HCJ 4541/94

Alice Miller

v.

1.     Minister of Defence

2.     Chief of Staff, IDF

3.     Head of Manpower Department, IDF

4.     Chief Officer of Women’s Corps, IDF

The Supreme Court sitting as the High Court of Justice

[8 November 1995]

Before Justices E. Mazza, Y. Kedmi, T. Strasberg-Cohen, Ts. E. Tal, D. Dorner

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

Facts: The petitioner asked the army to assign her to the air force for training as a pilot. The army refused, since it was established policy not to train women as pilots. The army’s reasoning was based on the length of service: by law, men are obliged to serve until the age of 54, whereas women are only obliged to serve until the age of 38, and they are exempt if they are pregnant or have children. Consequently, the army argued, the huge investment involved in training a pilot could not be justified for women, and planning for the deployment of pilots in the air force units would be complicated by the integration of women pilots who could be expected to be absent for significant periods of time because of pregnancy and childbirth.

Held: The majority held that the budgetary and planning considerations did not justify a general policy of rejecting all women from aviation courses. The minority held that intervention of the High Court of Justice was not justified in view of these considerations.

Petition granted by majority decision (Justices E. Mazza, T. Strasberg-Cohen, D. Dorner), Justices Y. Kedmi, Ts. E. Tal dissenting.

Basic Laws cited:

Basic Law: Freedom of Occupation, 5754-1994, ss. 1, 3.

Basic Law: Human Dignity and Liberty, 5752-1992, ss. 1, 2, 3, 4, 8, 10, 11.

Statutes cited:

Defence Service (Volunteering for Defence Service) Regulations, 5734-1974.

Defence Service (Women’s Jobs in Compulsory Service) Regulations, 5712-1952.

Defence Service Law (Amendment no. 2), 5747-1987.

Defence Service Law (Amendment no. 7 and Temporary Provisions) (Police Service and Recognized Service), 5755-1995, s. 4.

Defence Service Law [Consolidated Version], 5719-1959, s. 16(b).

Defence Service Law [Consolidated Version], 5746-1986, ss. 1, 12, 15, 16, 17, 17(e), 21(b), 24, 29, 34, 39.

Defence Service Law, 5709-1949, s. 6(f).

Discharged Soldiers (Return to Work) Law, 5709-1949.

Equal Employment Opportunities Law, 5748-1988, s. 2(a).

Equal Remuneration for Female and Male Employees Law, 5724-1964, s. 1.

Government Corporations Law, 5735-1975, s. 18A.

Work and Rest Hours Law, 5711-1951, s. 9(c).

Women’s Employment Law, 5714-1954, ss. 6(a), 7(c)(1), 7(d)(1).

Women’s Equal Rights Law, 5711-1951, s. 1.

Regulations cited:

Employment of War Invalids Regulations, 5711-1951.

Israeli Supreme Court cases cited:

[1]        FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[2]        HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[3]        HCJ 721/94 El-Al Israel Airways Ltd v. Danielowitz [1994] IsrSC 48(5) 749; [1992-4] IsrLR 478.

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

[5]        HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

[6]        HCJ 453/94 Israeli Women’s Network v. Government of Israel [1994] IsrSC 48(5) 501; [1992-4] IsrLR 425.

[7]            CrimA 5/51 Steinberg v. Attorney-General [1951] IsrSC 5 1061.

[8]        HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel [1993] IsrSC 47(3) 387.

[9]        HCJ 734/83 Shine v. Minister of Defence [1984] IsrSC 38(3) 393.

[10]     HCJ 329/87 Sorko-Ram v. Minister of Defence [1992] IsrSC 46(5) 301.

[11]     HCJ 3246/92 Har-Oz v. Minister of Defence [1992] IsrSC 43(4) 873.

[12]     HCJ 953/87 Poraz v. Mayor of Tel-Aviv [1988] IsrSC 42(2) 309.

[13]     HCJ 153/83 Levy v. Southern District Commissioner of Police [1984] IsrSC 38(3) 393; IsrSJ 7 109.

[14]     HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [1994] IsrSC 48(5) 441.

[15]     HCJ 1255/94 Bezeq, the Israel Telecommunication Corporation Ltd v. Minister of Communications [1995] IsrSC 49(3) 66.

[16]     HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [1994] IsrSC 48(5) 441.

[17]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[18]     HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[19]     FH 36/84 Teichner v. Air France Airways [1987] IsrSC 41(1) 589.

[20]     HCJ 637/89 ‘Constitution for the State of Israel’ v. Minister of Finance [1992] IsrSC 46(1) 191.

[21]     HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[22]     HCJ 141/82 Rubinstein v. Knesset Speaker [1983] IsrSC 37(3) 141; IsrSJ 8 60.

[23]     HCJ 142/89 Laor Movement v. Knesset Speaker [1990] IsrSC 44(3) 429.

[24]     HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [1958] IsrSC 12 264.

[25]     HCJ 337/81 Miterani v. Minister of Transport [1983] IsrSC 37(3) 337.

[26]     CA 732/74 HaAretz Newspaper Publishing Ltd v. Israel Electricity Co. Ltd [1977] IsrSC 31(2) 281; IsrSJ 5 30

[27]     HCJ 301/63 Streit v. Chief Rabbi [1964] IsrSC 18(1) 598.

[28]     CrimApp 537/95 Ganimat v. State of Israel [1995] IsrSC 49(3) 355.

[29]     CrimApp 4595/94 (unreported).

[30]     CApp 4459/94 Salomonov v. Sharabani [1995] IsrSC 49(3) 479.

[31]     HCJFH 3229/93 Wechselbaum v. Minister of Defence [1995] IsrSC 49(2) 195.

[32]     CrimApp 2169/92 Suissa v. State of Israel [1992] IsrSC 46(3) 338.

[33]     HCJ 389/90 Golden Pages Ltd v. Broadcasting Authority [1981] IsrSC 35(1) 421.

[34]     HCJ 4422/92 Efran v. Israel Lands Administration [1993] IsrSC 47(3) 853.

[35]     HCJ 231/63 Ratef Food Supply Ltd v. Ministry of Trade and Industry IsrSC 17 2730.

[36]     HCJ 5510/92 Torkeman v. Minister of Defence IsrSC 48(1) 217.

[37]     HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [1995] IsrSC 49(5) 1.

[38]     HCJ 399/85 Kahana v. Broadcasting Authority Management Board [1987] IsrSC 41(3) 255.

[39]     HCJ 1452/93 Igloo Plumbing Works, Building & Development Contracting Co. Ltd v. Minister of Industry and Trade [1993] IsrSC 47(5) 610.

[40]     HCJ 80/70 Elitzur v. Broadcasting Authority [1970] IsrSC 24(2) 649.

American cases cited:

[41]         Faulkner v. Jones 10 F. 3d 226 (1993).

[42]         Faulkner v. Jones 51 F. 3d 440 (1995).

[43]         Bradwell v. The State 83 U.S. 130 (1872).

[44]         Brown v. Board of Education 347 U.S. 483 (1954).

[45]         Frontiero v. Richardson 411 U.S. 677 (1986).

[46]         Muller v. Oregon 208 U.S. 412 (1908).

[47]         Hoyt v. Florida 368 U.S. 57 (1961).

[48]         Rostker v. Goldberg 453 U.S. 57 (1981).

[49]         Getz v. Con. of Pa., Dept of Public Welfare 802 F. 2d 772 (1986).

[50]     Shapiro-Gordon v. MCI Telecommunications Corp. 810 F. Supp. 574 (1993).

[51]         Railway Express Agency v. New York 336 U.S. 106 (1949).

[52]         Massachusetts Board of Retirement v. Murgia 427 U.S. 307 (1976).

[53]         Korematsu v. United States 323 U.S. 214 (1944).

[54]         Craig v. Boren 429 U.S. 190 (1976).

[55]         Mississippi Univ. v. Hogan 102 S. Ct. 3331 (1982).

Canadian cases cited:

[56]         Gauthier & an. v. Canadian Armed Forces — unreported.

[57]         Re Blainey and O.H.A. (1986) 54 O.R. 2d 513.

[58]         R. v. Oakes [1986] 1 S.C.R. 108.

[59]         Singh v. M.E.I. [1985] 1 S.C.R. 177.

[60]         R. v. Lee [1989] 2 S.C.R. 1384.

Jewish Law sources cited:

[61]         Psalms 45, 14.

For the petitioner — N. Ziv, R. Benziman.

For the respondents — U. Fogelman, senior assistant and director of the High Court of Justice Department at the State Attorney’s Office.

JUDGMENT

Justice E. Mazza

1.    At the heart of this petition lies the question whether the policy adopted by the IDF, not to recruit women soldiers to the profession of aviation, should not be disqualified because it is tainted by improper discrimination on the basis of the sex of the candidates. When the petition was filed, an order was made, ordering the respondents to show cause why they should not summon the petitioner for aptitude tests for an aviation course, and why they should not allow her to participate in the aviation course if she is found suitable for it.

The facts

2.    The petitioner (an Israeli citizen, born on 23 January 1972), was born and grew up in South Africa. Since her youth, in South Africa, she showed great interest in aviation. She trained for this and received a pilot’s license, which is recognized as valid in many countries, but she has not yet completed the requirements for receiving a civil aviation licence in Israel. On 13 December 1990 the petitioner was enlisted in the IDF. Her enlistment took place within the framework of the academic reserves, and the beginning of her service was postponed. For four years the petitioner studied aeronautic engineering at the Technion in Haifa. She successfully completed her studies and on 1 January 1995 she reported for active service.

            In November 1993 (more than a year before the beginning of her military service) the petitioner informed the commander of the academic reserves that she wanted to volunteer for service in the air crew professions and she asked to be summoned to aptitude tests for an aviation course. The petitioner thought that she had promising basic qualifications for succeeding in the role of pilot; but her request was denied. In her letter to the petitioner (dated 15 December 1993), the commander of the reserves wrote that according to the directives of the high command, women were not to be assigned to ‘combat professions’; and since aviation was classified as a combat profession, the army does not accept women for aviation courses. The petitioner gave notice that she challenged the legality of the refusal and gave her reasons. As a result, she was invited to a meeting with the Commander of the Air Force. However, this meeting too, which took place in December 1993, did not further her cause; on 15 May 1994 the army once again informed her that in view of established policy ‘not to assign women to combat professions’, there was no basis for assessing her aptitude for an aviation course.

            This was the background to the petitioner filing (in August 1994) the petition before us. It should be noted that prior to the date of hearing the objection to the show cause order (which took place on 21 June 1995), the petitioner successfully completed an officers’ course and was given the rank of an officer, but her desire to be accepted to an aviation course and to serve as a pilot remained as strong as ever.

            The legal framework

3.    The Defence Service Law [Consolidated Version], 5746-1986, regulates compulsory service in the IDF. In three main areas relating to the scope of compulsory service, the law makes a different provision for men and women. The most noticeable differences relating to the sex of young persons being enlisted — as can be seen from the law alone, without taking into account additional arrangements prescribed in subordinate legislation and in army regulations — are as follows:

(a) Duration of regular service: Men are liable for thirty months of service, whereas women are liable for compulsory service for a period of only twenty-four months (ss. 15 and 16 of the law);

(b) Reserve duty: Men who are not in compulsory service are liable for reserve duty until the age of 54, whereas women are only liable until the age of 38 (see section 29 of the law and the definition of ‘person of military age’ in section 1 of the law);

(c) Exemption from defence service: In addition to the grounds for exemption from security service available to men, married woman are entitled to an exemption from compulsory service and pregnant women and mothers are also exempt from reserve duty (s. 39 of the law).

4.    Alongside the provisions with regard to compulsory defence service, the law also makes it possible (in section 17) to volunteer for service (with the approval of the Minister of Defence). The possible volunteer tracks are for ‘compulsory’ service, by those who are not liable for such service; for additional ‘compulsory’ service (‘permanent service’), beyond the period of compulsory service; and for reserve service, by those who not liable for such service, or beyond the amount for which a person is liable. From the provisions of section 17(e) of the law it appears that volunteering for ‘compulsory’ service imposes an obligation to serve until the end of the period stipulated in the declaration of voluntary service, and the Minister of Defence has the authority to shorten the period, but someone who volunteers for reserve duty will be discharged even before the end of the period stipulated in the declaration, if he submits a written notice of his desire to be discharged (at the times stipulated in the Defence Service (Volunteering for Defence Service) Regulations, 5734-1974).

5.    With regard to the kinds of jobs that can be imposed on soldiers, the law no longer distinguishes between men and women. However, such a distinction — which serves as the guideline for the army authorities — is found in the High Command Regulations which regulate the service of women soldiers. In sections 4 and 5, which are entitled ‘Jobs’, the regulations state as follows:

‘4.          Women soldiers in the IDF shall be employed in all military professions that are defined in the list of military professions as professions to which women may be assigned, with the exception of field, combat professions, taking into account their credentials, capabilities and their special service conditions as women.

5.            A woman soldier may volunteer for jobs that are outside the framework of the definition in section 4 above, after she signs a suitable declaration to volunteer, and her voluntary service for the job is approved by the Chief Officer of the Women’s Corps and the Head of the Manpower Division.’

It should be noted that in the past, women’s jobs were determined by the Defence Minister, in the Defence Service (Women’s Jobs in Compulsory Service) Regulations, 5712-1952. These regulations list the jobs to which the army may assign women. The list, which specifies twenty-five different possible jobs, does not include jobs in the sphere of combat professions, and assigning a woman to a job that is not mentioned in the list was permitted under the regulations only ‘if the woman consented thereto in a written declaration’. The regulations still appear in the statute book, but the legal basis for enacting them was removed by the repeal (within the framework of the Defence Service Law (Amendment no. 2), 5747-1987) of section 21(b) of the law, which by virtue of its parallels in previous wordings of the law (s. 6(f) of the Defence Service Law, 5709-1949, and section 16(b) of the Defence Service Law [Consolidated Version], 5719-1959) gave the Minister of Defence authority to enact regulations in this respect. It appears that the only distinction between men’s jobs and women’s jobs that the law left intact was in section 24, in which the Minister of Defence was authorized, in consultation with the Minister of the Police or someone authorized by him, to direct in an order that men of military age who have certain qualifications may serve in the Border Patrol of the Israeli Police. But recently the legislator repealed even this distinction (see section 4 of the Defence Service Law (Amendment no. 7 and Temporary Provisions) (Police Service and Recognized Service), 5755-1995).

The petitioner’s arguments

6.    The petitioner claims that the respondents’ position, which is based on a policy of an absolute disqualification of women for the profession of aviation, violates the basic right of equality between the sexes. The admission of men to an aviation course is considered, subject to the requirements of the army, on the basis of the personal details and qualifications of the candidates. A soldier who volunteers to serve on an air crew and who complies with the minimum requirements is referred for aptitude tests. If he is found to be suitable, he is accepted into an aviation course; and if he successfully completes the aviation course he will be assigned (according to his talents and the degree of his success) to one of the air crew professions. But women are denied the opportunity and the right at the outset. They are disqualified because they are women. The question of their talents and suitability does not interest the army. For this reason the army refuses to test the level of the personal qualifications of any woman candidate.

The petitioner claims that this policy is a discriminatory one. Its implementation violates her right (and the right of all women) to equality. This violation is expressed, first and foremost, in denying a woman the equal right and opportunity to serve in the army as a pilot, if she is found to have the requisite qualifications, and thereby to make her contribution to the defence of the State, to achieve her aspirations and to make the most of her potential. But denying the possibility of serving as a pilot has additional ramifications. The disqualification in limine of women for positions, even when they are suitable and have the necessary qualifications, harms their social image. It also blocks their prospects of promotion to senior positions in the air force and in the army as a whole. Being in a combat unit is, usually, a precondition for promotion in the army. For this reason, most positions of senior staff officers in the IDF are, de facto, closed to women. But this is not all: it is usual in Israel that having a professional position in the army constitutes a springboard for obtaining employment in the civil sector. This is especially obvious for pilots, since obtaining a job as a pilot for the El-Al company is de facto conditional upon serving as a pilot in the air force; by denying the petitioner an equal opportunity to serve as a pilot in the air force, she is also, de facto, being denied the equal opportunity to work and make the most of her talents as a civil pilot.

            7.         The petitioner is aware that the exclusion of women from combat professions may be based on relevant considerations. Thus, for example, she is prepared to assume that in many combat roles in the field corps, there is no practical possibility of integrating women. Therefore she does not argue that the existing restrictions on the recruitment of women for combat units should be cancelled entirely. Nonetheless, the petitioner argues that an all-embracing disqualification of the integration of women in combat positions is an unacceptable position. Experience, both generally and in the army, shows that it is possible to integrate women in some combat positions. Aviation professions are an obvious example of this. This has been done, with great success, in the armies of other countries, and even in the IDF several women pilots have served in the past. Therefore the petitioner argues that the policy of the army with regard to the integration of women in combat positions should be an all-embracing one, but it should consider, on an individual basis, the nature of the position, the combat unit and the corps in the relevant case. This approach is mandated by the principle of equality. As long as there is no objective and relevant reason for distinguishing between men and women for the purpose of carrying out a particular job, both sexes should be treated according to the same criterion. The law does indeed distinguish, in some matters, between men and women soldiers, but the distinctions of the law are not relevant for the purpose of the jobs which it is permitted and possible to assign to women. Moreover, the aforesaid regulations of the High Command, which were the basis for rejecting her application to volunteer for an air crew, allow a woman soldier to volunteer for tasks that are not included among the jobs that the army may impose on her. It follows that neither the law nor army regulations place an obstacle in the way of implementing a policy of selection and assignment that respects the right of women soldiers to equality.

The position of the respondents

8.    In the affidavit in reply to the petition, which was submitted by the Air Force Commander, General Herzl Bodinger, the reasons of the respondents that justify the policy of the army with regard to the military service of women and the question of integrating them in combat positions are set out — at great length. From the affidavit it emerges that the basis for this policy lies in the distinction that the law makes between men and women with regard to the extent of their duty to serve. On the basis of this distinction it is argued that the service conditions for women, as dictated by law, have implications for the nature of their service, both in the regular forces and the reserve forces. Because of the difference in the relevant characteristics of men and women, the principle of equality does not apply. The different treatment of the service of women is based on relevant differences in their personal details, and therefore it is not an improper discrimination but a permitted distinction.

            9.         A preliminary comment should be made regarding the scope of the dispute.

In his reasons for disqualifying the integration of women in combat professions in the wider sense, the deponent discussed, inter alia, the socio-ethical aspect. This is what he said:

‘The question of integrating women into combat professions is problematic, and ultimately it is also a social, cultural and ethical question that has been pondered in many countries. It also arises from time to time in Israel and the solution to it is not merely in the hands of the defence establishment.

Until now it was accepted, in the security situation prevailing in Israel, that men are the ones who go to the front, in view of the element of danger involved in the combat professions, the risk of combat against the enemy and the danger of falling into captivity. Obviously weight was given to public opinion on this matter, since the decision is one of life and death in view of the dangers prevailing in the daily security reality, which even with the passage of time have not yet disappeared.’

However, at the beginning of the hearing before us, counsel for the State, Mr U. Fogelman, declared that the respondents wished to rely, in their opposition to the petition, only on the considerations because of which the army decided — within the framework of section 5 of the aforesaid High Command regulations — to reject the petitioner’s request to volunteer for an air crew. It soon became clear that the respondents’ position in this respect relied mainly on what in his affidavit the Air Force Commander referred to as  ‘planning considerations’. To remove all possible doubt regarding the decision we are asked to make in this petition, Mr Fogelman reiterated and emphasized the following two points: first, that the respondents limit their opposition to the specific issue raised by the petition — i.e., the integration of women as pilots in the air force — without including this as part of their approach to the general question of principle with regard to the possibility of integrating women in other combat professions; second, that even though with regard to the integration of women pilots the respondents are not unaware of the (in his words) ‘paternalistic’ aspect — i.e., the social approach that holds that women should not be exposed to the risks of combat against the enemy and falling into captivity — it was not this criterion that led to the decision in the case of the petitioner, and the question of whether this approach is correct, and to what degree, is not what requires clarification and elucidation from us. It follows that the petitioner was rejected on the basis of the ‘planning considerations’; we only need to consider whether these are justified, and we only need to give a decision on this point.

            10. I will therefore return to the affidavit-in-reply, in order to ascertain and clarify the nature and scope of the planning reasons, on which basis the respondents wish to justify an all-embracing and absolute disqualification of all women soldiers from the aviation courses of the air force. I will first say that that not everything that has been brought to our attention in this sphere can be revealed within the framework of the judgment. The information submitted to us concerns, to no small degree, the structure of the air force’s deployment for operations and training, the financial costs of training pilots, the average service periods of pilots in the regular army and in reserve duty, the standard call-up of pilots for active reserve duty and its frequency and other matters. Obviously, since all these constitute fragments of information about the planning of the air force, the less said the better. In submitting them to us — partly in an additional (privileged) affidavit from the Air Force Commander, partly in explanations given orally, in camera, by the Head of the Manpower Division at Air Force Headquarters — the respondents wanted to put before us the factual basis needed to appraise the validity of the considerations that led to the rejection of the petitioner’s request without considering her suitability and her qualifications. Only those considerations which the respondents stated publicly may be mentioned by us, for the planning considerations relevant to the rejection of the petitioner’s request are not part of the planning, but considerations based on the planning.

            11. What, then, are the planning considerations? From the affidavit-in-reply it transpires that these concern considerations of overall viability and also organizational limitations involved in the integration of women into the air combat alignment of the air force. In fact, these reasons form the basis for the policy of disqualifying the integration of women in many other combat professions as well. However, in the opinion of the Air Force Commander, these reasons are particularly valid for justifying the viewpoint that women should not be trained as pilots.

            The training of a pilot is a lengthy process, and the financial investment in funding it is huge. The training of a pilot therefore looks towards the future. It is based on the assumption that the candidate will serve for a long period, beginning with compulsory service and thereafter in reserve duty. Because of this, army regulations provide additional age limits and preconditions for accepting a candidate for an aviation course. The length of compulsory service for women, the limited obligations for reserve duty imposed upon them and their entitlement to an exemption from defence service as a result of marriage, pregnancy and childbirth make it impossible to integrate them in an aviation course and for them to serve in an air crew. Even volunteering for additional regular service and reserve duty by those women wishing to serve as pilots provides only a partial solution to the problem, both because of the statutory distinction between a volunteer who is liable to serve and a volunteer who is not liable to serve and also because of the reduced capacity to continue to serve in situations of pregnancy and childbirth.

            Indeed, in the course of argument before us, Mr Fogelman conceded that with respect to an undertaking for additional regular service, there is no real basis for distinguishing between women and men, since a woman candidate for an aviation course who commits herself (in the same way as male candidates) to additional regular service, would be obliged to complete her term of service in full, even if she marries, becomes pregnant or gives birth during the period of service. This is not the case with respect to the obligation of reserve duty for a woman pilot, who has completed her term of additional regular service to which she committed herself. She is bound by this obligation only until she becomes pregnant, gives birth or reaches the age of 38, whichever is the earliest. Even if she volunteers for reserve duty for which she is not liable (such as because of pregnancy or childbirth), she can at any time retract her volunteering for reserve duty, and the army will be bound to release her. Counsel for the respondents argues that the selection of candidates for assignment to any military function must be based solely on army needs, and the assignment of women to positions as pilots is inconsistent with those needs. Even if a woman pilot is able and willing to carry out all her obligations, her temporary absence from service, due to pregnancy for example, could disrupt the viability of her unit. As a result, planning and operational capacity will be compromised. And if the planning considerations are insufficient to tip the scales, they are supplemented by budgetary and logistic considerations. These involve the necessity of adapting existing military facilities for the inclusion of women.

            It should be noted that the Air Force Commander (as can be seen from his affidavit) does not dispute that a woman may have all the qualifications required for success as a pilot. In his affidavit, he also addresses the fact that in some other armies several combat professions (including aviation) have been opened up to women. However, in his opinion, one cannot use the experience of other armies to draw conclusions for the IDF, both because of the unique emergency conditions under which the IDF is required to act, and also because of the difference in the service conditions of women between the IDF and other armies. In conclusion, with regard to the rejection of the petitioner’s request, the Air Force Commander says:

‘The petitioner’s request to volunteer for an aviation course was rejected despite her excellent and admirable qualifications, not because she is a woman, but mainly because her anticipated length of service (placing an emphasis on reserve duty) is inconsistent with the army’s preconditions for the training of a member of an air crew.’

            Relevant difference and improper discrimination

12. The petitioner’s position relies on the principle of equality. Her argument is that her rejection as a candidate for an aviation course, merely because she is a woman, discriminates against her in relation to men soldiers. This discrimination violates her right to equality of the sexes, and the decision must therefore be disqualified. In replying to this argument, counsel for the respondents hoped to persuade us that in our case, the question of violation of the principle of equality does not arise at all. In his opinion, this is a necessary implication of the provisions of the law which, in so far as the extent of the obligation to serve and the conditions of service are concerned, clearly distinguish between men and women. This means that the legislator recognized that the difference between the sexes is relevant with respect to their military service. It follows that this difference is relevant also in determining the nature of the military jobs and professions that the army assigns to men and women soldiers.

            13. I cannot accept this position. It is true that a relevant difference may justify a distinction. This indeed is the root of the difference between improper discrimination and a proper distinction. In the words of Justice Agranat in FH 10/69 Boronovski v. Chief Rabbis [1], at p. 35:

‘The principle of equality, which is merely the opposite of discrimination and which, for reasons of justice and fairness, the law of every democratic country aspires to achieve, means that people must be treated equally for a particular purpose, when no real differences that are relevant to this purpose exist between them. If they are not treated equally, we have a case of discrimination. However, if the difference or differences between different people are relevant for the purpose under discussion, it is a permitted distinction to treat them differently for that purpose, provided that those differences justify this.’

            However, as a condition for achieving real equality, we must determine that the relevance of the difference, and its degree, should be examined, in every case, in view of the specific purpose that the distinction is intended to achieve. In other words, the relationship required between the special characteristics possessed by one person and not by another, and the purpose for which it is permitted to prefer one person to another, must be direct and concrete (vid. et cf. the remarks of Justice Netanyahu in HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [2], at p. 21). The mere existence of a difference between two people does not justify a distinction. Compare HCJ 721/94 El-Al Israel Airways Ltd v. Danielowitz [3], the remarks of Vice-President Barak, at pp. 760-764 {488-494}, and the remarks of Justice Dorner, at pp. 782-783 {519-520}. On the contrary; wherever possible, even different people should be treated equally, while taking into account their being different.

            14. In establishing the duty of service and the conditions of service, the law distinguished between men and women. Does this not imply that there is a difference between the two sexes that is relevant for the absolute disqualification of all women soldiers from fulfilling various jobs? The answer must be no. The statutory distinction between men and women with regard to the duty of service and conditions of service was intended as a concession to women, presumably in view of the biological differences between the sexes. This concession regarding the service conditions of women constitutes a factor to be considered by the army when planning its manpower arrangement; but it cannot be a reason for permitting discriminatory treatment of women soldiers. Note that the law says nothing about assigning certain jobs to women, or their disqualification for other jobs; even the provision that used to be in the law, which authorized the Minister of Defence to enact regulations about what jobs the army could assign to women soldiers, was repealed and no longer exists (see paragraph 5 above). In these circumstances, and in the absence of any contrary indication in the language or purpose of the law, the presumption is that the law should be construed in a way that is consistent with respect for the right to equality between the sexes and that it is intended to achieve it (see A. Barak, Judicial Interpretation, vol. 2, Statutory Interpretation, Nevo, 1993, at pp. 435-436). This approach is even more compelling when we acknowledge that, since the enactment of the Basic Law: Human Dignity and Liberty, the normative status of the principle of equality — which had already been described as ‘the heart and soul of our constitutional regime…’ (Justice Landau in HCJ 98/69 Bergman v. Finance Minister [4], at p. 698 {17}) — has become elevated and has become ‘a principle with constitutional, super-legislative status’ (in the words of Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [5], at p. 363. See also: Barak, supra, at pp. 565-566; HCJ 453/94 Israel Women’s Network v. Government of Israel [6], at pp. 525-526 {451-454}).

            15. In the affidavit-in-reply it was hinted that the fact that the petitioner does not argue that women should be submitted to the same duties of military service that the existing law imposes only on men, is tantamount to seeking a privilege for women. Counsel for the respondents did well not to repeat this argument during the hearing before us. There are some who see in the law a defect of discrimination against men (see Dr C. Shalev, ‘On Equality, Difference and Sex Discrimination’, The Landau Book, Boursi, vol. 2, ed. A. Barak and A. Mazoz, 1995, 893, at pp. 900-902, and what is stated in footnote 42); this is certainly the opposite of the approach that holds that the distinction in the law between men and women is justified since it is based upon a relevant difference between the sexes (see the remarks of Justice Sussman in CrimA 5/51 Steinberg v. Attorney-General [7], at pp. 1067-1068). However, even if we do not stick to the traditional view and assume that the law is indeed defective to some extent in discriminating against men, I do not see how this argument can be used specifically against the petitioner who is seeking for herself the right to take upon herself a burden that according to the approach of those making this argument was designated only for men.

16. Therefore the construction of the law in accordance with its language and purpose leads to the conclusion that the law does not permit the total disqualification of women, because of their sex, from holding any particular job in the army. To remove doubt, I wish to add that even under the Defence Service (Women’s Jobs in Compulsory Service) Regulations — which after the repeal of the section in the law authorizing the regulations are no longer valid — it was not possible to reach a different conclusion. Even in the regulations there was a possibility for women soldiers to volunteer for jobs not included in the list of jobs that the army was allowed to assign to women. The same is also true under the aforesaid regulation of the Supreme Command, according to which the army continues to direct itself in assigning the jobs of women soldiers; even this, like the regulations when they were valid, leaves an opening for women to volunteer for jobs outside the scope of the jobs that the army normally assigns to women. Note that this does not mean that the difference between the sexes is never relevant with regard to the suitability of a woman soldier for a specific job. Even I think that it is indeed possible that a woman soldier will be disqualified, because of her sex, from holding various jobs, but a disqualification for this reason is permitted only where the sex of the candidate creates a difference that is relevant to her holding the specific job.

            Women as Pilots

17. No-one disputes that the capabilities required for operating military aircraft may be found equally among men and women. Much material has been submitted to us with regard to the successful integration of women pilots in the air forces of other countries. Admittedly, the practical experience in the air units of the United States Air Force (from 1942 onwards) was based mainly on the use of women pilots in reconnaissance, training and indirect assistance only (see the chapter ‘Women in Aviation’ in J. Ebbert & M. Hall, Crossed Currents: Navy Women from WWI to Tailhook, Brassey’s, 1993, at pp. 241-327). However, there is evidence that in the Red Army, during the Second World War, woman pilots were used with great success even in combat operations against enemy planes (see J. Holm, Women in the Military — An Unfinished Revolution, Presidio, 1982, at p. 315). In fact, no-one any longer disputes that women are capable of operating successfully in air crews to the same degree as men. It should be noted that the question of integrating women pilots in the United States Army in combat operations was recently examined by a presidential commission that was appointed to examine all the questions arising from the participation of women in combat units, including issues relating to the pregnancy and childbirth of women in active military service. The commission, whose investigations also included the lesson learned from the participation of women in the Gulf War, recommended (by a majority of eight to seven) not to allow women to participate in combat aviation (see the Commission’s report: The Presidential Commission on the Assignment of Women in the Armed Forces, Report to the President: Women in Combat, Brassey’s, 1992). But it appears that on this issue it was precisely the minority opinion of seven of the commission’s members (see, ibid., p. 80-83) that prevailed: the Secretary of Defence at that time, Les Aspin, decided to adopt the minority opinion, and in April 1993 he ordered the restriction against the participation of women in combat operations of the airborne units of all forces to be lifted. The active integration of women as pilots is today common in the air forces of other countries. It seems that the prominent examples in this field from our viewpoint are Canada and Australia, where openness on this subject increased and received an impetus as a result of the constitutional development of human rights and the prevention of discrimination against women (in this respect, see the research of A. Ayalon, Women in Combat Positions — A Theoretical Comparative Survey, The Israel Institute for Democracy, 1994, at pp. 21-28).

            18. But why should we search so far away? The material submitted to us shows that at least in the first decade of the air force’s existence several women pilots were integrated into its ranks. Before and during the Kadesh operation, women received assignments as pilots of transport aircraft. But in subsequent years the army stopped accepting woman for aviation courses. The change in policy is attributed to budgetary considerations: the training of women as fighter pilots in order to be assigned merely as transport pilots, for a relatively short period, was considered to be cost-ineffective. In one exceptional case, during the seventies, several women were accepted as cadets for an aviation course. But since then the doors of the course were closed once again to women soldiers (on this issue, see N. L. Goldman & K. L. Wiegand, ‘The Israeli Woman in Combat’, The Military, Militarism and the Polity, The Free Press, N.Y., 1984, at pp. 220-221). It should be noted that not all professionals accepted this approach. In support of her petition, the petitioner submitted, inter alia, also an affidavit of Col. (Res.) Ze’ev Raz who served in the air force as a combat pilot, and during the years 1986-1989 served as Commander of the Aviation School. The deponent testified that, subject to the difficulty that he sees in the participation of women in combat operations (which he attributes to the difficulty that exists in the attitude of the public to the possibility of women falling into captivity), he supports the integration of women in an aviation course; moreover, even when he was in active service he tried to change the army’s policy in this matter. In his opinion, women can be integrated in flying Boeing transport aircraft and in service flights in Skyhawk aircraft. Women can serve as pilots both in compulsory service and also (on a voluntary basis) in reserve duty, as is the case with men pilots. In his estimation, the integration of women in a flight course and in the units will not only not impair the ability of the units to carry out the missions which they are assigned, but will even make a positive contribution in this direction. Moreover, he does not expect the integration of women to create difficulties in logistic and organizational deployment that are insurmountable. Support for the integration of women in aviation courses is expressed also in the affidavit of Major-General (Res.) Amira Dotan, who served as the Chief Officer of the Women’s Forces during the years 1982-1987. The deponent testified to the successful integration of women soldiers in units that operated beyond the borders of the State (such as in Lebanon in Operation Peace for Galilee) and to a positive development taking place in the IDF in recent years, whereby jobs and service tracks that in the past were considered the sole prerogative of men soldiers have been opened up to women. It is not redundant to point out that confirmation of the existence of this new approach in army deployment can be found also in the affidavit of the Air Force Commander, but in his opinion what is desirable in other army professions cannot apply to the profession of aviation.

            Counter-arguments: planning, logistics and budget

19. The respondents, as stated, do not dispute that from the viewpoint of the qualifications that are prerequisites for suitability for an aviation course, there is no difference between women and men. Both of these alike may be suitable or unsuitable for the profession of aviation; the sex of the candidates and the talents required for their suitability are totally unconnected. Nonetheless the respondents are adamant in their refusal to train women for aviation and to integrate them as pilots in air force units. Their argument is that there is nonetheless a difference between the two sexes which is relevant in making their decision. This difference is what leads to the distinction underlying the army’s policy that only men are accepted for aviation courses and jobs as pilots.

            The respondent’s position remains unchanged. But we should mention once again that there has been a change in their reasoning. It will be remembered that the petitioner’s request was rejected on the basis of the regulation of the High Command that women are not to be assigned to combat professions; and since aviation is classified as a combat profession, the army does not accept women for aviation courses. In the Air Force Commander’s affidavit-in-reply, the socio-ethical aspects of the participation of women in combat missions was also addressed (and cited above in full). But in oral argument counsel for the respondents limited the reasons for his opposition to practical considerations relating to the deployment of the air force for carrying out its missions. In defining the obstacle to accepting women as pilots, the emphasis has now been placed on planning considerations, but  ‘logistic’ and ‘budgetary’ considerations were also mentioned. I do not think that I need to dwell on these additional reasons, which have in common the unsurprising revelation that the absorption of women will necessitate the investment of additional financial resources. This is not because no approximate valuation of the size of the additional investment required was appended to this argument; nor even because budgetary considerations, in themselves, are unimportant; but because the relative weight of such considerations, in making an executive decision, is measured and determined when balanced against other considerations (see HCJ 3627/92 Israel Fruit Growers Organization Ltd v. Government of Israel [8], at pp. 391-392, and the references cited there). In any event, when we are concerned with a claim to exercise a basic right — and such is the case before us — the relative weight of the budgetary considerations cannot be great, since:

‘The rhetoric of human rights must be founded on a reality that sets these rights on the top level of the scale of national priorities. The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, in his book supra, vol. 3, Constitutional Interpretation, Nevo, 1994, at p. 528).

See also: P. W. Hogg, Constitutional Law of Canada, Toronto, 3^rd ed., 1992, at p. 873. Indeed, even counsel for the respondents conceded that not much weight should be attached to these considerations, and he preferred to concentrate his arguments almost exclusively on the reasons that the Air Force Commander stated in his affidavit as the main reasons. These, as we have already said, are the planning considerations.

            20. The planning considerations which we have already discussed (in paragraph 11, supra) were intended to persuade us that the integration of women in the active planning framework of air crews is impracticable. The huge investment in training pilots is based on a long-term projection. The candidates for aviation courses commit themselves to serving in the regular army for a number of years (which is determined and stipulated in advance) from the date that they qualify as pilots. They also commit themselves (voluntarily) to annual amounts of reserve duty that in most cases exceed the statutory requirement and comply with requirements determined by the air force according to its needs and the types of activity required. The statutory arrangements with respect to the extent of women’s compulsory service — and mainly their limited obligation for reserve duty, which is also subject to clear grounds for an absolute exemption as a result of pregnancy or childbirth — make it impossible to integrate them within this planning framework. Admittedly a woman candidate for an aviation course can be required to do additional ‘compulsory’ service, as is usual with regard to men candidates, and she can also be required to undertake voluntarily to do reserve duty for which she is not liable. But even these cannot ensure the regularity and continuity of her service. Even a temporary absence of a woman pilot during her compulsory service, as a result of pregnancy or childbirth, can disrupt the planned daily activity of the whole airborne unit. And perhaps the main difficulty lies in the inability to rely on her undertaking to continue the reserve duty for which she is not liable, since, if she becomes pregnant or gives birth, and gives notice that she retracts her commitment to volunteer, there will be no legal possibility of compelling her to serve.

            21. I doubt whether these fears have a solid basis. The premise is that women who offer themselves as candidates for an aviation course will, like men candidates, be required to make commitments both for ‘compulsory’ service and for reserve duty. As a rule, it is correct to assume that someone who commits himself to such an undertaking will want and be able to perform it. Even if the assumption is that the average total contribution of a woman pilot — in terms of the length and continuity of service — will be less than that of men pilots, this is a difference resulting from her being a woman. This difference, which should not be held against her, can be taken into account within the framework of planning. The army can learn, in this respect, from its rich experience with regard to its personnel in permanent service. There are doubtless cases in which soldiers ask, for a variety of reasons, to be released from their commitments for continued service. With respect to the scope of this phenomenon, among men and women, figures must be available, and it stands to reason that in planning its activity the army also takes these figures into account. The air force can also rely, at least to some extent, on its experience with reserve pilots. It may be assumed that the majority of pilots indeed carry out the extra amounts of service, in excess of the statutory requirement, and continue to do so throughout the whole period of their undertaking with hardly any interruption. But even in this group there are certainly cases of prolonged absence from reserve duty, for personal reasons, long periods spent overseas and similar circumstances; even the figures relating to this phenomenon, the extent of which is certainly well-known, can be assumed to be taken into account by the air force in planning its missions. Is there any reason to suppose that, with respect to the proper discharge of compulsory service and the voluntary reserve duty, the distribution among women pilots will be significantly different from that among women soldiers who serve in other professions and among men pilots in the reserves? In so far as we can learn from the experience of air forces in countries like the United States and Canada, the effect of specific factors, such as pregnancy and childbirth, as a disturbance to the regularity of service of women pilots is not significant. Can we not learn anything from this? The respondents’ reply to this is that the successful absorption of women pilots in the air forces of other countries is no evidence of the anticipated success of a similar process in Israel. The conditions of service are different, the conditions on the ground are different and the conditions of permanent readiness are also different. All of these are likely to have an effect.

            The main and striking weakness in this argument is that it is entirely based on theories and hypothetical assessments and not on lessons learned from accumulated practical experience. It is true that most women pilots in the air forces of other countries regard military aviation as their profession and choose a military ‘career’. But who can say that the integration of women in the profession of aviation in the IDF will not lead also to a similar tendency in Israel, among most of the women seeking this special job? It should be noted that in the air forces of other countries the process of integrating women was carried out gradually. In the judgment of the Canadian Court of Human Rights in Gauthier & an v. Canadian Armed Forces [56] — a transcript of which was submitted to us by the petitioner — there was a survey of the absorption processes of women in combat positions in the various parts of the army (and it should be noted that one of the several claims considered in that judgment was of a qualified civil pilot whose candidacy for the position of pilot in the air force was rejected because of her sex). From the survey it emerges that the question of the suitability of women for integration into combat roles was examined very carefully. After the Royal Commission, which examined the issues relating to this, submitted its recommendations, five whole years were devoted to conducting practical tests. With the help of these tests — which were named, for short, ‘SWINTER’ (Service Women in Non Traditional Environments and Roles) — the implications of the integration of women in roles that previously were not open to them were examined. In order not to prejudice defence preparedness even to a small degree, the army allowed, at the beginning of the process, the absorption of women in a limited and controlled fashion. The tests referred to groups of women who were absorbed, in the various professions, in this format. The tests conducted in the air force proved that women who were admitted into the roles of pilots integrated successfully in the units, performed their duties well and were respected both by their commanders and by the members of their crews. These conclusions led to the cancellation of the restrictions on the enlistment of women to combat aviation roles. When the women were admitted, rules were established for regulating various issues, including absence from flying as a result of pregnancy and childbirth.

            Such an experiment, or something similar, has not yet been conducted in the IDF; in my opinion, it should be conducted. It is indeed possible — as the respondents claim — that the encouraging experience of other armies does not constitute evidence as to the success of a similar plan in our air force. But as long as the air force does not allow the experimental integration of women into a track of the aviation profession, and as long as it does not carry out a systematic and intelligent assessment of their functioning in the course and in the units, we will never be able to know whether, in the special conditions that prevail in Israel, women may be integrated in the air crews. Indeed, preserving the readiness and deployment of the air force is an important and essential asset. But what is required for readiness and deployment is likely to be given the full attention of the professional personnel at air force headquarters, even if air crews include a few women who are absorbed in an experimental and controlled manner, and an assessment is made that will lead in the end to lessons being learned and conclusions being drawn for the future. Such experience can be based on a small number of women candidates who would be taken in gradually over a sufficiently long period that will allow conclusions to be drawn with regard to the degree of success in standing units and reserve units. It can be assumed that demand — at least in the beginning —will not be great. But within the framework of the experimental integration of women into the aviation course I would not consider it a defect if quotas were set for women candidates. Setting quotas is by definition unequal. This is not the case when they are set within the framework of an experiment whose purpose it to promote equality, without prejudicing thereby an essential security interest.

Intervention in the assignment policy of the army

22. This court does not tend to intervene in professional-planning decisions of the army authorities. In the words of Vice-President Elon in HCJ 734/83 Shine v. Minister of Defence [9], at p. 399:

‘It is a rule of case-law that this court does not put its discretion in place of the discretion of the competent authority, and this rule applies especially when it concerns this court’s review of professional-planning decisions of the army authorities.’

            See also: HCJ 329/87 Sorko-Ram v. Minister of Defence [10], at p. 879, and also the remarks of Justice Goldberg in HCJ 3246/92 Har-Oz v. Minister of Defence [11], at p. 307, regarding ‘… the power of the IDF to exercise its authority in assigning each soldier in accordance with its own considerations and the needs of the army’, since ‘the assignment naturally relates to the structure of the army and its military deployment’. But there has never been any doubt, and counsel for the respondents conceded this unhesitatingly, that army decisions and army regulations, which reflect the policy of the IDF, are subject to the judicial review of this court. Personally, I see no basis for doubting that a policy involving a violation of a basic right gives rise to proper grounds for the intervention of the court. A violation of equality, because of discrimination on the basis of sex, is a typical example of a case that justifies and requires intervention. Such is the case before us. The IDF cannot succeed with an argument that women are disqualified for a specific job because they are women. The argument that the training of women for jobs as pilots is not cost-effective, notwithstanding their having suitable qualifications for this, is an outrageous argument. Declarations supporting equality of the sexes are insufficient, for the real test of equality lies in its realization, de facto, as an accepted social norm (cf. Israel Women’s Network v. Government of Israel [6]). This normative obligation also applies to the IDF. It is well-known that the policies of the army have a very major effect on our life styles. In strengthening the recognition of the importance of basic rights, the IDF cannot be left out of the picture. It too must make its contribution.

            23. I propose to my esteemed colleagues that an absolute order is made in this petition. This order will require the respondents to summon the petitioner for aviation aptitude examinations. If she is found to be suitable, and meets all the other usual preconditions for men candidates, she will be allowed to participate in an aviation course. In this way the air force will begin an experimental procedure, and it can be presumed to determine the remaining aspects and details professionally and fairly, after taking into account the requirements of deployment and vigilance on the one hand, and the criteria required for deriving fair conclusions from the experiment on the other. As a result of the decision, the respondents will be liable to pay the petitioner the costs of the petition in a sum of NIS 10,000.

Justice Y. Kedmi

            1.         I regret that I am unable to add my voice to the opinion of my colleague, Justice Mazza, as it stands; the following, in brief, are my main reasons:

            (a) In my opinion, we should attribute to policy decisions made by those responsible for national security, in so far as these concern security requirements and the methods of achieving the proper level of security, a high level of reasonableness, such that those challenging this bear a heavy burden of persuasion, equivalent to the burden borne by someone who wishes to rebut a presumption of law.

            (b) I would hesitate before intervening in such decisions, as long as I am not convinced that they are tainted by extreme unreasonableness, arbitrariness, a lack of good faith and unclean hands. As stated, my premise is that this is not the case, and that the persons making decisions of this kind can be presumed to have carried out all the necessary investigations and considered all the relevant factors, and to have acted conscientiously throughout, consonant with their positions and the powers granted to them.

            (c) In our case, the representative of the air force concentrated his argument on the needs of national security, putting the emphasis on the extended and intensive service expected of a combat pilot in the air force, against the background of the cost of his basic training, and in view of the continued effort required for ensuring the level of his operative ability. The working assumption of the security authorities charged with this function is that in the prevailing circumstances, it is almost certain that a woman pilot will be unable to comply in full with these expectations as to the length of service, and will have great difficulty in bearing the burden of maintaining operative ability over the years; between the lines I believe that I can hear the argument that it will also not be right to put her in a position of having to choose between continuing her service and ensuring operative capacity and the demands that she will surely make of herself when the time comes with respect to starting and caring for a family. It seems to me that this outlook, inter alia, underlies the distinction between men and women with respect to reserve duty; and I do not think that it is outdated.

In any case, I do not think that I have the tools — and more importantly, the expertise — required to examine the ‘reasonableness’ of the said working assumption; moreover, I am not prepared to lighten the heavy burden of responsibility borne by air force headquarters in its commitment to national security and to impose upon it a pattern of behaviour which conflicts with its own outlook.

            (d) I fear that the attempt to learn from the experience of other countries in this sphere will not succeed, for a simple reason: our security situation is entirely different from the security situation prevailing in those countries; the situation in which we find ourselves requires readiness for risks that are entirely different from the risks expected there, and a ‘mistake’ made by us in this respect could well have far-reaching ramifications.

            (e) I do not believe, as does my esteemed colleague, Justice Mazza, that the decision not to train women combat pilots, at this stage, contains a hint of illegitimate discrimination. What emerges from my remarks above is that there is no ‘discrimination’ here, but rather a ‘distinction’ based on the continuing requirements of national security.

            One cannot speak of improper ‘discrimination’ when the ‘choice’ between equals is based on essential needs of national security. A difference deriving from these needs — when speaking, of course, about genuine needs — not only does not indicate any ‘discrimination’, but also contains an expression of the ‘equality’ of the requirement made of each of us to contribute what that person is able to contribute to the security of the nation; and the ‘ability’ of the man in this context — according to the working assumption of the air force — is different from the ‘ability’ of the woman.

2.    Nonetheless, I agree with the position of my esteemed colleague, Justice Mazza, that the fears on which the outlook of the security authorities in this matter is based ought to be put to a real test; and that it is proper to take the first step in this direction soon, in so far as security considerations allow. However, I would leave it to the Air Force Command to decide when and how security requirements make it possible to conduct this test; I would not ‘dictate’ to them the date when it should be held, as long as they are not convinced that it would not harm the current needs of national security.

Justice T. Strasberg-Cohen

In the disagreement between my colleagues, I agree with the opinion of my colleague Justice Mazza, and wish to shed some more light on the subject from my own perspective.

1.    The Defence Service Law [Consolidated Version] of 1986 (hereafter — the law) (which replaced the Defence Service Law [Consolidated Version] of 1959) created a distinction between men and women that makes the service conditions of women more lenient.  The distinction finds expression in the length of compulsory service and reserve duty for women which is shorter than that for men, in exempting married women from compulsory service and in exempting pregnant women and mothers from reserve duty, all of which as set out by my colleague, Justice Mazza (hereafter — service conditions).

            2.         The law does not contain any provision directly violating the equality of men and women soldiers with respect to the nature of the jobs to which they can be assigned, but as a result of the distinction that the law created in the service conditions, there arose — as a matter of policy — an inequality which, for our purposes, is the refusal to accept women for an aviation course. In my opinion, the distinction created by the law should not be perpetuated by discrimination built on its foundations.

            The sources for the distinction that the law created in service conditions derive, apparently, from an outlook on the biological difference between women and men and the legislator’s opinion of the different roles of women and men in the family, society and the army. There are some who see the provisions of the law as a paternalistic attitude towards women, who are perceived as weaker, more fragile and in need of protection, and whose purpose is to create and care for a family. Others believe that the law benefited women by being lenient with regard to their service conditions. Whatever the historical, psychological and sociological reasons for the outlook underlying the distinction created by the law, the distinction created by the law should be accepted as a fact that we are not required to review, since the law itself is not challenged on the grounds of illegality. Its provisions, which create the said distinction, are a given factual premise, as a result of which a policy not to accept women for aviation was formulated. The petitioner has sharply contested this policy by alleging discrimination and violation of the principle of equality. The respondents, in reply, concentrate on the argument that the law created a distinction between men and women with regard to service conditions, that this distinction creates a difference between them, that the difference is relevant with regard to the assignment of women to aviation and that when the difference is relevant, we are not faced with improper discrimination between equals but with a valid distinction between those who are different.

            We must examine this policy with the tools that are available to us for examining the policy of any government authority. As I will clarify below, this policy does not pass the test and it should not be given legal force.

            3.         The respondents’ position is unacceptable to my colleague, Justice Mazza, for the reasons that the difference in this case is irrelevant and therefore the discrimination is improper.

            I too am of the opinion that the aviation course ought to be opened up to women, but I do not think — as does my colleague Justice Mazza — that the difference between women and men regarding the service conditions is irrelevant. In my opinion, the difference between the service conditions of men and the service conditions of women, as stipulated in the law, creates a real and difficult problem for the training and service of women as pilots. The continuity of a woman pilot’s military service may be affected and her military service is liable to end if she marries, becomes pregnant or becomes a mother, and she can be released from reserve duty at the age of 38 (a man – at the age of 54), by giving unilateral notice, even if she volunteers for such service above that age. I think therefore that this difference, created by the law, is indeed relevant for the acceptance of women for aviation and the reasons for not admitting them are objective and not arbitrary. Therefore — prima facie — the distinction does not create improper discrimination; but in my view this is only the case prima facie, because in my view it is not sufficient for a difference to be relevant in order to rebut a claim of discrimination, since a relevant difference that can be amended or neutralized in order to achieve equality should be amended or neutralized, although not at any price.

            4.         Differences for the purpose of discrimination have been divided into two categories: a relevant difference that does not create discrimination and an irrelevant difference that does (see HCJ 953/87 Poraz v. Mayor of Tel-Aviv-Jaffa [12], at p. 332; El-Al Israel Airlines Ltd v. Danielowitz [3]). As with any classification into groups, there are no two groups that fit the whole spectrum of cases between the two extremes. There are cases that clearly fall into one of the groups and it can be clearly established whether or not there is discrimination. However, there are cases where ascribing them to one of the two groups is not self-evident and is insufficient. Such cases require a sub-classification. It seems to me that the category of cases where the difference is relevant should be divided into two subgroups: first, a group where the relevant difference cannot be, or should not be, neutralized; second, a group in which the relevant difference can and should be neutralized in order to achieve equality.

In this classification we are not dealing with affirmative action in its classic sense, where a particular field is opened up to a group for which it was previously closed, even if the members of that group are less suited than others to function in that field. This method is used to correct an historic aberration, a social stigma, prejudice and the like. Such affirmative action is often carried out through legislation and through case-law (see, for example: the Employment of War Invalids Regulations, 5711-1951; the Discharged Soldiers (Return to Work) Law, 5709-1949; section 18A of the Government Corporations Law, 5735-1975 as applied in Israel Women’s Network v. Government of Israel [6]. With regard to affirmative action, see also: F. Raday, ‘On Equality’, The Status of Women in Society and Law, Shoken, ed. F. Raday, C. Shalev, M. Liben-Koby, 1995, at pp. 19, 36-39).

            Affirmative action requires the avoidance of a distinction between persons who are not equal in their qualifications or in their suitability and treating them equally, in order to rectify an historic aberration. My position — with respect to the facts before us — is different in that it makes a demand to neutralize the difference between persons with equal qualifications by allocating resources that will create conditions that establish an equal starting point for two persons who are equally suitable for the same job, but factors that are irrelevant to the job block the path of one of them. Our case falls into the second category, in which the relevant difference can be neutralized and it ought to be remedied.

            How is this to be done?

            6.         If, for example, it is found that dark-skinned or blue-eyed persons are not accepted for a certain job, when the colour of the skin or the colour of the eyes has no connection with the job, it will be absolutely clear that this is an irrelevant difference that creates improper discrimination. This is the case for every arbitrary distinction based upon differences of race, religion, sex and the like, where the distinction is arbitrary and irrelevant. If, however, a certain job requires tall people or people with academic education or people in good health, it will not be improper discrimination if short people, uneducated people and people in poor health are not accepted for those tasks. If the path to a specific job was closed to women, and it is opened up to them, either by case-law or statute, even if their experience and qualifications are less than those of the men competing for the same job, this would constitute affirmative action.

            What is the law when the qualifications are equal, but there is a difference and the difference is albeit relevant, but it can be and should be neutralized in order to achieve equality? If, for example, a disabled person in a wheelchair wants to be accepted for work in a public institution, and his qualifications fulfil the requirements of the job, but the access to the office is by way of stairs; the restriction in the physical conditions allowing access to the place of work creates a relevant difference, but it can be neutralized at a reasonable price, and it should be remedied in order to achieve equality of opportunities. Therefore we would require an investment of resources in order to neutralize the difference and remedy it by means of an elevator or in some other way that will allow the disabled person to reach that office.

            It seems to me, therefore, that a difference that causes relevant and genuine difficulties in applying the value of equality, such as physical, economic, logistic and similar difficulties, is a relevant difference. Nonetheless, in those cases where it can be neutralized at a reasonable price, it should be remedied and neutralized in order to achieve equality.

7.    Establishing a requirement for neutralizing a difference in order to achieve equality is not foreign to Israeli law. More than once the legislator has shown that he is aware of the need to prevent discrimination as a result of a difference between persons who are suitable for carrying out a job, where external factors create a distinction between them and lead to the preference of one group over another or one person over another because of differences which have economic, budgetary and organizational implications, particularly in the workplace. In such cases, the legislator has on several occasions seen fit to impose duties, mainly on employers, which were designed to neutralize or remedy a difference, in order to achieve equality of opportunity. An example of this can be found in the Women’s Employment Law, 5714-1954, and the various regulations enacted thereunder; the Equal Employment Opportunities Law, 5748-1988; in these laws, factors and characteristics that created differences between people were taken into account, and the laws were designed to achieve equality notwithstanding the differences. The legislator imposed economic burdens upon various public sectors in order to create equality, including equality of opportunity, not because there was previously no relevant difference, but because even though there was a difference, the legislator saw fit to remedy it by spreading the burden amongst different sectors of the economy. With regard to equality of the sexes, F. Raday says in her article ‘Labour Law and Labour Relations — Trends and Changes in 1988’, Labour Law Annual Vol. 1, 1990, 161, 172, on the subject of equal opportunities for women:

‘The biological difference between the sexes with respect to pregnancy, childbirth or nursing is a difference that may be a relevant difference in the workplace. The possibility of certain absences is required in order to allow the working woman to function not only as an employee but also as a mother of a newborn. “Equality” that does not take into account the need for the integration of these roles is not real equality and is mere lip service’ (emphasis added).

See also F. Raday, ‘Women in the Work Force’, The Status of Women in Society and Law, supra, at p. 64.

8.    The respondents do not dispute the ability of women to fulfil the role of a pilot. From their affidavits and pleadings it emerges that the considerations guiding the policy-makers in not recruiting women for aviation do not derive from a belief that women are inferior or from archaic concepts that a woman’s place is in the home and that she is not suited for ‘men’s’ professions such as aviation. From what they say it appears that their considerations are sincere and relevant, and that they are motivated by the army’s interests and needs. I accept the respondents’ contention that the difference created by the law in service conditions and the resulting restrictions make it difficult for the air force to recruit women as pilots. The respondents claim, as can be seen in the affidavit of the Air Force Commander, General Bodinger, that the difference between men and woman in the law is based on strong statutory language, an unwavering statutory history and a particular statutory purpose, which is the realization of the needs of the army that require different rules to be created for the service of men and women. According to him, the refusal to integrate women into aviation courses derives from planning, logistic, strategic and economic considerations, according to which the needs of the army would be prejudiced if it is compelled to assign women for aviation.

            The IDF places the ‘blame’ for closing the aviation course to women on the legislator, who created the difference in service conditions, and so it feels itself justified in creating discrimination. I do not think that this position should be legitimized. The IDF, as one of the organs of State, is not entitled to shirk its responsibility and the obligation to close the gap between the factors determined by the law and what is needed to achieve equality. This requires a sacrifice. The IDF and the various organs of State must pay this price, provided that it is not too high and is not unreasonable, and this is really not so in the present case.

            9.         General Bodinger recognizes that even though the issue of integrating women in combat professions is problematic, it is ultimately also a socio-cultural and ethical question. Indeed, we are dealing with an issue that is first and foremost socio-cultural and ethical. It is difficult to exaggerate the importance and stature of the principle of equality in any free, democratic and enlightened society. The supreme status of the principle of equality as a supreme value in Israeli society finds expression and a place of honour in case-law and law books. A society that respects its basic values and the basic rights of its members must be prepared to pay a reasonable price so that that the value of equality does not remain an empty shell, but is given expression and applied in practice.

            10. Confronting the problem of discrimination in general, and with regard to differences between the sexes in particular, is not only our concern. It concerns every free society where the principle of equality is one of its foundations. Discrimination derives from a perception that was accepted in human society as part of an outlook that for generations regarded the status of women as inferior and without rights. The development of granting women rights has progressed little by little. It received impetus and strength in this century as part of the ideological and practical renaissance aimed at eradicating discrimination between people. This struggle to eradicate discrimination against women because of their sex is fought on various battlefields and with a wide range of weapons. It occupies a place of honour in literature, philosophy, articles, the media, political frameworks and various public fora. I refrain from expanding on this topic, for which this platform is too narrow, and elaboration is not needed to decide this case. I will satisfy myself by referring to several cases considered in American and Canadian case-law.

The issue of discrimination against women — for the purpose of admission to a military academy where only men studied — was recently considered in the United States in the case of a petitioner who wanted to be admitted as a cadet into the South Carolina Military Academy where only men studied, and who was rejected because she was a woman. The Federal Court considered the matter in two stages. In the first stage, a temporary order was issued ordering the authorities to prepare a parallel study program for women cadets, and in the interim, the woman cadet could be integrated in the studies on a partial basis (within the framework of day studies) (Faulkner v. Jones (1993) [41]). Two years later, when the program outlined was not put into practice — inter alia because of considerations relating to the economic costs —the court ordered the full integration of the petitioner in the military program. The Federal Court recognized the existence of relevant differences between men and women even with respect to methods of education in military institutions, but it limited the expression that could be attached to such differences and subordinated it to the principle of equality. The court did not ignore the complexity and difficulties that applying the principle of equality sets before society at times, and it dealt with these difficulties one by one. It set against them the importance and supremacy of the principle of equality and the duty of society to uphold it in practice, even if this involves difficulties and expense. In weighing all the considerations against the principle of equality it reached a conclusion that lead to the result of issuing an order that the petitioner should be fully integrated into the military program (Faulkner v. Jones (1995) [42]).

            In Canada, a judgment was given with regard to the same issue; in it the court found that the balance that was made between the purpose of giving sports training and the means chosen to do this — the existence of men-only sports associations — was an improper balance and was disproportionate to the damage caused by shutting women out of the association. In that case, a girl was prevented from taking part in the sporting activity of an ice hockey association, because of her sex, and irrespective of the specific talents required for such participation. The court was required to interpret the sport regulations and it abolished the said discrimination (Re Blainey and O. H. A. (1986) [57]).

            Now let us return to our case.

            11. Not recruiting women for aviation violates the principle of equality between the sexes. The problem is that this is not the only principle involved. There are two conflicting principles involved: one is equality and the other is public security as a result of military needs. In a conflict between two values, the conflicting values must be given the proper weight and a balance made between them. There are cases where such a conflict occurs between values of equal status, and there are cases where this occurs between unequal values where one of them is more important than, and has preference over, the other (on the difference between the two kinds of conflicts and the status of the conflicting values, and on the method of balancing them, see: Barak, in his book supra, vol. 3, p. 220; vol. 2, pp. 688-693 and the references cited there).

            12. With regard to a conflict between public safety and the freedom of speech, Prof. Barak says in his book, supra, vol. 2, at p. 693:

‘It follows that the central problem confronting us is this: in what circumstances and according to what criteria is it permissible to limit the freedom of speech in a society that respects human rights, in order to protect and maintain public safety? What is the “balancing formula” in the conflict between public safety and the freedom of speech? In this context, two main questions were before the Supreme Court: first, the anticipated degree of harm to public security that can justify a violation of the freedom of speech; second, (emphasis in the original) the likelihood that an infringement of public safety will occur if freedom of speech is not limited. The Supreme Court’s reply to these two questions is this: freedom of speech gives way to public safety only if the harm to public safety is severe, serious and critical, and only if it almost certain that allowing the freedom of speech will result in this harm…’ (emphasis added).

These comments are appropriate in this case.

            In the conflict between the value of equality and the value of national security as the result of military requirements, national security may be regarded as the preferred value and of a higher status than the value of equality, notwithstanding the importance of equality. But national security is not a magic word; it does not have preference in every case and in all circumstances, nor is it equal for every level of security and for every harm thereto. The balancing formula between conflicting values that are not of equal status is not uniform and it varies significantly according to the status of the values and the relationship between them. There are cases where a reasonable possibility of real harm to the preferred value is sufficient, and there are cases where a near certainty and a real danger of harm are required.

            In our case, the higher value (military and security requirements) prevails over the lower value (equality), only if there is near certainty of real harm and real damage to national security. The policy of the air force with respect to the recruitment of women for aviation does not pass these tests. It does not even stand up to a more lenient balancing formula, which is a reasonable possibility of real harm. The difficulties indicated by the respondents under the title of logistic and deployment difficulties are partly economic and partly based on speculations as to the future. The IDF authorities have no prior experience that confirms their fears — neither with respect to the ability of the air force to absorb women pilots, nor with respect to the number of applications that will be received for an aviation course or with respect to the number of persons completing it successfully, nor with respect to the anticipated damage if the aviation course is opened up to women. Moreover, in examining the anticipated damage, we must examine whether, when this is offset against the chance that it will not take place, the violation of the citizen’s right is still justified in order to prevent the danger. In our case, there is a reasonable chance that there will be no harm at all.

            13. If this is insufficient, I would point out that even when there is a near certainty of damage and real harm, the work of examination and balancing is not finished. ‘In all these cases, we must ascertain and examine the existence of alternative measures that could prevent the near certainty of the serious danger, without violating the freedom of speech’ (Barak, ibid.). Indeed —

‘… When we are dealing with a lawful denial or restriction of a person’s basic right, the government must choose — from among all the measures that can be adopted to protect national security — that restrictive measure that violates the basic right to the smallest degree. Of all the drastic measures, the least drastic should be chosen…’ (HCJ 153/83 Levy v. Southern District Commissioner of Police [13], at p. 412 {127}).

I would reach the same conclusion with the principle of proportionality, which is accepted as an important principle in Western legal systems and our own system. According to this principle, when a basic right is violated, we must demand that the violation is of a proper degree and is not excessive. This requirement reflects the proper relationship between the measure and the goal (see the remarks of Justice Zamir in HCJ 987/84 Euronet Golden Lines (1992) Ltd v. Minister of Communications [14]).

            One can draw an analogy in our case from the ruling made with regard to the freedom of occupation, whereby one should regard with particular severity a restriction on entry into an occupation, as opposed to imposing restrictions on the methods of realizing this freedom (see HCJ 1255/94 Bezeq, the Israel Telecommunication Corporation Ltd v. Minister of Communications [15], at pp. 686-687; HCJ 726/94 Klal Insurance Co. Ltd v. Minister of Finance [16], at pp. 484-485; Barak, supra, vol. 3, at p. 657).

            14. Does the case before us comply with the balancing standards and emerge from them unscathed? I think this is not the case. From the affidavits submitted, it would appear that the defence establishment itself does not believe in a near certainty of real harm to security and of real damage, nor even a reasonable possibility of real harm. Admittedly, the deponents indicated difficulties — including economic ones — that the air force will face if it is compelled to integrate women in aviation; but it would seem that opening up the aviation course to women in a controlled and limited manner for an appropriate number of women pilots, while examining the ramifications that this has on the requirements of the air force and the assignment of women pilots to jobs that they can fulfil over a long period of years, will significantly reduce the risk of harm and damage, if these are not entirely cancelled. Instead of blocking the path of women to aviation courses, it is possible — in the first stage —to adopt less drastic restrictive measures as stated, and to follow the path of trial and error.

            15. The petitioner before us declares that she is prepared to undertake any service for any period of time required by the air force, similar to the service of any other pilot. There is no reason to assume ab initio that she will not honour her undertaking. There is no reason to suspect that her declarations are not genuine. If, notwithstanding all this, it happens in the future that she is unable, for personal reasons, to fulfil those undertakings, her situation will be similar to those cases in which men pilots are unable, for various reasons, to fulfil their undertakings over the years. In the words of my colleague, Justice Mazza, from a planning perspective, the IDF authorities must take into account such possibilities and prepare accordingly; and, as the Air Force Commander said, the problem is one of society as a whole, not merely of the defence establishment. If financial resources are required for this, the State must provide them, within reason.

16. Before concluding, I would like to quote the words of the American philosopher, Ruth Bleier:

‘Though there are biologically based gender differences, they do not imply superiority or inferiority not do they justify inequities in social, economic, and political policy and practice. Rather they call for public education and reform of sexist policies, laws and practices… In the absence of clear paths to truth and social justice, the one hope for bringing about change for the better lies in the capacities of the human brain to make it possible to break out of the cultural constraints that some human beings have constructed to the detriment of others’ (Ruth Bleier, ‘Science and Gender: A Critique of Biology and its Theories On Women,’ in Sneja Gunew (ed.), A Reader in Feminist Knowledge, Routledge, 1991, 249).

17. In conclusion, the aviation course should be opened up to women who have the requisite talents, in order to allow women to realize their basic right to equality between themselves and men in this field also. I therefore add my voice to the voice of Justice Mazza, and I too am of the opinion that the show cause order should be made absolute.

            18. After writing my opinion, I received the illuminating opinion of my colleague, Justice Dorner. Her survey of the roots of discrimination against women on the basis of their sex and of the obligation of every enlightened society to recognize the basic right of every person to dignity and equality and to implement this recognition in practice is a work of art. But to do justice to the respondents it should be noted that, according to their position as presented to us — and there is no reason to regard this as mere lip service — they espouse these very same principles, and even they — as a mouthpiece of the State of Israel — do not dispute the right of women to equality and dignity and the duty of the State to implement these principles in practice. Not only this; they also agree that there is no difference between men and women from the perspective of the talents required to be accepted into an aviation course and that among women, as among men, there are those who are suitable for this. The difficulty that confronts them is the law that provided special service conditions for women, which results in logistic and deployment difficulties which will affect the preparedness and strength of the air force. In this respect, the position of the respondents was unacceptable to me and to my colleagues Justice Mazza and Justice Dorner, and therefore I am pleased that we have reached, by a majority, the result that the petition should be granted.

Justice Ts. E. Tal:

I agree with the opinion of my colleague, Justice Kedmi, and I would like to add to it. We still hold by the rule that discrimination because of a relevant difference is not discrimination. This rule leads me to think that the petitioner’s petition should not be granted, for we are concerned with a distinction and not discrimination. There are two reasons for this: the budgetary consideration and the planning consideration.

The budgetary consideration

The difference, created by the law, between men and women soldiers is in the length of their service, and the emphasis is on reserve duty. The cost of preparing and training a pilot is huge. However short a pilot’s period of service is, we pay the same cost for his training, but we receive less in return.

If the IDF had an unlimited budget at its disposal, we could rule that we should pay the price for the value of equality between men and women. My colleague, Justice Mazza, cites the remarks of Prof. Barak:

‘The protection of human rights costs money, and a society that respects human rights must be prepared to bear the financial burden’ (Barak, in his book supra, vol. 3, at p. 528).

Indeed, when the considerations are only financial, then it can be said that society must pay the price, in the words of Prof. Barak:

‘Administrative convenience or financial economy are not, in themselves, social goals justifying a restriction or violation of a human right’ (ibid., at p. 528) (emphasis added).

It is also worth mentioning the example brought by Prof. Barak, ibid.:

‘In one case, the question arose whether an oral hearing should be granted to everyone arriving in Canada, claiming to be a refugee. The Canadian Attorney-General argued that granting the right of an oral hearing would involve heavy financial costs and therefore this (natural) right should be waived. The Supreme Court of Canada rejected this argument.’

These remarks are apposite in such cases, where the only consideration standing against equality is the financial consideration. That is not so in the case before us.

The reality is that the defence budget is finite and limited. Within the limited framework of the budget, any huge expense made for the value of equality must come at the expense of other essential security needs. The protection of life is also one of the basic values (s. 4 of the Basic Law: Human Dignity and Liberty), and as such it can prevail over the value of equality.

            If one argues that the value of equality cannot be overridden by any other value, however important it is, this undermines first principles and cancels the doctrine of a relevant difference. The result would be that in any case of a relevant difference it would be possible to say that the difference has ceased to be relevant, because we have set ourselves a goal of implementing the value of equality, in view of which a difference no longer has any importance.

            Take, for example, the issue of equal work opportunities. There are jobs where the difference is characteristic. An advertisement seeking only women candidates for a job in a public bath house for women will not be improper. Equal work opportunities are overridden by the value of the privacy of the women bathing there. In the same way the value of equality is overridden by the value of personal and national security.

            It therefore seems to me that the budgetary consideration is also a reasonable consideration of relevant difference. This is true even if we assume that a woman will serve full reserve duty until the age of 38.

            But there is a significant possibility that the reserve duty of a woman will be reduced considerably on account of pregnancy and childbirth. This means that all of the huge investment in training a woman as a pilot will only bear fruit for a very short time, and, in practice, the investment will be, for the most part, lost.

            Planning

The army claims that it is very difficult to plan for units when some of its members are likely to be neutralized at different times and for different periods of time as a result of marriage, pregnancy and birth. This is an important and pivotal consideration. Even in units comprised of men, planning must take account of periods of temporary incapacity (sickness, travel overseas). But if women are to be assigned to these units, the army will need to take into account — throughout their service which is in any event a short one — incapacity for long periods as a result of pregnancy and childbirth.

            Appendix Res/3 of the affidavit-in-reply is a report of the Presidential Commission on the Assignment of Women in the Armed Forces, supra, that was submitted to the President of the United States. On pp. 19-20 of the report, medical limitations resulting from pregnancy and childbirth are stated. According to this report, the period of time during which woman cannot be assigned for readiness and operational deployment because of various factors, including pregnancy and childbirth, is four times greater than the period of time during which men cannot be assigned to these tasks (section 44 of the affidavit-in-reply).

            My colleague, Justice Mazza, believes that this argument cannot succeed because —

‘It is entirely based on theories and hypothetical assessments and not on lessons learned from accumulated practical experience.’

I do not agree. A statistical fact based on a reasonable and logical assessments and which is also based on the said report of the Commission is not a mere speculation but rather a fact that should ideally be taken into account.

            With regard to the case before us: if the petitioner is trained as a pilot in the air force, she will serve — as a volunteer in regular and permanent service — for five years, and she will be discharged from the IDF at the age of 29. She will then have only nine years to be integrated into the reserves, and during these nine years we must take into account periods of incapacity as a result of pregnancies and childbirths.

            Even volunteering for additional service will not overcome the natural limitations of pregnancies and childbirths.

            It follows that we are not concerned with discrimination between equals but with a distinction between persons who are not equal. Therefore I would recommend that the petition is denied. Like my colleague, Justice Kedmi, I would allow the Air Force Command to decide how to the conduct the experiment of integrating women as pilots at such time and in such circumstances as in their discretion will not harm the needs of national security.

Justice D. Dorner

1.  ‘Man kann von einem Ding nicht aussagen, es sei 1 m lang, noch, es sei nicht 1 m lang, und das ist das Urmeter in Paris’ (L. Wittgenstein, Tractatus Logico-philosophicus — Philosophische Untersuchungen, 1960, 316).

(‘There is one thing of which it cannot be said that its length is one metre, or that its length is not one metre, and that is the original metre in Paris’).

            Indeed, many criteria are accepted by society as absolute, but they are in fact arbitrary. But it is not decreed that all criteria must be arbitrary, like the original metre mentioned by Witgensttein. There are matters where it is possible —and if it is possible then it is also proper — to endeavour to establish just criteria.

            The petition before us concerns criteria for translating the difference between men and women into legal norms. These criteria can and should be just.

            2.         Women are different from men. In general their physical strength is weaker than that of men. They are restricted by the necessity of their natural roles — pregnancy, childbirth and nursing. These differences were, apparently, the basis for the division of roles between the sexes in primitive human society, which gave birth to the patriarchal family. The man, who was both stronger and also free from the restrictions involved in childbirth, took charge of providing food and defending the family.

            This division of roles remained unchanged even when, as a result of economic and technological developments, it no longer had an objective basis. In the entry for ‘Woman’, the Hebrew Encyclopaedia says as follows:

‘Combat remained within the sphere of men’s activity even when exhausting and prolonged guard duty replaced the outburst of a reckless operation, and the dropping of bombs by pressing a button or dialling numbers on a control panel replaced the throwing of the spear or a face-to-face battle of swords… it should also be noted that a woman’s strength, stamina and ability to exert herself are usually assessed by the abilities of the woman who is pregnant, nursing and caring for her children; whereas the abilities of young women, on the one hand, and women after menopause, on the other hand, are also determined according to the weakness and cumbersomeness of the woman during her period of fertility. The criterion for assessing the strength of men, however, is the ability of the young, model fighter, i.e., of the young and unmarried man. It can be said that many of our professional ideals are determined for a man in accordance with his role as a man and not as a father, whereas for a woman — in accordance with her role as a mother, and not as a woman’ (Hebrew Encyclopaedia, the Encyclopaedia Publishing Co., vol. 7, 1954, at pp. 341-342).

In the patriarchal family, the family property belonged to the husband-father. A married woman could not own property and her status was like that of a minor. The woman had no right to vote or to be elected, and she was even forbidden from holding any position outside her home. Involvement in war and politics was considered to be contrary to the nature of women. See J. S. Mill, The Subjection of Women, New York, 1986, at pp. 8, 33; S. De Beauvoir, Le Deuxième Sexe, vol. 1, 1976, at pp. 164-165; D. L. Rhode, Justice and Gender, Cambridge, 1989, at pp. 9-28).

            In our own sources it is said of the woman that ‘the honour of a king’s daughter is inward’ (Psalms 45, 14 [61]).

            As recently as the end of the nineteenth century, the English poet Alfred Tennyson wrote a sonnet that reflects the accepted social norms of that time:

‘Man for the field and woman for the hearth;

Man for the sword, and for the needle she;

Man with the head and woman with the heart;

Man to command and woman to obey.

                        All else confusion.’

(A. Tennyson, The Princess, 2^nd song, 5, 427).

These norms were also expressed in the constitutional case-law of the United States. Thus, for example, in a judgment given at the end of the nineteenth century it was held that that a woman has no constitutional right to be a lawyer. The Supreme Court held, in the opinion of Justice Bradley, as follows:

‘The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood… [and] is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband’ (Bradwell v. The State (1872) [43], at 141).

3.    All of this has changed greatly. In the State of Israel, as in other democratic states, the rule forbidding discrimination against women because of their sex is continually winning ground as a basic legal principle, and the legal rhetoric is continually being translated into reality.

            In the declaration of the establishment of the State of Israel (‘the Declaration of Independence’) it was stated that ‘the State of Israel will uphold complete equality of social and political rights for all its citizens irrespective of… sex.’ In the Women’s Equal Rights Law, 5711-1951, section 1 provides that  ‘There shall be one law for men and women for every legal act; and any provision of law that discriminates against women as women, for any legal act, shall not be followed’. In the Equal Remuneration for Female and Male Employees Law, 5724-1964, section 1 provides that ‘An employer shall pay a woman employee remuneration that is equal to the remuneration of an employee who is a man at the same place of employment for the same work.’ In the Equal Employment Opportunities Law, section 2(a) provides, inter alia, that ‘An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex…’. Case-law has played its part in establishing a substantive-interpretative principle, according to which, in the absence of any contrary statutory provision, the authorities (and in certain cases, even private individuals and bodies) are prohibited from discriminating against women because of their sex, and that statutes will be construed — in so far as possible — as consistent with this prohibition. See, for example, HCJ 153/87 Shakdiel v. Minister of Religious Affairs [17]; Poraz v. Mayor of Tel-Aviv-Jaffa [12]; HCJ 104/87 Nevo v. National Labour Court [18].

            4.         The Basic Law: Human Dignity and Liberty (hereinafter – the Basic Law) gave a constitutional, super-legislative status to the prohibition of discrimination against women. This status derives from both of the following:

First, section 1 of the Basic Law (which also appears as section 1 of the Basic Law: Freedom of Occupation) provides:

‘Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free, and they shall be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel.’

This section provides, at least, that basic rights are to be upheld in the spirit of the principles of the Declaration of Independence, including the equality of citizens irrespective of sex. Therefore, for example, there can be no discrimination of women with respect to their right to property (a right enshrined in section 3 of the Basic Law) or in respect of their freedom of occupation (a right enshrined in section 3 of the Basic Law: Freedom of Occupation).

Second, the prohibition of discrimination against women is included in the right to dignity enshrined in sections 2 and 4 of the Basic Law.

The question whether the principle of equality in its entirety is encompassed in the right to dignity, within the meaning thereof in the Basic Law, has been discussed in several obiter dicta in the rulings of this Court. See, on the one hand, the remarks of Justice Or in HCJ 5394/95 [5], at pp. 360-363; the remarks of Vice-President Barak in El-Al Israel Airlines v. Danielowitz [3], at p. 760 {488}; and the remarks of Justice Mazza in Israel Women’s Network v. Government of Israel [6], at pp. 521-523 {447-449}. On the other hand, see the remarks of Justice Zamir in Israel Women’s Network v. Government of Israel [6], ibid.. See also: F. Raday, ‘On Equality’, 24 Mishpatim, 1994, 241, 254; Y. Karp, ‘Basic Law: Human Dignity and Freedom — A Biography of Power Struggles’, 1 Law and Government, 1992, 323, 345-361.

            The legislative history of the Basic Law indicates that the omission of the general principle of equality was intentional. In the Knesset debate on the draft Basic Law, MK Shulamit Aloni and MK Moshe Shahal argued against the omission in the Basic Law of a section about the right of equality (see Knesset Proceedings vol. 123, 1992, at pp. 1241, 1244). In reply to these arguments, (ibid., at p. 1532) MK Amnon Rubinstein, who proposed the Basic Law, said the following:

‘There is no section about general equality, that is correct, because that section of general equality was a stumbling block, an obstacle that prevented the passing of the comprehensive draft proposal.’

See also Karp, in her article, supra, at pp. 345-346.

            In view of this background, I doubt whether it is possible — or at least, whether it is proper — to hold by means of construction that the purpose of the Basic Law is to provide constitutional protection to the principle of general equality. The clear intention of the legislator, as can be seen from the drafts versions, was precisely not to enshrine this general principle in the Basic Law. The draft versions of a law are a factor in determining its purpose. See the remarks of Justice Barak in FH 36/84 Teichner v. Air France Airways [19], at p. 619; Barak, in his book, supra, vol. 2, at pp. 191, 215. Admittedly, the significance of the draft versions — which reveal the intentions of the members of the Knesset who enacted the Law — decreases with the passage of time since the legislation was passed, and the occurrence of political, social or legal changes that may justify a deviation from these intentions. But only a few years have passed since the enactment of the Basic Law, and prima facie the Basic Law should not be construed in a way that conflicts with its purpose as can be seen from the draft versions.

            Notwithstanding, there can be no doubt that the purpose of the Basic Law was to protect people from degradation. The degradation of a human being violates his dignity. There is no reasonable way of construing the right to dignity, as stated in the Basic Law, such that the degradation of a human being will not be considered a violation of that right.

            Indeed, not every violation of equality amounts to degradation, and therefore not every violation of equality violates the right to dignity. Thus, for example, it was held that discrimination against small political parties as opposed to large parties, or against new parties as opposed to old parties, violates the principle of equality. See, for example: HCJ 637/89 ‘Constitution for the State of Israel’ v. Minister of Finance [20]; HCJ 98/69 [4], at p. 698; HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [21], at pp. 13, 15, 21 {32, 34, 41}; HCJ 141/82 Rubinstein v. Chairman of the Knesset [22]; HCJ 142/89 Laor Movement v. Knesset Speaker [23]. Notwithstanding, such infringements of the principle of equality, which have even led to the disqualification of Knesset laws, did not constitute a degradation, and so they also did not involve a violation of human dignity.

            This is not the case with certain types of discrimination against groups, including sex discrimination, and also racial discrimination. Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. Thus, for example, in the famous judgment of the United States Supreme Court in the case of Brown v. Board of Education (1954) [44], at p. 494, the approach that had been accepted until that time with regard to separate and equal education was rejected. With regard to the influence of separate education, Chief Justice Warren wrote as follows:

‘To separate them from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.’

And in the judgment in Frontiero v. Richardson (1973) [45], at pp. 686-687, when discussing the influence of different treatment of women in legislation, Justice Brennan wrote:

‘… Sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth… the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members.’

Closing a profession or a position to a person because of his sex, race or the like sends a message that the group to which he belongs is inferior, and this creates a perception of the inferiority of the men and women in the group. This creates a vicious cycle that perpetuates the discrimination. The perception of inferiority, which is based on the biological or racial difference, causes discrimination, and the discrimination strengthens the deprecating stereotypes of the inferiority of the victim of discrimination. Therefore the main element in discrimination because of sex, race or the like is the degradation of the victim.

My opinion is therefore that the Basic Law protects against a violation of the principle of equality when the violation causes degradation, i.e., an insult to the dignity of a human being as a human being. The same is true when a woman is a victim of discrimination because of her sex.

5.    Enshrining the prohibition against discrimination of women in the Basic Law has two consequences, which are mutually connected: first, inclusion in a Basic Law has significance for the definition of the right, and especially for the distinction between the definition of the right and the definition of the conditions in which it is permitted — if at all — to violate it; second, in exercising executive discretion — including discretion enshrined in a law that existed before the Basic Law came into effect — extra weight should be given to a right enshrined in the Basic Law.

            6.         The classic definition of equality was coined by Aristotle. According to this definition, equality means equal treatment of equals and different treatment of those who are different according to the extent of their difference (Aristotle, The Nicomachean Ethics, book 5, par. 1131). In my opinion, this definition, which has been incorporated in our case-law (see, for example, Boronovski v. Chief Rabbis [1], at p. 35), borders on tautology.

            The definition permits, and even necessitates, different treatment when the ‘difference’ is relevant, but it does not contain criteria for determining that relevance. In the absence of such criteria, there is a danger — which has frequently been realized — that the criteria applied in each case will reflect the degrading stereotypes which the prohibition of discrimination was originally intended to prevent. In our case, the prohibition against the discrimination of women is likely to be rendered meaningless by a determination — based on accepted degrading stereotypes —that the difference between women and men justifies, and even necessitates, different treatment of women. Thus, for example, in the judgments in Muller v. Oregon (1908) [46] at 427; Hoyt v. Florida (1961) [47], at 62, laws that provided for different treatment of women were upheld, for the reason that the difference was relevant in view of the woman’s roles as a mother and housekeeper. For the same reason a law was approved that made only men liable for military service, notwithstanding the fact that the chiefs of staff of the American army were interested in applying the law to women also. See Rostker v. Goldberg (1981)[48], at p. 74. Even in Israel it was held in Steinberg v. Attorney-General [7], at pp. 1067-1068, that different treatment of women, based on the duties of the married woman, falls into the category of permitted distinctions, since it is based on a relevant difference between women and men.

            Moreover, the definition also obscures the distinction between the actual relevance of the difference and its proportionality, in the sense of restricting the violation of human rights to cases where it is required, or to the required degree.

The Aristotelian definition has also been criticized in legal literature. Prof. Rhode wrote the following:

‘American equal-protection analysis has developed largely within an Aristotelian tradition that defines equality as similar treatment for those similarly situated. Under this approach, discrimination presents no legal difficulties if the groups differ in ways relevant to a valid regulatory objective… challenges to gender classifications underscored the theoretical and practical limitations of this approach… Contemporary gender-discrimination analysis has presented difficulties along several dimensions. At the most basic level, traditional approaches have failed to generate coherent or convincing definitions of difference. All too often, modern equal-protection law has treated as inherent and essential differences that are cultural and contingent. Sex-related characteristics have been both over- and undervalued. In some cases, such as those involving occupational restrictions, courts have allowed biology to dictate destiny. In other contexts, such as pregnancy discrimination, they have ignored women’s special reproductive needs. The focus on whether challenged classifications track some existing differences between the sexes has obscured the disadvantages that follow from such differences.

Although discourses of difference must sometimes have a place, they should begin, not end, analysis. As deconstructionists remind us, women are always already the same and different: the same in their humanity, different in their anatomy. Whichever category we privilege in our legal discourse, the other will always be waiting to disrupt it. By constantly presenting gender issues in difference-oriented frameworks, conventional legal discourse implicitly biases analysis. To pronounce women either the same or different allows men to remain the standard of analysis.

Significant progress toward gender equality will require moving beyond the sameness-difference dilemma. We must insist not just on equal treatment but on woman’s treatment as an equal’ (Rhode, supra, at pp. 81-82)

            See also Raday, in her article, supra, 24 Mishpatim, at p. 255.

In my opinion, in our case (i.e., in circumstances where a decision is based on considerations of sex or similar considerations based on belonging to a group, such as race), it is possible to overcome the difficulties raised by the Aristotelian definition — or at least some of them — by replacing this definition with a twofold test: first, is the consideration of sex relevant? Second, assuming that the consideration is relevant, is it justified to take account of it in the circumstances of the case?

In my opinion, as stated, discrimination against a person because he belongs to a group, and in our case discrimination against women, violates the right to dignity. However, like every right, the right to dignity (including the prohibition of group discrimination derived from it) is also not an absolute right but a relative one, and a balance must be struck between it and other legitimate values and interests. Therefore, in special cases a violation of women’s right of equality may be justified, if it complies with criteria that reflect the proper balance between this right and other legitimate values and interests.

A good example of the application of this approach can be found in Poraz v. Mayor of Tel-Aviv-Jaffa [12]. This case considered a decision of the Tel-Aviv-Jaffa Municipality not to appoint women to the body that appointed the city’s chief rabbi. The decision was based upon considerations recognized by the court as relevant considerations (which were called by the court ‘particular considerations’), which were the fear that the participation of women on the body making the appointment would prevent suitable rabbis from presenting themselves as candidates and would make the functioning of the rabbi that would be elected more difficult. Prima facie, according to the Aristotelian definition — which the Court both cited and relied upon — this should have been sufficient to deny the petition and to uphold the decision of the Municipality. But the court held that the discrimination against women itself constituted a violation of the right to equality. In such a case, the court held, in the opinion of Justice Barak, that:

‘… we must balance the general principle of equality on the one hand against the particular consideration of the appointment of an electoral assembly that can properly carry out its office on the other’ (supra, at p. 336).

From this we can infer that even when ‘discrimination against women is a relevant consideration’ (ibid.), the discriminatory decision violates the right of equality, and we must examine whether this violation is justified. On the other hand, according to the accepted Aristotelian definition, a statement that ‘discrimination against women is a relevant consideration’ is inherently contradictory, for, according to that definition, if the consideration is relevant, there is no discrimination at all.

8.    The distinction between discriminatory treatment and its justification also requires a distinction regarding the burden of proof, between the woman claiming discrimination and the executive authority. A woman claiming discrimination must prove that the authority treated her differently because of her sex (or her belonging to another group). On the other hand, the burden of proof that discriminatory treatment is justified lies with the authority. Thus for example, in the United States, in lawsuits of observant Jews against their employers on the grounds that they were the victims of discrimination because they observed the Sabbath, it was held that when the plaintiffs proved the actual discriminatory treatment, the employers had to prove that they took all the reasonable measures for integrating the persons who observed the Sabbath in the work. See Getz v. Com. of Pa., Dept. of Public Welfare (1986) [49]; Shapiro-Gordon v. MCI Telecommunications Corp. (1993) [50].

The proper degree of proof is the usual one in civil law, namely, the balance of probability in favour of the contention that must be proved. Cf. R. v. Oakes (1986) [58], at p. 107; P. A. Joseph, Constitutional and Administrative Law in New Zealand, Sydney, 1993, at pp. 861-862; Hogg, supra, at pp. 857-858.

9.    Section 11 of the Basic Law requires all Government authorities to uphold the rights enshrined therein. Notwithstanding, the section does not stipulate the criteria for upholding the rights. How then are these criteria to be determined?

In the United States, in the absence of a provision of the Constitution in this respect, the criteria for examining the constitutionality of the violation of human rights have been formulated in case-law. These criteria do not make a clear distinction between the purpose of the norm that violates a basic right and the proportionality of the violation. American case-law developed a doctrine of levels of scrutiny, which is based on an examination of the importance of the social values at the heart of the right. The most lenient level of scrutiny in terms of the restrictions it imposes on the authorities, applies to acts (including laws) that violate economic rights. The level of scrutiny of these activities is minimal scrutiny. According to this, a violation of a right will be found to be justified if the violation is rationally related to a legitimate State interest. See: Railway Express Agency v. New York (1949) [51]; Massachusetts Board of Retirement v. Murgia (1976) [52].

The strictest level of scrutiny applies to acts that violate fundamental rights, such as freedom of speech, freedom of movement and the right to vote. This criterion also applies to the examination of the constitutionality of actions based on a suspect classification. In examining the constitutionality of such actions there is a need for strict scrutiny, which imposes a heavy burden of persuasion — substantive and probative — to justify the violation of the right. Only an essential public interest, which cannot be achieved by less discriminatory measures, may justify such a violation. See Korematsu v. United States (1944) [53]; Brown v. Board of Education [44].

            Notwithstanding, the level of scrutiny of classifications based on sex was a subject of dispute. In the judgment in Frontiero v. Richardson [45], at pp. 682, 685, Justice Brennan, supported by Justices Douglas, White and Marshall, was of the opinion that classifications based on sex — like classifications based on race — were suspect classifications, and they should be subject to the highest level of scrutiny. He wrote:

‘At the outset, appellants contend that classifications based upon sex, like classifications based upon race, alienage and national origin, are inherently suspect and must therefore be subjected to close judicial scrutiny. We agree…

…

… Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children… And although blacks were guaranteed the right to vote in 1870, women were denied even that right…’

But in a later judgment it was held that the constitutionality of classifications based on sex, which were defined as ‘quasi-suspect’, will be examined on the basis of an intermediate level of scrutiny (intermediate scrutiny). According to this level of scrutiny, a classification based on sex will be considered to be justified if it has a substantial relationship to an important Government objective. See Craig v. Boren (1976) [54]; Mississippi Univ. v. Hogan (1982) [55].

            In Canada, in the Charter of Rights and Freedoms, there is a limitation clause that distinguishes between the purpose of the action that violates the right and the proportionality of the violation (s. 1 of the Charter). Canadian case-law developed a standard level of scrutiny for all basic rights. It was held that legislation has a proper purpose if it is intended to realize social needs of fundamental importance, and that the violation should not be excessive for achieving the purpose. In the latter case, secondary tests were established. The following was stated in the leading judgment R. v. Oakes [58], at 139:

‘There are, in my view, three important components of a proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second, the means, even if rationally connected to the objective in this first sense, should impair “as little as possible” the right or freedom in question… Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”.’

            In Germany, the Constitutional Court ruled that a strict level of scrutiny is required for legislation that discriminates on the basis of sex, that only an essential purpose justifies such a discrimination, and even this on condition that the extent of the violation is not excessive. See D. P. Currie, The Constitution of the Federal Republic of Germany, Chicago, 1994, at p. 328.

            The principle of proportionality, which was developed in German administrative law as early as the eighteenth century, is comprised of three elements that are in principle similar to the secondary tests in the Canadian ruling in R. v. Oakes [58]. First, the violating measure must be appropriate (geeignet) for achieving the purpose. Second, the measure must be required (erforderlich) for achieving the purpose, in the sense that of the suitable measures, the measure chosen is the most moderate one that can achieve the purpose (the element of necessity). Third, the measure must not be excessive (unzumutbar) in its violation, in comparison with the benefit deriving from it. In other words, the relationship between the measure and the purpose must be proportional (Currie, in his book, supra, at pp. 309-310). See also Y. Zamir, ‘Israeli Administrative Law in comparison with German Administrative Law’, 2 Law and Government, 1994, at pp. 109, 131.

10. In Israel, the criteria for upholding rights, mutatis mutandis, should be derived from section 8 of the Basic Law (hereafter — the limitation clause). This section provides:

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

Indeed, the limitation clause applies only to powers deriving from laws passed after the enactment of the Basic Law. However, it is appropriate, by way of analogy, to apply its principles to the duty of executive authorities by virtue of section 11 of the Basic Law, which also applies to powers based upon laws that preceded the Basic Law. There are two reasons for this: first, the protection of basic rights in Israel should be carried out on the basis of similar criteria, whether the legal norm whose validity is being examined is a statute or whether it is another legal norm. Second, the arrangement provided in the limitation clause — which distinguishes, inter alia, between the purpose of the violation of the right and the extent of the violation — is in principle appropriate for all legal norms, and not merely statutes. The suitability of the criteria in the limitation clause for the scrutiny of the validity of legal norms that are not statutes was discussed by Vice-President Barak in El-Al Israel Airlines v. Danielowitz [3] (in which a discriminatory collective agreement was considered), at p. 760 {488}:

‘Equality may be lawfully restricted if this is consistent with the values of the State of Israel, is for a proper purpose and if equality is not restricted more than necessary.’

The elements of the limitation clause are very similar to the criteria developed in case-law for a violation by an administrative authority of a basic human right.

11. The first element, which reflects the principle of legality, provides that the violation must be in a law or under a law by virtue of an express authorization therein. In this respect, in case-law laid down before the Basic Law was passed, it was held, inter alia:

 (1) A basic human right may not be restricted without the clear authorization of the primary legislator. See, for example: the remarks of Justice Berinson in HCJ 200/57 Bernstein v. Bet-Shemesh Local Council [24], at p. 268; Justice Shamgar in HCJ 337/81 Miterani v. Minister of Transport [25], at p. 359.

 (2) Legislation that violates a basic human right must be construed narrowly, ‘with the aim of giving the said right maximum application and not limiting it in any way beyond what is clearly and expressly implied by the legislation’ (the remarks of Justice Shamgar in CA 732/74 HaAretz Newspaper Publishing Ltd v. Israel Electricity Co. Ltd [26], p. 295 {243}).

 (3) Laws should be construed on the assumption that it is not their aim to violate the principle of equality. The following was written by Justice Haim Cohn in HCJ 301/63 Streit v. Chief Rabbi [27], at p. 612:

‘… this court will always presume that the Israeli legislator does not intend to violate, by an act of legislation, the basic principles of equality, freedom and justice…’

            In another context, Justice Barak wrote in Poraz v. Mayor of Tel-Aviv-Jaffa [12], at p. 612:

‘… we must presume [that] the primary legislator and the secondary legislator [wished] to uphold the principle of equality… we must construe this authority in a way that the power to enact subordinate legislation is not exercised in a manner that violates the principle of equality’ (square parentheses added).

The power to discriminate against women must therefore be expressly stated in a law, and a general provision giving an authority discretion is insufficient. This is because the assumption is, as stated, that the authority should exercise its powers while upholding basic human rights — including the prohibition of discriminating against women — unless it is expressly authorized not to do so.

These rules of interpretation were reinforced with the enactment of the Basic Law. It was held that even legislation that is protected by section 10 of the Basic Law against being held invalid should be interpreted in the spirit of the provisions of the Basic Law, and the same applies also to discretion exercised under legislation whose validity was protected. It was also held that there should be a re-examination of existing case-law to assess whether it was consistent with the provisions of the Basic Law. See CrimApp 537/95 Ganimat v. State of Israel [28], and the remarks of Vice-President Barak, at p. 419:

‘… There are rulings that were made in the past, and which are inconsistent with the new balance. These rulings can no longer be used for the construction of a new law. Moreover, these rulings should no longer be used for the construction of the old law. This law should be construed in the spirit of the new basic laws. The purpose of the old legislation and executive discretion enshrined in old legislation must be construed according to the new balance between human rights and the needs of society, provided that this new interpretation is possible.”

            See also: the remarks of Vice-President Barak, ibid., at pp. 423-424; and my own remarks, ibid., at p. 375; and also CrimApp 4595/94 [29]; CApp 4459/94 Salomonov v. Sharabani [30]; HCJFH 3299/93 Wechselbaum v. Minister of Defence [31].

            12. The second element requires that the violation befits the values of the state of Israel. It may be assumed that the intention is to its values as a Jewish and democratic State, as stated in section 1 of the Basic Law. See Barak, in his book, supra, vol. 3, at p. 157; H. H. Cohn, ‘The Values of the State of Israel as a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, 9 HaPraklit — Jubilee Volume, Israel Bar Association Publications, 1994, at p. 9. Even this element should be applied (subject to section 10 of the Basic Law) to all executive decisions. See the remarks of Vice-President Elon in CrimApp 2169/92 Suissa v. State of Israel [32], at p. 341.

            13. The third requirement in the limitation clause requires that the violation of the right is for a proper purpose. The meaning of ‘a proper purpose’, with regard to a decision of an administrative authority, is different from its meaning with respect to a statute. While with respect to a statute we should examine whether its purpose serves a public purpose whose realization might justify a violation of a basic right, with respect to an administrative decision we should examine, first and foremost, whether its purpose is one of the general or particular purposes of the law authorizing the decision. I discussed this in El-Al Israel Airlines v. Danielowitz [3], at p. 782-783 {519-520}, with regard to discrimination based on sexual orientation:

‘According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred. By contrast, when the sexual orientation is relevant to realizing the purpose of the benefit, for instance if the purpose is to encourage having children, withholding the benefit from a same-sex spouse will not constitute discrimination’ (square parentheses added).

            See also HCJ 389/90 Golden Pages Ltd v. Broadcasting Authority [33], at p. 435; HCJ 4422/92 Efran v. Israel Lands Administration [34], at p. 858.

In our case, legislation whose purpose is to protect women cannot be used as a basis for discriminating against women, if she has waived the protection (provided, of course, that the protection is not forced on her by a law whose validity is preserved under section 10 of the Basic Law). See HCJ 231/63 Ratef Food Supply Ltd v. Ministry of Trade and Industry [35], at p. 2733.

            14. The fourth element — which, in my opinion, is the most important — is the requirement that the extent of the violation of the right is not excessive. This principle is expressed by adapting the means to the purpose, in adopting a measure that violates a basic right only as a last resort and in the absence of another reasonable measure, and in adopting a measure of violating a basic right only where the importance of the purpose of the violation (‘the purpose’), and the severity of the damage that will be caused if the purpose is not realized, justify it. See: HCJ 5510/92 Torkeman v. Minister of Defence [36]; HCJ 987/94 [14]; HCJ Ben-Atiya v. Minister of Education, Culture and Sport [37]. See also Z. Segal, ‘The Grounds of Disproportionality in Administrative Law’, 39 HaPraklit, 1990, at p. 507. In the latter case, balancing formulae were established, based on the special weight of the violated human right on the one hand and the conflicting interest (in the terminology of the limitation clause — ‘the purpose’) on the other. These formulae are expressed in the tests that concern the extent of the violation of the basic human right and its probability. See the remarks of Justice Barak in 399/85 Kahana v. Broadcasting Authority Management Board [38], at p. 284. The probability formula is determined, on the one hand, in accordance with the importance of the basic right and its underlying reasons, and, on the other hand, in accordance with the importance of the conflicting interest, the realization of which is the purpose of the violation. For this latter issue, see HCJ 1452/93 Igloo Plumbing Works, Building and Development Contracting Co. Ltd v. Minister of Industry and Trade [39], at p. 617.

            The right to dignity — which enshrines the prohibition of discrimination against women — is one of the most important basic human rights. In general, the degradation of a woman by discriminating against her merely because she is a woman is very hurtful to her. Moreover, important social interests are also a basis for the right. In the words of Justice Bach in Nevo v. National Labour Court [18], at p. 760 {150}:

‘A society that practises discrimination is not a healthy one, and a State that practises discrimination cannot be called a civilized State.’

The individual and social reasons that are the basis for the prohibition of discrimination against women require that we apply in this respect the strict test of a near certainty of serious danger.

            15. In cases where the difference of women is a relevant consideration for realizing the purpose of the power, there is a spectrum of possible measures for achieving that purpose. At one extreme of the spectrum, there is the asymmetric model of the  ‘special protection rule’. This model holds that women have special characteristics and roles, which justify their being discriminated against in comparison with men, and inter alia they are prevented from being employed in various jobs. The proper purpose — which is the proper exercise of the said roles — is therefore realized by closing the door to women who wish to serve in those jobs.

            At the other end of the spectrum, there is a symmetric model known as ‘gender neutrality’. This model advocates equal treatment of men and women, and it assumes that both sexes have identical functional capacity. According to this approach, pregnancy is considered as a constraint equivalent to a man being sick. Adopting this model usually involves building the system according to the ability of men. In its planning, naturally account is taken of various needs that are common to all human beings, whether women or men, but no account is taken of the special needs of women. According to this model, society may close to women the door of an organization whose optimal operation is in the interests of society, if it transpires that because of the needs and characteristics of women their period of activity is expected to be shorter than the activity of men (and this also as a result of women exercising privileges that the law grants them, with regard to pregnancy, childbirth and the other roles of women). The symmetrical model is therefore likely to prevent or to reduce to a large degree the employment of women in essential organizations.

            This problem raised by the ‘gender neutrality’ model was succinctly described by Prof. MacKinnon:

‘Under the sameness rubric, women are measured according to correspondence with man, their equality judged by proximity to his measure; under the difference rubric, women are measured according to their lack of correspondence from man, their womanhood judged by the distance from his measure. Gender neutrality is the male standard. The special protection rule is the female standard. Masculinity or maleness is the referent for both’ (C. A. MacKinnon, Toward a Feminist Theory of the State, Harvard University Press, 1989, at p. 221).

16. In my opinion, the solution to the difficulties raised by both of the extreme models lies in an intermediary model. According to this model, achieving equality between the sexes requires organizational planning that takes the unique needs of women into account. The interest in ensuring the dignity and status of women, on the one hand, and in the continued existence of society and the raising of children, on the other hand, makes it necessary — in so far as possible — not to deny women the possibility of realizing their abilities and ambitions merely because of their special natural functions, and thereby discriminating against them in comparison with men. Social institutions — including legal arrangements — should be adapted to the needs of women.

            This intermediary model, whereby every employer must take into account that the years of a woman’s activity are likely to be disrupted by pregnancy, childbirth, nursing and childcare, has been enshrined in Israel in labour law. Thus, for example, the Women’s Employment Law provides that a woman has a right of maternity leave (s. 6(a)), a right of absence from work during the pregnancy if there is a medical need (s. 7(c)(1)), and a right to return to work after childbirth following an absence that does not exceed twelve months (s. 7(d)(1)).

            Naturally, the implementation of the intermediary model costs money and complicates planning. These costs must be borne — sometimes with the participation of National Insurance — also by private employers. This obligation is imposed, all the more so, also on the State.

            The demand to consider the special needs of women is similar to the demand to consider a person’s religious belief. Such a demand is accepted in the United States. See Getz v. Con. of Pa., Dept of Public Welfare [49]; Shapiro-Gordon v. MCI Telecommunications Corp. [50]. In HCJ 80/70 Elitzur v. Broadcasting Authority [50], at p. 666, Justice Kister wrote that the approach of American case-law should be adopted:

‘… we may learn some things from the American approach in law and case-law:

a.            An approach that has maximum consideration for the religious persuasion of the employee; even if he has undertaken to work overtime, he should not be required to do this on his day of rest, and he even cannot be required to find a replacement if this is contrary to his religious belief, and the employer must adapt himself, in so far as possible, to his religious belief; I emphasize that we are speaking here of a private factory…’

It will be noted that in 1981 the Work and Rest Hours Law, 5711-1951, was amended, and in section 9(c) an employer was forbidden to refuse to accept someone for employment merely because he is not prepared to work on the weekly rest days prohibited by a precept of his religion.

17. From the general to the specific:

            My colleague, Justice Mazza, set out the facts underlying the petition. As stated, the respondents rejected the petitioner’s request to invite her for aptitude tests for an aviation course because of planning reasons, which were mainly considerations of organizational feasibility. The basis for these considerations is the large cost of training pilots, which makes — so the respondents argue — the training of someone whose service for many years is not guaranteed by law not worthwhile, and it also makes it necessary to train a larger number of pilots. An additional reason given by the respondents was the cost required for adapting the facilities at the camp where the flight course takes place to absorb women.

The respondents’ considerations are based on the assumption that the petitioner, being a woman, can be expected to serve fewer years than a man. In this respect, they relied on the provisions of the Defence Service Law [Consolidated Version] (hereafter — the law), which obliges men to do reserve duty until the age of 54, whereas women are liable for reserve duty only until the age of 38 (s. 29), and pregnant women and mothers are exempt altogether from reserve duty (s. 34). The law does not prevent a woman volunteering for reserve duty (s. 12), nor does it even distinguish between men’s jobs and women’s jobs. But in the respondents’ opinion, in view of the pregnancies and childbirths that can naturally be expected in the life of a woman, one cannot rely upon voluntary service from which the woman can exempt herself at any time.

As my colleague Justice Mazza mentioned, the respondents did not rely on the existence, under High Command regulations, of restrictions in assigning women to combat roles, and I will therefore assume that these regulations have no implications with regard to the rights of the petitioner.

18. I have arrived at the conclusion that the respondents’ decision to reject the petitioner’s request because she is a woman, discriminates against her, and this discrimination — which constitutes a violation of the petitioner’s constitutional right of dignity — does not satisfy the requirements of the limitation clause in the Basic Law, and it is therefore illegal and improper.

I will consider the elements of the limitation clause in order.

19. The first requirement — express statutory authorization: the law distinguishes between men and women in so far as the length of compulsory service is concerned, and in this way it discriminates between the sexes. In view of the provisions of section 10 of the Basic Law regarding the preservation of laws, we are not required to consider the validity of the law in this respect. In the absence of any other argument, I too am prepared to assume — without ruling — that the decision was made within the framework of the power that the law gave to the respondents.

20. The second element — befitting the values of the State: here too, in the absence of arguments to the contrary, I will assume — without ruling — that the respondents’ decision does not conflict with the values of the State of Israel as a Jewish and democratic state.

21. The third element — a proper purpose: the air force’s planning considerations, which, as stated, led it to make the decision that is the subject of the petition, serve important State interests, and in this sense they constitute ‘a proper purpose’. The problem is that these considerations were based on statutory provisions that were intended to protect women and grant them ‘privileges’. As stated, the law is not compulsory in this respect, and the petitioner gave notice that she is prepared to waive the privileges given to her. Therefore, in rejecting the petitioner’s request by relying on the protective provisions, the respondents applied considerations that were irrelevant for realizing the purpose of these provisions of law. In this sense, their considerations can therefore not be regarded as ‘a proper purpose’. Notwithstanding, there still remains the consideration that a woman, because of her biological functions, is expected to do less years of reserve duty than men, something that will make her training less worthwhile, and will, so they claim, adversely affect the possibility of planning. These considerations — of economy and facilitating planning — are relevant and legitimate, and constitute ‘a proper purpose’.

22. The fourth element — to an extent that is not excessive: in my opinion, the measure that the respondents chose in order to realize their purposes — closing the profession of aviation to women — does not comply with this element of the limitation clause. Closing the profession of aviation to women does not comply with the requirement of proportionality. As my colleague Justice Mazza has shown, it is possible to make plans — since in any event planning takes account of interruptions and stoppages for various reasons — in a way that takes into account the differences between men and women. As stated, the obligation to take account of women’s needs in planning is incumbent on all employers in the country by virtue of laws that prohibit refusing to accept a woman for employment because of her sex, and at the same time give her privileges that shorten her activities in a way liable to harm the employer. In these circumstances, where an extra financial burden is imposed on all private employers for the sake of achieving equality, considerations of budgeting and planning efficiency cannot justify a decision of the State that violates a basic right. See: Singh v. M. E. I. (1985) [59], at p. 218; R. v. Lee (1989) [60], at p. 1390; Barak, supra, vol. 2, at pp. 526-527.

Moreover, even if we assume that the planning consideration could justify discrimination against women, the State which seeks to justify the discrimination bears the burden of proof. But the respondents did not substantiate their arguments about the harm to planning on solid facts, but merely on a hypothesis whose correctness is not self-evident. The fact that in 1975 women soldiers were integrated into an aviation course on the respondent’s initiative, indicates precisely that the planning difficulties, in so far as they exist, are not insoluble.

            In addition to all the above, the damage caused by closing the aviation course to women exceeds the benefit of the planning considerations. First, closing the aviation course to women violates their dignity and degrades them. It also, albeit unintentionally, provides support for the degrading slogan: ‘the best men for the air force, and the best women for its pilots’.

            Second, the potential of half the population is not utilized, and this damages society. ‘The best women for the air force’ is also in the interests of society, and this was harmed by the respondents’ decision. This was discussed by the English philosopher, John Stuart Mill, in his book, supra, which was written over one hundred years ago. He wrote, on p. 57:

‘Nor is the injustice confined to [women]: it is shared by those who are in a position to benefit by their services. To ordain that any kind of persons shall not be physicians, or shall not be advocates, or shall not be members of parliament, is to injure not them only, but all who employ physicians or advocates, or elect members of parliament, and who are deprived of the stimulating effect of greater competition on the exertions of the competitors, as well as restricted to a narrower range of individual choice.’

Very recently this was explained in the United States by Justice Hall in his judgment in Faulkner v. Jones [42], at p. 451:

‘Though our nation has, throughout its history, discounted the contributions and wasted the abilities of the female half of its population, it cannot continue to do so. As we prepare, together, to face the twenty-first century, we simply cannot afford to preserve a relic of the nineteenth.’

Indeed, the experience of history in other countries and also in Israel shows that in times of emergency, when the enemy stood at the gates, accepted norms gave way and women took part in combat, on land and even in the air.

The policy of closing the doors also does not meet the accepted criteria in our law for violation of a basic right. In this respect the respondents needed to prove the existence of a near certainty that the integration of women in aviation will seriously harm national security. The respondents did not do this, nor do common sense and experience in themselves lead to a conclusion about the existence of such a near certainty.

For these reasons, I think that the petition should be granted and the show cause order be made absolute.

                                                                                                                                           HCJ 3071/05

1.         Gila Louzon

2.         Adolf Edri

3.         "Last Border" Amuta for Cancer Patients

v.

1.         Government of Israel

2. Minister of Health
3. Minister of Finance
4. Committee for Expanding the   Medicinal Services Basket appointed by the Council for National Health Insurance

HCJ 3938/05

1.         Yaakov Bar-On

2. Uriel Gilon
3. Zion Halifi
4. Eliyahu Yitah
5. Emile Huri
6. Keren David
7. Asher Miara
8. Shlomo Ginosar

v.

1.         Ministry of Health

2. Minister of Health
3. Ministry of Finance

4.  Minister of Finance

HCJ 4013/05

1.         Yaakov Sheiber

2. Haim Edelstein
3. Shlomi Segal
4. Hayat Yosepov

v.

1.         State of Israel

2. Minister of Health
3. Minister of Finance
4. Industry and Trade Minister
5. Supervisor of Prices and the Committee under the Price Supervision Law
6. Committee for Expanding the  Medicinal Services Basket appointed by the Council for National Health Insurance
7. General Health services
8. Macabbi Health services
9. Meuchedet Health Fund
10. Leumit Health Fund

The Supreme Court sitting as the High Court of Justice

 (8 August 2005)

Before President D. Beinisch and Justices A. Grunis, M. Naor

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

Legislation Cited

Patient's Rights Law, 5756-1996, s. 3.

Do Not Stand on Your Neighbor's Blood Law, 5758-1998

National Health Insurance Law, 5755-1995   

Value Added Tax Law, 5736-1976

Israel Supreme Court cases cited:

[1]     HCJ 6055/95 Tzemach v. Minister of Defense [1999] IsrSC 53(5) 241.

[2]     HCJ 4128/02 Man, Nature and Law - Israeli Society for the Protection of the Environment v. Prime Minister of Israel [2004] IsrSC 58(3) 503.

[3]        HCJ 494/03 Physicians for Human Rights v. Minister of Finance [2004] IsrSC 59(3) 322.

[4]     LCA 4905/08 Gamzo v. Isaiah [2001] IsrSC 58(3) 360.

[5]     HCJ 5578/02 Manor v. Minister of Finance [2004] IsrSC 59(1) 729.

[6]     HCJ 2557/05 Mateh Harov v. Israel Police (2006) (unreported).

[7]     HCJ 4769/95 Menahem v. Minister of Transport [2002] IsrSC 57(1) 235.

[8]     HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior (2005) (unreported).

[9]     HCJ 2599/00 Yated Association of Children with Down Syndrome v. Ministry of Education [1999] IsrSC 56(5) 834.

[10]   HCJ 7351/03 Rishon Le-Zion Municipal Parents Committee v. Minister of Education, Culture and Sport (2005) (unreported).

[11]   CA 5557/95 Sahar Insurance Company Ltd. v. Alharar [1997] IsrSC 51(2) 724.

[12]   HCJ 2344/98 Macabbi Health Services v. Minister of Finance [2000] IsrSC 54(5) 729.

[13]   HCJ 9163/01 General Health Services v. Minister of Finance [(2002] IsrSC 55(5) 521.

[14]   HCJ 1554/95 Supporters of Gilat Amuta v. Minister of Education, Culture and Sport [1996] IsrSC 50(3) 2.

[15]   HCJ 2725/92 General Health Services v. State of Israel [2004] IsrSC 59(1) 781.

[16]   HCJ 1829/02 General Health Services v. Minister of Health [2003] IsrSC 58(1) 406.

[17]   HCJ 7365/95 Bolous Brothers – Marble and Granite Production Ltd v. Investments Centre [1996] IsrSC 50(2) 89.

[18]   HCJ 3472/92 Brand v. Minister of Communications [1993] IsrSC 47(3) 143.

[19]   HCJ 3627/92 Israel Fruit Growers Organization Ltd. v. Government of Israel [1993] IsrSC 47(3) 387.

[20]   HCJ 2453/06 Israeli Medical Association v. Attorney General (2006) (not yet reported).

[21]   HCJ 4004/07 Turonshvili v. Ministry of Health (2007) (not yet reported).

[23]   HCJ 4613/03 Shaham v. Ministry of Health [2004] IsrSC 56(6) 385.

[24]   HCJ 1113/99 Adallah v. Minister for Religious Affairs (2000) (unreported).

[25]   HCJ 2974/06 Israeli v. Committee for Expanding the Health Services Basket (2006) (not yet reported).

[26]   HCJ 3997/01 Neopharm Ltd. v. Minister of Finance (2001) (unreported). 

[27]   HCJ 7721/96 Israeli Insurance Assessors Association v. Inspector of Insurance ]2001] IsrSC 55(3) 625.

[28]   HCJ 82/02 Kaplan v. State of Israel, Ministry of Finance, Customs Division [2004] IsrSC 58(5) 901.

[29]   CA 8797 Anderman v.Objection Committee of District Committee under the Planning and Construction Law, 5725-1965, Haifa [2001] IsrSC 56(2) 466.  

[30]   HCJ 10/00 Raanana Municipality v. Inspector of Transport, Tel-Aviv and Central Districts [2001] IsrSC 56(1) 739.

[31]   CCT 8/02 Minister of Health v. Treatment Action Campaign [2002] (10) BCLR 1033.

[32]  CCT 32/97 Soobramoney v. Minister of Health [1997] (12) BCLR 1696.

JUDGMENT

President D. Beinisch

The petitioners in these three petitions suffer from various forms of cancer. The petitioners’ doctors referred them for medicinal treatment, and when these petitions were filed, the petitioners’ required medications were not included in the basket of health services that receives public funding under the provisions of the National Health Insurance Law, 5754-1994 (hereinafter: “National Health Insurance Law” or "the Law"). The petitioners had difficulty in purchasing the medications independently, and this was the basis for their petition to this Court requesting that we instruct the respondents to include their medications in the publicly-funded health services basket (hereinafter: “the basket” or "the health services basket"). The petitioners argue that the decision to omit these medications from the health services basket approved for 2005 violated their constitutional rights, it was unreasonable, and it discriminated against them adversely vis-à-vis other patients whose required medications were included in the basket.

As will be clarified below, Government Decision no. 406 concerning a budgetary supplement to the health services basket was adopted on 27 August 2006. Following the budgetary supplement, the medications constituting the subject of the petitions in HCJ 3071/05 (hereinafter: HCJ Louzon) and HCJ 3938/05 (hereinafter: HCJ Bar-On) were included in the basket. On the other hand, the medication discussed in petition HCJ 4013/03 (hereinafter: HCJ Sheiber) was not included in the basket, and remains for our consideration.  

The factual background preceding the filing of the petitions

1.    The health services basket as defined in s. 7 of the National Health Insurance Law includes the health services that all Israeli residents insured under the Law are entitled to receive from the sick funds, by means of funding sources that are the responsibility of the State. Below we will discuss the arrangements prescribed by the National Health Insurance Law and the means for determining the contents of the health services basket. At this stage we note that in 2005, when the current petitions were filed, the Ministry of Health had received requests for the addition of about 400 new medicines and technologies to the health services basket. These requests, together with the professional literature and the processed data pertaining to each request, were submitted to the Public Committee for the Expansion of the Health Services Basket (hereinafter: the Committee.) The Committee held a number of meetings, following which it prioritized the medications in an order that was influenced, inter alia, by the Committee’s assessment of the urgency of the various medications.  

The Committee’s recommendations were presented to the Government on 21 March 2005 in the framework of a debate on the budget for the addition of new technologies to the health services basket. On 13 April 2005 the Government passed a decision approving the addition to the basket of the medications and technologies listed in a table appended to its decision. This decision also determined that “…the cost of the 2005 health services basket will express the addition of technologies at an annual cost of NIS 350 million in accordance with the prices of the average health cost index of 2004….” The budgetary supplement made possible the addition to the health services basket of some of the medications recommended by the Committee. Nevertheless, certain medications for various forms of cancer were excluded from the health services basket, not having been accorded sufficient priority by the Committee. This was the background to the filing of the three petitions to this Court.

The course of events in the three petitions

2. The petition in HCJ Louzon was filed by patients suffering from cancer of the colon, and by an amuta [non-profit organization] established for the purpose of helping them. According to the petition, doctors who treated the petitioners had referred them for treatment with Avastin, but as this medication was not included in the health services basket, the petitioners were forced to purchase it independently. The medication was particularly expensive, and the petitioners were unable to continue financing it. They therefore petitioned this Court, requesting it to instruct the respondents to include Avastin in the health services basket, in the category of treatment for colon cancer.

The petition in HCJ Bar-On was filed by several petitioners suffering from prostate cancer that had progressed to the metastatic stage, which is resistant to hormonal treatment. Their doctors recommended Taxotere; this medication, too, was excluded from the 2005 health services basket.  Against this background, the petition was filed asking the Court instruct the respondents to include Taxotere in the requested category, along with other remedies.

The four petitioners in HCJ Sheiber were suffering from colon cancer and needed Erbitux, a medication which was similarly excluded from the health services basket of 2005. Owing to the high cost of the medication, this Court was requested to order that Erbitux be included in the health services basket in the category of treatment for colon cancer; the petitioners also sought additional remedies, which we will discuss below.

3.  Soon after the petitions were filed, they were scheduled for an early hearing. On 4 April 2005 the petition in HCJ Louzon was heard by President A. Barak and Justices A. Procaccia and M. Naor. That session concluded with the Court deciding to grant the order nisi sought in the petition.  On 24 May 2005 the petitions in HCJ Bar-On and HCJ Sheiber were heard by Justices E. Rivlin, E. Rubinstein and S. Joubran, and at the end of the hearing the Court decided to grant the request of the petitioners in HCJ Bar-On to file an amended petition. The Court further decided to grant an order nisi regarding some of the remedies sought in HCJ Sheiber.

After the amended petition was filed and responded to in HCJ Bar-On, and after the filing of responding depositions in the other petitions,  all three petitions were scheduled for hearing on 8 August 2005 before this panel (President D. Beinisch, Justices A. Grunis and M. Naor). At that time, the issue of funding the basket surfaced on the public agenda, and a public campaign was waged to increase the budget so as to enable the inclusion of new technologies in the basket. We deemed it appropriate to defer our judgment, pending the possibility of the petitions being resolved without the need for this Court’s intervention.

Indeed, in the State's update to this Court, it stated that on 9 April 2006 the Israeli Government decided to expand the health services basket by including new technologies, thus adding the sum of NIS 165 million to the 2006 basket. At this stage it became clear that the medications forming the subject of these petitions were not included in the budgetary supplement decided upon by the Government.  A second update submitted by the State a few months later stated that the Government had decided upon an additional expansion of the health services basket by including new technologies to the 2007 budget, at an annual yearly cost of NIS 237.28 million, which would be brought forward to the 2006 budget (Government decision No. 406). As a result of this decision, as of 20 September 2006, Avestin was added to the category of first-line treatment for metastatic colon cancer which was the subject of the first petition in HCJ Louzon. In addition, the Taxotere medication was also labeled as a first-line treatment of metastatic prostate cancer which was resistant to hormonal treatment – the subject of the HCJ Bar-On.

As noted earlier, the Erbitux medication constituting the subject of the Sheiber petition was not ranked highly enough by the Committee, and even after the budgetary supplement for the year 2006, it was excluded from the health services basket. The Government subsequently decided to increase the budgetary funding for the 2008 health services basket: initially a supplement of NIS 380 million was approved and finally an overall sum of NIS 450 million was approved. Even after the budgetary supplement, however, the Erbitux medication in the category of colon cancer remained outside the basket.

HCJ Bar-On and HCJ Louzon

4.    As mentioned, following the budgetary supplement that expanded the 2006 health services basket, Avestin and Taxotere were added to the requested categories in the 2006 health services basket. This meant that a practical solution was found for the main remedy requested in HCJ Louzon and HCJ Bar-On, even though unfortunately, this was only after most of the petitioners had already passed away.

On 27 September 2006, counsel for the petitioners in HCJ Bar-On, Adv. Sigal Zeft, informed us that since Taxotere had been included in the health services basket, the petitioners were waiving further hearing of their petition. As for HCJ Louzon, counsel for the petitioners, Advs. Orna Lin and Michal Stein, informed us on 3 October 2006 that despite the inclusion of Avestin in the category of metastatic colon cancer in the 2006 health services basket, they still felt their petition should be heard. In their view, the inclusion of Avestin in the health services basket did not obviate the fundamental arguments raised in the petition against the Committee's mode of operation and the manner in which it exercised its discretion, and a decision should be made on these arguments.  Regarding this assertion, it must be said that in general, this Court will not rule on a petition that previously related to an actual issue but has, in the circumstances, become superfluous. The High Court of Justice has already ruled that “…if the case constituting the subject of a petition is resolved, by itself or by judicial decision, the Court will no longer be prepared to consider the legal question it raises” (HCJ 6055/95 Tzemach v. Minister of Defense [1], per Justice I. Zamir, at para. 3). It is not disputed that as of 2006, there has been a solution for the remedy sought in HCJ Louzon regarding the inclusion of Avestin in the health services basket. This being the case, we see no need to rule on the series of questions raised in that petition. All the same, it is noteworthy that some of the questions raised by counsel for the petitioners in HCJ Louzon concerning the violation of the petitioners’ constitutional rights and concerning the manner in which the Committee exercised its discretion were also raised by the petitioners in HCJ Sheiber. These issues will be discussed below.

Therefore, and in view of the inclusion of Avestin and Taxotere in the requested categories of the 2006 health services basket, the order nisi granted in the Louzon case will be cancelled and the petitions in HCJ Louzon  and HCJ Bar-On will be withdrawn with no order for costs. The petition in HCJ Sheiber therefore remains for our decision.

HCJ Sheiber – the pleadings of the parties

5.       Two main remedies were requested by counsel for the petitioners, Adv. David Sasson, in HCJ Sheiber. First, this Court was requested to order the addition of Erbitux, in the category for treatment of colon cancer, to the list of approved medications in the health services basket. Secondly, the petitioners requested an order that action be taken in one or more of the ways specified in the petition, with the aim of reducing the price that cancer patients are required to pay for medications not included in the health services basket.

In their petition, the petitioners raised several main arguments. First, it was argued that the right to health is part of the right to life and bodily integrity, and the right to human dignity, which are anchored in Basic Law: Human Dignity and Liberty (hereinafter: "the Basic Law"). The claim is that the non-inclusion of the Erbitux medication unlawfully violated the petitioners’ constitutional rights, contrary to the conditions of the reservations clause. Secondly, the petitioners challenged the way in which the Committee exercised its discretion. In this context, they stressed that they were not challenging the budgetary framework determined by the Government for funding the healthcare basket. Their main argument was that the framework for funding the basket should be based on a format that provided equal funding for all life-saving or life-prolonging drugs, without preferring any particular medication at the expense of another. In this context, it was further asserted that by not including Erbitux in the health services basket, appropriate weight was not assigned to the value of saving human life, and this constituted discrimination against the petitioners in relation to other patients whose required medications were included in the basket.  

A significant part of the petitioners’ claims turned on their proposals for reducing the cost of medications not included in the health services basket, in order to help patients in financing the purchase of these medications independently. In this context, the petitioners proposed a number of solutions, including: cancellation of value added tax and other indirect taxes levied on the sale of life-saving medications; the centralized purchase by the Ministry of Health and/or the Sick Funds of life-saving drugs not included in the health services basket, in a manner that would reduce the prices for those patients who required them.

6.    Counsel for the State, Adv. Dana Briskman and Adv. Einav Golomb, whose responses were comprehensive and erudite, argued that the HCJ Sheiber petition should be denied. Regarding the petitioners’ claim concerning the unlawful violation of their constitutional rights, counsel for the State referred to the responding deposition filed in HCJ Louzon. According to the State, in the matter at hand, this Court should exercise judicial restraint and the utmost caution in the present context, and refrain from deriving a general constitutional right to health and medical care from the framework rights anchored in Basic Law: Human Dignity and Liberty.

As to the petitioners’ arguments concerning the manner in which the Committee exercised its discretion, the State responded that a decision on ranking new medications and technologies was a complex one, involving a broad spectrum of considerations, and that it was subject to the budgetary restrictions that were set in accordance with the Government’s overall scale of priorities.  Erbitux, it was argued, is a new medication, and it is not yet known whether it improves the symptoms of colon cancer patients or prolongs their lives.  Bearing this in mind, the Committee deemed that it could not be given higher priority than other medications which had been proven to be life-prolonging. The argument is therefore that the recommendation was adopted after a thorough, informed, and in-depth decision-making process, which was conducted in accordance with the law; as such there are no grounds for interfering with it.

With respect to the petitioners’ proposals to reduce the price of medications not included in the health services basket, it was argued that these proposals should be rejected in limine in view of the failure to exhaust all alternative avenues and to apply initially to the relevant authorities. The State addressed the various proposals on their substance, and presented its reasons for rejecting the petition as it related to them.

7.    The four Sick Funds in Israel are also respondents to the petition. In their responses, they argued that they are not relevant respondents to the petitioners’ request to include Erbitux in the health services basket, since under the provisions of the National Health Insurance Law, it is not the Sick Funds that determine the contents of the basket, and their role consists exclusively of the provision of the services included therein. Regarding the petitioners’ proposal for the Sick Funds to carry out a centralized purchase of the medications not included in the health services basket in order to reduce the price for their members – it was argued that the National Health Insurance Law does not obligate the Sick Funds to carry out a centralized purchase. Nevertheless, some of the Sick Funds indicated in their response that they would not oppose a centralized purchase of medications not included in the health services basket, but their consent was contingent upon the prior regulation of all aspects and questions involved in the matter.

8.    The petition in HCJ Sheiber therefore raises various issues pertaining to the health services basket in Israel. Our discussion of these questions will proceed as follows:  first, we will consider the petitioners’ argument that non-inclusion of Erbitux in the health services basket unlawfully violates their constitutional rights. We will then discuss the petitioners’ objections to the manner in which the Committee exercised its discretion in determining the contents of the health services basket. Finally, we will address the petitioners’ various proposals for reducing the prices of the medications not included in the basket.

The constitutional status of the right to health

9.    The petitioners asserted that the Committee ranked the new medications and technologies in a manner that violated their constitutional right to health, thereby contravening the conditions of the reservations clause.  The petitioners conceded that the right to health is not explicitly prescribed in the basic legislation, but claimed that it derives from the right to life and bodily integrity as well as from the right to human dignity, both of which are anchored in Basic Law: Human Dignity and Liberty.

In addressing these arguments of the petitioners, we will note at the outset the difficulty involved in defining the internal scope of the right to health, since prima facie it covers an exceedingly broad domain. In principle, the right to health can be viewed as a collective term for a cluster of rights related to human health, some of which enjoy constitutional status in our legal system. For example, the right to health includes the right to preservation of the patient’s privacy and protection of his autonomy by disclosure of all medical information concerning him and obtaining his consent to any treatment administered to him. The right to health likewise includes the right not to be discriminated against with respect to access to medical treatment. It also includes additional aspects that affect people’s health, such as public awareness and access to information on health-related matters, access to acceptable food and drinking water in suitable sanitary and environmental conditions that are not harmful to human health, and other matters as well (see: Committee on Economic, Social and Cultural Rights, General Comment 14, The Right to the Highest Attainable Standard of Health, U.N. Doc. E/C.12/2000/4, at www.unhchr.ch/tbs/doc.nsf/(symbol)/E.C.12.2000.4.En (hereinafter: General Comment 14 of the U.N. Committee on Economic, Social and Cultural Rights). Considering the many aspects of the right to health, there would seem to be no basis for examining the constitutional status of the right as one composite whole; rather, the rationales for the various rights and interests protected in its framework should be considered, in accordance with their relative social importance and with the strength of their connection to the constitutional rights enumerated in Basic Law: Human Dignity and Liberty (see and compare: Justice D. Dorner on the “right to a decent environment" in Man, Nature and Law v. Prime Minister [2], para. 2).  

10.   This petition is concerned with the right to health-care, and more precisely with the right to receive publicly funded medical/medicinal treatment.  Inarguably, the right to medical treatment is not explicitly mentioned in the framework of the basic laws concerning human rights. As is known, the attempts to enact basic legislation that would confer explicit constitutional status on social rights, including the right to health and medical treatment, have thus far failed (see e.g.: Draft Basic Law: Social Rights, HH 5754, 337; see also the proposal of Law and Constitution Committee, “Broadly-Accepted Constitution", ss. 17, 18A - www.knesset.gov.il/HUKA ; see further and cf: "Constitution by Agreement", Proposal of the Israeli Democracy Institute, ss. 32, 34 - www.e-q-m.com/clients/Huka/huka_01.htm. Taking this into consideration, the question of the degree to which the right to medical treatment enjoys constitutional status in our legal system is far from simple. This is especially the case in relation to the “affirmative” aspect of the right, which imposes upon the state a positive duty to act, the essence of which is responsibility for the public funding of health services in Israel.  One of the central dilemmas in this context would appear to lie in the definition of the internal-constitutional scope of the right to medical treatment in general, and the right to publicly-funded health services in particular.

This Court has already ruled that the right to inclusion in the national health insurance system, per se, does not enjoy constitutional meta-legal status (see HCJ 494/03 Society of Physicians for Human Rights v. Minister of Finance [3] (hereinafter: Physicians for Human Rights v. Minister of Finance), para. 18).  Alongside the aforementioned ruling, the view has been expressed in our case-law that “a person without access to elementary medical treatment is a person whose human dignity has been violated” (per President A. Barak in LCA 4905/08 Gumzo v. Isaiah [4], para. 20). It has also been determined that “… the social right to the provision of basic health services can be anchored in the right to bodily integrity under s. 4 of the Basic Law” (per President A. Barak in Physicians for Human Rights v. Minister of Finance [3], paras. 16, 18; emphasis added – D.B.). Furthermore, the view was expressed that the right to medical treatment in a medical emergency involving immediate physical distress, being a right grounded in s. 3(b) of the Patient's Rights Law, 5756-1996, may be included in the category of protected rights in the framework of Basic Law: Human Dignity and Liberty (ibid, para. 18).

Thus, it emerges from the case-law of this Court that the constitutional rights enumerated in Basic Law: Human Dignity and Liberty are likely to include various aspects from the areas of welfare and social security, including health care. However, our case-law has yet to consider directly the question of which “basic health services” are included within the parameters of the constitutional rights enumerated in the Basic Law, and whether a constitutional right to health services that extends beyond the basic level required for human existence in society should be read into these constitutional rights.  This dilemma is reflected in the pleadings of the parties in the case before us. On the one hand, the centrality of health to the maintenance of decent human existence, to the welfare of the individual and to his ability to realize all other human rights is undisputed. Where medicinal treatment with any particular potential for saving, prolonging or improving the patient’s quality of life is concerned, significant weight should be assigned to the value of the sanctity of life, the integrity of body and soul, and human dignity, all of which are central values with constitutional standing in our legal system. Regarding the receipt of publicly-funded medical treatment, the legislation of the State of Israel is characterized by a commitment to a public health system grounded in the principle of mutual responsibility and concern for the society’s indigent, as indicated by the provisions of the National Health Insurance Law, which we will address below.

On the other hand, as mentioned above, the right to public health services in the present context means imposing a positive duty on the state, the main substance of which is responsibility for public funding of medical-medicinal treatment. Naturally, the issue of the constitutional scope of that right involves general distributive questions that derive from the nature of the socio-economic regime governing a society and the scope of public resources at the state’s disposal (cf: HCJ 5578/02 Manor v. Minister of Finance [5], para. 9, per President A. Barak). Indeed, the human rights recognized in our system, which are generally referred to as “civil and political rights”, also impose upon the State “positive” duties of protecting the realization of a right, and not just “negative duties” of not violating the right. Quite often the state’s duty to protect the realization of civil and political rights also includes a “positive” duty that involves the allocation of substantial resources (see e.g. in the context of freedom of speech and demonstration: HCJ 2557/05 Mateh Harov v. Israel Police [6], per President A. Barak, at para. 14 ff.). Even so, it seems that the right to publicly funded health services, like other rights connoted as “social-economic rights”, has a dominantly "positive" character that arouses greater concern for questions of policy on social resource distribution, in accordance with the determination of a national scale of  priorities (see Guy Seidman and Erez Shaham, “Introduction: Medicine and the Law and What’s Between Them,” 6 Law and Business  13, at p. 27 (2007) (hereinafter: Seidman and Shaham).

Since its earliest days, the accepted view of this Court has been that the Court should be wary of intervening in the formulation of overall economic policy and in the determination of national priorities; the general rule is that the executive and the legislative branches shoulder the public and national responsibility for the State economy (see my comments in HCJ 4769/95 Menahem v. Minister of Transport [7], para. 13, and references cited there). Bearing this in mind, and in the absence of an explicit anchoring of social rights in basic legislation, the question that arises is to what extent can judicial-interpretative tools be used to construe the rights enumerated in Basic Law: Human Dignity and Liberty as including a right with a correlative duty to provide public healthcare services on a larger scale than that of the minimum requirements for decent human existence in a society (regarding this matter, cf. the majority opinion, as per President A. Barak, with which I concurred, in HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior [8], paras. 14-16 - that the constitutional right to human dignity includes the protection of the “minimum” for decent human existence, as opposed to the minority view of Justice E. Levi (ibid,  paras 1- 3), according to whom human dignity includes protection of “appropriate living conditions”; for a view in favor of a  broad interpretation of the  constitutional right to human dignity in the realm of welfare and social security, see e.g. Yoram Rabin, The Right to Education, at p. 370 (2002) and references cited; for other views see: Ruth Gavison, “The Relations between Civil-Political Rights in Israel and Socio-Economic Rights,” Economic, Social and Cultural Rights in Israel, 25, at pp. 34-35 (eds. Yoram Rabin and Yuval Shani, 2004); Rivka Weil, “The Health of the Budget or the Health Budget – Which Takes Preference from a Constitutional Perspective?” Law and Business 6, 157, at p. 169ff (2007) (hereinafter: Weil); Yoav Dotan, “The Supreme Court as the Protector of Social Rights” Economic, Social and Cultural Rights in Israel, at p.69 (eds. Yoram Rabin and Yuval Shani)).

 It will be pointed out below that recognition of a constitutional right to publicly funded health services raises the question of the degree of constitutional protection of that right. In other words, even assuming that the right is included, be what may the scope, in the framework of the constitutional rights enumerated in Basic Law: Human Dignity and Liberty, this does not mean it is absolute; like other rights, the right to publicly funded health services must be balanced against other competing rights and interests. Accordingly, if a constitutional right to public health services is established, the question to be considered is how to interpret and apply the conditions of the reservation clause under circumstances in which it is proved that there was a substantive violation of that right, and what are the appropriate tools for giving effect to those conditions. (On the distinction between the internal scope of a constitutional right and the extent of protection accorded to it, see Aharon Barak, Legal Interpretation, Vol. 3, Constitutional Interpretation (1995), at p. 371ff.

11.  These dilemmas are complex, and they trigger questions relating to various aspects, which I will not discuss here. I will simply mention that the right to health has indeed gained recognition in various international conventions, and it is included in the constitutions of a number of states around the world.  Nevertheless, the delineation of the internal scope of the right and the extent to which it is protected remain vague, and they are characterized by a cautious approach that considers the budgetary capabilities of each state and the principle of the progressive realization of the right. For example, in 1946 the Constitution of the World Health Organization (WHO) recognized the basic right to health, but the scope of this right is defined as “the highest attainable standard of health" [emphasis added – D.B]; (see also: Eyal Gross, “Health in Israel: Right or Commodity?” Economic, Social and Cultural Rights in Israel, 437, 442-443 (Yoram Rabin and Yuval Shani eds, 2004) (hereinafter: Gross).  As for the Universal Declaration of Human Rights of 1948: this Convention entrenches a number of social human rights, including the right to a decent standard of living which includes aspects of the right to health and to medical treatment.  At the same time, the Preamble to the Declaration states that these rights are to be realized by “progressive measures”.

One of the central international documents concerning the right to health is the International Covenant on Economic, Social and Cultural Rights of 1966, which was ratified by the State of Israel in 1991. Section 12 of the Covenant states that Party States to the covenant “… recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” [emphasis not in original – D.B], and that the States must take the required steps to ensure, inter alia, “the creation of conditions which would assure to all medical service and medical attention in the event of sickness.” Section 2 of the Covenant adds that each Party State will take steps “…to the maximum of its available resources, with a view to progressively achieving the full realization of the rights” (on other international conventions and documents on the right to health, see: Gross, at pp. 443-445).  Thus we see that the international conventions that recognize the right to health and medical treatment take budgetary constraints into consideration, and are cautious in determining the scope of this right and the degree of protection it is accorded.

On the internal constitutional level, the constitutions of many states, including Canada and the U.S.A, do not confer explicit constitutional status upon the right to health. The constitutional law of these states protects only limited aspects of this right. On the other hand, s. 27 of the South African Constitution confers explicit constitutional status upon the right of access to medical treatment. However, the South African Constitution adds that the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realization of each of these rights (for the text of the South African Constitution, see http://www.info.gov.za/documents/constitution/1996/96cons2.htm#27). It should be noted that the constitutions of India and Holland expressly entrench the right to promote public health, but this right is not enforceable by the judiciary and it is only a type of fundamental principle that is intended to guide the actions of the executive and the legislative authorities (see Gross, at pp. 462-463; Guy Seidman, “Social Rights: A Comparative Perspective on India and South Africa,” (347, at pp. 356, 370) (Yoram Rabin and Yuval Shani eds, 2004)).

A comparative analysis reveals that while the right to health and medical treatment is recognized on the international level and in the constitutions of several states world-wide, the scope of this right, the degree to which it is protected, and the manner of its realization vary from state to state, and are characterized by a cautious approach that is influenced, inter alia, by the availability of public resources and by the economic capabilities of each state (see Aharon Barak, “Introduction,” Economic, Social and Cultural Rights in Israel, 8-9 (Yoram Rabin and Yuval Shani eds, 2004)). In general, the question of the scope of public health services is not exclusive to Israel and it characterizes, in varying degrees, to all states in the world, for no state is capable of funding unlimited health services, which are constantly becoming more sophisticated and more expensive due to medical and technological developments.  The system for funding health services provided to the public also varies from state to state according to different models (private funding, public funding or a combination thereof), in accordance with the economic regime governing that particular state, its social priorities, and its budgetary capabilities (see Seidman and Shaham, at pp 40 - 42; on the system for funding health services in Canada, the U.S.A and England, see Yuval Karniel, “The Basket of Medications – Doctors, Judges and the Media,” Law and Business 6 (2007), at pp. 225, 231 (hereinafter: Karniel)). Our case-law has already held that “[e]ach state has its own problems. Even if the fundamental considerations are similar, the balance between them reflects the particularity of each society and that which characterizes its legal arrangements" (per President A. Barak in HCJ 4128/02 Man, Nature and Law v. Prime Minister [2], at para. 14). Against the background of the above, it can be said, in sum, that the definition of the scope of the constitutional right to public health services, the extent of its constitutional protection, and the provision of measures for its enforcement are complex issues. As such our treatment of the right in case law requires caution and moderation.

12.              The petition in HCJ Sheiber does not require a decision on the entire complex of questions pertaining to the constitutional status of the right to medical treatment in general, and the right to publicly funded health services in particular. This is because the petition is not concerned with the constitutionality of a Knesset statute; rather, it concerns the manner in which the competent authorities exercised their discretion in determining the contents of the health services basket. Bearing that in mind, I will confine myself to a short comment on the constitutional aspect as it relates to the circumstances of this case.

As mentioned, the petition in HCJ Sheiber is directed against the non-inclusion of Erbitux in the publicly funded health services basket. Erbitux is an innovative medicine for the treatment of colon cancer. As will be elucidated below, there is no consensus regarding the effectiveness of this medication in the saving or even the prolonging of life; the research data from studies of this medication are still disputed, and the medication is expensive. I therefore tend to the view that this particular medication, and other similarly experimental innovative medications, would not fall within the rubric of the basic health services required for minimal human existence in society. Indeed, for patients suffering from life-threatening illnesses, any medication that offers some chance to save or at least to prolong their lives, even if only for a short time, is of critical, inestimable value. At the same time, from a broad social perspective and given the limitations of the public resources, I doubt whether the demand for public funding for these innovative medications has a handle in the hard kernel of constitutional rights enumerated in the Basic Law.

Furthermore, even according to an exegetical approach that extends the constitutional scope of the right to human dignity beyond the level of the basic minimum in the area of welfare and social security, it would appear that only in extreme and exceptional circumstances would the state be constitutionally obligated to fund a specific medication, one of many in respect of which applications are submitted for public funding. In this than necessary in national context, it is noteworthy that in view of their reluctance to intervene more -economic scales of priorities, courts the world over refrain from ruling that the lack of public funding for a concrete medical treatment amounts to a violation of the patient’s constitutional right.  (For exceptional circumstances in which it was ruled that a violation of a constitutional right had been proved, see and compare: Minister of Health v. Treatment Action Campaign, CCT 8/02 [31]. In that case, the South African Supreme Court obligated the Government to enable the distribution of medicinal treatment designed to prevent the transmission of the AIDS from mothers to their children, under circumstances in which the medicine was provided free of charge to the Government by the manufacturer).  Considering all the above, it would appear that in the petitioners’ case it has not been proven that a meta-legal constitutional right has been violated, and their rights must be thus be examined in accordance with the normative-legislative framework that will be discussed below.

The legal right to public health services

13.  As noted, HCJ Sheiber is not concerned with the constitutionality of Knesset legislation, and consequently I saw no need to rule on the complex of questions arising with respect to the constitutional status of the right to publicly funded medical treatment.  It should however be stressed that the right to public health services exists in its own right as a legal right, in other words, as a right that stems from Knesset legislation as interpreted in case law and in the spirit of the obligations of the State on the international-conventional level,  with no necessary connection between the aforementioned legal right and the constitutional rights enumerated in Basic Law: Human Dignity and Liberty (cf. the right to education: HCJ 2599/00 Yated Association of Children with Down Syndrome v. Ministry of Education [9], para. 6, per Justice D. Dorner and references there; HCJ 7351/03 Rishon Le-Zion Municipal Parents Committee v. Minister of Education, Culture and Sport [10],  para. 4 of my judgment). The question therefore arises as to the substance and scope of the legal right to public health services in Israel, and whether this right been unlawfully violated in the circumstances of the petitioners' case.

14.  The scope of the State's responsibility to ensure the access to and provision and funding of health services in Israel is set forth in our legal system in various pieces of legislation.  S. 3(a) of the Patient's Rights Law, 5756-1996 (hereinafter: "Patient's Rights Law"), entitled "The Right to Medical Treatment” prescribes as follows:

3.     (a)  Every person in need of medical care is entitled to receive it in accordance with all laws and regulations and the conditions and arrangements obtaining at any given time in the Israeli health care system.

S. 3(a) of the Patient's Rights Law explicitly provides that the scope of the right to medical treatment in Israel derives, inter alia, from the statutory provisions applying to the matter. It should be mentioned that s. 5 of the Patient's Rights Law, entitled “Proper Medical Care” supplements the provision of s. 3(a) in providing that: “A patient shall be entitled to proper medical care, having regard both to its professionalism and quality, and to the personal relations incorporated in it.”  S. 3(b) of the Patient's Rights Law further provides that –

          (b) In a medical emergency, a person is entitled to receive unconditional urgent medical treatment.

It should be stated immediately that the petitioners avoided basing their claims before us on the provisions of s. 3(b) of the Patient's Rights Law. Indeed, it would appear, prima facie, that under its current categorization, Erbitux could not qualify as urgent medical treatment for a medical emergency under the provisions of s. 3(b); it is a relatively new medication, intended to prolong life under circumstances of grave protracted illness; the research data regarding its categorization is disputed, and it is not included in the basket (see the ruling of the South African Constitutional Court, whereby the right to “emergency medical treatment” under s. 27(3) of the Constitution does not apply to dialysis treatment given for the sake of prolonging life in a chronic medical condition of a protracted illness: Soobramoney v. Minister of Health [32]). It should be mentioned that in the circumstances of the case before us, similar reasons underlie the non-application of the provisions of the Do Not Stand on Your Neighbor's Blood Law, 5758-1998 [Israeli Good Samaritan Law- trans], which the petitioners cited in their pleadings.

       15. Another major piece of legislation with ramifications for the substance and the scope of the legal right to public health services is the National Health Insurance Law. Prior to the enactment of this Law, health insurance in Israel was voluntary. There was no legal obligation to take out medical insurance, and a person not insured as a member of one of the Sick Funds was obligated to pay for all medical treatment that he received (on this matter see CA 5557/95 Sahar Insurance Company Ltd v. Alharar [11],  para. 12 per (former title) Justice Theodor Or). The National Health Insurance Law was designed to change this situation. The purpose of the Law was to create a compulsory health insurance system in order to guarantee health services for the entire Israeli population, while defining the funding sources of the public health system and their allocation. The National Health Insurance Law was based on recognition of the state’s responsibility for funding public health services for the general benefit, to be provided to the public by way of the Sick Funds, deriving from the state’s commitment to “principles of justice, equality and mutual assistance” as stated in s. 1 of the Law.

The substance and the scope of the legal right to public health services are laid down in s. 3 of the National Health Insurance Law, entitled "The Right to Medical Services", which provides as follows:

3. (a) Every resident is entitled to health services under this law, unless he is entitled to them by virtue of another law.

…

(b)  The State is responsible for the funding of the health services basket from the sources enumerated in section 13.

(c ) The Sick Fund is responsible to  any person registered with it for all of the health services to which he is entitled under this law.

(d) The health services included in the health basket shall be provided in Israel, according to medical discretion, of a reasonable quality, within a reasonable period of time, and within a reasonable distance from the insuree's residence, all within the framework of the funding sources available to the Sick Funds under section 13.

(e) Health services will be provided while preserving human dignity, protection of privacy and preserving medical confidentiality [emphasis not in original – D.B.]

From the provisions of s. 3 and the other provisions of the National Health Insurance Law, it emerges that a special relationship between the insured parties, the Sick Funds, and the State is established in that Law. The Law obligates the insured parties – consisting of all residents of the State – to pay insurance premiums at a progressive rate calculated in accordance with the insured party’s level of income, as specified in s. 14 of the Law. This gives expression to the principle of mutual responsibility, the aspiration being for each insured party to pay according to his ability and receive according to his needs, out of consideration for the weaker members of society (see: Report of the National Committee of Inquiry for Examining the Operation and Effectiveness of the Israeli Health System, vol. 1,  81 – 82 (1990) (hereinafter: Netanyahu Report); Carmel Shalev, Health, Law and Human Rights (2003), 202 (hereinafter: Shalev); on the principle of detaching the receipt of medical treatment from the ability to pay for it, and the gradual erosion of this principle over the years due to amendments introduced into the National Health Insurance Law, see Gross, at  p. 471 ff).

Under the provisions of the National Health Insurance Law, the Sick Funds are responsible for providing all their registered insured members with all of the health services under the Law, apart from a limited number of health services, the provision of which is the responsibility of the Ministry of Health (see s. 3(c) as cited above, and s. 69 of the Law). The health services that insured members are entitled to receive directly from the Sick Funds are mainly those health services included in the "health services basket" as defined in s. 7 of the Law.  It should be noted that prior to the enactment of the National Health Insurance Law, there was no uniform basket of services, and each Sick Fund exercised independent discretion in its determination of the healthcare services to be provided to its members, regarding both the composition and the scope of services. The National Health Insurance Law changed this situation by fixing a single basket that was binding upon all of the Sick Funds.

Whereas the Sick Funds are responsible for the provision of the services included in the public health services basket, the State is responsible for funding the basket. The National Health Insurance Law contains specific provisions relating to the calculation of the cost of the basket, and to the sources from which it is funded.  Section 9(a) of the Law fixes the “basic cost” of the basket; this is updated annually in accordance with an automatic-technical formula that is based on the rate of increase of the health cost index as specified in the Fifth Schedule of the Law. Once the cost of the basket for a particular budgetary year is set, the State is responsible for funding the basket by means of the funding sources listed in s. 13 of the law. Section 13 contains a list of sources for funding the healthcare services provided under the Law, including health insurance dues paid by insured members, sums of money collected by the National Insurance Institute, certain sums from the budget of the Ministry of Health, and others.  The funding sources for the basket include “additional sums from the state budget as determined annually in the Budget Law, and which supplement the funding of the cost of the basket borne by the Sick Funds …”. Thus, the annual Budget Law serves as a central funding source that supplements the other statutory funding sources of the health services basket.

It should be mentioned as an aside that over the years, there has been extensive criticism of the statutory mechanism for adjusting the cost of the basket. The main objection in this context is that the health cost index is inadequate for the purpose of adjusting the funding of the health services basket to the real increase in the cost of the basket which stems, inter alia, from the growth in the national population, the increase in the average age of the Israeli population, and the constant technological progress in the field of medicine (see Shalev, at pp 229 – 232, 269-270; Gross, p. 495 ff; Daphne Barak-Erez, “The Israeli Welfare State – Between Legislation and Bureaucracy,”  9 Labor, Society and Law   175, at p. 181 (2002); see also HCJ 2344/98 Macabbi Health Services v. Minister of Finance [12], per (former title) Justice M. Cheshin)). Over the years, the Finance Ministry rejected recommendations for the establishment of a substantive mechanism to supplement the technical mechanism currently fixed by the Law on grounds of budgetary constraints.  A number of petitions contesting this conduct were submitted to this Court, but ultimately this Court refrained from intervening in the aforementioned policy of the Finance Ministry, for the reasons outlined in the decisions (see HCJ 9163/01 General Health Services v. Minister of Finance [13], per (former title) Justice M. Cheshin; see also Macabbi Health Services v. Minister of Finance [12]). Various draft laws for establishing a substantive mechanism for adjusting the real cost of the health services basket did not evolve into legislation. This being the situation, the Government retains broad discretion in determining the amount of the annual supplement to the cost of the basket, above and beyond the supplement mandated by the health cost index. 

16.  The entire body of arrangements prescribed by the Patient's Rights Law and the National Health Insurance Law leads to two main conclusions regarding the substance and the scope of the legal right to public health services in Israel. First, given that the purpose of the National Health Insurance Law is to grant rights to all residents of Israel by way of a national health insurance, as opposed to private risk insurance; and given that the public health services included in the health services basket are subject to the funding sources listed in s. 13 of the Law, among them the Annual Budget Law - it is clear that the health services basket does not purport to include the entire range of possible medical services, at the optimal scope and level as may be required by an individual. This point was made by (former title) Justice T. Or, writing as follows:

‘…As we saw, the Health Law establishes a basket of services. It does not purport to provide all of the medical services that are or may be required by those insured by the Sick Funds…the existence of a health system is dependent upon its financial balance, and the existing financial sources do not guarantee the provision of all the possible medical services…

It thus emerges that the provision of medical services by the Sick Funds cannot always provide all of the medical services required by a sick or injured person who is insured by the Fund’(CA 5557/95 Sahar [11], para. 19).

Secondly, the purpose of the National Health Insurance Law and the body of arrangements it prescribes, and s. 5 of the Patient's Rights Law which determines the right to ‘proper medical service’ - necessitate the conclusion that at this point in time, our legal system recognizes a legal right to public health services that extends beyond the minimum core of basic health services required for decent life in a society.  Naturally, it is difficult, perhaps even impossible, to define precisely the scope of this legal right.  Nevertheless, we can speak of a right with a core and an outer casing. The core of the legal right to public health services includes all the public health services that the state is obligated to fund.  Section 7(a) of the National Health Insurance Law classifies these as the “basket of basic services” provided by the General Histadrut Sick Fund prior to 1.1.94 (just before the Law came into force); with the addition of the automatic technical adjustment in accordance with the health cost index as specified in s.9(b) of the Law (hereinafter: the basic basket). The public funding of this basic basket constitutes a defined statutory obligation in terms of its scope and quantity, and indisputably, the state is powerless to shake off this obligation by claiming that there is no budgetary coverage for its liability (see and compare: HCJ 1554/95 Supporters of Gilat Amuta v. Minister of Education, Culture and Sport [14], per (former title) Justice T. Or, at para 21; HCJ 2344/98 Macabbi Health Services v. Minister of Finance [12]; HCJ 2725/92  Macabbi Health Services v. Minister of Finance [15], per Justice S. Joubran, at para. 47).

Within the outer casing of the basic right to public healthcare services are all other health services that are not included in the framework of this basic basket. Pursuant to the provisions of the National Health Insurance Law, the right to extend the health services basket beyond the basic basket is a right of the type that (former title) Justice Cheshin dubbed “budget-dependent rights” (Macabbi Health Services v. Minister of Finance [15], paras. 35-40). By their very nature and essence, these rights are a function of the policy that has its source in the Annual Budget Law. Indeed, as explained above, s. 13 of the National Health Insurance Law states that the Annual Budget Law shall serve as a funding source that supplements the other sources of funding of the health services basket. This means that the Budget Law determines the additional funding for the addition of new technologies and medications to the health services basket, such that “without a budget there is no right” to the expansion of the basket (see and compare: Macabbi Health Services v. Minister of Finance [15], at p. 39). This arrangement may indeed be consistent with the conception endorsed by international conventions and in the legal systems of other states, whereby the scope and extent of realization of the right to health and medical treatment is subject to the economic capability of the state and the resources at its disposal (see para. 11 ibid).

17.    Under the current legal position, the scope of the legal right to public health services beyond the basic basket derives from the Annual Budget Law. At the same time, I should mention that the budgetary limitation is not a permanently unsurpassable ceiling.  The International Covenant on Economic, Social and Cultural Rights, which, as noted, was ratified by Israel in 1991, determined that the State Parties must take steps for the progressive realization of the right to health recognized in s.12 of the Covenant. The meaning of the obligation of progressive realization was discussed in General Comment 14 of the U.N. Committee on Economic, Social and Cultural Rights – which is the authorized interpretation of s.12 of the Covenant. General Comment 14 provides inter alia that in circumstances in which retrogressive measures are taken that impede the progress already achieved in relation to the right to health, the State party has the burden of proving that the measures are necessary in view of the State party's maximum available resources (see para. 32 of General Comment 14 ibid).  This, then, is the position on the level of the conception of the international undertakings. In the spirit of these principles the question that is likely to arise in our legal system is whether a serious reduction in the funding of the health services basket - including by way of significant cumulative erosion of the funding of the basket in the absence of a substantive mechanism for a real adjustment of its cost - transfers the burden to the State to show that this reduction is indeed justified and dictated by reality. The question is one of interpretation: the legal right to the expansion of the health services basket is indeed budget-dependent in accordance with the provisions of the National Health Insurance Law, but the question is whether it is appropriate to interpret its scope taking into consideration the principle of progressive realization, and in the spirit of Israel’s undertakings on the international level? This question is not currently under discussion and I prefer to leave it as pending.

18.    In the circumstances of this case, does the non-inclusion of Erbitux in the Health services basket unlawfully violate the petitioners’ legal right to receive publicly funded health services?  There is no dispute that Erbitux was not included in the basic basket as defined in s. 7 of the Law (see para. 16 supra). Therefore, the demand for public funding for Erbitux is “budget-dependent”. In this context it should be stressed that the petitioners in HCJ Sheiber refrained from challenging the budgetary framework allocated by the Government for the expansion of the health services basket, and rightly so under the circumstances.  In both his oral and written pleadings, counsel for the petitioners stressed that the petition is not aimed at increasing the budget earmarked for the health services basket; it is directed primarily against the authority of the Committee and the manner in which it exercised its discretion in determining the contents of the health services basket in the framework of the existing budget.

I will state right away that we have examined the petitioners’ arguments against the Committee’s authority and its mode of operation, and our conclusion is that there are no legal grounds for our intervention on that count; nor has it been proven, in the circumstances of the case, that the petitioners’ legal right to receive public healthcare services was unlawfully violated.  In order to elucidate our reasons for this conclusion, we will first consider the manner of determining the composition of the health services basket, the nature of the Committee and its subordination to the rules of public law. We will then proceed to discuss the petitioners’ arguments against the authority of the aforementioned Committee and the manner in which it exercised its discretion.

Determining the composition of the health services basket

19.  As mentioned, s.7 of the National Health Insurance Law defines the initial contents of the health services basket (the basic basket), in a manner that reflects the framework of health services that were provided by the General Histadrut immediately prior to the date on which the Law came into force. Naturally, in view of the rapid developments in the world of science, and taking into consideration the accelerated development of new medical technologies in the face of the steadily increasing needs of the Israeli population, it frequently becomes necessary to examine the possibility of adding new medications and technologies to the health services basket. In this context, s. 8(e) of the National Health Insurance Law prohibits the addition of medications and technologies to the health services basket in the absence of a suitable funding source to cover the additional cost involved (on the questions of interpretation raised by this section, see HCJ 1829/02 General Health Services v. Minister of Health [16], per Justice E. Grunis, para. 5). Section 8(b)(1) of the National Health Insurance Law further provides that any addition of new medications and technologies to the health services basket involving additional costs must be by virtue of a decision of the Health Minister, with the agreement of the Minister of Finance and the approval of the Government.

20.    When there has been a decision to allocate a budgetary supplement to fund an expansion of the health services basket, how is it decided which new medications and technologies to include in the framework of the basket? As transpires from the State’s response, the adoption of decisions on this matter is subject to a complex process comprising several stages:

Each year the Ministry of Health sends out a “public appeal” for the submission of requests to include new medications and technologies in the Health services basket. The requests are submitted by a variety of bodies – professional, public, commercial and private. After collecting the requests, the process of gathering data and professional evaluation begins. This process is conducted by the Technologies and Infrastructure Administration in the Ministry of Health, with the assistance of additional professional bodies both inside and outside the Ministry of Health. Upon completion of this process, and after the formulation of the recommendation of the professional bodies in the Ministry of Health, the professional background material is transferred to the Committee.

This Committee conducts its deliberations regarding the requests submitted to it, taking into account all the professional material made available to it. From the State’s response, it emerges that at the initial stages of the Committee’s deliberations, each medication is evaluated and graded numerically in order to serve as an auxiliary tool for the basic classification of the various technologies. At the advanced and final stages of the deliberations, the Committee prioritizes the various technologies and recommends the adoption of a final scale of priorities among the technologies, taking into account the given budgetary framework.

The Committee’s recommendations regarding the ranking of new medications and technologies are presented to the plenum of the Health Council, which is authorized under the Law to advise the Minister of Health on changes in the basket. Following all these stages, and in the event that the recommendations are accepted by the Minister of Health, they require the consent of the Minister of Finance and confirmation of the Government, pursuant to s. 8(b)(1) of the Law, for the purpose of confirming the funding sources for the expansion of the basket.  At the end of the process the recommendations are anchored in an Order issued by the Minister of Health.

The Committee thus plays a central role in ranking the new medical technologies, and its recommendations affect the contents of the basket in the event of a budgetary decision being adopted for its expansion. We will now focus our attention on this Committee.

The nature of the committee and its subordination to the rules of public law

21.    The Committee is appointed by virtue of an administrative decision of the Minister of Health, and it operates on behalf of the Health Council, which is authorized to advise the Minister on matters pertaining to “changes in the health services basket, taking into account, inter alia, new technologies and their costs (s. 52(1)(b) of the National Health Insurance Law). The authority to appoint the Committee is found in s. 48(f) of the National Health Insurance Law, which provides that the Health Council, headed by the Minister of Health, is authorized to appoint committees from amongst its members, and to have recourse to experts who are not members. The appointment of the Committee might also be anchored in the general ancillary competence of the Minister of Health to voluntarily consult with others in the exercise of his authority, and to establish suitable bodies for the purpose of such consultation (see s. 17(b) of the Interpretation Law, 5741-1981; and see Itzhak Zamir, Administrative Authority, vol.1, at pp. 190-191, 246-247 (1996) (hereinafter: Zamir)).

The Committee's role, therefore, is to advise the relevant bodies on the prioritization of new medical technologies for the purpose of expanding the health services basket. Work of this kind undoubtedly requires expertise, experience and broad understanding in order to strike the appropriate balance between all of the relevant considerations, which are multi-disciplinary and complex, as will be specified below. With this in mind, the Minister of Health, in conjunction with the Minister of Finance, decided to include experts from different fields on the Committee: representatives of the doctors, representatives of the Sick Funds, economists, and public representatives. This composition of the Committee was designed to assist it in evaluating new medical technologies and accepting recommendations from a broad social perspective, taking into consideration the professional-medical aspects and the various public considerations involved in the addition of new medications and technologies to the medical services basket, all within the framework of the resources allocated by the Government to the health services basket for the relevant budgetary year.

22. It should be stressed that although the Committee is not a statutory body, and although it includes public representatives who are not personally subordinate to the appointing minister, the Committee is part of the public administration and its actions are governed by the rules of public administration (on the proposal to refer to bodies of this kind as "satellite bodies", see Zamir, at p. 413, 421). It should be mentioned that State counsel did not dispute this, and in their summations they assumed that the Committee was indeed bound by the rules of Administrative law. 

In view of the above, it is agreed that the Committee is obliged to act reasonably and fairly, basing itself on relevant considerations and the principle of equality, and conducting correct administrative proceedings in the spirit of the principles laid down in the National Health Insurance Law. Furthermore, in view of the Committee’s unique composition, its professionalism and its expertise regarding the sensitive and complex questions which it considers, it is given relatively broad leeway in the exercise of its discretion.  As a rule, this Court will not substitute itself for the  Committee, and will not rush to intervene in the Committee’s exercise of its discretion, as long as the latter's recommendations were the product of a correct process and as long as it did not deviate substantively from the framework of relevant considerations that it ought to have considered, or from an appropriate balance of these considerations within the parameters of reasonableness (cf: HCJ 7365/95 Bolous Brothers- Marble and Granite Production Ltd  v. Investments Centre [17], per  Justice I. Zamir, para. 4).

23.    In concluding this part of the hearing, I will say that from the outset, there was no obligation to anchor the actual establishment and operation of the Committee in legislation, in that it is a body established for advisory purposes, as explained above. Over time however, the Committee has become a factor that wields major influence on the updating of the contents of the health services basket, inter alia in view of the general tendency of the Minister of Health to endorse the Committee's recommendations on prioritizing the various medical technologies.  Considering the Committee's influence and the complexity of its work due to the gravity of the matters with which it deals, and in view of the pressures applied by various interested parties, this would seem to be an appropriate time to consider anchoring its activities in an appropriate statutory framework that would determine the manner of the Committee’s appointment, its composition, its powers and its work procedures. Such anchorage is likely to assist in the regulation of the Committee's activities, considering the particular sensitivity of the difficult and important issues with which it deals (see and compare: Guy I. Seidman, "Regulating Life and Death: The Case of Israel's 'Health Basket' Committee", 23 J. Contemp. Health L. & Pol'y 9, 30 (2006); Karniel, at pp. 234-235; regarding other advisory bodies established by force of an administrative decision and subsequently anchored in appropriate legislation, see: Zamir, at pp. 415-416). Those responsible for these matters would therefore do well to consider appropriate statutory regulation of the Committee and its activities.

Discussion of the petitioners’ arguments against the manner in which the Committee exercises its discretion

24.  The petitioners in HCJ Sheiber raised several major arguments against the manner in which the Committee exercises its discretion in general, and against its recommendation not to give Erbitux a high ranking on the scale of priorities in particular.  First,  they argued that the Committee overrated the budgetary consideration and that its recommendations, which translated into a relatively low ranking for life-saving or life-prolonging medications, were made unlawfully, due to the failure to ascribe the requisite importance to the value of saving human life.  Secondly, the petitioners challenged the criteria that guided the Committee in its prioritization of the new medical technologies.  The main argument in this context was that in the framework of the budget allocated for funding the basket, the funding should be based on an equal rate for all life-saving or life-prolonging medications, without preferring one medication over others and without attaching weight to the chances of recuperation offered by the different medications. Thirdly, it was argued that the exclusion of Erbitux from the health services basket amounted to unlawful discrimination because it discriminated against the petitioners vis-à-vis other patients whose essential medications were included in the basket.

25.    Having heard the parties and having examined the material in the file, our conclusion is that the petitioners’ arguments should be rejected. I will preface the discussion by clarifying that under settled case law, and as part of its obligation towards the public, a public authority is permitted, and even obliged, to consider budgetary constraints in exercising its discretion. This is especially the case when the law empowers the authority to determine alone, at its own discretion, the precise scope and limits of the entitlement to a public service, in a manner that requires fixing a scale of priorities in accordance with limited public resources. As stated by Justice S. Netanyahu:

‘No society has unlimited resources. No statutory authority operating in a society is permitted and able to ignore budgetary constraints and to provide services without any kind of accounting, no matter how important and urgent they may be …

Every authority is faced with the need to strike a proper balance between the scope, the manner and the degree to which it discharges its functions-obligations under the law on the one hand, and its obligation to maintain its budgetary framework on the other. It can never fully discharge all of these and fulfill all its functions optimally without taking budgetary restraints into account. It must establish its own scale of preferences and priorities, and guiding rules and criteria for their implementation; these must meet the test of reasonability, and be exercised on the basis of equality’ (HCJ 3472/92 Brand v. Minister of Communications [18], para. 4; see also HCJ 3627/92 Israel Fruit Growers Organization Ltd. v. Government of Israel [19], per Justice E. Mazza, para. 5).

            As clarified above, the National Health Insurance Law expressly prohibits the addition of services to the health services basket in the absence of a suitable source of funding. Consequently, the budgetary consideration is a legitimate and relevant one, which the Committee is entitled to consider in its prioritization of the new medical technologies.  Our case law has already held that "[o]ne cannot ignore the fact that even in a matter as sensitive as health, budgetary factors must be considered," (per Justice A. Grunis in HCJ 2453/06 Israeli Medical Association v. Attorney General [20], para.3; see also Justice M. Naor in HCJ 4004/07 Turonshwili v. Ministry of Health [21], para. 6).  This in no way implies contempt for the sanctity of human life; rather, it constitutes recognition of the inherent constraints of a reality in which budgetary resources are limited and must be divided amongst all of the national and social needs that make prioritization necessary.

26. Further to the above, it should be noted that the National Health Insurance Law is silent on the method of prioritizing the various medical technologies for purposes of expanding the basket.  Nevertheless, it is settled case law that the public body's authority to allocate limited resources may also entail the authority to determine the method of allocation and the scale of priorities (see HCJ 4613/03 Shaham v. Ministry of Health [23], per Justice E. Levy, para. 7).

The Committee's job of advising the Ministry of Health and the Health Committee on the prioritization of the various medical technologies is undoubtedly an exceedingly difficult, complex and sensitive task (on the dilemmas involved, see: Netanyahu Report, at p. 100). The State attached a document to its written pleadings in which it laid out the criteria set by the Committee for ranking the various technologies and medications it considered. These criteria include the following considerations: the effectiveness of the technology in treating the disease; the ability of the technology to prevent the disease; the ability of the technology to save life or prevent death; the prolonging of life and the anticipated quality of life; the existence of an alternative treatment and examination of the effectiveness of that alternative; experience in or outside Israel in the use of the technology; economic cost on the individual and national levels; the number of patients who stand to  benefit from the medication; the anticipated benefit of including the technology in the basket in the short and long terms, and others.

These are general criteria, and they were not ranked by the Committee in order of importance or weight.  The State’s position on the matter was that since the subject is a particularly complex one, the perspective must be broad and comprehensive and it is not possible to adopt rigid and unequivocal rules that would lead to the creation of a type of mechanical formula for resolving the public, economic, value-based and ethical dilemmas involved in determining the scale of priorities.  In this context, the State emphasized that the consideration of saving or prolonging life was accorded great weight by the Committee when ranking the medical technologies under discussion. Nevertheless, like the other above-mentioned criteria, the consideration of saving or prolonging life is neither exclusive nor determinant, due to the need to consider all the other relevant considerations such as the number of people requiring the medication, alternative treatments and their effectiveness, the patient’s quality of life, the overall cost in relation to other medications and others. In this context, the State added that the medications basket is not meant to include only medications that are designed to cure existing illness: it also includes a variety of other medications, such as medications with long term preventative qualities, medications that prevent complications and aggravation of existing illnesses, and medications that very significantly affect the quality of life, such as the prevention of serious disabilities and suffering.  

27.  After considering the matter, we have concluded that the criteria presented could not be faulted in any way that might create grounds for our intervention. In view of the complexity of the questions confronting the Committee and the fact that they involve a variety of aspects – legal, ethical, philosophical, moral, economic and others – it cannot be said that the criteria that served the Committee were irrelevant or unreasonable to a degree that necessitates the intervention of this Court. For example, it cannot be said that the consideration of the effectiveness of the medication and its contribution to the patient’s chances of recovery is an illegitimate one, as argued by the petitioners. In circumstances in which there is a limited budget, and the countless needs must be prioritized, the effectiveness of the medication is a legitimate factor which can and should be considered.  As for the criterion of the economic cost of the medications - as mentioned, the Committee is entitled to consider the budgetary aspect, and this has ramifications for the prioritization of the different medications.  Accordingly, the cost of the medications constitutes a relevant factor which the Committee is permitted to take into consideration.

We would add that in view of the complexity of the relevant considerations, and considering the need for a broad value-based, public perspective in order to find the golden path between the various needs, we felt that the fact that the Committee refrained from a rigid ranking of the criteria it invoked in order of their importance could similarly not be faulted so as to necessitate our intervention. It should be recalled that the Committee’s discretion is not based on minimum-achievement tests, the satisfaction of which creates an entitlement to public funding, but rather on complex and sometimes conflicting criteria by means of which the Committee is supposed to recommend which medications are to be included in the Basket and which rank lower on the scale of priorities. In view of the Committee’s unique composition, its expertise and its professionalism, it would appear that we cannot dismiss the State’s position whereby the Committee should be granted wide discretion that will allow it to assess the weight of the relevant considerations in their entirety from a broad and comprehensive perspective. Nevertheless, further to our recommendation in para. 23 above regarding the regulation of the activities of the Committee by way of an appropriate statutory source, it seems that suitable statutory anchorage of the criteria that should guide the Committee ought to be considered. In that framework, the question of whether it is possible and desirable to determine a hierarchy of the various criteria in order to guide the Committee in the exercise of its discretion should be considered as well.

28. As mentioned, the petitioner proposed adopting a different method of prioritization from the one currently used; this new method would grant equal funding to all life-saving or life-prolonging medications. The petitioners proposed that a certain percentage of the cost of all the medications be funded, without preferring any particular medication over another and without deviating from the existing budgetary framework.

Regarding this proposal, we will comment that no data relating to the feasibility of its implementation from a budgetary perspective has been presented to us. However, even if we assume, for argument's sake, that the petitioners' proposal for equal allocation to all the medications is a viable one - and as stated, no data was provided on this point – it is clear that this proposal too has its disadvantages and difficulties (for example, medications which are currently fully funded would, according to the petitioners' proposal, be only partially funded, thereby increasing the degree of self-participation in relation thereto).  Furthermore, there is substance to the State's claim that the petitioners' proposal is incompatible with government policy whereby priority should be given to certain medications, inter alia, in accordance with their quality and effectiveness. Prima facie, the petitioners' petition is similarly at odds with the basic conception underlying the National Health Insurance Law, i.e. that the medications basket should provide a solution not only for life-saving or life-prolonging medications but also for a broader range of medical technologies required for the health of the population. At all events, the question of how a scale of priorities should be determined in the allocation of public resources in the area of health services is controversial, admitting a variety of views. It is not up to us to recommend the adoption of one system of prioritization over another, as long as the current criteria comply with the provisions of the National Health Insurance Law, and are based on relevant and reasonable considerations, and as long as it has not been proved that the criteria substantively upset the proper balance between the relevant considerations, or that Committee substantively and clearly deviated from the bounds of reasonability.

29. As for the decision adopted in the particular case of the Erbitux medication, forming the subject of HCJ Sheiber, it emerges from the State’s response that this medication was registered in Israel's Drugs Registry on 10 May 2005.  Before that, Erbitux was marketed to metastatic colon cancer patients according to individual permits for use of the medication by virtue of s.47A(c) of the Pharmacists Ordinance (New Version) 5741-1981. The State claims that the scientific evidence relating to this medication is relatively preliminary, and it is not yet known whether the medication relieves the symptoms of patients of metastatic colon cancer or prolongs their lives.  This is reflected in the protocol of the meeting of the Committee from 1 January 2004, which states the following regarding Erbitux:

'The preparation is intended for the treatment of a small group of metastatic colon cancer patients. This is a new medication that was registered in the course of 2004 in the U.S.A and in other Western states.

….

The existing scientific evidence regarding the preparation is not abundant, and it does not prove that treatment with the medication definitely prolongs life, but rather that it generates an increased incidence of response and a reduction of the tumor mass.  It may be presumed that the reduction of the tumor mass would enhance the quality of the patient’s life, but will not necessarily prolong their lives.

Committee members proposed reducing the ranking of the preparation from A9 to A8 due to the absence of sufficient evidence regarding the life-prolonging component. Others claimed, however, that although the existing evidence is limited in scope, and it does not provide proper information concerning the life-prolonging aspect, there is nevertheless evidence of reduced tumor mass and improved response to treatment. Moreover, material regarding the preparation is accumulating. It was therefore suggested to define it as (A9-) which means a lower level of priority for inclusion in the basket than other treatment technologies in which the life-prolonging component is clearer (these were defined as A9)' (Protocol of Committee proceedings, dated 1.12.04, appendix RS/6 of the respondents’ response, 1-6, dated 20 May 2005 in HCJ Sheiber).

The Committee therefore decided to give the Erbitux medication a lower ranking as compared to the other technologies which had clearly been proven to be life-prolonging.  The protocol indicates that the Committee considered relevant factors, which included the effectiveness of the medication in the treatment of sickness and the question of whether there was proven capacity to prolong life. It should be stressed that the protocol subsequently states that “material regarding the preparation [Erbitux] continues to accumulate,” and that if additional significant evidence were to be received regarding, inter alia, its degree of effectiveness, it will be passed on to the Committee, and the medication will be brought up for further discussion. It may thus be presumed that to the extent that new scientific evidence is gathered regarding the effectiveness of Erbitux, renewed consideration will be given to the ranking accorded to this medication.

Considering all the above, it cannot be said that the Committee’s recommendation regarding the ranking of Erbitux is unreasonable to a degree that requires this Court’s intervention. Nor can it be said that the Committee’s recommendation regarding Erbitux constitutes unlawful discrimination against the petitioners vis-à-vis other patients whose required medications are included in the health services basket. Under circumstances in which the public resources are insufficient to satisfy all the needs and all the needy, resources must be allocated according to a scale of priorities, which naturally gives rise to distinctions between various individuals and various groups. These differences do not constitute unlawful discrimination, as long as they are based on relevant, reasonable considerations (see and compare: HCJ 1113/99 Adallah v. Minister for Religious Affairs [24], per Justice I. Zamir, para. 5). Any other approach would preclude any possibility of distributive decisions for purposes of allocation of public resources, even in circumstances in which the decisions were adopted on the basis of lawful considerations.  In the words of Justice E. Rubinstein:

'…[P]rioritization is essential under the circumstances of the health services basket –"The couch will always be too short for stretching out, and a handful will never satiate the lion". In a world of rapidly changing medical and technological scenes, often beyond recognition, but in which the costs of the technology and medications is high, there is no escaping the need to fix scales of priorities. It is hard to say, even in  painful cases such as this, that there is discrimination due to the prioritization' (HCJ 2974/06 Israeli v. Committee for Expanding the Health Services Basket [25]) [emphasis added – D.B.].

One can certainly understand the deep distress of the patients suffering from metastatic colon cancer, whose physicians have prescribed treatment with Erbitux and who cannot afford to purchase this medication. Nor can one be indifferent to the pain and cries of the sick. We are aware that unfortunately, our conclusion denies them what they seek. Nevertheless, at this point in time, and considering the existing data, we have no legal grounds for intervening in the scale of priorities that was fixed by the Committee with respect to this medication. This being the case, and in view of all the reasons discussed above, the petitioners’ request to order the inclusion of the Erbitux medication in the health services basket is denied.

The petitioners’ proposals for reducing the prices of medications not included in the basket

30.  A significant portion of the petitioners’ claims in HCJ Sheiber focused on proposals aimed at reducing the prices of medications not included in the health services basket. In this context, the petitioners applied for two remedies, in respect of which an order nisi was originally issued: the first was to order the cancellation of value added tax and other indirect taxes levied on innovative, life-saving medications that are not included in the health services basket; the second is to order the respondents – the Ministry of Health and/or the Sick Funds – to make centralized purchases of these medications, to help in reducing their prices for the consumers.

As for the petitioners’ request to order the cancellation of value added tax and other indirect taxes levied on medications for the disease of cancer, it emerges from the State’s response that the requested cancellation of V.A.T and other indirect taxes would require a legislative amendment in order to establish a statutory exemption for medications not included in the health services basket. In this context, it should be mentioned that over the past few years, a number of private members’ bills have been tabled for the amendment of s. 31 of the Value Added Tax Law, 5736-1976, with the aim of establishing an exemption from V.A.T for innovative, life-saving medications not included in the basket. These proposals did not reach the legislative stage because the Finance Ministry refused to deviate from the principle of tax uniformity and to subsidize the funding of these medications other than by way of direct support for the health services basket. At all events, the question of whether to grant a statutory exemption from V.A.T. and from other indirect taxes for new medications not included in the health services basket lies within the responsibility of the legislature and not of this Court.

31. The responses of the Sick Funds to the petitioners’ request to obligate the respondents to carry out a centralized purchase of new medications such as Erbitux in order to reduce the price for the consumers, indicate that some of them take a positive view of the idea of a centralized purchase, albeit conditional upon appropriate arrangements, legislative and otherwise, being made which would enable them to make the purchase.  Other Sick Funds felt that the centralized purchase of medications not included in the health services basket should be carried out by a central body unrelated to the Sick Funds. From the parties’ pleadings before us, it emerges that implementing the proposal of centralized purchase of the medications would give rise to legal problems, inter alia from the perspective of creating a restrictive arrangement. Furthermore, the centralized purchase of medications not included in the health services basket would involve a number of implementation-related questions, the answers to which are far from simple. What is the appropriate body to deal with the centralized purchase? How would it decide which medications to include in the purchase? Where would the medications be stored, and how would they be sold to the patients in need of them, and other similar questions.  At all events, it appears that the centralized purchase of new medications such as Erbitux, which are not included in the health services basket, would in certain cases contribute to the reduction of the price of these medications for patients requiring them, and thus ease their plight. Bearing this in mind, all the relevant aspects of this proposal should be examined by the Ministry of Health and the other relevant bodies, in order to consider the issue in depth.

32.  Finally, it should be noted that the petitioners in HCJ Sheiber requested that an order be given to issue a Supervisory Order pursuant to the Services and Commodities (Supervision) Law, 5756-1996, that would establish a ceiling price for Erbitux and for other similarly innovative medications. In the course of these proceedings, it emerged that a supervisory order of this kind had already been issued, and that the order also applies to medications not listed in the Drugs Register (see Supervision Order over the Prices of Commodities and Services (Maximum Prices for Prescription Preparations), 5761-2001; see also HCJ 3997/01 Neopharm Ltd v. Minister of Finance [26], in which a petition against the validity of the Order was dismissed). It was in consideration of this that no order nisi was given in the first place regarding that particular matter. It further bears note that in their pleadings before this Court the petitioners claimed that the Sick Funds should reorganize their funds, and utilize the budgetary balance for the purchase of life-saving medications. This claim was made in rather laconic and general manner, and we therefore did not deem it necessary to discuss it.

33.  I therefore propose to my colleagues to rule as follows:

(a)   In view of the addition of Avastin and Taxotere under the requested classifications to the Health services basket as of 2006, the order nisi given in HCJ Louzon shall be cancelled, and the petitions in HCJ Louzon  and HCJ Bar-On shall be deleted, without any order for costs.

(b)   For the reasons specified above, the order nisi issued in HCJ Shieber shall be cancelled and the petition denied, without an order for costs, bearing in mind the recommendations made in paragraphs 23 and 27 of my comments above regarding the regulation of the Committee’s activities by way of an appropriate legislative framework.

Justice A. Grunis

I agree.

Justice M. Naor

1.    I agree that the order nisi given in HCJ Louzon should be cancelled and the petitions in HCJ Louzon and HCJ Bar-On struck down, without an order for costs. I also agree to the cancellation of the order nisi issued in HCJ Sheiber, and to the denial of the petition without an order for costs.

2.    As my colleague the President has shown, the task of prioritization is a difficult one, quite often requiring us to turn our backs on the gravely ill, such as in HCJ Sheiber. Indeed, it is hard to face a person fighting for his life and leave him empty-handed. All the same, I see no possibility of intervening in this case.

From time to time petitions are filed in this Court relating to intervention in prioritization decisions (see HCJ 2974/06 Israeli v. Committee for Expanding Health Services Basket [25] and HCJ 4004/07 Turonshwili v. Ministry of Health [21] referred to by my colleague the President). In Israeli v. Committee for Expanding Health Services Basket [25] I concurred with the comments of Justice E. Rubinstein, as cited by the President in her opinion:

'…[P]rioritization is essential under the circumstances of the health services basket –"The couch will always be too short for stretching out, and a handful will never satiate the lion". In a world of rapidly changing medical and technological scenes, often beyond recognition, but in which the costs of the technology and medications is high, there is no escaping the need to fix scales of priorities. It is hard to say, even in painful cases such as this, that there is discrimination due to the prioritization. Indeed, the struggle over the limited cake is the reason for petitions that are filed in this Court, parallel to parliamentary and extra-parliamentary public struggles. '

            I repeated these comments in Turonshwili v. Ministry of Health [21], and I believe they are equally applicable to the case before us. In my view this Court has but a narrow margin for intervention in decisions of this nature. In order to render an appropriate decision on a prioritization matter, those making the decision (or recommendation) must have a broad picture. The prioritization applies to all the medications that are candidates for inclusion in the basket, all within the budgetary framework.  Naturally, a hearing before the High Court of Justice focuses on one individual (or a limited group of people), and on one medication which may have the potential to save his life. Each person is an entire world and the importance of saving human life is deeply ingrained in the values of the State of Israel as a Jewish democratic state – to stand by and not offer help is difficult. On the other hand, those charged with making the decisions (and recommendations) have a broader perspective. I am convinced that decisions regarding the basket and its composition are occasions for sleepless nights for all those who must decide or recommend. But I too, like my colleague the President, see no legal grounds for our intervention.  While the hearing in this case focused on the individual in need of the medication, in the background are many other patients whose voices were not heard, but whose plight is dire. A decision on the matter requires extensive knowledge, the weighing up of different data and a determination of their relative weight.  As such the problem is a “multiple focus problem”, using a term coined by Justice I. Zamir in HCJ 7721/96 Israeli Insurance Assessors Association v. Inspector of Insurance [27] at pp. 644-645:

‘The problems presented for resolution in the framework of judicial review of public administration fall into two main categories. The first category includes problems involving a confrontation between two central factors: norms, interests or methods…. Problems of this nature usually require answers which are yes or no, permitted or forbidden, either/or. As such they can be referred to as dual-focus problems, as if there were two heads to be chosen between. This kind of problem is classically suited to judicial review… a decision in this kind of case is generally an appropriate task for the court.

The second category includes problems consisting of a significant number of factors, norms, interests and paths, each of which merits consideration in the process of reaching a solution, and each of which should receive expression in the solution given…  This kind of problem is multi-focal…. A  problem of this kind does not admit of an answer which is yes or no, permitted or forbidden, either/or.  As such it is exceedingly difficult, perhaps even impossible, to render a decision that relies on a legal rule or a balancing formula…. This task is classically suited for an administrative authority, which has the required expertise and tools to solve the problem; it can act in a flexible manner, in consultation and coordination with the agencies involved in the matter. It is not a task that is suited for the court.

This does not mean that the court will refuse to give any attention to a multi-focus problem. It is competent to deal with these problems… but it will place restrictions on its treatment of these kinds of matters. On the one hand, it is not prepared to place itself in the position of the administrative body and to discharge the task imposed upon it….  On the other hand, in the case of an illegal omission, it is prepared to order the administrative body to exercise its authority….[S]imilarly, after the administrative body has exercised its authority it is prepared to examine the legality of its act, such as the legality of the entire plan, or a part thereof.’

President A. Barak made similar comments in HCJ 82/02 Kaplan v. State of Israel, Ministry of Finance, Customs Division  [28], at pp. 908-910:

‘The role of the court is to determine whether the arrangement devised by the administrative authority is legal or not. The administrative authority may devise several alternatives, all of which will be regarded as legal as long as they do not exceed the boundaries of that which is permitted in the exercise of discretion.’

(And see also CA 8797 Anderman v. Objection Committee of District Committee under the Planning and Construction Law, 5725-1965, Haifa [29] at p. 474; HCJ 10/00 Ra’anana Municipality v. Inspector of Transport, Tel-Aviv and Central Districts [30] at p. 756).

            There is a large number of solutions to the complex task of putting together the basket as explained by my colleague, each of which has its casualties. There is no optimal solution, nor is there a magic formula for weighing up the conflicting interests. The decision not to include the desired medication in the basket, on the basis of the extant information relating to it, does not exceed the bounds of reasonability, and we have no grounds for interfering with it; there is therefore no choice but to deny the petition.

Judgment as per the opinion of President D. Beinisch.

25^th Tammuz 5768

28 July 2008

|National Health Insurance Law

s. 7...................................................................................................................... 5, 24, 27, 29

Arbitrux...................................................................................................................... 19, 22, 29

CA 5557/95 Sahar Insurance Company Ltd v. Alharar............................................ 3, 22

Constitutions

Canada United States...................................................................................................... 18

Constitutions  of the South African

South African Constiution, section 27.......................................................................... 18

Daphne Barak-Erez “Welfare Policy in Israel – Between Legislation to Beaurocracy” Labor, Society and Law 9 2002              25

HCJ  7365/95 Bolous Brothers – Marble and Granite Production Ltd................. 4, 33

HCJ  7365/95 Bolous Brothers – Marble and Granite Production Ltd (1996)........... 4

HCJ 1554/95 Amutat Supporters of Gilat v. Minister of Education, Culture and Sport      3, 27

HCJ 1829/02 General Health services v. Minister of Health................................... 4, 30

HCJ 2344/98 Macabbi......................................................................................... 3, 4, 26, 27

HCJ 2557/05 Mateh Harov v.Israel Police

HCJ 2557/05................................................................................................................. 3, 15

HCJ 2599/00 Yated Association of Children with Downs Syndrome v. Ministry of Education          3, 21

HCJ 2725/92  General Health services v. State of Israel.......................................... 4, 27

HCJ 3472/92 Brand v. Minister of Communications (1993) IsrSC 47 (3) 143............ 4

HCJ 366/03 Commitment to Peace and Social Justice Amuta v. Minister of the Interior

HCJ 366/03.......................................................................................................................... 3

HCJ 4769/95 Menahem v. Minister of Transport

HCJ 4769/95................................................................................................................. 3, 16

HCJ 494/03 Physicians for Human Rights v. Minister of Finance

HCJ 494/03.................................................................................................................... 3, 14

HCJ 5578/02 Manor v. Minister of Finance

HCJ 5578/02................................................................................................................. 3, 15

HCJ 6055/95 Zemach v. Minister of Defense

HCJ 6055/95.................................................................................................................... 3, 9

HCJ 6055/95 Zemach v. Minister of Defense (1999)........................................................ 3

HCJ 9163/01 General Health services v. Minister of Finance  (2002)......................... 3

Interpretation Law, 5741-1981

s. 17 (b)................................................................................................................................ 31

LCA 4905/08 Gamzo v. Isaiah

LCA 4905/08................................................................................................................. 3, 14

Macabbi Health services v. Minister of Finance (2000)

HCJ 2344/98 Macabbi....................................................................................................... 3

National Health Insurance Law.............................................................................. 3, 22, 24

9b......................................................................................................................................... 27

s. 48 (f)................................................................................................................................ 31

s. 52 (1) (b).......................................................................................................................... 31

s. 8 (b)(1)............................................................................................................................. 30

s.8 (e)................................................................................................................................... 30

the Law........................................................................................................................... 5, 15

National Health Insurance Law, 5754-1994

National Health Insurance Law....................................................................................... 5

National Health Insurance Law, 5755-1995...................................................................... 3

National Health Law............................................................................................................ 27

National Health Law, 5744-1948

s. 5........................................................................................................................................ 27

Patient's Rights Law.......................................................................................................... 2, 21

s.7............................................................................................................................ 21, 22, 26

Patient's Rights Law, 5756-1996

s.3........................................................................................................................................... 2

Soobramoney v. Minister of Health

Soobramoney v. Minister of Health.......................................................................... 4, 22

HCJ 453/94, 454/94

Israel Women’s Network

v.

1.     Government of Israel

2.     Minister of Transport

3.     Ports and Railways Authority

4.     Amir Haiek

5.     Minister of Energy and Infrastructure

6.     Minister of Finance

7.     Oil Refineries Ltd

8.     Doron Kashuv

9.     Yaakov Wagner

The Supreme Court sitting as the High Court of Justice

[1 November 1994]

Before Justices E. Mazza, Y. Kedmi, I. Zamir

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

Facts: In 1993, the Government Corporations Law was amended, and s. 18A was added. This section provides that the boards of directors of Government corporations shall have equal representation of men and women, and until such time as this goal is achieved, members of the underrepresented sex should be appointed, ‘to the extent that circumstances allow’ (affirmative action).

After the new section came into effect, and despite the new section, men were appointed in two cases by Government ministers to boards of directors of Government corporations, on which there were no women directors.

The petitioner argued that the appointments were therefore unlawful. The respondents argued that, notwithstanding the new s. 18A, the appointees were the best candidates for the positions, and even if the court held that the ministers had acted wrongly, the appointments should not be cancelled on this occasion, as it was the first time the matter had come before the court.

Held: (Majority opinion — Justice E. Mazza and Justice I. Zamir): The appointments were unlawful since the ministers had not obeyed the provisions of the new section, and they should therefore be revoked, so that the ministers could begin the appointment processes again.

(Minority opinion — Justice Y. Kedmi): The main consideration in making an appointment is the qualifications of the candidates, even after the new section of the law came into effect. It was sufficient for the minister to consult a list of female candidates in his ministry, and he did not have to look outside the ministry. Thus in the case where the minister had such a list, his decision was valid. In the other case where the minister did not have such a list, the appointment was flawed, but in this case, the appointment should not be set aside, both because of the injustice that would result to the appointees who had done nothing wrong, and also because the petitioner had not shown that there existed a specific female candidate with qualifications equal to those of the appointees.

Petition allowed, by majority opinion.

Legislation cited:

Basic Law: Human Dignity and Liberty, 5752-1992, s. 1.

Development Towns and Areas Law, 5748-1988.

Emergency (Emergency Plans for Building Residential Units) Regulations, 5750-1990.

Employment Service Law, 5719-1959, s. 42(a).

Equal Employment Opportunities Law, 5748-1988.

Equal Remuneration for Female and Male Employees Law, 5724-1964.

Equal Retirement Age for Female and Male Employees Law, 5747-1987.

Government Corporations Law, 5735-1975, ss. 18A, 18A(a), 18a(b), 18B, 60A.

Government Corporations (Amendment no. 6) (Appointments) Law, 5753-1993.

Ports and Railways Authority Law, 5721-1961, ss. 2, 6(a).

Women’s Equal Rights Law, 5711-1951, s. 1.

Israeli Supreme Court cases cited:

[1]        FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[2]        HCJ 202/57 Sidis v. President and Members of Great Rabbinical Court [1958] IsrSC 12 1528.

[3]        HCJ 1000/92 Bavli v. Great Rabbinical Court [1994] IsrSC 48(2) 221.

[4]        CA 337/61 Lubinsky v. Tax Authority, Tel-Aviv [1962] IsrSC 16 403.

[5]        HC 153/87 Shakdiel v. Minister of Religious Affairs [1988] IsrSC 42(2) 221; IsrSJ 8 186.

[6]        HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [1988] IsrSC 42(2) 309.

[7]        HCJ 104/87 Nevo v. National Labour Court [1990] IsrSC 44(4) 749; IsrSJ 10 136.

[8]        HCJ 246/81 Derech Eretz Association v. Broadcasting Authority [1981] IsrSC 35(4) 1; IsrSJ 8 21.

[9]        HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [1983] IsrSC 37(3) 17.

[10]     HCJ 528/88 Avitan v. Israel Lands Administration [1989] IsrSC 43(2) 292.

[11]     HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [1994] IsrSC 48(3) 353.

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

[13]     HCJ 292/61 Rehovot Packing House Ltd v. Minister of Agriculture [1962] IsrSC 16 20; IsrSJ 4 96.

[14]     HCJ 199/86 Amir Publishing Co. Ltd v. Minister of Tourism [1986] IsrSC 40(2) 528.

[15]     HCJ 5023/91 Poraz v. Minister of Building [1992] IsrSC 46(2) 793.

[16]     HCJ 2994/90 Poraz v. Government of Israel [1990] IsrSC 44(3) 317.

[17]     HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [1993] IsrSC 47(5) 832.

American cases cited:

[18]     Griggs v. Duke Power Co. 401 U.S. 424 (1971).

[19]     University of California Regents v. Bakke 438 U.S. 265 (1978).

[20]     Wygant v. Jackson Board of Education 106 S. Ct. 1842 (1986).

[21]     Steelworkers v. Weber 443 U.S. 193 (1979).

[22]     Johnson v. Transportation Agency, Santa Clara County 480 U.S. 616 (1987).

[23]     Teamasters v. United States 431 U.S. 324 (1977).

[24]     Hazelwood School District v. United States 433 U.S. 299 (1972).

Canadian cases cited:

[25]     C.N. v. Canada (Human Rights Commission) [1987] 1 S.C.R. 1115.

For the petitioner — R. Meller-Ulshinsky, R. Benziman.

For respondents 1-6 — A. Mendel, Senior Assistant and Head of High Court of Justice Cases at the State Attorney’s Office.

For respondent 7 — M. Sheler.

JUDGMENT

Justice E. Mazza

1.    The petitions before us concern the practical application of s. 18A of the Government Corporations Law, 5735-1975, which was added to the law by the Government Corporations Law (Amendment no. 6) (Appointments), 5753-1993 (hereafter — ‘the Appointments Law’).

Introduction

2.    The Appointments Law was passed in the Knesset on 16 March 1993. It includes a series of amendments to the Government Corporations Law about the qualifications and methods of appointing candidates for the office of directors in Government corporations. Among these amendments section 18A was added to the Government Corporations Law, and this provides:

‘(a) The composition of the board of directors of a Government corporation shall give proper expression to representation of both sexes.

(b) Until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’

Under s. 60A of the Government Corporations Law, which also was added to the law by its amendment under the Appointments Law, the provision of s. 18A applies (inter alia and mutatis mutandis) also to appointments — by a minister or the Government, or on the recommendation of, or with the approval of, either of these — of members of the boards of management of statutory corporations.

3.    The petitioner — the Israel Women’s Network — is a registered society (amuta). Its declared purpose is to struggle to promote equality of the sexes in Israeli society. The petitioner’s main activities are directed towards achieving equal representation for women among decision-makers and policy-makers in the various sectors of public and social activity. Its two petitions — in which a panel of three justices issued show cause orders — are directed at decisions to appoint directors under the Government Corporations Law made after the Appointments Law came into effect. The petition in HCJ 453/94 concerns the appointment of a new member of the board of the Ports and Railways Authority. The petition in HCJ 454/94 relates to the appointment of two new directors on behalf of the State to the board of directors of Oil Refineries Ltd. All three new appointees are men, and the composition of the two relevant boards do not have (nor did they prior to the said appointments) even one woman.

The petitioner complains about these appointments. It should be said at once that the petitioner does not have even the smallest criticism of the qualifications and abilities of any of the appointees for any of the said positions. It should also be stated — and this too is not disputed — that each of the appointments was preceded by a consultation with the Appointments Review Committee, in accordance with s. 18B of the Government Corporations Law. Nonetheless, the petitioner challenges the lawfulness of the appointments. Its argument is that, in the circumstances of both cases, and under the provision of s. 18A of the Government Corporations Law, preference should have been given to the appointment of women; however, in their decisions with regard to the appointments made, the authorities ignored the express directive of the law. For this reason — the petitioner argues — the appointments made cannot stand. It therefore asks for an order that cancels the appointments and reopens the appointment procedures, so that the provision of s. 18A may be implemented in these cases.

HCJ 453/94

4.    The Ports and Railways Authority (the third respondent) was established by the Ports and Railways Authority Law, 5721-1961. Under s. 2 of the law, ‘the Authority is a corporation, competent to acquire any right, to undertake any obligation, to be a party in any law suit and a party to any contract.’ However, s. 6(a) of the law stipulates that:

‘The Government shall appoint, on the recommendation of the Minister of Transport, a board for the Authority (hereafter ‘the board’); the board shall have seventeen members, of whom ten shall come from the public and seven shall be State employees, including two representatives of the Ministry of Transport, a representative of the Ministry of Finance and a representative of the Ministry of Industry and Trade.’

There is therefore no doubt — nor is there any dispute — that the provision of s. 18A of the Government Corporations Law does indeed apply to the appointment of members of the board of the said authority.

5.    On 9 January 1994, the Government decided, on the recommendation of the Minister of Transport, to appoint Mr Amir Haiek (the fourth respondent) as a member of the board of the authority. Mr Haiek, an accountant by profession, is an employee of the Ministry of Industry and Trade. The recommendation of the Minister of Transport to appoint him was based on the recommendation of the Minister of Industry and Trade, who chose him as its new representative on the board (instead of its previous representative who finished his term of office). Prior to the appointment of Mr Haiek, fifteen members served on the board of the authority, all men. The argument of the petitioner is that, in these circumstances and under the provision of s. 18A of the law, preference should have been given to the appointment of a woman to this position. We should say once more that the petitioner does not dispute that Mr Haiek has all the essential qualifications for the office to which he was appointed. It also agreed that he has suitable personal qualities and traits. Nonetheless, the petitioner points to the fact that the senior staff of the Ministry of Industry and Trade also include twenty-five women. There are employees of the ministry who are on the four highest levels of seniority, with the rank of academics or the rank of lawyers. Its argument is that had thought been given to the matter, a suitable candidate for membership on the board of the authority could have been found among these women employees. The choice of a male candidate, when the possibility of recommending a suitable female candidate was not even considered, is inconsistent with the provision of s. 18A of the law, and it should be made void.

6.    The show cause order granted in this petition was directed at the Government of Israel (which appointed Mr Haiek) and the Minister of Transport (on whose recommendation the appointment was made). The Government’s affidavit in reply was given by the Minister of Industry and Trade. A separate affidavit was not submitted by the Minister of Transport. We will therefore assume that what is stated in the affidavit of the Minister of Industry and Trade also represents the position of the Minister of Transport.

In his affidavit in reply, the Minister of Industry and Trade argued that Mr Haiek’s appointment was within the framework of the law and there was nothing wrong with it. The Minister pointed out in his affidavit that the Ministry of Industry and Trade has only one representative on the Authority’s council. In such circumstances, he argued, he was bound to consider ‘only who was the best and most suitable candidate for the position from among the employees of the Ministry and not from the general public.’ Mr Haiek is his economic adviser. Upon assuming his position as Minister of Industry and Trade, he appointed Mr Haiek as the person responsible for all aspects of freight, handling, and delivery of matters related to industry and trade, both inside Israel, and to and from Israel. Since the Authority is responsible for a significant proportion of land and sea freight, Mr Haiek was required, by virtue of his position, to maintain contact with the Authority. When the one and only place on the Authority’s council reserved for a representative of the Ministry of Industry and Trade became vacant, it was only natural that he would choose Mr Haiek. As to his reasons for selecting Mr Haiek, the Minister says in his affidavit as follows:

‘My decision to recommend the fourth respondent as the representative of the Ministry of Industry and Trade on the Authority’s council was made in view of the fact that he is in charge of, and responsible on behalf of the Ministry for, the issue of sea and land freight with regard to the implications of this for industry and trade in Israel. Because of this position of his, Mr Haiek is more of an expert, with regard to the activity of the Ports and Railways Authority, than anyone else in my Ministry, and he has the tools and the breadth of vision required in order to represent faithfully, on the Authority council, all the issues in which the spheres of responsibility of the Ministry of Industry and Trade overlap with the areas of activity of the Ports and Railways Authority.’

The Minister goes on to reject the petitioner’s claim that the Minister of Transport should have submitted to the Government a proposal to appoint a woman from among the senior female employees of the Ministry of Industry and Trade. When a need arose to appoint a new representative for the Ministry of Industry and Trade, the discretion in choosing the appropriate candidate was exercised by him as the responsible Minister. The obligation to appoint a woman is not absolute, but is imposed on ministers (according to what is stated in s. 18A(b) of the law) only ‘to the extent that circumstances allow’. Although the Minister does not question the excellent qualifications of the senior female employees in his Ministry, his not choosing one of them does not indicate that he did not comply with his duty under the law, for, in view of the special qualifications required for the candidate, and the necessity that he should have a general and extensive familiarity with all the needs and requirements of the various divisions and departments of the Ministry, the circumstances of the case did not allow him to propose the candidacy of a woman for this position.

HCJ 454/94

7.    Oil Refineries Ltd (hereinafter — ‘the Refineries’) — one of the respondents in this petition — is a Government corporation as defined in the Government Corporations Law. Its business is the refining of crude oil and the manufacture of oil products. Its board of directors has twelve members, eight of whom represent the State and four represent private shareholders. All the board members are men. Throughout 1993, several directors completed their terms and new directors were appointed in their stead. Four of the new directors were appointed on behalf of the State, and the appointment procedures for three of them were conducted after the Appointments Law came into effect. First, on 7 June 1993, Mr Moshe Ritov was appointed. On 9 November 1993, Mr Doron Kashuv was appointed, and on 16 December 1993 the appointment of Mr Yaakov Wagner was finalized (the latter two are both respondents in this petition).

The petitioner complains about the appointment of Mr Kashuv and Mr Wagner as directors. Here too the petitioner completely accepts that Mr Kashuv and Mr Wagner are qualified and desirable candidates for the office to which they were appointed. But the appointment of two additional men as new directors on a board of directors that has only male members is contrary to the provision of s. 18A. This, and this alone, is the subject of this petition.

8.    The show cause order granted in this petition was directed at the Minister of Energy and Infrastructure and the Finance Minister, since by their joint decision (by virtue of their authority under the Government Corporations Law) Mr Kashuv and Mr Wagner were appointed to the office of directors. In the reply to the order, affidavits were submitted on behalf of each of the Ministers. Affidavits were also submitted by Mr Kashuv and Mr Wagner. The ‘Refineries’ gave notice that it is not adopting a position.

In the main affidavit in reply on behalf of the Minister of Energy and Infrastructure (by the director of the Planning and Economics administration in this Ministry), it is stated that the Minister’s decision to appoint Mr Kashuv and Mr Wagner as directors was based on the professional qualifications of the candidates, which were of the kind required on the board of directors of the ‘Refineries’. Mr Wagner worked at the ‘Refineries’ for many years and served as its assistant director-general for about fifteen years. He has considerable professional expertise and is an expert on all secret workings of the ‘Refineries’. It was also stated that Mr Wagner already served in the past as a director in the ‘Refineries’, and during his earlier term of office he made a significant contribution to the activities of the board of directors. Mr Kashuv is described in the affidavit as a senior administrator, someone with an extensive academic background in business management, and an expert in the fields of finance and marketing. In the past, he worked in auditing and gained experience also in this field. Further on it states that the Minister is aware of the need to present the candidacy of a woman for membership of the board of directors of the ‘Refineries’. The committee for examining appointments, within the framework of the approval of Mr Wagner’s candidacy, also drew the Minister’s attention to the fact that the board of directors of the ‘Refineries’ did not include any women. However, the State’s quota of directors on the board of directors of the ‘Refineries’ is not yet filled, and prior to filling the two positions that are still vacant the Minister is indeed considering the appointment of a woman to this board of directors.

In reply to the questions presented by counsel for the petitioner, a further affidavit was submitted on behalf of the Minister of Energy and Infrastructure (this time by the Director-General of the Ministry). From this affidavit it transpires that the Minister originally considered the appointment of a senior female employee in his Ministry to the office of director at the ‘Refineries’, but the candidacy of this employee was withdrawn because of a suspicion that she might find herself in a conflict of interests between the needs of the ‘Refineries’ and the Ministry’s policy regarding the status of the ‘Refineries’. The deponent goes on to concede that, prior to the appointments, the Minister did not examine a list of suitable female candidates, since such a list — which is currently in his possession — did not yet exist when the previous appointments were made.

9. In the affidavit in reply on behalf of the Finance Minister (made by the Minister’s assistant), the deponent focused on a description of the procedure determined by the Finance Minister for implementing s. 18A. This should, in my opinion, be quoted in full:

‘… Since s. 18A of the Government Corporations Law, 5735- 1975, which sets out the requirement for proper representation on boards of directors of the sex that is not represented, came into effect, I examine, according to the Minister’s directive, whether any women hold office on the board of directors for which a candidate is required. If no woman holds office on the board of directors, and we are concerned with one of the last vacant positions in the quota of directors (usually the two or three last places), I make a further investigation in order to find a suitable women candidate from the pool of candidates at the Finance Ministry, which includes the names of candidates submitted by the Forum of Businesswomen and the Na’amat Organization. At the same time, I contact the Prime Minister’s Adviser on the Status of Women, Mrs Nava Arad, who has in her possession a larger selection of suitable women candidates.

To the best of my knowledge, since the said amendment came into effect, there were only a few cases where a Government corporation reached its maximum quota of directors and a woman was not appointed when a position became available.

As a rule, whenever there remain, as stated, only two or three places on a board of directors, efforts are made to appoint a woman as the first of these.’

10. Mr Kashuv and Mr Wagner submitted affidavits that were identical in their contents. Each of them discussed briefly his reputation and good character that he acquired for himself in his work and expressed a concern about the severe harm that he would suffer should the court decide to cancel his appointment. Since the fact of the appointments was made public, their cancellation might create an erroneous impression on the public as to the reason for their cancellation. In the nature of things, the reason for the cancellation would be forgotten, while the actual cancellation would be well remembered.

The points of contention

11. Section 18A of the Government Corporations Law contains two parts. The first part, s. 18A(a), defines the desired and binding purpose of the law. The purpose and the obligation are that ‘the composition of the board of director of a Government corporation shall reflect the proper representation of persons of both sexes.’ The second part, s. 18A(b), prescribes a binding course of action which ministers are ordered to follow ‘until such proper representation is achieved...’.

Counsel for respondents 1-6 pointed to the vagueness of the term ‘proper’ (representation) which appears in both parts of the section. Nonetheless she agrees that the fact that before the appointments under discussion not even one woman held office — either on the council of the Authority or the board of directors of the ‘Refineries’ — is sufficient for us to be compelled to conclude that on neither of these bodies was there ‘proper’ representation of women. Counsel for the said respondents therefore concedes that in making their decision regarding the choice of candidates for the positions in question, the Ministers were obliged (and, in the case of the appointment of a new member to the council of the Authority — the Government was also obliged) to act in accordance with the provision of s. 18A(b) of the law.

In view of this agreement, the dispute between the parties focused on the following three questions: first, what is the nature of the duty imposed on the Minister (and, where relevant, on the Government) under s. 18A(b)? Second, in the appointments under discussion in these petitions, did the Ministers (or the Government) fulfil the duty that was imposed on them? Third, assuming that the answer to this second question is no (i.e., that the duty was not fulfilled), what is the law with regard to the appointments that were made, now that they have become a fait accompli?

12. The premise for the respondents’ position, with regard to the first question, is that the section imposes on ministers only a relative and qualified duty. The respondents base this position on the qualification stated in the section itself: ‘to the extent that circumstances allow’. From this qualification, they appear to wish to infer that the section merely provides a kind of general guideline with regard to the factors that ministers must take into account in their considerations for choosing the candidate for the appointment. It follows that if in a specific instance the minister thinks that in the circumstances of the case he must prefer other considerations, he may depart from the guideline in the section. From the explanations included in the affidavits in reply, counsel for respondents 1-6 wishes to submit that no defect occurred in the appointments under discussion, for in the circumstances of both instances objective considerations determined the outcome in favour of the appointments that were made. Alternatively, counsel for the said respondents argues that, even if it transpires that the possibility of appointing a woman to either of the positions under discussion was not properly considered by either of the Ministers, this is insufficient to justify cancelling the appointments. The reason for this is that we are concerned with a new and innovative statutory provision; if it was not applied correctly in the cases under discussion, this should be deemed an error and a result of insufficient understanding of the nature and scope of the duty prescribed. Similarly, we should take account of the fact that in practice the decisions do not harm the public, since no-one disputes that the candidates who were appointed are qualified and fitting candidates; however, cancelling the appointments retrospectively will harm the candidates who were appointed. Therefore we should not make an order that might correct one wrong with another wrong, but should merely apprise the Government and its Ministers of their error and lay down guidelines for applying the provision of s. 18A(b) in the future.

13. The petitioner also does not dispute the fact that the obligation to appoint directors of the sex that is not properly represented, as set out in s. 18A(b), is not an absolute duty, but a relative duty, qualified by the possibilities that exist in the circumstances of the case. However, subject to this qualification, the petitioner argues that the duty imposed on the ministers making the appointments under this section is clear. The purpose set out in the section is that in the interim period (until proper representation is achieved for both sexes), affirmative action should be adopted in order to close the gap between the extensive representation of men and the hitherto minimal and negligible representation of women. The duty of the minister making an appointment, according to the express directive of the section, is therefore clear: assuming that all other qualifications are equal, he must prefer the choice of a female candidate to the choice of a male candidate. If he does otherwise, he must show that, in the circumstances of the case, it was not possible to find a suitable female candidate. The petitioner adds that from what is stated in the affidavits in reply it can be clearly seen that, in making the appointments under discussion, the Ministers and the Government acted with total disregard for this provision of the section. She also argues that from what is stated in the affidavits in reply there is no (even ex post facto) evidence that in the circumstances of either of the appointments it was impossible to comply with the letter and the spirit of the duty under the section. In such circumstances we must conclude that the appointments made are unlawful and they should therefore be cancelled. The rule that ‘one should not remedy an injustice with an injustice’ does not apply here, for the fear that cancelling the appointments may harm the candidates who were appointed is countered by the need to repair the harm arising from the impropriety of the proceedings and to implement the law.

            Section 18A — introductory remarks

14. Section 18A was intended to apply equitable criteria for the representation of women on the boards of management of Government and statutory corporations. It should immediately be said that we are not speaking of a new statutory basis for established rights, such as the basic right to equality of the sexes and the rights deriving therefrom with regard to the acknowledged right of women to equal opportunities in public, social and economic life, and in the fields of employment and labour; we are speaking of a new norm whose purpose is to enforce, by means of a duty, proper representation of the members of both sexes in the composition of boards of directors of Government corporations and the equivalent executive organs of corporations created by statute.

The purpose of the section is to correct a social injustice. It appears that the participation of women on the boards of directors of Government corporations and on the boards of management of statutory corporations has always been negligible. The proponents of the draft Government Corporations Law (Amendment No. 6) (Appointments), 5753-1993, on behalf of the Constitution, Law and Justice Committee of the Knesset, MK D. Zucker and MK H. Oron, pointed out in this respect that ‘only a few percent of directors are women and, in absolute terms, their number is minimal’ (Explanatory Notes to the draft Government Corporations Law (Amendment No. 6) (Appointments), at p. 75). Within the framework of the Knesset’s deliberations about the draft law, MK Oron stated that of the approximately one thousand and eight hundred directors holding office in Government corporations, only thirty-five were women (Proceedings of the Thirteenth Knesset, second session, 5753, at p. 4061). The proposal to add s. 18A to the Government Corporations Law was designed to correct this extreme injustice. With regard to the manner of the proposed amendment, the Constitution Committee brought two alternative versions before the Knesset: the first alternative was limited merely to a provision (now included in s. 18A(a) of the law) that ‘the composition of the board of directors of a Government corporation shall give proper expression to representation of both sexes;’ the second alternative, however, presented the text of the section with both parts, i.e., with the addition of the provision of s. 18A(b), that ‘until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’ With regard to the decision of the Constitution, Law and Justice Committee to bring two alternative proposals before the Knesset, it is stated in the explanatory notes (ibid.):

‘The Constitution Committee chose not to decide, at this stage, whether to set a minimum quota of women or whether to instead adopt a policy of “affirmative action”. The Committee thought that, since we are speaking of passing a fundamental and unprecedented provision in Israeli legislation, this question ought to be submitted for wide public debate, inter alia before the plenum of the Knesset, at the time of the first reading.’

The Knesset chose the second alternative. Thus a binding criterion for achieving equality of the sexes, based on the principle of affirmative action, was enacted in legislation for the first time. The desired objective set forth in s. 18A(a), as stated, is that the composition of every board of directors (or equivalent board of management) ‘shall give proper expression to representation of both sexes.’ Section 18A(b) goes on to provide that ‘until proper expression of such representation is achieved, ministers shall appoint, in so far as is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.’ The petitioner correctly argues that the provision of s. 18A(b) requires that, in the interim period until the goal stipulated in s. 18A(a) is achieved, a path of affirmative action is adopted. But it is important to point out that even s. 18A(a), which presents the long-term purpose of the law, does not merely declare the existence of the said purpose, as a goal that we should aspire to within the framework of well-known and established doctrines; instead, it sets out a practical mission which must be accomplished immediately. The mission is to achieve proper representation of both sexes; and the duty to accomplish it — stipulated in the words ‘shall give’ — is imposed on the ministers who make the appointments (and, where relevant, on the Government). The reason for this is that, since the ministers have the authority to make appointments, it is they (and they alone) who are able to do the work and turn the desired objective of the law into a practised and accepted social reality. It transpires that the criterion for affirmative action, which s. 18A(b) expressly mandates with regard to the interim period, is in fact incorporated also in the provision of s. 18A(a). Is not the significance of the duty to give proper expression to the representation of members of both sexes that also at every time in the future proper expression to such representation must continue to be maintained? It follows that the need to consider also the sex of a candidate will arise anew when appointing every new member to a board of directors; whether in order to maintain the balance between representatives of the two sexes that was achieved in the composition of the board of directors before the departure of the director, whom the new appointment is intended to replace, or in order to correct the exact balance, if this was breached by a prior appointment of any other director.

15. The clear purpose of s. 18A, which as stated was one of the innovations of the Appointments Law, is to correct existing injustices in the scant representation given to women in the composition of the boards of directors of Government corporations. The method set out in the section for achieving this purpose is the application of a norm of affirmative action. This is, without a doubt, a normative innovation. We shall therefore begin by establishing the basic nature of the norm.

Affirmative action

16. The idea of ‘affirmative action’ derives from the principle of equality, and its essence lies in establishing a legal policy for achieving equality as a resultant social norm. The core of the principle of equality (according to the traditional approach) is  ‘equal treatment of equals’, and its usual expression in social life lies in affording equal opportunities to everyone. The problem is that affording equal opportunities is likely to achieve an equal result only when the population groups who are competing do so from a starting point that is more or less equal; for only under circumstances of initial equality do they have equal opportunities to achieve it. This is not the case with respect to populations composed of very strong groups and very weak groups. A significant gap in equality of opportunity — whether it originates in discriminatory laws that were in force in the past but are now obsolete, or whether they were created by mistaken beliefs that became entrenched in society — increases the chances of the strong groups and reduces the chances of the weak groups. Affirmative action seeks to close this gap. It is based on the view that in a society where some elements start at a disadvantage, it is insufficient to give everyone an equal opportunity. Giving an equal opportunity in such circumstances merely complies with a kind of formal equality, but it does not afford persons in the disadvantaged groups a real chance to receive their share of the resources of society. The existence of formal equality in the long term raises the fear that because of the way of the world and human behaviour, the results of the discrimination will be perpetuated. Correcting the injustices of the past and achieving actual equality can, therefore, only be done by giving preferential treatment to members of the weak group.

17. The doctrine of affirmative action is practised in the United States. It began with public movements that arose in the middle of the 1940s and that set themselves the goal of ridding American society of the scourges of discrimination and prejudice, mostly on the basis of race and ethnic origin. These movements sought de facto to realize the principle of affording equal opportunities to members of the disadvantaged groups in society, as a practical expression of the equal protection clause set out in the Fourteenth Amendment of the Constitution. This objective was ostensibly achieved upon the enactment, in 1964, of a federal statute (The Civil Rights Act), which in paragraph 703 declares unlawful any practice of selecting, employing or promoting employees on the basis of discrimination because of the race, colour, religion, sex or national origin of the candidate or the employee. On the basis of this prohibition, the Supreme Court forbade aptitude tests for the acceptance of employees, which ostensibly afforded equal opportunities to all candidates, but were in practice irrelevant to the substance of the job and their real purpose was to negate the chances of black candidates (see Griggs v. Duke Power Co. (1974) [18]).

Eventually it became clear that even when equal opportunities were given the desired results were not achieved. Against this background, a new trend emerged at the end of the 1960s: no longer only giving equal opportunities, but also a redistribution of resources and ‘social engineering’, designed to produce equal results. According to this approach, which grew stronger during the seventies, the existence of social equality is not measured in terms of providing the means for achieving it (granting equal opportunities), but in actual achievements, namely results. But bitter opponents challenged this approach. They argued that equality and preference (even if ‘corrective’) are contradictory. Preference for reasons of race or ethnic origin violates the right of equality of anyone who is not of the preferred racial or origin. So it transpires that the burden of the correction of the injustices of discrimination against one person unjustly falls on the shoulders of another. There were also some who pointed out a contradiction between the reasons for affirmative action and other relevant considerations that oblige the authorities to develop a social policy devoid of favouritism, such as considerations of viability and economic advantage. It should be noted that the critics also included recognized liberals. Thus, for example, the scholar Morris Abram (himself one of the founders of the social movement for the elimination of discrimination) criticized the quota system involved in implementing the policy of preference for the weak (see Morris B. Abram, ‘Affirmative Action: Fair Shakers and Social Engineers’, 99 Harv. L. Rev., 1985-1986, 1312). But there were also some who answered the critics of the affirmative action approach in their own terms. Particularly appropriate here are the remarks of Professor Sunstein:

‘The antidiscrimination principle — of course, widely accepted — forbids government from discriminating against blacks and women, even when such discrimination is economically rational. Affirmative action — of course, a highly controversial practice — calls for employment and other preferences for members of disadvantaged groups. The two ideas are often thought to be in severe tension, and indeed, for advocates of affirmative action, the antidiscrimination principle sometimes seems an embarrassment.

In some settings, however, an antidiscrimination norm, conceived as a barrier to economically rational behavior, has the same purposes and effects as affirmative action. Affirmative action is controversial partly because it can be economically irrational, can impose serious social costs, and harms innocent victims. But an antidiscrimination principle often does precisely the same as what affirmative action does, and also does it in the interest of long-term social goals. For example, an antidiscrimination norm may require innocent victims to sacrifice — customers may be required to pay higher prices — in order to produce long-term equality.

A great failure of the assault on affirmative action is in its inability to account for the ways in which a requirement of nondiscrimination involves very much the same considerations. Indeed, the distinction between affirmative action and antidiscrimination is sharp only to those who see discrimination as always grounded in hostility and irrationality, which it clearly is not’ (C.R. Sunstein, ‘Three Civil Rights Fallacies’, 79 Cal. L. Rev., 1991, 751, at p. 757).

18. The socio-political argument in the United States with respect to the question of affirmative action finds clear and strong expression in the rulings of the Supreme Court. It appears that only three of the justices (Steven, Marshall and Blackmun) were prepared to recognize affirmative action as a criterion of equality. In view of ‘past iniquities’, they argued, the perpetuation of the status quo in itself also creates and amounts to discrimination. It follows that affirmative action should be seen as one of the corollaries of the principle of equality itself. It does not ignore the reasons why substantive equality does not exist, but it recognizes their existence and acts directly in order to eliminate them; thus it constitutes a real guarantee for the realization of equality. The remarks of Justice Blackmun in University of California Regents v. Bakke (1978) [19] in this respect are well-known; in his criticism of the approach that views affirmative action as contrary to the protected constitutional right of equality, he said, at p. 407:

‘I suspect that it would be impossible to arrange an affirmative-action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot — we dare not — let the equal protection clause perpetuate racial supremacy’ (emphasis added).

But the tendency of the majority of the justices was to recognize affirmative action merely as a permissible exception to the equality principle. The rationale underlying this approach was that affirmative action may be recognized only when it is proved that it is designed to compensate an individual or group, which belong to the weaker strata of society, for the sins of social discrimination from which they suffered in the past. In other words, affirmative action will succeed in being recognized only when it applies a measure of ‘reverse discrimination’. On the basis of this approach, the court, in University of California Regents v. Bakke [19], disqualified an admissions scheme for a medical school that reserved sixteen out of one hundred places for students from under-privileged minority groups, but even the judges who formed the majority agreed that a candidate’s racial origin could be considered by the university as one of the considerations for determining his eligibility for admission to the school. In subsequent years the question was submitted several times to the Supreme Court, but in all the cases the court refrained from an overall endorsement or an overall rejection of affirmative action as a social norm. In an interesting survey written in response to the judgment in the case of Wygant v. Jackson Board of Education (1986) [20] — in which the court disqualified a collective agreement, which, for reasons of affirmative action, gave non-white teachers a degree of preferential treatment over white teachers in the event of a work stoppage — Professor Sullivan showed that, despite the different approaches in the majority and minority opinions of the justices, in the six cases (up to 1986) in which the court approved arrangements based on affirmative action, the common denominator for the positive decision was expressed in the reasoning that the need to compensate for past discrimination prevailed, in the circumstances of the case, over the consideration of preserving the principle of equality (see K. M. Sullivan, ‘Sins of Discrimination: Last Term’s Affirmative Action Cases’, 100 Harv. L. Rev., 1986-87, 78). The criteria for the limited recognition of affirmative action were defined (by Justice Brennan) in the case of Steelworkers v. Weber (1979) [21]. According to him, affirmative action may only be recognized as a temporary means for correcting injustices resulting from racial imbalance, as opposed to an intention to achieve racial balance (‘… a temporary measure, not intended to maintain racial balance but simply to eliminate racial imbalance’). It should be noted that on the basis of this approach, the court upheld the legality of a program under which the promotion of a female employee was preferred to that of a male employee who was also found equally deserving of promotion (Johnson v. Transportation Agency, Santa Clara County (1987) [22]). Even though the factor which tipped the scales in making the selection was the sex of the candidate, the court decided (this time also through Justice Brennan) that the program was legitimate, since it was designed to rectify an injustice of non-representation of women in jobs at that level of seniority that had previously been held only by men, but it did not impede the promotion of male employees.

19. We see therefore that the doctrine of affirmative action gained a foothold in American law neither easily nor openly, but cautiously, narrowly and subject to qualifications. It would appear that two main reasons were jointly responsible for this.

First, the recurring need to reconcile affirmative action with the mandate of the Constitution, which in its rigid definitions forbade preference of any kind. Second, the fact that most affirmative action programs submitted for the court’s review were designed to promote the black population, and American society sometimes has difficulty in admitting the de facto discrimination of this population.

Canada learned a clear lesson from the difficulties posed by the United States’ Constitution, and in drafting the Canadian Charter of Rights and Freedoms, which constitutes the first part of the Constitution Act, 1982, it included the principle of affirmative action within the framework of the definition of the right of equality. The following is the text of s. 15 of the Charter of Rights:

‘Equality Rights

Equality before and under the law and equal protection and benefit of law

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.’

It should be pointed out that the constitutional recognition of the existence of the need to practise affirmative action is very evident in the reasoning of the Canadian Supreme Court, also with regard to the rationale justifying this need. Canada’s Chief Justice (Chief Justice Lamer) expressed this well in C.N. v. Canada (Human Rights Commission) (1987) [25], at p. 1143:

‘The goal is not to compensate past victims or even to provide new opportunities for specific individuals who have been unfairly refused jobs or promotion in the past, although some such individuals may be beneficiaries of an employment equity scheme. Rather, an employment equity program is an attempt to ensure that future applicants and workers from the affected group will not face the same insidious barriers that blocked their forebears.’

20. It should be noted that other countries have also adopted legislation that accepted the criterion of affirmative action in order to advance the material equality of women. Examples of this can be found among European countries that acted under the inspiration of ‘positive action’ of European legislation (see, for example, the article of D.A. Grossman, ‘Voluntary Affirmative Action Plans in Italy and the United States: Differing Notions of Gender Equality’ 4 Comp. Lab. J., 1992-1993, 185). However, I think that the most striking example of all is Australia, which in 1986 incorporated the principle of affirmative action in a law prescribing equal employment opportunities for women: The Affirmative Action (Equal Employment Opportunity For Women) Act, 1986. In this context, see J.J. Macken, G. McCarry & C. Sappideen, The Law of Employment, Sydney, 3^rd ed., 1990, 609; and also the chapter ‘Anti-discrimination legislation and affirmative action legislation’, in the book of C. O’Donell & P. Hall, Getting Equal, Sydney, 1988, 75).

21. It should be recalled that, according the approach of those who recognize affirmative action as a norm in the field of equality, the true test of equality does not lie in declarations of recognition of equality but in its actual realization and its practical results. Indeed, together with the dissemination of the ‘redistribution’ approach, there has been an increase in the importance of statistical evidence; instead of dealing with the question of the existence of discriminatory intent, the importance of which has greatly declined, attention has focused on the realities of the situation. This, inter alia, led to the extensive consideration in the rulings of the United States Supreme Court as to the proper degree of use of affirmative action as a device for correcting existing injustices in real equality. Thus, for example, in relating to the expression of practical equality in the labour market, case-law distinguished between ‘ordinary’ jobs, and jobs and positions for which special professional training is required. With regard to the first category it was held that as a rule it should be expected that there will be more or less equal representation in the work force of all elements of the various racial and ethnic groups in the community (Teamasters v. United States (1977) [23]). However, that equality should prima facie prevail in the representation of the various elements of the community, who have the special professional qualifications, also in the professions and the jobs that require those qualifications (Hazelwood School District v. United States (1977) [24]; see also the case of Johnson [22], at p. 632).

The equality of women – de facto

22. The principle of equality, which in the words of President Agranat ‘is merely the opposite of discrimination…’ (FH 10/69 Boronovski v. Chief Rabbis [1], at p. 35), has long been recognized in our law as one of the principles of justice and fairness which every public authority is commanded to uphold. We will not dwell upon the case-law development of basic human right of equality. We should, however, emphasize that as a rule there has never appeared to be a need to enshrine the principle of equality in statute, and certainly it has never been necessary to lay down statutory formulae to impose it in the various spheres of public and social activity. Even the possible entrenchment in the Basic Law: Human Dignity and Liberty, as part of the value of human dignity, is not express but implied (see H. H. Cohn, ‘The Values of a Jewish and Democratic State — Studies in the Basic Law: Human Dignity and Liberty’, HaPraklit — Jubilee Volume, 1994, 9, 32; A. Barak, Judicial Construction, Vol. 3, Constitutional Interpretation, Nevo, 1994, at 423-426; Y. Carp, ‘The Basic Law: Human Dignity and Liberty – A Biography of a Struggle’, 1 Law and Government, 1993, 323, 345 et seq.). It is merely that the statement at the beginning of the Declaration of Independence that the State of Israel would ‘… guarantee absolute social and political equality to all of its citizens irrespective of religion, race and sex’, and the rapid absorption of democratic practices into civil life were sufficient to establish the principle of equality as part of the basic principles and ways of life accepted by all citizens.

But this rule had one exception: although the binding application of the principle of equality in general was easy and clear, upholding the right of equality for women (at least in the social sphere, as distinct from the political sphere) was not so simple and evident. Initially, for historical reasons related to religious laws and ethnic traditions, the social equality of women was a special problem (see A. Rubinstein, The Constitutional Law of the State of Israel, Shocken, 4^th ed., 1991, 325). The Women’s Equal Rights Law, 5711-1951, which was enacted in the first years of the State, was intended to correct this injustice. However, the law was mainly intended to cancel the force of prevailing laws and customs, in so far as these discriminated directly against women. However, in addition to its specific provisions — which established women’s property rights, made women and men equal with regard to the guardianship of children, etc. — the law asserted the equality of women (in s. 1) ‘for every legal act’. In this way, statute recognized the binding legal nature of absolute equality of rights for women. Although the ‘formal’ status of the Women’s Equal Rights Law is no different from that of an ‘ordinary law’, it has always been regarded as a law with a ‘special status’. Indeed, Justice (later Vice-President) Silberg attributed its special status to its being ‘an ideological and revolutionary law that changes the social order; its name and its first “programmatic” section indicate that — apart from the reservation in s. 5 — it seeks to eliminate utterly anything which, under the prevailing law, involves any legal discrimination whatsoever against women…’ (HCJ 202/57 Sidis v. President and Members of Great Rabbinical Court [2], at p. 1537). Recently, Vice-President Justice Barak called the law a ‘majestic’ statute (HCJ 1000/92 Bavli v. Great Rabbinical Court [3], at p. 240). In practice, the law has been interpreted, at least as a rule, as protecting the right of women not merely to equality ‘for every legal act’ in the narrow meaning of the statute, but to equality ‘in every legal respect’ (in the words of Justice Witkon in CA 337/61 Lubinsky v. Assessing Officer, Tel-Aviv [4], at p. 406), i.e., a right to full and complete equality under the law in every respect (for comments on this point see the article of Professor F. Raday, ‘On Equality’, 24 Mishpatim, 1994-1995, 241, at pp. 250-254). Based on this approach, inter alia, the right of women to have an equal part in several spheres of public and social activities which were previously deemed the exclusive province of men, was implemented and enforced de facto (see particularly: HCJ 153/87 Shakdiel v. Minister of Religious Affairs [5]; HCJ 953/87 Poraz v. Mayor of Tel-Aviv–Jaffa [6]).

Unfortunately the recognition, in principle, that women have equal rights, did not help that much in affording women equal status and rights in the fields of employment, work and salary. In order to prevent unfairness and discrimination against women, and to enforce equal standards for both sexes in these fields, the legislator resorted to a series of specific statutes (see, mainly, s. 42(a) of the Employment Service Law, 5719-1959; the Equal Remuneration for Female and Male Employees Law, 5724-1964; the Equal Retirement Age for Female and Male Employees Law, 5747-1987; the Equal Employment Opportunities Law, 5748-1988). But even in these fields the court was at times required to make a decision, not in accordance with provisions in a specific statute, but based on the principle of equality. The most striking example is the disqualification of a provision in an employment agreement, which was made before the Retirement Age Law came into effect, that discriminated between Female and Male Employees with regard to retirement age (HCJ 104/87 Nevo v. National Labour Court [7]).

23. The negligible representation of women on boards of directors of Government corporations is one expression of the discrimination against women in Israeli society. Before we turn to consider the purpose of s. 18A of the Government Corporations Law, which was intended to correct this injustice, we ought to note that discrimination against women in modern society is not an unusual phenomenon even in other free countries that are considered civilized in every respect. We ought to see clearly that discrimination against women in the fields of employment and economic activity has a destructive effect on the equality of the social status of women in its widest sense.

It is merely that attitudes and assumptions from the past continue to exert their influence almost everywhere. Note that we are not dealing at all with discrimination based on a stated ideology but with social habits that have become entrenched and are fed by the existence of a kind of unconscious consensus — which prevails of course even among women themselves — that makes discrimination into a continuing social phenomenon. An indication of this attitude can be found in a report submitted in 1984 by a commission chaired by Rosalie S. Abella (who has since been appointed judge in the Court of Appeals for Ontario), which investigated instances of inequality in the employment of women in Canada. The report presented by the Abella Commission (Report on Equality in Employment, Ottawa, Ministry of Supply and Services of Canada, 1984) contains a discussion of factors that create systematic discrimination against women. Below is a brief excerpt from the report, at pp. 9-10, on this matter:

‘In other words, systematic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of “natural” forces, for example, that women “just can’t do the job”.’

Searching for the causes of discrimination against women in any sector, when its existence as social reality in that sector is proved by statistical evidence, is of secondary importance; for in general it is possible to assume that discrimination against women in any sphere — particularly when their promotion does not depend merely on the qualifications of candidates but also on decisions made at organizational power centres — is a result of a deep-rooted consensus which many upright people act upon without being aware of the impropriety in their behaviour. But the absence of discriminatory intent is irrelevant; for the problem is the phenomenon of discrimination against women, as a proven fact, and discrimination is wrong even when there is no intention to discriminate (see: the remarks of Justice Bach in Nevo v. National Labour Court [7] at p. 759; the remarks of the Vice President Barak in Bavli v. Great Rabbinical Court [3] at pp. 241-242).

It is also important to understand, in the spirit of what has already been suggested, that discrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks. Remarks to this effect were recently written in the United States:

‘Practices that prevent women from participating equally in the work place are not justifiable, even if done by employers who are unaware of the discriminatory effects. Maintenance of the status quo is itself discriminatory and has more than a merely economic impact on women’s lives. Inequality in the workplace translates into more general restrictions on women’s abilities to direct and control their lives; political and social influence follow from the independence that can come only with economic freedom’ (Note, ‘The Civil Rights Act of 1991 and Less Discriminatory Alternatives in Disparate Impact Litigation’, 106 Harv. L. Rev., 1992-93, 1621, 1622).

See and cf. also remarks made, to exactly the same effect, in C.N. v. Canada (Human Rights Commission) [25], at pp. 1143-1144.

Section 18A construed according to its purpose

24. Section 18A was intended to correct the injustice in the lack of proper representation of women on the boards of directors of Government corporations. In order to realize this objective effectively, the legislator employed, for the first time, the principle of affirmative action.

It should be mentioned that the principle of affirmative action, which is set out in s. 18A, is not a complete innovation in our legal system, and that on several occasions in the past the court has considered it as a possible means for achieving equality in special cases. Thus, for instance, in HCJ 246/81 Derech Eretz Association v. Broadcasting Authorities [8], Justice Shamgar pointed out that the premise ‘whereby equality means that equals are to be treated equally and non-equals unequally still makes it necessary to determine the characteristics and elements by which equality is measured and to evaluate their extent and degree in each specific case’ (ibid., at p. 19 {38}). He went on to state:

‘A question that derives from this is, for example, whether instantaneous equality is indeed just in its immediate result, or whether there are circumstances in which equality can only be achieved by adopting operative methods that treat people unequally, such as when seeking to apply reverse discrimination…’

In the same judgment, Justice Barak emphasized that ‘it is not at all a paradox that in order to achieve equality one must act differentially’ (ibid., at p. 11 {31}), and after quoting from Justice Blackmun’s opinion in University of California Regents v. Bakke [19], he added graphically (ibid. [8], at p. 12):

‘Indeed, affording a rich man and a pauper the equal opportunity to sleep under a bridge does not create equality between the two in respect of their chances of a good night’s sleep.’

Another example can be found in the remarks of Justice Netanyahu in HCJ 720/82 Elitzur Religious Sports Association, Nahariyah Branch v. Nahariyah Municipality [9], at p. 21:

‘Moreover, equal treatment does not always lead to a just result, and sometimes one must act unequally in order to achieve justice, depending on the objective that we wish to achieve. When the starting position of one person is lower than that of another, it is necessary to give him more in order to make the two equal… the justice of the result is what counts and not the sanctity of the principle of equality, which merely serves the purpose of achieving justice.’

In this spirit Justice Or held, in HCJ 528/88 Avitan v. Israel Lands Administration [10], that leasing land cheaply for the housing requirements of Bedouins, which the State has an obvious interest in achieving, does not contravene the principle of equality, and therefore it does not entitle someone who is not a Bedouin (like the petitioner) to claim that he too should be leased land for housing on the same terms.

But it can be shown that examples in case-law of the principle of affirmative action are few and of limited application. Professor Raday was therefore correct in pointing out (in her article, supra, at p. 259) that ‘the concept of affirmative action is almost unknown in Israel’. Its incorporation as a statutory norm, in s. 18A of the Government Corporations Law, can indeed be regarded as a significant innovation in the normative outlook. In my opinion, it should be accepted and recognized as a criterion of equality, which is one of the necessary implications and one of the main guarantees of the principle of equality itself (similar to the approach adopted in Canada), rather than as a tolerated exception to the principle of equality (like the limited approach that has taken root in the United States). Time will tell what will be the scope of operation of the principle of affirmative action in Israeli society de facto. But by including the principle of affirmative action within the framework of the said s. 18A, the legislator rightly expressed a clear intention to oblige ministers (and the Government, where relevant) to initiate deliberate and intentional action whose clear objective is to correct existing injustices in the real equality of women in the economic sector that de facto is within the Government’s control. Ostensibly this is a defined and limited specific need, which appears indispensable in view of the figures presented to the Knesset with regard to the negligible representation of women on boards of directors of Government corporations. But these figures were evidence of a social phenomenon that is clearly more widespread; in other words, general acknowledgement of the right of women to complete and absolute social equality does not truly exist in real life. They clearly showed that in our society, which recognizes equality and supports it as a principle of justice and fairness, talk about equality is one thing and its application is quite another. Indeed, personally I refuse to believe that the figures presented to the Knesset indicate a phenomenon that is unique to the composition of boards of directors of Government corporations. It is far more logical to assume that the figures presented, about the significant and obvious discrimination against women in the composition of these boards of directors, are merely a reflection of a much wider social phenomenon. Therefore it is quite possible that the innovation of s. 18A may and should be interpreted against a background of the objective context of a broad social need, namely, the need to strengthen the share of women in employment frameworks in general, and management levels in particular, in all sectors of the economy. This approach would appear to be required by the recognition that the enactment of the Basic Law: Human Dignity and Liberty raised the principle of equality to ‘a constitutional, super-legislative normative status’ (in the words of Justice Or in HCJ 5394/92 Hoppert v. ‘Yad VaShem’ Holocaust Martyrs and Heroes Memorial Authority [11], at p. 362). Therefore there are grounds for an assessment that from now on the right of equality will be construed — according to the criteria of the Basic Law: Human Dignity and Liberty — as protecting the individual not merely from the arbitrariness of authorities, but also from the lack of good faith of others within the framework of the relationship in the field of private law (see the remarks of Justice Barak in CA 294/91 Jerusalem Community Burial Society v. Kestenbaum [12], at pp. 530 et seq.; in his article ‘Human Rights Protected in Private Law’, in The Klinghoffer Book on Public Law, The Harry and Michael Sacher Institute for the Research of Legislation and Comparative Law, edited by I. Zamir, 1993, 163; and in his book, supra, at pp. 647 et seq.. See also Professor F. Raday’s article, ‘The “Privatization of Human Rights” and the Abuse of Power’, 23 Mishpatim, 1994, 21).

25. The lesson that must be derived from this is: since discrimination against women in modern society is mainly a phenomenon rooted in subconscious beliefs, the moral strength of a society that aspires to equality can be measured by the extent of the positive measures and efforts that it is prepared to adopt and invest in breaking down the status quo and creating a new and egalitarian reality. In this context, affirmative action has great, and maybe decisive, importance; the intentional and deliberate de facto advancement of the group that is a victim of discrimination towards the positions of which it was deprived in the past not only corrects the practical injustices of inequality, but also creates a new reality, which will eventually eliminate from the world even the hidden roots of discrimination and the consequences that accompany it. In this way an act of affirmative action, designed mainly to correct a specific injustice, is likely to serve a general purpose of realizing the principle of equality. A simple example given in the article ‘Human Rights — Statutory Interpretation — Affirmative Action’, by D. Greschner and K. Norman, 63 Can. B. Rev., 1985, 805, 812, will emphasize this:

‘When a program is said to be aimed at remedying past acts of discrimination, such as by bringing women into blue-collar occupations, it necessarily is preventing future acts of discrimination because the presence of women will help break down generally the notion that such work is man’s work and more specifically, will help change the practices within that workplace which resulted in the past discrimination against women. From the other perspective, when a program is said to be aimed at preventing future acts of discrimination (again by bringing women into blue-collar occupations), it necessarily is also remedying past acts of discrimination because women as a group suffered from the discrimination and are now benefiting from the program.’

The test of ‘proper expression’ and the ‘circumstances of the case’ reservation

26. In view of the aforesaid, let us return to the questions that are the subject of dispute between the parties and that we defined at the end of paragraph 11 supra. The first question requiring clarification is: what is the nature of the obligation imposed on the competent minister (or, where relevant, on the Government) under s. 18A(b) of the Government Corporations Law? The answer to this question derives from the construction of two key concepts in the text of the section: one is ‘proper expression of representation’, which determines the criterion for affirmative action with which the Minister is compelled to comply; the other is ‘to the extent that circumstances allow’, which establishes a qualification to the minister’s duty to comply with this criterion de facto with respect to every appointment.

27. Since counsel for respondents 1-6 concedes that neither of the bodies in question give ‘proper expression’ to the representation of women, I see no need to propose a comprehensive answer to the substance of this concept. Nonetheless, and in view of the affidavit in reply submitted to us (by the assistant to the Minister of Finance) about the procedure prescribed by the Minister for implementing s. 18A (the precise wording of the deponent were set out in paragraph 9 supra), I would like to make the following comments:

I accept that the term ‘proper representation’ — with regard to the representation of both sexes in the composition of a board of directors — must be construed in accordance with the special circumstances of the case. This means that we are not speaking of fixing equal quotas, or any quotas at all, for the representation of either men or women; but we are speaking of giving proportional representation to each of the sexes, and the proper degree thereof should be determined in accordance with the character, the purposes and the special needs of the Government or statutory corporation under discussion, and according to the distribution of the candidates of both sexes found to be suitable for the specific office that is sought. It is possible that the conclusion that derives from this premise is that in the absence of proven circumstances that justify giving greater weight to members of one sex, ‘proper expression’ should be interpreted to require equal representation for men and women. However, in general and specifically, we must take care not to instil an approach that holds that giving any representation to women may be deemed giving women proper representation. The procedure established by the Minister of Finance, according to the affidavit in reply submitted on his behalf, has precisely this deficiency; for it appears from what is stated in the affidavit that the Minister directed himself to consider the appointment of a woman to the board of directors of a Government corporation only when it transpired that no woman held office on the current board of directors, and the appointment under discussion was one of the last three vacancies in the total number of directors. It should therefore be emphasized that this procedure is inconsistent with the approach underlying the provision of s. 18A, which requires proper expression — and not any expression — of the representation of women.

28. We shall now consider the reservation ‘to the extent that circumstances allow’.

Section 18A(b) imposes a duty on ministers to appoint directors of the sex that is not properly represented, until proper expression of the representation of both sexes is achieved in the composition of the board of directors. This obligation is not absolute but relative, since its application for ministers is qualified by the words in the section: ‘to the extent that circumstances allow’. By providing this qualification, the legislator wished to balance between two potentially conflicting interests: the obligation of affirmative action and the existence of constraints arising from the prevailing practicalities. But what is the precise nature of the proper balance? Obviously if for a particular office there is not one female candidate who has the necessary qualifications, it will be easy to determine that the terms of the reservation are satisfied, i.e., the appointment of a woman is impossible in the circumstances of the case. But what about a case where both the male and the female candidates for a position have the necessary qualifications, but the qualifications of each of the female candidates do not reach the same standard of the qualifications of one of the male candidates? Even in such a case is it not possible to determine that the male candidate who, in comparison with the other male and female candidates is the best, should be preferred? It should be noted that counsel for the petitioner suggested that this question should be answered in the affirmative. Affirmative action for women — she claimed — merely means that when there is absolute equality in all other respects, the appointment of a woman is preferable to the appointment of a man. But I would prefer to adopt a more flexible test, that makes the decision conditional upon the special circumstances of each case, after considering the relevance in the said context of the relative advantage of the male candidate, against a background of the recognition of the centrality of the principle of affirmative action. Thus, for instance, if the relative advantage of the male candidate over a female competitor derives from his particularly rich practical experience as a director on various boards, I would tend to regard taking the candidate’s experience into account as a valid consideration justifying his being given preference only if it were proven that, in the circumstances of the case, the extensive experience of the candidate is an especially relevant consideration. An example of this would be where the existing composition of the board of directors only contains a few experienced directors, and for this reason it is especially important to bring in a director with extensive experience. If this is not the case, a female candidate ought prima facie to be chosen, even though she is less experienced. The reason for this derives from the principle of affirmative action, for in a social context where women have been the victims of discrimination, it is only natural that more men than women with be found with experience in management. Preferring male candidates over female candidates because they have greater and more varied practical experience, is liable to perpetuate the same models of discrimination against women that section 18A was intended to eliminate. It is not superfluous to point out that the very same considerations may test the definition of qualifications, according to which a minister will decide that, in the circumstances of the case, a woman cannot be appointed. In other words, if it transpires that the qualifications, according to which the Minister decided to prefer the appointment of a man, are irrelevant for carrying out the particular job, it may and should be determined that the reservation does not apply and that the duty to prefer the appointment of a woman has been breached.

29. In principle it should be emphasized that in the internal balance between the duty of ministers to prefer the appointment of women and the extent of the taking into account the limits of the framework within which ministers are directed to carry out this duty, primary importance should be attached to the duty to prefer women. We should remember that the duty of preference in the appointment considerations is general, while the reservation (that releases the appointing minister from the said duty) is likely to apply only in exceptional cases, in which carrying out the duty is not possible.

30. An additional conclusion that is required here is that the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question. When he must appoint a director from among the employees of his ministry, the examination must encompass all the female employees in his ministry who prima facie have the basic qualifications required. If he must choose the candidate from among the general public, his examination must encompass those sectors of the population where a suitable female candidate is likely to be found. This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a ‘formal’ search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. For this purpose, it is not impossible that the Minister will seek assistance not only from his assistants and advisors, but also from external public bodies (such as business guilds, professional associations and societies, trades unions, the universities, women’s organizations, etc.) and of professional authorities (such as the Adviser on the Status of Women in the Prime Minister’s Office), who have in their possession the relevant information which he needs and who may recommend candidates with the qualifications required for the various appointment.

The appointments under consideration

31. In the appointments under consideration, did the Ministers (or, where relevant, the Government) discharge their duty under s. 18A(b)? I regret that I must answer this question in the negative.

It should be pointed out that in the case of the appointment of the directors at the ‘Refineries’ this question was not really in dispute. These appointments were made by a joint decision of the Minister of Finance and the Minister of Energy and Infrastructure. From the affidavits in reply submitted on behalf of the Ministers, it transpires that the proposal to appoint Mr Kashuv and Mr Wagner were made by the Minister of Energy and Infrastructure, and the Minister of Finance supported that proposal. Thus it is stated in the affidavits that prior to the decision about the appointment of the said directors, neither Minister making the appointment gave any thought to complying with his duty to prefer the appointment of women. This was true even with regard to the Minister of Finance; for even if we assume that in this matter the Minister acted in accordance with the procedure that he outlined for his assistant, in view of the defect in this procedure, which I have already discussed, even if he followed these precisely he would not have discharged his duty. This is also true of the Minister of Energy and Infrastructure, since the supplementary affidavit submitted on his behalf (by the Director-General of the Ministry) includes an express admission that prior to the said appointment the Minister did not examine a list of suitable female, for — so it was alleged — such a list (now in his possession) did not yet exist. A similar admission is implied also in the first affidavit submitted on behalf of the Minister of Energy and Infrastructure by the head of the Planning and Economy Administration in his Ministry. In this affidavit, it will be remembered, the considerations that led the Minister to propose the candidacy of Mr Kashuv and Mr Wagner are listed. Although this affidavit does indeed say that the Minister is aware of the need to propose a female candidate for membership on the board of directors of the ‘Refineries’, this was said with regard to the future; in other words, before filling the two remaining vacant positions on that board of directors, the Minister was indeed considering the appointment of a woman (note: the appointment of a woman and not the appointment of women). The simple and clear conclusion to be drawn from the affidavits in reply is that the Minister of Finance and the Minister of Energy and Infrastructure decided on the appointment of two new male directors to the board of directors of a Government corporation whose members were all men, without thinking about discharging the duty imposed on them, under s. 18A(b), to prefer the appointment of women.

32. The conclusion about the non-compliance with the provision of s. 18A(b) is inescapable also with regard to the appointment of Mr Haiek as a member of the board of the Ports and Railways Authority.

The persons involved in this appointment were the Minister of Industry and Trade, who chose Mr Haiek as his candidate for this position, the Minister of Transport, who submitted the proposed appointment to the Government, and the Government which decided to make the appointment. The facts before us do not show that the Minister of Transport or the Government thought about their duty to prefer the appointment of a woman. The Minister of Industry and Trade — as can be seen from his affidavit in reply — thought that since he was only able to recommend the appointment of one candidate, who was supposed to be chosen from among the employees of his Ministry, it was sufficient for him to choose the person who, in his opinion, was ‘the best and most suitable candidate for the job from among the employees of the Ministry’. According to this criterion, the Minister thought it was natural for him to choose Mr Haiek. So although the Minister did not disagree with the petitioner’s argument that the twenty-five women on the senior staff of his Ministry also had good qualifications, his affidavit does not say that he considered the candidacy of any of them. On the contrary, his affidavit shows that in his opinion he did not have any duty to consider any other female candidates. I cannot sanction such an approach. I am albeit prepared to accept as a fact that special and extensive knowledge of Mr Haiek with regard to the activity of the Ports and Railways Authority was an important and objective factor in his selection. But in my opinion the Minister was not entitled to decide the outcome of the selection before he examined whether among the senior employees of his Ministry there was a female candidate who was well qualified for carrying out the job under discussion. It is insufficient that the Minister assumed, or even knew, that no female worker in his Ministry could compete with Mr Haiek, in so far as the scope and depth of his knowledge of the Authority’s activities were concerned. Had he examined the matter, he might have found that the excellent professional qualifications of a female candidate (even if her knowledge of the Authority’s activities was not equal to that of Mr Haiek) made her, on the whole, a candidate whose chances of filling the position successfully were not smaller.

As stated, the Minister of Industry and Trade had a duty to make an examination, and without doing this the Minister did not have the authority to complete the proceeding of selecting his candidate. With regard to the representative of his Ministry on the board of the Authority, his decision was of decisive importance. Nonetheless, it must be emphasized that the duty to ascertain, at the proper time, whether such an examination had indeed been made was the duty also of the Minister of Transport, when he was required to submit his proposal for the appointment of Mr Haiek for the decision of the Government, and it was also the duty of the Government, before it decided to support the proposal and approve the appointment.

The defect and the remedy

33. Under s. 18A(b), the Ministers were obliged to prefer the appointment of a woman for each of the jobs. The evidence shows that not even with regard to one of the jobs was the possibility of appointing a woman considered at all. Since we are concerned with a disregard for a consideration that the law gives express preference, the inescapable conclusion is that the Ministers’ decisions are clearly and manifestly unlawful.

What should become of the appointments made on the basis of these decisions? The petitioner’s position is that the appointments are unlawful and therefore should be set aside. Counsel for respondents 1-6, who related to this in her alternative argument, did not dispute that the defect in the decisions does indeed give rise to a basis for setting them aside. Nonetheless, she argued that in the circumstances of the case the court should content itself merely with granting declarative relief, whose purpose should be to apprise the Government and the Ministers of their mistake and to direct them with regard to the methods of implementing the provision of s. 18A(b) in the future. The three reasons that she gave in support of this position (already mentioned in para. 12, supra) were, it will be remembered, the following: first, that we are speaking of a new and innovative provision of law, and the failure to implement it in the present cases should be attributed to the error of the Ministers and their not being sufficiently aware of the nature and scope of the duty imposed on them; secondly, that the candidates who were appointed are qualified and suitable, and therefore there is no harm to the public in allowing their appointments to stand; and third, that setting the appointments aside retrospectively would harm each of the candidates appointed, and would violate the principle that ‘one should not remedy an injustice with an injustice’.

34. In my opinion, the law in this dispute supports the petitioner. We are dealing with administrative decisions, made at the most senior level (by the competent Ministers, and in one of the cases by the whole Government), with complete disregard for the existence of an express statutory provision. It is true that we are speaking of a new statutory provision which introduces an innovative norm, but it is impossible not to comprehend the importance of the purpose that the said law is intended to achieve: de facto equality for women in the economic sector which is wholly under the control of the Government. It follows that even the innovation in the criterion of affirmative action does not lessen the seriousness of the failure to act in accordance with the law. Perhaps the opposite is the case, for the adoption of precisely this special measure should have alerted the Ministers to the degree of importance and the degree of urgency with which the legislator viewed the need to correct the injustices of discrimination against women. Hence, there is no significance to the argument that the defective decisions were the result of an oversight. On the contrary, if further proof is required of the essentiality of enforcing this law, the alleged lack of awareness of the Ministers to act in accordance with its binding provision provides the necessary proof. Furthermore, the approach underlying the procedure laid down by the Minister of Finance following the passage of the Appointments Law, and the affidavits in reply that were submitted in these petitions merely strengthen the impression that the nature of the obligation imposed on the Ministers under section 18A(b) has not yet been properly understood. We have already discussed the danger in upholding the status quo, and there are genuine grounds for apprehension that any concession with regard to complying with the binding provision of the law will encourage this negative trend. It follows that the court has a duty to take a firm stand and enforce the realization of the new norm.

It follows automatically that the second reasons of counsel for respondents 1-6, that allowing the appointments to stand will not harm the public, must also be rejected. There is no need to bring further evidence to show that non-compliance with the law harms the public interest; the fact that the candidates who were appointed are, in themselves, worthy and qualified persons does not detract from the harm to the public interest from holding selection and appointment proceedings tainted by illegality. Moreover, the statute’s stated objective is that, to the extent that circumstances allow, the Ministers are obliged to prefer the appointment of a woman. The appointments that were made did not realize this purpose; even in retrospect, the respondents failed to produce any evidence that even if the appointment proceedings had been held in accordance with the binding provision of the law, the results (or some of them) would not have changed, because of the impossibility of appointing a woman to one of the positions.

35. We are left with the argument that setting aside the appointments will harm the candidates who were appointed and who have already assumed their new positions.

The significance of the rule that ‘one should not remedy an injustice with an injustice’ (in the words of Justice Berinson in HCJ 292/61 Rehovot Packing House Ltd v. Minister of Agriculture [13], at p. 31 {107}), on which the respondents rest their case, is apparently that even if there was a defect in an administrative act, the act will not be set aside if this harms innocent third parties. It appears that, in the past, this court tended to regard this rule as decisive, and the question of the justice of setting aside an administrative act was considered, in several cases, in this perspective (see the decision of Justice Malz in HCJ 199/86 Amir Publishing Co. Ltd v. Minister of Tourism [14], and the references cited at p. 531). But this approach, which attributes decisive weight to this rule, is no longer accepted. The law currently holds that the possibility of harming innocent parties should be taken into account (according to its proper weight in the specific case) within the framework of a balance of all the relevant considerations. The standard for the balance derives from the weight of each of the conflicting considerations in the circumstances of the specific case. The accepted tendency — particularly when dealing with an administrative act that suffers from a serious defect — is to set aside the administrative act, while trying to restrict, in so far as possible, the damage to third parties who relied on it in good faith. President Shamgar considered the balancing considerations in such a case in HCJ 5023/91 Poraz v. Minister of Building [15], where it was decided to set aside a flawed administrative decision, while leaving some of its results untouched. The following are his remarks, at pp. 804-805:

‘As has been explained, the importance of the trend not to ratify improper acts is that it prevents any benefit being derived from an improper act and prevents the creation of a feeling among the public that the power to circumvent or evade the proper procedures prevails, de facto, over the duty to uphold them.

In a case like this, we must balance between the objective of maintaining proper executive administrative and preventing abuse of authority and the desire not to harm an innocent party, who completed his act before the proceedings began.

The second objective of recognizing an act carried out in good faith prevents the undesirable result of remedying one injustice with another injustice towards someone who did no wrong.’

Another example is the case of HCJ 2994/90 Poraz v. Government of Israel [16], where an order was made, setting aside the Emergency (Emergency Plans for Building Residential Units) Regulations, 5750-1990, but important considerations were found to suspend the effect of the order so that the parties who acted in good faith on the basis of the regulations could prepare themselves, and also so that the Knesset should have time to consider new legislation that would validate the acts already carried out (see the remarks of Justice S. Levin, ibid., at p. 323).

In this context we should also remember the case of HCJ 2918/93 Kiryat Gat Municipality v. State of Israel [17]: when the decision of the Government to reclassify development towns and development areas was set aside because it was contrary to the provisions of the Development Towns and Areas Law, 5748-1988, the justices were divided in their opinions as to whether there were reasons justifying a suspension of the effect of the order that set the decision aside. I thought, in a minority opinion, that suspending the effect of the order was ‘not an option available to the court, when the order dealt with putting an end to an arrangement which had been held to be tainted by clear and manifest illegality’ (ibid., at p. 845), and in any case, the circumstances of that case did not warrant a suspension of the effect of the order. But my esteemed colleagues (Justice Goldberg and Justice Dorner) held that the immediate setting aside of the Government’s decision might harm towns that had relied on it. We therefore held, by a majority, to suspend the effect of the order for a period of four months. This is not the place to discuss the details of that disagreement (see, in this respect, what is stated in Professor Barak’s book, supra, at pp. 746-748). But I will point out that even Justice Dorner, who joined the majority on this matter, argued forcefully, at p. 848, that ‘the first and principal interest that the court will take into account in exercising its discretion with regard to determining the results of the violation and the resulting remedies, if the interest of upholding the rule of law; the more substantial and serious the breach of the law, the more the weight of this interest increases.’ Moreover, ‘only in exceptional circumstances will the court not order the immediate setting aside of an administrative act tainted by a material defect.’

With respect, it seems to me that even according to this approach the appointments in the petitions before us cannot stand; what is more, the respondents’ request is not to suspend the effect of the annulment for a limited period (which, under the circumstances, appears reasonable), but to leave the defective appointments as they are. I am not ignorant of the fact that setting aside the appointments will harm each of the directors, and this harm is certainly regrettable. But the main interest under discussion is the practical implementation of the provision of s. 18A of the Government Corporations Law’s requirements, the special importance of which has been discussed at length. This important interest tips the scales.

36. The inescapable result, in my opinion, is therefore that in both petitions an order absolute should be made, setting aside the appointments that were made and ordering the relevant Ministers to begin the appointment proceedings anew, in the course of which the binding provision of s. 18A(b) of the Government Corporations Law will be upheld. I will reemphasize that not even the slightest fault was found with any of the directors whose appointments are being set aside. Therefore our judgment will not bar any of them from being appointed as a director in a Government corporation. It is also possible that in the new appointment proceedings — when the provisions of the law are upheld — one of them may be reappointed to the same position to which he was appointed in the previous proceeding. In order to prevent any disturbance to the proper and uninterrupted activity of the board of directors of the ‘Refineries’ and the board of the Ports and Railways Authority, I think it appropriate and correct, in the circumstances, to rule that the order absolute made in the petitions shall come into effect on 31 December 1994.

In my opinion, we should find the State liable for the costs of the petitioners, in both petitions, for a total amount of 10,000 NIS.

Justice I. Zamir:

I agree. Nonetheless, I see no need, in reaching the result reached by my colleague, Justice Mazza, to rely on the Basic Law: Human Dignity and Liberty.

The principle of equality has deep roots in Israeli law. It has always been accepted as one of the basic values of the State. The Declaration of the Establishment of the State clearly states this. And the courts relied on this Declaration and on other sources in order to determine that the principle of equality is a guiding rule in the construction of laws. This is true in general and this is true of the equality of the sexes, which also is enshrined, inter alia, in the Declaration of the Establishment of the State. Here, for example, are remarks made, on the subject of sexual equality, by Justice Barak in Poraz v. Mayor of Tel-Aviv-Jaffa [6], at p. 331:

‘Among the fundamental values of our legal system, the value of equality is accepted and recognized.’

And at p. 333:

‘… we must presume that by enacting the Religious Services Law and the Regulations, the parliamentary and subordinate legislators wanted to uphold the principle of equality… We must interpret this authority in a way that the power of subordinate legislation may not be exercised in a way that undermines the principle of equality.’

These are matters that are well-known, and Justice Mazza has elucidated them very well. It follows that we merely have to apply them to the case before us, for the purpose of the interpretation of s. 18A of the Government Corporations Law.

Indeed, the principle of equality, as a rule of construction, receives powerful expression in the Basic Law: Human Dignity and Liberty. Section 1 of this Basic Law states:

‘Basic human rights in Israel are founded on the recognition of the worth of man, the sanctity of his life and his being free, and they shall be respected in the spirit of the principles in the Declaration of the Establishment of the State of Israel.’

This section states, inter alia, that laws, in so far as they relate to basic human rights, shall be construed in the spirit of the principles found in the Declaration of the Establishment of the State of Israel, including the principle of equality. But this is merely an impressive declaration which in fact says nothing new, for we have long since acted in this way.

My colleague, Justice Mazza, says more than this. He states, albeit not decisively, that the principle of equality is enshrined in the Basic Law: Human Dignity and Liberty ‘as part of the value of human dignity’, which is one of the rights enshrined in this Basic Law, and therefore the Basic Law has had the effect of elevating the principle of equality to a ‘constitutional, super-legislative normative status’ (see paras. 22 and 24 of his opinion). This is a far-reaching statement. What does it mean that the Basic Law: Human Dignity and Liberty elevated the principle of equality to a super-legislative status? As stated, this has no real practical effect in so far as the construction of the law or the implementation of the law are concerned, for this was the law even prior to and without the Basic Law. It follows that this has only one practical significance: that from now on, the court can use the principle of equality for constitutional review of laws. In other words, the court can use it as a basis for setting aside a new law that is inconsistent with the principle of equality. It is questionable whether this is really the intention of the law.

In case-law since the enactment of the Basic Law: Human Dignity and Liberty, various obiter dicta can be found that see many aspects in the Basic Law. This is particularly so with regard to the right to dignity. The same is true of legal literature. Some see in human dignity the principle of equality, some see in it the freedom of speech, and some see in it other basic rights that are not mentioned in the Basic Law. Someone compiling these statements could receive the impression that human dignity is, seemingly, the whole law in a nutshell, and that it is possible to apply to it the saying of the rabbis: ‘Study it from every aspect, for everything is in it’.

I would like to warn myself, in this context, against making obiter dicta that find their way in-between the lines of judgments, on such a fundamental and basic matter, without thorough discussion of the matter itself as a necessary part of the judgment. I believe that if it is not necessary, it is better not to commit oneself until the need arises. Let us cross that bridge when we come to it, in the sense of ‘do not raise or disturb it until it is required’.

In this case, I think that there is no need to say that the principle of equality is a basic right enshrined in the Basic Law: Human Dignity and Liberty, as part of the right of dignity, and that it therefore has super-legislative status. Time will tell whether this is the case. For the time being, it is sufficient that s. 18A of the Government Corporations Law provides the right of equality, in the sense of affirmative action, and the court merely construes and applies this section in the way long since accepted by it.

On this basis, I agree with the opinion of my colleague, Justice Mazza.

Justice Y. Kedmi

1. Introduction

Regrettably I cannot agree with the conclusion reached by my learned colleague, Justice Mazza, in his illuminating judgment, even though the principles set out there, per se, are acceptable to me.

I have two reservations with regard to my colleague’s decision, which have ramifications on the outcome that he reached. The first refers to the manner of implementing the duty incumbent upon Ministers who appoint directors under the provisions of s. 18A of the Government Corporations Law (hereafter — the law); the second refers to the ramifications of non-compliance with the said duty, in the special circumstances of the case that was argued before us.

Below I shall discuss each of the two reservations separately.

2.    Section 18A of the law — the duty incumbent upon ministers

a.     General

(1) The apparently ‘operative’ provision in sub-section (b) of s. 18A of the law embodies the essence and meaning of the obligation prescribed in sub-section (a) of that section; for the present case, the reservation ‘to the extent that circumstances allow’ (hereafter —the reservation) is important — and decisive.

(2) Sub-section (b) does not speak of a ‘transition period’ at the end of which it will ‘expire’. In my opinion, sub-section (b) presents a ‘permanent provision’, which remains valid at all times and with respect to every board of directors on which the duty prescribed in sub-section (a) has not been fulfilled.

b.    ‘Proper Expression’

(1) I accept in this respect the position of my colleague, that — as stated in para. 27 of his opinion — this expression has a flexible meaning, adapting itself to ‘the special circumstances of the case’. In other words, ‘we are not speaking of fixing equal quotas, or any quotas at all… but we are speaking of giving proportional representation to each of the sexes, and the proper degree thereof should be determined in accordance with the character, the purposes and the special needs of the corporation… and according to the distribution of the candidates…’ etc..

(2) In this situation, the aforesaid sub-section (a) establishes a ‘relative duty’ to guarantee ‘proper expression’, subject to the special circumstances of each corporation; and the determination whether there is ‘proper expression’ as stated, on this or that board of directors, is within the discretion of the appointing minister.

(3) In my view, the minister must act in the context under discussion here in two stages: in the first stage, he must examine whether, on the board of directors under discussion, there is no ‘proper expression’ of the representation of members of both sexes as stated in the sub-section; and only where his answer is negative, he must examine whether ‘in the circumstances of the case’ — subject to the reservation stated in sub-section (b) — he is able to appoint a suitable director of the sex that is not ‘properly’ represented on the board of directors at that time.

c.     ‘To the extent that circumstances allow’

(1) Everyone agrees that this expression provides a reservation with respect to the duty of appointment set out in sub-section (a). In my opinion, we are talking about a reservation that relates both to the requirements of the job and to the qualifications of the candidates. Therefore, even where the appointing Minister reaches a conclusion that the composition of the board of directors does not reflect ‘proper expression’ of the representation of both sexes, someone of the sex that is not properly represented will not be preferred, if in the circumstances of the case the position requires qualifications which that person does not have, whereas a candidate of the other sex does have them.

(2) In this situation, the crux of the matter lies in locating the candidates. The position that I find to be implied by the arguments of the petitioner is that the party making the appointment must act in every possible way in order to locate candidates of the under-represented sex, in all sectors of the population; whereas in my opinion, it is sufficient, in this context, for him to act reasonably.

For this reason, as a rule, the minister may in my opinion content himself by examining lists of candidates — of both sexes — from among the employees of his ministry, whose sphere of activity is related to that of the corporation concerned (including workers as stated who are employed in bodies connected with the ministry’s activities). He is not obliged to apply to ‘external’ parties and to make every possible effort specifically to locate ‘women employees’, outside the ministry, even if it is possible to appoint to that position someone who is not ‘an employee of the ministry’. The appointing Minister is required to act in this respect with ‘reasonable diligence’ and no more; as long as his activity lies within the bounds of reasonableness, the appointment will not be tainted with illegality because he did not locate this or that woman candidate.

The duty incumbent upon the minister is not to remedy the ‘absence of proper representation’ in every possible way and in the shortest time possible; it is to act reasonably to ensure equality in the selection process between the two sexes, while preferring ‘equal’ candidates of the sex that is not properly represented — all of which to a reasonable degree and while ensuring that following the principle of equality to remedy the situation does not occur at the expense of the degree of suitability of the candidate for the special requirements of the job.

d. Interim summary

(1) Section 18A of the law requires a minister who appoints a director of a Government corporation to consider the following two issues: first, he must examine whether the specific board of directors gives ‘proper expression’ to the representation of members of both sexes (in the relative sense outlined above); second, in a case where there is no such ‘proper expression’, he is bound to prefer the candidate of the sex that is not properly represented ‘to the extent that circumstances allow’ (in the sense outlined above).

(2) In order to comply with his second obligation, the minister must ensure two things: first, that lists of candidates (of both sexes) who are located with ‘reasonable’ action in the circumstances (as distinct from making every effort to guarantee that no ‘possible’ candidate whatsoever is ‘omitted’) are prepared and submitted to him. Second, where there is no obstacle for reasons of personal qualifications and the requirements of the position — and only in such a case — preference shall be given to the candidate of the sex that is not ‘properly’ represented on the board of directors.

(3) As stated, I do not think that adopting the principle of ‘affirmative action’, as it is expressed in sub-section (b), requires that it be implemented in the extreme sense of ‘taking every possible step’ to locate candidates of the ‘discriminated’ sex. For this reason, it should not be said that pointing to any ‘possible’ step that was not taken is sufficient in order to undermine the legality of a selection of someone of the other sex.

With regard to the preference of a person of the ‘discriminated’ sex, it is, in my opinion, correct to examine and review the decision of the appointing minister — just as with regard to the existence of the absence of ‘proper expression’ of the representation of members of the two sexes (as stated in sub-section (a)), and with regard to the location of a candidate from members of the sex that is not properly represented (for the purpose of complying with the duty of preference required by the provision of sub-section (b)) — with the criterion of ‘reasonableness’, as distinct from ‘putting oneself in the minister’s place’ as was implied, as I understood it, by the arguments of the petitioner; and there will be grounds for the intervention of this court only where we are talking of a gross and extreme deviation from that criterion.

(4) Adopting another standard in the context under discussion here — as is implied by the arguments of the petitioner — will lead, naturally, to a far-reaching restriction of the discretion given to the appointing minister with regard to the selection of the ideal and qualified director, whereas, in my opinion, the language of the reservation set out in sub-section (b) dictates the giving of ‘preference’ — also with regard to the duty of ‘affirmative action’ — to the requirements of the position and the qualifications of the candidates.

With all respect to the legitimate aspiration of the petitioner to attain ‘absolute equality’ in the number of directors of the two sexes in Government corporations as soon as possible, we should not forget that the legislator did not prescribe in this respect a mechanical-formal criterion of a quota, nor did he impose on the appointing ministers an ‘absolute’ duty of affirmative action at any price. The central consideration in the appointment of directors remains — as it was and as it must be — an objective consideration of the requirements of the position and the qualifications of the candidate; this consideration — as expressed in the reservation set out in sub-section 18A(b) of the law — must stand, in the final analysis, above all other considerations.

This court examines the reasonableness of the performance of the appointing minister and does not put itself in his place. One should not regard him — as is implied by the petitioner’s arguments — as someone who must ‘be in the forefront’ of the struggle that underlies the petition.

3.    HCJ 453/94 — a director for the Ports and Railways Authority

a.     The reply of the Minister of Industry and Trade in this matter seems to me sufficient to obviate our intervention in the appointment of Mr Haiek on the grounds of non-compliance with the duty prescribed in s. 18A of the law. The Minister here is responsible for appointing only one director to the board of directors. Naturally, therefore, his scope of choice is very limited, and the qualifications of the candidate — as the representative of the Ministry of Industry and Trade — has decisive weight, which restricts the duty of ‘preference’ set out in the aforesaid section 18A.

b.    The questions that need to be addressed in this respect are the following: did the Minister consider the fact that there was not proper representation of women on the board of directors of the Authority? If so, did he comply with the ‘duty of preference’ set out in the aforesaid s. 18A?

c.     In my opinion, the answer to both questions is in the affirmative:

(1) The Minister was aware that women were not represented at all on the board of directors, and that therefore the duty of preference applied here.

(2) In the circumstances, one cannot say that the Minister failed to comply with the duty of ‘preference’ in the appointment because he ‘contented himself’ with examining the candidacy of the senior women employees of his Ministry ‘only’, and did not contact external parties in order to locate candidates who were ‘foreign’ to the Ministry and the Minister.

(3) The special qualifications required of a director in this case were what tipped the scales in favour of the appointment; and this consideration, as stated, is the decisive consideration underlying the reservation prescribed in sub-section (b).

d.    In this situation, I do not think that we should intervene in this matter, since the proceeding followed by the Minister and the consideration which led him to decide the question of the selection of the candidate are not — in the special circumstances of this appointment — beyond the scope of reasonableness.

e.     To remove doubt, I would like to emphasize once again: even if it is possible that an effort to find women candidates outside the framework of the relevant Ministry would have found a candidate comparable to the male candidate who was appointed — I would not, in the circumstances of the case, regard as beyond the scope of reasonableness the fact that the Minister contented himself with women candidates from inside the Ministry; in any event, in this special case, women candidates ‘foreign’ to the Ministry are ab initio less qualified to be the sole director on behalf of the Ministry.

4.    HCJ 454/94 — Two directors for Oil Refineries Ltd

a.     According to the material before us, the Minister of Energy and Infrastructure was aware of the lack of appropriate representation for women on the board of directors under discussion, as was his duty under sub-section (a) of s. 18A of the law. However — and it appears that everyone agrees on this — he did not take the reasonable steps required to prepare a list of women candidates, and therefore, naturally the qualifications of such women candidates was not examined.

In this situation, one cannot rely on the reservation ‘to the extent that circumstances allow’, and the appointment of the two directors is indeed flawed because of the non-compliance with the duty prescribed in s. 18A of the law.

b.    The question which troubled me was whether, in the circumstances of the case, cancellation of the appointment is a necessary result of the said flaw, in view of the following two considerations: first, what weight should be attached in this context to the special qualifications of the two directors, who were appointed by the Minister on the basis of their many years of experience? Second, what weight should be attached to the personal injustice that each of the two directors who were appointed will suffer as a result of the appointment being set aside?

c.     With respect to the weight that should be attached to the qualifications of the directors who were appointed:

(1) Objectively, the candidates fulfil the requirements of the position and the qualifications, and according to the material before us no-one doubts that this was a proper choice, that befits the requirements and expectations of a director in that organization.

(2) The defect in the appointment is not a defect of ‘lack of authority’, but a defect arising from non-compliance with a ‘duty of preference’ that exists in a sphere which is ‘external’ to the objective sphere that determines the appointment authority.

(3) In this situation, it appears to me that we do not have a ‘duty’ to set the appointment aside — in the sense of ‘let justice take its course!’ — and the matter is subject to our discretion, and the considerations of aptitude for the position and the personal injustice have very considerable weight.

d.    With regard to the personal injustice, I do not think much need be said to demonstrate the nature and force of the injury that each of the two respected directors will suffer personally. Nor was this disguised from us in the responses both of them made to the petition.

I think that we should not allow such an injustice, except in a case where it is unavoidable; but in my opinion, this is not the situation in the case before us.

e. (1) The petitioner did not take the trouble of submitting to us a list of women candidates whose qualifications are ‘equal’ — in every respect — to the qualifications of the two directors who were appointed, nor did it argue before us that it is able to locate such candidates. On the contrary, the petitioner does not even deny the possibility that, after the Minister does his duty and orders a list of candidates to be prepared, the two directors who have already been selected may be selected a second time, both because of the requirements of the position and the special qualifications required to fill it, and because of , first, due to the positions’ specific requirements, and also because of the lack of women candidates who are ‘equal’ to the two who were selected.

By the way, I would like to point out in this context that, in my opinion, wherever the Minister acts on the basis of a list of men/women candidates and there are persons who have complaints about it, the persons with complaints have the burden to show that the criteria used by the Minister in making the list are not reasonable; where it is argued that the selection of the candidates was not made by carrying out the duty of preference in a reasonable manner — those making this claim must prove their claim, whereas the Minister merely needs to give his reasons. In the final analysis, here too the Minister is presumed to have acted properly.

(2) We are being asked to set aside the appointments of the two directors merely because of the defect that no examination was made of the (vague) possibility that, had had a list of women candidates been prepared, and had their qualifications been equal to those of the persons selected, women might have been chosen; this defect has absolutely nothing to do with the qualifications of the two appointees and their objective special and exceptional suitability for filling the positions for which they were selected.

(3) In this situation, the decisive considerations, in my opinion, are the absolutely objective suitability of the qualifications of the two persons who were selected on the basis of their past experience and the special requirements of the position, and the consideration of the personal injustice that will be suffered by each of them as a result of setting the appointments aside.

f.     I have not, of course, ignored the argument that if the appointments are not set aside, what is the point in finding that the Minister did not carry out his duty under s. 18A of the law. In my opinion, it is sufficient in this case to make this determination in order to instil the relatively new provision of the law in the minds of all those who are concerned; but the defect in the manner of applying it, in itself, does not justify — in the special circumstances of this case — taking the harsh and radical step of setting aside an appointment when no-one contests its quality, and when the real possibility of the existence of equal women candidates has not been proved.

5. Conclusion

In view of all the aforesaid, in my opinion:

a.     The petition in HCJ 453/94 should be dismissed.

b.    The petition in HCJ 454/94 should be granted in part by pointing out the defect in the selection process and bringing the matter to the Minister’s attention; but the appointments should not be set aside.

c.     There is no justification for finding the State liable for the petitioner’s costs.

Petition granted by majority opinion (Justice E. Mazza and Justice I. Zamir), Justice Y. Kedmi dissenting.

1 November 1994.