accomplice who testifies in a joint trial with his partners, which may incriminate them; the same is true of the testimony of an accomplice whose trial is taking place separately, who is called as a defence witness in the trial of the defendant, to which the Kinsey rule has not been applied (State of Israel v. Sha’ashua [30]); the testimony of an accomplice who has been given the status of a state’s witness and who is indebted to the prosecution can be heard at any stage of the trial. My colleague, Justice Levy (in para. 13 of his opinion) indicates a list of testimonies which suffer from an inherent defect, but despite this the judicial proceeding ‘suffers’ them to be adduced in the usual procedural order and places its reliance on the professional court that will know how to evaluate and weigh their defects correctly. Thus, for example, children, persons suffering from mental illnesses, retarded persons and persons who have been convicted in the past of perjury are allowed to testify, and the inherent limitations of these witnesses does not prevent their testimony from being heard (cf. Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at pp. 766-767). The Kinsey rule can answer these arguments in the following terms: there are defects that are inherent in evidence of various kinds and that do not affect their admissibility. In most of the cases, these inherent defects cannot be repaired or minimized by means of one proceeding or another, and therefore these kinds of evidence are brought in the normal way and in the usual procedural order, and they are assessed while taking their defects into account. This is the case with the defence testimony of an accomplice-witness in a joint trial with his partners; it is the case with the ‘state’s witness’; and it is also the case with other ‘defective’ testimonies whose defects cannot be repaired by the timing of hearing them. But where it is possible by procedural means to remove or reduce the defect, the position is different.

The ‘defect’ that accompanies the testimony of a witness-accomplice who testifies in the defendant’s trial before his own trial has ended derives from the timing of his testimony. The Kinsey rule came into being because it was thought that the procedural order of hearing the witnesses could contend with this defect, remove it or reduce it. It may be assumed that if there were an effective and fair procedural method of realizing the full probative potential of testimonies with other inherent defects, the rules of evidence would have provided a solution to this, even if we assume that ultimately the task of assessing the reliability and weight of the evidence belongs to the judge who is trying the case. But even if we discover other testimonies with inherent defects whose probative value can be improved by procedural means, and the law does not mandate the use of these, this in itself does not justify the cancellation of the Kinsey rule, as long as this rule has its own important rationale concerning the testimony of a witness-accomplice in the trial of a defendant before his own trial has ended.

The Kinsey rule, as a rule of procedure, does not absolutely guarantee that the testimony of the witness-accomplice who testifies in the defendant’s trial after his own trial has ended will be truthful. It is founded on a statistical analysis that is based on logic, common sense, experience and mainly an understanding of the thinking processes of witnesses who were themselves involved in the offences with regard to which they are required to testify. Taking full advantage of the probative potential of testimony that is heard in a trial is an important goal in a judicial proceeding, and especially in a criminal trial in murder cases. It is consistent with the purpose of discovering the truth in a trial, which lies at the heart of the general social values of proper and correct enforcement of the law and the norms of the criminal law, and it is the essence of the protection of the rights of the individual (the defendant).

Notwithstanding the central importance of the value of discovering the truth, it is not the only value on which the criminal trial is based. Other values and goals that are worthy of protection compete with it and sometimes conflict with it. Some of these values are intended to protect the individual — whether it is the defendant, the victim of the offence or a third party that is unrelated to the offence — whereas others are intended to protect general interests of society, such as the security of the state, public safety or another important interest of society. The competition between the value of discovering the truth in a trial and other important values gives rise to a need to find a proper balance, which is based on an assessment of the relative weight of the competing values. Consequently, the value of discovering the truth is not an absolute value, but a relative value that should be balanced properly against conflicting interests (Yissacharov v. Chief Military Prosecutor [37], at para. 44; D. Menashe, ‘Judicial Discretion in Fact Finding, Freedom of Proof and Professionalism of the Courts,’ 43 Hapraklit (1993) 83, at p. 117). This competition is a factor in deciding the fate of the Kinsey rule, which mainly focuses on finding the proper balancing point between the value of discovering the truth in a criminal trial and the right of the defendant to a fair criminal trial, which will be completed within a reasonable time.

The importance of the Kinsey rule from the defendant’s viewpoint

8.             In addition to the importance of the Kinsey rule for discovering the truth and arriving at a correct outcome in a trial, it also has a value in that it protects the right of the defendant to a fair criminal trial. In this regard, the rule is intended to provide a solution, by procedural means, to the fear of an injustice to the defendant that may arise as a result of a distortion of the truth by a biased witness-accomplice, who is trying to use his testimony to obtain an indirect benefit in his own trial that has not yet ended. This distortion is likely to derive from a possible tendency of the witness to deny or minimize his part in the offence, while increasing the role of the defendant as the party solely or mainly responsible for committing the offence. This tendency naturally increases where the trial of the witness-accomplice has not yet ended, and he hopes to derive some kind of benefit or a leniency in sentence as a result of giving such testimony.

The testimony of the witness-accomplice in a defendant’s trial before the witness’s trial has ended presents an additional difficulty from the defendant’s viewpoint. This derives from the witness’s right not to incriminate himself, which he has at this stage of the trial. This immunity significantly restricts the extent to which this witness may be subjected to cross-examination, which is intended to test the credibility of his evidence (s. 47(a) of the Evidence Ordinance). This restriction becomes even greater in view of the fear that the accomplice’s testimony may be self-serving, and conducting a full cross-examination is therefore important in order to test the credibility and weight of the testimony. Alternatively, if the witness is required, despite the immunity, to answer questions that may incriminate him, this testimony will be privileged in his trial (s. 47(b) of the Evidence Ordinance). One way or the other, the testimony of the accomplice in the defendant’s trial before his own trial ends causes difficulties both for the defendant and also for the witness-accomplice. From the viewpoint of the defendant, the testimony of the witness-accomplice before the end of his own trial also requires support, and because of the ‘fragility’ of that testimony because of its timing, which invites a possibility that it will be self-serving because of improper and self-interested considerations, real support of considerable weight will be required in order to counter the danger of the self-serving testimony. At the same time, from the viewpoint of the defendant, the repeal of the probative requirement of corroboration for the testimony of the accomplice that existed in the past and the possibility of being satisfied today merely with support increase the danger of an erroneous conviction. This danger, from the viewpoint of the defendant, is of particular importance when considering the factors relevant to the fate of the Kinsey rule.

It is important to point out in this context that the Public Defender’s Office, the Israel Bar Association and the defence counsel who appeared on behalf of the defendants in this case all adopted the same position that supports the continued application of the Kinsey rule, on the ground that it protects the rights of the defendant in criminal trials and reduces the danger of erroneous convictions as a result of the false testimony of accomplices who seek to obtain a benefit from their testimony before their trial ends. This position was adopted despite the heavy price that is currently paid by defendants who are held under arrest until the end of proceedings in serious criminal cases, since the Kinsey rule frequently results in their period of arrest being extended, sometimes for long periods, as a result of the need to wait until the end of the trial of the witness-accomplice, and despite the lengthy delays in trials as a result of the heavy burden of cases weighing on the court.

The importance of the Kinsey rule from the viewpoint of the witness-accomplice

9.             Calling the witness-accomplice to testify in the defendant’s trial before his own trial has ended raises a complex issue concerning the right of the witness not to incriminate himself.

Section 47 of the Evidence Ordinance provides:

‘Incriminating evidence      47. (a) A person is not liable to give evidence if it contains an admission of a fact that is an element of an offence of which he is charged or of which he may be charged.

                (b) If a person requests to refrain from giving evidence because it may incriminate him as stated in subsection (a) and the court refuses the request and the evidence is given, the evidence shall not be submitted against that person in a trial in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto.’

The significance of this provision is two-fold: the witness-accomplice has the right to refrain from giving testimony that can incriminate him (subsection (a)). If the court rejects his request not to deliver incriminating testimony and he is required to give it, that evidence may not be brought in the trial of the witness in which he is accused of an offence that is based on the fact that was revealed by the evidence, unless he consents thereto (subsection (b)).

The implementation of this provision may lead to one of the following: restricting the cross-examination of the witness-accomplice solely to matters that do not involve self-incrimination, or requiring the defendant to give full testimony that does incriminate him, subject to the privilege against use of that evidence in the witness’s trial for the same or a similar offence.

The first possibility protects the interest of the witness-accomplice, but harms the interest of the defendant. Restricting the cross-examination of the witness-accomplice solely to matters that do not incriminate him undermines the efficacy of the cross-examination as a main test of the witness’s credibility. This harm is aggravated by the inherent fear that the witness’s testimony against the defendant will be self-serving, when his trial has not yet ended. The restriction upon cross-examination as aforesaid increases the risk of harm to the defendant in the form of an erroneous conviction.

The second possibility gives the court a means of compelling the witness to answer incriminating questions in cross-examination, subject to his incriminating testimony being privileged in his own trial. This gives rise to a complex question of the scope of the immunity that is required in these circumstances: are we speaking only of a direct immunity with regard to the testimony that was given and with regard to the trial of the witness-accomplice on the same or a similar offence, or are we speaking also of an indirect immunity that extends to matters that may arise indirectly from that testimony and that tie the hands of the prosecution in investigations deriving from the incriminating testimony and in how they deal with the trial of the witness-accomplice (see, in this regard, the comprehensive research in Dr H. Sandberg, Rights of Defendants: the Right to a Separate Trial (2001), at p. 163 et seq.; U. Struzman, ‘The King is Naked or the Jury that Controls the Court in Israel,’ 13 Tel-Aviv University Law Review (Iyyunei Mishpat) (1988) 175, at pp. 207-211).

Prima facie, the immunity given to the witness-accomplice under s. 47(b) of the Evidence Ordinance is an immunity that is restricted to the incriminating evidence itself, for the purpose of his trial on the same or a similar offence only. The fear that the statements made in the incriminating testimony will be used indirectly in the witness-accomplice’s trial may deter him from giving any testimony at all. This may lead to the witness-accomplice remaining silent because of a fear of self-incrimination. In these circumstances, it is to be assumed that the incriminating statement made to the police will be filed in accordance with s. 10A of the Evidence Ordinance, but the defendant will not have the effective tool of cross-examination in order to test the reliability of the witness’s statement to the police. Reliance upon the statement of the witness-accomplice to the police presents a similar difficulty because of the fear that it is self-serving and tainted by the personal motives of the person who was interrogated, who hopes to obtain some consideration or benefit for making a statement before an indictment is filed against him (N. Zaltzman, ‘Co-defendants and Section 10A of the Evidence Ordinance,’ 9 Tel-Aviv University Law Review (Iyyunei Mishpat) (1983) 660).

A witness-accomplice who testifies after his trial has ended is liable to answer fully in cross-examination and he no longer has a claim of immunity against self-incrimination. The cancellation of the Kinsey rule therefore has a direct effect not only on the defendant but also on the witness-accomplice and his fate, from the viewpoint of the scope of the immunity given to him in his own trial, which is pending at the time when he gives his testimony in the defendant’s trial.

The witness-accomplice in American and Canadian law

10. In American law, the de facto position is similar in its results to the position in our legal system under the Kinsey rule, but the causes underlying this position are different: whereas the Kinsey rule places an emphasis on the protection of a defendant from the self-serving evidence of a witness-accomplice, American law emphasized the interests of the witness-accomplice and his right not to incriminate himself when he testifies in the defendant’s trial before his own trial has ended. In the United States there is no prohibition against calling the witness-accomplice to testify in the defendant’s trial before his own trial has ended, but the witness-accomplice’s broad immunities from self-incrimination lead de facto to the same result, whereby there is a desire to separate the witness’s testimony in the defendant’s trial from the witness’s own trial. The right not to incriminate oneself is a constitutional right in the United States and it is enshrined in the Fifth Amendment to the Constitution. Section 6002 of title 18 of the U.S. Code provides that self-incriminating testimony that a witness-accomplice is ordered to give is privileged, together with ‘any information directly or indirectly derived from such testimony or other information,’ which may not be used against the witness in his trial (Sandberg, Rights of Defendants: the Right to a Separate Trial, at p. 174). In practice, the prosecution in the United States is compelled to agree to give broad immunity to the witness-accomplice or is compelled to agree to his being a state’s witness, and therefore it often prefers to wait to hear the testimony of the witness-accomplice until his own trial has ended (Kastigar v. United States [86]). The double immunity against direct and indirect use of the witness’s incriminating testimony makes it very difficult to bring the witness to trial after he has incriminated himself, and therefore the prosecution is often compelled to grant absolute immunity to the witness in return for his testimony. By granting such immunity, the testimony of the witness-accomplice in the defendant’s trial is severed and disassociated from his testimony in his own trial. With regard to the testimony of the witness-accomplice, the rule in the United States is similar to the Kinsey rule, namely that the hearing of the testimony of the accomplice should wait until the end of his trial (Byrd v. Wainwright [92]; U.S. v. Echeles [93]; see also McCormick, On Evidence, 1999, at pp. 490 et seq; Sandberg, ibid.).

In Canada, the legal position is similar to the one in the United States (s. 13 of the Canadian Charter of Rights and Freedoms and s. 5 of the Canada Evidence Act). Here too the focus is on the immunity of the witness-accomplice against self-incrimination, so that compelling him to testify gives him direct and indirect immunity for his incriminating answers (R. v. S. (R.J.) [94]).

This analysis indicates that even though the law in the United States and Canada focuses on the witness-accomplice from the viewpoint of the risk of self-incrimination, the practical result in those legal systems is similar to the one reached in our legal system by applying the Kinsey rule, namely the aspiration to separate, in so far as possible, the testimony of the witness-accomplice in the defendant’s trial from his testimony in his own trial, notwithstanding the difference in the centres of gravity lying at the heart of the various legal systems that lead to this result.

‘Speaking with two voices’

11. Indicting two accomplices in crime separately may sometimes lead to differences in the factual findings and legal determinations in the separate trials of the accomplices. Every trial is a separate proceeding and each of the verdicts stands on its own and is based on the evidence that was adduced in that trial. A court’s findings of credibility with regard to a witness are inadmissible as evidence in another trial in which the witness is testifying, even if the subject of the testimony in the two trials is the same (CrimFH 4971/02 Zagouri v. State of Israel [61]; CrimA 4391/91 Hawaja v. State of Israel [62], at p. 51; CrimA 2309/90 Sabah v. State of Israel [63]). Notwithstanding, conflicting verdicts with regard to different defendants are likely to create a special difficulty when they concern the same case and where they are irreconcilable with common sense and basic logic. The existence of such an inconsistency may lead to a feeling of injustice and a lack of confidence in the law and justice system (CrimA 3427/91 Salah v. State of Israel [64]). Thus, for example, a judicial result whereby one defendant is convicted of being an accomplice of another person in committing an offence, and the other person is acquitted of that offence, may constitute ‘speaking with two voices.’ Indeed —

‘In an offence of conspiracy, which by its very nature requires the existence of an agreement between two or more persons, it is difficult to imagine a situation in which one person will be convicted of a criminal conspiracy while the other persons who are indicted for the conspiracy are acquitted, so that only one person is convicted of an offence which, by its very nature, requires the criminal involvement of several persons’ (CrimA 4391/03 Abu Ria v. State of Israel [65], at para. 16; CrimA 573/72 Habura v. State of Israel [66]; CrimA 144/92 Cavalero v. State of Israel [67]).

An inconsistency between verdicts that is irreconcilable in accordance with objective criteria must be harmonized. In general, it will be difficult to reconcile two separate verdicts that deal with two accomplices in crime who are charged with the same offence, when the acquittal of one and the conviction of the other were decided on the same probative basis (Abu Ria v. State of Israel [65], at para. 16; CrimA 474/75 Salem v. State of Israel [68]; Zagouri v. State of Israel [61], at p. 379).

The concern of conflicting verdicts in separate trials of two accomplices may increase if the Kinsey rule is cancelled. The testimony of a witness-accomplice in the trial of a defendant before the witness’s trial has ended may be self-serving evidence, which exaggerates the role of the defendant in the commission of the offence and minimizes the role of the accomplice. The restriction on the cross-examination of witness-accomplice before his trial ends because of the immunity against self-incrimination restricts the possibility of ascertaining his role in the case. Even if he is required to answer incriminating questions in the cross-examination, his answers may not be used against him in his own trial. The defendant may be convicted as a result of this testimony. The testimony of the witness-accomplice that minimizes his own role or distances himself from the offence, together with the immunity given to the evidence that incriminates him in his testimony in the trial of the other defendant may result in his being acquitted of the offence that is based upon a criminal conspiracy between accomplices in crime. It is even possible that the probative status of the witness’s statements to the police in the defendant’s trial will be different from their status in the witness’s trial. A situation may arise in which only one conspirator will be convicted, whereas the other conspirators will be found to have no criminal liability. The difficulty in reconciling the contradiction in which there is only one conspirator who is liable for a criminal conspiracy may require the conviction of the defendant to be overturned in order to equate his position with that of the witness-accomplice, in order to prevent an irrational outcome. The defendant’s procedural rights will be entitled to protection in such circumstances, but it is questionable whether this proceeding is best suited to discovering the truth. A similar outcome of speaking with two voices may occur even with the Kinsey rule, when two courts in two separate proceedings arrive at different assessments of the evidence that is brought before them and draw different conclusions from it. But the risk of this phenomenon happening is likely to increase, so it would seem, where the testimony of the accomplice in the defendant’s trial is self-serving and may affect the outcome of the defendant’s trial in a way that is inconsistent with and cannot be reconciled with the outcome of the accomplice’s own trial.

The Kinsey rule — in the spirit of English case law

12. The Kinsey rule was formulated in Israel in the wake of the English common law (R. v. Pipe [98]; Winsor v. R. [105]). The principle that was held in R. v. Pipe [98] is still valid in England (Tillett v. R. [106]), even though over the years the scope of the rule has been limited to those cases in which it is strictly applicable and it is not a binding absolute rule, and it has been held that it does not apply to a witness-accomplice who testifies as a defence witness (R. v. Richardson [99]). It is also not applied today to a witness-accomplice who is a state’s witness (R. v. Turner [100]). See further: C. Tapper, Cross & Tapper on Evidence (ninth edition), at pp. 199, 225-229.

Legislative attempts to change the Kinsey rule

13. It is important to point out that in the past two government-sponsored legislative proposals were tabled in the Knesset to cancel the Kinsey law (the draft Evidence Ordinance Amendment Law (no. 10), 5752-1992 (Draft Laws 5752, no. 2103, at p. 170); the draft Evidence Ordinance Amendment Law (Amendment no. 13) (Testimony of Accomplice), 5759-1999 (Draft Laws 5759, no. 2788, at p. 314)). These proposals did not become law. This fact may indicate the difficulty and complexity involved in a cancellation of the Kinsey rule in its entirety without creating a set of proper balances for this purpose.

The price of the Kinsey rule — its significant contribution to the prolongation of criminal trials, its adverse effect on the efficiency of criminal trials and its violation of the liberty of the defendant who is under arrest

14. The Kinsey rule is a procedural rule that affects the procedural rights of both the defendant and the witness-accomplice. It constitutes an important factor in the criminal trial and it can be seen to affect who whole criminal trial. An outlook that seeks to divorce the role of the Kinsey rule artificially from its effect on the criminal trial, including its length, the extended periods during which defendants are held under arrest or the possibility of releasing dangerous defendants on bail with the accompanying concern of the possible harm to public safety is an outlook that splits the criminal trial into unrelated parts without examining the relationship that they necessarily have on one another. An outlook that examines this relationship in order to create a harmony between the various components of the criminal trial and in order to reconcile them in a rational manner is the one that is likely to achieve the proper solution. It is therefore necessary to examine the effect of the Kinsey rule on the whole criminal trial, and especially its consequences for the length of the trial and the defendants who are held under arrest for its duration.

15. The Basic Law: Human Dignity and Liberty determines the constitutional right of a human being to personal liberty. It provides in s. 5 that a person’s liberty should not be taken away or restricted by imprisonment or arrest; this provision is subject to the limitations clause in s. 8 of the Basic Law, which permits a violation of a constitutional right given under the Basic Law if it is within the framework of a law that befits the values of the state, is intended for a proper purpose and is not excessive. The Criminal Procedure (Enforcement Powers — Arrests) Law and the arrangements thereunder today fall within the scope of the limitations clause and they require a continual examination of the question whether the arrest of a person and the length of time he is held under arrest before his case is decided are proportionate, in view of all the values and interests that are relevant to the case (CrimApp 537/95 Ganimat v. State of Israel [69], at p. 414; CrimA 4424/98 Silgado v. State of Israel [70], at pp. 539-540; A. Barak, ‘The Constitutionalization of the Legal System following the Basic Laws and its Ramifications on (Substantive and Procedural) Criminal Law,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 5, at pp. 21-25; E. Gross, ‘The Procedural Rights of the Suspect or the Accused under the Basic Law: Human Dignity and Liberty,’ 13 Bar-Ilan Law Studies (Mehkarei Mishpat) (1996) 155; D. Dorner, ‘The Effect of the Basic Law: Human Dignity and Liberty on the Arrest Laws,’ 4 Mishpat uMimshal (1997) 13; Y. Karp, ‘The Criminal Law — A Janus of Human Rights: Constitutionalization in the light of the Basic Law: Human Dignity and Liberty,’ 42 HaPraklit 64 (1995), at p. 64; B. Okon and O. Shaham, ‘Due Process and a Judicial Stay of Proceedings,’ 3 HaMishpat (1996) 265, at pp. 265-267).

With respect to criminal trials, the arrest laws carry the full weight of the value of protecting the liberty of the individual (the defendant) before his guilt is proved — a liberty that is violated by the burdensome constraints of arrest — and they determine limits and restrictions upon the power of the court to order the arrest of the defendant before his verdict is pronounced, and also to extend the period during which he is held under arrest (ss. 21, 60-62 of the Criminal Procedure (Enforcement Powers — Arrests) Law, 5756-1996; Zada v. State of Israel [19]).

The prolonging of the criminal trial until a verdict is pronounced gives rise to serious questions where the defendant presents a considerable danger that justifies his being removed from society until his trial ends. This dilemma, which is the result of the problematic tension between the defendant’s right to his personal liberty while he enjoys the presumption of innocence and the public’s right to be protected from the harm that can be expected from releasing a dangerous person, becomes continually more acute as the burden on the court increases and leads to the prolonging of the criminal proceedings. This prolongation is also caused by the changes that have occurred in criminal activity, which has become far more complex and sophisticated, involves more participants and has a more widespread effect on the public. Inter alia, there has been an escalation in organized crime, which sometimes goes beyond the borders of the state, and is especially complex and dangerous.

The application of the Kinsey rule demands a heavy toll in the prolonging of criminal trials. When the rule was introduced thirty years ago, the burden of cases before the courts was incomparably smaller than the current burden, and the scope and complexity of crime were very different. The burden of trials currently weighing upon the court is unbearable. We are dealing not only with a change that has occurred in the number of trials brought before the court, but in their level of complexity and severity, and the scope of the events involved. Frequently trials are held before the courts with regard to serious and wide-ranging criminal activity, which involve huge amounts of evidence and require considerable amounts of judicial time. Often these serious cases involve a large number of defendants who need to be held under arrest until the end of the trial because they are so dangerous. This situation means that a trial cannot end without prolonged proceedings for hearing the evidence. In such circumstances, ending a trial within the statutory arrest period of nine months, as stipulated in the Criminal Procedure (Enforcement Powers — Arrests) Law, is a very difficult target to reach, and serious tension is created between the rights of defendants to their personal liberty while they have the presumption of innocence and the general interest of protecting public security by preventing dangerous defendants from being released before their trial has ended and the question of their guilt has been decided. When criminal proceedings are drawn out because of the complexity of the issues before the court, the Kinsey rule becomes a part of this conflict between the right of the defendant who is under arrest to his personal liberty as long as his case has not been decided and the public interest to protect its security, which operates to prevent the release of a dangerous defendant, and it becomes an additional factor that prolongs the criminal trial. The need to wait until the witness-accomplice’s trial has ended to hear his testimony directly affects the length of the defendant’s trial and the period during which the defendant is held under arrest, and it leads in practice to repeated extensions of the period during which defendant are held under arrest until their trial ends, sometimes far in excess of the statutory period prescribed for finishing a trial when the defendant is being held under arrest. Sometimes, this prolonging of the trial results in dangerous defendants being granted bail, which endangers the security of the public. The heavy price for applying the Kinsey rule is paid both by the defendant and the public: the defendant who is in custody while he waits for the trial of his accomplice to end amid prolonged and complex judicial proceedings, and the public when a dangerous defendant is released on bail because of the length of the trial, which constitutes a danger to the safety of the public.

Sometimes applying the Kinsey rule encourages accomplices in crime to adopt manipulative measures in the relationship between them, whereby the witness-accomplice is induced to drag out his trial in order to create pressure in the defendant’s trial and strengthen his demand to be released on bail.

The prolonging of the criminal proceedings and the tension that this creates for all the parties involved sometimes leads the prosecution authorities to take significant short cuts in prosecuting the defendant, which may take the form of making plea bargains of various kinds, waiving prosecution witnesses, amending the indictments, reducing the charges, and so forth.

The prolonging of the proceedings also has a deleterious effect on the victims of the offence, who expect the defendant who committed a crime against them to be brought to justice and begin to serve his sentence within a reasonable time.

Finally, the prolonging of the trial proceedings to an unreasonable degree undermines the efficacy and deterrence of the criminal trial. The prolonging of the criminal trial does not merely harm the defendant who is waiting for his trial to end while he enjoys the presumption of innocence. It undermines society’s recognition of the need to finish trials efficiently in order to preserve the deterrent effect inherent in them. This has a direct effect on the ability of the law enforcement system to fight crime effectively and to contend with the important task of protecting public safety. Defendants and the prosecution authorities pay a heavy price for the application of the Kinsey rule and the consequent prolonging of proceedings. The public interest that criminal trials will be effective and serve as a deterrent is also undermined.

The defendant’s dilemma — the benefits of the Kinsey rule as compared with the prolonging of the trial and the extended period of arrest

16. Applying the Kinsey rule against the background of procedural realities at the current time affects the duration of the loss of liberty of a defendant who is held under arrest during his trial. On the other hand, it is precisely defendants, including the Public Defender’s Office that represents them and the Israel Bar Association, that emphatically oppose the cancellation of the Kinsey rule because they are concerned that a witness-accomplice will utter self-serving testimony in their trial, which may lead to their being convicted on the basis of false testimony. In the dilemma between the harm to their interests that may arise from the cancellation of the rule and the price that they may pay as a result of the prolonging of the trial and the possibility that their period of arrest will be extended, they give decisive weight to the first consideration. Even though they did not give their consent to the prolongation of their period of arrest, the defendants in the case before us adopted a definite approach that is opposed to the cancellation of the Kinsey rule, and, as we have said, so did the Public Defender’s Office and the Israel Bar Association. Notwithstanding, they emphasized the need to adopt administrative measures expeditiously to improve the way in which the courts contend with the burden of cases in order to shorten proceedings, provided that it is not at the cost of cancelling the Kinsey rule.

The position of the defendants and the institutions that have the responsibility of defending them is very important. Notwithstanding, giving a defendant the choice of waiving the Kinsey rule or insisting upon its application in his own case, while implicitly also acquiescing in the possibility of the prolonging of the trial and the risk of an extension of the period of arrest, is a difficult choice that a proper judicial process should not delegate to a defendant. The legal system requires a proper solution to the dilemma that has arisen: should the Kinsey rule be allowed to remain, should it be cancelled or is it perhaps possible to reconcile the conflicting values by means of a relative balancing that is not based on either extreme? This balancing should take into account, on the one hand, the interest of maximizing the full probative potential of the testimony of the witness-accomplice, which is realized by calling him to testify in the defendant’s trial after his own trial has ended, and, on the other hand, the harm caused to the constitutional right of the defendant as a result of the prolonging of the trial while he is held under arrest, and the damage caused to the public interest by the prolonging of the trial in general, which undermines its efficacy and the deterrent effect. In this balance, the interest of maximizing the probative value of the existing evidence in order to discover the truth and protect the defendant from being convicted erroneously competes against the harm to the defendant’s personal liberty, which is the price that he is required to pay while waiting from the trial of the witness-defendant to end before he testifies in the defendant’s trial. There is no magic formula for reconciling these values. The proper solution lies in the approach that the competing values are not absolute, but only relative, and they should be reconciled by means of a degree of compromise on each side. Just as there is a need to balance the conflict between the right of the individual to a fair trial against the rights of society and its individual members to an effective war against crime and, in so doing, to refrain ‘from paying too dear a price, whether because of an eagerness to succeed in the war against crime or because of the opposite desire to overprotect suspects and defendants’ (Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 761), so too the interest of society and its members to realize the goal of a just trial should be balanced against the essential need of the individual and the public to have effective criminal trials.

The methods of balancing the competing values

17. The Kinsey rule has an important probative purpose of seeking to maximize the probative potential of the accomplice’s testimony that can be obtained after his trial has ended, when the motives arising from his own trial that may lead him to give false testimony no longer exist. This rule is consistent with the general purpose of a trial, which is to discover the truth; it serves the purpose of giving the defendant a fair trial; it prevents the possibility that the witness-accomplice’s right not to incriminate himself will be violated and that restrictions will be imposed on the witness-accomplice’s trial because of his privilege against self-incrimination which is given by the court in the defendant’s trial. On the other hand, the cost of this rule in prolonging trials is considerable, since the ever-increasing burden on the courts, the complexity of trials, the number of defendants and the sophistication of modern crime lead to a violation of the liberty of defendants, who wait a long time for their trials to end while they are being held under arrest. The violation of the liberty of defendants as a result of this delay is exacerbated by the Kinsey rule; releasing dangerous defendants on bail because of the length of the trial may undermine the security of the public; the rule has on more than one occasion resulted in significant shortcuts being taken by the authorities in prosecuting the case in order to reduce the hardship caused to defendants; there is a major conflict between the fear of a miscarriage of justice and the danger of such hardship. The prolonging of the trial harms victims of crime who expect an effective legal process; the deterrence of criminal trials is undermined, and this affects the image of the judicial system and public confidence in the efficacy of the law enforcement process.

The Kinsey rule was formulated in an age when its advantages clearly outweighed its disadvantages. The advantage of maximizing the probative value of the witness-accomplice’s testimony by having him testify in a defendant’s trial after his own trial has ended did not at that time entail such a substantial cost in terms of the prolonging of criminal proceedings in the defendant’s case, sometimes for a period of years, which is the result of applying it today. Times have changed, and today the benefit arising from the application of the Kinsey rule, namely its contribution to discovering the truth and arriving at a correct verdict, is mitigated by the harm that it causes to the right of defendants that are being held under arrest to their personal liberty as long as they have not been convicted, and to the image of criminal trials in general. Were it possible to assume that the social reality could be changed overnight and the overburdening of the judicial system could be overcome by major structural changes and the allocation of additional resources, it is possible that the dilemma would be solved. But the likelihood of a complete and swift solution of the problem of overburdening and the prolonging of trials, with all that this involves, is not great, and therefore a balance between the conflicting values is required. This balance does not, in my opinion, justify a sweeping conclusion that the Kinsey rule should be cancelled in its entirety as my colleague Justice Levy proposes. On the other hand, it does not justify leaving the rule as it stands without any change, thereby ignoring the profound changes that have occurred in the holding of criminal trials. The proper solution requires a balancing of the conflicting values and a modification of the rule to fit current needs, in a way that gives proper expression to the relative weight of the rule’s advantages and its disadvantages in the light of prevailing realities. This court addressed this only a few years ago, when it said that ‘we should not treat the rationale underlying the Kinsey rule lightly, and care should be taken not to cancel it without first considering all the consequences of doing so’ (Kadosh v. State of Israel [29], per Justice Beinisch; see also the need to balance the interests affected by the Kinsey rule in Y. Ginat, ‘Has the Time Come to Re-examine the Kinsey Rule,’ 42 HaPraklit (1995) 376, and cf. A. Kamar, ‘Towards a Cancellation of the Kinsey rule,’ 42 HaPraklit (1995) 548).

When making the balance, introducing a rule that deprives the judge in every case of the discretion to order the testimony of a witness-accomplice to be heard after his trial has ended and that compels him to hear the testimony even when his trial has not ended gives the value of the efficiency of the criminal trial and the value of the defendant’s liberty that goes with it an absolute pre-eminence over the value of arriving at the truth and protecting the defendant from an erroneous conviction. On the other hand, a rule that would usually prevent the testimony of a witness-accomplice in the defendant’s trial before his trial has ended gives decisive weight to the value of arriving at the truth and protecting the defendant from an erroneous conviction, while minimizing the weight of the value of the efficiency and proper conduct of criminal trials, including the right of a defendant who is held under arrest to his personal liberty prior to the verdict. It is therefore essential to combine the purposes inherent in these two extreme possibilities in a way that will create a relative balance and a rational harmonization between them (D. Wiener & N. Harduf, ‘Has the Time Really Come to Cancel the Kinsey Rule?’, 33 HaSanegor (1999) 3).

The balancing when applying the Kinsey rule

18. The proper balance between the conflicting values will be achieved by a selective cancellation of the Kinsey rule, which will leave the trial court judicial discretion, in exceptional cases, to order the witness-accomplice’s testimony to be heard only after his trial has ended. The fate of the defendants who are held under arrest, in the light of the prolonging of the trial and the general harm to the efficacy of the criminal trial and its deterrent effect, tip the scales in favour of justifying the cancellation of the Kinsey rule, while leaving the trial court discretion to apply it in special circumstances and for special reasons. This discretion ought to be exercised in a small number of cases where the advantages of applying the rule clearly outweigh the disadvantages. Whereas until now the judicial practice has tended to apply the rule broadly while allowing departures from it in a very small number of cases, today the position should be reversed because of the significant cost in terms of the length and cumbersomeness of the criminal trial. The purpose of doing justice when considered as a whole will be undermined if the present position continues. Notwithstanding, changing the balancing point as aforesaid does not absolutely rule out judicial discretion to apply the Kinsey rule in appropriate cases, but these should only be exceptional and unusual cases. The rule will therefore become the exception, and the exception will become the rule. This is the essence of my proposal.

Before we outline possible examples of special reasons for applying the rule, we should say as a general principle that the testimony of a witness-accomplice should usually be heard in the defendant’s trial, in so far as possible, after all or at least most of the prosecution witnesses have testified. Thereby there is the greatest possible chance that the witness-accomplice’s trial will have ended before he testifies in the defendant’s trial, without this involving any special delay caused by waiting for the witness-accomplice’s trial to end. If, notwithstanding, the witness’s trial has not ended when his testimony is required, then there may be special reasons to exercise judicial discretion and to apply the Kinsey rule, inter alia in the following situations (subject to the special circumstances of the specific case):

(a) Where the court is of the opinion that the weight of the accomplice’s testimony, in relation to all the other evidence that has been adduced, has a ‘critical mass’ for the fate of the trial, and the timing of this testimony at the stage after the trial in the accomplice’s case has ended is likely to make a significant contribution to maximizing the probative potential of that testimony and arriving at a correct verdict in the trial;

(b) Where a defendant is not being held under arrest, or where he is being held under arrest but he is also simultaneously serving a sentence of imprisonment for other offences, so that the delay in ending his trial is not the direct cause of his loss of liberty;

(c) Where the defendant applies to have the testimony of the witness-accomplice in his case postponed until after the witness’s trial has ended, on the understanding that this application is likely to lead to an additional extension of the period during which he is held under arrest pending judgment in his trial. Within the scope of the judicial discretion, this application should be considered from a broad perspective, with reference inter alia to the proper management of the criminal trial from the viewpoint of the general public interest.

(d) When the witness-accomplice’s trial will end in a short period of time, relative to the total amount of time required for a trial, so that the probative advantage arising from a short delay outweighs the harm that may be caused by merely a short delay in the defendant’s trial, the court may exercise its discretion to wait until the witness’s trial ends to hear the testimony.

These scenarios are not an exhaustive list, but the assumption that underlies this proposal is that henceforth the application of the Kinsey rule will be the exception to the rule, and it will be applied sparingly in special cases in which the advantages of the rule outweigh the disadvantages, in view of the special circumstances and characteristics of the case.

19. I am not troubled by the concern, which has been expressed on several occasions, that giving judges discretion to depart from a procedural rule for special reasons may lead to the exception becoming the rule and to an excessive use of the margin of discretion that is supposed to be used sparingly. Judicial experience shows that the needs of reality and the needs of the law are so varied, so complex and so multi-faceted that the application of strict procedural rules without any possibility of departing from them and without any means of adapting them to special situations may cause damage that is often greater than the benefit that they bring. A judge may be presumed to exercise his discretion prudently and reasonably and to apply the exception to the rule with restraint and with an understanding of and respect for the limits of judicial power. The trial court has judicial discretion to depart from procedural rules for special reasons in many matters, and I do not see any good reason why it should not have it in this matter also, on the assumption that it will be exercised properly. This is especially true in circumstances where the Kinsey rule has existed for thirty years, and the time has come to change it. A moderate and gradual change is consistent with the conflicting needs and with the approach that supports moderate changes in the hope of benefiting from the experience that is accumulated, and it is better than the extreme sweeping approach that seeks to cancel existing arrangements in their entirety in order to remove their disadvantages, while giving up their advantages entirely, without any possibility of foreseeing what will be the cost of the change.

Only recently this court held in Yissacharov v. Chief Military Prosecutor [37] that the court should be left with discretion to decide in which circumstances evidence that was obtained unlawfully should be inadmissible, in view of the circumstances of the case and the criteria outlined in this regard. In that case the court (per Justice Beinisch) said the following:

‘… giving discretion to the court as aforesaid is consistent with the general theory of checks and balances that characterizes our legal system and it is consistent with the values of the State of Israel as a Jewish and democratic state… Moreover, the adoption of a relative doctrine that gives the court discretion on the question of the admissibility of illegally obtained evidence is consistent with our duty to act moderately and carefully when changing a case law rule that has existed in the matter under discussion until now…’ (ibid. [37], at para. 62).

I think that these remarks are also remarkably appropriate in the case before us.

20. It is to be hoped that the efforts in the field of judicial administration that are intended to make the criminal trial more efficient and adapt the tools required for the changing needs in this field will bear fruit and will also have an effect on the complex issue before us. After all, the more efficient the criminal trial is, the more the Kinsey rule will be able to realize its benefits in a natural manner without its disadvantages causing any harm, so that it will be possible for the witness-accomplice to testify after his trial has ended without this requiring any special delay in the trial of the defendant and without this causing a disproportionate violation of the personal liberty of the defendant who is waiting for his trial to end while he is still being held under arrest.

Conclusion

21. It is the duty of a civilized society to strike a balance between protecting the rights of the defendant, supporting the war against crime, discharging its duty to the victims of crime, preventing the conviction of innocent persons and ensuring that the guilty are not acquitted (per Justice Strasberg-Cohen in Hachmi v. Justice of Tel-Aviv-Jaffa Magistrates Court [10], at p. 761). This gives rise to a need to strike a balance between discovering the truth and the effectiveness of the criminal trial, to protect the right of the defendant not to be held under arrest for a prolonged period and to reconcile the fear of a miscarriage of justice and the danger of causing undue hardship to the defendant. This balance is not simple. It is not achieved by a radical solution but by a balanced formula that gives proper weight to the competing values and interests.

22. If my opinion is accepted, we will return the case to the Beer-Sheba District Court, so that it may decide whether to hear the testimony of the witness-accomplice Yaron Sanker (the fifth respondent) in the separate trial of the defendants (the respondents) before his own case is decided, or whether in this case there are special reasons, according to the criteria proposed in this opinion, that justify postponing Sanker’s testimony until his trial has ended.

 

 

President D. Beinisch

1.             We have before us a petition by the state to cancel the rule known as the Kinsey rule, which prevents an accomplice in crime from testifying as a prosecution witness in the trial of his partner who has been indicted separately, as long as the witness’s own trial is still pending.

My colleagues Justices E. Levy and A. Procaccia have given us comprehensive and profound opinions, each of which, in its own way, discusses the purpose of the rule, the reasons underlying it and the rights, interests and values that are the focus of the decision as to whether the Kinsey rule should remain the law.

The distance between my colleagues’ approaches is not so great and wide as it seems at first glance. My two colleagues agree that the Kinsey rule is a procedural rule, a rule of practice that was formulated in a judgment that was given thirty years ago and has become an all-encompassing and rigid rule. They both are of the opinion that the rule in its all-encompassing scope is no longer suited to present conditions and the legal reality in which we live. The rule today constitutes an obstacle to holding effective criminal trials. My colleagues agree, therefore, that the time has come to depart from the all-encompassing rule and to determine a new point of balance between the competing values that lie at the heart of the Kinsey rule; they also agree that the rule as it is interpreted today can no longer stand. The main argument is whether the trial court should be allowed discretion as to whether it should have a possibility of not hearing the testimony of a witness who is himself standing trial for the same incident until his trial has ended. Should the court be entitled, in appropriate circumstances, to postpone the continued hearing of the criminal trial merely in order to wait until the witness’s trial has ended?

In the opinion of my colleague Justice Levy, cancellation of the rule leads to the conclusion that today the court has no reason to postpone a trial simply because the prosecution wishes to call an accomplice, whose trial has not ended, to testify. By contrast, Justice Procaccia’s approach sees a need for a selective cancellation of the Kinsey rule, ‘which will leave the trial court judicial discretion, in exceptional cases, to order the hearing of the witness-accomplice’s testimony only after his trial has ended’ (at para. 18 of her opinion). In her opinion she says that the overall balance justifies the cancellation of the rule, while leaving the trial court discretion to apply it ‘in special circumstances and for special reasons’ (ibid.).

2.             In the disagreement between my colleagues, my path is an intermediate path. I accept the opinion of Justice Procaccia that the court trying a criminal case should not be deprived of the discretion to postpone the hearing, and I also think that there may be rare cases where the reason for a postponement will be the need to wait for the witness-accomplice’s trial to end. It would appear that, according to the approach of Justice Levy, he too will agree that the court should not be deprived of all the discretion that it has to conduct a trial, but he is concerned that any loophole that is left will allow the Kinsey rule to continue in full force. I will confess that I too fear that perhaps the proposal put forward by my colleague Justice Procaccia with regard to the nature and scope of the circumstances and situations in which there will be a justification for waiting for the witness’s trial to end is capable of undermining the trend of cancelling the Kinsey rule and it may gradually lead to this rule remaining unchanged.

I do not belittle the rationale for the Kinsey rule and especially the proper purpose of discovering the truth in criminal trials, which Justice Procaccia discussed extensively in her opinion. But the aforesaid purpose is in any case no longer protected by the Kinsey rule. This is because of the difficult situation with which the courts are contending today when they conduct criminal proceedings and the effort required to achieve the goal of discovering the truth. Serious crime has become widespread in Israel, and with it the phenomenon of intimidating witnesses to prevent them testifying. In order to overcome witnesses’ fears and the pressures that have been and are being brought to bear on prosecution witnesses in order to deter them from testifying truthfully, the 1979 amendment to the Evidence Ordinance was enacted. Within the scope of this amendment, s. 10A was added. According to this, it is possible to prefer, in certain circumstances, the statement of the witness during his interrogation by the police to his testimony in court. From that time until the present, the reluctance of witnesses, when they are testifying in court, to repeat their original story that they gave in their police interrogation has increased. This phenomenon is common with the testimony of accomplices in crime, both before their trial has ended and after their trial has ended. The result is that in a large majority of cases, when accomplices in crime are called to testify for the prosecution, their testimony does not coincide with the story that they told during their interrogation; the prosecution requests that the court prefer the incriminating version told to the police, pursuant to the aforesaid s. 10A, and the court is compelled to arrive at the truth on the basis of a version of events that was given before the trial of the accomplice in crime took place. It is self-evident that if and in so far as the version of events given by the witness before he is tried is self-serving, this will have an effect on the amount of supporting evidence that is required in order to assist the court in arriving at the truth.

Moreover, our adversarial system does not usually allow the court to evaluate in advance the importance of the testimony to the trial, and in particular it does not give him tools to determine whether the witness will give incriminating testimony when he is called to the witness stand. As I have said, the likelihood that the witness will testify as the prosecution expect from the police interrogation is usually small. In most cases, assessing whether the witness will indeed testify in accordance with his incriminating statement can only be assessed by the parties who are familiar with the interrogation material, and not by the court which has not yet heard the evidence.

The test that my colleague proposes, whereby obtaining the consent of the defendant to suffer the consequences of the prolonging of his period of arrest and the violation of his right to liberty in order to wait until the witness’s trial has ended, cannot serve as a justification for postponing a trial. Postponing a trial in circumstances where the defendant is being held under arrest for a prolonged period certainly violates the rights of the defendant, which he may waive for his own reasons. But prolonging the trial also undermines the effectiveness of the criminal trial and the public interest that the criminal trial will provide a proper means of law enforcement. Furthermore, the serious nature of criminal cases concerning organized crime and the most serious offences in the statute books, for which the sentences are heavy, increases the interest that the defendant has to prevent the prosecution witness from testifying; prolonging the proceedings may encourage unlawful acts to the point that there may be grounds to fear for the life of the witness and the possibility of conducting proper trials.

3.             Because of the small benefit to discovering the truth that may arise from postponing the trial, and because of the concern that allowing broad judicial discretion in this matter may reinstate the Kinsey rule, I would not allow the trial court to have such a broad basis for postponing the trial until the end of the witness-accomplice’s trial, as my colleague Justice Procaccia proposes. But in view of my outlook that the court should always have discretion with regard to the manner of conducting the proceedings before it, I believe that the court should be entitled to decide in certain circumstances, which should be very exceptional and extreme, that it is justified to wait until the end of the separate trial of an accomplice in crime before he is called to the witness stand. Thus, for example, in those cases where the trial of the witness is being conducted efficiently and is almost finished, and the parties have real grounds to believe that the witness does indeed intend to testify as a prosecution witness in accordance with his incriminating statement. The decision on this issue in these exceptional circumstances is to be made by the court. But it should be made only after the parties to the trial have obtained the relevant information and made an informed and specific assessment of the position. In this matter, the prosecution position should be taken into account when it applies to summon the witness to testify only after the trial has ended in order to allay the concern of self-serving evidence, and weight should also be given to the consent of the defendant to extend his period of arrest for this purpose until the trial ends. The court should give reasons for such an exceptional postponement of the trial.

4.             In concluding my remarks, I shall say a few words concerning my position on the question of the privilege given to a witness who is required to testify before his trial has ended, which was addressed at length by my colleague Justice Levy. My two colleagues discussed how in other legal systems — in the United States and Canada — the reason for not calling an accomplice to testify when his trial has not ended is not based on the defendant’s right to a fair trial but on the witness’s right not to incriminate himself. In our legal system, the provisions of s. 47(b) of the Evidence Ordinance [New Version] provides a solution to the protection required by a witness from self-incrimination when giving the testimony. The question of the scope of the privilege given to evidence that arises from the testimony of the witness who may incriminate himself is complex and is not required in the petition before us. The case before us focused on other questions and this issue was not addressed sufficiently. The approach of my colleague Justice Levy gives a broad interpretation to the privilege in the aforesaid s. 47(b), which goes beyond the evidence that arises directly from the testimony of the witness and includes also anything that arises indirectly from it. I would point out that I doubt whether this interpretation is consistent with our legal system in so far as the case law doctrine of declaring evidence inadmissible is concerned. This is an issue that requires separate consideration in order to find the proper balancing point between the need to protect the witness and the need to discover the truth in court proceedings, and it would be best that we leave it to a later date. In any case, it is clear that the prosecution may in a specific case declare that it intends to grant a witness a broader scope of privilege than what is granted by law, whatever the interpretation of the latter may be.

I will therefore summarize my position by saying that the time has come to cancel the rule of practice formulated in the Kinsey rule. The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state, in accordance with what I said in para. 3 above.

Therefore I agree with the opinion of Justice E.E. Levy that an absolute order should be made to the effect that the decision of the Beer-Sheba District Court is set aside.

 

 

President Emeritus A. Barak

I have carefully read the comprehensive and profound opinions of my colleagues Justice E.E. Levy and Justice A. Procaccia. My colleagues’ opinions agree more than they differ. With regard to the points on which my colleagues differ, I agree with the intermediate position, as it is expressed in the opinion of my colleague President D. Beinisch.

 

 

Vice-President E. Rivlin

As stated in the opinions of President D. Beinisch and President Emeritus A. Barak, the opinions of my colleagues Justice A. Procaccia and Justice E.E. Levy agree more than they differ. They both agree that the Kinsey rule is not longer suited to the legal reality of today and that it often stands in the way of conducting a proper criminal trial, to such an extent that the sweeping rule should be abandoned. The difference of opinion concerns the degree of discretion given to the trial court to continue to apply the Kinsey rule in special circumstances. On this question I agree with the intermediate position as expressed in the opinion of my colleague Justice D. Beinisch.

 

 

Justice A. Grunis

1.             I agree with the opinion of my colleague Justice E.E. Levy. I will add a brief comment on the tools that are intended to allay the concern of erroneous convictions based on the testimony of an accomplice and to prevent the witness-accomplice suffering as a result of what he says in his testimony.

2.             There is no doubt that there is a real concern that the testimony of the witness-accomplice will be self-serving or even false if he is required to testify before his trial ends. As my colleague Justice E.E. Levy says, in many cases where the witness testifies only when his trial has ended, the prosecution has no choice but to make use of his statement to the police, under s. 10A of the Evidence Ordinance. It may be assumed that this will also happen if the accomplice is compelled to testify before his trial has ended. Therefore, both in the case of using a statement made to the police and also when the Kinsey rule is cancelled, the additional evidence required is of very great importance. It is well known that it is not possible to convict a defendant on the basis of the sole testimony of his accomplice unless there is additional supporting evidence (s. 54A of the Evidence Ordinance). In the past, until 1982, additional evidence of greater weight was required, namely corroboration. I wonder whether the time has not come to return this requirement to the statute books. Even if this requirement is not reintroduced, we should insist that the additional evidence that constitutes ‘support’ does not become negligible, marginal and insignificant. In my opinion, there is a persistent erosion in the interpretation of this requirement, and perhaps even more in its concrete application. My colleague Justice Levy rightly said that the court may ‘determine that a high level of support is required’ and that ‘it is possible that the difference between the requirement of support and the requirement of corroboration will not be so great’ (para. 28 of his opinion). My agreement with the cancellation of the Kinsey rule is based, therefore, on the assumption that the courts will require the existence of considerable ‘support,’ for otherwise the concern that defendants will be convicted erroneously will increase. In other words, we should support a more substantial requirement of ‘support.’

The additional tool to which I refer, following the remarks of my colleague Justice E.E. Levy, is the privilege given to the statements made by the witness-accomplice, so that they may not be used against him (pursuant to the provisions of s. 47(b) of the Evidence Ordinance). Just as it is essential to ensure that the additional supporting evidence which is a condition for a conviction is not insignificant, so too it is essential to adopt a strict approach towards the prosecution authorities, in order to ensure that they do not make use of the statements of the witness-accomplice in his trial.

 

 

Justice M. Naor

1.             I agree with the opinion of my colleague, President D. Beinisch.

2.             The Kinsey rule ‘places obstacles in the path of criminal trials’ (Turk v. Attorney-General [22], at p. 672). It is frequently abused. Today, in view of the significant changes that have occurred over the years in the manner in which criminal trials are conducted and in view of the judicial experience that has been acquired from implementing it, the conclusion is that the Kinsey rule causes more harm than good, and it should be cancelled. But cancelling the rule does not deny the trial court discretion to order the postponement of the testimony of the witness-accomplice until after the witness’s own trial has ended. The question is how the discretion should be exercised.

3.             Like my colleague President Beinisch, I am of the opinion that only in very exceptional and extreme cases should the court decide, for reasons that it should state, that there is a justification for waiting until the end of the accomplice’s separate trial before he is called to testify.

4.             The Kinsey rule is applied when a witness, who is being tried separately (the witness-accomplice), is called to testify for the prosecution in the trial of a defendant (the defendant). The reason why the witness-accomplice is included among the prosecution witnesses in the defendant’s trial is that the witness-accomplice made a statement to the police that incriminates the defendant of the offences attributed to him or that contains certain facts that are mentioned in the indictment. Sometimes the witness-accomplice incriminates both himself and the defendant, whereas in other cases he only incriminates the defendant.

5.             There are two common scenarios (but these are not the only ones) where the question of postponing the timing of the witness-accomplice’s testimony arises. The first scenario is where the witness-accomplice adheres in his own trial to the statement he made to the police. The second scenario is where the witness-accomplice goes back on the incriminating statement he made to the police both in his own trial and in the defendant’s trial. Often it is possible to ‘detect’ at a relatively early stage what direction the witness-accomplice will choose and what his intentions are, in view of how he pleads to the charges or other steps that he takes in his own trial. When the witness-accomplice has also incriminated himself and he adheres in his own trial to the statement that he gave to the police and pleads guilty, all that remains is to wait for him to be sentenced at an early date. By contrast, when the witness-accomplice in his own trial retracts his statement to the police, this is a possible indication that the defendant’s trial will be drawn out if it is postponed until the witness’s trial ends. If there is a reasonable expectation, taking into account all of the circumstances of the case, that the witness-accomplice’s trial will end within a short time, the court will be inclined to postpone the defendant’s trial (or to hear the other witnesses in the interim). But if the likelihood is that the witness-accomplice’s trial will be drawn out, there is no reason to postpone the hearing of the defendant’s trial. The trial courts have sought and found various ways of ‘overcoming’ the Kinsey rule and preventing a delay in hearing trials. One of the ways is to allow the witness-accomplice to be called to testify (where there is an expectation that he will not incriminate the defendant) while giving the parties an opportunity to invoke the Kinsey rule during the testimony, when necessary. Judicial experience shows that in many cases it transpires, in this way, that the rationale of the Kinsey rule has no application.

6.             In my opinion there is no need at this time to determine rigid guidelines for the exceptional and extreme cases in which the court will decide to exercise its discretion to postpone the hearing of the witness-accomplice’s testimony until his own trial has ended. This is a matter for the discretion of the trial judge, who should make his decision in a rational manner. He should hear the parties’ assessments with regard to the witness-accomplice’s trial and rely upon his expertise as a judge.

7.             In this spirit I agree with the fourth of the special reasons listed by my colleague Justice Procaccia as justifying in her opinion the postponement of the hearing of the witness-accomplice’s testimony (para. 18 of her opinion). But the three other reasons are in my opinion too broad. They are inconsistent with the clear message that arises from our decision today with regard to the very narrow scope of the discretion for postponing the hearing of the witness-accomplice’s testimony. As my colleague the president says, they are ‘capable of undermining the trend of cancelling the Kinsey rule’ (at para. 2 of her opinion). I particularly disagree with the third reason, in which the defendant requests that the testimony of the witness-accomplice is postponed on the understanding that there will be an additional extension of the period during which he is held under arrest. I think that this reason gives the defendant control over how his trial is conducted. This is an undesirable situation. In this matter too I agree with the remarks of my colleague the president, that this reason ‘cannot serve as a justification for postponing a trial,’ since sometimes it ‘may encourage unlawful acts to the point that there may be grounds to fear for the life of the witness’ (ibid.).

8.             I therefore agree, as I have said, with the intermediate position of the president that ‘The discretion given to the court to postpone the trial in order to wait for the witness’s trial to end should be exercised very narrowly, in exceptional cases only and for special reasons that the court should state’ (at para. 4 of her opinion).

9.             I would also propose, like the president, that the question of the scope of the privilege against self-incrimination given to a witness who is required to testify before his trial ends is left undecided. The position of the Israeli legal system until now, in related contexts, has not been as my colleague Justice Levy proposes in our case (see Yefet v. State of Israel [54], at pp. 291-316 per Justice D. Levin and at pp. 462-464 per Justice Kedmi). In my opinion uniform guidelines should be established in this matter, but in the petition before us a decision on this issue is not required.

10. I would also propose that the question of the amount of the additional evidence that is required in our case is also left undecided.

11. To sum up, in this judgment we are freeing the trial courts from the shackles of the Kinsey rule in conducting criminal trials. The rule is cancelled but the judicial discretion remains. But the margin of discretion to postpone the testimony of the witness-accomplice is narrow, so that ultimately I agree as I have said with the position of President Beinisch. There is no need at this time to determine strict guidelines with regard to the exceptional and extreme circumstances in which the discretion should be exercised. For the moment it is sufficient that I say that the more likely it is that the witness-accomplice’s trial will end within a short time, the greater the inclination to postpone the hearing of the defendant’s trial.

 

 

Petition granted.

16 Tishrei 5767.

8 October 2006.

 

 

HCJ 8414/05

 

 

Ahmed Issa Abdallah Yassin, Bil'in Village Council Chairman

 

v.

 

1.             The Government of Israel

2.             The Military Commander in the West Bank

3.             Green Park Inc.

4.             Green Mount Inc.

5.             The Land Redemption Planning and Development Fund

6.             Ein Ami Enterprise & Development Company Ltd.

7.             The Modi'in Illit Local Council

8.             Heftsiba Construction and Development Ltd.

 

 

The Supreme Court sitting as High Court of Justice

 

[February 18 2007]

 

Before President D. Beinisch, Vice President E. Rivlin & Justice A. Procaccia

 

Petition for an order nisi and an interlocutory injuction

 

For petitioner:                                      Michael Sfard

 

For respondents no. 1 & 2:                Avi Licht

 

For respondents no. 3, 4 & 6:           Renato Jarach, Shira Hay-Am

 

For respondent no. 5:                         Moshe Glick

 

For respondent no. 7:                         Gil'ad Rogel

 

For respondent no. 8:                         Yoram Bar Sela

 

 

JUDGMENT

 

 

President D. Beinisch:

 

                This petition is against Land Sequestration Order no. Tav/40/04 (Boundary Alteration), issued by the military commander for construction of the security fence on land of the Village of Bil'in, east of the settlement of Modi'in Illit in the Modi'in Bloc, in the Judea and Samaria area.

 

 

 

Background

 

1.             Modi'in Illit is an Israeli settlement in the area of Modi'in, lying east of the boundary of the Judea and Samaria area (hereinafter – "area"), north of road 443.  Living in it are approximately 32,000 residents, most of whom are ultra-orthodox.  Near Modi'in Illit are a number of Palestinian villages.  As part of the Israeli Government's program to erect a security fence between Israel and the area, the route of the fence was planned to pass through this area, at "stage C" of the erection of the fence.  The fence in this area separates the Modi'in bloc settlements (Mattityahu, Modi'in Illit and Hashmona'im) from the Palestinian villages of Bil'in, Saffa, Harbata, Dir Qaddis, Ni'lin and Al Midiya.  It is intended to protect the residents of Modi'in Illit, and the residents of the Modi'in bloc and the city of Modi'in which are adjacent to it.  The petition before us opposes the section of the fence being built on land of the village of Bil'in, a Palestinian village east of Modi'in Illit in which approximately 1,700 residents live.  The route of the fence on the land of Bil'in is the continuation of the route passing through the land of Harbata, which is north of Bil'in.  The route continues south on land of the village of Saffa, until it reaches road 443.

 

2.             Three sequestration orders were issued in early 2004 for the purpose of the erection of the fence east of Modi'in Illit: Sequestration Order Tav/27/04 (of March 21 2004); Sequestration Order Tav/40/04 (of April 25 2004); and Sequestration Order Tav/44/04 (of April 25 2004).  In the framework of examining administrative appeals filed by Bil'in residents against the route, the parties held a number of joint meetings and surveys in the field.  On May 13 2004 the residents were informed of the rejection of their appeals.  As a result of the judgment in the Beit Sourik case (HCJ 2056/04 Beit Sourik Village Council v. The Government of Israel, 58(5) PD 807), the military commander reexamined the fence route, in the light of the standards determined in that judgment.  An amendment of the route was decided upon, by which the section of the fence passing through the Modi'im riverbed (west of Bil'in) would be moved west, so that the river crossing point would be 800 meters from the original crossing point.  The route amendment was presented to the residents in October 2004, and on November 24 2004 an amended order of sequestration was issued – Sequestration Order Tav/40/04 (Boundary Alteration) – which is the order attacked in this petition.

 

3.             The altered fence route that passes through land of the village of Bil'in is 1.7 km. long.  It takes up 260 dunams.  The route is as far as two kilometers from the outermost houses of Modi'in Illit.  It leaves about one half of the land of the village of Bil'in (according to the British Mandate parcellation of the village lands) on the "Israeli" side of the fence.  According to petitioner, the extent of Bil'in village lands which will remain in the "seamline" area between the fence and the boundary of the Judea and Samaria area is approximately 1,980 dunams, part privately owned by Bil'in residents and part village land cultivated by its residents.  According to the data presented by respondents no. 1 & 2 (hereinafter – "respondents"), the route leaves approximately 1,647 dunams of Bil'in village land on the "Israeli" side, according to the British Mandate parcellation of the village land (the total of Bil'in land according to that parcellation is approximately 4,085 dunams).  According to respondents, 678 dunams of the land to remain in the "seamline" area between the fence and the area boundary are privately owned by residents of the village, and the rest are within the boundaries of Israeli planning schemes.  Approximately 196 dunams of the land are cultivated.

 

4.             The route of the fence on Bil'in land makes an eastern flank around areas for which there are planning schemes for the expansion of Modi'in Illit; schemes which are at various stages of planning.  One of the schemes is planning scheme 210/4/2, for construction of a residential neighborhood called "Naot HaPisga" east of Modi'in Illit, north of the Dolev riverbed.  The great majority of the neighborhood is planned to be built on land of the village of Harbata.  The "Naot HaPisga" neighborhood is being built according to a valid planning scheme, and infrastructure work for erecting the neighborhood began in 2004.  2,750 apartment units are planned to be built in the "Naot HaPisga" neighborhood, in high rise buildings.  On the ground, to date, hundreds of apartment units have been built, and land development work has been carried out.

 

5.             There is a planning scheme for constructing an additional residential neighborhood by the name of "East Mattityahu" south of the "Naot HaPisga" neighborhood, on the southern bank of the Dolev riverbed.  The original plan for constructing the neighborhood was detailed planning scheme 210/8, which was approved and about which notice of coming into force was published in 1999.  According to scheme 210/8, 1,500 apartment units have been  planned in "East Mattityahu", on an area of 900 dunams which has been declared "state land".  The main, central part of scheme 210/8 lies in the municipal area of Modi'in Illit, although parts of it stray beyond that settlement's area of municipal jurisdiction.  De facto, until 2004, scheme 210/8 had not begun to be implemented. In the meantime, private developers of "East Mattityahu" and the Modi'in Illit Local Council began to advance an amended scheme for the construction of the neighborhood – scheme 210/8/1, which was supposed to make it possible to double the number of apartment units in the neighborhood to 3,000, by denser construction, while the area of the neighborhood would remain essentially similar to the area according to scheme 210/8.  In February 2004 the settlement subcommittee of the Supreme Planning Council of the Area of Judea and Samaria (hereinafter – "the settlement subcommittee") approved scheme 210/8/1 for deposit, and notice of deposit was published in August 2004.  However, during 2004, when scheme 210/8/1 was being considered by the planning authorities, contracting companies had already begun its implementation on the ground.  It turns out that the developers took the law into their own hands and began to build the neighborhood according to the future scheme 210/8/1 before it had come into force.  As a result, wide scale illegal building work was carried out in "East Mattityahu" starting in 2004.

 

6.             In September 2005, soon after the petition before us was submitted, scheme 210/8/1 was approved to come into force.  Note, in this context, that scheme 210/8/1 is divided into two parts: western phase A, and eastern phase B, including 1,082 apartment units.  In the phase A area building may begin after the approval of the scheme.  However, according to a decision of the Minister of Defense of August 2005, phase B cannot be developed and built in the first stage, and its marketing in the future will be conditional upon receiving additional approval from the Minister of Defense.  De facto, building took place in the western area of the "East Mattityahu" neighborhood, in which hundreds of apartment units were built in three zones: two zones of respondent no. 8 and a zone of respondents no. 3-5.  In one of respondent no. 8's zones, in which building had already begun in 2002, eight buildings have already begun to be inhabited, to various extents.  All of the buildings were constructed according to the planning in scheme 210/8/1 and not scheme 210/8, which was the scheme that was in effect at the time of their construction.

 

7.             Furthermore, as a result of the petition, the State Attorney's Office became aware of various faults in the proceedings to approve scheme 210/8/1, regarding, inter alia, the scheme's deviation from the area of Modi'in Illit's municipal jurisdiction.  In the framework of the preparation of the response to the petition, the State Attorney's Office instructed the respondents not to publish notice of scheme 210/8/1's coming into force, as it was of the opinion that planning proceedings should be commenced anew, from the stage of deposit.  Respondents also decided to reexamine claims of ownership of part of the land to which the scheme applies.  Against that background, an additional petition was submitted by petitioner and the "Peace Now" movement, focusing upon the planning aspect of the "East Mattityahu" neighborhood (HCJ 143/06 of January 4 2006).  In that petition, this Court was asked to annul the approval for coming into force which the settlement subcommittee had granted to planning scheme 210/8/1 in September 2005, and to order action necessary in order to enforce planning and construction law in "East Mattityahu".  As soon as the petition was submitted, an interim injunction was issued (on January 6 2006) ordering immediate halt of any building without a building permit taking place in the area of planning scheme 210/8 and the area of planning scheme 210/8/1.  The Court also ordered immediate cession of any activity to inhabit the buildings in the zone and prohibited transferring possession of additional apartment units in the zone.  Entry into and use of apartment units were also prohibited.  Later (on January 12 2006) an additional provision was added to the interim injunction, according to which all construction work taking place in the zone pursuant to building permits, whether pursuant to the original planning scheme (210/8) or the new planning scheme (210/8/1), was to be halted.  As a result of severe financial difficulty encountered by the Heftsiba company (respondent no. 13 in HCJ 143/06, and respondent no. 8 in the petition before us), a wave of squatting on the part of apartment purchasers occurred at the company's building sites, including the Heftsiba site in the "East Mattityahu" neighborhood.  As a result of that development, the Jerusalem District Court (Judge D. Cheshin) decided on August 6 2007 (in the framework of Bankruptcy Case 4202/07) that "at this point, purchasers are not to be evicted from apartments they entered". On that basis, the Supreme Court decided on August 27 2007, in its hearing of HCJ 143/06, that despite the existence of the interlocutory injunction, "at this point, and as long as all of the facts have not become clear regarding the Heftsiba company and the purchasers' chances of receiving the apartments they bought, or, alternatively, restitution of the consideration they paid for them, the status quo on the ground shall not be altered."  It was further determined that no action would be taken at this point to evacuate the apartment residents who began squatting in Heftsiba apartments from August 1 2007 until August 6 2007. 

 

8.             After the petition before us was submitted, the agencies of the State ordered the annulment of the planning proceedings of scheme 210/8/1 and ordered that they be started again from the very beginning.  Scheme 210/8/1 was redeposited.  That scheme included enclaves of private land belonging to Palestinians from the village of Bil'in.  The new scheme determined, regarding those enclaves, that they are not a part of the scheme, that any construction on or use made of the private enclaves shall cease, and that the status quo ante shall be reestablished by evacuating buildings, building material and any other refuse, and covering said area with garden soil.  In order to allow the initiators of the scheme to fulfill said precondition, work to reestablish the status quo ante in the private "enclaves" was excluded from the interim injunction.  The renewed planning scheme was approved for deposit on February 15 2006, notice of its deposit was published on March 3 2006 (in Hebrew and Arabic language newspapers), and objections to it were heard.  On July 3 2006 the settlement subcommittee made its decision regarding the objections.  Subject to a number of changes in the scheme, and fulfillment of additional conditions in the scheme's bylaws, the committee decided to recommend to the Supreme Planning Council that it carry the scheme into force.  On January 31 2007 the Supreme Planning Council made its decision to carry into force the new version of scheme 210/8/1.  After the decision to carry the scheme into force and after the changes required by the decision had been made in the scheme's provisions, notice of the scheme's coming into force was published in the Hebrew and Arabic press in February 2007.

 

9.             The route of the fence on Bil'in land has been discussed by this Court in a number of previous petitions.  After sequestration orders Tav/27/04 and Tav/40/04 were issued (and after their amendment in November 2004) the Bil'in and Saffa village council chairmen submitted a joint petition against the route of the fence (HCJ 11363/04).  In the framework of that petition an announcement stipulated by all the parties was submitted to the Court.  The stipulated announcement relates, inter alia, to two sections of the fence on Bil'in land: "section C" beginning at the boundary of the land of Bil'in and Saffa and continuing north until the Dolev riverbed, and "section D", from the Dolev riverbed until the boundary of the land of Bil'in and Harbata.  The announcement stated:

 

"C.           From the land of the villages of Saffa and Bil'in, to the path east of the single house [section C], the parties agree that work toward implementation of sequestration order Tav/40/04 shall be carried out.  The width of the area in which construction will carried out shall not, generally, exceed 50 meters.  In carrying out the work, an effort shall be made to minimize harm to agricultural crops, and to keep the route on the western part of the sequestration order zone.  The work shall begin only after the marking of the route on the ground, after respondents give petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, and after receipt of final approval by petitioners' counsel.

 

D.            From the path east of the single house to the boundary of the lands of Bil'in and Harbata [Section D], petitioners shall notify respondents, by December 12 2004 and after respondents have given petitioners' counsel the map of the planning scheme for the southeastern neighborhood of Modi'in Illit, their reply to the proposal which respondents presented to petitioners' counsel regarding alteration of the route."

 

In accordance with the procedural agreement between the parties, a survey in the field with counsel of the petitioners in HCJ 11363/04 (Ms. Atiyah, adv.) and with representatives of the village of Bil'in was held on December 22 2004.  During the survey Ms. Atiyah was given the map of scheme 210/8.  It appears, from the State's response to that petition, that despite what had been stipulated, Ms. Atiyah did not appear at a meeting with respondents regarding sections C and D and did not relay any written response regarding those sections.  At the opening of the hearing of said petition, it was relayed on behalf of Ms. Atiyah that the petitioners are rescinding their petition, and the petition was abated (on February 16 2005).  The petition having been abated, respondents began implementation of sequestration order Tav/40/04 (Boundary Alteration) and the erection of the fence.

 

10.          After just a few days a number of residents of Bil'in, represented by Ms. Atiya, adv., submitted a new petition (on February 21 2005; HCJ 1778/05).  That petition was based on the argument that the fence construction work had begun without them having been given the right to a hearing and to appeal.  The new petition did not mention the previous petition, which had been abated at the petitioners' request.  At the end of the hearing of that petition, the Court ordered the abatement of the petition due to unclean hands (on March 3 2005).  The Court wrote in the judgment:

 

"The fact of the existence – and abatement – of the petition in HCJ 11363/04 is essential and relates directly to the issue at hand.  Petitioners, and at very least their counsel, are presumed to be aware of the existence of that petition and the proceedings which took place in its framework.  In such circumstances, that lack of mention in the petition before us constitutes truly unclean hands, justifying the abatement of the petition.

 

Furthermore, considering the proceedings which took place in HCJ 11363/04, it appears that on the merits as well this petition should not have been submitted.  Petitioners' arguments (via the chairmen of the village councils and their attorneys) regarding the appropriate route in their areas of residence were heard and discussed in a detailed fashion in the framework of respondents' position in HCJ 11363/04, and they were given serious answers which even led to the stipulation of various procedural arrangements.  It is against that background that petitioners chose to retreat from their previous petition and to request its abatement.  The petitioners before us have not presented any justification for renewing the hearing of what are the very same issues, in the framework of their present petitions."

 

Additional proceedings relating to the route of the fence in Bil'in were in HCJ 2874/04.  That petition was originally against the route of the fence on land of the Village of Harbata, north of Bil'in.  On April 26 2005 a motion to amend the petition was submitted, in which petitioners requested the enjoinder of residents of the Village of Bil'in and to direct the petition against the route of the fence on land of the Village of Bil'in as well.  The Court decided to abate the motion to amend the petition "due to laches, due to unclean hands, and due to the fact that Mr. Shabita cannot request amendment of a petition that was submitted by others" (decision of June 14 2005).

 

The Petition and its Hearing

 

11.          The petition before us was submitted on September 5 2005, on behalf of the chairman of the Bil'in Village Council.  Petitioners request the distancing of the fence from the houses of the village, and from the agricultural lands of its residents.  When the petition was submitted, it was decided that it would be scheduled for hearing after judgment in the Alfei Menashe case (HCJ 7957/04 Ma'arabe v. The Prime Minister of Israel (yet unpublished, September 15 2005)), due to the legal question common to the two petitions, dealing with the effect of the Advisory Opinion of the International Court of Justice at the Hague.  The judgment in the Alfei Menashe case having been handed down, the parties were asked to submit their updated positions in the petition.  Respondents no. 3-6, real estate companies dealing in development and construction of the "East Mattityahu" neighborhood (hereinafter – the real estate companies) requested their enjoinder as respondents in the petition.  Petitioner was of the opinion that the enjoinder should be made conditional upon proof by the real estate companies of their rights in the land with which the petition deals.  The petition was heard on February 1 2006, before a panel consisting of President A. Barak and Justices D. Beinisch and E. Rivlin.  Respondents' counsel argued that the petition should be rejected in limine.  He noted that in the previous petitions as well, the respondents had clarified that the route was planned to protect the new neighborhoods to be constructed in Modi'in Illit, and that is within the authority of the military commander.  At the end of the hearing, an order nisi as requested in the petition was issued.  It was further decided to enjoinder the real estate companies, the Modi'in Illit Local Council and the Heftsiba company, which had also built in the "East Mattityahu" neighborhood, as respondents to the petition.  The Court did not see fit to issue an interlocutory injunction.  Nonetheless, it recorded the State's declaration that a gate at the northern edge of "section C" would not be built, and that said area would remain open for free passage until decision of the petition on the merits.

 

12.          After the affidavits of response were submitted, the petition was heard (on May 14 2006) by President A. Barak and Justices E. Rivlin and A. Procaccia.  Colonel (res.) Dan Tirza, who served as the head of the "Color Spectrum" Agency (dealing with the planning of the obstacle route in the "seamline area"), appeared before the Court.  Colonel (res.) Tirza provided a survey of the fence route and the considerations taken into account by the route planners.  Respondents' counsel once again argued for rejection of the petition in limine.  She also emphasized that the original scheme for "East Mattityahu" (210/8) was the basis for the route.  Its boundaries are nearly exactly like those of the new scheme (210/8/1).  The counsel for the real estate companies and the Modi'in Illit council voiced similar positions.  Petitioner's counsel claimed, against those arguments, that the expansion of the "East Mattityahu" neighborhood, in which only 80 families presently live, should not be considered.  Moreover, part of the construction work on the neighborhood was carried out without a permit, and part according to illegal building permits.

 

13.          At the request of petitioner, we held an additional hearing after the retirement of President A. Barak.  In that hearing (on February 18 2007) the parties once more presented their arguments and complaints regarding the route of the fence.  Shortly before the hearing we were informed that the Supreme Planning Committee had decided to carry new scheme no. 210/8/1 into force, and that notice of said scheme's coming into force had been published in the press.  Petitioner's counsel stated before us that at this time, the construction, de facto, is in the western part of the "East Mattityahu" neighborhood.  The eastern part of the scheme, which is to be built at a distance as close as 80 meters from the fence, is at a preliminary stage, prior to tenders and prior to development.  According to the provisions of the scheme, the implementation of the eastern part of the scheme is conditional upon approval by the Minister of Defense.  Respondents' counsel reiterated that the route was planned on the basis of scheme 210/8, and emphasized that the consideration behind it is a security consideration of defense of future residents.  Colonel Ofer Hindi, who presently serves as the head of the "Color Spectrum" agency, also appeared before us at the hearing, stating that an agricultural gate had been built on site, which minimizes the harm to the Palestinian residents and allows them to enter the "seamline area" in order to cultivate their lands.  The construction companies added that now, after approval of the new scheme no. 201/8/1, implementation of the plan to construct "East Mattityahu" is not merely a theoretical issue; it will take place with great speed.

 

14.          On May 8 2007, respondents submitted a request to change the status quo, according to which, as per their commitment, a gate was not built at the northern edge of "section C", which would remain, with their consent, open for free passage until decision of the petition.  They argued that maintaining the open crossing there is not necessary to fulfill the needs of the local farmers, and it constitutes a security risk and requires deploying a relatively large number of soldiers on site.  They thus wished to open the gate three times a day for one half hour, while prohibiting the Palestinians from being in that area at night.  On June 12 2007 we decided that opening the fence every day for an hour and a half, as requested by respondents, would worsen the harm to the residents of Bil'in and significantly detract from their access to their agricultural land and their ability to cultivate it.  Nonetheless, we stated that we accept respondents' position that leaving the gate open during all hours of the day, and especially at night, is not necessary.  Under such circumstances, wishing to minimize the danger to the soldiers stationed at the gate during the night, we determined that the Bil'in gate would remain open for free passage by Bil'in residents from 06:00 until 20:00, until decision of the petition.

 

15.          Note, to complete the picture, that in the meantime petitioner submitted an additional petition, revolving around the status of the property rights in the land upon which "East Mattityahu" is planned (HCJ 3998/06, of May 14 2006).  That was a petition for restrospective annulment of declaration no. 10/91 of January 15 1991 and declaration no. 20/90 of November 25 1990, by the Government and Abandoned Property Commissioner in the Judea and Samaria Area, in which certain areas of the lands of the Village of Bil'in were declared as government land.  It was argued that the declarations should be annulled, due to the fact that they were based upon an act of fraud – a "secret circular deal" between respondents no. 1-2 and respondent no. 4.  That petition was rejected on November 9 2006.  The judgment, by Rivlin J. (Barak P. and Procaccia J. concurring), stated, inter alia:

 

"we have reached the conclusion that a sufficient basis has not been laid before us to prove that a 'circular deal' indeed took place as alleged.  In other words, it was not proven that the declarations attacked in the petition were issued in order to bypass the proceedings determined by law for instilling land rights of the type discussed."

 

The Petitioner's Arguments

 

16.          Petitioner's central claim is that the fence route is not legal, as it was chosen for not security reasons, rather for the benefit of Modi'in Illit, which wishes to expand toward the area east of it.  Including hundreds of dunams east of the built-up area of Modi'in Illit was intended to include territory for future expansion of the settlement, upon territory contiguous with Israel.  The fence does not serve a military need.  It was claimed in the petition that the route of the fence follows the line of planning scheme 210/8/1, part of which is outside of Modi'in Illit's area of municipal jurisdiction, and not the topographic line, or the line of the settlement's houses, or any other line which could be considered to be a security line.  A considerable part of the route passes through the bottom of a slope, which certainly cannot be considered a strategically controlling area.  Petitioner notes that the scheme for the Modi'in Illit bloc also includes the agricultural land in the Dolev riverbed (between the "Naot HaPisga" neighborhood and the "East Mattityahu" neighborhood), which is private land belonging to Palestinian residents.  The "East Mattityahu" neighborhood is part of that scheme.  Thus, the roads in scheme no. 210/8/1 were planned as a part of a system of roads determined by the bloc scheme.  The fence route in its entirety in fact follows the boundaries of the bloc scheme.  Petitioner's concern is that respondents' intention is to take these areas over as well, in order to expand Modi'in Illit.

 

17.          Petitioners further claim that the route of the fence separates the Village of Bil'in from more than one half of its remaining land.  Presently on this land are thousands of olive trees, almond trees and vines.  The land also serves as pastures for sheep herds owned by the residents of the villages.  It constitutes the main source of livelihood for approximately 200 families in Bil'in.  Without it, these families are doomed to lives of poverty.  They further argue that in order to reach their land, the Palestinian residents will have to receive an entry permit into the closed area and pass a gate in the fence.  In light of the intent to construct the "East Mattityahu" neighborhood, the construction of the fence will apparently put an end to the cultivation of the land.  The fence in fact constitutes part of the tactic of taking over the cultivated land of the Village of Bil'in.  The petition also contains arguments against the procedure of declaration of Bil'in land as "state land".  Petitioner argues that it turns out, in retrospect, that the declaration procedure was apparently carried out with the Civil Administration's knowledge that the land is not abandoned or ownerless, and that there is a claim of purchase on the part of Jews.  The procedure was not legal, as the land does not fulfill the conditions determined in the declaration law, and since the declaration was intended to conceal the real essence of the deal. 

 

18.          Regarding preliminary arguments, according to petitioner, Bil'in residents' former counsel (Ms. Atiyah, adv.) signed the stipulations without consulting the residents and without their knowledge, and faulty steps were taken by no fault of their own.  Only in May 2005 did petitioner and the residents of the village find out about the stipulations which their counsel had signed on their behalf, and about the way she conducted the petitions and the reasons they were rejected.  As a result of the sequence of events to date, despite the multiple proceedings, the Court has not adjudicated the substantive questions which arise from the determination of the fence route, and the residents have not had their day in court.  Furthermore, petitioner only recently found out the truth about the motivation behind the determination of the route.  During the period in which the previous proceedings were being conducted, petitioner and the residents of Bil'in had no information regarding the plan to expand Modi'in Illit and to fit it to the route of the fence planned in the area.  The residents of Bil'in were confronted, he claims, by the Civil Administration's determined refusal of the request to give them copies of the Modi'in Illit planning scheme.  Viewing of the scheme was allowed only a few weeks before the current petition was submitted, as a result of a petition pursuant to the Freedom of Information Law which was submitted to the Court of Administrative Affairs in Jerusalem.

 

19.          Petitioner's legal argument is that the construction of the fence on land in Judea and Samaria is unconstitutional, and constitutes a violation of public international law.  The petition relies, inter alia, upon the Advisory Opinion of the International Court of Justice at the Hague (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion (International Court of Justice, July 9, 2004), 43 IL M 1009 (2004)).  According to that argument, the route was not chosen for security reasons, rather for purely political reasons, and is intended to annex territory for future development of Modi'in Illit to the State of Israel.  Thus it is argued that the fence is being constructed sine vires, or ultra vires.  It is further argued in the petition that the route of the fence is not proportional, as it causes harm of tremendous dimensions to the village and to the fundamental rights of its residents, including property rights, freedom of movement and the freedom to make a living.  It is also claimed that the fence could have been built in a way that would not usurp the land of petitioner and the residents of his village, or violate their rights.

 

Respondents' Position

 

20.          Respondents argue for rejection of the petition in limine due to intense laches, severely unclean hands on the part of petitioner and due to the existence of a valid agreement between respondents and petitioner.  Rejection of the petition on the merits is also requested.  Regarding laches, it is argued that petitioner was aware of the agreements signed by the attorney who was his counsel at the time, at the very latest, after the filing of the State's response to the motion to amend the petition in HCJ 2847/04.  The petition was submitted four months after petitioner knew, by his own admission, the facts regarding the agreements, and almost three months after the decision to reject the motion in HCJ 2847/04.  During that time the building of the fence was taking place in front of the eyes of the residents.  The delay changed respondents' position for the worse.  During those months various work took place in order to construct the fence.  A great amount of money was invested in constructing the fence.  Altering the route now will cause a severe and unreasonable delay in completing the fence, and will require investment of great additional resources.  Regarding section C, respondents argue that estoppel prevents petitioner from raising any arguments whatsoever, in light of the agreement with his counsel on his behalf, according to which the sequestration order in that section can be implemented.  Respondents note that although the agreement was not formally made, the continuation of the proceedings – which focused upon section D – clearly indicates the existence of agreement regarding section C.  Rejection in limine is requested also on the grounds of severely unclean hands.  The argument is based on the claim that in his petition, petitioner did not mention scheme 210/8, which has been in effect since 1999, focusing rather on scheme 210/8/1 which, at the time the petition was submitted, had not been approved.

 

21.          On the merits, respondents argue that the fence route is legal, and is in line with the provisions of international law and the caselaw of this Court.  Under the current security circumstances in the area, there is a necessary security need for the construction of the fence according to the route which has been determined.  The fence is a security means of the highest order, intended to defend the citizens of the State living in the Modi'in bloc, and the security of the State and its inhabitants.  According to respondent's line of thinking, in the framework of the determination of the fence route the military commander is authorized to consider new planning schemes for expansion of Israeli settlements.  The military commander is authorized to take new neighborhoods into account in the process of construction.  He is also authorized to consider valid planning schemes that have real chances of being implemented within a reasonable period, as there is no logic in building the fence and leaving new neighborhoods beyond it.  The weight that can be given to the existence of a planning scheme is not constant.  It is a derivative of the progress in implementing the valid planning scheme.  It depends both upon internal data regarding the population which the neighborhood is intended to serve and external data regarding the extent of harm to the Palestinian residents.

 

22.          In this case, in determining the route of the fence, the military commander took into account the need to defend the neighborhood which has been approved for construction pursuant to scheme 210/8, which has high chances of being implemented and in whose area construction has even begun, albeit with grand violations of the provisions of the scheme.  The planning scheme for its construction has been in force since 1999, and its western part is already partially built and inhabited, albeit with illegal construction, as it does not comply with the provisions of the effective scheme for its construction.  Also taken into account was the need to defend the "Naot HaPisga" neighborhood, which is now in advanced stages of construction.  As the aforementioned "East Mattityahu" neighborhood is to be built within the municipal boundaries of Modi'in Illit, and as under the circumstances of time and place there is a most reasonable chance that the fence will remain standing for a considerable number of years after the construction of the new neighborhood, there was nothing preventing the consideration of the fact of the planned construction of the new neighborhood in the framework of determining the route of the fence.  The fact that the developers of the "East Mattityahu" neighborhood took the law into their own hands and chose to commence illegal construction in the area of the neighborhood should not prevent the assigning of appropriate weight, in determination of the route, to the fact that a new neighborhood will be built on site.

 

The Real Estate Companies' Position

 

23.          The real estate companies also voice a series of preliminary arguments regarding severe laches and unclean hands, and claim reliance upon the agreement of December 15 2004 between petitioner and respondents, according to which construction will continue in section C according to the existing route.  They further claim that the relief requested in the petition is indefinite and all-encompassing, and that petitioner has not proven ownership of the relevant land and has not indicated concrete harm to any of the residents of Bil'in.  On the merits, the real estate companies argue that there is no justification for the alteration of the route of the fence.  According to them, they are the owners of the land to which planning scheme 210/8 applies, after the land was purchased legally, at full price, from its Arab owners, many years ago.  However, due to the concern that disclosing the documents of sale in public proceedings would endanger the lives of the sellers of the plots, the real estate companies refrained from attaching the documents which testify to that.  For that reason, claim the real estate companies, the State declared the purchased plots – at their request – as government land, and defined them as "private property under government administration".  A large number of village residents submitted an appeal of that declaration, however, the appeals committee rejected most of the appeals, including that of petitioner, and approved the declaration of the plots as government property, subject to the decision to remove a number of plots from the area declared.  According to the argument of the real estate companies, a large residential neighborhood is being erected on that land – the land of planning scheme 210/8 – which is an inseparable part of Modi'in Illit, and respondents are obligated to protect its residents and include its territory within the fence.

 

24.          The real estate companies further claim that the current route provides a reasonable, if not optimal, solution to the fence's security objectives, and that any movement of the fence westward will frustrate the original objective of the fence and endanger the residents of Modi'in Illit.  They claim that moving the fence westward will violate their proven rights unnecessarily and disproportionately.  In this context, the real estate companies are of the opinion that the present route also takes the fabric of life of the residents of Bil'in into consideration, and emphasize that this route distances the fence from the residents' houses, despite the fact that said distancing involves a concession of necessary topographically controlling points.  According to their argument, most of the land west of the route is owned by Jews; in most of it residential neighborhoods are being erected; there is no essential sign of the fabric of life of the Arab population on the ground; and although trees are planted in the Dolev riverbed, it is evident that the area has been neglected for years, is not taken care of and is not cultivated.  According to their argument, in that state of affairs, the proper balance of interests requires the erection of the fence along its present route, which properly balances between security of the inhabitants of Israel, and specifically of Modi'in Ilit, and the rights and fabric of life of the (Arab and Israeli) residents of the area, including the property rights of the real estate companies.

               

25.          Regarding the faults discovered in scheme 210/8/1, the real estate companies clarify that they had no intention to build without a permit or to show disrespect for the law.  They argue that they had every reason to assume that by the time work reached the relevant stages, they would already have building permits which reflect the new planning.  The suspension of the coming into force of scheme 210/8/1 by the State Attorney's office is what made the construction, technically, "illegal".  If events had followed their intended and expected route, as the Supreme Planning Council has always acted, the real estate companies would today have building permits, and all would be carried out according to law.  The real estate companies further argue that the building violations, to the extent that they indeed exist in the area of scheme 210/8, have no relevance to the route of the fence in the Village of Bil'in.

 

26.          Attached to the response of the real estate companies was the expert opinion of Major General (res.) Dr. Yom Tov Samiya, supporting their claims.  Major General Samiya opined that from the security standpoint, the location of the fence route constitutes the outer edge of the military commander's ability to consider the rights of the local Arab population on the one hand, and to provide security (albeit not optimal) to the residents of Modi'in Illit on the other hand.  The route allows control of the topographically controlling areas necessary for defending Modi'in Illit.  On the other hand stands the most slight harm to the fabric of life of the Palestinians, who will need to pass through an agricultural crossing for three weeks of the year in order to care for the trees and harvest the olives.  The location of the route, at a reasonable distance from the houses of the Israeli settlement, is the preferable situation in terms of the security aspect, as opposed to locating the route on territory which is relatively topographically inferior to Modi'in Illit and Bil'in.  In planning the route (which was altered after the Beit Sourik case), a series of controlling hills were already conceded, leaving them east of the fence.   If the hills are used by the Palestinians as controlling territory, the casualties will be among the Israeli forces patrolling along the fence.  Moving the route west will leave the houses of the "East Mattityahu" neighborhood and the "Naot HaPisga" neighborhood within the effective range of weapons in the possession of terrorist organizations in the area.

 

Discussion

 

27.          Decision regarding the legality of the security fence being erected in the Judea and Samaria area is made on the basis of a two-stage examination.  In the first stage the authority of the military commander is examined, and in the second stage, his discretion in employing his authority is examined (HCJ 1890/03 Municipality of Bethlehem v. The State of Israel, the Ministry of Defense, 59(4) PD 736, 747 (2005)).  The military commander's powers stem from the rules of public international law regarding belligerent occupation, which are entrenched mainly in the Regulations Concerning the Laws and Customs of War on Land, The Hague, 18 October 1907 (hereinafter – The Hague Regulations), the annex to Convention (IV) Respecting the Laws and Customs of War on Land. Those regulations reflect customary international law.  The military commander's authority is also entrenched in IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949 (hereinafter – the Fourth Geneva Convention).  In accordance with the laws of belligerent occupation, the military commander is authorized to order the erection of a security fence in the Judea and Samaria area on the basis of security-military considerations (Beit Sourik; Alfei Menashe; HCJ 5488/04 The a-Ram Local Council v. The Government of Israel (yet unpublished, December 13 2006) (hereinafter – a-Ram)).  He is authorized to take possession of land, including privately owned land, for that purpose.

 

28.          The military commander's authority arises only when the reason behind the decision to erect the fence is a security-military one.  "The military commander is not authorized to order the erection of the security fence if his reasons are political.  The security fence cannot be decided upon on in order to "annex" territory of the area to the State of Israel.  The objective of the separation fence cannot be the drawing of a political border" (Beit Sourik, at p. 828; see also Alfei Menashe, paragraph 15).  According to regulation 53 of the Hague Regulations, it is required that taking possession of property be for the needs of the army of occupation.  According to Article 52 of the Fourth Geneva Convention, it is required that taking possession of property be absolutely necessary by military operation.  The military commander's authority to erect a separation fence also entails authority to erect a fence for the protection of the lives and security of Israelis living in Israeli settlements in the Judea and Samaria area, even though the Israelis living in the area are not "protected persons" as that term is defined in Article 4 of the Fourth Geneva Convention (see Alfei Menashe, paragraphs 18-22; HCJ 3680/05 The Teneh Settlement Committee v. The Prime Minister of Israel (yet unpublished, February 1 2006) paragraphs 8-10, hereinafter – Teneh; HCJ 1998/06 The Beit Arieh Local Council v. The Minister of Defense (yet unpublished, May 21 2006), hereinafter – Beit Arieh; HCJ 1348/05 The Mayor of Salfit v. The State of Israel (yet unpublished, July 17 2006), paragraph 20, hereinafter – Salfit).  The question of the legality of the Israeli settlement in the area does not reflect upon the duty of the military commander to defend the lives and security of the Israeli settlers (Alfei Menashe, at paragraph 20). 

 

29.          The second stage in the examination of the legality of the fence is the examination of the military commander's discretion.  The military commander is not at liberty to make any decision whatsoever that fulfills legitimate security needs.  When determining the route of the fence, he must consider and balance a number of considerations.  The first consideration is the security-military consideration.  By force of that consideration, the military commander is permitted to take into account considerations regarding the defense of the security of the State and the security of the army.  These considerations are considerations of military and security expertise, regarding which the military commander is granted wide discretion.  It is he that is responsible for security.  He has the security expertise, knowledge and responsibility.  The Court grants great weight to his stance (see Beit Sourik, at paragraph 46; HCJ 258/79 Amira v. The Minister of Defense, 34(1) PD 90, 92 (1979); HCJ 390/79 Duikat v. The Government of Israel, 34(1) PD 25 (1979)).  Accordingly, it has been said in our caselaw that "… we do not turn ourselves into experts in security affairs. We do not substitute the security considerations of the military commander with our own security considerations.  We take no position regarding the way security affairs are run.  Our task is to guard the borders of, and to maintain the boundaries of, the military commander’s discretion" (Beit Sourik, at pp. 842-843).  The second consideration which the military commander must consider is the welfare of the local population who are "protected persons".  The military commander must protect the human rights accepted in international law as rights of the local population (see Alfei Menashe, at paragraph 24; Teneh, at paragraph 10; Beit Arieh, at paragraph 8).  The third consideration is the safeguarding of the human rights of the Israelis living in the area (see HCJ 1661/05 The Gaza Coast Regional Council v. The Prime Minister, 59(2) PD 481, 560 (2005), hereinafter – Gaza Coast Regional Council; Alfei Menashe, at paragraphs 18-22; Teneh, at paragraphs 8-10; Beit Arieh, at paragraph 8).  That duty draws from the rules of international law and the rules of Israeli law.  In determining the essence of the rights of Israelis living in the area, the character of the area under belligerent occupation and the forces of the military commander are to be considered.

 

30.          The human rights to which the "protected persons" and the Israelis in the area are entitled are not absolute.  As all human rights, they are relative.  They can be restricted.  Some of the restrictions stem from the need to consider the rights of others.  Some of the restrictions stem from the security interest.  The military commander must balance the various considerations, which at times clash with each other.  A central standard in this balancing is "proportionality", which is examined in a three part test.  The first test determines that a link of fit is needed between the objective and the means.  The second test determines that among the means employable in order to realize the objective, the means which causes the least harm should be employed.  The third test determines that the damage caused to the individual by the employed means should maintain a proper proportion to the benefit stemming for it.  Regarding the three components of the proportionality test, it has been noted that "not infrequently, there are a number of ways that the requirement of proportionality can be satisfied. In these situations a 'zone of proportionality' must be recognized (similar to a 'zone of reasonableness'). Any means chosen by the administrative body that is within the zone of proportionality is proportionate" (Beit Sourik, at p. 840; see also Alfei Menashe, at paragraph 30).

 

The Legality of the Fence on Bil'in Land – the Outline of the Discussion

 

31.          We shall commence our discussion of the legality of the fence on the land of Bil'in with the examination of respondents' preliminary arguments.  Then we shall proceed to examination of the question whether the fence on Bil'in land was erected within the military commander's authority.  That discussion will examine the reasons for the construction of the fence beside Modi'in Illit.  After the examination of authority, we shall progress to examination of the scope of the harm to the local residents, and examine whether that harm is proportional.  We shall conclude our discussion with an examination of the relief which is called for in light of the entire legal analysis.

 

The Preliminary Arguments

 

32.          In their responses, respondents and the real estate companies raise three preliminary arguments: laches, unclean hands and the existence of an agreement with petitioner regarding "section C" of the fence.  Petitioner's counsel notes, in response, that before the petition was submitted, petitioner and the residents of Bil'in had no information regarding the plans for expansion of Modi'in Illit or regarding their fit with the planned fence route in the area.  Only shortly before the petition was submitted did he become aware of scheme 210/8/1 and the illegal construction.  Nor did petitioner know at the time about the scheme for Modi'in Illit.  Thus, petitioner should not be considered to have delayed the filing of the petition, to have unclean hands, or to be silenced by estoppel due to the agreement with his counsel in the previous petitions.  Petitioner's current counsel further claimed in the hearing before us that since the petition was submitted, additional facts have been discovered, justifying, in and of themselves, the reopening of the discussion of the issue.

 

33.          In our opinion, the preliminary arguments cannot lead to the rejection of the petition.  We accept petitioner's argument that the previous contacts and acts regarding the fence at Bil'in took place with only partial information regarding the planning situation of the "East Mattityahu" neighborhood, about the construction work de facto and about the considerations behind the planning of the fence route.  As it appears from the material before us, petitioner's previous counsel had been presented with scheme 210/8 in the past, but not with scheme 210/8/1, according to which construction was actually being carried out.  Thus, great weight is not to be assigned to the procedural agreement regarding "section C" (adjacent to scheme 210/8/1), which did not even reach the status of a formally binding agreement.  Furthermore, in the State's response to HCJ 11363/04, the two new neighborhoods of Modi'in Illit were mentioned only generally, without note of planning scheme numbers. Nor was the name of the neighborhood of "East Mattityahu" mentioned in the response, rather only the names "Naot HaPisga" and "Or Sameach" (paragraph 26 of the State's response to HCJ 11363/04 of January 8 2005.  Moreover, the State's response contained no clue of scheme 210/8's deviation from Modi'in Illit's area of municipal jurisdiction or the construction taking place in the "enclave" of private Palestinian land.  In its response, the State even emphasized that "the land located within the boundaries of the planning scheme are, necessarily, State lands or lands purchased by Israelis" (paragraph 15 of the State's response to HCJ 11363/04 of January 9 2005).  Only as a result of the submitting of the current petitions did the severe faults in scheme 210/8/1 come to light, requiring wide scale amendments and new approval proceedings.  Imprecision was also found in additional information presented before the Court.  Thus, for example, the figure stated by respondents regarding the scope of the land owned privately by Palestinians remaining on the "Israeli" side of the fence rose by 500 dunams, to 678 dunams.  Under such circumstances, when petitioner confronted difficulties in clarifying the relevant basis for the petition; when the data presented before his counsel and before the Court did not reflect the full picture; due to the substantive faults that were discovered over time regarding construction without an approved planning scheme; and due to information regarding the detailed planning scheme which was not relayed – the preliminary arguments raised by respondents and the real estate companies are not to be accepted.  Even if there is fault in the fact that the petition before us does not mention planning scheme 210/8 (which is the formally valid one), and that the arguments revolved around scheme 210/8/1 (according to which the construction was carried out de facto), due to the intensity of the faults discovered in the conduct of respondents and the real estate companies, I am not of the opinion that such a fault can lead to the rejection of the petition in limine, without discussion of it on the merits.

 

The Authority of the Military Commander

 

34.          We shall thus turn to the first component of examination of the legality of the fence, which is the authority component.  The question is whether the reason behind the route of the fence on Bil'in land is a security-military reason, or a political reason as claimed in the petition.  Using the tools at our disposal, we examined the motivation behind the erection of the fence.  We cannot accept the argument that the objective of the fence is to annex territory of the Judea and Samaria area to the territory of Israel and to the settlement of Modi'in Illit.  According to the factual basis which has been laid before us, the motivation for constructing the security fence in the area relevant to the petition is a security one.  The principled decision to construct the fence did not arise as a political idea of annexing territory, rather stemmed from military-security needs, and as a necessary means for defending the State and protecting its citizens.  The decision to construct the fence north and east of the Modi'in bloc and the settlement of Modi'in Illit was made against the background of the reality of severe terrorism which has plagued Israel since September 2000 and created a necessary security need to employ means to protect the lives and wellbeing of the citizens of Israel.  In the framework of those means, the government decided upon the erection of the security fence, whose objective is to frustrate and prevent infiltration of terrorist activity from Judea and Samaria into Israel.  We have already ruled in our caselaw that at the foundation of the decision to construct the fence is a security need, and not a political motivation (Beit Sourik, at p. 830; see also Alfei Menashe, at paragraph 100).

 

35.          Nonetheless, in the case before us it is clearly apparent that the determination of the fence route was significantly affected by the plans to erect new neighborhoods east of Modi'in Illit.  To the extent that the planning schemes considered in determining the route were in advanced stages of implementation and inhabitation, their consideration does not present difficulty, for various reasons.  Thus it is regarding the "Naot HaPisga" neighborhood which is being built according to a valid planning scheme.  Hundreds of apartment units have already been built and have been partially inhabited in that neighborhood.  That neighborhood is part of Modi'in Illit and is in need of defense just like it.  Thus, the fact that one of the considerations in planning the route was the defense of the "Naot HaPisga" neighborhood does not derogate from the authority of the military commander.  However, it turns out that an additional dominant consideration in planning the route was the defense of the "East Mattityahu" neighborhood.  Due to the planning situation of the "East Mattityahu" neighborhood, and the decisive weight which the military commander granted the defense of this future neighborhood, difficulty arises regarding the legality of the route that takes that consideration into account.  As is known, the planning of the route for the security fence should not be based on the desire to include, on the "Israeli" side of the fence, territory intended for expansion of settlements, specifically when the planning schemes are not about to be implemented in the near future (see Alfei Menashe, at paragraph 113; Salfit, at paragraph 29; HCJ 2732/05 The Chairman of the Azoun City Council v. The Government of Israel (yet unpublished, June 15 2006)).  Regarding the "East Mattityahu" neighborhood, it turned out that scheme 210/8/1 replaced, de facto, scheme 210/8 which had been in effect since 1999 but had not been implemented.  The route of the fence thus took into account a planning scheme which had been abandoned, prior to the approval of the new planning scheme.  In that state of affairs, one could not continue to rely on the original planning scheme, which had been abandoned by the developers and the local government, in order to justify the fence route.  It should be emphasized that due to the temporary nature of the fence as a security measure (Alfei Menashe, at paragraph 100), the planning of the route cannot include considerations related to invalid planning schemes, or future schemes which neither have been realized nor are expected to be realized in the near future.  Today as well, despite the fact that scheme 210/8/1 has passed the new approval proceedings, due to the fact that implementation of phase B (the eastern part) is conditional upon approval of the Minister of Defense, there is great doubt whether the fence route can be based upon the desire to include the neighborhood, in its entirety, west of the fence.  The planning aspect of the "East Mattityahu" neighborhood is complex.  It has undergone upheavals since approval of scheme 210/8 and since the planning of the fence route.  The planning scheme's provisions are also complex.  Due to that complexity, and due to the conclusion we have reached on the question of proportionality, we refrain from deciding the question whether the fact that the "East Mattityahu" neighborhood was a decisive consideration in the planning of the route leads to the conclusion that a fault occured regarding the military commander's very authority to order the erection of the fence on Bil'in land, or whether it should be determined that it is a fault in discretion, as opposed to lack of authority.  We thus assume, for the sake of discussion, that the construction of the fence was within the authority granted to the military commander.  We shall progress, then, to the examination of the question whether the use of the authority granted to the military commander was proportionate.

 

The Proportionality of the Route

 

36.          The fence route harms the residents of Bil'in.  That harm is caused as a result of the sequestration of the land for the construction of the fence itself, uprooting of trees located along the route, and sealing off of cultivated agricultural land on the "Israeli" side of the fence.  The fence route takes up 260 dunams.  In addition, the route detaches the residents of Bil'in from hundreds of dunams of private land and cultivated agricultural land.  That land is planted with olive trees, grapevines and almonds, and is also used as grazing land for the sheep herds of the village residents.  For many of the residents of Bil'in it is the source of their livelihood.  Access to this land will be restricted to a crossing at an agricultural gate for permit holders, with all the difficulties that entails.  Respondents do not deny the harm to the residents of Bil'in.  However, their position is that the harm is proportional, due to the necessary security need which includes, in their opinion, protection of the residents who will live in the new neighborhoods east of Modi'in Illit, including the two phases of the "East Mattityahu" neighborhood, a need which can be fulfilled, according to their argument, only by erecting the fence along the route on which it has been constructed.  Respondents note in this context that they intend to lessen the harm to the residents of Bil'in, and that they are also willing to pay compensation and regular payments for use due to the seizing of the land for construction of the fence.

 

37.          Is the harm to the residents of Bil'in proportional?  It appears that the fence withstands the rational link test.  The fence realizes the security objective behind the decision to construct it, which is separation between the Israeli settlements and the Palestinian settlements in the Judea and Samaria area, and protection of Israelis from terrorist attacks.  Does the route of the fence withstand the second subtest – the least harmful means test?  It was claimed before us that the security objective can be attained by using an alternative route which would be closer to the houses of Modi'in Illit, on the basis of the existing fence of the settlement.  At the hearing before us, petitioner further claimed that even if the desire is to include the houses which have been built in the "East Mattityahu" neighborhood on the "Israeli" side of the fence, the fence can still be moved west and the harm to the residents of Bil'in can be reduced.  Respondents' stance is that there is no other reasonable means that can attain the necessary security objective for which the fence was built, while harming the residents of Bil'in to a lesser extent.  That position is based upon their approach, according to which the security objective is defending the residents who will live in the future in the "Naot HaPisga" and "East Mattityahu" neighborhoods.  That position can be accepted, to the extent that it relates to the neighborhood of "Naot HaPisga" which is in advanced stages of construction and inhabitation.  That is not the case regarding "East Mattityahu".  As it appears from our discussion, the route based upon the planning scheme for the construction of "East Mattityahu" raises substantial difficulties.  The point of departure at this time for examining the route of the fence must thus be, as aforementioned, scheme 210/8/1, both in terms of its planning status and provisions, and in terms of its realization de facto.  Planning scheme 210/8/1 is divided into two parts.  Phase A (the western phase) can be realized when the planning scheme comes into force.  Development and marketing of phase B (the eastern phase), however, is conditional upon approval of the Minister of Defense.  It is uncontroversial that more than forty buildings have been built in the "East Mattityahu" neighborhood, including hundreds of apartment units.  Tens of apartments have already been inhabited, but the construction is solely in the western part of the neighborhood.  In the eastern part no development or construction work has been carried out.  That part is yet far from implementation, both normatively and practically.  The future implementation of phase B is not certain whatsoever.  Under such circumstances, we cannot accept the argument that defending the eastern part of the "East Mattityahu" neighborhood is a necessary security objective.  Regarding the eastern part, it is but a future need.  Considering the lack of certainty regarding construction of phase B of the neighborhood, and considering the temporary nature of the fence, it is not at this time absolutely necessary by military operation.  Furthermore, as detailed below, it seems that due to the desire to ensure the future construction of the eastern neighborhood, the fence route was determined in a place which lacks security advantages.

 

38.          Thus, the question requiring decision is whether there is an alternate route that provides protection to the houses being built in the western part of "East Mattityahu" whose harm to the Palestinian residents is lesser.  Respondents did not explain why the security objective behind the decision to construct the fence cannot be attained via a route that would circumvent the western part of "East Mattityahu" but leave Palestinian land in the Dolev riverbed and additional land, as well as the "enclaves" in scheme 210/8/1, outside the fence.  Respondents did not relay data regarding the distance between the fence route and the houses which have already been built in the "East Mattityahu" neighborhood.  Nor was data relayed regarding the distance between the fence route and the boundary of phase A of "East Mattityahu" as it appears from the aforementioned.  Given the factual basis as it was presented to us, the current route of the fence also leads one to wonder about the security advantage it provides.  It is uncontroversial that the route passes mostly through territory which is topographically inferior both to Modi'in Illit and Bil'in.  It leaves a number of hills on the Palestinian side and two hills on the Israeli side.  It endangers the forces patrolling the route.  Against the background of the security outlook presented to us in many other cases, according to which it is important from a security standpoint to construct the fence on topographically controlling territory, the current route leads one to wonder.  In general, the military commander presents the possession of controlling hills as a significant security advantage in many cases regarding fence route planning, but in this case a route has been determined that is at least partially on territory which is inferior vis-à-vis the hills.  This route cannot be explained by anything save the desire to include the eastern part of "East Mattityahu" west of the fence, otherwise it is doubtful whether there is a security-military reason for determining the route of the fence where it is now.  Respondents do not even deny that, stating expressly in their arguments that the route was chosen according to the security objective, including protection of the new neighborhoods to be built in the future, and that the distances of the route from the Israeli settlements were measured in accordance with the lines of the future planning scheme, and not according to existing construction.  Rejection of "option A", which was intended to exclude the Dolev riverbed from the "seamline area" was reasoned by respondents by the argument that "'option A does not provide an appropriate security solution for the residents of the new neighborhoods and the residents of Modi'in Illit, due to its proximity to the housing in the new neighborhoods".  It is to be remembered, as aforementioned, that the intention to develop the eastern part of "East Mattityahu" in the future does not even constitute a consideration to be considered at this point.  Under such circumstances, we have not been persuaded that it is necessary, due to security-military reasons, to maintain the present route that passes through Bil'in land.  We have not been persuaded that without considering planning scheme 210/8 in its entirety, there is no appropriate security alternative for construction of the fence for protecting the residents of Modi'in Illit.  It appears to us that against the background of respondents' clinging to the original scheme 210/8, no detailed examination was made of an alternate route that can ensure the security of the residents in the western part of "East Mattityahu" with less harm to the residents of Bil'in.  All the alternatives considered by respondents were rejected for security reasons regarding the defense of the new neighborhoods, including the two phases of the "East Mattityahu" neighborhood, and in fact the military commander did not even examine any possibility which does not consider, for example, the future phase B of the "East Mattityahu" neighborhood.  It must be remembered that moving the route westward will apparently lead to the construction of the fence on the territory of planning scheme 210/8.  That territory is mostly "state land" and not privately owned Palestinian land, a fact that will also reduce the harm to the Palestinian residents.  Respondents must reconsider the current route, and examine the possibility of an alternate route that is not based upon defending phase B of "East Mattityahu".

 

39.          We have not overlooked the real estate companies' claims that moving the fence west will lead to a violation of their property rights and their economic expectations.  However, these arguments cannot derogate from the conclusion that the respondents must reexamine the route, for a number of reasons.  First, there is a gap between the respondents' stance, according to which the territory upon which the "East Mattityahu" neighborhood is planned to be erected is "state land", and the real estate companies' stance according to which it is private land purchased by them or for them.  In accordance with the ruling of this Court in HCJ 3998/06 Yassin v. The Military Commander in the West Bank (yet unpublished, November 9 2006), the land to which planning scheme 210/8 applies has been declared as government land on the basis of it being "state land" and not on the basis of a claim of ownership by private entities.  That declaration does not, in and of itself, determine or create rights of ownership in the land.  To date there has been no substantive law determination of property rights held by any of the real estate companies.  The discussion of the fence route itself is not the fitting procedural framework to clarify the rights of ownership.  Second, even if we assume for the sake of the discussion that the real estate companies are the owners of the plots of land to which planning scheme 210/8 applies, that cannot prevent moving the fence west.  As security needs are likely to require harming the land of the local residents and their use of it, so are they likely to also require harming land of Israelis and their ability to use it (see, e.g., HCJ 5495/06 Hevrat HaKeren L'Yad Midreshet Eretz Yisrael v. The Minister of Defense (yet unpublished, August 15 2006)).  The proportionality rules in planning the fence route are likely also to leave Israeli residents and Israeli assets on the "Palestinian" side of the fence (see, inter alia, Teneh, HCJ 399/06 Sussia – Agricultural Cooperative Society for Community Settlement Ltd. v. The Government of Israel (yet unpublished, July 6 2006); a-Ram; Bir Nabala; HCJ 1844/06 Rinawi v. The Prime Minister (yet unpublished, June 15 2006)).  The balancing between the various interests – security needs, the rights of the Palestinian residents, and the rights of the Israelis – must be performed by the military commander in the framework of the reexamination of the fence route.

 

40.          In summary, we have not been persuaded that the second subtest of proportionality has been fulfilled in the fence route through Bil'in land.  We have not been persuaded that it is absolutely necessary by military operation to preserve the existing route of the fence which passes through topographically inferior territory on Bil'in land and that there is no worthy security alternative for construction the fence in order to protect the residents of Modi'in Illit.  Respondents must reconsider the existing route and examine an alternative route that can ensure the security of the residents in the western part of "East Mattityahu" and whose harm to the residents of Bil'in will be lesser.  We are aware of the fact that such alteration cannot be made in a day, as it requires taking down the existing fence and building a new fence along certain parts of the route.  Due to the continuing harm to the residents of Bil'in, respondents must perform the reexamination within a reasonable period of time.

 

41.          Due to our determination regarding the second subtest, we could have left to future decision the question whether the fence route fulfills the third proportionality test – the test of proportionality stricto senso.  However, we see fit to state that due to the entirety of the data and the considerations we discussed above, the fence route does not withstand the third proportionality test either.  That test examines the question whether the fence route's harm to petitioners is of proper proportion to the benefit which the construction of the fence on the chosen route entails.  In this case, the chosen route causes severe harm to the residents of Bil'in.  The harm is caused by the seizure of land for constructing the fence, uprooting of trees located along the route, and trapping agricultural land on the "Israeli" side of the fence.  As aforementioned, the route of the fence separates the village of Bil'in from a large part of the land still belonging to the village.  The route of the fence itself takes up approximately 260 dunams; approximately 1,700 additional dunams of its land according to the British Mandate distribution of the land, more than 670 of which are privately owned by residents of Bil'in, remain on the western side of the fence.  On this land there are currently thousands of olive trees, almond trees and grapevines.  The land is also used as grazing land for the sheep herds owned by residents of the village.  They are the main source of income for approximately 200 families in Bil'in.  Respondents do not deny the harm to the residents of Bil'in, yet they are of the opinion that the harm is reasonable and proportional.  They argue that the harm to the residents of the Village of Bil'in is proportional to the necessary security need to defend the inhabitants of Israel in general and the residents of the Modi'in bloc specifically.  We cannot accept that stance.  The construction of the fence on part of the land of Bil'in, and restricting the access of the residents of Bil'in to substantial additional parts of their land, by erecting checkpoints and an agricultural fence for permit holders only, create significant difficulties for the residents of Bil'in, and substantially harm the fabric of their lives.  And on the other hand, the security benefit expected from the present route, which today defends the territory upon which construction has not been carried out, is not comparable to the harm to the "protected persons".  Thus, the chosen route deviates from the balance between security needs and the needs and welfare of the residents of Bil'in.  Although we accept respondents' argument that choosing the route adjacent to the houses of Modi'in Illit does not provide a fitting security solution, respondents' stance was formulated in accordance with the boundaries of the future planning scheme of the "East Mattityahu" neighborhood, and not according to the existing construction on the ground.  As we ruled above, the existence of an intention to develop the eastern part of "East Mattityahu" in the future does not constitute a consideration that can be taken into account at this point, and thus it appears that the harm to the local residents can be lessened by choosing an alternate route which will not take into account territory intended for the future construction of phase B of the "East Mattityahu" neighborhood.  

 

42.          As mentioned above, in the hearings before us, data regarding the proper alternate route to replace the fence route attacked in the petition was not presented to us, and in fact such a route was not even examined by respondents.  Thus, we have decided to make the order nisi an order absolute, as follows: Respondents no. 1 and 2 must, within a reasonable period of time, reconsider an alternative to the route of the separation fence on Bil'in land, which will harm the residents of Bil'in to a lesser extent, and leave the cultivated land on the east side of the fence to the extent possible; in this context, the alternative is to be examined such that the territory of phase A of "East Mattityahu" will remain on the west side of the security fence, whereas the agricultural land in the Dolev riverbed and the land planned for future construction of phase B of the "East Mattityahu" neighborhood will remain on the east side of the fence.  Until completion of the examination of the alternate route, the interlocutory injunction of June 12 2007 shall remain in effect, such that the Bil'in gate shall remain open to passage by Bil'in residents from 6am to 8pm. 

 

Vice President E. Rivlin:

 

I concur.

 

Justice A. Procaccia:

 

I concur.

 

Decided as per the judgment of President D. Beinisch.

 

Given today, 21 Elul 5767 (September 4 2007).