Administrative Law

 

 

 

 

 

Petition granted in part.

28 Iyyar 5765.

6 June 2005.

 

 

CrimFH 8613/96

 

State of Israel

v.

Jabarin

 

The Supreme Court Sitting as the Court of Criminal Appeals

[November 27, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, Y. Kedmi, D. Dorner J. Türkel

 

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

 

A further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel on October 20, 1996.

 

Facts: A further hearing on the judgment of the Supreme Court in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel in which the appellant was convicted of an offense under section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 for an article he had published.  This further hearing addresses the question whether the construction of section 4(a) of the Prevention of Terrorism Ordinance requires a causal connection   between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication, for a conviction.  The court further addresses the question whether section 4(a) of the Prevention of Terrorism Ordinance relates only to “acts of violence” of a terrorist organization or to any “acts of violence”.

 

Held: The Court held in an opinion by Justice T. Or that section 4(a) relates to acts of violence of a terrorist organizations and the words of praise and encouragement relate to acts of violence of a terrorist organization.  Justice Or further held that the words and praise and encouragement in the publication which was the subject of the conviction do not constitute acts of violence of a terrorist organization.  Therefore, the Court held that the defendant was to be acquitted of the offense under section 4(a) of the Ordinance.

Justice Y. Kedmi in a separate opinion was of the view that the further hearing should have been denied.  Justice Kedmi agreed with the construction given to section 4(a) in the Elba case [2], as it was adopted by the Justices in the panel in the first hearing of this matter.  Justice Kedmi was therefore of the opinion that the appellant’s conviction should have been upheld.  Justice Kedmi further stated that even according to the narrower construction of section 4(a), the appellant’s conviction should have been upheld as the actions for which the appellant showed support, also meet the requirements of section 4(a) when narrowly construed.   

Vice-President S. Levin in a separate opinion stated his general agreement with Justice Or and disagreed that section 4(a) is to be interpreted as referring to “acts of violence” of a terrorist organization alone, but rather should include the type of violent activity that characterizes terrorist organizations.  In his view the appellant’s article satisfied this definition and therefore the conviction should have been upheld.

Justice E. Mazza in a separate opinion was of the view that the appellant’s conviction should have been upheld and referenced his judgments in CrimA 2831/95 Elba v. State of Israel and in CrimA 4147/95 Jabarin v. State of Israel which was the subject of the further hearing.

 

 

For the petitioner—Dan Yakir

For the respondents —Talya Sasson, Eyal Yannon

 

Legislation cited:

Prevention of Terrorism Ordinance 5798-1948, ss. 1, 2, 3, 4, 4(a), 4(b), 4(c), 4(d), 4(e), 4(f), 4(g).

Penal Law 5737-1977, ss. 136(c), 144B(a), ch. H, sections A, A1.

 

Regulations cited:

Emergency Regulations for Prevention of Terrorism 5708-1948

 

Israeli Supreme Court cases cited:

1. CrimA 4147/95 Jabarin v. State of Israel (not yet reported).
2. CrimA 2831/95 Elba v. State of Israel IsrSC 50(5) 221.
3. HCJ 58/68 Shalit v. Minister of Interior IsrSC 23(2) 477.
4. CrimA 317/63 Tzur v. Attorney General IsrSC 18(1) 85.
5. CrimA 697/98 Susskin v. State of Israel IsrSC 52(3) 289.
6. CA 2000/97 Lindorn v. Karnit, Fund for Compensation of those Injured in Traffic Accidents IsrSC 55(1)12.
7. CrFH 1789/98 State of Israel v. Benyamin Kahane (not yet reported).
8. CrimA 6696/96 Kahane v. State of Israel IsrSC 52 (1) 535.
9. CrimA 401/79 Lamdan v. State of Israel IsrSC 34(4) 46.

 

Israeli books cited:

1. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993)

 

Foreign books cited:

1. D.E. Long The Anatomy of Terrorism (New-York, 1990).

 

Jewish law sources cited:

1.  Ecclesiastes 8, 8.

 

 

JUDGMENT

Justice T. Or

A  further hearing on the judgment of the Supreme Court (Justices E. Goldberg, E. Mazza, and Y. Kedmi) from October 20, 1996 in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] (hereinafter: “the Jabarin case [1]”).  In the judgment the appellant (hereinafter: “Jabarin”) was convicted of the offense established in section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 (hereinafter: “Prevention of Terrorism Ordinance” or “the Ordinance”) of support of a terrorist organization.  This further hearing revolves around the question of the construction of this offense.  The special importance of the issue stems from its ramifications for freedom of expression, as this freedom retreats within the borders of the deployment of this offense.

The Facts and the Processes

1.  Over the course of the years 1990-1991, Jabarin, a reporter from Umm El Fahm published three articles.  In the third article which, as we shall clarify below, was the only article that remained relevant to our matter, Jabarin wrote, among other things:“Truth be told, I will tell you my friend, that whenever I said: ‘hurray’, ‘hurray’ and threw a stone I was overwhelmed by the feeling that victory was calling us: ‘continue to throw, increase the patience, contribute and insist more, and the dawn will come which you have been awaiting for so long’ I will not deny my friend, that whenever I shouted: ‘hurray, hurray’ and threw a Molotov cocktail I feel that I am adorned in majesty and splendor, I feel that I have found my identity and that I am taking part in defending that identity and that I am a person worthy of leading a respectable life.  This feeling awakens within me beautiful feelings.”Consequent to the publication of the three articles Jabarin was charged with support of a terrorist organization, an offense under section 4(a) of the Prevention of Terrorism Ordinance.  This offense establishes:

“4. A person who:

(a)  Publishes either in writing or orally praise of, sympathy for, or encouragement of acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence;

. . .

will be prosecuted and if found guilty will be liable for imprisonment of up to three years, or a fine of 1000 Israeli lira, or both.”

The Magistrate’s court convicted Jabarin of the offense attributed to him.  Jabarin appealed to the District Court.  His appeal was denied.  The applicant filed leave to appeal to this court and was granted leave as requested.  In the framework of consideration of the appeal, the respondent informed the court that it agrees to the acquittal of the applicant for his conviction as far as it relates to the first two articles he published, however, it supports his conviction as to the third article.  In reliance on the case law decided in CrimA  2831/95 Rabbi Ido Elba  v. State of Israel  [2] (hereinafter: “the Elba  Case”) as relates to the construction of section 4(a) of the Prevention of Terrorism Ordinance, the Court denied Jabarin’s appeal of his conviction for publication of the third article.

Jabarin filed an application for a further hearing on the judgment.  In his decision the President determined that it would be proper to grant the application and hold a further hearing on the question:

“whether the interpretation of section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 requires that there exist a causal connection   -- and if so what is it – between the publication of the words of praise, sympathy, or encouragement and the risk of the occurrence of acts of violence pursuant to the publication.”

On February 16, 2000 we asked the parties to relate, by way of written summations, to an additional question and that is: whether section 4(a) of the Prevention of Terrorism Ordinance   relates to any “acts of violence” or only to “acts of violence” of a terrorist organization.   As far as I have been able to ascertain, this question has not yet arisen and has not been considered until the proceedings in this case.

The Positions of the Judges as to the Construction of Section 4(a) in the Elba [2] and Jabarin [1] Judgments

2.  The further hearing before us in fact focuses on the Jabarin case [1], however, its foundations are anchored in the case law regarding section 4(a) of the Prevention of Terrorism Ordinance   in the Elba judgment [2].  The Elba judgment [2] was handed down by a special panel of seven judges.  The core of the discussion in the Elba case [2] surrounded the offense of incitement to racism established in section 144B (a) of the Penal Law 5737-1977, however it included reference by some of the Justices to the offense we are dealing with.

In the Elba case [2] Justice Mazza determined that the prohibition specified in section 4(a) includes among its elements, a probability potential for risk.  In his view, the phrase “may” that is in the section relates to “acts of violence” and not to the published words.  The expression “the death of a person or his bodily injury” which appears after the phrase “may” was intended only to describe the type of acts of violence.  Justice Mazza determined further that the prohibition specified in section 4(a) is derived from the character of the violent activity and not from its attribution to a terrorist organization.

“For the realization of the offense according to section 4(a) it is sufficient that the words of praise, sympathy, or encouragement relate to the type of activity which characterizes a terrorist organization, meaning ‘acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.’  However, it is reasonable  to think that not every publication of a word of praise or encouragement for an act of violence which may, by its nature, cause the death of a person,  can constitute an offense according to section 4(a) of the Ordinance (while it is possible it will  constitute another offense).  From the purpose of the Ordinance it ostensibly necessarily arises that only publications which praise or encourage acts of violence of the type that characterize terrorist activity will be included in the framework of said prohibition.  Nevertheless, it is clear that the prohibition also applies to the publication of words of praise, sympathy or encouragement for violent activity of this type, even if the activity is by an individual, or a group that is not identified as a member of a terrorist organization.  Meaning: the prohibition on publication is derivative of the terrorist character of the violent activity, and not from its attribution to a terrorist organization, or from its doers belonging to such an organization.” (para. 44 Ibid. emphasis in the original.)

In conclusion Justice Mazza determines that:

“. . .  the risk that pursuant to the publication defined as prohibited, violent activity will actually take place is not of the elements of the offense.  The presumption inherent in the prohibition is that the very publication of words of support of activity which characterizes a terrorist organization can endanger the peace and security of the public.  We find that the prosecution meets its obligation by proving the publication and that it supports (via words of praise, sympathy or encouragement) the types of activities that are characteristic of a terrorist organization; and it does not have to prove that the publication itself may (at a certain level of probability)  cause violent action” (para. 45 of his opinion).

Justice Goldberg supported the view of Justice Mazza both relating to the attribution of the phrase “may” to “acts of violence” and to the absence of a probability test.

President Barak agreed with the view of Justice Mazza according to which the phrase “may cause the death of a person or his bodily injury” relates to the “acts of violence” and not to the words of praise.  From hence, that even in his view the section does not include within it an element of potential risk of the occurrence of acts of violence pursuant to the publication.  However, and in contrast to Justice Mazza, the President was of the view that the section includes within it, in the framework of the circumstantial element, a probability test.  This test relates to the character of the actions described and its function is to examine whether acts of the type described may cause death or severe injury. The judgment in the Jabarin judgment [1] was handed down about five months after the Elba judgment [2].  Justice Mazza referred to that case and adopted the interpretation given there to section 4(a) of the Prevention of Terrorism Ordinance.  Justices E. Goldberg and Y. Kedmi shared his view.

The Position of the Parties in the Further Hearing 

3.  Counsel for Jabarin claims that the construction the court adopted in the matter of section 4(a) of the Prevention of Terrorism Ordinance is an overly broad construction that does severe and unjustified harm to the foundational principles of our legal system.  According to his claim, the status of freedom of expression, which constitutes a “supra” value in our law, necessitates narrowing the area of deployment of the offense, in order not to harm it more than is necessary.  It is justified to harm this freedom only when there is a probability that a danger is posed from the expression.  As to the degree of probability of the danger, in his view the test of near certainty is to be adopted, a test that was adopted in Israeli case law as the balancing formula that is to be preferred when freedom of expression on the one hand and public peace on the other are placed on the scales.  The respondent, for its part, seeks to adhere to the construction given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba judgment [2] and the Jabarin judgment [1].  Although it makes a point of emphasizing that it is not oblivious to the importance of freedom of expression, nonetheless, in its view, this principle does not have ramifications for the question of the existence of a probability test in the framework of section 4(a) of the Prevention of Terrorism Ordinance and does not constitute grounds for narrowing the limits of the prohibition beyond that which is established in it.  In the balance between the system of values the section protects and freedom of expression, the first prevails.  The State also claims that applying a probability test that analyzes the influence of the words of praise on an audience exposed to it will place an unreasonable, if not impossible, burden of proof on the prosecution.

As for the Court’s question whether section 4(a) is to be interpreted as relating to “acts of violence” of a terrorist organization only, the position of Jabarin’s  counsel is that such construction is indeed consistent with the foundational principles of the system and with the purpose of the Ordinance.  On the other hand, the respondent is of the opinion that giving a narrow definition of the expression “acts of violence” in the section such that it relates to terrorist organizations only, is not consistent with the purpose of the provision in the section and therefore objects to it.

I will preface and say that I reached the conclusion that Jabarin is to be acquitted of the offense according to section 4(a) of the Ordinance.  In my view section 4(a) relates to acts of violence of a “terrorist organization” according to its meaning in the Ordinance (hereinafter: “terrorist organization”) and the words of praise and encouragement for acts of violence that were described in said publication do not satisfy this requirement.  I will preface and explain my rationale for limiting the range of deployment of section 4(a) of the Prevention of Terrorism Ordinance to words of praise, sympathy or encouragement for acts of violence of a terrorist organization.  Following that, I will examine whether the words of praise and encouragement in said publication constitute acts of violence of a terrorist organization.  As said, my answer to this is in the negative.

Attributing the Provision in Section 4(a) to Acts of Violence of a Terrorist Organization

4.  Section 4(a) deals with the prohibition of a publication which relates to “acts of violence that may cause the death of a person or his bodily injury, or of threats of such acts of violence.”   From a textual standpoint, when one reads section 4(a) on its own, the section does not include a limitation according to which the acts of violence mentioned in it include only acts of violence of a terrorist organization or acts which are characteristic of a terrorist organization.  However, my colleague Justice Mazza was of the opinion, as quoted above, that the section is not to be interpreted in such a broad manner, and that according to the purpose of the Ordinance the acts mention in section 4(a) are to be limited to actions and activities which characterize terrorist activity, even if they are done by an individual who is not connected to a terrorist organization.

I accept my colleague’s view that the deployment of section 4(a) is not to be broadened to include any acts of violence which may cause a person’s death or injury.  But, in my opinion, the application of the clause is to be limited further, such that it will apply only to acts of violence of a terrorist organization.  While my colleague is of the opinion that the section deals with terrorist activity, in my opinion it deals with the activity of terrorist organizations.   I will detail my reasoning below.

5.  In construction of a section in a statute it is not sufficient to examine a given statutory provision detached from the overall statute in which it appears.  It is not a “lonely island” which stands on its own detached from its surroundings.  The law is “a creature living within its environment” (Justice Sussman in HCJ 58/68 Shalit v. Minister of Interior [3] at 513).  The proximate environment of the statutory sections is the overall statute within which they are found.  Such a  statute radiates and affects the manner of construction of each of the sections which make it up:

“. . .  the interpreter must review the legislation in its entirety.  The words of Justice Frankfurter are well known that there are three laws to statutory construction: “read the law, read the law, read the law.”  Indeed, the organic unit which the judge interprets directly was not legislated on its own.  It was legislated as part of a broader unit – the entire piece of legislation.  Just as one is not to interpret a section in a literary or musical composition without looking at the entire composition, so too one is not to interpret a provision in the law without reviewing the law in its entirety.”  (A. Barak, Interpretation in Law, Vol. 2, Statutory Construction (1993) [10] at p. 308)

When examining the Prevention of Terrorism Ordinance in its entirety it is immediately apparent that the phrase “terrorist organization” is scattered throughout it.  All the offenses established in the Ordinance, including section 4, apart from subsection (a) in it, relate directly to terrorist organizations.  The Ordinance does not make do with dealing with the direct doers of the acts of violence who act on behalf of terrorist organizations.  The prohibitions established in it are directed at the broad foundation of these organizations; it also covers members of terrorist organizations who are not direct partners of the acts of violence and their supporters and accomplices from without.  Reading the Ordinance as one unit reveals a clear and unified picture as to its purpose.  This purpose is dealing with terrorist organizations with the goal of eliminating them.

The purpose of the Ordinance also radiates on identification of the purpose of section 4(a).  Indeed, section 4(a) according to its text, when it is examined on its own, does not associate the words of praise and encouragement to the acts of violence of a terrorist organization specifically.   However, when section 4(a) is read as one unit with the rest of the provisions of the Ordinance, it becomes apparent that the offense specified in it is to be related to the context of terrorist organizations.

6.  This conclusion is supported by the language of the margin headings of the sections of the Ordinance.  Most of the margin headings, including the margin heading of section 4, include the phrase “terrorist organization”.  For example, the margin heading of section 2 is “Activity in a Terrorist Organization”; the margin heading of section 3 is “Membership in a Terrorist Organization”; the margin heading of section 4 is “Support of a Terrorist Organization” and the like.  As to the role of margin notes in the framework of statutory construction, it has already been said:

“. . .although it is true that neither chapter headings nor margin headings add or detract as compared with the clear and unequivocal language of the law’s provision itself. .  .  where it arises from the statutory provision itself the possibility of a limiting interpretation which is consistent with the goal that was expressed in the heading of the chapter or the margin heading it is my view that it is proper to interpret the statute narrowly as aforesaid, in particular when it is a matter of criminal law” (my emphasis T.O) (CrimA 317/63 Tzur v. Attorney General [4] at 95 and see A. Barak, supra at pp. 316-321 and references there).

Indeed, the weight of margin headings in legal interpretation is not substantial, but it certainly may shed light on the purpose of legislation (Ibid.).  In our matter the consistent use of the phrase “terrorist organization” in the margin headings of the sections of the Ordinance, strengthens the construction according to which the Ordinance overall deals with overcoming terrorist organizations.

7.  Even the analysis of section 4, including all of its alternatives, supports this conclusion.  As said, the margin heading of this section is “Support of a Terrorist Organization”.  Indeed, all of its subsections, apart from subsection (a), deal with a type of support of a terrorist organization.  It prohibits support of a terrorist organization by way of publication of words of praise, sympathy or encouragement of its acts of violence.  The section does not deal with publication of words of praise, encouragement or sympathy for acts of violence which are not attributed to such an organization.  In short, the protected value in section 4 is the prevention of support of a terrorist organization, and this as part of the overall layout of the Ordinance, whose purpose is elimination of the foundation of these organizations.

It should be noted in this context that even in the text of section 4(a) there is a hint to the fact that the publication of the words of praise, sympathy or encouragement dealt with within it relate to acts of violence of a terrorist organization.  The section deals with publication of words of praise, encouragement or sympathy for “acts of violence which may cause the death of a person or his bodily injury”.  The definition of terrorist organization in section 1 of the Ordinance is “a group of people that in its operations makes use of ‘acts of violence which may cause the death of a person or his bodily injury’”.  Section 4(a) uses the very same words which constitute the backbone of the definition of “terrorist organization” in section 1.  This rationale also provides support for the argument that the legislator specifically directed section 4(a) of the law at words of praise, sympathy or encouragement for violent activity of a terrorist organization.

8.  The conclusion that the provision of section 4(a) relates to encouragement of acts of violence of a terrorist organization is only strengthened when one examines the historical background and the legislative history of the Ordinance.  The Prevention of Terrorism Ordinance was legislated under the dark shadow of the murder of Count Bernadotte, representative of the United Nations Assembly and his aide Colonel Serot in Jerusalem on September 17, 1948.  This murder hastened the legislation of the Ordinance, but its legislation had a broader background which was the attempt of the provisional government, after the government was established, to bring about the disbandment of the Jewish underground.  Several days after the murder, on September 20, 1948, the Emergency Regulations for Prevention of Terrorism 5708-1948 were passed.  On September 23, 1948, members of the Provisional Council of State gathered for their 19th meeting, in the framework of which said regulations were repealed and replaced with the Prevention of Terrorism Ordinance.  The meeting was opened with the notice of the then-Prime Minister, David Ben-Gurion, as to the murder and a sharp condemnation of the act (see: Minutes of the Meeting of the Provisional Council of State of September 23, 1948, The  Council of the Nation and the Provisional Council of State, Minutes of Discussions, Volume A at p. 31).  From this notice, detailed below we learn of the purpose for which the Prevention of Terrorism Ordinance was passed:

“After consulting with several members of the government – those members that I could reach on Friday evening and Saturday morning – I approached the Ministry of Justice, to immediately prepare emergency regulations against terrorist organizations, according to which it would be possible to punish not only those who commit acts of terrorism – for this the existing laws suffice – but also members of the terrorist organization, even if they themselves do not participate in the terrorist act, and their helpers, and those encouraging them with money, propaganda or other assistance.

On Saturday night the government convened at the Ministry of Defense, heard a detailed report from me as to these activities and decided to proceed with them with full vigor, until the criminals will be caught and brought to justice and the terrorist organizations uprooted.  The government dealt that evening with the proposed Emergency Regulations against Terrorist Organizations, prepared by the Ministry of Justice, ratified it in principle, and assigned a committee of three ministers to draft a final draft for publication in the Official Register as an emergency regulation.  The government weighed whether to delay the publication until the meeting of the Council of State and reached the conclusion – that delay would be wrong and that immediate action was necessary, and it was to publish the regulations within the authority it had, as emergency regulations, however, with the convening of the Council of State the government submits the regulations for the Council’s approval so that the regulations will be made into an ordinance on behalf of the Council of State.” (Emphases mine-- T.O.).

From these words it arises that the Prevention of Terrorism Ordinance was legislated in order to combat the phenomenon of terrorist organizations.  This historical background strengthens the conclusion I reached according to what is said in the Prevention of Terrorism Ordinance overall, that the Ordinance deals exclusively with offenses which relate to terrorist organizations.

9.  The conclusion I reached clarifies and provides a satisfactory explanation for the severity of the criminal prohibition established in section 4(a), a prohibition that contains an infringement on freedom of expression.  When this section is examined detached from its legislative environment and from its historical and legislative background, the impression is created that the infringement on freedom of expression is severe and disproportionate in its degree.  However, this first impression changes, when the section is examined against the background of its context the purpose is understood and the borders of its deployment are clarified.  The prohibition specified in section 4(a), as the rest of the prohibitions in the Ordinance, was intended to defeat the foundation of terrorist organizations.  Against the background of the special severity of this risk, the legislator was of the view that it would be proper to go even further and to also consider publication of praise for violent acts of a terrorist organization as an offense, even if they were done in the past, and even if the publisher of the words of praise is not a member of such an organization himself and does not pose a danger himself.  Moreover, and this is to be emphasized, the section does not require the existence of potential for the realization of any harm as a result of the publication.  One can become accustomed to such a prohibition in a democratic society, although it contains a significant infringement on freedom of expression, when we are dealing with terrorist organizations, with the great and unique risk they embody.

10.  The respondent is aware of the historical background for legislating the Ordinance, but according to its claim, the language of section 4(a) enables its interpretation in a manner that does not limit the prohibition established in it to the description of violent acts of a terrorist organization, and in its view, such an interpretation is more desirable.

As for the language of the article, it is the claim of the respondent, that from review of section 4 one can reach a conclusion opposite to the one reached above.  First, as opposed to each of its subsections, in subsection (a) it is not explicitly noted that the prohibition specified in it refers to a terrorist organization.  From this it can be concluded that there was no intention to limit what was said in it to acts of a terrorist organization.  Moreover, the respondent also claims that limiting the scope of section 4(a) to describing acts of violence of a terrorist organization, will in fact make superfluous the prohibition found in it as this prohibition is covered by other alternatives in section 4.  For example, section 4(b) establishes that a person will be charged with an offense who:

“publishes, in writing or orally, words of praise, sympathy or calls for help or support of a terrorist organization.”

It is the claim of the respondent, that words of praise, sympathy or encouragement for undertaking acts of violence by a terrorist organization are included within this general prohibition of publication of words of praise and encouragement of a terrorist organization.  This act is in its view also covered by section 4(g) of the Ordinance which establishes that a person will be charged with an offense who:

“commits an act that contains an expression of identification with a terrorist organization or sympathy for it, by waving a flag, presenting a symbol or a slogan or voicing an anthem or slogan, or any similar expressive act which clearly reveals such identification or sympathy, and all this in a public place or in a manner that people who are in a public place can see or hear this expression of identification or sympathy.”

Such arguments are to be rejected.  First, the argument according to which the interpretation which bounds the definition of section 4(a) to a terrorist organization, makes the prohibition established in it superfluous, is not to be accepted.  The distinction between the prohibitions established in the various alternatives of section 4 is clear.  The prohibition specified in subsection (b) prohibits publication which contains words of praise, sympathy or calls for help or support of a terrorist organization.  On the other hand, subsection (a) relates to a publication which contains words of praise, sympathy or encouragement of violent acts of a terrorist organization.  The emphasis is on acts of violence of a terrorist organization, and not the terrorist organization itself.

Second, as to section 4(g), from review of the case based description of the type of activities it applies to it is apparent that the section deals with expressions of support and identification via symbolic means, such as anthem, flag waving, slogan and the like (see on this issue CrimA 697/98 Tatiana Susskin v. State of Israel [5] at para. 35). It does not deal with a publication that contains direct literal support of acts of violence of a terrorist organization.

Third, indeed the language of section 4(a) itself can also be interpreted as applying to the type of violent activity that defines terrorist organizations, or even to any violent activity and not necessarily the violent activity of terrorist organizations.  As I noted in the beginning of my words, from a textual standpoint, this possibility is not to be ruled out.  However, as explained above, this interpretation is not consistent with the purpose of the Ordinance, its margin headings, its historical and legislative background and the alternatives of section 4.

11.  According to the respondent’s claim, it is desirable to dismiss the interpretation that limits section 4(a) to publication of words of praise for terrorist acts of a terrorist organization alone also for the reason that it leads, in its view, to an unwanted result.  The respondent brings as an example in support of this argument the fact that the publisher, for example, of words of praise for the massacre at the Cave of Mahpelah or the murder of Prime Minister Yitzhak Rabin, could not be charged with an offense according to section 4(a) of the Prevention of Terrorism Ordinance, and this because these terrorist acts were not carried out by agents of a terrorist organization but by individuals.  In this context, the respondent emphasizes that the reality in Israel proves that the threat that is posed from individuals is no less tangible than the threat posed by organized groups.  In its view, the special importance of section 4(a) of the Ordinance is to be understood in light of this reality.  The prohibition on publishing publications which incite to severe acts of violence on an ideological background, established in section 4(a) of the Ordinance, constitutes a central tool in the effort to prevent terrorist acts in general and those by individuals in particular.  Its importance stems from the fact that its task is to prohibit these seditious publications and thereby prevent an atmosphere which grants the lone damaging person the necessary support to carry out the terrorist act.  In the view of the respondent, accepting the proposed interpretation will leave the prosecution without the tools to cope with the phenomenon of incitement by individuals to commit severe acts of violence with terrorist characteristics.

The respondent proposes to adopt the view of Justice Mazza, which was expressed in the Elba judgment [2] and the Jabarin judgment [1], according to which within the framework of the prohibition in section 4(a) will be included publications which praise or encourage acts of violence of the type that characterizes terrorist activity.  The respondent even suggests a number of central components which make such activity unique in its view, and which distinguish it from “regular” acts of violence.

12.  As I have shown above, the Ordinance was legislated in order to fight against terrorist organizations.  However, the law is that a statute is to be given an updated meaning, in accordance with the changing reality (see A.Barak in his book supra, at p. 264; and see also, for example, CA 2000/97 Lindorn Nicole v. Karnit, Fund for Compensation of those Injured in Traffic Accidents [6] at paragraph 17).  If this is the case, is it not desirable, in the face of the argued change in the character of terrorist activity over time, to walk in the pathway the respondent suggests and broaden the boundaries of the deployment of the prohibition specified in section 4(a) beyond the boundaries originally delineated?  My view is that we are not to do so.  The Ordinance deals with organized terror, and not with acts of violence undertaken by individuals.  It deals with the risk entailed in the joining together of a band of people who undertake in their activities acts of violence which endanger human life.  Organizations of this type, to the extent that they are not cut off at their core, may spread like a cancer in the body of society, and endanger its foundations, and possibly even sabotage the foundations of the regime.  In light of the severity of this risk, primarily during a period of emergency, the use of the severe means utilized by the Ordinance to eliminate this blight is understandable.  I have clarified above, that the special severity of the means utilized  are to be understood against this background, as this is also reflected in the essence of the prohibition established in section 4(a).  Broadening the scope of 4(a) to additional circumstances, which it did not purport to deal with, may destroy the balance established in it, which enables severe infringement on freedom of expression, but only for the purpose of dealing with the extreme phenomenon of terrorist organizations.

13.  As stated, the respondent expresses concern, that accepting the proposed construction will leave the prosecution without the tools to cope with the phenomenon of incitement to commit severe acts of violence with terrorist characteristics, when these are not connected to a terrorist organization.  This claim, to the extent that it reflects the face of reality, indeed is not to be belittled.  However, it cannot change the purpose of section 4(a) which was intended, along with the other offenses established in the Ordinance, to serve as a weapon in the fight against terrorist organizations.  This purpose has not lost its force.  Unfortunately, such organizations have not yet left this world.  Indeed, at the time the Ordinance was legislated it was intended to deal with organizations of a different identity than those we are familiar with today.  A change in times has also brought about a change in the identity of terrorist organizations which constitute a risk to the State.  However, the risk rooted in terrorist organization has remained, and therefore the original meaning of section 4(a) as described above has not faded.

It will be noted, that in existing legislation there exist a number of provisions which may serve the state in its war against the phenomenon of incitement, as the offense of sedition found in Title A of Chapter H of the Penal Law 5737-1977, and the offense of Incitement to Racism established in Title A1 in it.  According to the claims of the respondent the existing arsenal is not sufficient to battle the phenomenon of sedition.  If that is the case, this is a matter for the legislator to address and regulate the prohibition of incitement, in its various aspects.

Based on what has been said above, my conclusion is that the Ordinance only applies to situations in which terrorist organizations are involved.  It does not relate to violent activity, of any type, which has no connection to these organizations.  Therefore, section 4(a) is not deployed over publications which contain words of praise, sympathy or identification with violent acts which were committed by people who are not associated with a terrorist organization.  Limiting the scope of section 4(a) in such a manner, preserves the balance established in it between freedom of expression and the value protected within it.  This prohibition eliminates the concern of a disproportionate infringement on freedom of expression; the infringement is proportional in consideration of the special risk rooted in terrorist organizations.

The Question of the Association of the Described Acts of Violence with a Terrorist Organization

15.  In our matter, Jabarin published, during the Intifada, an article which expresses support, encouragement and sympathy for the throwing of stones and throwing of Molotov cocktails.  Did Jabarin commit an offense according to section 4(a) of the Prevention of Terrorism Ordinance   with this publication?  My answer to this is in the negative.

In order to establish whether a publication is included within the prohibition established in section 4(a), one is to examine whether the acts of violence described in it, which it praises, encourages or sympathizes, are the acts of violence of a terrorist organization.  Section 1 of the Ordinance defines a “terrorist organization”:

“‘a terrorist organization’ is a group of people that uses in its operations acts of violence which may cause the death of a person or his bodily injury or threats of such acts of violence”

There is no doubt that throwing stones and throwing Molotov cocktails are activities which can endanger human life.  But the question is, does Jabarin’s article, which praises and encourages acts of violence, relate to the acts of violence of a terrorist organization?

The acts of violence of the type described in said article were undertaken, during the course of the Intifada, both by individuals and by organized groups that fall under the definition of “terrorist organization”.  Stones and Molotov cocktails were thrown in a disorganized manner, by individuals including children, who acted independently.  However, these activities were also undertaken by groups with an organized foundation that undertook acts of violence to achieve their goals.  I clarified above, that in order to apply section 4(a) of the Ordinance, it is not sufficient that the acts described in the publication are of the type that characterize terrorist activity, but it is necessary that they be the acts of such an organization.  Does section 4(a) apply to a publication of the type we are dealing with, a publication which praises and encourages acts of violence undertaken both by individuals and by terrorist organizations, and which in itself contains no indication, explicit or implicit, of whose activities it wishes to encourage and praise, and when the emphasis in it is on the acts of violence themselves without any connection to the characteristics of those undertaking them?

16.  It is my view that section 4(a) does not apply to said publication.  The reason for this is found in the purpose of section 4(a).  I clarified above, that its purpose is not to prohibit a publication which encourages, praises or sympathizes with acts of violence of the type which characterize terrorist activity.  It is intended, as are the rest of the alternatives of section 4, to prevent support of terrorist organizations, and this as part of an overall system in the Ordinance whose purpose is to eliminate the foundation of such organizations.  In order for a publication to be included in the framework of section 4(a), it is necessary, in my opinion, for it to be understood from it that it supports acts of violence of a terrorist organization.  Indeed, it is not necessary that the publication contain explicit reference to such an organization.  It is sufficient that it be implied from it that it supports violent activities undertaken by it.  For example, a publication which praises acts of violence without relating to those undertaking it, when it is known to all that a terrorist organization is behind the act, will fall within the framework of section 4(a) of the Ordinance.  However, a publication which praises and encourages acts of violence, from the content of which it is not to be understood that it is intended to support a terrorist organization, but the emphasis in it is on the acts of violence itself, without connection to the characteristics of those undertaking them, does not fall within the prohibition established in section 4(a).

In our matter, the publication includes words of praise and sympathy for acts of violence of the type of throwing of stones and Molotov cocktails.  As said, it contains no indication that it was intended to praise an act of violence of a terrorist organization.  My impression from reading the article is that the emphasis in it is on acts of violence, when the characteristics of those undertaking them do not add or detract.  Moreover, in the major portion of the article, as can also be seen from the section quoted in paragraph 1 above, Jabarin relates to acts of violence that he himself undertakes, or seeks to undertake.  The respondent is not claiming that Jabarin himself is a member of a terrorist organization.  Therefore, words of praise for his actions, or encouragement to act like him, are not included within the framework of words of praise or encouragement for acts of violence of a terrorist organization.

17.  In light of this, my conclusion is that the article does not support a terrorist organization, by means of sounding words of praise and encouragement for acts of violence undertaken by it.  From hence that the publication we are dealing with does not include the required elements for formation of the offense of support of a terrorist organization established in section 4(a) of the Ordinance.

18.  Based on the above, I will propose to my colleagues that the petitioner’s appeal be allowed and that he be acquitted of the charge he was convicted of.

 

President A. Barak

I agree

 

Justice D. Dorner

I agree

 

Justice J. Türkel

1.  I concluded my opinion in CrimA 2831/95 Rabbi Ido Elba  v. State of Israel [2] with the words: “it is said in the book of Kohelet that  “no man controls the spirit—to trap the spirit” [Ecclesiastes 8,8] Let us not hold back man’s spirit.” (Ibid. at 337)

In the view of the respondent’s counsel in the briefs they submitted “there are expressions, and the petitioner’s expression is included among these, that even if perhaps they express man’s spirit it is appropriate to place limitations on this spirit as the entire purpose and goal of that spirit is to incite harm to the spirit and body of other people.”

2.  I go in my way, as in the Elba case [2] and as in CrFH 1789/98 State of Israel v. Benyamin Kahane [7] the decision on which is to be given alongside the decision here.  In my opinion it is proper to narrow, by way of construction, the scope of deployment of the criminal law provisions which infringe on freedom of expression.  As I said in the Elba  judgment “according to my perspective, across the standard at one end of which is absolute freedom of expression and at the other end of which – its prohibition, the balancing point is to be set very close to the first edge.” (Ibid. at p. 331).

Indeed the words that the petitioner wrote in the article that was published, for which he was convicted in CrimA 4147/95 Muhammad Yousef Jabarin v. State of Israel [1] are deserving of serious condemnation; however, such things are not to be prevented nor is their sting to be dulled, using the authority of section 4(a) of the Prevention of Terrorism Ordinance 5708-1948 (hereinafter:  “the section”).  In the battle for freedom of expression we should not lower our gaze to the close range of the throwing of a stone or hurling of a Molotov cocktail but rather raise our eyes to the horizon of Jewish and Democratic Israel, for which freedom of expression is one of its foundation stones.  Protection of the petitioner’s right to speak his words is not protection of his defamatory words, but it is protection of the right of the person holding another opinion to speak his mind.  Protection of the right of the petitioner is protection of my right to speak my words, to sound the poetry of the poets that speak from my heart, and to cry out my cry of truth.

3.  The construction of my colleague, Justice T. Or, narrows the range of deployment of the section and is favorable in my eyes.  I agree with his view.

 

Justice Y. Kedmi

I read through the opinion of my colleague Justice Or, and unfortunately I cannot agree with his view.  According to my approach, as it will be presented below, the construction that was given to section 4(a) of the Prevention of Terrorism Ordinance in the Elba  case (CrimA 2831/95)[2] – by Justice Mazza – is the proper construction; and I have not found any justification to change it or deviate from it. Two topics are up for discussion in the case before us as to the construction of said section 4(a).  The one, which is the issue for which the further hearing was granted – deals with the question, whether a “causal connection” is needed between the publication of words of praise, sympathy or encouragement of acts of violence, and the occurrence of acts of violence in fact.  And the second -- deals with the question, whether section 4(a) speaks only of publication of words of praise for acts of violence that were committed by a terrorist organization; or whether in its framework are also included words of praise for acts of violence that were committed by private persons not on behalf of a terrorist organization when they satisfy the characteristics of the acts detailed in the body of the article.

As to the causal connection , I accept, in principle, the approach that states: that lacking an explicit statement, noting a prohibited “character mark” of a circumstance – in this case the publication – is not sufficient to convey a requirement for the presence of any particular level of probability of the actualization of that “character mark”; and that there is to be seen in noting the prohibited character mark a requirement which relates to an inherent trait of the circumstance as opposed to its potential to occur.  On this matter see the words of my colleague, Justice Mazza in CrimA 6696/96 [8] in connection with section 136(c) of the Penal Law: “the phrase ‘of a seditious nature’ is directed at the content of the publication and not the degree of probability that the publication will cause rebellion.”

However, when it has become clear that there is no debate that the requirement that the acts of violence which the petitioner’s article deals with, are acts of violence “which may cause the death of a person or his bodily injury” as in their meaning in said section 4(a), I do not find it appropriate to expand on this issue here; and in my view it remains “open for further discussion”.

As to limiting the application of the prohibition established in said section 4(a) to words of praise and encouragement of acts of a terrorist  organization only, I agree with the position that was presented by Justice Mazza in the Elba  case, according to which: this section relates to the publication of words of praise and encouragement for violence of the type that characterizes terrorist activity; and it is of no consequence whether these are committed by a terrorist organization or a private individual not on behalf of such an organization.

From a textual perspective, there are two rationales at the basis of my approach.  The first – the language of said section 4(a) does not include a requirement that the acts which are the subject of the encouragement and praise will be such that they are committed by a terrorist organization in particular; as opposed to all the other subsections of section 4, which speak specifically of terrorist organizations.  And the second – in describing the acts subject to the prohibition established in said section 4(a) – “that may cause the death of a person or his bodily injury, or of threats of such acts of violence”—the legislator repeated, with vigorous precision, the acts which characterize a terrorist organization, as per the definition in section 1 of the Ordinance; when the reference in that definition to a “band of people” as the doers of the actions, was dropped from section 4(a).  This situation teaches, in my approach, that the legislator intended to establish in said section 4(a) a general prohibition on words of praise and encouragement for acts which characterize a terrorist organization; and this – and Justice Or has described this at length – as an exception within its environment, which overall, speaks of the activity of a terrorist organization explicitly.

The language of section 4(a) is not suffering from a textual “failure” which must be healed by way of construction, as is necessitated by the approach of my colleague.  “Omission” of the requirement according to which it is a matter of praise and encouragement for acts “of” a terrorist organization, repeats itself twice:  first in the very absence of the mention of the terrorist organization; and later, in copying the definition of the acts which characterize a terrorist organization without mentioning the doer.  The language of section 4(a) is clear, and deliberately does not include the requirement that the doer of the actions the subject of the encouragement and praise will be a terrorist organization.  Adding the requirement which narrows the prohibition established in said section 4(a) as suggested by my colleague Justice Or, constitutes in the present case, “judicial legislation” as opposed to “construction”.

The result I have reached is not necessitated just from the textual aspect of the version of the provision, as detailed above, but also fits in -- in my approach – with the legislative purpose and the framework in which it is found.  Indeed, as is apparent from the legislative history of the Ordinance, the factor that led to its legislation was the need to create a tool to combat terrorist organizations; and apparently the conclusion is necessitated that section 4(a) is also directed to serve this tool.  However, at the end of the day, the struggle is not with an “organization” as such, but the “activity” for which the organization was set up and which it carries out; and it is not surprising, to see the “intertwining” of a provision which is directed at deterring from “activity” which characterizes the organization, even when this is not carried out by a member of the organization, in its name or on its behalf.  When the final result of the struggle is prevention of “terrorist activity”, we do not see an absence of logic– requiring repair -- in that among the rest of the prohibitions there has also been established a prohibition which speaks directly to preventing “activity” of the type that a terrorist organization carries out.  Prohibition of the publication of words of praise for “activity of a terrorist nature” that was carried out by one who was not a member of a terrorist organization, does not constitute, according to this approach, a “foreign seed” – lacking in logic – in the Ordinance – which is directed at blocking the activity of terrorist organizations.

Aside from and in addition to what is said above – and beyond what is needed – I feel it appropriate to add the following comment.  Even if the language of the provision were to leave room for a restricting definition, I would reject such construction due to the “change of circumstances” since the legislation of the Ordinance; and this by authority of the rule which denies reliance on historical construction which was good in its day and which ignores the development which has occurred in reality.

“legislative history must not control us ‘from the graves’; but we also must not build our legislative structure without roots.  The proper balance between past and future, between knowledge of what was, and knowledge of what should be, is what stands at the foundation of proper use of legislative history in establishing the purpose of the legislation.”  (A. Barak, Interpretation in Law, Volume 2, Legislative Construction, 1993 [13] at p.  351).

The phenomenon of terror has undergone many changes over the years.  In the past, including at the time of legislation of the Ordinance, the phenomenon was focused on activity carried out by terrorist organizations; and the phenomenon of private terrorists – “freelancers” – was in its infancy.  However, today the phenomenon of terrorism has ceased to be the exclusive activity of terrorist organizations; and the role of individuals, who mimic the members of the organizations but act on their own accord, has reached significant proportions.  It is not without reason then, that the definition acceptable to the United States Government for terrorism also specifically includes within it reference to terrorism by individuals.

““Terrorism is the threat or use of violence for polotical [sic] purposes by individuals or groups, whether acting for or in opposition to established governmental authority, when such actions are intended to shock, stun, or intimidate a target group wider than the immediate victims.”  (D. E. Long, The Anatomy of Terrorism (1990) [11] at p. 3; emphasis added Y.K.).

Our State has recently witnessed the harsh dangers embedded in acts of terrorism of individuals – who do not act on behalf of an organization –with the murder of the prime minister Yitzhak Rabin (may his memory be a blessing), in the actions with a terrorist character by someone who was not acting on behalf of a terrorist organization.  The danger embedded within those “unorganized” terrorists is continually increasing and its strength has lately surpassed that embedded in terrorist organizations; experience has shown that the task of foiling the activities of those individual terrorists is particularly difficult given their seclusion.

In such a situation, there is no justification for the distinction between words of praise for violent acts of members of an organization and words of praise for actions of the same type that were committed by those who are not members of any organization; as the purpose of the prohibition is to prevent the existence of activity of a terrorist nature; whoever those carrying it out may be.

And finally, I am not oblivious to the fact that my position as to the construction of the provision of said section 4(a) clashes with the basic right of freedom of expression.  Indeed, such is the face of things.  However, said right is not an absolute right but a relative one; where the legislator gnaws away at it from the authority of the right to life and security while preserving the necessary “proportionality” we must honor its provision.  Said section 4(a) establishes such a provision.

Conclusion

According to my approach, the construction given to section 4(a) in the Elba case [2] is to be left standing as it was adopted by the Justices in the panel in first discussion in the matter before us; and it is not appropriate to intervene in the conviction of the appellant.

As an aside I would like to add that even if the opinion of my colleague Justice Or is accepted, according to which section 4(a) speaks only of words of praise for violent actions “of a terrorist organization” the appeal is still to be denied; and this, as the actions for which the appellant showed support, meet, at the end of the day, this requirement as well.  It is well known that throwing stones and Molotov cocktails during the intifada, was committed first and foremost by members of Palestinian terrorist organizations on behalf of their organizations; when individuals, who are not members of organizations, were dragged in after them.  The possibility and even the fact – that these acts were committed also by individuals who are not members of a terrorist organization, does not remove the words of praise the appellant published from the purview of said section 4(a) even according to the “restricting” formula proposed by my colleague.  Review of the appellant’s article shows, that it speaks of sweeping support of all acts of throwing stones and Molotov cocktails without distinction as to those committed by members of terrorist organizations and those committed by individuals that are not such; from hence that the support also  refers to activities of terrorist organizations.

 

Vice-President S. Levin

1.  I agree with my hon. colleague Justice T. Or that the language of section 4(a) of the Prevention of Terrorism Ordinance, on its own, can also encompass violent activity of the type that characterizes terrorist organizations, or even violent activity of any type, however, in my view, it must be so interpreted.  I do not agree with him that the said paragraph is to be interpreted as referring only to “acts of violence” of a terrorist organization.

The thesis which bases the acquittal on a narrow interpretation of section 4(a) relies on the purpose of the Prevention of Terrorism Ordinance, the margin heading of section 4 and other sections of the Ordinance, the similarity between the language of section 4(a) and the definition of “terrorist organization” in section 1 of the Ordinance, the historical background of the Ordinance and the need to interpret said statute as much as possible in a manner that does not infringe on freedom of expression.  I do not accept this position, for the purposes of the petition before us.

As to the purpose of the Prevention of Terrorism Ordinance said thesis creates circuitous reasoning (inextricabilis circulus):   if you start with the assumption that the purpose of the Ordinance is only war with terrorist organizations, then the thesis is well based; if you start from the conclusion that the Ordinance has an additional purposes which is also to fight against the actions of individuals who publish words of praise, sympathy or encouragement for acts of violence which may cause a person’s death or injury then the thesis is not well based and it assumes the desired result as the basis of its rationale.  Moreover, a similar question came before us in CrFH 1789/98 [7] and the court determined there that a broad construction was to be given to the offense of sedition although it was also possible there to interpret the wording “to incite to seditious acts” as referring to an act that that causes harm to the structure of the regime alone, and I do not see a significant difference in the means of interpretation of the two statutes.

2.  The value of a margin heading in the construction of section 4(a) of the Ordinance is minimal and it is given sufficient weight in the approach of Justice Mazza in CrimA 2831/95 [2], that section 4(a) speaks of types of activity that are characteristic of a terrorist organization and not violent activity when it stands on its own; even in the similarity between the grounds of paragraph (a) of section 4 and the definition of “terrorist organization” in section 1 of the Ordinance there is not in my view support of the acquitting result and vice versa; the fact that in section 4(b)(c)(d)(e)(f) of the Ordinance a “terrorist organization” is mentioned, as opposed to in paragraph (a), can teach, by way of evidence from the contrary, that paragraph 4(a) does not refer specifically to a “terrorist organization”; the examples from the legislative history which led to the legislation of the Ordinance are in my view of little weight, if they did not find expression in the wording of the Ordinance, that with its legislation became a living thing that carries its own weight.  Absent sufficient indication in the wording of section 4 of the Ordinance that the protected value in this section is only the struggle with a terrorist organization, it appears to me that text is to remain within its literal meaning and the protected interest in paragraph (a) is also the struggle with one who commits the types of activities that are characteristic of a terrorist organization.

3.  The central question in this further hearing is whether proper construction of section 4(a) of the Ordinance requires limiting the scope of deployment of the section only to activity of a terrorist organization although this was not said in paragraph (a) and that is – in order to defend freedom of expression.  The topic we are dealing with is the normative construction of a primary statute and not its application to a concrete instance, as in our matter it is possible that it will be necessary to utilize stringent criteria of probability in order to prevent infringement of freedom of expression.  All agree that the deployment of the principle of freedom of expression can be pushed back in the presence of restrictions and limitations which relate to considerations which may narrow the scope of its deployment.  Accepting the position of the petitioner in the normative sphere means closing off options for a conviction based on clear text for offenses of severe incitement to acts of violence characteristic of a terrorist organization, when, apparently there is no other statutory source to rely on in order to convict one who commits the act.  Under these circumstances I am not of the view that the interpreter has the option of applying a general norm of freedom of expression that can limit the statute’s words resulting in the release of the accused from criminal liability.  Just as it is true that the law is a “a “creature living within its environment” for the purpose of restricting the scope of its deployment  in the appropriate case in the face of the application of general principles, so too is it a “a creature living within its environment” for the purpose of applying its exacting words, if it turns out – in the appropriate case – that a restrictive construction of the section will harm the interest which the law comes to protect; compare: the judgment of Justice Landau in CrimA 401/79 Lamdan v. State of Israel [9] at p. 56 near the letter “a”.  Such, in my view, is the situation in the present case.

4.  Were my opinion to be heard we would therefore decide that section 4(a) of the Prevention of Terrorism Ordinance also applies to those who commit acts of terror which characterize terrorist organizations and I have no doubt that the content of the article meets this definition.  Therefore, in theory I should have expressed my view also as to the question for which the further hearing was granted which relates to the existence of a causal connection between the publication of the words of praise, sympathy or encouragement to the risk of the occurrence of acts of violence as a consequence of the publication; and the degree of its strength; as my honorable colleague, Justice Kedmi, I have been satisfied that the content of the articles also meets the more stringent test of “clear and present danger”.  Therefore I do not see a need to express an opinion as to the first question brought before us for determination.

I have therefore reached the conclusion that the judgment of the Supreme Court in the first hearing is to be upheld and the conviction of the petitioner is to be left as is.

 

Justice E. Mazza

I cannot agree with the opinion of my colleague Justice Or.  I have expressed my stance relative to the construction of section 4(a) of the Prevention of Terrorism Ordinance  5708-1948 in my judgment in CrimA 2831/95 Elba  v. State of Israel [2] at pp. 282-286, and in my judgment in the appeal which is the subject of the further hearing before us (CrimA 4147/95 Jabarin v. State of Israel [1])  The reasoning of my colleagues, the Vice-President and Justice Kedmi, only strengthened me as to the correctness of the position I expressed in these judgments.  If our views were to be heard, this appeal would be denied.

 

It has been decided by a majority of opinions as per the judgment of Justice T. Or.

 

29 Kislev 5760

November 27, 2000

 

Editor’s note:  Following this judgment and the Court’s determination that section 4(a) of the Prevention of Terrorism Ordinance 5798-1948 applies only to sedition by a terrorist organization and does not apply to sedition by individuals, the Ordinance was amended such that section 4(a) of the Ordinance was nullified and in its stead an offense of sedition to violence or terror was established in the Penal Code.

H.C.J. 195/64

 

           

THE SOUTHERN COMPANY LTD. AND MARBEK SLAUGHTER HOUSE LTD.

v.

CHIEF RABBINICAL COUNCIL AND TEL AVIV-YAFFO RELIGIOUS COUNCIL

 

           

In the Supreme Court sitting as the High Court of Justice

[September 27, 1964]

Before Olshan P., Agranat D.P., Landau J., Witkon J. and Manny J.

 

 

           

Administrative law - grant of Kashrut licence with extraneous conditions - status of Chief Rabbinical Council - enforcement of religious law - Courts Law, 1957, sec. 7(a) and (b)(2).

 

 

                The kashrut of the petitioners' establishment was not disputed but the respondents imposed conditions on the grant of the license - in particular requiring the petitioners (l) not to market their kosher meat to butcher shops which did not hold a licence from the first respondent and (2) to market their non-kosher meat to non-Jewish butchers alone and on guarantee that the meat would not find its way into the Jewish market - which the petitioners claimed had nothing to do with the kashrut of their slaughterhouse and imposed a heavy financial burden on them, in addition to being discriminatory since the conditions were not imposed on other slaughterhouses. The licences of butcher shops selling the petitioners' meat were also withdrawn.

               

                The first respondent. the body responsible for kashrut licences did not appear but informally intimated that the High Court of Justice had no jurisdiction to interfere with its halachic decisions and considerations.

               

                Held       The attitude of the first respondent suggested a claim to immunity from judicial process rather than a claim of lack of jurisdiction of the part of the High Court of Justice. The rule, however, was that all are equal before the law, unless the legislature has otherwise expressly provided, as in the case of the President of the State and, with qualifications, members of the Knesset. Whilst the legislature had assigned to the first respondent powers in certain areas of religious activity of an administrative nature,  together with the necessary funds out of the State's Budget, it had not found fit to grant it immunity from the operation of the Courts Law. Nor could the High Court, acting as it does under that Law, grant immunity and thereby bar access to aggrieved citizens. The first respondent also was not a judicial tribunal to which the High Court's jurisdiction did not extend. Accordingly the statutory powers of judicial review, vested in the High Court were exercisable vis-a-vis the first respondent to the extent that it derived its authority from secular law and not withstanding that it is subject to the religious law appertaining to the matters with which it deals. The High Court will not prevent the first respondent from applying religious law, or issue kashrut licences in its place, or even intervene in disputes as to the interpretation of religious law.

 

These matters did not arise in the present case and the sole issue was whether the first respondent had been discriminatory and acted ultra vires in denying the petitioners a licence unless they undertook to abide by the conditions sought to be imposed on them. In the absence of any defence,. the allegations of the petitioners were prima facie sustainable.

 

The first respondent's powers of ensuring kashrut for the observant did not include powers to enforce it against the non-observant. The two conditions mentioned above seemed to dictate to whom the petitioners might sell their meat, and failing any explanation it was difficult to discern any connection between these conditions and the kashrut of the meat. which was not in dispute. The imposition of these conditions was therefore ultra vires.

 

Israel case referred to:

 

(1) H.C. 65/51 - Jabotinsky and Cook v. Weizmann (1951) 5 P.D.

            801; I S.J. 75.

           

G. Hausner, H. Goshen and A. Shmaltz for the petitioners.

Y. Pribus for the second respondent.

Attorney-General (M. Ben Zeev), Z. Terlo and M. Cheshin for the Attorney-General.

 

The first respondent did not appear.

 

OLSHAN P.   On 11 August 1964 we announced out decision as follows:

 

"This court has jurisdiction to deal with the case. We accede to the request of the Attorney-General and postpone the hearing of the application to 1 September 1964:"

 

These are the reasons, publication of which was postponed because of the vacation.

 

            On 14 July 1964 an order nisi was issued directed to the Chief Rabbinical Council, the first respondent, and the Religious Council of Tel Aviv-Jaffa, the second respondent, ordering them to show cause "why the first respondent should not give instructions for the supervision of Kashrut (ritual lawfulness) in the slaughterhouse of the petitioner in Kiryat Malachi, subject only to the conditions connected to matters of Kashrut in the same slaughterhouse"; and against the second respondent, "why it should not market meat slaughtered in the said slaughterhouse in the Tel Aviv-Jaffa area on instructions only given to it by the first respondent aforesaid, and why the second respondent should not be prevented from withdrawing the licences and approvals from the butcher shops in the Tel Aviv-Jaffa area which sell kasher meat slaughtered in the above slaughterhouse in accordance with the instructions given to it by the first respondent aforesaid".

 

            The order nisi was granted on the basis of the petitioners' complaints contained in their application to some of which we will refer.

           

            It is by virtue of the "Jewish Community Rules", even before the establishment of the State, and by virtue of legislation of the Knesset (Budget Laws), and the Jewish Religious Services Budgets Law, 1949, and the regulations made thereunder, that the respondent institutions exist, and the control of Kashrut and the granting of Kashrut certificates come within their authority.

           

            The petitioners applied to the respondents for a Kashrut licence to enable them to market meat slaughtered by them in the said slaughterhouse as meat recognised by the Rabbinate as Kasher meat.

           

            In the negotiations with the respondents the petitioners were not confronted with any argument that the slaughtering in their slaughtering house was defective from the point of view of Kashrut.

           

            The respondents, however, put different conditions as conditions precedent to the issue of a Kashrut certificate as requested.

           

            The petitioners argue that these conditions have no connection whatsoever with matters of Halachah, that putting these requirements as a condition to the granting of the requested Kashrut licence is ultra vires and that the respondents refuse their application for peripheral considerations which have no relevance to the question whether the meat marketed by the second petitioner is Kasher or not; that is to say, because of considerations relating to matters not within the respondents' authority such as economic and monetary matters and the like.

 

            The second petitioner has declared that it cannot agree to some of the above conditions but is prepared to abide by all the conditions imposed by the Rabbinate on other slaughterhouses in Israel, and that all discrimination directed against it in this respect is invalid.

           

            Among the conditions indicated by the petitioners we will mention two:

           

(a) that meat slaughtered in the petitioners' slaughterhouse should be marketed only to Kosher butcher shops, that is, butcher shops whose owners have Kashrut certificates from the Rabbinate, and that it is forbidden to market it to the owner of a butcher shop who does not hold a Kashrut certificate from the Rabbinate;

 

(b) that the petitioners may not market those parts of the meat remaining after slaughtering, which are presumed to be trefah (forbidden), without the consent of the local representative of the Rabbinate, and that the petitioners must undertake not to deliver or market in any form whatsoever this trefah meat, except to non-Jewish merchants (or non-Jewish butcher shops), and then only upon receipt of secure financial guarantees from the buyers, such as bank guarantees, to back their undertaking that parts of such meat will not find their way, directly or indirectly, into the Jewish market.

 

            These two conditions are cited only by way of example, because the application spreads over twelve pages, to which many documents are attached, in which the above conditions and other conditions are to be found which might impose upon the petitioners a very heavy financial burden, and also conditions, compliance with which might bring the petitioners into conflict with various secular laws - so the petitioners argue.

           

            Copies of the application with the documents attached were served on the respondents. The second respondent submitted an answer on the merits, indicating that it is not concerned with the issue of Kashrut certificates and that in this respect it is subordinate to the District Rabbinate of Tel Aviv; whilst the respected Chief Rabbinical Council submitted no answer but Rabbi A. Gottlieb, its secretary, sent a letter in which he notified the Court that the Chief Rabbinate had adopted three resolutions, of which the third is, "It is not within the competence of the High Court of Justice to interfere with halachic considerations or in halachic judgments issued by the Chief Rabbinate Council."

 

            The first resolution said that in all matters relating to halachic judgment "the considerations of the Chief Rabbinical Council are only halachic and in this respect subordinate to the laws of the Torah and other instructions as to what and how to decide cannot be accepted."

           

            The second resolution said, "The Chief Rabbinical Council rules according to halachic considerations when and how a Kashrut certificate will be granted on its instructions, and from these considerations it cannot budge".

           

            It should be made clear that in the mere failure by the first respondent to file an affidavit in answer to the application and in its non-appearance no contempt of court has occurred. In all cases of mandamus, the respondent is free to reply or not to reply to the application. At the conclusion of every order nisi it is expressly stated, "The respondents must submit their replies, if they so desire, within ... days ...". Furthermore, when the respondent does not reply and does not appear (as a party) the order nisi does not automatically become an order absolute. But a respondent who does not react does not, thereby, refute the factual and legal arguments of the petitioner. The respondent takes a very serious risk as to the facts proved by the petitioner without contradiction or refutation.

           

            Furthermore, it is the right of every respondent to raise preliminary objections to the jurisdiction of the High Court of Justice claiming that the subject matter of the petitioner's application is not within the competence of this Court, and he may raise the point that the High Court must refrain from exercising its authority. It can also happen that such a respondent, in raising this kind of plea, is doing a service to the Court and the judicial system.

           

            Just as this Court would fail in its duty to the State and its citizens, were it to refuse to exercise its jurisdiction, when the matter is according to law within its jurisdiction and justice demands its intervention, so the Court will not be eager and will fear assuming powers which the law has not granted it, since otherwise it would prejudice the principle of the rule of law. From this point of view, a respondent who raises a convincing argument that the Court actually has no jurisdiction in a given matter also fulfils a civic duty.

 

            As to the above mentioned letter of the secretary (even if we regard it as an answer), it should be noted that it does not deal with the petitioners' complaints that in this matter there was no refusal from the Chief Rabbinical Council as a result of halachic considerations, complaints, according to the petitioners, supported by evidence relating to certain conditions (amongst others) imposed on them. In the first and second resolutions, only "halachic judgments" of the Chief Rabbinical Council generally were mentioned relating to the manner in which it reaches these and nothing whatsoever was said about the petitioners' argument that in the present matter it diverged from this path and therefore acted outside its authority. In this argument of the petitioners we cannot find any denial of the jurisdiction of the first respondent to act according to the Halachah. The complaint, as we have said, is that it acted outside its jurisdiction.

           

            In other words, this letter means, at the most, that the first respondent always bases itself on the Halachah and that as far as concerns the petitioners' complaint is not even obliged to deny it nor are the petitioners entitled to require this court to go into the matter. It follows from the third resolution of the first respondent, therefore, that the High Court has no jurisdiction either to interfere in halachic rules or to deal with any petitioner who charges that it acted not in accordance with halachic considerations, and that it has no jurisdiction to ask the first respondent whether the charge is true and request explanations, because in its view it is enough that it, the first respondent, states publicly that it always directs its steps solely according to the halachic rules.

           

            All this means that the petitioners may not apply to this Court, despite section 7 of the Courts Law, since the first respondent is above that Law, and therefore is not obliged to reply either to the citizen or to the High Court before which the petitioners' complaint was brought and that the first respondent has the power to determine the scope of jurisdiction of the High Court in this respect.

           

            Such an argument is in effect not an argument of lack of jurisdiction but a quasi argument of immunity from the authority of the courts of this country.

           

            The rule in this country is that all are equal before the law, except where the legislator expressly provides otherwise.

           

            The only institution which is immune from the courts is the President of the State and this is regulated by law. (As to the immunity of Members of the Knesset, that is limited and is also regulated by law.)

           

            Before the said Law was enacted, including the provision as to the immunity of the President of the State, the question arose whether it is possible to issue an order nisi (of mandamus) against the President of the State. In Jabotinsky and Cook v Weizmann (1), this Court refused an order nisi after intervention by the Attorney-General who claimed lack of jurisdiction. The question was whether, in the light of section 11 of the Law and Administration Ordinance, the status of the President of the State is to be regarded like the status of the British Crown against which no orders issue. This Court did not accept the argument of the Attorney-General and held that as regards the immunity of the President of the State, the situation here is similar to that in the U.S.A. and not England.

           

            An order nisi was refused not because of the immunity of the President but because the object of the petitioners' complaint there was purely political, relating to the executive and parliamentary authorities. In any event there the matter was not connected with a citizen who complained that the respondent was violating his rights or denying them. The matter was, as I have said, political and in point of the principle, then prevailing and now found in section 7(a) of the Courts Law, the Court did not find that justice demanded its interference.

           

            It is true that the Rabbinical Council was given a certain area of activity by the State regarding religious services relating to Jews, and in this area it was granted certain powers. But the legislator did not think it right to grant immunity to this respected institution, exempting it from the applicability of the Courts Law, and certainly the High Court which is also subordinate to the Law cannot assume jurisdiction (which was never given to it) to grant it such immunity and bolt the doors of this Court to a citizen.

    

            In order to remove what was called by the learned Attorney-General a misunderstanding, one must pause to consider the terms "judgments" and "halachic judgments" mentioned in the letter of the first respondent's secretary.

           

            The source of the jurisdiction of the High Court is found in the various subsections of section 7 of the Courts Law, 1957. The jurisdiction of the High Court relating especially to religious tribunals springs from section 7(b)(4) which speaks of religious tribunals, recognised as such by the law, including the rabbinical courts, the decisions of which are called and are also regarded as "judgments". Institutions to which the Law has not granted a status of courts are not included in section 7(b)(4), for instance, the Chief Rabbinical Council, is not a tribunal in this sense, even if in dealing with the matters under its jurisdiction, it acts according to halachic principles and calls its decision "halachic judgments". From the point of view of the Courts Law the Chief Rabbinical Council is a body recognised by the law of the State "as exercising public functions by virtue of law" (section 7(b)(2) of the Courts Law).

           

            Just as a rabbinical court whose jurisdiction is determined by the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 1953 comes within section 7(b)(4), so also the Chief Rabbinical Council - an authority recognised by the State in that certain administrative powers relating to different religious services are vested in it - comes as such within section 7(b)(2) of the Courts Law. The fact that the matters are dealt with by the Chief Rabbinical Council on the basis of "halachic judgments" can be of great importance regarding the merits of a dispute brought before the High Court but it has no bearing at all on the jurisdiction of the High Court to hear and examine a citizen's complaint against a public authority on the ground that it discriminates between him and others without legal basis or that it has acted outside the scope of its jurisdiction and other like grounds.

           

            In such a case the High Court must open its doors to the citizen who complains, give ear to his complaint and grant him relief if he proves that his complaint is well-founded in law. It is that which the High Court has been ordered to do by the legislator in section 7(a) of the Courts Law:

           

"The Supreme Court sitting as a High Court of Justice shall deal with matters in which it deems it necessary to grant relief in the interests of justice and which are not within the jurisdiction of any other court or tribunal" (emphasis added).

 

And the beginning of section 7(b) reads as follows:

 

"Without prejudice to the generality of the provisions of subsection (a), the Supreme Court sitting as a High Court of Justice shall be competent...

 

(2) to order State authorities, local authorities and officials of State authorities or local authorities, and such other bodies and individuals as exercise any public functions by virtue of law, to do or refrain from doing any act in the lawful exercise of their functions...".

 

            By virtue of this provision the High Court has issued and continues to issue orders against every institution or person who exercises a function recognised by the law, such as Government Ministers, including the Prime Minister, various State institutions and even the Chief Rabbis.

           

            In order to avoid another misunderstanding it should be noted that the High Court reacts and demands explanations only from a body that acts as a body recognised by the (secular) law in using the powers or authority granted to it by law, from a body which in its actions relies on its recognition by the secular legislator for the purpose thereof. As has been said, the fact that such a body also generally relies on "halachic judgments" does not detract from the jurisdiction of the High Court.

           

            The supremacy of section 7(a) and section 7(b)(2) of the Courts Law governs every public officer or public authority or public body recognised by the State, and to the extent that they derive their powers or authority from the legislator (here called the secular legislator). To the extent that the Chief Rabbinical Council exercises such powers and authority - notwithstanding that it applies the halachic rules to the merits of the matters brought before it - the section rules so long as the secular legislator has not provided otherwise.

           

            This does not mean that this Court will conclude that the first respondent must not act according to the halachic rules in a matter within its jurisdiction, or that this Court wilI assume jurisdiction to issue Kashrut certificates in place of the respondents, or one of them - we were not requested to do that even by the petitioners.

 

            Furthermore, had the petitioners' application been based on the argument that there are serious differences of opinion between the parties as to the interpretation of a certain Halachah and had the petitioners wanted to impose their own interpretation on the respondents - it is doubtful if they would have even obtained an order nisi.

           

            But this is not the case here. The petitioners' complaint is that the respondents have exceeded their jurisdiction in using considerations which have no connection to the Halachah relating to the granting of Kashrut certificates for meat slaughtered in their slaughterhouse. (The petitioners have never denied the need that the slaughtering should be under rabbinical control.)

           

            Let it be clear that in dealing with the question of our jurisdiction we must look at the matter from the point of view of the secular legislator. We must deal with it on the presumption that under the Jewish Community Rules the first respondent has the power and authority to control Kashrut in order to issue Kashrut certificates as petitioners' counsel proved at least prima facie. At this stage we do not have to take any position on this subject, because it will have to be dealt with when the merits of the case are considered, if at all.

           

            Suppose that the Chief Rabbinate did not exist as a recognised institution, financing itself out of the budget of the State and receiving official State approval for its activity in a certain area of life - either by grant of jurisdiction or by recognition of its jurisdiction - but that the situation is that it exists as a result of internal organisation and that each Rabbi can issue Kashrut certificates for meat. Suppose that the petitioners are interested in receiving a certificate precisely from the Chief Rabbinate which refuses to grant it except on the two above conditions: not to sell Kasher meat to a Jew who does not eat Kasher or to an owner of a butcher shop who does not hold a Kashrut certificate, and not to sell the trefah parts even to a non-Jew, unless he gives a sure guarantee that they will not reach Jews, either directly or indirectly. In such a case even the Chief Rabbinate would have openly stated the reasons for its refusal, that it is interested that all Jews in the country without exception should eat Kasher meat and that it thinks that to avoid the possibility of Jewish owners of butcher shops, who do not hold Kashrut certificates, buying Kasher meat (when there is a shortage of meat) would exert pressure and be an efficient means for imposing the system of Kashrut on the entire Jewish public in the country. In such an event one would have thought that it would be permitted so to act, because the petitioners' application to the Chief Rabbinate would have been regarded as if made to an institution, under the status and moral and religious standard of which they sought protection. 1 think that the Chief Rabbinate would have then said to the petitioners, "if you wish, in order to market your Kasher meat to enjoy our protection and religious and moral influence, you must accept the above conditions in order to help us enforce Kashrut on the Jewish public". In such a hypothetical case it would not have been possible to complain about the non-official Chief Rabbinate, because in its intention to enforce a regime of Kashrut it uses pressure unrelated to the jurisdiction granted to it by the State. Certainly in such a case, it would not have been a matter for the High Court. But the situation here is different. Why was an order nisi issued? The petitioners pointed out that in pursuance of secular law they need a Kashrut certificate from the Chief Rabbinate and the local Religious Council, because jurisdiction in matters of Kashrut have been granted by the State to these and not to others. Because petitioners' counsel in his application referred to various enactments, one would have presumed that it was so unless the argument is refuted by the respondents when the matter is dealt with on the merits.

 

            When the petitioners complained in their application about the various conditions that the first respondent intended to force on them, among them the two conditions abovementioned, then at least prima facie - so long as the complaint has not been refuted - it seems that the petitioners' complaint is well-founded, at least to an extent which entitles the petitioners - and imposes on this Court the obligation - to ask for an explanation from the respondents and to test the petitioners' complaint by the legal principles and rules which the (secular) law requires, and of course in the light of the respondents' explanations, if submitted.

           

            What is prima facie the substance of the petitioners' complaint which obliged this court to hear the petitioners' application?

           

            The Rabbinate was given authority by the State to control Kashrut for Jews interested in Kashrut, so that those who observe Kashrut at home or in living generally will know that the meat sold to them at a butcher shop of which the owner holds a Kashrut certificate from the Rabbinate is really Kasher. But this authority is not aimed at enforcing a regime of Kashrut of Jews who are not interested in it.

 

            Prima facie, at least, the two abovementioned conditions seem to be necessary in order to dictate to the petitioners to whom they should sell their product and to whom they should not. And in the absence of any explanation it is difficult co see the connection between this and the question whether the petitioners' meat is Kasher.

           

            No argument was heard that the conditions, about which the petitioners complained, have any connection with the carrying out of Kasher slaughtering in the petitioners' slaughterhouse or to their marketing of Kasher meat; that is to say that if the petitioners will sell Kasher meat to non-Jews or to a Jew who wants to buy it because its quality is better and not because it is Kasher, then all the meat of the petitioners will be turned into Trefah meat.

           

            It seems therefore that at least prima facie, what emerges from the petitioners' complaint is that it is not because of any defect in the Kashrut of their meat that they are refused a Kashrut certificate, but in order to use the petitioners as a means to enforce Kashrut on Jews who do not observe Kashrut or so that all owners of Jewish butcher shops will be forced to have Kashrut certificates from the Rabbinate. So long as it was not argued and shown that according to the Halachah, without imposing the conditions, the petitioners' meat cannot be regarded as Kasher, there is no doubt that the petitioners' demand to test their complaint that the respondents acted beyond their powers, is based in law. Such an argument was not heard or even hinted at.

           

            It is clear from the foregoing that our decision as aforesaid takes up no position on the merits of the case; neither as to the respondents' jurisdiction nor as to excess of jurisdiction, as the petitioners argue.

           

            The foregoing reasons serve only to explain this Court's approach to a hearing of the petitioners' application on its merits.

           

            Judgment given on September 27, 1964.

C.A. 525/63

 

           

REUVEN and ZILPAH SHMUEL

v.

ATTORNEY-GENERAL

 

 

In the Supreme Court sitting as a Court Of Civil Appeal

[June 30, 1964]

Before Agranat D.P., Landau J., Berinson J., Witkon J. and Cohn J.

 

           

Judges - disqualification - religious bias - Courts law, 1957, secs. 7(a), 7(b)(2), (3) and 36.

 

 

The Attorney-General applied for an order against the applicants to remove their children from a Christian missionary school where they had placed them and to arrange for the children's education in a Jewish school. In those proceedings in the Tel Aviv District Court, the applicants requested that the sitting judge should disqualify himself because he was an orthodox Jew and people might gain the impression that he would therefore not deal with the matter impartially. The judge refused to do so and the applicants moved the Supreme Court to have the hearings transferred to another judge of the Tel Aviv District Court.

 

Held  (1) The statutory provisions regarding transfer of cases go only to change of venue in the strict sense of place of trial and not the personality of the judge, and then only when the judge concerned consents thereto.

 

(2) A judge may certainly possess personal views and beliefs but he must not allow these to pervert his allegiance to the law either in letter and spirit. Judges are presumed to be conscious of and to abide by this obligation.

 

(3) Whilst there is no dispute that a judge's decision not to disqualify himself should be subject to judicial review, there is no room for the notion that a litigant should be able to choose to be tried by a judge whose views please him.

 

(4) The decision of a judge not to disqualify himself may be an administrative and not a judicial act, and as such open to review like any other administrative act by the High Court of Justice especially when no right of appeal against the act exists. As a judicial act, the decision is not reviewable under the High Court's statutory powers. In the absence, however, of any remedy, the decision may be challenged indirectly or incidentally by way of an ordinary appeal against the judge's final judgment in the case.  A decision on a challenge to the composition of a court before it has been constituted is an administrative act.  A like decision after the proceedings have commenced isa judicial act which can only be contested by ordinary appeal.

 

(5) The High Court of Justice will not order prohibition either against a court or a particular judge where the remedy of appeal is available.

 

(6) Interlocutory appeal against a judge's decision not to disqualify himself is in any event only possible under the law in respect of civil and not criminal matters. The legislature might well consider a reform of the law in this regard.

 

Israel cases referred to:

 

(1)   H.C. 295/59 - Moshe Goldenberg v. President of Tel Aviv-Yaffo District Court and others (1959) 13 P.D. 2207.

(2)   Misc. App. 3/50 - Yosef Weinberg v. Attorney-General and another (1950) 3 P.D. 592.

(3)   H.C. 174/54 - Yisrael Shimel v. Competent Authority and Appeal Committee for the purpose of the Law regulating Seizure of Land in an Emergency (1955) 9 P.D. 459.

(4)   H.C. 279/60 - Ulame Gil Ltd. v. Moshe Yaari and another (1961) 15 P.D. 673; VI S.J. 1.

(5)   H.C. 203/57 - Eliezer Rubinski v. Competent Officer under Cooperative Houses Law (1958) 12 P.D. 1668.

(6)   H.C. 23/50 - Yosef Weinberg v. Attorney-General and another (1950) 10 P.M. 85.

(7)   Cr.A. 239/54 - Bess Perah v. Attorney-General (1955) 9 P.D. 397.

(8)   H.C. 49/62 - Aharon Kluger and others v. Inspector General of Police and others (1962) 16 P.D. 1267.

(9)   H.C. 206/59 - Shlomo Gilah v. Jerusalem Magistrate and others (1960) 14 P.D. 1709.

(10) F.H.15/62 - Societe des Ateliers Pinguely Ville Gozet S.A. v. Aharon Kluger and others (1962) 16 P.D. 1539.

(11) H. C. 125-127/50 - Kvutzat HaHugim Bet HaShitah and others v. Haifa Committee for Prevention of Profiteering and others (1951) 5 P.D. 113.

(12) H.C. 91/61 - Israel Film Studios Ltd. v.Jerusalem District Court (1961) 15 P.D. 782.

(13) H.C. 326/61 - Natan Kravchik v. Attorney-General and others (1961) 15 P.D. 2389.

(14) H.C. 142/64 - Carmel Mahviti v. Attorney-General and others (1964) 18 P.D. 449.

(15) H.C. 250/61 - Moshe Dvik v. President of Supreme Court and others (1961) 15 P.D. 2529.

(16) H.C. 66/63 - Attorney-General v. Beersheba Traffic Judge (1963) 17 P.D. 1056.

(17) H.C. 307/51 - Y. Lalo v- Tel Aviv District Court Judge (1952) 6 P.D. 1062.

 

English cases referred to:

 

(18) Dimes v. Proprietors of Grand Junction Canal 10 E.R. 301 (1852).

(19) R. v..Camborne Justices and another (1955) 1 Q.B. 41; (1954) 2 All E.R. 850.

(20) Eckersley and others v. Mersey Docks and Harbour Board (1894) 2 Q.B. 667.

(21) R. v. Rand and others (1865-66) L.R. 1 Q.B. 230.

(22) Colonial Bank of Australasia and another v. Willan (1873-74) L.R. 5 P.C. 417.

(23) R. v. Cheltenham Paving Commissioners 113 E.R. 1211 (1841)

(24) R. v. Recorder of Cambridge 120 E.R. 238 (1857).

 

American cases referred to:

 

(25) No. 721 Jewel Ridge Coal Corp. v. Local No- 6167, United Mine Workers of America and others 89 L.Ed. 2007 (1945).

(26)      Korer v- Hoffman 212 F (2d) 211 (1954).

(27)      Gulf Research & Development Co.v. Leahy and others 193 F(2d) 302 (1951).

(28)      Roche and others v. Evaporated Milk Ass. 319 U.S. 21 (1943).

(29)      Minnesota & Ontario Paper Co. and others v. Molyneaux 70 F (2d)545 (1934).

           

Y. Ben-Menashe for the applicants.

Z. Bar-Niv, State Attorney, and P. Albek for the respondent.

 

LANDAU J. This is an application for leave to appeal against the decision of His Honour Judge Kisser dismissing the applicants' application for consent to transfer to another judge the hearing of a guardianship claim pending before him as a sole judge of the Tel Aviv-Jaffo District Court.

 

            In those proceedings the Attorney-General had sought an order against the applicants to remove their three children from a Christian missionary institution where they were and to arrange for their admission to a Jewish school. The application to transfer the hearing was based on section 36 of the Courts Law, 1957. At the beginning of his decision in question Judge Kister said

           

"Section 36 deals with a transfer from the court of one locality to the court of another locality, and since Mr. Ben-Menashe does not ask for the matter to be transferred to the District Court of another locality, for that reason alone the application is to be dismissed."

 

Nevertheless the judge went on to deal with the application on its merits and found no cause for disqualifying himself from sitting and hearing the action.

 

            On the application for leave to appeal Mr. Bar-Niv, the State Attorney, raised the fundamental question of the correct interpretation of section 36 and the remedy of a party who contends that a judge is disqualified from sitting.

           

            Section 36 provides:

           

"Where a matter has been or is to be brought before a District Court or Magistrate's Court in one locality, the President of the Supreme Court or his Permanent Deputy may direct that it be dealt with by a court of the same level in another locality; but a direction under this section shall not be issued after the commencement of proceedings in the matter save with the consent of the Judge who has begun to deal with it."

 

The learned State Attorney submits that the section is to be read literally: it speaks of the transfer of a matter from the court of one locality to the court of another locality and does not deal with the transfer of a matter from one judge to another in the same court. In this connection he asks us to demur from previous decisions of this Court expressing a view contrary to his. The first of these decisions was given in Goldenberg v. President of Tel Aviv-Yaffo District Court (1) which involved an order nisi to transfer the hearing of a civil action from the judge dealing with it to another in the same court. It was said there by Olshan P. (at p. 2208) that

 

"We are of the opinion that in making the present application the

petitioner erred as regards jurisdiction.

 

The petitioner argues that an application to transfer a hearing fromone judge to another has actually the character of an application for prohibition and for that, he urges, one must apply to the High Court of Justice.

Even if the petitioner is right in assimilating an application under section 36 of the Courts Law, 1957 to an application for prohibition, the answer is that if a given matter for which prohibition is desired is regulated by the legislature in a particular manner, it must be determined in accordance with the manner laid down by the legislature. Clearly, according to the rule found by the President (Zmoira) in Weinberg v. Attorney-General (2) the transfer of a hearing to another locality includes its transfer to another judge. It is therefore obvious that under the legislature's regulation of the matter in section 36 of the Courts Law, 1957, the petitioner's application falls within the section. Hence the course pursued by the petitioner in this instance is not well-founded."

 

In H.C. 282/63 Rehana v. Atory (unreported) this Court followed Goldenberg(1) and held that where the judge who is sitting in a case refuses to disqualify himself and for that reason the applicant cannot obtain a transfer of the proceedings under section 36 of the Courts Law, no jurisdiction is conferred on the High Court of Justice to transfer them to another judge.

 

            Weinberg (2) was decided before adoption of the Courts Law and Goldenberg (1) and the unreported case after its adoption. In both of the latter two this Court accepted the rule in Weinberg as binding without especially examining the effect of section 36 and without argument on the question, both being heard in the presence of the applicant alone. Here Mr. Bar-Niv has argued that section 36 has made a basic change and therefore the rule in Weinberg (2) no longer applies Moreover, he has cast doubt upon the correctness of the Weinberg rule itself at the date when it was given. I accept his argument and also concur in his doubt.

           

            In Weinberg (2) Zmoira P. explained the English concept of "change of venue", found in section 21 of the Courts Ordinance, 1940, and held that it also bears the broad meaning of the transfer of a matter from one judge to another. May I be permitted to say that it bears this meaning with great difficulty. In any event, there is no dispute that the common meaning of "change of venue" refers to the locality of a trial, and historically the particular place to which the jury has been summoned. A change of venue is called for when fear exists that because of conditions prevailing in a given locality, such as inflamed public feeling, a jury cannot be mustered which will be able to deal with the matter impartially (Blackstone's Commentaries, vol. 3, p. 383).

           

            Why, nevertheless, did the Court in Weinberg (2) adopt the forced meaning of "change of venue"? Because "without such meaning it would be impossible for a defendant to apply for disqualification of a judge" (at p. 597), the Court pointing out that section 62 of the Ottoman Civil Procedure Law had been repealed without replacement. It appears to me that even failing express provision of enacted law a source can be found for the rules regarding the disqualification of judges. I shall return to this question later.

           

            Even if it is possible to rely on Weinberg (2) for the meaning to be given to the English concept of change of venue, it cannot be treated as a precedent for the construction of section 36 of the Courts Law which, written in Hebrew, speaks of the transfer from one locality to another. In the course of the enactment of the section both aspects - transfer from locality to locality and transfer from judge to judge - were in the contemplation of the legislature. Clear evidence of that is to be found in the bill of the Courts Law published in Reshumot. Section 46 of the bill contained the substance of section 36 of the Law as finally adopted and section 39 covered "the circumstances in which a judge shall not sit". The latter is omitted from the Law in its final text and we do not know who or what brought about its omission... .

           

            The phrase "a District Court or Magistrate's Court in one locality" is quite clear in its literal sense. It deals with the court as an institution and not with the judge as a person. A "personal" meaning cannot be forced into the word "locality" which it does not possess. From the fact that in Weinberg (2) "change of venue" was held to mean both a transfer of locality and a transfer of judge, one may not deduce that in Hebrew the former means also the latter.

 

            Moreover, section 36 refers to a matter which has been "or is to be brought" before a particular court. The locality of the court before which a matter is to be brought is fixed by law but there is no provision of law which from the outset compels a particular matter to be brought precisely before a particular judge. That is left to the discretion of the President of the court under sections 4(b) and 16(b) of the Courts Law or the Chief Magistrate in consultation with the judges of the Magistrate's Court under section 26. as the case may be.

           

            The latter part of section 36, regarding transfer of a matter after proceedings have commenced, was added (in the Knesset) to safeguard the independence of the judges, so that no matter which they had already commenced to hear should be withdrawn from them against their wishes. That does not go at all to the question of the personal disqualification of the judge dealing with a matter. Furthermore, had section 36 also dealt with a judge's personal disqualification, why distinguish between a trial which has not yet begun and one which has, and only in the latter event require consent of the judge concerned?

           

            Accordingly, I maintain that section 36 of the Courts Law merely prescribes the mode of transferring a matter from one court to another in point of locality, like the classic change of venue, and it has nothing to do with the disqualification of the individual judge. Hence the learned judge was right in the point he made at the beginning of his decision on the subject of the present application, which is enough for dismissing it.

           

            Since, however, the basic question has been raised as to the remedies available to a party seeking to disqualify a judge for reasons of bias, I shall add a number of observations to elucidate this important subject.

           

            The learned State Attorney submits that in Israeli law there is no disqualification of judges at all and the only remedy of a party who feels aggrieved by a judge's bias is to appeal for annulment of his judgment. Mr. Bar-Niv sought to deduce this from the omission of section 39 of the bill, as above, from the final text of the Law, as well as from the judgment of the House of Lords in Dimes v. Grand Junction Canal (18).

           

            I cannot go along entirely with the State Attorney in his submission. We can only deduce from the omission of section 39 of the bill that the Israeli legislature abandoned the attempt of defining in enacted law the grounds for the disqualification of judges, but its silence does not prevent us from referring to the sources of English Common law to fill the gap in our legal system. It is necessary, in my opinion, to have recourse to these sources in this regard since it is unthinkable that a party in this country should be powerless before a biased judge. We may indeed find in Blackstone (vol. 3, p. 361) an extreme view similar to that of Mr. Bar-Niv.

           

"By the laws of England also, in the times of Bracton and Fleta, a judge might be refused for good cause; but now it is otherwise, and it is held that judges and justices cannot be challenged. For the law will not suppose a possibility of bias or favour in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea. And should the fact at any time prove flagrantly such, as the delicacy of the law will not presume beforehand, there is no doubt but that such behaviour would draw down a heavy censure from those, to whom the judge is accountable for his conduct."

 

Blackstone's teaching that disciplinary sanction against the biased judge is sufficient did not, however, find favour with the English courts, witness the judgment in Dimes (18). There the Lord Chancellor himself had decided a matter affecting a company in which he was shareholder but the House of Lords did not hold back from setting aside the judgment. In doing so, it adopted the opinion of Parke B. (at p. 312), who said

 

"We think that the order of the Chancellor is not void; but we are of opinion that as he had such an interest which would have disqualified a witness under the old law, he was disqualified as a Judge; that it was a voidable judgment...."

 

            This court has followed English case law when the bias of persons possessing judicial powers was in question (Shimel v. Competent Authority etc. (3); Ulame Gil Ltd. v. Yaari (4)]. Examination of the precedents cited in Shimel, and particularly R. v. Camborne Justices (19) also cited to us by Mr. Bar-Niv, shows that as regards the substantive rules of disqualification by reason of bias no difference exists between judges and other persons possessing judicial powers.

           

            The main question is not as to the substantive rules but the procedural means by which these rules can be effectuated, and more precisely a party's remedy against a judge who refuses to disqualify himself. If the decision on disqualification is left solely to the judge himself, acting in accordance with his conscience, the inevitable consequence will be that if he does not find himself disqualified, he is not to be disqualified subsequently in an appeal against his judgment in the dispute between the parties. We have already seen that this is not the Common law rule and Mr. Bar-Niv also did not suggest that. Of possible solutions of the problem, the extreme one is that a judge must withdraw immediately upon a party raising the question of disqualification. Only in such a case can we speak of the actual disqualification of a judge by a party. That is the position in England with regard to county court judges (see County Court Rules, O.16, r. 2, in County Court Practice, 1963, p. 389). An intermediate solution is that the decision rests initially with some other authority, under the French Criminal Procedure Code (articles 668 ff.) the senior presiding judge of the Court of Appeals (see also articles 378 ff. of the French Civil Procedure Code, which inspired section 62 of the Ottoman Civil Procedure Law) or the court of which the judge whose disqualification is sought is a member (that seems to be the statutory arrangement in the Military Jurisdiction Law, 1955, sections 310-15, 343 ff.). Under Common law the disqualification of a judge is clearly a cause for annulling his judgment after close of the trial. But it is undesirable that a party should be without remedy to effectuate a substantive right of his until that late stage. If the judge is really disqualified, it is a waste of the time and effort fruitlessly invested in proceedings which will ultimately be set aside. In England indeed prohibition may lie against a judge of an "inferior" court which will bar him from continuing to hear a case (Halsbury Laws of England, 3rd ed., vol. 11, p. 114), and this Court so proceeded in Ulame Gil Ltd. (4). As regards courts which are not "inferior" I have not come across any English decision to the effect that the only remedy is appeal at the end of the case. Dimes (18) did not so hold but left the question open. As Parke B. said (at p. 312)

           

"If this had been a proceeding in an inferior court, one to which a prohibition might go from a court in Westminster Hall, such a prohibition would be granted, pending the proceedings, upon an allegation that the presiding Judge of the court was interested in the suit; whether a prohibition could go to the Court of Chancery, it is unnecessary to consider" (emphasis added).

 

 (The necessity for that did not arise because the proceedings before the Lord Chancellor had already terminated when the House of Lords dealt with his disqualification.)

 

            Since the enactment of the Courts Law, 1957, we are no longer bound, in my opinion, to the rules relating to prohibition in England, and the distinction between the Magistrate's Court as an "inferior court" and the other courts with which the Law deals has ceased to exist. Henceforth we must find the answer to the question before us - whether in fact appeal after close of proceedings is the only remedy available to a party who alleges that the judge is disqualified - within the frame of the Courts Law itself. Prima facie matters of this kind come under section 7(b)(3) dealing with the jurisdiction of the High Court of Justice to order that individuals having judicial powers refrain from dealing or from continuing to deal with a particular matter. But what of the proviso which excludes from the application of the Law "courts dealt with by this Law"? I do not find this proviso an obstacle to the exercise of the jurisdiction of the High Court of Justice. A judge who rejects the submission of a party that he is personally disqualified from dealing with a matter brought before him does not thereby exercise the jurisdiction of a court but expresses his opinion on the preliminary question of his personal qualification to sit in trial; and no question arises here of the jurisdiction of the court as such. In other words, the decision of a judge not to disqualify himself (as well as his decision to disqualify himself) is not a judicial decision in the full sense of the word but pertains to "the border country" of judicial administration, similar to the decision of the President of a court that a particular judge should hear a given case. This is patent when a court sits, for example, in a bench of three and a plea of disqualification is raised against one of the three judges. If he does not think himself disqualified and his two colleagues disagree with him, the latter, in my view, cannot force him by a majority decision to withdraw (in the absence of express statutory authority as in the Military Justice Law). The decision to continue dealing with the matter is therefore his personal decision and not the decision of the court. And it makes no difference if the court consists of a single judge since we must still distinguish the court as an institution having jurisdiction and the judge who serves on it. Moreover, a judge's decision not to withdraw is taken by him on the basis of facts relating to him personally and known to him more than to others. Such a decision is accordingly the complete opposite from a judicial decision on the basis of facts proved before the court in the customary manner. It should be noted that in French civil procedure enacted law accords an express right of appeal against a decision regarding the disqualification of a judge (article 391). In discussing the question whether this right of appeal is also available to the side opposing disqualification, Glasson and Tissier, Procedure Civile, (1925) vol. 1, p. 155, say

 

"Il ne s'agit pas ici d'un litige a juger, mais plutot d'une question d'administration judiciaire, de la composition du tribunal qui doit statuer sur un litige."

 

I should add that even if I thought that the matter did not come under section 7(b)(3) I would find occasion in this context to exercise the general powers of the High Court of Justice under the first part of section 7(a), as this Court suggested in Rubinski v. Competent Officer etc. (5) regarding a decision of a District Court which was void ab initio.

 

            In the United States the dominant rule is that a judge can be compelled by mandamus or prohibition not to deal with a matter which he is disqualified to hear (45 A.L.R. 2nd, pp. 938 ff.) and this rule obtains even without express statutory provision (8 A.L.R. pp. 128, 1240).

           

            As will be recalled, it was said in Goldenberg (l) that the High Court of Justice has no power to deal with an application for transfer of proceedings from one judge to another. This view is based on the ground that another remedy exists in section 36 of the Courts Law. I have tried to show above that section 36 does not apply to such an application, and if I am correct, the ground of alternative remedy falls away. It should also be remembered that Weinberg (2) decided in 1950 that no order is to be made against a District Court judge to refrain from sitting in a particular matter because that court is not an inferior court. As I have explained, this decision is not to be followed after the enactment of the Courts Law.

           

            Since the decision of a judge not to disqualify himself is not the judicial decision of a court, no interlocutory appeal lies against it. Apart from that, this remedy creates unjustified discrimination between civil proceedings in which interlocutory appeals are possible and criminal proceedings in which they are not. What is the difference between an interlocutory and a final appeal, for we have already said that the question of the judge's disqualification can be raised in an appeal against his judgment? The answer is that at the end of the trial the submission is not that the judge was disqualified from the outset but that the judgment of the court is defective as a result of his disqualification.

 

            Consequently the correct way to plead disqualification of a judge about to sit is, in my opinion, to apply to the judge to disqualify himself, and if he is not prepared to do so, the remedy is an application to the High Court of Justice.

           

            Nevertheless I wish to observe that the Court will certainly attach great weight to the position taken by the judge concerned and will interfere only in an extreme case with his opinion that he may sit. The court will so act with regard to the facts of the case, as to which the judge is deemed to be trustworthy, as well as with regard to the conclusions stemming from them, since the presumption is that a judge has properly searched himself, remembering his declaration of allegiance "to dispense justice fairly, not to pervert the law and to show no favour". In order, however, to preserve the confidence of the public in its judges of all ranks the possibility of reviewing a judge's decision must not be yielded entirely. I have expressed my view about lex lata as I see it. Possibly, de lege ferenda a more convenient solution may be found, perhaps along the line of the President of the Supreme Court reviewing the judge's decision (without the necessity of the judge concerned giving his consent) or of laying down special procedural provisions for the hearing of petitions of this kind by the High Court of Justice.

           

            Finally, I wish to consider briefly two matters connected with the contents of the application before us, which relate to the substantive law on the disqualification of judges. I do so in order to save the parties from further litigation over the question. The application to his Honour Judge Kister contained six grounds. Among them the following observation occurs six times as a refrain: "Your Honour is known to have no predilection but many persons, not necessarily reasonable people, will draw the conclusion" etc. This very repetition gives the application a vexatious character. The phrase "not necessarily reasonable people" is taken from the judgment of Lord Esher in Eckersley v. Mersey Docks (20) (at p. 671). Later cases have criticized it not once as being too wide. If indeed the court were to take heed of the views of unreasonable people there would be no end to the matter. The criticism is collected in R. v. Camborne Justices (19) where the court preferred the formula of Blackburn J. in R. v. Rand (21) that the applicant must show "a real

possibility of bias", a test which this court adopted in Shimel (3) (at p. 462).

 

The sixth ground of applicant's counsel was as follows:

 

"Your Honour is known to have no predilection but it is also known that your Honour is a judge with orthodox religious views and must decide in this case whether in your opinion being educated in another religion is not detrimental to the children. Apparently many persons, not necessarily reasonable, would conclude that it is not proper for a Jewish orthodox judge to act in a matter involving the school of another religion and requiring him to decide whether being eucated in another religion might be detrimental to a Jewish child."

 

Any one reading these words literally cannot but understand that an attempt is being made here to disqualify a judge from sitting because of his personal outlook - in the instant case his orthodox religious outlook. Mr. Ben-Menashe made a great effort to persuade us that this was not the intention and finally waived this ground in its entirety. He would have done better had he not indited these tasteless words. I would have thought it unnecessary to explain that a judge may have his own personal outlook. Certainly he must guard against his beliefs and opinion about the condition of society under which he lives distorting his fidelity to the letter and spirit of the law. The judges of Israel are presumed to know how to fulfil this obligation of theirs. In no manner is room to be given to the notion that a litigant is only to be tried by a judge whose personal outlook meets with his approval. No legal system could operate on such terms.

 

            Among the five other grounds for disqualifying His Honour Judge Kister, Mr. Ben-Menashe mentions the judge's observations in an interlocutory decision, which according to counsel display preconceptions about the question the judge was to deal with. An interlocutory decision of 26 March 1963 refers to a submission by counsel for the children's parents, that the Attorney-General has no power to intervene with regard to the children's custody and therefore his application should be struck out. Counsel for the parents appeared only after the judge had already heard some of the witnesses. In the said decision the judge dealt at length with some of the general problems involved in the education of children in a religion not their parents' and with the operation of Christian missionary institutions in this country. In this regard he mentions also evidence previously given. The learned judge expressed inter alia a negative view on the free education given to children by missionary institutions. The judge treated as discreditable such material benefits to parents, and he also suggested - basing himself on the evidence of the welfare officer that the father had requested a sum of money for his consent to the children being withdrawn from the missionary institution- that the father might have received from that institution consideration in addition to being relieved of financial expenses. He also expressed his opinion that a religious community seeking to save the souls of members of another community must desist from all illegitimate means "such as deception and bribery and generally to avoid any suspicion of reprehensible activity". Of the father, the judge said that "if a person suggests bribery and is dazzled by it, he can slander all the education provided by the State".

 

            I do not think that all these remarks were necessary for the interlocutory decision on the submission in law of want of jurisdiction. I also doubt greatly whether there was even occasion in response to Mr. Ben-Menashe's concrete request for the observation that "indeed we perceive the corrupt source of the idea of disqualifying an orthodox Jewish judge in this country, the sullied well from which people who so desire draw their views". (What is meant here is Nazi thinking.) So general an observation, written it seems in an angry moment does not, however, give ground for any real fear that the learned judge would not know how to decide impartially between the parties in accordance with the law and the evidence adduced. As for the father "suggesting bribery", I understand that to refer to the benefit which the father obtained from the free education the children received in missionary institution. Although not happily phrased, these words are merely interpretative of what had been said in court down to that point. The judge observes a number of times in his decision that he was for the moment dealing with prima facie evidence and at p. 6 he says:

           

"After going into the question - of education in institutions where there are parents alive and of education in another religion and the influence on the child - in general and without making any finding of the facts in the present case at this stage so long as I have not heard all the evidence and the parties have not made their submissions regarding the circumstances of the case, I must turn to the legal aspect...."

 

These explicit remarks take the sting out of a number of the judge's observations and demonstrate that he approached the matter before him with the required caution and without preconceptions, as a judge should. There is accordingly no ground for Mr. Ben-Menashe's fear that his client will not enjoy a fair trial.

 

            In sum, the application before us was not properly made and for that reason must be dismissed. I would add that it also has no foundation on the merits.

           

WITKON J. With respect I agree to all that my honourable friend, Landau J., has said regarding the non-applicability of section 36 of the Courts Law, 1957, to a case such as the present but I disagree with his proposal to open the High Court of Justice to litigants who are dissatisfied with the refusal of a judge to disqualify himself.

 

            I do not dispute that the decision of a judge not to disqualify himself (and perhaps even his decision to disqualify himself) should properly be subject to review by another judicial body. Such review might well be left to a different court or to a different judge of the same court. What is important is that a judge should not be the final arbiter regarding his disqualification. But to bring the matter within section 7 of the Courts Law we must first determine that a judge's decision regarding his disqualification is an administrative and not a judicial decision. That is not free from doubt. The difference between a judicial and an administrative act is not firmly based and the boundary is a shifting one. In point of classification no absolute difference exists between an administrative act (when imposed on a judge) and a judicial act. We were exercised with this problem, inter alia, in Perah v. Attorney-General (7). There, a Magistrate decided that gold, in respect of which an offence was committed entailing expropriation, should be returned by the police to the true owner who was guiltless of the offence. The question was whether the decision made under section 388 of the Criminal Code Ordinance, 1936, was part of the sentence against which the Attorney-General might appeal or whether it was an administrative act in which only the High Court of Justice could intervene. The question was left open but I wish to say at once that there was no reason to have raised the problem had it not been clear that no appeal lies against a purely administrative decision.

 

            Deeper research was devoted by Berinson J. to the distinction between judicial and administrative acts in Kluger v. Inspector General of the Police (8). That case involved a search and seizure warrant issued in the course of criminal proceedings. The element common to this and the previous case is that in both the order affected a third person not party to the proceedings. Here the High Court of Justice intervened on the application of the third party. Berinson J. had the following to say about its power to do so:

           

"The question arises whether in issuing the search and seizure warrant the judge acted as a court or merely performed an administrative act even though it involved judicial discretion. It seems to me that basically the function was administrative, although not ... a function of executing a judgment like activating conditional imprisonment for instance. Here the judge is not activating another's decision but is deciding in his discretion and on the basis of prima facie evidence adduced to him that the statutory conditions for issuing a search and seizure warrant have been fulfilled. For all that, the issue of such a warrant is unlike a pure judicial act of a court. It can be issued before trial and even before any one is charged and there is no procedure for joining persons concerned in the matter or liable to be prejudiced by the warrant in the proceedings before the judge. Such a warrant may affect the interests of a bystander not directly connected with the matter itself in respect of which the search warrant is claimed and issued. Even when it is issued in the course and for the purpose of a criminal trial, it is still not an integral part of the trial but a side issue secondary thereto. A person prejudiced by it has no way to test its lawfulness or correctness in any court other than this Court which is thus competent to deal with the matter under section 7(a) of the Courts Law, 1957. The present case is closely, if not entirely, similar to Gilah v. Jerusalem Magistrate (9). Here as there the sitting judge held that the matter was within his competence whilst hearing another trial. Here as there the judge's decision was not open to appeal or other judicial review. Here as there the person who felt himself aggrieved by the decision was not a party to the trial within which it was given. Accordingly, here as there the applicants can ask for relief from this Court in pursuance of section 7(a) of the Courts Law" (at p. 1271).

 

In that case application was made for a Further Hearing - Societe des Ateliers etc. v. Kluger (10). Cohn J. summed up the law as follows:

 

"Within the framework of the relief mentioned in paragraph (3) of section 7(b) of the Courts Law, 1957, the High Court of Justice will not take cognizance of judicial decisions of District Courts or Magistrate's Courts, whether or not appeal against them is possible. It is otherwise within the framework of the relief mentioned in paragraph (1) or (2) of section 7(b) or within the wider framework of the relief under section 7(a). When performing an administrative act, a judge is also a state organ and in doing so exercises a lawful function. The rule that the High Court of Justice is competent to interfere with administrative acts even if done by a judge is nothing novel" (at p. 1540).

 

            There is no doubt that in the course of his ordinary work the judge makes decisions having an administrative character, the remedy against them lying with the High Court of Justice. But, as I have already said, a decision may frequently be of a mixed nature with features of both kinds. It can then be said that if the person aggrieved has a clear right of appeal, the indication is that the judicial aspect is decisive. On the other hand, lack of a right of appeal opens the path to the High Court of Justice for the aggrieved person. And where a right of appeal is available against a decision which as such and in what it involves is an administrative decision, the matter can only be resolved by converting the decision into a judicial one. Thus no clear distinction exists between the two.

           

            A judge's decision not to disqualify himself may, no one disputes, be challenged by the aggrieved person by appeal against the decision of the judge on its merits. I am alive to the fact (pointed out by my friend, Landau J.) that disqualification is only incidental to such an appeal and not in itself the subject of appeal. Nonetheless, in my opinion, it is sufficient that a judge's decision not to disqualify himself can be tested in the course of the appeal, even if only in this manner. The decision thus assumes the form of a judicial decision, and once again cannot be contested in the High Court of Justice. Obviously, I can also reach the same conclusion under the express rule in section 7(a) of the Courts Law that the High Court of Justice will not intervene in matters which are within the jurisdiction of any other court. I think that the existence of another remedy in the present case closes the path to the High Court of Justice completely.

 

            The rule is that the High Court of Justice does not order prohibition where the aggrieved person has a right of appeal against the decision likely to affect him. In my opinion, it is immaterial to the application of this rule whether the order is sought simply against a court or a particular judge of a court. As far as I know, prohibition has never issued in this country simply against a court when a right of appeal exists. An attempt at that in Kvutzat HaHugim Bet HaShitah v. Haifa Committee etc. (11) was unsuccessful. Although the Court did not utterly deny the "co­existence" of prohibition and appeal, it should be remembered (a) that a special tribunal was involved in that case, (b) that appeal against the tribunal's decision went only to the District Court and (c) that the Court considered the possibility of ordering prohibition in cases only of manifest want of jurisdiction. (See the precedents cited at pp. 125-28.) It is in this spirit - delimiting the ambit of the applicability of prohibition - that I understand the remarks of Agranat J. in Rubinski (5).

           

            Another attempt to obtain a High Court order against a District Court this time by mandamus requested by a third party in an "administrative" matter - failed in Israel Film Studios Ltd. v. Jerusalem District Court (12). Moreover in Kravchik v. Attorney-General (13) the High Court of Justice dismissed an application for an order against the Attorney-General to discontinue a criminal action (on the ground of autrefois acquit) on the ground that the applicant first had to address himself to the Attorney-General. Although the Court pointed out that because of that its intervention was premature, in a later case, Mahviti v. Attorney-General (14), it refused to intervene in a trial pending in the Magistrate's Court. The question whether prohibition can issue against the President of the Supreme Court was left open in Dvik v. President of the Supreme Court (15). Finally, I should mention Attorney-General v. Beersheba Traffic Judge (16) where the High Court of Justice made an order against a Traffic Judge to refrain from continuing to hear a case after the Attorney-General had ordered a stay; this case is different from the one before us since after a stay order the competence of a magistrate ceases entirely.

 

            Should it be urged that appeal is not a sufficiently effective remedy and therefore the matter merits the attention of the High Court of Justice, I would answer by way of preliminary that cases may occur where a party raises the question of the court's composition even before it has been determined by its President under sections 4(b) or 16(b) or by the Chief Magistrate under section 26 of the Courts Law: and it appears to me that the determination is an administrative act which the aggrieved party might well ask the High Court of Justice to review. After commencement of trial, however, a party unsuccessfully seeking the disqualification of a judge can only seek his remedy on appeal. I would say that on a balance of the instances and convenience that this is more effective and seemly than application to the High Court of Justice, even if in the meantime the party must bear with the judgment and wait for his remedy until the appeal reaches its turn. In practice, however, I see no reason for preventing an interim appeal (after leave) against a judge's decision not to disqualify himself. It is very true that this possibility exists only in civil cases as distinct from criminal. But this difference between the two kinds of trial obtains in any event and the discrimination affects every accused person raising a preliminary issue regarding the charge sheet or the jurisdiction of the court, since he cannot appeal against the decision of the court which dismisses his plea and must stand perhaps lengthy trial with all the distress and hardship that entails.

           

            Perhaps the most important consideration against transferring this jurisdiction to the High Court of Justice is that it is not at all a convenient forum for going into the problem. In this Court the judge becomes the respondent and if the petitioner has levelled against him an empty charge, is it not unbecoming for the judge to enter an affidavit in reply on which he may be examined? And what will happen if the other party concerned is not ready to support the judge's decision not to disqualify himself? Such problems and the like do not arise when the remedy is by way of appeal for then the judge has the opportunity to explain in his decision the position he has taken and the party may contest it and even contradict it by affidavit but cannot compel the judge to debate it with him. I therefore believe that to open the High Court of Justice to a party dissatisfied with a judge's decision not to disqualify himself is not only unnecessary for justice to be done but is also inconvenient and undesirable.

 

            Like my friend Landau J., I also wish to add a few observations on the merits of the case. I join in the view that there was no room for Judge Kister to disqualify himself from sitting in the case or even to ask him to disqualify himself. And I also find that the very request was in bad taste. Nevertheless I would like to explain why I think that the honourable judge was not disqualified. He himself reacted to the applicants' request in an exaggerated fashion and among his reasons for not disqualifying himself there were some that were irrelevant. Nobody argued that a Jewish judge, even an orthodox Jew, is incapable of dealing without preconceptions with matters affecting members of another religion. The argument was confined to the concrete case before the judge of a Jewish child whose parents had sent her to a Christian missionary school. In such a case, the applicants urged, an orthodox Jew has firm views of a wholly negative nature. Is that a reason for disqualifying an orthodox Jewish judge?

           

            In my opinion, it is not. The question whether the State should rightly and properly interfere with the decisions of parents to send their children to mission schools is debatable. On the one hand one need not be an orthodox Jew to regard such action with profound concern. Educationally it is certainly undersirable to create conflict in the minds of very young children and bring them up in a manner which ultimately will erect a barrier between them and the large public among whom they will be living. On the other hand one recoils from any interference in the freedom of parents to educate their children as they think fit; equally one must be careful not to prejudice freedom of religion and to avoid excessive interference by the state in the free competition of opinions and views in the religious and other spiritual fields. It is precisely the Jewish people largely living in the Diaspora which is sensitive to such interference. For the purpose of the present application we do not have to decide which of these two considerations (and perhaps others of the same kind) we should prefer. That is the task of the judge dealing with the case on its merits. Here we are only concerned with the question whether the judge is disqualified. To this end we must emphasise with the utmost clarity that a judge - be his personal outlook what it may - is presumed to know how to give all important considerations their full weight and importance. Such moderation is a characteristic of a judge qua judge. Hence it is wrong and truly prejudicial to the judiciary itself to request a judge to disqualify himself because of his "religious" or "non-religious" views (to use these unhappy terms) or because of his views in other areas. I am sorry that the present applicants could not understand that.

 

BERINSON J. I concur in the judgment of Witkon J. and have nothing to add.

 

AGRANAT D.P. I agree with the conclusions of my honourable friend, Landau J., that section 36 of the Courts Law does not bear the meaning that it is designed to accord a remedy to a party claiming the disqualification of a judge but only prescribes the manner of transferring a matter from one court to another in point of locality. Such conclusion is sufficient to defeat the application before us, but I must add that I also join in the view of my friend, denying the very argument of disqualification raised by applicants' counsel.

 

            On the important basic question over which my friends, Landau J. and Witkon J., are divided - whether the High Court of Justice should be open to a person who quarrels with a judge's decision regarding his personal disqualification to deal with a case - I side with Witkon J., that it is impossible to grant such person the relief provided for in section 7(b)(3) of the Courts Law. My reason for that is that such a decision - and here with all respect I disagree with the view of Landau J. - is of the kind that goes to the Court's jurisdiction to hear and decide a matter, civil or criminal, before it. I shall explain myself.

           

            "Jurisdiction" means the power of a tribunal to conduct a judicial hearing and to decide a matter pending before it; if conditions are set for the exercise of this power, then every decision as to whether these conditions have been met is a decision concerning the tribunal's jurisdiction to try the matter. In this regard, it is clear to me, there is no place for distinguishing between conditions precedent that affect the material and local jurisdiction of the tribunal asked to try a particular matter and conditions that affect the qualifications of the judge about to do so. If the judge concedes the argument of his disqualification, the decision means that the tribunal in the given composition is not competent to hear and decide the matter. If the argument is rejected, itmeans that the tribunal in the given composition is fully competent. Support for this view may be found in the observations of the Privy Council in Colonial Bank of Australasia v. Willan (22) at pp. 442-42:

 

"It is necessary to have a clear apprehension of what is meant by the term 'want of jurisdiction'. There must, of course, be certain conditions on which the right of every tribunal of limited jurisdiction to exercise that jurisdiction depends. But those conditions may be founded either on the character and constitution of the tribunal or upon the nature of the subject-matter of the inquiry, or upon certain proceedings which have been made essential preliminaries to the inquiry, or upon facts or a fact to be adjudicated upon in the course of the inquiry... Objections founded on the personal incompetency of the Judge, or on the nature of the subject-matter, or on the absence of some essential preliminary, must obviously, in most cases, depend upon matters which ... are extrinsic to the adjudication impeached."

 

And at pp. 443-44:

 

            "In Reg. v. Cheltenham (23) ... the objection was that the Court which passed the order was improperly constituted, inasmuch as three of the magistrates who were interested took part in the decision. And Reg. v. Recorder (24) proceeds on the same ground... In cases which fall within the principles of the last-mentioned decisions the question is, whether the inferior Court had jurisdiction to enter upon the inquiry, and not whether there has been miscarriage in the course of the inquiry."

           

See to the same effect de Smith, Principles and Scope of Judicial Review, p. 67; Street and Griffith, Principles of Administrative Law (1952) p. 205; and D.M. Gordon in (1931) 47 L.Q.R. 407: "Jurisdiction must be complete before a tribunal can make any move at all... . It is simply a right to take cognizance."

 

            It follows that I am wholly at one with my friend when he says that a judge who rejects a plea that he is disqualified to try a matter "is (merely) expressing an opinion on the preliminary question of his personal qualification to sit in judgment" and therefore "no question arises here of the jurisdiction of the court as such." In my judgment when a judge dismisses such a plea it means that the court in its given composition is competent to deal with the case in hand just as in the reverse it is not. The legal position will not change if the judge against whom the plea of disqualification is directed is sitting in the company of other judges. I would agree with my friend that in this last event the responsibility of deciding on the plea of disqualification rests on the judge alone who is concerned and the others cannot participate therein or force upon him their view of the plea (see the remarks to this effect of Justice Jackson with regard to the practice in the Supreme Court of the U.S., with which Justice Frankfurter agreed, in Jewel Ridge Coal Corp. v. Local No. 6167, United Mine Workers of America (25)). But the decision of the judge to dismiss the plea will bind the entire court and by virtue thereof it will in its given constitution hold the trial; in the same way his decision to withdraw from the case will bind the entire court and it will be unable to sit until it is properly constituted in accordance with the law. In both instances the decision is determinative of the question about jurisdiction to hear and decide the particular matter. Moreover, if appeal is lodged against judgment as a result of one of the judges deciding to dismiss the plea of disqualification against him and the plea is accepted on appeal, the judgment will be set aside because it was given by a court not having jurisdiction by reason of its defective consititution.

 

            It follows from the foregoing that in view of the proviso in section 7(b)(3) - "other than courts dealt with by this Law" - the High Court of Justice cannot possibly intervene with a decision concerning the qualification of a judge to deal with a particular matter in reliance on the first part of the paragraph.

           

            Can the High Court of Justice interfere with such a decision in reliance on section 7(a) of the Law? A condition precedent to such interference is that the matter in which relief is sought does not lie in the jurisdiction of any other court or tribunal. Hence our general approach must be not to open the doors of the High Court of Justice to any one contesting a decision dismissing a plea of disqualification. In contemplation of the view that a plea of this kind is akin to a plea going to a court's jurisdiction to hear and decide a matter before it, the decision may be upset by appeal against the judgment given at the end of the trial. Furthermore, in a civil case, there is the remedy of asking for leave to appeal against the decision forthwith upon its being given, just as it is available against a decision rejecting a plea regarding want of jurisdiction as to subject matter or place. It can therefore be said that in civil matters the necessity will in general not arise of applying to the High Court of Justice, for no one disputes that the remedy of appeal against an interlocutory decision is speedy and effective.

 

            The remedy last-mentioned does not exist in criminal proceedings and I was therefore exercised by the question whether in respect of such proceedings an appeal against judgment should not be treated as an effective means for the accused who protests against rejection of a plea of disqualification he has raised. This plea is different from a plea of want of jurisdiction in that it concerns the judge personally and thus protest against its rejection should be better reviewed immediately by another judicial body totally unconnected with the plea, a course which would help to "clear the air" at the very outset of the criminal proceedings and strengthen the accused's and the public's feeling that the plea has been objectively treated in a manner befitting it. I am, however, of the opinion that this is the ideal situation and so long as the legislature has not prescribed such special procedure we must act on the presumption that it is satisfied with the remedy of appealing against the outcome of the criminal trial, just as it is satisfied with the same remedy with regard to other pleas of want of jurisdiction in criminal matters, in view of the policy of the legislature to avoid interlocutory appeals in such matters. That was the view of the Federal Court of Appeals in Korer v. Hoffman (26) where it refused an application for mandamus against a judge who refused to disqualify himself in a criminal trial before him.

           

"Counsel for petitioner urges that denial of the writ means that petitioner will be forced to continue under the stigma, stress and strain of an indictment, and subject to restriction under bail, until a later day when his case may be reached and tried. Meanwhile, he must pay heavily in time, effort and expense to prepare his case for trial and suffer the ignominies of a trial. This is an appealing argument to which I know of no good answer other than that it is made in the wrong forum."

 

To emphasize all this the court mentioned the following precedents:

 

            "In response to a similar contention, the Court in Gulf Research and Development Co. v. Leahy...(27] stated: 'The mere fact that the petitioners will be put to the inconvenience and expense of what may prove to be a wholly abortive trial is an argument which might be addressed to Congress in support of legislation authorizing interlocutory appeals but does not constitute ground for invoking mandamous power'... . In Roche v. Evaporated Milk Ass. (28) ... the Court stated: 'Where the appeal statutes establish the conditions of appellate review, an appellate court cannot rightly exercise its discretion to issue a writ whose only effect would be to avoid those conditions and thwart the Congressional policy against piecemeal appeals in criminal cases.' "

 

            Although this approach in general should also guide us in matters of the last kind, I must add that I do not exclude the possibility that in rare and exceptional circumstances - as where strong evidence is produced regarding the material interest of a judge in the outcome of a trial - the High Court of Justice will interfere at an early stage so as to grant relief against a decision rejecting a disqualification plea. (See the remarks of the court in Minnesota and Ontario Paper Co. v. Molyneaux (29) and the judgment in Lalo v. Sussman (17).)

           

            Such are my observations on the broad problem dealt with by my two friends, a problem which, as I have indicated, calls for legislative amendment as soon as may be. As regards the application before us I am of the opinion that it should be rejected.

           

COHN J. I am also at one with the view of my honourable friend, Landau J., that section 36 of the Courts Law does not apply to a transfer from one judge to another, as distinct from one court to another. For this reason alone the present application must be dismissed. I myself see no need to enter into the question of the right path a litigant should pursue when he wishes to disqualify a judge in a particular case. It seems to me that the matter is for the legislature to decide, and perhaps one may regret that it missed the opportunity to do so when dealing with the bill of the Courts Law.

 

            Since, however, my learned friends also saw fit to address themselves to the question of what is the proper procedure for disqualifying a judge, I will only say that my view is like that of Witkon J. and Agranat D.P. and for the reasons they have given, that the High Court of Justice is generally not competent in such matters.

 

 

            Application dismissed.

            Judgment given on June 30, 1964.

H.C.J  144/50

 

 

SHEIB

v.

MINISTER OF DEFENCE;

DIRECTOR OF DEPARTMENT OF EDUCATION, MINISTRY OF EDUCATION AND CULTURE; AND

ASHER COHEN, PRINCIPAL OF THE REALI MONTEFIORE SCHOOL

 

 

           

In the Supreme Court sitting as the High Court of Justice

[February 8, 1951]

Before: Olshan J., Cheshin J. and Witkon J.

 

 

 

            Contract - Employment of teacher in private school - Circular by Education Department to principals of schools - Employment made conditional upon consent of Inspector of Secondary Schools - Unauthorised interference by Department of Education in internal affairs of teaching profession – Mandamus - Powers of Competent Authority - Right to receive advice - Competent Authority must itself make final decision.

 

                A teacher, Dr. Sheib, applied to the Principal of the Reali Montefiore School, Haifa, for employment as a teacher and was accepted subject to confirmation by the Department of Education in the Ministry of Education and Culture.

                Pursuant to a general request contained in a circular sent to the principals of all classes of schools by the Director of the Department of Education, that teachers should not be employed save with the consent of the Inspector of Secondary Schools, the acceptance of Dr. Sheib as a teacher had been made conditional by the Principal upon such consent being obtained. Dr. Sheib in due course received a letter from the Principal according to which the Inspector of the Department of Education had written to him that "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." Enquiries by Dr. Sheib elicited that the Principal, acting in accordance with the circular, had approached the Ministry of Education which in turn had consulted the Ministry of Defence, and that that Ministry had objected to his appointment as a teacher because he had urged the use of arms against the Defence Army of Israel and the Government of Israel. There was no evidence that the Director of Education had applied his own mind to the matter.

                Held, (Witkon J. dissenting) that the order nisi should be made absolute. Per Cheshin J. (a) There was nothing to prevent the Director from seeking advice on questions relating to his Ministry from other Ministries and officials, but he was neither directed nor entitled to carry out the will of others in matters in which he was the final arbiter.

                In this case, however, the Director - even assuming that he was authorised by law to object to the employment of Dr. Sheib - had not applied his own mind to the question but had acted solely on the direction of the Ministry of Defence which itself had no authority in the matter. His decision, therefore, was not properly given.

                (b) As the Reali Montefiore School was an entirely private school the only power under which the Director could act was that contained in S. 8 (3) of the Education Ordinance[1], which authorised him in certain cases to dismiss a teacher after the holding of a judicial inquiry. In the present case no such inquiry had been held and even if, as he alleged, Dr. Sheib had begun to work in the school before the objection had been notified - which was not clear - the Director had acted without authority.

                (c) Although the Director of Education had no authority to issue the circular or to object to the employment of Dr. Sheib and the Principal was therefore entitled to disregard these acts, in view of the de facto relationship between schools and the Ministry of Education, and having regard to the nature of a writ of mandamus, the court should make the order nisi absolute and set aside the notice of objection.

                Per Olshan J. Even if the circular were to be regarded as a simple request, in this case it constituted an interference in the internal affairs of the teaching profession without lawful authority.

                Per Witkon J. Even if an order setting aside the Inspector's opposition to the employment of Dr. Sheib as a teacher were to be made, such order would not operate as a consent the giving of which was made a condition (albeit unlawful) to the employment of Dr. Sheib. Notwithstanding, therefore, that the Director had exceeded his authority, the order nisi should be discharged.

           

Israel cases referred to:

(1)   H.C. 1/49 - Solomon Shlomo Bejerano and another v. Minister of Police and others, (1948/49), 1 P.E. 121.

(2)   H.C. 9/49 -Yehuda Blau v. Yitzhak Gruenbaum, Minister of Interior and others, (1948/49), 1 P. E. 225.

(3)   H.C. 22/49 - Michael Sabo v. Military Governor, Jaffa, (1949), g P.D. 701.

(4)   H.C. 47/49 - Matossian v. Dr. A. Bergman, District Commissioner of Jerunsalem and others, (1950), 4 P.D. 199.

(5)   H.C. 108/49 - Bouchman and Shoulyan v. Ya'acov Bergman. District Commissioner of Haifa, (1950). 3 P.D. 182.

 

English case referred to:

(6)        R. v. Barnstaple Justices, (1937) 4 All E.R. 263.

 

Weinshall, for the petitioner.

H. H. Cohn, Attorney-General, for the second respondent.

 

            CHESHIN J. This is the return to an order nisi calling upon the second respondent - the Director of the Department of Education in the Ministry of Education and Culture - to show cause why he should not withdraw his opposition to the employment of the petitioner as a teacher in the institution conducted by the third respondent.

 

2. The facts disclosed in the affidavits of the petitioner and the second respondent are as follows:

 

            The petitioner, Dr. Israel Sheib, a teacher by profession, has taught in various schools both in this country and abroad. He acquired his general education and professional qualifications in the Rabbinical Seminary of Vienna and in the Faculty of Philosophy in the University of that city. Before the outbreak of the Second World War the petitioner was a teacher in the Hebrew Teachers College of Vilna and after his immigration to Israel, in 1941, he was accepted as a teacher in the Ben-Yehuda Gymnasium in Tel Aviv. In April, 1944, he was arrested by the British Criminal Investigation Department on suspicion of underground activity, and was sent to the detention camp at Latrun. After two years, however, he managed to escape from the camp, and from then until the conclusion of the Mandate and the evacuation of the British forces from the country he continued to engage in activity in the "Lechi"1 organization which was operating underground at that time. When the underground movements were disbanded after the establishment of the State, the petitioner desired to resume his occupation as a teacher, and he approached various educational institutions for this purpose. His efforts, however, were of no avail - a fact attributed by him to his underground activity in the past and his political opinions which stood as an obstacle in his way. The petitioner, however, did not despair but continued his efforts to obtain employment as a teacher, and during the school year, 1950/51, he managed to secure a contract with the third respondent, the Principal of the Reali Montefiore School in Tel Aviv. This contract, however, was conditional upon confirmation by the Department of Education of the Ministry of Education and Culture and it would appear that the third respondent approached the Ministry in order to receive the confirmation required. On September 17, 1950, the petitioner received a letter in the following terms from the Principal of the Montefiore School : -

           

"I regret to inform you that according to a letter dated September 8, 1950, which I have received from the Department of Education, you may not be accepted as a teacher in our institution. A copy of the letter referred to is enclosed herewith."

 

            The copy of the letter referred to from the Department of Education, reads:

           

 

STATE OF ISRAEL

Ministry of Education and Culture,

Jerusalem

Department of Education.

September 8, 1950

The Directorate of

the Montefiore School,

Tel Aviv.

 

Dear Sir

            The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher. I conveyed this information to the secretary of the school yesterday.

                                                                                   Yours faithfully,

                                                                                   (Sgd.)

                                                                                   Dr. M. Hendel

                                                                                   Inspector of

                                                                                   Secondary Schools."

           

            According to the version of the petitioner, this letter of the Inspector of Secondary Schools arrived two weeks after the petitioner had already started teaching at the Montefiore School, but this version is specifically denied by the second respondent. Since neither the petitioner nor the Inspector was cross-examined, I cannot decide this point, and must deal with the matter on the basis that the contract between the petitioner and the third respondent was cancelled as a result of the objection of the second respondent, before the petitioner started working at the school.

            In view of this situation, the petitioner addressed a letter dated October 23, 1950 to the first respondent, the Minister of Defence, and to the Minister of Education and Culture - who was not joined as a party to these proceedings - requesting them to inform him of the reasons and grounds upon which he had been disqualified as a teacher. No reply to this letter was received from the Ministry of Education and Culture, but the Minister of Defence replied as follows:

           

STATE 0F ISRAEL

 

            Jerusalem, November 25, 1950

Dr. Israel Sheib,

124, Dizengoff Street,

Tel Aviv.

           

Dear Sir,

            Your letter of October 23, 1950.

            The Ministry of Defence objected to your appointment as a teacher because in your book and your newspaper you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable.

           

                                                                                 Yours faithfully,

                                                                                 David Ben-Gurion

                                                                                 Minister of Defence."

           

            This then is the background which led to the issue of the order nisi against the second respondent (though not against the other respondent, to whom only copies of the papers were sent by order of the court). With this background in mind, and in the light of the facts which I have already cited together with some other facts which will be mentioned later, the court must now decide upon the application of the petitioner.

           

3. The nature of the petitioner's complaint - as was emphasised by his counsel at the beginning of his argument - is that the petitioner is being persecuted because of his personal opinions and his political activity. I take the liberty of expressing on this occasion and from this Bench my wish and my hope which, I am sure, are shared by thousands of the citizens of this State, that it will not be long before the Knesset passes a Law imposing a strict prohibition on teachers and educators and all those who are concerned with education, in theory or in practice, from indulging openly or secretly, and whether within a school or outside school, in politics, or in any form of occupation which has a political flavour. The education of our children is a sacred task which may not be sullied by alien influences. Those who engage in politics and those who engage in education must remain within their own respective domains and one should not trespass on the field of the other. And if a teacher and educator wishes to enter the cauldron of politics, let him cast aside the teacher's robe. and engage in politics to his heart's content. But let him not enter a school again, and poison the minds of his pupils with the violence of politics and party differences. To our regret, however, no such Law has yet been placed upon the statute book of our State, so all who wish to combine teaching and politics may do so and no one can stand in their way. Since this is so, the one may not be prevented from doing what the other is permitted to do; and a teacher - or one who is preparing himself to be a teacher - is not to be disqualified merely because of his political opinions or activity.

 

4. It was said that no complaint can be made against the second respondent for two reasons: first, that the third respondent, the Principal of the school, and the petitioner both made the acceptance of the petitioner as a teacher in the school conditional upon the securing of the prior confirmation of a third person - in this case the second respondent - and if that third person refuse to give the required confirmation, what recourse can the petitioner have against him? Will the court compel him to confirm the appointment just in order to give effect to the contractual relationship between the parties to the agreement - he himself being a stranger to them and they being strangers to him? It was argued in the second place that when the second respondent was asked his opinion about the petitioner, he was under no "legal duty . . . to give the Reali Montefiore School . . . a dishonest reply". The meaning of these words - which are quoted from the affidavit of the second respondent - as I understand them, is this: the second respondent had made up his mind to oppose the employment of the petitioner as a teacher. but the law imposed on him no obligation to reply to the question of the Principal of the Montefiore School as to the reasons for his objection to such employment, and since that is so the court will not order him to give such a reply contrary to his opinion and his conscience.

 

5. These reasons appear to be two, but are in fact only one. I, for my part, would incline to accept them as sound and decide against the petitioner had the third respondent in fact acted on his own initiative and opinion and if without any pressure from outside he had approached the second respondent and asked his opinion of the petitioner. Had this been the case I would have said that he sought good advice from the second respondent and the confirmation of a man who was an expert. The approach of the third respondent to the second respondent, however, was not a mere chance approach, nor was it made for the purpose of seeking advice - it was made in consequence of something which had happened beforehand. What had taken place was as follows: on June 13, 1950, the second respondent - as appears from his own affidavit - had addressed a circular to the directors of secondary schools in the country in which he requested them not to employ teachers in their schools without the consent of the Government Inspector of Secondary Schools. This Inspector is the assistant and principal aide of the second respondent. The legal effect of this circular, and the manner in which the third respondent was obliged or able to perform his own duties - had he wished to do so - in the light of its provisions, are questions with which we shall deal later. At this stage, and for the purpose of the twofold argument to which I have referred, it is sufficient to point out that a condition which a man lays down himself has not the same effect as a condition which he lays down upon the orders or suggestions of a higher authority. In the first case he will express his own untrammeled will, while in the second case he will give effect to the wishes of his superiors. From this point of view, considerable interest attaches to the letter of the Inspector of Secondary Schools to the third respondent, and the third respondent's letter to the petitioner, for these two letters are apt to throw a good deal of light on the internal relationship between the schools - even private schools - and the Department of Education and those who stand at its head, as well as upon the nature of the condition laid down in the agreement between the third respondent and the petitioner. It should be noted that the Inspector does not say in his letter that the second respondent - in accordance with his own opinion or upon the advice of the Ministry of Defence - is not prepared to confirm the contract between the third respondent and the petitioner, but expresses specific and clear objection to the employment of the petitioner. The letter does not merely express an absence of a friendly attitude to the petitioner, but takes up a definitely hostile attitude. And how did the third respondent understand the attitude of the second respondent? The Principal does not write, in his letter to the petitioner, that the contract is cancelled because of non-receipt of confirmation or words to that effect, but that in accordance with the letter of the Department of Education the petitioner may not be accepted as a teacher. In short, what was designed - as has been submitted to us - to be just good advice, became opposition; the opposition became a serious prohibition; and it was this prohibition, real or assumed - which led to the suspension, or, to put it more accurately, to the non-acceptance of the petitioner as a teacher. The non-fulfillment of the contract between the petitioner and the third respondent was not, therefore, the fruit of the third respondent's free choice, but the product of compulsion which was imposed upon them by a person- a public official - upon whom depended the fulfillment or non-fulfillment of the condition referred to. It cannot be said, moreover, as was submitted before us, that this person expressed only his own opinion, and since the law imposes no duty upon him, he cannot be compelled to pervert his opinion, and the petitioner, therefore, has no recourse against him.

 

6. It was also submitted that the second respondent acted according to law, and that the court will therefore not interfere. The justification of his action is expressed by the second respondent in his affidavit as follows:

 

"In view of the finding of the Minister of Defence and his Ministry - who are responsible for matters relating to the defence of the State - that the petitioner is not suitable to be a teacher, I, as the person responsible for the educational organization in the State am obliged to do everything I can to prevent the petitioner from being accepted as a teacher in the Reali Montefiore School or in any other school in the State."

           

            From this language we draw conclusions : first, that it was the Minister of Defence and his Ministry who disqualified the petitioner from being a teacher in the schools of the country; secondly, that the second respondent regarded the decision of disqualification referred to as a decision binding upon him. It seems to me, however, with all respect to the second respondent, that even if we assume that the matter in question falls within the scope of his authority - a question to which we shall return later - we are confronted here with a confusion of issues and an overstepping of jurisdiction on the part of certain government authorities.

 

7. In my opinion there was no reason for the petitioner to concern himself with the first respondent and join him as a party to these proceedings and the second respondent's reliance upon this powerful support in order to justify his actions will not avail him. The respect due to the Minister of Defence is not open to question and there is no one in the State who underestimates the onerous nature of his duties and the extent of his responsibilities. Matters of education, however, were not entrusted to him. nor do they fall within the limits of his authority. It was to deal with such matters that the second respondent was appointed, and the duty of dealing with them has been imposed upon him, and upon him alone. It is obvious that the division of the work of government between various ministries and branches requires frequent consultation between the ministries, to ensure efficiency of work and coordination of activity. From this point of view there is, of course, nothing to prevent the Director of the Department of Education, in the same way as any other public official in the State, from seeking advice on questions relating to his ministry from other ministries and officials, so that those engaged in one field of activity way learn from those acting in another field. He is not directed, however, nor is he entitled, to carry out the will of others in matters that fall within the jurisdiction of his own ministry. In such matters he is the final arbiter, and when he reaches a decision the decision must be his own decision and not the result of an instruction which he has received from another. He is neither obliged nor permitted to do an act suggested by someone else, unless he gave his own opinion on the matter and made the suggestion his own, and then too the considerations which weighed with him must he considerations of education and not extraneous considerations. In this case it is admitted by the second respondent that it was not he but the Minister of Defence who decided that the petitioner is not suitable to be a teacher in Israel. Had he said. for example, that on the basis of the decision of the Minister of Defence he, the second respondent, is also afraid that the petitioner may incite and mislead the children in Israel; or that the fact that the Minister of Defence regards the petitioner as dangerous from the point of view of the security of the State disqualifies the petitioner in the principal's own eyes, too, from being a teacher; had the respondent made this the ground of his objection to the appointment of the petitioner as a teacher. J would not have found any fault with his action, for then I should have said that his opposition was based upon educational considerations. But the second respondent neither said this nor acted in this way. He carried out the will of the first respondent; and in the same way as the first respondent was not competent to give the decision, the second respondent was not entitled to give effect to it.

 

8. It has been submitted to us, however, that considerations of security are to be regarded differently, that the petitioner is a dangerous person, that he speaks against the Israel army and undermines the security of the State. The reply to this submission would seem to be that such a man is not only unsuitable to act as a teacher, but should be kept out of an office, a shop, a workshop, kept off the streets and not allowed to mix even with adult persons. Not only is it permissible to take away his livelihood, but also to deprive him of his personal liberty. Anyone who preaches today that one should take up arms against the Defence Army of Israel - the most precious possession which has come into our hands since the establishment of the State - or should take up arms against the Government of Israel, robs the soul of the people and must pay the penalty for his actions and his deeds. Our State, however, is based upon the rule of law and not upon the rule of individuals. And if the censorship has passed over in silence the publication of the petitioner and has not prevented him - strange as it may seem - from preaching rebellion, law still rules in Israel. The authorities will take such action against the petitioner as the law allows and he will then, at least, enjoy the right given to every citizen in the State, the basic right of a man to defend himself before the courts. If the opinions of a citizen are rejected, that is not to say that his life is at the free disposal of anyone; the ways of earning a living are not closed before him, nor is his life to be embittered by administrative action. This court has already dealt with this subject in Bejerano v. Minister of Police, (1) :

 

"When a person petitions this court for an order directing a public official to do a particular act . . . the petitioner must show that there is some law according to which the public official is under a duty to do that which is demanded of him. This principle will not, in our opinion, apply where a person seeks - not the performance of a particular act, but the restraining of the performance of an act which injures him, that is to say, a negative order. In such a case it is for the petitioner to show that he has the right to do that which he seeks to do, and, as against this, it is for the public official to prove that his action, intended to prevent the exercise of that right, is lawful. In other words, where a petitioner complains that a public official  prevents him from doing a particular act, it is not for the petitioner to prove the existence of a law which Imposes upon the public official the duty of permitting him to do the act. On the contrary, it is for the public official to prove that there is some justification for the prohibition which he seeks to impose." (ibid. page 124, (1).)

           

            And in Blau v. Minister of Interior, (2) the court following Bejerano's case, (1), repeated the same principle in these words: -

           

"Where the petitioner asks this court to issue a writ of mandamus against the authorities, he will not succeed in his application unless he shows that the law imposes upon the authorities a duty to do what is demanded of them. If, however, the authorities do an act which injures the rights of the individual, it is for the authorities to show that the law gives them the right to do that act." (see Bejerano's case, (1) at page 228).

           

9. It should be pointed out at this stage that in spite of the clear intimation by the Minister of Defence of the reason for his objection to the petitioner, that is to say, his unlawful activities, and in spite of the indication of the sources in which the language objected to, which was used by the petitioner, is to be found, no article or copy of an article written by the petitioner, reflecting these inciting opinions, has been brought before us, either in the affidavit of the second respondent or as an annexure thereto. I do not mean to say that this fact enables us to review the conclusion of the Minister of Defence. We are not competent to do so. As is well known, however, a writ of mandamus is designed to serve as a means of enforcing compliance with the law and not as an instrument to help in its evasion. It is for this reason that a writ of mandamus will not issue where it appears that it will lead to unlawful acts, or that it is contrary to the public interest. Similarly no relief is granted to a person who approaches this court with unclean hands. If, therefore, any proof at all had been produced before us that the petitioner by his words and articles had in fact broken the law, we should have said that it was these acts on his part which had caused the difficulties in which he has now found himself, and that it is no duty of ours to give him assistance. This, however, as I have said, has not been proved or even argued. It is true that counsel for the second respondent, in the course of his argument, did say that the petitioner was at one time a member of "Lechi"-a fact admitted by the petitioner, as I have said, in his fact words to this court - and submitted that it is a legal presumption that the petitioner has continued to remain a member of "Lechi" so long as it has not been proved to the contrary. These matters, however, are not relevant to the argument, for neither the Minister of Defence in his letter to the petitioner nor the second respondent in his affidavit. based their objections to the petitioner on his past membership of the "Lechi" organization. It is too late at this stage to put forward this submission.

 

10. It is appropriate at this point to refer to section 8 of the Education Ordinance, which was enacted to meet a situation similar - though not in every particular - to the situation with which we now have to deal.

 

            According to that section the Director may require the dismissal of any teacher, whether in a public or private school, or in an assisted or unassisted school. Before he may do so, however, a judicial enquiry must be conducted by a judge or magistrate appointed for the purpose and it must first be shown, to the satisfaction of the Minister of Education, that the teacher imparted teaching of a seditious or disloyal character. It is true that this section only applies to a teacher who has already entered upon his duties. And we are dealing with the case of a person who has not yet started working as a teacher. We must also not disregard the important first, however, that the institution of the third respondent is not a government institution, but an entirely private one. The Government is perhaps entitled to employ in State institutions only those persons of whom it approves and may refuse to employ persons whose opinions do not conform with its own views. I say "perhaps" since this question, in its concrete form, does not arise here. The second respondent admits that for the reason stated above - and correctly so - s. 8(3) has not yet been applied to the petitioner, and the question that now arises is as follows: Whence did the second respondent derive the authority to send to the principals of school a circular of the nature of the one sent to the third respondent? This brings us to a subject of which some indication has been given in my previous remarks.

           

11. The second respondent acts under the provisions of the Education Ordinance and the Education Rules, in which the rights and powers of the Director of Education in his relationship with schools, principals, teachers and local authorities are set out in detail. There is, however, no mention in the Ordinance or Rules referred to of any right or power to demand of the principals of schools, government or private, not to employ a teacher in their schools save with his prior consent. It seems to me, therefore, that from this point of view the second respondent exceeded his authority, and that the circular which he sent to the principals of schools as well as the notice of his objection to the employment of the petitioner which followed that circular, have no validity. They constitute an interference - albeit with the good, though mistaken, intention of fulfilling a public duty - with the right of citizens to enter freely into contracts of service. This interference is legally objectionable for two reasons. In the first place, it creates the impression that the Minister of Defence, and not the second respondent, is the final arbiter in the question of who is and who is not suitable to be a teacher - in any event it would appear that that was the case here. In the second place, the petitioner was administratively disqualified from being a teacher without having been given the opportunity of appearing before a tribunal or public board in order to defend himself against his accusers. (No board exists because the legislature did not think of establishing one). A procedure such as this is not permissible.

 

12. Now there arises the important question whether this court is obliged, or even competent, to direct the second respondent to cancel the notification of objection which he sent to the third respondent in regard to the petitioner. J must confess that at first I found great difficulty in deciding this question and found myself confronted with what appeared to be a twofold difficulty. In the first place, so I thought, what is the necessity of formally; canceling the notice of objection? This notice, so it would seem. is in any case void since it was sent without authority. The third respondent, therefore, may regard it as a worthless piece of paper ; and if he does not wish to, will not be bound to act in accordance with its terms. In the second place, since the law did not authorise the second respondent to send notices of objection such as these, it is obvious that it did not concern itself with this problem at the outset and imposed no duty upon the second respondent, nor conferred upon him the right, to cancel such notices. Will this court assume authority in these circumstances to direct the second respondent to cancel the notice of objection which he issued in this case? In doing so, under what principle would it be acting ?

 

13. I said that I found difficulty in deciding at first, but I have eventually reached the conclusion that it would be proper in a case of this kind for the court to act and issue the writ of mandamus. It is true that principals of schools were fully entitled to regard the circular - and the third respondent was also entitled to regard the notice of objection - of the second respondent as invalid and were entitled not to act in accordance therewith. Had they done so there could have been no complaint against them, and it is unnecessary to add that they would not have been penalised for failure to obey instructions of the competent authority. We must not, however, disregard the internal relationship between the second respondent and the principals of schools. He is the Director of the Department of Education of the Government, and they are the principals of educational institutions in the State. There are many bonds which bind the schools to the Ministry of Education. The schools - even private and non-subsidised - are dependent upon the goodwill and often also upon the help of officials of the Ministry of Education in matters of guidance, advice, recommendations, and similar matters. I do not mean to say that if another public official, who was a complete stranger to matters of education, expressed opinions and gave decisions in maters of education, this court could not interfere with his conclusions and decisions. This question does not arise before us in these proceedings and does not demand an immediate solution. In the present case, however, it is beyond all doubt that because of the relationship between schools and the Minister of Education the second respondent exercises indirectly a most powerful influence over principals of schools, even in regard to matters which are beyond the scope of his limited authority, and that such directors will not always see their way clear to disregard such instructions even if they are entitled to do so. A very real piece of evidence which shows that this is so is the fact that, in the case before us, the third respondent actually applied to the second respondent for instructions, although he was under no obligation to do so. In these circumstances, in order to avoid the doing of injustice and with the object of ensuring that the bounds of the authority of public servants are adhered to, this court will certainly express its opinion in the matter.

 

14. The answer to the second difficulty, namely, how this court can order a public officer to do something which he is under no obligation to do, may he gathered from the very nature of a writ of mandamus. There are three elements in such a writ, namely:

 

(1)   a clear legal right in the petitioner to receive the relief which he claims;

(2)   a public duty upon the officer to do what the petitioner asks the court to compel him to do;

(3)   the absence of an alternative remedy.

 

            The petitioner in the case before us, as has been said in his affidavit which has not been denied by the second respondent, has fulfilled the requirements of the Education Ordinance which qualify a person to follow the occupation of a teacher. In the light of what was said in Bejerano v. Minister of Police, (1), the petitioner has acquired a legal right to engage in the occupation of a teacher and to insist that public officers will not interfere with him in earning his living by carrying on his profession. The second respondent acted under the completely mistaken impression that he had the right to direct the third respondent at the outset not to employ a teacher otherwise than with his consent. and to object to the candidature of the petitioner thereafter. These acts, which were done without authority, are not only calculated to prejudice a particular class of citizens but actually do prejudice one of them, namely, the petitioner. In the circumstances such as exist in this case, a public officer has failed in his public duty and the officer must make good the harm done by setting aside the act which he did without authority. The mandamus to he issued by this court will direct the second respondent to fulfil this public duty towards the petitioner. So far as the third element referred to is concerned, it is not disputed that the petitioner has no alternative remedy. In my opinion it would be appropriate in these circumstances that a writ of mandamus be issued.

 

15. The court cannot of course direct the second respondent to cancel the circular which he sent to principals of schools, including the third respondent, since no prayer for such relief has been included in the application of the petitioner. The reason for this is that the petitioner had no knowledge of this circular when he filed his application. It only came to his knowledge from the affidavit of the second respondent. The notice of objection, being as it is a natural and necessary consequence of the circular, cannot remain in force, and the writ of mandamus will apply to it alone. It is clear that the setting aside of the notice of objection of the second respondent does not mean the giving of consent to the employment of the petitioner as a teacher in the educational institution of the third respondent. The setting aside of the notice of objection is based on the fact that the issue of that notice was from its inception an act which fell beyond the authority of the second respondent. That is all, and no more.

 

OLSHAN J. It is my opinion that were we to refuse to accede to the application of the petitioner, we would be a party to turning the principle of "the rule of law", which prevails in our State, into a sham. The fundamental meaning of that principle is that if there are to be restrictions on the liberty of the individual it is because such restrictions are essential for preserving the real liberty of the subject or the public interest. These restrictions must be laid down by the law, that is to say, by society which reflects its opinion in the laws which are enacted by the parliament which represents it, and not by the executive authority, whose duty it is merely to carry into effect these restrictions, in accordance with such laws.

 

            The rule inherent in this principle shows that the rights of the individual may not be restricted or removed by an official or Minister just because he thinks, perhaps correctly, that to do so will be of benefit to the State. It is for him to satisfy the legislature that such restrictions are essential or necessary, and it is only after the legislature has authorised them that the official or Minister may carry them into effect.

           

            It is true that in our time, with the increased intervention of the State in the life of the individual, the task of the legislature has become more difficult and complex. It is not always easy to foresee every circumstance which may arise and to meet it by a reference to it in the statute. A tendency therefore exists to confer powers of subordinate legislation, in such statutes, upon the administrative authority, or of leaving the decision in each case to the discretion of the administrative authority in the light of the general principle laid down by the legislature in the statute. When the legislature leaves the decision as to the imposition of restrictions to the discretion of the executive authority, it follows that the legislature, while laying down the general principle, does not concern itself with the detailed circumstances in which the restrictions should be imposed, but leaves the determination of those circumstances to the discretion of the executive authority. This tendency, which is increasing, presents a serious obstacle to the application of the principle of the "rule of law". It does not, however, destroy it completely, for the transfer of such power in a particular statute to the executive authority still does not enable that authority to act as it pleases, even in regard to areas not covered by the statute. In other words the executive authority is not free to impose restrictions just because it regards them as desirable, unless the statute which deals with the particular matter gives it the power to impose such restrictions if it deems them necessary. If a power such as this is not included in a particular statute, it is for the executive authority to satisfy and induce the legislature to confer such power upon it. For so long, however, as such power is not accorded to the authority, it may not assume such power itself. Were the position otherwise, the whole principle of the "rule of law", one of the guarantees of democratic rule in the State, would be turned into a meaningless concept, and all the statutes which deal, for example, with the regulation of the employment of citizens in various professions, would become of secondary importance.

 

            Let us take as an example the Medical Practitioners' Ordinance. That Ordinance lays down a number of conditions for the issue to a person of a license to practice the profession of medicine. If the Minister of Health, without being authorised by the Ordinance so to do, were to instruct private hospitals not to employ doctors without his prior consent, he would thereby, in fact, add a further condition to those laid down in the Ordinance for the employment of doctors in their profession - a condition not laid down by the legislature. The citizen, therefore, although he fulfilled the requirements of the law, would find himself dependent upon the favour of the Minister.

           

            Returning to the matter before us, it is not disputed that the petitioner is qualified to engage in teaching in accordance with the Education Ordinance; and there is no provision in that Ordinance by which his right to act as a teacher in a private school is made conditional upon the confirmation or consent of the Minister of Education or of the second respondent. This case is not concerned with a government school, or a school subsidised by the Government, in regard to which different considerations may perhaps apply. Nothing in the Ordinance suggests that there is a right in the Minister of Education or any other Minister to impose a restriction such as this, s. 8(3) of the Education Ordinance is the only section which confers the right upon the Minister of Education to intervene in the question of employment of a teacher by an educational institution and to demand his dismissal; and even this section applies only if such teacher has been proved, as a result of a judicial equiry, to be guilty of a criminal act or to have been engaged in incitement against the State.

 

            The question before us is not whether it would be a good or a bad thing if the petitioner were to be a teacher at the Montefiore School in Tel Aviv. The complaint of the petitioner is in fact confined to a prayer for an order directing the second respondent to cancel his objection to the employment by the third respondent of the petitioner as a teacher. Counsel for the petitioner rightly urged upon us that, before he need deal with the prayer, it was incumbent upon the Attorney-General to show on the basis of which law, or by what legal authority, a restriction has been imposed upon him, as upon all other teachers, preventing his appointment as a teacher in any institution, even a private institution, save with the consent of the Minister of Education. The learned Attorney-General was unable to direct our attention to any such law or authority.

           

            It is very possible that if a person "urges the use of arms against the Defence Army of Israel and against the Government of Israel" he should be disqualified from teaching in any school in the State. It is for the Knesset, however, to express its opinion on the matter, and should it decide that such a disqualification should be introduced, it will also direct by what method it is to be determined whether a particular person has in fact urged the use of force, and who is authorised to make such a finding.

           

2. It is quite possible that a person who approaches us with a complaint against the authorities that they have placed obstacles in his path in connection with his employment as a teacher, will not obtain the relief which he seeks if it is shown that he urges the use of violence against the Defence Army of Israel and against the Government of Israel, because the granting of relief by this court in cases of that kind is a matter within its discretion. The only material before us, however, on this point, is the letter of the Minister of Defence to the petitioner in which he makes this charge against him, and the reaction of the petitioner is to be found in paragraph 18 of his affidavit in which he says : "more particularly as the allegations contained in annexure E are not based on fact". I am, moreover, of the opinion that it is of far greater benefit to the community that the principle of "the rule of law" should be strictly maintained in this case than that we should refuse to accede to the application of the petitioner because of the suspicion that he urges the use of violence against the army If, after all, this suspicion is well-founded, the petitioner is guilty of a criminal offence and the authorities are free to deal with him as with any other offender.

 

3. The learned Attorney-General attempted to present this case as one of the utmost simplicity. With the consent of the petitioner, he submitted, a condition was introduced into the contract between him and the third respondent that his acceptance as a teacher in the school would be dependent upon the consent of the Ministry of Education. Because of this condition the second respondent was requested to furnish the consent required, that is to say, to express his opinion. In reply to this request the second respondent furnished to the third respondent the opinion of the Minister of Defence that the petitioner was unsuitable to act as a teacher. Even if this should be interpreted as a refusal to give the confirmation requested, the Attorney-General submitted that it involves no unlawful act or one in excess of authority.

 

            Were it possible to regard the contract between the petitioner and the third respondent as the starting point of this affair, I would not hesitate to recognize the correctness of the submission of the learned Attorney-General. This argument, however, overlooks the contents of paragraph 8 of the petitioner's affidavit, that is to say, that the condition referred to was introduced into the contract by the third respondent "pursuant to instructions". Some support for this allegation is to be found in paragraph 1 of the second respondent's affidavit in which it is said that in the circular which he sent to the principals of secondary schools in the country in 1950 he, the second respondent, requested them "not to employ teachers in their schools save after the receipt of the consent of the Inspector of Secondary Schools."

           

4. It is clear that the condition referred to was introduced into the contract because of the circular which was sent by the second respondent to the principals of schools. That this is so I conclude from what is said in paragraph 8 of the petitioner's affidavit which was not specifically denied by the second respondent, but who did not admit it because he had no knowledge of it (see paragraph c (2) of his affidavit). The second respondent did not annex to his affidavit the circular which he sent and we cannot examine the language of the "request" which is included in the circular with a view to ascertaining whether it is the language of a mere request, or an instruction which has the form of a request. For the words "you are requested" may sometimes be interpreted as "you are required". The second respondent was also not summoned for cross-examination on his affidavit.

 

            This is important, for I would not think it possible to lay down a general principle that a Government Ministry is prohibited from addressing requests to the public or to particular institutions unless specific authority therefore exists in the law.

 

            I have no doubt that if the meaning of the circular referred to is to instruct owners of private schools not to accept teachers without the authority of the Ministry of Education, it was issued without authority, lacks all legal validity, and is of no binding force.

           

            Even if we regard the circular, however, as a simple request, I cannot escape the conclusion that in the particular case before us the sending of the circular constituted an interference in the internal affairs of the teaching profession, or a portion of it, without lawful authority. There is no doubt that in sending the circular the second respondent had reason to believe or to expect that the principals of schools would accede to his request. As a result, a new situation was created for the teaching profession or a portion of it. It is not sufficient that teachers possess the qualifications required according to the Education Ordinance, but there is now an additional condition - the confirmation of the Ministry of Education. Not only this, but the Ministry of Education has also failed to set up some body to which a teacher may turn and defend himself against a refusal of the Ministry to confirm his appointment as a teacher. We have not been told that the matters to be taken into account in giving the confirmation were set out in the circular. It follows that the second respondent arrogated to himself the power of preventing the appointment of teachers by his own fiat, without any right of redress. We do not doubt the good intentions of the second respondent and that he did not issue the circular with the object of exercising authority. Such a circular, however, cannot afford authority for discriminating against a teacher or limiting his rights, in the absence of legal power to do so. Bad the condition relating to the giving of authority by the Ministry of Education been introduced on the initiative of the principal of the school, we should not have been able to interfere. Since, however, the necessity for this consent was created on the initiative of the Ministry of Education, we must decide that it was issued without authority.

           

5. As I have said, were I able to regard the "reply" sent to the third respondent in regard to the petitioner as an independent link and not as a consequence of the circular, I should not have been able to find a legal basis for the complaint of the petitioner in this court. In order to clarify my approach to the problem before us, I also wish to point out that had I not found that the circular was legally ineffective by reason of its having been issued without lawful authority, I am not sure that it would have been possible to set aside the letter because of its contents. It is true that had the law conferred upon the second respondent the power of disqualifying teachers at his discretion, he would have had to act according to his discretion and not on instructions of the Minister or any other person. This does not prevent him from consulting or taking the opinion of another person, and accepting that opinion so far as it appeals to him. If the matter is one which involves the question of security, I am prepared to go even further. Had it been known to the second respondent that the Minister of Defence opposes the appointment of the petitioner as a teacher for reasons of security and that the facts forming the basis of such reasons are secret in character, the second respondent might have given weight to the very fact of the opposition of the Minister of Defence, even if the reasons referred to were not clear to him.

 

            In my opinion, however, all these problems have no relevance here, since in Day view the circular was issued without authority.

           

6. The prayer of the petitioner before us was for an order against the second respondent to show cause why he should not withdraw his opposition to the acceptance of the petitioner as a teacher in the institution of the third respondent.

 

            We cannot order the second respondent to take back the letter sent to the third respondent, since this letter was sent in reply to a question of the third respondent and merely stated that the Minister of Defence opposes the appointment of the petitioner as a teacher. This fact is correct, as appears from exhibit "E" which was filed by the petitioner. We also cannot order the second respondent to "withdraw his opposition", if by withdrawing his opposition he will be taken to have assented, and this court cannot order the second respondent to give his consent to the appointment of the petitioner as a teacher by the third respondent. As far as this letter is a consequence of the circular referred to, and constitutes an objection to the employment of the petitioner by the third respondent, I think that we should follow the view of the majority in Sabo v. Military Governor, Jaffa, (3), and decide that the objection of the second respondent has no legal authority, and that he must therefore refrain from interfering in this matter. In this sense we should make the order nisi absolute.

 

WITKON J. The petitioner is a teacher by profession and has been a teacher in Israel and elsewhere. It is alleged in the petition - and is not denied by the respondent - that the petitioner came to Israel in 1941, and engaged in teaching in Tel Aviv until he was arrested by the British police in April, 1944, on suspicion of belonging to the underground movement of the Freedom Fighters of Israel. He remained in custody in Latrun for two years until he escaped and continued to work in the underground movement.

 

2. The petitioner alleged further in his affidavit that after the establishment of the State he decided to return to teaching and applied to a number of institutions for a post. He was confronted with difficulties the root of which - as later because evident to him - was to be found in the fact that the Department of Education refused to confirm his employment as a teacher. The petitioner communicated with the third respondent, the principal of the Reali Montefiore School in Tel Aviv, in order to secure employment for the 1951 school year, but the principal made the employment of the petitioner as a teacher conditional upon confirmation by the Department of Education. It would appear that the petitioner started working before receipt of the confirmation, bat his work was terminated on September 17, 1950, when a letter was handed to him in which the principal of the school informed him that in accordance with a letter which the principal had received from the Inspector of the Department of Education, the petitioner was not to be accepted as a teacher in the institution. The contents of the Inspector's letter, a copy of which was attached, were as follows : "The Director of the Department of Education has requested me to inform you that the Ministry of Defence objects to the appointment of Dr. Israel Sheib as a teacher." The petitioner approached the Ministers of Defence and Education and demanded an explanation of why they had disqualified him and opposed his appointment as a teacher. He received a reply from the Minister of Defence in the following terms :- "The Ministry of Defence objected to your. appointment as a teacher because, in your book and your newspaper, you urge the use of arms against the Defence Army of Israel and the Government of Israel in cases where this seems to you desirable." This reply was annexed to the petition in which the correctness of its contents was denied, and I should point out that no evidence as to the matters stated in this reply was placed before the court either by the petitioner or the respondents. The petitioner received no reply from the Minister of Education. That respondent states in his affidavit that no letter was sent to him by the petitioner and that there was nothing, therefore, which called for a reply on his part.

 

3. The petitioner applied to this court for the issue of an order against the Minister of Defence and the Director of the Department of Education to appear and show cause why they should not withdraw their opposition to the acceptance of the petitioner as a teacher in the Montefiore School; and also for an order against the principal of the school that he appear and show cause why he should not allow the petitioner to return to his teaching duties. The court issued an order nisi against the Director of the Department of Education alone, and he filed an affidavit explaining his attitude. He emphasized that the Montefiore School is a private school, that he has no authority under the law in regard to the acceptance of teachers in that school, that he has no authority in regard to the dismissal of teachers save that conferred upon him by s. 8(3) of the Education Ordinance, and that no such authority was exercised by him in this case. In addition to this, the respondent disclosed in his affidavit that he had in fact approached all secondary schools (including also private schools), and had requested them not to employ teachers save with the consent of the Inspector of Secondary Schools. The relevant paragraph is as follows :-

 

            "(f) In a circular which I sent to the principals of secondary schools in the country on June 13, 1950, I requested them not to employ teachers in their schools, save with the consent of the Inspector of Secondary Schools. My intention, as the official responsible for the organization of education in the State, was to maintain an appropriate professional standard and to ensure that secondary education is suited to the requirements of the State."

           

            The affidavit goes on to state that the respondent "is under no legal or other duty to answer the question of the Reali Montefiore School relating to the petitioner with a reply which is dishonest; and that in view of the decision of the Minister of Defence that the petitioner is unsuitable to act as a teacher, he, the Director of the Department of Education, as the one responsible for the education organization in the State, is obliged to do all in his power to prevent the petitioner from being accepted as a teacher in the school in question, or in any other school in the State.

           

4. The opposition of the respondent to the order sought is in fact based, therefore, upon two submissions: first, that there is no duty upon him to give his consent or confirmation to the acceptance of the petitioner as a teacher in a private school, and that he cannot, therefore, be compelled to give such consent or confirmation or to withdraw his opposition to the employment of the petitioner as a teacher; and, secondly, that if it should be said that there is a duty upon whose fulfillment this court will insist, then the respondent has discharged his duty by relying upon the decision of the Minister of Defence disqualifying the petitioner from being a teacher. As far as the first submission is concerned, we must investigate the powers of the Director of the Department of Education in regard to schools and teachers in the State.

 

5. The Education Ordinance draws a fundamental distinction between public and assisted schools on the one hand and private schools on the other hand. Every school (other than a government school) whether it be a public, assisted, or private school, must be registered with the Department of Education (s. 4), and wide powers are conferred upon the Government in regard to the supervision of sanitary conditions obtaining in all schools without distinction. In this regard it is provided by the Education Rules that the registration of a school shall be valid only in respect of the premises specified in the application for registration, and that if alterations are made in the premises which adversely affect these from the point of view of health, the validity of the registration will expire. A public school, however, which - as I have said - also requires registration, shall not be registered or continue to be registered unless the conditions laid down in rule 9 of the Education Rules are fulfilled, and these are the rules which deal with the educational aspect of the institution. It is desirable to point in particular to sub-rule (h) of rule 9, in which it is specifically laid down that no person shall be appointed as a teacher who is unacceptable to the Director of Education. s. 7(1) of the Ordinance empowers the authorities to visit any school - other than a non-assisted school established or maintained by a religious association - and to demand information from the principal, in regard to the tuition of the pupils, the management of the school, and the names and qualifications of the teachers. The same power is conferred upon the Director of Education or his deputy in respect of any non-assisted school established or maintained by a religious association, but only after giving prior notice, nor may the Director or Deputy-Director demand any change in the curriculum or the internal administration of such school (s. 7(2)) From this, perhaps, it may positively be inferred that in respect of every other school, which is not a non-assisted school established or maintained by a religious association, the Director is entitled to interfere with the curriculum  and internal administration. Attention must also be drawn to the proviso to s. 7(2), which provides that nothing in that subsection shall prevent the High Commissioner from exercising such supervision over any school as may be required for the maintenance of public order and good government.

 

6. Greater importance in the matter before us attaches to s. 8. It is provided, in sub-section 1 of that section, that no person shall act as a teacher in any school unless be has registered with the Director of Education. Sub-section 2 provides that no person may teach in a public or assisted school who does not possess a licence to teach issued to him by the Director. Rules 10 to 31 provide the method by which a person may apply for registration and for a licence as a teacher, the classes of licence and the conditions of their issue, and it must be pointed out that registration is not a matter within the discretion of the Director, whatever may be his powers in regard to the issue of a licence. These, then, are the provisions of the law relating to the acceptance of a person as a teacher in a school and we see that there is no restriction whatsoever on a person being accepted as a teacher in a private school (save that he requires to be registered - a condition which, it appears, has been fulfilled by the petitioner). There is no need for the Director to give his consent or confirmation to the acceptance of a person as a teacher in a private school, while in regard to the dismissal of teachers, sub-section 3 of s. 8 empowers the Director to require the dismissal "of any teacher, whether in a public or assisted school or in a non-assisted school, who has been convicted of a criminal offence involving moral turpitude or who is shown to the satisfaction of the High Commissioner, after judicial enquiry . . . to have imparted teaching of a seditious, disloyal, or immoral character." The Law here lays down that the power to require dismissal exists in respect of teachers in all schools including also private schools. Similarly the power conferred upon the High Commissioner under s. 9 of the Ordinance to order the closure of a school is general in character and applies to every kind of school.

 

7. The practical effect of what I have said is that the Director of the Department of Education had no legal power to consent to or to oppose the acceptance of the petitioner as a teacher in the school of the third respondent. What is more, everything that was done by the Director of the Department of Education as described in paragraph (f) of his affidavit, that is to say, his approach to the principals of secondary schools not to employ teachers save with the consent of the Inspector, has no legal basis. We have seen that the Education Ordinance confers upon the authorities the power of supervision over all types of schools, and it describes how that supervision is to be exercised : the school must be registered, it is possible to impose upon the school sanitary conditions, it is permissible to demand information and it is possible under certain conditions to require the dismissal of teachers and the closure of a school. It is not, however, provided in the Ordinance that a teacher may not be accepted in a private school save with the consent of the Director of the Department of Education. The Law has not authorised the Director, either expressly or by implication, to supervise a private school in this way.

 

8. I do not think that every administrative act which is not provided for by law must of necessity be fundamentally invalid. As is known, there is in our day - and not only in this country - an ever-growing body of what is sometimes called "administrative quasi-law" (see Allen in his well-known work "Law and Orders", at page 155, and an article entitled "Administrative Quasi-Legislation," by Megarry in 60 L.Q.R. p. 255, and see also p. 218 ibid.). This is a body of rules which the executive authority and not the legislature lays down for itself, and according to which it acts not only in its internal arrangements, but also in its relations with the citizens. The influence of office administration which is based not on the provisions of the law but upon rules circulated by the authorities among its officials by means of circulars, is today considerable. This is a phenomenon in the life of a modern State which many regard with trepidation. (See, inter alia, Allen, ibid. and also Lord Hewart in his book. "The New Despotism"). Where the legislature has empowered the executive authority to frame subsidiary legislation within defined limits, its actions should of course not be too closely scrutinised, so long as that authority does not exceed its powers. It sometimes happens, however, that such administrative rules are framed to regulate a matter upon which the legislature has expressed no opinion, a matter within a vacuum from the legal point of view. In such a case it is appropriate to enquire as to the legal validity of such rules and provisions which do not derive from the authority of the law itself. However, this is neither the place nor the time to expatiate upon this elusive problem, since even a person who is prepared to regard this development of a body of administrative rules as a healthy and natural development, and would not hasten to invalidate it as something fundamentally bad -"administrative lawlessness", as Lord Hewart has called it - even such a person will admit that such rules have no right to exist if they exceed the limits which the legislature has conferred upon the executive authority in a particular matter. It is simply a case of an excess of authority if the authority arrogates to itself powers which are wider than those which are defined by law, and this is also true where the powers, which the authority assumes, contradict those which are conferred upon it by law. That is in fact the situation in this case. The legislature introduced a distinction, and laid down that private schools are not the same as public or assisted schools insofar as the acceptance of teachers is concerned. If this be so, the second respondent was not entitled to assume a power of which he had been deprived by law, and to lay down a rule that a teacher in a private school also may not be accepted save with the confirmation of the Inspector of the Department. It is clear that the court will not approve an administrative rule which is inconsistent with the law.

 

9. As I have said, the respondent admitted that his action was not based upon law, and he therefore emphasised the nature of his approach to the principals of private schools, stating that he only "requested" them not to employ teachers in their schools save with the consent of the Inspector. It is not necessary to say that a "request" such as this is tantamount to an order at least in so far as the petitioner before us is concerned, because for reasons which are self-evident schools would tend to yield to a "request" of this kind, as the present case proves. It is possible that had the respondent approached the principals of schools in a form that was less compelling, and had emphasised that his request had no binding force, it would have been difficult to find any fault with his approach. It is clear to me, however, from the evidence of the respondent in his affidavit, that he in fact did not employ language which gave the principals any choice - that if they so wished they could follow his opinion, and if not they could disregard it and employ a teacher against his will. In this case the respondent did not set out in the circular that the principals of schools had a choice in the matter. I have no doubt, therefore, that the respondent exceeded his authority in approaching the principals of schools.

 

10. The question arises whether we are able to grant relief to the petitioner. To the extent that I have held in this judgment - as a result of the above reasoning - that the second respondent exceeded his authority it is possible that that itself constitutes some remedy for the petitioner. The petitioner, however, asks for an order against the respondent that he withdraw his opposition to accepting the petitioner as a teacher in the Montefiore School. In regard to this it is first necessary to examine what in fact was the respondent's unlawful act in regard to the petitioner. In this respect there is in my opinion a contradiction between the version of the petitioner and that of the respondent. We must guard against a certain ambiguity in the expression "opposition". If the intention is that the respondent is not happy about the appointment of the petitioner, there is indeed no doubt that he "opposes" the petitioner's appointment in that sense. It is clear, however, that this court has no interest in the mental reservations of the respondent but only in his acts or omissions. And if the intention is to refer to a particular act, it is my opinion that the respondent did not "oppose" the appointment of the petitioner in this sense. He did not write to the principal of the school that he, the Director of the Department of Education, opposes, but that the Ministry of Defence opposes. That means that he, the respondent, refused to give his consent upon the basis of this opposition by the Ministry of Defence. It is true that the petitioner stated in paragraph 12 of his affidavit that counsel for the second respondent gave "a verbal instruction that the employment of the petitioner should be discontinued within 24 hours", but the second respondent has denied this version. It seems to me that the letters annexed to the petitioner's affidavit - that in which the Inspector informed the principal of the school of the opposition of the Ministry of Defence, and that in which the principal of the school informed the petitioner that he could not be accepted as a teacher - supports the version of the respondent, namely, that the principals of schools acceded to his request not to employ teachers save with the Inspector's consent and that in this case no such consent was given. If that is so, the petitioner can advance no contention against the respondent in regard to some positive act relating to himself, that is to say, opposition to his acceptance as a teacher, and for that reason he cannot seek the "withdrawal of his opposition". His complaint concerns a passive act, namely, the failure to give the consent that was required by the petitioner in order that the principal of the school would be prepared to accept him.

 

11. The court was not asked to compel the respondent to give the consent referred to, and even had it been asked to do so, I have no doubt that the court would have had to refuse such au application. As I have said, the second respondent exceeded his authority in requesting the principals of schools not to employ teachers save with the consent of the Inspector. If that is so, this court will not compel the respondent to do the very act which exceeds his authority, that is to say, to give his consent (or to instruct the Inspector to give his consent). The court, therefore, will also not interfere with the grounds which induced the respondent to refuse his consent in this instance. Authority for this proposition - if such be needed - way be found in R. v. Barnstaple Justices, (6). In that case the Justices were authorised to issue a licence for the use of buildings as cinemas- They were asked to give their decision in regard to a building which had not yet been built, and they considered the application and refused it. It was held by the court that no order of mandamus or of certiorari should be made against them since they had in any event no power to deal with an application for the issue of a licence before the building had been erected. The position in our case is similar actually to that which obtained in the case of Matossian v. Bergman, (4). In that case too an official exceeded his authority, but in order to remedy the situation and restore the previous position it would have been necessary for the official to perform an act which the law did not empower him to do. The unlawful act had already been done. The court considered the position after the event, and found no way to issue an order to the official in order to remedy the situation that had arisen. The unlawful act in the case before as is the approach in the circular to the principals of the schools. The court is now asked to order the respondent to withdraw its opposition to the petitioner. I have already said that the question in this case is in fact not one of opposition, but of the absence of consent. It is clear that the court cannot compel the respondent to restore the position to what it was by giving his consent, since he has no power to consent. In regard to the "withdrawal of opposition", it is no doubt correct that where an official is unable himself to set aside an unlawful act on his part, the court will be competent to set aside such act (Bouchman and Shoulyan v. Bergman, (5). In the present case, however, there was no act on the part of the respondent which can be regarded as "opposition", so that even if an order setting aside such opposition were to be made, it would not operate as a consent, the giving of which is made a condition - albeit unlawfully - to the petitioner being accepted as a teacher. It seems to me that in these circumstances this court has no alternative but to discharge the order nisi.

 

OLSHAN J. The decision of the court is that the interference by the second respondent in the employment of the petitioner as a teacher in the institution of the third respondent was unauthorised in law, and that the second respondent must refrain from interfering in this matter. It is decided by a majority to make a final order to this effect.

 

Order nisi made absolute against the second respondent.

Judgment given on February 8, 1951.

CA 6024/97

 

Fredrika Shavit

v.

Rishon Lezion Jewish Burial Society

 

The Supreme Court sitting as the Court of Civil Appeals

[July 6, 1999]

Before Court President A. Barak, Justices M. Cheshin, I. Englard.

 

Facts: Petitioner challenged the refusal of a Jewish burial society to allow an inscription on her mother's tombstone recording the dates of birth and death according to the Gregorian, as well as the Hebrew, calendar. The district court held that the recently-passed Alternative Burial Law permitted Jews to bury their loved ones in civilian cemeteries, not according to Jewish religious law, had the effect of overturning previous court rulings requiring Jewish burial societies to permit non-Hebrew characters and dates on tombstones. Sites have yet to be established for alternative burial.

 

Held:  Jewish burial societies have a public, as well as a private, character, and as such are subject to public law. The Alternative Burial Law did not have the effect of overruling previous holdings requiring Jewish burial societies to permit non-Hebrew lettering. This is particularly true because the statute has yet to be implemented. Barring family members from recording the names of their deceased loved ones in the language of their choice harms the sensibilities of the relatives and the human dignity of the deceased. It outweighs the potential harm to the sensibilities of religious visitors to the cemetery who may be offended by the non-Hebrew lettering, particularly considering that the Jewish law prohibition against inscribing non-Hebrew calendar dates and letters is not sweeping and comprehensive. Furthermore, the weight accorded to the sensibilities of religious people offended by practices that violate religious law decreases in the public domain, like a cemetery, as compared to the weight such harm is accorded in the private domain, like the home.

Basic Laws cited:

Basic Law: Human Dignity and Liberty, ss.1a, 8.

 

Legislation cited:

Right to Alternative Civil Burial Law, 1996 – ss. 2, 3, 4, 4A, 5, 6.

Standard Contracts Law, 1964 s.14.

Standard Contracts Law, 1982.

Contracts Law (General Section), 1973, s.30.

King’s Order in Council on the Land of Israel (Holy Places), 1924.

 

Regulations cited:

Right to Alternative Civilian Burial Regulations (Licensing Burial Cooperatives and Establishing Burial Procedures) 1998.

 

Bills cited:

Right to Alternative Civilian Burial Bill.

.

Israeli Supreme Court cases cited:

[1]   CA 280/71 Gideon v. Jewish Burial Society, IsrSC 27(1) 10.

[2]   HCJ 532/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier, IsrSC 30(1) 305.

[3]   CA 492/79 Moses v. Jerusalem Community Jewish Burial Society, IsrSC 35 (4) 157.

[4]   HCJ 556/83 Best v. Defense Minister, 38(1) 177.

[5]   HCJ 1438/91 Ginossar v. Defense Minister, 45(2) 807.

[6]   CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum, 46(2) 464.

[7]   HCJ 5688/92 Wechselbaum v. Defense Minister, 47(2) 812.

[8]   HCJFH 3299/93 Wechselbaum v. Defense Minister, 49(2) 195.

[9]   HCJ 3807/96 Bargur v. Defense Minister, (not reported).

[10] HCJ 5843/97 Bargur v. Defense Minister, 52(2) 462.

[11] CA 1795/93 Egged Members’ Pension Fund v. Ya’acov, 51(5) 433.

[12] LCA 5768/94 ASHIR Import, Manufacture and Distribution v. Forum Accessories and Consumables, 52(4) 289.

[13] CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative, 49(4) 221.

[14] HCJ 337/81 Miterani v. Minister of Transportation, IsrSC 37 (3) 337.

[15] HCJ 5016/96 Horev v. Minister of  Transportation, IsrSC 51(4) 1 {[1997] IsrL 149}..

[16] HCJ 3648/97 Stemaka v. Minister of the Interior, IsrSC 53(2) 728.

[17] CA 3414/93 On v. Diamond Exchange Industries (1965), IsrSC 49(3) 196.

[18] HCJ 2481/93   Dayan v. Jerusalem District Commander, IsrSC 48(2) 456.

[19] HCJ 3872/93   Meatrael v. The Prime Minister and Minister of Religious Affairs, IsrSC 47(5) 485.

[20] HCJFH 7015/94 Attorney General v. Anonymous, IsrSC 50(1) 48.

[21] HCJ 3261/93 Manning v. Minister of Justice, IsrSC 47(3) 282.

[22] EA 1/65                 Yardor v. Chairman of the Central Election Committee for the Sixth Knesset, IsrSC 19(3) 365.

[23] EA 2/84 Neiman v. Chairman of the Central Election Committee for the Eleventh Knesset, IsrSC 39(2) 225.

[24] HCJ 73/53          Kol Ha’Am v. Minister of the Interior, IsrSC 7 871.

[25] HCJ 148/79      Sa’ar  v. Minister of the Interior and of Police, IsrSC 34(2) 169.

[26] CA 105/92         Re’em Engineers v. The Municipality  of Upper Nazareth, IsrSC 47(5)189.

[27] HCJ 351/72      Keinan v. The Film and Play Review Board, IsrSC 26(2) 811.

[28]HCJ 806/88        Universal City Studios v. The Film and Play Review Board, IsrSC 43(2) 22.

[29] CrimA 217/68  Izramax Ltd. v. State of Israel, IsrSC 22(2) 343.

[30] HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel, IsrSC 51(2) 509.

[31] HCJ 292/83      Temple Mount Faithful Association v. Jerusalem District Police Commander, IsrSC 38(2) 449.

[32] HCJ 257/89Hoffman v. Appointee over the Western Wall, IsrSC 48(2) 265.

[33] HCJ 243/81      Yeki Yosha v. The Film and Play Review Board, IsrSC 35(3) 421.

[34] CA 214/89 Avneri v. Sharipa, IsrSC 43(3) 840.

[35] HCJ 465/89 Ruskin v. Jerusalem Religious Council, IsrSC 44(2) 673.

[36] HCJ 47/82 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs, IsrSC 43(2) 661.

[37] HCJ 3944/92 Marbek Slaughterhouses v. Chief Rabbinate of Netanya, IsrSC 49(1) 278.

[38] HCJ 1000/92 Bavli v. The Great Rabbinical Court, IsrSC 48(2) 221.

[39] HCJ 6163/92   Eizenberg v. Minister of Construction and Housing, IsrSC 47(2) 229.

[40] HCJ 935/89      Ganor v. Attorney-General, IsrSC 44(2) 485.

[41] HCJFH 4601/95 Sarrousy v. National Labor Court, IsrSC 52(4) 817.

 

Israeli District Court Cases Cited:

[42] HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (unpublished).

[43] HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society (unpublished).

[44] HM (TA) 200585/98 Sasson v. Herzliya Jewish Burial Society (unpublished).

 

Israeli Books Cited:

[45] 1 Menachem Elon, Jewish Law (3d ed. 1987).

[46] See 3 A. Barak, Parshanut Bimishpat [Interpretation in Law] Parshanut Chukatit [Constitutiona]

[47] Aharon Barak, Judicial Discretion (1986).

 

Israeli Articles Cited:

[48] E. Benvenisti, Tchulat Hamishpat Haminhali al Gufim Pratiim [Administrative Law, Private Bodies] Mishpat U'Mimshal 2 (1994-95) 11.

[49] A. Dayan-Orbach, Hamodel Hademocrati shel Chofesh Habitoi [Freedom of Expression], Iyunei Mishpat 20 (1996-97) 377.

 

Jewish Law Sources Cited:

[50] Babylonian Talmud, Tractate Baba Metzia, 30B.

[51] Babylonian Talmud, Tractate Yoma, 9B.

[52] Etz Yosef, Ein Ya’akov, Tractate Baba Metzia 30.

[53] Rabbi Shmuel Eliezer Edels (Maharsha), Baba Metzia, 30.

[54] Shulchan Aruch, Choshen Hamishpat, 12B.

[55] Rabbi Moshe Isserlis (Rama), Shulchan Aruch, Choshen Hamishpat, 12B.

[56] Babylonian Talmud, Tractate Sanhedrin 74A-B.

[57] Rabbi Moshe ben Maimon (Maimonides), Basic Laws of the Torah, ch.5, laws 2-4.

[58] Responsa Tzitz Eliezer, part 9, 14, ch. 100B.

[59] Responsa Yabia Omer, part 7, Yoreh Deah, 32, ch. 100B.

 

Appeal of the decision of the Tel Aviv/Jaffa District Court (Judge. Y. Zeft) from 22.7.1997 in DC 657/97. The appeal was granted by majority opinion, with Justice I. Englard dissenting.

 

Gali Bar-El, Uri Regev – for the appellant;

Yair Shilo – for the respondent.

 

 

JUDGMENT

Justice M. Cheshin

1. Regarding gravestones, what should be inscribed upon them? What should an epitaph record? Who should decide these things? After all, it is only family and friends who will visit the grave. They are the ones who will remember the deceased; it is they who will come to cry and grieve. But are they the ones who should decide how the deceased should be memorialized on his or her gravestone, or is that the role of another party, for example, the Jewish burial society? Perhaps it should be decided by the municipal rabbi – each rabbi for his own municipality? Or perhaps another authority should make this decision?

The courts have dealt with these questions several times regarding both civilian and military cemeteries. The first time was in CA 280/71 Gideon v. Jewish Burial Society (hereinafter – Gideon [1]), followed by HCJ 532/74 Ben-Ze’ev v. Public Council for the Memorialization of the Soldier [2], CA 492/79 Moses v. Jerusalem Community Jewish Burial Society [3], HCJ 556/83 Best v. Defense Minister [4], and HCJ 1438/91 Ginossar v. Defense Minister [5].  After these, came CA 294/91 Jerusalem Community Jewish Burial Society v. Kestenbaum (hereinafter – Kestenbaum [6]) which was followed by Wechselbaum; first in the High Court of Justice (HCJ 5688/92 Wechselbaum v. Defense Minister [7]) and then in a further hearing (HCJFH 3299/93 Wechselbaum v. Defense Minister [8]). After Wechselbaum [7] [8] came Bargur, which was also heard twice (HCJ 3807/96 Bargur v. Defense Minister [9] and HCJ 5843/97 Bargur v. Defense Minister [10]). The district courts have also addressed this question more than once (in addition to those cases that came before the Supreme Court on appeal). See e.g. HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (the Burgman case) [42]); HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society [43]; HM (TA) 200585/98 Sasson v. Herzliya Jewish Burial Society [44] and others. To all these, add the Right to Alternative Civil Burial Law, 1996, and the regulations pursuant to the law, as well as HC 619/97 MK Tzuker v. Minister of Religious Affairs (currently pending before the Court).

I would be surprised if there is another nation or language that occupies itself so passionately and intensively with the issue of what should be inscribed on gravestones; occupies itself continuously, and yet cannot settle on a standard.

The Facts

2. On December 7 1996 (Kislev 26 5757), Mrs. Rosa Greitel passed away. The deceased’s family wished to bury her, as is customary, in her home town – the city of Rishon Lezion. The Rishon Lezion Jewish Burial Society responded to their request, and she was interred in the cemetery under its management, which is the only one in the city. Thereafter, the family requested that the deceased’s name be inscribed on her gravestone in both Hebrew and Latin characters, and that her birth date and death date be recorded according to the standard Gregorian calendar, as well as the Hebrew calendar. The Jewish burial society initially refused both these requests – the inscription in foreign lettering and the Gregorian dates. Later, after the Rishon Lezion Jewish Burial Society’s chief rabbi, Rabbi Breuer, gave a dispensation, it allowed the deceased’s first name (Rosa) to be inscribed in Latin characters. However, the burial society stood firm and refused to grant the family’s wish regarding the Gregorian birth and death dates.

In refusing to grant the family’s wishes, the Jewish burial society relied on the ruling of its chief rabbi, and when the family applied to Rabbi Breuer directly for a dispensation – they encountered an absolute refusal. The family pointed out that the very same cemetery already contained gravestones bearing Gregorian dates. Rabbi Breuer’s answer was that, although it had been permitted in the past, since his appointment as rabbi of the local Jewish burial society, he had not allowed Gregorian dates of birth and death to be inscribed on gravestones. The family then appealed to Rabbi Wolfa, the chief rabbi of Rishon Lezion, and to the Jewish burial society rabbi in charge of the Jerusalem district, but to no avail. The rabbis responded by referring the family back to Rabbi Breuer, who stood by his ruling. Since all other avenues were closed, the deceased’s daughter – Dr. Fredrika Shavit – applied to the Tel Aviv-Jaffa District Court, requesting that it uphold and formally acknowledge her right to engrave Gregorian dates of birth and death on her mother’s gravestone.

In the district court, Judge J. Zeft rejected Dr. Shavit’s request, and that rejection is the subject of this appeal.

Legal Background – Gideon [1] and Kestenbaum [6]

3. It seems I was naïve in believing that the courts must follow in the footsteps of previous rulings. First there was Gideon [1], in which the Court – in a majority opinion – ruled that everyone has the right to carve standard Gregorian dates of birth and death on a gravestone (in that case, on a father’s grave). The judgment of Justice Etzioni – which Justice Berenson joined – gives us a clear and explicit ruling, in precise and unambiguous language, and those who study it will understand it perfectly. Judge Etzioni wrote, for example:

No one in the world disputes the right of people to honor the memories of their loved ones who have departed from this world in the way that they see fit, in line with their way of life and traditions, providing they do not harm the legitimate sensibilities and interests of others. It is also clear that a cemetery is a place not only for burying the dead but also for expressing the love and respect the living continue to feel for the departed.

Gideon [1] at 23.

 

He continued:

This is simply an arbitrary negation of the right to use the standard calendar to record the dates of birth and death of a person whose life revolved around this calendar!

Id.

What more is there to add? The Court has established its ruling on the matter, that the prohibition on carving Gregorian birth and death dates is a “restrictive condition” that is discriminatory under section 14 of the Standard Contracts Law, 1964.

4. After the Gideon [1] judgment was handed down in 1972, there was an 18-year respite on this issue – until Kestenbaum [6]. In that case, Mr. Kestenbaum asked the district court to allow him to inscribe on his late wife’s gravestone her name in Latin characters and her birth and death dates according to the Gregorian calendar. The district court ruled in favor of the plaintiff, and the Supreme Court rejected the appeal of the Jewish burial society by majority opinion. The judgment took up 62 closely-typed pages, and I can’t think of even one aspect that the Court did not consider and thoroughly delve into. The common denominator in the reasoning of the majority on the panel was their different interpretations of “public policy,” in the broad sense of the concept. President Shamgar emphasized in his remarks that the principles of public law necessitate a ruling in favor of the petitioner. He added that such a conclusion is also required by the provisions of the Standard Contracts Law, 1982, and also by public policy as elucidated in section 30 of the Contracts Law (General Section), 1973.

Justice Barak also found that the need to favor the petitioner flowed from principles of public law and provisions of the Standard Contracts Law, but in his view, the real flaw in the Jewish burial society’s decision was that it violated public policy. Thus Justice Barak said “… the main point of the legal problem before us is not the actions of the Jewish burial society in areas of public law, and not even in its overstepping the bounds of the Standard Contracts Law. The heart of the problem is really the application of the principles of public law – values such as the Hebrew language, human dignity and tolerance – in the areas of private law.” Kestenbaum [6] at 529. In his subsequent remarks, Justice Barak pointed to the framework-principles of private law – such as principles of good faith and public policy – and ruled that these comprise the basic principles of law and the fundamental social outlook upon which the legal system is founded. His conclusion was that the Jewish burial society’s decision that the name of the deceased could be inscribed in Hebrew letters only violates public policy in that it is a mortal blow to human dignity – the dignity of both the living and the dead: “The source of the blow to human dignity is the negation of the freedom to inscribe on the gravestone whatever the deceased (in his or her lifetime) and his or her family (after his or her death) wish to be inscribed.” Id. at 523. The value of human dignity supersedes all other values with which it may come into conflict.

We wished to mention several more things that the Court ruled in Kestenbaum, but since the judgment is overflowing with words of wisdom and ethics, and out of fear that asserting one ethical stance might denigrate others, we decided not to cite them here. We refer the reader therefore to Kestenbaum [6], and each can draw his or her own conclusions.

5. I accept the words of my colleagues and their opinions in both cases. The truth is that the essence of all three reasons for the ruling in Kestenbaum [6] comes from the same source. I raised a similar idea in CA 1795/93 Egged Members’ Pension Fund v. Ya’acov [11]. In that matter, the regulations of a cooperative society were at issue, and the question was whether it was right and fitting to invalidate a particular regulation as illegal. My colleague, Justice Englard, believed that it was appropriate to void that regulation because it was a discriminatory condition under the provisions the Standard Contracts Law. Unlike my colleague, Justice Englard, my colleague, Justice Turkel, felt that the Standard Contracts Law did not apply to regulations of a cooperative, yet his conclusion was also that a regulation must be voided when it clashes with public policy under section 30 of the Contracts Law (General Section). When I read the words of my colleagues on that occasion, I was at a loss to understand the need for such hair-splitting arguments, since the conclusions were almost identical.

I wrote there that public policy “is the wellspring and the source from which the tributaries of norms flow out to all corners of the law.” CA 1795/93 Egged Members’ Pension Fund v. Ya’acov [11] at 467. I continued:

“Public policy” dwells in the royal capital of the kingdom of contracts, and it sends its envoys to all the principalities of contracts. One of these is the principality of Standard Contracts. When settling down in the principality of Standard Contracts, the envoy of public policy seeks to assimilate into the local people and merit a local title of its own, a title that will make it feel at home. It receives the ironic title of “the discriminatory condition.” In coming to the principality of Standard Contracts, public policy metamorphoses into “the discriminatory condition.” The concept of the discriminatory condition consists of the re-crystallization of public policy in the principality of Standard Contracts. In other words, in the relationship between the “supplier” and the “customer” – the two parties involved the Standard Contracts Law – public policy is represented by the discriminatory condition, and the discriminatory condition is public policy.

Id. at 467-68.

 

As it was in that case, so it is here. The Court arrived at the same conclusion in both Gideon [1] and Kestenbaum [6]. This was no coincidence. The same fundamental principles embedded deep in our hearts – human dignity, tolerance, the social need to contribute and not just to take, the rights of the individual, freedom of conscience and expression, freedom of thought and action as befits a free society – are what guided Justice Etzioni’s pen as he wrote his decision, and what cleared the path for President Shamgar and Justice Barak to say what they said. Thus the Court emphasized further – both in Gideon [1] and Kestenbaum [6] – that the rights of an individual can be stopped in their tracks, can be limited, where they are hurtling toward a severe head-on collision with the equally-ranked rights of another. Thus, for example, we will not allow substantial harm to the sensibilities of another. If someone wishes to inscribe on the grave of his father or mother – in a Jewish cemetery – a Christian cross, I assume that the Court would not fault a decision of the Jewish burial society to forbid it. It was not so in the cases of Gideon [1] and Kestenbaum [6], which dealt only with carving names in foreign characters (as well as Hebrew writing) and inscribing Gregorian dates of birth and death.

6. Those were the rulings in Gideon [1] and Kestenbaum [6]. At issue in those hearing was what was permitted in gravestone inscriptions, and the Court delved into and solved every aspect of the problem. It addressed all differences of opinion, weighed in on every question, and handed down its ruling. The decisions are clear, and there are no ambiguities or doubts in them. In my naiveté, I thought that these rulings established everything needed to make a decision in the case before us. How is it, therefore, that the lower court refused to follow these rulings?  Why and wherefore did the lower court see a need to carve out a new path for itself and refuse to take the path which had already been well-signposted? It is understood that the district court relied primarily on a law passed after the Gideon [1] and Kestenbaum [6] rulings, that is, the Right to Alternative Civil Burial Law, 1996 (hereinafter – the Alternative Burial Law). In the lower court’s opinion, this law overturned the Gideon-Kestenbaum ruling.

We all agree, of course, that a later law can supersede a law or ruling that precedes it, so the question is whether this particular law indeed irreconcilably contradicted the rulings that preceded it. This, put simply, is the doctrine of “implied negation.” Therefore we will briefly review the Alternative Burial Law, and afterward address its relationship to the Gideon-Kestenbaum ruling.

The Alternative Burial Law

7. The Alternative Burial Law – a brief and concise law – is known by the full name of the Right to Alternative Civilian Burial Law. In the words of section 2 of the law: “Everyone has the right to a burial which accords with one’s ideology in an alternative civilian cemetery if one so chooses…” The law further established (section 3) that “burial is conducted while preserving the dignity of the dead.”  The law originated with a bill proposed by Members of Knesset David Zucker and Binyamin Temkin, who explained their aims as follows:

Everyone who dies in Israel has the right to be buried in a dignified manner (section 3) appropriate to their ideology. Therefore it is proposed not to impose upon the burial process to religious practices which are sometimes foreign to the ideology of the deceased.

Right to Alternative Civilian Burial Bill, 1996 at 600.

 

The bill continues:

It is proposed to solve the problem of the burial of Jews who do not identify themselves with Judaism or any other recognized religion and who wish for a burial in line with the principles and ideology by which they lived their lives.

It is also proposed to solve the problem of the burial of those without a recognized religious affiliation.

Under the legislation, the Minister of Religious Affairs will designate places to be used as alternative civilian cemeteries, which will be located in the different regions of the country at reasonable distances from each other. Sec. 4. The alternative civilian cemeteries are supposed to be administered by burial cooperatives. Sec. 5. The Minister of Religious Affairs is authorized to create regulations for the implementation of the law, including regulations for licensing burial cooperatives and acceptable burial practices. Sec. 6.

Our opinion is that the law – as its name suggests – refers to alternative civilian burial, In other words: the norm is burial in a regular cemetery, but one has the right to an alternative if one expresses this desire. Section 2, as we have seen, sets down the right of a person to choose to be buried in an alternative civilian cemetery, and the same section further states that “the choice can be expressed in his legal will or in any other way.” Therefore, one who wishes – when the time comes – to be given an alternative civilian burial bears the burden of making sure this desire is expressed. It can be assumed that if close family members say that this was indeed the will of the deceased, those wishes should be respected.

The Alternative Burial Law is a framework law: a law that acknowledges fundamental rights and outlines the principles of their implementation in the future by the individual appointed to the task. That is its charm. That is also its hindrance.

8. The authorities did not hasten to implement the law. Thus, for example, even though the law was passed on March 21, 1996, no regulations were instated for two and a half years until the Right to Alternative Civilian Burial Regulations (Licensing Burial Cooperatives and Establishing Burial Procedures) was published on December 17, 1998, to be implemented 30 days later. It is clear that these regulations were only instated following a petition brought before the High Court of Justice discussed below.

This was the course of events: the Minister of Religious Affairs dragged his feet in creating regulations for the implementation of the Alternative Burial Law, and since he did not designate – as was his obligation under section 4(a) of the law – sites for alternative civilian cemeteries, MKs David Zucker and Binyamin Temkin – the initiators of the law – and with them Mr. Erez Epstein, petitioned the High Court of Justice, requesting that it order the Minister of Religious Affairs to fulfill the tasks assigned to him by the law. This petition (HCJ 619/97) was brought before the Court on January 27, 1997 – some ten months after the law went into effect – and it is still pending today. Almost two years after the petition was filed, the Minister of Religious Affairs established those regulations mentioned above, and in doing so, one of the requests of the petitioners was addressed. Their other request – regarding the designation of sites for alternative burial – is yet to be addressed, despite certain actions taken towards the implementation of the law.

9. The situation is that the Alternative Burial Law – at this time – is nothing more than the “dry bones” of a law: it is not fleshed out, and there is no life in it. The petition which seeks to force the authorities to carry out the tasks entrusted to them is still pending before this court.

Here we conclude the initial sections dealing with the issue of the Alternative Burial Law, and now we will move to the judgment of the lower court.

Why did the district court deviate from the ruling of Gideon-Kestenbaum?

10. Initially, the judgment of the lower court cites the ruling of Kestenbaum [6] – upon which the appellant relies – and continues by ruling that since the judgment was handed down, circumstances have changed, due to the legislating of the Alternative Burial Law. This law, the court ruled, “frees anyone who desires a different sort of burial from burial according to religious precepts and rites.” Therefore, the implication of the law, that is “the flip side of the coin,” is that the Jewish burial society acquires every right to insist on the burial rites it considers acceptable. As the court put it:

Since the judgment in CA 294/91 [Kestenbaum [6] – M.Ch.], circumstances have changed. On March 21, 1996, the Right to Alternative Civilian Burial Law, 1996 was published …

This law frees anyone who desires a different sort of burial from burial according to religious precepts and rites, providing cemeteries designated for this purpose in different regions of the country, spaced apart at reasonable distances, and managed by burial cooperatives. The “flip side” of this law, that which we deduce from it, is that Jewish burial societies acquire the option of insisting that burials carried in cemeteries under their management be done according to the Jewish laws and rites accepted in their community.

Even though CA 294/91 [6] established that the laws of tolerance and respect for individual liberty oblige the Jewish burial society to allow deviation from what it considers appropriate for a Jewish cemetery in the State of Israel, the legislature had a different view:

One who wishes to have a burial in accordance with one’s personal ideology will be interred in a civilian cemetery. There, one can realize one’s right to be buried according to one’s views and wishes, and not in the cemeteries belonging to the Jewish burial societies. This law nullifies the basis of the ruling in CA 294/91 [6], according to which a cemetery with a religious character must respect the wishes of the individual even if they do not coincide with the rites and precepts considered appropriate by the management and owners. In its place, the legislature established the principle of separation between cemeteries where burials take place according to religious precepts and rites and cemeteries where burials reflect the particular ideology of the deceased, as expressed in his legal will or through other means.

In other words, the Alternative Burial Law sets new obligations and also voids existing obligations. In terms of the new obligations, we learn that alternative civilian cemeteries must be established. In terms of voided obligations, we learn of the nullification (through an “overturning effect” or the “flip side of the coin” as the lower court put it) of the principle established in Kestenbaum [6] (and in Gideon [1]) regarding respecting the wishes of an individual. In as much as the new law gave the individual the option of being buried according to his personal wishes in an alternative civilian cemetery, there is no longer any reason to force Jewish burial societies to accede to the wishes of individuals.

The court agrees, that indeed, the Alternative Burial Law has yet to be implemented, since alternative civilian cemeteries have not yet been established, but in its opinion this fact does not “justify coercing the respondent [the Jewish burial society – M.Ch.], in the interim period (until the alternative civilian cemeteries are established), to deviate from the standards it considers acceptable based on the ruling of the local rabbi, according to the law and custom of the community.” The court further ruled that the Alternative Burial Law does not have any transitional provisions and that “the rights established by it, like the principle of separation of religious burial sites and alternative burial sites,” have “immediate application” (The court was referring both to the provisions of the statute themselves as well as "the flip side of the coin"). The Jewish burial society “has no … influence on the pace of activity of the Minister … and is not responsible for his actions or omissions. The request for a right based on the law must be addressed to the Minister, and not to the respondent.”

The lower court additionally ruled that there are cemeteries in the vicinity of Rishon Lezion (the Holon Cemetery and the Yarkon Cemetery) run by Jewish burial societies that allow the inscription of Gregorian dates of birth and death on gravestones. Thus, as the court said, “The right to a gravestone to the taste and personal philosophy of the deceased can be realized at a reasonable distance from Rishon Lezion, and it is therefore unjust to force the respondent to overturn the municipal rabbi’s ruling regarding burial practices appropriate in a Jewish cemetery in Israel.”

The appellant has rejected these claims one by one, and below we will address these arguments.

Regarding the “Overturning Effect” of the Alternative Burial Law

11. There is no argument that the Alternative Burial Law introduced a significant change to the laws of burial in Israel. Before it existed, the Jewish burial societies in this country held a kind of monopoly on the burial of Jews. The law is meant to pave the way for burial corporations other than Jewish burial societies and the establishment of alternative civilian cemeteries in which people may be buried, if they so choose, in ways other than according to the Orthodox Jewish tradition. The question is if the law has an “overturning effect” which negates Gideon-Kestenbaum and frees the Jewish burial society from the yoke of these rulings. The lower court ruled thus – that the Alternative Burial Law does indeed overturn Gideon-Kestenbaum – but we find it difficult to accept this stance.

12. First of all, it must be said – though this is not main point – that the stance of the lower court troubles us deeply, and not only because the Alternative Burial Law is currently a mere “skeleton” of a law. The statement that “a person has the right to be buried according to his ideology in an alternative civilian cemetery if he so chooses” – as per section 2 of the law – is at present just empty words far from the reality. Alternative civilian cemeteries have not been established – it has not even been announced when they will be established – and I have difficulty accepting that the mere existence of a law is capable of overturning a court ruling.

“Alternative relief” must fulfill two conditions to be considered in effect: First, there must be relief, and second, this relief must be current, effective, and available to those who seek it. In this case, the appellant does not currently have access to relief and there is certainly no effective relief. In other words: in the present situation, alternative burial does not exist. In light of this, we have trouble understanding how the Rishon Lezion Jewish Burial Society can shed its obligations to the general public – to the residents of the city that it is supposed to serve – which it has borne at least since Gideon-Kestenbaum. It makes a mockery of a person's dignity to tell the appellant that she must go to the Minister and complain about the delay in the implementation of the law. Can one postpone the day of one’s death until the alternative cemeteries are ready? However, we will not rest with this reason alone. We will now discuss the law as though the alternative civilian cemeteries had been established, thus reaching the heart of the matter.

13. The whole truth is that every statutory arrangement has an “overturning effect,” that is the “flip side of the coin,” as the lower court put it. We commented on this in LCA 5768/94 ASHIR Import, Manufacturing and Distribution v. Forum Accessories and Consumables (hereinafter – ASHIR [12]):

Just as there is no person without a shadow, thus – in principle – there is no statutory arrangement without an overturning effect following in its wake. Just as a shadow follows its owner wherever he goes, the overturning effect follows the statutory arrangement. The shadow cast by the overturning effect may be small or large, however there will always be an overturning effect of some sort.

Id. at 402-03.

 

And what is this overturning effect?

…the overturning effect that is evident from the structure of a law – and which surrounds the law on all sides – is an implied expression of the exclusiveness of the law in certain areas and is similar to the negating of a law (or ruling) by a subsequent law.

Id. at 393-94.

 

The overturning effect – the shadow of a law – accompanies the law, and there is no such thing as a shadow that is its own master. The overturning effect will be guided by the provisions of the law that are on the surface as well as the law’s very foundations, and an overturning effect cannot exist independently. In our case, we could say the overturning effect that envelopes the Alternative Burial Law is that after the law goes into effect, there will be no dispensation to perform “alternative” burials except according to the provisions of the law. However we did not say that this is in fact the real overturning effect of the law. All we are saying is that the overturning effect is likely to be guided by the express provisions of the law.

We find it hard to understand how it is possible, from the law’s provisions, to extrapolate – as something self-evident – the “principle of segregation” to which the lower court refers. Under the district court’s interpretation, after the law goes into effect, there are two kinds of burials: “religious burial” – each place according to its own custom – and “alternative burial.” Apparently, the mere existence of the alternative burial option makes the Jewish burial society master of its domain, free of the yokes of public law, public policy, and the Standard Contracts Law – everything that guided the Gideon-Kestenbaum ruling. The lower court assigned the Alternative Burial Law a shadow that is much longer and broader than the Alternative Burial Law is capable of bearing, a shadow that would only be appropriate were it accompanied by an explicit and broad statutory arrangement for areas relating to the Alternative Burial Law, at least in its present framework.

14. Moreover, the original intention of the Alternative Burial Law, in principle, was to add an alternative to the accepted way to burial – for those who desire a burial in line with their personal ideology as opposed to the common practices in our community. The law was intended to create an alternative, not to diminish the existing option, and the addition does not detract from the obligations borne by the Jewish burial society – every Jewish burial society – in its area. To say that the establishment of the Right to Alternative Burial intended – through an overturning effect – to negate the right to non-Hebrew writing and Gregorian dates on a gravestone is a non-sequitur. Establishing the right of a person to an alternative burial according to his or her ideology does not mean that the right of this same person to non-Hebrew writing on a gravestone in a regular cemetery is negated, even though this right was established before alternative burial existed. We have not found in the Alternative Burial Law any suggestion that, after it goes into effect, the Jewish burial societies acquire the right to impose demands that ex hypothesi – according to the Gideon-Kestenbaum ruling – violate human dignity, violate public policy, subvert the principles of public law, and are prohibited under the Standard Contracts Law.

15. The subject of the overturning effect is inextricably bound up with the subject of implied rescission. See our remarks in CA 6821/93 United Mizrachi Bank. v. Migdal Agricultural Cooperative [13] at 554-57, and ASHIR [12], supra, at 393-403. The lower court effectively held that the Alternative Burial Law implied the rescission of the ruling of Gideon-Kestenbaum. We cannot agree with this conclusion. A ruling made by the Supreme Court bases itself on basic principles of the legal system in Israel – human dignity, public policy, the principles of public law – and it is so sturdy and strong, that we find it difficult to accept that it was rescinded by implication, allegedly, simply due to the passing of the Alternative Burial Law; that the wind that the Alternative Burial Law blew in through its passage whisked away the Gideon-Kestenbaum ruling, until it disappeared, as though it had never existed.  In order to overturn a ruling such as Gideon-Kestenbaum – a ruling that anchors itself in basic human rights – we would expect to find an explicit provision in the new law. We have not found such a provision.

In other words, the ruling gave the appellant the right to inscribe the Gregorian birth and death dates on her mother’s gravestone, and we haven’t found anything in the provisions of the Alternative Burial Law – neither in the express provisions nor in the implied provisions – to negate this right as if it never existed. This was so even before the establishment of the Basic Laws. Compare with HCJ 337/81 Miterani v. Minister of Transportation [14] at 358-59. The point is that to negate fundamental rights – or to limit the scope of their application – clear and explicit legislation is necessary. We cannot settle for an overturning effect. If this was the case before the Basic Laws, it is true all the more so after their passage, because now the Basic Law: Human Dignity and Liberty directly protects human dignity, and it is based on the same unshakable foundation as the Gideon-Kestenbaum ruling.

16. Furthermore, the introduction of the Basic Law reinforced a principle that was accepted previously. This was the intention of the limitation clause of Basic Law: Human Dignity and Liberty (section 8), according to which – whether directly or by association – a legal provision may violate basic rights only if it meets the following basic conditions: it befits the values of the State of Israel; it was enacted for a proper purpose; and it causes harm to an extent no greater than is necessary. On this last condition, see President Barak’s opinion in HCJ 5016/96 Horev v. Minister of Transportation (hereinafter – Bar-Ilan Street [15]) at 53-54 and the precedents cited above, including HCJ 3648/97 Stemaka v. Minister of the Interior [16] at 776 and others.

In Kestenbaum [6], Justice Barak said the following:

Human dignity in Israel is not a metaphor. It is the reality, and we draw operative conclusions from it. In the matter before us, the necessary conclusion is that a government agency’s general mandate to carry out certain activities – for example, the management of a cemetery – should not be interpreted to mean that this same government agency is licensed to cause serious and severe harm to the human dignity of those involved in this case. A government authority that seeks to infringe on human dignity must have explicit and clear authorization from the legislature, and since the legislation of the Basic Law: Human Dignity and Liberty, this agreement needs to be anchored in a law “that befits the values of the State of Israel, was enacted for a proper purpose, and [causes harm] to an extent no greater than is necessary” (sec. 8). This basic concept – the need for an explicit statutory provision that allows for harm to human dignity – is not new to us. We have always accepted that a government agency is not entitled to infringe upon basic rights without explicit authorization to do so … today another requirement was added to the essence of this law.

Id. at 524.

 

Thus we have difficulty – very great difficulty – in accepting an interpretation of the Alternative Burial Law which effectively sweeps by the wayside a right that the Gideon-Kestenbaum ruling views as extrapolated from human dignity, public policy, and the very core of public law. We reject this interpretation outright.

Additionally, if indeed the Jewish burial society has a “dual character” – as ruled in Kestenbaum [6] – then it is subject to public law. See Kestenbaum [6] at 484-85, 490-92, 517-19. See also CA 3414/93 On v. Diamond Exchange Industries (1965) (hereinafter – On [17]); E. Benvenisti, Tchulat Hamishpat Haminhali al Gufim Pratiim [Administrative Law, Private Bodies] [48]. We also note that the Jewish burial society is subject to public law, because it fulfills a public and social duty by law. Human dignity and public policy lead us directly to the obligation of the Jewish burial society to act in accordance with the Gideon-Kestenbaum ruling. Taking all this into account, I am frankly stunned that the Jewish burial society can shed its obligations with no more justification than an implied rescission and a conceptual overturning effect. The nullification of the Gideon-Kestenbaum ruling requires far greater force than that which an overturning effect and implied rescission can provide.

The Claim of the Jewish Burial Society That It Is a Private Non-profit Organization

17. The Jewish burial society claims that the Gideon-Kestenbaum ruling does not apply to it for the following reason: unlike the Jewish burial societies involved in Gideon [1] and Kestenbaum [6], it is a private non-profit organization. It is entirely unaffiliated with the Rishon Lezion Religious Council, and the land of the cemetery is under its ownership, it having purchased the land for full value. In light of this, the respondent claims, it follows that the Jewish burial society may act as it sees fit and is allowed to impose its will on the appellant regarding inscriptions on gravestones. This claim is not acceptable to us in the present case. No doubt this is also the respondent’s position on the application of the Standard Contracts Law to the relations between the Jewish burial society and the appellant. This is also its position on the application of public law and, of course, public policy.

The cornerstone of the Gideon-Kestenbaum ruling was as follows: Jewish burial societies were formally born into the family of private law. However, due to the nature of their work, they have transformed into dual-character bodies, subject to private law and also to principles of public law. President Shamgar said in Kestenbaum [6] (at 484) that the role of the Jewish burial society is “… essentially public, both formally and as part of its character …” The nature of the activities of the Jewish burial society has not changed; its religious character is an intrinsic part of its essence, and it brought us to the Gideon-Kestenbaum ruling.

Indeed, the fact that certain land is owned by a private body does not in itself exempt that body – always and under all circumstances – from principles of public law. Private property may have a public character due to the nature of its use, and this character in itself brings principles of public law to bear on the [owner – ed.], obligating it. See, e.g. On [17] supra. See also HCJ 2481/93 Dayan v. Jerusalem District Commander [18]; A. Dayan-Orbach, Hamodel Hademocrati shel Chofesh Habitoi [Freedom of Expression] [49] at 422. Certainly, these issues apply to the Jewish burial society we now address, which is a community Jewish burial society. In fact, it is the one and only Jewish burial society in Rishon Lezion.

The Jewish burial society before us will be judged in the same way as other Jewish burial societies, and laws that relate to other Jewish burial societies also relate to this one.

The Ruling of the Rabbi of the Jewish Burial Society; Human Dignity; the Private Domain and the Public Domain

18. The Jewish burial society also claims that it must bow to the Jewish legal ruling of its chief rabbi and to the orders of the chief rabbi of Rishon Lezion, and that these rulings forbid it to carve foreign letters and Gregorian dates of birth and death. This claim is not acceptable to us either.

First of all, this notion was already discussed in Gideon [1] and Kestenbaum [6], and despite the Jewish legal opinions that were presented, the Court ruled against the Jewish burial society – not once but twice. We note in particular the words of Deputy President Justice Elon in Kestenbaum [6] (at 488-89, 499-503). Even though the Deputy President was in the minority in the final judgment, on this issue, he  wrote about the opinion of the panel.

Secondly, it is known that there is no sweeping and comprehensive Jewish law that prohibits the carving of foreign characters or Gregorian birth and death dates on a gravestone. In many cemeteries in Israel, there is no such prohibition. See e.g. President Shamgar’s opinion in Kestenbaum [6] supra, at 483, and Justice Etzioni’s opinion in Gideon [1], supra, at 19. The Jewish burial societies in those places allow families, if they so desire, to inscribe the names of the deceased in foreign lettering and the dates of birth and death according to the Gregorian calendar.

Furthermore, even in the Rishon Lezion cemetery there are gravestones bearing non-Hebrew script and Gregorian dates, but according to the rabbi of the Jewish burial society they date from before his appointment to his post, and since he arrived he has forbidden the practice. This claim [of the rabbi – ed.] means that the rabbi of each Jewish burial society – or each local rabbi – is allowed to permit or prohibit at will, and the whole community must obey him. In the cemetery of the Jewish burial society of Tel Aviv, there is no such prohibition – neither from the rabbi of the Jewish burial society nor the local rabbi – on inscribing foreign characters or Gregorian dates. Nevertheless, if at some future date, a new rabbi suddenly popped up in Tel Aviv and decided to get strict, then, according to the claim of the Jewish burial society, his prohibition would be binding.

This ruling giving the local rabbi the last word in his area – the concept of the “local rabbinic authority” – is only binding among the religiously observant public or through an express law of the state. In former days, and in Jewish communities that were dispersed among the nations in many lands, this was Jewish Law, and there was no other. This is still Jewish Law in Jewish communities in the Diaspora in the present day. See 1 Menachem Elon, Jewish Law [45] at 547.

The case is different here in Israel, as we have been gathered back to our homeland. I can find no good reason – in terms of the laws of state – to impose the ruling of the local rabbinic authority on all – on those who are religiously observant and those who are non-religious – as if it were the law of the state. Thus, we can in no way accept the behavior of the rabbi of the Jewish burial society, who tried to impose his decision on the entire community, on the religiously observant and on the non-religious. The more we contemplate such an imposition, the more we are shocked.

Take Rehovot and Ness Ziona, Tel Aviv and Jaffa, Ramat Gan and Givatayim, Holon and Bat Yam, Haifa and its bayside suburbs – gravestones erected in all of these localities may be inscribed with the Gregorian birth and death dates; it’s OK in all those places, but in Rishon Lezion, it is strictly forbidden. Since we know that the city limits of these places are set by the state and not by Jewish Law, as are the geographical areas of authority of their local rabbis, we must ask: what is the difference between Minsk and Pinsk [as the saying goes – trans.], such that in one city something is permissible, and in another, it is forbidden?

Some may answer that the Jewish burial society may impose the decision of the local rabbinic authority on the residents of Rishon Lezion simply because that is how Jewish Law works.  However, we find it neither legal nor just to force citizens to abide by prohibitions of the local rabbinic authority. The Gideon-Kestenbaum ruling lives on, as far as we are concerned, and has lost none of its force – neither its legal nor moral power.

Before me lies Talmud Tractate Yevamot, a large and weighty tome which commands respect. This edition was published by Rabbi Nachman Avraham Goldenberg in the year 5622 – “in Berlin, 1863.” Next to it is Tractate Nedarim which was published by the Widow and Brothers Ram Press, and its publication date – as printed on the front’s piece: 5657-1897. Similar is the Mishna Torah, the monumental work of the “great eagle, the illustrious rabbi, our teacher Moshe son of Maimon, blessed be the memory of the righteous.” This enormous and heavy volume “was meticulously proofread and brought to print” by Rabbi Nachman Avraham Goldenberg, and its year of publication is marked as 5622, “Berlin, 1862.” Also on my table, in its permanent place, is a Bible published by the Rabbi Kook Institute (proofread by Mordechai Breuer), and it dates to the year 1989. The Mishna with commentary by Rabbi Pinchas Kehati is from 1991; Volume 1 of the Talmudic Encyclopedia was printed in 5712-1951; the Rinat Yisrael prayer book edited by Shlomo Tal (fourth edition) is from 1983; and the eighth printing of the Complete Writings and Sayings of Moshe Sabar, published by the Rabbi Kook Institute, is from “5747 (1987).”

It would seem, therefore, that the prohibition against using the Gregorian calendar is not sweeping and comprehensive. In these circumstances, the Gideon-Kestenbaum ruling applies in every sense.

In the future, we might encounter a case of someone who wishes to carve a symbol of a cross on a gravestone, for example, but this is a different case and there is no need to elaborate on it further. The stringent ruling that we examine in the case at bar has already been addressed in Gideon [1] and Kestenbaum [6], and there is no need to repeat what has already been said.

19. The Jewish burial society made itself the “guardian” of the deceased who are buried in the Rishon Lezion cemetery – of them and their relatives – and it claims that the dignity of the dead and the sensibilities of their family members will be offended if there are gravestones inscribed with non-Hebrew letters and Gregorian dates in the cemetery. This claim is extremely surprising, all the more so because in other cemeteries in Israel, this prohibition has not been adopted. Are the people of Rishon Lezion different from other people in Israel? What singles them out from their compatriots? Is the sensitivity of the people of Rishon Lezion to non-Hebrew letters and Gregorian dates more acute than that of the rest of the population of Israel? There is no difference between the residents of Rishon Lezion and the residents of Greater Tel Aviv (for example), at least in the present matter. The only difference is the ruling of the rabbi of the Jewish burial society. But the ruling of the rabbi of the Jewish burial society does not obligate the entire public. On the other hand, the Gideon-Kestenbaum ruling is binding; it obligates even the rabbi of the Rishon Lezion Jewish burial society.

Additionally, as we have said, the Jewish burial society made itself the guardian of those buried in Rishon Lezion – of them, their relatives, and the feelings of these parties. However, the Court has not heard from the relatives of the deceased, and no complaint from their lips has reached us. The Jewish burial society’s claims have not left the realm of conjecture, and conjecture, of course, is limitless. We add, however, that even if someone did come before us with a complaint, it is doubtful that we would hear them. However, since no complaint was issued, there is certainly no need to bother with such never-ending conjecture.

20. This claim of harm to the dignity of the dead and the feelings of the families is not new to us. It came up in Kestenbaum [6], and the Court dealt with it comprehensively. Thus, for example, said President Shamgar:

A gravestone is not a public structure, but rather, first and foremost, a sign of the personal connection between the living, who keep the memory of the departed alive in their hearts, and those who have passed on; it is a memorial that is erected by those who will come to visit, that is intended, first and foremost, for them, and those concerned with it must be protected and distinguished.

…

One who erects a gravestone and another who comes to visit a different grave in the cemetery do not stand on the same plane. The general model needs to be that one who enters the space of his neighbor may not interfere needlessly with his life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which is not relevant to them, though of course this does not refer to conditions that a reasonable person cannot accept.

Id.at 482.

 

My colleague Justice Barak expounded on the subject of human dignity, but we should pay particular attention to his comments on the dignity of the dead; in Kestenbaum [6], Justice Barak wrote the following about inscriptions on gravestones:

Insisting on exclusively Hebrew writing on the gravestone of a Jew, against his or her will, causes serious and severe harm to that person. This is not the hyper-sensitivity of an extremist Jew. This is an ‘ordinary person,’ who has no extraordinary sensitivities, and who is seriously harmed if he or she is powerless to choose an inscription in the language which he or she deem most appropriate to memorialize himself or herself or a loved one. Human dignity does not just refer to the dignity of living people. It includes dignity after death as well. It is also the dignity of those dear to the deceased, who keep his or her memory alive in their hearts. This dignity is expressed, among other ways, in the erection of a gravestone, in visits to the cemetery on annual memorial days, in public ceremonies, and the upkeep of the grave. This is the connection – sometimes rational and sometimes irrational – between the living and the dead, that crystallizes the humanity within us and gives expression to our souls' longed-for wishes. This is the ‘hand of memory’ that the living extend to the dead. This is the external expression that reflects the internal connection between the generations. Recognition of human dignity mandates giving people the freedom to inscribe gravestones in the way they see fit. The negation of this freedom and the imposition of exclusively Hebrew writing constitute a severe and serious violation of the fundamental value of human dignity. More precisely, a violation of human dignity occurs when someone is denied the liberty to carve an epitaph as the deceased (in his or her lifetime) and the family (after the death) wish to carve it.

Id. at 523.

 

21. In HCJ 3872/93 Meatrael v. The Prime Minister and Minister of Religious Affairs (hereinafter – Meatrael [19]) I discussed freedom of religion and freedom from religion, and, in the course of discussing these principles, I spoke about the private domain, the public domain, and what lies in between. Among other things, I wrote the following:

Allow me perhaps to pinpoint the principle that guides relations between religion and state with a saying (drawn from a very different context, and polished clean of its unwanted and irrelevant associations): Be a human being in the street and a Jew in the home. The public domain is the city street, and the private domain is one’s home. The state and its representatives – be they the government, the administration, or the courts – will safeguard and protect the freedom of religion of a person in his or her home, but when one leaves one’s home and comes into the public domain, or into the private domain of another, one cannot force one’s will and opinion on another. The private domain belongs to the individual – it is the individual’s alone, and his or her authority reigns there – and the public domain belongs to everyone. The dignity of a Jew is a private matter, and the state will protect the individual’s right to behave as he or she chooses in the home (while still providing protection for others and maintaining public order) whether the person is religiously observant or non-observant. Not so in the public domain, where the need to maintain public order, acceptable behavior, and public peace is essential. As the saying goes, Torah goes well with decent behavior – Torah in a Jewish home and decent behavior to all Jewish people (including those at home) …

The observant population’s interests are quite weighty, perhaps even determinative, within the privacy of their own homes.  However, the further one travels from one’s home, and the closer one is to entering the public domain – or another’s private domain – or when one’s request involves one’s fellows’ rights, so too will the strength of his or her interests be weakened, because they will be balanced against the interests of his or her neighbor, in the latter’s public or private domain.

Id. at 507-08.

 

In Bar-Ilan Street [15], I also referred to the private domain and the public domain, and I said, inter alia:

As a general rule, the private domain belongs to the individual and the public domain to the public. A person’s home belongs to him or her and to his or her family; city streets belong to the entire community. This is also the case in relations between religion and state. Every person has the right to freedom of religion and freedom from religion in the private domain. The state and its emissaries must safeguard and protect this freedom, using all means available to them. This is the case with respect to the private domain, and it is equally the case regarding the public domain. In the private domain and in the public domain, the state will protect the individual’s right to freedom of religion and freedom from religion. This right of a person means that he or she cannot be coerced on issues of religion, in either direction. In the private domain, the state will preserve freedom of religion and freedom from religion because it is the private domain, and in the public domain, the state will preserve freedom of religion and freedom from religion, because it is the public domain. All this will be said and will be fulfilled, provided that order and public peace is preserved. See e.g. the Meatrael case at 507-09.

Our concern is with these two sets of pairs: individuals and the collective, the private domain and the public domain. Both these pairs relate to each other in certain ways. We can be sure of the following, subject to statute and constitution: neither an individual nor the collective can impose on another in the latter's private domain. Similarly, in the public domain, an individual will not be allowed to impose his or her will on another or on the collective. Our case raises a question with regard to the connection between the individual and the collective in the public domain. Is the public entitled to force its religious customs on the individual who finds himself or herself in the public domain, in its midst, and thus negate that individual’s right to freedom in the public domain? The Court touched on this issue in Meatrael [6] [as cited above – trans.].  

…

All this is to say that the collective bears a heavy burden whenever it seeks to deny the freedom of an individual situated in the public domain; to force practices that are religious in nature on that individual.

The private domain is distinct from the public domain. What is the private domain and what is the public domain with respect to freedom of religion and freedom from religion? All agree that a person’s home forms part of the private domain. Nevertheless, I believe that it is possible – and indeed proper – to expand that which is considered the private domain even beyond the four walls of one’s house and yard – though with great care. Take, for example, an observant neighborhood of alleys and narrow side streets upon which no stranger ever treads. It would not be an exaggeration to say that, regarding the public desecration of the Sabbath, even those alleys between houses should be deemed to be the observant residents’ private domain.

Id. at 142-43 {314-15}.

 

I made further remarks along the same lines.

22. A person’s grave and the monument that is upon it are both the private domain and the public domain simultaneously. Each dead person has his or her private domain, where he or she and the family do as they will. For example, in the home – while the deceased was still among the living – he or she may have talked with his or her family in a foreign language (Russian, German, English, Amharic), wrote in a non-Hebrew script (Russian, German, English, Amharic), and run his or her life – as most of us do – by the Gregorian calendar. A person and his or her language – the language of speech, the language of writing, the language of the calendar – are one.

Close family members may have related to the deceased only in that language and through the Gregorian calendar. That’s how they chatted among themselves, that’s how they wrote to each other, and now they wish to remember him or her as he or she was. They wish to continue to talk to their loved one in his or her language. They wish to imagine him or her as he or her was. They wish to read his or her name on the grave as they know is and see his or her birth date as he himself or she herself used to write it. Writing the name of the deceased only in Hebrew and recording the dates of birth and death only according to the Hebrew calendar create a psychological barrier between the family and the deceased, distancing the deceased from his or her loved ones.

This is an emotional matter – could it be irrational? Of course. But visiting graves is also an emotional matter. Yet this doesn’t prevent a mother who has lost her son from embracing the cold, dumb gravestone. It is nothing but arrogant and paternalistic coercion to tell that grieving mother that she must learn Hebrew – doesn’t she realize that she is in the Hebrew homeland now? – and that if she does as she is told, she will be able to read her son’s name in her (new) language and his birth and death dates by the Hebrew calendar.

This is the private domain.

Yet a cemetery is also the public domain, because gravestones are exposed for all to see, row after row, each one right beside the next, and people must walk among them to get to the one they seek. In a certain sense, a cemetery is like a shared house – or a common courtyard shared by adjacent houses – with one important difference: living neighbors will always part eventually, while neighbors in a cemetery will be neighbors forever (or until the resurrection of the dead, if you will).

A neighbor should always be careful to be a good neighbor, one who does not do things that will harm his or her neighbor. Thus, for example, a cross should not be carved on a Jewish grave, since a cross can harm – to an intolerable degree – the dignity of the dead neighbor and the feelings of his or her family. Just as a good neighbor does not make too much noise or create bad smells, the same principle should hold true in a cemetery. I am at a loss, however, to understand how the writing of a name in foreign letters – the letters the deceased lived by – will harm his or her neighbor. Didn’t that neighbor see foreign writing in his or her lifetime? Why would it harm him or her after death?

The case is the same with Gregorian dates of birth and death. Did that same neighbor not also live his or her life according to the Gregorian calendar? And if the neighbor did not run his or her own life that way, didn’t he or she have relatives, friends, and people all around who used that calendar? The deceased and the family and the deceased “neighbor” and family all have legitimate interests, but there is no equating the dignity of the deceased which we address in this case and that of her relatives with the dignity of some hypothetical deceased neighbor and his relatives. The dignity of the deceased we address – her dignity and that of her family – must be the determinative factor. The prohibition imposed by the Jewish burial society on the appellant transgresses – significantly – all acceptable bounds.

23. The Jewish burial society drew our attention to HM (TA) 752/94 Burgman v. Rishon Lezion Jewish Burial Society (hereinafter –Burgman [42]) heard in the district court before Judge Dr. G. Kling. Also in that case, the Jewish burial society (the very same one that is before us now) refused to all allow non-Hebrew writing or non-Hebrew dates on a gravestone. In that case, family members claimed that they ran their lives “… according to the Gregorian years, we are accustomed to using them. We are not familiar with nor do we understand the Hebrew calendar at all, and a significant portion of our family does not read or speak Hebrew ...” Moreover, the widower of the deceased in the case claimed: “I know and understand the wishes of my late wife and she would have preferred that her name be recorded on her gravestone in her mother tongue and that her birth and death dates be inscribed according to the standard calendar, in addition, of course, to Hebrew writing.” The widower further claimed: “I emphasize that I am not denigrating the Hebrew script – all that I ask for is the option to inscribe, in addition, the dates of birth and death of my late wife according to the standard calendar, and also her name in Cyrillic letters.”

Despite Kestenbaum [6], the court did not grant the plaintiffs their request, and it upheld the Jewish burial society’s refusal. The court explained that it must differ from Kestenbaum [6], and its opinion cited several reasons. The main one was that in Kestenbaum [6], the Jewish burial society held a monopoly. But as far as the present respondent (the Rishon Lezion Jewish burial society) was concerned, the deceased’s family had the option of turning to other Jewish burial societies in cities close to Rishon Lezion. Thus: “Since the plaintiffs have a choice, one that was not open to the appellants in the Kestenbaum case, and since the respondent does not enjoy the same exclusive standing it held in Kestenbaum, in our case there is no obligation to follow what was said there.”

While it is true that President Shamgar noted in Kestenbaum [6] (supra, at 477, 484) that the Jewish burial society in that case looked after more than fifty percent of those buried in Jerusalem, that comment was made only in relation to the applicability of the Standard Contracts Law (and even so it was only one of three reasons he brought). Meanwhile, Deputy President Elon, in his ruling, explicitly differentiated Kestenbaum [6] from Gideon [1], saying that in the former, an alternative burial option did exist, and there was no monopoly. Kestenbaum [6], supra, at 490, 496, 503-04, 507, 510.

In any case, nothing in any of these statements detracts from the other reasons that formed the basis of the final judgment: not from the issue of public policy and not from the applicability of principles of public law. Additionally, the Court’s judgment in Kestenbaum [6] bases itself – first and foremost – on public policy and the applicability of public law on dual-character bodies. To reduce the ruling to a case of monopoly is simply unacceptable.

We might also ask, why isn’t the Jewish burial society of Rishon Lezion considered to hold a monopoly on burial in that city? Where does it get the legal and ethical right to send the people of Rishon Lezion to bury their dead in other cities? The Court could have used that to resolve the issue in Kestenbaum [6]. That is, it could have sent the appellant to bury his wife in a different cemetery (or a different section of the same cemetery which is managed by a different Jewish burial society).

The court in Burgman [42] ruled that in Kestenbaum [6], the majority of the justices saw fit “… under the circumstances, to prefer … the right of the appellants, who wanted a gravestone that would speak to their hearts in a language they understand and a date they understand.” On this, the court said:

It is not my place to ponder the opinion of the majority of justices in the Kestenbaum matter. But I will say that I doubt that a person who lives in Israel should be heard when he or she claims not to know anything of the Hebrew calendar or how to read Hebrew. A significant part of the lives of all who live in Israel is related to the Hebrew calendar, according to which we mark the Jewish festivals and Israel’s Independence Day. These festivals are public holidays under section 18a of the Jurisdictional Areas and Authority Ordinance, 1948, and many legal norms and even punishments derive from the Hebrew calendar. A person should not be heard when he or she claims that because of his or her faith, or lack of faith, he or she does not know when these festivals fall, that he or she is a stranger to the Hebrew calendar. It cannot be doubted that the Hebrew calendar has importance and ramifications for all aspects of life in the state, and it is one of the characteristics of the state as a Jewish state.

All who live in Israel, or who come to visit here, accept the inevitability of their encounter with the Hebrew language. In many countries, the names of streets and traffic signs are written only in the local language. It is the way of the world that each and every country has its own language and script, and one who enters its borders must adapt to this situation. If they can deal with traffic and streets signs, why would it be any extra burden on those relatives of the deceased, who come from overseas to grieve at her graveside, not to find Cyrillic writing there. If they do come to visit the grave of the deceased, relatives from Israel can help them, if they can’t find the grave. Thus, in my opinion, the harm caused to the relatives of the deceased, if the gravestone is inscribed in Hebrew only, is not as serious and severe as that caused to the relatives of the other deceased, who live by their religious faith and are dismayed to see foreign writing when they visit the graves of their relatives.

I cited these words in full, and I must say that I have great difficulty agreeing with them. My response to the court lies my remarks above.

Side Comment (unrelated yet related)

24. When my time comes, and a monument is erected on my grave, I request that my birth and death dates be inscribed upon it according to the Hebrew calendar. That is how I was born, that is how I will go, and that’s how I will be remembered. This is my will, and this is how I will instruct my children. However, I would not dare to presume to stand in the way of another who wishes to inscribe on his father’s grave the dates of birth and death according to the standard calendar. Just as I ask that they respect my wishes, thus I have learnt to respect the wishes of others.

Conclusion

25. For reasons that I clarified and explained at length, I recommend to my colleagues that we grant the appeal, reverse the judgment of the district court, and declare that the appellant has the right to inscribe the dates of birth and death according to the standard (Gregorian) calendar on her late mother’s gravestone. I also recommend to my colleagues that we order the respondent to bear any expenses that the appellant will incur due to the lateness of the additional inscription. In a case of disagreement, the lower court will decide these costs. In addition, the respondent will bear the appellant’s costs and attorney’s fees at a total sum of NIS 50,000.

Later

26. I took pleasure in reading the opinion of my colleague, Justice Englard, but I must vehemently disagree with him. My response to my colleague lies in what I have already written, but now I wish to add several remarks.

My colleague says that the disagreement between the litigants is basically an ideological dispute and that we, the judges, are dragged into it against our will. I have two things to say about that: First of all, from the perspective of the appellant, at least, I have not found the dispute to be an ideological one. The opposite is true. The dispute is of a most personal nature – the Hebrew calendar is not meaningful to the relatives of the deceased – and when the relatives come to the cemetery, they seek to commune with the person as they knew her.

Secondly, even if this were an ideological dispute between the litigants, it would still be our job to settle it, since that is why we were appointed to the bench. The legislature instructs us: say what you will say, only say it. See e.g. HCJFH 7015/94 Attorney General v. Anonymous [20] at 88.

A second matter: The dispute between the litigants is, in fact, about the desires and dignity of an individual – the appellant before us – versus the ruling of the local rabbinic authority that guides the Jewish burial society. However, this kind of ruling is only binding among the religiously observant population or when accompanied by statutory enforcement. We must keep in mind that the State of Israel is not run according to Jewish Law. It is a state run by law. Israel is a democracy, and the law rules within her borders. Meatrael [19] at 500. Our considerations revolve around the individual, the human being, his or her wishes, interests, well-being, and welfare –all according to law of the state. On principle, we say that our judicial processes are anthropocentric and not Theocentric. The disputes over which we preside are between individual and individual, not individual and Jewish Law. On these disputes, we must pass judgment.

Third: It is imprecise to say that we want to force the Jewish burial society to do something which it is forbidden to do. The Jewish burial society is seeking to coerce the appellant, and this coercion, we forbid.

And last: the Alternative Burial Law could change burial practices in Israel, including burial practices in the cemeteries of the various Jewish burial societies. It may cause change, and it may not. Time will tell, and we cannot prophecy what the future will hold. However, even if a change in the custom does come about – and a real change, if it does come, would take years – the vast majority of people will still make use of the Jewish burial societies. They will continue to look after the dead and bring them to Jewish graves in the cemeteries under their control. All that will change is that the Alternative Burial Law will allow for another option, that is an “alternative civilian burial.” The standard way of burial will be in a regular cemetery under the auspices of a Jewish burial society, but other cemeteries will exist, “alternative civilian cemeteries.” All the dead are equal, but burial in an “alternative” cemetery is not “regular” burial; rather it is “alternative” burial. Furthermore, one who wishes to be buried in an alternative cemetery bears the responsibility of expressing this desire. If he does not make such a request, he will be interred, as is standard, in a cemetery belonging to a Jewish burial society.

There are those who will ask to be buried in an “alternative civilian” manner. However, I believe I am not mistaken when I say that this will be only a minority of the population. At least in our time, most citizens will not change their custom and ask to be buried in an alternative civilian cemetery. Their wish (implicitly) will be to be laid to eternal rest among their parents, grandparents, and relatives; just as they were together in life, they will wish to be together after death.

So the question must be asked: in light of all these things, what right has the Jewish burial society – what legal right, ethical right, any kind of right – to force a local rabbinic ruling on the whole of the Jewish people? During a person’s lifetime, his local rabbi has no authority over him or her, unless the person seeks his counsel. Why do we empower this rabbi to decide the manner of the burial for this same person after death?

One who takes on a public duty must know that it is forbidden to force his or her will onto the public except within the bounds of the law, and even the law itself will bow its head before a Basic Law. A Jewish burial society is regulated, to a limited degree, in the same way as a public agency. The local rabbi’s opinion – by itself – does not bind any pubic agency, and he is not authorized to force it on the public, if it violates basic rights.

 

Justice I. Englard

1. The Talmudic Sages knew the reason for tragedy: “Jerusalem was destroyed only because … they based their judgments [strictly] upon the Biblical law and did not go beyond the letter of the law.” Tractate Baba Metzia, 30B [50]; [… trans.] “Why was the Second Temple destroyed, seeing that in its time they were occupying themselves with Torah, [observance of] precepts, and the practice of charity? Because therein prevailed groundless hatred.” Yoma 9B [51]. As it is explained: “Going beyond the letter of the law means compromise and since there was groundless hatred among them the litigants did not want to compromise.” Etz Yosef, Ein Ya’acov, Tractate Baba Metzia 30 [52]. The obligation to go beyond the letter of the law is the ethical duty of the individual. As Rabbi Shmuel Eliezer Edels interprets the source [53]: “Tell the litigants that each one of them must allow themselves to be placated beyond the letter of the law and that the matter is dependent on them because the judge cannot go beyond the letter of the law.” Shulchan Aruch, Hoshen Hamishpat 12b [54], with commentary by Rabbi Moshe Isserlis [55] and the standard commentators. The Court has often begged litigants to reach a compromise, but if they do not, the judge must follow the letter of the law. Similarly, in the matter before us, which is not a new dispute, the courts have in the past asked litigants to behave with tolerance.

2. Unfortunately, on this occasion, the problem is much bigger. As opposed to our Sages, today we can’t agree on the letter of the law, let alone what lies beyond the letter of the law. Of course, all agree that we must behave with tolerance in order to reach compromises – but this is always the duty of the other litigant, because he or she is the one who is being stubborn about every little detail and making unreasonable demands. But me? I am facing a mortal blow to fundamental principles, basic rights, principles of public law, human dignity, public policy, feelings and sensibilities, freedom of choice, the private domain. But you! You are just shameless. Your actions are arrogant and coercive paternalism; and your feelings are those of an extremist and abnormal Jew.

3. These are the kinds of things that have been said in the context of this case. Why is this dispute so bitter? Is it really all for the sake of the dates of birth and death inscribed on the gravestone of a dead person who lies in the cemetery, but who cannot rest in peace? The judges have been dragged into this dispute, which at root is a purely ideological clash.  It is known that a legal ruling has no power to solve the ongoing ideological conflict regarding the Jewish character of Israel and the relationship between religion and state in this Jewish democratic country. The carving of dates is only one aspect of this dispute. Thus, my colleague, Justice M. Cheshin, need not be surprised that our nation involves itself continuously on the subject of inscriptions on gravestones and cannot set a standard – because in these sorts of disputes, there is no standard, there is no clear ruling, and there is no golden path to follow.  New aspects of this dispute are continuously arising.

4. As I will show in the course of my remarks, in the past, this court has decided these sorts of disputes by “balancing” the basic principles, in the attempt to apply a test of reason to gauge the respective sensibilities of the litigants. I believe that where beliefs and opinions are concerned, there is no possibility of measuring sensibilities objectively. We face an ideological clash focused on symbols, and their importance to different people cannot be measured by any external yardstick of reason. Any ruling on the logical weight of a symbol will certainly be an expression of subjective values. Furthermore, the standing of a certain symbol in society is not fixed for any length of time. It can change according to social and political factors, which are ever dynamic. Often, zealousness in guarding a certain symbol is simply a reaction to the zealousness of others who seek to destroy it. Take, for example, the Torah commandment of sanctifying God’s name.  The principle is: “If in every law of the Torah a man is commanded: ‘transgress or die,’ he must transgress and not suffer death, excepting idolatry, sexual immorality, and murder.”  But the Talmud continues, “This was taught only if there is not a royal decree but if there is a royal decree, one must incur martyrdom rather than transgress a minor precept … Even without a royal decree, it was permitted only in private, but in public one must be martyred even for a minor precept rather than violate it. What is meant by a ‘minor precept’? Rava, son of Rabbi Yitzhak, said in Rav’s name: Even to change one’s sandal strap.” Tractate Sanhedrin, 74A-B [56]; see Maimonides Basic Laws of the Torah, 85, laws B-D [57].

It is possible that even the date carved on a gravestone can turn into the strap of a sandal, for the sake of which a Jew would give up his life …

5. First, I will examine the path this court took in a dispute over carving dates on gravestones in Jewish cemeteries. In CA 280/71 (Gideon [1]), heard more than a quarter of a century ago, Justice Etzioni called the matter a “Jewish war,” whose cause, in his opinion, was the “stubborn refusal” of the Jewish burial society to allow the only son of the deceased to inscribe Gregorian birth and death dates alongside the Hebrew dates. In his ruling, which Justice Berenson joined, Justice Etzioni wrote the following regarding the stance of the Jewish burial society:

This decree is a serious breach of the natural, elementary and acknowledged right of everyone in Israel to run his or her life according to the standard calendar, the very same calendar according to which our legal rights are set. The Interpretation Ordinance (New Version) clearly establishes that “a year” and “a month” are calculated according to the Gregorian calendar, and the fiscal year consists of twelve months ending on March 31 every year (sec. 1). A person lives his or her whole life within the framework of this calendar: on birth and death certificates the standard date is always listed in addition to the Hebrew date; official identity cards record the standard birth date; in every kind of transaction, whether in the realm of private or public law, the relevant documents always bear the standard date, not to mention statutes and ordinances. As has been noted, even the official documents of the rabbinate do not lack a space for the standard date. Is this not a case of discrimination? It is the arbitrary negation of a person’s right to use the standard calendar to record his or her dates of birth and death, though all the events of his or her life were marked by this calendar!

Gideon [1] at 23.

 

Of course, in that case, the Jewish burial society relied on the ruling of Rabbi Ovadia Yosef, who wrote that:

It is absolutely forbidden to erect a gravestone with a non-Hebrew date because there is a Biblical prohibition that says: “Make no mention of the name of other gods”, and the Gregorian calendar recalls the number of years since the Christian birth.

Id.at 19.

 

To this Justice Etzioni responded that “it is difficult … to treat this opinion as the final word on the matter” for the following reason:

As has been proven, standard dates appear in many cemeteries which are managed by Jewish burial societies. Suffice to mention the cemetery on Trumpeldor Street in Tel Aviv and the Haifa and Tzfat cemeteries. Additionally, the leaders of the Torah world and the nation who are buried in the Diaspora were buried in cemeteries where it was acceptable practice to erect gravestones carved with standard birth and death dates. If this is not enough, the visitor to the Mount Herzl cemetery in Jerusalem, where the great soldiers and luminaries of Israel are interred, will see with his or her own eyes that birth and death dates are carved according to the standard calendar. Among them: the graves of the family of the visionary of the state, Theodor Herzl, and the graves of the Zionist leaders Wolfson, Sokolow and others.

Id.

 

This was Justice Etzioni’s conclusion:

It is clear, therefore, that the claim that recording of standard dates in Jewish cemeteries would cause a transgression of Jewish Law or harm to the religious sensibilities of Jews is without basis and utterly unfounded.

Id.

 

6. Cited above are Justice Etzioni’s remarks regarding what he saw as “the letter of the law,” and below are his words regarding what lies “beyond the letter of the law”:

It would have been nice, had the respondent granted the appellant’s request and foregone this entirely unjust restriction. Indeed, I believe this “Jewish war” is absolutely unnecessary. Unfortunately such wars often come before the Court, and their source is the opposing ideologies regarding the ideal structure and content of our national life. Of course we cannot forbid these wars, as long as they are related to matters of substance, and are not just petty issues, mostly secondary to a primary principle. We are not the only ones in the world in this situation; similar arguments are fought elsewhere. See Basil Mitchell, Law, Morality and Religion in a Secular Society at 134. But obviously, it is always appropriate to differentiate between the main principle and that which is secondary, between the heart of the matter and the peripheral trivialities. It seems to me that if we wish to safeguard our uniqueness and unity as a nation, there is no fleeing from mutual compromise, at least when it does not affect fundamentals. The war that the respondent is fighting is not a war over fundamentals but rather over secondary issues which are needlessly propagating strife and contention in the country.

Id. at 24.

 

7. As mentioned, Justice Witkon held the minority opinion in Gideon [1]. Disagreeing with the above approach, he said:

It seems to me that when faced with the respondent, the appellant has nothing to say. The Jewish burial society runs its affairs in the spirit of its ideology and sets the rules for gravestones as it sees fit in cemeteries under its management. It is immaterial if we agree or disagree with its views. It is not our place to argue if they are well-anchored in law or in Jewish Law or the spirit of the Jewish religion in our times. It is true that the ban on the standard calendar is not one of the 613 commandments of the Torah, and it is possible that the respondent is being too rigid. It is also true that even the document bearing the ruling of the honorable Chief Rabbi, Rabbi Ovadia Yosef, upon which the respondent relies, displays the Gregorian date. Not only are these dates used on every official and ceremonial document issued in the State of Israel, but they are often found even on documents issued by the Rabbinate. Similarly, it has been determined that in the past, Jewish burial societies allowed Gregorian dates on gravestones, and it seems that they did not then consider it an affront to the sensibilities of religious Jews. Today, we consider testimony offered on the respondent’s behalf, that in the public domain of which it is in charge – and we are referring to a public domain and not a private domain (see HM 545/67 (Jer) Arnon v. Israel Lands Administration, IsrDC 67 284) – there must be one standard custom, and that is to carve birth and death dates on gravestones according to the Hebrew calendar only. In this sensitive issue, who can tell us if one approach is ‘reasonable’ or not?

Id. at 15-16.

 

8. In CA 294/91 (Kestenbaum [6]), the issue arose again, again the justices’ opinions were divided, and again the dispute was to a large extent ideological. The central questions are: What are the sensibilities that need to be defended? Who has the burden of being tolerant? And who must give in? Of course, for the sake of finding a solution to the problem, the Court uses legal principles and conceptual tools through which it can adjudicate the opposing demands of the litigants. Here, briefly, is a list of those tools: public law that overrules the general Contracts Law; a discriminatory condition in a standard contract; human dignity and freedom; and public policy. But these conceptual tools cannot succeed in getting to the root of this ideological dispute.

9. President Shamgar aspires to be objective, and he says it beautifully in his judgment in Kestenbaum [6]: 

As long as the issue is the essential nature of the harm, which would make it a legitimate reason to limit personal liberty, its extent will be measured from the viewpoint of the average rational person, that is using objective criteria and not subjective sensibilities and reactions.

Id. at 482.

 

President Shamgar goes on to apply his “objective” test in the following way:

We can’t conclude from what has been said above that someone who erects a gravestone should be allowed to do whatever he or she likes. Supervision is necessary so that the character of the cemetery and the sensibilities of others will not be harmed. Nevertheless, as mentioned above in a general way, when evaluating the harm to others, the appropriate path is to establish criteria based on logic and tolerance and not extremism. The right of the individual to erect a monument which will allow him to commune with his loved one, and record upon it whatever is significant in his eyes or, in his opinion, the eyes of deceased, must retreat before the sensibilities of another only if it is clearly inevitable that the inscription will arouse the strong and justified opposition of a reasonable person. One who erects a gravestone and another who comes to visit a different grave in the cemetery do not occupy the same position. The general model needs to be that one who enters the space of a neighbor may not interfere needlessly with the neighbor’s life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which does not pertain to them, though of course this does not refer to terms that a reasonable person could not accept … This raises a question in our case: Is what the appellant is requesting so extreme and unusual that it has the ability to harm the sensibilities of others in an essential way? My answer to that question is no.

Id.

 

10. In the same spirit, my colleague, Justice Barak, also balanced the opposing interests, deciding that at the center of the Jewish burial society’s concern was the social value of the exclusivity of the Hebrew language. To his thinking, the test case in the “balance of sensibilities” should not be the sensibilities of an unusual and exceptional person, but rather – as per the definition of Justice Etzioni in Gideon [1] – “the opinions and sensibilities of the majority or significant portion of the public and not the polarized views of people who make up an extremist minority.’” Supra [6] at 502. My colleague, Justice Barak, concluded, regarding Kestenbaum [6]:

Permitting non-Hebrew writing (alongside the Hebrew writing) does not constitute a serious violation of the human dignity of those who object to this writing. This sense of violation is the product of unusual and extraordinary sensitivity. On the other hand, insisting on the exclusive use of Hebrew writing causes a serious violation of the human dignity of those who object. This sense of violation is the product of natural and normal feelings in a person who is sensitive to human dignity (his or her own dignity or that of another person.

Id. at 523.

 

11. Is this comparison of sensibilities based on an objective test, or perhaps, does it simply express a subjective worldview? Deputy President Elon, in his minority opinion in Kestenbaum [6], addressed this question:

“It is not at all clear to me what in the prohibition of non-Hebrew writing constitutes serious and severe harm to the principle of human dignity. And as to the differentiation my colleagues make between those whose sensibilities are natural and normal and those whose sensibilities are abnormal and extraordinary, if I were to adopt this kind of test, my conclusion would be different from that of my colleagues. It is also difficult for me to accept that the myriads who have only Hebrew writing on their gravestones and who are interred in cemeteries where there is no non-Hebrew writing, and who followed this path knowingly and with the knowledge of their families, believing this to be dignified for both the dead and the living – that all these people are not “regular people” but rather “abnormally and extraordinarily sensitive” people.

Id. at 513.

 

Deputy President Elon concludes his opinion as follows:

The Jewish burial society considers Hebrew inscriptions one of its basic principles, and an essential value to the thousands of deceased who have found their eternal rest in the cemetery for over fifty years. It espoused this principle in the past and continues to stand by it today. It has been weighed on the scales of public norms which bind the Jewish burial society, and it is valid according to the principles of private law through the contract signed by the Jewish burial society and the appellant.  That is how the heads of the Jewish burial society and the cemetery’s board see the matter, and that is how it should be viewed from legal, social, Jewish and democratic standpoints. Perhaps the appellant, the husband of the deceased, who has no doubt as to the rightness of his cause, will reconsider, and give up his request for the sake of the dignity of all those who have found eternal rest in this burial place, secure in the knowledge that Hebrew is the only script found on the gravestones located there, and for the dignity of the cemetery, which must be managed with caution so as to not open a new era in which the gravestones located there will display all the foreign scripts that the dead brought home from the lands of the Diaspora in their lifetimes – Latin, Cyrillic, Chinese, Amharic, Japanese letters – lest the cemetery become a Tower of Babel of languages and scripts. It is fitting and desirable that this superior valuation of the Hebrew language, acceptable to all those buried in this cemetery, will continue to unite all those who have found and will find dignified rest there. Like the dignity of the dead, the dignity of the living and the dignity of Israel, as well as the dignity of his late wife, also obligate the appellant to willingly take upon himself this “burden” of the language of the Jewish state.

Id. at 515-16.

 

This is what is meant by “the letter of the law” and “beyond the letter of the law,” and it is completely different from the opinion of Justice Etzioni.

12. Since this is an ideological dispute, is it really surprising that district court judges have also failed to reach consensus? For example, Judge Dr. G. Kling in Burgman [42] maintains the following:

From the outset, the harm done to the relatives of the deceased whose gravestone will be carved in Hebrew only is not as serious and severe as that done to those other people who live by their religion and who, when they visit the graves of their loved ones, will have to encounter foreign writing.

On the other hand, Judge Goren in HM (TA) 1275/93 Kagan v. Rishon Lezion Jewish Burial Society [43] reaches the conclusion that:

With all due respect to the rabbis of the city of Rishon Lezion, and I say that with sincerity and humility, it seems to me that the plea of the plaintiffs does not diverge from that which is acceptable in other cemeteries in the country, where the rabbis are not as strict as the rabbis [of the Jewish burial society of Rishon Lezion – I.E.].

Before making these remarks, Judge Goren noted that he had been very impressed by Rabbi Tarovitz’s testimony, offered by the Jewish burial society, that he had no doubt that his words reflected real pain that would be caused, and yet still the Court granted the request.

13. Everyone agrees that there is a threshold of sensitivity among the religiously observant public that should not be crossed. Even my colleague, Justice M. Cheshin, recognized such a threshold when he noted that “in the future, we might encounter a case of someone who wishes to carve on a gravestone a symbol of a cross, for example,” and he continues, “a cross should not be carved on a Jewish grave, since a cross can harm – to intolerable degree – the dignity of the dead neighbor and the feelings of his family.” I question if it is the role of the Court to establish the “legitimate” boundaries of the sensibilities of believers in general, and of the religiously observant public in particular. In addition, the definition of the boundaries of “reasonable” sensitivity is based largely on subjective views, as illustrated by the differences of opinions among the judges themselves.

14. I will return to the judgment of this court. In both Gideon [1] and Kestenbaum [6], the assumption was that carving standard dates is not against Jewish Law. Justice Etzioni did not hesitate to conclude this through his own interpretation of Jewish Law, as part of his rejection of the ruling of Rabbi Ovadia Yosef that it is forbidden by the Bible. The conclusion that it is permissible according to Jewish Law also guided the Court in Kestenbaum [6]. This assumption arose even Deputy President Elon’s opinion:

Regarding the aforementioned ruling on the use of non-Hebrew dates, and the reasons it is allowed, see Responsa Yabia Omer (by Rabbi Ovadia Yosef), part three, Yoreh Deah, 9, and Responsa Tzitz Eliezer (by Rabbi Eliezer Veldinberg) part nine – two of the most important Jewish legal authorities of our time.

Kestenbaum [6] at 489 (emphasis mine – I.E.).

 

However, he obviously did not examine the matter very thoroughly, since he failed differentiate between the use of Christian dates on everyday letters and business correspondence and their inscription on gravestones. In Responsa Tzitz Eliezer, part nine, chapter 100B [58], on which Justice Elon supposedly relied, the writer rules explicitly that, regarding gravestones, “… this borders on a desecration of God’s name.” Despite the assumption that guided this Court in Gideon and Kestenbaum, no dispensation to carve Christian dates on gravestones is found in Jewish legal literature. All the authorities who were asked forbade the inscribing of Christian dates, as the rabbi of Rishon Lezion ruled in the case at bar.

15. In order to clarify the Jewish legal problem, I will cite in full the response of the Chief Rabbi, Rabbi Ovadia Yosef, in Responsa Yabia Omer, part seven, Yoreh Deah, 32 ch. 100B [59]:

Regarding the question of the permissibility of carving on a gravestone the name of the deceased in foreign letters and the date of death, Rabbi Moshe Shick (Choshen Hamishpat, ch. 56) was asked about this in a case where someone went against the local custom and erected a gravestone for a family member on which he carved the name of the deceased in the Hungarian script. Rabbi Shick condemned this act for several reasons. Firstly, a cemetery has the legal status of a ‘shared courtyard’, and even in the most mundane matter one of the partners is not allowed to change anything without the agreement of all those who share the courtyard, as was established for us in Choshen Hamishpat (ch. 154). This is all the more true regarding a custom that our forebears have followed from time immemorial. In such a case, not even the management of the Jewish burial society is licensed to make a change without the agreement of the local rabbi and the majority of the community. Even if the custom is changed for sake of the dignity of one particular deceased person, that person may end up causing disgrace and harm to the dignity of other deceased … The rule is that the customs of Israel are like Biblical laws, and it is forbidden to change them in any way.

Secondly, a cemetery is a holy and pure place, as it is written in Elia Raba (ch. 581) in the name of Rabbi Yaakov Molin. We need to treat a cemetery with respect, as it is written in Yoreh Deah (ch. 368) that it is forbidden to engage in frivolous behavior there, that one may not eat or drink there, or stroll there for leisure. Even the group that looks after the dead is called the hevra kadisha [Jewish burial society, lit: the holy brotherhood – trans.], because the world of the dead is the world of truth, and it is called the world of clarity where the righteous are exalted and the wicked cast down, as it is written in Tractate Baba Batra (10). Therefore, the custom in the Diaspora is that gravestones are inscribed only in the Holy Tongue, the language with which the world was created, in which the Torah and all the Holy Writings were given and in which God spoke to all the prophets of Israel. An inscription on a grave in another language causes disgrace to the dead, and indicates that he belongs to the world of falsehood.

There is also a concern lest the law against acting like non-Jews be transgressed, and thus the Jewish burial society must be on guard not to allow any change in the holy customs of the Jews. Responsa Shaare Tzedek (Yoreh Deah ch. 199) was asked about this and answered that it is simple and clear that there is a serious prohibition against changing the ancient Jewish custom of carving the name and the epitaph on a gravestone in the Holy Tongue alone. One who changes this custom and carves in non-Jewish writing transgresses the law ‘you shall not erect for yourselves a stone pillar [modern Hebrew: gravestone – trans.] which the Lord, your God, hates.” Such a gravestone is hateful in God’s eyes, it falls into the category of accoutrements of the non-Jews, and it is an abomination.

It is a Jewish custom to pray at the graves of the dead on behalf of the living, as is written in Tractate Ta’anit (16) and in the Shulchan Aruch (ch. 591). Also, as it says in the Holy Zohar (Parshat Shmot), were it not for the prayers of the dead on behalf of the living, the living could not continue to exist even half a day. If this important prohibition regarding gravestones is transgressed, how will the dead stand up to pray for the living who brought about this disgrace to the Holy Tongue in which the Bible was given? Thus there is no doubt that there is a very important and serious prohibition against doing so, and in no case should gravestone inscriptions in languages other than the Holy Tongue be allowed. I have seen that the illustrious Rabbi Shlomo Kluger forbade this, and this is an eternal prohibition. The same conclusion was reached in Responsa Pri Hasadeh part one (ch. 3) and in that author’s book Dudai Hasadeh (ch. 19).

Also, Rabbi Moshe Shick (Yoreh Deah ch. 171), after he wrote a prohibition of substituting the Holy Tongue with a foreign language, also prohibited recording the year according to foreign calculations. This is a far greater transgression, and in my opinion, the Bible itself prohibits it, as it says “Make no mention of the name of other gods.” The use of their calendar is a transgression of this prohibition because the calendar brings to mind the birth of Jesus. Thus, if it were possible to get rid of this kind of gravestone completely, it would be best, but if that is impossible, at the very least clay or plaster should be smeared over the writing and dates so that no hint of the foreign writing and dates remains.

The Rabbi Moshe ben Haviv in Gat Pashut (ch. 127, subsection 130) cautions against using the Christian date even on everyday letters, saying you should use only the date commemorating the creation of the world, and not as some people behave, people who lived in foreign lands who dated their letters with Christian years and names of the months. It is improper to do so. Responsa Pri Hasadeh part one (end of ch. 3) quotes the book Imrei Yosher by the illustrious Rabbi Meir Arik, may his name be as a righteous person, who wrote a response on this issue, and mentioned in his conclusion that you should only inscribe a gravestone in the Holy Tongue and record the year from the creation of the world, and this should be changed in no way. This is written very concisely in Responsa Dudai Hasadeh (ch. 19).

Despite this, in my book Yabia Omer part 3 (Yoreh Deah ch. 9), I tried to be lenient about writing the year according to their calendar on everyday letters, because in truth, the calendar does not accurately count from the birth of Jesus, as Rabbi Shimon ben Tzemach proved in his book Keshet U’Magen (p. 11), showing that the calculations of the Christians do not fit the real birth of Jesus. See also the book Kol Bo of Rabbi Greenwald part 2 at 147. When the Chatam Sofer [Rabbi Moshe Schreiber] cautioned against this in Torat Moshe it was only because he thought at the time that this date was connected to the birth of Jesus, while in truth, it has no connection whatsoever, as it is written in Otzer Yisrael. Later, he also retracted his ruling, and wrote his responsa using their dates several times. This was also the position of Rabbi Yosef Yozpa and the illustrious Rabbi Akiva Eiger.

This was also the position of the illustrious and righteous Rabbi Joshua Freund in Responsa Meor Joshua. He quoted the words of Rabbi Shick, who was insistent in this matter, and he disputed that position on several grounds, including because it nullifies all business and banking transactions in our time, since all banknotes and checks are dated according to their calendar, and almost no one refrains from doing so. It was brought down thus in the book Az Nidberu (part 12, ch. 38). One rabbi did dispute my abovementioned response in Yabia Omer, and my brother rabbi, the illustrious Rabbi Eliezer Veldinberg in Responsa Tzitz Eliezer part 9 (ch. 14, subsection 3), correctly refuted his words. Later, I saw that Responsa Be’er Moshe part 8 (ch. 18) also criticizes our position. However his comments are not at all clear. 

In any case I acknowledge that when it comes to gravestones in cemeteries, we must be stringent, and carve only the year calculated from the creation of the world. There is absolutely no changing the custom followed by all the dispersed of Israel. A gravestone is a testimony to the remains of the soul, as it is written by Rabbi Shmuel Vital in Sha’ar Hamitzvot (Parshat Veyehi) and in Responsa Hayim Sheal part 1 ( ch. 71 subsection 6). The soul is recognized only by the true date, and the true expression is fitting for the world of truth. Responsa Tzitz Eliezer part 9 (ch. 14 subsection 2) also differentiates between dating everyday letters and the carving on gravestones in a cemetery.  Thus, the Jewish burial society must steel itself in order to stand its guard and not change the custom of Israel from time immemorial, and so God should be with them to overcome all encroachments, to magnify the Torah and make it exalted (emphasis mine – I.E.).

16. Certainly, it not this court’s place to draw a conclusion on a matter of Jewish Law that is different from the ruling of the Chief Rabbi of Israel and the local rabbi of Rishon Lezion. The question here is different in one central point from that which this court adjudicated in earlier cases.  This time, we must decide whether to force the Jewish burial society to permit inscriptions on gravestones that have been prohibited by the ruling of the local rabbinic authority, whose rulings the Jewish burial society must follow to qualify for its license. This problem did not come before the Court in previous cases, since the Court then made the (erroneous) assumption that the prohibition is not based in Jewish Law. Now we find that the clash is between the appellant and the religiously observant who abide by Jewish legal rulings. The Court noted the fact that other Jewish burial societies behave differently and that in printed matter, old and new, and also on letters, the standard date appears – these facts are irrelevant. The important principle in Jewish Law is that the public is bound by the rulings of the local rabbinic authority, in this case the rabbi of Rishon Lezion. This principle is set out in explicitly in the license of the Jewish burial society. Since it is based in religious sources, this Jewish legal ruling cannot simply be dismissed.

17. It is not up to the Court to gauge feelings that are impossible to measure objectively. My colleague, Justice M. Cheshin, complains that the Jewish burial society has made itself “caretaker” of those buried in Rishon Lezion, without hearing from the relatives of those dead people it claims to represent.  Do my colleagues really have any doubt that they could find many fine God-fearing Jews who wish with all their hearts for the Jewish burial society to follow the orders of the rabbi of the city, and who believe that there are grounds to a religious prohibition originating in the ruling of the chief rabbi of Israel?! Is it “never-ending conjecture” to assume this? I wonder!

18. The major question at issue now is the relationship between the basic freedom of religion of the Jewish burial society and the religiously observant relatives of the dead, on one hand, and, on the other hand, the basic freedom of other relatives of the dead to behave according to their ideology. All these must be addressed within the bounds of the definition of a cemetery, which all agree is a sacred place under Jewish law (if only in the framework of King’s Order in Council on the Land of Israel (Holy Places), 1924). Far be it from me to belittle the values and feelings of either group. To my mind, we have no right to measure the emotional or essential weight of the opposing demands, using a hierarchy of values that is personal in nature. To a religiously observant Jew, transgressing a religious prohibition can be as serious as carving a real cross, while the prohibition of standard dates is, for the appellant, a grave violation of her fundamental values. The real struggle is outside the boundaries of the cemetery; behind this dispute, forces are warring for the character of Judaism and the State of Israel. This is the real issue that stands before this Court, and there is no ignoring it.

19. I have said that a judicial ruling cannot, and even should not pretend to be able to decide an ideological dispute. It would be nice if the litigants could come to a mutual compromise and prevent this clash from further splintering this already divided society. It would be nice if those Jews buried beneath the ground could rest in peace together in a Jewish state that is not afflicted with strife and contention among the living. But this is not the situation. The Alternative Burial Law shows the future path chosen by the legislature: the dead will be separated from each other; everyone will be buried according to the ideology that he or she espoused in his or her lifetime. The new arrangement brings a solution to the problem for individuals, but I fear that it will create new problems for society.

20. What, therefore, is the legal solution to the case we discuss? The two principles mentioned – the freedom of religion of the Jewish burial society and the freedom of the relatives of the dead – are both important. The problem is that when the litigants can’t reach an agreement, one principle must be overruled. This is the problem of true justice: in a situation where, unfortunately, it is impossible to safeguard all the legitimate interests, there is a need give preference to one over the other. It is great in theory to talk about balancing opposing interests. I am not convinced that this metaphor accurately describes the judicial process under which we are bound, at the end of the day, to reject the right of one in favor of the right of another.

Be that as it may, I am of the opinion that in the matter at hand, the right of the relatives of the deceased to carve the gravestones as they like must retreat in the face of the right of the Jewish burial society to act in accordance with the local rabbinic authority’s ruling. Why is this so? The Jewish burial society is, as its name reveals, holy. It is an institution performing a religious function that is known in the Jewish tradition as “the true kindness.” The Jewish burial society must act according to Jewish law as ruled by the local rabbinic authority; this takes precedence. This is laid down in the terms of its license, this was the expectation of many of the deceased of the city, and this is demanded many of the relatives of the deceased.

21. In my opinion, this court is not authorized to force a religious body – be it public or private – to act in contravention of religious law. This coercion seriously violates freedom of religion. Such a violation is allowed only by the express order of the legislature, as in cases where the religious body transgresses the penal code or where the legislature forbids the body to act according to religious precepts for important reasons. In the absence of an express order, a person cannot be forced to transgress a religious precept, be it minor or serious.

Furthermore, this Court is not authorized to question the legitimacy of the Jewish legal ruling of an authorized institution. The Court is not a Jewish legal authority, and the personal view of a justice on the worth of the religion as a whole and a religious ruling in particular is irrelevant, as was justly noted by Justice Witkon in Gideon [1]. If a Jewish legal ruling infringes on the ideology of people who need the services of a religious body, it is appropriate to find a solution that satisfies all parties. But forcing the body to transgress religious law cannot be the correct solution in a democratic country that respects freedom of religion. The solution of coercion is especially problematic when the Court assumes the task of evaluating the importance of a certain religious precept and the degree of damage that its transgression will cause to the sensibilities of the religious public.

Thus, if my opinion were heard, this Court would refrain from forcing the Jewish burial society to transgress the ruling of the authorized local rabbi. Therefore, the appeal must be denied.

 

President A. Barak

I concur in the opinion of my colleague, Justice M. Cheshin. His reasoning and conclusion are acceptable to me. I wish to add several comments.

1. Under the district court’s rationale, the precedent of CA 294/91 (Kestenbaum [6]) is no longer applicable in light of the Alternative Burial Law. As my colleague, Justice M. Cheshin, noted, nothing in this law detracts from the rationale of Kestenbaum [6]. The obligations of the Jewish burial society – as a “dual-character body” – did not change with the passage of the Alternative Burial Law. This law did not create a new balance between the conflicting considerations and values. Therefore, I do not find a need to decide whether, in constitutional terms, the Alternative Burial Law changes the balance between the Hebrew language as a value and the values of human dignity, freedom of conscience, thought and expression, and tolerance. That is to say, we have no need to decide this question. All we can say is that it is an open question, and we leave it at that. In any case, on the interpretative plane – a plane on which we seek, to the extent possible, to avoid an interpretation that risks rendering a provision illegal – the conclusion at which my colleague, Justice M. Cheshin, arrived is a necessary conclusion. That conclusion is that the appropriate balance between the Hebrew language as a public value and human dignity (of the deceased and his relatives), as was ruled in Kestenbaum [6], remains unchanged.

            2. My colleague Justice Englard introduced the value (and liberty) of freedom of religion into the pool of values requiring attention. Kestenbaum [6] did not address this issue. The assumption in that case was that “the ruling of the Jerusalem Community Jewish Burial Society not to allow foreign writing was not done for reasons of a Jewish legal prohibition.” See Deputy President Elon’s comments in Kestenbaum [6] at 499. My colleague, Justice Englard, noted that the prohibition against writing in foreign letters has a Jewish legal basis of which Deputy President Elon was unaware. This basis is the issue of the religious obligation of the Jewish burial society and the God-fearing people of Rishon Lezion to follow the rulings of the local rabbinic authority. No arguments on this matter submitted in this case. I assume, for the purposes of this judgment, that the ruling of the local rabbinic authority creates a religious obligation to be borne by the members of the Jewish burial society and the religious community alone. What influence does this new factor have?

3. In Kestenbaum [6], we ruled that a Jewish burial society – every Jewish burial society – is a body of “dual character.” In addition to its private law obligations, it bears the burden of public law. Given this framework, the Jewish burial society must act fairly and reasonably. It must act as the faithful servant of the public. It may not take external considerations into account. It may not discriminate. It must realize the sense of purpose that lies at the foundation of public status. This sense includes, among other things, the principle that it must carry out its role for the good of the whole community, and not just for the good of the religious populace. When the values and principles of these two groups clash, it must act in a way that realizes its purpose and reflects an appropriate balance. What are these values and principles, and how do we evaluate the clash between them?

4. In Kestenbaum [6], the Court ruled – and this aspect of the ruling was acceptable to all the justices of the panel – that the values and principles coming into conflict were these: on one hand, the Hebrew language as a value; on the other hand, human dignity as a value. The Court weighed these opposing values and principles. It ruled, by majority opinion, that human dignity takes precedence. I wrote there:

A government authority in Israel is not licensed to deal a serious and severe blow to human dignity in order to advance the value of the Hebrew language. In this clash between considerations of the Hebrew language and human dignity, human dignity has the upper hand. Of course, a government agency in Israel which provides burial services to Jews is authorized to consider the need to safeguard and promote the Hebrew language. It has this authority even if doing so will cause serious and severe harm to individuals of abnormal and extreme sensitivity. It is not authorized to cause serious and severe harm to the human dignity of an “ordinary” and “average” individual in Israel. This conclusion is drawn from the central importance the value of human dignity holds in Israel.

Kestenbaum [6] at 523-24.

 

Yet now my colleague Justice Englard comes and enlightens us that in the case at bar, we must consider an additional factor: the ruling of the local rabbinic authority of Rishon Lezion. How does the picture change with the introduction of this “factor”?

5. The ruling of the local rabbinic authority obviously adds complexity to a situation that was never simple. My colleague, Justice Englard, holds that to the overall picture, we must add the “…basic freedom of religion of the Jewish burial society and the religiously observant among the relatives of the dead …” Para. 18. But I doubt that the harm done is to freedom of religion. No one is forcing the members of the Jewish burial society to carve foreign writing on a gravestone. They personally will not act contrary to the order of the local rabbinic authority. The inscriptions will be done by professionals and not members of the Jewish burial society. Similarly, no one is saying that foreign writing will be inscribed on the gravestone of a religiously observant person, against his will or that of his family. A non-Hebrew inscription will be made only on the gravestone of a person who requests it (in his or her lifetime) or if his or her relatives request it (after his or her death). Thus, it seems to me that freedom of religion is not violated.

Nevertheless, I accept that even if there is violation of freedom of religion, harm is done to the religious sensibilities of the members of the Jewish burial society and to religiously observant relatives of the dead. I made this differentiation in HCJ 5016/96 (Bar-Ilan Street [15]), at 58 {212}, when I said:

The desecration of the Sabbath on Bar-Ilan Street is offensive [to the religious population residing close to Bar-Ilan Street] and infringes on their observant lifestyle. Indeed, from their perspective, the offense is both bitter and severe. This is the interest in question on one side of the issue. This having been said, let it be emphasized that I am not convinced that Sabbath traffic on Bar-Ilan Street violates the freedom of religion of the residents. These residents are free to observe the religious commandments. Sabbath traffic does not serve to deny them this freedom … Even so, traffic on the Sabbath does harm the residents’ religious sensibilities and their observant lifestyle.

One can obviously claim that the order of the local rabbinic authority is to remove all non-Hebrew writing. In this case, preventing a religiously observant person – who sees himself or herself as bound by the rulings of the local rabbinic authority – from removing the writing would violate that person’s religious freedom. This is the way my colleague, Justice Englard, views the case at bar. He asks, if we “force the Jewish burial society to permit inscriptions on gravestones that have been prohibited by the ruling of the local rabbinic authority …” Para. 16. As I noted, this issue was not raised in this case at all. However, I will assume that we are indeed concerned with the value (and liberty) of freedom of religion, in the context of the non-fulfillment of the order of the local rabbinic authority.

6. In Kestenbaum [6], on one side of the scales of justice, weighed the value of safeguarding the Hebrew language, and on the other side weighed the value (and liberty) of human dignity. Now we must add to one side, the value of safeguarding the Hebrew language, and the value (and liberty) of freedom of religion, which to my mind is really an aspect of human dignity (see HCJ 3261/93 Manning v. Minister of Justice [21] at 286). Simultaneously we must add, on the other side, an additional aspect of harm to human dignity, specifically the harm which occurs when human dignity is violated for religious reasons. Actually, in my view, freedom from religion is also an aspect of human dignity. Therefore, one person enjoys freedom of religion, but another has the freedom to act according to the autonomy of his personal desires. This is the freedom of an individual not to be bound by a religious prohibition in which he or she does not believe. This is the freedom of the individual to choose his or her own path – in life and in death – according to his or her ideology.  Indeed, just as the considerations in favor of exclusively Hebrew writing include language and freedom of religion, so the opposing considerations include free will and preventing religious coercion. Yet my colleague, Justice Englard, completely abandoned the consideration of the Hebrew language in his judgment. This is how he describes the dilemma in the instant case:

The major question at issue now is the relationship between the basic freedom of religion of the Jewish burial society and the religiously observant relatives of the dead, on one hand, and, on the other hand, the basic freedom of other relatives of the dead to behave according to their ideology.

            This framework assigns consideration of the Hebrew language no role. Indeed, if the case against non-Hebrew writing is religious, then anyone who seeks to engrave this writing and is forcibly prevented from doing so is a victim of religious coercion. Therefore, we face a case of conflicting values. Freedom of religion is clashing with freedom from religion. Human dignity provides the conceptual bounds for this clash. How can the Court resolve the conflict?

            7. The answer that has been given to this question since the founding of the State is that the Court must weigh the opposing considerations on the scales of justice. It must balance the conflicting values and principles. It must reach a balance according to the weight of the opposing considerations at the point of decision. This is how the Court has behaved from its inception until this very day. This is “the balancing doctrine as practiced in our public law.” Bar-Ilan Street [15] at 37 {187}. To the best of my knowledge, only once did this Court refuse (in a majority opinion) practice the “balancing doctrine.” This was when the state’s very existence was placed on the scales. EA 1/65 Yardor v. the Chairman of the Central Elections Committee of the Sixth Knesset [22]. When we were asked to apply this approach to the democratic character of the state, we refused to do so. See EA 2/84 Neiman v. the Chairman of the Central Elections Committee of the Eleventh Knesset [23]. Thus, since the founding of the State, the Court has engaged in balancing opposing values and interests. This is “… a process of placing competing values on the scales and deciding, under the circumstance, which one to prefer.” See Justice Agranat's opinion in HCJ 73/53 Kol Ha’am v. Minister of the Interior [24] at 879. The common denominator throughout our constitutional jurisprudential theory is that:

In the organized life of society there is no “all or nothing.” There is “give and take” and balancing different interests.

HCJ 148/79 Sa’ar v. Minister of the Interior and the Police [25] at 178.

 

            At the basis of this view stands the recognition that values and principles – and the liberties that are derived from them – are not absolute in nature. Values, principles and liberties have no “absolute” weight. Their weight is always relative. Their status is determined in relation to other values, principles and freedoms with which they conflict. CA 105/92 Re’em Engineers v. Municipality of Upper Nazereth [26] at 205.

            8. This court applies the balancing doctrine where one of the values or principles is linked to freedom of religion or religious sensibilities. See Bar-Ilan Street [15] at 38. Thus, for example, in every case where religious sensibilities clashed with freedom of expression, we balanced the conflicting values. HCJ 351/72 Keinan v. Film and Play Review Board [27]; HCJ 806/88 Universal City Studios Inc. v. Film and Play Review Board [28]. Similarly, when religious sensibilities (regarding the Sabbath) clashed with the public interest (the supply of gas or freedom of movement), we balanced these conflicting values. CrimA 217/68 Izramax Ltd. v. The State of Israel [29] at 364; Bar-Ilan Street [15].

            Religious sensibilities and freedom of religion are, of course, values and liberties of great importance but they are not absolute. We must always attempt to balance them with any conflicting values and liberties. Bar-Ilan Street [15] at 38. Justice Zamir established this principle:

Religious sensibilities do not enjoy absolute protection. There is no law that provides absolute protection to any right or value. All rights and values, whatever they may be, are relative. Necessarily, the protection they are offered is also relative. This applies equally to the protection extended to religious sensibilities …

 

HCJ 7128/96 Temple Mount Faithful Movement v. The Government of Israel [30] at 521.

 

Freedom of conscience, beliefs, religion, and religious rituals, as much as they flow from belief to action, are not absolute liberties … Freedom of conscience, faith, religion, and religious ritual are relative liberties. They must be balanced with other rights and interests which are also worthy of protection…

HCJ 292/83 Temple Mount Faithful Association v. Jerusalem District Police Commander [31] at 455.

 

            This approach was adopted by Deputy President Elon when he balanced the conflicting demands for the prayer arrangements at the Western Wall plaza. HCJ 257/89 Hoffman v. Western Wall Superintendent [32] at 274. Justice Tal adopted a similar approach in Bar-Ilan Street [15].

            9. Against this background, we must decide the appropriate balance in the case before us. Regarding the balance between the Hebrew language as a value and human dignity as a value, I can only refer to what was said in Kestenbaum [6]. All that is left for me to do is to decide if that conclusion is altered in light of the new values and principles introduced into the equation by my colleague Justice Englard. From one point of view I assume that the value (or liberty) of freedom of religion is an aspect of human dignity; from the other point of view there is the value (or liberty) of freedom from religion, which is also an aspect of human dignity. How will the balance be struck in this case? Is it possible to find a balance between conflicting values and principles that are within the boundaries of the same liberty? The answer is in the affirmative.

            This is not the first time we have weighed different aspects of the same liberty. We did so, for example, when freedom of expression clashed with religious sensibilities – both of which are protected under the right to human dignity, in my view. See HCJ 243/81 Yeki Yosha v. The Film and Play Review Board [33]; HCJ 806/88 supra [28] at 38. Similarly, we sought a balance when freedom of expression clashed with freedom of movement within the country – both of which are aspects of human dignity in my view as well. See HCJ 148/79 supra [25]. In this example, the conflict was, at root, between two aspects of freedom of expression. Thus we also behaved when the right to one's good name (which is part of human dignity) clashed with the right to freedom of expression (which, in my view, is another aspect of human dignity). Cf. CA 214/89 Avner v. Shapira [34].

            Thus, in cases of clashing values and principles that fall within the bounds of the same liberty – just as in cases of clashes between different liberties – the way to solve the problem is not the “all or nothing” approach, but rather by finding a balance between the conflicting values and principles. Therefore, we cannot say that, in a conflict between freedom of religion and freedom from religion, one always has the upper hand. If we said that, we would be undermining the constitutional standing of one of these freedoms.

            The appropriate practice is to balance conflicting values and principles that fall within the bounds of the same liberty. In the framework of this balancing, we must aim to preserve the “core” of each of these liberties so that any damage will only affect the “shell.” Compare clause 19(2) of the German constitution which establishes that “the essence of a basic right should never be violated." We must contemplate the seriousness of the violation and its essence. The decision itself needs to be made from considerations of reasonableness, fairness and tolerance.

            10. We will return, therefore, to the case before us. On one side of the scales rests the human dignity of the deceased and her family, who seek to inscribe Latin lettering on her gravestone. This liberty protects them from harm to their sensibilities. It protects them from religious coercion. This liberty is damaged in a serious, severe and essential way if they are not allowed to carve the deceased’s name or birth date in the writing they choose. I took this view in Kestenbaum [6], when I said:

The “ordinary person,” who does not have special sensibilities is seriously harmed if he or she has no power to engrave a loved one’s gravestone with the language that he or she decides memorializes the deceased in an appropriate way … The negation of this freedom and the insistence on the exclusive use of Hebrew writing is a serious and severe violation of the fundamental value of human dignity.

Id. at 523; see also HCJ 5688/92 supra [7] at 827.

 

This violation is exacerbated when the restrictions are perceived as religious coercion.

            11. On the other side of the scales, we find the freedom of religion of the members of the Jewish burial society to follow the ruling of the local rabbinic authority. Also weighing on this side is the dignity of the dead and the feelings of their relatives, which are harmed by the presence of foreign languages on gravestones in the cemetery – even though not on the gravestones of their loved ones. This harm must also be taken into account. It is a part of the human dignity of the deceased and their relatives.

            12. How do we balance these conflicting considerations? It seems to me that in the present circumstances, the deceased and her relatives who wish to carve Latin lettering on the gravestone must be given the upper hand. The reasons for my approach are twofold: First, the harm to the deceased and the relatives – who are prevented from having writing in the language they choose – is direct and serious. On the other hand, the harm to the other deceased and their relatives when others are allowed non-Hebrew writing is indirect and not serious. The latter are not harmed by writing on the gravestones of their loved ones. They are harmed by writing that is on the gravestone of others – writing that has existed in this cemetery for many years. The harm to the first group is certainly not the same as the harm to the second group, if we weigh these violations on the scales of tolerance. President Shamgar ruled thus in Kestenbaum [6], where he remarked:

One who erects a gravestone and another who comes to visit a different grave in the cemetery do not stand on the same plane. The general model needs to be that one who enters the space of his neighbor may not interfere needlessly with his life and sensibilities. Everyone must allow others the right and the freedom to do as they please, according to their own feelings and sensibilities, and tolerance is mandatory. People should not meddle in others’ business which is not relevant to them, though of course this does not refer to conditions that a reasonable person cannot accept.

Id. at 482

 

My colleague, Justice M. Cheshin, made the same ruling when he differentiated between the “private domain” of the gravestone of the deceased and the “public domain” of the other graves. Para. 22 of his opinion.

            13. Second, the prohibition against foreign writing for religious reasons – to differentiate from the prohibition for the sake of the Hebrew language – constitutes religious coercion. It violates the free will of the deceased and her relatives. It violates their autonomy of personal choice on one of the most sensitive points – the relationship with a loved one who has passed away. It damages the bond connecting the living with the dead. This violation is serious and severe. It is exacerbated by the fact that the cause is religious coercion. On the other hand, the harm to the religiously observant populace – harm which I acknowledge and take into consideration – in that they are not able to fulfill the ruling of the local rabbinic authority is not as serious or severe.

            We should recall that the issue here is “local” Jewish Law, as every local rabbinic authority makes its own rulings. We have been presented with the fact – and my colleague, Justice M. Cheshin, developed this extensively – that many other cemeteries in Israel allow foreign writing on gravestones. The local rabbinic authorities of these cemeteries do not see fit to ban this writing. Even in the Rishon Lezion cemetery – the cemetery at issue here – there are many gravestones inscribed with foreign writing. The local rabbinic authority of that time did not see fit to prevent it. These same members of the Jewish burial society, who in the past did not object to the writing, have suddenly changed their minds because of the change in identity of the local rabbinic authority. Furthermore, they are not being required to actively do anything – such as make an inscription that goes against the ruling of the local rabbinic authority. All that is asked of them is to refrain from actively doing anything – such as the erasing of inscriptions – as the local rabbinic authority demands.

            In the final analysis, it seems to me that the issue of Hebrew writing on gravestones, with all its importance from the Jewish legal aspect, is not at the “core” of Jewish Law but on its margins. It is assumed that, on core issues, all local rabbinic authorities rule in a similar fashion. The plethora of opinions on this issue indicates that it is a “local” matter, not one of the central tenets of Judaism. In any case, we have not gotten to the bottom of this claim, because it was not raised in the instant case. Cf. HCJ 465/89 Ruskin v. Jerusalem Religious Council [35]; CrimA 217/68 supra [29] at 356 (raising similar evaluations). 

            14. I have therefore reached the conclusion that in the clash between freedom of religion – of the members of the Jewish burial society, the dead, and their relatives who seek exclusively Hebrew writing on the gravestones of others as per the ruling of the local rabbinic authority – and the freedom from religion of the dead and their relatives who seek to carve a foreign script on the gravestones of their loved ones – the latter's freedom is to be preferred. If we add this to the decision in Kestenbaum [6], in which the court arrived at a similar conclusion regarding a clash between the Hebrew language as a value and human dignity as a value, the final conclusion is that non-Hebrew writing must be allowed on gravestones in the Rishon Lezion Cemetery.

            15. Some may claim that the viewpoint which gives preference to values and principles allowing foreign writing on gravestones is a secular viewpoint. They may claim that if we conducted the balancing from a religious viewpoint, the outcome would differ. I cannot accept this claim. Balancing is neither secular nor religious. It weighs the conflict between values and principles from the appropriate perspective of the state’s general values as a democratic and Jewish state. This is an integrative viewpoint, based on a synthesis between Jewish and democratic values. The Court is neither secular nor religious. The Court considers the feelings of everyone; the Court takes into the account the liberties of everyone; the Court expresses the values of everyone – Jewish values and democratic values. To the best of its ability, it balances the conflicting feelings, liberties and values.

            16. One might claim, of course, that the balance that I have conducted reached the wrong conclusion. It could be maintained – as Deputy President Elon ruled in Kestenbaum [6] – that in the appropriate balance, the ruling of the local rabbinic authority is to be preferred. This is a legitimate position, and it finds expression in many judgments of this court, with which the majority opinion agrees. Note that in this appeal, my colleague Justice Englard adopts a completely different stance. In his view, even if it wields public authority, a religious body that operates according to the norms of Jewish Law must be allowed – based on its freedom of religion – to follow religious directives. My colleague writes:

As a matter of principle, this court is not authorized to force a religious body – be it public or private – to act in violation of the religious law which it believes in. Such coercion seriously violates the principle of freedom of religion. Such violation is permitted only by express order of the legislature ... In the absence of an express order, the body cannot be forced to transgress a religious precept, be it minor or serious.

Para. 21.

 

            In my colleague’s view, the “balancing doctrine” does not apply to a case where the liberty in question is freedom of religion. In my colleague’s opinion, “in the matter at hand, the right of the relatives of the deceased to carve the gravestones as they like must retreat in the face of the right of the Jewish burial society to act in accordance with the local rabbinic authority’s ruling.” Para. 20. At the basis of my colleague’s stance lies the view that the balancing doctrine does not necessarily apply in a case when the dispute is “to a large extent ideological.” Para. 8. My colleague writes:

The central questions are: What are the sensibilities that need to be defended? Who has the burden of being tolerant? And who must give in? Of course, for the sake of finding a solution to the problem, the Court uses legal principles and conceptual tools through which it can adjudicate the opposing demands of the litigants … But these conceptual tools cannot succeed in getting to the root of this ideological dispute.

Para.8.

 

In my colleague’s view, comparisons between feelings are inappropriate, since they are not based on an objective test. Subjective points of view differ from judge to judge. My colleague writes:

I question if it is the role of the Court to establish the 'legitimate' boundaries of the sensibilities of believers in general, and of the religiously observant public in particular. In addition, the definition of the boundaries of “reasonable” sensitivity is based largely on subjective views, as illustrated by the differences of opinions among the judges themselves.

Para. 13.

 

He adds:

It is not up to the Court to gauge feelings that are impossible to measure objectively…

… we have no right to measure the emotional or essential weight of the opposing demands, using a hierarchy of values that is personal in nature …

… a judicial ruling cannot, and even should not, pretend to be able to decide an ideological dispute.

Paras. 17, 18, and 19.

 

I cannot agree with this approach. It constitutes a grave violation of the liberties of individuals in general, and freedom of religion and freedom from religion in particular.

            17. My colleague, Justice Englard, holds that in cases such as this, when we are dealing with a religious body or a religious law, the Court has no authority – in the absence of an express order of the legislature – to enforce behavior that contravenes any religious precept, be it serious or minor. This approach is worth considering in a case where the religious body imposes its religious authority on a group of believers who accept its instructions. Yet even in that situation we must take into consideration – as Kestenbaum [6] teaches us – general principles, such as public policy and good faith. 

            This approach is certainly not acceptable – and becomes religious coercion – when we find that a religious body imposes its public authority on a group of the population that does not subscribe to its beliefs but is subject to the body’s authority only because it has no other choice. In a long line of rulings we have made regarding such bodies, including the rabbinate, the religious councils, and the rabbinical courts, which all have statutory authority, the scope of the applicability of religious law depends on the purpose of each individual statute. This purpose is decided through the appropriate balance of the values and principles related to the case. See e.g. HCJ 465/89 supra [35]; HCJ 47/82 Movement for Progressive Judaism in Israel v. Minister of Religious Affairs [36]; HCJ 3944/92 Marbek Slaughterhouses v. Chief Rabbinate of Netanya [37]; HCJ 1000/92 Bavli v. The Great Rabbinical Court [38].

            This case concerns the Jewish burial society, so our point of departure is not that the Jewish burial society is a private body that may impose its authority with the consent (explicit and implicit) of the religiously observant. Our point of departure – as was ruled in Kestenbaum [6] – is that the Jewish burial society is a public body that operates in the realm of public law. The obligations of public law are incumbent upon it.

            18. The approach of this court, since the day of its inception, has been based on the need to balance conflicting values and principles. This has been true in cases of clashes between values and principles in general (see paragraph 7); and particularly in clashes between values and principles concerning freedom of religion and freedom from religion (see paragraph 8). This balancing is rooted in the values of the State of Israel as a Jewish and democratic state. See Para. 1a of the Basic Law: Human Dignity and Liberty. Only this balancing can allow our country – which is not run by Jewish Law – to fulfill the values of the State of Israel as a Jewish and democratic state.

            19. Negating the power of the Court to set appropriate boundaries to protect religious sensibilities will ultimately lead us – in a State of Israel that is not a theocracy (HCJ 3872/93 supra [19] at 506) – to fail to consider these sensibilities. The end result will be damage to freedom of religion itself. Thus, it is actually the need to protect religious sensibilities and freedom of religion that necessitates balancing different values and principles.

            These balances – which are based on the relative weight of the principles and values – entail assessing the varying degrees of harm to sensibilities. This assessment is also necessary to ensure tolerance. Only through tolerance can we maintain communal life. A healthy society is based, in essence, on mutual compromise and tolerance. CA 105/92 supra [26] at 211. Tolerance is essentially the rejection of the “all or nothing” approach, and the promotion of mutual compromise by assessing varying degrees of harm to sensibilities. See HCJ 257/89, supra [32] at 354; HCJ 806/88, supra [28] at 30. Indeed, a democratic society that seeks to recognize and protect the human rights of all its citizens must acknowledge people’s sensibilities and balance them by considering degrees of harm to sensibilities. Only harm that crosses the “threshold of tolerance” will warrant protection. I remarked on this in an earlier case:

[It is] our duty to recognize a certain “threshold of tolerance” regarding harm to sensibilities, which every member of a democratic society accepts as part of the social contract upon which democracy is predicated.  This being the case, only when an offense exceeds this “threshold of tolerance” will restricting human rights in a democratic society be justified.

…

Clearly, the “threshold of tolerance” is not uniform, but rather a function of the right and infringement in question

…

It is possible to infringe on human rights for the purpose of protecting feelings – particularly religious sensibilities and lifestyle – in a society with democratic values, provided that the harm exceeds the “threshold of tolerance” accepted in that society.

Bar-Ilan Street [15] at 47-48 {200-201}.

 

A different approach will not only fail to safeguard the freedom of religion that my colleague Justice Englard bases himself on, but it will also seriously damage it.

            20. Granted, the balancing doctrine is not simple to implement. We have no “scientific instruments” to do so. The expressions “balancing” and “weighing” are no more than metaphors. Behind them lies the perception that the values, principles and liberties do not have absolute significance. See 3 A. Barak, Parshanut Bimishpat [Interpretation in Law] Parshanut Chukatit [Constitutiona] [46] at 215. Establishing the relative societal significance of values and principles is a complex process. See HCJ 6163/92 Eisenberg v. Minister of Construction and Housing [39]. However, it is wrong to draw the conclusion that, because of the difficulties, we should abstain from this process. There are many legal principles that are based on the need for balancing. It would never occur to us to abstain from them on account of the difficulties that they carry. Take principles like reasonableness, fairness, good faith, proportionality, and public policy. All these and many other principles reflect the balance between conflicting values and principles. See HCJ 935/89 Ganor v. Attorney-General [40] at 513-14. Should we abstain from working with these principles simply because of the difficulties they entail?

21. My colleague, Justice Englard, complained that using balancing to measure the degree of harm to sensibilities is subjective for every judge. He dismisses the consideration and evaluation of the different sensibilities because of their personal and subjective nature and because the dispute at hand is a matter of “personal ideology.” I do not argue with the conclusion that, at a certain stage, subjective perspectives become considerations. See Aharon Barak, Judicial Discretion [47] at 124-25. I do not ignore the personal nature of the decision. Nevertheless, it is important to remember that only a small proportion of the considerations are subjective. The principle work of a judge is dictated by a stratified system of objective considerations. These are required by the foundation documents; these were used in previous judgments; these are shared by each and every judge.

In truth, a ruling is always value-based, but this does not mean that it is subjective. Most value-based judgments are objective, and they are mandated by the values of the system. A competent judge is able to implement this system by differentiating between objective considerations and his or her personal, subjective views.  That is how it has always been done.

            The many difficulties bound up with the personal perspective versus the occasional need for a subjective decision do not diminish the standing of legal values and principles and the need to balance them at the point of friction. We do not want to regress to a jurisprudence of concepts (Begriffsjurisprudenz) in which the conclusion supposedly arises, as if on its own, from objective considerations. We prefer the jurisprudence of interests (Interessenjurisprudenz) and the jurisprudence of values (Wertungsjuerisprudenze) in which an “ideological” decision is required. See HCJFH 4601/95 Saroussy v. National Labor Court [41]. We prefer substance over form. All these allow us to arrive at an objective decision, which is not personal to each and every judge, even if it is based in “ideology.” In any case, this needs to be the model, while at the same time we acknowledge that sometimes there is no avoiding a subjective ruling. This is the “price” – it is worthwhile to pay it in order to ensure justice.

22. At the beginning of his opinion, my colleague lamented that the litigants in the instant appeal – and the litigants in similar petitions that have been brought in the past – could not reach an agreement. I share my colleague's sense of regret. Everything must be done to broker understandings and agreements based on give and take, on compromise and tolerance. Even we, in the framework of this hearing, have proposed different suggestions to the sides, in order to promote a mutually acceptable solution. Unfortunately, our efforts have failed. We have no choice, then, but to issue a court ruling. It is appropriate that the legal ruling should reflect, as much as possible, the spirit of compromise and tolerance, since only through these principles can the unity of society be preserved. Indeed, in a societal framework like ours, in which a significant sector of the public does not hold by the rulings of the local rabbinic authority, there is no escaping a standard framework based on tolerance and compromise.

            In a legal reality such as ours, in which people who are not religious sometimes need religious services provided for the most part by religious people, there is no avoiding the search for criteria which are not just “all or nothing” and which draw distinctions between major laws and minor ones. Indeed, the balancing doctrine, which relates to all aspects of law, is especially applicable to the relationship between religion and state, between the values of Israel as a Jewish state and its values as a democratic state. Only the attempt to find a synthesis between the conflicting values will allow society to function. Emphasizing the conflicts and the differences will divide and sunder our society. Therefore, a rigid ruling that leaves no room for compromise, which allows the members of the Jewish burial society to act according to the ruling of the local rabbinic authority in minor matters as in major ones, regardless of the sensibilities of the non-religious, is a recipe for societal division and disintegration. Those who seek compromise and understanding need to continue to try and find balances between conflicting values and principles.

            23. For these reasons, I cannot agree with the position of my colleague, Justice Englard. These are not subjective reasons. These are objective reasons. They are drawn from our legal system, from its Jewish and democratic values, from many years of this court's rulings and from the need to ensure mutual patience and tolerance. For these reasons, I concur in the judgment of my colleague Justice M. Cheshin.

            It is decided, by the majority opinion of President Barak and Justice M. Cheshin, with Justice Englard dissenting, to accept the appeal, as per the judgment of Justice M. Cheshin.

July 6, 1999.

H.C.J 1601/90

H.C.J 1602/90

H.C.J 1603/90

H.C.J 1604/90

 

Advocate Meshulam Shalit

v.

M.K. Shimon Peres & Others

H.C.J 1601/90

 

 

Advocate Yitschak Ben-Israel

v.

Labour Alignment Knesset Faction & 9 Others

H.C. 1602/90

 

 

Eliad Shraga

v.

Knesset Speaker & 18 Others

H.C. 1603/90

 

 

Ronen Bar Shira

v.

M.K. Shimon Peres & 15 Others

H.C. 1604/90

 

 

 

In the Supreme Court Sitting as High Court of Justice

[8 may1990]

Before The President (Justice M. Shamgar), A. Barak J. and E. Goldberg J.

 

Editor's Summary

 

                The combined petitions in this case raise a single issue, i.e., whether agreements concluded between Knesset factions with a view to the establishment of a coalition government (referred to hereafter as "coalition agreements") are required to be brought to the attention of the public.

               

                In view of Israel's electoral system, resulting invariably in the representation in the Knesset of a large number of factions and the consequent need to establish coalition governments, the question is of considerable practical importance, and coalition agreements are indeed a regular feature in the process of formation of governments.

               

                Attorney for the Likud faction argued for the existence of a legal duty to publish coalition agreements, requesting the Court to define the parameters of such duty and submitting the agreements it had reached with other factions. The Labour Alignment asked the Court to give a ruling on the question whether a duty of disclosure exists or, in the alternative, to satisfy itself with the Alignment's willingness to publish its agreements. The United Torah Judaism - Agudat Yisrael faction submitted that the Court should recommend the legislature to enact appropriate legislation on the subject, or, alternatively, a way should be found to require disclosure of the agreements by all factions simultaneously.

               

                The Attorney General's response was that existence of a duty under public law to disclose coalition agreements was indisputable. Publication should coincide with presentation of the Government before the Knesset when it informs the Knesset of its basic political platform, and this has indeed become standard parliamentary practice.

               

         

          The High Court held as follows:

         

1.       Coalition agreements are an integral part of the Israeli governmental structure and electoral system.

 

2.       Such agreements are drawn up by persons holding public office who are elected by the public, and are therefore trustees of the public interest. Such position of trust, as well as a general duty to act in a fair manner, require them to make a full public disclosure of information at their disposal.

 

3.       The democratic process requires ongoing communication between electors and elected, which is not confined merely to election times and for this to be effective, the public as well as each individual voter, have right of access to full information to enable them to make the appropriate choice when elections take place. Hence the necessity for full disclosure of coalition agreements.

 

4.       Knesset members also have the same right of access to information as to the content of coalition agreements, so as to enable them to exercise their choice where a new government is presented before the Knesset for a vote of confidence.

 

5.       Disclosure of coalition agreements is also required in the interest of effective public scrutiny of their contents, thus ensuring their conformity with the law and enhancing public confidence in government administration.

 

6.       The duty to disclose coalition agreements is not an absolute one. Other interests, as for example those relating to security or foreign relations, or the need at times for political negotiations to be held away from the full glare of publicity may, in certain cases, require non-disclosure.

 

7.       The same principles apply to disclosure of agreements concluded between opposition factions, as to these concluded between coalition partners.

 

8.       On principle, there is nothing to prevent the Court from laying down specific rules with regard to disclosure of coalition agreements, to be derived from basic constitutional principles. The Court would thereby act in a creative, rather than an interpretative capacity, in the common law tradition, which has also been adopted by the Israeli legal system, especially in the field of administrative law.

 

9.       Nevertheless, the Court recommended that the whole field of political agreements be the subject of appropriate legislation by the Knesset, which should regulate, inter alia, the scrutiny of the contents of such agreements and details relating to their disclosure, these being matters which cannot be effectively dealt with by the courts.

 

          The Court therefore confined itself to laying down the general principle that political agreements must be disclosed, and the broad rules relating thereto, such as the timing of thereof, i.e. no later than presentation of the Government before the Knesset.

 

10.    The Court also dismissed the argument that section 15 of the Basic Law: The Government refers explicitly only to publication of the Government's political platform and therefore, ex silentio, coalition agreements do not require publication. The positive requirement to disclose such agreements should be derived from basic constitutional principles, as explained above.

 

 

 

Israel Suprement Court Cases Cited:

[1]   H.C. 133, 143 79 "Advocates in the Central District" List v. Election Committee, 33(3) P.D. 729.

[2]        H.C. 910/86 Ressler v. Minister of Defence, 42(2) P.D. 443.

[3]        H.C. 501/80 Zu'abi v. Abu Rabiah, 35(2) P.D. 262.

[4]        H.C. 669/86, 451, 456/86 Rubin v. Berger, 41(1) P.D. 73.

[5]        H.C. 262/62 Peretz v. Kfar Shmaryahu Local Council 16 P.D. 2101.

[6]   H.C. 142/70 Shapira v. Jerusalem District Committee of the Israel Bar, 25(1) P.D. 325.

[7]   H.C. 840/79 Motion 830, 860/79 Contractors and Builders Central Committee v. Government of Israel, 34(3) P.D. 729.

[8]   H.C. 1523, 1540/90 Levi v. Prime Minister of Israel; Mintzer v. Modai, 44(2) P.D. 213.

 

[9]   H.C. 680/88 Schnitzer v. Chief Military Censor. 42(4) P.D. 617. (also reported in 9 Selected Judgments, 77)

[10]      H.C. 372/84 Klopfer-Naveh v. Minister of Education and Culture, 38(3) P.D. 233.

[11]      H.C. 620/85 Mi'ari v. Knesset Speaker, 41(4) P.D. 169.

[12]      Cr. A. 71/83 Flatto-Sharon v. State of Israel and Counter appeal, 38(2) P.D. 757.

[13]      H.C. 1/81 Shiran v. Broadcasting Authority, 41(3) P.D. 255.

[14] H.C. 399/85 Kahana v. Executive Committee of the Broadcasting Authority, 41(3) P.D. 255.

[15] H.C. 531/79 Likud Faction in Petach Tikvah Municipality v. Petach Tikvah Municipal Council, 34(2) P.D. 566.

[16]      H.C. 143/56 Achjiji v. Traffic Controller, 11P.D. 370.

[17]      H.C. 73.87/53 "Kol Ha'am" Ltd. v. Minister of the Interior, 7 P.D. 871.

[18] F.H. 9/77 Israel Electric Corporation and Haaretz Newspaper Publication Ltd., 32(3) P.D. 337 (also reported in 9 Selected Judgments, 295).

[19]      Cr. A. 95, 99/51 Fumdenski v. Attorney General, 6 P.D. 341.

[20] H.C. 243/82 Zichroni v. Executive Committee of the Broadcasting Authority, 37(1) P.D. 757.

[21] H.C. 428, 429, 431, 446, 448, 463/86, 320/86 Brazilai vs. Govern­ment of Israel, 40(3) P.D. 505.

[22] Election Appeal 1/65 Yarador v. Chairman of Central Elections Committee for Sixth Knesset, 19(3) P.D. 365.

[23] Election Appeal 2/84 Neimann v. Chairman of Central Elections Committee for Eleventh Knesset; Avni v. ditto, 39(2) P.D. 225. (also reported in 8 Selected Judgments, 83).

[24]      H.C. 1/49 Bejarano v. Minister of Police, 2 P.D. 80.

[25]      H.C. 337/81 Mitrani v. Minister of Transport, 37(3) P.D. 337.

[26] F.H. 29, 30/84 Kosoi v. Bank Feuchtwanger Ltd.; Philico Finance and Investment Co. v. ditto, 38(4) P.D. 505.

 

English Cases Cited:

[29]      Scruttons v. Midland Silicones [1962] 1 All E.R. 1 (H.L.)

 

Objection to Order Nisi. Petitions allowed and Order Nisi made Absolute.

 

The petitioner in H.C. 1601/90 appeared on his own behalf.

 

            Advocates H. Meltzer and O. Kariv appeared on behalf of the first respondent in H.C. 1601/90, the first and second respondents in H.C. 1601/90, the first and second respondents in H.C. 1602/90, the third respondent in H.C. 1603/90 and the tenth respondent in H.C. 1604/90.

 

            Advocate E. Haberman appeared for the second respondent in H.C. 1601/90, for respondents 2-6 and 8-10 in H.C. 1602/90, respondents 4 and 19 in H.C. 1603/90, and respondents 1-7 and 9 in H.C. 1604/90.

           

            The petitioner in H.C. 1902/90 appeared on his own behalf.

           

            Advocate A. Palas appeared for the seventh respondent in H.C. 1602/90, and respondents 11-14 in H.C. 1604/90.

           

            Advocate M. Corinaldi appeared for the petitioner in H.C. 1603/90.

           

            Advocate N. Arad, Director of the High Court Division in the State Attorney's Office, appeared for the first and second res­pondents in H.C. 1603/90 and the sixteenth respondent in H.C. 1604/90.

           

            Advocates H. Cohen and S. Moran appeared for the petitioner in H.C. 1604/90.

 

 

JUDGMENT

SHAMGAR P:

            1. The proceedings in all the petitions before us were concerned with one question only: whether Knesset factions which conclude coalition agreements among themselves prior to the formation of a government are obliged to publish those agreements. On this we based our order nisi in this matter whereby the respondents were required to show cause "why agreements which were, and are, concluded in connection with, and prior to, a vote on the formation of a government under section 15 of the Basic Law: The Government, should not be published".

           

            2. The various respondents' replies to the order nisi were not uniform. Learned counsel for the Likud faction, Advocate Eitan Haberman, advocated the view that the court should recognise the existence of such an obligation and should outline its main elements. That respondent also submitted arrangements in writing which it had reached with various factions, namely:

           

            (a) Memorandum of a meeting between the Likud faction and the Degel Hatorah faction, on 18.3.90.

           

            (b) An agreement between the Likud faction and the Promotion of Zionism in Israel faction of 11.4.90, and an announcement by the Prime Minister published following thereon.

           

            (c) A document outlining cooperation between the Likud faction and the Shas faction.

           

            The Labour Alignment faction did not attach the agreements which they had reached to their reply; but declared that they would be prepared to publish them voluntarily. They asked that the court first give them directions, if it saw fit to do so, concerning the actual obligation to publish agreements, the manner in which they should be published and the practice relating there to while taking into account, inter alia, those legal rules and considerations presented to us by their learned counsel, Advocate Hanan Meltzer. And these are the questions to be considered:

           

            (a) The effects of the obligation to disclose on the Knesset Members (Immunity, Rights and Duties) Law, 1951.

           

            (b) Harmonisation between any possible ruling and the provisions of section 15 of the Basic Law: The Government.

           

            (c) The question of whether it would be right for the court to lay down principles instead of the Knesset formulating its position by way of legislation, as was done, for example, in the case of the Political Parties (Financing) Law, 1973.

           

            In sum, the court was asked:

 

"To determine whether there is room for a general ruling concerning disclosure of the agreements referred to in the order nisi, or to be satisfied - to the extent to which it deems this to be fit and just - with readiness to disclose them, without laying down any hard and fast judicial rules, leaving the constitutional questions presented and connected with the matter for further consideration, while bringing them to the notice of the legislature for its consideration.

 

In any event the honourable court is requested - if it should decide that there is room for publishing the agreements, in the light of the opinions of the parties before it - to give appropriate directions as to the manner of publication, its timing, the consents required for this purpose, and guarantee of mutuality and concurrence with the other factions and factors connected with the said agreements."

 

            The United Torah Judaism - Agudat Israel faction concurred with the arguments of learned counsel for the Labour Alignment faction. The following is the gist of the arguments presented by their counsel, Advocate Eiran Peles:

           

"In consideration of the special nature of coalition agreements and of the effects of an obligation to disclose them on the substantive immunity of Members of the Knesset and their rights, Agudat Israel will submit that the honourable court should recommend to the Knesset that they enact 'primary legislation' which should take account of the special requirements of a coalition agreement which is part of the agreements which come within the province of public law.

 

As the reference is to one of the agreements within the province of public law, Agudat Israel will submit in the alternative, that the court should determine the manner in which coalition agreements should be published simultaneously by all the factions and the form and method of publication in such a way as to prevent exploitation of such agreements by political elements, to ensure that the special character of the agreements be preserved and in such a way and timing as not to interfere with the ongoing conduct of negotiations for the formation of a government."

 

            Mrs. Nili Arad, Director of the High Court Applications Division of the State Attorney's Office, submitted the response of the Attorney General to the effect that "there is no disputing the existence of obligation to give publicity to agreements" which come within the province of public law.

           

            In so far as the timing of the publication is concerned, there is a recommendation in the above response that the publication coincide with the Government's presentation of itself before the Knesset, under section 15 of the Basic Law: The Government, in the course of which notice of the basic lines of its policy is announced since in any case according to the practice which has developed since the seventh Knesset the coalition agreements which have been concluded are tabled before the Knesset at this stage. The said response also referred to the significant question of legal validity of the agreements, in the light of their content, but we saw no cause for dealing with this question, because of the limits we outlined in our formulation of the order nisi.

           

            3. The political agreement as expressed in the coalition arrange­ments between Knesset factions prior to the formation of a government, is to a great extent the outcome of the structure of our political regime and of our system of elections.

           

            The Government functions by virtue of the Knesset's confidence. When a new government has to be formed, after elections or after a vote of no-confidence in the Government, and a member of the Knesset, who has been entrusted with this task, succeeds in doing so, the Government presents itself to the Knesset in order to receive a vote of confidence. At that stage its future policy is outlined.

           

            For many reasons, including the system of proportional representation, under section 4 of the Basic Law: The Knesset (see also section 81 (a) of the Knesset Elections Law, 1969, and H.C. 143, 133/79 [1] at p. 732) and the multiplicity of party factions in all the Knessets, from the first till the present one, it is generally necessary for the purpose of forming a government to obtain the prior consent of several factions to support the projected government. Till now there has never been a government consisting of only one party.

           

            The result of this need to receive the consent of several factions is inter alia, that an agreement, or several agreements, must be concluded between Knesset factions. In these agreements the subjects forming to the outlined future policy of the Government are regulated, as are additional questions concerning the compo­sition of the Government and the scope of its functions.

           

            The coalition agreement is, thus, an accepted device in Israel, as it constitutes a framework for political consensus among parties (H.C. 910/86 [2] p. 507), a means for filling posts in the Government and the executive authorities as an early stage, and similar matters. Even an agreement on the staggering of office amongst several candidates on the same list was brought before this court on one occasion (see H.C. 501/80 [3] with a view to obtaining its aid in enforcing it. This of course does not exhaust the subjects which can be regulated in such agreements.

           

            4. Is there an obligation to bring such agreements between factions, or between a faction and a member of the Knesset, to the notice of the public? The answer to this question lies in the nature of the sphere within which it falls and in the sources from which the agreement derives its values.

           

            Such an agreement falls within the scope of public law (according to my distinguished colleague, Justice Barak, in H.C. 669/ 86 [4].

           

            An agreement within the bounds of public law which deals with elections - to the Knesset, to a local authority or to a statutory public body - is not necessarily subject to the general laws of contract, but that does not mean that it is exempt from judicial review of its terms. As noted in the above judgment (at p. 78):

 

"we are concerned here with many and varied agree­ments covering several areas (political, social, eco­nomic) of public life. These agreements - so we assume - are made in all seriousness and with the intention of honouring them. It is mete not to remove these agreements from t he preserves of legal regulation and judicial review."

 

            These agreements are concluded by public functionaries chosen by the electors to carry out legislative and government functions. Thus the agreements are not intended for the purpose of arranging matters of private or personal interest:

           

"A public personality acts as a trustee on behalf of the public: He does not act on his own behalf but in the public interest. It is only natural, therefore, that agreements and promises made by him should be examined in accordance with the standards of public law..." (above). See also H.C. 262/62[5] p. 2115; H.C. 142/70 [6] p. 331, and H.C. 840/79 [7].

 

            In this context we held recently in H.C. 1523/80 [8] p. 214, that:

           

"...Statutory discretion must always favour the welfare of the public, and must be subject to the desire to forward the general good. Thus even in extreme and crucial instances, when there is a conflict of interests, the public interest always predominates."

 

            5. The nature of the arrangements, which are the subject of these proceedings, being public agreements, have direct repercussions on the following:

 

            (a) The norms which ought to be applied to the formulation and implementation of such agreements;

           

            (b) The function of the courts in respect thereof.

           

            The democratic process can only function on condition that it is possible to clarify openly all problems on the agenda of the State and exchange opinions about them freely. The continuity of the relationship between the elected and the elector loses, it is true, some of its direct nature and intensivity after the elections, but election does not sever the bond between the public and its elected representatives until the next elections. The whole political process is closely watched by the general public, which follows events attentively in order to be able to express ongoing opinions and in order to reach conclusions concerning the present and the future. Freedom of public opinion and knowledge of what is happening in the channels of government are an integral part of a democratic regime, which is structured on the constant sharing of information about what is happening in public life with the public itself. Withholding of information is justifiable only in exceptional cases where security of the State or foreign relations may be impaired or when there is a risk of harming some vital public interest (within the meaning of sections 44 and 45 of the Evidence Ordinance [New Version], 1971).

           

            Amongst those aims which a public agreement is designed to serve must performance be included the good of the public and preservation of the rules of fairness and integrity insofar as the functions contemplated by the agreement are concerned. The existence of such aims provides the foundation for the public's confidence in the system of government which they chose for themselves and provides one or other public figure with the opportunity of formulating ideas for the future. This applies not only to the general public but also to the individual member of the Knesset who is called upon to take a stand on the question of a motion of confidence in the Government as pronaed under section 15 of the Basic Law: The Government, or in the course of his parliamentary life.

           

            However, it is impossible for the public's confidence to be based on what is concealed, in the absence of the exceptional circumstances (referred to above) which are also the product of public interest, pure and simple, of a different kind. The guidelines with respect to the creation of a proper balance in exceptional circumstances, where the choice of one of the conflicting public interests may lead to the exclusion of the interest in free and full publication of information, where designated recently in H.C. 680/80 [9].

 

            But what is usual and accepted is that the preservation of the normative framework is ensured, first and foremost, by publication, and disclosure to the electorate in general and members of the Knesset in particular, of information concerning the governmented set-up, the actions of its components and the functioning of the elected representatives, in order to enable the public to see, know and judge.

           

            Denial of publication can water down the ability of the public to participate in political life (for a similar issue, see H.C. 372/84 [10] p. 238).

           

            Everything stated above concerning information about the parliamentary set-up and the executive applies, mutatis mutandis, to the public and normative characteristics of agreements such as those on which the petitions before us are based. Preservation of the character of an agreement in accordance with the standards consistent with its aims is dependent, to no small an extent, on its being brought to the notice of the public. The element of disclosure is the natural consequence of the confinement of the content of the agreement to matters of public interest for the general good.

           

            Public scrutiny is not only an expression of the right to know, but it is also an expression of the right to control.

           

            From this follows, also, the answer to the second question referred to above: that is the place, within this framework, of the courts. In the absence of judicial review there is no effective and immediate way of examining and enforcing the obligations imposed by public law. The existence of public law norms in general and review by the courts are interdependent and intertwined.

           

            6. It was argued before us that publication could be repugnant to the provisions of the Knesset Members (Immunity, Rights and Duties) Law and in particular to section 1 of that Law. I could find no basis for such concern. The statutory status of Knesset factions is not regulated in that Law but in the various statutes dealing with Knesset elections, and there is nothing in section 1 of the said Law or in any of its other provisions which affects the legal rights and duties of a Knesset faction.

 

            But, above all, there is nothing in the said Law to impete a normative definition of rules applicable to an agreement anchored in public law. The question of what, in the light of the provisions of section 1 of the above Law, are the possibilities for legal action, in the event that a member of the Knesset does not fulfil his obligation to disclose to the public the existence of a public agreement, is not an issue before us. In any event, such a question has no bearing on the very creation and existence of basic norm governing such agreements and the necessity of defining and declaring it. In other words, a member of the Knesset who chooses not to publish an agreement with a faction or with another member of the Knesset, will be entitled to immunity, but the definition of his omission as contravening desirable and correct norms of conduct, will remain.

 

            Mr. Meltzer argued, further, that a "negative" regulation can be derived from section 15 of the Basic Law: The Government that section mentions the publication of policy lines but at the same time makes no mention of coalition agreements, from which one can derive a negative by implication. I cannot accept this interpretation. One cannot learn from section 15 that the intention was to block the way to, or deny the existence of, other additional public obligations which are inherent in our democratic regime. Disclosure of information concerning agreements is not only an integral part of our basic conceptions, as explained above, but is a principle of democrat positive commands which must be observed in practice. Section 15 defines and summarises only those matters which are to the act of presenting a government, and there was no intention of making it cover all parliamentary proceedings prior to the presentation of a government. Proof of this can be found in the fact that coalition agreements have been tabled in the Knesset since the Seventh Knesset, without this being regulated in the above section 15.

           

            7. Learned consel for the Labour Alignment faction argued, as mentioned above, that it was preferable for the matter of publication of agreements to be regulated by primary legislation.

           

            We, too, are of the opinion that the matter deserves legislative regulation. Furthermore, in the present legal and constitutional situation every legislative enactment is preferable to an arrange­ment based only on judicial construction of constitutional concepts.

           

            However, once the matter has been brought before us on the initiative of the petitioners, we do not intend to leave the matter open without pronouncing upon it. As long as there is no enactment, it is only proper for this court, which maintains judicial control within the bounds laid down in section 15 of the Basic Law: The Judicature and on the basis of the basic constitutional precepts which are part and parcel of our law, to have its say and to lay down rules which should be applied in the absence of legislation.

 

            8. It is our view, therefore, that agreements between factions, or between a faction and a member of the Knesset, or between individual members of the Knesset, concluded in anticipation of the formation of a government, ought to be published, if they deal with the functions of the legislative or executive authorities.

           

            In this respect there is no substantive difference, in our opinion, where an agreement concluded prior to the formation of a government is concerned between a situation where a government has been successfully formed and one where an attempts to do so has failed .

           

            The timing of the publication should rightly be not later than the date of the anticipated presentation of the Government before the Knesset, under section 15 of the Basic Law: The Government, and the desirable place of publication, is that where the said functions take place, the Knesset. But, of course, the Knesset can lay down, in its Constitution, additional technical regulations with respect to the tabling and publication of the agreements.

           

            9. We hold, therefore, that the order nisi be made absolute and that the agreements, which are the subject-matter of the petitions, be made public.

 

BARAK, J.:

I concur with the judgment of my colleague, President Shamgar. In view of the importance of the matter I wish to add several comments concerning the legal source of the obligation to disclose political agreements prior to votes of confidence, and the role of this Court in formulating it. The subject of my comments is the political agreement concluded between factions or between in­dividual members of the Knesset in anticipation of a vote of confidence in the Government. An agreement of this nature can be between factions and members of the Knesset, who support the Government ("a coalition agreement"), or between factions and members of the Knesset who oppose the Government or abstain from voting ("an opposition agreement")

 

The Source of the Obligation

 

            1. Israel is a parliamentary democracy. The people elect parties or lists whose candidates are elected to the Knesset. "The Knesset is the parliament of the State" (section 1 of the Basic Law: The Knesset). The Knesset is the legislative authority. (both constituent and ordinary). It creates and topples governments. "The Government is the executive authority of the State" (section 1 of the Basic Law: The Government). It functions by virtue of the Knesset's confidence. The Knesset and the Government are two organs of the State which together with the courts make up the three central authorities of the State, exercising a process of mutual checks and balances (see C. Klein, "On the Legal Definition of a Parliamentary Regime and on Parliamentarism in Israel", Mishpatim 5/308).

           

            2. At the basis of this system of government is the right to vote vested in the citizens of the State, who elect the parliament, either by way of lists or parties. There is '"a competitive struggle for power, in the course of which a few individuals are elected as political leaders..."(Justice D. Levin, in Cr. A. 71/83 [12] p. 787). The political parties are the constitutional instruments through which the political will of the people is realised. Accompanying our system of elections we have a multi-party regime, which is based, by its very nature, on the formation of government coalitions. Political agreements become, therefore, a vital legal-political instrument, which in our constitutional regime is of great importance for the purpose of ordering political dealings. It is thus only natural that, citizens, by whose votes the governing organs (the Knesset) are constituted should be aware of the content of such agreements. So that just as citizens should know about the platforms of the parties, so should they know about the content of political agreements, which very often contain diversions from, or addena to, the political platforms.

 

            In the case of a political struggle between parties it is therefore obligatory that citizens be informed about the subjects and personalities connected with the political process. President Shamgar emphasised this in H.C. 1/81 [13], p, 378, when he said:

           

"The system of democratic government draws sus­tenance from - and is even dependent on - a free flow of information, to and from the public, regarding prominent matters which affect the lives of people in general and of the individual in particular. Thus the free flow of information is often regarded as a kind of key to the operation of the whole democratic system..."

 

            And I, too, stressed this on another occasion (in H.C. 399/85 [14] p. 274) when I noted that:

           

"Free exchange of information, opinions and views, not imposed by the authorities, in an attempt at mutual persuasion, is  sine qua non for the existence of a democratic regime, based on the rule of the people, by the people, for the people. Only in this way can it be ensured that every individual receives the maximum information he requires in order to reach a decision on matters of regime and government. A free flow of opinions allows for order by change in the balance of formces controlling government. Without freedom of expression democracy loses its spirit".

 

            Such information, which is vital for the existence of a proper democratic regime, also comprises data about political agree­ments. On the basis of this information the public can make a decision with respect to its representatives and their political attitudes and manner of functioning in the Knesset. Only with his information as a background can the public decide, on election day, one way or the other, and only on the basis of this information can there be a free exchange of opinions in the interval between elections.

 

            3. The obligation to disclose political agreements is grounded not only on the citizen's need to take up a political stand. There is another, immediate requirement connected with the formation of the Government itself. The Government is constituted when the Knesset has expressed confidence in it (section 15 of the Basic Law: The Government). Knesset members who participate in the vote of confidence must know what obligations the coalition partners forming the Government have taken upon themselves. If indeed the purpose of the political agreement is to direct future conduct, it is essential that information about the future influence of the agreement be available to members of the Knesset who vote on the formation of the Government. Indeed, we learnt from the Attorney General's response that in practice coalition agreements are tabled in the Knesset before a vote of confidence takes place.

           

            4. The obligation to disclose, as I have already noted, follows upon the need for the citizen, in general, and the member of the Knesset, in particular, to receive information which is vital for the purpose of making political decisions. This obligation has an additional aspect. If the parties to the agreement are curane that it will be exposed to public scrutiny and criticism, this will affect its actual content. It has rightly been pointed out that sunlight is the best of and elected light disinfectents the most effourt policeman (L. Brandeis, Other People's Money and How the Bantees use it (1914) ch. 5 p. 92. Indeed, exposure of political agreements will influence the legality of their contents. It will enable public review, increase the public's confidence in the governing authorities and strengthen the structure of the regime and the government.

           

            5. Till now I have concentrated on the relationship between the obligation to disclose political agreements and the system of government. I now wish to draw attention to an additional source for the obligation to disclose. This derives from the public function of the parties to such an agreement. A Knesset faction is a constitutional unit. A political party which participates in elections to the Knesset fulfils a constitutional function. The faction and the member of the Knesset have public functions based on law. They are not merely entities operating under public law. A parliamentary faction which, or members of the Knesset who, sign a political agreement do not act on their own behalf. They are trustees for the public. I pointed this out in H.C. 669/89 [4] at p. 78:

           

"...A public personality is a trustee of the public. He does not act for himself only, but does not in the interest of the public. So that it is only natural that agreements and promises made by him are examined by criteria of public law..."

 

            Because of the duty of trust which a public personality carries it follows that he has several obligations, including that of refraining from a conflict of interests (see H.C. 531/79 [15]), acting in accordance with public ethics (see I. Zamir, Ethics in Politics, Mishpatim 17, pp. 250, 261), or being under an obligation to disclose. A private person who has information may keep it to himself, and is under no obligation to disclose it save if the demands of good faith require him to do so (by virtue of section 39 of the Contracts (General Part) Law, 1973). This does not apply to a public personality. Information in this possession is not his private "property". It is "property" which belongs to the public, and he must bring it to the notice of the public. Justice H. Cohen commented on this as follows (in H.C. 142/79 [6] p. 331):

           

"The argument that in the absence of any legal obligation to disclose I am entitled to conceal and not reveal, can be proffered by a private individual or body... but it is not available to an authority which fulfils a function by law. A private authority differs from a public authority in that it acts in its own capacity, can import or withhold information at will, whereas a public authority is created solely to serve the community and has no interests of its own. Everything it has it holds as a trustee and has no additional, different or separate rights or duties of own, over and above those which derive from its position of trust or are vested or imposed on it by virtue of nacted provisions."

           

            Thus, duty to disclose emanates from the obligations of trust. But beyond this, the parliamentary faction which, or the individual member of the Knesset who, fulfils a public function of a constitutional nature, is under an obligation to act fairly. This obligation, too, emanates from the public nature of their functions. Just as the duty to provide reasons derived from the duty to act fairly (see H.C. 143/56 [16], so does the duty to disclose. It follows, therefore, that in order to ensure that public conduct be fair it should be exposed to the light of day, thus allowing it to be stratimised and clarified.

           

            6. Till now I have discussed two legal sources for the obligation to disclose: the nature of the regime and the public character of the agreement. There is a third source, which is entrenched in the public's right to know (see Z. Segal, "The Right of the Citizen to Receive Information about Public Matters", Iyunei Mishpat 625). It has been her that freedom of expression is one of the basic principles of our system of law (see H.C. 87, 73/53 [17]). Freedom of expression is a complex value, at the crux of which is the freedom "to express one's thoughts and to hear what others have to say.."(President Landau in F.H. 9/77 [18] p. 343). In order to realise this freedom the law vests the holder thereof with additional rights derived from the freedom of expression (see Cr. A. 99, 95/51 [19] p. 355). Among these additional rights it the "right to receive information" (H.C. 399/85 [14] p. 267). As against the individual's right to receive information is the governing body's study to provide that information (H.C. 243/82, [20]).

           

            From this comes the duty of public functionaries to inform the public. So that the obligation to disclose, which derives from the freedom of expression, is connected not only to the nature of the democratic regime but also - like the very freedom of expression itself - to the right of the individual in society to know that truth and be given the opportunity for self-fulfillment. The right to know is not only a right belonging to the public in general, but it is also the right of the individual.

 

            7. I have discussed the obligation to disclose political agree­ments. This obligation is not absolute. There are certain very important considerations in favour of restricting this obligation, namely security and foreign, economic and social relations, which can justify applying limitations on the obligation to disclose. So that just as every constitutional right is not absolute, so is the right to receive information not absolute. It must give way to certain other rights and to the need to take other interests and values into consideration. It is in the public interest that political negotiations be not conducted in the glare of publicity, and that the parties to those negotiations be given the means for their proper and efficient conduct. For this purpose secrecy is sometimes necessary. Often damage will be wrought to both public and private interests if political agreements are disclosed.

           

            We must therefore strike a balance between the various considerations against the background of our constitutional concepts. It follows from this balancing process that a political agreement does not have to be disclosed if it almost certainly would be to the detriment of the public interest in general - that is the interest of the State - to do so. So that, for example, a public agreement the exposure of which would almost certainly harm the security of the State or foreign relations should not be disclosed.

           

            8. The obligation to disclose, in the areas in which it operates, covers every political agreement connected with a vote of confidence. It therefore applies both to a coalition agreement and to an agreement between opposition factions. It is not logical, from the viewpoint of the obligation to disclose, to limit it only to coalition agreements. As to the timing of the disclosure, the leading principle should be that this should take place with the signing of the agreement. However, there could be appropriate considerations justifying postponement of the disclosure. The final date for disclosure should be immediately prior to the Government being presented before the Knesset and the holding of a vote of confidence.

           

 The Function of the Court

 

            9. In his arguments before us Mr. Meltzer contended that the obligation to disclose political agreements should be laid down by the legislative body and not by the courts. He noted that he was not disputing the competence of the power of the courts to rule on the obligation to disclose or the legitimacy of this function. But he maintained that it would be wiser for this obligation to be laid down in primary legislation, which would also regulate the relation­ship between the obligation to disclose and the immunity of Knesset members. I, too, am of the opinion that there is no formal problem about our recognising the obligation to disclose. This is a matter which has not yet been regulated specifically by public law and has been left to the autonomy of the private will.

           

            The demands of life call for regulation, but this does not come about in a vacuum. We derive a from well-known and accepted basic principles. On more than one occasion we have carved out a specific legal tule from basic constitutional concepts, such as, for example, the law applicable to amnesty (see H.C. 428/86 [21]), the election laws, based on "constitutional data" concerning the existence of the State and its democratic character (E.A. 1/65 [22] p. 384; E.A. 2/84 [23]), and the rights of man, in general, based on the fact that our country is a freedom-loving democratic State (see H.C. 1/49 [24]; H.C. 337/81 [25]). We have often derived specific legal rules from basic principles, such as, for example, the principle of freedom of expression (see H.C. 73/53 [17] H.C. 680/88 [9]) or from the criteria of the trust obligation (see H.C. 531/79 [15]) or the fairness obligation (H.C. 840/79 [7]). This is not a judicial interpretative function. It is also not a judicial function aimed at filling a lacuna. It is a judicial function whose object is development of the law.

           

            The history of the common law is a history of development of the law by judges. The history of broad areas of our law - characterised by mixed system of law - is a history of judicial creativeness. Most of our administrative law is judicial law. The law of tenders, the rules of natural justice, the rules against conflict of interests, the code of administrative discretion, are all judicial creations aimed at development of the law. This court has operated in a similar matter in the field of private law. My colleague, President Shamgar, referred to this when he pointed out (in F.H. 30,29/84, [26] p. 511) that:

 

"Just as the common law, which did not consist only of the interpretation of expressions, was created in England, so has the independent possibility of develop­ing a common law, not necessarily through the merl interpretation of expressions, been brought about here."

 

            And Justice Witkon expressed a similar idea (in H.C. 29/62 [27] p. 1027), when he said:

           

"More than once has this court recognised rights which do not appear in any legal provision, and these rights, having received judicial approval, have taken shape and crystallised into rights recognised by law. Matters in common practice and within the concepts of natural justice which only yesterday were still featureless and underined have in this manner been given an impetus and awarded the status of rights. That is judicial development, which occurs side by side with the legislative function but does not trespass on its territory, and I would not wish to implide its develop­ment such a polver provides guarantee.

 

            See also A. Witkon, "The Material Right in Administrative law" (1983) 9 Iyunei Mishpat, 5.

           

            This judicial function is usually performed in reliance on the basic principles of the legal system, and thereby new rights and duties come into being. In that way a link between reality and the law is created. Thus the law progresses and develops in a natural manner together with the judicial process (see O. Dixon, "Concerning Judicial Method" Austl. L.J. (1955-6) 468). Therein lies the "genius" of development by judicial precedent (in the language of Simonds J. in Scruttons v. Midland Silicones [29]). The new legal plant grows in the soil of the old law. Such growth allows for change coupled with stability, movement coupled with marking time, creativity coupled with continuity.

           

            10 The judicial function of developing the law is limited. The judge may not act contrary to enacted law and must remain within its framework. He must operate with the interstics of the law. According to Justice Landau (in "Rule and Discretion in the Administration of Justice" Mishpatim, 292, 297: (1968)

           

"As the field of enacted law widens, the judge's use of discretion is confined to the limits of the law; and the area open to the use of discretion by the judge through independent judicial legislation becomes more limited. But even after such enactments the courts return to weaving anew man the their interpretative around the provisions of the enacted law, or interstitially, in the famous words of Justice Holmes."

           

            Within the framework of this "weaving" the court must weigh up whether it would not be preferable, in the specific case before it, to refrain from all creative action and leave the task of developing the law to the legislature (see C.A. 518/82 [28] p. 120).

           

            There are fields in which judicial activity is possible but not desirable. I do not think that the matter before us comes within this field. As already stated, we have founded the obligation to disclose on well-known basic principles. This activity of ours it no different from similar operations in the past, such as imposing the duty to give reasons (before the law on this subject was enacted), the imposition of the rules of natural justice, the imposition of the duty to refrain from a conflict of interests, and of other duties incumbent on government authorities.

           

            In reaching this conclusion I was encouraged by the position of the Attorney General, who stated that in his opinion there is an obligation under case law to disclose political agreements even without any statutory provision. I was also helped considerably by the attitude of the Likud faction, one of the largest factions in the Knesset, which was also of the opinion that actions and members of the Knesset are obliged to make public political agreements concluded amongst themselves prior to the formation of a new government.

 

            12. Nevertheless, it is advisable for the legislature to consider the subject of political agreements. As judges we can lay down general principles. We cannot rule on specific arrangements. We cannot impose the task of examining the content of agreements on a competent authority (such as the Knesset Speaker or the State Controller) nor can we create a "registry of political agreements or lay down details concerning methods of disclosure.

           

            All these matters demand legislation, which will take into account all the possible problems which can arise. But as long as the legislature has not had its say, we have not alternative but to give expression to the basic principles contained in our system of law. And this we have done.

 

 

E. GOLDBERG J.:

 

            None of the parties before us challenged the competence of this court to lay down an obligation to disclose coalition agreements and between opposition factions agreements. The legal principles on which my distinguished colleagues based the obligation to disclose are also acceptable to me. I had some doubts about whether to exercise our competence since all the parties were ready to disclose the agreements they had concluded, even in the absence of any obligation to do so. The "natural" authority which should provide the framework and content for a constitutional matter of the first degree, such as the one with which we are dealing here, is not the judicial authority, but the legislative one. I am of the opinion that even when norms of administrative law are lacking, it is not always the duty of this court to develop them by way of judicial legislation, when it is the duty of the Knesset to legislate. If I finally decided to concur with my colleagues it is because I think that if the matter is left completely open until there is statutory action, and if the matter of disclosure is left to the good will of those who conclude the agreements, then we will not have avoided the risk of damaging the fabric of our public life, with all the implications thereof.

 

I therefore concur with my colleagues' opinion.

 

Decision in accordance with the President's judgment.

 

Judgment given on 8.5.1990.

            HCJ 153/87

         

LEAH SHAKDIEL

v.

MINISTER OF RELIGIOUS AFFAIRS ET AL

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[May 19, 1988]

Before Ben-Porat D.P., Elon J. and Barak J.

 

 

 

Editor's synopsis -

          The Jewish Religious Services Law provides for the establishment of local religious councils throughout the country, charged with the duty to provide Jewish religious services and to allocate public funds in support of such religious services, as are needed in the area. By Law, the membership of such councils is to reflect the general public desire and need for the distribution of such religious services in the locality and the range of interest in such services. In determining the Council's make-up, attention must be given to the different groups represented in the Local or Municipal Council and to their respective strength, but this factor is not conclusive. The members of the religious council are appointed by the Minister of Religious Affairs, the local Chief Rabbis and the Local Council, following a procedure whereby each of the above voices his opinion of the others' candidates. Disagreements between the parties concerning proposed members of the religious council are resolved by a ministerial committee comprised of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior.

         

          This case concerns the makeup of the religious council in Yerucham. The Petitioner is a religiously observant woman, who teaches Judaic subjects in the local school. She is a member of the Local Council, representing the National Religious Party, and was proposed by the Local Council to be a member of the Yerucham religious council. The local Rabbi opposed her inclusion on the religious council on the ground that she is a woman, that women have not hitherto served on religious councils and that her presence would impair the council's functioning.

         

          The Petitioner was not included among the members of the religious council. Her exclusion was explained by the ministerial committee as not based upon any principled objection to a woman serving on such a council but rather as grounded in a tradition that has developed since the establishment of the State, adhered to by all the concerned parties, that women would not be proposed as members of religious councils due to the close working relationship existing between such councils and the Rabbinate. It was also feared that the Petitioner's membership on the religious council in Yerucham would obstruct its proper functioning. The Petitioner contends that her disqualification is based on irrelevant grounds. Since the religious council is an administrative body, concerned with providing and funding religious services to the local community, and does not decide questions of religious Law, there is no reason to disqualify a woman from serving on it.

         

            The court issued an order nisi, directing the Respondents to show cause why the court should not direct that the Petitioner be included as a member of the Yerucham religious council. The Respondents appeared in opposition to the order nisi. In a decision rendered by Justice Elon, the court ordered that the rule be made absolute, holding:

           

1.      The ministerial committee, being a body that fulfills a public function under the Law, is subject to judicial review. As with all such public administrative bodies, it must exercise its discretion in good faith, honestly, rationally and without unlawful discrimination, and must make its decisions on the basis of relevant considerations.

 

2.      The Jewish religious services provided by the religious council are an integral part of the municipal services furnished in the locality and must be provided to all who request them, without regard to sex, ideology, education or any other distinction. Although such services are religious in character, the religious council is responsible only for their provision and is not concerned with the resolution of any questions concerning matters of religious Law. The qualifications for membership on the council are determined by the general legal system. Candidates for membership on the council need not meet such qualifications as are required by religious Law.

 

3.      The exclusion of the Petitioner from membership on the religious council because she is a woman is contrary to the fundamental principle of the Israeli legal system that forbids discrimination on grounds of gender. This principle finds expression in the Declaration of Independence and is one of the principles which has found its expression in the Women's Equal Rights Law, 5711-1951.

 

Justice Barak concurred in the result in a separate opinion.

 

Note - An especially interesting aspect of this case is Justice Elon's exhaustive review of Jewish religious legal literature (halakha) concerning women's qualifications to participate in public communal activities and to hold public office. Justice Elon points out that, even in earlier times, most Rabbinic scholars did not agree with Maimonides' opinion that disqualified women. In any event, he concludes, nowadays, it is the view of the overwhelming majority of Rabbinic authorities that women may so participate and may hold such public office.

 

Israel cases referred to:

[1] H. C. 44, 61/68, Rosh Ha'ayin Local Council v. Minister of interior; Sharf v. Minister of Religions 22P.D. (2)150.

[2] H.C. 191/64, Elbaz v. Minister of Religions 18P.D.(4)603.

[3] H.C. 680/81, Chairman of the Municipal Department of the Confederation of Agudat Yisrael in Israel v. Minister of Religious Affairs 37P.D. (1)709.

[4] H.C. 590/75, Barsimantov v. Minister of Religions 30P.D.(2)636.

[5] H.C. 287/76- unpublished.

[6] H.C. 223/76-unpublished.

[7] H.C. 568/76, Rabbi Harlap v. Ministerial Committee under the Jewish Religious Services Law 31P.D.(1)678.

[8] H.C. 516/75 Hupert v. Minister of Religions 30P.D.(2)490.

 

[9] H.C. 121/86 "Shas" Party Faction v. Minister of Religious Affairs 40P.D.(3)462.

[10] H.C. 392/72 Berger v. Haifa District Planning and Building Committee 27P.D.(2)764.

[11] C.A. 337/61, Lubinsky v. Tel-Aviv Tax Assessment Officer 16P.D.403.

[12] H.C. 202/57, Sidis v. President and Members of the Great Rabbinical Court 12P.D.1528.

[13] F.H. 10/69, Boronovsky v. Chief Rabbis of  lsrael 25P.D.(1)7.

[14] H.C. 148/79, Sa'ar v. Minister of interior and Police 34P.D.(2)169.

[15] P.P.A. 4/82 (M.A. 904/82), State of Israel v. Tamir  37P.D.(3)201.

[16] H.C. 114/86, Weil v. State of lsrael 41P.D.(3)477.

[17] S.T. 1/81 Nagar v. Nagar 38P.D.(1)365.

[18] E.A. 1/65 Yeredor v. Chairman of the Central Elections Committee for the Sixth Knesset 19P.D.(3)365.

[19] H.C. 258, 282/64, Zilonilas Ya'ari v. Minister of Religions; Agudat Yisrael v. Minister of Religions 19P.D. (1)517.

[20] H.C. 241/60, Kardosh v. Registrar of Companies 15P.D.1151; S.J. vol. IV, 7.

[21] F.H. 16/61, Registrar of Companies v. Kardosh 16P.D.1209, S.J. vol. IV, 32.

[22] H.C. 73, 87/53, "Kol Ha'am" Company Ltd.; "EI Ittihad" Newspaper v. Minister of Interior, 7P.D.871; S.J. vol. I, 90.

[23] H.C. 262/62, Peretz v. Kfar Shmaryahu Local Council 16P.D.2101.

[24] H.C. 163/57, Lubin v. Tel-Aviv-Jaffa Municipality 12P.D.1041.

[25] H.C. 44/86, Butchers Branch of Jerusalem District v. Jerusalem Chief Rabbinate Council  40P.D.(4)1.

[26] H.C. 195/64, Southern Company Ltd. v. Chief Rabbinate Council 18P.D.(2)324.

[27] H.C. 282/51, National Labour Federation v. Minister of Labour 6P.D.237.

[28] H.C. 507/79, Roundnaff (Koren) v. Hakim 36P.D.(2)757.

[29] H.C. 114/78 (Motion 451, 510/78), Burkan v. Minister of Finance 32P.D.(2)800.

[30] H.C. 98/69, Bergman v. Minister of Finance 23P.D.(1)693 S.J. vol. VIII, supra, p. 13.

[31] H.C. 507/81, M.K. Abu Hatzeira v. Attorney General 35P.D.(4)561.

 

Jewish law sources referred to:

            These references are not listed here, since they are given their full citation in the body of the case. On the Jewish law sources in general, see note under Abbreviations, supra, p. viii.

           

Y. Shofman for the Petitioner.

M. Mazoz, Deputy State Attorney, for Respondents Nos. 1-2.

 

JUDGMENT

 

            ELON J.: 1. Once again we are asked to scrutinize the composition of a religious council under the Jewish Religious Services Law (Consolidated Version), 5731-1971, this time the religious council of Yerucham. This court has already commented that "the ways of establishing a religious council ... are clearly very intricate and protracted ..." (H.C. 44, 61/88[1], at 154), as is evident from the numerous judgments delivered by us on the subject. In the instant case, the formation of the religious council was not only complicated and drawn out beyond the "ordinary" or "customary" measure, due to various reasons, but the matter also raises a question never before considered in the judgments of this court. The Petitioner challenges her disqualification as a member of the religious council, for the sole reason, she contends, that she is a woman. That is the heart of the petition, but before considering it we shall briefly examine the sequence of events in this matter, starting with two preliminary comments:

           

            a. The original petition was filed against the Minister of Religious Affairs (Respondent No. 1) and the Committee of Ministers under section 5 of the above-mentioned Law (Respondent No. 2), and in the course of its hearing two additional respondents were joined - the Yerucham Local Council (Respondent No. 3) and the Rabbi of Yerucham (Respondent No. 4);

           

            b. In the original petition, the Petitioner also questioned the delay of the first two Respondents in concluding the task of forming the religious council. In the course of hearing the petition the composition of the religious council was concluded, but the Petitioner was not included among its members. This left us only the first question to deal with, i. e. why the Petitioner was not included as a member of the religious council. We issued an order nisi as well as an interim interdict restraining the first two Respondents from giving notice in Reshumot* concerning the new composition of the Yerucham religious council (without inclusion of the Petitioner), until otherwise ruled by this court. We now propose so to rule .

           

            2. The Petitioner is a resident of Yerucham, an Orthodox Jewess, and a trained, experienced teacher of Judaic studies. She is a member of the Yerucham Local Council representing the Labour Party, and on January 26, 1986, the Local Council proposed her as one of the four candidates nominated on its behalf to the religious council.

           

            3. That election was preceded by several events which are relevant to our discussion here.

           

            The religious council of Yerucham is composed of nine members, like the number of the members of the Local Council (section 2 of the above-mentioned Law). It was first appointed in 1975. Notice of a newly composed religious council was published in Reshumot in 1981, which was invalidated, however, by judgment of this court (H.C. 513/81). The council appointed in 1975 thus resumed its functioning, but with only five remaining members out of nine; one had died, two had resigned and one had left Yerucham. The Minister of Religious Affairs approached the Local Council and the Yerucham rabbinate three times (once before the municipal elections on October 25, 1983, and twice thereafter) requesting them to propose their candidates for the religious council, as prescribed by section 3 of the Law, but to no avail, for reasons that were not entirely clarified. The Minister repeated his request for the fourth time in March 1985, and it was only on September 18, 1985 that he received a response from the secretary of the Local Council, who named four candidates on behalf of the Council, with the Petitioner excluded. It transpired that the list of candidates had apparently been compiled by the head of the Council, but was not confirmed by the Council itself. This need was indicated to the head of the Council, and he submitted the matter to the Local Council for resolution. On January 26, 1986 the Council discussed the matter and elected its candidates for the religious council, among them the Petitioner.

 

            Meanwhile, and before the said decision of the Local Council on January 26, 1986, the Shas party faction petitioned this court (H.C. 344/85) with respect to the reconstitution of 40 religious councils, including that in Yerucham. On November 10, 1985, judgment was given, by consent of the parties, to the effect that the case of each of these religious councils which the Minister of Religious Affairs failed to reconstitute within 90 days, should be referred to the Committee of Ministers under section 5 of the Law. On February 8, 1986, pursuant to that decision, the matter of the formation of 21 religious councils which the Minister of Religious Affairs was unable to reconstitute - including the religious council in Yerucham - was referred to the Ministerial Committee for determination.

           

            The Petitioner contends that the resolution of the Local Council of January 26, 1986, concerning its choice of candidates, was conveyed to the Minister on February 6, 1986 (that is, before the matter of the formation of the religious council was referred for determination to the Ministerial Committee). It is not clear from the evidence before us precisely when that resolution of the Local Council reached the attention of the Minister, but the point is not material since it is not disputed that the Petitioner was included in the list of candidates made known on January 26, 1986, as aforesaid. On March 23, 1986, the Petitioner, as one of the candidates nominated to represent the local authority on the religious council, wrote to the Minister inquiring as to the reason for the delay in the formation of the religious council in Yerucham. In a letter dated May 6, 1986, Mr. Marmorstein, head of the department for religious councils in the Ministry of Religious Affairs, informed the Petitioner that no notice whatever had yet been received by the Minister respecting any change in the Local Council's nominees for the religious council in relation to the list previously submitted. Mr. Marmorstein added the following comment:

 

            If we understand your letter correctly, it appears that you are one of the candidates. In this regard I can already inform you that the matter is not at all feasible; there are no female members on the religious council, only male members can serve on it, and I assume that you would not even want to create such a precedent.

           

            As to the substance of the matter, the letter continued, the formation of the religious council had been referred to the Committee of Ministers, pursuant to the above-mentioned decision of this court in the petition brought by the Shas party faction, and it was to be hoped that the Committee would conclude its task within a reasonable period of time.

           

            This hope was not fulfilled. In response to the above letter, the Petitioner wrote to the Prime Minister, who serves as chairman of the Committee of Ministers (section 5 of the Law), complaining strongly about the suggestion in Mr. Marmorstein's letter that she was unable to serve as a member of the religious council, and asking to speed up the formation of the religious council, with herself included as one of its members, representing the local authority. She also approached other persons, and the matter was even raised for discussion in the Knesset.

           

            In a letter written by Mr. Marmorstein to counsel for the Petitioner, dated October 28, 1986, he described the sequence of events in the composition of the Yerucham religious council. It was stated, among others, that since the decision of the Yerucham Local Council (concerning its candidates for the religious council) had been sent to the Minister on February 6, 1986, neither the formation of the religious council nor the joint opinion (required under section 4 of the Law) could have been prepared by February 8, 1986 (the date on which the matter of constituting the religious council was referred to the Committee of Ministers), "and unconnected with the petition of the Shas faction, the Committee of Ministers dealing with the composition of the religious councils was asked to handle Mrs. Leah Shakdiel's complaint following her approach to the Prime Minister".

           

            The Committee of Ministers did not consider the matter of the religious council in Yerucham. Meanwhile a new Minister of Religious Affairs was appointed and thereafter the composition of the Yerucham religious council was taken up by the various competent bodies. The new Minister asked for time to consider the matter, it was raised again in the Knesset plenum and Internal Affairs Committee, and resolutions were passed. The Minister of Religious Affairs met with the Petitioner, and assurances were given on his behalf that the matter would be arranged and settled (as to which more will be said below), but no solution was forthcoming. In these circumstances, the Petitioner filed her petition before this court, and on March 12, 1987, we issued an order nisi as mentioned at the outset of our judgment.

 

            4. Approximately one month after the order nisi was issued, the Committee of Ministers - composed of representatives of the Prime Minister, the Minister of Religious Affairs and the Minister of the Interior - began its discussions on the formation of the religious council in Yerucham. On April 21, 1987 the chairman of the Committee requested the three authorities whose nominees compose the religious council - that is, the Minister of Religious Affairs, the local authority and the local rabbinate (section 3 of the Law) - to propose their candidates. The Minister of Religious Affairs submitted his list of candidates in anticipation of a meeting scheduled for May 8, 1987. The meeting was postponed because the local rabbinate had not yet nominated its candidate, and this was done on May 29, 1987. On June 9, 1987 the Committee of Ministers held another meeting, and in view of changes in the list of candidates submitted by the Minister of Religious Affairs, another meeting was scheduled "to allow further consultation between all the parties". This meeting was set for August 5, 1987, but was postponed at the request of the head of the Local Council because, among other reasons, the Council was to discuss again its list of candidates on that same day. In mid-August a letter was received from the Local Council, in which it submitted its final list of candidates, this list including two changes, but the candidacy of the Petitioner remained unaffected. The Local Council also advised that it confirmed the candidates of the Minister of Religious Affairs and the candidate of the local rabbinate. The Committee of Ministers decided, at its meeting on August 28, 1987, to request the opinion of the Minister of Religious Affairs and that of the local rabbinate respecting the candidates of the local authority, as well as the opinion of the local rabbinate respecting the candidates of the Minister of Religious Affairs. On September 20, 1987 the Committee of Ministers received the opinion of the local rabbi, in which he expressed his opposition to the candidacy of the Petitioner (a matter I shall discuss further below). Thereafter the Committee of Ministers held three meetings - on September 30, 1987, October 26, 1987, and November 29, 1987 - at the conclusion of which it determined the composition of the religious council in Yerucham, excluding the Petitioner. The Committee's reasons were set forth in a decision given on November 29, 1987, to which we shall presently refer.

           

            5. We were asked to hold over the hearing of the petition until the Committee of Ministers completed its deliberations, which we agreed to do. In the meantime we decided to join the local authority and the local rabbinate as additional respondents to the petition, as already mentioned. We heard the petition on December 21, 1987, with counsel for all the parties present. On December 22, 1987 we decided to serve a copy of the material filed with the court on the representatives of the local authority who had been appointed members of the religious council by the decision of the Committee of Ministers, since it appeared that if we were to admit the petition and hold the exclusion of the Petitioner from the religious council to be unlawful, one of these four appointees to the religious council might be affected by having to vacate his seat in favour of the Petitioner. We also notified them that if they so wished they could submit their written reply to the petition and the material filed with the court within two weeks. All four representatives submitted their written replies, and the response of one of them is of particular interest here, as will be elaborated below.

 

            6. In the original petition, as already mentioned, the Petitioner complained of the delay in forming the religious council in Yerucham. Mr. Mazoz, learned counsel for Respondents nos. 1 and 2, concedes that the delay was unreasonable, but contends that it was largely attributable to the other two Respondents because they were dilatory in complying with the Minister's request to submit their candidates for the religious council. We have already described the sequence of events and there is indeed no doubt that the inaction of the local authority and the local rabbinate contributed significantly to dragging out the matter. It also appears, however, that both the Minister and the Committee of Ministers were tardy, beyond any substantive justification, in forming the religious council, even after the list of the candidates of the local authority had been submitted, and especially after the beginning of February 1986, when the Committee of Ministers was charged with the task by this court. There can be no justification for the lapse of almost two years until the formation of the Yerucham religious council, even if we take into consideration the workload of the Committee of Ministers in forming religious councils elsewhere too. For fourteen months, from February 1986 until April 1987, the Committee did nothing towards forming the Yerucham religious council, until the lodging of the instant petition. We have listed these details so as to bring the matter to the attention of the competent bodies. Now that the task of composing the Yerucham religious council has been concluded, there is no further need for us to deal with the Petitioner's complaint about the delay.

           

            7. In his summary of arguments, Mr. Mazoz raised a preliminary plea as to the Petitioner's lack of standing before this court, contending thus: Since the period within which the local authority and the local rabbinate were required to propose their candidates for the religious council had expired (according to section 3 of the Law), their right to appoint representatives to the religious council had lapsed and that right passed to the Minister; however, as a result of the Minister's delay in forming the religious council, this court ruled (in H.C. 344/85) that the composition of the Yerucham religious council was to be effected within ninety days, or the matter would be referred to the Committee of Ministers under section 5. The effect of all this, according to Mr. Mazoz, is that because the lists of candidates were not submitted in time by the authorities mentioned in section 3 of the Law, and the entire matter was referred to the Committee of Ministers, there wasn't before the Committee any duly proposed list of candidates whatever, so that it was free to determine the composition of the religious council without being bound by any proposed list of candidates. Indeed, this was expressly stated in paragraphs A and B of the decision of the Committee of Ministers given on November 29, 1987, with respect to the local authority's nominated candidates. Hence, continues Mr. Mazoz, "in these circumstances the Petitioner lacks legal standing, procedural and substantive alike, as regards both the proceedings and the decision of the Committee of Ministers"; and in any event, according to section 5 of the Law, only the three authorities that compose the religious council have standing before the Committee of Ministers -"and the Petitioner does not have any preferred right or standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council". It follows that "the Committee of Ministers did not disqualify the candidacy of someone (the Petitioner) who had been lawfully proposed by the competent body, but decided not to appoint someone whose candidacy was put forward by a body (the local authority) which lacked the legal competence to make appointments at that stage, when that candidacy was also opposed by another body (the local rabbinate) of equal standing (to the local authority)".

 

            8. This argument, for all its subtlety, has no foundation whatever, either in fact or in logic, and Mr. Mazoz wisely did not press it before us.

           

            The religious council is composed of representatives of three bodies - the local authority (45%), the Minister of Religious Affairs (45%) and the local rabbinate (10%), each body proposing its own candidates (section 3 of the Law). The legislature considered this to be the desirable balance for the religious council, which provides local Jewish religious services and which is not elected by the residents in general elections. The three authorities express their opinion concerning all the proposed candidates - "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and the communities interested in the maintenance of Jewish religious services ... in the locality" (section 4 of the Law). We shall refer below to the qualifications required of the candidates. Where the local authority or the local rabbinate fail to respond to the Minister's request to list their candidates, the Minister may propose those candidates in their stead (section 3(b)), and in the event of any disagreement between the three authorities, the matter is referred to the Committee of Ministers for determination, against which decision the Minister may appeal to the Government (section 5 of the Law). The function of reconstituting the religious council and giving notice of its new composition is imposed on the Minister, as specified in section 6 of the Law.

           

            The Committee of Ministers accordingly does not act in a "vacuum", and it too is bound to adhere to the structure and balance statutorily prescribed for constitution of the religious council, including the role of the three authorities. The function of the Committee of Ministers is to consider differences disclosed between the three authorities and to settle them. In other words, it must receive and study the lists of candidates proposed by each of the three authorities, hear their respective opinions on them, all as specified in the Law, and settle the disagreements that arise among them. The Committee of Ministers so acted, precisely and rightly, in the instant case. At its first meeting, on May 8, 1987, there were present, in addition to the members of the Committee representing the Prime Minister, the Minister of the Interior and the Minister of Religious Affairs, that is, the directors-general of their respective ministries, also the rabbi of Yerucham, the head of the Local Council and a senior adviser to the Minister of Religious Affairs on matters of religious councils (as well as the legal adviser to the Office of the Prime Minister). The chairman of the Committee asked the representatives of the three authorities to submit their nominees for the religious council. The head of the Local Council named the four representatives chosen by that body - including the Petitioner. The representative of the Minister of Religious Affairs also named four candidates, and added that there might be changes after consultation with all the proposed candidates, so as to give proper representation to all the bodies and communities. The local rabbi said that he would submit the name of his candidate within two weeks, after considering the names of the candidates on behalf of the local authority and the Minister of Religious Affairs. At the end of the meeting the chairman of the Committee asked the parties to consult among themselves so as to reach agreement on all the candidates. At the meeting of the Committee on June 9, 1987, the representative of the local rabbinate was named, and the representation of the Shas faction on the religious council was discussed, whilst the representatives of the Minister of Religious Affairs and the Local Council asked for another opportunity to study their lists of candidates. On August 6, 1987 the Local Council announced its final list of candidates, which again included the Petitioner, and the local rabbi was again asked his opinion concerning the list of the representatives proposed by the Local Council and by the Minister of Religious Affairs, respectively. The Committee of Ministers thus acted correctly and in accordance with the provisions of the statute and its purpose, when it called upon the three authorities for their lists of candidates and for their opinions respecting all the candidates listed as proposed members of the religious council. In this context the Petitioner's candidacy was repeatedly put forward by the Local Council to the Committee, and despite changes from list to list of the candidates proposed by the Local Council at different times, the Petitioner's candidacy remained unaffected. The Committee of Ministers decided to reject her candidacy and she was excluded from membership of the religious council for reasons that we shall refer to below. How then can it be argued that the Petitioner has no locus standi before us to complain about the wrong done to her, about the violation of her right to be numbered among the members of the religious council? One of the authorities appointed under the Law to propose candidates for the religious council, indeed the most important of the three, in fact proposed the Petitioner's candidacy, while she now claims that she was unlawfully disqualified. How can it be said that "the Petitioner does not have any preferred standing in relation to any other resident of Yerucham seeking appointment as a member of the religious council"?

 

            No less unfounded is Mr. Mazoz's argument that the Committee of Ministers did not disqualify the candidacy of the Petitioner, but merely decided not to appoint a person whose candidacy was proposed by a body (i.e. the local authority) that had no legal competence to make appointments at the time. As already mentioned, the local authority is a body that seeks to propose its candidates for the religious council (also in relation to the Committee of Ministers), and the rejection of any of its proposed candidates amounts to disqualification of that candidate. If that candidate considers the disqualification to be unlawful, as does the Petitioner here, the doors of this court are open to her and we are ready to hear and consider her petition, like any other petition brought against a governmental body that is claimed to have based its decision on unlawful or extraneous considerations. It is true that the parties to the formation of the religious council are the three authorities specified under section 3 of the Law, and not the proposed candidates. Likewise, the party to an appeal before the Government against a decision of the Committee of Ministers, is a Minister and not the person disqualified by the Committee of Ministers. But any person who has a legitimate interest in the composition of the religious council may petition this court, even if not representing one of the three aforementioned authorities (see H.C. 191/64[2] at 610; H.C. 680/81[3] at 713). Certainly this applies to a person who was a candidate to represent one of the authorities that constitute the religious council and whose candidacy was disqualified.

           

            9. We thus arrive at the essence of the petition: the complaint against the decision of the Committee of Ministers of November 29, 1987 to fix the composition of the religious council in Yerucham without including the Petitioner among its members, despite her nomination as a candidate on behalf of the local authority. Mr. Shofman, learned counsel for the Petitioner, claims that the decision of the Committee of Ministers is invalid, because it disqualified the Petitioner from serving on the religious council on the basis of the unlawful consideration that the Petitioner is a woman; that this amounted to discrimination on grounds of sex which is contrary to law and neither permitted nor justified, also not for purposes of membership of a religious council. All the considerations mentioned in the decision of the Committee of Ministers, the Petitioner contends, are incorrect, unlawful or irrelevant. Mr. Mazoz, on behalf of the Respondents, replies that the exclusion of the Petitioner from membership of the religious council did not stem from any principled objection because she was a woman, but was rooted in the special circumstances of the formation of the religious council in Yerucham, namely: the objection of the local rabbi and the Minister of Religious Affairs to the candidacy of the Petitioner because she was unfit for the office, and the fear that the Yerucham religious council would not function properly, and its regular activity would be stymied, if the Petitioner served as one of its members. Mr. Mazoz argued further that the Committee also took into account the nature of the activity of a religious council, which deals with matters of clear religious-halakhic concern, and the tradition in Israel is that women do not serve as members of religious councils. These are material considerations, according to Mr. Mazoz, and the court should not intervene in a decision based on them.

 

            10. The main points of the argument presented by Mr. Mazoz are detailed in the above-mentioned decision of the Committee of Ministers, and we shall now examine them. It is not disputed that the Committee of Ministers, as a statutory body carrying out public functions, is subject to judicial review by the High Court of Justice (section 15 of Basic Law : Judicature), and like any other public administrative body it must exercise its discretion in good faith, with integrity, without arbitrariness or unjust discrimination, and it must reach its decision on the basis of material considerations. As regards the extent of the intervention by this court, it has already ruled that the discretion is the Minister's, and so long as it is not shown that his considerations lacked foundation or that he exercised his powers unreasonably, the court will not intervene in his actions (H.C. 590/75[4] at 640; H.C. 287/76[5]). So too it has been held (per Landau J., in H.C. 223/76[6]) that

           

            the discretion is vested in the Minister of Religions and where there are no clear and persuasive grounds to contradict the opinion of the person entrusted with the discretion, this court will not intervene in the matter.

           

            These statements are as pertinent to the discretion of the Committee of Ministers in settling the composition of the religious council under section 5 of the Law, as they are pertinent to the discretion of the Minister of Religious Affairs in discharging his own function. Thus it was held in H.C. 568/76[7] at 679-680:

           

            ...The matter of the fitness of the candidates lies initially within the discretion of the three bodies that compose the religious council, and if there are any reservations about the fitness of a given candidate, the matter is entrusted to the discretion of the above mentioned Committee of Ministers. This court does not usually interfere with administrative discretion, even in relation to the election of candidates to a representative body, unless it appears that the act was lacking in good faith or done out of improper motives, or on similar grounds for disqualifying an administrative act.

 

            With these rules in mind we shall now examine the decision of the Committee of Ministers (R/15). After noting that this court (in H.C. 344/85) had referred to it the matter of composing the religious council in Yerucham, the Committee goes on to state (in paragraph B) -

           

...the local authority and the local rabbinate did not propose their candidates for the religious council within the statutory period of time; when the local authority first presented its list of candidates, more than two years late, it did not include Mrs. Shakdiel among them. After that the list of candidates of the local authority was changed twice. In light thereof, the Committee considers, from both the legal and the public interest aspects, that it is not bound to accept the recommendations of the local authority, but must rather consider each proposed candidate individually after consulting with the bodies concerned.

 

            We do not accept this determination. The function of the Committee is to settle disagreements that arise between the different authorities, and the fact that these were late in presenting their candidates, or that one of them changed its list of candidates does not allow the Committee of Ministers to ignore the existence of a particular candidate or to reject his candidacy, unless there is a disagreement with respect to that candidate. In that case the Committee must resolve the matter (as indeed it did with respect to the candidacy of the Petitioner), but it may not refuse to accept a candidate agreed upon by all the bodies that compose the religious council, or rest content with mere consultation between them.

           

            11. The Committee further clarified that it had asked each of the three authorities to propose its candidates as well as give its opinion on the candidates in general. In doing so, the Committee acted correctly. The Committee notes that differences of opinion arose in relation to two matters: the absence of representation for the Bnei Torah community, and the inclusion of the Petitioner in the local authority's list. With regard to the first matter the Committee decided by a majority opinion that this community was adequately represented in the overall appointments to the religious council. As to the nomination of the Petitioner, the Committee gave its decision in these terms:

           

            E. The local rabbi, who was asked by the Committee of Ministers for his opinion of the candidates, objected to the candidacy of Mrs. Shakdiel, for reasons of her unsuitability and the proper functioning of the religious council. It became clear to the Committee that the attitude of the local rabbinate, and in fact also that of the chief rabbinate, is that even if the religious council is in theory an administrative body, it acts in practice as a body that ministers to matters of religious principle touching upon classic halakhic issues, and as such serves as a meeting place for the rabbis of the town and the neighbourhood as well as the scholars of the region. The religious council deals with both the administrative aspect of marriage registration and the halakhic aspect of the fitness of the registration; it deals with the building of ritual baths, but also with the determination of their fitness; it supervises the kashrut or fitness of foods, including the slaughter of animals, the setting aside of contributions and tithes and the problems of the shemitta [sabbatical] year with its related laws; it also deals with burial services and a long list of religious matters, among them the local rabbinate and other religious-halakhic concerns.

 

F. The representative of the Minister of Religious Affairs pointed out that in the forty years of the State's existence it became an accepted tradition among all the agencies concerned that the religious council should be a body with strong ties to the rabbinate and the halakha that guides it; hence an understanding evolved that women would not be nominated for membership in this body. He advised that the matter had meanwhile become the subject of public debate, amidst calls for change, various proposals being raised and examined from a broad perspective with a view to appropriate arrangements for promoting understanding and dialogue, along with respect for the view of the Israeli rabbinate. In the circumstances, the representative of the Minister of Religious Affairs asked us not to consider him to have taken any principled position on the issue, and to confine the issue to the case in Yerucham alone.

 

G. Having regard to the objection of the local rabbi to Mrs. Shakdiel's candidacy, and his reasons, and considering her views and position on the subject of religion and state, as publicized by her in the communications media, the Minister's representative was convinced that her appointment would disrupt and impair the functioning of the religious council in Yerucham. There is a reasonable fear that her appointment will lead to a complete break in relations between the religious council and the local rabbi, stir sharp dispute within the religious leadership in Yerucham, and thus prejudice the proper, orderly and regular functioning of the religious council.

 

H. The Committee agrees that this matter should not be decided on grounds of general principle and that it should address only the specific problem of the Yerucham religious council. From this point of view, the Committee is of the opinion that the arguments of the representative of the Minister of Religious Affairs should be accepted, in the hope that the question of principle will be decided in the near future from a broad and general perspective.

 

I. For the above reasons, and having considered the need for the appropriate representation of all sectors of the local population, the Committee has decided to determine the composition of the religious council of Yerucham as follows: [Here the Committee lists the names of the nine appointees, with the Petitioner's name omitted - Ed.]

 

We shall examine these reasons seriatim:

 

            12. The objection of the local rabbi, R. David Malul, is found in a letter written by him to the Committee (R/14), in which he expressed his opinion of the nominees for the religious council in these terms:

           

I have received the list of candidates for the Yerucham religious council. As a rabbi who has known the entire community in all its diversity for many years, candidate Mrs. Leah Shakdiel also being known to me, I have reached the conclusion that she is unsuited to serve as a member of the Yerucham religious council. It is feared that her membership will disrupt the orderly course of activity of the religious council. Furthermore, she is not properly representative of the public which is interested in the maintenance of religous services in Yerucham. I therefore ask the local council to appoint another representative in her stead, in accordance with section 4 of the Jewish Religious Services Law.

 

            Section 4 of the Law, under which Rabbi Malul's opinion was given, provides that

           

the three authorities referred to in section 3 shall express their opinion of the candidates with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities interested in the maintenance of the Jewish religious services (hereinafter referred to as "religious services") in the locality.

 

            The opinion follows the terminology of section 4, and the section is expressly mentioned in its conclusion. The opinion is not, therefore, a halakhic ruling (even were there place for such a ruling with regard to the composition of a religious council), and Rabbi Malul did not purport to act in discharge of a halakhic function. The opinion was given within the frame and under the provisions of the Jewish Religious Services (Consolidated Version) Law, and it is, therefore, subject to scrutiny and review by this court. All the more so once the Committee of Ministers adopted that opinion as one of its reasons for deciding to exclude the Petitioner from membership in the Yerucham religious council .

 

            13. Rabbi Malul did not specify why the Petitioner is not fit to serve as a member of the Yerucham religious council. In fact, his opinion merely reproduces the text of section 4 of the Law. Nor does the decision of the Committee of Ministers offer any explanation of the alleged unfitness.

           

            The functions of the religious council and the qualifications required of its members have been discussed several times in the judgments of this court. Section 7 of the Law, concerning the powers of the religious council, provides:

           

A council is competent to deal with the provision of religious services and for that purpose it may enter into contracts, hold property on hire or lease and acquire immovable property, all in accordance with the items of its approved budget.

 

            The functions of the council accordingly embrace the provision of Jewish religious services. Thus in H.C. 516/75[8], Shamgar P. said as follows:

           

The powers of the council are prescribed in section 7 of the Law, under which it is competent to deal with "the provision of religious services". The Law does not clarify the meaning of "religious services", but the current nature of these services may be deduced, among others, from the regulations concerning submission and approval of the religious council's budget. The schedule to the Jewish Religious Services Budget Regulations, 5728-1968 (K.T. 2177, 1968, 760) lists the religious council's main fields of activity covered by the budget, namely: rabbinate and marriage, kashrut and ritual slaughter, family purity [ritual], burial services, the Sabbath and eruvin and religious cultural activities.

 

And further on, per Shershevsky J., at page 503:

 

...The Law does not speak about religious services in general but about Jewish religious services, that is, about the religious services that are known to be specially and specifically for Jews. What these religious services are, can be learned, inter alia - as my esteemed colleague Shamgar J. has shown - from those listed in the schedule to the Jewish Religious Services Budget Regulations, 5728-1968. These religious services are not a matter of personal outlook, so that their substance can change from time to time according to the subjective view of whoever considers himself competent to express his own so called Jewish outlook, but are matters objectively governed by Jewish law and custom from time immemorial, as such known to be specifically Jewish and distinct from any other religion.

 

            We are thus dealing with known and customary religious services. The religious council is charged with making appropriate budgetary provision for these services (see section 14 of the Law), and is accordingly vested with the requisite powers to discharge its legal functions (section 7 of the Law). The religious services provided by the religious council constitute a substantial part of the municipal facilities in the locality (H.C. 121/86[9], at 466), and it must provide them on call, regardless of sex, worldview, education or any other distinction. The religious council is, therefore, an administrative body created by statute, whose function it is to maintain Jewish religious services and to have an interest in their maintenance, and to assist the local residents in receiving the religious services that they require and wish to have.

           

            To sum up, the services provided by the religious council are of a religious character, but the council is responsible only for their provision and not for making any kind of halakhic decision with respect to them. The latter decisions are entrusted to a body that enjoys the requisite halakhic authority and competence (see the Chief Rabbinate of Israel Law, 5740-1980, section 2, subsections 1, 3, 5, 6, section 5, etc.).

           

            14. The character and functional purpose of a religious council, as outlined in section 4 of the Law, determine also the qualifications required of its aspirant members:

           

Every candidate must have two attributes: personal, that he is a religious person or at least not anti-religious; and public, that he represents a body or community with a religious interest.

(H.C. 191/64[2], at 610.)

 

It is likewise the rule that the interested bodies and communities

 

...be not merely indifferent in the sense they do not care if they [the religious services - M.E.] are provided or not, but must in fact show a positive interest in their existence and that they would be disturbed by the absence of such services.

(H.C. 516/75[8], at 503-504.)

 

            These statements are pertinent both to the bodies represented by the candidates and to the candidates themselves. Candidates for membership of the religious council are not required to have recognized qualifications set by the halakha (see H.C. 568/76[7], at 679-680), as might have been justified were the religious council vested with the power or function of halakhic determination or decision. So indeed has it been contended by the Petitioner (section 36(b) of the petition). Mr. Shofman added in his oral argument before us that if a religious council decided matters of halakha, the Petitioner would not have pressed her petition .

           

            15. We must now examine the Petitioner's alleged unfitness to serve as a member of the religious council in Yerucham, and for what reason she is not properly representative of the public interested in the maintenance of local religious services. It appears from the material before us, and the point is not contested, that the Petitioner is religiously observant, a trained and experienced teacher of Judaic subjects, and that she dedicates her time - in addition to managing her home and raising her four children - to educational affairs in her place of residence. Do these excellent and special qualities not qualify the Petitioner to serve as a member of the Yerucham religious council? The Petitioner states in her petition as follows (paragraph 47):

           

One of the new institutions in the state is the religious council, an institution of great importance in fashioning religious life at the local level. The Petitioner did not confine her candidacy to representing only the women of Yerucham on the religious council. She can certainly bring to bear a new and formerly unrepresented perspective to the council meetings. But as a resident of the locality who is interested in the maintenance of religious services, and as an elected representative of the public, she considers herself a full participant in public activity, and wishes to serve on the religious council as a full partner to decisions in all matters falling within the competence of the council.

 

            These statements are true and sincere, unchallenged by any of the litigants and acceptable to us. Male members of the religious council have never been required to show knowledge of the Torah, scholarship, or strict observance of all the commandments, and never have we heard that the lack of any of these - or even all of them together - should disqualify a man from serving on a religious council. Is it because the Petitioner is blessed with all these virtues that her competence shall be diminished, and she be deprived of her right to serve on the Yerucham religious council? It is clear beyond doubt that the Petitioner is interested in the availability of religious services as defined in the Law, and in the regulations and case law, as already outlined; moreover, that she wishes to devote her time, energy and talent to that end. How can she be regarded as unfit to serve in this capacity and to represent the residents of Yerucham?

 

            Hardly surprising, therefore, is the Petitioner's grave suspicion that the only possible explanation for her "unfitness" to serve as a member of the religious council is the fact that she is a woman, and nothing else. This suspicion is well-founded, since that very explanation was expressly proferred by the competent parties concerned (see the above-mentioned letter of the head of the department for religious councils, of May 6, 1986), and we shall further elaborate the point below.

           

            16. It was also explained, in paragraph E. of the decision of the Committee of Ministers, that even if the religious council is an administrative body in theory, it is in actual practice a body that deals with matters of religious principle, affecting classic halakhic issues. This explanation is unclear and hard to comprehend. The religious council indeed deals with matters of religious principle affecting classic halakhic issues; but does this preclude the Petitioner from contributing to this great and important task her own experience and wisdom? The elaboration of this explanation (ibid, par. E) - that the religious council also deals with the halakhic aspect of kashrut, marriage registration, ritual baths and similar basic questions of halakha - is most perplexing. These are, after all, clearly matters for religious scholars and halakhic decision. Given the usual composition of many of the religious councils throughout the country, are their members, though male, competent and qualified to decide such matters? We have never heard that expertise in the laws of ritual baths and kashrut is a condition for membership of a religious council. Likewise as regards the competence and qualifications of most members of the religious councils to make decisions concerning the setting aside of tithes, the problems of the shemitta [sabbatical] year, and other matters of the kind referred to in the decision of the Committee of Ministers. Mr. Mazoz did not know, understandably so, how to defend this reasoning of the Committee of Ministers, and, with all due respect, better it had been left unuttered. If that reasoning holds good, and that were indeed the situation, then the incumbent members of most of the religious councils in the country should immediately be unseated to make way for religious scholars, knowledgeable in law and rite and familiar with the Talmudic sources.

           

            17. The decision of the Committee of Ministers further states that it accepted the apprehension of the representative of the Minister of Religious Affairs, who was convinced that the Petitioner's appointment "would disrupt and impair the functioning of the religious council in Yerucham", and that there was reasonable ground to fear "a complete break in relations between the religious council and the local rabbi and this would stir sharp dispute within the religious leadership in Yerucham". The reason for this grim forecast was the objection of the local rabbi to the Petitioner's appointment "in light of her views and position on the subject of religion and state, as publicized by her in the media". The representative of the Minister explained that it has been the tradition for forty years, ever since the establishment of the State - because of the strong ties between the rabbinate and the religious council - that women do not serve on this body. Also that for some time now calls have been made for reform and that the matter is under consideration, hence - so it is stated in the decision of the Committee of Ministers - the present decision in the matter of the Petitioner's exclusion from the religious council, should not address general principle but confine itself specifically to the composition of the Yerucham religious council.

 

            18. These apprehensions, some of them convincing to the Minister's representative and the Committee and some of them seemingly reasonable, must be seriously considered and carefully examined. Before doing so we must comment that we find one of the disqualificatory grounds mentioned in the above extract from the decision of the Committee of Ministers, very strange, to say the least. What are those views and perspectives of the Petitioner on matters of religion and state, said to have been publicized by her in the media, which generated the fear of all the anticipated mishaps? In all the abundant material before us we found no mention of these views, no one bothered to explain to the Petitioner and her counsel what was at stake, and certainly no one asked the Petitioner any question about the matter. Even counsel for the state was unable to enlighten the court in this regard. Since we do not know the particulars, it is unnecessary to ask since when do one's views and attitudes on the relationship between state and religion disqualify him from membership of a religious council. We take a grave view of the inclusion of this passage in the decision of the Committee of Ministers, without even bothering to explain the matter. This not only does injustice to the subject, but also injury to the Petitioner, and the controversial statement should never have been made. We return to discuss the fear that the proper functioning of the religious council might be impaired, along with the relations within the local religious leadership.

           

            19. It accordingly seems clear that the above-mentioned fears stemmed from the proposal to include a woman among the members of the religious council. We find no other factor to justify these fears, considering the Petitioner's personality, her way of life and the many virtues with which she has been endowed. One may assume that the Petitioner's gender was the underlying reason for the local rabbi's objection, even if he refrained from so intimating. On the other hand, this ground is perhaps more than hinted at in the reasons given by the representative of the Minister of Religious Affairs, and by the Committee of Ministers, for accepting the contentions of the local rabbi. These reasons refer to a tradition that would exclude women from religious councils, and it is added that the matter is being studied following various calls for reform; also that meanwhile the Petitioner's case was not decided on "principle", the decision affecting only the Yerucham religious council. This is mere semantics without real substance. Since we have found no justification for the Petitioner's disqualification from service on the religious council of Yerucham other than the solitary contention concerning her gender, the decision of the Committee of Ministers to disqualify the Petitioner was necessarily one of principle. In matters such as these it is not the phraseology that counts, nor is the nomenclature assigned by the Committee of Ministers decisive, only the substantive content-which here is clear from the circumstances (see H.C. 392/72[10], at 773). Several events that preceded the decision of the Committee of Ministers further support the conclusion that the Petitioner's gender was the reason for her exclusion from the religious council, as we shall presently see.

 

            20. We have said that a religious council established in accordance with the Jewish Religious Services (Consolidated Version) Law is an administrative body, the composition of which is subject to the pertinent statute and case law (see, in particular, H.C. 568/76[7]). Hence the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of gender. This fundamental principle was laid down in the Declaration of Independence, and is among those that have gone beyond recognition in the case law to become enshrined in legislation. I am referring to the Women's Equal Rights Law, 5711-1951, section 1 of which reads as follows:

           

            The law shall apply equally to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act. against a woman as woman, shall be of no effect. *

           

            The Law provides further that it shall not "affect any legal prohibition or permission relating to marriage or divorce" (section 5). Also that it "shall not derogate from any provision of law protecting women as women" (section 6, to which we shall presently refer).

           

            It has been ruled that the Women's Equal Rights Law has the same status as an ordinary statute, with no special standing in the technical sense, so that it can be repealed or amended by an ordinary legislative act of the Knesset (C.A. 337/ 61[11], at 408-409). Nevertheless, by substance and character -

 

            ...This Law is not like any other ordinary Law! We are looking at an ideological, revolutionary Law that changes the social order; its name and its first "programmatic" section indicate that - except for the reservation in section 5 - the Law sought to uproot any matter in which women suffer a legal disadvantage under existing law...

(Per Silberg J., H.C. 202/57[12], at 1537.)

 

            The Women's Equal Rights Law has been given a broad interpretation, in light of its substance, and the words "legal act" in its first section are intended to refer to any legal act affecting a woman, whether she is the subject of the act or its object. The Law guarantees women

           

... equal status before the law not only in terms of competence with regard to an "act", in the narrow sense of the word, but in all legal respects.

(C.A. 337/61[11], at 406, per Witkon J.)

 

            As aforesaid, there may be situations where the principle of equality between the sexes will not apply, for instance, in matters of prohibition and permission relating to marriage and divorce, or where the purpose of the statute is to protect women as women. In the words of Witkon J. (ibid. [11], at 407):

           

            When we seek to examine the meaning of this provision in light of the provision of section 1 of the Women's Equal Rights Law, we must emphasise the word discriminate. Discrimination - as this court has often stated - does not mean every difference or distinction in the law or in its application to different persons, but only a difference that is based on irrelevant distinctions. "The essence of discrimination is that it distinguishes between different people just because they are different, even though the difference between them is immaterial and does not justify the distinction" - so it was held in The Committee for the Protection of Nazareth Lands v. Minister of Finance, H.C. 30/55. And consider further Weiss v. The Legal Council, H.C. 92/56, as well as other sources.

 

And in the words of Agranat P. (F.H. 10/69[13], at 35):

 

This court has held more than once that one must always distinguish - both for the purpose of statutory interpretation and as a standard for the reasonableness of the administrative action of a public authority vested with discretionary power - between wrongful discrimination (hereinafter "discrimination") and permissible distinction. The principle of equality, which is none other than the converse side of the coin of discrimination, and which the law of every democratic country aspires to realise for reasons of justice and fairness, means equal treatment of persons between whom there is no substantial difference that is relevant for purposes of the matter in issue. If they are not treated equally there is discrimination. On the other hand, if the difference or differences between different people are relevant to the purpose under discussion, then it will be a permissible distinction if they are treated differently for that purpose, so long as the differences justify this. The concept of equality in this context thus means relevant equality, and for the purpose concerned, requires an equality of treatment for those characterised by the situation mentioned above. On the other hand, there will be a permissible distinction if the difference in the treatment of different persons stems from their being in a situation of relevant inequality, having regard to the purpose of the treatment, just as there would be discrimination if it stemmed from their being in a situation of inequality that is not relevant to the purpose of the treatment.

 

            Classic examples, in legislation and in the case law, of such distinctions stemming from real differences between men and women, are those relating to pregnancy, giving birth and nursing (see the recent Equal Employment Opportunities Law, 5748-1988, section 3).

           

            One may note the gap in some areas between the declaration as to women's equal rights and the actual implementation of this principle. Opinions are also divided as regards a limitation upon privileges for women, between advocates of special treatment and those advocating greater equality. The matter has been extensively discussed and researched (see, for example, R. Ben-Israel, "Equal Employment Opportunities for Women", 4 Tel Aviv University Studies in Law (1978-79) 142; F. Raday, "Equality of Women and Israeli Law", 27 The Jerusalem Quarterly (1983) 81; H. Shahor-Landau, "Equality for Working Women in the EEC Law and Lessons for Israel", 13 Mishpatim (5743-44) 457 (in Hebrew)). Some of these matters have been regulated by recent legislation of the Knesset - among others, the Equal Retirement Age for Male and Female Workers Law, 5747-1987, and the Equal Employment Opportunities Law.

           

            21. Can one justify the disqualification of the Petitioner from membership of the religious council of Yerucham, despite her lawful nomination by the local authority, on one of the above mentioned grounds for disregarding the principle of women's equal rights? The answer is negative. Discrimination on the basis of religious-halakhic considerations is allowed in matters of marriage and divorce, but such considerations do not operate here. Counsel for the Petitioner agrees that if the religious council were a halakhic body with the function of deciding halakhic questions, the candidates nominated for such a body should meet the requirements of the halakha and the qualifications for halakhic decision-making. However, the religious council is not such a body, but rather an administrative body charged with satisfying religious needs. It follows that even if a woman could not serve on such a body from the halakhic point of view (which is not so according to the opinions of many great scholars, as we shall presently see), this consideration does not pertain to the composition of an administrative body, where the qualifications of its members must be determined solely according to the relevant legislation and case law of the general legal system.

 

            Needless to say, the Petitioner was not disqualified from membership of the religious council in order to protect her as a woman, and her disqualification accordingly constitutes a distinction that is irrelevant to her being a woman, amounting to wrongful discrimination.

 

            22. We must still consider whether those grave fears expressed by the representative of the Minister of Religious Affairs, and in the decision of the Committee of Ministers, serve to outweigh the interest in the fundamental right of women's equality. For we adhere to the rule that fundamental rights are not absolute but relative, that their existence and preservation call for a proper balance between the different legitimate interests of two individuals or of the individual and the public, given that all the interests are founded in and protected by the law (H.C. 148/79[14], at 172; P.P.A. 4/82 (M.A.) 904/82) [15], at 210; H.C. 114/86[16], at 490-491).

 

            After due consideration and deliberation I conclude that given the issues and the facts in the present case, the scale does not tip in favour of those grave fears pleaded by the Respondents. Non-discrimination against a woman, because she is a woman, is a fundamental principle of the legal system in Israel. To warrant the subjection of this fundamental principle to such a balancing process, it should have been contended, at least, that a woman's membership of a religious council is forbidden from a halakhic point of view, with the result that such an appointment would bring the work of the religious council to a standstill. Had this argument been made, there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites. None of the Respondents, however, contended that it is forbidden for women to serve on the religious council, nor was this mentioned in the decision of the Committee of Ministers. Even the local rabbi, the only person to object to the inclusion of the Petitioner in the religious council, does not explain his objection on grounds of a halakhic prohibition, but in terms of unsuitability and non-representation of the bodies interested in the maintenance of the religious services. The Minister of Religious Affairs and his representative on the Committee of Ministers spoke of a "tradition", evolved from an understanding over a period of forty years, "not to propose women as candidates for membership in this body", hence - so it was said in the decision of the Committee of Ministers - the objection of the Minister, and the objection

 

of the Committee which adopted his position, do not constitute a principled decision not to include women in the religious councils. It is true that at an early stage, on May 6, 1986, the head of the department of religious councils wrote to the Petitioner that "it is not possible" for a woman to be a member of a religious council, but this style of speech changed afterwards. Following the appointment of a new Minister of Religious Affairs, the Petitioner was invited to the Minister, and was informed by his adviser on women's affairs, Mrs. Lichtenstein (paragraph 27 of the petition) -

 

... that the Minister had decided to agree to the appointment of the Petitioner, but the Petitioner was asked to refrain from making the decision public for two weeks. Mrs. Lichtenstein asked the Petitioner to delay the filing of her petition [before the High Court of Justice - M.E.] until March 11, 1987, saying that by this date the matter would be taken care of. The Petitioner agreed to Mrs. Lichtenstein's requests.

 

            The Petitioner attested to the truth of these facts and they were not refuted by the Respondents. Why was the promise made to the Petitioner by the Minister of Religious Affairs, through Mrs. Lichtenstein, not kept? The Petitioner answers this question in another affidavit, submitted in M.A. 279/87, on July 21, 1987, as follows:

           

2. On March 9, 1987 there was a meeting of the Chief Rabbinate Council, and the question of the service of women on religious councils was raised at this meeting. The Chief Rabbinate Council adopted a resolution that women are not allowed to serve on religious councils.

 

3. This decision was reached a short while before the date on which the Minister of Religious Affairs (Respondent No. 1) was supposed to announce his consent to my appointment to the religious council (paragraph 27 of the Petition). Respondent No. 1 did not announce his consent to the appointment as promised, and the petition was filed on March 11, 1987.

 

4. On a date unknown to me, Respondent No. 1 [the Minister of Religious Affairs - M.E.] asked the Chief Rabbinate for clarification of the matter. The answer of the director of the Chief Rabbinate Council, dated April 9, 1987 - attached as Appendix P/1- was as follows:

 

In response to the question posed by the respected Minister in the matter of Mrs. Shakdiel as a member of the Yerucham religious council, I hereby notify you that the Chief Rabbinate Council rejected this notion and decided that women are not allowed to be permanent members of the religious council.

 

This opinion of the Chief Rabbinate of Israel is an opinion of Torah [religious learning] like all the religious laws prescribed by our rabbis over the generations, and fall within the halakhic rule of compliance with "all that they instruct you".

 

5. It was the decision of the Chief Rabbinate Council, apparently, that prevented Respondent No. 1 from realizing his intention and expressing his consent to my membership of the religious council. This appears from an interview given by Respondent No. 1 on the I.D.F. radio station, on July 9, 1987. The interview followed upon the decision of Respondent No. 1 to appoint the Tel-Aviv Municipal Council's representatives to the electoral assembly for the Tel-Aviv Chief Rabbi, and to include only men on that list. The full interview, as recorded by the I.D.F. radio station, is attached as Appendix P/2, and excerpts from it follow:

 

Z. Hammer [Minister of Religious Affairs]: ...I firmly believe that a woman can and should contribute to the patterns of religious life except in matters in which the halakha does not so permit.

 

Y. Roeh [Interviewer]: ... Such as this electoral body?

 

Z. Hammer: ... No, no, no! The halakha - I do not think it prohibits [a woman's] service on the electoral body or membership of a religious council. But the point is that for many years it has not been so, and when it is necessary to break through in a new direction, there are difficulties ... And I would say that whoever really wants women to enter the sphere of religious life and its administration - that is, within the limits of the halakha, of course - must be patient and help us do it in a way that will be acceptable to the rabbis as well as the chief rabbinate.

 

            The opinion of the Chief Rabbinate was not included by the Respondents in the material before us, nor did they rely upon it in their arguments, perhaps for the reason that even the Respondents do not believe there is any halakhic prohibition against women serving on a religious council, as was clearly acknowledged by the Minister of Religious Affairs in the above-mentioned interview excerpts (and which he did not deny). In fact, as we shall see below, there is much support for the view that there is no such halakhic prohibition. Given this state of affairs, we regret to say that there is no need to exercise further patience and meanwhile deny the Petitioner her fundamental right not to suffer discrimination, all contrary to the provisions of the Women's Equal Rights Law.

 

            23. We hope and trust that the orderly functioning of the religious council in Yerucham will not be impaired by the inclusion of the Petitioner in this body, and that this will not lead to a "complete break" between the religious council and the local rabbi, nor create a dispute within the Yerucham religious leadership. The local rabbi apprehended that the Petitioner might not be fit to serve as a member of the religious council. I am sure that once the respected rabbi comprehends the laudatory intention and acts of the Petitioner to promote the religious services in Yerucham, he will have only praise for her activity - as the wisest of all men said: "many daughters have done valiantly, but you excel them all" (Proverbs, 31: 29). In our times, when Jewish women are educated and knowledgeable, and most of our children's education - even in the religious schools - is entrusted to female teachers, it is an accepted daily occurrence that men and women discuss together matters of schooling and education around the same table. And there is no reason, whether on ground of halakha, tradition or custom, for the Petitioner not to sit at the table of the discussions of the religious council. Is there anyone more interested than she in the religious fitness of food products and the ritual baths, in the maintenance of synagogues and the dissemination of religious culture?

           

            24. I find confirmation for this expectation-assumption in the letter written by Rabbi David Milgrom in response to our query raised at the end of the hearing. Having regard to the possibility that the petition might be admitted and the order nisi made absolute, we approached the four representatives of the local authority who had been named as members of the religious council in the decision of the Committee of Ministers, asking for their reply, if any, to the petition and material submitted to the court. We did so since one of the four representatives of the Local Council would be prejudiced by having to give up his place on the religious council in favour of the Petitioner, should we hold her to have been unlawfully disqualified. We are especially interested in the detailed response of Rabbi David Milgrom, who wrote, inter alia, as follows:

           

            2. If the order nisi is made absolute in the sense that the Petitioner is included in the composition of the Yerucham religious council, this will be achieved at the expense of excluding one of the members named by the Committee of Ministers.

 

            3. I submit that in such case it would be right to exclude one of the representatives of the Minister or, alternatively, a member of the Labour party proposed by the local authority.

            …

 

            5. I wish to emphasise that in addition to my representing the Shas party on the religious council I also represent the Bnei Hatorah community in Yerucham, in all about one hundred orthodox families who live in Yerucham and I am their sole representative. Naturally, the orthodox community has an especially strong interest in the local religious services.

           

            For this reason Rabbi Milgrom submitted it would be proper for him to continue serving on the religious council, even if the court decided that the Petitioner be reinstated, and that some other representative of the Local Council on the religious council should give up his place on this body, the number of whose members cannot be more than nine. The substance of this submission must be considered by the Committee of Ministers, and we express no opinion on the matter. But we do learn, indirectly, that Rabbi Milgrom, who represents Shas and the ultra-orthodox community in the locality, sees nothing wrong in serving on the religious council together with the Petitioner, if it be so decided; moreover, he wants us to determine that he shall remain a member of the religious council, together with the Petitioner. Rabbi Milgrom is not afraid of disruption or paralysis of the religious council on account of the Petitioner's membership, nor is he apprehensive of any prohibition against serving on a religious council which has a female member. And if this is the view of the representative of Shas and the orthodox community of Bnei Hatorah in Yerucham - and he appears to be the only person bearing the title of rabbi on the proposed religious council - why should we fear that the other members of the council, or the public, might disrupt and paralyse the orderly functioning of the religious council should the Petitioner be elected to serve on it?

           

            25. In summary, it is clear without doubt, from the reasoning in the decision of the Committee of Ministers and from the opinions of the local rabbi and the Minister of Religious Affairs, that their objection (principled or otherwise) to the inclusion of the Petitioner in the composition of the Yerucham religious council, stems from the view of the Respondents that women should not serve as members of this body. That is the underlying view, though some of the Respondents believe that this situation should prevail as a matter of principle in the future too, while some of them hold that it ought to be so for the time being, until it becomes possible to change this state of affairs. Either way, this disqualification and such considerations are improper, and they invalidate the decision of the Committee of Ministers to disqualify the Petitioner from membership of the religious council. The initial refusal to include the Petitioner as a member of the religious council because of her gender was stated clearly and bluntly in the letter written to her by the head of the department for religious councils on May 6, 1986. The refusal was later repeated in somewhat more restrained language by the Minister of Religious Affairs then in office, until finally the incumbent Minister of Religious Affairs has stated that there is no principled halakhic obstacle to women serving on a religious council, though he requests patience until agreement is reached upon the matter by all the parties. It appears that the Committee of Ministers also adopted this position of the Minister of Religious Affairs. This denial of the Petitioner's fundamental right, in anticipation of a process of "maturation" over an unknown and indeterminate period of time (see Minister Hammer's speeches in the Knesset on December 2, 1986 and October 28, 1987) is unjustified, and there is no foundation for disqualification of the Petitioner from service on the religious council.

 

            26. We intimated above that there is strong support within the halakhic framework itself, for the view that the Petitioner, as a woman, should not be barred from membership of a religious council. We shall now elaborate (cf. Me'iri, Sanhedrin 33a). The issue merits inquiry, richly coloured as it is by values that determine the character of the family and the image of society, and it impinges on an area in which the law and the halakha meet. We shall accordingly seek to elucidate the matter as it is reflected in the writings and rulings of the halakhic scholars and thinkers.

           

            The question whether, and to what extent, a woman may serve in public office has been sparsely addressed as such in the talmudic halakha (see e.g. B.T. Berakhot 49a, in relation to women not bearing the crown; and see our discussion below on Sifre, Deutoronomy, Parashat Shoftim, para.157, and Pesikta Zutarta, Pareshat Shoftim). In the Bible, the Talmud and later, there is mention of distinguished female figures - prophets, judges, queens, wise and scholarly (see S. Ashkenazi, Women in Jewish Perspective (2nd ed., 1979/80), especially Part I, pp 115-142; "Women in Jewish Sources", in Hagut - Anthology of Jewish Thought (Religious Culture Department, 1982/3) 25-26). These were isolated phenomena, while the guiding rule - one of great significance in the edifice of the Jewish family over the generations - was: "All glorious is the king's daughter within (the palace)" (Psalms, 45:14), that is, a woman finds respect in educating her children and managing her home, and it is not her way to be involved in public affairs. We find a first, clear and concise expression of this theme in Maimonides' comment on Deutoronomy 17:15 "You shall set a king over you" (Yad, Kings 1:5):

           

            One does not place a woman on the throne, as it was said: "a king over you"- and not a queen, and likewise all offices in Israel - only a man may be appointed.

           

            Maimonides' generalisation with respect to "all offices in Israel" (which might derive from the Sifre commentary on the above verse in Deuteronomy, according to the version before Maimonides - see infra), was disputed among many of the Rishonim* (see infra), but his opinion was accepted in practice.

 

            27. An interesting and wide-ranging debate on the subject took place at the beginning of the present century, in connection with granting women the right of franchise. In our present context the question arose primarily in relation to elections to the institutions of self-government of the Jewish community in Palestine just after the end of the first world war, as well as in different communities in the Jewish Dispersion. It might be recalled that until then women had been denied the right to vote under most world regimes, and only during the latter half of the second decade of this century were women awarded full rights, to elect and be elected, in most of the states and provinces of the United States and Canada, in Russia, England and Germany. In some countries, such as France, this right was awarded only in 1944, and in Switzerland in 1971 (See: L.H Tribe, American Constitutional Law (Mineola, 2nd ed., 1988) 1599; O Hood Phillips and P Jackson, Constitutional and Administrative Law (London, 7th ed. by P. Jackson, 1987) 187; P.W.H. Hogg, Constitutional Law of Canada (Toronto, 2nd ed., 1985) 723; J.F. Aubert, "The Swiss Federal Constitution" Introduction to Swiss Law (Deventer, ed. by F. Sessemontet and T. Ansay, 1983) 1518; Encyclopedia Britannica (vol. 23, 1971) "Women, Legal Position of", at 623-627). We shall refer to this aspect again below. As to the views of the rabbinical scholars in Palestine and in the Jewish Dispersion, these fall into three camps. The majority opinion was that women should not be granted election rights, whether active - that is, the right to vote, or passive - that is, the right to be elected. This was the view of most of the halakhic scholars in the Palestine community (see M. Friedman, Society and Religion (Ben Zvi Publications, 1977/ 8) 146-184) and of the outstanding scholars in the Diaspora; some of the scholars opined that women have active election rights but not passive ones; and a third camp was of the opinion that there was no halakhic impediment to women exercising both active and passive election rights, that is, they are permitted both to vote for and to be elected to public and governmental office.

           

            28. It may be noted that on this matter Rabbi Avraham Yitzhak Hacohen Kook, at the time chief rabbi of Jerusalem and later chief rabbi of Palestine and founder of the chief rabbinate, belonged to the camp that denied women both active and passive election rights. He expressed his view on three occasions in the context of the great debate waged at the time. (See Collection of Essays by Rabbi Avraham Yitzhak Kook (Goldhartz Fund Publications, Jerusalem, 1983/4) 189-194: responsum to the Mizrahi Confederation Committee of 11 Tishrei 5680-1920; also "general response to the many persons who have asked me" of 10 Nissan 5680-1921; and the third time, in "Decision of the Conference of Rabbis of Eretz Israel" of 26 Nissan 5680-1920, which was signed by Rabbi Kook alone. As to variant versions of this decision, see Friedman, op. cit., at 165-167)). Rabbi Kook discussed the matter from three perspectives (Essays, ibid., at 189):

           

a. in terms of the law; whether the matter is permitted or prohibited;

 

b. in terms of the public welfare; whether the people stand to benefit from affirmation of the matter, or from its negation;

 

c. in terms of the ideal; whether our moral cognition negates the matter or affirms it.

 

We must clarify our attitude to these three standards, since I wish this inquiry to encompass people in all walks of life: those wholehearted believers for whom the halakhic ruling is decisive; those for whom the welfare of the nation is decisive, and those who are concerned mainly with the moral ideal per se.

 

            From the legal perspective, Rabbi Kook saw two reasons for opposing feminine participation in public office:

           

Legally speaking I have nothing to add to the statements of the rabbis who preceded me:

 

a. In the Pentateuch, the Prophets and the Writings, in the halakha and the aggada, we hear a single voice, that the duty of the regular public service is imposed on the men because "it is the nature of man to subdue but it is not the nature of woman to subdue" (Yevamot 65b) ... and "all her glory is within (the palace)".

 

b. The endeavour to avoid a mingling of the sexes in public gatherings passes as a beaded thread through the entire Torah, so that the law is certainly against any innovation of public leadership that necessarily leads to a mingling of the sexes in public, in a group or conference, in the regular course of public life.

 

            As to the public welfare, Rabbi Kook advocated maintenance of the connection with the sources of Judaism and the Bible, in the name of which the nations of the world recognized at that time the rights of the people of Israel to the Land of Israel (ibid., at 189-190). And as regards the ideal status of women - that was a vision for the future "of women and mothers, in life in general and in particular ... but this future vision is still entirely unreflected in contemporary cultural life which is rotten from within, though seemingly smooth on the outside" (ibid., at 190).

 

            The above response is characteristic of this great spiritual leader, who integrated in his decisions, along with the halakhic sources, a philosophy on the rebirth of the nation and its return to the Land of Israel, together with a vision for the future, according to his perspective and understanding. He was convinced that it was for the good of women not to be dragged into the whirlpool of public life, and likewise for the good of the nation returning to its homeland. In this manner he sought to persuade also those for whom the welfare of the nation or the moral ideal, rather than the strict halakha, was decisive.

 

            In the two other sources mentioned Rabbi Kook expands the discussion, adducing further reasons for the position he takes. He intimates that even the nations of the world were only then beginning to accept "this modern innovation" of women's suffrage, which was incompatible with the world of Judaism and the special character of the Jewish family. Rabbi Kook perceived the matter thus: (ibid., at 192):

           

The psychological reason for this demand, the call for public elections in the name of women's rights, derives mainly from the miserable status of the masses of women in these nations. If their family situation was as serene and dignified as it generally is among the Jews, neither the women themselves nor the men of science, morality and lofty ideals would demand what they call election "rights" for women, according to the usual formula, which is likely to disrupt matrimonial harmony and eventually must necessarily lead to serious deterioration in national and political life in general. And so, out of the despair and bitterness resulting from the crudeness of men in spoiling family life, it is thought to find succour in some kind of public power of proxy, so to try and mend their faltering domestic situation with little concern for the further stresses thus added, since the whole edifice is already so breached. We have not and shall not stoop to this level, and would not want to see our sisters in such an inferior status. The Jewish home is still a hallowed institution, and we should not dim the radiance of our sisters' lives and allow them to become troubled by the clamour of opinions and controversies in matters of elections and politics.

 

The Jewish woman bases her rights on the delicate content of her special spiritual character, rather than on cut and dried laws formulated in ready moulds, which to her are like iron constraints quite unsuited to her delicate constitution, and which, by her nature, she is generally not strong enough to use, when they cannot even compensate for the damage wrought at the recesses of the spirit that encompass and govern all areas of life.

 

The family is the foundation of our nation, the House of Jacob will build the people of Israel. We are preparing the edifice of the nation - according to our spiritual nature. We are always ready to propound a moral duty to hear the opinion of the woman in every Jewish home, also in relation to general, social and political questions. But the agreed view must necessarily issue from the home, the family as a whole, and the man, the head of the family, is charged with the duty to transmit and make public the family view.

 

            Here too Rabbi Kook notes that there are "great kingdoms that have not yet progressed in this area" and have not granted voting rights to women (ibid., at 193). In his eyes, the meaning of women's suffrage is "to dim the radiance of our sister's lives" with the bitterness and clamour of political life, and this "clamour" and its attendant "obsequies" will lead to "the ruination of domestic harmony".

           

            It is interesting to note the comment made years later by Rabbi Kook's son and spiritual heir - Rabbi Zevi Yehudah Kook, head of the Merkaz Harav Yeshiva - on his father's views concerning women's voting rights (Talks of Rabbi Zevii Yehuda Kook, edited by S.H. Avineri (Ateret Kohanim Yeshiva Publication)):

           

Father, of blessed memory, objected to including women in the election process. The writer Azar complained about this in a small monograph, claiming it was not democratic and respectfully asking my late father to reconsider. The Gaon, Rabbi Haim Ozer [Grodzinski - M.E.] wrote a long paper objecting strongly to women's suffrage, but the word "forbidden" did not appear in it. It is true that those who printed the notice put that word in the heading, but it does not appear in the text itself, because "forbidden" is a responsible term. My late father likewise objected, but did not use the word "forbidden".

 

(See also Friedman, op. cit., at 166.)

 

            29. Rabbi Kook's first above-mentioned letter was addressed to the Mizrahi Confederation, among whose spiritual leaders there were at that time indeed many who advocated giving women election rights, both active and passive. We shall mention here several of these leaders. Rabbi Y.L. Maimon (Fishman), writer and research scholar, later to become the first Minister of Religious Affairs in the State of Israel, wrote:

           

The Mizrahi Confederation in Eretz Yisrael acknowledges the value of the participation of Jewish women in the rebirth of our nation and does not object at all to giving Jewish women the right to vote, neither as a matter of principle, nor on religious grounds.

(Do'ar Ha'yom, 5 Shevat 5680, 25/1/1920; Friedman, op. cit., at 151; note 14; and also at 166.)

 

            Rabbi Y. Nissenbaum defended this position enthusiastically at the second Mizrahi Conference, held in Warsaw in April 1919 (see Hagut, supra., at 77-81). After discussing the political motives affecting the wide controversy over women's suffrage at the time, he stated (at 77-78):

           

For us this question has only national and moral content. The Hebrew people is now in such a situation that it needs to muster all its forces, and it cannot forgo at this time one half of its forces, its women and daughters, leaving them out of all public and national endeavour. All the more so, since this half, consigned as it is to such idleness, is attracted to alien work which only impedes all our Hebrew work! This is the national aspect of our women's issue. And it also has a moral aspect. Now that many Hebrew women have roused themselves to the national resurgence, and seek to participate in all the efforts of our community and our nation, our moral sensibility requires that they be given their sacred wish: to dedicate their powers and talents to their nation. Do men need a national life and women not? Thus we would seem not to have any question about granting women the right to vote. If during all the years of our exile the lives of men and women were equated for the purpose of all penalties, all laws and all deaths, why should not their lives be equal in this period of revival for the purpose of all rewards, all rights and all the nation's work of redemption? ...But among us, followers of Mizrahi, as among orthodox Jews in general, this vital need raises two other questions. The first is religious - whether giving women the right to vote does not violate some religious law that cannot be disregarded; and the second is moral - whether this does not violate some other moral sensibility that should not be taken lightly. This would seem to be the women's issue that is on our agenda and requires a clear and decisive solution.

 

            After reviewing the role of women in Jewish history, Rabbi Nissenbaum went on to say (at 80-81):

           

            It is true that the Sifre comments: "set a king on you, a king and not a queen", and that Maimonides adopts this Sifre as the halakha, even expanding it to say: "likewise all offices in Israel, only a man may be appointed" (Yad, Melakhim chapter 1). But this ruling of Maimonides was not clear to our scholars in France, and they did not decide categorically that "a woman is disqualified from judging" (see Tosafot to Baba Kama 15, Niddah 50, and elsewhere). And from these scholars we may also learn that a woman may competently be chosen to participate in the deliberations of the learned men who clarify the laws, and perhaps even the deliberations of the law makers. Thus they say with respect to Deborah the Judge, that "she used to teach them, the people of Israel, the laws", and accordingly, ipso facto she is competent, by all opinions. Or they say, "perhaps the sons of Israel accepted her over themselves". If so, is "acceptance" greater than "election"? And if a woman is elected as a judge or legislator, perhaps her "acceptance" pertains not only to those who voted for her, but also to the others, for even Deborah was not accepted by all the people of Israel, and she nevertheless judged in her song all those who did not heed her call to fight for the Lord...

 

But I have inadvertently been drawn into the portals of the hsalakha, which I did not think to enter this time but to leave the matter to our esteemed rabbis. If in terms of the halakha the rabbis find no impediment to giving Hebrew women not only the active right to vote - which has already been permitted by the Hassidic rabbis who called upon their followers, and their wives and daughters to take part in the elections to the Polish Sejm (and "should the priest's wife be revered less than the innkeeper's?") - but also the passive right to be elected, then neither, in my opinion, is there any impediment to granting this right on account of our inherent sense of modesty. True modesty will not be affected in any way by the fact that women too participate in meetings and express their views in the governing bodies at the communal, municipal, regional or central levels, or in a Hebrew parliament.

 

            A blunt opinion was expressed at the same time and in the same spirit by Rabbi Y.L Zlotnik (Avida), distinguished research scholar (see A. Rubinstein, Movement in Times of Change (Bar Ilan Publications, 1980/1), at 159-161):

           

I shall now relate to one question that is facing the Mizrahi both inside and outside Eretz Yisrael. This is the question of the right of women to elect and be elected to community and public office.

 

According to the view and opinion of the leaders of official Judaism, it is altogether impossible to agree from the ultra-orthodox perspective to treat men and women equally in relation to these rights, but many people and many rabbis hold a completely different view.

 

This question is now a very actual one. The matter was deliberated in Eretz Yisrael when they wanted to hold a constituent assembly of the local Jews, and they were compelled to accept the position that women could only vote and not be elected. The question is now on the agenda in our country in relation also to elections for the community institutions. It would certainly be easy and convenient for those who wish to show that tradition and the old order are precious in their eyes, to decide dispassionately that women should not be given the right to vote. But anyone who gives the matter serious thought will not rush to make such a decision .

 

It is understandable that a man who lives according to tradition and the ancient customs, accepted and sanctified by the nation with the passage of time, will find it difficult to agree immediately to such a fundamental change in the social order. Nevertheless, a responsible (Mizrahi) Confederation cannot treat these burning questions lightly and solve them superficially without considering all the relevant material.

 

If we look at the matter closely we will find that there is no moral ground to deny women their right to express an opinion on public and community affairs. Factions of the ultra-orthodox community are also known to understand this, hence their eventual agreement to give women active election rights. On the other hand, they do not think it possible for women to have passive election rights, that is, to be elected, because it is not possible for an ultra-orthodox Jew to sit at one table with a woman, this being contrary to the Hebrew modesty.

 

But let us look at things as they really are: even most ultra-orthodox Jews find it impossible in their private and social lives to avoid completely the society of women. There are only a chosen few who are truly capable of averting their eyes from seeing evil; and I can indeed understand and wholeheartedly respect the righteous man who states that because he cannot sit at one table with a woman, he waives his passive election right and does not seek to be elected ... But I cannot understand at all the moral logic of one who declares: "Because I do not want to sit together with a woman, therefore the woman shall not be elected, only myself alone'. Where is the moral content of such a view and statement? And if we cannot rob the individual woman of her right to vote for whoever she wishes, how can we deprive thousands of their right if they find that some woman is the fittest of all for a particular position?

 

And the Mizrahi should make a special effort to enlist the assistance of all sectors of the nation in its struggle for revival. How shall the Mizrahi allow the exclusion of all girls and women from the task of the nation's renascence and from public and community activity? If the Mizrahi were only a small self-contained and self-sufficient group, without outside links and interests, it could restrict its work to its own circle of members alone. But if the Mizrahi wishes to influence other segments of the people, how can it exclude girls and women from public work? After all we can see that the time has long passed since "All glorious is the King's daughter within (the palace)". The Hebrew woman no longer wants to leave all the matters of life and the nation in the hands of the men alone, and if the Mizrahi wants to fight against her, she too will join the struggle to overcome the Mizrahi. We cannot turn back the march of life, so who will gain from this vain and pointless war - the Torah? Judaism?

 

Even in my imagination I cannot picture a Jewish state with laws that limit the rights or constrain the activities of any person.

 

            30. At that time many halakhic scholars in the Diaspora believed that women should not be granted suffrage, among them Rabbi Haim Ozer Grodzinski, of Vilna, Lithuania, a leading responsa writer of his generation, and Rabbi Israel Meir Hacohen of Radin, near Vilna, known as the Hafetz Hayyim, foremost halakhic decider of his generation (see the comment of Rabbi Zvi Yehudah Kook, supra, and of Rabbi Yehiel Weinberg, infra).

           

            Another interesting contemporary debate took place between Rabbi Professor D.Z. Hoffman, head of the Berlin Rabbinical Seminary, an important responsa writer and Judaic research scholar, and Rabbi Dr. Ritter, chief rabbi of Rotterdam. (The debate is quoted in Jeschurun, vol. 6 (a German-language journal, edited by Rabbi Yosef Wohlgemut, 1919) - Hoffman's article at 262-266, and Ritter's at 445-448. Hoffman's article was translated into Hebrew, in The Kibbutz in the Halakha (collection of essays, Sha'alvim Publications) 286-290, but the extracts below are my own translation). As already mentioned, the question of women's suffrage arose at the time also in relation to the leadership of the Jewish communities in the Diaspora (see Friedman, op. cit., at 150; Rubinstein, op. cit., at 159, note 3, and the bibliography cited), and the above debate apparently took place in that context. Rabbi Hoffman's view was (Jeschurun, loc. cit., at 262) -

                

   According to the Talmudic halakha and the later scholarly statements, women should not be granted passive election rights. Active election rights can be given to women once the community so decides.

 

            Rabbi Hoffman based his negation of passive election rights on Maimonides' above-mentioned statement (Yad, Melakhim, supra), which he believed founded on Sifre, Deutoronomy, Shofetim, para. 157, according to a version that was possibly before Maimonides, considering the version found in Pesikta Zutarta (see Jeschurun, loc. cit., note no. 3; and see also the above passage from Sifre, Deutoronomy, in ed. Rabbi Meir Ish Shalom, and notes thereto, as well as in ed. Finkelstein-Horovitz, and notes). Rabbi Hoffman considered this view founded also on other laws, among them that a woman cannot serve as a dayyan [a religious court judge] (shulhan Arukh, Hoshen Mishpat, 7:4). The latter rule is subject to a difference of opinion, the matter depending on the circumstances (see also the commentaries to the Shulhan Arukh on this rule, and specifically in Halakha Pesuka (Harry Fischel Institute Publications, 1961/2) 47-48; Responsa Mishpetei Uziel, Vol. 3, Hoshen Mishpat, 5).

           

            Rabbi Hoffman deals with the question discussed by the commentators - how was it that Deborah served as a prophet and judge? - and with the answer suggested by the Tosafists (Tosafot to Shavuot, 29b; and see below on the responsum of Rabbi Uziel). Interesting are his views on the fact that Shlomzion [Salome] sister of Shimon Ben Shetah, head of the Sanhedrin served as a queen, and was considered by the scholars as righteous (see B.T. Berakhot 48a; Leviticus Rabba, 35:10; and see also B.T. Ta'anit 23:1). Hoffman explains that Shlomzion reigned after the death of her husband, King Yannai a Saduccee who persecuted the Pharisee scholars of the law and abolished their cherished tradition; that she restored the former glory, bringing the Pharisees back into the community and reinstating the tradition of the halakha (see Josephus, Antiquities of the Jews, 13,16, 1-2). Thus he writes (Jeschurun, loc. cit., at 263-264):

           

and it is not surprising, therefore, that a woman was permitted to serve as queen, as an exception to the rule, especially since she thus served according to the will of her husband King Yannai.

 

On the other hand (ibid., at 264) -

 

one cannot find any argument in the traditional sources against permitting women active election rights. It is indeed possible that this is contrary to ancient custom, so that one must take care to obtain the consent of the community as is customary in relation to communal enactments.

 

            Rabbi Ritter took a different view, holding it was true that until then there had been no explicit halakhic discussion of the matter, but -

           

            it is clear that according to custom only men were given the right to vote, and women were never given the right to vote throughout the thousands of years of existence of the Jewish communities.

           

            Hence, he held we cannot change the custom (Jeschurun loc. cit., at 445). Rabbit Ritter went on to cite testimony which, in his opinion, supported this position indirectly (see also the comments of Rabbi Uziel, infra).

           

            31. A completely different approach is found in an instructive responsum written by Rabbi Ben Zion Uziel, to the effect that women have both active and passive election rights. Rabbi Uziel served as the chief rabbi of Palestine and then Israel, during the years 1939-1953, and at the time of the halakhic and public controversy over women's suffrage in the early 1920s, he was the chief rabbi of Tel Aviv and Jaffa. His responsum, published in 1940 (Mishpetei Uziel, vol. 3, Hoshen Mishpat, 6) opens with this comment:

           

I wrote this responsum at the time so as to clarify the halakha for myself, and I did not want to publish it and rule on the question in practice. But now, after the question has become resolved of itself, I decided to publish it to aggrandize the Torah.

 

            The comment, "the question has become resolved of itself", is noteworthy, also in the world of halakhic decision, and we shall discuss it below. The responsum is very detailed and we shall refer to several passages which are generally instructive and illustrative of the paths of decision in the halakha. (The responsum was reprinted in Piske Uziel (selected responsa of R. Uziel on contemporary issues, Rabbi Kook Institute Publications, 1976/7, 44); the following extracts are cited according to the pagination in both the original and the later edition.)

           

            R. Uziel opens as follows (ibid., at 32; at 228):

           

This question became a controversial issue in Eretz Yisrael and it rocked the entire community. Manifestos, adjurations, pamphlets and newspaper articles were published daily calling for the entire preclusion of women from participation in elections. Some rested their argument on religious law and some on preserving the bounds of morality and modesty, and others on domestic harmony, and they all rested upon the same maxim "the new is forbidden by the Torah" [see Responsa Hatam Sofer, Orah Haim, 28, 181; idem., Yoreh De'ah, 19-M.E.]. Unfortunately I do not have at my disposal now all the accumulated material on this question, but we are indebted to that distinguished "receptacle" of the Torah [Rabbi Hayyim Hirschenson], who collected the essence of all that material in volume 2 of his book Malki BaKodesh, and this makes it possible to consider all the prohibitory views within my reach.

 

            The author of Malki BaKodesh, Rabbi H. Hirshenson, was born in Safed in 1857 and was educated in the yeshivot of Jerusalem. He was an eminent halakhist and corresponded with the outstanding rabbis and halakhic authorities of his generation on questions of the halakha. In the second part of his book (Minister Publications, 1921, 12-15, 171-209), he discusses at length the question of women's election rights, reaching the conclusion that they have both active and passive such rights. He thus takes a diametrically opposite position to Rabbi Kook (supra). The correspondence between the two reflects the great respect Rabbi Kook had for him (see Letters of Rabbi Kook, Vol. 4 (Rabbi Kook Institute Publications, 1984/5) 23-25 and at 102-103; Hagut - Anthology of Jewish Thought, supra, at 92-93).

           

            In his responsum, Rabbi Uziel deals first with the question of women's active right to vote, in the following terms (Mishpetei Uziel, supra, at 32-33; Piskei Uziel, supra, at 229:

           

With respect to the first [i.e. the active election right-M.E.], we have not found any clear ground for a prohibition, and it is unthinkable to deny women this personal right. For in these elections we appoint our leaders and empower those we have chosen to speak for us, to manage the affairs of our community and impose taxes on our property, and the women either directly or indirectly accept the governance of these elected representatives, and heed their instructions and their public and national enactments. How then shall we hold the rope at both its ends: to impose on them the duty of obedience towards the nation's representatives and yet deny them the right to elect them? And if we are told to exclude them from the electoral body because they are light-minded and do not know how to choose worthy leaders of the community, we will also say: if so, we should exclude from the electoral body all those men who are lightminded, the like of whom can always be found among the people. But reality shows that in past as well as present times, women are as educated and knowledgeable as men to conduct negotiations, to sell and buy, to manage their affairs in the best fashion. And whoever heard of appointing a guardian for an adult woman without her consent? As for the dictum of our rabbis:

 

            "women are light-minded", (B.T. Shabbat 33b, Kiddushin 80b) it has a completely different meaning; and the statement "a woman's wisdom is only in her spinning wheel" (B.T. Yoma 66b) was merely a nice phrase to evade answering the question a woman had posed, the Talmud itself testifying that this same woman was wise: "a wise woman asked Rabbi Eliezer". And our rabbis stated expressly, "and God made the rib" (Genesis 2:22), teaches us that the Holy One ... endowed the woman with greater understanding (T.B.Niddah 45b). As regards licentiousness, what licentiousness can there be in an individual going to the voting booth and casting a ballot? If we have come to fear this - we will have suppressed all of life, and it will be forbidden to walk in the street or enter any shop, men and women together, or it will be forbidden to do business with a woman because this will lead to familiarity and then to licentiousness, whereas no one has ever said this before.

 

For the sake of domestic harmony? As the distinguished rabbi wrote: "if so, we should also deny sons and daughters who are dependent upon their father the right to vote; whenever the scholars feared antagonism, they compared women to grown sons who are dependent on their father (T.B. Baba Metzia 12a). Still a disputant might say: two wrongs do not make a right. But, in truth, the notion of antagonism is inappropriate here, for difference of opinion will find expression in one form or another, and one cannot suppress his outlook and opinions. In any event, family love that is based on a joint effort is strong enough not to be affected in any way by such differences of outlook.

 

            Rabbi Uziel then analyses the "indirect" reasons given by Rabbi Ritter for denying women also active election rights:

           

The illustrious Dr. Ritter makes an innovation, to deny women the right to vote because they are not a community or a congregation and were not counted in the census of the children of Israel, and were not named as progeny of their families (the text of the article is not before me, but I deduce this from what he writes). Let us suppose that they are not a community or a congregation or a family or part of the census or anything else. But are they not creatures formed in His image and with the faculty of reason? And do they not have common affairs that are pertinent to the assembly of representatives, or the committee that it elects, and the directives of which bodies they heed with respect to their property and the education of their sons and daughters?

 

       Rabbi Uziel sums up this part of his responsum thus (op. cit., at 33; at 229-230):

           

If so, having failed to find any hint of such prohibition, I find no positive reason to object to or to say no to the answer sought by a part of the public. And perhaps it was with reference to such cases that it was said "even if ninety nine urge distribution and one only favours individual snatching, this one is listened to since he spoke the halakha" (Mishna, Pe'ah 4:1). [That is, if ninety nine say that the landowner should reap the grain that he left as pe'ah* and distribute it to the poor, and one says that the poor should take the pe'ah themselves while it is attached to the soil, we heed the one, because that is the law - M.E.] But it is also said: "and the women laid their hands on it"**, to gratify the women (T.B. Hagiga 16), even though it appears to be prohibited [see infra - M.E.]. In any event, in the instant matter, where there is no prohibition and the barring of their participation would seem to them insulting and oppressive, certainly in a matter such as this we should give them their right.

 

            In summary, Rabbi Uziel is of the opinion that there is no halakhic rule, express or implicit, that denies women active election rights. Expressions such as "women are lightminded" and "a woman's wisdom is only in her spinning wheel" should not be interpreted literally. The fear of women mingling in gatherings of men has no validity in the contemporary reality, and the concern about domestic harmony following possible differences of opinion among spouses as to whom to vote for, is unconvincing, because the same situation pertains to differences of opinion among other members of the family. Particularly instructive is Rabbi Uziel's reasoning that the duty to obey and comply with the leadership should not be imposed on a person who lacks the right to vote for the leadership that will direct him: "whoever heard of appointing a guardian for an adult woman without her consent?"

           

            Noteworthy too is Rabbi Uziel's method of adducing "indirect" testimony from the spirit of the halakha, to indicate the desirable decisory policy. According to the halakha a person bringing a sacrifice lays his hands on the head of the animal. On this matter it is said in Sifra, Vayikra, par. 2 "and he shall lay his hands on the head of the burnt offering" (Leviticus 1:4) -"the sons of Israel lay their hands and the daughters do not lay their hands", that is, the rule of laying one's hands on the animal sacrifice does not apply to women. And the commentary continues:

           

            Rabbi Jose said, Abba Elazar told me: we had a calf for a peace offering and we took it out to the women's court (in the Temple) and the women laid their hands on it. Not because the laying on of the hands is their function, but to gratify the women.

 

            And if it is proper so to act with respect to a matter prohibited by law - laying one's hands on the head of the animal sacrifice - all the more so, says Rabbi Uziel, is this proper with respect to giving women voting rights, which is not legally prohibited, whereas "precluding their participation [in the elections - M.E.] would seem to them insulting and oppressive".

 

            Rabbi Uziel then proceeds to discuss the second aspect of the issue-passive election rights, a woman's eligibility for public office. On the face of it, says Rabbi Uziel, an express prohibition is reflected in the statement of the Sifre and of Maimonides (Yad, Melakhim, supra), that "likewise all offices in Israel - only a man may be appointed", and he cites additional authorities to the same effect (ibid., at 33-34; at 230). At first he suggests that since this rule is not mentioned either in the Mishna or the Talmud, and since it is implicit in the works of other scholars of that time (Rishonim) that they did not hold the same opinion, one should not rule according to it. But this did not satisfy him, and he arrived at an interesting distinction between Maimonides' ruling and the issue of passive election rights concerning a woman's eligibility for public office. He holds (ibid., at 34; at 231-232):

           

And if the heart still hesitates on the matter, which is only right since one should not dismiss the Sifre and the ruling of Maimonides on the basis of evidence and nice points not expressly contrary to their opinions, yet one may qualify women for election on a different ground, which is: that this halakhic rule applies only to appointments by the Sanhedrin, whereas here there is no question of appointment only an acceptance, since by way of the elections a majority of the community expresses its opinion, consent and trust as regards the elected persons, empowering them to supervise all public affairs, and even Maimonides admits that there is no tinge of a prohibition in this respect.

 

So too we find that Rabbi Nissim Gerondi wrote (Commentary to tractate Shevuot, at the beginning of chapter 3):

 

and the verse about Deborah, that she was a judge of Israel, does not mean literally a judge but a leader, and despite what is said in Sifre: "You shall set a king over yourselves, not a queen", there they did not appoint her but obeyed her decree; and even if she was a judge, they accepted her in the manner that a person accepts a relative [who is otherwise not qualified to judge the case - Ed].

 

And thus Rabbi Solomon b. Adret wrote: "one should say (that Deborah) was not really a judge but a leader like the judges that judged Israel [that is, led Israel, which is the simple meaning of the term judge in the Book of Judges - M.E.], and even though it is said in Sifre, you shall set a king over yourselves, not a queen, there they did not appoint her but treated her like a queen and obeyed her instructions" (Commentary to tractate Shevuot, at the beginning of the chapter on the oath of testimony). And Rabbi Hayyim David Azulai quotes from the Zikhron Devarim of Rabbi Hacohen Perahyah: "and Deborah was a leader just like a queen", which is what Rabbi Solomon b. Adret said (Birkhe Yosef, Hoshen Mishpat 7:11). From which one learns that the entire prohibition against appointing women to public rule applies only to appointments by the Sanhedrin.

 

For it is clear that even according to the Sifre it is permitted to accept her as a judge, that is, as a leader and she judges in the same way that it is permitted to accept a relative. And therefore, where appointments are made by elections, which is acceptance of the elected persons as leaders, one may by law elect women too, even according to the view of the Sifre and Maimonides. And we have not found anything to the contrary in the statements of the Rishonim.

 

            Rabbi Uziel proceeds to discuss the view, much emphasized in the comments of Rabbi Kook and other scholars on the present issue, that a woman's involvement in public functions violates her modesty, since she becomes embroiled in the turmoil of the public and political debate. He writes (ibid., at 34; at 232) :

           

There is still, however, room for questioning, because even if in terms of the halakha the acceptance is effective and she can be elected under the rule "they accepted her governance", yet in terms of morality and the bounds of modesty, perhaps the matter is forbidden?

 

            The answer Rabbi Uziel gives to his own question is a lucid illustration of halakhic policy in decision-making:

           

Reason would have it that there is no licentiousness in any serious conference or useful discussion, and every day men meet with women on commercial business, and negotiate with each other, and none of this produces any alarm or outcry. And even those given to sexual abandon do not contemplate forbidden acts while they are seriously bent on their business affairs. And the admonition of our rabbis "do not converse too much with a woman" (Mishna, Avot 1:5) refers to unnecessary idle talk, it being this kind of conversation that leads to sin. Not so, however, as regards a conversation or debate about important public affairs; and sitting together for the purpose of public work, which is divine service, does not engender sinful habits or lead to levity, and all Israel, men and women are holy and are not suspected of breaching the bounds of modesty and morality. In answer, do not quote this statement of the scholars: "at first women sat within and the men were without, and were led to levity, so they instituted that women should sit in the gallery and men below" (Sukkah 50a). This was said with reference to a mass gathering of both worthy and licentious people together, in which case we are apprehensive of the licentious minority, especially when they are immersed in the festivity and ruled by the evil inclination. But this was not said in reference to a gathering of elected representatives, whom it would be wrong to portray as sexually licentious, and the like of which Israel shall not know.

 

Rabbi Uziel ends his responsum thus: (ibid., at 35; at 234:

 

Conclusion: A. A woman has a full right in elections so as to come under the disciplinary duty owed the elected persons who lead the people. B. A woman can also be elected if so consented to and enacted by the public.

 

            32. Rabbi Uziel's responsum was apparently written during the 1920's, but was published only in 1940, at which time - so it was stated at the beginning of the responsum -"the question had resolved itself". That statement was largely true, but not entirely so. In this respect it is illuminating to look at two brief responsa written by Rabbi Yehiel Weinberg, a prominent responsa writer of his generation, who served with the Hildesheimer Rabbinical Seminary in Berlin and later resided in Montreux, Switzerland. The first responsum, written in 1932, reads as follows (Responsa Seridei Esh, vol. 2, 52):

           

And in the matter of women's election right - in the Halakhic Commission of the Association of Rabbis in Germany I showed that in terms of religious law there are no grounds to prohibit suffrage, and I refuted the evidence brought by the great teacher, the late Rabbi Hoffman. In any event we all agreed that the election of women is against the custom in Israel as well as the Israelite morality in public life, which always tried to preserve "all glorious is the king's daughter within (the palace)", since the Jewish woman should guard her home and the education of her children, and should not be vociferous or a gadabout to squander her strength, destroy her modesty, and lose her charm and appeal through political and public disputes and quarrels.

 

It is, therefore, certainly appropriate to do all that is possible to prevent the participation of women in the leadership of the communities as well as in the elections. However, the peace and unity of the community should not be broken, if its powerful and persuasive members prevail to introduce suffrage. But in principle one should not depart from the ruling of the late Rabbi David Hoffman, who was a great teacher, and the only one to write words of reason founded on the rabbinical sources.

 

            According to Rabbi Weinberg, Jewish religious law accords women both active and passive election rights. But he considers the election of a woman to an office of community leadership as "against the custom in Israel", so as not to lead her into political and public disputes and quarrels, and it is therefore appropriate, in his view, to abide by the decision of Rabbi Hoffman, who supported giving active but not passive election rights. He adds, however, that if those in favour of giving women also the passive election right prevail, it should not be opposed so as not to disturb the peace and unity of the community.

           

            Nineteen years later, in 1951, Rabbi Yehiel Weinberg wrote his second responsum on the same subject (ibid., vol. 3, at 105):

           

With respect to his question on women's election right, Rabbi D.Z. Hoffman allowed them to vote but not to be elected; but the rabbis in Eretz Israel, as well as the Hafetz Hayyim and Rabbi Hayim Ozer Grodzinski and others, barred the active election right too. And Chief Rabbi Uziel, in his Mishpetei Uziel, permits women both to vote and to be elected. And why should I thrust myself into the controversy between those who permit and others who prohibit; let time take its course and resolve the matter. Those who prohibit have a moral ground, that it violates modesty for a woman to deal with affairs of the public and the community. And they also bring suporting testimony ... and it is sought to reject and dispute. But there is no benefit in the disputation, for the matter has deeper implications.

 

            This passage is instructive. The writer acknowledges the difference of opinion on the matter, yet does not wish to enter the controversy, nor considers it necessary. In this responsum he no longer supports Rabbi Hoffman's view that in terms of the religious law women do not enjoy the passive election right. His decision is - "let time take its course and resolve the matter".

           

            That expression should not be regarded as an evasion of the decisory duty; rather it embodies one of the methods employed in the world of halakhic decision-making. As is known, custom is one of the halakha's legal sources (in this regard see my book Jewish Law (2nd ed. at 212 ff., 219, ff.; 3rd ed., at 203 ff., 210 ff.). Sometimes custom serves to decide the law where there are different opinions among the halakhic scholars; sometimes it decides the law on a question that has arisen in practice and to which there is no known answer in the existing halakha (a lacuna), and sometimes custom does not merely add to the existing halakha but even alters one of its rules. This latter function of custom is limited to civil or monetary law (dinei mammonot) only, and, with certain exceptions, does not apply to matters of ritual permission and prohibition. Elsewhere I have elaborated further on this subject (see Jewish Law, 2nd ed. at 726 ff.). As for the role of custom in deciding the religious law where there are differences of opinion among the halakhic scholars, it is said in the Babylonian Talmud - in response to the question how to decide the law where the scholars are divided: "go out and see what is the usage of the people" (B.T. Berakhot 45a; Eruvin 14b; see also the Jerusalem Talmud Pe'ah, chapter 5; and see my book, op. cit. (2nd ed.), at 728-730, and the footnotes there). "Let time take its course and resolve the matter", in the words of Rabbi Weinberg, is thus an accepted method of decision according to the custom followed by the public.

           

            33. Another interesting responsum on this issue was given by Rabbi Moshe Feinstein, a leading responsa writer of our generation. He does not discuss the general question of women's election rights, only that of the appointment of a woman to a specific public office, that is, her appointment as a kashruth (dietary laws) supervisor. He relates the facts thus (Responsa Iggerot Moshe, Yoreh De'ah, vol. 2, 44):

           

            In the matter of the widow, the wife of a scholar who was a kashrut supervisor, who has been left penniless and lacking means of sustenance for her orphan sons.

           

            And her being a modest woman and truly godfearing, and also wise, understanding and responsible, whether one may rely upon her to take the place of her husband as a supervisor, in this manner to provide for herself and her sons.

           

            May it please the esteemed scholar to advise me on the matter.

           

            Rabbi Feinstein first discusses the question whether a woman can be trusted to fill the position of a kashrut supervisor, and after a detailed discussion concludes -

           

            that as regards her trustworthiness there is no reason for apprehension, for if she is regarded as a worthy woman, who knows and understands how and what to supervise, she may be relied upon.

 

            Rabbi Feinstein then considers an additional question that arises, i.e. according to Maimonides (as we have already noted) only men can be appointed to public office and "it appears that kashruth supervision is such an appointment". Rabbi Feinstein finds support for this in the Talmudic statement that the task of supervising weights and measures among the merchants is an appointment, "and that is exactly like supervision of kashrut, because what distinction is there between the fitness of weights and measures and the fitness of food under the dietary laws". Rabbi Feinstein makes an interesting distinction between a position to perform a task that is not an appointment to "office", that is, to a position of authority, and a position that is an appointment to office or authority. This is an important distinction because Maimonides' prohibition relates to an appointment to a position of authority and not to a labour in general, which a woman is permitted to do. He writes:

           

And the reason is that the difference between considering one a labourer or as appointed to a position of authority has nothing to do with the importance of the task. But if one was hired to do the will of his workgiver he is a worker even if the work is important, and if he was hired to act also contrary to the wishes of the proprietor, as in the supervision of weights and measures where the proprietor might want him to approve imperfect weights and measures whereas he is appointed to condemn and confiscate them from the proprietor, then he is in a position of authority over the proprietor, since the proprietor is bound to do what the supervisor tells him.

 

And the very same applies to an appointment as kashrut supervisor, for his task is to act even against the will of the proprietor and not to allow him to procure forbidden items. And if so, according to Maimonides, one should not appoint a woman for this task.

 

            Though he concludes that the office of kashrut supervisor is an appointment to a position of authority, Rabbi Feinstein rules that a woman may be appointed to this office. In his opinion, Maimonides' view that only men may be appointed to "office" does not originate from a Talmudic source, but from "his own reasoning", and he shows that the author of the Hinnukh (R. Aaron Halevy, 13th century Spanish halakhist), and the Tosafists, as well as Rashi and Rabenu Nissim all disagree with him, holding it is permitted to appoint a woman to an office of authority. The conclusion is -

           

            therefore, for reason of a great need, for the sustenance of a widow and her orphan sons, one may rely on those who disagree with Maimonides and appoint her as a supervisor in her husband's stead .

 

            In other words, in a situation of "great need", such as the livelihood of a widow and orphans, one may rely on the opinion of those who disagree with Maimonides and appoint her a kashrut supervisor. I might add that Rabbi Feinstein subsequently finds a way to reconcile the appointment also with the view of Maimonides, by making the rabbi himself the formal supervisor even if in fact it is the woman who discharges the function.

           

            A later responsum of Rabbi Feinstein (Responsa, ibid., 45) throws light on the contemporary communal background and the controversy surrounding the issue here discussed. It appears that Rabbi Feinstein's above-mentioned ruling on the woman's appointment encountered opposition from other rabbis, one of whom complained about it in a letter written to Rabbi Feinstein, apparently in strong language. Rabbi Feinstein responds:

           

I do not know why the esteemed scholar needs to apologise for differing from my opinion. Certainly every one must seek the truth according to his own understanding, whether it be lenient or stringent, even if he is a pupil who opposes his teacher's reasoning, all the more so when the disagreement is not between the teacher and his pupil.

 

And if he meant to apologise for the critical language he used against me, it is well known, mercifully, that I am not, Heaven forbid, demanding with anyone, and certainly not with a learned scholar. So I shall confine myself to the substance of the matter.

 

Comments worthy indeed of their author!

 

            34. The question of women's election right also occupied the religious kibbutz movement in connection with the election of female members to fill various "offices" on the kibbutz (see The Kibbutz in the Halakha, supra., at 277 ff.). Kibbutz Hafetz Hayyim, an affiliate of the Poalei Agudat Yisrael movement, posed that question to Rabbi M. Auerbach, whose responsum, given in 1934, was the basis for the directives which were set as a "middle course" between the divergent views, for instance, by distinguishing between the different organs of the kibbutz (ibid., at 285 ff.; and cf. the essay of Rabbi Y. Efrati, at 277 ff., who endorsed this course). A slightly different and more lenient tone was sounded in the essay by Rabbi Yonah Dovrat (ibid., at 291 ff.) and amidst some of the kibbutzim belonging to this movement (see Amudim, Religious Kibbutz Journal, 1955/6, at 16-17). On the other hand, the religious kibbutzim affiliated with the National Religious Movement - which form a clear majority of the religious kibbutzim - give female members the full election right, both active and passive, with reference to all the bodies and institutions of the kibbutz and the movement (see Amudim 1987/8 (month of Iyar) containing the resolutions of the 20th Council of the Religious Kibbutz on the status of women, inter alia "calling upon the Minister of Religions to confirm the election of women as members of religious councils").

 

            Finally we shall mention the opinion of Rabbi M. Steinberg, rabbi of Kiryat Yam, that "women have the right not only to vote but also to be elected to public institutions, because election is not the same as appointment" (Hilkhot Nashim (1983/4)). As authority he cites the ruling of Rabbi Uziel (supra) and explains his reasoning thus (ibid., footnote 5):

           

            Therefore this is not appointment but acceptance, for by virtue of the elections the majority of the congregation voices its consent to the elected representatives acting on its behalf in supervising the public affairs.

           

            (And he also cites the above-mentioned ruling of Rabbi Feinstein that a woman may be accepted as a kashrut supervisor.)

           

            35. The differences of opinion encountered in the course of our inquiry are characteristic of the world of the halakha and, moreover, should be seen as integral processes of thought and decision-making, and reflective of the primary rule and guiding principle long ago determined in the Talmudic disputation between the academies of Hillel and Shammai: "both these and those are the words of the living God" (Eruvin 13b). I have discussed elsewhere the origin of this phenomenon and its import in the world of the halakha (see M. Elon, Jewish Law (2nd ed.) at 870 ff.) and shall not elaborate here. One of the characteristics of the ancient halakha, as it has come down to us, is its anonymity and uniformity; the halakha as decided in the Sanhedrin by majority vote, became the general ruling of the entire Sanhedrin. Towards the close of the period of the Zugot* (at the beginning of the first century) there was increasing difference of opinion in all branches and fields of the halakha, with not only theoretical but also practical implications, each school acting according to its own ruling. External political forces, and internal factors (the dispute between the Pharisees and the Saduccees, and the differences of opinion among the Pharisees themselves - between the Houses of Shammai and Hillel) divested the halakha of its directive and regulatory authority, as well as its decision making capacity:

 

 

            When the disciples of Shamai and Hillel who had not studied diligently, increased, disputes multiplied in Israel and one Torah became as two.

(T.B. Sanhedrin 88b; a slightly different version appears in the Jerusalem Talmud, Sanhedrin 1:4 and 8:2.)

 

            These disputes introduced the phenomenon of a practical pluralism in halakhic decision. At first, during a certain period, this was a tolerable situation (Tosefta, Yevamot 1:111; Mishna, Yevamot 1:4; Mishna Eduyot 4:8), but this pluralism could not endure, and differences of opinion in various areas of family law and the laws of purity and impurity led to bitter dispute, threatening to divide the nation (See Jewish Law, supra, at 872-874). One generation after the destruction of the Second Temple (at the beginning of the second century), with the consolidation of the new center of study at Yavneh, headed by Rabban Gamliel the Younger, the unity of the halakha was restored in practice -

           

            and at Yavneh a heavenly voice was heard, saying: both these and those are the words of the living God - but the halakha is according to the House of Hillel.

           

            And with this decisive determination, that the system of the "halakha cannot tolerate pluralism in actual practice, the principle of a pluralism of views in the halakha, was recognized. Though conceptually, "these and those are the words of the living God", yet for practical purposes -

           

            what was it that entitled the House of Hillel to determine the halakha? because they were kindly and modest... [tolerant - according to Rashi; see Jewish Law, supra, at 874-875, ff.]

           

            36. I am not a halakhic decider, nor the scion of such, and I know all too well that that title does not befit me. But there is the Torah, and I must study it. And I wrote as I did on the halakhic discourse for no other reason than to study, and to draw from the springs of our scholars, whose wisdom we imbibe and by whose mouths we live. And I too, if it were at all possible, would follow the example of the late Chief Rabbi Uziel, keeping what I have written to myself, to be published at some other time. But what choice have I, when the decision on the sensitive and complex issue before us entails deliberation of the halakhic discourse and clarification of the opinions of our rabbis on the subject, one that continues to stir public debate. This is not, therefore, the time for a "hidden scroll".

 

            Consider the wisdom of Rabbi Weinberg's perspective on this controversy, to "let time take its course and resolve the matter", for time has indeed brought resolution. Thus, the three luminaries of the previous generation, all considered and held that women were not even entitled to the active election right, namely: the former Chief Rabbi of Eretz Israel, Rabbi Kook; the most prominent of the responsa writers in the lands of the Dispersion, Rabbi Hayyim Ozer Grodzinsky; and the greatest halakhic authority of his generation, the author of the Mishnah Berurah, Rabbi Yisrael Meir Hacohen of Radin (known as the Hafetz Hayyim). Many other rabbis and scholars also held the same view. But time has wrought changes to resolve the issue otherwise. In all the observant communities, without exception, among Hassidim and Mitnagdim, ultra-orthodox and national-religious, in all their camps and factions, women participate in all the elections for the state institutions and organs. And we have not heard, for many years now, of any halakhic authority warning religiously observant Jewish women against voting on the ballot day. That is the custom, and no one sees need any longer to ascertain what the practice of the public is.

 

            Rabbi Weinberg's above-mentioned statement pertained also to the passive aspect of women's election right, that is, their eligibility for public office. Here, too, it seems that time has resolved the matter for the majority of the observant community: religiously observant women have served as members of the Knesset; they have served and continue to serve as members of local authorities and discharge a variety of public functions, thus conducting themselves consistently with the view of great halakhic scholars, as explained above. It is true that in some sectors of the religious public, women do not serve as members of local authorities and in similar public offices. But how can one deny a religious woman this right, if she wishes to follow the opinion of leading scholars who permit the election of women to public office, as well as the practice of many hundreds of Jewish women who keep the Torah and its commandments yet serve in a variety of public offices? And is it possible to say in this day and age that a woman who sits in the Knesset, or on a local council or a kibbutz secretariat, is lacking in the modesty that befits a daughter of Israel? Thus we see all the matters and premises stated in the instructive and detailed responsum of late Chief Rabbi Uziel realized in practice.

 

            The Petitioner seeks to take her place among the members of the religious council in Yerucham, and the Local Council, i.e. the public, chose her and proposed her candidacy for that office. The religious council, as we have seen, exercises no halakhic authority whatever, it makes no halakhic decisions and - having regard to the male component of its membership - it is incapable of making halakhic decisions. For the first requisite for ruling on the law is to study and know the Talmud and the halakhic codes, and to have the appropriate qualifications for so doing. All that the religious council does is to provide religious services, construct and maintain ritual baths, facilitate study of the Torah and Judaism by the public, and also see to proper arrangements for observing the dietary laws. And if it is permissible for a woman who is known to be observant to act as a kashrut supervisor - as we saw in the responsum of Rabbi Feinstein - shall it be forbidden to the petitioner to see to the budget and other requirements for maintaining proper kashrut arrangements in Yerucham?

 

            37. I have not overlooked the opinion of the esteemed Chief Rabbinate Council, that women may not be permanent members of a religious council. We all hold dear the dignity and standing of this supreme state halakhic institution, which is headed by the two chief rabbis of the State of Israel and whose members are learned halakhic scholars. And I reiterate that all I have written is for no other purpose than to elucidate and deliberate concerning the halakhic discourse. To this end, I have cited the opinion of authoritative halakhists, the Chief Rabbi of Eretz Yisrael and other rabbinical scholars, all of whom hold that a woman may serve in public office if elected thereto by the public - with which view the Chief Rabbinate would seem to disagree. With great respect, however, I venture to suggest that perhaps the Chief Rabbinate Council does not really differ from those who believe that a woman may serve in public office, but believes that it is the function of the religious council to deal also with halakhic aspects of the provision of religious services. I find support for this suggestion in the fact that the Committee of Ministers likewise erred in this respect, which was one of the reasons for it deciding as it did, as I explained in detail above. And if that is indeed the case, and there is ground for my supposition, it is possible that the Chief Rabbinate Council may want to reconsider the matter of the Petitioner's seat on the Yerucham religious council.

           

            38. Before concluding I might profitably mention a comparable phenomenon of halakhic controversy and debate on a related issue coming to the fore in recent generations. I refer to the matter of women studying the Torah. I have already had occasion to discuss the issue in this court (S.T. 1/81, Nagar v. Nagar [17]), in relation to the duty to teach and educate sons, which is imposed equally on the father and the mother, and I shall retrieve from that decision some of its main points of interest in the instant context.

           

            According to the halakha in the Mishnah and Talmud, the father must teach his son Torah, and the woman is exempted from this obligation. The explanation for this rule is that the father, who is himself obligated to study the Torah, must likewise teach his son; but the woman, who is not herself obligated to study Torah is accordingly not obligated to teach her son. And women are not themselves obligated to study Torah, because others are not enjoined to teach them Torah, as we learn from the verse, "And you shall teach them to your sons" (Deutoronomy 11:19), which the rabbis interpreted - "not to your daughters" (Kiddushin 29a, Mishna and Talmud). And Maimonides summarizes the rule thus (Yad, Hilkhot Talmud Torah 1:1):

           

            Women... are exempt from studying the Torah; but the small son, his father must teach him Torah, for it is said: "and you shall teach them to your sons and speak of them". And the woman is not obligated to teach her son, for whoever is obligated to study is obligated to teach.

           

            As regards the substance of women's exemption from study of Torah, and the farreaching change of attitude that has occurred in latter generations, we stated in Nagar v. Nagar ([17], at 404-406):

           

This "threefold" exemption of the woman - who is exempted from teaching her son and from teaching herself, while the father is exempted from teaching his daughter - has prompted differences of opinion ever since the time of the Tannaim*. According to Ben Azzai -"a man is under an obligation to teach his daughter Torah", whereas Rabbi Eliezer ben Hyrcanus thought otherwise - "whoever teaches his daughter Torah teaches her frivolity" (Mishnah, Sotah 3:4). The reasons for this dispute and for Rabbi Eliezer's harsh comment have been variously interpreted, but we shall not elaborate here ... Various talmudic and post-talmudic sources do indeed speak in praise of wise, scholarly and learned women... but the halakha was decided according to the view of Rabbi Eliezer (see Maimonides, Talmud Torah 1:13; Shulhan Arukh, Yoreh De'ah, 246:6 ...). With the passage of time the prohibition on study by women underwent various and relaxations, whether relating to the nature and scope of the material studied - the written Torah and practical commandments - or to the depth of their study, and so on.

 

A material change of perspective on this socio-halakhic matter has occurred in recent generations, concurrently with the profound socio-ideological changes. The halakhic scholars have justified this change of perspective on various grounds, the extent and nature of the change in approach varying according to the character of the reasoning. Thus a generation or two ago Rabbi Yisrael Meir Hacohen of Radin, author of the Hafetz Hayyim, related to Rabbi Eliezer's statement about the prohibition of teaching Torah to his daughter, as follows:

 

         It appears that all this applies to past times ...

          when the tradition of the fathers was very strong and every one acted according to the way of our ancestors ... we could say that the daughter should not study Torah, but should rely on the guidance of her righteous fathers. But now, when, sinfully, tradition has weakened greatly with the fathers... especially among those whose practice it is to study the writings and language of the nations, it is certainly very meritorious to teach them the Five Books of Moses, as well as the Prophets and the Writings and rabbinical ethics...

(Collection of Halakhot of the Hafetz Hayyim, Sotah, 21.. .)

 

This ruling gained wide acceptance in Israel, both prior to the establishment of the State and thereafter. Rabbi Zalman Sorotzkin, a leading yeshiva figure wrote (Moznayyim La-Mishpat, 1955/6, par. 42):

 

It is only in relation to the study and disputation of the Oral Law that it was said "whoever teaches his daughter Torah...". But even with respect to the Oral Law a woman is permitted to study the final conclusion, without questions and analysis ... It is not the same today as in former times: in former times Jewish households conducted themselves according to the Shulhan Arukh and it was possible to learn all the Torah from experience... But now ... in this generation not only is it permitted to teach Torah and piety to young girls, but it is also an absolute obligation and, as we explained, it is a very meritorious act to found schools for girls and to implant genuine faith in their hearts as well as knowledge of the Torah and the commandments.

 

It is the nature of halakhic decision - as is the case with all adjudication - that it does not detach itself from the existing law but narrows it or distinguishes it from the new law in the making. Hence the restrictive interpretation of the prohibition against teaching one's daughter Torah as applying only to the study and disputation of the Oral Law. A significant proportion of the contemporary halakhic scholars have shed even this reservation. Thus Benzion Firer, rabbi of Nir Galim, was asked whether the heads of the religious education system were correct in teaching the Written and the Oral Law to girls. He responded unequivocally, distinguishing between former and contemporary generations -

 

When the headlong chase after the tree of knowledge has gripped all human beings, men and women alike, who will stand up and stop this mighty current ... For it is inconceivable to prevent girls from studying precisely the Torah and Judaism, every part of it.

 

Rabbi Firer outlines the existing reality:

 

Like it or not, the fact is that the place of the melamed [male tutor] has been taken by the [female] teacher, and this teacher hands down the Torah to the boys and girls in the primary schools ... And, since it is she who imparts knowledge of the Torah in the primary school, and to boys also, it follows that the observance of the commandments by the boys depends on her knowledge. And since, in any event, they regard all the religious laws equally today - those that pertain to her as a woman and those that pertain to her as the teacher of boys... I would wish for all the daughters of Israel to study the Torah ...

(No'am (halakhic publication, Jerusalem), vol. 3, 134.)

 

Also in point is a responsum of Rabbi Moshe Malka, a former leader of the Moroccan Jewish community and present head of the Petah Tikva rabbinical court (Responsa Mikveh Ha-Mayyim, vol. 3, Yoreh De'ah, 21):

 

The dispute between Ben Azzai and Rabbi Eliezer had reference to their times, when the norm was "all glorious is the king's daughter within the palace", and a woman never went outside the home, nor participated in worldly affairs, when her entire enterprise and wisdom were confined to managing her home and educating and raising her sons ... Not so in current times, when women play a large role in all walks of life, penetrate the depths of the secular sciences and occupy the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs ... Rabbi Eliezer would certainly admit that there is no prohibition against teaching her the Oral Law too, so that she may know how to take care and observe all the laws of the Torah that are pertinent to her affairs and work. Moreover, we are actually obligated to teach and impart to her as much as possible...

 

Rabbi Aaron Lichtenstein, head of the Har Etzion Yeshiva at Alon Shvut, writes in like vein ("Fundamental Problems in Women's Education", in The Woman and Her Education" (Kfar Sava 1980/1) 158-159; a question and answer transcript):

 

In my view it is desirable and necessary, and not only possible, to give girls intensive education, even from the sources of the Oral Law, be it because women engage in all occupations, leaving no reason to withhold the Torah from them, or be it because of the statement of the Hafetz Hayyim...

 

...In my opinion what girls need in order to receive a practical religious training far beyond their instruction today, is an intensification of girls' studies, in quantity and in quality and with instruction in all spheres of the Torah...

 

...One should strengthen study of the Oral Law. In practical terms, it would be beneficial to teach them the [Mishnaic] orders of Zeraim, Mo'ed and Nezikin, as well as the relevant minimum of Nashim, Kodoshim and Tohorot. And when we teach, we should do so in depth... I have no objection to teaching girls Gemara [Talmud]... and it should even be institutionalised as an integral part of school studies, in the form of a proper lesson ... and this seems to me to be the recommended course for the daughters of our generation...".

 

            Now the above reasoning in relation to study of the Torah by women, applies a fortiori to the matter here in issue. With respect to the former issue, there is an express rule in the Talmud, generally upheld in the halakhic codes, that a woman is not only exempt from studying the Torah but even forbidden to do so, this rule being derived from the Biblical verse "and you shall teach them to your sons", and not your daughters. But the profound socio-ideological changes experienced in latter generations, has radically altered also the outlook on the issue of women studying Torah, and it has been determined that not only is there no longer any prohibition, but women are even obligated to study Torah; and not only do they study it for themselves, but they even teach it to the sons of others. And if this is the outcome of the controversy concerning women studying the Torah, then the issue of the election of women to public office should have the like outcome, a fortiori, since most rabbinical scholars are of the opinion that the matter is not expressly prohibited in the Talmudic halakha, and some of the codifiers and Rishonim differed from Maimonides' opinion that only a man may be appointed to all public office. And if so radical a departure as abrogation of the grave prohibition against women studying the Torah could result from social and ideological changes, why not a much less radical departure that permits a woman to serve on a religious council? Should we not see Rabbi Malka's assessment of the contemporary situation (supra) -

           

...in current times, when women play a large part in all walks of life, penetrate the depths of the secular sciences and fill the benches of the universities, run offices and own businesses, and have a hand and a voice in the leadership of the state and in political affairs

 

            - as constituting decisive reason to permit modern women to take part in developing and maintaining religious services in their place of residence, by serving on the council charged with implementation of the task? At a time when women actively take part in diverse educational, cultural, social and political pursuits, is not a woman's preclusion from serving on a religious council, in particular, a harsh insult to her dignity and standing, precisely as a religious woman? She may discharge a public function in all areas of social, cultural and political life, but not in a public body that caters to her religious way of life? Is the native-born to be on the earth and the foreign-born in the highest heavens? (T. B. Baba Kama, 42a).

 

            It need scarcely be said that in the world of the halakha we do not discuss purely legal-halakhic questions, in the sense of juridical rights and duties. Rather the ideological and normative values of Jewish religious life are inherent in and inseparable from the subject of the discourse. For we are taught "do not read ways of behaviour [halikhot], but legal rules [halakhot] (cf. T.B. Megilla 28b) and by way of paraphrase we could equally well say, "do not read legal rules [halakhot] but ways of behaviour [halikhot], since legal rules and ways of behaviour come inextricably linked. We have seen clearly reflected - throughout the scholarly passages here cited-in addition to the legal exposition of our subject, also lengthy and detailed discussion of the conceptual implications of Jewish family life; the roles of the father and the mother, of the woman and the man, domestic harmony, the concept of modesty, and so on. All this because examination of these concepts is essential to the juridical-halakhic ruling on our subject. However, these important concepts must be addressed according to both their original significance and their contemporary setting, as we have learned from the passages quoted. Take, for example, this last concept [of modesty - Ed.] and its deep significance in Jewish life, for all persons, as stated by the prophet Micah:

           

            You have been told, man, what is good and what the Lord requires of you - only to do justice, and to love mercy, and to walk modestly* with your God. (Micah 6:8; and see B.T. Makkot 24a.)

           

            It is fitting to cite a passage on the subject written by Rabbi A. Lichtenstein

(see The Woman and Her Education, supra, at p. 158):

 

            The question is, to what extent do we want to perpetuate the original position we find in the halakha or to modify it by legitimate halakhic means, having regard to historical developments. This is a question of outlook affecting not only our present problem but also many others, such as the sabbatical year, the transactions permit**, and so on. When we circumvent the halakha, by halakhic means of course, should we say that the halakha wanted one thing then and now wants another? Or does the halakha still require the same today, except that we cannot meet its standard? To discuss this problem we must consider not only the specific question on the agenda but also the normative ramifications of the problem. When we seek to circumvent the halakha today, by legitimate means, we must ask whether or not it is for attaining a meaningful purpose, religiously and normatively speaking. There is a difference between using a circumvention in order to feed a number of poor women, as in the example of Rabbi Tarfon given in the Jerusalem Talmud (Yevamot, 4:12), or so that someone can gain a few extra pounds.

 

As for the problem of changing or reforming the status of women, if it is feasible to build a sounder and more perfect society, one that is mindful of the values of the Torah and the halakha, then it must be contended that what once was, was suited to those times, but today there is reason to relate to contemporary reality detached from the past. It is impossible to bring back the past-that is not realistic. It is not possible to revive the simplistic naivete of women that was then. Hence it is needed to replace the Ze'ena Ure'ena*, with a tractate of the Mishna, such as Hullin, to teach women more and lend their lives a content closer to that of men, so that women can derive benefit from the existing reality. But to have neither the one nor the other, that certainly is inconceivable. If there is to be neither innocent belief as in past times, nor serious study of the Torah, women will fall between two stools, and that clearly will not be good.

 

            Such is the way of the halakha from ancient times. On this score we wrote elsewhere (see Jewish Law, supra, p. 9; also p. 38):

           

...The history of the Jewish nation is reflected in the history of Jewish law, its institutions and subject matter. For the development of Jewish law was intertwined with the problems that arose in reality, the law and reality reciprocally influencing each other. The halakhic scholars and the community leaders faced a twofold task: on the one hand, a continuing concern to create and develop the Jewish law, and on the other hand, a great responsibility to preserve the spirit, purpose and continuity of the ideas that were central to each legal institution. The performance of this twofold task - to find and determine legal solutions that were founded in the past and also served the many needs of the current generation - is clearly evident to anyone who studies the history of Jewish law in its different periods...

           

            To the above end, the system of Jewish law has drawn upon its own legal sources - those very sources recognized by the halakha as means to create and develop the rules of the system (ibid.). Thus the statements of the responders and codifiers cited above show that they invoke all of the five creative halakhic sources - midrash [exegesis or interpretation], takkanah [regulation or enactment], minhag [custom], ma'aseh [(an act of) precedent], and sevara [logical reasoning].

           

            The status of women in the halakha serves as a classic example of the development of a central subject in the world of Jewish law, the subject being rooted in and intimately tied to daily life and its exigencies, guiding that reality at the same time as it is guided by it. We see, on the one hand, a constant concern for the continued development and creativity of the halakha, and on the other hand, the great responsibility of preserving its spirit, purpose and continuity, along with its central, fundamental values.

           

            39. From the above survey we also discern, incidentally, another facet of the concept of "Israel's heritage", relevant to the interpretation of this concept as used in section 1 of the Foundations of Law, 5740-1980, forming part of the modern Israeli legal system. This is the facet of Israel's heritage-as found in the halakhic sources and as consolidated under contemporary realities.

           

            40. We must now turn to the adjudication of the issue before this court. The decision of the Committee of Ministers to exclude the Petitioner from the composition of the religious council in Yerucham, was founded on erroneous factual premises and on extraneous considerations, and it is therefore null. The Petitioner, having been lawfully elected by the Yerucham local authority as a candidate on its behalf for membership on the religious council, is entitled to inclusion as a member of that council, and we have not found any ground to disqualify her.

           

            We are aware of the sensitivity of the halakhic, social and public aspects of the matter, and are aware of the grave reservations accompanying the matter and which are entertained by those entrusted by law with its determination, who have sought-and justly so-to avoid any ideological or quasi-halakhic confrontation with the halakhic authorities in Israel today. We are also mindful of the possible mishaps, for a certain period, in the orderly and uninterrupted functioning of the religious council. But none of this is sufficient to free us from the decree of the law in Israel, which prohibits discrimination against the Petitioner so as to exclude her from membership of the Yerucham religious council. It is regrettable that notwithstanding the protracted period of discussion of this matter, or the fact that the course for its proper resolution was marked out from both the legal and the public perspectives, there was lacking the courage to make the necessary and inevitable decision. In particular it pains us that no decision was taken in favour of the Petitioner, a result sanctioned by the halakha in the opinion of prominent authorities.

 

          41. We therefore decide that the Petitioner shall be included in the composition of the religious council in Yerucham, as a nominee on behalf of the local authority. As a result, one of the four representatives of the local authority nominated by the Committee of Ministers to serve on the religious council will be required to vacate his seat in favour of the Petitioner. For this purpose, and for this purpose alone, we remit the matter of the composition of the religious council in Yerucham back to the Committee of Ministers, for it to decide - after hearing all the interested parties and considering the balance required in the representation of the different bodies on the religious council - which of the four representatives of the local authority on the religious council shall vacate his seat in favour of the Petitioner. The Committee is called upon to make such decision within thirty days of the delivery of this judgment.

         

          Respondents shall pay the costs of the Petitioner in the amount of NIS 7,500, with linkage and interest increments from this day until the day of actual payment .

         

          BARAK J. I have read the judgment of my colleague, Elon J. I concur in his opinion, of which I would say, as Agranat P. once said (see E.A. 1/65, at 384) "I have read with great interest the instructive, and I might add, courageous, judgment of my learned colleague...". Yet I wish to denote the essentials of my own perspective on the present matter, since we have a difference of "emphasis" in several respects.

         

          1. The decision in the matter of the Petitioner was made by a ministerial committee, acting by virtue of section 5 of the Jewish Religious Services Law (Consolidated Version) - (hereinafter "the Religious Services Law"). Under this Law, the Minister of Religious Affairs nominates 45 percent of the members of the religious council, the local authority 45 percent, and the local rabbinate 10 percent (section 3(a)). Each of the three authorities must express its opinion concerning the candidates proposed by the other two authorities "with regard to their fitness to serve as members of the council and to their being properly representative of the bodies and communities [edot] interested in the maintenance of Jewish religious services (hereinafter referred to as "religious services') in the locality" (section 4). If there is any disagreement between the three authorities, it is referred to a committee of ministers for determination (the Prime Minister, the Minister of Religious Affairs, the Minister of the Interior or their representatives - section 5). In the present case there were differences of opinion, and for this reason the determination of the Committee of Ministers was sought. Under review here, is the validity of the decision of the Committee of Ministers, although we could equally have examined the validity of the list of candidates proposed by the Minister of Religions and that of the local rabbinate.

 

          2. The Committee of Ministers is a statutory body acting by virtue of a Law of the Knesset. The rules of administrative law that apply to all administrative discretion, apply also to the discretion of the Committee of Ministers. Therefore, if it transpires that the act was done in bad faith or from improper motives or other such factors that may disqualify an administrative act, the decision of the Committee of Ministers will be invalidated (per Berinson J. in H. C. 568/76[7], at 679-680). This court's judicial review of the decisions of the Committee of Ministers is the ordinary judicial review which it exercises. The question before us is the legality of the decision. We do not assume the function of a ministerial committee. We examine whether such a committee, acting reasonably, could have reached the decision actually made (cf. H.C. 258, 282/84[19], at 520).

         

          3. It appears from the decision of the Committee of Ministers, that it adopted the considerations urged by the representative of the Minister of Religions (paragraph H of the Ministers' decision, cited in paragraph 11 of the judgment of my colleague, Elon J.). The Minister of Religions on his part took into consideration the objection of the local rabbi and his reasons, noting that he was convinced that "her appointment would disrupt and impair the functioning of the religious council". As for the local rabbi - whose view persuaded the representative of the Minister of Religions and the Committee of Ministers-his objection was based on the fact that the Petitioner is a woman, for which reason the orderly functioning of the council's activities would be disrupted. It was indicated that the chief rabbinate also opposed the appointment. It follows that the decision of the Committee of Ministers to reject the Petitioner's candidacy was founded on the conviction that, being a woman, her service on the council would disrupt its activities. It is true that the Committee of Ministers noted, and this was also the attitude of the Minister of Religions, that the issue was not necessarily to be decided "as a matter of principle". Yet such a principled decision was in fact made, to the effect that if the local rabbi or the chief rabbinate object to the election of a woman to the religious council, in any particular locality, her election should not be confirmed. The question before us is whether that consideration is a valid consideration, one that a reasonable ministerial committee may take into account. The answer is dependent upon the purpose and objective of the Religious Services Law. It is impossible to determine the legality of a particular consideration unless one examines the question within the context of the statute that establishes the body exercising that discretion. A particular consideration may be illegal within the frame of one statute and legal within the frame of another. Every statute sets its own bounds and considerations (see H.C. 241/60[20]; F.H. 16/61[21]). Sometimes it is difficult to cull from a statute's legislative background any identifiable legislative purpose that is relevant to the solution of the problem in hand. In such a case one may assume that the legislature favoured recourse to the customary values of the legal system (see H.C. 73, 87/53[22]; H.C. 262/62[23], at 2113). Thus,

 

...in the absence of an express provision one should not assume that the legislature intended to depart restrictively from principles that are axiomatic...

 (Per Olshan P. in H.C. 163/57[24], at 1050.)

 

            4. The purpose of the Religious Services Law is to fix a framework for the provision of religious services to Jews. For this purpose a religious council is established, which sets a budget and organizes activities for the provision of religious services. All Jews, men and women, religious and secular, avail themselves of these services. It is sufficient to note that the council organizes burial services, which everyone needs, and marriage registration, which every Jew needs if he wishes to marry. Against the background of these activities we have ruled more than once that the qualifications for serving on a religious council are "secular" and not necessarily "religious". Thus, Berinson J. has held (in H.C. 568/76[7], at 679):

           

            The religious council is appointed not by the Torah law but under a statute enacted by the Knesset. This statute does not determine special personal qualifications for members of the religious council, except that they must be "fit" for the position both personally and in terms of their being representative of the bodies and the communities interested in the provision of Jewish religious services in the locality. This being so, I think that it is not this court's function to examine the minute details of the candidates' fitness in terms of the halakha and to impose upon them qualification standards that are not written in the statute.

 

Cohn J. rephrased the same idea as follows (ibid at 680):

 

...The Petitioner and his learned counsel assume as self-evident that a person who is unfit to hold a public office by religious law, should also be disqualified from serving as a member of a religious council under the Jewish Religious Services (Consolidated Version) Law, 5731-1971, which is, as we know, a secular law. It seems to me that the qualifications and competence under the above Law should be determined according to secular criteria, and are in fact a matter for the discretion of the authorities who make the appointments.

 

            Indeed, there is nothing in the Religious Services Law to indicate that only persons learned in matters of the faith and its law may serve on the religious council, and even a person who is not religious is competent, in principle, to serve on the council (see H.C. 191/64[2], at 610). There is nothing in the Law or in its purpose from which to deduce that the halakhic rules of competency are also the legislative standards, and, therefore, even if a woman is not competent to serve as a member of the council according to the halakha, this does not mean that a woman is not competent to serve on the religious council under the Religious Services Law. The two competencies are entirely separate matters. For all that, I am not contending that a religious consideration is extraneous to the Religious Services Law. It is only natural for religious considerations to be relevant to a statute dealing with the provision of religious services. Thus, for example, the religious council provides services in matters of dietary rules and ritual slaughter. It is only natural for these concepts to be interpreted, in the broad sense, according to the halakha, since there is no secular law concerning dietary rules and ritual slaughter. Furthermore, the "religious consideration" is itself subject to judicial review, both as to the very existence of a halakhic consideration and to its content (H.C. 44/86[25]; H.C. 195/64[26]). But that question does not arise in the instant case. The question here is whether the religious laws that determine one's competency to serve as a member of the religious council are the laws that apply within the frame of the statute. To this my response is in the negative, because the statute is secular, it deals with religious services for all Jews - religious and secular alike - and the council itself is an administrative body, which must provide religious services in the most efficient way. In these circumstances - and in the absence of any contradictory provision in the Religious Services Law - there are no grounds to assume that the religious criteria, whatever they may be, are criteria sine qua non. To the contrary: the assumption ought to be that all persons whose personal traits would enable them to perform the task in the optimal way, are competent to serve on the religious council. This test does not negate the competency of any man or woman a priori. All are fit to discharge the function; from among the fit one must choose the most suitable. Therefore, and assuming that all other factors are equal, I would not necessarily find it wrong to prefer a religiously observant candidate over a secular candidate, because one may assume that the former would perform his function better. But it may possibly be otherwise. There may be a secular candidate who, despite his secularity, would perform his function better. It all depends on the circumstances of the matter. Therefore, a woman is competent to serve as a member of the council, and her selection is dependent on her personal qualifications.

           

            5. We have seen that there is nothing in the Religious Services Law to prevent a woman from serving as a member of the religious council. One might contend that it does not follow that to bar the membership of a woman, as such, is unlawful. Hence, what is the source of the rule that disqualification of a female candidate, merely because of her gender, contravenes the Religious Services Law? This conclusion stems, in my opinion, from the general principles of our legal system, in the light of which every law must be interpreted (per Cheshin J. in H.C. 282/51[27]). One of these general principles is that of equality. Every statute must be interpreted in a manner ensuring equality for citizens of the state (see C.A. 507/79[28], at 794; H.C. 114/78, Motion 451,510/78[29], at 806). Landau J. said in this connection (H.C. 95/69[30], at 698):

 

            ... This unenacted concept is of the essence of our entire constitutional order. It is therefore only just - precisely in the borderline cases, where a statutory provision can be construed in two ways-that we prefer the construction that supports and does not undermine the equality of all persons before the law.

           

            And I took the same approach elsewhere (H. C. 507/81[31], at 585), holding:

           

            The fundamental principle that serves as a legislative objective for all actions of the legislative body, is the principle of the equality of all persons before the law ... We must therefore assume that legislative enactments are designed to attain this objective and not to contradict it, and so we must construe them.

           

            Accordingly, we must construe the Religious Services Law in such manner as to guarantee the equality of all persons before the law. Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that the male should not be discriminated against because he is male, nor the female because she is female. This principle is found already in the Declaration of Independence, which states that the State of Israel "will maintain complete equality of social and political rights for all its citizens, regardless of religion, race and sex". The importance of the Declaration of Independence is that it embodies fundamental principles of the regime. It is true that it is not a constitution and it does not have any entrenched force. But it does not follow that it lacks all legal efficacy. To the contrary: it constitutes the charter of the nation's values, since it embraces, among others, several principles that underlie the foundations of the regime as well as a number of basic premises to which legislation must conform. The charter of values has legal effect, since rights are derived therefrom and every law is interpreted in its light. Thus (per Sussman J., H.C. 262/62[23], at 2116)

           

            It determines the way of life of the citizens of the state, and every state authority must guide itself according to its principles.

           

            Indeed, the attainment of equality is the "umbrella-purpose" of each and every statute, and every statute must be interpreted accordingly, so long as there is no particular purpose that is clearly intended to negate this "umbrella-purpose".

           

            6. The principle of equality between women and men found explicit expression in the Women's Equal Rights Law. This statute provides (section 1) -

           

the same law shall apply to man and woman with regard to any legal act; any provision of law which discriminates, with regard to any legal act, against a woman as woman, shall be of no effect.

 

            This provision not merely reiterates and emphasizes the principle of equality that was laid down in the Declaration of Independence - in which respect it is not very innovative - but gives it "teeth", in the sense that any legal directive which serves to discriminate against a woman as such with regard to any legal act, is not to be followed. In this respect one must regard it as "an ideological, revolutionary law that changes the social order ..." (per Silberg J. in H.C. 202/ 57[12], at 1537). It is true that in the absence of a rigid constitution the Knesset may amend and repeal - whether expressly or by implication, wholly or partly - the provisions of the Women's Equal Rights Law, and may enact a discriminatory provision (see C.A. 336/61[11], at 408). Such a provision will of course be given effect, so long as it is understood that it was intended to depart from the fundamental principles of the system, on the one hand, and from the Women's Equal Rights Law, on the other. Such departure may be gathered from the language of the statute and its purpose. In other words, we would be dealing with the interpretation of the new Law. The interpretative process would entail overcoming the presumption in favour of the principle of equality, and the presumption against repeal by implication (full or partial) of statutes. It follows that the discriminatory provision must be phrased in "potent" language, and its legislative history must be clear, in a manner that is powerful enough to overcome the various contrary presumptions that guarantee equality.

 

            7. The assumption as to equality, on the one hand, and the Women's Equal Rights Law, on the other, create a normative "umbrella" under which every statute must be so interpreted that the principle of equality in general, and equality of the sexes in particular, shall be realized. Of course, the language of a statute and its specific purpose might lead to the conclusion that the particular statute was indeed intended to realize special objectives that are not consistent with the principle of equality. The judge, as a faithful interpreter, will give full effect to such a statute and will construe it in the light of such objectives. In order to arrive at this conclusion, however, one must point to "potent" language in the statute itself and a "clear" legislative history, from which one may deduce a rebuttal of the presumption of equality and the presumption against repeal by implication (wholly or partly) of the directive of the Women's Equal Rights Law. In the absence of such indicators, the general assumptions regarding equality and nonrepeal by implication of a statute will stand. Now I am not suggesting that in order to negate the presumption of equality there must be express language to that effect. In my view, even in the absence of such express language the presumption of equality may be negated, so long as this is founded on "potent" linguistic ground and an "unequivocal" legislative purpose. Thus, for example, it seems to me that it would be legitimate discrimination - and perhaps not discrimination but rather distinction - if there were a principled position to appoint only Jews to the religious council. Even though the Religious Services Law does not state expressly that only Jews may serve on the religious council, it seems to me that the "potent" language of the Jewish Religious Services Law allied to its legislative purpose (to provide religious services to Jews), suffice to negate the presumption of equality in this matter with regard to any person who is not Jewish.

 

            8. The Religious Services Law does not contain any "potent" language oriented towards discrimination against women as regards appointments to the religious council, and its legislative history discloses no "clear" basis for a discriminatory approach. It may be assumed that this matter was not even considered. In these circumstances it is to be presumed that the Religious Services Law, too, was intended to realize the principle of equality between the sexes, thus excluding the assumption that this statute was designed to repeal by implication the Women's Equal Rights Law. Each of these premises taken separately, and the cumulative weight of both, lead to the conclusion that appointments to the religious council must be made in observance of the principle of equality. Therefore, each of the three authorities that nominate candidates to the religious council must propose its candidates without violating the principle of equality. Likewise, the Committee of Ministers, which resolves any disagreement between the three authorities, must make its decision in observance of the principle of equality. It follows that the candidacy of a woman should not be disqualified for the sole reason that she is a woman. Each and every candidate must be appraised "on the merits", that is, according to the degree of his or her fitness to serve as a member of the council, on the one hand, and in accord with the representation of the bodies interested in religious services, on the other (section 4). Of course, there is no obligation to appoint a woman to every religious council. If there are no women suitable for the position, there is no obligation to appoint one that is unsuitable. The appointment of an unsuitable woman, for the sole reason that she is a woman, would be an improper consideration. Thus, just as it is wrong to refrain from appointing a woman for the sole reason that she is a woman, so by the same token is it wrong to appoint a woman for the sole reason that she is a woman. The appointment must be on its merits. The decision of the Committee of Ministers did not meet this requirement. It refrained from deciding in favour of appointing the Petitioner for the sole reason that she is a woman. There is no substantial argument that the Petitioner is unfit for the position for any reason, other than her being a woman. Thus, the dominant consideration of the Committee of Ministers was an extraneous consideration, the effect of which, in the existing circumstances is to nullify the Committee's decision.

 

            9. My colleague, Elon J., examines the question (in paragraph 21 of his opinion) whether the Petitioner's disqualification from service on the religious council can be justified on grounds specified in the Women's Equal Rights Law for exclusion of the provision concerning equality. As for myself, I would prefer to leave this matter for further consideration. As I indicated, the instant case involves the interpretation of a statute concerning appointments to a religious council, and to that end, it suffices to rely on the principle of equality that is an element of the "credo" of our state. The reference to the Women's Equal Rights Law furnishes additional grounds for an approach that may be employed independently. It is a nice question, what the law would be were one conclusion reached under the one heading (the fundamental principles) and a different one under the other (the Women's Equal Rights Law). As aforesaid, there is no need to resolve this question, and I wish to leave it for another occasion. Likewise I wish to leave open for further consideration the distinction suggested by my colleague between an administrative body and a halakhic body, since such a distinction creates many difficulties with respect to an administrative body that is also a halakhic body. A person's competence to serve on such a "hybrid" body will also be determined - in the absence of an express statutory provision - by way of construing the pertinent statute in light of its purpose. The halakhic character of the body will be one of the elements, though not the only one, taken into account in interpreting the legislative act. But, as I have said, we do not need to address this question here, and it should be left for another occasion.

           

            10. My colleague, Elon J., examined the position of the Committee of Ministers that there are grave fears concerning the efficient functioning of the religious council if a woman serves on it. He proceeds on the assumption (paragraph 22 of his opinion) that the fundamental right of women's equality is a relative and not an absolute right, and it should be balanced against legitimate interests of the individual and the public. He concludes that the grave fears of the Respondents should not act to tip the balance, since a woman's membership on a religious council is not prohibited by the halakha, and there is therefore no fear that her appointment would paralyse the religious council's work. He goes on to state that had it been contended that a halakhic prohibition bars women from serving on a religious council -

           

            ... there would have been room to seek a balance and compromise between the two poles. For we are concerned here with a religious council which, although a statutory, administrative body and therefore subject to the statutory principles, is also a body whose functions, and its functionaries, are closely associated with the world of the halakha, and it would have been proper to try and bridge the two opposites.

           

            In this respect I wish to note that whatever the nature of such balancing, it cannot be based on negation of the equality principle, and the balance must always be based on the premise of equality. Furthermore, the act of balancing can be done only if there is evidence that the public interest in the maintenance of religious services will be actually affected if full effect is given to the principle of equality. Mere apprehension is not sufficient. It must be shown that insistence on the principle of equality alone will affect the functioning of the religious services. Only if there is actual proof of this, will there be room to consider whether such consideration should be weighed along with the principle of equality. Finally, it will be possible to take such consideration into account only after having exhausted all the legal processes that would ensure the proper functioning of the religous council in full observance of the principle of equality. Striking a balance with the principle of equality is a means of last, not first, resort. Therefore one must first inquire whether all legal measures have been exhausted to ensure that the chief rabbinate (from whom the rule issued that women should not be included in religious councils) shall also act within the frame of the law. One should not forget that the chief rabbis also act within the frame of the law, and the principle of equality which applies to everyone, applies to them too. There is equality even in applying the principle of equality.

           

            M. BEN-PORAT, D.P.: I agree that the petition should be admitted, which is the conclusion reached by my esteemed colleagues, albeit with some differences of "emphasis".

           

          Order nisi made absolute and petition granted as stated in the decision of Elon J.

      

          Judgment given on May 19, 1988.

 

CrimA 111A/99

Arnold Schwartz

v.

State of Israel

 

The Supreme Court Sitting as the Court of Criminal Appeal

[June 7^th, 2000]

Before President A. Barak, Vice-President S. Levin, Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, T. Strasberg-Cohen, D. Dorner, D. Beinisch

 

Application to the Supreme Court sitting as the Court of Criminal Appeals for the stay of the execution of a sentence.

 

Facts: The applicant was convicted in the District Court in Tel-Aviv-Jaffa of two offenses: the commission of rape under section 345(A)(1) of the Penal Law 5737-1977 and the commission of sodomy, an offense under section 347(A) of the Penal Law.  The applicant was sentenced to four years in prison, of which three years were of actual imprisonment and one year was on probation.  In addition the court ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down, at the request of the applicant’s counsel, the District Court stayed the date of commencement of the applicant’s sentence by one month.  The application was brought before Justice Zamir who determined that execution of the prison sentence imposed would be stayed until a further decision was made on the application.  Justice Zamir transferred the application to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before an extended panel of Justices, and the President of the Court ordered consideration of the application before an extended panel of nine justices.

 

Held: The Court held that it would be appropriate to delineate standards for applications to stay execution of prison sentences of persons who have been convicted and sentenced to a prison term and whose appeal is pending.  The Court detailed those standards and considerations and held that while in the specific circumstances of the present case those standards dictate that the execution of the prison sentence should likely not have been stayed, nonetheless, due to the fact that the applicant has been free on bail for a long period of time since the sentence was handed down, and in consideration of the date that had been set for hearing the appeal, the Court did not in fact order the immediate imprisonment of the applicant. 

The Court also considered, in a preliminary discussion, the application of the Public Defender’s Office to participate in the proceeding as a “friend of the court.”  The Court held that the joining of the Public Defender as a “friend of the court” was to be allowed in this case.

Justice Kedmi agreed with the final outcome of the judgment but added qualifying comments.  In addition, Justice Kedmi disagreed with the holding that allowed the Public Defender to be joined as a “friend of the court.”

 

 

Legislation cited:

Penal Law 5737-1977, ss. 43, 44, 87, 87(a), 87(c), 345(a)(1), 347(a), ch. 6, sections B, H.

Basic Law: Human Dignity and Liberty, ss. 5, 10.

Basic Law: the Judiciary, s. 17.

Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996, ss. 21(a)(1)(c), 44.

Bail Ordinance 1944. 

Criminal Procedure Law 5725-1965.

 

Draft legislation cited:

Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522.

               

Israeli Supreme Court cases cited:

[1]     RA 7929/96 Kozali and Others v. State of Israel (not yet reported).

[2]     CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel IsrSC 37(1) 477

[3]     FH 16/85 Harrari v. State of Israel, IsrSC 40(3) 449.

[4]     CrimA 757/85 State of Israel v. Harnoi IsrSC 39(4) 292.

[5]     CrimA 1100/91 State of Israel v. Jeffrey IsrSC 47(1)418.

[6]     MAppCrim 2161/92 Fadida v. State of Israel (unreported).

[7]     MApp 123/76 Ikviah v. State of Israel IsrSC 30(3) 223.

[8]     MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel IsrSC 9 673.

[9]     MApp 2/52 Locksner v. Israel Attorney General IsrSC 1(1) 169.

[10] Mot 118/79 Richtman v. State of Israel IsrSC 33(2) 45.

[11] Mot 156/79 Kobo v. State of Israel IsrSC 33(2) 63.

[12] Mot 132/81 Pitusi v. State of Israel IsrSC 35(2) 817.

[13] MApp 430/82  Michalshwilli v. State of Israel IsrSC 36(3) 106.

[14] MApp 10/62 Cohen v.  Attorney General IsrSC 17 534.

[15] MApp 183/80 Sharabi v. State of Israel IsrSC 34(4) 517.

[16] Mot 52/50 Maatari v. Attorney General of Israel IsrSC 4 414.

[17] MAppCrim 166/87 State of Israel v. Azran and Others, IsrSC 41(2).

[18] MAppCrim 2599/94 Danino v. the State of Israel (unreported).

[19] CrimA 8549/99 Ben Harosh v. State of Israel (unreported).

[20] CrimA 3695/99 Abu Keif v. State of Israel (unreported).

[21] CrimA 4263/98 Luabna v. State of Israel (unreported).

[22] CrimA 3594/98 Ploni (John Doe) v. State of Israel (unreported).

[23] CrimA 1050/98 Siamo v. State of Israel (unreported).

[24] MAppCrim 6877/93 Ploni (John Doe) v. State of Israel (unreported).

[25] MApp 28/88 Sussan v. State of Israel (unreported).

[26] MAppCr 4331/96 ElMakais v. State of Israel IsrSC 50(3) 635.

[27] MAppCr 5719/93 Forman v. State of Israel (unreported).

[28] MAppCr 6689/94 Attias and others v. State of Israel (unreported).

[29] MAppCr 8574/96 Mercado v. State of Israel (unreported).

[30] MAppCr 8621/96 Kuzinski v. State of Israel (unreported).

[31] MAppCr 4590/98 Sharabi v. State of Israel (unreported).

1. CrimA 7068/98 Hachami v. State of Israel (unreported).

[33] CrimA 9/55 Yegulnitzer v. State of Israel IsrSC 9 891.

[34] CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel IsrSC 30(1) 57, at p. 75).

[35] MAppCr 3360/91 Abu Ras and others v. State of Israel (unreported).

[36] CrimA 7282/98 Uda v. State of Israel (unreported).

[37] HCJ 6055/95 Sagi Zemach and others v. Minister of Defense and Others (not yet reported).

[38] HCJ 87/85 Argov and others v. Commander of the IDF Forces for Judea and Samaria, IsrSC 42(1) 353.

[39] HCJ 1520/94 Shalem v. Labour Court and others, IsrSC 58(3) 227.

[40] MAppCr 2708/95 Spiegel and others v. State of Israel IsrSC 59(3) 221.

[41] LCA 5587/97 Israel Attorney General v. Ploni (John Doe) IsrSC 51(4) 830.

[42] MApp 15/86 State of Israel v. Tzur, IsrSC 40(1) 706.

[43] MAppCr 537/95 Genimat v. State of Israel IsrSC 49(3) 335.

[44] HCJ 1715/97 the Office of Investment Managers in Israel and others v. Ministry of Finance and others, IsrSC 51(4) 367.

[45] MAppCr 3590/95 Katrieli v. State of Israel (unreported).

[46] MAppCr 37171/91 State of Israel v. Golden IsrSC 45(4)807.

[47] MAppCr 4092/94 Tioto v. State of Israel (unreported).

[48] CrimA 6579/98 Friedan v. State of Israel (unreported).

[49] CrimA 3602/99 Ploni (John Doe) v. State of Israel (unreported).

[50] CrimA 3976/99 Ephraimov v. State of Israel (unreported).

 

American cases cited:

[51] U.S. v. Miller 753 F.2d 19 (1985).

[52] McKane v. Durston 153 U.S. 684 (1894).

[53] Jones v. Barnes 463 U.S. 745 (1983).

 

Canadian cases cited:

1. R v. Demyen (1975) 26 C.C.C, 2d 324, 326.
2. R v. Pabani (1991) 10 C.R., 4th. 381.
3. Mcauley v. R (1997) Ont. C.A. Lexis 3.
4. Baltovich v. R (1992) Ont. C.A. Lexis 257.
5. R v. Parson (1994) 30 C.R. 4th 169.
6. R. v. Farinacci (1993) 86 C.C.C. 32.
7. Cunningham v. Canada (1993) 80 C.C.C 492.
8. Miller v. The Queen (1985) 23 C.C.C 99.
9. R v. Branco (1993) 87 C.C.C 71.

 

Israeli books cited:

1. S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999)

 

Israeli articles cited:

1. S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ Hapraklit 52 (1986) 451.
2. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ The Annual Book for Law in Israel (Tel-Aviv, 1986) 481.

 

Foreign books cited:

1. R. Pattenden English Criminal Appeals 1844-1994 (Oxford, 1996).
2. Stuart Charter Justice In Canadian Criminal Law (Scarborough, 2nd ed., 1996).
3. W.R. LaFave, J.H. Israel Criminal Procedure (St. Paul, 2nd ed., 1992).
4. P.W. Hogg Constitutional Law of Canada (Scarborough, 4th ed., 1997).

 

Foreign articles cited:

1. M. Damaska “Structures of Authority and Comparative Criminal Procedure” 84 Yale L.J. (1974-1975) 480.
2. D.L. Leibowitz “Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984” 54 Fordham L. Rev. (1985-1986) 1081.
3. M.M. Arkin “Rethinking The Constitutional Right To a Criminal Appeal” 39 UCLA L. Rev. (1991-1992) 503.
4. A.S. Ellerson “The Right To Appeal And Appellate Procedural Reform” 91 Colum. L. Rev. (1991) 373.
5. D. Gibson “The Crumbling Pyramid: Constitutional Appeal Rights in Canada” 38 U.N.B. L.J (1989) 1.
6. T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the 1984 Bail Reform Act” 62 Notre Dame L. Rev. (1986) 192.

 

Other:

1. 8A Am. Jur. 2d (Rochester and San Francisco, 1997).

 

 

 

For the Applicant—D. Ronen

For the State —N. Ben-Or, A. Shaham

For the Public Defender-K. Mann, D. Pinto, D. Ohana, R. Yitzhaki

 

JUDGMENT

Justice D. Beinisch

By what standards will an application to stay execution of a prison sentence of a person who has been convicted and whose appeal is pending be considered?  That is the issue brought before us in this application.

The facts in the background of the fundamental discussion before us are as follows:

1.  The applicant was convicted in the District Court in Tel-Aviv-Jaffa of the offense of rape under section 345(A)(1) of the Penal Law 5737-1977 (hereinafter: “the Penal Law”) and for committing sodomy, an offense under section 347(A) of the Penal Law.  Following his conviction, the applicant was sentenced to four years in prison, including three years of actual imprisonment and one year on probation.  The court also ordered the applicant to compensate the complainant in the amount of NIS 10,000.  At the time the conviction was handed down the District Court granted the application of the applicant’s counsel and stayed the date of commencement of the sentence by one month.

2.  The applicant appealed the decision to this court.  At the time of the filing of the appeal, his counsel submitted the application before us to stay execution of the sentence imposed on him (hereinafter: “application for stay of execution”).  On 1.21.99 Justice Zamir determined, after hearing the parties’ arguments, that execution of the prison sentence imposed on the applicant would be stayed until a further decision was made on the application.  Justice Zamir noted in his decision that in accordance with the accepted policy of this court as to applications for stay of execution “it is doubtful that it is appropriate, in this case, to stay the commencement of the prison term.”

However, the judge decided that it would be appropriate for the application before him to be transferred to the President of the Court for a decision as to whether it would be appropriate to transfer the application to a decision before a panel.  Justice Zamir explained his decision as follows:

“Lately thought has been given to the accepted policy of this court regarding applications for stay of the execution of imprisonment until the disposition of the appeal.  Various approaches have been expressed by judges in the case law. (See, for example, HCJ 3501/98 Dekel v. State of Israel; CrimA 7068/98 Hachami v. State of Israel).  The doubt as to the accepted policy of the court in this matter has drawn in part from the Basic Law: Human Dignity and Liberty; and in part from the customary practice in certain countries.

It appears to me that it is not appropriate to go on with the present situation, in which each justice considering applications for stay of execution makes a decision according to his world view, and the time has come for this court develop a policy that will be able to guide every judge considering such applications.”

In light of this decision, the President of the Court ordered consideration of the application before an extended panel of nine justices.

3. Before turning to the examination of the substance of the issue which has arisen before us, we must give thought to the preliminary issue that has come up during the course of the consideration of the case, which is the issue of the status of the Public Defender in the framework of the proceedings in this court.   After the application was brought for consideration before an expanded panel, the Public Defender submitted an application before the court entitled “application to submit a written brief as a friend of the court.”  The applicant’s counsel consented to the application and the State opposed it.  On 5.19.99, after hearing the parties’ arguments on the matter, we determined that we would grant the application in such a manner that the Public Defender would be allowed to submit a brief.  We further determined that “the decision whether to affirm the argument itself as well as the decision as to the status of the Public Defender in this case – would be considered by the panel in the judgment.”

The issue of recognition of the institution of “friend of the court” in our legal system in general, and the status of the Public Defender as “friend of the court” in particular, was considered in the judgment of President Barak in RA 7929/96 Kozali and others v. the State of Israel [1].  In his decision on this matter the President distinguished between the question of the authority of the court to order the joinder of a person or entity to a proceeding before it with the status of “friend of the court,” and the question of the discretion the court is to exercise when making the decision on an application to join such a party or person.  In accordance with that decision, the authority to join exists, in principle, and the court must examine in each and every individual case – according to its circumstances – whether it is to be exercised, in consideration of the totality of considerations relevant to the matter.  Such consideration relates primarily to the degree of potential contribution which is entailed in the requested joinder against the concern that such joinder would do damage to the efficiency of the discussion, to the parties and to their rights:

“One must stand guard in this matter and ensure that indeed there is in the joinder of another party to the proceeding a contribution to be made to the discussion itself and the public interest.  One is to examine in each and every case, whether such joinder does not cause damage to the efficiency of the deliberation, to the parties to the dispute and to their basic rights…  Indeed before a party or a person is given the right to express his position in a proceeding to which he is not an original party, the potential contribution of the proposed position is to be examined.  The essence of the applying entity is to be examined.  Its expertise, experience and the representation it affords the interest in whose name it seeks to join the proceeding.  The type of proceeding and its procedure is to be examined.  The parties to the proceeding itself are to be ascertained as well as the stage at which the joinder application was submitted.  One is to be aware of the essence of the issue to be decided.  All these are not comprehensive criteria.  There is not enough in them to determine in advance when it will be appropriate by law to join a party to the proceeding as a “friend of the court,” and when not.  At the same time these criteria must be weighed, inter alia, before such joinder is to be decided upon.” (Ibid. paragraph 45)

The issue that arises before us is a question of general importance in the realm of criminal procedure: it arises and is discussed as a matter of course before courts, and by its nature it is relevant to a broad public of accused persons.  Our discussion of the matter does not primarily focus on the concrete facts of the case, but the fundamental question which arises, inter alia, against the background of lack of uniformity in the law in practice.  In discussion of this type, the Public Defender, whose function by law is the representation of accused persons in criminal proceedings, has a clear interest.  In consideration of the expertise and the experience of the Public Defender in the representation of accused persons, their joinder to the proceedings before us may contribute to the deepening of the discussion and its clarification.  On the other hand, joinder of the Public Defender, at the phase in which the joinder application was submitted, will not burden the administration of the proceedings significantly, as it is merely an interlocutory proceeding in the framework of a pending appeals case.  Taking these considerations into account, we felt that the joinder of the Public Defender to the proceedings before us as “friend of the court” was to be allowed.

Claims of the Parties

4.  In detailed and thorough arguments, the parties laid out before us a broad picture, and supported each of their respective arguments with multiple references.  The sum of the argument of the applicant, joined by the Public Defender, is that the accepted approach in our case law as to the stay of execution of a prison term of a convicted person whose appeal is pending (which we will discuss later at length), is not appropriate and requires renewed examination and change.  According to the applicant’s claim, the law has no provision as to the immediate execution of the prison sentence, but rather the legislature left determination of the commencement of the execution of the prison term to the discretion of the court.  This argument relies on s. 44 of the Penal Law, which establishes that a court that imposes a prison term “may order that the sentence commence from the date it shall determine.”  As to the discretion given to the court to determine the date of commencement of the prison term, counsel for the applicant argues that the court is to adopt a “broadening” policy as relates to applications that deal with stay of execution during the pendency of the convicted person’s appeal on the judgment, in a manner that except for exceptional circumstances – which fall within the grounds for detention pending completion of the proceedings – the execution of the prison sentence will be delayed until the disposition of the appeal.  The applicant’s counsel rests his argument primarily on the status of the right of appeal, whether as a constitutional basic right or whether as a right of recognized central importance in our legal system, and on the presumption that immediate execution of a prison sentence, may, as a rule, harm effective realization of the right of appeal.

The Public Defender claims that the law practiced in Israel today in the matter of stay of execution of prison sentences during the pendency of an appeal is not clear cut; alongside judicial approaches which emphasize the immediate execution of the sentence as a board rule, and the stay of its execution as only an exception, there are to be found in the case law of this court – particularly in recent years – other approaches as well, which tend to broaden the range of cases in which the execution of the prison sentence will be stayed while the convicted person’s appeal is pending.  Thus, argues the Public Defender, even when the judicial rhetoric is seemingly strict in relation to the possibility of stay of an appeal, the application of the rules, in fact, tends to be lenient with applicants for stay of execution of prison sentences during the pendency of the appeal.  It is the argument of the Public Defender, in light of the murkiness as to the law that applies in the matter of stay of execution of prison terms during the pendency of the appeal, that it is appropriate to re-examine the issue.  In the framework of this examination, the Public Defender claims, central weight is to be given to concerns of irreversible harm to human liberty if after the imprisonment of the convicted person it turns out after the fact – once the appeal is heard –that the imprisonment was partially or entirely unjustified.  Thus, the Public Defender claims that the right of appeal as part of due process, is derived from the right to dignity and liberty and as such is a protected constitutional right in the provisions of the Basic Law: Human Dignity and Liberty.  According to the approach of the Public Defender in the framework of the proper balancing between the basic rights of the convicted person and the public interest in immediate enforcement of the judgment, the court, as a rule is to grant applications to stay execution of prison terms until the disposition of the appeal, with the exception of exceptional cases in which there is a reasonable risk of flight of the convicted person from the law, or that the convicted person poses a risk to public safety, or that particularly severe damage to public confidence in the enforcement system is expected.

The State seeks to rebut the arguments of the appellant and the Public Defender.  The starting point of the argument the State brought before us is that it is the directive of the legislature that a prison term is to be executed immediately upon sentencing.  The State learns this from the provision of section 43 of the Penal Law, according to which one who is sentenced to prison will have his prison term calculated from the date of sentencing, unless the court orders otherwise.  Alongside the rule of immediate execution, the legislature granted the court discretion to stay the execution of the sentence to another date, as per section 87(a) of the Penal Law.  The State argues that  the law followed by this court in the matter of stays of execution is stable and clear, and properly balances the various interests involved in the matter, and it is not proper to deviate from it.  According to the State’s approach, the Basic Law: Human Dignity and Liberty has no impact on the matter before us; it is a matter of existing legislation, which is not subject to constitutional review but merely interpretive influence.  Even as to this last issue, there is nothing in the Basic Law  which changes the accepted law followed by this court, according to which execution of the prison sentence will be stayed only in exceptional circumstances; the sum of the argument is that after the conviction of a person criminally, and his sentencing to prison, he no longer benefits from the presumption of innocence and he no longer enjoys the right to freedom from imprisonment.  His liberty has been denied by the judgment of an authorized court which sentenced him, and the question of stay of execution of a prison sentence no longer involves violation of personal liberty which is protected by the Basic Law.  To base this claim the State refers us to the approach of the American and Canadian Law in this matter.  Alternatively, the State claims, that even if the convicted person has the right to liberty which may be violated pursuant to consideration of the stay of the execution of his sentence, then the law that has come forth from this court, as to stay of execution of a prison sentence during the pendency of the appeal, fulfills the constitutional balancing required by the Basic Law.

The   Normative Framework

5. The practice of the law in the matter of the stay of execution of a prison sentence during the pendency of the appeal has developed in the case law of this court from its earliest days.  Tracing the developments in the case law reveals that from the beginning the law developed against the background of what was customary in British common law and this was applied in our system even before the relevant statutes in this matter were legislated, some of them directly, others indirectly.  Eventually, the case law based the law in practice on the construction of the legislated provisions.  Thus it was established that the rule is that a prison term is to be executed immediately and execution of a prison term is not stayed except “in extraordinary circumstances” or if there exist special circumstances which justify the stay.  This rule is anchored in the basic principle of our system, according to which the law is determined at the trial level, in which oral evidence is heard, and in which the facts are determined based on impressions of witnesses.  The level of proof required in a criminal proceeding is high – proof beyond a reasonable doubt – and with the conclusion of the proceeding, once it has been determined that guilt has been proven beyond a reasonable doubt, the convicted person is denied the presumption of innocence.  So too, in our system – unlike the continental system which views the consideration at the trial level and the appeals level as one unit – the appeal is not part of the criminal proceeding; the appeal is an additional proceeding, limited in its scope from the first proceeding since as a rule evidence is not heard during it, and it is a review proceeding.  As background, it must be remembered, that in common law countries, from where we have drawn the fundamentals of our system, determining guilt based on the facts is left to a jury which makes the determination in the trial court.  It appears that this legal structure, according to which one must separate the trial level from the appeals level, has influenced the development of the rule according to which upon the conclusion of the proceeding at the trial level expression is to be given to the punitive result dictated by the conviction.

Relevant Statutory Provisions

6. A number of statutory provisions relate to the matter before us.  Since we are dealing with the execution of a sentence that was imposed on a person after their criminal conviction, we will turn first to Chapter 6 of the Penal Law entitled “Modes of Punishment.”  In Title B of Chapter 6 above,  entitled – “Imprisonment,” there are two provisions relevant to our discussion – section 43 and section 44.  We will bring these provisions verbatim:

 

“Calculation of the Prison Term	43.	One who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise: if the convicted person was free on bail after the sentence, the days he was free will not be counted as part of the period of the sentence.
Postponed Imprisonment	44.	If the court imposes a prison sentence, it may order that the sentence commence from the date it shall determine.”

 

An additional provision which applies in our matter is found in section 8 of chapter 6 above, in section 87 of the statute:

 

“Postponement of Dates.	87	(a)  If a date is established for the execution of a sentence, in one of the sections of this chapter or by the court according to it, the court is permitted to stay the execution to another date.
		(b)  If the execution of the sentence was stayed according to subsection (a), the court may stay it an additional time for special reasons which will be recorded.
		(c)  The court staying the execution of a sentence according to this section may condition the stay on bail or other conditions as it sees fit; the provisions of sections 38 to 40 and 44 of the Criminal Procedure Law, 5725-1967 will apply to bail according to this section with the necessary changes.
		(d)  The court’s decision in accordance with this section is subject to appeal.”

As detailed above, each of the parties before us relied in their arguments on a different one of the three said provisions and regarded it as the relevant legislated framework for determining the date of execution of the prison term.  The state’s construction of section 43 of the Penal Law, according to which, as a rule, and lacking any other determination by the court, the commencement of the prison term begins with the sentencing, is consistent with the construction of said section in the case law.  Thus for example, Justice Shamgar has said regarding the construction of section 43 to the Penal Law, during discussion of a matter different than the one before us (in that matter the elements of the offense of escape from lawful custody were under consideration):

“The origin of the status of  “in custody” is a result of the integration of two significances attached to the sentence that is read to the convicted person: one, and this is the legal one, stems from the provisions of section 43 of the Penal Law, according to which: ‘one who is sentenced to prison his prison term will be calculated from the day of the sentence, unless the court has ordered otherwise…’ 

Meaning, the prison sentence begins to run from the date of the sentence, unless the court has ordered otherwise. . .    According to the simple words and the clear intent of the legislature, the broad rule is that, the prison term begins with the notice of the decision of the judicial authority.”

(CrimA 608/81 Benyamin Ben Maier Suissa v. State of Israel [2], at pp. 492-493.  Emphasis added – D.B.).

 

Similar things were stated by Justice Shamgar in FH 16/85 Harrari v. State of Israel [3] during consideration of the question of when the period of probation begins to be counted when extended by the court.

“The guiding rule which arises from the penal law is that, the commencement and the application of the sentence are from the date of the sentence, and that is, if the court has not ordered otherwise.  This is the provision of section 43 of the Penal Law that one who is sentenced to prison, his prison term will be calculated from the date of the sentence, unless the court has ordered otherwise.  The court may order a postponed sentence (section 44 or section 87 of the law above).”

(Ibid. at p. 454 emphasis added – D.B.)

7.  From the above, therefore, one may glean that, as a rule, the date of execution of a prison sentence imposed by the court is immediately upon the imposition of the sentence, unless the court has ordered otherwise.   

Alongside this rule, the legislature determined that the court may stay the date of   commencement of the prison sentence until a date other then the date of the imposition of the sentence.  To this end, all three statutory provisions that were quoted above are relevant.  The discretion given to the court to stay the date of execution of the sentence is learned from the language of section 43 itself (“unless the court has otherwise ordered”).   A separate determination as to this matter is found in section 44 of the Penal Law which is entitled “postponed imprisonment.”  It appears that according to the accepted  construction  of section 43 of the law, there is a certain overlap between the ending of section 43 and section 44.  (And indeed this was the approach of Justice Shamgar in CrimA 757/85 State of Israel v. Harnoi [4]:

“To a certain extent section 44 is no more than a more explicit statement of what was already implied from the determination in section 43. . .” )  As to section 87 of the Penal Law, its application is different from that of sections 43 and 44 at least in two primary areas.  First, section 87 deals with stay of the date of execution of a ‘sentence,’ not necessarily a prison sentence.  Second, section 87 enables the court to order the stay of execution of a sentence it handed down, even at a date after the date of sentencing.  (For the background to the legislation of this section see: CrimA 1100/91 State of Israel v. Jeffrey [5]).

To the statutory provisions mentioned above one must add an additional statutory provision which is also relevant to the matter of stay of execution of a prison term during the pendency of the appeal, and that is the directive established in section 44 of the Criminal Procedure (Enforcement Powers – Arrests) Law 5756-1996 (Hereinafter: “the Arrests Law”).  Section 44 above establishes the following:

“Release on Bail by the Court	44	(a)  A suspect who has not yet had an indictment filed against him, an accused or convicted person whose appeal is pending on his judgment and is under arrest or in prison, the court may, upon his application, order his release on bail or without bail.
		(b)  The court may order the accused or convicted  person, whose appeal is pending on his judgment, to post bail, even if it is not authorized to order his detention according to section 21 in order to ensure his appearance in court, and when it has done so, the accused or convicted person will be seen as one who was freed on bail.”

 

On the basis of the language of the section, it does not deal directly with the question of the date of commencement of the prison sentence.  But in fact it is directed at the same practical outcome that is likely to stem from stay of execution of the prison sentence according to sections 43, 44 and 87 of the Penal Law, which is that the convicted person remains free for the duration of  the period of the appeal subject to the conditions that were determined for his release (compare this with section 87 (C) of the Penal Law).  Therefore it has been decided, that the considerations that the court will weigh in an application for release of a convicted person on bail during the pendency of his appeal, will be identical to the considerations taken into account in an application to stay execution of a prison sentence until the disposition of the appeal (see MAppCrim 2161/92 Fadida v. State of Israel [6], stated by Justice Bach; and compare: MApp 123/76 Ikviah v. State of Israel [7].

With the exception of section 44 of the Arrests Law, there is nothing in the abovementioned sections of the law, in their language, which relates to the situation of stay of execution of a prison term specifically during the period of appeal, rather they are phrased in a broad manner without details as to  the grounds for the stay.  As a result of the multitude of sections in the law which relate to the matter, applications to stay the execution of prison terms for the pendency of the appeal are considered  by the appeals court in the framework of a number of procedural “tracks” whether as an application to stay execution according to section  87 of the Penal Law and its sections or whether as an application to be released on bail.  As stated above, the considerations that will be weighed by the Court in each of the above cases will generally be identical, although the issue of the relationship between the various “tracks” is not entirely clear.  It is interesting to note that in foreign legal systems, which we will discuss later, the issue which is the subject of our discussion is dealt with in sections of the law which deal with the release on bail during the pendency of the appeal of a person who was convicted and sentenced to prison, and in foreign literature and case law it is generally discussed under the title of “release on bail pending appeal.”  It is also to be noted that most of the initial decisions of the Supreme Court in which the accepted rules for stay of execution of the prison sentence were formulated were decided in applications to be freed on bail during the pendency of the appeal in accordance with the Bail Ordinance 1944 (which was cancelled in 1965 with legislation of the Criminal Procedure Law).  What is important for our purposes is that in not a single one of the law’s provisions which enable the court to stay or postpone the date of commencement of the prison sentence, did the legislature detail the considerations which will guide the court in its decision, including where an appeal on the conviction filed by the convicted person is at the foundation of the request to stay execution.  These considerations have been determined by the courts working within the framework of the authority given to them by the legislature, and we will turn to this now.

The Court Rulings in this Matter

8.  The construction that was given in the case law of this court  to legal provisions which give the court authority, with discretion, to stay the execution of the prison sentence or to release the convicted person on bail, during the pendency of appeal, was narrow.  The rule that was established was that a person who was convicted of a criminal offense, and who was sentenced to prison, would begin by serving his sentence immediately after the imposition of the sentence.  The rule that was established was that the cases in which execution of the prison term would be stayed  due to the filing of an appeal, would be “extraordinary” cases where “special circumstances” exist which justified it.  Among the many references for this approach (hereinafter for convenience we will call it – “the accepted approach”) we can bring the words of the Justice S.Z. Heshin in MA 24/55 Shlomo Porat (Perlberg) v. Attorney General of Israel [8].

“When the court comes to discuss the question whether it is appropriate to release on bail a person that has already been convicted but his appeal has not yet been heard, it is not entitled to ignore the determining fact that there is already a judgment against the applicant which sentenced him to prison, and only in extraordinary cases will the court or the judge hearing the application grant the request.”

(Ibid.).

(see also MApp 2/52 Locksner v. Israel Attorney General  [9]; Mot 118/79 Richtman v. State of Israel [10] at p. 47, 169; Mot 156/79 Kobo v. State of Israel [11] at p. 64; Mot 132/81 Pitusi v. State of Israel [12] at p. 819; 430/82 MApp Michalshwilli v. State of Israel [13] at  p. 107; This approach is similar to the English law in this matter see R. Pattenden, English Criminal Appeals 1844-1994 (Oxford, 1996) [66]112).

The primary reason mentioned in the case law for not staying the execution of a prison sentence during the pendency of the appeal is that with the conviction of the convicted person with the offense with which he is accused, the presumption of innocence from which he benefited until that time dissipates.  In the words of Justice Agranat:

“. . . the rule is, that prior to the conviction the person is presumed to be innocent, whereas after the conviction, the necessary presumption must be -- until it has been decided otherwise on appeal -- that he is guilty of the offenses of which he was convicted, and therefore a person will not be freed on bail at this stage, except under extraordinary circumstances.”

(MApp 10/62 Cohen v.  Attorney General [14] at p. 535).

In other decisions emphasis was placed on the existence of an authorized judicial decision which denies the convicted person's freedom, and which is valid and presumed to be legitimate as long as it has not been changed by the appeals court:

"It appears to me that in principle the determining element in this distinction (between the arrest of a person who has been convicted but not yet sentenced, and the stay of execution of a prison sentence that was imposed-- D. B.) is not  a suspect's innocence or conviction, but rather the phase at which he was convicted and sentenced, meaning the existence of a judicial decision as to denial of his liberty for the period of time detailed in the sentence.  The conviction in and of itself -- without a sentence of imprisonment -- does not constitute a "red line" between the two situations, and does not constitute but one consideration, although a weighty and serious one, in the totality of regular and accepted considerations in the consideration of the arrest of a person who has not yet been convicted."  (MApp 183/80 Sharabi v. State of Israel [15] at p. 519 emphases added -- D.  B.).

The case law mentions an additional reason for immediate execution of the sentence, except in extraordinary cases, and that is the threat of injury to public safety if the convicted person is freed during the period of appeal.  Justice Zemora discusses this in the first case in which the matter came up before this Court:

“The rule is: as to a person who was convicted and punished lawfully, public safety is to be preferred over the possibility that perhaps the convicted person will be acquitted in the appeal and it will turn out that an innocent person sat in prison.”  (Mot 52/50 Maatari v. Attorney General of Israel [16], at p. 416).

Alongside the concern for public safety the case law has recognized an additional public interest which is at the basis of the rule of immediate execution of a prison sentence, and that is the interest that is grounded  in effective enforcement of the criminal law and deterrence of potential offenders. (See MAppCrim 166/87 State of Israel v. Azran and Others [17]).

9.  As stated above, alongside the rule -- immediate execution of a prison sentence -- the case law has recognized exceptions which exist under those "special" or "extraordinary" circumstances in which it would be justified to stay the execution of the prison term despite the considerations that were detailed in previous case law.  These circumstances, in summary, are: when the conviction is for an offense that is not serious or where the circumstances of its commission are not serious; when the period of arrest which was imposed on the convicted person is short, relative to the time frame in which the appeal is expected to be heard, and there is a concern that until the determination of the appeal the convicted person will serve his entire punishment or a significant part of it; when there is a blatant possibility that the appellant will be successful in his appeal because of a manifest distortion on the face of the decision.  Justice Zamir summarized the accepted approach as to the stay of execution of a prison term as follows:

“the rule as to stay of the execution of a prison sentence was formulated some time ago, it was summarized clearly in Mot 156/79  Kobo v. State of Israel [11] and we still follow it.  The main points of the law, very briefly, are as follows:

A) The determining rule is that a person who has been sentenced to prison must begin serving his sentence immediately.  One does not stay execution of the prison sentence except "under extraordinary circumstances" or if there are "special circumstances" which justify a stay.

B) The special circumstances that are sufficient to justify a stay of execution are generally these: an offense that is not serious; a short prison term; a chance the appeal will be granted.  As to the chance that the appeal will be granted, it is necessary that in the convicting decision there is a clear distortion, or that there is a  pronounced  likelihood of success in the appeal.  To this end,  it is not necessary to examine in a detailed and concise manner the facts and reasoning on which the judgment is based.  It is necessary that the issue is apparent on the face of the decision.

Generally, the fact that the applicant was free on bail until his sentence was imposed, the fact that he does not constitute a serious risk to public safety, and that his family situation or business situation are difficult, are not sufficient to justify a stay of execution (MAppCrim 2599/94  Danino v. the State of Israel [18]).

This in fact has been the accepted law for many years, and justices in this Court follow it today as well (see for example, from among the many decisions, the following decisions: CrimA 8549/99 Ben Harosh v. State of Israel [19]; CrimA 3695/99 Abu Keif v. State of Israel [20]; CrimA 4263/98 Luabna v. State of Israel[21]; CrimA 3594/98 Ploni (John Doe) v. State of Israel [22]; CrimA 1050/98 Siamo v. State of Israel [23]; MAppCrim 6877/93 Ploni (John Doe) v. State of Israel [24]).

10.  Alongside the accepted approach as to stay of execution of a prison term during the pendency of appeal, another approach has developed over the years, which tends to be more flexible with the conditions for stay of execution until the disposition of the appeal of the convicted person.  The development of the broader approach has brought with it various grounds to justify the stay of the execution of the prison term and the freeing of the convicted person on bail until the conclusion of the hearing of the appeal, and the breaking out of the narrow framework of postponement of execution as only an exception.  This approach has been expressed in the words of Justice Bach in MApp 28/88 Sussan v. the State of Israel [25]:

“Personally,  I believe that if the convicted person’s chances of  winning the appeal seem good on the surface, and if in taking into account all the rest of the circumstances, such as the convicted person's criminal history and the danger that he poses to the public, there is no special reason for his immediate imprisonment, then the court is entitled to favorably weigh his release on bail until the appeal. . .  I also cannot entirely ignore the fact that it is a matter of a person with an entirely clean history,  that there is no apparent danger to be expected from him if execution of the sentence is stayed.  On the other hand, there is a risk, that if he is immediately arrested, and if he later wins his appeal, a result which as I stated, does not appear unreasonable, then he will serve a significant portion of a sentence which will later turn out to have been imposed unjustifiably.  In my opinion there is also a difference regarding a decision such as this between a defendant who was free on bail for the entire time before the judgment was handed down by the trial court, and a defendant that was detained pending the completion of the proceedings and seeks  now, after he has been convicted, to be freed from prison until his appeal is heard."

See also the decision of Justice Bach in MAppCr 4331/96 ElMakais v. State of Israel [26]; the decision of Justice Bach in MAppCr 5719/93 Forman v. State of Israel [27]; see also the decision of Justice Tal in MAppCr 6689/94 Attias and others v. State of Israel [28] which mentions the decision in Sussan in agreement above).

A different approach to the stay of execution of a prison sentence during the pendency of appeal in comparison to the accepted approach, has been expressed in the decisions of Justice Strasberg-Cohen in MAppCr 8574/96 Mercado v. State of Israel [29]; MAppCr 8621/96 Kuzinski v. State of Israel [30]; and MAppCr 4590/98 Sharabi v. State of Israel [31].  In these decisions Justice Strasberg-Cohen  reiterated that the rule is that the convicted person must serve the prison sentence immediately when it is imposed.  However, the Justice emphasized the need, in each and every case, to balance, in accordance with the circumstances and characteristics, the considerations and various interests involved in the matter of the stay of execution, while avoiding establishing rigid and limited categories of cases in which the imprisonment will be stayed until disposition of the appeal.  This is how this approach was presented by Justice Strasberg-Cohen in her decision in the Mercado case above:

"Indeed, it has been an accepted rule for us from long ago that a defendant who has been convicted, must serve his sentence as soon as it is imposed.  The reasons for this rule are well and good, both in the individual realm and in the public realm.  A person who is convicted and a prison sentence was imposed upon him is no longer presumed to be innocent and the very fact of his filing of an appeal does not reverse things and does not does put in the hands of the appellant a given right to stay his sentence.  As long as it has not been established otherwise on appeal, the convicted person is considered guilty by law and he must pay the price for his actions.  However, a conviction does not constitute the end of the matter.  The law has put in the hands of a person lawfully convicted, the right of appeal, which if he takes advantage of, will put his conviction and the punishment that was imposed on him, under the scrutiny of a higher court and only after the appeal is heard will the court have its final say.  We are faced with a clash between various interests worthy of protection.  On the one hand, the convicted defendant must pay the price for the deeds for which he was convicted and serve his punishment without delay, and the legal system must take care that the sentence is implemented immediately.  On the other hand, society must take care that a person does not serve a punishment of imprisonment for nothing, and that his liberty is not taken away from him when at the completion of the proceeding, he may be acquitted.  In my opinion, it is preferable to stay the prison term of ten defendants whose appeal was denied, rather than have one defendant serve his prison term, that it later turns out he did not have to serve.  However, it is not sufficient to merely file an appeal to bring about the stay of execution of a prison sentence, for if you would say so, then every prison sentence should be stayed, and I do not believe that it is correct to do so.  In order to find the right balance, we have at our disposal tools that we can use to measure and weigh all the relevant considerations and conduct a proper balancing between them."

A more sweeping approach which calls for a change in the accepted rules in the matter of stay of execution of prison terms during the period of appeal, is to be found in the decision of Justice Ilan in CrimApp 7068/98 Hachami v. State of Israel [32].

“I believe that the time has come to review the rule that a person should serve their sentence, even in if they have filed an appeal.  The reason for this is, that after the defendant has been convicted and is no longer presumed to be innocent it is proper that he serve his sentence as close as possible to the commission of the offense and the more the date is postponed -- the less efficient the punishment.  Despite this, everyone agrees that in the case where a relatively short prison term has been imposed, the execution of the punishment is to be deferred until the disposition of the appeal, lest the appellant serve his entire sentence by the time the appeal is heard.  This is also the position of the prosecution.  In my humble opinion the concern here is not just that perhaps a person will serve their entire sentence and then be acquitted.  Even a person who has been sentenced to six years in prison and serves two years by the time he is acquitted on his appeal has suffered an injustice despite the fact that  four years that he will not serve remain.

. . .  

In my opinion, the rule must be that a person should not serve their sentence until the judgment is final, unless there is a serious concern that it is not possible to guarantee that he will appear to serve his sentence or that he poses a danger to the public."

(Emphasis added -- D.  B.)

In addition to the decisions mentioned, which express each in its own way a deviation from the accepted approach, it is possible to point to decisions of the court which do not explicitly deviate from the position above, but in fact broaden the circumstances in which execution of a prison term is stayed.  From various decisions of justices of this Court there appears to be a tendency at times to take into consideration the fact that the applicant was free on bail during the course of his trial, his clean history and other personal circumstances.  Moreover, many of the decisions that were handed down do not give weight to the appeal’s chances of success and do not apply the test of "the chances of success of the appeal are apparent on the face of the judgment."  These decisions to a certain degree changed the normative picture of the situation in this matter as it appears in fact.  The Public Defender tried to persuade us with its arguments and the data presented, that in fact the courts have abandoned the guiding rule as to the immediate execution of a prison sentence, even if they avoided declaring a new policy.  It is difficult to reach this conclusion from the data that the Public Defender presented before us; this data relates primarily to decisions on appeal in the district courts that deal with relatively short prison terms that were imposed in the trial courts, and do not necessarily lead to the conclusions which the Public Defender reached.  However, it can be said that in the judgments of this Court there exists in point of fact a process of greater flexibility in the accepted approach and a broadening of the range of cases in which prison terms are stayed until the conclusion of the hearing of an appeal filed by the convicted person.

Stay of Execution of a Sentence of Imprisonment During the Period of the Appeal-Discussion

11. The first question we must ask is, is there a justification for re-examining the rules that apply in the matter of stay of execution of a prison sentence during the pendency of the appeal?  It appears that a re-examination is justified as described in the decision of Justice Zamir in the matter before us; from the details of the decisions mentioned above it appears that indeed there have been breaks in the accepted approach in the matter of stay of execution of a prison sentence during the pendency of the appeal and a certain lack of clarity has developed in light of the various approaches apparent in the case law of this court.  Moreover, the law  in the case, that was first developed about 50 years ago, grew against the backdrop of British law and developed in a normative environment in which significant changes have occurred over the years.  Among other thing significant changes have occurred in the areas of criminal law and process, the Basic Law: Human Dignity and Freedom was passed and there has been development in the status of the right of appeal.  These changes in the substantive law have practical ramifications, which indirectly impact the matter before us.  Thus, for example, the change that occurred in the  law of arrests with the passing of the Arrests Law influenced not only the fundamental realm, but also increased the number of accused who are released on bail during their trial; a fact which has increased the number of accused who at the stage of decision on an application to stay execution are being denied their freedom for the first time.  This re-examination is necessitated therefore, in light of the changes that have occurred in our law over the years, which justify examining the validity of the law against the backdrop of the normative reality of our own time.  We will turn to this now.

12. As a starting point for our discussion we are guided by the statutes which apply to the matter of stay of execution of a prison sentence during the pendency of the appeal.  As has been said above, section 43 of the Penal Law,  as it has been constructed  in case law,  establishes that a prison sentence is to be executed immediately upon sentencing, unless the court has ordered otherwise.  Decisions of this court in which it has been determined that the rule is that imprisonment during the period of appeal is not to be stayed except in special and extraordinary circumstances, apparently is consistent with the general guideline that arises from the language of section 43 as to the immediate execution of imprisonment.  However, it must be emphasized that the case law that determined the law in this case, was not generally anchored in statutory language.  It can even be said that such law is not necessarily to be concluded  from the language of the statute.  From the version of the section and its legislative placement it can be concluded that it establishes a general guideline as to the date of the execution of the sentence and the manner of calculation of the prison term, and is not exclusive to the circumstances of filing an appeal on the judgment.  In other words, the section applies to the sentencing phase and by the nature of things does not distinguish in the matter of  the date of execution of the sentence between a situation where an appeal has been filed and other situations.    As to sections 44 and 87 of the Penal Law, they too do not explicitly relate to the question of stay of execution of the sentence during the pendency of appeal; section 44 was originally intended to give the court authority to establish in the sentence, a later date for execution of the prison term, while the aim of section 87 of the Penal Law is to grant the court the authority to stay yet again the date of execution of the prison sentence  (see Amendment to Penal Law (Methods of Punishment) Draft Proposal Hatzaot Hok no. 522 at p. 246, an amendment that was legislated as a result of CrimA 9/55 Yegulnitzer v. State of Israel [33], in which it was established that the court does not have the authority to stay the execution of a prison sentence from the moment that a date has been set for the commencement of its execution).  It may, therefore, be said that section 43 and sections 44 and 87 of the Penal Law do not delineate a framework that  limits the courts to stay of the execution of the sentence during the pendency of the appeal exclusively to “special” or “extraordinary” cases.

As can be seen from the above, the provisions of the Penal Law do not relate explicitly to the stay of execution of a prison sentence upon the filing of an appeal on a conviction.  However, when we come to examine the effect of filing an appeal on the date of execution of the sentence, we must take into account the accepted essence of the appeal process in our legal system.  According to our system, as opposed to what is customary in other Western European countries, the appeal in its essence is a separate process of review of proceedings that took place in the lower court.  In the European system, it is the principle of “double instances” according to which the two proceedings are handled as one unit, and the party is entitled to have both instances consider his case both from the legal and factual perspectives, that is accepted.  Because the process is not based to begin with on hearing oral evidence, the appeals court is not limited in receiving additional evidence, and as a rule the lower court does not have an advantage over the appeals court.  Apparently, for this reason, filing an appeal normally stays the execution of the decision of the lower court until the conclusion of the appeal proceedings.  We have already stated that unlike the European system, according to our system, when the proceeding in the lower court is completed the accused’s matter is decided by an authorized court, after having heard evidence and after having examined it by the stricter standard that is required in a criminal proceeding, and with this the conviction phase is complete.  Accordingly, the fact of realization of the right of appeal to an appeals court – which is the court of judicial review  -- does not necessitate stay of execution of the sentence, but rather at that phase it is necessary to express the consequences necessitated by the conviction, including execution of the sentence.  (for the difference between the two systems see S. Levin The Law of Civil Procedure – Introduction and Basic Principles (5759-1999) [63] at pp. 30-33, 185-186; and see  M. Damaska ‘Structures of Authority and Comparative Criminal Procedure’ [70]at 489-90).

Stay of the execution of the sentence is not therefore necessitated by the very filing of the appeal, and is a matter given over to the discretion of the court.  When the application is made at the sentencing hearing it is decided by the court imposing the punishment: when the stay is requested after the appeal is filed, the decision is in the hands of the appeals court.  The court which imposes a prison sentence and decides to stay the execution of the sentence takes into account circumstances related to the defendant and the offense and among other considerations may take into account the need to enable the defendant to file an appeal.  After filing an appeal on a decision in which a prison sentence was imposed, the appeals court has another consideration which can influence the range of considerations which relate to the date of execution of the prison sentence.  The decision as to the stay of the execution of the prison sentence during the pendency of the appeal will take into account, apart from the broad rule as to immediate execution of the prison sentence also special considerations which relate to the existence of a pending appeal on the decision.  Therefore, even if from the statutory clauses we learn a broad rule of immediate execution of the sentence, still the fact of filing an appeal can influence the manner of exercise of the discretion of the court as to the stay of execution of the sentence in accordance with the authority given to it by law, and it may change the balance between the various considerations entailed in the question of the date of commencement of execution of the prison sentence.

13. As a rule, exercising discretion as to deciding the question of stay of execution of a prison sentence entails a balance between considerations which relate on the one hand to the public interest, and on the other, to the interests of the individual involved.  Filing an appeal brings in further considerations which are also related to both public and private interests.  The proper balance of the totality of considerations related to the issue will determine in which cases the convicted person-appellant will begin to serve his sentence immediately, and in which cases execution of the sentence will be deferred until the disposition of the appeal.

There is no doubt that the broad rule regarding immediate execution of a prison term rests on the public interest of effective enforcement of the law.  This interest has several aspects: first, release of a person who has been convicted of a criminal offense may endanger public safety and security; this is particularly so when it is a matter of someone who was convicted of an offense that by its nature and the circumstances of its commission indicates a risk.  Second, release of a person sentenced to prison, may undermine execution of the sentence due to the flight of the convicted person from the law, and in certain circumstances of a pending appeal there may also be the fear of obstruction of justice.  It would appear that these aspects of the public’s interest in immediate enforcement are not in question.  They are learned a fortiori from the law of detention pending completion of the proceedings which enable denying the liberty of a person who enjoys the assumption of innocence where there is a reasonable basis for their existence.  When it is a matter of a person who has been convicted and sentenced, the weight of such considerations intensifies; it is a matter of a person who no longer enjoys the presumption of innocence, but is in the realm of a criminal who has been convicted and against whom a prison sentence has been imposed.  This fact can have an impact both on assessing the danger of a person, as we are no longer basing this on prima facie evidence but rather on a reliable  judicial determination that has been made on the basis of a foundation of the more stringent rules of evidence of criminal law, and on the fear of flight from the law, due to the concrete and real threat of imprisonment.

The public interest in immediate enforcement of imprisonment has an additional aspect, which relates to the need to enact effective action of the law enforcement mechanisms while maintaining public confidence in them.  The stay of the execution of a prison sentence may cause a large time delay between the date of the sentencing and the date the sentence is served, during which time a convicted person will be free to walk about.  This has the potential to damage the effectiveness of criminal punishment, as “the more time that passes between the commission of a crime or the discovery of a certain crime and the time the criminal is convicted, the lesser the deterring influence of the punishment imposed on others which may be offenders like him.” CrimA 125/74 Merom, Corporation of International Commerce, Ltd. and others v. State of Israel [34] at p. 75).  When a person who has been convicted of a crime and sentenced to prison walks about freely just as before, the deterrence of potential offenders may be hindered.  Justice Winograd discussed this in MAppCr 166/87 State of Israel v. Azran and others [17]).

“An incident such as this has an echo, and the release of the respondents, after they have been convicted, has or may have, a damaging effect, on potential offenders, who will mistakenly believe, that even though John Doe was convicted of rape, he is walking around free as though nothing happened.” (Ibid. at p. 810). 

Justice Dov Levin has also discussed the deterrence consideration:

“The starting point is that there is a presumption that he who has been convicted by the court of first instance is no longer presumed to be innocent and must be held accountable for his actions.  An unnecessary delay which is not necessitated by special reasons damages the deterrence aspect of the punishment.”  MAppCr 3360/91 Abu Ras and others v. State of Israel [35] (emphasis added D.B.)

 

See also the words of Justice Türkel in CrimA 7282/98 Uda v. State of Israel [36]:

“It is a matter of serious offenses and there is significance to the fact that it will be said that he who was convicted of their commission will be held accountable for them immediately after sentencing or closely thereafter.”  Moreover, public confidence in law enforcement authorities and the effectiveness of their actions, may be damaged as a result of the release of offenders who have been convicted and sentenced.  Before legislation of the Arrests Law, there was debate in this court whether considerations of deterrence and public confidence were relevant consideration in decisions as to detention pending completion of the proceedings in serious offenses.  But it is commonly accepted opinion that at the phase following overturn of the presumption of innocence, when a person’s guilt has been determined and his sentence passed, considerations related to deterrence and maintenance of the effectiveness of criminal punishment are relevant and proper.  These considerations are also relevant in the framework of exercise of discretion as to stay of execution of a prison sentence during the pendency of the appeal.  Similar considerations, related to deterrence, effective enforcement and fear of harm to public confidence in law enforcement systems as a result of the release of offenders after conviction and while their appeals are heard, we also find in the case law of other countries whose systems are similar to ours.  Thus, for example, in U.S. federal law emphasis has been placed on the element of deterrence in the framework of considerations related to the possibility of release on bail after conviction and until the disposition of the appeal.  This consideration was one of the considerations which was at the basis of the legislation of the Bail Reform Act of 1984 which made the conditions for release of convicted persons on bail during the period of appeal significantly harsher than  prior law.  (See U.S. v. Miller [51]; D. L. Leibowitz Release Pending Appeal: A Narrow Definition of ‘Substantial Question’ under the Bail Reform Act of 1984 [71] 1081, 1094).

In Canada, as in the United States, the issue of stay of execution is legislated in the framework of statutes regarding the release of a convicted person during the period of appeal.  Section 679(3) of the Canadian Criminal Code establishes the conditions for release during the period of the appeal.  Subsection (c) conditions the release of a convicted person during the appeal, inter alia, with the fact that “His detention is not necessary in the public interest."  The appeals courts in several Canadian provinces interpreted the above condition as including, inter alia, the consideration of the impact of the release of the convicted person on public confidence in the law enforcement systems.

“I think it can be said that the release of a prisoner convicted of a serious crime involving violence to the person pending the determination his appeal is a matter of real concern to the public. I think it can be said, as well, that the public does not take the same view to the release of an accused while awaiting trial. This is understandable, as in the latter instance the accused is presumed to be innocent, while in the former he is a convicted criminal. The automatic release from custody of a person convicted of a serious crime such as murder upon being satisfied that the appeal is not frivolous and that the convicted person will surrender himself into custody in accordance with the order that may be made, may undermine the public confidence and respect for the Court and for the administration and enforcement of the criminal law.”  (R v. Demyen [54])

For additional judgments in which a similar approach was adopted see R v. Pabani [55]; Mcauley v. R [56]; Baltovich v. R [57].

It should be noted that in Canadian case law there are also other opinions which emphasize, in the framework of the “public interest” test, the fear of “pointless imprisonment.”  Lacking case law of the Canadian Supreme Court on the matter, it appears that the more accepted approach is the one presented in the Demyen case above: “At this point, it is seen to be an intelligible standard under which to maintain confidence in the administration of justice” (D. Stuart Charter, Justice In Canadian Criminal Law (2nd ed., 1996) [67] 357).  It should be commented that the approach which emphasizes the importance of the public interest in immediate enforcement of the prison term was expressed in the Demyen case above and in other cases in relation to serious offenses of violence.

14. As said, the public interest with its various aspects, including considerations of deterrence, effectiveness and protection of  public confidence in the law enforcement system, still hold when we are discussing the matter of stay of execution of a prison sentence during the pendency of the appeal.  However, where there is an appeal of a decision in which imprisonment has been imposed, the fear of damage to the public interest and the weight it is to be given is of a more complex nature.  Against the considerations we have listed above, there stands the need to avoid irreparable and significant damage to the convicted party due to his immediate imprisonment, if it turns out after the fact – after his appeal was heard – that his imprisonment was not justified.  The severity of such injury is not to be underestimated.  “. . .denying his personal liberty is a particularly harsh injury.  Indeed,  denying personal liberty by way of imprisonment is the most difficult punishment that a civilized nation imposes on criminals.”  (In the words of Justice Zamir in HCJ 6055/95 Sagi Zemach and others v. the Minister of Defense and Others [38] in paragraph 17)  Such an injury is not just the business of the individual but touches on the interests of the general public; the clear public interest is that people who will eventually be declared innocent in a final judgment not serve time in prison.  Moreover, the public confidence in legal systems and enforcement may be severely injured if it turns out after the fact that the prison time served was not justified.  Justice Strasberg-Cohen pointed this out in MAppCr 4590/96 (Mercado) [31] above:

“Indeed as a rule, the accused who is convicted is to serve his sentence without delay and is not presumed to be innocent, non-immediate execution is likely to damage public confidence in the system, however, the acquittal of a convicted person on appeal after he has served a prison sentence that was imposed on him, may damage public confidence in the system, no less so.”

A similar approach was expressed in Canadian case law:

“Whatever the residual concerns which might cause individuals to question their confidence in a justice system which releases any person convicted of murder pending appeal, they would, in my view, pale in comparison to the loss of confidence which would result from an ultimate reversal of the verdict after Mr. Parsons had spent a protracted period in prison." (R v. Parson [58]).

15. Realization of the right of appeal which is given to the convicted person by law is also a consideration which the court must take into account when determining the question of stay of execution of a prison term.  In order to determine the matter before us I do not find it necessary to make a determination as to the weighty question of the legal status of the right of appeal.  I will note only that the claim of the applicant’s counsel in this matter that from the very anchoring of the right of appeal in section 17 of the Basic Law: the Judiciary, the conclusion is to be drawn that it is a matter of a constitutional basic right that cannot be limited except in those cases where there are grounds for detention, is far reaching and not to be accepted.   The question of the normative status of the right of appeal in our system is not a simple question and it has already been determined more than once in the case law that the right of appeal is established by law and is not included among the basic rights in our law, as determined by Justice Shamgar in HCJ 87/85 Argov and others v. the Commander of the IDF Forces for Judea and Samaria [38].

“The right of appeal is not counted among the basic rights that are recognized in our legal system which draw their life and existence from the accepted legal foundational concepts, which are an integral part of the law that applies here, as in the examples of freedom of expression or the freedom of occupation.” (Ibid. at pp. 361-362).

This court in fact did not recognize the right of appeal as a basic right, but the case law has emphasized the great importance of the institution of appeal “as an integral component of fair judging.” (See the High Court of Justice case, Argov above).  In light of the importance of the right of appeal it has been decided that an interpretation which grants the right of appeal is to be preferred over an interpretation which denies it.  (See HCJ 1520/94 Shalem v. The Labour Court and others, [39] at p. 233; MAppCr 2708/95 Spiegel and others v. State of Israel [40] at p. 232).  The Basic Law: Human Dignity and Freedom does not explicitly recognize the right of appeal.  The question whether it is possible to recognize a constitutional right of appeal among the protected rights in the Basic Law: Human Dignity and Freedom has not yet been considered in the case law.  Various possibilities can be conceived for anchoring the right in the Basic Law, whether as derivative of rights explicitly detailed in the Basic Law (in our matter – the right to liberty and perhaps dignity), and whether as stemming from the principle of proportionality in the limitation clause (meaning: defining the violation of liberty, property and more without first having an appeals process, is a violation “that exceeds that which is necessary.”  Compare to the words of Justice Or – as to the right to a fair trial – in LCA 5587/97 Israel Attorney General v. Ploni (John Doe) [41] at p. 861).  On the other hand, a view has been expressed which objects to the recognition of the right of appeal as a right that is derived from the Basic Law, although in discussion of the civil aspect, primarily for pragmatic reasons and taking into consideration the characteristics of our legal system (see S. Levin ‘Basic Law: Human Dignity and Freedom and Civil Legal Processes,’ [64] at pp. 462-463, and the discussion in his book supra at pp. 30-33).  It is interesting to note that in legal systems close to ours the right of appeal is not recognized as a constitutional right; it is not explicitly mentioned in the United States Constitution or the Canadian Charter of Rights and Freedoms, and to date has not been recognized as part of the constitutional right to due process.  (See; McKane v. Durston [52]; Jones v. Barnes [53]; W. R LaFave Criminal Procedure (2nd. ed., 1992) [68] 1136-1137).  Although voices calling for a re-examination of the law in this matter have been heard (See: in the United States – the minority opinion of Justice Brennan in the Jones case above; M. M. Arkin ‘Rethinking The Constitutional Right To a Criminal Appeal’ [72]; A.S Ellerson ‘The Right to Appeal and Appellate Procedural Reform’ [73]; in Canada see D. Gibson ‘The Crumbling Pyramid: Constitutional Appeal Rights in Canada’ [74]; R v. Farinacci [59].

As noted above, whether the right of appeal is recognized in our legal system as a basic right or not, there is no arguing its significant weight  in our system.  For the purpose of the matter which we are discussing – determining the discretion for stay of execution of a prison sentence in the framework of existing legislation – it is enough that we give thought to the rule of construction anchored in case law according to which an interpretation which gives the right of appeal is to be preferred over one that denies it.

16.  These are therefore the considerations and interests which are involved in exercising the court’s discretion in the stay of execution of a prison sentence, considerations which relate to both private individuals and the general public interest.  The court must exercise its discretion while conducting a proper balance among these considerations.  In the framework of conducting this balance special weight is to be given to the fear of unjustified violation of liberty.  The right to liberty has been recognized by this court as a basic right of the highest degree, that is to be respected and violation of it to be avoided to the fullest extent possible.  (See MApp 15/86 State of Israel v. Tzur [42] at p. 713 Justice Elon; The Judgment of Justice Heshin in MAppCr 537/95 Ganimat v. State of Israel [43] at 400-401).  Today the right to liberty is anchored in section 5 of the Basic Law: Human Dignity and Liberty.  The statutory provisions which we discussed above, which delineate the matter of stay of execution of a prison term, were in fact legislated before the legislation of the basic law and thus the provisions of the Basic Law cannot impinge on their validity (section 10 of the Basic Law: Human Dignity and Liberty).  However, the normative determination in the Basic Law, which defines the right to personal liberty as a constitutional right and which draws the balancing point between it and the various interests which society seeks to advance, influences the legal system overall; the significance of this influence, among other things is that the court’s interpretive work, as well as any exercise of discretion given to the court in the framework of existing legislation, will take place while taking into consideration the norm anchored in the Basic Law.  President Barak discussed this in the Genimat case above:

“What are the interpretive ramifications of the Basic Law: Human Dignity and Liberty for interpretation of old law?  It appears to me that one can point –without exhausting the scope of the influence – to two important ramifications of the Basic Law: first, in determining the statutory purpose at the core of an (old) statute, new and intensified weight is to be given to the basic rights established in the Basic Law.  Second, in exercising governmental discretion, which is anchored in old law, new and intensified weight is to be given to the constitutional character of the human rights anchored in the Basic Law.  These two ramifications are tied and interlaced with one another.  They are two sides of the following idea: with the legislation of the basic laws as to human rights new reciprocity was drawn between an individual and other individuals, and between the individual and the public.  A new balance has been created between the individual and the authorities.”  (Ibid. at p. 412)

17. As said above, the State claims that the defendant who has been convicted and sentenced to prison does not have a basic right to personal liberty.  Therefore, the State claims that the Basic Law: Human Dignity and Liberty has no relevance to the matter before us.  In any event the State claims that even if the right exists the law regarding stay of execution of a prison sentence meets the conditions of the limitation clause.  The general question whether the person who has been convicted and sentenced to prison has a ‘constitutional right’ to freedom, violation of which is subject to the tests of the limitation clause in the Basic Law, is a broad question.  Various approaches may be taken as to this question: thus for example it is possible to argue the absence of such a protected basic right, or to its being a right of lesser weight than other right which are anchored in the Basic Law (see A. Bendor, ‘Criminal Procedure and Law of Evidence: Development of Individual Human Rights in Procedural Criminal Law,’ [65] at p. 500; the words of Justice Dorner in HCJ 1715/97 Office of Investment Managers in Israel and others v. Ministry of Finance and others, [44] at p. 418 and on).  It is interesting to note that the Canadian case law that deals with the rights of prisoners, has recognized in certain cases the violation of the right to liberty of a convicted person serving a prison sentence, such as when there is a substantive change in the conditions of imprisonment or in the rules which apply to release on bail (see P.W. Hogg, Constitutional Law of Canada (4th. ed., 1997) [69] 1069; Cunningham v. Canada [60]; Miller v. The Queen [61] 112 – 118).

In our case there is no need to attempt and examine this question to its full extent and in the full range of situations in which it might arise.  This is because the question before us arises in a special situation and it is possible to limit the discussion to it alone.  In the matter before us, it appears to me that the State’s claim according to which determination of the question of the stay of execution of a prison sentence does not involve any violation of the right to liberty is not to be accepted.  The State is correct in its claim that when a person’s guilt has been determined by a court beyond a reasonable doubt, the assumption is that “there is a justification, which meets the standards of the limitation clause for executing the sentence imposed upon him.”  It is also true that the violation of the liberty of the convicted person is derivative of the judgment which has overturned the presumption of innocence, and from the sentence.  However, the complete distinction which the State wishes to establish in our case between denying liberty based on an authorized judgment and the determination of the date of commencement of the execution of the sentence, ignores the fact that the denial of liberty itself which is expressed in the immediate imprisonment, takes place at a stage in which the question of the accused’s  innocence has not been  finally determined.  A judicial judgment by which a person’ liberty is denied is also valid at the appeals phase as long as it has not been changed.  And yet, as long as a final decision has not been made there exists the potential to change the decision at the appeals phase and to reinstate the presumption of innocence.  In this situation, a decision whose significance is immediate imprisonment of a person, in accordance with the judgment which is the subject of the appeal, carries with it, beyond the immediate-physical violation of personal liberty, the possibility of serious violation of the liberty of an innocent person.  The severity of such violation may only be fully realized at a later stage, if, and to the extent that, the appeal of the convicted person is upheld and it is found that he served his sentence needlessly; but the existence of this possibility is the result of a decision as to the immediate execution of the prison sentence.  Against this background it can be said, that if we hold to the view that a person who has been convicted and sentenced to prison has no right to liberty then such a determination is fitting for an absolute conviction.  At the phase in which there is not yet a determination on the appeal of the convicted person, the right to liberty exists as a right but its intensity is weakened in light of the judicial determination which stands as long as it has not been overturned.

Indecision which relates to the question of violation of a constitutional right to liberty as a result of the immediate execution of a prison sentence prior to the determination of the appeal, has also been dealt with in the Canadian courts.  It is interesting to note that there, conflicting decisions have been handed down.  Thus, in the matter of R v. Farinacci [60] the prosecution’s claim – that was argued as part of a discussion as to the constitutionality of the statutory provision which deals with release on bail during the period of appeal –that the statutory provisions which deal with the release of a convicted person during the period of appeal do not violate the convicted person’s liberty, but rather the opposite is true – they advance it, and therefore are not subject to constitutional limitations, was dismissed.  In dismissing the claim the judge of the appeals court of Ontario established that:

“I cannot accept the respondent's contention that there can be no resort to s. 7 of the Charter in this case because s. 679(3) of the Criminal Code is not a provision which 'authorizes’ imprisonment but rather a provision which enhances liberty. There is, in my view, a sufficient residual liberty interest at stake in the post-conviction appellate process to engage s. 7 in some form. ... The respondent’s submission that s. 7 does not apply to bail pending appeal because, after conviction and sentence to a term of imprisonment, bail operates to enhance rather than to restrict liberty, proceeds from the same formalistic and narrow interpretation of constitutionally protected rights. In so far as the state purports to act to enhance life, liberty or security of the person, it incurs the responsibility to act in a non-arbitrary, non-discriminatory fashion and cannot deprive some persons of the benefits of the enhancement without complying with the principles of fundamental justice.” (Supra, at 40 - 41).

On the other hand, in another  decision in Canada the claim was dismissed according to which the statutory section which relates to release during the period of the appeal is not constitutional, while the claim of the prosecution there was upheld that the said statutory provision does not violate the right to liberty at all, as that was denied in the sentence, while the said statutory provision enables the freeing of the appellant:

“While the appellant's imprisonment clearly deprives him of his liberty, the authorization for this imprisonment does not derive from s. 679(3)(c). Rather, the appellant’s liberty is deprived by the sentence imposed by the trial judge. Nothing in s. 679(3)(c) adds to this deprivation. To the contrary, the provision affords a means of arranging the appellant's release. The appellant's liberty interests can only be enhanced by s. 679(3)(c), under which the operation of the sentence imposed by the trial judge may be temporarily suspended. There is thus no deprivation of any right in s. 679(3) (c). For this reason, I conclude that s. 7 does not apply to bail pending appeal.”

(R v. Branco) [62]).

In light of what has been said above it may be summarized and stated that when we come to establish the limits of appropriate judicial discretion for stay of execution of a prison term during the pendency of the appeal, we must do so while paying heed to the importance and the status of personal liberty, and the limits of permitted violation of it in accordance with the principles that were delineated in the Basic Law: Human Dignity and Liberty.  Justice Zamir discussed this in MAppCr 3590/95 Katrieli v. State of Israel [46], when he examined the guiding considerations in the matter of stay of execution of a prison sentence during the period of the appeal.

“Inter alia, weight is also to be given in this context to the Basic Law: Human Dignity and Liberty.  This basic right protects a person’s liberty (section 5) and although it is not sufficient to impinge on the validity of the Criminal Procedure Law, it is sufficient to influence via interpretation, the provisions of this statute as to release from detention or imprisonment.  In this vein, it is to be said that even when the law and the circumstances require denial of the liberty of a person in detention or prison, liberty is not to be denied to an extent that exceeds that which is necessary.”  (Emphasis added D.B.)

18.  In light of the various considerations and interests involved in the matter of stay of execution detailed above, how will the court exercise its discretion when coming to examine an application to stay execution of a prison sentence that has been imposed, until disposition of the appeal?  We will note first that the response of the applicant’s counsel to this question which rests primarily on the decision of Justice Ilan in the Hahami case above, is not acceptable to us.  This approach according to which the very filing of the appeal justifies stay of execution of the sentence, with the exception of cases where there is a fear that the convicted person will endanger public safety or will not appear to serve his term, is far reaching.  It does not properly distinguish between the phase of detention – when the presumption of innocence still holds, and the phase after conviction; it misses the target of the objective of giving effective deterrent expression to penal law punishment and may damage public confidence in the law enforcement system due to the release, as a matter of course, of those who have been convicted of criminal offenses.  It may also encourage filing meaningless appeals for the purpose of stay of the prison sentence.  In this matter we also cannot learn from the customary  law on this issue in the continental systems, where the criminal procedural process, the definition of the tasks of the court of appeals and the degree of its involvement in the determinations of the court of first instance is different from our system.  (See S. Levin’s book, ibid. [63] Damaska article [70] ibid.).

With that, the “accepted approach” for stay of execution of the prison sentence during the pendency of the appeal, in its traditional and limited meaning, no longer stands.  The appropriate approach to this issue must take into consideration and give weight to the totality of relevant considerations and interests which we have discussed which may apply to the various interests involved in the matter and the their degree of intensity under the circumstances and give them the appropriate relative weight.  According to this approach strict rules are not to be established for the exercise of discretion but rather guiding frameworks are to be delineated for its exercise.  The starting point must be that the court must utilize its discretion in a manner that takes into account the public interest in immediate enforcement of imprisonment, still prior to the hearing of the appeal, but must take care, however, that the realization of this interest does not harm the convicted person and their rights in a manner that goes beyond that which is necessary.  As detailed above, the directive of the legislature is that as a rule, a sentence of imprisonment is to be executed immediately after the sentence is handed down.  As we have explained, filing an appeal on a judgment does not in and of itself stay execution of the judgment, but rather the matter is given to the discretion of the court.  Nonetheless, when the court comes to decide on an application to stay  the date of commencement of the prison term on the basis of the authority given to it by law, the filing of an appeal constitutes an additional consideration that may impact the totality of considerations which are before the court, and the balance among them.  The burden is on the applicant for stay of execution of the prison sentence to convince the court that under the circumstances the public interest in immediate execution of the prison sentence  is overridden by the additional interests implicated in the case which we have discussed above.

The relevant considerations and interests will be examined by the court that is considering the applications, without purporting to present a closed list, we will discuss below the circumstances and primary considerations that the court must weigh when considering an application by the convicted person to stay execution of the prison sentence during the pendency of the appeal on the judgment:

(A)  The Severity of the Crime and the Circumstances of its Commission: the severity of the crime and the circumstances of its commission influence the intensity of the public interest in immediate enforcement of the prison sentence.  As a rule, the more severe the crime and the circumstances of its commission, the greater the public interest in immediate enforcement of the imprisonment, in its various aspects.   So too, as to the fear of the danger that the convicted person poses to the public, the severity of the crime of which he was convicted can in and of itself be an indication of his dangerousness.  As to the essence of the offenses which constitute on their own an indication of dangerousness, one can also learn from the laws of detention, according to which being accused of certain offenses creates a presumption as to the dangerousness of the accused (see: Arrests Law s. 21 (a)(1)(c)).  It is to be noted that in American law it has been established by law that a person who was convicted of committing certain serious offenses, such as violent offenses or offenses punishable by death or imprisonment beyond a certain time period, are not to be released on bail or the conditions for release are harsher than usual (see Bail Reform Act of 1984, s. 3143(b)(2); 8A Am.  Jur.  2nd. [76] 283) the severity of the crime and the circumstances of its commission also have ramifications on the intensity of the interest of protecting the effectiveness of criminal punishment and the actions of law enforcement authorities; the greater the severity of the offense and the circumstances of its commission, the greater the public interest in achieving effective deterrence from commission of similar crimes by others and the greater the fear of damage to the effectiveness of punishment and public confidence in enforcement systems if the convicted person is set free.  And note: as to this last matter I do not believe that the severity of the offense needs to be determined only according to the measure of the violence involved in its commission.  According to my approach, even the release of somebody convicted of committing offenses that do not involve severe violence and are not of the type of offenses listed in section 21 (a) (1) (c) of the Arrests Law, but which damage protected social interests of importance, including offenses of far-reaching fraud or corruption offenses that were committed through the abuse of public office, may under certain circumstances damage public confidence in law enforcement authorities and the effectiveness of criminal enforcement.  Such damage is a consideration among the considerations of the court in making a determination as to stay of imprisonment, within the examination of the background of the other facts of the case.

(B).  The Length of the Prison Term Imposed on the Convicted Person: The length of the prison term may affect the court's discretion in a number of ways.  First, when the prison term is brief, relative to the date in which the appeal is expected to be heard, there exists a fear that the convicted person will serve his sentence before his appeal is heard.  In such a case, it is appropriate to stay execution of the sentence in order to enable the convicted person to effectively realize the right of appeal which he has by law.  This approach is also acceptable within the traditional approach for staying execution of a sentence.  And it appears that it is necessitated by the accepted rules of construction as developed in the case law, according to which legislation is to be constructed in a manner that validates the right of appeal and enables its realization.  Second, the length of the prison term imposed on the convicted person may influence the assessment of the fear of flight of the convicted person from the law or attempts by him to obstruct justice; the concrete knowledge of the convicted person that if he fails in his appeal he is to expect a prolonged prison term, may increase the fear that he may flee from the law, this is so even if in the course of his trial in the trial court he appeared for his trial as required.  Third, the severity of the punishment that was imposed on the convicted person teaches us of the severity of the crime of which he was convicted, as generally punishment reflects the severity of the criminal act.

(C).  The Quality of the Appeal and the Chances of its Success: A central question to which we must give thought is what is the weight that is to be given to the fact of filing an appeal and to the chances of the appeal.  For the reasons we have already detailed, we have seen fit to reject the approach according to which the very filing of an appeal justifies stay of the execution of the sentence.  However, it appears that a perspective according to which it is appropriate to make a change from the present law, relates to the weight that is to be given to the quality of the claims raised in the appeal and the chances of its success in the framework of examining an application to stay execution of a sentence until the disposition of  the appeal.  The accepted approach in the case of stay of execution of a sentence leaves a particularly narrow opening for consideration of the appeal of the convicted, when it is not a matter of a short prison term and light offenses.  According to this approach, only conspicuous chances to win the appeal or salient distortion in the conviction justify stay of execution of the sentence during the pendency of the appeal.  This test establishes a high threshold which only in a few cases will the convicted person seeking to stay his imprisonment meet.  Such a test can injure in a disproportionate manner the freedom of the convicted person and the effective realization of the right of appeal; it creates an overly large gap between the level of examination at the preliminary phase of the decision on the application to stay execution of the sentence, and examination of the appeal itself, and increases the chances that serving the sentence will turn out retroactively to be unjust.  Under these circumstances, the means of immediate execution of a sentence may cause damage which is more than the utility contained within it.  It is not superfluous to note, that the test as to the chances of the appeal as it had been phrased in the case law, has in point of fact "been abandoned" in many decisions of this court, and even the State in its arguments before us does not phrase the appropriate rule according to its approach with such narrow language.

The consideration which relates to the chances of appeal is a relevant consideration to the question of stay of execution of the sentence during the period of appeal.  The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment before the appeal is heard on the merits.  However, it is not to be ignored that the consideration as to the chances of the appeal is a complex consideration, and assessing the chances of the appeal and its quality places before the judge difficulties which are not negligible.  From the character of the procedure which takes place during the application to stay execution of the sentence it can be derived that the judge does not have sufficient tools to assess in an informed manner the arguments raised in the appeal; the procedure takes place on the basis of a theoretical examination of these arguments and does not generally include studying the transcript and the totality of the evidence that was brought in the case.  Moreover, it is not desirable that a judge dealing with an application to stay the execution of a sentence, will make determinations that may have an influence on the discussion in the appeal itself.  Despite said difficulties, we are not dealing with an extraordinary assignment that judges are unaccustomed to.  Theoretical assessments are not new to the court, and it is accustomed to implementing considerations of this type at the phase of discussion of detention pending completion of the proceedings as well, when the presumption of innocence still stands.  A similar process of assessing the theoretical chances of an appeal, is also familiar to the court when dealing with applications to stay execution of a sentence in civil appeals.  We will note further that  in other legal systems which are similar to ours, weight is given to the chances of appeal and its quality in the framework of a determination as to stay of imprisonment until disposition of the appeal: thus, it is determined by federal law in the United States that the release of a convicted person on bail during the course of the pendency  of his appeal is conditioned on his proving that his appeal "raises a substantial question of law or fact likely to result in reversal..."  (Bail Reform Act of 1984, S. 3143 (b) (B)).  Courts are split as to the interpretation of this section, but it appears that the common approach is that the convicted person must show that the appeal raises a  question that is at least "balanced" in its chances ("close question").  (See T.W. Cushing “Raising a ‘Substantial Question’: The Key to Unlocking the Door Under the Bail Reform Act”  [75] 198). Indeed, the Canadian Law makes do with the requirement that the appeal  is not baseless or ‘frivolous,’ but in a number of decisions a statutory condition as to the lack of public interest in the imprisonment of the convicted person has been interpreted as including, inter alia, the assessment of the quality and strength of the appeal arguments. (See: R. v. Mcauley (1997) Ont. C.A Lexis 3[56]; R. v. Farinacci [59]; R v. Pabani [55]).

The theoretical assessment of the chances of appeal, in the framework of examining an application to stay execution, is not done by a "mechanical" probability test relative to the possible results of the appeal: such an examination is not possible in fact and it is not desirable for it to be undertaken by a single judge at such an early phase of the discussion.  The judge dealing with an application to stay execution of a sentence is to examine the quality of the arguments on appeal and their type, and assess their  inherent potential to influence the outcome of the appeal.  The theoretical strength of the arguments will be examined against the background of the accepted rules in our system relative to the exercise of review by the appeals court.  Thus, for example, claims by the applicants to change factual findings of the lower court which are based on its impression of witnesses, or reliable determinations of that court, will not generally be sufficient to base good theoretical chances for the appeal.  When the appeal is focused on legal questions, for which it can be determined on a theoretical level that they raise real difficulty, this will be sufficient, generally, to point to an appeal which justifies stay of execution of the sentence until these are clarified.  It is not unnecessary to note that it is not the outer legal dress which is given to the appeal argument which is determinative, but the substance of the argument and the degree of its relation and relevance to the concrete circumstances of said case, in a manner that is sufficient to influence the results of the appeal if the claim is upheld.  Thus,  it can be summarized that when it is a matter of serious arguments, that by their nature and character – if they are accepted – are sufficient to influence the results of the appeal this will contain a significant consideration for justifying stay of execution of the imprisonment until disposition of the appeal, all this taking into account the totality of circumstances of the matter.

(D.) The Criminal History of the Convicted Person and his Behavior During the Course of the Trial: as has already been noted above, these circumstances may point to the degree of dangerousness that is posed to the public from release of the convicted person and the existence of a fear of flight from the law.  This being the case, they may be relevant to applying the court's discretion when it examines whether to stay execution of a prison sentence until disposition of the appeal.  And note: this is not a matter of a consideration that stands on its own, and therefore it is not in every case that the convicted person without a criminal history or for whom it has been proven that he appeared properly during the course of his trial, will be sufficient to determine the matter of stay of execution of a prison sentence.  It may even be said that generally, at the phase after conviction, a clean record and careful adherence to the conditions of bail during the time of the trial proceedings, are not of themselves sufficient to tilt the scale to stay execution of the sentence, taking into account the impact of the conviction and sentence on the assessment of the dangerousness and on the fear of flight by the convicted person, and considerations of deterrence and effectiveness which we discussed above (see paragraph 13 supra).  But in the framework of the totality of the relevant considerations against the  examination of the severity of the offense, the degree of punishment that was imposed and the nature of the appeal, it is possible to also take into account data as to a clean criminal history of the convicted person and his good behavior during the course of the trial.

(E) The Personal Circumstances of the Convicted Person: in the framework of examining the application to stay execution of a prison sentence, it is possible to also examine, in appropriate cases, the personal circumstances of the convicted person.  A judicial decision, whose immediate significance is imprisonment of a person, whether it is a matter of the sentencing phase or whether it is the appeal phase, does not need to entirely ignore any claim as to personal circumstances of the person and as to the consequences he may expect as a result of his imprisonment.  Accordingly, personal circumstances constitute a consideration in the stay of execution of the prison sentence not only under the circumstances of the filing of an appeal.  Moreover, the existence of special personal circumstances, may also influence the weight of the public interest in immediate execution of the prison sentence.  The words of Justice Barak in MAppCr 37171/91 State of Israel v. Golden [46] which were said on the separate  topic of detention pending completion of the proceedings on the grounds of severity of the offense (prior to legislation of the Arrests Law), are appropriate here:

"The injury to the effectiveness of the criminal law and its enforcement, which is caused where someone who committed a severe offense, is "out and about" is tied, by its nature, to the theoretical circumstances of commission of the crime.  The efficiency of law enforcement will not be harmed, if someone who theoretically committed a serious offense is not detained because they are dying.  Everybody understands that the special circumstances of the case justify that even someone who theoretically committed a severe offense, will not be arrested under these circumstances.  Quite the opposite: arrest of the accused under these circumstances may create the impression that the state is taking revenge on the suspect and seeks him ill." (Ibid. at p.  814.  Emphasis added -- D.  B.)

It appears to me that the logic behind these words is appropriate, with the appropriate changes, also when we are talking of the difficult personal circumstances of the convicted person whose appeal is pending.  Indeed, taking into consideration the fact that we are now at the phase after conviction, it is possible that personal circumstances -- on their own -- will not generally have much weight in the decision of the court as to the stay of execution of a prison sentence, as the premise is that the court that imposed the sentence, also considered among the punitive considerations the existence of these circumstances.  However, there may be cases in which it appears on the face of it that this premise does not exist; thus for example, when the personal circumstances which are argued developed or changed significantly after the sentence was handed down.  So too, in other cases due to the special personal circumstances of the convicted person, such as his young age, his difficult mental condition or additional considerations for which the consequences of execution of the prison sentence may be particularly difficult.  In such cases, the personal circumstances will add additional weight to the decision to stay execution of the prison sentence until disposition of the appeal.  We will note that from examination of the decisions of this Court in applications to stay execution it appears that special personal circumstances indeed occasionally serve as a consideration among the considerations of the court when coming to determine applications to stay execution of prison sentences during the pendency of the appeal (see for example MAppCr 4092/94 Tioto v. State of Israel [47]; CrimA 6579/98 Friedan v. State of Israel [48]).

(F) Appeal as to Severity of the Punishment:  An additional consideration that is to be weighed in applications to stay execution of prison during the period of appeal, is whether the appeal is directed against the judgment and challenges the conviction itself, or whether it is a matter of an appeal that deals with the severity of the punishment that was imposed only?  As a rule, in appeals of the latter type, the tendency will be not to stay execution of the prison sentence.  When the appeal is on the severity of the punishment, the balance of the considerations and interests which is before the eyes of the court may change.  In such a case, the conviction itself -- which refutes the presumption of innocence -- is absolute, and  the same potential does not exist for it to be restored on appeal, which we discussed above.  Examining the quality of the appeal and its chances will be done while noting the rules as to the degree of intervention of the appeals court in punishment that was imposed by the trial court, and the question of the relationship between the time expected for hearing the appeal and the period of imprisonment that was imposed on the convicted person.  When on the face of it is not a matter of a punishment which deviates from the accepted punitive policy, and when the degree of punishment that is accepted in similar cases is greater than the amount of time expected for hearing the appeal, execution of the prison sentence will not be stayed except in exceptional circumstances and the burden for showing this is so will be on the applicant.  (Compare: CrimA 3602/99 Ploni (John Doe) v. State of Israel [49], Justice Ilan; 3976/99 Ephraimov v. State of Israel [50], Justice Strasberg-Cohen).

19.  As said, the list of circumstances detailed above does not purport to be exhaustive.  It exemplifies the type of circumstances and considerations that have in them to influence the application of discretion by the court when it comes to determine an application to stay execution of a prison sentence during the pendency of the appeal; these considerations relate to the public interest in immediate enforcement of the judgment on the one hand, and preservation of the rights of the convicted person on the other hand.  The court must determine each and every case according to its facts, while balancing between the different interests which we have discussed above relating to the topic.  It is important to emphasize that the considerations which we discussed are not static and do not stand on their own, but influence each other.  The work of balancing between them will be done after assessing the strength of the various interests and the weight that is to be given to each of them under the circumstances of the case.  Thus, for example, the more the convicted person can show that his theoretical chances of success on appeal are good and well founded, the lesser the weight of the public interest in immediate enforcement of imprisonment, and thus, depending on the matter, will be narrowed to those considerations of danger to the public or flight from the law, which also apply in the law of detention pending completion of the proceedings.  So too, the more it is a matter of conviction of a more severe criminal offense, the circumstances of whose commission are more severe, so too will the burden increase on the convicted person that seeks to stay execution of his prison term to show that there exist circumstances which justify stay of execution of the prison term despite the public interest in its immediate enforcement.

Conclusion

20.  In conclusion, the summary of our position as to stay of execution of a prison sentence during the pendency of appeal, is this:

A.  The filing of an appeal is not sufficient on its own to stay execution of a prison sentence.  Stay of execution of a prison sentence during the pendency of the appeal is a matter for the discretion of the court.

B.  The approach which was accepted in the case law of this Court, according to which stay of execution of a prison sentence during the period of appeal is a matter of an exception which applies only in extraordinary cases and under the existence of special circumstances, no longer holds.

C.  In applying its discretion as to stay of execution of a prison sentence during the period of appeal, the court will consider the public interest in immediate enforcement of the judgment, and considerations which relate to the convicted individual and his rights in light of the existence of a pending appeal proceeding; the court will make sure that protection of the public interest will not harm the convicted person and his rights in a manner that is not proportional.  The type of relevant circumstances and considerations which the court will take into account when applying said discretion, were detailed in our decision.

D.  The burden on the applicant for stay of execution of the prison sentence is to convince the court that under the circumstances of the case, the public interest in immediate execution of the prison sentence retreats in the face of the additional interests involved in the matter.

The approach we propose is not new to the case law of this Court; and it is integrated with a broadening trend taking shape in previous decisions of the court, such as for example in the judgments of Justice Strasberg-Cohen in the Mercado, Kochanski, and Sharabi cases above.  This approach operates to make the accepted approach for stay of execution of a prison term during  the pendency of the appeal more flexible in a manner that will reflect the totality of considerations and interests involved in the matter, while giving appropriate weight to the concern for violation of the rights of the convicted person.

From the General to the Specific

21.  Having drawn the basic framework, we turn to the application of the guidelines in exercising our discretion in the circumstances of the applicant’s case.  It should first be said that the case before us is not of the easier cases for determination, both because of the type of offense, and because of the reasons for the appeal and because of the "borderline nature" of the period of imprisonment.  Moreover, the date of determination of the appeal arrived after the applicant received, in fact, a significant stay of execution during the time that was required to formulate our approach to the fundamental issue.  However, the correct question is – if the matter of the applicant had come to us a priori -- whether based on the guidelines that we have delineated we would have upheld the application to stay execution of the prison sentence until the disposition of the appeal.  I have come to the conclusion  that were I to consider the application and make a decision as to it a priori, according to the criteria we proposed, while balancing among the relevant considerations, I would have tended in the direction of immediate execution of the prison sentence.

The offenses with which the appellant was convicted -- rape and sodomy -- are severe offenses, and seemingly by their nature are the type of offense which point to the dangerousness of the person convicted of committing them.  Generally we will rarely stay execution of the sentence for convictions of offenses of this type, for reasons of public interest, including the enforcement interest.  Moreover, the period of imprisonment that was imposed on the applicant -- 3 years of imprisonment in fact-- is not considered among the short time frames for which it is appropriate to give a stay of execution only to enable hearing of the appeal; at most, it would have been justified to move the hearing of the appeal forward, in consideration of the length of the prison term.  When we come to weigh the chances of the appeal we must give thought to the fact that the notice of appeal is directed primarily against findings of fact and findings of credibility, and does not raise serious legal questions.  Generally such an appeal, on its face and lacking reasons that would show otherwise, does not have a large theoretical chance, even if of course we cannot rule out the possibility that the claims or some of them will eventually be accepted.  To all this is to be added, that apparently it arises from the sentence that the court took into account the personal circumstances of the applicant, and the normative background, and gave them expression in the sentence that was handed down.  There are not in the personal circumstances of the applicant extraordinary considerations of the type that justify stay of execution of the prison sentence in order to prevent special harm that is expected from the fact of imprisonment.  Therefore, if the grounds for the application had been before us under regular circumstances they would not be sufficient to convince us to stay execution of the sentence.

However, when we come to determine the matter of the applicant today, we must also consider among our considerations the fact that the applicant has been free on bail for a long period of time since the sentence was handed down and his appeal may be heard soon.  For this reason, and in consideration of the date that has been set for hearing the appeal, it is not appropriate, at the present phase in the proceedings, to order the immediate imprisonment of the applicant. 

 

President A. Barak

I agree.

 

Vice-President S. Levin

I agree

 

Justice T. Or

I agree.

 

Justice E. Mazza

I agree.

 

Justice M. Cheshin

I agree.

 

Justice T. Strasberg-Cohen

I agree.

 

Justice D. Dorner

I agree.

 

Justice Y. Kedmi

1. Stay of Execution of a Prison Sentence

My colleague, Justice Beinisch is worthy of accolades for the effort invested in preparing her thorough and comprehensive opinion.  Strength to him.

I join the result that my colleague has reached: and the framework of considerations proposed by her as a basis for consideration of an application to stay execution of the prison term against the background of filing an appeal is acceptable to me.  However, in light of the language of the summary presented in paragraph 20.b. to the judgment which states: “stay of execution of a prison term during the period of appeal,” is no longer “an exception which applies only in extraordinary cases and under the existence of special circumstances” – I find it necessary to add a qualifying comment.

The summarizing language in said paragraph may leave the impression, that stay of execution of a prison term under said circumstances is no longer an ‘exception’ to the rule which requires immediate execution of such a judgment.  In my approach, from the substantive-fundamental approach, this is not the stance which is necessitated by the clarification undertaken by my colleague in this matter in her judgment; and does not sit well with imposing the burden of persuasion – as to existence of circumstances which justify stay of execution on the applicant, as necessitated by the language of paragraph 20.d. of the summary.

Reading the judgment teaches me at least, that from the fundamental perspective the law and the case law in the following two areas have stayed as they are.  One – and this is the primary one – that based on the written law, the rule is that a prison term is to be executed immediately upon imposition, unless there exist grounds which justify staying its execution; when the individual seeking the stay, bears the burden of persuasion of the court as to the existence of the grounds.  And the second – whose practical significance does not fall below that of its predecessor – that the central consideration for justifying deviation from the said rule, is contained in the chances of the appeal’s success.  I have also learned from the judgment: that the specific secondary considerations which are grounded in the special circumstances of a said case – that were developed in this context in the case law, have also been left as is; and there is no basis for the argument heard lately in courts according to which: the provisions of the Basic Law: Human Dignity and Liberty, undermine the basis from the existing law in the matter of stay of execution and necessitate establishing an innovative approach, at the basis of which stands the constitutional right to personal liberty.

The change presented in the judgment, is, in my view, a change in the policy of the application of the existing rule; as opposed to a conceptual change which establishes a new rule.  To this character of the change – with which, as said above I agree – I found explicit expression in the words of my colleague according to which: the change “relates to the weight that is to be given to the quality of the arguments raised in the appeal and the chances of its success”; in a manner that “The more that the convicted person is able to show that his appeal is based on solid arguments the greater the justification to avoid immediate enforcement of the judgment.”  Therefore: we do not have a fundamental revolution here, rather – clarification of the proper application of the rule already existing for us according to which: from now on the threshold of requirements for stay of execution, is no longer as high as was to be understood from decisions given in the past in this matter, but lower and more flexible.

In summary, in my view – and in this I differ from the conclusion – there are two guidelines necessitated by the judgment: first – there is no room for the approach which says that “only blatant chances for success on appeal or a manifest distortion on the face of the conviction, justify stay of execution of the prison sentence during the pendency of the appeal”; and second – the judge considering the application must examine “the quality of the arguments on appeal and their type to assess the potential entailed in them to influence the results of the appeal.”

2. Joining a Party to the Proceeding as a “Friend of the Court”

Granting the Public Defender’s application to join the discussion as a “friend of the court” in the case before us, is not in line with my view in the matter.  Here are a number of comments which reflect, fundamentally, my view on the subject.

The inherent authority of the court to join a “friend” to the discussion is an exception to the character of the judicial proceeding which is customary here.  It is proper therefore to take care to make use of this authority in the rarest of cases, when the circumstances justify not only deviation from the rule, but necessitate it.  The fact that the “friend”  has the power to offer the court “assistance” in the solution of the legal problem before us, does not constitute, on its own, a sufficient basis for inviting a “friend” to join the discussion.  For it we say this, the “friend” will become the “legal helper “of the court; and in my view this is not the purpose of the existence of this institution.  In our system, the court copes with “legal issues” with the help of the “natural” parties who appear before it; when at the top of their priorities – and this is particularly so of defense attorneys – stand the accused and not consideration of the analytical-fundamental legal issue, which relates to the totality of accused or others involved in the criminal act which is the subject of the discussion.  The court does not need offers of professional legal help from the broad public; and particularly not from those who have an interest in promoting one solution or another to a problem that is to be determined in the discussion taking place before it.

As a rule, therefore, it is appropriate, in my view, to limit the invitation of a “friend,” to circumstances of “procedural necessity,” meaning: to circumstances in which the involvement of the “friend” is necessary to ensure the existence of a proper and fair discussion in the matter of the accused standing trial; as opposed to circumstances in which “friends” seek to present their own positions in the matter under discussion.  The friend is indeed the friend of the Court; however, from a practical standpoint, he is the friend of the accused who is in distress. In the case before us, the application of the Public Defender to be joined to the discussion as a “friend” of the court did not come against the background of coming to the aid of a defendant in distress in order to ensure a fair trial in his matter; but rather, against the background of its desire to advance its fundamental position in the legal issue that has been placed by the parties before the court.  In fact, the Public Defender seeks to join itself to the discussion as the “friend of all accused,” all of them; and this so that it will have the opportunity to convince the court of the justness of a judicial policy which appears to it to be consistent with “rights of the accused.”  This is not the end  to which the Public Defender was established; and in any event, this is not the purpose of the existence of the institution of the Court.

In summary: in my view, the institution of the Public Defender was established to ensure legal representation for the accused, when circumstances exist as established in the law; and is not assigned with the advancement of the interests of all defendants as such.  In any event, even if it was assigned the task of protecting the rights of accused in general, this is not sufficient to grant it the status of “friend of the court”; and to prefer it over any other organization that sets as its goal to advance the interests of others “involved” in the criminal proceeding, such as: the entities handling the protection of rights of the victims of the offenses.  It is appropriate that advancement of the rights of all accused be done elsewhere and not in the framework of the consideration of the matter of a given accused person.

Therefore, the application to stay execution of the prison sentence is granted as per the judgment of the Hon. Justice Beinisch.

 

4 Sivan 5760

June 7, 2000

HCJ 680/88

 

1. Meir Schnitzer

2. Aluf Ben, a Journalist

3. Itonut Mekomit Ltd.

v.

1. The Chief Military Censor, Mr. Yitzchak Shani

2. The Minister of Defense

 

 

 

 

The Supreme Court sitting as the High Court of Justice

[January 10, 1989]

Before Barak J., Maltz J., and Wallenstein J.

 

 

 

 

Editor's Synopsis:

                The Petitioners sought to publish a newspaper article that was critical of the outgoing head of the Mossad, the Agency for Intelligence and Special Duties, on the occasion of the forthcoming appointment of a new Mossad head. The article did not mention his name or otherwise identify him. After several versions of the article were submitted for approval to the first Respondent, the Chief Military Censor, and after the Petitioners agreed not to publish certain parts of the article, the Censor forbade the publication of two matters: criticism of the head of the Mossad's effectiveness, on the ground that such criticism would affect adversely the Mossad's ability to function in general in the field of security policy; and disclosure of the impending change in leadership of the Mossad, on the ground that this could focus attention on the head of the Mossad and endanger his safety. The Chief Military Censor purported to act pursuant to authority vested in him by the Defence (Emergency) Regulations, 1945. The Petitioners sought the issuance of a rule nisi, directing the Respondents to show cause why they should not be restrained from interfering with the publication of the article, including the forbidden matter. The High Court considered the substantive issues raised by the case as if an order nisi had been granted and issued an order permitting publication of the article in the above respects, holding:

           

1.   Although the Defence Regulations were promulgated by the Mandatory regime, they are now part of Israeli legislation and should be interpreted in harmony with Israeli democratic values. Such values give prominence to freedom of expression and freedom of the press.

 

2.   The scope of judicial review of "subjective discretion" does not differ from the review of any other discretion. All administrative discretion must be exercised lawfully, that is: within the authority granted by the law granting discretion, for the purpose envisioned by the grant, reasonably, in good faith, on the basis of evidence reasonably evaluated, after giving due consideration of and balancing the other values involved.

 

3.   The values to be balanced in this matter are state security and freedom of the press. There can be no effective exercise of freedom of expression without security. But free expression and public debate contribute to state security as part of the system of checks and balances.

 

4.      Free expression may not be curtailed unless there is a near certainty that the publication will cause substantial and grave harm to security. This is especially so in the case of a prior restraint on the publication.

 

5.      The Military Censor did not meet the burden of proof cast upon him to establish that there exists a near certainty of harm to security if the article will be published.

 

Supreme Court Cases Cited:

[1] H.C. 5/48 Leon v. The Acting Supervisor of the Tel Aviv Municipal Area, 1 P.D. 58.

[2] H.C. 222/68 Nationalist Groups, A Registered Association v. The Minister of the Police, 24 (2) P.D. 141.

[3] H.C. 107/52 Assad v. The Chief of Staff of the Armed Forces, 6 P.D. 339.

[4] F.H. 29/84 Kossoi v. Feuchtwanger Bank, 38 (4) P.D. 505.

[5] Cr. A. 667/83 Borochov v. Yeffet, 39 (3) P.D. 205.

[6] H.C. 953/87 Poraz v. The Mayor of Tel Aviv-Jaffa, 42 (2) P.D. 309.

[7] H.C. 73/53 "Kol Ha-Am" Company Ltd. v. The Minister of the Interior, 7 P.D. 871.

[8] H.C. 58/68 Shalit v. The Minister of the Interiorr, 23 (2) P.D. 477.

[9] C.A. 165/82 Kibbutz Hazor v. Revenue Agent Rehovot, 39 (2) P.D. 70.

[10] E1. A. 2/84 Neiman v. The Chairman of the Elections Committee for the Eleventh Knesset, 39 (2) P.D. 225 (also reported in 8 Selected Judgments xxx).

[11] C.A. 65/57 HaEtsni v. Ben Gurion, 11 P.D. 403.

[12] C.A. 81/55 Kochavi v. Baker, 11 P.D. 225.

[13] Cr. A. 108/66 "Dan" Cooperative for Public Transportation Ltd. v. The Attorney General, 20 (4) P.D. 253.

[14]H.C. 262/62 Peretz. v. The Kfar shmaryahu Local Council, 16 P.D. 2101.

[15] H.C. 301/63 Shitreet v. The Chief  Rabbi of Israel, 18 P.D. 598.

[16] H.C. 243/62 Israel Movie Studios Ltd. v. Greg, 16 P.D. 2407.

[17]H.C. 39/64 EI-Ard Company Ltd. v. The Supervisor of the Northern Region, Nazareth, 18 P.D. 340.

[18] H.C. 153/83 Levy v. The Police Commander of the Southern District, 38 (2) P.D. 393.

[19] H.C. 14/86 Laor v. The Council for Review of Movies and Plays, 41 (1) P.D. 421.

[20] H.C. 644/81 Omer International Inc. New York v. The Minister of the Interior, 36 (1) P.D. 227.

[21] H.C. 355/79 Katalan v. The Prisons Service, 34 (3) P.D. 294.

[22] H.C. 234/84 "Chadashot" Ltd. v. The Minister of Defense, 38 (2)

P.D. 477.

[23] Cr. A. 126/62 Dissenchik v. The Attorney General, 17 P.D. 169.

[24] Cr. A. 696/80 Azulai v. The State of Israel, 37 (2) P.D. 565.

[25] H.C. 253/64 Jerris v. The Supervisor of the Haifa District, 18 (4)

P.D. 673.

[26] H.C. 448/85 Daher v. The Minister of the Interior, 40 (2) P.D. 701.

[27] H.C. 399/85 Kahane v. The Managing Board of the Broadcasting Authority, 41 (3) P.D. 255.

[28] Cr. A. 255/68 The State of Israel. v. Ben Moshe, 22 (2) P.D. 427.

[29] H.C. 372/84 Klopper-Naveh v. The Minister of Education and Culture, 38 (3) P.D. 233.

[30] C.A. 723/74 "Ha'aretz" Newspaper Publication Ltd. v. The Israel Electric Company Ltd., 31 (2) P.D. 281.

[31] H.C. 1/81 Shiran v. The Broadcasting Authority, 35 (3) P.D.365. [32] H.C. 243/82 Zichroni v. The Managing Board of the Broadcasting Authority, 37 (1) P.D. 757.

[33] H.C. 554/81 Bransa v. The Military Commander of the Central District, 36 (4) P.D. 247.

[34] H.C. 292/83 Temple Mount Loyalists, A Company v. The Police Commander of the Jerusalem Region, 38 (2) P.D. 449.

[35] S.S.A. 5/86 Spiro v. State Services Commissioner, 40 (4) P.D. 227.

[36] H.C. 259/84 Israeli Institute for the Selected Business and Product v. The Broadcasting Authority, 38 (2) P.D. 673.

[37] H.C. 562/86 Al Hatib v. The Ministry of the Interior Supervisor of the Jerusalem District, 40 (3) P.D. 657.

[38] Cr. A. 495/69 Omer v. The State of Israel, 24 (1) P. D. 408.

[39] F.H. 16/61 The Registrar of Companies v. Cardush, 16 P.D.1209.

[40] H.C. 241/60 Cardush v.The Registrar of Companies, 15 P.D. 1151.

[41] H.C. 742/84 Kahane v. The Speaker of the Knesset, 39 (4) P.D. 85.

[42] H.C. 389/80 Yellow Pages Ltd. v. The Broadcasting Authority, 35 (l) P.D. 421.

[43] H.C. 910/86 Ressler v. The Minister of Defense, 42 (2) P.D. 441.

[44] H.C. 442/71 Lanski, v. The Minister of the Interior, 26 (2) P.D. 337.

[45] H.C. 361/82 Hamry v. The Military Commander of the Judea and Samaria Area, 36 (3) P.D. 439.

[46] H.C. 56/76 Berman v. The Commissioner of Police, 31 (2) P.D. 587.

[47] H.C. 159/84 Shahin v. The Commander of the I.D.F. Forces in the Gaza Strip Area, 39 (1) P.D. 309.

[48] H.C. 46/50 Alayubi v. The Minister of Defense, 4 P.D. 222.

[49] H.C. 731/86 Micro Daf v. The Israel Electric Company Ltd., 41 (2) P.D. 449.

[50] H.C. 393/82 G'amaut Aschan Alm'almun Alta'unia Almahaduda Almasaulia, A Cooperative Association Legally Registered in the Command Headquarters for the Judea and Samaria Area v. The Commander of the I.D.F. Forces in the Judea and Samaria Area, 37 (4) P.D. 785.

[51] H.C. 329/81 Nof v; The Attorney General, 37 (4) P.D. 326.

[52] H.C. 292/86 HaEtsni v. The State of Israel, 42 (4) P.D. 406.

[53] H.C. 541/83 Asli v. The Supervisor of the Jerusalem District, 37 (4) P.D. 837.

[54] H.C. 2/79 Al Assad v. The Minister of the Interior, 34 (1) P.D. 505.

[55] H.C. 488/83 Bransy v. The Director of the Department for Visas and Citizenship, 37 (3) P.D. 722.

[56] H.C. 306/81 Sharon v. The Knesset Committee, 35 (4) P.D. 118.

[57] H.C. 731/85 The "Kach" Part v. The Speaker of the Knesset, 39 (3) P.D. 141.

 

American Cases Cited:

[58] United States v. Progressive, Inc., 467 F. Supp. 990 (1973).

[59] New York Times Co. v.. United States, 403 U.S. 713 (1971).

[60] Near v. Minnesota, 283 U.S. 697 (1931).

 

 English Cases Cited:

[61] Liversidge v. Anderson [1941] 3 A11 E.R. 338 (H.L.).

[62] Nakkuda v. M.F. De S. Jayaratne [1951] A.C. 66 (P.C.).

[63] Ridge v. Baldwin [1964] A.C. 40.

[64] Reg. v. I.R.C. Ex p. Rossminister Ltd. [1980] A.C. 952.

 

 

JUDGMENT

 

            Barak, J.:

           

            What is the authority of the "Military Censor", acting pursuant to the Defence (Emergency) Regulations, 1945, to bar publication of a newspaper article that criticizes the functioning of the head of the Agency for Intelligence and Special Duties (the Mossad), while noting that the occasion for such criticism is his impending replacement - that is the question which is at the center of the petition before us.

           

            The Petition

           

            1. A daily newspaper called "Ha-Ir" is published in Tel Aviv by the third Petitioner. Mr. Shnitzer, the first Petitioner, is its editor. Aluf Ben (the second Petitioner) is a journalist employed by this newspaper. He prepared an article about the forthcoming changes in the leadership of the Mossad. The article was sent to the Chief Military Censor (the first Respondent) and was disqualified by him (on 3.8.88). The reason given for prohibiting publication of the article was that its publication would prejudice the security of the State. Several days later (11.8.88) the editor submitted to the Censor a different version of the article. This new version was also disqualified on the same grounds of state security. The Censor asked the newspaper to resubmit the article, and this was done (on 14.8.88), this time containing references to persons by name. This version was disapproved for publication (on 15.8.88). Several days later (on 23.8.88), the article was submitted to the Censor in its final form. The Censor approved its publication, save for 32 paragraphs whose publication was prohibited. The petition was brought against this decision.

           

            2. The selections whose publication was prohibited deal with three

  

          matters: First, a description of the head of the Mossad. In the Censor's opinion, these portions could lead to his identification and thus prejudice his personal safety. Second, adverse criticism of the functioning of the head of the Mossad, including on grounds of inefficiency, which did not disclose events which had not previously been revealed. In the Censor's opinion, this criticism of the head of the Mossad would injure the Mossad's ability to function at all levels. In particular, it could harm state security insofar as contacts with parallel agencies in other countries are concerned, as well as with local field operatives. Third, publication of the expected change in the head of the Mossad. In the Censor's opinion, this would focus the attention of those interested in such matters on his person, his movements and his activities, and thereby lead to his identification, particularly abroad, which could cause substantial risk to his safety.

 

          3. Mr. Lieblich, the Petitioners' representative, agreed that all references to the identity of the head of the Mossad should be deleted, and this is no longer an issue before us. On the other hand, it is his opinion that the two other matters - criticism of the functioning of the head of the Mossad and the date of his replacement - should be published and were unlawfully disqualified. Mr. Lieblich emphasized the importance of freedom of expression and the public's right to be informed in a democratic regime. In his opinion, only when there exists a near certainty of prejudice to the security of the State may the Military Censor prohibit publication, and even then he must act reasonably. According to Mr. Lieblich, the publication of criticism of the head of the Mossad and the date of his replacement do not create a near certainty that state security will be prejudiced and the ban on their publication was not reasonable. In his arguments before us Mr. Lieblich stressed the public importance of the position of head of the Mossad - particularly after the Yom Kippur War - and the vital necessity that the most suitable man be appointed to this task. It was, therefore, (according to him) the Petitioners' duty to admonish and arouse those responsible so that the appointment of a new head of the Mossad would be properly weighed, and that it would not be influenced by politics, or by partisan conflicts or by an attempt to compromise by -appointing a mediocre person. Mr. Lieblich emphasized before us that the Petitioners did not mention any names in the article and did not recommend any candidates. Their intention is only to stress the duty to appoint suitable persons so that previous instances of negligence would not be repeated. Mr. Lieblich agrees that the operations of the intelligence services should be secret and protected against publication, but there is no justification, in his opinion, to prohibit publication of criticism of the head of the Mossad. Such public criticism could even result in extra vigilance on his part. Finally, Mr. Lieblich emphasized that it is permissible to publish information concerning the expected appointment of the head of the General Security Services, and there are no grounds to distinguish between him and the head of the Mossad. He also drew attention to an article published in September 1987, which the first respondent had allowed, in which reference was made to the growing agitation in Mossad circles over the appointment of the next head of the Mossad. Mr. Lieblich also pointed out that the Military Censor does not ban publications criticizing the head of the General Security Services, the head of Military Intelligence and the Chief of Staff. In his opinion, there should be one criterion, insofar as public criticism is concerned, for all heads of security organizations.

 

            4. In her reply, Mrs. Arad, who appeared for the respondents, noted that the Military Censor agrees that the right of expression and freedom of expression are basic principles of our system of law which should be honored. This premise has always guided his considerations. Furthermore, the Military Censor accepts the fact that the proper test to be applied in reviewing his powers is that of the near certainty that the publication would prejudice the security of the State. He also agrees that he must act reasonably. However, Mrs. Arad argued, the publication of criticism of the head of the Mossad and of his impending replacement create a near certainty that the security of the State will be harmed, and the prohibition of such publication was reasonable. We have already noted the Military Censor's reasons for his decision to forbid the publication. Mrs. Arad noted that the Military Censor did not prohibit publication of those parts of the article which criticized the Mossad and its functioning in general. He only censored criticism of the outgoing head of the Mossad. The reason for this was, as already noted, that, as long as the head of the Mossad remains in office, any references to the performance of his functions could prejudice the security of the State. She argued that there is a difference between criticism of the head of the Mossad and criticism of the heads of other security services, in light of the exceptional nature of the Mossad's work. Thus, for example, according to present practice, announcement by the Government of the appointment of a new head of the Mossad is not accompanied by announcement of his name, while publication of his retirement is permitted together with publication of his identity for the first time. This practice is not followed in the case of the heads of other security services. Mrs. Arad added that there is public control over the appointment of the head of the Mossad, as he is appointed by the Prime Minister and functions under the control of the Prime Minister, the Government, the Foreign Affairs and Security Committee of the Knesset, the Knesset and the State Comptroller.

 

            5. During the course of the proceedings, the "battle lines" between the parties were narrowed. The Censor withdrew his ban with respect to eight of the thirty-two paragraphs which he had previously censored; and the Petitioners agreed, of their own accord, to remove six of the remaining paragraphs. The dispute concerns, then, the remaining eighteen paragraphs, which concentrate on criticism of the functioning of the outgoing head of the Mossad and on his forthcoming replacement. The question before us is, therefore, whether the Censor's approach in these matters is lawful.

           

            The Normative Framework

           

            6. The "military censorship" exists by virtue of the Defence (Emergency) Regulations - henceforth the Defence Regulations. Chapter 8 of these Regulations deals with censorship. Regulation 87 (1) provides that:

           

          "The Censor may by order prohibit generally or specially the publishing of matters the publishing of which, in his opinion, would be, or be likely to be or become, prejudicial to the defence of Palestine or to the public safety or to public order."

           

            The Censor is also empowered to demand that material be submitted for censorship before publication (Regulation 97). Publication of material whose publication was banned is an offense against the Defence Regulations. The Censor was appointed by the High Commissioner whose powers have now been assigned to the Minister of Defence. The Censor is an Army officer, and censorship pursuant to Chapter 8 of the Defence Regulations is performed within the framework of the Army. Hence the term "Military Censor". It should be noted that in actual fact the Military Censor's powers are not exercised with respect to those newspapers which are parties to the agreement between the Editors' Committee and the Minister of Defence (for particulars of that agreement, see Z. Chafets, "Press and Government in Israel", 14 Israel Yearbook on Human Rights (1984) 134; P. Lahav, "Press Law in Modem Democracies" (New York 1985) 265, 275). The newspaper "Ha-Ir" is not a member of the Editors' Committee and is not a party to the agreement with the Military Censor. The legality of the Censor's actions will therefore be examined directly on the basis of the Defence Regulations without any reference to the agreement with the Editors' Committee.

 

            7. In the context of the petition before us, the provisions of the Defence Regulations which deal with military censorship give rise to four questions: first, in what circumstances may the Military Censor prohibit publications in newspapers on the grounds of prejudice to the defense of the State or to the public safety or order; second, what are the limitations imposed on the Military Censor's exercise of his discretion; third, what is the scope of judicial review of the Military Censor's decisions; and fourth, does the Military Censor's decision in this case satisfy the appropriate tests and is there room for our intervention in his decision. I shall deal with these questions one by one.

           

            The first question: Circumstances in which publication may be prohibited

           

            8. The Defence Regulations were enacted by the High Commissioner pursuant to the powers vested in him by Article 6 of the Palestine Order-in-Council (Defence), of 1937. These Regulations are, therefore, part of the Mandatory legislation. However, pursuant to section 11 of the Law and Administration Ordinance, 1948, they became part of Israeli law. This change from Mandatory law to Israeli law was not a purely technical matter. A change in the framework brings in its wake, by the nature of things, a change in content. Section 11 of the Law and Administration Ordinance provides that the law which existed in Palestine on May 15, 1948, remains in force subject to "such modifications as may result from the establishment of the State and its authorities". Initially, this court held that such modifications were of a technical nature only (H.C. 5/48 [1], at p. 69). Later, it was held that such "modifications" are not of a technical nature only but also substantive (H.C. 222/68 [2]). Justice Silberg held, at pages 157-158 of the latter judgment, with reference to the technical approach of H.C. 5/48:

 

"With all due respect to the learned Justices, I am not convinced that the formal interpretation which they gave to these words is correct. I think there would be something of a "capitis diminutio" (diminution in value) of the great historical event - the creation of a Jewish State in Eretz Israel, if we were to say that the legislative change, after 2000 years of exile and after the establishment of our independent State, was for us, for example, merely that change in borders, in 1948, because of which the Allenby Bridge had to be removed from the list of 'lawful' points of entry into the country, published in 1943.... I admit without any shame that I am unable to grasp this idea. My heart is with those 'maximalists' who regard our national independence as the longed-for redemption, the third Temple, the rehabilitation of the nation's existence. And if this is the nature of our independence then it is possible, in principle, to examine the heartbeat of every Mandatory law in order to discover whether it complies with the spirit imbuing the laws of our independent and free state."

 

            A colonial regime was replaced by political independence. Autocratic rule was replaced by democracy, which is the government of the people, based on representation, operating according to the will of the majority, but upholding the rights of the individual. This change, in the natural course of events, brings in its wake a new approach to law and to judicature. The results of this change vary with the circumstances. Sometimes, the change is purely technical (see H.C. 107/52 [3]). On other occasions it is of considerable substance, resulting in the exclusion of Mandatory legislation from Israeli law (see H.C. 228/68 [2]). This would happen only on rare occasions, and has become even rarer with the passage of time (see H.C. 228/68 [2], at p. 209).

           

            9. One of the changes that may result from the establishment of the State and its authorities is the manner of interpreting Mandatory legislation.

           

"... [T]he last part of section 11 emphasizes principally the fact that political independence also brings in its wake changes in the scope of law and its interpretation. Wherever it was necessary, therefore, the basis for independent interpretation of the law and the independent crystallization of rules was created by statute." (President Shamgar in F.H. 29/84 [4], at p. 511.)

 

            This change in the interpretation of Mandatory law is twofold. First, Mandatory legislation is not interpreted according to the rules of interpretation current during Mandatory times, but according to the rules of interpretation followed in Israel. Second, legislation is interpreted against the background of the basic principles of the legal system (see Cr. A. 667/83 [5] and H.C. 953/87 [6]). Mandatory legislation will not be interpreted against the background of the basic principles of the system of law that prevailed during the Mandate, but against the background of the basic principles of the system of law that operates in Israel. Justice Agranat noted this point in H.C. 73/53 [7], at p. 884, when he said:

           

"The system of laws on which the political institutions in Israel were established and now operate testifies to the fact that this is a country whose foundations are democratic. Likewise, the statements contained in the Declaration of Independence - in particular concerning the fact that the State is based on 'the foundations of freedom' and the guarantee of freedom of conscience - indicate that Israel is a freedom-loving country. It is true that the Declaration of Independence 'is not a constitutive law which lays down norms concerning the validity or invalidity of other legislation' ... but to the extent to which it 'expresses the people's aspirations and their beliefs' it is our duty to give heed to its contents when seeking to interpret and give meaning to the laws of the State, including laws enacted during the Mandate and which were adopted by the State after its establishment, through the channel of section 11 of the Law and Administration Ordinance, 1948. It is a well-known axiom that a people's laws are mirrored in their national way of life."

         

          A legal norm - whether enacted or created by the judiciary - does not stand on its own. It is a "creation which lives in its environment" (Justice Sussman, in H.C. 58/68 [8], at p. 513). It fits into its environment, influences it and is influenced by it. The "legal environment" which influences every legal norm "includes not only the immediate legislative context but also wider circles of accepted principles, basic aims and fundamental criteria which derive, in the words of President Landau, from 'the sources of social consciousness of the nation within which the judges live'.... It is not necessary to repeat these principles in every law; they constitute a kind of 'normative umbrella' over all legislation" (C.A. 165/82 [9], at p. 75).

         

          "A legislative act ... is not a one-time act cut off from the general way of life. The law takes on substance within the framework of a given legal and political system. It is one brick in an entire edifice, built on the basis of criteria of government and law which constitute the 'primary concepts of that society'...." ( E1. A. 32/84 [10], at p. 307).

         

          Therefore, a judicial norm which constituted part of the Mandatory law is absorbed into our law if it is not inconsistent with "the principles of the legal structure of our country" (Justice Landau in C.A. 65/57 [1l], at p. 409), and it continues to develop within the Israeli law against the background of the principles of that law. Its image is determined by its new environment (see C.A.81/85 [12], at p. 236). The same holds for a legislative norm which constituted part of Mandatory legislation. This nom] was absorbed into our law and if it proves to be consistent with the basic principles of our legal structure it continues to develop within Israeli law against the background of those basic principles. This is the source of the striving for "legislative harmony" (in Justice Sussman's words in Cr. A. 108/66 [13], at p. 261). Different acts of legislation, whether their historical source be Mandatory or our own independent legislation, must be interpreted together and operate as a comprehensive system (H.C. 953/87 [6], at p. 328). The nature of the basic principles can be learned from different sources, one of the most important of which is the Declaration of Independence, "which constitutes a legal charter that expresses the nation's values" (H.C. 953/87 [6], at p. 330). Justice Sussman emphasized this when he pointed out that "the way of life of the citizens of the state and the principles which every authority in the state must take as their guiding light are laid down" in the Declaration of independence (H.C. 262/62 [14], at p. 2116).

 

            The Declaration of Independence is not the only source from which one can learn about the basic values of the state. For example, the Supreme Court refers from time to time to the "basic principles of equality, freedom and justice, which are the legacy of all advanced and enlightened states" (Justice Cohen in H.C. 301/63 [15], at p. 612) and to "basic rights which are not recorded in texts, but emanate directly from the character of our state as democratic and freedom-loving" (Justice Landau in H.C. 243/62 [16], at p. 2414).

           

            10. The Defence Regulations were enacted by a colonial legislature and not by a democratic one. It was contended, after the establishment of the State of Israel, that their continued enforcement was not consistent with the changes resulting from the establishment of a democratic state. This argument was rejected by the Supreme Court (in H.C. 5/48 [l] and H.C. 39/64 [17]). Several unsuccessful attempts were made in the Knesset to abrogate them entirely (see A. Rubinstein, The Constitutional Law of Israel (3d ed. 1981) 219). But the Israeli legislature saw fit to repeal certain sections of the Regulations and to replace them with original Israeli provisions (see, for example, the Emergency Powers (Arrests) Law, 1979). These legislative changes did not affect the powers of the Military Censor. Chapter 8 of the Emergency Regulations, which deals with military censorship, has therefore remained in force in Israel. However, the interpretation of the Defence Regulations must perforce differ in Israel from that given to them during the Mandate. The Defence Regulations are today part of the legislation of a democratic state. They must be interpreted against the background of the basic principles of Israeli law. The Supreme Court has acted in this manner with respect to a long list of Mandatory laws, such as the Police Ordinance [New version] 1971, (see H.C.153/83 [18]), the Cinema Ordinance (H.C. 243/62 [19]), the Public Entertainments (Censorship) Ordinance (H.C. 14/86 [19]), the Newspaper Ordinance (H.C. 73/53 [7]; H.C. 644/81 [20]), the Prisons Ordinance [New Version] 1971 (H.C. 355/79 [21]).

 

 The same applies to the interpretation of the Defence Regulations. Justice Elon so remarked (in H.C. 234/84 [22], at p. 483):

 

          "The Mandatory Defence Regulations of 1945 do not always meet with our approval and we are of the opinion that they should be interpreted narrowly, as long as this is compatible with their wording, so as to make them consistent with the democratic principles on which the State of Israel is founded."

           

            It is true that the Defence Regulations deal with the security of the State, which influences the manner in which the basic principles of our system of law are applied to them. But this has no influence on the question whether these principles should be applied or not. Every legislative act - whether it originated during the Mandate or is purely Israeli, whether it deals with the security of the State or otherwise - must be interpreted against the background of the general principles of our system of law. State security and public order do not supplant and negate the application of basic values. They are interwoven with them, influence their nature and are balanced within their framework.

           

            11. What are the basic values which shape the interpretation of the Defence Regulations? First and foremost come security considerations, which spread their influence across the entire scope of the Regulations. The realization of this interest concerning the defense of the State and public safety and order is the main purpose of the Regulations and they must be interpreted against the background of this purpose (compare Article 6 of the Palestine Order-in-Council (Defence)). Alongside considerations of security (in their broad sense) there are other values, in the light of which every enactment in a democratic society must be interpreted, and which the Defence Regulations affect. Thus, for example, the Defence Regulations deal with the military courts. It is only natural, in this context, that the value of judicial integrity must be taken into account (see Cr. A. 126/92 [23]; Cr. A. 696/81 [24]). The Defence Regulations contain provisions pertaining to crimes, punishments and detention prior to conviction. In this context, account must be taken, among other things, of the individual's right to personal freedom and the presumption of innocence. Another chapter of the Defence Regulations deals with Unlawful Associations. In this context account must be taken, of course, of the basic right to freedom of association (see H.C. 253/64 [25]). Yet another chapter of the Defence Regulations deals with orders restricting the freedom of movement. In this context it is only natural that the right to freedom of movement will be taken into account (see H.C. 448/85 [26]). Defence Regulations which provide for military censorship prejudice, first and foremost, the right to freedom of expression. Censorship of publications prejudices privacy. The broad authority to search ("censorship of travelers") prejudices privacy, the dignity of man and the integrity of property and person. This list of basic values which are adversely affected by the Defence Regulations is by no means complete or comprehensive. It only serves to show how broad a range of values are promoted by the Defence Regulations (defense, public safety and order) and are prejudiced by them (judicial integrity, personal freedom, freedom of association, freedom of movement, freedom of expression, privacy, dignity of man and integrity of property and person.)

 

            12. In interpreting the Defence Regulations account must be taken, on the one hand, of the basic values which are their raison d'etre and, on the other hand, of the basic values which every legislative act in a democratic country must be assumed to intend to promote (see H.C. 953/87 [6]). Sometimes all these values lead to the same result. But sometimes they may clash with one another. So, for example, the values concerning the security of the State and public safety and order may clash with the values of freedom of movement (see H.C.448/85 [26]), freedom of expression (H.C. 73/53 [7]), the dignity of man (see H.C. 355/79 [21]). In all such cases the court must strike a balance between the conflicting values. In the course of discussing the need to strike a balance between the right to security and the right to freedom of expression, insofar as the powers of the Military Censor under the Defence Regulations are concerned, Justice Elon said, in H.C. 234/84 [22], at p. 483:

           

          "The existence of censorship and the prohibition of publication sometimes gnaw away at the basic right to freedom of expression, the right to inform and to be informed, which is one of the 'basic rights which are not recorded in texts, but emanate directly from the character of our State as democratic and freedom-loving'... One of the important missions of democracy is to find the proper balance between the existence and preservation of this right and the need to protect legitimate secrecy, in defense of the security of the State and the proper functioning of public safety and order, which also is an essential condition for the very existence of a democratic regime...".

           

            13. In the petition before us the value of state security clashes with the values of freedom of expression and the public's right to be informed. These conflicting values are basic to our legal system. The state cannot exist without security. Nor can the social consensus upon which the state is built. So, too, individual freedoms which the state is supposed to promote cannot exist. Hence the centrality of security in the general complex of values in the legal system. Without freedom of expression, truth cannot be disclosed, the individual cannot fulfil himself and the democratic regime, which is based on the exchange of opinions, cannot continue to exist. The free exchange of information, opinions and points of view is essential to the existence of a democratic regime, which is based on the rule of the people, by the people, for the people. Without freedom of expression democracy loses its soul (H.C. 399/85 [27], at p. 274). On more than one occasion this court has noted "the close connection that exists between the principle of freedom of expression and debate and the proper functioning of the democratic process" (Justice Agranat in Cr. A. 255/68 [28], at p. 435). It noted therefore that "freedom of expression is a condition precedent for the existence of democracy and its proper functioning" (President Shamgar in H.C. 372/84 [29], at p. 238). Freedom of expression thus has a special status. It secures the existence of a democratic regime which, in turn, secures the existence of other basic rights (see H.C. 73/53 [7] supra, at p. 878; C.A. 723/74 [30], at p. 295).

           

            14. How is the clash between the security of the State and freedom of expression to be resolved? It seems to me that if the clash between the two values is "head-on", so that there is no possibility of co-existence between them, then the security of the State must be preferred, for two reasons: First, because the security of the State is the substantive objective of the Defence Regulations and a judge-interpreter must, first and foremost, achieve this objective. Second, because a democracy must exist in order to realize itself:

           

          "A democratic regime is prepared to protect freedom of expression so long as such freedom protects democracy. But when freedom of expression becomes a tool with which to injure democracy, then there is no reason for democracy to put its head on the block for the axeman ..." (H.C. 399/85 [27] supra, at p. 287).

           

            "A constitution is not a formula for suicide and individual rights are not a platform for national destruction" (El. A. 2/84 [10], at p. 310). "A democracy does not have to commit suicide in order to prove its vitality" (Id., at p. 315). A person cannot enjoy freedom of expression if he does not have the freedom to live in the society in which he chooses to live. The right to live in a society is prior to the right to express one's opinions therein (see United States v. Progressive, Inc. (1973) [58], at 995).

           

            15. The "balancing formula" in the case of a clash between state security and freedom of expression assumes, therefore, fulfillment of the value of state security. However, because of the centrality of the basic right to freedom of expression, it seeks to limit the harm to this value as much as possible. Such harm will be allowed only if it is absolutely necessary in order to preserve the value of security. In this connection, the Supreme Court decisions stressed two main questions: first, what is the extent of the injury to state security which justifies restricting freedom of expression; second, what is the probability that state security will be injured if freedom of expression is not curbed. The approach that guides the decisions is that "the question always is, whether the extent of the injury, discounted by the possibility that it will not occur, justifies restricting the individual's right in order to prevent the danger..." (El. A. 2/84 [10] supra, at p. 311). It has been held that in a clash between state security and public safety and order, on the one hand, and freedom of expression, on the other, "freedom of expression must yield only when the injury to the public order is severe, serious and grave" (H.C. 14/86 [19], at p. 435). Hence, only when the injury to the public order is severe and substantial will it justify curbing freedom of expression. Likewise, it has been held that the probability of injury which would justify limiting freedom of speech must amount to a "near certainty". "For this court to prohibit a person in charge of public broadcasting from publishing a particular matter, such extreme circumstances must exist as to constitute a real and nearly certain danger to the safety of the public at large..." (President Shamgar in H.C. 1/81 [31], at p. 378); "According to Justice Agranat (as his title then was), the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a particular instance would endanger the public or the security of the State..." (Justice D. Levin in H.C. 243/82 [32], at p. 766). Such a probability does not exist when it is possible to take other measures - apart from restricting personal freedom and freedom of expression - in order to minimize the danger. Curbing freedom of expression should not be the first means; it should be the last means (see H.C. 153/83 [18] supra, at p. 407; H.C. 14/86 [19] supra, at p. 437; H.C. 554/81 [33], at p. 252). "I consider censorship a measure to be used only in the rarest of cases when there is no alternative". (Justice Witkon in H.C. 243/62 [16] supra, at p. 2425).

 

            16. We have seen that in different statutory contexts (such as the Police Ordinance [New Version], the Newspaper Ordinance, the Broadcasting Authority Law, 1965, the Public Entertainments Ordinance (Censorship)) this Court adopted an interpretive approach in accordance with which freedom of expression may be restricted in order to protect the security of the state and public order only when there is a near certainty that substantial injury will occur to such state security and public order if freedom of expression is not curbed. Does this approach apply to the interpretation of the Defence Regulations? Counsel for both sides answered this question affirmatively, and I agree with them, for four reasons. First, from the semantic point of view, the Military Censor's authority is conditioned on belief that the publication is likely to prejudice security. This term, "likely", is the same term which was the basis for the "near certainty" formula in H.C. 73/53 [7]. Second, the interpretive approach referred to above is not based only on the word "likely" in the Defence Regulations. It reflects a principled approach to the comparative weight of the values of state security and public order, on the one hand, and freedom of expression, on the other hand, and to the proper balance between them. Justice Landau emphasized this in H.C. 243/62 [16], at p. 2418:

           

"In the 'Kol Ha-Am' case, the court interpreted the specific statutory provision in section 219(2)(a) of the Newspaper Ordinance, whereas here we are dealing with administrative discretion which is not further defined in section 6(2) of the Cinema Ordinance. But the decision in 'Kol Ha-Am' was reached on a broad conceptual basis which is just as applicable to the matter before us".

           

            In quoting Justice Agranat in H.C. 73/53 [7], in connection with the test of near certainty, Justice D. Levin pointed out, in H.C. 243/82 [32], at p. 765:

           

          "These penetrating and instructive words have become a corner-stone in our judicial system, and the principles contained in them are accepted by everyone, without any reservations".

           

            This court adopted this approach in additional cases (see H.C. 292/83 [34], at p. 456; S.S.A. 5/86 [35], at p. 237; H.C. 448/85 [26] supra; H.C. 1/81 [31] supra; H.C. 259/84 [36]; see also P. Lahav, "Freedom of Expression in Supreme Court Judgments", 7 Mishpatim (1976-77) 375).

           

            Third, there is nothing special about the Defence Regulations and therefore no reason to deviate from the general conception accepted in Israel in similar matters. There is no substantive difference between "military" censorship and "civil" censorship, and the same weight should be given to state security, on the one hand, and freedom of expression, on the other, in both. There is no real difference between a "military" officer and a "police" officer in matters concerning the security of the state and public safety vis-a-vis freedom of expression. It is true that the dangers to security which the Defence Regulations seek to prevent may sometimes - but not always - be more severe than the danger to the public order which other laws seek to prevent. This relative difference will be expressed in the fact that it will be easier to show that the danger of injury to state security is substantial and severe and that the probability of its occurrence is nearly certain (see, for example, H.C.562/86 [37]). There is no reason, however, why this difference in the gravity of the danger that exists in some cases should result in the application of different fundamental tests. Therefore, when the question arose as to what test should be applied in deciding what information should not be published by the Broadcasting Authority in connection with interviews with a representative of the P.L.O., this court applied the test of "near certainty". Justice D. Levin pointed out that "the important right of freedom of expression yields to the public interest when there is a 'near certainty' that the exercise of this right in a specific instance is likely to endanger public safety or the security of the state..." (H.C. 243/82 [32], at p. 766). President Shamgar reiterated the same approach when he pointed out that "no right should be denied in advance save when there is a near and inevitable certainty that a crime will be committed or that security or public safety will be injured..." (El. A. 2/84 [l0] supra, at p. 266). Fourth, on its merits, it seems to me that the test of near certainty of substantial damage to the security of the state is the desirable one. It expresses correctly the comparative social importance of the conflicting principles, according to the standards of the "enlightened public" - the standard we use in similar circumstances (H.C.58/68 [8] supra, at p. 520). "The court must determine the borderline between what is permitted and what is forbidden in every case according to its judgment, guided by the enlightened concepts that prevail in modern society, while remembering that every limitation of freedom of expression exudes an odor of censorship, and in borderline cases the tendency should therefore be to permit rather than to prohibit" (Justice Landau in Cr. A. 495/69 [38], at p. 41l). This test protects the security of the state and public safety, on the one hand, since it prevents a publication that entails a near certainty of substantial damage to these values. At the same time, this test protects freedom of expression in broad and comprehensive areas, and allows thereby the achievement of the aims which freedom of expression seeks to achieve. Any attempt to apply a test that is more restrictive of freedom of expression could have harsh results both for freedom of expression and for democracy. It should not be forgotten that we are dealing with censorship which prevents publication in advance, and thereby not only "chills" freedom of expression but "freezes" it (see A.M. Bickel, The Morality of Consent (New Haven, 1975) 61). This freezing effect is done without any judicial process or judicial decision. It is, therefore, especially important that the denial of information to the public should occur only in exceptional and unusual circumstances. The near certainty test expresses this approach. It is not superfluous to note that the test in cases of prior restraint is much more stringent in the United States. The rule there is that prior restraint is forbidden, except when the publication affects the security of the state directly, immediately and unavoidably, as for example, the physical safety of participants in a military operation (New York Times Co. v. United States (1971) [59]; Near v. Minnesota (1931) [60]). We have not adopted this test in Israel. But we have pointed out that the distinction on which it was based - between prior restraint of publication and punishing the publisher after the fact - justifies adopting the "near certainty" test in Israel rather than a more lenient one. Justice Agranat noted this consideration in H.C. 73/53 [7], at p. 886:

 

"We have dwelt on this Anglo-American approach to the use of prior restraint because it demonstrates very well that - insofar as the tendency to protect the interest of freedom of expression is concerned - this is a very strong and extreme measure. If the Israeli legislator nevertheless saw fit to leave intact the powers defined in section 19(2) (a), it must be understood that it did so because of the state of emergency the country has known ever since its establishment. But, on the other hand, the Israeli legislator should not be assumed to have intended to give the authority in charge of implementing these powers - particularly since they are so severe and drastic - the right to cease publication of any newspaper merely because the matters published therein appear to it to tend to endanger the public safety but do not constitute direct incitement to this end, or at least encouragement, as could bring that result substantially closer in the circumstances. It would be out of the question to attribute such an intention to the Israeli legislator since, on the one hand, as we have already said, Israel is founded on principles of democracy and freedom, and, on the other hand, adopting such an abstract and obscure test as 'a bad tendency' would inevitably open the door wide to the influence of the personal opinions of the person entrusted with the above powers - however noble his aspirations might be - when evaluating the danger feared, as it were, to the public safety as a result of the publication concerned".

 

            Consequently, Israeli society of today, which sees the need to protect security and public safety on the one hand and freedom of expression on the other hand, cannot find a better balance between them than in the formula of a "near certainty". President Shamgar discussed this in El. A. 2/84 [10] supra, at p. 265:

 

"If there be a near certainty that the exercise of a particular right in a concrete case will injure public safety and order, then the statutory authority so empowered may restrain the exercise of the right in the said circumstances".

 

            Absent a near certainty of real danger, it is important that there be a free exchange of opinions and ideas. This is important in matters of security no less than in other matters. Precisely because security matters affect the very existence of society, it is important that the public be informed concerning the various problems, so that it may reach intelligent decisions on problems which concern it.

           

"On matters affecting the national interests, the people must be provided with all the pertinent information so that they can reach intelligent, responsible decisions. The first constitutional principle is that a self-governing people must have a thorough knowledge and understanding of the problems of their government in order to participate effectively in their solution... In the absence of strong and effective governmental checks and balances in the areas of national defense and international affairs, the only effective restraint on executive power lies in a well-informed citizenry. Without an alert, free and diligent press there cannot be a well-informed citizenry. Only if the government is vigorously and constantly cross-examined and exposed by the press can the public stay informed and thereby control their government" (R.F. Flinn, "The National Security Exception to the Doctrine of Prior Restraint", 13 Wm. & Mary L. Rev. (1971-72) 214, 223).

 

            Precisely because of the implications for the life of the nation contained in decisions of a security nature, the door should be opened to a free exchange of opinions on matters of security. In this connection it is particularly important that the press be free to serve as a forum for the exchange of opinions and for criticism in matters of vital interest to the public and the individual. It appears to me, therefore, that the near certainty test is the proper test to be applied when examining the Military Censor's powers under the Defence Regulations.

 

       17. To summarize: the Mandatory Defence Regulations must be interpreted against the background of Israel's values. In interpreting them one must balance state security and public safety and order, on the one hand, and freedom of expression, on the other. This balance means that freedom of expression can be restrained, as a last resort, only when there is a near certainty of substantial danger to state security and public order.

      

       The second question: Restrictions on the exercise of discretion

      

       The Military Censor's discretion is subjective. He may prohibit publication of material which "in his opinion, would be, or be likely to be or become, prejudicial" to the public safety or order. Does this discretion render the examination of criteria for the determination of the existence of danger superfluous? Could it not be said that all that is required is that this discretion be exercised in good faith? The answer to these questions is in the negative. Subjective discretion is not absolute. It does not empower the holder of the discretion to choose whatever alternative is in his opinion correct. Subjective discretion is limited (see F.H. 16/61 [39]). Just as any other discretionary power, it must comply with the following demands: first, it must be exercised within the limits of the enabling law that grants the discretion; second, the person who has the discretion must act subjectively to fulfil the objective criteria which fix the conditions for the exercise of the discretion; third, the person who has the discretion must choose one of the various legal options available to him in good faith, without caprice, after weighing only the relevant considerations, and reasonably; fourth, the selection from among the various possibilities must be based on reasonable evaluations and on facts established on the basis of convincing and credible findings, which do not leave room for doubts. I shall deal briefly with each of these requirements.

      

            19. Subjective discretion must be exercised within the limits of the : enabling law. So said President Agranat in H.C. 241/60 [40], at p. 1162:

           

            "The general principle is that every administrative authority must act within the limits of the purpose for which the law has granted it the particular power; and this rule also applies to a power which it may exercise according to its 'absolute discretion'".

 

            Justice Sussman repeated the same idea in F.H. 16/61 [39], at p. 1216:

           

"Discretion which is granted to an administrative authority - even if it be absolute - is always linked to a duty which the authority must fulfil - that is, to the administrative tasks for the purpose of which the authority was empowered to act in its discretion. However extensive the freedom of choice may be, it is never unlimited".

 

"Statutory discretion can be broad or narrow, but it is always limited. The number of possible choices available to the decision-maker may be many or few, but it is never unlimited. In this way the law protects the freedom of the individual... Even the most absolute of discretion must confine itself to the framework of the law which gave it life" (H.C. 742/84) [41], at p. 92).

 

            Therefore, whoever is vested with discretion by the Defence Regulations may exercise this power in order to realize the aims that underlie the Regulations, but not to realize any extraneous aims (see H.W.R. Wade, Administrative Law (Oxford, 5th ed., 1982) 394).

           

            20. Every administrative power is subject to certain conditions and demands. The legal application of the authority requires that these conditions and demands be observed in practice. The subjectivity of the person in authority must be aimed at implementing these conditions and no others. Therefore, if the correct interpretation of section 87 of the Defence Regulations is that a newspaper publication may be prohibited only if the Censor believes that there is a near certainty that the publication will cause substantial injury to security, then the Censor's thoughts must be directed toward the issue whether such a near certainty exists. If, therefore, the Censor prohibits a publication without being satisfied that it creates a near certainty of danger to security, he has not exercised his discretion lawfully.

 

            21. The exercise of discretion assumes freedom to choose between lawful options. The exercise of subjective discretion assumes that the choice between options will be based on the authority's evaluation of the options. This evaluation must be conducted in accordance with the rules of administrative law. It must therefore be made in good faith, without being arbitrary or discriminatory and on the basis of all the relevant considerations, and these alone. Furthermore, evaluation of the options and the selection of the preferred option must be done reasonably (H.C. 389/80 [42]). Subjective discretion and the objective test of reasonableness are not incompatible, but are complementary. Establishing the lawful option must be done according to the test of reasonableness. The power of discretion does not authorize an administrative authority to fashion an unreasonable option. Sometimes there are several options, all of which are reasonable. A range of reasonableness is created. Discretion allows the administrative authority to choose one of these options. Therefore, the Military Censor must consider whether there exists a near certainty that a newspaper publication will cause substantial injury to security. This must be done reasonably, taking into account the needs of security, on the one hand, and freedom of expression on the other, achieving a balance between them in accordance with the test of "near certainty" (see H.C. 910/86 [43], at p. 48l). This process may raise a number of possibilities, all of which satisfy this test. A "range" of lawful possibilities is then created. The discretion to choose the correct option in this range is given to the Military Censor. He has the power to choose whatever option appears best to him from the options in this range. He has no discretion to select an option that is outside of the range.

           

            22. Regulation 87 of the Defence Regulations provides that the Military Censor may prevent publication if in his opinion the publication is likely to prejudice - that is, if there is a near certainty of substantial damage to - the security of the State. What does it mean to say that the decision concerning the existence of prejudice - that is of a near certainty of substantial damage - is in the discretion of the Chief Censor? It means that the Censor - and only the Censor - has authority in this matter, and if there be several legal choices, only he may make the selection. This provision does not mean that the Chief Censor may reach his decision in any manner which he chooses. The Censor's decision must be reasonable. In other words, it must be assumed that a reasonable censor would have made such a decision in the circumstances of the case. I elaborated on this point in another case:

 

"Discretion concerning the existence of near certainty and the gravity of the danger is vested in the Council. It must exercise this discretion reasonably. There are often several reasonable options, which all accord with the said test. A range of reasonableness is created, within which the court will not interfere... But it will interfere if the Council chooses an option which is not within this range. The Council does not have the discretion to choose an option which does not constitute a near certainty and does not contain an element of grave danger. The mere fact that the Council subjectively believes that the danger is grave and that the likelihood of its occurrence is nearly certain is not decisive. The test whether there exists a near certainty of grave danger is objective. The court must be satisfied that a reasonable council could have reached the conclusion that the danger was grave and that its occurrence was a near certainty on the basis of the facts available to it" (H.C. 14/86 [19], at p. 438).

 

            In determining the reasonableness of the Military Censor's decision, account must be taken of the complex of facts, on the one hand, and of their evaluation in accordance with the test of near certainty of substantial harm to security, on the other. In every case the question is whether a reasonable Military Censor could conclude, on the basis of the given facts, that the publication was likely to cause - in other words, that there exists a near certainty that it would cause - grave or substantial damage to the security of the State.

 

            23. The Military Censor's decision concerning the existence of danger to the security of the State must be based on facts and on evaluations. As to the facts, they are determined by the Chief Censor on the basis of the evidence before him. The determination of the facts must be done according to the usual criteria of administrative law. The test is whether a reasonable governmental authority would have regarded the material before it as having sufficient probative value (H.C. 442/71 [44]; H.C. 361/82 [45], at p. 442). The reasonableness of the decision is a function of the values involved in the decision. Therefore, if the exercise of administrative discretion would prejudice human rights, then persuasive and credible evidence, which leaves no doubt, would be required. Justice Shamgar noted this in H.C. 56/76 [46], at p. 692:

 

"It is true that evaluation of the evidence is, first and foremost, within the prerogative of the authority... But if the authority seeks to deny recognized rights, then while the authority need not base its decision on previous court judgments, still, convincing evidence, which leaves no room for reasonable doubts, is required".

 

            President Shamgar repeated the same idea in H.C. 159/84 [47], at p. 327:

           

"H.C. 56/76... dealt with the question of denial of existing rights, and it was held there that to reach a decision the authority had to have before it convincing and credible evidence, which leaves no room for doubt. I agree with this test. When dealing with the denial of recognized rights or of basic rights ... the evidence required in order to satisfy a statutory authority that it is just to grant a deportation order must, generally, be clear, unequivocal and convincing".

 

            Therefore, the finding that if the publication will not be prohibited there will be a near certainty of substantial injury to the security of the State must be based on clear, unequivocal and convincing evidence. Still, one must not forget that the finding that there exists a near certainty of substantial damage to security must, by its very nature, be based not only on facts but also on the evaluation of future developments. While this evaluation must be based on clear, unequivocal and convincing evidence, nevertheless it must, by its very nature, look to the future and it must necessarily deal with both risks of danger and favorable possibilities. All that can be required in this connection is that the examination of the matter be reasonable. One cannot demand that the Military Censor be imbued with the gift of prophesy.

           

            The third question: the Scope of judicial review

           

            24. After the establishment of the State it was held that the scope of judicial review of the powers of authorities that operate under the Defence Regulations is extremely limited. Justice Agranat noted this in H.C. 46/50 [48], at pp. 227-228:

           

"This court's jurisdiction, when reviewing the acts of the competent authority under the Defence (Emergency) Regulations, 1945, is extremely limited. When the regulation in question empowers the authority to act against an individual whenever that authority is "of the opinion", or "it appears to it", that conditions exist which

so require, then the competent authority itself generally has the last word concerning the question whether those conditions exist. In such cases, this court can only examine whether the said authority exceeded the powers vested in it by the regulation under which it presumed to act, whether it took account of all the factors fixed by law, and whether it acted in good faith. As it is subject to this limited power, the court cannot review the reasons which induced the competent authority to issue the order in question."

 

            This approach was based on the subjective nature of the authority, on its "security" nature and on the English precedents which were current at the time and which took a similar position (primarily Liversidge v. Anderson (1941) [61]).

           

            25. With time there came a gradual broadening of the scope of judicial review. This was the result of developments concerning the nature of subjective discretion and the understanding of judicial review. Considerable judicial experience also accumulated, which enabled expansion of the scope of judicial review of administrative discretion in security matters. Similar developments occurred in England itself where, in the course of time, it became clear that subjective discretion is not essentially different from any other discretion. Justice Sussman noted this in F.H. 16/61 [39] supra, at p. 1218:

           

"I doubt whether there be any difference in principle between  'ordinary' discretion and absolute or 'subjective' discretion. Several objective tests have been established for subjective discretion as well, such as that the absence of good faith, arbitrariness or deviation from the purpose entrusted to the authority would lead to annulment of the administrative act."

         

          Hence, even when exercising subjective discretion, the government authority has the "objective" duty to observe the provisions of the law. Moreover, subjective discretion is flawed not only by "subjective" defects in the authority's acts, such as lack of good faith or arbitrariness. Subjective discretion must be exercised reasonably. Thus, the subjective factor in discretion, too, is measured by objective criteria (H.C. 389/80 [42] supra). There is, therefore, no basis to restrict judicial review or to examine only "subjective" defects such as malice or lack of good faith. This approach is reinforced in the light of our understanding of the essence of judicial review, which draws its force from the principle of separation of powers and the need to ensure governmental legality (see H.C. 910/86 [43] supra). There is no reason why an administrative court should not examine the full scope of administrative discretion according to the test of legality, for otherwise certain areas of discretion would be immune to judicial review. This immunity would ultimately lead to infringement of the law, since where there is no judge there is no law. Therefore, administrative discretion should be examined from the perspective of the laws which determine its legality. If the jurisprudence of administrative discretion (both substantive and procedural) determines that there is a defect in a particular exercise of discretion, then the administrative court should be prepared to review the legality of that exercise of discretion. There is no reason why certain fields of administrative discretion should not be subject to judicial review (subject, of course, to claims of lack of standing, or lack of jurisdiction or other such preliminary claims). Hence there is no basis for the view that the subjectivity of administrative discretion limits the scope of judicial review to certain defined issues. The proper conception is that it is the jurisprudence of discretion which fixes the conditions which determine when the exercise of discretion is legal and judicial jurisprudence establishes that the court has the power to examine whether these conditions are met. It is not the scope of judicial review which determines the legality of administrative discretion but, rather, the legality of the administrative discretion determines the scope of the judicial review (compare H.C. 731/86[49], at p. 458). Judicial review of administrative discretion has been expanded hand in hand with the development of administrative law concerning subjective discretion and the broadening of the legal demands upon administrative discretion. It is interesting to note that as early as H.C. 73/53 [7], which held that the exercise of subjective discretion by the Minister of the Interior had to pass the test of near certainty, Justice Agranat pointed out that:

 

"The expression 'in the opinion of the Minister of the Interior', referred to in section 19(2)(a), requires that we hold that evaluation of the publication's influence on public safety in the circumstances is always the exclusive prerogative of the Minister and, therefore, the High Court of Justice will not interfere with his exercise of discretion unless, in making his evaluation, he deviated from the test of 'near certainty', in the light of the meaning of 'danger to the public safety'; or he paid no attention - or at best only a modicum of attention - to the important interest of freedom of the press; or he erred in the exercise of his discretion in some other way because he was carried away by trivial, untenable or absurd considerations".

 

            This formula accorded well with the law of administrative discretion as it was developed more than thirty years ago. In the meantime the jurisprudence of discretion has been developed. It has been held, inter alia, that an unreasonable decision is unlawful, even if it is not untenable or absurd. Parallel to this development has come the development of the law of judicial review, and it has been held that judicial review may also be invoked when administrative discretion has been exercised unreasonably. The subjectivity of the Military Censor's discretion cannot, therefore, limit the scope of judicial review. Such review must attend to every one of the elements which govern the legality of the Military Censor's exercise of his discretion. There is no room for any "dead space".

           

            26. Considerations of security have deterred judicial review of administrative discretion in the past. It was thought that judges should not interfere since they are not experts in security matters. But in the course of time it has become clear that there is nothing unique about security considerations, in so far as judicial review is concerned. Judges are also not administrative experts, but the principle of separation of powers requires that they review the legality of the decisions of administrative officials. In this connection, security considerations have no special status. They, too, must be exercised lawfully and they, too, are subject to judicial review. Just as judges can examine the reasonableness of professional discretion in every other field and are required to do so, so can they examine the reasonableness of discretion in security matters and must do so. From this it follows that there are no special restrictions on the judicial review of administrative discretion in matters of state security. I so held in another case in which I said that:

 

          "There is a great deal of power concentrated in the hands of the military government and, for the rule of law to hold sway, judicial review must be applied in accordance with the usual tests" (H.C. 393/82 [50]).

           

            The court does not hold itself out as a security expert and it does not replace the security discretion of the competent authority with that of a judge. The court examines only the lawfulness of the security discretion, including its reasonableness. In this connection, there is no difference between the scope of review of security discretion and the scope of review of any other administrative discretion. The court never becomes a supra-governmental authority, but only reviews the lawfulness of the exercise of governmental discretion. In this sense, security considerations are not special. The scope of judicial review should be uniform for all government authorities. In the absence of any express provision of law it is not desirable that certain government authorities should enjoy immunity from judicial review. Similarly, it is not desirable, for example, to limit the scope of judicial review of the Attorney General's discretion to the question whether he acted in good faith. I pointed out that:

           

            "With regard to the scope of the court's intervention, there is no difference between the Attorney General and any other public functionary. The one, like the other, must exercise discretion fairly, honestly, reasonably, without arbitrariness or discrimination, after weighing relevant considerations only. All are subject to judicial review, and just as there is no special law for the Attorney General concerning the court's jurisdiction, there is no special law for him concerning the scope of judicial review..." (H.C. 329/81 [51], at p. 334; see also H.C. 292/86 [52]).

 

            The same rule applies to a government authority that has security powers. There is only one rule for all with respect to the scope of our intervention. All are subject to the rule of law and to judicial review, in accordance with the usual and accepted grounds for review which reflect the legal demands of administrative law. Thus, when we reviewed the scope of the District Commissioner's powers under the Defence Regulations to cancel a permit to publish a newspaper, we held in H.C. 541/83 [53], at p. 840:

           

"... Once the Commissioner has given the reasons for his decision, these reasons are subject to judicial review as any other exercise of administrative discretion...".

 

            This same approach applies to the present matter as well. Once the Military Censor has given the reasons for his decision, these reasons are subject to judicial review the same as any other exercise of administrative discretion (compare also H.C. 2/79 [54]; H.C. 488/83 [55], at p. 725).

           

            27. It should be noted that the limitation of the scope of judicial review over the exercise of discretion in matters of security, within the framework of the Defence Regulations, was based in the past largely on the majority decision in the House of Lords in the Liversidge [61] case. The Supreme Court relied on that decision when it held that "the power of this court, when called upon to review acts of the competent authority acting under the Defence (Emergency) Regulations, 1945, is extremely limited" (H.C. 46/50 [48], at p. 227). Since then, however, there has been an important development in England itself. The majority decision in the Livelrsidge case no longer reflects the current rule. This was stated in a series of judgments (see, for example, Nakkuda v. M.F. De S. Jayaratne (1951) [62]; Ridge v. Baldwin (1964) [63]). Lord Diplock's words in this connection are characteristic:

           

 "For my part I think the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right" (Reg v. I.R.C., Ex. p. Rossminister Ltd. (1980) [64], at 10/l).

 

            Since then the English courts do review security acts of authorities with powers based on defence regulations or emergency legislation (see Wade, supra, at 394). In Israel it has been held that the Supreme Court no longer follows the majority decision in the Liversidge case. President Shamgar noted this in H.C. 554/81 [33], at p. 251:

           

"There is no doubt that the above Regulation 110 grants far-reaching powers, which must be used with proper caution, while taking scrupulous care to observe the preconditions which justify their use. Therefore, the court will examine the exercise of these powers with proper vigilance and will not follow those restraints and limitations which previously characterized the English judgments dealing with the exercise of similar powers in England (Liversidge v. Anderson and another (1941)), which also found an echo in H.C. 46/50 supra".

 

            The very far-reaching character of government security power and the harm which the exercise of this power can cause to basic human rights require - as Justice Shamgar noted - that this court examine the exercise of the power "with proper vigilance".

           

            The fourth question: Review of the Censor's decision

           

            28. The Military Censor is empowered to prohibit publication of an article if there is a near certainty that its publication will cause substantial injury to the security of the State. It is within the Censor's discretion to decide whether such a near certainty exists and he must exercise this discretion reasonably. The question before us is whether the Military Censor's decision with respect to the subject matter of the petition before us complies with these tests. In order to answer this question we must distinguish between the Censor's decision to prohibit publication of criticism of the head of the Mossad and his decision concerning the timing of his replacement. We shall deal with each of these decisions separately. It should be noted that the parties now agree that publication of facts which could lead to identification of the head of the Mossad is forbidden, since such publication meets the required test.

 

            Criticism of the head of the Mossad

           

            29. The Military Censor's position is that "criticism of the head of the Mossad, as such, as well as criticism of the efficiency of his performance and the legitimation of such criticism which would derive from permitting its publication in Israel (as distinguished from its publication abroad) injures the functioning of the Mossad at all levels, including but not limited to, the field of state security and its connections with parallel organizations in other parts of the world and with its own field operatives". He stresses that "by way of contrast, those parts of the article containing expressions of the author's opinion and criticism of the Mossad and its functioning in general were not disqualified". He summarizes his stand on this matter by noting that "the essence of the matter is not in the prohibition of a publication because of any personal prejudice to the person referred to in the publication, but rather because, so long as the person concerned serves in his position, any factual reference to him as such, to his functioning or to the results thereof in the field - amount to prejudicing the security of the State, because of substantial relevant considerations".

           

            30. Examination of the Military Censor's reasoning shows that he does not complain that the newspaper article contains references to Mossad activities, or those of its head, whose publication could harm the security of the State. The Censor's explanation is directed at prejudice to the effectiveness of the head of the Mossad's functioning if such criticism may be published. In this connection, the Military Censor distinguishes between criticism of the head of the Mossad which, in his opinion, prejudices the security of the State and is therefore not permitted, and criticism of the Mossad itself, which would not be prohibited. In my opinion this reasoning does not stand up. Publication of criticism of the functioning of the head of the Mossad does not create a near certainty of substantial harm to the security of the State. We have here a remote possibility - "a bad tendency" in the words of Justice Agranat in H.C. 73/53 [7] – which has no place in our system of law. On the contrary: in a democratic society it is only right to allow criticism of persons fulfilling public functions. Of course, criticism is not pleasant, and sometimes it can even cause harm. That is true of criticism of the head of the Mossad or of the Prime Minister or of any other office holder. But this unpleasantness is not reason to silence criticism in a democratic society, which is built on the exchange of opinions and public debate. It may be assumed that criticism of the Prime Minister, for example, creates some possibility of causing damage to his functioning, to public confidence in him and to his ability to conduct negotiations with heads of other countries. This possibility does not provide a sufficient basis for prohibiting publication of the criticism. Freedom of expression is also freedom to criticize and and the freedom to harass public functionaries with bothersome questions. Occasionally the criticism is not justified. It is sometimes petty. Sometimes it injures. That does not justify prohibiting its publication. It is worth repeating and and emphasizing Justice Landau's penetrating words in H.C. 243/62 [16] supra, at p. 2416:

 

"A governing authority which takes unto itself the right to decide what the citizen ought to know, will eventually decide what the citizen should think; and there is no greater contradiction to true democracy, which is not 'guided' from above".

 

Justice Witkon repeated a similar idea when he said that:

 

"All serious and relevant criticism is entitled to be protected against government intervention (unless it reveals vital secrets)..." (A. Witkon, "Thoughts and Memories From Childhood Concerning Freedom of the Press", in Law and Judging; Collected Articles (Schocken Press, A. Barak, M. Landau, Y. Neeman, eds., 5748) 168, 180).

 

            In deciding to prohibit publication of criticism of the head of the Mossad's performance, the Military Censor did not give sufficient weight to the principle of freedom of expression. True, the Censor repeatedly declared before us that "on no account does he dispute the fact that the right of expression and freedom of expression must be honored - in our case, in the press - as they lie at the foundation of our system, and that he was guided by this in his considerations". But rhetoric is not enough. The basic principle must shape the actual decision. It is not enough to say that freedom of expression is a basic principle in our system. Practical significance must be given to this statement. Justice Bach rightly noted, in referring to freedom of expression, that :

 

            "The principles upon which this court has insisted in the past ... may not be used merely as an ideological flag to be waved externally, but must also actually guide us in fact in our day-to-day decisions" (H.C. 243/82 [32] supra, at p. 784).

           

            And I added, in another case, that if we do not do so, then

           

            "everything that we established on the normative level will disappear in the world of practical reality. The court must examine not only the law but its implementation as well, not merely rhetoric, but also practice..." (H.C. 14/86 [19] supra, at p. 439).

           

            31. A democratic regime is a regime of checks and balances. These checks and balances are, first and foremost, the product of the mutual relations between the governing authorities - the legislative, the executive and the judicial - among themselves (see H.C. 73/85 [57]). In a democratic society there are other checks as well. The State Comptroller is in charge of oversight. But such checks are not exclusively those of the governmental authorities. There are other checks, outside of the ruling framework itself. Among these, the press performs a vital function. Its task is to expose failings and to protest against them. A free regime cannot exist without a free press. The press must therefore be allowed to fulfil its function, and only in exceptional and special cases, in which there exists a near certainty that substantial harm will be caused to the security of the State, is there room to prohibit publication of information in the press. In principle, it is difficult to imagine a case in which criticism - as distinguished from the disclosure of facts - could provide a basis for the existence of near certainty of substantial harm to the security of the State. The burden of proof in this connection must rest on the Censor. He has failed to satisfy it. On the contrary, we are persuaded that the probability of harm to the security of the State is remote and the harm is not substantial. Indeed, it is, difficult to accept the position that criticism of the Mossad itself does not create a near certainty of substantial harm to the security of the State, but criticism of the head of the Mossad does create such a risk. This distinction appears to me to be artificial; just as criticism of the Mossad itself does not create the near certainty required to allow prior restraint on freedom of expression, so too, criticism of the head of the Mossad does not meet the test required for justifying restriction of freedom of expression. In the New York Times Co. case [59], at 714, the United States Supreme Court noted, in quoting a previous decision, that:

 

"Any system of prior restraints of expression comes to this court bearing a heavy presumption against its constitutional validity".

 

            The same holds true in this case. Every prior restraint of freedom of expression carries a heavy presumption that it is unlawful. One who seeks to show that the prior restraint of freedom of expression is lawful carries a heavy burden. The Military Censor did not sustain this burden.

           

            Publication of the timing of the replacement of the head of the Mossad

           

            32. The Military Censor forbade the Petitioners from publishing details concerning the timing of the replacement of the head of the Mossad. The reason given was that -

           

"there are those who concern themselves with such matters who could more easily focus on the person [the head of the Mossad], his movements and his activities and put this information to practical use to identify the head of the Mossad, particularly abroad. This poses a real danger to his security".

 

            In my opinion this reason, too, cannot stand up to review. The possibility that publication of the date of the forthcoming replacement of the head of the Mossad would increase the danger to his security appears to me to be purely speculative. No data whatever were brought before us - save for the above evaluation - which support this claim. Is it argued that hostile elements could identify the head of the Mossad because there would be an increase in overseas flights? This is a baseless argument in my opinion. But even if we assume that there is some merit to this argument, is it not possible to take precautions so as to reduce the risks? It appears to me, therefore, that in this case, too, the Military Censor did not give sufficient weight to the value of freedom of expression. The exchange of opinions concerning the desired qualities of the head of the Mossad is particularly important when a new appointment is imminent. It sharpens the public perception of the vital nature of the office and of the qualities which the holder of the office should have. By this means - and by public debate - it may influence the decision of those in charge of making the said appointment. The very knowledge that the appointment will be the subject of the public exchange of opinions and pubic criticism affects the considerations of those empowered to decide and can prevent an undesirable appointment. Such debate will be effective if it is conducted before the appointment, not after it. It is, therefore, important that the public know of the forthcoming appointment. This is one manifestation of the importance of freedom of expression and the public's right to know. Of course, if there is a near certainty of substantial harm to the security of the State, there is no escape from prohibiting publishing the fact of the forthcoming appointment. But, as already said, I am not at all satisfied that such a near certainty in fact exists. Indeed, the Censor himself allowed publication of the following article in one periodical:

 

"Generally, as the termination of the office of head of the Mossad draws near, there is a growing amount of agitation concerning the appointment of the next head of the Mossad. A group of ex-Mossad members sought a meeting, at their own initiative, with people at the political level in order to prevent the appointment of a candidate they considered unsuitable."

 

            When the Military Censor was asked about this publication he replied that the article in question "dealt with what happens before termination of the office' in general'". Also, that article does not contain any concrete reference to the timing of the termination of the office, as in our case. The Censor's explanation is not convincing. Examination of the article reveals clearly that a group of ex-Mossad members asked for a meeting at a specific time in the present, and it is difficult to distinguish between that article and the one in our case. The difference between the two articles is so slight that one cannot justify any distinction between them, either from the point of view of security of the State or from that of the interest of freedom of expression.

 

          33. It might be argued: the Military Censor believes that there is a near certainty of harm to state security if criticism of the head of the Mossad and the fact of his impending replacement are published. That is sufficient to justify prohibition of the publication, even if the court thinks that a near certainty does not exist. This argument is unacceptable, as we have already seen. The Censor's position that there exists a near certainty of real damage to state security must be reasonable. His evaluations - based on strong evidence - must be reasonable. In our opinion, the Censor's position and his evaluation are not reasonable. In adopting this approach we are not turning ourselves into a super-censor. We are merely holding that a reasonable censor, functioning in a democratic regime and required to strike a balance between security and freedom of expression, would not arrive at the same conclusion as the first Respondent.

         

          Conclusion

         

          34. Before concluding I would like to state that I do not wish to cast any doubt whatever concerning the Military Censor's good faith. He has a difficult task, which he has to discharge under difficult conditions. Still, it is important to reiterate that the Defence Regulations - even though their source is Mandatory-autocratic - are applied in a democratic country. In these circumstances, their character must be fashioned against the background of their new democratic environment. Of course, democracy is entitled and obliged to defend itself. The democratic state cannot be established without security. But it should not be forgotten that security is not only the Army. Democracy, too, is security. Our power lies in our moral strength and our adherence to democratic principles, precisely when we are surrounded by great danger. Security is not an end in itself, but a means to an end. The end is the democratic regime, which is the rule of the people and which respects the rights of the individual, among which freedom of expression occupies an honored place. Everything must be done, therefore, to minimize the possibility that security considerations will restrict freedom of expression, which is one of the principal values which security is supposed to protect. The way to achieve this balance between security and freedom of expression is to maintain freedom of expression and restrict it only when there is a near certainty of substantial harm to security and there is no other way to prevent the danger while preventing the injury to freedom of expression. The Military Censor must reach his difficult decisions against the background of this basic understanding.

 

            The result is that we make the order nisi absolute to the effect that publication of those parts of the article containing criticism of the head of the Mossad or references to his forthcoming replacement may not be prohibited. We reiterate that publication of any matter that could lead to the identification of the head of the Mossad is forbidden. We also assume that those parts of the article, the publication of which the Petitioners agreed not to publish, during the course of the proceedings before us, will not be published, while those portions, whose publication the Respondents permitted in these proceedings will be published.

           

            The Respondents will bear the Petitioners' costs in the amount of NIS 3,000, including advocates' fees. This amount will bear interest and be linked until payment.

           

            Maltz J.: I concur.

           

            Wallenstein J.: I concur.

           

            Decided as stated in Justice Barak's judgment.

           

            Judgment given on January 10, 1989.