Army

Milo v. Minister of Defense

Case/docket number: 
HCJ 2383/04
Date Decided: 
Monday, August 9, 2004
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

 

Petitioner 1 applied for an exemption from military service for reasons of conscience due to her objection to IDF policy in the territories, which contravened her humanistic, moral ideology. The military authorities rejected the exemption request, and the Supreme Court denied her petition in the matter. Inter alia, the Court addressed the question of the test employed by the military authorities for deciding the question of refusal to serve in the army.

 

The Court noted the existing distinction between general refusal to serve in the army, which is wholly unconditional and most typically grounded in the individual's conscience, and selective refusal, namely conditional refusal which does not entirely rule out military service, but makes it contingent on the fulfilment of certain conditions. The army's policy not to grant an exemption from military service based on selective refusal was judged reasonable.

 

The potential negative impact of such selective objection on the public interest is not limited to its effect on the army's manpower. It might have an adverse morale effect on social cohesion within army ranks and impinge on the necessary principle of separating between the duty to shoulder the burden of military service and obey orders, on the one hand, and  the political debate and the conflicting ideas, opinions and beliefs that characterize Israel's pluralistic society, on the other hand.

 

Making military service dependent on the extent to which a male or female soldier identifies ideologically with the actions of the political and military echelon could dangerously erode the democratic process, which requires submitting to the authority of the majority, and equal sharing in the burden of economic, social and security duties, which is essential to the existence and proper functioning of society and state.

 

The judgment also includes: A distinction between the general power to grant exemption from service under section 36 of the Defense Service Law (Consolidated Version) 5746-1986, and the special exemption relating to women, as prescribed in section 39 of the law.  

Voting Justices: 
Primary Author
majority opinion
Non-writer
majority opinion
Non-writer
majority opinion
Full text of the opinion: 

In the Supreme Court sitting as High Court of Justice

 

HCJ 2383/04

 

Before:                                   Deputy President E. Mazza

                                              Justice A. Procaccia

                                              Justice E.E. Levy

 

Petitioners:                             1. Leora Milo

                                              2. Daniel Shabtai Milo

 

                                                v.

 

Respondents:                          1. Minister of Defence

                                              2. Committee on Conscience-Based Exemptions under section 39 of the Defence Service Law

                                              3. Appeals Committee

 

Petition for Order Nisi and Interlocutory Order

 

Date of session:                       22 Nissan 5764 (13 April 2004)

 

On behalf of Petitioner 1:         Adv. Gaby Lasky; Adv. Smadar Ben Natan

On behalf of Petitioner 2:         Pro Se

 

On behalf of Respondents:        Adv. Yuval Roitman

 

 

 

JUDGMENT

 

Justice A. Procaccia:

 

Introduction

1.       The time has come once again to revisit the question of refusal to serve in the IDF for reasons of conscience, and how it stands in relation to the law and the prevailing social order; the issue of the gap between the dictates of the individual's conscience and the imperatives of the law — whether it can be bridged, what are its limits, and what is the proper middle ground between the individual's inner moral obligation and the fundamental principles of democracy and the rule of law; what are the boundaries within which a human society is capable of acknowledging the legitimacy of disobeying the law on grounds of personal conscience while at the same time safeguarding itself from doom; how it might be possible to reconcile the constitutional value whereby freedom of conscience is recognized as a fundamental value with the democratic value predicated on majority rule, and which requires that the minority and the individual respect the law, as well; how one can reconcile the internal contradiction that might arise between a form of government based on majority rule and individual conscience in a liberal pluralistic state, which recognizes this set of values and attributes considerable weight to each of them within the overall social order.

 

Background

 

2.       The Petitioner reached the age of conscription to the IDF. Close to her date of induction into the army, she submitted a request to the military authorities for an exemption from military service for reasons of conscience, in view of her objection to the IDF's policy in the Administered Territories, which contravened her humanistic, moral ideology. The military authorities rejected the exemption request, and the Petitioner's obligation to serve her compulsory military service stood. Refusing to accept the decision, the Petitioner was tried and given a prison sentence. She is currently due to serve another prison sentence, which has been stayed pending the decision in the present petition. The petition seeks to have the decision of the competent military authority not to exempt the petitioner from compulsory service reviewed and, in so doing, raises questions of principle regarding the phenomenon of refusal to serve in the army, both in the legal and social contexts, among them the questions of the circumstances and conditions under which refusal might constitute grounds for exemption from military service, and whether a distinction might be warranted for this purpose between women and men of military age.

 

Facts

 

3.       The Petitioner is a "person of military age" as defined in sec. 1 of the Defence Service Law (Consolidated Version), 5746-1986 (hereinafter: "the Law"). Close to her date of induction, scheduled for  September 30, 2003, she approached the army's conscription authorities requesting to be exempted from defence service for reasons of conscience. She based her request on sec. 39 of the Law, claiming that her conscience did not allow her to serve in an army of occupation, as this went against her moral and social obligation. The reasons for the request were set forth in a letter she had sent to the army's exemption committee (Appendix P3/A):

 

I cannot cooperate with the occupation army of the State of Israel… I object to the occupation. I object to it not because it harms us directly, but mainly on ideological grounds. The occupation contravenes my humanistic, moral ideology… The Israeli government implements a policy of daily humiliation in the occupied territories, which is chiefly expressed in the presence of IDF soldiers. I will not be part of an entity that carries out morally wrong policies… Regretfully, instead of setting an example of morality and justice for the whole world, the State of Israel chooses to raise the blackest banner of them all — a banner stained by evident wrongdoings against innocent Palestinians, and stained in particular by its control over their everyday life… As far as personal conscience goes, my conscience clearly tells me that the IDF is an immoral entity, and that this is not the right way for me to contribute to my country… I have no intention of giving up easily — this is my country! It is my democratic right to shape it in line with my values, which are supposed, moreover, to be those of Judaism in general…

 

          The Petitioner was summoned before the Committee on Conscience-Based Exemptions (hereinafter: "the Exemption Committee"), where she stated that she was not a pacifist, and that if the IDF were to pull out of the territories of Judea, Samaria and the Gaza Strip, she would be willing to serve within its ranks. Among other things, she told the committee: "If the army were to pull out of the territories, I would have no problem enlisting. Had I lived in the Czech Republic, I would have enlisted. I believe a country should have an army" (R/1).

 

          On August 28, 2003, the Exemption Committee denied the Petitioner's request for an exemption, explaining:

 

The committee was not satisfied that reasons of conscience prevented her from serving in the IDF. The reason is the IDF's presence in the territories.

 

          On September 15, 2003, the Petitioner filed an appeal contesting the decision of the Exemption Committee, in which she wrote, among other things:

 

I insist that this is my conscience — the strict prohibition against serving in an occupation army which, in protecting the settlement "enterprise", violates international law and the Ten Commandments every day and every hour; this is incompatible with my basic values. I persist in my demand to contribute to Israeli society in a way that is right for me, i.e. to go on to serve within the framework of the National Service…

 

          The Appeals Committee heard the Petitioner and her witnesses, and decided to reject the appeal. In its decision, it stated as follows:

 

The committee was not satisfied that reasons of conscience prevented the candidate for military service from carrying out her military service. The arguments put forward by the candidate and her witnesses focused primarily on social reasons and the candidate's desire to contribute to society outside the army.

 

          On February 22, 2004, after her request for an earlier enlistment date was granted by the military authorities, the Petitioner reported for the start of her military service but refused to go through the induction process. As a result, she was tried in a disciplinary hearing, and was sentenced to 14 days in jail, which ended on March 5, 2004. After serving her sentence, she presented herself once again at the induction base, on March 7, 2004, and was once again sentenced for disobeying a similar order. At her request, the start of the prison sentence was deferred to March 11, 2004. On March 8, 2004, the Petitioner and her father, Mr. Daniel Shabtai Milo, filed the petition now before us, in the course of which an interlocutory order was issued delaying execution of the Petitioner’s additional prison sentence pending a decision on the petition.

 

The Parties' Arguments:

The Petitioner's Arguments

 

4.       The Petitioner contends that her reasons for seeking exemption from compulsory service in the IDF are conscientious, and are not reasons of another kind as was determined by the Exemption Committees in their decisions. As such, the matter falls within the scope of sec. 39 of the Law, which grants a female person of military age a statutory exemption from military service by reasons of conscience, or reasons connected with her family's religious way of life, preventing her from serving in defence service. It is argued that once such reasons of conscience have been proven, a woman is granted exemption from service by virtue of the Law, with no discretion given to the military authorities in the matter. In this, a female person of military age differs from a male person of military age, who is subject in this matter to sec. 36 of the Law, under which the Minister of Defence is vested with discretionary authority to determine when and under what circumstances it is possible and appropriate to exempt a person of military age from compulsory service, inter alia, for reasons of conscientious objection. The Petitioner claims to have satisfied the burden of proof that rests with her to show that her objection to serving in the army was motivated by true reasons of conscience, and that consequently, under the provisions of sec. 39 of the Law, the Exemption Committees must recognize her reasons and her statutory right to the exemption sought.

 

Respondents' Position

 

5.       The Respondents' position is that the petition must be dismissed in limine for laches. Speaking to the merits of the case, they claim that the army's Exemption Committees acted within their authority, and that there should be no intervention in their decisions. First, they argue, there should be no intervention in the factual findings according to which the Petitioner's objection to military service should not  be classified as conscientious objection, but rather as objection premised upon social reasons and a desire to contribute of her personal capabilities to extra-military frameworks. Second, reasons of conscience that warrant granting a female person of military age exemption by virtue of sec. 39 of the Law are, by nature, such that preclude a woman from military service as such. What this means is that only reasons that by nature rule out military service as such should fall within the scope of the statutory exemption granted to women. These reasons differ in substance from reasons of selective refusal, which are characterized by ideological, social or political motives, and which make refusal to serve in the army conditional upon the nature and character of the service, its location, or the kind of actions required of the soldier during the service, etc. The Exemption Committees found the Petitioner's refusal to serve in the army to be distinctly socio-political, thus amounting to contingent selective refusal. As such grounds for refusal do not entitle one to exemption, there is no occasion to intervene in the decision made by the competent military authority that rejected the Petitioner's exemption request, and the petition must be dismissed on the merits.

 

Definition of the question to be decided

 

6.       In a society erected upon the pillars of democracy, the will of the majority is the bedrock of social order. The law and the arrangements derived therefrom, adopted as per the will of the majority, must be obeyed by virtue of the very nature of the democratic process, failing which a civilized society cannot endure. Obeying the law is both a legal and a moral obligation. Its fulfillment underlies our life together in society, and is the basis for the mutual respect of human rights and the protection of universal values, among them human equality and liberty (Y. Zamir, The Boundary of Obeying the Law, Festschrift in Honor of the 80th Birthday of Shimon Agranat, 1987, p. 119 (Hebrew)). With that said, since ancient times, human society has contended with the possible conflict between the demands of the law and of social order, and the dictates of the individual's conscience when it calls upon the individual to disobey the law. This conflict raises profound moral and ethical questions. It raises juridical questions. Under what circumstances can or should society recognize the phenomenon of refusal to respect the law; when and how is it fitting to reconcile the individual's internal moral compass and the will of the majority in a democratic regime?

 

          The margins afforded by society for acknowledging the necessity and feasibility of reconciling the dictates of personal conscience with those of the law have always been very narrow. Such narrowness is necessitated by the existential needs of a human society seeking to conduct itself within an agreed order in which the rule of law must be respected, and a set of rights and duties is equally applicable to all citizens. Yet even within the confines of the existential need to enforce respect of the law as a universal obligation, various judicial authorities recognize the existence of circumstances constituting exceptions to this rule, within which the individual's right to disobey the law is acknowledged under certain conditions. Such circumstances are very few and far between, and they, too, fall within the law rather than outside it. Thus, for example, exemption from criminal responsibility is recognized in the case of a person who has disobeyed a manifestly unlawful order (sec. 24(a) of the Penal Law, 5737-1977). An order is manifestly unlawful when it is extremely immoral and its illegality is glaring (CrimA 336/61 Eichmann v. Attorney General, IsrSC 16 2033; CMA 279-283/58 Ofer v. Chief Military Prosecutor, IsrDC 44 362; CM MR 3/57 Military Persecutor v. Major Malinki, IsrDC 17 90).

 

          The law itself sometimes recognizes, within definite narrow bounds, reasons of conscience as grounds for making an exception and treating a person, a conscientious objector, differently from all the others. Such exception is made within the framework of and as prescribed by the law. This is the case in Israel. The readiness to recognize conscientious objection within narrow limits stems, first and foremost, from the fact that freedom of conscience is a recognized constitutional value in Israeli law. This value stems from the Declaration of Independence, derives from human dignity and liberty, and is tied to the value of tolerance towards the opinions and views of others in a pluralistic society (HCJ 7622/02 Zonshein v. Military Advocate General, IsrSC 57(1) 726, 734). It comes from recognizing conscientious objection as a human phenomenon. The legal arrangement that recognizes reasons of conscience as grounds for making an exception for one individual among all others reflects the outcome of striking a balance that seeks to reconcile between the needs of social order and equal sharing of rights and duties by all members of society, on the one hand, and the consideration given to the individual exception who removes himself from the collective, on the other hand. It tolerates the exceptionality of the individual where this poses no immediate, real danger to the public order, whether because of the content and nature of the exception or in terms of the phenomenon's scope. Striking this balance is all the more difficult and delicate in a society engaged in a struggle for its life and security, and facing a constant challenge to its existence. The possible margin for recognizing the individual exception from the public at large in a society living and acting in times of emergency is naturally very narrow. Were this not the case, social order and the rule of law might weaken, and the democratic process might be supplanted by anarchy. Recognizing the individual's conscientious reasons as grounds for exemption from compulsory service in the IDF is likewise defined within the law, as a product of balances struck between the public interest and respect for the individual's consciousness.

 

          Military service in Israel is a civil duty that falls to any person of military age. It is a legal duty applicable by virtue of the law. It is also a moral duty in view of the country's basic, immediate survival needs. It is a duty equally imposed, for all civilians to bear. Nevertheless, the Defence Service Law recognizes exceptions to the duty of military service for various considerations and purposes. Inter alia, it also recognizes — within definite narrow boundaries — the possibility of granting an exemption from military service for reasons of conscience. The boundaries within which this exception is recognized are the subject this hearing.

 

          The focus of the question to be decided is this: What kind of refusal might justify granting exemption from compulsory military service in the IDF under the Law? Derived from it are the following questions: Is the distinction between absolute refusal to serve in the army and selective refusal that is conditional relevant for the purpose of exemption from compulsory service? How does conscientious objection stand in relation to refusal that essentially amounts to civil disobedience? Is there a distinction between men and women of military age as regards exemption for reasons of conscience, and how does the general power to grant exemption from service under sec. 36 of the Law stand in relation to the exemption provisions specific to women of military age under sec. 39 of the Law? What is the interrelationship between these two sources of exemption provided under the Law? When, and under what circumstances, is the competent authority given discretion in granting exemptions, and what discretionary guidelines should it exercise? And does proving certain facts and conditions suffice, under certain circumstances, to confer a statutory right to exemption?

 

Legislative framework

 

7.       The Law addresses exemption from military service in two contexts. Section 36 of the Law provides for a general power given to the Minister of Defence to exempt a person of military age from compulsory service, as follows:

 

Power to exempt from or defer service

36. The Minister of Defence may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces of the Israel Defence Forces or for reasons connected with the requirements of education, security settlement or the national economy or for family or other reasons

(1)  exempt a person of military age from the duty of regular service or reduce the period of his service;

(2)  exempt a person of military age from the duty of reserve service for a specific period or absolutely…

 

Exemption from military service for reasons of conscience falls within the term "other reasons" in the opening paragraph of sec. 36, which authorizes the Minister, where appropriate, to exempt a person of military age from regular or reserve service for reasons of conscience (the Zonshein case, ibid., p. 732; HCJ 1380/02 Ben-Artzi v. Minister of Defence, IsrSC 56(4), 476, 477) (hereinafter: "General Power of Exemption").

 

          Alongside the General Power of Exemption under sec. 36, applicable to all persons of military age, is a special exemption provision in sec. 39(c) of the Law, which relates to a female person of military age, granting her statutory exemption under certain conditions. This is worded as follows:

 

Statutory exemption from service

39 (c) A female person of military age who has proved, in such manner and to such authority as shall be prescribed by regulations, that reasons of conscience or reasons connected with her family's religious way of life prevent her from serving in defence service shall be exempt from the duty of that service.

(hereinafter: "Special Exemption")

 

 

The question of conscientious objection has occupied the legal world for years in connection with exemption requests by men of military age under sec. 36 of the Law. Examining the nature of the Special Exemption for reasons of conscience as it relates to women of military age is another link in the chain of proceedings and rulings on the issue of refusal to enlist for reasons of conscience, and it raises, first and foremost, questions regarding the criteria for implementing the Special Exemption for women under sec. 39. Beyond that, it raises questions regarding the possible applicability of the General Power of Exemption in sec. 36 to women, and regarding the relationship between the General Power of Exemption and the Special Exemption in this context.

 

The Special Exemption: Reasons of conscience as grounds for exempting a female person of military age

 

8.       The Special Exemption provision in sec. 39(c) suggests that a female person of military age, who has proved that reasons of conscience prevent her from serving in defence service, shall be exempt from that duty of service. This provision comprises it two principal conditions:

 

One, the existence of reasons of conscience pertaining to military service; the second, that such reasons prevent her from doing military service. The first condition is about factually proving that the woman liable for conscription has reasons of conscience pertaining to her service. The second condition, of a legal-normative character, examines whether the reasons of conscience proved are indeed of a nature that duly prevents her service in the army from the normative perspective. When this criterion is met for a female person of military age, she is exempt from compulsory service by virtue of the Law, and this is not subject to the discretion of the military authorities. 

 

          The first condition has to do with the impression formed by the army's Exemption Committees, based on the testimony of the exemption-seeker, regarding the substance of her claimed reasons, and the credibility of hear claim. This process bears some resemblance to the process of assessing testimony in court in order to assess witness reliability and establish findings of fact based upon them. The difficulty inherent in assessing the reliability of claims alleging reasons of conscience in connection with draft refusal have been described by the Court in the Ben-Artzi case (ibid., p. 478) (per Justice Cheshin), as follows:

 

Conscientious objection is a purely subjective affair — a matter of the heart — and we have long known that only the Lord looks on the heart, but man looks only on the outward appearance. Indeed, concluding that so-and-so is requesting an exemption from regular service because military service runs counter to his conscience is no easy task by any reckoning. In a sense, this is akin to a trial court determining that it believes such-and-such a witness, but not another. In fact, the conclusion that so-and-so is a conscientious objector, or not, is not merely a question of trust. It is a question of understanding the body of evidence presented to the committee, and it is, in any case, a decision open to review by a court. However, the burden of proving that the committee erred in its decision — and not only erred, but erred so much as to have the court overturn its decision — is a burden that lies with the petitioner".

 

(and cf. HCJ 4062/95 Epstein v. Minister of Defence, Dinim Elyon 41, 794).

 

In the first stage of examining the claim of objection, the Exemption Committee must therefore examine how sincere the applicant's arguments are and how credible she is. The question is whether she speaks the truth in asserting the existence of conscientious reasons preventing her from serving in the army, or whether her claim is a cover-up for other motives, such as convenience or a desire to evade the draft, wrapped up in an artificial shroud of conscientious scruples. If the exemption-seeker's reasons are judged genuine, the Exemption Committee is required, within the framework of the initial inquiry stage, to classify their nature by their content, and determine whether these are indeed conscientious reasons or rather reasons of a different character. This classification relates to the content of the reasons and to an evaluation of whether they have to do with reasons of conscience or reasons of a different hue, whether social, political or other. The classification issue can get trickier when the rationale for refusal consists of different, intertwined reasons, some conscientious and others not. If the reasons for objection are classified in such a way as to fall completely outside the scope of conscience in the sense of the Law, the competent authority's examination is concluded at the close of the first stage, and the exemption request is rejected. If, on the other hand, the straightforward classification of the reasons for objection indicates that they are conscientious motives, be they uniquely so or intermixed with other reasons, the examination then moves on to its second stage, namely a normative investigation of the question whether any reason of conscience can lead to exempting a female person of military age from her duty to serve, or whether only specific types of conscientious reasons might bring about this outcome.

 

Reasons of conscience: Conscientious objection versus civil disobedience

 

9.       Freedom of conscience is recognized in Israel as a constitutional value derived from the Declaration of Independence and the state's democratic character. It is intertwined with the values of freedom of religion and belief (HCJ 292/83 Temple Mount Faithful v. Jerusalem District Police Commissioner, IsrSC 38(2) 449, 454; Berenson, Freedom of Religion and Conscience in the State of Israel, 3 Tel Aviv University Law Review, 1973-1974, p. 405 (Hebrew)). Freedom of conscience, as a general constitutional value, could cover the entire spectrum of an individual's opinions, ideas and beliefs in all areas of life. However, its specific content and scope may vary depending on context. In the context of the issue of disobeying the law, the concept of "reasons of conscience" takes on a specific, narrow meaning appropriate to the particular nature of the matter.

 

          In analyzing the various ideological reasons for disobeying the law, philosophic writings recognize the distinction between civil disobedience and conscientious objection (J. Rawls, A Theory of Justice, p. 369; D. Heyd, Objection — Political or Conscientious, On Democracy and Obedience (1990), pp. 87, 88-89 (Hebrew); J. Raz, The Authority of Law, 1979, pp. 263, 276; L. Sheleff, The Voice of Dignity: Conscientious Objection out of Civic Loyalty, 1989, pp. 5-84, 159 (Hebrew)). The distinction is important not only because of its conceptual, theoretical categorization of different types of ideological disobedience. It has practical implications in implementing the Law and applying the exemption from military service to persons of military age in the IDF.

 

          "Civil disobedience" is defined as disobedience whose motives, mainly ideological and political, are driven by a desire to effect a change in law, policy or social order, which are deemed essentially just. What characterizes civil disobedience is that, in order to realize the change it has set out to achieve, the disobedience usually takes place in public, takes on a proactive yet non-violent demonstrative form, and is mostly carried out in collaboration with others. The disobedient act is meant to send a message to the governing institutions regarding the need for a change in policy or law, and it seeks to impress this message on the general public. Civil disobedience does not revolve around the individual. It revolves around the need for a change of policy in matters relating to society and state.

 

          "Conscientious objection" differs in nature from civil disobedience in that it is a distinctively individual affair, personal and idiosyncratic in both its characteristics and motives. "The objector refuses to follow an order that is not in keeping with his religious, moral or personal values" (Heyd, ibid., p. 89). Conscientious objection does not seek to change the world order, but to keep the individual's purity of belief and moral integrity intact. "Objection is not some action taken at the individual's initiative, but a passive reaction to circumstances" (Heyd, ibid., p. 89). A hallmark of conscientious objection is thus its individual dimension, and the objector is not usually interested in influencing others into behaving like him. As such, this kind of objection often takes place out of sight, deep inside the objector's heart. It is unique and particular to a person as an individual, within himself. Whereas civil disobedience faces outward, toward the public at large, conscientious objection faces inwards, toward one's personal moral sense, and is deeply embedded within the individual.

 

          The distinction between objection for reasons of civil disobedience and objection for conscientious reasons is not always an easy one to make. Political-ideological disobedience is sometimes inseparably bound with conscientious, personal objection. At times, the drive to change the way things are may go hand in hand with a personal conscientious, moral inability to be part of the executive apparatus implementing the policy criticized. It is also possible for objection originating in the dictates of one's personal conscience to breed objection of the civil-disobedience kind, fueled by ideological-political reasons. Thus, the various roots of refusal to obey the law — the political-ideological and the moral-personal ones —might be inextricably intertwined (Raz, ibid., p. 263; Rawls, ibid., p. 371; the Zonshein case, ibid.). The theoretical distinction between objection through civil disobedience and conscientious objection is reflected in the phenomenon of objection to fulfilling one's compulsory military service.

 

Selective versus general objection

 

10.     The distinction between conscientious objection and ideological-political objection may have some bearing upon the character and extent of refusal to serve in the army. These are not accurate definitions or hard-and-fast lines marking off the various types of objection, but general lines pointing to the existence of a tendency in the following directions: Overall objection to serving in the army, which makes no condition, and essentially objects to any use of force at any time or any place, is typically grounded in the individual's conscience. It stems from the individual's internal conscientious, moral objection to taking part in any form of military service as such, without any necessary regard to the nature of the service, to army policy, to the timing of service or its place. Circumstances, place or time are immaterial. This differs from selective objection, which is contingent by nature. It does not categorically rule out military service, but makes it contingent on the fulfilment of certain conditions. It might be rooted in objection to army policy on political, ideological or notional grounds. It remains in effect as long as the policy remains unchanged. The condition underlying the objection may take on different forms — objection to serving in a particular area, at a particular time, or to performing certain acts as part of the service (HCJ 734/83 Schein v. Minister of Defence, IsrSC 38(3) 393; Zonshein case, ibid.). Selective objection bears the fundamental marks of civil disobedience, but might also combine interwoven reasons of conscience and personal morality. The difficulty in distinguishing between political-ideological objection and conscientious objection, especially the selective kind, was underscored by President Barak in the Zonshein case (ibid., pp. 737-8):

 

The ability to distinguish between one who invokes conscientious objection in good faith and one opposed to government or Knesset policy is diminished when it comes to selective objection, as the line between objecting to some state policy or other and conscientious objection to carrying out this policy is thin, sometimes razor-thin.

 

Distinction between general conscientious objection and selective objection within the policy on exemption from military service under sec. 36 of the Law

 

11.     For decades now, in exercising its power of exemption from military service under sec. 36 of the Law, the competent authority has implemented a distinction between general conscientious objection and selective objection to service. The test it applies is this: What is the nature and view of the service objector on the use of force and on war in general, as against the service objector's view on military service at the ideological-notional level based in political-social outlook. The competent authority's exemption policy, as of now, allows for the possibility of exempting a person from service on grounds of general conscientious objection. It does not grant exemption from service in situations involving selective objection. Even the willingness to concede an exemption on grounds of general conscientious objection is a policy given to change, and inextricably linked to circumstances and current needs (the Schein case, ibid; HCJ 4062/95 Epstein v. Minister of Defence).

 

          In the Zonshein case, this policy of the competent authority came under judicial scrutiny. President Barak, delivering the opinion of the Court, weighed freedom of conscience as a constitutional value against the needs of the state in defending its security and the importance of upholding the value of equal sharing of the security burden by all citizens of the state. He pointed to the social danger inherent in broadening the recognition of conscientious objection as grounds for exemption from service, to its harmful effect on security needs, to the unfairness and the discrimination between citizens that it entails. He noted the difference in nature between general objection and selective objection, the scope of the phenomenon, and the set of balances that narrows the possibility of recognizing partial objection while allowing recognition of general objection under certain conditions. The conclusion was that the public authority's policy, which allows exemption for reasons of general conscientious objection, in appropriate circumstances, and that currently denies exemption to selective objection, satisfies the test of public law, by striking a proper balance between the conflicting values. President Barak explains the reasoning behind this as follows (ibid., p. 737):

 

Refusal to serve in the army for “comprehensive” reasons of conscience is not the same as refusal to do so for selective reasons of conscience. Indeed, when the scales are tipped against recognizing conscientious objection, they are much more heavily tipped against recognizing selective conscientious objection than “comprehensive” conscientious objection. The gravity of granting an exemption from a universally binding duty is obvious. Selective conscientious objection is, by nature, a wider phenomenon than the “comprehensive” kind, and it expresses, in full force, the feeling of discrimination between “blood and blood”. But beyond that, it bears upon the very issue of security considerations, since the group in question has a tendency to grow. Moreover, in a pluralistic society like ours, recognizing selective conscientious objection might weaken the hoops that bind us together as a people. Yesterday, it was objection to serving in southern of Lebanon. Today, the objection is to serving in Judea and Samaria. Tomorrow, the objection will be to removing certain settlement outposts in the region. The people's army might become an army of tribes composed of different units, where each unit has areas in which it is permitted to act conscientiously and others where it is conscientiously forbidden to operate. In a polarized society like our own, this is a hefty consideration.

 

The balance struck by the Minister of Defence, whereby granting exemption from military service to selective conscientious objectors is currently unacceptable, is one that satisfies the test of reasonableness and proportionality (HCJ 470/80 Algazi v. Minister of Defence; the Schein case, ibid., pp. 399, 403; HCJ 630/89 Machness v. Chief of Staff).

 

          For a similar conception of the distinction between general conscientious objection and selective objection, see, in the U.S., the War and National Defense, Military Selective Service Act,  1967, 50 U.S.C. App. § 456(J); and the rulings in Gillette v. U.S., 401 U.S. 437 (1971); U.S. v. Seeger, 380 U.S. 163, 173 (1965).

 

Applicability of the General Power of Exemption by virtue of sec. 36 of the Law to men and women

 

12.     The power accorded to the Minister of Defence by virtue of sec. 36 of the Law to exempt a person from the duty to serve in the IDF does not distinguish between men and women. It applies to "a person of military age" as defined in the Law, and the definition in question applies equally to men and women. The Power of Exemption, which also extends to exemption for reasons of conscience, thus applies to men and women of military age, and it stands to reason that the policy implemented in exercising the Power of Exemption for reasons of conscience would be similar, if not identical, in both situations, without there being a substantial distinction between them. Reasons of conscience in this context are founded on "a serious moral decision — not based on religious reasons — on right and wrong as seen by the individual, who considers himself bound to act in accordance with it, such that acting against it would be greatly injurious to his conscience" (the Zonshein case, ibid., p. 733).

 

          There is likewise nothing in the exemption policy adopted by the Minister of Defence, which distinguishes between general conscientious objection and selective objection to military service, that would constitute a basis for a distinction between men and women of military age. The main consideration for ruling out recognition of selective objection as grounds for exemption from service rests on the assumption that this kind of objection is generally rooted in political-ideological reasons that are not to be recognized within the confines of the army, which is founded and functions upon a broad national conception. Introducing a political element into the IDF's conscription policy might negatively affect the fundamental conception of the defence service. It might give rise to discrimination between individuals, and eventually undermine the normal democratic process, which is predicated on equal sharing of the burden of social duties.

 

          The stance that a government and military apparatus cannot tolerate a situation where persons of military age can dictate if and when they will serve in the army, where they will serve, what actions they will carry out, what orders they will deign to follow and which ones they will refuse, holds equally true for male and female persons of military age. The danger inherent in selective objection for national morale and the value of unity characterizing the army as the people's army is no different whether women or men are involved. In this respect, the same holds true to both.

 

          It is likewise hard to accept the argument that a distinction should be drawn between men and women in terms of the extent of the exemption granted on grounds of conscientious objection on account of women's inherently lesser contribution to the defence service as compared to men, so that in weighing personal freedom of conscience against the public interest, the first value is to be preferred. This should be answered as follows: First, there is no doubting the substantial contribution of women to service in the IDF. Their involvement in the army is as old as the state itself (see F. Raday, The Army: Feminism and Citizenship, Dafna Barak-Erez (ed.), Army, Society and Law, 2002, pp. 185, 190ff. (Hebrew)). Ingrained from the very early days of the state's existence was the notion that there should be no discrimination between men and women in regard to the right and duty to serve in the army, so as to strengthen the army in might and spirit (Knesset Proceedings, session of September 8, 1948, Divrei HaKnesset, Vol. 2, 1949, pp. 1624-5 (Hebrew)). This trend grew stronger over the years with the normative changes that have contributed to greater integration of women in army combat units. Thus, in HCJ 4541/94 Alice Miller v. Minister of Defence (IsrSC 49(4) 94) (http://versa.cardozo.yu.edu/opinions/miller-v-minister-defence) we ruled that women could participate in the Air Force pilot training course. This trend was bolstered with the enactment of section 16A of the Defence Service Law (Consolidated Version), 5746-1986, as amended in 2000 to read:

 

16A. Equality in Service

 

(a) Any female person of military age has an equal right as a male person of military age to fill any role within the military service.

 

(b)  The right of a female person of military age to fill any role shall not be deemed to have been infringed if the nature and character of the role demand it.

 

(c)  A female person of military age who serves, by choice, in one of the roles determined by the Minister of Defence with the approval of the Knesset's Foreign Affairs and Defence Committee is subject to the same rules as a male person of military age.

 

          An amendment in the same vein was introduced into the Equal Rights for Women Law, 5711-1951, in that same period, as follows:

 

6D. Service in the Defence Forces

 

(1)  Any woman who is a candidate for service in the Defence Forces, or who serves in them, has a right equal to the right of any man to fill any role or be assigned to any position; this right shall not be deemed to have been infringed if that is required by the nature or character of the role.

 

(2)  In this section, "Defence Forces" – the Israel Defence Forces, the Israel Police, the Israel Prison Service and the State's other security organizations.

 

          (See also Defence Service Regulations (Determining Volunteer Roles for Women's Service), 5761-2001, which followed later).

 

          Moreover, given modern methods of warfare, contribution to security is not limited to the combatant's physical effort on the battlefield. The needs of the armed forces are numerous and varied, and the human contribution required to ensure security outside the battlefield does not fall short of that required on the battlefield itself. Furthermore, the serious security threats the country faces require different means of dealing with the dangers, including sophisticated means of information, skills, and operating state of the art systems far from the battlefield. As regards many of these tools, there is no real difference between men and women in terms of their ability to handle the task and share the burden.

 

          The absence of any direct relationship between the gender identity of recruits and their contribution to the army has occasioned extensive writing on the existing distinctions regarding the duty of combat service and the burden of reserve service in connection to questions of wrongful discrimination between men and women within the armed forces (see Raday, ibid., p. 204 ff.; S. Almog, On Women, Army and Equality, Following HCJ 4541/94 Miller v. Minister of Defense et al., Mishpat Umimshal 3 (1995-1996) (Hebrew), p. 631; D. Friedmann, Women's Service in Combat Professions and Equal Sharing of the Burden, Hamishpat 4 (1998), p. 27 (Hebrew); Y. Nechushtan, Discrimination of Men in the IDF, Hamishpat 4 (1998), p. 115 (Hebrew); K. Shalev, On Equality, Difference and Sexual Discrimination, Essays in Honor of Moshe Landau, vol. 2, 1995, p. 893, at pp. 900-902 (Hebrew); N. Chazan, Women's Service in the IDF, Women in Israel, 1998 (Hebrew). And in the US, see Dean, Women in Combat—The Duty of the Citizen-Soldier, 1994, 2 San Diego Justice J., p. 429). Thus, facts and values come together to counter the view that women's army service contributes less overall than that of men. By the look of things, we seem to be headed toward essential equality between men and women of military age in the pertinent areas, while making proper, balanced allowance for differentiating features (Shalev, ibid. p. 893; HCJ 260, 246/81 Agudat Derekh Eretz v. Broadcasting Authority, IsrSC 35(1) 4, pp. 7-8; F.H. Boronovski v. Chief Rabbis of Israel, IsrSC 25(1) 7, p. 35).

 

          The potential negative impact of such selective objection — whether of a male or female person of military age — on the public interest is not limited to its effect on the army's manpower. It might have an adverse morale effect on social cohesion within army ranks, and impinge on the necessary principle of separating between the duty to shoulder the burden of military service and obey orders, on the one hand, and, on the other hand, the political debate and the contrasting ideas, opinions and beliefs that characterize Israel's pluralistic society. Making military service dependent on the extent to which a male or female soldier identifies ideologically with the actions of the political and military echelon could dangerously erode the democratic process, which requires submitting to the authority of the majority and an equal sharing of the burden of economic, social and security duties, which is essential to the existence and proper functioning of society and the state. Undermining this conception by more broadly recognizing an exemption for women on grounds of selective objection might affect the army's cohesion and deal a hard blow to motivation to serve in the army, to the point of seriously and concretely affecting the way it functions (Justice Beinisch in the Zonshein case; HCJ 1532/00 De Bremaeker v. Minister of Defence, IsrSC 54(2) 297, 302). This might also have a devastating effect on the overall fabric of society beyond the ranks of the army, by upsetting society's internal balances, and particularly, by impairing the implementation of the value of the equal sharing of burdens and opportunities vital to the functioning of a sound society.

 

          The value of substantive equality thus justifies an egalitarian approach to men and women in exercising the Minister of Defence's power under sec. 36 of the Law to exempt a person of military age from service for reasons of conscience. This holds true in applying the exemption to general conscientious objection, as it does to not applying the exemption to selective objection. This seems to be the competent authority's actual modus operandi. (For the application of similar criteria to the discharge of a woman in active military service who was not under obligation to enlist, and the discharge of a man from service on conscientious grounds, see the U.S. case of Allison v. U.S. Army (1992) U.S. Dist. Lexis 12429).

 

Special statutory exemption from service for women by virtue of sec. 39 of the Law  

 

13.     Against the background of the nature of the General Power of Exemption given to the Minister of Defence under sec. 36 of the Law, the question arises concerning the implications of the Special Exemption provision accorded to a female person of military age by virtue of sec. 39(c) of the Law, where she has proven in the manner prescribed by the regulations "that reasons of conscience or reasons connected with her family's religious way of life prevent her from serving in defence service". What are those reasons of conscience that, once established, grant a woman a statutory right to be exempt from military service? How does the Power of Exemption under sec. 36, which applies to women as well, stand in relation to the Special Exemption applicable to women under sec. 39?

 

The content of the Special Exemption for women under sec. 39 can be learned in two ways, as follows: first, by examining the General Power of Exemption under sec. 36, equally applicable to women and men, in relation to the statutory exemption provision under sec. 39, applicable to women alone; second, by examining the special exemption for women in light of its purpose, and in light of the legislative history that led to its enactment. Analysis along these lines yields the following conclusions:

 

          First, the reasons elaborated above lead one to conclude that the General Power of Exemption given to the Minister of Defence under sec. 36 of the Law applies to men and women alike, including the policy distinguishing between general conscientious objection and selective objection. Hence, it stands to reason that "reasons of conscience" that warrant exemption from service for women under sec. 39 differ in nature from those over which the Power of Exemption under sec. 36 extends, unless we admit of an overlap between the provisions, which the legislature is unlikely to have intended. It can therefore be assumed that the statutory exemption for women is concerned with matters of a different character to those falling within the Minister's General Power of Exemption. This conclusion is, indeed, reinforced when one examines the purpose of the Special Exemption for women in light of the historical background that led to its enactment.

 

          The exemption from military service accorded to a woman under sec. 39 for reasons of conscience or a religious family life is essentially meant to recognize and honor the preclusion of women from army service based on the religious beliefs, customs and traditions of the religious community to which they belong. Exemption "for reasons of conscience" within the special context of this provision is closely related to reasons of religious, traditional or customary communal convictions preventing a woman from defence service as such. This is clear from David Ben-Gurion's presentation of the Defence Service Bill (Divrei HaKnesset, 1949, Vol. 2, p. 1339), in stating:

 

As regards women, we have exempted four types from this duty: married women, women who have a child, pregnant women or religiously-observant women, whether Jewish, Christian or Muslim, whose religious conviction prevents them from serving in defence service. These shall be relieved of this service. But I wish to express my hope that not all religious women in Israel will exercise this right of exemption (see also his statement, ibid., p. 1626).

 

          The statutory exemption on grounds of conscience granted to women was meant to protect the status of women in traditionally observant subgroups within the population, whose service in the army, according to the group's perceptions, is incompatible with preserving their dignity and modesty, and sometimes even contrary to explicit imperatives applicable to them as decreed by their religion. Thus, when the Knesset debated the Defence Service Bill, the representatives of religious Judaism voiced reservations over women's service in the army, seeing it as a moral and religious question of the utmost importance. Some particularly emphasized concern that values of family morals, family honor and family integrity would be seriously corrupted (speeches by MKs Kahana, Rabbi Levin, Unna, Shag, Minister of Religion Maimon, and MK Zerach Warhaftig, ibid., pp. 1445 and 1446-7, 1522, 1524, 1556, and 1559). Others emphasized the religious imperatives expressly forbidding women from carrying weapons of war and taking part in war (Responsa Igrot Moshe, Orach Hayim part IV, 75; Responsa Yabi'a Omer, part VIII,  Orach Hayim 54; for a discussion, see also R. S. Min-Hahar, Involving Women in War, 4 Tehumin 68; R. Y. Shaviv, Women in an Obligatory War: 4 Tehumin  79. See, also, the speech by MK Kahana, Divrei HaKnesst, ibid., p. 1445). Also worthy of mention in this context is the declaration issued by the Chief Rabbinate of Israel on 21 Adar 1951, which strictly prohibited the enlistment of women, even if single, into a military unit, in whatever form. This declaration was signed by Rabbis Herzog and Uziel, who served as Israel's Chief Rabbis at the time. The special exemption for reasons of conscience specific to women was indeed interpreted in view of prohibitions based on religion and tradition (see HCJ 456/71 Barzani v. Minister of Defence, IsrSC 26(2) 543):

 

When the Rabbinate issues a Halachic ruling that a given act is forbidden under Jewish Law, a secular authority does not have the power to determine that it is allowed under Jewish Law. The state's secular authorities do not lay down religious norms and, on the other hand, religious norms, as such, are not binding upon the secular authority unless there is some reason for it.

 

          Opposition to women's service in the IDF on grounds of tradition was not restricted to religious Judaism alone. Similar opposition was voiced by representatives of the Arab-Muslim community, who expressed reservations about the induction of Muslim women into the army on account of it being contradictory to the customs, tradition and religion of the Muslim community (MKs E-Zoubi and Jarjora, Divrei HaKnesset, ibid., p. 1525, p. 1528).

 

          Exemption from military service for women for reasons related to religion and tradition was for years an object of legislative action. Section 11(d) of the Defence Service Law, 5709-1949, originally established an exemption for a woman for reasons of conscience or religious conviction, subject to a declaration to that effect on her part. This arrangement was amended in 1952 such that a declaration alone was no longer sufficient, and proof was required of said religious or conscientious reasons (Defence Service Law (Amendment), 5712-1952; and Divrei HaKnesset, Vol. 9, pp. 1558ff.). This section, which became sec. 30(c) in the 1959 consolidated version of the Law, was amended in 1978 to read reasons connected with the family's religious way of life instead of reasons of religious conviction, with the addition of sec. 30A that allowed women seeking exemption on grounds of religious conviction to be exempted on the sole basis of a declaration, subject to meeting certain conditions (these provisions became secs. 39(c) and 40 in the 1986 consolidated version). This amendment was introduced on the strength of a political consensus born of coalition agreements with the religious parties, preceded by considerable public debate (Divrei HaKnesset, Vol. 82, pp. 2136-2139; 2369-2400 (first reading), and Vol. 83, pp. 3583-3665 (2nd and 3rd readings)). The question underlying these discussions throughout was that of imposing a duty of alternative national service on religious women.

 

          The above reveals that the exemption for women for reasons of religious conviction based on their own declaration (sec. 40), and the exemption for reasons of conscience or the family's religious way of life based on proof (sec. 39) are primarily meant to reflect social tolerance toward religious groups and traditional communities that, in accordance with their value system, see a fundamental difference between men and women, and according to which a woman's status as such is inconsistent with military service. What distinguishes these exemptions is that, first, they relate to a woman as such. Second, they originate in conceptions of morality, religion and customs prevailing in different communities. Third, these conceptions preclude women from military service as such. Therefore, grounds for exemption that are not directly related to reasons of conscience rooted in tradition and customs, a religious family life or religious conviction have no relevance to the special statutory exemption from service under sec. 39 of the Law. They might be considered within the General Power of Exemption under sec. 36 of the Law. Thus, for example, in HCJ 269/51 Horowitz v. General Shimon Mazeh (IsrSC 5, 1656), the Court ruled that a woman's claim for exemption on the grounds that, being married, she was obligated to maintain her family and hence instructed by her conscience to avoid serving in the army, was not controlled by the Special Exemption provision available to women. According to the Court:

 

The exemption provided in that section refers to women whose very participation in defence service goes against their conscience or religious conviction. The idea is by no means to exempt women who object to defence service for family reasons. In fact, the Petitioner is not at all opposed to defence service, but rather claims that, given her own situation, i.e. her being married to a man, her conscience instructs and tells her that she should not serve. The question here is not one of conscience, but of convenience and preference. It is the Petitioner's opinion, as we understand her words, that a married woman's duty to her husband takes precedence over her duty to serve the country. This was not the kind of conscience that the legislature had in mind. If her objection truly rests on reasons of family ties, she may request her exemption under sec. 12. Section 11 has no relevance to this case.

 

On the idea behind having a Special Exemption provision for women, see also CrimA 5/51 Steinberg v. Attorney General (IsrSC 5, 1061).

 

          The conclusion from the above is that the statutory exemption from service granted to women by reason of conscience differs in origin, substance and content from the General Power of Exemption given to the Minister of Defence with respect to any person of military age, whether man or woman. While the General Power of Exemption under sec. 36 of the Law covers situations of absolute or selective objection for reasons common to men and women without distinction, characterized by ideological, political, or social elements, or reasons of personal moral obligation, the statutory exemption for women under sec. 39 is characterized by being specific to women as such. It is concerned with reasons related to religious tradition, customs, beliefs, and the religious way of life specific to different communities. It stems from recognition of the need to understand and respect the religious and traditional conceptions of different communities in Israeli society as regards the status of women within the community and the family. This Special Exemption is therefore concerned with reasons of conscience of specific, defined content. This Special Exemption therefore concerns reasons of conscience of a particular content. This special content is not consistent, as a rule, with selective objection. It concerns preclusion from defence service in general, which also clearly transpires from the language of sec. 39(c) of the Law, that speaks of reasons of conscience "that… prevent her from serving in defence service", i.e. defence service in toto, as opposed to defence service based on certain conditions. The different conception of the nature of the exemptions given under secs. 36 and 39 of the Law also explains the difference in how they are granted. The General Power of Exemption by virtue of sec. 36, which applies equally to women and men, consists of the discretion given to the Minister of Defence, who is authorized to weigh various considerations of public interest and the individual's interest in making the exemption decision. On the other hand, exemption on grounds of conscience given to a woman as a woman under sec. 39 is granted by law to whomever has discharged the burden of proof placed upon her, and is not subject to the authority's discretion (cf. Regs. 10 and 15 of the Defence Service Regulations (Exemption of Women from Defence Service for Reasons of Conscience or Reasons connected with their Family's Religious Way of Life), 5738-1978). This is a necessary outcome of recognizing the conscientious imperative dictated by tradition and customs, which seldom admits of compromises, conditions or restrictions. This likewise flows from the nature of this objection, devoid as it is of a political-ideological dimension, which means that recognizing it does not entail the same risks to the army's proper functioning as might arise from recognizing selective objection as grounds for exemption.

 

Conclusion

 

14.     Conscientious objection is a real human phenomenon. It reflects internal dissent from the majority's doings — be it in law or in social policy. It expresses a different position of a minority or an individual. While individual freedom of conscience is a fundamental value of democracy, in order to be respected it must be weighed against other fundamental values, first and foremost the rule of law, without which normal social order cannot prevail. The margin of legal recognition granted to the individual's freedom of conscience, as an exception to the general order, is, by nature, extremely narrow, and depends on the boundaries within which the law allows it. This holds particularly true in a country that has been engaged for many years in a struggle for its life and security, every hour of every day. This holds particularly true when the conscientious conviction of the individual, the one that makes that individual an exception, pertains to service in the army and implies unwillingness to take part in a universal national duty falling to all citizens. Objection to military service harbors a seed that could endanger the integrity of the military system and sow dissent within its ranks. Recognizing it might import the political debate into the military, and in so doing undermine its internal discipline, dedication, and ability to carry out difficult military tasks meant to protect human life. It might undermine the status of the national leadership and its ability to lead the military forces. It might affect social cohesion and general social morale, whose strength depends, inter alia, on equal bearing of the burden of social duties and equal enjoyment of civil rights.

 

          As an exception to the general order, conscientious objection thus depends on the margin of recognition and legitimacy afforded it by the Law, and on strict compliance with the restrictions imposed for this purpose by the Law. Such recognition is inherently narrow and limited. It is also liable to changes in accordance with changing circumstances and needs. It is a recognized phenomenon solely within that framework and in those boundaries that do not pose real harm to the fabric of society and the army.

 

          In the framework of the balances required between the underpinnings of the democratic process, the needs of society and the army, and recognition of the value of individual autonomy, sec. 36 of the Law gives the Minister of Defence broad power to exempt persons of military age — male or female — from military service, a power that might extend, inter alia, to reasons of conscience. Currently, under the Minister's policy, these reasons have been limited to exceptional cases involving all-inclusive reasons of conscience, as opposed to selective reasons based, for the most part, on political opinion and political, social ideology. Alongside this power, sec. 39 of the Law grants statutory exemption from service to women prevented from serving in the army by proven reasons of conscience grounded in tradition, religion and community custom. Such reasons relate to women as such, and are inapplicable to male persons of military age. Neither do they extend to reasons of conscience common to men and women that are rooted in socio-political ideology, or in personal moral views unrelated to religion and community custom. The latter cluster of reasons falls within the General Power of Exemption under sec. 36 of the Law. To conclude otherwise would be to create a state of unjustified inequality and discrimination between women and men facing conscription, and would violate the principle of equality as a distinct characteristic of military service (HCJ 585/01 Klachman v. Chief of Staff; HCJ 1532/00 De Braemeker v. Minister of Defence, IsrSC 54(2) 297). Concluding otherwise might be inappropriately harmful to the interest of state security, as well as to general public, social values. Thus, applying the General Power of Exemption to both men and women for reasons common to both, while granting special status to a woman's reasons of conscience rooted in considerations of tradition, religion and customs, promotes the notion of substantive equality between male and female persons of military age in those areas where no relevant difference exists between them.

 

From the general to the individual

 

15.     The Petitioner argues that reasons of conscience justify granting her an exemption from military service. She attributes her objection to military service to the IDF's wrongful policy as an occupation army, claiming that the occupation contravenes her moral and conscientious belief. She criticizes government policy in the territories and says that, for reasons of conscience, she will not be part of an entity that carries out a wrongful policy (copy of her letter P/3A). When she appeared before the Exemption Committee, the Petitioner argued that she was not a pacifist, and that if the IDF were to leave the regions of Judea, Samaria and the Gaza Strip, she would be ready to serve within it (protocol of the hearing before the Exemption Committee, R/1).

 

          Judging by their nature, the Petitioner's reasons for objection are grounded in socio-political ideology, which predicates her military service on the fulfilment of certain conditions — withdrawal from the Administered Territories and a change in government policy in this regard. These reasons for objection carry distinct marks of civil disobedience in their public message as regards the change of policy and the implementation of change in the nature of the army's activity. And, indeed, the Exemption Committee and the statutory Appeals Committee were not convinced that the Petitioner's refusal to serve in the IDF was motivated by reasons of personal conscience.

 

          Still, the Petitioner claims that reasons of personal conscience and inner moral obligation also prevent her from serving in the army. It might be possible to say that the Petitioner’s ideological objection is accompanied by reasons of conscience and personal morality that intertwine with her ideological objection, ordering her, as a matter of personal moral necessity, to refrain from serving in the army. But even then, given the circumstances of the case, there are no grounds for intervening in the competent authority's conclusion not to recognize her right to an exemption from military service. Even if we classify the Petitioner's objection as one motivated, among other things, by reasons of personal conscience, it still remains outside the purview of both the statutory exemption accorded to women under sec. 39 of the Law and the exemption policy exercised by virtue of the power vested in the Minister of Defence under sec. 36 of the Law. As for the statutory exemption, it is evident that the reasons underlying the Petitioner's objection are not reasons of conscience grounded in tradition, religion, or community lifestyle and customs specific to a woman as such, as addressed by sec. 39 of the Law. As for the General Power of Exemption exercised by virtue of sec. 36 of the Law, the Petitioner's objection is essentially of the selective kind, one that is not recognized by the competent authority at this time as grounds for exemption from service. This policy of the public authority has been deemed proper over the years, and there is no reason to intervene in it.

 

          Given these circumstances, it is not possible to accept the petition, and there are no grounds for intervening in the decisions of the Exemption Committees acting under law, that there are no grounds for exempting the Petitioner from military service.

 

Epilogue

 

16.     It has been our assumption that the Petitioner's beliefs and political, social views are sincere and true. The moral, personal conscientious imperative bound together with her general ideological outlook is likewise an expression of freedom of conscience that should be respected, appreciated, and accorded weight. With that said, given the conditions of Israeli society in view of the country's security needs, and considering the fundamental principles of equality, a shared fate and equal sharing in the burden of the duty of military service underlying the operation of the army, we cannot intervene in a policy that denies the selective conscientious objector exemption from military service. This policy is consistent with the conceptions of governance in a democratic society, with the obligation to honor the decisions of the majority as established through proper governance procedures, and with each citizen's duty to bear the burden of economic, social and security duties together with the equal enjoyment of civil rights. The duty to serve in the army is among the basic national civic duties. Disagreement with government policies and military actions derived therefrom, and even conscientious objection to participation therein, are not grounds for exemption from military service. The Petitioner must contribute her share to the overall security effort, despite her critique and her ideological view of what constitutes proper national policy. Her integration into the army and the contribution of her obvious capabilities toward achieving important goals and objectives would express recognition of the democratic values upon which the state is founded, and by virtue of and in accordance with which the army, too, operates. These values primarily rest on the rule of law as it applies to the majority, the minority and the individual.

 

          I propose that the petition be denied, and that the interlocutory order be revoked hereby.

 

 

 

Deputy President E. Mazza:

 

I concur.

 

 

 

Justice E. E. Levy:

 

I concur.

 

 

 

Decided as stated in the opinion of Justice Procaccia.

 

Given this day, 22 Av 5764 (August 9, 2004).

 

 

 

Shnitzer v. Chief Military Censor

Case/docket number: 
HCJ 680/88
Date Decided: 
Tuesday, January 10, 1989
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

This petition concerns the decision by the First Respondent to prohibit, under its authority according to Regulation 87(1) of the Defense Regulations (State of Emergency) 1945, the publication of a newspaper article criticizing the functioning of the Director of the Institute for Intelligence and Special Operations (the “Mossad”,) while noting the upcoming change in Mossad directors. After submitting to the First Respondent different versions of the article and after the Petitioners withdrew several portions of it, excerpts discussing two matters were prohibited for publication: the first topic was criticism of the Director of the Mossad and questioning his efficiency. In the First Respondent’s opinion, such criticism may compromise the functionality of the entire Mossad, on all levels of its ranks. The other topic concerns the timing of the change of directors while emphasizing the public importance of the Mossad Director’s role. The First Respondent’s position is that such publication may focus attention onto the Director of the Mossad, which creates real danger to his safety. The Petitioners maintain that the excerpts of criticism in regards to the Director of the Mossad and the timing of changing the director are worthy of publication and that their prohibition is unlawful. The Petitioners rely on the importance of freedom of expression and the public’s right to know in a democracy, and in their view the publication does not create a near certainty for harm to state security that justifies limits to free expression.

 

The High Court of Justice ruled:

 

A.         1.         The Interpretation that must be given to the Defense Regulations (State of Emergency) in the State of Israel is not identical to the interpretation that must be given to them at the time of the British Mandate. The Defense Regulations (State of Emergency) are currently part of the laws of the democratic state, and they must be interpreted in light of the fundamental principles of the Israeli legal system.

            2.         The Defense Regulations (State of Emergency) concern state security. This fact impacts the way the system’s fundamental principles are implemented but it does not impact the mere application of these fundamental principles. The state security and the public order do not outweigh or negate the application of fundamental principles. They are weaved into them, influencing their shape and content, and are balanced against them.

            3.         The fundamental principles that shape the interpretation of the Defense Regulations (State of Emergency) are, first and foremost, considerations of security, which cover the entire scope of the Regulations. Realizing the interests in state security, public safety and public order are at the basis of the purpose for which the Regulations were enacted and they must be interpreted according to this purpose.

            4.         Alongside the security considerations (in their broad sense) stand additional values that any piece of legislation in a democratic society must be interpreted in their light and which are implicated by the Defense Regulations (State of Emergency).

 

B.         1.         It may so happen that fundamental principles conflict with each other. The principles in terms of state security, public safety and public order may conflict with values such as the freedom of movement, free expression, and human dignity. In each of these cases the Court must balance between the conflicting values.

            2.         The “balancing formula” in the conflict between state security and free expression presupposes realizing the values of state security.

3.         Because of the centrality of the fundamental value of free speech the infringement of this fundamental value must be as limited as possible, and only when the infringement of free speech is essential in order to realize the value of state security is this infringement permitted.

4.         The likelihood that justifies limits on free expression is that of a “near certainty.” There must be extreme circumstances that create a real and almost certain danger to the safety of the general public.

5.         This likelihood does not exist where other means – aside from limiting personal liberty and aside from limiting free expression – may be employed in order to reduce the danger. Infringing free expression need not be the first resort; it must be the last resort.

 

C.         1.         Subjective discretion must be applied within the contours of the authorizing statute. Therefore those who were empowered under the Defense Regulations (State of Emergency) may apply this authority in order to realize the purposes behind the Regulations rather than realizing irrelevant purposes.

            2.         Any governmental authority is based on conditions and requirements as to its implementation, and lawful implementation of the authority requires that such conditions be actually realized. Therefore, to the extent that the correct interpretation of Regulation 87 of the Defense Regulations (state of Emergency) is that a publication in a newspaper may be prohibited only if the Censor believes there is near certainty that the publication would cause real harm to security, then the Censor’s must give thought to the existence of such near certainty. Should the Censor prohibit a publication without being persuaded that the publication creates the required near certainty it did not exercise its discretion lawfully.

            3.         Discretion assumes freedom to select between lawful options.  Subjective discretion assumes that the competent authority makes the choice between the options according to an evaluation of each option’s benefits. This evaluation must be made according to the rules of administrative law: in good faith, without arbitrariness or discrimination, and following consideration of all relevant factors and only relevant factors.

            4.         The Censor’s decision must be reasonable, that is that any reasonable Censor would reach such decision under the circumstances. The question in each case is whether a reasonable military Censor may reach the conclusion that, on the basis of a given set of facts, there is near certainty that the publication would cause a severe or real harm to state security.

            5.         The determination that were the publication not prohibited there would be near certainty for real harm to state security must be based on clear, unequivocal and convincing evidence.

 

D.         1.         There is no basis to the approach that the subjectivity of the administrative discretion restricts judicial review to only a limited number of grounds for review. The proper approach is that the theory of discretion establishes the conditions for the lawfulness of the use of discretion and the theory of adjudication establishes that the court is authorized to examine the existence of such conditions.

            2.         The principle of separation of powers requires the court to review the lawfulness of the administrative entities’ decisions. Security factors hold no unique status in this sense. Just as the courts are able and obligated to examine the reasonability of professional discretion in each and every area, so they are able and obligated to examine the reasonability of discretion in terms of security. There are no unique restrictions on the scope of judicial review over administrative discretion that concerns state security.

            3.         Under the circumstances here, once the First Respondent gave reasons for its decision, these reasons are subject to judicial review, just like any other administrative discretion.

 

E.         1.         The First Respondent’s distinction between criticism of the Director of the Mossad, which he believes compromises state security rendering prohibiting its publication and criticism of the Mossad itself, which must not be prohibited, is unacceptable. Publishing criticism of the functioning of the Director of the Mossad causes no near certainty of real harm to state security.

            2.         In a democratic society, criticism of people who hold public roles should be possible. Free expression includes the freedom to criticize and the freedom to pose difficult questions to those in government. Discomfort regarding criticism or the harm it may cause cannot justify the silencing of criticism in a democracy, which is founded on the exchange of idea and public discourse.

            3.         In deciding to prohibit the publication of criticism over the functioning of the Director of the Mossad, the First Respondent did not attribute sufficient weight to the principle of free expression. A free society cannot exist without a free press, therefore the press must be allowed to fulfill its function and only in special and extreme cases, where there is near certainty for real harm to state security, is there place for prohibiting news articles.

            4.         Under the circumstances here, the First Respondent did not meet the heavy burden of showing that advance restriction of free expression is lawful.

 

F.         1.         The First Respondent’s reasoning to prohibit the Petitioners to publish in an article details as to the timing of the change in the directors of the Mossad does not withstand the test of review. The possibility that publishing the timing of the impending change in the directors of the Mossad increase the risk to the outgoing Director’s safety is merely speculative.

            2.         There is public importance to the fact that the public is aware of the upcoming appointment. This reflects one of the aspects of the great importance of free expression and the public’s right to know.

            3.         Under the circumstances here, there position and the estimations of the First Respondent are unreasonable. In its approach, the Court does not appoint itself super-censor, but it finds that a reasonable censor, operating in a democracy and required to balance security against free expression, would not reach the conclusion reached by the First Respondent. 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion

Lahisse v. Minister of Defense

Case/docket number: 
HCJ 27/48
Date Decided: 
Sunday, February 1, 1959
Decision Type: 
Original
Abstract: 

An officer in the Israel Army was charged before a military court in Israel with murder, an offence under S. 214(b) of the Criminal Code Ordinance 1936 and section 97 of the Army Code 1948. The officer submitted that the military court had no jurisdiction inasmuch as the acts with which he was charged were alleged to have been committed in Hula, a village in Lebanon, and outside the borders of either Israel, or Palestine as constituted under the Mandate. This submission was rejected, but the case was stood over to allow him to petition the High Court on the question of jurisdiction.

               

Upon the hearing of the petition it was argued, in addition to a submission of no jurisdiction in the military court, that only that Court had jurisdiction to interpret the Army Code.

 

Held, rejecting the petition, that where a criminal offence is committed by an army officer beyond the borders of Israel, he may be tried by a military court under the Army Code:

 

A person charged before a military court who alleges that that court is without jurisdiction, may petition the High Court without awaiting the decision of the military court:

 

The High Court may interpret the Army Code, the military court having no exclusive jurisdiction to interpret that Code :

 

The military court has jurisdiction to try a case such as the present in accordance with Article 38 (as amended) of the Palestine Order in Council, read together with Section 3(b) of the Criminal Code Ordinance 1936 and section 3 of the Army Code.

 
Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

CHESHIN J. giving the judgment of the court. On December 6, 1948, an order nisi was issued by this court calling upon the respondents to appear and show cause why they should not be restrained from placing the petitioner on trial before the Special Tribunal of the Defence Army of Israel on a charge of murder under section 214(b) of the Criminal Code Ordinance. 1936, and section 97 of the Army Code, 1948, and why they should not release the petitioner from custody.

           

2. The facts, as detailed in the affidavit of the petitioner, are not in dispute, and may be summarised shortly as follows:

 

            The petitioner, Shmuel Lahisse, an officer of the rank of first lieutenant, served in the Defence Army of Israel as a Company Commander. On November 12, 1948, he was arrested by order of the prosecutor of "A" Command, and was charged with the murder of a number of persons in the village of Hula, Lebanon, on October 31, 1948, and November 1, 1948.

           

            On December 2, 1948, the petitioner was brought to trial before the Special Tribunal of the Defence Army of Israel sitting in Haifa. After the charge had been read to him, but before he had pleaded to the charge, his counsel submitted that the tribunal had no jurisdiction to consider the offences charged, as it was clear from the information itself that the acts constituting the offence had been carried out beyond the borders of Palestine and, therefore, outside the jurisdiction of the tribunal. The tribunal, by majority decision, dismissed this contention, and counsel for the petitioner requested an adjournment in order to enable them to apply to this court for a ruling on the question of jurisdiction. The tribunal held unanimously, "that there is no justification for acceding to the request of the Defence", but it adjourned the hearing to another date - in its own words - "as an exception and having regard to the unusual matter arising in this case and the serious penalty to which the accused" (the petitioner) "will be liable in the event of his conviction". At the same time the tribunal hinted, in the course of its decision, that ''the Defence is entitled to make use of this delay for the taking of such steps as it sees fit". The accused then petitioned this court and, as above stated, an order nisi was issued.

 

3. Before considering in detail the principal submissions of counsel for the parties we would like to refer, although the matter may not be strictly relevant, to the following point, because it is one that gives rise to much discussion in cases of this nature. The point is this : In section 10 of his petition the petitioner submits that "the decision of the Supreme Court, sitting as the High Court of Justice... binds all the courts in the country, including military tribunals". Mr. Cohn, the State Attorney, who appears on behalf of the respondents, does not deny the soundness of this contention, and the affidavit of the President of the Special Tribunal before whom the charge against the petitioner was heard, the third respondent before us, makes no reference to this submission. In the absence of any reference to the point in the affidavit it is unnecessary to deal with it at any length. It appears, however, from the detailed record of the proceedings before the Special Tribunal - which was annexed to the petition - that this question was the subject of lengthy discussion and argument, and the President of the Tribunal made some remarks which seem to throw doubt on the competence of this court to interfere in proceedings before the military courts. In one of its decisions it was held by the Special Tribunal that:-

 

            "There is no authority in the law of the State for the submission:

 

            (a) that the High Court of Justice may intervene in the course of proceedings before a military tribunal:

           

            (b) that a military tribunal is bound in any way by the decisions of any civil court...".

           

            It was this very decision which induced counsel for the petitioner to make the submission contained in paragraph 10 of the affidavit which he filed, and since the question of the "superiority" of the civil as against military courts is raised in this court all too frequently, it is imperative that something be said here on this subject which will constitute an "authority", or, at least, something in the "nature of an authority".

           

4. The Army Code, 1948, from the provisions of which the military tribunals derive their jurisdiction, is modelled upon the English Army Act. This Act does not lay down specifically the relationship between the civil courts and military tribunals. Learned jurists in England, however, regard the military tribunals as part of the general system of courts for certain purposes, and in the course of time a number of principles which indicate the de facto relationship between these courts have been laid down by the courts and legal writers. A number of these principles are cited in the Manual of Military Law, in Chapter 8 of which the following is laid down:1)

 

            "The members of courts martial... are, like the inferior civil courts and magistrates, amenable to the superior civil courts for injury caused to any person by acts done either without jurisdiction, or in excess of jurisdiction... Such injuries will equally be inquired into whether they affect the person, property, or character of the individual injured; and whether the individual injured is a civilian or is subject to military law".

 

            '"The jurisdiction of a tribunal may be limited by conditions as to its constitution, or as to the persons whom, or the offences which, it is competent to try, or by other conditions which the law makes essential to the validity of its proceedings and judgments. If the tribunal fails to observe these essential conditions, it acts without jurisdiction... The result of acting without jurisdiction is that the act is void, and each member of the court-martial... is liable to an action for damages".

 

            "The proceedings by which the courts of law supervise the acts of courts-martial... may be criminal or civil... Civil proceedings may either be preventive, i.e., to restrain the commission or continuance of an injury; or remedial, i.e., to afford a remedy for injury actually suffered. Broadly speaking, the civil jurisdiction of the courts of law is exercised as against the tribunal of a court-martial by writs of prohibition or certiorari.

 

            "The writ of prohibition issues out of the High Court of Justice to any inferior court, when such inferior court concerns itself with any matter not within its jurisdiction, or when it transgresses the bounds prescribed to it by law. The writ forbids the inferior court to proceed further in the matter, or to exceed the bounds of its jurisdiction; and if want of jurisdiction in the inferior court be once shown, any person aggrieved by the usurpation of jurisdiction is entitled to the writ as a matter of right".

           

            "Disobedience of a prohibition is a contempt of court, and as such punishable by fine and imprisonment at the discretion of the court which granted the writ “.

           

5. These principles are laid down in respect of the courts of England, but as it is not disputed that the military tribunals in this country are also part of the system of the courts generally, it may be assumed that they also apply to the relationship between the civil and the military courts in Israel. Since this is so, this court is competent to direct military tribunals, through orders issued by it, to refrain from considering a particular matter, and it is the duty of the military tribunal to which the order is addressed to comply with its terms. Section 58 of the Army Code, 19481), is entirely irrelevant. This section, which for some reason has been given the title "The supremacy of Military Tribunals" - is merely designed to provide that a soldier who has committed an offence and is arraigned in criminal proceedings before a civil court is not released thereby from also being tried for the same offence before a military tribunal. It can on no account be deduced from the language of the section, however, that military tribunals are never subject to the authority of this court, even when they purport to arrogate to themselves jurisdiction which in law they do not possess.

 

6. Mr. Cohn, in the course of his argument before as, submitted that in fact only a small number of applications for a Writ of Prohibition had been made to the civil courts in England, and even those which had been made, were dismissed. If this be the fact, it merely shows that those responsible for prosecutions in the military tribunals in England are very careful in their work and are anxious not to bring matters before the tribunals which are beyond their jurisdiction, or that the few applications which were in fact brought were not sufficiently well based to succeed. This does not show that a civil court will never intervene in the work of a military tribunal. The Manual of Military Law, which I have quoted, deals also with this point, and it is said there, at page 123:

 

"Although the writ of prohibition has never actually been issued to a court-martial, there seems no doubt that it might issue in a proper case".

           

7. We make these comments in the belief that the question of the "superiority" of military tribunals over civil courts will no longer trouble the judges who sit on such tribunals nor those who plead before them.

 

8. Turning now to Mr. Cohn's reply on behalf of the respondents, we find it is divided into two parts. The first includes those arguments which deal, in the main, with the submission that the petitioner's application to this court is premature. The second contains Mr. Cohn's arguments on the merits of the petition. We shall deal with these submissions separately.

 

9. In the first place, it is submitted by Mr. Cohn that this Court should not accede to the prayer of the petitioner, since the regular work of the military tribunals would be seriously hampered if it be held that any person charged before them is entitled, at any time, to apply to this court for a writ of mandamus or a writ of prohibition. It is emphasised by Mr. Cohn that he makes this submission on the specific instructions of the third respondent, the President of the Special Tribunal, which dealt with the case of the petitioner. In our opinion this argument discloses no ground for dismissing the petition, and there is no need to deal with it at any length. Where a person accused before a military tribunal requests a postponement of the proceedings in order to petition this court, the military tribunal may dismiss the application and proceed with the case, if this appears to it to be the correct course. Where, however, a person accused petitions this court and demands justice, it is right that he should be heard, and the doors of the court should not be closed against him merely to suit the convenience of the military tribunal. On no account are the basic rights of a citizen to be withheld on grounds such as these. If, indeed, a military tribunal acts in a particular case without jurisdiction, a serious infringement of the rights of the citizen has taken place, and this court will not hesitate to hear his petition, nor will it pay any regard to the degree of inconvenience which may be caused to the military tribunal in its work.

 

10. The second submission of the State Attorney is that this court will not usually intervene when another remedy is available to the petitioner. According to this argument the petitioner in this case must first be tried before the military tribunal. If he is convicted, he will be able to appeal against the judgment as is provided in the Army Code, 1948. If the judgment on the appeal does not satisfy him, he may apply to the responsible authority for a pardon. If at that stage too he feels aggrieved - only then may he petition this court. As a general rule the principle stated above is a sound one, and this court has in first acted upon it in innumerable cases. The jurisdiction of this court is derived from the second paragraph of Article 43 of the Palestine Order in Council, 1922, and section 7 of the Courts Ordinance, 1940. The second paragraph of Article 43 of the Order in Council provides that: -

 

"The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of justice".

           

Section 7 of the Courts Ordinance provides, inter alia, that: - "The High Court of Justice shall have exclusive jurisdiction in the following matters: -

 

            (a)        ..................

           

            (b)        orders directed to public officers or public bodies in regard to the performance of their public duties and requiring them to do or refrain from doing certain acts".

           

            In the light of these two provisions this court (in the time of the Mandate) gave a number of directives to indicate in which cases it will intervene and in which cases it will refrain from intervening; see, for example, Havkin v. Inspector-General of Police and Prisons (1) which sets forth the principles which had been laid down in a number of earlier decisions. Today, however, it is beyond doubt that this court will certainly intervene by the issue of a Writ of Prohibition, where an inferior court in a particular case proposes to assume jurisdiction it does not possess. The present case is not similar to one in which it may be said to the petitioner, as was said to him in the case of Barakat v. Maronite Ecclesiastical Court (2), "You have the right not to appear before the body which wishes to try your case if in fact it does not constitute a proper court; wait until actual steps are taken against you, for at this stage of the proceedings you have suffered no injury".

           

            In the case before us the petitioner does not deny that the body which proposes to try him is in general a legal and competent tribunal to deal with the cases of soldiers. His contention, however, is that in this particular case it is wholly incompetent to demand of him that he account for his actions. He is, moreover, not entitled to refuse to obey the summons of the tribunal - he is compelled to appear before it. It would be unjust, therefore, to compel the petitioner first of all to stand trial, and later to be subject to the several stages of the proceedings, with a serious charge carrying a heavy penalty hanging over him, and only after the trial has run its full course to appear here and show that all the proceedings were invalid. At this stage there is no place other than this court to which the petitioner can turn for relief. It seems to us, therefore, that this is one of the eases in which this court is entitled to come to a decision in accordance with both the second paragraph of Article 43 of the Order in Council, and section 7 of the Courts Ordinance.

 

11. The third submission of the State Attorney is that this court should not intervene during the proceedings of the Special Military Tribunal, since section 40 of the Army Code, 1948, deprives it of the right to interpret that Code. That section, which is headed "Interpretation of the Code", provides that "The Presidency of the Supreme Tribunal and any 'sitting' of the Supreme Tribunal shall be competent to interpret this Code should they deem it necessary so to do, and such interpretation shall be binding unless set aside by the Minister of Defence." As I have said, nothing is further from the intention of Mr. Cohn to deny the jurisdiction of this court. On the contrary, he has emphasisd time and again that this court is competent to make orders against military tribunals, and the presidents and judges of such tribunals. In his opinion, however, one power alone has been denied this court by the section cited, and that is the power to interpret the Code and the principles to which it gives expression. It can only be concluded, therefore, that section 40 impliedly deprives this court altogether of the power to consider any matter connected with the soundness of this submission.

 

12. We would point out that section 40, as is the case with many other sections in the Code, is drafted negligently and carelessly, and is defective both in what is lacking and in what is superfluous. It provides, for example, that "a sitting of the Supreme Tribunal" shall be competent to interpret the Code, but we do not know the nature of such a "sitting". Is it intended to refer to every panel of judges "of not less than twenty-one in number" spoken of in section 341), or only to the three or five judges of whom a tribunal is constituted for a particular purpose, as stated in section 361). If the intention is to refer to all the judges sitting together, why are they described by the name "sitting" and not "panel of judges", the name which appears in the marginal note to regulation 34? And if it is intended to refer to a tribunal as ordinarily constituted, sitting for the purposes of a particular case, the question arises whether it is only the Supreme Tribunal which is competent to interpret the Code? Have the inferior military tribunals been deprived of this power ? If so, how is it possible to imagine that an ordinary military tribunal will consider a case in accordance with the Code without being competent to interpret it? And how did the Special Tribunal, which dealt with the case before us, reach its decision if not by interpreting the Code? Moreover, section 40 provides that "such interpretation shall be binding". On whom shall it be binding? Shall it bind every inferior military tribunal in every case brought before it, or only a single particular military tribunal dealing with a particular matter brought before it? And what about the Superior Military Tribunal itself? Will an interpretation given by one "sitting" bind another "sitting" of the same tribunal, or not? And was it the intention that such interpretation should also bind other courts - such as this court - or not? It is elementary principle that an ordinary civil court is not to be deprived of jurisdiction otherwise than by an express provision or an implied intimation in the body of the law itself. (See, for example, section 8(3) of the Registrars Ordinance 1936: section 45 of the Constituent Assembly Elections Ordinance, 1948; regulation 5 of the Emergency (Requisition of Property) Regulations 1948). It would seem, therefore, that the only remarkable feature of this regulation is that the presidency of the Supreme Military Tribunal - although this presidency is not a tribunal in the accepted sense of the term and is also not included in the judicial administration as detailed in regulation 7 - is also competent to interpret the Code, and its interpretation, as also the interpretation of "every sitting of the Supreme Military Tribunal" shall be binding "unless rejected by the Minister of Defence" Their interpretation "will be binding", excludes a case in which their interpretation has not yet been given. In the case before us no interpretation has yet been given by the bodies mentioned in regulation 40, and for this reason this court is competent to interpret the Code for the purpose of this case.

 

13. We now come to deal with the principal submissions of counsel for the parties. As I have said, the petitioner was brought to trial before the Special Military Tribunal under section 214(b) of the Criminal Code Ordinance, 1936, and section 97 of the Army Code. All the arguments of counsel for the parties were concentrated on the exact interpretation which is to be given to section 97, and indeed the fate of the application depends upon which version is accepted by the court.

 

14. Section 97 of the Army Code, 1948, provides:

 

            "(97) Every soldier who, within the framework of the army or by reason of his belonging to the army commits an offence punishable under the general criminal law which is in force or will from time to time be in force in the State and for which belonging to the army does not expressly release the offender from liability, may be tried for such offence before a military tribunal and shall be liable to the same punishment as that to which he would be liable in the ordinary courts".

           

            It is difficult to say that this provision is short and clear, and it is no wonder that the parties before us differ as to its meaning.

           

            Mr. Geiger, counsel for the petitioner, interprets this regulation so as to deprive a military tribunal of the power to try a soldier who has committed an offence under section 214(b) of the Criminal Code Ordinance, 1936, beyond the borders of Palestine. His submission may be framed as follows : when a soldier is tried before a military tribunal for an act which constitutes an offence under the existing criminal law, it must first be ascertained whether, according to that law, the accused would be liable to be punished were he to be tried before the ordinary courts. Counsel stresses the words "commits an offence which is punishable under the existing criminal law", and concludes from this that any act, even if it constitutes an offence, which for any reason would not be punishable by the ordinary courts, is also not punishable by military tribunals. One of the limitations on the powers of the ordinary courts, so counsel continues, is contained in section 6 of the Criminal Code Ordinance, 1936. This section provides : "The jurisdiction of the Courts of Palestine for the purposes of this Code extends to every place within Palestine or within three nautical miles of the coast thereof measured from low water mark".

           

            From this it follows, counsel submits, that the general criminal law recognises only the territorial jurisdiction of the ordinary courts, and not jurisdiction as to persons who commit offences outside the territory. The only exception is that contained in section 5 of the Ottoman Law of Criminal Procedure 18791) which is still in force. Every section of the Criminal Code Ordinance which creates an offence, therefore, must be read together with section 6 of that Ordinance, in order to test whether or not the courts have jurisdiction.

 

15. Applying this test, counsel submits, it is clear that had the petitioner in the case before us been brought to trial for the offence charged before an ordinary civil court, that court would have had no jurisdiction to try the case since the offence charged was committed in Lebanon. That being so, the special Military Tribunal also has no jurisdiction to try the petitioner, since the act in respect of which he is charged before that tribunal does not constitute "an offence punishable under the existing criminal law".

 

16. Mr. Geiger finds support for his submission in the concluding portion of section 97. This section, in speaking of the punishment which may be imposed by a military tribunal for an offence described in the opening portion thereof, provides that the accused "shall be liable to the same penalty as could have been imposed upon him in the ordinary courts". Had a person in the position of the accused been tried before the ordinary courts, so the argument proceeds, he would not have been liable to any penalty at all since, as the offence was committed beyond the borders of Palestine, such court would have had no jurisdiction to try the case. This being so the petitioner, in terms of the concluding portion of the section quoted, is also not liable to any penalty before the Special Tribunal, and if there is no penalty there is no jurisdiction, and there can be no trial.

 

17. Mr. Geiger has not overlooked section 3 of the Army Code which provides that "the Army Code, 1948, shall be binding upon the army and all its institutions and units, and upon soldiers of all ranks whether within the State or beyond its borders". In the first place, however, he submits that this section applies the Code only in respect of the offences set forth in the Army Code itself, that is to say, military offences, and not in respect of other offences which are civil in character and to which the Criminal Code Ordinance - including the limitation in section 6 thereof - applies. According to this argument, therefore, the Army Code, 1948, binds the army, its institutions, units, and soldiers, wherever they are, but only in respect of the offences set forth in that Code, and not in respect of an offence which is stated in the general criminal law. Mr. Geiger further submits in the alternative that the words "beyond its borders" in section 3 mean beyond the borders of the State of Israel, and beyond the borders of the area which was once covered by the Mandate, and was called "Palestine". From this it follows that the Army Code, 1948, binds the army, its institutions, units, and soldiers both in the State of Israel and in Palestine, but does not apply to acts performed by a soldier in Hula in Lebanon - a place beyond the borders of Palestine.

 

18. In explanation of this latter interesting conclusion Mr. Geiger relies upon a number of ordinances, regulations and proclamations. His contention may be put in this way: On May 14, 1948, there was the declaration of the establishment of a Jewish State, namely, the "State of Israel". The Declaration of the establishment of the State, which is published in Official Gazette No. 1, page 1, draws a distinction between the "State of Israel" and "Eretz-Yisrael".1) The "State of Israel" extends only over a portion of "Eretz Yisrael". In terms of section 1 of a proclamation published the same day a legislative authority, the Provisional Council of State, was constituted, and by virtue of the powers conferred upon it, it enacted the Law and Administration Ordinance, 1948. In terms of section 11 of that Ordinance there shall remain in force in the State of Israel ''the law which existed in Palestine on 14th May, 1948". It follows that the limitations on the powers of the legislative authority which applied previously under the law "which existed in Palestine" were not repealed and are still in force. Article 38 of the Palestine Order in Council, 1922, as amended by the Order in Council (Amendment) 1935, provides that "Subject to the provisions of any part of this Order or any Ordinance or Rules, the Civil Courts hereinafter described, and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine".

 

            From this it follows that the territorial jurisdiction of the courts of the State of Israel is in fact more limited than that of the courts which existed in the time of the Mandate, for the area of jurisdiction of the courts of the State of Israel only extends over the area of the State, while the area of jurisdiction of the courts in the time of the Mandate extended over the whole area of "Eretz-Yisrael".

           

19. The Provisional Council of State, in enacting section 1 of the Area of Jurisdiction and Powers Ordinance, 1948, opened the door for extending the areas in which the law of Israel will apply. That section provides : "Any law applying to the whole of the State of Israel shall be deemed to apply to the whole of the area including both the area of the State of Israel and any part of Palestine which the Minister of Defence has defined by proclamation as being held by the Defence Army of Israel." In this extension, however, there are limitations. Firstly, it is necessary that the extended area be defined by a proclamation of the Minister of Defence as being held by the Defence Army of Israel. Secondly, it is necessary that such extended area be situated within the borders of Palestine - even if it be beyond the borders of the State of Israel. In no circumstances, however, may it extend beyond the borders of Palestine.

 

20. The result, so counsel submits, is that if we read section 3 of the Army Code in the light of all the statutes and proclamations to which I have referred, the meaning of that section is as follows : The Army Code binds the army both within the State and beyond its borders that is to say, beyond the borders of the State of Israel, but not beyond the borders of Palestine. This being so, and the village of Hula in Lebanon being beyond the borders not only of the State of Israel but also of Palestine, and seeing it has not been defined by the Minister of Defence as an area which is held by the Defence Army of Israel, the Army - Code does not apply to it, and the military tribunals have no jurisdiction to try a person for an offence committed by him in that village.

 

21. In view of the authorities which apply to this case these arguments, though forceful, do not appeal to us. Section 97 of the Army Code is of course of decisive importance. The correct intention of that section may be discovered by considering the sections which precede it. Section 97 is found in that chapter of the Army Code which deals with the various types of offences. All the preceding sections, starting with section 77, specify the offences for which a soldier is liable to be tried, and lay down penalties attaching to them. Almost all of these offences are of a military character and are not mentioned in the general criminal law. On the other hand, the general criminal law details numerous offences of a civil character of which there is no mention in sections 77-96 inclusive of the Army Code. Were it not for section 97 a military tribunal would not be competent to try a soldier for one of the offences included in this last group of sections referred to. This section introduced two innovations:

 

            (a) the offences specified in the general criminal law are also offences under the Army Code and may therefore be dealt with by military tribunals.

           

            (b) the penalties which may be imposed upon a soldier by military tribunals in respect of such offences are those laid down in the general criminal law.

           

            This section, therefore, serves as a channel through which all the offences specified in the general criminal law flow into the Army Code, thereby adding to the list of offences already specified in the preceding sections. The opening words of the section "commits an offence punishable under the general criminal law" refer to a soldier who has committed an act regarded by the general criminal law as a punishable offence - that is to say, an act for which a penalty has been prescribed. This is the substantive portion of the law regarding military tribunals and it bears no relationship whatsoever to the question of the jurisdiction of the ordinary courts. Let us suppose that a person is charged before the District Court of Haifa with an offence committed by him within the area of jurisdiction of the District Court of Jerusalem. It is clear that the District Court of Haifa has no jurisdiction to try and punish the accused. This in itself, however, in no way affects the fact that the act committed by the accused is in the nature of a punishable offence. The District Court of Haifa has no jurisdiction but the offence is still an offence which is punishable under the Criminal Code.

           

22. This is what is intended by the opening words of section 97. Where a soldier is charged before a military tribunal under a section of the Criminal Code, the opening words of section 97 require that that Code be consulted in order to determine whether the act of the accused constitutes an offence for which a penalty is prescribed. At this stage no reference should be made to section 6 of the Criminal Code, for that section deals not with offences and punishments but with the jurisdiction of the general courts, while we are concerned with the military courts.

 

23. In the same way in which the offences described in the general criminal law are introduced into the Army Code by the opening words of section 97, so the penalties attaching to such offences are introduced by the concluding words of the same section. There may be some force in the submission of Mr. Geiger that the words "shall be liable to the same punishment as that to which he would be liable in the general courts" in the concluding portion of the section, force as to ask whether the person in question would be liable to be punished had he been charged before an ordinary court, and I attach importance to the words "to which he would be liable". The person charged in this case would not be liable to be punished in a general court - not because there is no offence, but because in terms of section 6 of the Criminal Code such court would have no jurisdiction to impose the punishment. This submission, however, goes not to the jurisdiction of the military tribunal but to the merits of the case. It must be made, therefore, before that tribunal when all the other submissions of the defence on the merits of the case are presented to that tribunal.

 

24. It must be borne in mind, moreover, that the opening words of section 97, in speaking of the offence, are directed not to a particular person charged nor to a particular offence, but to offences generally ("an offence punishable"). As against this, the concluding words of the section speak of the punishment to which a particular accused may become liable. It follows, therefore, that the jurisdiction of the military tribunal is to be determined by the following two factors:

 

(a)    whether the accused committed an act which constitutes an offence under the Criminal Code;

 

(b)   whether a punishment for such offence is prescribed by the Criminal Code.

 

The question whether or not a particular person charged is liable to be punished for a particular act does not require consideration of the jurisdiction of the military tribunal but of the charge itself, that is to say, whether or not upon that charge the accused is liable to be punished. That is a matter for the military tribunal - and not for this court.

 

25. We find support for this opinion in section 3(b) of the Criminal Code Ordinance, 1936. That section provides that "The provisions of this Code shall be without prejudice to . . . .

 

(b)   the liability of any person to be tried and punished for an offence under the provisions of any law relating to the jurisdiction of the Palestine Courts in respect of acts done beyond the ordinary jurisdiction of such Courts;"

 

            In other words, the legislature has left the door open for itself to enact laws in the future (and to provide therein also for what has happened in the past) whereby courts will be competent to try and punish persons for acts committed by them which fall beyond the ordinary jurisdiction of such courts, without their being limited by the provisions of the Criminal Code Ordinance (referring, apparently, to section 6 of that Ordinance). The Army Code must be regarded as one of those laws.

           

26. To sum up our consideration of this problem, therefore, section 97 was not intended to introduce into the Army Code the whole of the existing Criminal Code, but only specific sections thereof, namely, those which deal with particular offences and the punishment for such offences, and no more.

 

            The Criminal Code Ordinance, for example, devotes a whole chapter (chapter 4) to "General Principles relating to Criminal Responsibility". For the purposes of the Army Code, however, sections in the Ordinance creating an offence must not be read together with the sections of that chapter, since a whole chapter of the Army Code, namely, part 3, chapter I, is also devoted to these and similar matters. Moreover, the expression "offence" itself is defined differently in the two statutes. It follows from this that it is not the whole of the Criminal Code that has been introduced into the Army Code by section 97, and that section 6 of the Criminal Code Ordinance falls outside the Army Code which contains a parallel provision in section 3 thereof.

           

27. Even if this is not so, and section 6 of the Criminal Code Ordinance is included in the Army Code by virtue of section 97, that Code also includes section 3(b) which, as I have said, renders section 6 inapplicable.

 

28. We shall now examine the nature of Mr. Geiger's second submission. As we have already said, it is his contention that the Special Military Tribunal lacks jurisdiction because even if the Army Code, by virtue of section 3, binds the army and its soldiers also beyond the borders of the State of Israel, it does not apply to them beyond the borders of Palestine, and the act in respect of which the petitioner is charged took place beyond the borders of Palestine. There is no doubt that a number of legislative provisions published after the declaration of our political independence distinguish between the area which is included in the State of Israel and the area which is outside the State of Israel, but within the borders of Palestine, and lay down a number of provisions relating to those areas of Palestine which have been defined by the Minister of Defence as occupied areas. This distinction, however, between the "State of Israel" and "Palestine" does not appear in section 3 of the Army Code. That section applies the Army Code to the army wherever it is, whether within the State or beyond its borders - the words "beyond its borders" are without limitation.

 

29. Two further submissions have been advanced by Mr. Geiger:

 

            (a) just as no extra-territorial jurisdiction has been conferred upon the civil courts, the military tribunals have no such jurisdiction;

           

            (b) if, indeed, it was the intention of the Minister of Defence to confer extra-territorial jurisdiction upon the military tribunals by section 3 of the Army Code, that section would be ultra vires.

 

30. In support of these submissions Mr. Geiger relies upon the case of Attorney-General v. Nikolaiovitch (3) and upon obiter dicta in the judgment. In that case a number of persons were charged under the Immigration Ordinance with assisting Jewish refugees to immigrate to this country. It was proved that the act committed by the accused had been performed beyond the territorial waters of Palestine. It was accordingly held by the court that since it exercised no authority over the place where the offence was committed it had no jurisdiction to deal with the matter. The Supreme Court (in the time of the Mandate), sitting as a Court of Appeal, upheld the judgment, relying upon the English case of Macleod v. Attorney-General for New South Wales (4).

 

            The facts in Macleod's case were as follows: The appellant, a resident of New South Wales, married a woman in America during the life of his former wife. Upon his return to New South Wales he was charged with the crime of bigamy and upon the basis of a statute which made the marriage of a second wife in any place whatsoever, during the lifetime of the former wife a criminal offence, was duly sentenced. The Court of Appeal in New South Wales upheld this judgment. The decision, however, was reversed by the Privy Council which held that the statute in question must be very strictly interpreted, and that the words "in any place whatsoever" meant any place within the area of New South Wales and not outside it.

           

            The Privy Council went on to point out that were the position otherwise it would mean that the colony of New South Wales assumed jurisdiction over every place in the world. The assumption of powers such as these, which exceeded those conferred upon the colony, was inconceivable. The Privy Council cited with approval the remarks of Baron Parke in Jefferys v. Boosey (5) that,

           

            "It is clear that the Legislature has no power over any person except its own subjects, that is, persons natural-born subjects, or resident, or whilst they are within the limits of the Kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.”

           

The Court in the case of Nikolaiovitch (3), when dealing with the principle laid down in Macleod's Case (4), pointed out obiter that had it been the intention of the legislature in enacting the Immigration Ordinance to empower the courts of this country to deal with offences committed beyond its territorial waters, it could not have done so because of the limitations upon its own powers. For these reasons Mr. Geiger asks us to conclude that even under section 3 of the Army Code the area of jurisdiction of the Special Tribunal in this case does not extend beyond the borders of Palestine since that section is to be strictly interpreted.

 

31. These arguments too, which were advanced by Mr. Geiger with much ingenuity, do not appeal to us. It is an important principle of the common law that the area of jurisdiction of the courts extends over the area of the State alone, and that they have no jurisdiction in regard to offences beyond the borders of the State - that is to say, that the criminal jurisdiction of the courts is territorial and not personal (see Archbold's Pleading, Evidence and Practice in Criminal Cases, thirty first Edition, page 25). The Privy Council in Macleod's Case (4) reached its decision upon the principles of the common law which have been introduced into the framework of our criminal law by section 6 of the Criminal Code Ordinance. In England too, however, that principle is subject to limitation and change, and it does not apply when the jurisdiction of the courts has been expressly extended by the legislature. Thus it is said by Archbold, (ibid),

 

            "The jurisdiction of the Courts of British colonies is limited to offences committed within their territories unless express legislation otherwise provides".

           

and at page 26 he says,

 

            "in the case of British subjects who have committed offences abroad there are many exceptions to the common law rule by virtue of specific statutes".

           

We have already seen that the Ottoman Law also recognised personal jurisdiction in the special case dealt with in section 5 in the Ottoman Code of Criminal Procedure, and it is not impossible that this is also the intention of section 3(b) of the Criminal Code Ordinance. Section 3 of the Army Code is then only another example of this. This section confers jurisdiction upon military tribunals to try a military offender who has committed an offence beyond the borders of the State. In other words the jurisdiction of military tribunals is personal and is unlimited by geographical boundaries. Moreover, as we have already seen, the words "beyond its boundaries" are intended to refer to any area beyond the borders of the State, without limitation.

 

32. We now come to deal with the second argument of Mr. Geiger that if that was indeed the intention of section 3 of the Army Code, then that section is ultra vires. Mr. Geiger bases this submission upon Article 38 of the Order in Council, the Declaration of the State of Israel and the first Proclamation made on May 14, 1948, section 11 of the Law and Administration Ordinance, and section 1 of the Areas of Jurisdiction and Powers Ordinance.

 

            There would have been substance in this submission of Mr. Geiger had the Army Code, 1948, been enacted by virtue of the Palestine Order in Council. That, however, is not the case. The Code was enacted in the exercise of powers conferred upon the legislature after the establishment of the State. It is stated at the commencement of the Emergency Regulations Army Code, 1948, that they were made by virtue of the powers conferred upon the Minister of Defence by Section 9 (a) of the Law and Administration Ordinance, 1948. Section 9(b) of the Ordinance provides that,

           

            "An emergency regulation may alter any law, suspend its effect or modify it..... "

           

It is true that in terms of section 11 of the Ordinance

 

            "The Law which existed in Palestine on the 14th May, 1948, shall remain in force"

           

but there are added immediately the additional words,

 

            "in so far as there is nothing therein repugnant to this Ordinance or to other laws which may be enacted by or on behalf of the Provisional Council of State . . . . ."

           

Section 2(a) of the Law and Administration (Further Provisions) Ordinance, 1948, moreover, explains section 11 of the Law and Administration Ordinance, 1948, in providing that

 

            "Where any Law enacted by or on behalf of the Provisional Council of State is repugnant to any law which was in force in Palestine on the 14th May, 1948, the earlier Law shall be deemed to be repealed or amended even if the new Law contains no express repeal or amendment of the earlier Law".

 

It follows therefore that whatever may be the effect of Article 38 of the Order in Council and section 6 of the Criminal Code Ordinance, 1936, there can be no doubt whatsoever that section 3 of the Army Code, 1948, repealed or amended or replaced all earlier provisions in the Law as was the case, as we have seen above, with the specific statutes in England which modified the principle applied by the common law. It follows therefore that by virtue of this section a military tribunal is competent to try a soldier who has committed an offence under the Army Code (this including an offence under the general criminal law which has been introduced into the Army Code under section 97) beyond the State of Israel, or beyond the area of Palestine to which the Mandate applied. Since this is so, the Special Tribunal constituted for the purpose of dealing with the offence committed by the petitioner in the village Hula in the Lebanon was also competent to try the case.

 

33. We desire in conclusion to mention one other argument of the State Attorney. He submitted at the outset of his argument that since the Minister of Defence had dealt neither directly nor indirectly with the matter of the petition there was no necessity to join him as a respondent. In any event, he continued, the name of the Minister should be deleted from the petition so as not to hinder him in the exercise of the powers conferred upon him by section 40 of the Army Code.

 

            It might be proper to examine this submission but in view of the conclusion which we have reached, as set forth above: we do not deem it essential to deal with it here since, in any event, the court has refused the petitioner the relief which he seeks.

           

            In view of what we have said it has been decided to discharge the order nisi granted upon the application of the petitioner.

           

                                                       Order Nisi Discharged.

                                                       Judgment given on February 1, 1959.

 

1) The learned judge gives a citation from an early edition.

1) See supra p. 132.

1) Army Code, S. 34:

Panel of Judges.

34. The Minister of Defence shall appoint, and ensure that there will always be appointed by him, Judges of the Supreme Tribunal of no less than twenty-one in number and that among the Judges there will be at least two from each commanding rank in the Army except the Chief of Staff.

 

 

1) Army Code, S. 36:

Three or five judges to sit in every case

36. In every case there will sit three or five judges, as may be decided by the President of the Tribunal in each instance, and they shall be appointed thereto from among the Judges of the Supreme Tribunal by the Presidency of the Tribunal, and one of them shall be appointed by it to act as president of the tribunal.

 

1) Ottoman Law of Criminal Procedure, S. 5:

Every Ottoman who has committed outside the territory of the Empire a crime against the safety of the Empire or the crime of forgery of State seals, of legal currency, of any kind of Government titles, of bonds, of treasury bills and of bank notes authorised by the law may be prosecuted and convicted of such offence in accordance with the Ottoman Law if he has not already been convicted therefore in a foreign country.

(Note: The Law was repealed - as regards Israel - in 1955).

1) Meaning literally the 'land of Israel'. This is the Hebrew for Palestine.

Hess v. Chief of General Staff

Case/docket number: 
HCJ 4146/11
Date Decided: 
Tuesday, July 9, 2013
Decision Type: 
Original
Abstract: 

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

 

A petition to direct the introduction of a military order prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and that is capable of achieving an equal or similar military advantage.

 

HCJ (per Judge Arbel and with the concurrence of Judges Melcer and Danziger) dismissed the petition, subject to guidance regarding the review of the issue the subject of the petition, and held as follows:

 

With regard to the issue’s justiciability, war is subject to laws and the laws are subject to judicial interpretation, within the boundaries of the restraint that the HCJ has imposed on itself especially with regard to quintessential military matters. The choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of weapons arise the Court will refuse to consider the matter. The boundaries of the HCJ’s intervention in matters of this kind are extremely limited to exceptional cases, where there is concern of injury to established legal norms. The HCJ intervenes in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect.

 

In order to maintain the balance between the restraint required in the HCJ’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, a multi-stage review is required in petitions of this kind: whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where, based on Army orders, the use of the weapons that are the subject of the petition has ceased. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, the petitioners’ arguments will be considered on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

 

This petition raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus, which oblige, ex facie, another in-depth examination. The arguments are of a dominant legal nature. Accordingly, the HCJ proceeded to the second stage of review. However, at this stage the HCJ stopped the judicial review in light of the State’s declarations that it had been decided not to allow at this time the use of shells containing white phosphorus in a built-up area. The exceptions to this order are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. With regard to the concern regarding a change in the Army’s orders, since the State has not declared that the orders are permanent ones, the HCJ ordered the IDF to conduct a comprehensive and in-depth review of the use of white phosphorus in the Army and the possible alternatives for its use, which will serve either to make the orders permanent or to substantiate a position justifying a change in the orders. The HCJ further ordered the State to notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before the HCJ. 

 

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

 

In the Supreme Court

Sitting as a High Court of Justice

 

HCJ 4146/11

 

Before:

Her Honor, Judge E. Arbel

 

His Honor, Judge H. Melcer

 

His Honor, Judge Y. Danziger

 

The Petitioners:

Yoav Hess + 116 other Petitioners

 

 

v.

 

 

The Respondent:

The Chief of General Staff

 

 

 

 

Petition for the grant of an order nisi

 

 

 

Date of session:

Sivan 4, 5773 (May 13, 2013)

 

 

On Behalf of the Petitioners:

Adv. M. Sfard,  Adv. E. Schaeffer

 

 

On Behalf of the Respondent:

Adv. Y. Roitman

 

 

 

Judgment

 

Judge E. Arbel:

1.In the petition before us, the petitioners petition the Court to order the introduction of a military command prohibiting the use of white phosphorus for any purpose in settled areas and other civilian sites, as well as any use of arms containing white phosphorus in any situation in which there is an alternative weapon that is less dangerous to humans and is capable of achieving an equal or similar military advantage.

2.The need for the petition arose, according to the petitioners, following the extensive and unethical use, according to them, of weapons containing white phosphorus by the IDF during Operation Cast Lead (December 2008 – January 2009). According to them, during the operation many bombs containing phosphorus were dropped, and by the nature of things, because the [Gaza] Strip is densely populated with civilians, the result was extensive injury to civilians, some of whom were injured when the bombs were dropped and some much later, when the incendiary effect of the phosphorus was still active. According to them, the use of phosphorus endangered the lives of civilians, humanitarian employees and medical personnel. The petitioners argue that this is a substance which has potential for serious injuries to those who come into contact with it, and that its harmful effect lasts long after it is launched. The use thereof, it is argued, by its nature does not enable distinction between military and civilian targets, and thus even when it is aimed at legitimate targets, it might ultimately injure civilians. The petitioners’ main legal argument is that the use of white phosphorus constitutes a violation of the international law.

3.The respondent argues that the petition is of a type that the Court does not usually consider, as it deals with the weapons to be used by the IDF. The respondent also claims that there is no impediment under the law of armed conflict to using artillery shells containing white phosphorus for camouflage purposes only, including in urban warfare. The respondent emphasized that on the professional orders of the chief artillery officer, the use made of the “white smoke” shell is for camouflage purposes only. The State’s attorney, in the hearing before us, also gave notice that at this time the IDF has decided, even though it is not legally required, not to use shells containing white phosphorus in a built-up area, subject to two limited exceptions. The exceptions were presented to us in camera.

4.I will note that the petitioners motioned for the filing of expert opinions regarding the repercussions of the use of white phosphorus in a built-up area. The respondent objected to the motion and argued, inter alia, that the expertise of the opinion’s authors in the architecture field is not relevant to deciding  the question of the legality, in principle, of arms containing white phosphorus, from the legal and factual aspects. In light of our decision, as detailed below, we see no reason to allow the motion to file the opinion. Nonetheless, if the issue arises again in the future, there might be room to delve into it, and it will then be possible to consider the disagreement between the parties with regard to the relevancy of the expertise of the opinion’ authors to the questions under discussion.

Discussion

5.The first issue that must be addressed concerns the justiciability of the issue before us. While the respondent argues that this issue is not justiciable and is one that the Court does not usually consider, the petitioners claim that nowadays there is no doubt that the war is subject to laws and that the laws are subject to judicial interpretation. On this I must agree with the petitioners, within the boundaries of the restraint that this Court has imposed on itself of course, especially with regard to quintessential military matters. I will explain.

As is known, the choice of weapons used by the Army is not generally a matter for this Court’s consideration. Nonetheless, it cannot be said that in every case in which issues related to the use of these or other weapons arise the Court will refuse to consider the matter. Clearly, where arguments arise regarding the use of weapons in a manner that contradicts the law of armed conflict, the Court will have to “enter the battlefield” and consider the arguments raised before it. The boundaries of this Court’s intervention in matters of this kind are extremely limited, but it is reserved and occurs in exceptional and special cases where there is concern of injury to established legal norms. This Court intervenes at times in petitions even if they have political or military implications, so long as the dominant aspect considered therein is the legal aspect (see HCJ 3261/06, Physicians for Human Rights vs. The Ministry of Defense (January 31, 2011) (hereinafter: “in re Physicians for Human Rights”); HCJ 769/02, The Public Committee against Torture in Israel vs. The Government of Israel, IsrSC 62 (1) 507, paragraph 52 of the judgment of President Barak (2006)), and in the words of President Barak:

            “ ‘Israel is not a desert island. It is part of the international formation’ … the Army’s warfare operations do not take place in a legal vacuum. There are legal norms – some from the customary international law, some from the international law that is anchored in conventions to which Israel is a party, and some from the basic rules of the Israeli law – that determine rules regarding warfare management” (HCJ 4764/04, Doctors for Human Rights vs. The Commander of the IDF Forces in Gaza, HCJ 58 (5) 385, 391 (2004)).”

President Beinish has also referred to the matter:

            “We have not said and are still not saying that determining the legality of the IDF’s acts vis-à-vis the residents of the area is not at all subject to judicial review, and on various occasions we have rejected the sweeping argument that these acts are not justiciable. Accordingly, this Court has, on many occasions in the past, been required to consider matters that in certain ways touch upon professional-operational aspects, at times related to acts of warfare, where they gave rise to legal questions concerning the Army’s powers during warfare – in accordance with the law of armed conflict – and the limitations imposed on it by the international humanitarian law” (in re Physicians for Human Rights, paragraph 10).”

6.In order to maintain the balance between the restraint required in this Court’s intervention in quintessential military matters and the operational and professional discretion of the Army Command, and the need to protect and safeguard human rights and honor the international law, we believe that a multi-stage review is required in petitions of this kind. First of all, it is necessary to consider whether the petitions, ex facie, raise arguments of a legal nature that allow the Court to consider them, without such consideration amounting to intervention in the quintessential professional discretion of the military entities. A negative answer will result in the petition’s summary dismissal. A positive answer will require another prima facie review of the basis for the petition, and if it justifies, ex facie, a more in-depth review of the violation of the military means or military course of action of the law of armed conflict or the basic principles of Israeli law. At this stage, it is also necessary to consider the practical implications of the petition. There is no room for a more in-depth examination by the Court where the use of the weapons that are the subject of the petition has been ceased on Army orders. If there are still orders permitting the use, and there is a prima facie basis substantiating any legal injury, there is room for the Court to proceed to the third stage, which involves an in-depth review of the arguments raised, and obtaining extensive answers to these arguments on behalf of the State. At this stage, the Court will examine the legal and factual arguments of the petitioners on their merits, and a determination will be made with regard to the legality of the use of the weapons which are the subject of the petition.

7.The petition before us raises, prima facie, serious arguments against the use made by the IDF of shells containing white phosphorus. From the petition it emerges that this is a substance that might cause serious injuries to human beings, and that there are humanitarian, ethical and legal difficulties in its use in a built-up area, since it is not possible to distinguish between military and civil targets in the course of its use. These arguments, ex facie, oblige another in-depth examination. The arguments raised by the petitioners are of a dominant legal nature. Accordingly, these arguments justify proceeding to the second stage of review required by the Court. However, at this stage we believe that we must stop the judicial review, in light of the State’s declarations regarding the binding orders imposed on the Army with regard to the use of white phosphorus in a built-up area at this time. As aforesaid, the State’s attorney declared that it has been decided not to allow the use of shells containing white phosphorus in a built-up area. Although we were presented with two exceptions to this order, we were persuaded that these exceptions are very limited and leave the prohibition of use effective and very wide, such that it is doubtful whether this matter will realistically arise again. In these circumstances, we believe that there is no room to continue reviewing the matter beyond that. Of course, if the Army’s orders change in the future it will be possible to petition this Court again.

8.It should be emphasized that we have not overlooked the position of the petitioners’ attorney that the orders to limit the use do not resolve the matter. Nonetheless, even the petitioners’ attorney stated that the central difficulties in the current state of affairs are that the respondent has not undertaken that the orders are final, and that the nature of the exceptions are unknown to him. With regard to the nature of the exceptions, as has been noted, they were presented to us with the consent of the petitioners’ attorney “in camera,” and we were persuaded that these exceptions make the use of white phosphorus an extreme exception in the most unique circumstances. With regard to the concern regarding a change in the Army’s orders in such regard, I have two comments. Firstly, since the State has not declared before us that the orders are permanent orders that prohibit the use of the substance, in the current circumstances the IDF should engage in a comprehensive and in-depth review of the use of white phosphorus in the Army, and of its risks and harms, and primarily, it should review the possible alternatives for the use of this substance. Such a review will serve either to make the current orders permanent or to substantiate a position justifying a change in the orders. In any event, it would not be suitable to wait to review the matter in an emergency. Secondly, the State should notify the petitioners’ attorney in the event of a change in the orders, so that he may once again raise his arguments before this Court. 

 

Subject to the aforesaid, the petition is dismissed without an order for costs.

Given today, July 9, 2013.

 

___________________

___________________

___________________

Judge

Judge

Judge

 

 

Tzemach v. Minister of Defense

Case/docket number: 
HCJ 6055/95
Date Decided: 
Thursday, October 14, 1999
Decision Type: 
Original
Abstract: 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions “for other reasons,” the growing number of students covered by the exemption has pushed the matter beyond his authority. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
Author
dissent
Full text of the opinion: 

+

 

THIS DOCUMENT IS A DRAFT, AND IS SUBJECT TO FURTHER REVISION.

 

 

HCJ 6055/95

HCJ 7083/95

Sagi Tzemach

v.

1.            Minister of Defense

2.            Military Chief of Staff

3.            Chief Military Prosecutor

4.            Chief Military Police Officer                         HCJ 6055/95

 

1.            Major Vered Ornstein-Zahavi

2.            Major Moshe Kanobler

3.            Captain Lior Tomshin

4.            Captain Orli Markman

5.            Captain Moshe Levi

 

v.

1.            Chief Military Attorney

2.            Chief of Military Police           HCJ 7083/95

 

 

 

The Supreme Court Sitting as the High Court of Justice

[October 14, 1999]

Before President A. Barak, Deputy President S. Levin, and Justices T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, and D. Beinisch

 

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

 

Petition granted.

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claimed the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claimed that the Minister of Defense lacks the authority to regulate the matter and that it must be done so through legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions “for other reasons,” the growing number of students covered by the exemption has pushed the matter beyond his authority. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

For the petitioner in HCJ 6055/95—Aryeh Avriel and Yehonatan Ginat

For the petitioners in HCJ 7083/95—Dan Yakir and Moshe Cohen

For the respondents—Malchiel Blass, Deputy State Prosecutor in Charge of High Court Petitions

 

Basic Laws Cited:

Basic Law: Human Dignity and Liberty, ss. 1, 2, 5, 8, 9, 10.

 

Israeli Legislation Cited:

Military Adjudication Law-1955, ss. 1 (the phrases, “tribunal officer,” “petty tribunal officer,” “senior tribunal officer”), 234, 234(a), 235-241, 236, 237, 237A, 237A(a), 237A(b), 237A(c), 237A(d), 239, 241, 243C.

Criminal Procedure Law (Enforcement Authority – Arrests), 1996, ss. 1(c), 29(a), 42, 44.

Military Adjudication Law (Amendment No. 15), 1982.

Military Adjudication Law (Amendment No. 23), 1993.

Military Adjudication Law (Amendment No. 32), 1996, s.8.

Military Adjudication Law (Amendment No. 32) (amended) 1998.

Interpretation Law-1981, ss.1 (the phrase, “day”), 9, 10(a), 10(c), 11.

Criminal Procedure Ordinance (Arrest and Search) [new version], 1969, s.16.

 

Bills Cited:

Military Adjudication Bill-1949.

Military Adjudication Bill (Amendment No. 16)-1982.

Military Adjudication Bill (Amendment No. 32) (amended)-1998.

Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release)-1995.

 

Israeli Supreme Court Cases Cited:

[1] HC 73/85 “Kach” Party v. Speaker of Knesset, IsrSC 39(3) 141.

[2] HC 2581/91 Salchat v. Government of Israel, IsrSC 47(4) 837.

[3] HCJFH 4110/92 Hess v. Minister of Defense, IsrSC 48(2) 811.

[4] HC 2320/98 El-Amla v. Commander of IDF Forces in the Region of Judea and Samaria, IsrSC 52(3) 346.

[5] CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor, IsrSC 51(2) 686.

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

[7] APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136.

[8] CrimApp 8087/95 Zada v. State of Israel, IsrSC 50(2) 133.

[9] HC 5000/95 Bartala v. Chief Military Prosecutor, IsrSC 49(5) 64

[10] CA 88/53 Kaplan v. Rosenzweig, IsrSC 9 1296.

[11] HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister, IsrSC 51(4) 367.

[12] HC 405/74 Bar-Ad v. Captain Madar, IsrSC 29(1) 54.

[13] HC 243/80 Madjhinski v. Military Appeals Tribunal, IsrSC 35(1) 67.

[14] HC 118/80 Greenstein v. Chief Military Prosecutor, IsrSC 35(1) 239.

[15] HC 695/88 Adler v. Military Appeals Tribunal, IsrSC 35(1) 67.

[16] CrimFH Ganimat v. State of Israel, IsrSC 49(3) 589.

[17] HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister, IsrSC 47(4) 715.

[18] CrimApp 6654/93 Binkin v. State of Israel, IsrSC 48(1) 290.

[19] HC 4541/94 Miller v. Defense Minister, IsrSC 49(4) 94.

[20] HC 3648/97 Stameka v. Interior Minister, IsrSC 53(2) 728.

 

Israeli Books Cited:

[21] 3 A. Barak, Parshanut Bimishpat [Interpretation in Law], Parshanut Chukatit [Constitutional] (1994).

[22] 3 Y. Kedmi, Al Haraayot [On Evidence] (1999).

 

Israeli Articles Cited:

[23] A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

[24] Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Koach [Basic Law – Power Struggles], 1 Mishpat Umimshal 323 (1992-1993).

[25] A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “According to Law], 4 Mishpat Umimshal 381 (1997-1998).

[26] A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws], 2 Mishpat Umimshal  443 (1994-1995).

[27] E. Gross, Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [Military Arrest Laws], 5 Mishpat Umimshal 437(2000).

 

 

JUDGMENT

Justice I. Zamir

 

1. These two petitions raise one primary question: the constitutionality of a provision of the Military Adjudication Law, 1955, governing the period of time in which a soldier may be detained by a military police officer before being brought before a military judge.

 

2. The first petition (HC 6055/95) was brought by a soldier performing mandatory service who was arrested by a military police officer on September 26, 1995 on suspicion of desertion and held in a military jail. After he was detained for five days without being brought before a judge, the petition was brought on his behalf. It alleges that the provisions of the Military Adjudication Law, under which the petitioner was arrested, are null and void because they violate the Basic Law: Human Dignity and Liberty. The petitioner therefore asks the Court to order his release.

 

                Not long after the petition was filed, the petitioner was brought before a military tribunal which decided to extend his detention. An indictment was later issued, the tribunal convicted him, and it sentenced him to two and a half months imprisonment. He served his sentence and was released. He then sought to amend the petition to reflect these developments, and the petition before us asks the Court for a judgment declaring invalid sections 234 and 237A of the Military Adjudication Law, which authorize an adjudication officer to arrest a soldier. That and no more.

 

                The second petition (HC 7083/95) was brought by five military officers who, at the time the petition was brought, served as military defense lawyers (Petitioner 1: the District Military Defense Lawyer; Petitioner 2: Central Command Defense Lawyer; Petitioner 3: General Staff District Defense Lawyer; Petitioner 4: Air Force and Navy Defense Lawyer; Petitioner 5: Southern Command Defense Lawyer) and by the Association for Civil Rights in Israel (Petitioner 6). This petition also asks the Court to declare sections 234 and 237A of the Military Adjudication Law invalid. It also asks the Court to bar the detention of a soldier unless it is necessary for interrogation purposes or to prevent obstruction of justice or flight.

 

                The first petition is directed against the Defense Minister, the Military Chief of Staff, The Chief Military Prosecutor, and the Chief of Military Police; the second petition is directed against the Chief Military Prosecutor and the Chief of Military Police. Henceforth, they will all be referred to as the respondents.

 

                The Court issued an order-nisi in both petitions and, because they raise the same question, decided to consolidate them.

 

A Theoretical Petition

 

                3. Both petitions have a theoretical quality. They are not based on a set of facts, and they do not ask for a remedy for a particular instance, but rather raise a legal question, of a general nature, that is not grounded in the facts of a particular case.

 

                It is true that the first petition, when brought, was indeed concrete. It alleged that the petitioner was arrested under a warrant, by a military police officer, which was issued by force of an invalid law. It therefore requested an order releasing the petitioner. Once the arrest was extended by a military tribunal, however, the petition became moot.

 

                As a general matter, once a petition becomes moot, the Court does not hear it, even if it was at one point concrete. In other words, if the case which is the subject of a petition is resolved, by itself or by judicial decision, the Court declines to consider the legal question it raises. Judicial experience warns against establishing a precedent that would seem to hover in the air. The Court needs a foundation of facts, in a given situation, in order to build a precedent.

 

                The second petition was theoretical from the outset: it raised a general question, not grounded in a specific case. The Court generally refuses to rule on these types of questions, preferring to wait until the question arises in the context of a particular case.

 

                That is the rule, but there are exceptions. There have been instances in which the Court has agreed to consider a theoretical question, of a general nature, even though it was not grounded in a particular case. This has usually happened in cases in which the petition raised an important question, but it became apparent that there was no practical way for the court to rule on it unless it was presented as a general question, unconnected to any particular case. See, e.g., HC 73/85 “Kach” Party v. Speaker of Knesset [1] at 145-46; HC 2581/91 Salhat v. Government of Israel [2] at 841; HCJFH 4110/92 Hess v. Minister of Defense [3].

 

                Such is the case before us. It raises an important question, which implicates principles basic to the rule of law. It is a question of the authority to infringe on personal liberty by arresting and detaining someone without judicial oversight. The question arises every day, year after year, for many soldiers – according to the respondents, close to 10,000 soldiers each year. The question, however, is short-lived: it arises when a soldier is arrested by a military police officer; it is concrete for just a few days, until the soldier is released or brought before a military tribunal to extend his arrest, and then the question dies. If the Court did not agree to consider the constitutionality of the detention, merely because the soldier has been released and the petition has become moot, it would never be able to consider the question. The end result would be to render the decision to detain soldiers immune from judicial review. That would be a harsh result, inconsistent with the rule of law. In order to avoid such a result, the Court must consider the constitutionality of the detention even after the question has become moot. Compare, in the context of administrative detention, HC 2320/98 Al-Amla v. Commander of IDF Forces in Judea and Samaria [4] at 353-54.

 

                We therefore decided to consider the two petitions on the merits.

 

 

The Problems

 

                4. On the merits, the two petitions raise three questions:

 

                a. According to section 234(a) of the Military Adjudication Law, “An adjudication officer may issue an arrest warrant for a soldier ranked lower than him who is suspected or accused of committing an offense, for a period of no longer than seven days.” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                b. According to section 237A(a) of the Military Adjudication Law, “Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours …” Does this section violate the Basic Law: Human Dignity and Liberty?

 

                c. May an adjudication officer arrest a soldier or hold a soldier in custody, where such detention is not required for interrogation purposes or to prevent obstruction of justice or flight?

 

                5. In effect, the petitioners, and hence the respondents, focused their arguments on the second question, in other words, whether section 237A(a) violates the Basic Law: Human Dignity and Liberty.

 

                The arguments of both sides regarding the first question, whether section 234(a) violates the Basic Law: Human Dignity and Liberty, were insufficiently comprehensive and thorough to serve as the basis for a decision on the constitutionality of the statute. This is especially the case when dealing with a theoretical petition, not based on the facts of a specific case, but rather seeking adjudication of a legal question of a general nature.

 

                As far as can be gleaned from the petitioners’ legal briefs, that first question appears to be of secondary, if not marginal, importance to the petitioners, within the context of this petition.

 

                In any event, because the arguments regarding this question are not as comprehensive and thorough as they need to be, our ability to decide the question is substantively impaired. Substantively, there is a big difference between the power of arrest authorized by section 234 and the power of arrest authorized by section 237A. The arrest power authorized by section 237A is the arrest power of a military police officer. It is primarily intended to facilitate investigations of suspects. In that sense, with the changes appropriate for a military context, it is similar to the arrest power of a civilian police officer. We can therefore draw a comparison between the military and civilian power of arrest, in order to evaluate the authority to infringe on personal liberty in light of the Basic Law: Human Dignity and Liberty. On the other hand, the arrest power in section 234 is unique to the military; clearly disciplinary in nature, it gives a military commander, whether or not he or she is a military police officer, the power to arrest a soldier under his or her command, if the soldier is suspected of committing an offense of a disciplinary or other nature. For example, it authorizes a military commander in any unit to arrest a soldier who disobeys an order, including in a combat situation. There is no civilian parallel to this power. In order to accurately evaluate the essence of the power, to determine its purpose, and to decide if it disproportionately harms the soldier, the Court must know a lot more about the power than is addressed in the legal briefs submitted in this petition. Moreover, according to the respondents, this power is rarely used to arrest soldiers for longer than a day. We therefore decline to rule on the question for now. Of course, the question may return to the Court at another time, when it is ripe for adjudication. On this issue, see paragraph 11, infra.

 

                6. The third question (which arose only in the second petition, HCJ 7083/95) addresses the grounds for arresting soldiers. It essentially asks whether there is room to distinguish the grounds for arresting a soldier under the Military Adjudication Law from the grounds for arresting a civilian under the Criminal Procedure Law (Enforcement Authority – Arrests), 1996. For example, can a soldier be arrested for violating rules of military discipline? The question came before the Court in CrimApp 3513/95 Shargai v. Military Prosecutor, Air Force Prosecutor [5], but the Court declined to rule on it.

 

                In this case, too, we decline to rule on the question. First, the question of which circumstances constitute grounds for arrest in the military should arise in the context of a specific case before a military tribunal, after which it may reach us through an appeal (or petition) of a decision by the appellate military tribunal. The principle of alternative remedies mandates this result. If a soldier wishes to claim that there are no legal grounds to hold him or her in custody, the ordinary and correct way to do so is to raise the claim before the body authorized to approve or extend the arrest. In this case, there is no reason to circumvent this route by leapfrogging to this court via a direct petition. On the contrary: The Court should consider the question on the merits only after the appellate military tribunal has examined it and made a decision. Second, on this question, too, the parties failed to submit the complete and thorough arguments appropriate for such a difficult and important question, particularly in light of the fact that it is submitted as a theoretical question. The arguments submitted before the Court do not constitute a proper foundation on which to build the case law.

 

                7. As noted, the only question comprehensively and thoroughly argued before the Court is the second question: whether section 237A(a) of the Military Adjudication Law, authorizing an adjudication officer who is a military police officer to arrest a soldier for 96 hours, violates the Basic Law: Human Dignity and Liberty.

 

                That is the question we will discuss and answer in this judgment.

 

                In order to respond to this question, we must first present the evolution of section 237A of the Military Adjudication Law into its current form.

 

Section 237A of the Military Adjudication Law

 

                8.  In the original version of the Military Adjudication Law, passed in 1955, only one section, section 234, authorized an “adjudication officer” to arrest a solder “who is suspected or accused of an offense.”

 

                The power of arrest imparted to an adjudication officer, like the parallel power given to a civilian police officer, has always been designed to allow the adjudication officer investigate a suspected offense. See the Explanatory Note to the Military Adjudication Bill, 1949 at 114.

 

                The original version of section 1 of the Military Adjudication Law, like today’s version, defines an adjudication officer as “a junior adjudication officer and a senior adjudication officer.” A junior adjudication officer is “a unit commander ranked no lower than captain who is not a senior adjudication officer, or another officer whom the military chief-of-staff has imparted with the authority of a junior adjudication officer.” A senior adjudication officer is “a unit commander ranked no lower than lieutenant colonel, or another officer whom the military chief-of-staff has imparted with the authority of a senior adjudication officer.”

 

                According to additional sections of the law (sections 235-241), an adjudication officer who issues an arrest warrant must immediately present it to another adjudication officer whose rank is no lower than lieutenant colonel. If the second officer does not approve the warrant, the soldier must be released within 96 hours of the issuance of the warrant. The maximum period of arrest under the warrant is 15 days, but, with the approval of an adjudication officer ranked no lower than lieutenant colonel, it may be extended for additional 10-day periods. Section 241 of the law limited the maximum total period of arrest under an arrest warrant issued by an adjudication officer to two months, “unless the accused is brought before a [legally-trained – trans.] judge of the appellate military tribunal who issues an arrest warrant for an additional period, to be determined at the time of each extension.”

 

                In addressing the power of arrest, the original version of the statute did not distinguish between an adjudication officer who is a military police officer and any other adjudication officer. It also did not then distinguish, and still does not now distinguish, between types of offenses, i.e. between military offenses, including disciplinary violations, and other offenses.

 

                9. For 27 years, these were the provisions of the statute. Only in 1982 did the Military Adjudication Law first draw a distinction between the arrest power of an adjudication officer who is a military police officer and that of another adjudication officer, via the Military Adjudication Law (Amendment No. 15), 1982. The amendment added section 237A. Under this section, which is the focus of the petition, an adjudication officer who is a military police officer (hereinafter – military police officer) may, with the approval of an adjudication officer whose rank is no lower than lieutenant colonel, issue an arrest warrant for a soldier for a period of no more than 15 days and may extend the warrant twice, for a period of 10 days each time, with the advance written approval of a military attorney. The maximum period of detention under an arrest warrant issued by a military police officer is therefore 35 days.

 

                Reducing the maximum period of detention to 35 days under the amended law, as opposed to 60 days under the previous law, was, in the words of then-Defense Minister Ariel Sharon, “… a very important amendment which really corrected a lot of injustices that were allowed to occur under the previous law.” See Knesset Record 92 (5742-1982) at 1058.

 

                Members of Knesset welcomed the proposed reduction of the period of detention, and some even proposed reducing it further, in light of the significantly shorter period of detention (at the time, 48 hours) which may be ordered by a civilian police officer. “Procedure,” quoted Member of Knesset Shevah Weiss, “… is the Magna Carta of the accused.” Id. at 1061.

 

                The amended law from 1982 also reduced the maximum period of arrest for which an adjudication officer who is not a military police officer may issue a warrant. Under the new version of section 237, arrest authorized by such a warrant may be for no longer than seven days, although such period may be extended for eight additional days, with the advance written permission of a military attorney. In other words, no more than 15 days of detention may be authorized by an adjudication officer who is not a military police officer.

 

                Why did the legislature distinguish between a military police officer, who is authorized to arrest a soldier for a maximum period of 35 days, and an adjudication officer who is not a military police officer, who is authorized to arrest a soldier for no longer than 15 days? A look at the Explanatory Note to the Military Adjudication Bill (Amendment No. 16), 1982 provides the answer:

 

In making the new arrangement reducing the period of pre-trial detention, it became clear that it was necessary to distinguish between arrest by the military police, pursuant to investigating an offense, and arrest by a commander, because of a disciplinary violation.

 

Experience shows that the military police requires, on average, up to 35 days to complete an investigation, collect the material, and hand the prosecution a properly prepared case.

 

 

A commander who arrests a soldier for an offense of a disciplinary, as opposed to criminal, nature, generally requires much less time to examine the circumstances of the incident and decide whether to hold a disciplinary hearing or turn the matter over to a military attorney to consider a trial before a military tribunal.

 

On the other hand, there are cases in which the commander authorized to judge the soldier for an offense is not nearby at the time (for example: an offense committed at the home base, when the unit is in training or serving outside the base), and it takes a few days or sometimes a week or more for him or her to return, figure out the circumstances surrounding the incident, and decide what to do.

Id. at 65-66.

 

10. It took 11 years for section 237A to be amended by the Military Adjudication Law (Amendment No. 23), 1993. Under the amendment, a military police officer may issue an arrest warrant for no more than ten days, and the warrant may be extended, with advance written permission by a military attorney, for a maximum total period of 25 days. In other words, the amendment reduced the maximum period of detention that could be ordered by a military police officer from 35 to 25 days.

 

The amendment also reduced the maximum period of detention that an adjudication officer who is not a military police officer (under section 234 of the law) could order: before the amendment, the maximum was 15 days; the amendment limited it to no more than seven days.

 

11. Three years later, section 237A was again amended, this time by the Military Adjudication Law (Amendment No. 32), 1996, which limited the maximum detention period under an arrest warrant issued by a military police officer to eight days. Furthermore, the amendment required the approval of a military attorney within 96 hours, in order to continue to hold a soldier through an arrest warrant issued by a military police officer (previously, the law had required the detention to be approved by another adjudication officer at the rank of lieutenant colonel or higher). The military attorney may reduce the period of detention and even release the soldier. If the arrest warrant is not subjected to review by the military attorney, the soldier must be released. Under the amendment (section 237B), if the military attorney decided that it was necessary to extend the detention beyond eight days, he or she could order a military attorney or military police officer to request an extension from a district military tribunal.

 

The amendment also phased in a reduction of the periods of detention within two years of passage. Sec. 8. First, the maximum detention period that was to be ordered through an arrest warrant by a military police officer was to be “four days.” Second, the arrest warrant would need to be reviewed by a military attorney within “forty-eight hours of arrest.” On July 26, 1998, therefore, the maximum period of detention that could be ordered by a military police officer, through an arrest warrant, was supposed to be “four days.”

 

The amendment left unchanged the maximum period of detention via an arrest warrant by an adjudication officer who is not a military police officer: the maximum period of detention was and remains seven days. However, under section 236 of the amendment, the arrest warrant would expire within 96 hours (and within two years of passage, within 48 hours) of issuance, unless it was approved by an adjudication officer ranked at least as high as lieutenant colonel or if no complaint was issued and no investigation was begun.

 

The amendment created an odd state of affairs: prior to the amendments in 1982 and 1993, a military police officer could detain someone through an arrest warrant for much longer than an adjudication officer who is not a military police officer could. The reason is that arrest by a military police officer requires more time, for purposes of investigation, than arrest by another kind of adjudication officer. Nevertheless, currently, under the 1996 amendment, an adjudication officer who is not a police officer may issue an arrest warrant and detain someone for almost twice as long as a military police officer. This odd result warrants an inquiry, and one would hope that such inquiry will be forthcoming, first from the Chief Military Attorney and then from the Defense Minister, who is charged with executing the Military Adjudication Law.

 

                12. Finally, the Military Adjudication Law (Amendment No. 32) (amended), 1998 amended section 237A again, changing the maximum period of detention from “four days” to “96 hours.” The amendment, according to the bill’s Explanatory Note, was designed “to avoid any misunderstanding regarding the precise length of detention.” This was necessary because the Interpretation Law, 1981, defines a “day” as beginning at midnight and ending at midnight the following night. See the Explanatory Note to the Military Adjudication Bill (Amendment No. 32) (amended), 1998, p. 452.

 

                Whatever the goal of the amendment, in practice, “96 hours” is generally shorter than “four days.” See section 10(a) and 10(c) to the Interpretation Law. Therefore, the amendment benefits soldiers who have been arrested.

 

                13. Taking into account all these amendments, section 237A to the Military Adjudication Law, in its current version, reads as follows:

 

(a) Notwithstanding the provisions of section 234(a), an adjudication officer who is a military police officer may issue an arrest warrant for any soldier, for a period of no longer than 96 hours; such adjudication officer, who issued an arrest warrant for less than 96 hours, may extend the arrest for additional periods of time, so long as the maximum period does not exceed 96 hours.

 

(b) If a soldier has been arrested by a warrant as outlined in subsection (a), such arrest shall be brought before a military attorney for review within 48 hours of arrest.

 

(c) A military attorney may approve the detention period in the arrest warrant, reduce it, or order the soldier released.

 

(d) If the provisions of subsection (b) are not implemented, the soldier shall be released from detention.

 

(e) The provisions of this section shall not apply to an arrest

warrant issued by a military police officer exercising his or her authority as an adjudication officer over a soldier in his or her unit and under his or her command, unless the offense for which the solider is arrested has been reviewed by a reviewing officer as delineated in section 252(a)(3).

 

Basic Law: Human Dignity and Liberty

 

14. The petitioners claim that the current version of section 237A of the Military Adjudication Law restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty, and is therefore null and void. According to section 5 of the Basic Law:

 

There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition, or otherwise.

 

                In principle, it would seem as though the petitioners are right that section 237A, in authorizing the arrest of a person, violates section 5 of the Basic Law: Human Dignity and Liberty. That claim, however, is problematic. Under section 10 (Validity of Laws) of the Basic Law: Human Dignity and Liberty, “This Basic Law shall not affect the validity of any law [din – trans.] in force prior to the commencement of the Basic Law.” Hence, the Basic Law could not invalidate section 237A of the Military Adjudication Law as it was formulated prior to the commencement of the Basic Law, even though that section authorized a military police officer to arrest a soldier for up to 35 days.

 

                The Basic Law: Human Dignity and Liberty may, of course, invalidate a statute passed subsequent to the Basic Law. However, the amendments to section 237A of the Military Adjudication Law, which was passed after the Basic Law entered into force, reduced the maximum period of detention. The version of section 237A in effect at the time the petitions were filed limited the maximum period of detention to 25 days. During the course of the court proceedings, the statute was amended three times, to further reduce the detention period: the first time – to eight days; the second time – to four days; the third time – to 96 hours. Each amendment limited the power to restrict liberty. As a practical matter, therefore, the statute authorizing a military police officer to issue an arrest warrant for 96 days only is a statute that benefits, rather than infringes [on liberty – trans.]. As a legal matter, can we nevertheless say that section 237A, in its current version, restricts liberty, in violation of section 5 of the Basic Law: Human Dignity and Liberty?

 

 

A Beneficial Statute as an Infringing Statute

 

15. Can a statute that benefits – in other words, a statute that limits the infringement on a right protected by the Basic Law: Human Dignity and Liberty – be considered a statute that infringes on such a right, in violation of the Basic Law? The question is, should we evaluate the beneficial statute in light of the previous statute, such that the beneficial statute does not infringe on a right but rather advances it, or should we evaluate the beneficial statute in light of the Basic Law: Human Dignity and Liberty? That is the question in this case. If the Military Adjudication Law (Amendment No. 32) (amended) (hereinafter: “the amending statute”), which reduced the maximum period of arrest to 96 hours, is evaluated in light of the previous statute, or, a fortiori, in light of the statute as it existed prior to the enactment of the Basic Law, then there is no violation. On the contrary: It restricts the infringement on personal liberty. However, if we evaluate the amending statute in light of the Basic Law: Human Dignity and Liberty, then there is some validity to the claim that arresting a soldier for 96 hours, before he or she is brought before a military tribunal, infringes on the right to personal liberty, in violation of the Basic Law. What, then, is the correct evaluation?

 

16. This Court has yet to rule on that question. We considered a similar issue in CA 6821/93 United Bank Mizrachi Ltd. v. Migdal Agricultural Cooperative [6] (hereinafter: Bank Mizrachi [6]), in which the Court held that it has the authority to invalidate a new statute that violates the Basic Law: Human Dignity and Liberty. There, the issue was the constitutionality of a statute amending another statute passed prior to the Basic Law. The claim was that because the amending statute was integrated into the existing statute and became part of it, it enjoyed the protection for existing laws granted by section 10 (“Validity of laws”) of the Basic Law. The court rejected that argument:

 

In terms of its purpose, at the present stage, the Basic Law seeks to preserve the status quo; it does not, however, spread its protective wing over what is to come, because to do so would empty the Basic Law of its content and purpose. If we accepted the rule that the new statute is to be evaluated as if section 10 applied to it, as is the case for statutes enacted prior to the passage of the Basic Law, one would simply have to dress every new statute in the garb of an amendment to an existing law in order to exempt it from the application of the Basic Law …

 

Finally, an amendment to a statute, like any statutory provision, is a separate and new law, to which the non-applicability provision of section 10 of the Basic Law does not apply.

 

Practically, too, we should draw clear dividing lines, rather than allow ourselves to be dragged into foggy distinctions. Attempting to determine the extent to which a statutory amendment innovates and its innovative implications on legislation as a whole would create an endless system of debate and interpretation. Instead, we should draw a simple line, clear and unambiguous, based on the time at which the amendment was passed. The watershed event is the date at which the Basic Law came into force.

Id. at 263 (Shamgar, P.).

 

 

In Bank Mizrachi [6], the Court considered the legality of an amending statute that was not a beneficial statute: the amending statute aggravated the infringement on the right to property. However, the logic of President Shamgar’s holding in that case also applies to a beneficial amending statute, meaning an amending statute that limits the extent to which the prior law infringes on a basic right.

 

When the legislature enacted the amending statute, it was aware of the obligation imposed on it by the Basic Law: Human Dignity and Liberty, namely not to infringe on a basic right in contradiction of the Basic Law. The job of the Court is to evaluate whether the amending statute fulfils that obligation. In other words, the Court must evaluate the amending statute in light of the Basic Law.

 

Furthermore, the distinction between an amending statute which benefits and an amending statute which does not benefit is not easy to draw. Sometimes, an amending statute combines beneficial provisions with ones that infringe. A single provision may benefit in some ways and infringe in others, and the two kinds of results may be inseparable. The difficulties inherent in determining which provisions benefit and which do not may create a substantial and complex debate, undermining the stability and certainty of the law. That is another reason for saying that every amending statute passed after the Basic Law is subject to review under the Basic Law, whether or not the statute benefits.

 

President Barak expressed this view in his book, Parshanut Bimishpat: 

 

The question arises as to whether to establish more lenient requirements – with respect to the clause on proportionality – in reviewing new legislation that amends an old statute. Indeed, if we apply the ordinary requirements of the limitation clause, the new legislation – which advances human rights, compared to the old law – may be constitutionally infirm. The result would then be to return to the old law, whose infringement on human rights is sevenfold worse. What, then, is the point of the amendment? On this line of thought, there should be a special limitation clause for a new statute which amends an old law. The counter-argument is that the Basic Law: Human Dignity and Liberty does not contain two limitation clauses, one for an “ordinary” new statute and one for a new statute which amends an old law. It contains just one limitation clause. Furthermore, the distinction between a “new” new statute and a new statute that amends an old statute is difficult and is likely to constitute a source of uncertainty. Finally – and this is the most important point, in my opinion – the limitation clause should not be diluted. It establishes certain minimum requirements which the legislature must follow, and those requirements should apply to every new piece of legislation to come out of the legislature’s study. Invalidating new legislation that amends an old law, because the new provisions do not fulfill the requirements of the limitation clause, is not a green light for legislative omissions. It should serve as a catalyst for deeper change, consistent with the conditions set forth in the limitation clause.

Parshanut Bimishpat [Interpretation in Law],, Parshanut Chukatit [Constitutional] [21] at 563.

 

See also A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System, Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997) [23] at 16, 25.

 

                It should be noted that even the respondents, in their briefs, do not challenge the authority of the Court to review the legality of an amending statute, even a beneficial statute, in light of the Basic Law: Human Dignity and Liberty. However, they argue that the Court should use restraint in exercising such authority, limiting it to the most extreme cases in which the beneficial law still infringes on a basic right to an intolerable degree.

 

                I am prepared to agree that the Court, in reviewing the legality of a statute in light of the Basic Law: Human Dignity and Liberty, should, where appropriate, accord significance to the fact that we are talking about a beneficial law. However, the fact that the statute benefits does not render it immune from judicial review under the Basic Law.

 

                Having said that, we must now evaluate whether the amending statute, under which a soldier can be held under arrest for up to 96 hours, infringes on personal liberty in a way that contradicts the Basic Law: Human Dignity and Liberty.

 

Personal Liberty

 

                17. Section 5 of the Basic Law: Human Dignity and Liberty constitutionalizes the right to personal liberty. Furthermore, personal liberty is a constitutional right of the utmost importance, and as a practical matter, it is a condition for exercising other basic rights. Violating personal liberty, like throwing a stone into a lake, creates expanding circles of infringements of additional basic rights: not just freedom of movement, but also freedom of expression, the right to privacy, property rights, and others. See APP 4463/94 Golan v. Prison Services, IsrSC 50(4) 136 [7] at 153. Under section 1 of the Basic Law: Human Dignity and Liberty, “Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Only a free person can fully and properly exercise his or her basic rights. And personal liberty, more than any other right, is what makes a person free. For that reason, denying someone personal liberty is a particularly serious infringement. Indeed, denying personal liberty through imprisonment is the harshest punishment that a well-ordered state imposes on criminals.

 

                Detention by an administrative agent, like a police officer, is the most serious infringement on personal liberty. In contrast to imprisonment, such detention is not imposed by a court as the result of a judicial proceeding, as punishment for a crime. It is imposed by an administrative agency, based on suspicion alone, on a person who still enjoys the presumption of innocence. See, e.g., CrimApp 8087/95 Zada v. State of Israel [8] at 144.

 

                In principle, the level of protection accorded to a basic right must be directly proportional to the importance of the right and the degree to which it is infringed upon. Therefore, there may, for example, be a difference between the level of protection accorded to personal liberty and that accorded to the right to property, just as there may be a difference in the protection accorded in cases of complete denial of personal liberty, versus those involving a limited infringement on freedom.

 

                The conclusion: because personal liberty is a constitutional right of special importance, it deserves special protection against infringement via detention at the hands of an administrative agency. This is the kind of infringement that occurs when a military police officer arrests a soldier for 96 hours, under section 237A of the Military Adjudication Law.

 

                Of course, not every infringement on personal liberty violates the Basic Law: Human Dignity and Liberty. Like all basic rights, the right to personal liberty is not absolute. Personal liberty may, and in some cases must, be restricted, in order to protect other rights or to protect the public. The Basic Law recognizes this need and sets conditions for fulfilling it. The limitation clause of the Basic Law establishes these conditions. In any case involving infringement on personal liberty, the question is therefore whether the infringement meets the conditions established in the limitation clause, which serves as the line of defense for basic rights, including the right to personal liberty. The Court comes to protect personal liberty from a statute that infringes on it, only when the statute breaks through the line of defense drawn by the limitation clause.

 

Limitation clause: the General Clause and the Security Clause

 

18. The general limitation clause of section 8 of the Basic Law: Human Dignity and Liberty reads as follows: 

 

There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

 

However, immediately after the general limitation clause, the law adds a special limitation clause for security forces. Section 9 of the Basic Law contains this clause (under the heading, “Reservation regarding security forces”):

 

There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defense Forces, the Israel Police, the Prisons Service and other security organizations of the State, nor shall such rights be subject to conditions, except by law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service.

 

Because section 237A of the Military Adjudication Law restricts the personal liberty of soldiers, clearly it is also subject to the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty.

 

19. How does the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty differ from the general limitation clause of section 8 of the Basic Law?

 

                There is no doubt that the Basic Law: Human Dignity and Liberty makes everyone’s basic rights into constitutional rights.  The security limitation clause was not, by itself, designed to restrict the basic rights of those serving in the security forces. As President Barak said in CrimApp 3513/95 [5] at 688-99:

 

There is no question that the human rights protected in the Basic Law are also the rights of the soldier. The uniform does not divide the soldier from his or her constitutional human rights. Human rights are part of the rights that a soldier enjoys as a human being …

 

20. If so, what is the special purpose of the security limitation clause? On its face, the security limitation clause sets special conditions for infringing on the basic rights of those serving in the security forces. These conditions differ from those established by the general limitation clause for infringing on the basic rights of others. What are these special conditions?

 

First, under the security limitation clause, the basic rights of those serving in security forces may be infringed through enacting regulations such as military orders. How? The original version of section 8 of the Basic Law did not allow basic rights to be violated except “by a law,” until the 1994 amendment to that section also allowed basic rights to be violated “by regulation enacted by virtue of express authorization in such law.” In contrast to section 8, from the outset, section 9 allowed for the infringement on basic rights also “by virtue of a law,” in other words, through administrative regulations. See section 9 of the Interpretation Law, 1981. See also, Y. Carp, Chok Yisod: Kvod Haadam Vicheruto – Biyographia Shel Maavakei Coach [Basic Law – Power Struggles] [24] at 372; A. Gazal, Pgiya Bizchuot Hayesod “Bichok” o “Lifi Chok” [Violating Basic Rights “By Law” or “By Virtue of a Law”] [25] at 401-02.

 

Today, the semantic difference between the way section 8 and section 9 address infringements on basic rights through administrative regulation remains: Section 8 allows such infringement only “by a law or by regulation enacted by virtue of express authorization in such law,” while section 9 allows infringement merely “by virtue of a law.” Is there a substantive difference between the two? The Court has not yet ruled on this question. Nor is there a need to do so in this case, because the statute itself, and not implementing regulations, authorizes the infringement on personal liberty by arresting a soldier.

 

21. There are additional semantic differences between section 8 and section 9 of the Basic Law. The most obvious one is that section 9, as opposed to section 8, does not require, as a condition for violating the right, that the violating law be “befitting the values of the State of Israel,” and that it be “enacted for a proper purpose.” Does that mean that a statute, or regulations enacted “by virtue of a law” that infringes on the basic rights of those serving in the security forces, may not befit the values of the State of Israel or may be enacted for an improper purpose? The language of the statute must be interpreted according to the purpose of the statute. If we take the purpose of the statute into consideration, we must reject this interpretation, because it is likely to frustrate the purpose of the Basic Law, namely, that basic rights are the constitutional rights of every person, including, of course, a person serving in the security forces. It cannot be reconciled with section 1 of the Basic Law, under which the basic rights of a person in Israel – every person – “… will be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.” Nor can it be reconciled with section 1A of the Basic Law, which states its purpose to be establishing “the values of the State of Israel as a Jewish and a Democratic State.” The purposive interpretation of section 9 of the Basic Law is therefore that a statute cannot infringe on the basic rights of those serving in the security forces unless it befits the values of the State of Israel and is enacted for a proper purpose. The same is true, a fortiori, of administrative regulations. If a statute or administrative regulations infringe on the basic rights of those serving in the security forces in a way that does not befit the values of the State of Israel or for an improper purpose, then we can determine that they violate these rights to an extent “greater than what is required by the nature and character of the service,” contradicting the language of section 9 of the Basic Law. See A. Bendor, Pigamim Bichakikat Chukei-Hayesod [Flaws in the Passage of the Basic Laws [26] at 450.

 

22. The question therefore arises as to whether section 237A of the Military Adjudication Law, which authorizes a military police officer to arrest a soldier for a period of 96 hours before bringing him before a military judge, meets the requirements of consistency with the values of the State of Israel and designation for a proper purpose. The answer is that the arrest of a soldier who has committed an offense is recognized and accepted, in certain instances, as an essential means of protecting public safety. Public safety is one of the basic values of the state, and its protection is a proper purpose. That principle holds true when a civilian police officer arrests a person who is not serving in the security forces as well as when a military police officer arrests a soldier. Arresting a soldier may serve the additional purpose of maintaining the necessary discipline in the military, which is also a proper purpose. Furthermore, we can also say that the amendments made to section 237A after the passage of the Basic Law: Human Dignity and Liberty meet the requirements of values and purpose because they were passed in order to reduce the period of detention, and thus to limit the infringement on personal liberty. We may therefore conclude that, in terms of values and purpose, section 237A of the Military Adjudication Law passes constitutional muster.

 

Indeed, the petitioners do not object to the very authority of a military police officer to arrest a soldier, but rather to the period of detention which can be ordered by a military police officer. The petitioners claim that an arrest warrant authorizing 96 hours of detention, before a soldier must be released or brought before a judge to extend the detention, is disproportionately long. Therefore, they claim, it infringes on the right to personal liberty to an extent greater than is required under section 9 of the Basic Law: Human Dignity and Liberty.

 

23. Semantically, there is a difference between the proportionality test established in section 9 of the Basic Law: Human Dignity and Liberty (security limitation clause) and the proportionality test established in section 8 of the Basic Law (general limitation clause). Section 8 prevents a limiting statute from violating basic rights except “to an extent no greater than is required.”

 

In contrast, section 9 bars the limiting statute from infringing on basic rights except “to an extent no greater than is required by the nature and character of the service.” What are the implications of these different choices of language?

 

The proportionality test is flexible. In every case and for every issue, “the extent required” of an infringement on rights depends on the context of the case and issue, whether it is a context of time or place, status or role, or the like. This is true, for example, of prisoners. The Basic Law: Human Dignity and Liberty does not establish a special test for determining the proportionality of an infringement on prisoners’ rights. The implication is that infringement on a prisoner’s rights is subject to the general proportionality test. Nevertheless, the proportionality of an infringement on prisoners’ rights, like their right to freedom of expression or privacy, clearly is measured in light of the context of prison, primarily the nature and character of the status of prisoner. See, e.g., APP 4463/94 [7]. The principle holds true for a person of another status. It is therefore clear that the proportionality of the harm to a person serving in the security forces is influenced by the nature and character of the service. This means that applying the general proportionality test of section 8 of the Basic Law to those serving in the security forces would have to take into consideration the nature and character of the service, even if section 9 of the Basic Law did not explicitly say so. Thus, section 9 of the Basic Law simply states the obvious. It also, however, serves to clarify and remove any doubt: The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces. Furthermore, the proportionality is likely to vary among types of service even within the security forces. For example, the proportionality of infringing on the rights of a person serving in the military is likely to be different from the proportionality of infringing on the rights of a person in the Prison Services. As President Barak said in CrimApp 3513/95 [5]:

The military context is unique in its own right. This uniqueness justifies recognizing the possibility of a more widespread restriction of the human rights of a soldier, relative to what would be permitted for a non-soldier.

The question is whether the infringement on a soldier’s human rights is proportional, considering the nature and character of military service, including its uniqueness in light of the goals of the military. Comparative law from systems which have addressed similar problems will be useful. We should, however, give expression to the special nature of the Israeli military, which is a people’s army, defending the state against real dangers that lurk each and every day.

Id. at 689.

 

See also HC 5000/95 Bartala v. Chief Military Attorney [9] at 73, 75.

                The primary question raised by these petitions, therefore, is whether the authority to arrest a soldier under the Military Adjudication Law withstands the proportionality test, taking into consideration the nature and character of the military service. Is it possible to reduce the period of arrest, without undermining its purpose?

Burden of Proof

24. The answer to the question of proportionality depends, in large part, on the evidence. Has lawful evidence proven to the Court that it is possible to reduce the period of detention, thus limiting the infringement on personal liberty, without undermining the purpose of the arrest? In order to answer that question, we must first clarify who bears the burden of proof in demonstrating proportionality: the petitioners or the respondents.

The Court has yet to rule on the question of burden of proof in demonstrating proportionality, although it has arisen in prior cases. The justices have been divided on the issue. They expressed their disagreement in Bank Mizrachi [6]. Supra para. 16. In the judgment, the justices distinguished between two burdens within the burden of proof: the primary burden, which is the burden of persuasion, and the secondary burden, which is the burden of production. On these burdens, see 3 Y. Kedmi, Al Harayot [On Evidence] [22] beginning on pp. 1217 and 1273. One opinion expressed in Bank Mizrachi [6] is that the burden of persuasion passes from party to party, depending on the stage of argument. At the first stage of argument, the question is whether the statute being reviewed infringes on a constitutional right. At this stage, the statute enjoys a presumption of constitutionality. The burden of persuasion, therefore, is on the party contending that the statute infringes on a right, meaning it is generally on the person or body who is harmed by the statute. At the second stage, the question is whether the infringement on a constitutional right is legal, meaning, in accordance with the limitation clause: by law or by virtue of a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.  At this stage, the burden of persuasion that the infringement is legal falls on the party arguing for the constitutionality of the infringement, meaning it is generally on the administrative agency acting by force of the statute. See Justice Barak’s opinion, Id. at 492-98; Justice D. Levin, Id. at 458-459. An opposing opinion is that at every stage of the argument, every statute enjoys a presumption of constitutionality, and therefore, at both stages, the burden of persuasion is on the party claiming otherwise. See Justice Goldberg’s opinion, Id. at 577; Justice Bach’s opinion, Id. at 586. Another opinion, taking a middle course, divides the burden of proof at the second stage. In other words, the burden of persuasion at the second stage is on the party arguing for the constitutionality of the statute, generally the administrative agency acting by force of the statute. On the question of proportionality, however, the burden of production is on the party claiming that the infringement is not proportional, meaning it must bring evidence showing the existence of alternatives that effect a more moderate infringement on the right. See Justice Shamgar, Id. at 348; Justice Mazza, Id. at 578-79. See also a similar opinion by Justice M. Cheshin, Id. at 570. At the end of the day, however, the disagreement between the justices in Bank Mizrachi [6] remained unresolved.

                Parenthetically, I will note my doubt that case law on the burdens of proof in criminal and civil law has the same application in public law. It is true that in public law, like civil law, the applicable rule is that he who would take from his friend bears the burden of proof.  Therefore, at the first stage of argument in public law, the burden of raising a substantial doubt over constitutionality is on the petitioner claiming the unconstitutionality of a statute, regulation, or administrative decision. However, once the petitioner has raised this doubt (whether or not an order-nisi has been issued), the Court need not make do with the evidence brought by the petitioner. For example, if the petitioner succeeded in raising a substantial doubt over the reasonableness of an administrative decision or the legality of the considerations that went into it but did not produce enough evidence for the Court to definitely determine the legality of the decision, the Court need not reject the petition for lack of evidence.  It may, sua sponte, require the agency to answer certain questions or present additional specified evidence, such as affidavits, documents, and the like. This is one of the differences between an administrative proceeding and a criminal or civil proceeding. First, the difference stems from the nature of an administrative proceeding: it deals with a decision taken by an agency acting in the name of the public and for the sake of the public. In principle, therefore, the public has a right to know the facts and reasons at the basis of the decision. Second, the difference stems from the principle of rule of law; in an administrative proceeding, the Court is not just supposed to adjudicate a dispute between two parties but also to preserve the principle of rule of law. This principle requires that, if substantial doubt has been raised over the legality of an administrative decision, such doubt should be clarified, to avoid leaving an illegal decision in effect. This is also the source of the difference in the burden of proof in an administrative proceeding versus a criminal or civil proceeding. In an administrative proceeding, more than in a criminal or civil proceeding, the Court is likely to initiate actions that may be necessary to strengthen the body of evidence so that it can decide the legality of the administrative decision on the merits. Therefore, once a doubt has been raised about the legality of an administrative decision at the start of an administrative proceeding, the question of burden of proof does not arise again in the proceeding.

That is not always the case. Sometimes, even at the end of the proceeding, the body of evidence vacillates such that the Court cannot use it to make the findings necessary to decide the legality of the administrative decision. In this situation, rather than decide the legality of the administrative decision on the merits, the Court may be forced to do so by ruling on the issue of the burden of proof. However, even a decision on that issue will likely be influenced by the special nature of administrative proceedings. It is likely to be influenced by considerations of rule of law, the presumption of the constitutionality of statutes and legality of administrative decisions, the importance of the right infringed and the severity of the infringement, administrative efficiency, and other public interests. The relative weight given to these considerations may determine whether the petitioner, who seeks something from the agency, bears the burden of proof, or whether it passes to the agency. This may explain, if only partially, the differences of opinion among the justices in Bank Mizrachi [6] over the question of the burden of proof.

In any event, in this case, as in Bank Mizrachi [6], we need not resolve the dispute over burden of proof. I will therefore leave it to be examined at another time. This is possible because, after the order-nisi was issued, and at the Court’s request, the respondents produced all the necessary evidence on the question of proportionality. The evidence produced before the Court is sufficient to allow it to rule on the proportionality of the statutory provision authorizing a military police officer to arrest a soldier for up to 96 hours, without having to rule on the issue of burden of proof. As Justice Sussman held in CA 88/53 Kaplan v. Rosenzweig [10] at 1301, “If the body of evidence allows a judge to make a finding of fact, it matters not at all which party bears the burden of proof.”

In light of the evidence, does the statutory provision authorizing a military police officer to arrest a soldier for a period of 96 hours withstand the proportionality test? As a preliminary question, we must ask: what determines the proportionality test.

The Proportionality Test

                25. In a few decisions in recent years, the Court has answered the question of what determines the proportionality test. It recently repeated the answer in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11], in which the Court invalidated a certain provision in a new statute because it disproportionally infringed on the right to freedom of occupation. In order to reach its decision, the Court presented the proportionality test. This test, as the Court held, is divided into three secondary tests, as President Barak held:

The first secondary test is the test of suitability or rational connection. A legislative means that infringes on a constitutional human right – in our case, the right to freedom of occupation – is proper if it is suited to achieving the objective. There must be a suitable connection between the ends and the means. The legislative means must rationally lead to achieving the legislative objective … the second secondary test is the test of the least violative means. A legislative means that infringes on a constitutionally protected human right – in our case, the right to freedom of occupation – is proper only if the legislative objective cannot be achieved by another means whose infringement on the human right is less severe … The legislative means is like a ladder on which the legislature climbs in order to achieve the legislative purpose. The legislature must stop at the rung of the ladder which achieves the legislative purpose through a means least violative of the human right. “The legislature must start with the ‘step’ that is least violative, and slowly ascend the stairs, until it reaches the step at which the proper legislative purpose is achieved without infringing on the human right more than is necessary” … “If, under the circumstances of the case, the moderate condition, which causes less damage, is insufficient to achieve the objective, the agency may set a more burdensome condition, in order to achieve the goal” … The third secondary test is the test of the proportionality of the means (in the narrow sense). Even if the means chosen is (rationally) suited to achieving the objective, and even if there is no means more moderate, there must be a proper relationship between the benefit it will create and the scope of the infringement on a constitutionally-protected human right … this is the test that evaluates the result of the legislation, and the effect it has on the constitutional human right. If using a legislative means causes a severe infringement on a human right, and the benefit it is expected to give the public is minimal, the legislation may exceed the extent necessary (in the narrow sense).

Id. at 385.

 

                26. The arguments in this petition focused on the second secondary test: the choice of the least violative means. The petitioners do not claim that a military police officer’s arrest of a soldier for a maximum of 96 hours before the soldier must be released or brought before a judge, fails the first secondary test, namely a suitable means, or the third test, namely a proportional means. However, they contend that a military police officer’s arrest of a soldier for 96 hours cannot be reconciled with the second test, the test of the least violative means. They argue that such detention infringes on personal liberty beyond what is necessary, because it is possible and appropriate to reduce the period of detention without undermining the purpose of the arrest.

The Proportion Applied in Civilian Arrests

                27. What, then, is a proportional period for which a military police officer may detain a soldier? The petitioners claim that the proportional period for a military police officer to detain a soldier is the same period as that for which a civilian police officer may detain any person, regardless of whether he or she is a soldier. At the relevant time, the Criminal Procedure Ordinance (Arrest and Search) [new version], 1969 (hereinafter – Arrest and Search Ordinance) established the period for which a civilian police officer may detain someone. Section 16 of the that ordinance imparted a civilian police officer with the authority to arrest a person for no longer than 48 hours, after which the person must be released from detention or brought before a judge with a request to extend the detention. Such authority had existed for many years, including at the time these petitions were brought before the Court. The petitioners claimed that there was no justification for distinguishing between the arrest authority of a civilian police officer and that of a military police officer, for purposes of determining the maximum period of detention. The nature and character of military service does not justify detention by a military police officer for a longer period of time. When a military police officer arrests a soldier for 48 hours, he or she infringes on the personal liberty of the soldier, but no more than is necessary; detention for a longer period of time infringes on personal liberty to an extent beyond what is necessary. Hence, because it infringes on personal liberty beyond what is necessary, the statute authorizing a military police officer to detain a soldier for longer than 48 hours is null and void.

28. The Criminal Procedure Law (Enforcement Authority – Arrests), 1996 (hereinafter – Enforcement Authority Law) rescinded (in section 42) section 16 of the Arrest and Search Ordinance and reduced the period of detention by a civilian police officer. Under section 29(a) of that law, “a person arrested by an officer appointed under section 27 shall be brought before a judge as soon as possible, and within no more than 24 hours.” The Explanatory Note to the Criminal Procedure Bill (Enforcement Authority – Detention, Arrest, and Release), 1995 offered the following reason for reducing the period of detention: “This is part of a trend to protect human rights, to guarantee that a person is detained only when detention is an essential measure, and to give the court judicial review over the investigatory activities undertaken, until the detainee is brought before it.” Id. at 316. Under section 1(c) of the Enforcement Authority Law, the provisions of the law apply to detention under any law, unless otherwise provided for by law. To remove any doubt, section 44 of the Enforcement Authority Law adds a provision to the Military Adjudication Law (section 243C), under which the provision limiting detention by a civilian police officer to 24 hours does not apply to detention by a military police officer under the Military Adjudication Law.

 

29. The reduction, under the Enforcement Authority Law, of the maximum period for which a civilian police officer may detain someone from 48 hours to 24 hours did not change the position of the petitioner in HC 6055/95. After the Enforcement Authority Law was passed, the petitioner submitted an amended petition (on June 26, 1996) taking the position that the proper period for detaining soldiers, in accordance with the Basic Law: Human Dignity and Liberty, is 48 hours. Subsequently (on March 11, 1998), the petitioner even notified the court that he was not seeking to reduce the period of detention to less than 48 hours. The suggestion is that either the petitioner believed that the nature and character of military service justify arresting a soldier for 48 hours, even though a civilian police officer is not authorized to detain a person for longer than 24 hours, or he believed that the military would require a period of adjustment to prepare for a maximum detention of 24 hours, and he was therefore prepared to make do with a maximum period of 48 hours.

 

30. In contrast, the petitioners in HC 7083/95 submitted an amended petition (on July 2, 1996) in which they asked to limit the detention of soldiers to no more than 24 hours. In response to a brief by the respondents, the petitioners submitted that, “The petitioners again ask the honored Court to hold that detention for longer than 24 hours without a hearing before a judge is unconstitutional. Even if the honored Court decides that the minimal constitutional standard is 48 hours, the principle of equal application of basic rights requires limiting the period of detention to 24 hours.”

 

On this issue, however, the petitioners made a mistake. The principle of equal application of basic rights applies to equal situations. The situation of a soldier’s personal liberty is not equal to the situation of a non-soldier’s personal liberty. This court gave expression to that principle in a few cases. See e.g., HC 405/74 Bar-Ad v. Captain Madar [12] at 56; HC 243/80 Madjhinski v. Military Appeals Tribunal [13] at 72; HC 118/80 Greenstein v. Chief Military Attorney [14] at 243;  HC 695/88 Adler v. Military Appeals Tribunal [15]; HC 5900/95, supra [9] at 72-74. The Basic Law: Human Dignity and Liberty also expressed that difference in section 9 (the security limitation clause), under which the basic rights of those serving in the security forces may be violated to an extent required “by the nature and character of the service.”

 

Therefore, the question that will decide these petitions is not the question of equality in the periods of detention for soldiers and non-soldiers, but rather whether detaining a soldier for 96 hours infringes on personal liberty to an extent greater than is required by the nature and character of military service.

 

The Proper Proportionality in Detaining Soldiers

 

                31. The question of proportionality is the kind of question which has no precise answer. At what point does the infringement on a soldier’s personal liberty exceed the necessary extent? Proportionality cannot be measured. Indeed, how could we measure, in quantitative data, the level of harm caused to a soldier by detention or another infringement on personal liberty? We have no machine or formula that can measure the force or weight of the harm caused by denying personal liberty, via arrest, for one hour or one day. Nor do we have a machine or formula that can measure the profit or benefit of reducing the infringement on personal liberty by reducing the detention by an hour or a day. Similarly, there is generally no precise way to measure the cost, be it economic or social, of reducing the infringement on the right. For example, what is the social and economic cost of shortening detention by a civilian police officer from 48 hours to 24 hours? There would seem to be no way to quote a price, even in terms of money or human resources. There is certainly no way to quote a price in terms of public order and crime prevention.

 

                Indeed, human rights and public interests are not potatoes which can be weighed on a scale, one against the other, to see which side tips the scale. Because we cannot weigh, we must estimate. We must make an effort, in every situation, to correctly estimate the relative weight of human rights, on the one hand, and public interests, on the other. The proper balance between them is what determines proportionality. The greater the importance of the right infringed, and the more serious the infringement, the stronger the public interest must be, in order to justify the infringement. A severe infringement on an important right, designed to protect but a weak public interest, is likely to be considered an infringement beyond the extent required.

 

                We may imagine the relationship between the right and the public interest on one hand, and the proportionality on the other, as an equation. In contrast to a mathematical equation, however, the value of each term of the equation is not precise, and in any event, it cannot be measured. We determine the value by estimating, and an estimate is subject to dispute. Someone may disagree. However, even when the estimation is in dispute, a decision is still necessary. The Court must make a decision. Such is the role and authority of the Court. Such is also its skill. The Court is accustomed to evaluating the relative weight of competing rights and interests in a variety of contexts, based on the body of data and considerations presented, in order to arrive at the proper balance.

 

The Court does this generally, and proportionality is no exception. Making an evaluation based on the relevant data and considerations is the only way to determine whether a particular infringement on a particular right exceeds what is necessary. This is the right way to determine whether the detention of a soldier by a military police officer for 96 hours infringes on personal liberty beyond the extent required by the nature and character of military service.

 

32. The respondents of course recognize the special importance of the personal liberty of a soldier, like that of any person, and they do not dispute the appropriateness of limiting the infringement on such liberty as much as possible, taking into consideration the nature and character of military service. In that spirit, they point to the impressive reduction of the detention period that has taken place gradually, since the original version of the Military Adjudication Law permitted two months of detention by a military police officer. Just a few years ago, when these petitions were submitted to the Court, the amended law still allowed detention by a military police officer for up to 25 days. The respondents viewed even that period as longer than is proportional. Thus, even before the petitions were submitted, the military, on its own initiative, began to examine the possibility of a further reduction in the period of detention. Furthermore, even today, when the maximum period of detention by a military police officer is 96 hours, the respondents believe that it is appropriate and possible to continue to reduce the period. In the concluding paragraph of their written briefs submitted to the Court, the respondents said that:

 

The military authorities are aware of the need to continue trying to reduce the maximum period for which soldiers may be detained prior to being brought before a military judge. The respondents have worked to amend the law gradually, on an experiential basis, as part of a trend toward harmonizing the detention period, as much as possible, with that customary for the detention of civilians.

 

                This trend was expressed during a 1996 debate in the Knesset over a proposed amendment to the Military Adjudication Law that would set the maximum period of detention by a military police officer at eight days, to be reduced to four days within two years. Member of Knesset Moshe Nissim, speaking for the Knesset Committee on Foreign Affairs and Security, said:

 

One may ask, why didn’t we completely equate it with the period accepted in civilian life? I agreed with the military attorney’s office that there is a difference that we are still not equipped to address, other than gradually. In civilian life, when we are dealing with the civilian plane, the police are equipped with a station and authorized people and agreed-upon agencies scattered throughout the country. In the IDF [Israel Defense Forces – trans.], the agreed-upon agencies are not scattered among all the bases. Currently, there is no possibility of immediate communication, as there is among civilian agencies. The Foreign Affairs and Security Committee therefore completely agreed with the military attorney’s office to continue progressing toward the final reduction, but not right now. In other words, before we reach the final step of total equalization between the military agency and the civilian agency, we continue to march forward significantly, but still have not reached absolute equalization …

 

I see this as significant progress, and I believe the attorney’s office, which declared to us – and I want that declaration to be recorded in the “Knesset Record” – that they will initiate, within a short period of time, relatively quickly – it’s impossible to set a deadline – to continue to improve this issue and to achieve nearly complete or complete equality within a reasonable time. I believe they will do it. I saw their initiative, and I believe that the military attorney’s office should be applauded for its attention to this issue.

Knesset Record 155 (1996) 5784.

 

33. If this is the case, why do the respondents oppose the petitions? The respondents offer a few reasons to support their position. We will discuss each of them, one by one, beginning with the lightest and moving to the heaviest.

 

One reason offered by the respondents is that the current situation is essentially better than the situation set forth by the law. The military tries not to hold soldiers in custody for the maximum period allowed, 96 hours, unless there is a need to hold them in custody for the entire period. Similarly, the Chief Military Attorney, through the Chief Military Prosecutor, instructed all military attorneys (on July 14, 1996) “to make every effort to bring the matter of arrested soldiers to a military judge as soon as possible.”

 

Such is indeed the case. But there is nothing remarkable about that. The period of detention established in the statute is the maximum period designed for a particular purpose, primarily to conduct investigatory activities, before releasing the soldier or bringing him or her before a military judge in order to extend the detention. These activities, like any exercise of administrative power, must be done with the proper speed. See section 11 of the Interpretation Law. Once these activities have been completed, and there is no longer any purpose to the detention, the soldier must be released, even if the maximum period of detention has not yet elapsed. And even if there is justification for continuing to detain the soldier, the law requires that he or she be brought before a military judge as soon as possible, in order to extend the detention. Compare section 29(a) of the Enforcement Authority Law. This obligation, however, even if fully fulfilled in practice, still does not justify a statutory provision that establishes a maximum period of detention which is longer than is necessary.

 

Furthermore: we have no data to show how many of the soldiers arrested are held in custody for the maximum allowed period, meaning 96 hours, and whether they are held in custody when necessary or when not necessary. The petitioners assume that it is common practice for soldiers who are arrested to be held in custody until the end of the maximum period. In any event, the answers to these questions have no bearing on the result of the case. Even if we were presented with data showing that relatively very few soldiers are held in custody for the entire maximum period, it would not sufficiently answer the claim that the maximum period of detention is longer than is necessary. Such an answer could not justify a maximum detention period of two months or eight days. Such an answer could not, at the relevant time, have prevented the reduction in the maximum period of detention by a civilian police officer from 48 to 24 hours. The proportionality test for the detention period also relates to the maximum period of detention, meaning the period established by the statute, and not just the period of detention in practice for this or that soldier. If the maximum period infringes on personal liberty beyond what is necessary, that is the case even if it infringes on the liberty of just a few people. Even the personal liberty of a single individual is worthy of protection as though it were the liberty of the entire world.

 

In any event, this claim raised by the respondents appears to have failed to convince even the respondents themselves, because they concede the appropriateness of reducing the period of detention from what is it today.

 

34. The respondents raise an additional claim, in a similar vein, that, de facto, the infringement on personal liberty of a soldier arrested by a military police officer is not so severe. As they said in their briefs to the Court, “In evaluating the proportionality of the provisions for judicial review of the detention of soldiers, one should also consider the provisions which supplement judicial review – the review of arrests which military attorneys and senior adjudication officers exercise, and the right to appeal an arrest warrant.” They point to a number of sections of the Military Adjudication Law which establish a complicated arrangement for internal review of an arrest warrant issued by a military police officer. First, under section 238(a), a soldier who has been arrested may submit an appeal to a military attorney. Second, under sections 237A(b) and 237A(d), even if the soldier does not submit an appeal, the arrest must be brought before a military attorney for approval within 48 hours of the arrest, and if the arrest is not brought for such approval, the soldier is released. Third, under section 237A(c), a military attorney may order a reduction in the period of detention or the release of the soldier. Fourth, if the military attorney decides not to order the soldier’s release, the soldier may, under sections 238(b) and 238(d), submit a request for reconsideration to the military attorney. If the military attorney decides not to grant the request or appeal (under section 238(a)), he or she must bring the matter to the decision of the Chief Military Attorney or his or her deputy. And, under section 239, the Chief Military Attorney may rescind any warrant issued by an adjudication officer.

 

However, according to the petitioners, this complicated and impressive system of internal review of the arrest of soldiers does not sufficiently address the charge of a disproportional infringement on the personal liberty of the soldier arrested. First, the general rule is that arrest by virtue of an arrest warrant issued by a police officer, whether civilian or military, must be reviewed by a judge as soon as possible. True, a military attorney is a senior officer at the rank of lieutenant colonel, with legal training and legal experience, holding a respected position and even enjoying professional independence within the chain of command. However, he or she is not a judge. Review by a military attorney is internal review; review by a judge is external review. Internal review takes place in the office of the military attorney, based on documentary evidence; external review takes place in a courtroom, in the presence of the detainee. There is a substantial difference between the two. Because the arrest severely infringes on the right to liberty, it must be reviewed externally. This rule is important in principle and also in practice: the military attorney’s role, as part of the system of military justice and as a representative of the military prosecution, is likely to influence the way he or she reviews an arrest warrant.

 

Second, the large number of arrests, coupled with the tight schedule of each arrest, creates practical difficulties for a military attorney seeking to exercise review, as the statistics demonstrate. The Court requested and received statistics from the respondents (for the years 1996 and 1997) about soldiers arrested on suspicion of desertion (which account for more than 90%  of arrests by a military police officer) and released prior to the maximum period of detention, pursuant to decisions by military attorneys. The statistics show that only 6% of the soldiers arrested and brought before military attorneys were released prior to the expiration of the maximum period of detention, either because the military attorney rescinded the arrest warrant or because a military attorney failed to approve the arrest warrant within the statutorily required period.

 

It would seem, then, that internal review by a military attorney, important as it is, and as much as it affects the question of proportionality, is not an adequate substitute for external review by a military judge.

 

We thus return to the original question: Does a period of detention of no more than 96 hours infringe on the personal liberty of a soldier, as the respondents claim, to an extent no greater than is required by the nature and character of the military service?

 

35. Both the respondents as well as the petitioners seek to bolster their claims with examples from legal systems in other countries. The parties presented the Court with numerous sources from English, U.S., Canadian, and other case law and legal literature. If truth be told, however, it is difficult to glean any clear message or make effective use of examples from foreign legal systems. Indeed, in each of these systems, commanders have the power to arrest soldiers under certain circumstances, subject to review of the arrest within a short period of time. The review conducted, however, is generally internal, by commanders who do not necessarily have legal training, rather than by judges. The respondents apparently correctly point out that in none of the countries they investigated does the law require review by a military judge within 24 or even 48 hours. In contrast, the German Military Discipline Law of 1972 requires (in section 17) the release of a soldier arrested for a disciplinary violation no later than the end of the day of his or her arrest, unless a judge issues an arrest warrant, and for a criminal violation, there is no difference between the period of detention authorized for soldiers and non-soldiers.

 

In any event, the law in Israel requires us to evaluate the proportionality of the period of detention in light of the nature and character of military service in Israel. The nature and character of military service in Israel differ from those of military service in other countries. Therefore, and particularly because the law regarding review of the arrest of soldiers differs from country to country, comparative law would not appear to be terribly useful to the issue at hand.

 

36. In that case, do the nature and character of military service in Israel require or justify authorizing a military police officer to detain a soldier for 96 hours before bringing him or her before a military judge? During the course of oral arguments (in July of 1997), the Court asked the respondents if they would agree to draft an amendment to the Military Adjudication Law that would, by 1998, reduce the maximum period of detention of a soldier by a military police officer to 48 hours. The respondents notified the Court (on September 30, 1997) that, after holding consultations on that question at the highest levels of the military and with the State Prosecutor and Attorney General, they reached the following conclusion:

 

4. The military authorities in charge of the issue concluded that it would be almost impossible to reduce the initial period of arrest to 48 hours, beginning in July of 1998 … first, the military needs to learn its lessons from the transition to the current legal situation of bringing soldiers before a judge within 96 hours …

 

 

6. The military law enforcement system is unprepared to implement the proposed transition to extending the period of arrest within 48 hours, and an attempt to do so risks undermining the military’s system of law enforcement and discipline. The issue is not just the financial significance of expanding human resources to handle the anticipated yearly increase of thousands of arrest procedures and arrest appeals. It is also a question of formulating working rules for the different players within the military system who need to make sure that soldiers who are supposed to remain in custody are not released simply because the system has not yet taken steps to implement the new legislation.

 

7. The military system has a real fear that a transition, within a year, to a requirement that the arrest be extended within 48 hours, before the system has taken steps to properly prepare, will result in a variety of undesirable situations. These include not having enough time to complete essential investigations and collect evidence in cases involving soldiers who desert or go absent without leave. It may become impossible to summon the commanders of these soldiers to adjudicate their cases through disciplinary hearings, and investigatory activities will have to cede to increased attention to procedures involving extensions of arrest. If this happens, more soldiers are likely to absent themselves from military service, undermining military discipline, obstructing investigations, and causing other kinds of damage.

 

8. The position of the IDF should be noted: bringing a soldier for extension of arrest within 48 hours is a desirable goal. However, achieving that goal requires the military to evaluate the practical aspects and the arrangements necessary to implement it. The military has therefore decided to take a year to evaluate the new 96-hour requirement, beginning when the amendment to that effect enters into force in July, 1998. At the end of that year of evaluation, as 2000 draws near, the military will propose another amendment which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.

 

 

At the Court’s request, the respondents itemized the changes and resources that the military would need in order to prepare to reduce the period of arrest to 48 hours. They said that it would need to reinforce the means of transporting detainees, assign more people to guard detainees being transported, bolster human resources in the legal system (judges, prosecutors, defense lawyers, etc.) speed the process of transmitting legal material (via fax and other means), and the like. They estimate needing another 40 professional soldiers and another 40 drafted soldiers, as well as another 40 vehicles for transporting prisoners, eight buses, communications devices, computer systems, construction, and the like. The respondents did not provide data or explanations to serve as a basis for their estimate.

 

37. These resources would be necessary to reduce the period of arrest primarily because of the current system in place for arresting soldiers, interrogating detainees, extending arrest, and trying soldiers in a disciplinary hearing or criminal procedure. However, it may be possible to change the current procedures (if necessary, via legislation) and improve the current practices in such a way as to reduce substantially the amount of financial and human resources necessary while simultaneously conducting proceedings more quickly. For example, a primary reason for the difficulty in extending the arrest of soldiers is the practice of bringing the soldier to the military tribunal in the judicial district of the unit in which he or she serves. For example, a soldier serving in the Northern Command who commits an offense (such as desertion) and is arrested by a military police officer in southern Israel, will be taken to the Northern Command tribunal which sits in Haifa, rather than to a tribunal close to the place of arrest. We might question whether this is the optimal practice, considering the resources it requires. Perhaps if this practice is changed, and the military improves the means of electronic communication available to legal officials to facilitate the transfer of legal materials relating to detainees, it will be possible to conserve the resources which, according to the respondents, would currently be necessary to reduce the period of detention. For example, after making arrests, couldn’t the military quickly bring detainees to a single military detention center in the center of Israel? Or, perhaps it could bring them to two or three centers, each of which would house the necessary number of military attorneys and judges who could quickly review requests to extend the period of arrest?

 

However, as long as the practices of arrest and extension of arrest do not infringe on the rights of soldiers, they are the concern of the military, and it is for the military to evaluate them and decide what to do. For purposes of our question, namely whether a 96-hour period of detention is required by the nature and character of military service, we will accept the military’s estimate of the resources currently necessary to reduce the period of detention and the possible results of the reduction.

 

38. The petitioners claim that the nature and character of military service poses no special considerations that require a detention period of 96 hours. They further claim that there is nothing in a shorter period to undermine the nature and character of military service.

 

This claim of the petitioners gives an unduly narrow interpretation to the nature and character of military service. The nature and character of military service include maintaining military discipline, cracking down on absenteeism, and the like. That is why the security limitation clause of section 9 of the Basic Law: Human Dignity and Liberty allows a soldier’s rights to be infringed if it is necessary, for example, to maintain military discipline, so long as the infringement is to an extent no greater than required to serve that purpose.

 

This is the very claim of the respondents, that reducing the period of detention, at this stage, is likely to undermine military discipline, exacerbate the phenomenon of absenteeism, and lead to other consequences destructive of the nature and character of military service.

 

39. However, the respondents do not present these negative consequences as inevitable. They acknowledge that they can be prevented. In order to prevent these consequences, they say, they need two things: time and resources. The question is therefore whether at this time, these needs justify not reducing the period of detention.

 

First, we will evaluate the need for resources. Can the need for resources obstruct a reduction in the period of detention? In principle, it is possible that the scope of the resources required can, as a practical matter, prevent a reduction in the period. Indeed, as the saying goes [under the system of assigning a numerical value to the letters in Hebrew words – trans.], the gap between “desirable” and “feasible” equals “money.”

 

The respondents submitted to the Court an itemization of the resources necessary to reduce the period of detention. Para. 36, supra. These resources, while in no way negligible, are not beyond the means of the military. We must compare the scope of the necessary resources (assuming they cannot be reduced) with the scope of the infringement on the soldiers’ rights to personal liberty. Each year, military police officers arrest approximately 10,000 soldiers (mostly for the offense of desertion). What tips the scales? The answer primarily depends on the relative weight of the liberty and the resources. What, then, is that relative weight? That question puts Israeli society to the test: society is judged, among other things, according to the relative weight it accords to personal liberty. That weight should be expressed not just in lofty declarations and not just in law books, but also in the budget ledger. Protecting human rights generally has a cost. Society should be prepared to pay a reasonable price for protecting human rights. As Justice Dorner held in CrimFH Ganimat v. State of Israel [16] at 645, “A basic right, by its very nature, imposes a social cost … preserving basic human rights is not just an individual issue but rather the concern of society as a whole, and it determines the character of society.” See also HC 5304/92 Perach 1992 Aid to Victims of Laws and Ordinances for a Different Israel –Nonprofit v. Justice Minister [17] at 759; CrimApp 6654/93 Binkin v. State of Israel [18] at 295; HC 4541/94 Miller v. Defense Minister [19] at 113, 122; APP 4463, supra [7] at 169-70. See also Barak, supra [21] at 528.

 

Considering the special weight accorded to reducing the infringement on the personal liberty of soldiers, the price that must be paid in human and financial resources to reduce the existing period of detention appears to be reasonable. This would hold, a fortiori, if additional inquiries reveal that it is possible (and this seems only logical) to change the system and practices concerning the arrest of soldiers, such that the price will go down. In any event, this price is an insufficient reason for violating the personal liberty of so many soldiers, beyond the extent required by the nature and character of military service.

 

Indeed, reducing the period of arrest by a civilian police officer from 48 hours to 24 hours required the police to make the appropriate adjustments, including expenditures of financial and human resources. That cost did not stop the legislature from reducing the period of arrest, out of its willingness to pay a price for the protection of individual liberty. See para. 28, supra. Justice Cheshin’s comments in HC 3648/97 Stameka v. Interior Minister [20] at 777 make this point (“our strict insistence on proportionality from the agency is directly proportional to the importance of the right infringed or the severity of the infringement on the right”). See also Justice Dorner’s comments in HC 1715/97 Chamber of Investment Managers in Israel v. Finance Minister [11] at 421-23.

 

It is worth noting that Professor Emmanuel Gross, who served as the President of the Military Tribunal for five years, takes the same position, as he wrote in Hebetim Chukatiim Shel Dinei Hamaatzar Biztava [27]. In his opinion (ch. 7, para. 1), the statutory provision permitting 96 hours of detention does not pass constitutional muster and should therefore be repealed and replaced with a shorter period. On this issue, he says, inter alia, that:

 

The State of Israel is a small state geographically, and therefore there is not and could not be a logistical obstacle, stemming from the character of military service, to bringing a solder before a judge sooner. Nor should we abide any other explanation, such as the excuse that an overworked military adjudication system is not currently prepared to handle the anticipated number of requests stemming from arrests. In my opinion, there is no justification for extending the detention of a soldier or civilian, without a judicial order, simply because the legal system is not prepared to handle it appropriately.

Id. at 459.

 

40. We still must address the military’s need for time in order to make the necessary preparations for reducing the period of detention, without undermining the discipline of the military and without exacerbating the phenomenon of absenteeism.

 

The respondents notified the Court (in September, 1997) that following the then-planned reduction in the maximum period of detention to 96 hours in July, 1998, they would need a year to evaluate the new arrangement. After making the evaluation, as 2000 was to draw near, they would propose an amendment to the statute “which will reduce the maximum initial period of arrest, before review by a judge, to 48 hours, so long as circumstances do not require an additional, brief delay of the amendment.” Para. 36.

 

Because the military itself recognized the desirability and feasibility of reducing the period of arrest, it had substantial time to prepare for reducing the period, throughout the proceedings in these petitions. So far, however, the respondents have not notified us of steps they have taken or are taking to reduce the period of time. In any event, we have not received a draft of a law proposing such reduction, although the end of the year is near, and the year 2000 is approaching. Apparently, the Court must rule on the issue.

 

Conclusion

 

41. The conclusion is that the amending statute setting 96 hours as the maximum period for which a military police officer may detain a soldier no longer meets the proportionality test. As of today, it infringes on a soldier’s personal liberty beyond the extent required by the nature and character of military service.

 

What remedy flows from this conclusion? This Court has repeatedly said that it exercises caution and restraint in declaring that a statutory provision violates the Basic Law: Human Dignity and Liberty and is therefore invalid. In this case, however, even the respondents acknowledge that the amending statute infringes on the personal liberty of soldiers beyond the extent required and desirable and that the statutorily-mandated period should be reduced to no more than 48 hours. The dispute between the petitioners and respondents appears to be over the resources necessary to achieve what they agree is desirable. Indeed, the resources required, according to the respondents’ calculations, are not of an unreasonable scope, and the respondents even agree that it is possible and desirable to invest in those resources. Considering the special significance of personal liberty, and considering that the statute at hand applies to the arrest of approximately 10,000 soldiers each year, the resources necessary are not so extensive as to prevent or even to delay amending the statute to reduce the period of time for which a military police officer can detain a soldier, to the point where the infringement on personal liberty no longer exceeds the extent required.

 

42. We therefore declare that the provision of the amending statute that sets the maximum period of detention at 96 hours infringes on the Basic Law: Human Dignity and Liberty, because it infringes on the right to personal liberty, as set out in section 5 of the Basic Law, to an extent greater than is required by the nature and character of military service. The provision is invalid.

 

43. What statutory provision should replace the invalid provision? In other words, how long can a military police officer detain a soldier, before bringing him to a military judge, without violating the soldier’s personal liberty to an extent greater than is required by the nature and character of the military service? In this case, the Court need not answer the question, because the respondents themselves concluded, in their submission to the Court, that the statute should set a maximum period of 48 hours. Does a period of 48 hours pass the proportionality test? The legislature has the authority to set the period of detention, and it has discretion to decide what period of time is required, so long as that period does not exceed the zone of proportionality. It would seem that if the legislature set a maximum period of 48 hours, as the respondents suggested, as of today, a good argument could be made that such period would not deviate from the zone of proportionality mandated by the Basic Law: Human Dignity and Liberty. At this point, the Court need not give a more binding answer.

 

44. As is well known, the Court’s declaration that a statute or statutory provision is invalid need not immediately take effect. It may be prospective, if circumstances justify it, in order to allow for the appropriate steps to be taken in order to prepare for the invalidity. See e.g. HC 1715/97 [11] at 417. The circumstances of this case warrant our deferring the effective date of the declaration of invalidity, in order to give the respondents enough time to propose the necessary bill to the Knesset, to give the Knesset enough time to debate the bill, and also to give the respondents enough time to prepare the military for the expected legislative changes. Therefore, the declaration of invalidity will not take effect until six months from the date of this decision. The respondents will pay a total of 10,000 NIS in costs to the petitioner in HC 6055/95 and a total of 10,000 NIS in costs to the petitioners in HC 7083/95.

 

President A. Barak

 

I agree.

 

Deputy President S. Levin

 

I agree.

 

Justice T. Or

 

I agree.

 

Justice E. Mazza

 

I agree.

 

Justice M. Cheshin

 

I agree.

 

Justice T. Strasberg-Cohen

 

I agree.

 

Justice D. Dorner

 

I agree.

 

Justice J. Türkel

 

I agree.

 

Justice D. Beinisch

 

I agree.

 

Justice Y. Kedmi

 

1.            Introduction

 

Regretfully, I cannot join the opinion of my colleague, Justice Zamir, even though, in principle, I agree with the theoretical analysis that underlies his decision. The reason for my dissent is, in my opinion, “procedural,” and it is two-fold: First, I see no justification in hearing these two petitions, because they are theoretical. Second, at this stage, I see no justification for intervening in the military’s years-long process of amending a statute, in an effort to equalize, to the extent possible, the period of detention with-no-judicial-order (hereinafter: arrest-without-order) to that adopted in the civilian context.

 

During the arguments in this case, the military made it clear that it is committed to reducing the period of arrest-without-order in the military context, and it even gave the year 2000 as a desirable target date. The amendment requested – and anticipated, once the military finishes preparing for it – will reduce the maximum period of arrest-without-order under section 237A of the Military Adjudication Law to 48 hours. The petitions before us are not only “theoretical,” they also fail to go beyond the period of time to which the military has already agreed. I therefore see no need for us to accelerate the legislative process, which is the practical result of our decision.

 

2.            Theoretical Petitions

 

As my colleague notes in his opinion, the two petitions at hand are theoretical petitions. As a general matter, this court “does not consider petitions … once they become theoretical or moot” because “judicial experience warns against establishing a precedent that would seem to hover in the air.”

 

The practical – the actual – implications of a court decision often serve as a standard or test of whether the decision is “correct” and grounded in reality. It is generally not a good idea to give up on this test of implementation, except under the most exceptional circumstances: an issue of special importance, on which our failure to rule would burden the public, that would justify turning the Court into an “academic” commentator, rather than the adjudicator of an actual dispute.

 

Turning to the case at hand – and acknowledging the special importance of the basic right to individual liberty and freedom of movement which it addresses – I do not think the two petitions submitted meet the exceptional criteria which would justify hearing arguments in the abstract and relinquishing the test of implementation from which we benefit when we resolve an actual problem.

 

I do not think that postponing discussion of the length of arrest-without-order in the military context to an actual case – if such case exists – will create “immunity from judicial review,” as my colleague states. The military authorities have declared that they recognize the need to harmonize these arrests in the military with civilian arrests. As a result, in practice, the system of review established by the Military Adjudication Law will be working on this issue. There is therefore no practical need for a judicial declaration of the invalidity of section 237A of the Law, before the military has completed its efforts on this front. Our intervention at this stage shows a lack of confidence in the military; accelerating legislation without the proper preparation will unnecessarily undermine the performance of the military’s system of law enforcement.

 

3.            Exercising the Authority to Invalidate

 

The Court does not evaluate acts of legislation on their merits, but rather interprets them according to their language. When interpretation of a piece of legislation reveals that it does not meet the criteria set out in a Basic Law, it must be invalidated. Invalidation of this sort stems from the intent of the legislature, which established criteria for the constitutionality of a statute and left the Court with the authority to conduct constitutional review by interpreting the statute.

 

The effort –from different directions – to present the Court as a “superlegislature” was doomed to fail from the outset. Legislative acts are the exclusive province of the legislature. The Court does not step into the shoes of the legislature but rather interprets its statutes. In this respect, the court is the “servant” of the legislature, implementing its instructions. This role does not change, even when judicial interpretation of a piece of legislation leads to its invalidity, because the statute did not meet the constitutional criteria established by the legislature itself. Interpretation of a law, at the end of the day, reflects the purpose for which it was enacted. Where the language of the statute does not properly express the purpose of its enactment and leads to its invalidity because it is “unconstitutional,” the legislature retains the authority to amend the statute and put things back to where they should be. This is generally the situation, including in cases of constitutional interpretation, whose result may lead to a law being invalidated because it is unconstitutional. The Court is the constitutional gatekeeper, while the legislature dictates the rules of gatekeeping.

 

Evaluating whether a piece of legislation withstands the constitutional test of proportionality is not a mechanical task. It requires a thoughtful and delicate balance of interests. Usually, the decision does not delineate a border “line” between “proportional” and “disproportional,” but rather a “zone of proportionality” and steps which exceed that zone. In my opinion, the Court should invalidate a statute solely because it is “disproportional” only when the statute clearly and unequivocally exceeds the zone of proportionality.

 

This court established its authority to invalidate a law in CA 6821/93 (Bank Mizrachi [6]). I see no reason to establish such authority for theoretical petitions. In any event, in my opinion, such authority should not be implemented, as a practical matter, when it is not necessary to solve an actual problem. The authority to invalidate is a unique and special power, stemming from the will of the legislature to ensure objective, external review of its statutes for compliance with the constitutional criteria it creates for itself. It is not a question of invalidating an “ultra vires” administrative decision, and we should resist any attempt to compare the two. The starting point for hearing any claim on the supposed “constitutional infirmity” of a statute is the “presumption of constitutionality”: the presumption that when the legislature passed the statute, it considered the requirements of the Basic Laws and ensured that the statute met them. Therefore, the Court can adopt a different position only if the legislature’s mistakes are clear, unequivocal, and cry out for correction. The less this power is used, the more confidence the legislature will have in the reviewer who wields it, pulling the rug from under table of those who criticize the reviewer and the review it exercises.

 

An amending statute that benefits – like a new statute – enjoys the “presumption of constitutionality,” which is based on the assumption that the legislature examined, evaluated, and concluded that the piece of legislation it creates meets the requirements of the “constitution.” The Court’s intervention in this issue tells the legislature that it erred. I personally doubt that the legislature erred in gradually bringing an old statute into conformity with the requirements of constitutional proportionality which are not required of an old statute. That is the case raised by the two petitions.

 

Because of this character of judicial review based on constitutionality, it should be used only in the most exceptional cases, when intervention is unavoidable. In this case, the military authorities recognized the need to continue amending the statute – to the extent possible, without undermining the performance of the military’s system of law enforcement – to bring it into conformity with the legislation governing civilian arrest-without-order. In this case, intervention is “avoidable.”

 

4.            An Aside

 

I would have chosen to deny the petitions on the grounds they are theoretical and do not, at this stage, justify conducting constitutional review of the latest amending provision of section 237A of the Military Adjudication Law. However, I see fit to briefly address four of the issues that my colleague discussed in his extensive and instructive opinion:

 

a.            Reviewing the Constitutionality of an Amending Statute

 

In my opinion, it is a mistake to exercise constitutional review over provisions of an unquestionably “beneficial” amending statute. Rather, for purposes of constitutional review, it should be treated as part of the original statute which it amends. Doing so will encourage the enactment of beneficial amending statutes. That is especially the case for a beneficial amending law that is part of a process of bringing an old statute into conformity with the constitutional requirements that came into effect only after the statute was enacted. Paving the way for constitutional review of a “beneficial” amending statute will deter the legislature from gradually amending old statutes, freezing them in their current form. In my opinion, it is in the public interest to leave room for “improving” burdensome provisions in an “old” statute, in order to bring it closer to provisions which meet the progressive standards of the Basic Law.

 

As a matter of interpretation, it will often be difficult to characterize an amending statute as “beneficial” or “non-beneficial.” The desire to avoid interpretive difficulties, however, cannot trump the public’s interest in a process of “beneficial revision” – generally, and particularly as a stage in the process of gradually amending “old” laws which the Basic Laws buttressed from constitutional review.

 

However, “exacerbating” infringements of rights protected by the Basic Laws is unacceptable. The same public interest that requires us to protect a “beneficial amendment,” in order to encourage such amendments, mandates “constitutional” intervention in cases of an “amendment-exacerbating-the infringement” of a basic right. Exacerbating the infringement reflects an “innovation,” and it contradicts the Basic Law. On the other hand, moderating the infringement reflects “progress,” is consistent with the Basic Laws, and advances the purpose of their enactment.

 

In the case at hand, the amending statute “benefits” in every possible aspect. In my opinion, that is reason enough to deny the petitions and leave the military authorities to continue their efforts to bring their practices into conformity with the rules for civilian arrests. It is consistent with my objection to subjecting a beneficial amending statute to the requirements of the Basic Laws. It also flows, in my opinion, from the restraint required of the Court on this issue. That would be true even if we accepted the principle that a beneficial statutory amendment – like an “exacerbating” statutory amendment – is subject to the constitutional conditions dictated by the Basic Laws.

 

b.            Limitation Clause: General and Military

 

I accept my colleague’s opinion that section 9 of the Basic Law: Human Dignity and Liberty includes the requirement of section 8, namely that a violating law must “befit … the values of the State of Israel” and be “enacted for a proper purpose,” although section 9 does not explicitly say so.

 

The difference between the two limitation clauses of sections 8 and 9 is the additional, binding requirement of section 9: “by the nature and character of the service.” In our case, it is service in the IDF. As my colleague pointed out in his opinion, “The proportionality of infringing on the rights of those serving in the security forces depends on the nature and character of the service, and it is therefore likely to be different from the proportionality of infringing on the rights of a person who is not serving in the security forces.”

 

In the military, the length of the arrest-without-order – designed to investigate the suspicion underlying the arrest, so that a decision over whether to extend the arrest can be made – is in large part dictated by a series of factors linked to “the nature and character of the service.” Among other factors, two stand out. The first is the interaction between the deployment of the military and the location of its legal institutions, in light of their jurisdiction over the soldier arrested. The military has a special interest in maintaining authority and jurisdiction within the different forces and according to the existing command structure. The second factor is the geographical distances that generally exist between the place of arrest and the location of witnesses who must be questioned as part of a preliminary investigation of the suspicions underlying the soldier’s arrest-without-order.

 

Reducing the period requires preparation and investment in resources. It may also require amendments to related legislation. Considering the nature and character of the service, it may become apparent that the ability to reduce the time period is limited, such that the end result will be different from its civilian counterpart. That is apparently the reason that the petitioner in HC 6055/95 limited his request to reducing the period of arrest-without-order to 48 hours, even though the civilian period had been shortened to 24 hours.

 

Indeed, as my colleague pointed out, a factor in determining the scope of the proportionality requirement is “the feasibility test.” The military declared its aspiration to attain a “reduced period” of 48 hours but requested time to prepare, including time to obtain the required budgetary resources. The military requested an “extension” in order to make the systematic changes that would “allow” it to reduce the period to 48 hours. Naturally, the “feasibility” test can be conducted only after the military has completed its preparations, and there is no claim that the IDF is dragging its heels.

 

c.             The Economic “Cost”: A Consideration of Proportionality

 

I personally think that the “economic cost” should not necessarily be disqualified as a consideration in determining what is proportional. I disagree with the rule that “proper” proportionality – as a conceptual standard – justifies and requires paying any price.

 

                If meeting the objective-conceptual, constitutional demands of proportionality puts a heavy burden on public economic resources, at the expense of other public interests, that “cost” cannot be ignored. It is one of the factors that delineate the zone of proportionality. In my opinion, we cannot rule out a situation in which the “economic cost” significantly influences where to draw the boundaries of the zone of proportionality.

 

                d. The Results of Invalidating a Beneficial Amending Statute

 

As the Bank Mizrachi [6] decision stated, invalidating a beneficial amending statute has the effect of “returning the situation to the status quo.” In other words, the constitutional situation “will worsen,” despite the legislature’s attempt to benefit. We have no real guarantee that, once we invalidate an amending statute that only “partially” benefits, the legislature will complete the “benefit” by bringing the old statute into complete conformity with the requirements of the Basic Laws. Nor can we require the legislature to do so, because provisions of an “old” statute are protected by the Basic Law: Human Dignity and Freedom.

 

                Indeed, from a public interest standpoint, invalidating a provision of a beneficial amending statute will encourage a public movement to press for amending legislation that immediately – not gradually – conforms to the requirements of the Basic Laws. To me, it is clear that invalidating a beneficial amending statute does more harm than good to the public interest. In any event, the Court should take these consequences into consideration before intervening to invalidate beneficial amending legislation.

 

5.            Conclusion

 

In conclusion, if my opinion were to win a majority, we would not intervene to invalidate a beneficial amending provision, in a situation in which the relevant executive authority has declared its intention to continue a gradual path of bringing the statute into compliance with the requirements of the Basic Laws. This is especially true where, as is the case here, the executive authority has thus far been true to its word.

 

                Exercising our authority to invalidate in this case is likely to undermine the “uniqueness” and “specialness” of that authority, which is expressed, in part, by limiting its exercise to rare circumstances when using it is “unavoidable.” It is likely to put that authority on par with the authority to invalidate an ultra vires administrative provision. I personally would avoid that result, as much as possible.

 

Decided by a majority, as per the opinion of Justice Zamir, with Justice Kedmi dissenting.

 

October 14, 1999.

Yehoshua v. Appeals Tribunal Under the Invalids Law

Case/docket number: 
HCJ 176/54
Date Decided: 
Wednesday, April 6, 1955
Decision Type: 
Original
Abstract: 

The petitioner applied to the High Court for an order of certiorari against the Appeals Tribunal set up under the Invalids (Pensions and Rehabilitation) Law, 1949, and prayed to set aside the decision of the Tribunal rejecting his appeal against the refusal of the competent authority to recognise his right to a pension. He alleged that the Tribunal had ignored certain medical evidence.

 

Held (by Olshan P. and Berenson J., Witkon J. dissenting):

 

(1) The High Court has no jurisdiction to review the decision of the Appeals Tribunal, and the application must be refused. 

 

Zeraubavel v. Appeals Tribunal under Fallen Soldiers’ Families Law, 1950; (1953) 7 P.D. 183 followed.

 

(2) The Supreme Court is bound by its own previous judgments, subject to the usual conditions applying to the operation of the doctrine of precedent in English law.

 

Ramm v. Minister of Finance and Others; (1958) 8 P.D. 494 followed.

 

Per Witkon J. (dissenting) : Admittedly there was no distinction in principle between the present application and Zeroubavel's case, which laid down that although the jurisdiction of the High Court to control the decisions of administrative tribunals by certiorari is not ousted by a provision in the law that those decisions should be final, it is ousted when that provision is accompanied by an additional provision requiring the tribunal to give reasons for its decision. But Zeroubavel's case was wrongly decided and should not be followed. Despite the fact that in Ramm's case it had been laid down that the Supreme Court is bound by its previous decisions in accordance with the usual conditions of English law, it should be held that the doctrine of the binding nature of precedents is not applicable in Israel, both for reasons of law and for reasons of policy. Since the precedent established in Ramm's case itself cannot, therefore, be binding on the court, it is entitled to, and should, hold that it is not bound to follow Zeroubavel's case, and should grant the petitioner an order nisi and try his case on the merits.

               

Per Olshan P. : Ramm's case binds the Supreme Court to follow its own decisions. Even a judge who disagrees with the application of the doctrine of precedent should regard himself as bound by Ramm's case, since otherwise the opinion of the majority of the judges of the Supreme Court could be nullified by a minority. The court is therefore bound by Zeroubavel's case, and the application must be refused.

               

Per Berinson J. : Even in England, where the court may only issue the traditional prerogative writs, the combined effect of the requirements that a tribunal must give reasons for its decision and that that decision is final, is not sufficient to oust the jurisdiction of the High Court to review the Tribunal's decisions. The more so, then, in Israel, where there is the widest jurisdiction to intervene when justice demands. Hence it would appear that Zeroubavel's case was wrongly decided. Since, however, a previous judgment of the Supreme Court is, as held in Ramm's case, binding upon it on the basis, not of law, but of policy1), the decision in Zeroubavel's case must be accepted as being conclusive. The application should therefore be refused.

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
dissent
Full text of the opinion: 

H.C. 176/54

               

NAHOUM YEHOSHUA

 v.

APPEALS TRIBUNAL UNDER THE INVALIDS (PENSIONS AND REHABILITATION) LAW, 1949, AND OTHERS

 

 

In the Supreme Court sitting as the High Court of Justice.

[April 6, 1955]

Before Olshan P., Berinson J, and Witkon J.

 

Certiorari - Invalids (Pensions and Rehabilitation) Law, 1949 - Competent Authority - Refusal to recognise right to pension - Appeals Tribunal - Finality of decision - Jurisdiction of High Court of justice to review decision - Precedent - Binding force of - Doctrine of Precedent in English Law.

 

                The petitioner applied to the High Court for an order of certiorari against the Appeals Tribunal set up under the Invalids (Pensions and Rehabilitation) Law, 1949, and prayed to set aside the decision of the Tribunal rejecting his appeal against the refusal of the competent authority to recognise his right to a pension. He alleged that the Tribunal had ignored certain medical evidence.

               

                                Held :    (by Olshan P. and Berenson J., Witkon J. dissenting) :

(1) The High Court has no jurisdiction to review the decision of the Appeals Tribunal, and the application must be refused.

Zeraubavel v. Appeals Tribunal under Fallen Soldiers’ Families Law, 1950; (1953) 7 P.D. 183 followed.

 

(2) The Supreme Court is bound by its own previous judgments, subject to the usual conditions applying to the operation of the doctrine of precedent in English law.

Ramm v. Minister of Finance and Others; (1958) 8 P.D. 494 followed.

 

                Per Witkon J. (dissenting) : Admittedly there was no distinction in principle between the present application and Zeroubavel's case, which laid down that although the jurisdiction of the High Court to control the decisions of administrative tribunals by certiorari is not ousted by a provision in the law that those decisions should be final, it is ousted when that provision is accompanied by an additional provision requiring the tribunal to give reasons for its decision. But Zeroubavel's case was wrongly decided and should not be followed. Despite the fact that in Ramm's case it had been laid down that the Supreme Court is bound by its previous decisions in accordance with the usual conditions of English law, it should be held that the doctrine of the binding nature of precedents is not applicable in Israel, both for reasons of law and for reasons of policy. Since the precedent established in Ramm's case itself cannot, therefore, be binding on the court, it is entitled to, and should, hold that it is not bound to follow Zeroubavel's case, and should grant the petitioner an order nisi and try his case on the merits.

               

                Per Olshan P. : Ramm's case binds the Supreme Court to follow its own decisions. Even a judge who disagrees with the application of the doctrine of precedent should regard himself as bound by Ramm's case, since otherwise the opinion of the majority of the judges of the Supreme Court could be nullified by a minority. The court is therefore bound by Zeroubavefl's case, and the application must be refused.

               

                Per Berinson J. : Even in England, where the court may only issue the traditional prerogative writs, the combined effect of the requirements that a tribunal must give reasons for its decision and that that decision is final, is not sufficient to oust the jurisdiction of the High Court to review the Tribunal's decisions. The more so, then, in Israel, where there is the widest jurisdiction to intervene when justice demands. Hence it would appear that Zeroubavel's case was wrongly decided. Since, however, a previous judgment of the Supreme Court is, as held in Ramm's case, binding upon it on the basis, not of law, but of policy1), the decision in Zeroubavel's case must be accepted as being conclusive. The application should therefore be refused.

 

                Palestine cases referred to:

(1)          L.A. 52/35 - Raji El Issa and Another v. Butros Deeb Khammar; (1937), 4 P.L.R. 21.

(2)          H.C. 21/32 - David Krubi v. District Officer, Jaffa; (1920-1933), 1 P.L.R., 683.

 

Israel cases referred to:

(3)          H.C. 4/53 - Haim and Perla Chilbi v. Pensions Officer under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950: (1953), 7 P.D. 475.

(4)          H.C. 5/53 - Yehezkel Zeroubavel v. Appeals 'Tribunal under the Fallen Soldiers' Families Law, 1950, and Others: (1953), 7 P.D. 182.

(5)          H.C. 66/54 - Haviva Vander v. Pensions Officer, Ministry of Defence and Others: (1954), 8 P.D. 556.

(6)          H.C. 103/54 - Pensions Officer under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950 v. Appeals Tribunal under the said Law for the Tel Aviv District and Others: (1954), 8 P.D. 1391.

(7)          H.C. 104/54 - Tel Aviv District Taxi Service Drivers Association v. Mayor of Tel Aviv and Others: (1955), 9 P.D. 100.

(8)          H.C. 154/54 Avraham Habshosh v. Pensions Officer under the Invalids (Pensions and Rehabilition) Law, 1949 and Others: (1954), 8 P.D. 1590.

(9)          H.C. 164/53 - Ruth Gantz v. Pensions Officer, Ministry of Defense and Others: (1953), 7 P.D. 909.

(10)        H.C. 67/54 - Raoul Frenkel v. Appeals Tribunal under In¬valids (Pensions and Rehabilitation) Law, 1949, and Others: (1954), 16 P.E. 450.

(11)        H.C. 50/54 - Yehouda Shoshan v. Chairman and Members of the Appeals Tribunal under the Invalids (Pensions and Re¬habilitation) Law, 1949, and Pensions Officer; (1954) 8 P.D., 1508.

(12)        H.C. 210/54 - "Lakol" Furniture Centre and Others v. Minister of Commerce and Industry and Others; (1952), 6 P.D. 775 .

(13)        H.C. 287/51; 34/52; 324/52 - Emil Ramm v. Minister of Finance and Others; (1954), 8 P.D. 494.

(14)        C.A. 376/46 - Aharon Rosenbaum v. Yona Miriam Rosenbaum: (1949/50), 2 P.E. 5.

(15)        H.C. 21/50 - Michael Shlomiof v. Chairman and Members of the Appeals Tribunal appointed in accordance with Emergency Regulations (War Damage Repair in Houses), 1949, and Others; (1950), 4 P.D. 98.

(16) H.C. 45/50 - Yosef Sifri v. Acting Registrar, Jerusalem District Court and Others; (1950), 4 P.D. 610.

 

English cases referred to:

(17)        R. v. Manchester Legal Aid Committee. Ex parte Brand & Co. Ltd.; [1952] 1 All E.R. 480.

(18)        R. v. Nat Bell Liquors Ltd.; [1922] 2 A.C. 128.

(19)        R. v. Wandsworth JJ., Ex parte Read; [1942] 1 All E.R. 56.

(20)        R. v. Kingston-Upon-Hull Rent Tribunal. Ex parte Black; [1949] 1 All E.R. 260.

(21)                        Bole v. Horton; (1673), 124 E.R. 1113.

(22)        R. v. Plowright and Others; (1686), 87 E.R. 60.

(23)        R. v. Moreley; (1760) 97 E.R. 696.

(24)        R. v. Jukes; (1800), 101 E.R. 1536.

(25)                        R. (Rooney) v. The Local Government Board for Ireland;                (1920), 2 I.R. 347.

(26)        R. v. Sill; (1852), Dears. C.C. 10; 16 Digest 406, 2525.

 

American case referred to:

(27)        United States ex rel. Trinler v. Carusi; (1948), 166F. 2d 457.

 

French case referred to:

(28)        Lamotte, Conseil d'Etat, 17 février 1950.

 

Louria for the petitioner.

 

WITKON J. On the hearing of this petition, it was decided by a majority that "in view of the judgment in Chilbi v. Pensions Officer (3), Zeroubavel v. Appeals Tribunal (4), Vander v. Pensions Officer (5) and Pensions Officer v. Appeals Tribunal (6), this court cannot intervene". I differed from my learned colleagues, my grounds for so doing:

 

                On the face of it, this case is of no great general importance. It concerns a man who fell seriously ill while serving in the army. He contends that he is entitled to a pension in accordance with the Invalids (Pensions and Rehabilitation) Law, 1949, but the Pensions Officer rejected his claim and the Appeals Tribunal dismissed his appeal. He has, therefore, applied to us for an order of certiorari, and his complaint is this: Before the Tribunal there was an opinion of Dr. Feldman which showed, according to him, that his illness was connected with his service. This opinion was not contradicted in the certificates produced on behalf of the Ministry of Defence. Those certificates did not determine the cause of the illness at all. Nevertheless, the Tribunal decided to dismiss the appeal without hearing Dr. Feldman, and did so in the following terms:

 

                "On the basis of the medical material placed before us, we are not convinced that the illness from which the appellant is suffering in the nervous system of the spinal cord arose out of or was aggravated by his service. Accordingly, we dismiss the appeal."

               

                It is doubtful whether, in those circumstances, the petitioner is entitled to any remedy. It is settled law that this court does not sit as a court of appeal from administrative tribunals and, in particular, will not intervene in questions requiring expert knowledge, such as medical and engineering questions and so on: Association of Taxi Drivers case (7); Habshosh v. Pensions Officer (8). It may be presumed that the two members of the Tribunal who are in fact doctors themselves were of the opinion that the illness from which the applicant is suffering could not be a consequence of his service or, at all events, that it was impossible to determine the causal connection. We do not know what induced the Tribunal to come to the conclusion it reached. But it seems to me that the Tribunal's decision calls for some explanation, and that is reason enough, in the circumstances of the case, for issuing an order nisi calling on the respondents to appear and show cause. It may be that in the present case the petitioner has little prospect of succeeding, but his arguments appear to me to call for some answer.

               

                Nevertheless, I should not have disagreed with my learned colleagues in their decision to dismiss the application or, at all events, I should not have expressed my dissent at length, were it not for the ground briefly expressed in the majority judgment. This ground raises important problems, and I feel obliged to take a stand in relation to it.

               

                My colleagues rely on four judgments of this court, in which it was decided that, save in cases of excess of jurisdiction, orders of certiorari should not issue in connection with hearings under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1950. No one denies that for the purposes of the question now before us, there is no difference between that Law and the Law under discussion here, namely, the Invalids (Pensions and Rehabilitation) Law, 1949.

               

 That rule was first established in ZeroubaveI v. Appeals Tribunal (4), which is referred to in Chilbi v. Pensions Officer (3), though in the latter case the order was made absolute, because it was found that the respondents had exceeded their jurisdiction. In Vander v. Pensions Officer (5), the court followed ZeroubaveI's case (4), but added a point on the merits of the case as a ground for dismissing the petition. Finally, in Pensions Officer v. Appeals Tribunal (6), the court re-iterated and re-affirmed the rule as laid down in Zeroubavel's case (4).

 

                What in effect is this rule ? It is well known that the court will not hesitate to grant a remedy by way of an order of certiorari, notwithstanding that in the Law establishing the administrative tribunal it is said that its decision shall be final. It has so been held in England for a considerable time, and we received the rule from there. But in the present case the Law contains two specific provisions, one being that the Appeals Tribunal shall give reasons for its decision, and the other that the decision shall be final (section 25(f) and (h)). The court in Zeroubavel's case (4), deduced from this that the legislature intended to deprive the High Court of Justice of its jurisdiction to interfere with the decisions of the Appeals Tribunal. This was said, more forcibly, in Pensions Officer v. Appeals Tribunal (6): "It has been laid down in connection with the Law now under consideration before us, that this court is not entitled to interfere with the decisions of the Appeals Tribunal, even if it appear that the decision is based upon an error, and even if that error is apparent on the face of the decision, except where the Appeals Tribunal acts without jurisdiction in giving a decision, exceeds the limits set by the legislature." In the same judgment it was also said: "And as for the general argument, based upon orders of certiorari, which this court is in general empowered to issue in the event of a legal error appearing on the face of a decision of an inferior tribunal, the above-mentioned judgments did not lay down any rule to the effect that this court is in general deprived of such jurisdiction, but held that such a jurisdiction does not exist in relation to the Law now under consideration. Their decision was based on an analysis of the provisions of this Law, and we see no reason for differing from the rule laid down in connection with the said Law."

               

                It appears to me that the court has not always followed that decision. I shall quote some examples:

               

(a) Before the decision in Zeroubavel's case (4). it was decided in H.C. 83/52 (unreported) that the Officer and the Tribunal did not err in rejecting the claim on the ground that the petitioner was not "bereaved" within the meaning of the Law. This implies that the court investigated the reasons.

 

(b) In Gantz v. Pensions Officer (9), the application was dismissed on the ground that the petitioner had not been prejudiced in her rights by the fact that she was not given notice of the Pensions Officer's decision. It seems to me that here, too, the court examined the proceedings to see if they were conducted properly or not. Admittedly, the question was examined according to the test of "jurisdiction". It was held that the Officer's notification was not to be regarded as a condition precedent to the Tribunal's jurisdiction.

 

(c) In the case of H.C. 3/54 (unreported), an order nisi was issued on the ground that the Tribunal had confined itself to a consideration of the question whether the accident had occurred while the petitioner was on duty, and had not exercised its jurisdiction to consider and decide whether the accident arose out of his service. Only with difficulty is it possible to regard that question as one of jurisdiction, for the Tribunal did not exceed the limits of its jurisdiction; on the contrary, it did not completely exhaust it.

 

(d) The complaint in Frenkel v. Appeals Tribunal (10), was that the Tribunal had relied upon a document without giving the petitioner the opportunity of seeing it or of commenting upon it. The petition was dismissed, not on the ground that the court was not entitled to issue an order of certiorari, but because it was clear from the respondent's reply that the document had been put in in the presence of both sides.

 

(e) Finally, Shoshan v. Appeals Tribunal (11), where the petitioner argued that the Tribunal had not expressed its opinion on an important piece of evidence, since the evidence had, through the fault of the Officer, not been produced to the Tribunal. The court considered this argument in detail, and laid down a rule that the Tribunal is not obliged to take into account the opinions of outsiders. No reference is made in that judgment to the question of jurisdiction to issue an order of certiorari.

 

                If not all of those decisions, at least some of them, have given rise to a doubt in my mind whether the rule laid down in Zeroubavel's case (4) has become firmly settled. My colleagues are not of this opinion, and have decided to resolve the present case in accordance with the ruling in ZeroubaveI's case (4). I am unable to accept that ruling. With the greatest respect to the judges that decided it, that decision does not seem to me to be a correct one. That being so, I am bound to give reasons for my dissent and to examine whether I am free to question a rule which has been previously established by this court. I shall start by considering the question of our jurisdiction in the matter of the order of certiorari.

 

                The legislator is omnipotent: he can, at will, abrogate our jurisdiction to make an order of certiorari, but it is common knowledge that jurisdiction is not taken away save by express words of ouster. A provision such as this - that the Tribunal's decision shall be final- is insufficient to take away the jurisdiction (see Halsbury, Hailsham edition, Vol. 9, page 861, and the authorities there cited, starting from the seventeenth century). This is one of the achievements that the judiciary has diligently and jealously guarded in its defence of the rights of the citizen. The scope of judicial review of administrative tribunals is narrow enough. An order of certiorari is generally of no assistance in reviewing the decision of a tribunal to see whether it is correct or not as to substance, from the point of view both of the law and of the facts. A fortiori, there is no ground for intervening when the matter under discussion is one of opinion. But this remedy has throughout served as a guarantee to the citizen against decisions that are invalid for want of jurisdiction, because they disregard the principles of justice, because they have been improperly obtained or because of error on the face of the proceedings. It should be borne in mind that not only excess of jurisdiction serves as a ground for an order of certiorari, but also denial of justice and, in particular, a defect in the proceedings. Wherever the law confers a judicial or quasi-judicial capacity on the responsible authority, the citizen is entitled to have the proceedings properly conducted: R. v. Manchester Legal Aid Committee (17), at p. 489; and see "Lakol" v. Minister of Commerce (12), at p. 803. There have been instances where the executive was opposed to the court's jurisdiction to quesition its decisions, and sought its abolition by the legislature. The courts invariably laid down the rule that a provision such as in section 17 of the Invalids (Pensions and Rehabilitation) Law, 1949, that the Tribunal's decision shall be final, does not deprive the court of the jurisdiction to make an order of certiorari.

 

                Now this rule is being called in question and the first steps taken for its reversal. With a stroke of the pen, the court in Zeroubavel's case (4) abrogated the judicial review of Appeals Tribunals, acting under the two Laws referred to, except where they exceed their jurisdiction. I find no consolation in the fact that this relates only to tribunals under those two Laws. How can I be sure that the executive will not follow this uncontrolled path in relation to other tribunals as well, if its appetite should grow and it wish to rid itself of judicial review? True, these tribunals are presided over by a pro¬fessional judge. But how do we know that in other laws tribunals will not be appointed without any member of the legal profession, and with only government officials sitting on them?

               

                And for what reason? How did the court, sitting in Zerubavel's case (4), arrive at such a far-reaching result? The provision that the Tribunal's decision shall be final is insufficient, as we have seen, to exclude the remedy of certiorari. But the court found a basis for its conclusion by combining two provisions of the Law in question, the one stating that the decision shall be final, and the other directing the Tribunal to give reasons for its decision. With the utmost respect to the court that sat in that case, I fail to understand how it reached its conclusion. If we accept that view, it follows that a provision, the sole purpose of which is to strengthen the citizen's rights, will prove to be his undoing and will turn from a blessing into a curse. I should have thought that if a decision is anyway subject to review by way of an order of certiorari, all the more must this be so when there is a reasoned decision. I have discovered no foundation for the idea that the "finality" of a decision excludes an order for certiorari simply because it has to contain reasons. I am convinced that the legislator did not anticipate this result and did not intend it when he ordered the Tribunal to give reasons for its decisions.

               

                As I have already said, I do not know whether the finding in the present petitioner's case was so defective as to justify our intervening in his matter by way of an order of certiorari. His contention was, briefly, that the Tribunal's decision was unsupported by the volume of evidence before it. Moreover, the Tribunal, which purported to decide "on the basis of the medical evidence placed" before it, ignored the opinion of Dr. Feldman, the petitioner's doctor, and could find no authority for its opinion in the medical certificates produced on behalf of the Ministry of Defence. Furthermore, according to the petitioner, the Tribunal did not want to hear Dr. Feldman as a witness, nor was it prepared to pass the question over to the Medical Tribunal for its decision, although both sides were agreeable that that should be done. Those are arguments which, if proved to be correct, may have sufficed to show a denial of justice. I express no opinion either way. Mistakes in the admission or non-admission of evidence do not constitute excess of jurisdiction: R. v. Nat Bell liquors, Ltd. (18), but may sometimes constitute a denial of justice (see R. v. Wandsworth JJ. (19); R. v. Kingston Rent Tribunal (20)). According to the decision in ZeroubaveI's case (4), the door is closed against the citizen who wishes to raise a complaint of this sort, for he is unable to argue that the Tribunal exceeded its jurisdiction. As I have already stated, even the jurisdiction to make an order of certiorari does not enable us to pass in review the Tribunal's decision, in order to test whether it is sound from the legal point of view (apart from the case of error apparent on the face of the decision) and from the point of view of the volume of evidence before it (see Halsbury, Hailsham edition Vol. 9, p. 888). There need be no fear, therefore, lest this court turn into a court of appeal from decisions of the Tribunal. But the citizen is entitled to demand that the hearing before the Tribunal be properly conducted, and a breach by it of the basic rules of evidence may provide a ground for our intervening. To my mind, there was occasion for granting an order nisi to the petitioner and for not sending him away empty-handed for the reason expressed in ZeroubaveI's case (4).

 

                That being so, I am obliged to consider the question whether we are entitled to depart from the decision that was given in Zeroubavel's case (4). My colleagues consider this decision to be binding upon us. To my regret, I am not at one with them even on this question. I agree that if we are to accept the principle that this court is bound by its previous decisions, then there is no way of distinguishing the present case from Zeroubavel's case (4), or of taking it out of the rule therein established. But that is the question: are we bound to accept the binding force of the precedent in all its strictness, or are we entitled to depart from a precedent in those rare cases where an established rule does not seem to us to be at all correct, and none of the various ways known in the doctrine of precedent available to us to strip it of its binding force?

               

                This court, composed of five judges, sat on that problem recently, in Ramm's case (13), and it was there decided that the court is bound by its previous decisions. Several exceptions were listed, but it is clear and beyond all doubt that the court gave its approval to the English rule relating to the binding force of precedent in its absolute form. In the light of this decision, I must indeed seem somewhat bold openly to call in question an opinion expressed by so exalted a forum. It need hardly be emphasized that a judge who does not recognise the binding force of precedent cannot be "bound", in the technical sense of the word, even by a precedent which recognises such binding force. A "binding rule" such as this is no more than begging the question. For all that, I am alive to the fact that it was the Supreme Court that spoke here and laid down basic policy for its action in the future, and it is somewhat difficult to deny so fundamental a principle. I am under no illusions. My voice in this matter is one crying in the wilderness, but I am convinced that the principle of the precedent is not calculated to advance and give form to the law in Israel. I am of the view that in the course of time we shall abandon that principle, and perhaps these remarks of mine may contribute towards bringing that day nearer.

 

                I shall open, first of all, by defining the scope of the discussion. The question of precedent bears two aspects. The court itself is required to be bound by its decisions, and also every other court is subject to the rulings laid down in a higher court. For the purposes of the present case, I shall confine myself to the first question. Secondly, a distinction has to be made between the precedent as a binding authority and its power of persuading and guiding. I know of no legal system which treats a departure from rules laid down in previous cases with anything but diffidence. They are authorities to be respected, and only in rare instances will a judge be bold enough to depart from them. That is the accepted system in most of the countries on the Continent of Europe and in the United States. I have not heard that this system brings about chaos or irresponsibility. A court will always want to follow the path of authority for the sake of consistency in the law and for the sake of efficiency in work. No court will be in a hurry to depart, needlessly, from the rule already laid down. As Professor Winfield wrote:

               

"To say that because a judge tries to keep the law consistent with itself, he is bound to model it on previous decisions, is to confuse judicial consistency with the binding force of judicial decisions." (Chief Sources of Legal History, p. 149).

               

                On the other hand, the English system, which has not, as far as I have been able to discover, been adopted in any country outside the British Commonwealth of Nations, requires the Supreme Court and, accordingly, other courts, to accept a ruling as if it were the law with a divine sanction even in those cases where such a ruling does not seem to the court before whom it is brought to be sound, and even in those cases where it seems to that court to be thoroughly misconceived. But the law is the law, though the heavens fall. Only in special cases, at times very extreme cases, is the court entitled to distinguish or evade the undesirable precedent.

               

                In the case of Ramm v. Minister of Finance (13), the court adopted the English principle subject, indeed, to the same reservations acknowledged in England itself and subject to an additional reserva¬tion, namely, where there is a change in social conditions; but apart from those reservations, adopted it in all its severity and strictness. The court reviewed the situation in the period of the Mandate and found, despite the dissenting opinion of Mr. Justice Manning in the case of El Issa v. Khammar (1), that opinion had crystallized in favour of the English principle. After that, the attitude of the Israel Supreme Court towards precedents of the Supreme Court in the period of the Mandate was examined, and it was found that it did not consider itself bound by those precedents. Finally, the court defined its attitude towards its own precedents and decided that it was bound by them. It is clear from the rationes decidendi - and my colleague Berinson J. confirms this - that this conclusion is not based on any law or authority, but on considerations of legal policy alone. In the opinion of the court, a precedent must be regarded as binding because of the need for certainty in the law. Conflicting judgments are bound to confuse the citizen and prevent his consultants from being able to advise him on how to conduct his affairs. Especially in a young State, in the words of the judgment, it is imperative that principles be crystallized, though here too a moderate note was struck: "What has been said must not be taken to mean that this court will go to extremes and will decide never to re-consider its decisions."

               

                With all due respect, it seems to me that the court did not give due weight to all the doubts and hesitations that have recently arisen with regard to the English doctrine even in England itself. There, a lively debate is being waged over the advantages of the English system and professors and learned men of authority have attacked the principle. It has been shown, first, by T.E. Lewis, in his article, "The History of Judicial Precedent" (46 L.Q.R. 207, 341; 47 L.Q.R. 411; 48 L.Q.R. 230), that the English principle has been in existence only since the beginning of the nineteenth century. It should not be regarded, therefore, as part of the substance of the common law. In each of the generations that precceded the modern period, when judgments began to be published, there arose lawyers of the highest standing who recognised the power of the precedent as an authority, but that is no proof that they regarded it as something binding. "Non exemplis sed rationibus adjudicandum est", as it is said in the Yearbook of the reign of Edward II, like Justinian's rule: "non exemplis sed legibus judicandum est'". There is no unanimity of opinion on the question as to when the approach altered. Holdsworth (50 L.Q.R. 180), in contra-distinction to Lewis (loc. cit.) and Allen ("Law in the Making", second edition p. 150), thought that the binding force of precedent was recognised as early as the seventeenth century. For that view, he relies on the sayings of Bacon, Coke C. J., and Hale. On the other hand, Vaughan C. J., strongly opposed the doctrine of binding precedent, as is apparent from his dicta in Bole v. Horton (21):

               

                "If a Court give judgment judicially, another Court is not bound to give like judgment, unless it think that judgment first given was according to law. For any Court nay err... Therefore, if a judge conceives a judgment given in another Court to be erroneous, he being sworn to judge according to law, that is, on his own conscience ought not to give the like judgment, for that were to wrong every man having a like cause, because another was wrong before."

 

                However, even Coke, who saw in the precedent evidence of a rule of law, made one reservation to this doctrine:

               

                "First, whatever is against the rule of law is inconvenient. Secondly, an argument ab inconvenienti is strong to prove it is against Law... Thirdly, that new inventions .. .are full of inconveniences."

 

                Only in the eighteenth century, particularly as a result of Blackstone's influence, was the doctrine of binding precedent adopted in all its severity, though even he and his contemporaries, in the spirit of their age, would not accept as "law" a rule which ran counter to "natural" justice.

               

                There is no need to multiply illustrations from English history nor to demonstrate that many of the greatest legal philosophers, among them Bentham and Austin, criticised the doctrine of precedent. The material may be found in the places cited above. It is more important, for the purposes of our case, to examine the criticism levelled in our own times against the English principle, in the main by Professor Goodhart in his well-known article in 50 L.Q.R. 40, on "Precedent in English and Continental Law." I do not want to set out here all the reasons with which Professor Goodhart repudiated the view current in England, that the English system is better than the system in force in other countries. In my opinion, Professor Goodhart has succeeded in showing that the doctrine of "the binding precedent" in its strict form not only does not advance the development of the law, but actually impedes it; that it is bound to render legal deduction formalistic; that it does not even possess the advantage of convenience, especially when the publication of judgments is unsatisfactory; that it is unable to preclude personal inclinations on the part of the individual judge; and last but not least, that even for the sake of certainty there is no particular need to endow a precedent with binding effect, as distinct from merely authoritative force. Passing from English to Israeli legal literature, we have before us the enlightening article of Professor Tedeski on the Rule of Precedent in Palestinian law, in his book "Researches into the Law of Our Country", 1953, with its criticism of the English system and its proposal that we should not adopt this system in our State.

               

                Professor Glanville Williams, the editor of Salmond on Jurisprudence, tenth edition, at p. 196, sums the matter up in this way. He distinguishes between two meanings of the doctrine of precedent: between its loose meaning, that is to say, that precedents are published and quoted and it stands to reason that the courts will follow them; and its strict meaning namely, that precedents not only possess great authority, but that the courts are obliged (in certain circumstances) to follow them. The first is the one that prevailed in England until the nineteenth century, and it is still the only sense in which it is accepted on the continent of Europe. The second meaning developed in England during the nineteenth century and was improved upon in the twentieth century. Continuing, Professor Williams says:

               

                "Most of the arguments advanced by supporters of "the doctrine of precedent", such as Holdsworth, will be found to support the doctrine in the loose rather than in the strict meaning, while those who attack it (such as Professor Goodhart) attack it in its strict and never in its loose meaning. Thus the two sides are less at variance than would appear on the surface. The real issue is whether the doctrine of precedent should be maintained in its strict sense or whether we should revert to the loose sense.There is no dissatisfaction with the practice of citing cases and of attaching weight to them; the dissatisfaction is with the present practice of treating precedents as absolutely binding. In favour of the present practice it is said that the practice is necessary to secure the certainty of the law, predictability of decisions being more important than approximation to an ideal; any very unsatisfactory decision can be reversed for the future by statute. To this it may be replied that pressure on Parliamentary time is so great that statutory amendment of the common law on an adequate scale is not to be looked for; also our experience of statutory amendment in the past has not been happy."

 

                Finally, Professor Williams seeks a compromise between the two opinions. He suggests that the binding force of precedent be done away with, to the extent that it has been created by the same court or by another court of the same instance, and to maintain it only in relation to superior courts.

               

                I feel that we, too, in this court would be well advised not to be bound by the doctrine of precedent in its strict sense. As I have said, I am not afraid that chaos and other kinds of disorder will result. The Israel judge can be expected to know how to respect an authority and not to depart from an established rule save in exceptional cases. I am not unaware of the need for certainty in the law, but I am not prepared to purchase certainty at the price of justice. Smoira P., spoke against precedents for the sake of precedent, when he said, in Rosenbaum v. Rosenbaum (14): "If I have to choose between truth and certainty, I prefer truth" - and not only in relation to precedents from the period of the Mandate. The doctrine of the binding force of precedent, which is not followed by the majority of peoples, is a strange importation into Israel. It has been said: "The judge has only what his own eyes see". And it seems to me that in our young State, the points of criticism that I have quoted above apply with greater force. We stand at the threshold of our development as a nation and as a society, and there is still a long road for us to tread before we reach a final form for our jurisprudence, and the shaping of the law in Israel. In such a situation one needs, sometimes, to look afresh at the rules, even if they have been but recently established and even if the conditions of our life cannot be said to have altered in the meantime. Accordingly, the doctrine of precedent, in its strict and uncompromising sense, is not only not essential at this hour, but on the contrary, is likely to hamper our progress. And let us not forget that the system of binding precedent should not be applied without all the technical means which we still lack, such as an improved system of law reporting and the legal reporting of every precedent, thus rendering it easier for the judge and the advocates pleading before him to find all the relevant authorities. As for legislation, which the supporters of the binding precedent rely upon so heavily, it has more than once happened with us that this has been somewhat tardy in amending results which in any reckoning were undesirable, and in the result the litigant was the loser in both events. In the present case, what shall we recommend to the legislator to amend?

 

                My colleague, Berinson J., feels that in matters of policy, the minority is obliged to march with the majority. My answer to that is that in judicial matters the judge has no allegiance save to the law. Since my colleague, too, disagrees with the ruling in Zeroubavel's case (4), I feel that it would have been proper to accede to the applicant's petition.

               

OLSHAN P. It was decided at the time of the hearing, by a majority, to dismiss the petition for an order nisi. This was decided in view of the many judgments in which the rule in the matter under review was established. After reading the reasoned judgment of Witkon J., who was in the minority, I am prompted to make certain remarks.

 

1. The doubt expressed by my learned colleague as to whether in fact the rule in the matter under review was finally established in the judgments mentioned in the majority decision is, with all due respect, unfounded. Since the decision in Zeroubavel's case (4), there has not been a single instance in which an order has been made absolute on the merits of the case, and no instance is to be found in which the court decided on the merits of the case without taking into account the ruling in Zeroubavel's case (4), namely, that the High Court of Justice will interfere with the decision of the Appeals Tribunal only where a question of jurisdiction arises. If at times this court has expressed its opinion on the merits of the case and has given its opinion on the Appeals Tribunal's reasons, that was because this court was saying, "that even on the merits of the case, the petitioner has failed to make out a case". This has happened mainly in those cases in which a discussion might have arisen over the question whether the Appeals Tribunal's decision indirectly involves the contention that the Appeals Tribunal did not have the jurisdiction to decide what it did. It sometimes happens that it is impossible to determine whether a certain question is one of jurisdiction without "looking into the Appeals Tribunal's reasons", and such a case does not prove that the court decided to ignore the aforementioned rule.

 

2. My learned colleague mentions the "opinion" of Dr. Feldman and quotes the Appeals Tribunal's decision. Dr. Feldman, the doctor who examined the petitioner privately, conveyed in his letter the details given him by his patient, and the Appeals Tribunal (two of the members of which were doctors) was entitled to regard Dr. Feldman's diagnosis as based mainly on the information given him by his patient. It is very doubtful, therefore, whether the petitioner would have obtained the order nisi asked for, even were it not for the rule laid down in Zeroubavel's case (4), and the decisions which followed it.

 

3. My learned colleague raises once again in his judgment the old problem with which many lawyers in the world are grappling, namely, whether to accept or reject the principle of the binding force of precedent. There is no doubt that the problem is important, and there are two sides to it. The question is which system is to be preferred. The solution to the problem cannot, in my opinion, be universal and it depends upon the situation and conditions of the State in which this problem arises. Even in Continental countries where, from the theoretical point of view, the principle of the binding force of precedent does not exist - even there, the principle is applied in fact, though its field of application is more restricted. In those countries there is a codification of laws and the need to refer to precedents is in any event more restricted than in those countries where the material law is built on something resembling the common law or the law of equity in England and where there is no codification.

 

                I do not wish to go into any further detail on that subject because, with all due respect to my learned colleague, the weak point in his judgment is his disregard for the judgment handed down by a bench of five judges of the Supreme Court in Ramm's case (13). in which it was decided that the court is bound by its decisions, except in certain cases.

 

                Of course, from the point of view of simple logic, my learned colleague is caught in a "vicious circle" and is forced to the conclusion that that judgment does not bind him either, for if no judgment possesses binding force, by what right is that judgment to be considered as binding? Is it because of the fact that the court was composed of five Supreme Court judges or because of the fact that almost every Supreme Court judge accepts the correctness of the rule laid down there?

               

                It will be noted that my learned colleague does not attempt to bring the case under discussion within the scope of those exceptional cases, such as were laid down in Ramm's case (13), where the court is not bound by precedent. He refuses to follow the rule established in Zeroubavel's case (4), and the judgments that followed it, for the sole reason that in his opinion the rule there established is fundamentally erroneous. Instead of recommending an immediate amendment by the legislature of what he regards as "an injustice", he goes further and sets at nought the decision given in Ramm's case (13), in the matter of the binding force of precedent.

               

                With all due respect, in spite of the fact that, from the point of view of "the vicious circle", this is logical and consistent, it seems to me to be somewhat like imposing a minority opinion on the majority.

               

                A bench of three judges sat in this case. What would have happened if on the merits of the case and also on the question of the binding force of precedent one more judge had joined him, and my learned colleague had not been in the minority but in the majority. Which judgment would have been binding: the judgment in Ramm's case (13) or this latter judgment?

               

                If it be said that neither of them has binding force, in my opinion a chaotic situation would be created; for these two Supreme Court judges would acquire a preferential status, not being bound by precedent, whilst the majority, being in favour of the binding force of precedent, would have to give way to the minority opinion in this matter, for, otherwise, two systems would be in existence in the court, and the fate of cases (in which this problem arose) would be settled according to chance, according to the composition of the court, depending on whether two or three of the remaining judges were sitting.

 

                It may be submitted that such cases, where it is necessary to depart from a ruling established by precedent, are very rare. In principle, and in view of the difficulties that may be caused to advocates and litigating parties - in particular, if the net should be cast wider and courts of other instances should find justification for maintaining my learned colleague's principle (and what is to prevent them?) - it can make no difference whether such cases are rare or common.

               

                The result of accepting the view of my learned colleague would be to create uncertainty, to lengthen the time of hearings and to involve the parties in heavy costs, and who will compensate the citizen for the costs and injury this uncertainty will cause him?

               

                I do not pretend to say that a judge, be he in the smallest of minorities, is bound to keep silent over a legal decision when he thinks that it is "contrary to law", but he is bound to act in accordance with the opinion of the majority. So long as no one judge can be allowed, in a particular matter, to foist upon his colleagues his ideas of justice, that is to say, so long as there exists no way of one judge forcing his colleagues to prefer his ideas of justice to their ideas of justice - otherwise than by way of persuation - because the legislator alone is in a position to determine whose opinion  is preferable, no question of acting contrary to his conscience is involved. Whenever the minority's reasons are not sufficiently persuasive to be acceptable to the majority, there is no other way, in the absence of a decision by the legislator, save to act in accordance with the majority opinion.

               

                Insofar as there are grounds for holding that the principle of the binding force of precedent was introduced into this country through Article 46 of the Order in Council,1) and insofar as this rule was also established in judgments from the time of the Mandate, Ramm's case (13), which confirms that rule, should not be regarded as a judgment serving only as a "signpost"; and so long as the legislator has not yet abolished that principle, there is an obligation to abide by it, and not to ignore it on account of reasons which in any event create an artificial vicious circle.

 

                I would go even further: assuming that in the past the principle  of "the binding force of precedent" had not yet existed in this country and that the problem arose before the Supreme Court now for the first time; and assuming that by a majority of seven against two, a rule (or let us call it even a "signpost") were established in that connection, it seems to me that such a decision ought to bind everyone in the future, so long as the legislator has not intervened in the matter, and has not altered the decision by means of a clear legislative act.

               

BERINSON J. On the hearing of the petition, I shared the learned President's view that we must dismiss it for the simple reason that we are bound by what was decided by this court in Zeroubavel's case (4).

 

                The binding force of the precedents of this court on this court itself - and, it need hardly be said, on all other courts in the State - was established recently after exhaustive consideration in Ramm's case (13), by a bench of five judges, myself among them. Notwithstanding the dissenting and instructive opinion of my learned colleague Witkon J., my belief in the soundness of that decision is unshaken.

 

                Obviously, one must read the judgment in Ramm's case (13) in its entirety. The rule that we are bound by our previous judgments is subject to several important reservations that were mentioned in that judgment, and they are not exhaustive, since they are but "signposts" for the course along which we shall march in the coming years."

               

                However, my learned colleague does not attempt to bring the present case within the scope of one of those exceptions, and does not even attempt to create a pigeon-hole for an additional exception, but rather makes a frontal attack on the very principle of the obligation to follow our previous decisions. Although, for myself, I should not so much fear to follow the road that Witkon J. recommends, I prefer the system of binding precedent for the self-same reasons that were explained in our judgment in Ramm's case (13).

               

                Furthermore, I feel that once such a decision has been reached my learned colleague, too, must harness himself to the yoke of precedent, not only because one must follow the majority, but mainly because membership of this court requires it, for it is clearly out of the question that there should be a majority policy and a minority policy in this court at one and the same time. Fundamentally, we are dealing here not with a controversy on the true interpretation of some point of law, in which each judge may decide to the best of his conscience and legal understanding, but with a question of policy, and in such circumstances I think that, having expressed its independent view, the minority has no choice but to abide by the rule in the future, and go along with the majority.

 

                And now, to the substance of the rule that was laid down in Zeroubavel's case (4). In that case it was decided that there was no jurisdiction in this court to control the activity of inferior tribunals by means of an order of certiorari in matters arising out of appeals to the Appeals Tribunal under the Fallen Soldiers' Families (Pensions and Rehabilitation) Law, 1949, because in that Law it was enacted that "the Appeals Tribunal shall give reasons for its decision" and that "the decision of the Appeals Tribunal shall be final."

               

                At the hearing of the petition, I openly expressed my doubts as to the correctness of that ruling and the more I have examined  and considered and probed into the matter since then, the more strongly am I of the same opinion. With all the respect in which I hold my colleagues, the judges that took part in the decision in that case, and all those who have since followed them without further reflection, have, in my opinion, been quick in reaching their conclusion without hearing full argument on the weighty question then under consideration - the question of the control that this court is empowered to exercise over the Appeals Tribunal acting in pursuance of the Law above referred to. Were I to regard myself as free to decide according to my wish and understanding, I should not hesitate to accept the view of my learned colleague, Justice Witkon, on this question - and these are my reasons.

 

                The jurisdiction of the High Court of Justice to give orders to and control the activities of the various public officials and bodies is wide - I would say very wide; but it is not unlimited. The principal limitations are of two kinds, and both are found in Article 43 of the Order in Council from which the court derives its original jurisdiction. The part of that section relevant to the present matter provides as follows:

               

                "The Supreme Court, sitting as a High Court of Justice, shall have jurisdiction to hear and determine such matters as are not causes or trials, but petitions or applications not within the jurisdiction of any other Court and necessary to be decided for the administration of Justice."

               

                The question that comes before the court in each case is, therefore, two-fold: is the court's intervention required at all in the particular case, because the petitioner cannot and his remedy in an other place? And if so, is the intervention required for the administration of justice?

               

                The second question is fundamentally a subjective one, because it depends on the discretion of the court. True, that discretion must be exercised in accordance with law and not be arbitrary or capricious, and over the years the court has itsef made reservations and set limits to its exercise. Nevertheless, the question remains, as before, fundamentally subjective, its exercise one way or the other in each case depending in no small measure on the disposition of the court to extend or limit its control over the activities of the administration, including the various administration bodies and tribunals.

               

                Far be it from me to ignore the limits set to the jurisdiction of this court by the law and by its own past decisions, or to minimise the importance and extent of the practical difficulties standing in the way of the court in exercising efficient control over the detailed actions of those who perform their duties by virtue of the law of the land. I agree with what the learned President said on another occasion, that this court will not usurp the functions of Government. But at the same time, I think that it would be a mistake if this court were disposed to divest itself little by little, as if that were its intention, of the power and jurisdiction that it has taken upon itself till now, on account of some unspecific and general observation in this or that law. The High Court of Justice has, in the course of time, come to be the citizen's main, if not his sole, defence and protection in his relationship with the administration. Let us not rock and shake with our own hands the bough on which we sit and from whose heights we supervise the legality and fairness of the administration's activities, unless there is clear legislative authority to do so.

               

                The legislator is supreme. He can give and he can take away. The jurisdiction that he has bestowed on the court in one law, he can, if he so wishes, abrogate in another law, and we must comply with his wishes. That indeed is the only question that fell to be decided in Zeroubavel's case (4): does the provision in the Fallen Soldiers' Families (Pensions and Rehabilitation) Law concerning finality of the Appeal Tribunal's decision reveal a clear intention on the part of the legislator that such a decision shall no longer, on the merits, be subject to the consideration and review of this court? When I read the many authorities on the matter in Israel and in England, it seems to me that the only conclusion is that no such intention appears.

               

                It has been stressed in the past that the jurisdiction of this court is not identical with the jurisdiction of the High Court in England in controlling the activities of officials and legal and administrative bodies. But if there is no identity, there are certainly parallels to be drawn between the two jurisdictions and though there is a difference in their origin and scope, there is no fundamental distinction in their content and nature. Accordingly, I see no reason why our jurisdiction should be curtailed in a manner different from that of the corresponding jurisdiction of the High Court in England, simply because the one - ours - is derived from written law, and the other - that of the High Court in England - is derived from the common law. It seems to me that the same rule should apply in both cases to the restriction of this jurisdiction by an enactment.

               

                The English rule in this respect has been established and maintained for centuries, and it is that the court's jurisdiction to issue an order of certiorari is not ousted by a written Act, unless there are express words of ouster, and a mere provision in the Act that a tribunal's decision shall be final does not suffice. See Halsbury, Hailsham  edition, Vol. 9, p. 861, section 1455, and the judgments there cited, starting in 1686 and continuing to our own times, for ex¬ample: -

               

                R. v. Plowright, (1686), (22);

                R. v. Morely, (1760), (23);

                R. v. Jukes, (1800), (24);

                R. (Rooney) v. The Local Government Board for Ireland, (25), at page 354.

               

                A Palestine case, Krubi v. District Officer, Jaffa (2), from the period of the Mandate decided that a legislative provision laying down that a tribunal's decision shall be final does not oust this court's jurisdiction under Article 43 of the Order in Council.

               

                This rule is part of the heritage of the courts in England and in Israel - and, as we shall see later on, also of the courts in the United States and, above all and in particular, in France, the cradle of administrative law; and its effect is neither determined nor exhausted except by a clear and express legislative enactment. Only when the legislator reveals his intention in clear and unequivocal language, that it desires to exclude a certain administrative act from the scope of judicial review, will the court respect that intention. But the existence of such an intention is not to be presumed or implied; on the contrary, the usual presumption is that judicial review is desirable, and the legislator is taken not to intend to diminish or put an end to it in any particular matter, except where there is an explicit enactment.

               

                Accordingly, when it is laid down in a law that a certain decision "shall be final and shall not be the subject of legal proceedings in any court whatsoever" (as is set out for example, in section 8(3) of the Registrars Ordinance, 1936), or that "no Court... shall be able to annul or alter an order made by the proper authority..." (as is set out, for example, in Regulation 18 of the Emergency Regulations (Repair of War Damage in Houses), 1949), only in such cases will a court stay its hand and decline to intervene. Even in such cases the court has retained for itself, and rightly so, the power to intervene whenever the official exceeds or the tribunal concerned exceeds the limits of its jurisdiction, or acts without jurisdiction, because a condition precedent to the exercise of jurisdiction has not been fulfilled, or because some fact, which in terms of the law is essential to the exercise of jurisdiction, has not been established (See Shlomiof v. Appeals Tribunal (15), and Sifri v. Acting Registrar, Jerusalem District Court (16)).

 

                That is not all. In its justified concern for the exercise of judicial review of one kind or another of the acts of inferior administrative or legal tribunals, the High Court in England sought and found other means, approximating and similar to the writ of certiorari, whenever the traditional means of the true writ of certiorari according to the common law were taken away from it by a statutory provision. In Halsbury, Hailsham edition, Volume 9, p. 863, the following illustration is given in note (r):

               

                "By Statute (1827), ...it was provided that no indictment for obtaining money under false pretences should be removed by certiorari. By (another statute), power was given to the High Court.... to remove indictments from sessions in London or Middlesex, 'by certiorari or otherwise', into the Central Criminal Court..., and it was held in R. v. Sill, supra, that an indictment for obtaining money under false pretences might be removed, under the lastmentioned Act, into the Central Criminal Court, inasmuch as the procedure authorised by that Act was not, properly speaking, procedure by the writ of certiorari, but by an order in the nature of certiorari."

 

                If such is the case in England, how much more so is it with us, where our hands are not tied to issuing only traditional prerogative writs, and where we possess the widest discretion to intervene in any case where justice so requires. In this respect our position is better than that of the High Court in England. Our jurisdiction is wider, and when occasion demands we are unquestionably entitled to intervene by virtue of Article 43 of the Order in Council and grant an appropriate remedy even where the High Court in England is powerless to do so. A fortiori, we ought to do so in a case where even in England the court, in spite of a general provision in an Act that the decision of a tribunal shall be final, would grant the writ unless there is an express provision in the Act by which the jurisdiction of the court is excluded.

 

                I fail to see in what way the position is altered by the obligation imposed on the Appeals Tribunal to give reasons for its decision. On the contrary, by its giving reasons, the court is enabled more easily to investigate the nature of the decision and to examine its legality and the legality of the proceedings that took place before the Tribunal. I should have said that the requirement to give reasons not only does not derogate from the usual powers of the court, but on the contrary strengthens its hand, and provides a firm foundation for carrying out an efficient judicial review of the Appeals Tribunal's actions and decisions. At all events, I have found no authority for the view that the obligation to give reasons by an administrative tribunal, even when accompanied by a provision that the tribunal's decision shall be final, is sufficient to take away jurisdiction from the court. I have found exactly the opposite. The very basic object of the writ of certiorari is to review judicial decisions, both of administrative tribunals and of inferior courts in the ordinarily under¬stood sense of the word, and it is a well-founded rule written or unwritten - that a court must give reasons for its decision. In England, there is nothing to prevent a case in an inferior court, whose decision contains reasons and is prima facie final, from being brought up for scrutiny in the High Court, by means of a writ of certiorari.

               

                As far as I am aware, the courts in the United States, and even more so, those in France, adopt the same method, as is explained in Schwarz' book, "French Administrative Law and the Common Law World"; see in particular pp. 155, 157, where two typical instances are cited, inter alia, one from the United States and one from France, and I think it right to mention them briefly here, in order to demonstrate the approach of the courts in those countries to the problems confronting us.

               

                In the case of U.S. ex. rel. Trinler v. Carusi (27), the person authorised under the United States Immigration Act 1917, issued a deportation order against the petitioner Trinler. It was provided in that Act that such a decision shall be final, 'but when the matter was brought before the court on a petition of habeas corpus, the majority of judges said, at p. 461:

               

                "While it night look as though judicial review were precluded by the giving to the deportation order the air of finality, in practice such finality never existed because of the availability of habeas corpus."

 

                In France, the Conseil d'Etat, which is the supreme authority in administrative matters, adopted a similar and much more stringent attitude. In the case in question. Lamotte (28), it was laid down by law that the authority's decision to grant licences "shall not be the subject of administrative or legal proceedings". Nevertheless, the Consail d'Etat decided that that did not suffice to exclude its jurisdiction to examine the matter anew. The learned author adds a comment of his own, saying (ibid., p. 157):

               

                "'Thus, even in a system based on the absolute sovereignty of the written law, the dangers inherent in administrative conclusiveness have led the Courts to refuse to give literal effect to provisions precluding review."

               

                In the light of all that has been said above it seemed to me that in the case before us, the petitioner's road to this court was still open. Were it not for the previous decisions of the court, which I regard as binding upon me, I should have said that the petitioner ought to be granted the order nisi he asks for.

               

                I shall add but one word more, and it seems to me obvious. In my opinion, the decision in Zeroubavel's case (4) is binding only in relation to the law under consideration there, and to any other law of a similar nature in every way. I emphasize the words "in every way", and not only in the sense that it contains a provision concerning the finality of a decision and the requirement of giving reasons. I imagine that the court that sat in that case could not do otherwise than attach special signfficance to a number of specific features in that law which - so I presume - influenced, consciously or unconsciously, the attitude adopted there, such as the first that the proceedings do not end with the findings of a tribunal of first instance, and that an Appeals Tribunal exists, presided over by a professional judge. It may be that in the absence of an Appellate Tribunal and with a different composition of the tribunal of first instance, the court might well have reached the opposite conclusion.

               

                Application refused.

                Judgment given on April 6, 1955,

Rubinstein v. The Minister of Defense

Case/docket number: 
HCJ 3267/97 HCJ 715/98
HCJ 715/98
Date Decided: 
Wednesday, December 9, 1998
Decision Type: 
Original
Abstract: 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
majority opinion
Author
concurrence
majority opinion
Full text of the opinion: 

HC 3267/97

HC 715/98

1.  Amnon  Rubinstein       

2.  Chaim Oron

3.  Barak Katz

4.  Yossi Nechushtan

5.  Baruch Olshak

6.  Alon Porat

7.  Ilan Freedman                                                      HC 3267/97   

 

 

1.   Major (Res.) Yehuda Ressler

2.  New Student Association of Tel-Aviv University

3.  15,604 Students of Israeli Institutes of Higher Education

4.  1,100 Students of Israeli High Schools   

5.  Major (Res.) Ehud Peleg                                     HC 715/98     

 

v.

Minister of Defense

The Supreme Court Sitting as the High Court of Justice

[December 9, 1998]

President A. Barak, Deputy President S. Levin, Justices T. Or,
E. Mazza, M. Cheshin, I. Zamir, T. Strasberg-Cohen, D. Dorner, J. Türkel, D. Beinisch, I. Englard

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

 

Facts: The petitioners, Members of Knesset, reserve military officers, and student organizations, challenged a practice in which the Minister of Defense routinely grants deferrals of and exemptions from required military service to ultra-Orthodox Jewish Yeshiva students who engage in full-time religious study. They claim the exemptions, granted to an ever-growing percentage of enlistment candidates (8% in the year 1997), violate the principle of equality, exceed the zone of reasonableness, and are disproportionate.  They further claim that the Minister of Defense lacks the authority to regulate the matter, and that it must be done so via legislation.

 

Held:  The Knesset, not the executive branch, has the authority to make fundamental decisions on fundamental issues that divide society. The routine granting of exemptions and deferrals to a large group of people is such a decision; it is a primary arrangement that must be addressed through primary legislation, not administrative regulations. Although the Court has upheld the administrative arrangement in the past, relying on a statutory provision authorizing the Defense Minister to grant exemptions "for other reasons," the growing number of students covered by the exemption has pushed it beyond his authority.. At a certain point, quantity becomes quality. The Defense Minister's current practice of granting deferrals and exemptions is invalid. The Court's declaration of invalidity will take effect 12 months from the date of the decision, in order to give the Knesset time to address the matter.

 

Israeli Supreme Court Cases Cited

  

[1]     HC 910/98 Ressler v. Defense Minister, 42(2) IsrSC 441.

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

[3]     HC 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) IsrSC 824.

[4]     CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v. Sdeh Ya’akov Workers’ Village of Hapoel Mizrachi, Agricultural Cooperative Settlement, 45(4) IsrSC 529. 

[5]     HC 2740/96 Shansi v. Diamond Comptroller 51(4) IsrSC 491.

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

[7]     CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General, 8 IsrSC 785.

[8]     HC 3806/93 Manning v. Minister of Justice, 47(3) IsrSC 420.

[9]     CA 825/88 Association of Israeli Soccer Players v. Israeli Soccer Association, 45(5) IsrSC 89.

[10]   HC 144/50 Sheave v. Defense Minister, 5 IsrSC 399.

[11]   HC 113/52 Zachs v. Minister of Trade and Industry, 6 IsrSC 696.

[12]   HC 7351/95 Nevuani v. Minister of Religious Affairs, 50(4) IsrSC 89.

[13]   HC 2994/90 Poraz v. Government of Israel, 44 (3) IsrSC317.

[14]   HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem, 10 IsrSC 40.

[15]   HC 3872/93 Mitral Ltd. v. Prime Minister and Minister of Religious Affairs, 47(5) IsrSC 485.

[16]   CA 6821/93 United Bank Hamizrachi Ltd. v. Migdal Cooperative Village, 49(4) IsrSC 221.

[17]   HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior, 47(1) IsrSC 749.

[18]   HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa, 42(2) IsrSC 309.

[19]   HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya, 8  IsrSC 1524.

[20]   HC 200/57 Bronstein v. Beit Shemesh Local Council, 12 IsrSC 264. 

[21]   HC 124/70 Shemesh v. Companies Registrar, 25(1) IsrSC 505.

[22]   HC 144/72 Halipi v. Minister of Justice, 27(1) IsrSC 719.

[23]   HC 333/85 Aviel v. Minister of Labor and Welfare, 45(4) IsrSC 581.

[24]   CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co., 31(3) IsrSC 281.

[25]   FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co., 32(2) IsrSC 337.

[26]   HC 301/63 Streit v. Israeli Chief Rabbinate, 18(1) IsrSC 598.

[27]   HC 249/64 Baruch v. Customs and Duty Supervisor, 19(1) IsrSC 486.

[28]   HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court, 48(2) IsrSC 491.

[29]   HC 453/94 Israeli Women’s Network v. Government of Israel, 48(5) IsrSC 501.

[30]   HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority, 48(3) IsrSC 353.

[31]   HC 726/94 Klal Insurance Company v. Finance Minister, 48(5) IsrSC 441.

[32]   HC 1255/94 “Bezeq," Israeli Communications Company v. Communications Minister, 49(3) IsrSC 661.

[33]   HC 5319/97 Cogan v. Military Attorney General, 51(5) IsrSC 67.

[34]   HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Transport Minister, 49(4) IsrSC 808.

[35]   CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach, 48(2) IsrSC 66.

[36]   HC 4541/94 Miller v. Defense Minister, 49(4) IsrSC 94.

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

[38]   HC 4562/92 Zandberg v. Broadcasting Authority, 50(2) IsrSC 793.

[39]   HC 7111/95 Center of Local Government v. Speaker of Knesset, 50(3) IsrSC485.

[40]   HC 3434/96 Hopfnung v. Speaker of Knesset, 50(3) IsrSC 57.

[41]   HC 5503/94 Segal v. Speaker of Knesset, 51(4) IsrSC 529.

[42]   HC 450/97 Tenufa Manpower and Maintenance Services, Ltd. v. Minister of Labor and Welfare, 52 (2) IsrSC 433.

[43]   FH 2/82 Ressler v. Defense Minister, 36(1) IsrSC 708.

[44]   HC 98/69 Bergman v. Finance Minister, 23(1) IsrSC 693.

[45]   HC 114/78 Borkan v. Finance Minister, 32(2) IsrSC 800.

[46]   EA 2/88 Ben-Shalom v. Central Elections Committee for the Twelfth Knesset, 43(4) IsrSC 221. 

[47]   HC 153/87 Shakdiel v. Minister of Religious Affairs, 42(2) IsrSC 221.

[48]   HC 355/79 Katalan v. Prison Authority, 34(3) IsrSC 294.

[49]   HC 1715/97 Investment Managers’ Bureau v. Finance Minister, 51(4) 367.

[50]   HC 40/70 Becker v. Defense Minister, 24(1) IsrSC 238.

[51]   HC 448/81 Ressler v. Defense Minister, 36(1) IsrSC 81.

[52]   HC 179/82 Ressler v. Defense Minister, 36(4) IsrSC 421.

[53]   LCrim 1127/93 State of Israel v. Klein, 48(3) IsrSC 485.

American Cases Cited

[54]   Mistretta v. United States, 488 U.S. 361 (1989).

[55]   Industrial Union Dept. v.  American Petrol Inst., 448 U.S. 607 (1980).

[56]   Rapp v. Carey, 44 N.Y. 2d 157 (1976).

[57]   United States v. Robel, 389 U.S. 258 (1967).

[58]   American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490 (1981).

[59]   Myers v. United States, 272 U.S. 52 (1926).

[60]   Kent v. Dulles,  357 U.S. 116 (1958).

[61]   Shuttlesworth v. Birmingham, 394 U.S. 147 (1969).

[62]   Wayman v. Southard, 23 U.S. 1 (1825)..

[63]   Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936).

International Cases Cited

[64]   The Sunday Times  v. The United Kingdom (1979) 2 E.H.R.R. 245.

[65]   Malone v. United Kingdom (1984) 7 E.H.R.R. 14. 

[66]   Leander v. Sweden (1987) 9 E.H.R.R. 433.

German Cases Cited

[67]   8 BVerfGE 274 (1958).

[68]   33 BVerfGE 125 (1972).

[69]   34 BVerfGE 52 (1972).

[70]  49 BVerfGE 39 (1978).

Canadian Cases Cited

[71]   Irwin Toy Ltd. v. Quebec [1989] 1 S.C.R. 927.

Israeli Books Cited

[72]   2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (5th ed. 1996). 

[73]   1 B. Bracha  Mishpat Minhali [Administrative Law] (1987).  

[74]   1 I. Zamir, Hasamchut Haminhalit [Administrative Power] (1996).

[75]   Y. Dotan Hanchayot Minhaliot [Administrative Guidelines] (1996).

[76]   2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (1993).

 [77]  1 B. Aktzin, Torat Hamishtarim [Theories of Government[ (2 ed. 1968).

 

Israeli Articles Cited

[78]   I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency], 4 Mishpatim 63 (1973).

[79]   Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations], in Sefer Klinghoffer al Hamishpat Hatzibori 105 (I. Zamir ed., 1993).

[80]   B. Bracha, Chakikat Mishneh [Administrative Regulations], 1 Mishpat U’Mimshal 411 (1993).

[81]   B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations], 7 Iyunei Mishpat 390 (1979-1980).

[82]   A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations], 21 Hapraklit  (1965) 463.

[83]   C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime], 5 Mishpatim 308 (1973-1974).

[84]   I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General Guidelines], 11 Iyunei Mishpat 339 (1986-1987).

[85]   A. Barak, “Subordinate Legislation” 16 Scripta Hierosolymitana  (1966) 219.

[86]   F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law], 4 Shnaton Mishpat Haavodah 151 (1994).

[87]   R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law], 4 Shnaton Mishpat Haavodah 27 (1994). 

[88]   A. Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax], 23 Mishpatim 55 (1994).

[89]   A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law], 13 Mechkarei Mishpat 5 (1996-1997).

Foreign Books Cited

[90]   B. Schwartz, Administrative Law (3rd ed. 1991).

[91]   D.P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2d ed. 1997).

[92]   D. Schoenbrod, Power Without Responsibility (1993).

[93]   L.H. Tribe, American Constitutional Law (2d ed. 1988)

[94]   D.P. Currie, The Constitution of the Federal Republic of Germany (1994).

[95]   P.W. Hogg, Constitutional Law of Canada (3rd ed. 1992).

[96]   A.C. Aman and W.T. Mayton, Administrative Law (1993).

 

Foreign Articles Cited

[97]   U. Kischel, Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law, 46 Admin. L. Rev. 213 (1994).

 

Miscellaneous

[98]   Standing Committee’s Report for Renewed Examination of Enlistment Exemption for Yeshiva Students (1988).

[99]   State Comptroller, 39th Annual Report – 1988 and Accounts for Fiscal Year of 1987 (1989).

[100]    State Comptroller, 48th Annual Report – 1997 and Accounts for Fiscal Year of  1996 (1998).

 

Jewish Law Sources Cited

[a]  Tractate Sabbath, 132:1.

[b]  Jerusalem Talmud, Tractate Yoma, 8:5.

 

 

JUDGMENT

President A. Barak

This court examined the deferral of military service for Yeshiva [religious seminary – ed.] students for whom “Torah is their calling” [who engage in full-time religious study – trans.] in HC 910/86 Ressler v. Minister of Defense (hereinafter- Ressler [1]). According to the statistics presented to the Court in Ressler [1] of those who enlisted in the I.D.F. in 1987, 1,674 Yeshiva students had their military service deferred (constituting 5.4% of the total). The total number of students included in the arrangement for the deferral of military service in that year was 17,017. Against this backdrop Ressler [1] held that the Minister of Defense was authorized to defer the drafting of Yeshiva students and that his exercise of discretion to that effect was within the zone of reasonableness.  In my opinion in that case, I stated:

... ultimately, the number of Yeshiva students who receive deferrals is significant. There is a limit, which no reasonable Minister of Defense is authorized to exceed. Quantity becomes quality.

Id. at 505.

 

Ten years have passed since that case was decided. The number of Yeshiva students included in the deferral of service arrangement has risen constantly.  According to the statistics presented to us, in 1997, about 8% of all the enlistees eligible for service were granted a deferral, based on their being full-time Yeshiva students.  The total number of Yeshiva students included in the arrangement that year was 28,772 (as of August 1997). The arrangement’s social ramifications are of gargantuan proportions. Indeed, increasingly, feelings of inequality are tearing the fabric of Israeli society. Moreover, some of the Yeshiva students being granted deferrals – namely, those who cannot successfully adjust to the full-time study of Torah – find themselves in an untenable predicament; they do not study for they are unsuited for it; they do not work, for fear of exposing their failure to meet the conditions of the arrangement. The result is an ongoing breach of the law, inhibited personal growth and harm to the work force. The issue before us today is whether or not these and other ramifications cross the line beyond which “quantity becomes quality." Does the complex situation in which Israeli society finds itself mean that this entire issue can no longer be regulated via the service deferral granted by the Minister of Defense? Does the situation presented before us today not warrant the conclusion that this entire matter ought to be resolved by Knesset legislation, capable of addressing the problem in all its complexity? These are the painstaking questions with which we are confronted today.  

The Facts

1.    The history of granting deferral of military service to full-time Yeshiva students (students for whom “Torah is their calling”) is in truth the history of the State of Israel itself. We dwelt upon this in Ressler [1] at 449-51. It was the first Defense Minister, Mr. David Ben-Gurion, who ordered that the enlistment of full-time Yeshiva students be deferred.  At the time, there was a fixed quota of Yeshiva students whose service was deferred, not exceeding about four hundred (400) Yeshiva students a year. This was the number of deferrals granted until 1970. From that year onwards the arrangement was altered to remove the limitation on the number of deferrals that could be granted. Hence, the number of Yeshiva students granted deferrals increased. In 1975, a yearly quota of 800 was established for the number of Yeshiva students who would obtain service deferral. Following the coalition agreement of 1977, the quota was abolished altogether, increasing the number of potential service deferrers.  These deferrers came to include the newly penitent, teachers in the independent educational system, and graduates of religious technical schools.  The conditions for authorizing a deferral were similarly relaxed, as were the requirements which the deferrers had to meet. For example, Yeshiva students over the age of thirty were allowed to give lessons in Judaic studies and receive modest scholarships in consideration thereof. It would seem that at that time there was also a change in the rationale underlying the arrangement. The arrangement originated as a result of the destruction of the European Yeshivas during the Holocaust and the desire to avoid having to close Yeshivas in Israel pursuant to the enlistment of their students. Today, this reasoning no longer holds.  Israeli Yeshivas are thriving and there is no real danger that drafting Yeshiva students within any particular framework would lead to the disappearance of these institutions. The arrangement today is, on the one hand, based on the desire to enable Yeshiva students to continue studying, while on the other hand, there is the perception that the effectiveness of these students’ military service is questionable, due to the difficulties they would encounter in adjusting to the Military and the difficulties that the Military would have adjusting to them.

2.    The arrangement introduced by David Ben-Gurion and adopted by all subsequent defense ministers, sparked broad public controversy.  The Knesset debated it on a number of occasions. See Ressler [1] at 450. In effect, numerous efforts were made to petition the Supreme Court with regard to this matter. Id. at 453. These efforts failed, given the Supreme Court’s original view that the petitioners had no legal standing and that the issue itself was non-justiciable. The Supreme Court subsequently changed its position in Ressler [1] noting that the petitioner had standing before the Court and that his petition was in fact justiciable (both normatively and institutionally). Regarding the petition itself, the Court held that the deferral of military service for full-time Yeshiva students was within the Defense Minister’s authority and did not exceed the zone of reasonableness.  Even so, it held that “if the number of those whose service is deferred due to Torah studies continues to increase, to the extent of it comprising a significant portion of candidates for military service, thereby harming Israel’s security, there will definitely come a point at which we will say that the decision to defer enlistment is unreasonable and must be struck down.” Ressler [1] at 512. The Court emphasized that the Defense Minister’s discretion was ongoing, as was the obligation to exercise it. President Shamgar stressed this point, noting:

…this matter cannot be examined exclusively on the basis of its external manifestation, in light of its development since the establishment of the State to the present time; it must equally be examined according to its ongoing nature, its impact and its attendant consequences, year in and year out, for the foreseeable future. This means that our ruling today regarding the arrangement’s legality, after subjecting this arrangement to the relevant judicial review for the first time, does not exempt the Executive Branch from the obligation of periodically examining and reexamining the implications of granting exemptions to growing numbers of men of military age ... thus, we are not speaking of fixed data but rather of facts that change from one year to the next.  This means that the empowered authority is obliged annually to reassess the data and to consider its connection with other background factors.

Id. at 524-25.

 

3.    Public discussion of the issue of deferring the enlistment of full-time Yeshiva students persisted after the Ressler [1] case was decided. Immediately thereafter (August 1988), a report of the Knesset sub-committee of the Foreign Affairs and Security Committee was published.  The committee opined that the arrangement regarding the deferred enlistment of Yeshiva students must be changed by establishing frameworks which combined military service with the study of Torah. Particular attention was given to the model of the “Hesder Yeshivas” [combined religious study and military training – ed.].  It further recommended exempting 200 outstanding students from military service. The other Yeshiva students would be enlisted upon reaching the age of 24. They would undergo a short period of training and a shortened service period of one year. In the sub-committee’s view, the Knesset was obliged to adopt a definite position on the issue of service deferral for Yeshiva students. The sub-committee called upon the Defense Minister to “promptly initiate a bill for regulating the military service of Yeshiva students," in the spirit of the committee’s conclusions and recommendation. Report of the Standing Committee for the Renewed Examination of the Enlistment Exemption for Yeshiva Students [98] at 42.

4.    The State Comptroller’s Annual Report (No. 39) (1988 and Accounts for the 1987 Fiscal Year) [99] addressed the conditions for deferring Yeshiva students’ military service. The examination indicates the lack of adequate supervision as to whether the arrangement’s conditions are properly complied with. Indeed, there is no ongoing, comprehensive, and organized data regarding Yeshiva students who transfer from one Yeshiva to another, nor is there efficient monitoring regarding whether the Yeshiva students benefiting from the arrangement are not in fact engaged in other remunerative work. Furthermore, there is insufficient military enforcement of the students’ obligation to report at specific times for renewal of their service deferral. According to the report, there was no justification for leniency regarding contempt for the requirements of timely reporting for service deferral. Annual Report No. 39 [99] at 908.  The report adopted the view that the subject ought to be re-examined and “debated in the Knesset, in recognition of its immense public importance.” Id. In April of 1991, the Committee on Matters Related to the State Comptroller discussed the Report, criticizing the defects revealed in the Enlistment Board’s supervision of the maintenance of the enlistment deferral arrangement for Yeshiva students. It was the Committee's opinion that, “given the State of Israel’s critical security needs and the heavy burden born by its citizens in the area of military service, there is no justification for a situation in which tens of thousands of citizens receive prolonged deferrals of military service, the practical meaning of which, in most cases, is a total exemption from military service."

5.    On July 24th, 1992 the Defense Minister appointed a committee to examine the deferral of military service for full-time Yeshiva students.  The committee, chaired by the Defense Minister’s assistant and Director General of the Ministry of Defense, Mr. Haim Yisraeli, was asked to examine the procedures, criteria and manner of supervising the arrangement for the enlistment deferral of full-time Yeshiva students. The committee, which submitted recommendations to the Defense Minister in August of 1995, suggested methods for supervising the arrangement’s proper enforcement. Inter alia, the Yisraeli committee suggested shortening the deferral period for Yeshiva students to six months, until they reach the age of 25. This would mean that they would have to report to the enlistment bureau twice a year. It further recommended establishing a permanent formula, according to which the heads of the Yeshivas would report to the I.D.F. twice a year, in addition to a procedure for revoking recognition of those Yeshivas which fail to comply with the conditions of the arrangement. Moreover, the committee suggested improving the enforcement measures by conveying all the relevant data to the police and the State Attorney’s office, who would deal with students who violate the rules of the arrangement.

6.    In the Annual Report (No.48) (State Comptroller - 48th Annual Report for 1997 and Accounts for 1996 Fiscal Year) [100], the State Comptroller once again addressed the arrangements for enlistment deferral of Yeshiva Students into the Defense Service. At that time, the number of Yeshiva students whose enlistment had been deferred was 28,772, which constituted 7.4% of the total number of enlistees in 1996.  The report emphasized that there was no comprehensive and continuous supervision of compliance with the requirements established for full-time Torah students.  According to the State Comptroller, so long as this situation prevailed, it would be impossible to accurately establish whether there were individuals purporting to be full-time students who were in fact not studying at all, and what proportion of the deferrees they constituted. All that could be determined was that, as of March 1997, of all the Yeshiva students whose enlistment had been deferred (28,547), only 2.8% of them enlisted in the I.D.F in 1996. Furthermore, there had not been an attempt to ascertain how many full-time Yeshiva students, barred by the arrangement from working or pursuing any occupation save learning, were in fact not working or earning money.  The Report also emphasized that the Defense establishment had failed to conduct any systematic ongoing discussion regarding the steady increase of eligible enlistees who were full-time Yeshiva Students. Prior to concluding, the Report noted that “in view of the findings of the follow-up report and [Israel’s] present security needs ... the summary of the previous report has not merely retained its validity but has been bolstered ... and these findings strengthen the recommendation to conduct an in-depth inquiry into the subject of enlistment deferral for full-time Yeshiva students.” Id. [100] at 1011.

7.    The Knesset plenary discussed the enlistment deferral for full-time Yeshiva students on a number of occasions. On March 11th, 1992, the Knesset debated eight private bills proposed by members for amending the Defense Service (Amendment) Law [Consolidated Version] 1986. The bills attempted to limit the duration of the deferral that the Defense Minister was empowered to grant, as well as the number of those being granted deferrals.  There was also a bill to adopt a service framework for full-time Yeshiva students, similar to that of the Hesder students. All of these bills were stricken from the agenda. In November of 1993, the Knesset debated a bill to amend the Basic Law: The Knesset. The bill made the right to vote and be elected conditional upon having fulfilled the duty of national service, while restricting to a minimum those Yeshiva students who would be exempted from military service.  This bill, too, was stricken from the agenda.  Eight private bills were submitted before the fourteenth Knesset regarding the issue of granting deferrals to full-time Yeshiva students. The bills attempted to set quotas on the number of those whose service would be deferred, place restrictions on the duration of the deferral, and impose an obligation of full reserve duty for those whose service had been deferred. Three of these bills were stricken from the Knesset’s agenda.

The Current Situation

8.    As it now stands, deferrals of defense service are granted to full-time Yeshiva students (those for whom “Torah is their calling”). Joining this category is contingent on the enlistee having studied continuously in a Yeshiva High School, be it regular or vocational, since the age of 16. This category is also open to those who studied in a religious high school and whose matriculation exams included Talmud at the level of five units. The category of full-time Yeshiva students also includes the newly religious. The deferral is contingent on the following condition: anyone included in the category of “full-time Yeshiva student” cannot be engaged in any form of work or occupation that is ordinarily remunerative. An exception to this rule was recognized for Yeshiva students employed in a formal role as teachers in the schools of the various streams of the Ultra-Orthodox educational system; they are entitled to remuneration. The same applies to Yeshiva students over the age of 29 who teach children through the age of 13 in parochial primary schools.  The final category also includes teachers of at least 29 years of age who teach in Yeshivas for students between the ages of 13 and 17 or in Yeshivas for students 18 years and older. When the service deferral is terminated, the candidate for military duty who is a full-time Yeshiva student receives an exemption if he is at least 35 and has four children, or upon reaching the age of 41. The most recent data indicates that there are presently over 28,000 enlistees from among the service candidates of all of the years whose enlistment is currently being deferred. This data indicates a rise in the extent of the enlistment deferral.  Hence, in 1995, the number of Yeshiva students whose enlistment had been deferred stood at 26,262 - in 1996 (according to the data as of March 31st, 1997) there were 28,547 persons. In 1995 the percentage of those joining the arrangement was about 6.4% out of the entire year of enlistment candidates; in 1996 the percentage was 7.4%; and in 1997 it stood at 8% of the enlistment candidates of that year.

9.    A Yeshiva student registered for military service and included under the category of “full-time Yeshiva student," who no longer qualifies for this particular exemption, whether of his own accord or pursuant to the enlistment officer’s decision, will have the duration of his military service determined in accordance with his age and family situation. Thus, the number of those included in the arrangement is not static. During the entire year there is a constant ebb and flow of those entering and leaving the above category. Out of those born in 1973, for instance, in 1991 (when they reached enlistment age), the percentage of those included in the arrangement stood at 6%. For those born in 1973 and reaching the age of about 21 (in 1994) the number of those included in the arrangement stood at 4.8%.

10.  According to the current arrangement, the enlistment bureau commander approves the granting of full-time Yeshiva student status to those candidates who have, at one time, studied at one of the Yeshivas recognized by the Committee of Yeshivas in Israel. Acceptance is conditional on having completed the enlistment procedures and having declared oneself a “full-time Yeshiva student” who is not engaged in any work or occupation, remunerative or not, save Yeshiva studies. Thus, a candidate for defense service undertakes that if at any time during the period covered by the service deferral, any of the qualifying conditions is not fulfilled, he will immediately report to the enlistment bureau and give notice thereof. He also undertakes to notify the enlistment bureau if ever he transfers to study in another Yeshiva. In addition, the head of the Yeshiva in which the candidate is purporting to study must sign a declaration of his own on the back of the student’s declaration form (which must itself be renewed on a yearly basis) in which he undertakes to notify the secretary of the Committee for Yeshivas in Israel within thirty days if the student in question terminates his studies during the course of the year.  The secretary of the Committee for Yeshivas, for his part, must confirm that the candidate fulfills the requirements for being included in the category of “full-time Yeshiva students” and must further declare that, “if we receive notification that the aforementioned has discontinued his studies in the Yeshiva, during the course of the year, I undertake to immediately inform the commander of the enlistment bureau." The candidate for defense service receives an annual enlistment deferral. On an annual basis, he is required to renew his status and apply for an additional year of deferred service. The candidate is required to produce a valid current certification from both the head of the Yeshiva and the secretary of the Committee of Yeshivas attesting to his continued studies and must once again undertake to comply with all the requisite conditions for full-time Yeshiva students.

The Petitions

11.  Before us are two petitions. The first is the petition submitted by Member of Knesset Amnon Rubinstein, Member of Knesset Chaim Oron, and others (HC 3267/97). The second is that of Major Ressler (Res.) et al. (HC 715/98).  The first petition asks that the Defense Minister to show cause why he should not establish a maximum reasonable quota of Yeshiva students who are granted a deferral of military service. The second petition asks the Minister to show cause why he does not lack the authority to defer Yeshiva students’ enlistment into regular military service. Both petitions describe the situation regarding the deferral of service for full-time Yeshiva students in the present and the past. Both claim that the existing arrangement violates the principle of equality, deviates from the boundaries of reasonableness, and is disproportionate.  Moreover, the second petition claims that the Minister of Defense does not have the authority to regulate the matter through administrative regulations and that the entire issue ought to be regulated through legislation.

12.  In his response, the Defense Minister noted that he had re-examined the legal framework established in Ressler [1] respecting the exercise of his discretion in deferring full-time Yeshiva students’ service. He opined that the considerations that had motivated his predecessors in exercising their discretion were still valid today, highlighting the following considerations, cited in Ressler [1] which formed the basis for the Defense Minister’s response in that case:

a.  The fact that the Yeshiva students lead an ultra-Orthodox lifestyle, which makes induction into the military difficult, causing them serious problems in adapting to a society and culture, which are foreign to them, and creating difficulties in respecting strict observance of religious precepts. Thus, for example, the ultra-Orthodox do not recognize the Chief Rabbinate of Israel’s certification that food is kosher, while they themselves disagree over recognition of a number of special kosher certifications by various rabbis. Similarly, other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.’s ability to integrate them.

 b. The fact that the entire effectiveness of their military service is placed into doubt, given the psychological difficulties they experience as a result of neglecting their religious studies, and given their special education and lifestyle.

 c. No one can foresee whether the enlistment of thousands of Yeshiva students, who view their enlistment in the military as a blow to the foundations of their faith, which holds that the study of Torah takes precedence over the obligation to serve in the military, will add to the I.D.F.’s fighting power or, heaven forbid, impair its ability. It is by no means certain that enlisting these individuals, even if it serves to increase the military’s power numerically, will not have far-reaching implications for the State's internal and external strength. See HC 448/81 Ressler v. Miister of Defense 36(1) IsrSC 81, 86.

 d. Respect for the spiritual and historical commitment of students and teachers engaged in full-time religious studies to uphold the value of studying Torah.

 e. The desire not to violate the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora.

 f.  Recognition of the deep public sensitivity toward the topic which has embroiled the Israeli public in an ideological debate and of the need for a careful balancing  with respect to a dispute of this nature.

Further on in his response, the Defense Minister noted that having considered the entirety of factors and information within the parameters determined in Ressler [1] with military interests constituting the dominant consideration, and having consulted with the Prime Minister, he had concluded that, in view of the aforementioned considerations, the existing situation did not seriously impair Israel’s security needs. In the Defense Minister’s view, absent national consensus, and in the absence of clarity over whether it would benefit national security, as noted above, the military should not take steps which are liable to have harsh consequences both on the private level and on the military’s organization.

13.  In his examination of the issue, the Defense Minister considered the question that had been raised in the first of the two petitions before us (HC 3267/97), namely, whether there should be a yearly quota limiting those permitted to enter this arrangement.  In his view, at this stage, the current arrangement did not substantially impair security needs and therefore did not need to be replaced by a yearly quota. To this effect, the Defense Minister submitted that setting a quota would, inter alia, entail the establishment of criteria for distinguishing between those worthy of being included in the arrangement and those who are not and who would therefore be drafted in the I.D.F via ordinary enlistment. In view of the considerations underlying the arrangement itself, the Minister felt that prescribing criteria of this nature would raise serious legal and social problems. This being the case, he felt that such a step should not be taken at this stage.

14.  In his response, the Minister undertook to adopt and implement the Yisraeli Commission’s recommendations. To this end, he instructed the various bodies in the Ministry of Defense and the military to work towards subjecting the arrangement to proper supervision, in order to ensure that the deferment was not improperly exploited. In this context, the Minister appointed a team for the implementation of recommendations, which would include the incorporation of the main elements of the arrangement into administrative regulations; the regulation of the undertakings of the heads of the Yeshivas to the I.D.F; submission of affidavits by Yeshiva students; establishment of criteria for recognition of Yeshivas and Adult Studies Institutions (Kollel); increasing the number of reporting dates for young students (ages 18-20) to twice a year and increasing the sanctions against those who breached the arrangement, both by indicting those in breach and by establishing a procedure for revoking the recognition of those Yeshivas failing to comply with the conditions set forth by the arrangement. The Defense Minister stated that following the regulations’ actual implementation, their influence on the number of those joining the arrangement would be reviewed. The Minister further added that the security establishment would continue to keep track of the changes in the number of those included in the arrangement and the various implications of the arrangement, thereby permitting the security establishment to weigh the matter’s influence on state security, and the potential need for establishing a maximum annual quota of those who can benefit from the arrangement.

15.  In their oral pleadings, the attorneys for the sides repeated their basic positions respectively. Adv. Fogelman, who pleaded on the Defense Minister’s behalf, emphasized that his client was chiefly concerned with security. It was in the context of outlining this point that counsel indicated how ineffective imposing military service on full-time Yeshiva students would be. This consideration had figured in the rationale originally underlying the arrangement’s institution, and it remained relevant for the newer reasons justifying the arrangement. At this juncture, Mr. Fogelman mentioned that the Prime Minister had asked that a public commission, headed by Supreme Court Justice (Ret.) Tzvi Tal, convene in order to re-examine the arrangement. Due to the reservations of certain segments of the Ultra-Orthodox community, the proposal was not implemented. We asked Mr. Fogelman whether it would have been appropriate for bodies representing the Ultra-Orthodox population to be represented before us. He responded that the Ultra-Orthodox circles, in general, and the Committee of Yeshivas in Israel, were aware that the petitions were being deliberated, and that had they wished to do so, they could have asked to join the proceedings at bar. The Court asked Mr. Fogelman to call their attention to the pending petition and he undertook to do so.

16.  In his pleadings before this Court, Adv. Har-Zahav (who pleaded on the petitioners’ behalf in HC 3267/97) emphasized that no empirical analysis had been conducted to substantiate the claim that the Yeshiva students’ military service would not be effective. He argued that the population included in the arrangement was not homogenous and that there was no reason why many of them could not serve effectively. Adv. Har-Zahav further noted that the Defense Minister’s position highlighted that the present situation did not pose any significant risk to Israel’s security needs. From this, Adv. Har-Zahav inferred that, according to the Defense Minister’s own opinion, the arrangement does harms security needs, in a way that is not significant. Such insignificant harm is sufficient to justify establishing a quota, as the petition requests. This having been said, Adv. Har-Zahav noted the petitioners' position that the current arrangement does indeed significantly jeopardize security needs.

He contends that the feeling of national solidarity is in fact part of the security ethos. This feeling is deeply wounded by the present arrangement’s discriminatory nature.   Adv. Ressler (who pleaded on the appellant’s behalf in HC 715/98), for his part, similarly highlighted the arrangement’s discriminatory character. He argued that the Defense Minister was by no means authorized to grant draft deferrals to full-time Yeshiva students, and that the existence of a quota was immaterial. He also maintained that, the implication of the Defense Minister’s position is the arrangement does infringe on security needs in a way that is not significant. In his opinion, the Defense Minister bears the burden of proving that the arrangement does not impair security needs. Mr. Ressler once again emphasized that, in his opinion, the arrangement as a whole ought to be enshrined in legislation and not by way of exemptions granted by the Defense Minister. He also noted that this had been the recommendation of the sub-committee of the Foreign Affairs and Security Committee.

The Ressler Case

17.  In Ressler [1] the Court, after establishing that the petition was (both normatively and institutionally) justiciable, held that deferring the enlistment of full-time Yeshiva students was legal. This decision was the product of three interim decisions that the Court had rendered. Each of these “interim decisions” was a necessary link in the chain leading to the conclusion that the Defense Minister’s decision was legal. The first “interim decision” provided that, in principle, all of the arrangements (primary and secondary) relating to the deferral of full-time Yeshiva students’ enlistment could be promulgated via administrative regulations. It was therefore not legally necessary to anchor regulation of this matter in legislation, nor was it legally necessary to anchor these primary arrangements in legislation. The second interim decision was that section 36 of the Defense Services Law constituted a legal source for the regulation of the enlistment deferral for Yeshiva Students. The language of section 36 of the Defense Services Law is as follows:

Authority to

exempt  or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order:

(1)  exempt a person of military age from regular service duties or reduce the period of his service;

(2)  exempt a person of military age from reserve duties for a specific period or absolutely;

(3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

In the second interim decision, the Court held that the enlistment of Yeshiva students was being deferred for both religious and security related reasons, namely, “for reasons related to the size of the regular forces or reserve forces ... or for reasons related to education requirements ... or other reasons.”  The third and final interim decision examined the Defense Minister’s discretion in exercising his authority.  The Court held that the exercise of the Minister’s discretionary powers was “reasonable” and that the balance between the security interest (the dominant interest) and the religious (external to security) interest was reasonable. Each of these three interim decisions was based on a particular social and security reality, as they were presented to the Court. Indeed, the Court itself repeatedly emphasized that its decision was the product of that reality and that a change in the situation could engender a change in the legal conclusions drawn. In my opinion, I stressed that “at the end of the day, there is significance to the number of Yeshiva students whose service is deferred. There is a limit that no reasonable Defense Minister may exceed. Quantity makes a qualitative difference.” Ressler [1] at 505. We have now been presented with a new reality. As we have seen, there has been a significant increase in the number of Yeshiva students whose service has been deferred by reason of their being full-time students (in 1987 they totaled 17,997 whereas in 1997 they numbered 28,772). The percentage of enlistees who had their service deferred in that year was 5.4%. In 1997, they constituted 8% of the number of enlistees in that year. Opposition to the arrangement has continually increased. There is ever increasing antagonism between the population whose sons serve in the military and those whose sons are granted a deferral which ultimately becomes an exemption from service.  It is against this backdrop that old questions reawaken to be examined anew. Is it possible to continue regulating the enlistment deferrals granted to full-time Yeshiva students by way of primary arrangements, which are not based on legislation? Does the authorization stipulated in section 36 of the Defense Services Law constitute a sufficient legal basis for granting deferrals to Yeshiva students?  In view of today’s reality, is the decision to grant service deferrals to full-time Yeshiva students still a reasonable one? Each of these issues engenders a host of difficult legal questions. In light of the conclusion I have reached in this case regarding the first issue, namely whether the arrangement to defer the enlistment of full-time Yeshiva students must be enshrined in legislation, I may leave the other two questions to be decided at a more opportune time. Having said this, I will now proceed to examine the critical question at bar.

Statutory Enshrinement of Primary Arrangements Regarding Enlistment Deferrals

18.  May the entire arrangement regarding enlistment deferrals granted to full-time Yeshiva students (“for whom Torah is their calling”) be premised on the Defense Minister’s general prerogative, by virtue of the Defense Services Law, without specifying the principles and scope for the regulation of such a deferral in the statute itself? Can the Defense Minister be endowed with the authority to decide this matter, without the Knesset having addressed the issue (beyond the general authorization provided under section 36 of the Defense Services Law to defer service for “other reasons”)? As noted, this issue arose in Ressler [1] where I stated:

…by virtue of the Rule of Law, it is proper that ‘primary arrangements’ be set forth explicitly in legislation and that the administrative agency not be endowed with the general authority independently to determine primary arrangements.

Ressler [1] at 502.

 

To this I added:

…it is desirable, pursuant to the principles of a “true, democratic, parliamentary regime” that the Knesset adopt an explicit position regarding the issue of draft deferrals granted to Yeshiva students, and not satisfy itself with the Defense Minister’s general and sweeping empowerment to grant service deferrals “for other reasons” …

Id.

 

Even so, I averred to the fact that it could not be said “that the Knesset’s abstention from setting forth primary arrangements and from imposing supervision on the Defense Minister’s arrangements invalidates [the Defense Minister’s] general empowerment to this effect…” (Id.). I was confident that “having determined that ‘other reasons’ may serve as grounds for deferral of defense service, the Legislature by this very fact empowered the Defense Minister to determine what those other reasons are” (Id.).  Do these conclusions retain their validity in view of a new reality? In order to answer these questions, consideration must be given to the legal principle regarding the establishment of primary arrangements in legislation. In light of the scope and power of this principle, its application must be examined with respect to the issue of granting draft deferrals to full-time Yeshiva students. We will now proceed to examine each one of these issues.

Establishment of Primary Arrangements in Legislation

19. A basic rule of public law in Israel provides that where governmental action is enshrined in a regulation or an administrative guideline, then the general policies and basic criteria constituting the basis of the action must be established in legislation, pursuant to which the regulation was enacted or the administrative decision adopted. In more “technical language," - under this basic rule, “primary arrangements” that determine general policy and the guiding principles, must be enshrined in statute (Knesset Legislation), whereas regulations or administrative guidelines must only determine “secondary arrangements.” See I. Zamir, Chakika Minhalit: Michir Hayieelut [Administrative Legislation: Price of Efficiency (hereinafter – Zamir, “Administrative Legislation” [78]); 2 A. Rubinstein, Hamishpat Haconstitutzioni shel Midinat Yisrael [Israeli Constitutional Law] (hereinafter - Rubinstein [72]) at 803.  Professor Klinghoffer also made this point:

... every administrative act, whether by force of administrative regulations, or even an individual act, must, as far as its basic contents are concerned, be prescribed by a statutory norm. In this sense, it can be said that in a state governed by the Rule of Law, the authority to set forth primary arrangements rests with the Legislature, whereas the administrative agencies are entitled to prescribe secondary arrangements alone, within the statutory framework.

Y.H. Klinghoffer, Shilton Hachok Vichakikat Mishneh [Rule of Law and Administrative Regulations (hereinafter - Klinghoffer [79]) at 108.

 

Acting President, Justice Shamgar, cited these comments, adding:

In terms of the desired legislative policy for the division between the legislature and the administrative agency, I concur with Prof. H. Klinghoffer’s position ...

HC 337/81 Miterani v. Minister of Transportation (hereinafter - Miterani [2]) at 357.

 

In this spirit, the Courts repeatedly emphasized that primary arrangements must be determined by the Knesset whereas the administrative agency must, for its part, deal with secondary arrangements. See HC 266/68 Municipality of Petach Tikvah v. Minister of Agriculture (hereinafter – Petach Tikvah [3]); CA 524/88 “Pri Ha’Emek” Cooperative Agricultural Society Ltd. v.  Sdeh Ya’akov Workers’ Village of HaPoel Mizrachi, Agricultural Cooperative Settlement (hereinafter – Pri Ha’Emek [4]), at 552. My colleague, Justice Cheshin, similarly noted:

“Primary arrangements” must find their place in statute (Knesset Legislation) ... regulations are not, in principle, designed for anything other than the implementing statutes. This is the pillar of fire, this is the pillar of smoke that illuminate our path by night and by day, and by its lead we shall follow.

 

HC 2740/96 Shansi v. Diamond Comptroller, (hereinafter - Shansi [5]) at 504.

In the same vein, I commented in another case:

[I]t is also appropriate ... that the legislature establish primary arrangements and leave secondary determinations to administrative authorities … this is how a constitutional democracy operates …

HC 5016/96 Horev v. Minister of Transportation (hereinafter - Horev [6]) at 75-76 {[1997] IsrLR 149, 233)}.

 

We will refer to this as the basic rule regarding primary arrangements.

20.  The reasons underlying this basic rule are threefold: the first is enshrined in the doctrine of Separation of Powers. See B. Schwartz Administrative Law (1989) (hereinafter- Schwartz [90]), at 43; Mistretta v. United States [54] at 371.  According to this doctrine, the enactment of statutes is the province of the legislative branch. “There is no legislature other than The legislature, exclusively endowed with the power to legislate” (as per Justice Silberg, CrimA 53/54 Eshed, Temporary Transportation Center v. Attorney General [7] at 819).

In Israel, this principle has found expression in the Basic Law: The Knesset, which provides that “the Knesset is the House of Representatives of the State” (sec. 1). It is “the Legislature” (sec.1 of the Transition Law, 1949) and the “Legislative Branch” (sec.7(a) of the Government and Judiciary Ordinance, 1948). HC 3806/93 Manning v. Minister of Justice [8] at 425.  It is by virtue of this principle that the power to legislate is vested in the Knesset. Indeed, a strict understanding of this principle would necessarily mean that the Knesset cannot delegate any kind of legislative power to the executive branch.  This, in fact, was the United States Supreme Court’s position in the nineteenth century, holding that the legislature had received its mandate to legislate from the people and was therefore not authorized to delegate that mandate to anyone else. Schwartz [90] at 43. This strict approach is no longer accepted in the United States or in Israel, for that matter. Modern reality, particularly that of the welfare state, required broad delegation to the executive authority for the performance of legislative acts. See President Shamgar’s remarks in CA 825/88 Association of Israeli Soccer Players v. Israel Soccer Association [9] at 105. This also fostered flexibility in such arrangements and allowed for the possibility of introducing changes according to the needs of the time and the place. See 1 B. Bracha  Mishpat Minhali [Administrative Law] (hereinafter – Bracha, Administrative Law [73]) at 82.

Thus, Professor Zamir correctly pointed out that “the legislative branch … is incapable of legislating all of the legislation required for implementing the duties that it imposes on the executive branch with the requisite speed and expertise. This is especially true in Israel, where there are exceptional requirements relating to national security, immigrant absorption and building the national economy. The public good necessitates exceptional powers for all of these.” 1 I. Zamir, Hasamchut Haminhalit [Administrative Authority] (hereinafter – Zamir Administrative Authority [74]) at 68. The doctrine of separation of powers is thereby faced with the “dilemma between the desire to restrict the power of the administration and the need to allow it to exercise such power in order to achieve social goals as efficiently as possible.” Y. Dotan, Hanchayot Minhaliot [Administrative Guidelines] [75] at 310. The solution is found in many and varied avenues. Within these, we find the notion that in order to maintain the authority for administrative regulations in the hands of the executive, we must not relate to [this authority] “as to an evil that must be combated, or even as a necessary evil, but rather as a positive phenomenon that helps society advance.” Zamir, “Administrative Legislation” [78] at 65. Some of those measures do not relate to the petitions before us, but rather to the approach that requires Knesset ratification of administrative regulations. See B. Bracha, Chakikat Mishneh [Administrative Regulations] [80] at 413; B. Bracha, Likrat Pikuach Parliamentary al Chakikat Mishneh [Parliamentary Supervision of Administrative Regulations] (hereinafter – Bracha, “Parliamentary Supervision” [81]) at 392. See also, on the broadening of the bases for judicial review of administrative regulations, A. Barak, Pikuah Batei Hamishpat al Tichikat Mishneh [Judicial Supervision Administrative Regulations] [82] at 465. One of the means found to be appropriate for this purpose allows for administrative legislation, while increasing the legislative branch’s supervision by way of its own legislation regarding administrative regulations enacted by the executive branch. It is within this framework that an approach developed by which the vesting of legislative authority in the executive branch is permitted, provided that the legislative branch itself establishes the fundamental parameters within which the executive authority can legislate. This point was made by Justice Rehnquist who stated:

... the most that may be asked under the separation-of-powers doctrine is that Congress lay down the general policy and standards that animate the law, leaving the agency to refine those standards, “fill the blanks” or apply the standards to particular cases.

 

Industrial Union Dept. v. American Petrol. Inst. (1980) [55] at 675.

 

From this derives the rationale – enshrined in the modern understanding of the doctrine of separation of powers – which lies at the heart of the rule according to which legislation empowering the executive branch to perform legislative or administrative acts must establish the primary arrangements by virtue of which the administrative agencies act.  “[I]f the Knesset is indeed the ‘legislative branch’ then empowerment for administrative regulations which implement the basic principles and guidelines (primary arrangements) established in the legislation, is consistent with this principle.” 2 A. Barak, Parshanut Bimishpat [Interpretation in Law] (hereinafter – Barak, Interpretation in Law [76]) at 528. On the other hand, if the legislation empowers the administrative agency to establish primary arrangements without any directives or guidance, the doctrine of separation of powers is violated. “When the Knesset is divested of its legislative cloak and transfers it to the expertise of the public administration, it severely undermines the principle of the separation of powers.” Bracha, “Parliamentary Supervision” [81] at 395. To this effect, the Constitutional Court of Germany expressed itself in a similar vein:

If [a statute] does not adequately define executive powers, then the executive branch will no longer implement the law and act within legislative guidelines, but will substitute its own decisions for those of the legislature. This violates the principle of the separation of powers.

 

8 BverfGE 274 (1958) [67] (trans. D.P. Kommers) in The Constitutional Jurisprudence of the Federal Republic of Germany (hereinafter – Kommers [91]) at 138.

 

21.  The second reason for the basic rule regarding primary arrangements is rooted in the Rule of Law. This principle is a complex one, with many different aspects. See Rubinstein [72] at 227. One of its numerous dictates is that legislation must establish guidelines and principles according to which the executive branch must act. Legislation must establish primary arrangements, and administrative regulations and individual acts must deal with implementation. This point was made by Professor Klinghoffer, who wrote:

We must distinguish between the concept of administrative legality, which is satisfied by formally binding the administration to the law, and the concept of specific legality, necessary for the realization of the Rule of Law. This latter concept signifies the maximum binding of the administration through the law ...

 [T]he Rule of Law ... does not permit the Legislature to waive its power to establish primary arrangements in favor of the administration - in other words to delegate this power.  Any transfer of that power to an administrative authority conflicts with the Rule of Law. Where the Rule of Law reigns, the Legislature is not at liberty to choose between options, in other words to personally bind the administration by establishing primary arrangements or to empower the administration to perform this legislative work in its stead. It is incumbent upon the Legislature to establish these arrangements itself. The Rule of Law dictates that the principle elements of any administrative act be anchored in primary arrangements set forth in the formal statute, and that the determination of those arrangements is within the exclusive authority of the legislature and cannot be transferred to administrative agencies.

Klinghoffer [79] at 108.

 

Prof. Zamir made similar comments:

[T]he Rule of Law requires that the legislature itself establish principles, primary arrangements, whereas the administration is only empowered to legislate the details for implementing the primary arrangements.

Zamir, “Administrative Legislation” [78] at 70.

 

This approach is not restricted to academia. It has been adopted by the case law. Hence, my colleague, Justice Cheshin noted:

The Rule of Law, in its substantive sense, instructs us that primary arrangements must find their place in the laws of the Knesset; regulations are in principle intended for the implementation of the laws only.

Shansi [5] at 504.

 

I too made this point in one of the cases:

“[T]he Rule of Law, in its substantive sense … means, inter alia, that legislative arrangements will ensure an appropriate balance between individual rights and public needs. In the realm of administrative regulations, this justifies the legislation being established by the legislature, not by the secondary legislature ...” Pri Ha’Emek [4] at 553.

This approach is not a new one. It is part of the fabric of Supreme Court rulings since the establishment of the State. Justice Olshan’s famous comments in this respect are well known:

[W]ere we to turn down the petitioner’s request we would become accomplices in rendering the Rule of Law governing the state a dead letter. The fundamental meaning of [the Rule of Law] is that restrictions ... whose imposition on individual freedom is unavoidable as a means of ensuring that individual freedom does not violate the freedom of others or the interests of society ... must be established by the Legislature, in other words, by the society that expresses its views in the statutes enacted by the legislature that represents it, and not by the administrative agency, whose task is limited to the implementation of these restrictions, in accordance with the said statutes.

HC 144/50 Sheave v. Defense Minister [10] at 411.

 

In another case, Justice Olshan emphasized:

[A]ccording to the principle of the ‘Rule of Law,' it is incumbent on the Legislature himself to determine and specify in the law, those cases in which licenses are to be granted or refused, while it is for the executive branch only to ensure the execution of those legal provisions. Accordingly, the legislative task must be discharged so that the citizen can find the answer in the law itself as to what is permitted and what is forbidden, and without being dependent on the discretion of the executive branch. However, as a result of the change of the social order in our generation and state intervention in all areas of life, not only in our state, the legislature is unable to foretell each and every case and to enact provisions in the law for each specific case. Consequently, the legislature satisfies itself with the determination of the general principles (though this is not always done).  The details and the modes of implementation of the general principles in each particular case are transferred to the discretion of the empowered branch; in other words, the Legislature confers the empowered branch with the authority to supplement that which was left out by the Legislature …

 HC 113/52 Zaks v. Minister of Trade and Industry [11] at 702.

 

Thus, the Rule of Law signifies that primary arrangements and standards will be provided by statute, whereas the administration’s role is to implement these primary arrangements by establishing secondary arrangements and methods of implementation. In the words of the New York Supreme Court:

Without such standards, there is no government of law, but only government by men left to set     their own standards, with resultant authoritarian possibilities.

Rapp v. Carey (1976) [56].

 

The Constitutional Court of Germany also made this point, stating:

“The basic tenets of the rule of law require that an empowering statute adequately limit and define executive authorization to issue burdensome administrative orders according to content, subject matter, purpose and scope ... so that official action [will] be comprehensible and to a certain extent predictable for the citizen.”

8 BVergGE 274 (1958) [67] in Kommers [91] at 138.

 

22.  The third reason for the basic rule targeting primary arrangements is rooted in the notion of democracy itself. See D. Schoenbrod Power Without Responsibility [92] at 14. Justice Cheshin wrote that “the democratic principle as such permeates the entire Israeli legal system, becoming part of the genetic code of all of the binding norms in Israel.” HC 7351/95 Nevuani v. Minister of  Religious Affairs (hereinafter- Nevuani [12]) at 121. This reason essentially parallels the first and second reasons, both of which also derive their vitality from the nature of democracy; however, it also emphasizes an additional aspect. This is the aspect of democracy itself. Democracy is a complex concept, based on two central tenets: the will of the people as expressed in the principle of representation and basic values such as the Rule of Law and the Separation of Powers. At the center of these values lies the idea of human rights. Indeed, “democracy is not merely formal democracy ... in which decisions are adopted according to majority will. Democracy is also substantive democracy ... in which the majority cannot suppress human rights.” Horev [6] at 45. The basic rule regarding primary arrangements derives its vitality from both these tenets of democracy. According to the first, democracy signifies the rule of the people. In a representative democracy, the nation chooses its representatives, who act within the context of its parliament. See C. Klein, Al Hahagdara Hamishpatit shel Hamishtar Haparliamentary vi’al Haparliamentarism Hayisraeli [Legal Definition of Parliamentary Regime] [83]. The people’s elected representatives must adopt substantive decisions regarding State policies. This body is elected by the nation to pass its laws, and therefore benefits from social legitimacy when discharging this function. See B. Aktzin, Torat Hamishtarim [Theories of Government[ [77] at 239, 244.  Hence, one of the tenets of democracy is that decisions fundamental to citizens’ lives must be adopted by the legislative body which the people elected to make these decisions.  Society’s policies must be adopted by the legislative body, as echoed by Justices Sussman and Witkon, who wrote:

Administrative regulations regarding principled, cardinal matters, by force of an empowering law, is liable to lead us to a formal democracy only. A real parliamentary democracy requires that legislation be promulgated in the Legislature.

Petach Tikvah [3] at 831.

 

In this vein, Justice Brennan similarly noted:

Formulation of policy is a legislature’s primary responsibility, entrusted to it by the electorate, and to the extent the Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people.

 

United States v. Robel (1967) [57] at 276.

 

A similar approach was taken by Justice Rehnquist who explained that in the United States, the delegation of legislative power to the executive branch was contingent on the standards being set out in legislation, because this requirement “ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will.” Industrial Union Dept. [55] at 685; See also American Textile Mfrs. Inst. v. Donovan (1981) [58] at 543.

Professor Tribe expressed the same idea:

 [B]road delegations are politically objectionable because, by enabling Congress to pass the buck on hard choices, and to leave such choices to administrative or executive processes less open to inputs from affected groups, such delegations may short-circuit the pluralist process of interest accommodation usually structuring legislative decision making.

L.H. Tribe, American Constitutional Law [93] at 365.

 

The Constitutional Court of Germany adopted a similar approach, noting that it is the legislature that must decide which interests justify the violation of individual freedoms. The Court added:

The democratic legislature may not abdicate this responsibility at its pleasure. In a governmental system in which the people exercise their sovereign power most directly through their elected Parliament, it is rather the responsibility of this Parliament above all to resolve the open issues of community life in the process of determining the public will by weighing the various and sometimes conflicting interests.

33 BVerfGE 125 (1972) [68] in D.P. Currie, The Constitution of the Federal Republic of Germany (hereinafter- Currie [94]) at 132.

 

In another case, the Court wrote:

In a free democratic and constitutional system, [P]arliament has the constitutional task of enacting laws. Only Parliament possesses the democratic legitimacy to make fundamental political decisions. To be sure, the Basic Law approves of a 'delegated' legislation by the executive. However, the executive can legislate only within limits that the legislature prescribes. Parliament cannot neglect its responsibility as a legislative body by delegating part of its legislative authority to the executive without beforehand reflecting upon and determining the limitations of those delegated powers. If the legislature does not satisfy this requirement, then [it] will shift unfavorably the balance of powers presupposed by the basic law in the area of legislation.

34 BVerfGE 52 (1972) [69] in Kommers [91] at 145, 147.

Thus, the nature of representative democracy clearly demands that administrative regulations and administrative provisions of the executive branch be rooted, both formally and substantively, in legislation, enacted by the legislature. Indeed, the Legislature cannot transfer fateful and difficult decisions to the executive authority without first guiding its path. Even if elected directly by the people, as is the case here of the Prime Minister, the role of the executive, as indicated by its appellation – is to execute. Prof. Zamir was correct in writing that:

As a matter of principle, it is preferable that, where the circumstances permit, the Legislature set forth the general principles and primary arrangements itself, and not leave this to the enactor of regulations.  The democratic regime, according to its very essence, requires that the general principles that determine the people’s lifestyle be determined as a rule in legislation, by the Parliament and not through administrative regulations enacted by the public administration.

I. Zamir, Hanchayot Hayoetz Hamishpati Lamemshala – Chakikat Mishneh, Nohel Vihanchaya [Attorney General  Guidelines] (hereinafter – Zamir, “The Attorney General’s Guidelines” [84]) at 345.

 

In another place, he writes:

[T]he Knesset is not able and probably should not deal with the details regarding the implementation of general principles, especially when setting forth such details requires special expertise, [when these details may be] subject to frequent changes, or when they must be established with relative speed. However, the Knesset can, and indeed must, discharge its central function, in the absence of which it loses its raison d'etre. This is the role of establishing general principles by way of statute. If the Legislature for any reason abdicates this task, it betrays its duty, undermines its very existence and furthermore, removes the basis for the regime’s democratic character. A regime in which the legislative branch transfers its legislative role in establishing general principles to the public administration remains a democracy in name and image only, and not in practice.

Zamir, “Administrative Legislation” [78] at 70.

 

This is an approach that attempts to preserve the status of the Knesset and the status of the democratic principle of representation upon which it is based. It is not restricted exclusively to the requirement that primary arrangements be determined via legislation. The desire to preserve the elevated status of the Knesset is of general application. “… we are duty-bound to take care not to overstep our bounds and enter the Knesset’s territory. We must take heed that our behavior be commensurate with democratic theory.” See Justice H. Cohn in Petach Tikvah [3] at 833. Hence this Court ruled, per Justice S. Levin, in respect of Emergency Regulations, that “where there is a possibility of regular, prompt legislation by the Knesset, then the legislative authority of the executive branch is usurped, because, as a matter of principle, the authority to enact emergency regulations should be used only where there is no possibility of waiting for the regular legislative procedures of the Knesset.” HC 2994/90 Poraz v. Government of Israel [13] at 322. Similarly, regarding the legality of raising pigs in Israel, Justice Berenson wrote:

Conceivably, attaining this goal is politically and nationally desirable as its advantages, from that perspective, outweigh the purely economic disadvantages presented by the petitioners. However, there are doubtless many who regard the government’s actions as religious coercion, at least indirectly. Either way, it is not for us to express an opinion on the matter. Nor is it the respondent's task to resolve religious national dilemmas using administrative tools conferred upon it for entirely different purposes and goals ... the problem is a national problem and not a local one, the solution to which is in the hands of the Legislature which is empowered, if it deems it necessary, to restrict individual freedom…

HC 98/54 Lazarovitz v. Food Supervisor of Jerusalem [14] at 56.

 

Similarly, it was determined that restrictions or prohibitions on freedom of religion or freedom from religion of citizens of the State must be anchored in legislation. In this matter, my colleague, Justice Or, wrote as follows:

The issue is the possibility of violating rights included in the charter of the most fundamental and sensitive of basic rights, the rights to freedom of religion and conscience. It is therefore proper that the Legislature decide them. The reason for this is that only the Legislature can express the optimal consensus that accommodates the coexistence of people of different religions and different beliefs.

HC 3872/93 Mitral Ltd. v. Prime Minister and  Minister of Religious Affairs (hereinafter – Mitral [15]  at 498.

 

In the same vein, my colleague Justice Cheshin, wrote in that case:

[R]eligious commandments cannot be forced upon those who are not observant and those who are not interested in fulfilling religious commandments; no coercion, either direct or indirect, is possible, except according to statutes enacted by the legislature, the Knesset. The doctrine of separation of religion and state is part and parcel of the legal system. It is only by way of Knesset statute - on the national level, that the fulfillment of religious commandments can be imposed ...

Id. at 507.

 

Although the case at bar is unrelated to emergency regulations and does not regard matters that have been discussed in the judgments cited, the common denominator of all these cases is the understanding that there are certain issues that can be determined by the legislative branch alone. It represents the people, is elected by them for that purpose, and therefore has the power to choose the most appropriate alternative to advance, among the various paths available.

23.  The second tenet on which democracy is based (in the substantive sense) is a regime of values, including the doctrine of Separation of Powers and the Rule of Law, as noted above. There is also a third and central value, namely human rights. These three tenets are closely interrelated. Separation of powers is not a value in its own right, nor is it intended to ensure efficiency. The aim of the separation of powers is to increase freedom and prevent the concentration of power in one sovereign authority in a manner liable to violate individual freedom. To this effect, Justice Brandeis noted:

The purpose was, not to avoid friction, but, by means of the inevitable friction incident to the distribution of governmental powers among three departments, to save the people from autocracy.

Myers v. United States (1926) [59] at 293.

 

The same can be said for the Rule of Law. This principle is not only intended to ensure the administration’s legality; it seeks to protect individual liberty, as Prof. Klinghoffer elucidates:

In view of the Rule of Law’s historical development, democracy was not its chief aim, but rather a means of achieving another principle aim - ensuring individual liberty.

Klinghoffer [79] at 107.

 

Hence, human rights form the central tenet of democracy. There can be no democracy without human rights. There is no democracy where the majority illegally deprives the minority of its rights. Obviously, human rights are not absolute. A democracy (in the substantive sense) is entitled to violate human rights in order to attain its objectives, provided that the violation is prescribed by law; promotes the values of the state; is for a worthy purpose and does not exceed that which is necessary. See sec. 8 of the Basic Law: Human Dignity and Liberty); sec.4 of the Basic Law: Freedom of Occupation, and also CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village (hereinafter – United Mizrahi Bank [16]). This sensitivity to human rights leads to the conclusion that the violation of human rights, even when it promotes the values of the state, is for a worthy purpose and does not exceed that which is necessary, must be prescribed by a law specifying the primary arrangements. Indeed, one cannot be satisfied with the formal delegation of legislative authority to the executive branch. Hence, the requirement that primary arrangements be set forth in legislation and administrative regulations, or administrative orders concerning implementation, is anchored in the need to protect individual liberty. Indeed, in a democracy, it happens that the violation of individual rights is [at times] necessary for the realization of the general interest. Even so, the requirement is that this violation, even if justified, must be enshrined in legislation and not delegated to the executive branch itself. See Schwartz [90] at 61. One American case considered a statute that allowed the executive branch to issue or refuse to issue a passport to a citizen. The Court held that this constituted a violation of individual freedom. Such a violation was possible only if the violating statute, and not the executive power, established the basic criteria for exercising that authority. Justice Douglas wrote the following:

The right to travel is a part of the “liberty” of which the citizen cannot be deprived without due process of law under the Fifth Amendment ... If that “liberty” is to be regulated, it must be pursuant to the law-making functions of the Congress ... And if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests.

Kent v. Dulles (1958) [60] at 125, 129; See also Shuttlesworth v. Birmingham (1969) [61].

 

The Canadian Supreme Court adopted a similar approach. According to the Canadian Charter of Rights and Freedoms, protected human rights may be violated only where the conditions prescribed by the Canadian limitation clause (sec. 1 of the Charter) are met. Among these is the condition that the restriction be “prescribed by law." It was held that the import of this provision is that the fundamental and basic criteria must be set forth by statute. See P.W. Hogg, Constitutional Law of Canada [95] at 862. The upshot is that conferring authority to violate a protected human right is permitted, provided that this is done within the framework of the criteria established in the legislation. To this effect, Justices  Dickson, Lamer, and Wilson wrote the following:

Where there is no intelligible standard and where the legislature has given a plenary discretion to do whatever seems best in a wide set of circumstances, there is no limit “prescribed by law.”

Irwin Toy Ltd. v. Quebec (1989) [71] at 982.

 

A similar approach was taken by the European Court of Human Rights. The Sunday Times v. The United Kingdom (1979) [64] at 270; Malone v. United Kingdom (1984) [65] at 40; Leander v. Sweden (1987) [66]. This was also the path taken by the German Constitutional Court. See Currie [94] at 132. In the Constitutional Court’s own words:

Today it is firmly established by the decisions that, without regard to any requirement of an incursion [into individual freedom] in basic normative areas, and especially when the exercise of basic rights is at stake, the legislature is required ... to make all essential decisions itself.

49 BVerfGE 39 (1978) [70] at 126-127.

 

It is therefore clear that the democratic principle in all of its aspects, both in terms of representation and in terms of values, means that fundamental criteria (the primary arrangements) must be enshrined in legislation. Administrative regulations and the individual acts of an administrative agency (secondary arrangements) must implement the fundamental criteria established in the legislation. What are these primary arrangements and how are they determined? We shall now proceed to examine that question.

Primary Arrangements Defined

24.  The basic rule regarding primary arrangements, as we have seen, is that administrative regulations or individual administrative acts, based upon legislation (secondary arrangements), must set forth the manner in which statutes are to be implemented, whereas general policy and fundamental criteria (primary arrangements) must be prescribed in the principle legislation (statute). The reasons supporting the distinction between primary and secondary arrangements also determine the scope of each. Considerations of the Separation of Powers, the Rule of Law and Democracy (in both the formal, representative sense and the substantive sense), means that it is appropriate that legislation, which delegates the establishment of administrative regulations or administrative orders to the executive authority, determine the general plan, so that administrative regulations and implementing provisions can realize that which was set out in principle in legislation. The guidelines for the resolution of crucial issues, which are fundamental to the life of the individual, must be prescribed by statute. Hence, a primary arrangement exists where, on the basis of the law itself, in accordance with its interpretation by accepted interpretative methods, it is possible to infer the parameters within which the executive branch may act, as well as the direction, principles, or purpose that are supposed to guide the executive authority in its actions. To the extent that the regulation of a particular area requires that fundamental decisions which substantially affect the lives of individuals and society be taken, it is appropriate that such decisions be made within the confines of the statute itself. Hence, a primary arrangement exists where the statute itself sets out the principles or standards on a higher level, which must be brought to fruition at a lower level. The level of abstraction of the primary arrangement will change from issue to issue. As far as, and to the extent that the issue is one in which individual freedom is violated, so too the level of abstraction cannot be too high and an arrangement that establishes the nature of the violation and the extent of the violation of freedom enshrined in the legislation will be required. When the object of the regulation is a complex one, requiring considerable expertise, it is quite often possible to satisfy oneself with a very high level of abstraction. See Currie [94] at 42; U. Kischel, “Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law” (hereinafter – Kischel [97]).

25.  At this juncture, two comments should be made. First, the distinction between primary and secondary arrangements is not a sharp one. There is much ambiguity regarding where to draw the line between the two kinds of arrangements. As far back as 1825, the Chief Justice of the United States Supreme Court at the time, Chief Justice Marshall, wrote:

The line has not been exactly drawn which separates those important subjects, which must be entirely regulated by the legislature itself, from those of less interest, in which a general provision may be made and power given to those who are to act under such general provisions, to fill up the details.

Wayman v. Southard (1825) [62] at 19.

 

In a similar vein, Prof. Klinghoffer wrote:

[T]he conceptual border distinguishing a primary arragenment from a secondary arrangement cannot be defined in the general, abstract sense. It depends on the nature and specific nature of the topic being regulated. Hence, the determination of whether a specific arrangement is primary or secondary can only be the product of induction, in accordance with common sense and logic.

Klinghoffer [79] at 122.

 

Prof. Zamir also dealt with this issue, stating:

It is difficult to establish the distinction or border between primary and secondary arrangements. To a certain extent, the two realms merge. Being overly strict about the distinction between these two realms is liable to disrupt administrative action and be detrimental to the public welfare.  Hence, in borderline cases, the question must be answered primarily on the basis of the balance between the administrative needs and public welfare and the degree of violation of the Rule of Law.

Zamir, “The Attorney General’s Guidelines” [84] at 354.

 

Thus, the nature of the arrangement, its social implications, and the degree of violation of individual freedom are all factors that influence the scope of the primary arrangement and the degree of specification required thereof.  Furthermore, the dictates of today’s reality necessitate compromising between principles and the imperatives of everyday life. In a modern democratic regime, it is difficult to fully realize the principles enshrined in primary arrangements. Quite often, compromise is required for reasons of administrative efficiency, in order to ensure public welfare. Even so, as a matter of principle, this does not detract from the power and the validity of the basic rule. Practically speaking, too, there are limits to the permissible compromise. In certain extreme cases the basic rule may prevail over considerations of efficiency, and it is appropriate to invalidate secondary arrangements that lack a statutory foundation (primary arrangements).

26.  Second, in determining the fundamental standards and lines of general policy, cognizance must also be had for leaving the legislature wide room to maneuver. As we have observed, the distinction between primary and secondary arrangements cannot be precisely drawn, because it varies from issue to issue. The reality of life often necessitates a compromise between the basic rule and other considerations, primarily considerations of efficiency.  Indeed, the legislature is familiar with the material, as well as with the extent of its capacity to deal with the material within the temporal confines within which it operates. It also understands the need to delegate the establishment of arrangements that require expertise and professionalism to the executive branch.  One cannot be overly strict with the Legislature in this matter. Occasionally, it is sufficient that the Legislature provide instructions at a high level of abstraction, in which the degree of guidance provided is limited. Such instructions, too, are capable of satisfying the requirements of the basic rule. See A.C. Aman and W.T. Mayton, Administrative Law [96] at 9; Schwartz [90] at 42. The basic rule regarding the establishment of primary arrangements is not primarily designed to negate the authority to delegate power to the executive branch due to the failure to comply with requirements to specify primary arrangements in legislation. The main function of the basic rule regarding primary arrangements is to give a limited interpretation to the delegation prescribed by the legislation. See Kischel [97] at 220-23. Thus, the main function of legal systems in recognizing the cardinal rule regarding primary arrangements is interpretative, as a means of narrowing the scope of authority conferred upon the executive branch. The primary rule is therefore of limited applicability as a constitutional rule that can invalidate statutes authorizing the administrative authority to establish primary arrangements.

The Basic Rule’s Legal Status in Israel

27.  What is the legal status of the basic rule regarding primary arrangements in Israeli law? In this respect, a distinction must be drawn between two periods. The first period, until the enactment of the Basic Laws regarding human rights and their interpretation by this Court in United Mizrahi Bank [16] and the second period, subsequent to the enactment of these laws, as the Court interpreted them in that case.

28.  During the first period, the basic rule regarding primary arrangements was one of the rules of Israeli public law. It formed part of the common law, “Israeli style.” It was first and foremost an interpretative rule. Accordingly, there was an interpretative presumption that delegation of power to enact administrative regulations or orders was delegation exclusively for the establishment of secondary arrangements. See Rubinstein [72] at 361. It was in relation to this interpretative presumption that I wrote:

[W]here power to enact administrative regulations has been delegated to the executive branch, we must presume that this power is intended for implementing those arrangements set out in the legislation. There is therefore a presumption that the power to enact administrative regulations is the power to enact implementing regulations (secundum legem). It cannot be assumed that the purpose of delegating authority for administrative regulations was to empower the administration to enact administrative regulations “external to the law” (praeter legem) or administrative regulations that goes “against the law” (contra legem). Thus, if the Knesset is the legislative branch, only a delegation of the power to enact administrative regulations that implements the basic principles and standards (primary arrangements) established in the legislation is consistent with this principle. Thus, the legislature will be presumed to have authorized the administrative agency to establish principles and standards that are prescribed in the legislation (“secondary arrangements”) only. Needless to say, this is a presumption that may be rebutted.

Barak, Interpretation in Law [76] at 528.

 

This having been said, a concrete expression of this presumption can be found in those cases in which the Court interprets the language of the law against the backdrop of the legal system’s basic principles. These principles include, inter alia, the doctrine of the separation of powers, distinguishing between the power of the Knesset as expressed in the Basic Law: The Government, the Rule of Law and democracy (both formal and substantive). All of these form the statute’s “general purpose," which was given interpretative weight by the Court. See HC 693/91 Efrat v. Director of Population Registrar of the Ministry of the Interior [17] at 769. Even so, this general purpose may be overridden when it conflicts with a particular, conflicting purpose. See HC 953/87 Poraz v. Mayor of Tel Aviv-Jaffa (hereinafter- Poraz [18]), at 329. The Knesset was therefore entitled not to take the basic rule into account, and to reject it. It was authorized to grant the executive branch the power to enact primary arrangements. Thus, Prof. Klinghoffer was correct in stating:

 [I]n the absence of a constitution, the Legislature is omnipotent and therefore entitled to delegate the authority to enact administrative regulations to the administration at its own discretion.  Legally speaking, there is no obstacle in the path of formal delegations.  It is sufficient that the law itself specify certain matters, empowering the administration to legally regulate them, without the statute itself taking any pain concerning their regulation. This path is legally acceptable.

Klinghoffer [79] at 117.

 

In fact, together with the basic rule regarding primary arrangements, the Court also ruled that the Knesset was entitled to delegate the power to determine primary arrangements to the administration. See e.g. HC 122/54 Aksel v. Mayor, Councilors and Residents of the Municipality of Netanya (hereinafter – Aksel [19]) at 1531; Petach Tikvah [3] at 831. Deputy President Justice Shamgar discussed this point, writing that:

“…[T]he boundary that is supposed to limit the administrative agency to setting out secondary arrangements alone is not always adhered to by the legislature itself. However, even though this phenomenon is undesirable with respect to the existence of a substantive rule of law, it does not invalidate the administrative regulations in question per se. The standard for ascertaining the validity of the administrative regulations is prescribed by the legislation, which sets out the areas in which the administrative agency may act, by specifically authorizing acts of administrative regulations in defined areas…” Miterani [2] at 357.

Thus, the Legislature is entitled to ignore the basic rule. It is permitted to empower the executive branch to establish primary arrangements in administrative regulations or in administrative orders. Indeed, an examination of the statutes indicates that there are numerous delegations made by the Legislature to the executive branch for the purpose of determining primary arrangements. See Zamir, “Administrative Legislation” [78] at 70; Bracha, Administrative Law [73] at 94. See also A. Barak, “Subordinate Legislation” [85]. As a result, the interpretative presumption is one that may be refuted.  In effect, it was refuted in all those cases in which the interpretation of the empowering law, in light of its special purposes and other interpretative presumptions, led the Court to conclude that the statute’s overall intention was to empower the executive branch to prescribe the primary arrangements. It was during this first period that the legal consultants of the Government were instructed by the Attorney General to word the bills in a manner that would include the primary arrangements so that the executive branch’s power would be limited to the authority to establish arrangements for implementing the relevant statutes. This point was made by the Attorney General at the time (Prof. Zamir) in a guideline that he issued, stating inter alia:

“It is appropriate that the authors of various bills in the government offices be aware, with respect to any bill, of the proper relationship between legislation and administrative regulations. In this context, the guiding principle is that it is appropriate that the statute itself establish primary arrangements, to the extent that it is possible in accordance with the nature of the subject and under the circumstances, whereas the enactor of the regulations is empowered to establish only secondary arrangements via regulations (in other words – regulations for the purpose of implementation.” Zamir, “Attorney General’s Guidelines” [84] at 346.

Even so, these were guidelines from which the Knesset was entitled to deviate.

29.  So, during the first period, the main question that arose was not whether the Legislature was entitled to empower the executive authority to enact primary arrangements. The clear answer to this question was in the affirmative. During that time, the decisive question was whether the legislature had in fact empowered the executive branch to establish primary arrangements. The answer to this question was found by interpreting the empowering statute. In this context, the crux of the matter was the power of the presumption that the legislature had not empowered the subordinate authority to establish primary arrangements. The key question was therefore, in which cases can one rebut the presumption that primary arrangements must be set out by the Knesset.

30.  The case law did not provide a complete answer to this question. A distinction between administrative regulations and administrative orders that do and do not violate human rights emerged. For administrative regulations and orders belonging to the first category, the presumption regarding primary arrangements was quite weak. This, however, was not the case with respect to administrative regulations and orders that do violate human rights. Here, there emerged a clear position in the case law, which held that where a legislative arrangement violates individual liberty, generally speaking, the empowerment in the legislation must be clear, specific, and unequivocal. This point was made by Deputy President Justice Shamgar with respect to legislation that empowered the administrative agency to violate freedom of occupation:

… empowerment in this context means “express empowerment” and my intention here is only to cases in which the Legislature clearly states that it has empowered the administrative agency to enact regulations that set out prohibitions or restrictions on engaging in a particular profession ...

...      

... in the absence of a constitution establishing the legal status of basic civil rights, there is no restriction on the provisions which may be prescribed by statute (ordinary legislation) (with the exception of a few areas. See e.g. sec. 4 of the Basic Law: The Knesset. Administrative regulations on the other hand, derive their validity exclusively from the empowerment conferred by the legislature. Thus, when the issue relates to imposing restrictions on basic rights, the administrative agency has no authority to act, in my opinion, in those areas except if specifically and expressly authorized by the Legislature to act in the said area by way of restriction or prohibition, respectively ...

Miterani [2] at 358-59.

 

This approach is not strictly limited to legislation empowering an administrative agency to violate the freedom of occupation. As was held in the Miterani [2] case, this approach is a general one, applicable to any case in which the empowerment violates basic human rights. See Aksel [19] at 1531; HC 200/57 Bernstein v. Beth Shemesh Local Council [20] at 268;  HC 124/70 Shemesh v. Companies Registrar [21] at 513; HC 144/72 Lipabski- Halipi v. Minister of Justice [22] at 723; HC 333/85 Aviel v. Minister of Labor and Welfare (hereinafter – Aviel [23]), at 600; Pri Ha’Emek [4] at 561.  Thus, the approach that required specific, clear, and unequivocal authorization in order to empower the executive authority to violate individual freedom was also applied to freedom of expression (CA 723/74 “Ha’aretz” Newspaper Publishing Co. v. Israel Electric Co. [24] at 295; FH 9/77 Israel Electric Co. v. “Ha’aretz” Newspaper Publishing Co. [25] p. 359), to the right to equality (HC 301/63 Streit v. Israeli Chief Rabbinate [26] at 639) and to property rights (HC 249/64 Baruch v. Customs and Duty Supervisor [27] at 489; Aviel [23] at 595). This line of case law led to increased protection of individual freedom. The legislature’s empowerment was generally interpreted as permitting the violation of individual freedom only if its expression was specific, clear and unequivocal, i.e. where the legislation determined that the administrative agency was entitled to restrict a particular occupation. This was interpreted as empowerment for administrative regulations that also included the power to establish primary arrangements. See Miterani [2] at 358-59.       

31.  The second period began with the promulgation of the Basic Laws regarding human rights and their interpretation in the United Mizrahi Bank case [16].  In fact, with the enactment of the Basic Law: Human Dignity and Liberty and the Basic Law: Freedom of Occupation, there was a substantial change in the status of the human rights that were entrenched in these laws.  They received a super-legal constitutional status. United Mizrahi Bank [16]; HC 3914/92 Lev v. Tel-Aviv-Jaffa Regional Rabbinical Court [28] at 503; HC 453/94 Israeli Women’s Network v. Government of Israel [29] at 526; HC 5394/92 Hopert v. “Yad Vashem," Holocaust Memorial Authority [30] at 363; HC 726/94 Klal Insurance Company. v. Finance Minister [31] at 465; HC 1255/94 “Bezeq," Israeli Telecommunications Company, v. Communications Minister [32] at 680; HC 5319/97 Cogan v. Chief Military Attorney [33]; HC 1064/94 Computest Rishon LeTzion (1986) Ltd. v. Minister of Transportation [34] at 814; CA 239/92 “Egged” Transportation Cooperative Society v. Mashiach [35] at 71; HC 4541/94 Miller v. Defense Minister [36] at 110, 131. In fact, following the adoption of the two Basic Laws regarding basic rights and the meaning given to them in United Mizrahi Bank [16] Israeli law was constitutionalized. See F. Raday, Chukatizatzia shel Dinei Haavodah [Constitutionalization of Labor Law] [86]; R. Ben-Israel, Hashlachot Chukei Hayesod al Mishpat Haavodah Vimaarechet Yachasei Haavodah [Implications of Basic Laws for Labor Law] [87]; A Yuran, Hamahapacha Hachukatit Bimisoi Biyisrael [Constitutional Revolution of Tax] [88]; A. Barak, Hakonstitutzionilazatzia shel Maarechet Hamishpat Biakvut Chukei Hayesod Vihashlachoteha al Hamishpat Haplili [Constitutionalization of the Legal System – Criminal Law] [89].  Constitutional rights are reflected (directly or indirectly) in all areas of law. See Lev [28] at 503. In one case, I addressed the meaning of the term “constitutionalization”:

The significance of constitutionalization is that every branch of law and every legal norm is influenced by the constitutional arrangements regarding human rights. The constitutional human rights are reflected in all branches of law and influence every legal norm.

CrimApp 537/95 Ganimat v. State of Israel [37] at 421.

 

And in the United Mizrahi Bank case [16] I stated:

Israeli law has been constitutionalized, and human rights are reflected in all branches of law (public and private) and influence their substance. Whereas in the past human rights were derived from the arrangements extant in the various areas of the law, now the same areas of law are derivatives of the constitutional human rights.

Id. at 447.

 

   These changes affect the legal status of the “basic rule," according to which primary arrangements must be set out in legislation. For the purposes of the case at bar we need not dwell on the entire scope of these changes, for the Defense Minister’s authority at issue is based upon legislation that preceded the constitutional changes, the validity of which is maintained as part of the old law. Hence, we have no need to adopt a position regarding the relationship between the exercise of the Defense Minister’s authority and the rights entrenched in the Basic Laws. Suffice it to note that the constitutional laws respecting human rights fortify the basic rule. This fortification is expressed by an interpretative presumption that the law did not intend to vest the executive branch with additional power to establish primary arrangements. Hence, the statutory power to prescribe primary arrangements in administrative regulations remains in force and its validity is not impaired. New Basic Laws, according to their interpretation in the United Mizrahi Bank case [16] cannot detract from the validity of existing legislation. Even so, in the absence of any contradictory provision, an interpretative effort must be made, where possible, to give this empowerment a restricted interpretation, so that it will be exercised, wherever possible, in a manner consistent with the basic rule governing primary arrangements. In this vein, there are cases in which the executive branch must refrain from making substantive decisions on basic social issues which are the subject of sharp public controversy. It must leave these decisions to the Legislature. For example, the matter of deferring the enlistment of women whose service during a particular year is not required is left to the Defense Minister’s discretion.  The decision will be a pragmatic one, based on the needs of a particular year, as such a decision will not seek to resolve the fundamental issue of the nature of women’s service in the military, which is the subject of a fierce public controversy.  Thus, the Minister is not empowered to adopt a decision by virtue of which women as such, or married women, or women whose religious convictions prevent them from serving in the defense service, are to be exempted from serving in the military.  This is a matter for the Knesset, which must determine, as part of the social resolutions that it is charged with, the State’s position on that matter. Indeed, the Knesset adopted this path regarding the exemption of married women (sec. 39 of the Defense Services Law) and that of women requesting an exemption for reasons of religious convictions (sec. 40).  The same applies to deferral of service for men. Where the considerations [underlying a particular decision] are practical – pragmatic, dynamic – the Defense Minister can make such a decision.  However, when the consideration is one relating to resolving a sharply disputed general social issue, the matter must be dealt with via a primary arrangement in legislation.  More specifically, the position we are adopting does not preclude the executive authority from determining general policies regarding the exercise of its powers. Generally speaking, it is both permissible and desirable that the executive branch set out general guidelines. Our position is simply that there are certain, special issues regarding which the executive authority is not endowed with the power to adopt fundamental decisions on fundamental issues that divide society. There are matters that the Knesset must resolve. Regarding these matters, the executive must be satisfied with determining the policy for implementation. Practically speaking, this means that, in general, the Court will give a limited construction to the powers that the law grants the executive branch. This has been the practice of the Courts in those legal systems in which this basic rule has constitutional status and not just interpretative status. Regarding the approach adopted in the United States, Kischel wrote the following:

 

The question whether a delegation is so broad that its constitutionality becomes doubtful, depends first on an interpretation of the exact scope of the statutorily conferred powers. Here it is of course possible for a court to accept a very broad interpretation, and to then declare even this maximum to be constitutional. Today, however, the Court takes the opposite path. The Court circumvents possible delegation problems by making a narrow interpretation of statutory language, thus using the delegation doctrine as an Ashwander like principle.

Kischel [97] at 222.

 

The Courts in Germany adopted a similar approach. Id. at 232. We, too, have followed this approach, incorporating the law established in Ashwander v. Tennessee Valley Authority (1936) [63]. Accordingly, all legitimate interpretative efforts must be made to avoid a law’s invalidation.  This rule was cited by President Shamgar in United Mizrahi Bank [16] at 350, stating that “when the validity of a law … is being adjudicated, even where there is serious doubt as to its legality, the central guiding rule is that the Court must first examine the possibility of a reasonable interpretation, by which it can avoid having to decide the question."  This Court has practiced this interpretative approach of statutory construction. HC 4562/92 Zandberg v. Broadcasting Authority [38] at 810, 814, 815; HC 7111/95 Center of Local Government v. The Knesset [39] at 496; HC 5503/94 Hofnung v. Speaker of Knesset [40] at 67; HC 5503/94 Segal v. Speaker of Knesset [41]; HC 450/97 Tenufa Manpower and Maintenance Services  Ltd. v. Minister of Labor and Welfare [42].  Needless to say, this approach is possible only where the statute’s language permits such a narrow construction.  The statute’s text cannot be forced, nor can interpretative rules be distorted. However, within the framework of accepted interpretative principles, the interpretative option that is consistent with the basic rule regarding primary arrangements should be selected.

 

From the General to the Specific

The Defense Services Law sets forth the duty of defense service (regular service or reserve service). It establishes the duty’s scope and the modes of fulfilling it. Together with these provisions, it also establishes the Defense Minister’s authority to defer service or grant an exemption. He may do so:

[F]or reasons related to the size of the regular forces or reserve forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement, or the national economy or for family or other reasons…

Sec. 36 of the Defense Services Law.

 

Is the Defense Minister authorized to exercise his authority and grant a deferral to full-time Yeshiva students of the dimension and scope which such deferrals have reached today? This question turns on the division of powers between the legislative and executive branches.  It goes to the issue of whether establishing principles and criteria respecting the social issue of service deferral for full-time Yeshiva students is the Legislature’s exclusive province, a matter that it alone should determine as part of the primary arrangements that it must establish.

33.  The question is not a new one for us. President Landau dealt with it in the petition concerning service deferral for full-time Yeshiva students preceding the Ressler [1] case. In dealing with a request for a further hearing, President Landau raised the issue of  “whether the matter required … a specific statutory resolution, pursuant to a comprehensive debate in the Knesset, precluding its resolution in an administrative decision of the Defense Minister, or by way of a government decision in its executive capacity as part of implementation of a coalition agreement.” He noted that “this is an argument … that, to my mind, is worthy of being heard.” FH 2/82 Ressler v. Defense Minister [43] at 711-12.  This having been said, he did not rule on the issue, for it had not been discussed in the judgment regarding which the petition for a further hearing had been filed, nor was it included in the petition for a further hearing.

34.  Ressler [1] discussed this question. In my judgment, I mentioned that the Rule of Law dictated that “primary arrangements” ought to be specifically prescribed by statute, and that the executive branch should not be endowed with general empowerment to independently establish primary arrangements. Ressler [1] at 502. I added that:

[I]t is desirable that by force of the principles underlying a “true parliamentary democracy,” the Knesset should adopt a specific position regarding the issue of deferring the enlistment of Yeshiva students, and not be satisfied with the general, across the board, empowerment of the Defense Minister to grant enlistment deferrals “for other reasons” …

Id. at 502.

 

This having been said, I emphasized that “I am not convinced that the Knesset’s failure to establish primary arrangements and its failure to supervise the arrangements established by the Defense Minister means that such general empowerment is invalid.” Id. I noted that the “other reasons” need not necessarily be security-related, and they extend to non-security based considerations, which in my opinion also include religious reasons. Id. at 502-03. In a later judgment, I cited Ressler [1], stating:

Our lives are replete with issues that in the past were anchored in administrative regulations but ought to be regulated by legislation. Suffice it to mention the issue of the Yeshiva students’ enlistment in the military.  It was argued before us that the latter issue, being an important one, ought to be regulated in legislation. Even so, we held that the absence of primary arrangements in legislation does not invalidate the administrative regulations in this matter.

Horev [6] at 76.

 

Thus, there is already a previous ruling in this matter.  The question before us is whether the new circumstances, both factual (relating to the increase of the number of Yeshiva students whose enlistment was deferred and the broadened scope of those entitled to a deferral) and legal (the strengthening of the interpretative power of the basic rule), justify reaching a different conclusion. In Ressler [1], the Court stressed that “quantity becomes quality.” Id. at 505. How do all of these affect the question currently confronting us? I will now proceed to examine this issue.

35. My point of departure is that, following the Ressler [1] case, the power granted to the Defense Minister to defer military service for “other reasons” also included the power to defer full-time Yeshiva students’ defense service.  Admittedly, the Defense Services Law does not set forth any criteria regarding how that power is to be exercised. We are therefore confronted with an extreme case of delegation of power to the executive branch, without the legislation containing guidelines for the Defense Minister with respect to the primary arrangements. In interpreting this provision today, I accept that, as a matter of principle, the Defense Minister is entitled to defer the defense service of full-time Yeshiva students. Even so, the exercise of discretion must be done with cognizance of the basic rule concerning primary arrangements. This is an interpretative principle that affects the considerations to be taken into account by the Defense Minister.  The interpretative conclusion dictated thereby is that the scope of the Defense Minister’s discretion is within the framework of the basic rule. He is authorized to grant a service deferral to full-time Yeshiva students, but this decision must be part of a national decision adopted by the Knesset, relating to the State of Israel’s position regarding the disputed social issue of granting service deferrals to full-time Yeshiva students.  A fundamental decision of this nature must be a parliamentary decision, not just a decision made by the Defense Minister. The Defense Minister’s discretion must be exercised regarding these particular issues, within the context of a fundamental Knesset decision.

The National Decision

36.  Granting enlistment deferrals to full-time Yeshiva students is a subject of controversy in Israel, and there is no national consensus on the matter. The dispute is not just between the observant and the non-observant. Within the religious camp itself there are many and varied views.  I referred to this in Ressler [1]:

There are those who maintain that the State could not exist without deferring their enlistment and those who maintain that the State cannot exist without their enlistment. Some see the deferral of their service as a noble act while others perceive it as vile. There is no social consensus on the matter.

Id. at 505.

 

    Far from being exclusively ideological, the rift in question involves a clash between various human rights. On the one hand, there is the ideal of equality, dictating that all of the members of society must contribute equally to its security. The current situation, in which a significant portion of these individuals of service age do not risk their lives for the security of the State is very discriminatory, engendering deep feelings of exploitation amongst those who serve.  Indeed, equality is “the very soul of our entire constitutional regime.” See Justice Landau’s comments in HC 98/09 Bergman v. Finance Minister [44] at 698. It is a principle “that pervades our legal thinking, forming an integral part thereof.” HC 114/78 Borkan v. Finance Minister [45] at 806 (Justice Shamgar’s opinion).  Thus, Deputy President Elon was correct in stating:

[T]he principle of equal rights and obligations for all of the State of Israel’s citizens is part of the State of Israel’s very essence.

EA 2/88 Ben Shalom v. Central Elections Committee for the Twelfth Knesset [46] at 272; See also his opinion in HC 153/87 Shakdiel v. Minister of Religious Affairs [47].

 

In another case, I noted:

 

[E]quality is a basic value in any democratic society, ‘which the law of any democratic society attempts to realize, for reasons of justice and fairness …’ The individual becomes part of the entire social fabric; he or she shares in building the society, in the knowledge that others, too, are acting as he does. The need to ensure equality is endemic to human beings; it is based on considerations of justice and fairness. A person desiring the recognition of his or her rights must recognize the rights of others to seek similar recognition. The need to maintain equality is critical for society and for the social agreement upon which it is based. Equality protects the government from caprice. In fact, there is no factor more destructive to a society than the feelings of its members that they are being dealt with unfairly. The feeling of inequality is a particularly harsh one. It undermines the unifying forces of the society. It damages the personal identity of a human being.

Poraz [18] at 332.

 

On the other hand, we have the rights relating to freedom of religion. This freedom includes, inter alia, the right to fulfill religious commandments and requirements.  It has been argued that the forced enlistment of full-time Yeshiva students may violate their freedom of religion and is liable to offend their religious feelings, which must also be taken into account. See Horev [6].

37.  The issue of enlisting full-time Yeshiva students is not merely an ideological one, in which human rights clash with each other. In Israel, it has become a major social problem. Full-time Yeshiva students whose enlistment has been deferred are not permitted to work. The material opportunities at their disposal and at their family’s disposal are meager, and poverty is their fate.  They are not absorbed into the work force. Even those who leave the arrangement are not absorbed into the workforce, for fear of being drafted into the military, and idleness is the mother of all sin. This creates an entire population, which is not incorporated into the work force, with the subsequent increase in poverty and reliance upon allocations both from the State and private sources.  A social problem of the first degree has thus arisen.

38.  The enlistment of full-time Yeshiva students also creates a complex social-military problem. This problem regards military considerations relating to the integration of these enlistees. Is it desirable for the military to enlist these Yeshiva students? Is it efficient to enlist them? Would it be efficient to enlist some of them, for example those found fit for military service, or those who do not remain in the Yeshiva framework? If we decide that their enlistment is not efficient, then what weight attaches to that consideration when compared with the other considerations, which we dealt with?  Quite frequently, the military enlists draft candidates despite the fact that the expected effectiveness of enlisting them is low, and even particularly low. It does so for a variety of reasons. Should a similar approach be adopted for the issue at bar? Is there any possibility of increasing the effectiveness of their service by preparing special structures for Yeshiva students? Is that effort worth it, in light of the Yeshiva students’ life style?

39.  The solution to these problems is by no means simple, because they raise fundamental social and military problems.  Our approach is that this sort of penetrating national question must be resolved by the legislative branch, the Knesset. This is the only way of expressing “the optimal national consensus that will facilitate communal life ...” See the comments of my colleague, Justice Or, in Mitral [15] at 498. This is the only way of “… examining the issue in all its aspects, considering the different alternatives.” HC 355/79 Katalan v. Prison Authority [48] at 303. Hence, it follows that the Knesset cannot “pass the buck” to the Defense Minister, so to speak. Instead, it must resolve the issue statutorily. This is how a legal system faithful to the doctrine of separation of powers operates, in which the Rule of Law is maintained and where the democratic principle constitutes part of the “genetic code of all of the binding norms in Israeli Law.” See the comments of my colleague, Justice Cheshin, in Nevuani [12] at 121. Needless to say, we do not adopt any position regarding the substantive questions requiring answers, and the enumeration of the various social options does not constitute the adoption of any position as to their legality. Examination of that would be done in accordance with the constitutional framework within which these social arrangements are established.

40.  Is our approach consistent with the Defense Minister’s power to defer enlistment for “other reasons?” Here, we are confronted with an interpretative problem. We must interpret the Defense Minister’s power against the backdrop of the need to bring to fruition, by way of interpretation, the basic rule regarding primary arrangements. Such interpretation leads us to the conclusion that the Defense Minister’s powers ought to echo the difficult social decisions adopted by the Legislature. It is not for the Defense Minister himself to arrogate the power to make this decision. Indeed, the ideological-social problem regarding the enlistment of full-time Yeshiva students and the various solutions thereof must be resolved through the legislative activities of the branch which, in a democratic system such as ours, deals with such problems. This is not the executive branch.  In Israel, it is the legislature.

41.  Is our conclusion consistent with our decision in Ressler [1]? It seems to me that we may answer this question in the affirmative.  In Ressler [1] we emphasized that “quantity becomes quality.” Id. at 505. Since rendering our decision in Ressler [1], the arrangement’s dimensions have expanded, to the extent of becoming a national problem. It was not presented to us as such back in Ressler [1]. Hence, our attention then was directed primarily at the issues of standing and justiciability. The actual problem of enlisting Yeshiva students was not presented to us as a national problem of urgent importance. Since then, there has been an increase in the number of Yeshiva students whose military service has been deferred, and the trend indicates a continued rise.  There is reason to assume that it will continue to increase in the future. There have also been changes in the kind of enlistees who are granted the service deferral.  Hence, the arrangement has been broadened to include those who did not study in a Yeshiva High School, but rather those who studied in a regular religious high school and whose matriculation examinations included Talmud at the level of five units. The arrangement was also broadened to include the newly penitent.  It was further broadened so as to include not only full-time students, but also those whose professions, which were also their livelihood, is teaching Torah.  There is a point at which the large quantity of those included in broad sections of military candidates becomes a qualitatively different category. Furthermore, since our decision in Ressler [1], there has been a substantive change in our conception of our constitutional structure. The basic rule regarding primary arrangements has been reinforced, which in turn affects the interpretation of the power statutorily conferred on the Defense Minister by the Defense Services Law and the understanding of the case law that interpreted that power. The strength of the basic rule has increased together with the interpretative weight attaching to it when interpreting the Defense Minister’s powers. All of these constitute “new circumstances,” which justify a new interpretation of the old power. In any event, I am convinced that the current situation requires the Legislature to adopt a legislative solution, in view of the increasing numbers of full-time Yeshiva students receiving a military service deferral, which ultimately leads to a full exemption. This is done against the backdrop of the rift in Israeli society over the question of the deferral of military service for full-time Yeshiva students; against the backdrop of the legal problems and the serious social and ideological problems at their base; and in view of the need to provide a comprehensive national solution. All of these necessitate parliamentary intervention in order to provide a solution to this serious problem.

42.  We have concluded that the service deferrals for full-time Yeshiva students as currently granted by the Defense Minister are illegal.  In view of this conclusion, it is unnecessary to adopt a position regarding the manner in which the Defense Minister’s discretion is exercised. Suffice it to say that the Defense Minister’s discretion, as evidenced by the factual foundation presented before us, is problematic: it is unclear whether the security consideration is the dominant one, and there is cause for concern that, due to the massive increase of those receiving service deferrals and the addition of new categories of recipients of service deferrals, the zone of reasonableness has been overstepped, in terms of the quantity making quality (Ressler [1] at 505) and in terms of the weight that ought to have been accorded and which was not accorded to the principle of equality. However, as stated, since we have decided that the Defense Minister is not authorized to make a fundamental decision in this matter, we need not address the question of whether he legally exercised his discretion.

The Remedy

43. Our conclusion is that, in the present situation, the Defense Minister exercises his discretion in granting service deferrals to full-time Yeshiva Students in accordance with a principled decision that should be made by the Knesset. Consequently, the current exercise of power is illegal. Accordingly, decisions adopted by the Defense Minister regarding service deferrals for Yeshiva students were illegally adopted. Even so, there is no pragmatic way, overnight, to alter a situation that has endured for so long. The Defense Minister or the Knesset should be allowed to conduct a serious and organized discussion regarding the entire issue and all of its ramifications. Moreover, if a decision to alter the current situation is made, the necessary framework should be established. It is impossible to adopt an alternate arrangement from one day to the next. In these circumstances, there is no way of immediately ruling that the current arrangement is invalid. We must postpone the impat of our decision. With respect to our authority to do so, we mentioned in another case that:

“Our power to postpone the date upon which the declaration of invalidity goes into effect is well founded ... in comparative law. A similar power is given to a court that declares legislation invalid…

...

A similar law applies in Israel. Needless to say, this court will make use of its power to postpone only in special cases that warrant it.” HC 1715/97 Investment Managers’ Bureau v. Finance Minister [49] at 416.

The case at bar warrants the use of the said power. Having considered the period of the delay, we have reached the conclusion that the appropriate period of postponement is twelve months from the day this judgment is rendered, i.e. until December 9, 1999.

Consequently, the matter is decided as per section 43 of the judgment.

Deputy President S. Levin

I agree.

Justice T. Or

I agree.

Justice E. Mazza

I agree.

Justice I. Zamir

I agree.

 

Justice D. Dorner

I  agree.

Justice J. Türkel

I agree.

Justice D. Beinisch

I agree.

Justice I. Englard

I agree.

Justice M. Cheshin

The phenomenon is as old as the State itself. It is the deferral of and exemption from military service granted to full-time Yeshiva students. This exceptional phenomenon has accompanied us over the years and is a source of dissatisfaction for many people. How is it, they ask, that part of the population bears the yoke for the collective, while another part is exempt from bearing that yoke, yet benefits from the burden that others bear on their shoulders? Is this right and appropriate in a society in which all are supposed to be responsible for each other?  Many have not come to terms with this unique state of affairs, and hence, the issue has reached the High Court of Justice.  The Court has addressed petitions regarding the deferral/exemption of military service for Yeshiva students on at least five occasions, each time dismissing the petitioners empty-handed.

2.    In the beginning, the issue was raised in the High Court of Justice in HC 40/70 Becker v. Defense Minister (hereinafter- Becker [50]). That petition argued that 5,000 Yeshiva students had been released from military service. The petitioner requested that he, too, be released from the period of his military service equivalent to the period that had been added to his service, due to the exemption of 5,000 Yeshiva students. The Court did not even trouble the respondent's lawyer to appear before it to explain why certain things had happened and why other things had not happened. Instead, it decided to reject the petition outright, by reason of the petitioner’s lack of standing and the injusticiability of the subject.

Justice Witkon characterized the petition as a “collective public petition,” and for that reason, he held that that there was no cause for addressing it. Justice Witkon stated, inter alia, that the Court must be careful “…not to be dragged into the general, public debate which is entirely a dispute on its own merits. It is preferable that it be left in the hands of the political elements responsible for it … this clearly being a political issue, there is reason to apply a stricter application of the requirement that the petitioner have standing ….” For his part, Justice Y. Kahn concurred with Justice Witkon’s reasoning, adding that “it is well known that the reason given for granting service deferrals to Yeshiva students is the need to preserve the institutions in which Torah is studied, after the destruction of such learning centers during the Holocaust.” Id. at  249.

I confess that, even when the judgment was rendered, it made no sense to me. The statement that the subject is of “a clearly political nature” and that the Court ought therefore to distance itself from it, was as difficult for me to understand then as it is today.  Is serving in the I.D.F. a political issue? Did the Court think that political agreements as such could exempt the youth from serving in the I.D.F.?  Furthermore, had the issue been one of an exemption for 50,000 Yeshiva students, would the Court have maintained its position? And if, in the latter case, a different answer had been given, then does the “character” of the subject change from political to non-political, purely on the basis of the number of those benefiting from the exemption/deferral?  With respect to the (additional) reasoning of Justice Y. Kahn regarding what is termed the preservation of the burning embers [preservation of tradition – ed.], I say that even if we presume that Justice Kahn was correct in assuming that we are charged with the national task of restoring and rejuvenating the Torah Study centers that were destroyed, are we not still justified in examining the propriety of benefiting so many Yeshiva students, 5,000 specifically, by granting the exemption/deferral? Would it not have been appropriate, at least, to hear the respondent's opinion on the matter? We all know that a judgment of this nature could not be handed down today, and personally, I think that even at that time, the judgment was exceptional and extreme.

3.    The issue of granting exemptions/deferrals to Yeshiva students was once again presented to this Court in HC 448/81 Ressler v. Defense Minister [51], and, once again, the petition was rejected. The Court relied on the Becker [50] decision and decided to dismiss the petition for essentially the same reasons that Becker [50] was dismissed. To quote Deputy President Kahn: “In my opinion, the petitioners have not succeeded in establishing their right of standing, which would justify this Court actually deliberating on the petition, which on its face appears to be non-justiciable.” Id.at 86. He added that “…the petition before us cannot be upheld, for its subject is not amongst the matters that can be adjudicated by a Court. The question of whether or not to enlist full-time Yeshiva students is one on which the Court lacks any legal standards upon which to base a judicial finding. Id. at 88. Deputy President Kahn added:

 …even if the petitioners were to prove with signs and wonders (and as I said, I do not think that such proof can be made) that their reserve duty would decrease as a result of the enlistment of Yeshiva students, I would not see this as providing cause for issuing an order nisi. The issue of whether or not to enlist Yeshiva students is essentially a public problem, the resolution of which must be left to the political elements, whose task it is to decide these issues. The arrangement of deferral of service for Yeshiva students has existed since the establishment of the state, and the respondent has not made any significant change in the matter.

Id.

Deputy President Kahn further said:

 The petition clearly evidences an effort to drag this Court into a public-political debate regarding a sensitive and volatile issue, regarding which there are serious differences of opinion in the public at large.  The petitioners cannot succeed, due to their lack of standing, the fact that the subject is non-justiciable, and the fact that they have shown no cause for this Court’s interference with the exercise of discretion that was conferred on the respondent by the legislature.

Id. at 89.

In this case, too, no one was summoned from the State Attorney’s office to explain what (in my opinion) ought to have been explained.  Today we know (from the information provided by the State Attorney’s office) that at that time there were more than 11,500 Yeshiva students who were benefiting from the exemption/deferral.

I confess that I find this ruling particularly difficult, and I found it difficult at the time it was rendered.  I am prepared to agree that the issue is a public, political one. I am also prepared to agree that the issue is sensitive and explosive. I will further agree that the matter is the subject of serious public controversy.  I agree to all of these, but I still find it difficult to understand why those particular factors have the effect of locking the gates of the Court, at a time when it is claimed that the Defense Minister is making arbitrary use of his power and illegally exempting thousands of Yeshiva students from service. Is the statement that the issue is “political” a magic word that closes gates? Can this statement shelter the Defense Minister, allowing him, albeit indirectly, to systematically and sweepingly breach the law, with none of us, the people of the law, having anything to say?  Is there no real legal aspect to the Defense Minister’s activities? The judgment in HC 448/81 [51] was handed down at the end of December, 1981. We all know that no more than six months later, the Yeshiva students’ contemporaries went to war, some of them never to return.

4. The petitioners in HC 448/81 [51] did not give up and requested a further hearing in FH 2/82 [43]. President Landau’s decision signaled a fresh approach. First of all, the President ruled that the petitioners’ locus standi had been proved, even if only for the reason that an “entire additional division” could be created from the aggregate number of draft candidates who benefited from exemptions and deferrals from military service. Even so, President Landau denied the petition due to it not being justiciable, albeit he did so reluctantly. Finally, President Landau mentioned the claim that had been raised, that the issue of the deferral/exemption “required a specific legislative resolution, following a comprehensive Knesset debate” and that “"it could not be resolved via the Defense Minister’s administrative decision nor by a Government decision in its executive capacity, seeking to implement a coalition agreement.” Id. at 711-712. Referring to this claim, President Landau opined that in his view “it ought to be heard,” but that given that there hadn’t been any ruling in the case that was the subject of the further hearing, it could not serve as the foundation of the further hearing. The claim was dismissed, but the seed was planted. Years would pass until the seed would begin to mature, and now it has sprouted from the ground.

5.    Ressler and his companions were not deterred. About one month after the decision in their petition for a further hearing, they filed a new petition: HC 179/82 Ressler v. Defense Minister [52]. However, this petition, too, was rejected due to the petitioners’ lack of standing.

6.    Thus, we arrived at the next Ressler case, namely HC 910/86 Ressler v. Defense Minister, IsrSC 32(2) 441.  This time, the Court held that the petitioners had standing and that the question of exempting Yeshiva students is one that should be heard on its merits. Having reached this conclusion, the Court reviewed the Minister’s discretion, and decided the two following points:  First, that the Defense Minister had been statutorily endowed with the discretion to grant a deferral/exemption to Yeshiva students. Second, that the Defense Minister had not exceeded the zone of reasonableness. At the time, over 17,000 Yeshiva students benefited from the exemption/deferral. We should recall that sixteen years prior to the Ressler case, there were 5,000 Yeshiva students affected, and five years prior thereto, the number of those receiving the deferrals/exemptions was 11,500.   Nevertheless, the Court opined that the number of those receiving releases from military service did not deviate from the statutory parameters established for the Defense Minister’s discretion. Even so, Justice Barak wrote to add the following:

 In balancing the various considerations forming the basis for the Defense Minister’s discretion under section 36 of the statute [the Defense Services Law [Consolidated Version] 1986] the determining consideration must be that of security. It was for that purpose that the Defense Services Law was enacted and some of the exemptions from military service are formulated in that spirit ¼ at the end of the day, there is significance to the number of Yeshiva students whose enlistment is deferred.  There is a limit that no reasonable Minister of Defense may exceed. Quantity becomes quality. In this matter the petitioners have not discharged their burden of showing that the harm to security is not minor.

Id. at 505.

     And further on (at 506-07):

…if the number of those whose service is deferred by reason of Torah study continues to increase until it includes a very large number of men of military age, to an extent that harms security, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be canceled.

President Shamgar added to this (at 525-26):

 ¼what we now determine regarding the legal validity of the arrangement, when it is subjected to substantive judicial review for the first time, does not exempt the Executive from the duty of periodically continuing to examine and reexamine the significance of granting an exemption to increasing numbers of men of military age.

¼ therefore, we are not speaking of static data but rather of facts which change and which are updated on a yearly basis. This means that it is incumbent upon the authorized body to examine the data annually and state its opinion concerning the ramifications of the data, against the background of other considerations.

 When I read the judgment at the time – a judgment that is both brilliant and unique for its addition to the doctrines of standing and justiciability – I had considerable difficulty with it. I asked myself whether an interpretation of the Law, under which the Defense Minister is authorized to exempt over 17,000 youths from military service could be appropriate. Is it appropriate that so much authority be concentrated in the hands of one person, the Defense Minister, even with the Government’s consent, and indeed under its orders?  Is an interpretation of the Law according to which the Defense Minister is endowed with such far-reaching powers consistent with the main principles of a parliamentary democracy, or if you prefer, of a Jewish democratic State?  This question has haunted me, unceasingly, since then, perhaps even from the time of Becker [50].  

Primary Arrangements and the Interpretation of Law

7.    My colleague, the President, rules that, in a social framework governed by the Rule of Law in its substantive sense; in a society in which governmental powers and the power to coerce are divided between the legislative and executive branch; in a society in which human rights are at the pinnacle; in these social-governmental frameworks, first principles unequivocally instruct us that the broad exemption granted to Yeshiva students must be prescribed by statute. I unreservedly concur with the words of my colleague.

            For my part, I will add that this conclusion, which derives from the roots of our society and government, is also mandated by virtue of the Defense Services Law, from the time of its enactment (in 1949 and in its current form, [Consolidated Version] 1986) and from the legal infrastructure upon which it rests. The Defense Services Law [Consolidated Version] rests upon two foundations. The first – the principle that those reaching military age are subject to military service, including both regular and reserve duty.  The second – the principle that the Defense Minister is empowered to grant an exemption from military duty, to reduce the period of service, or to defer service. With respect to all of these, section 36 of the Defense Services Law states:

 

Authority to 

exempt   from or to defer

36. The Minister of Defense may, if he sees fit to do so for reasons related to the size of the regular forces or reserve service forces of the Israel Defense Forces or for reasons related to the requirements of education, security settlement or the national economy or for family or other reasons do the following, by order:

(1)  exempt a person of military age from regular service duties or reduce the period of his service;

(2)  exempt a person of military age from reserve duties for a specific period or totally;

(3)   by virtue of an application made by a person of draft age or a person designated for defense service other than a person of draft age, defer by order for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations hereunder, for registration, medical examination, defense service or, if he has already begun to serve in the defense service, the continuance thereof.

 

To complete the picture, I will cite section 55 of the Law, under which an order pursuant to section 36 of the law can be “personal or for a particular class,” distinct from orders issued under other provisions of the law which can be general, for a particular class, or personal. 

I will also mention section 54(a) (opening section) of the law under which the Defense Minister may delegate his powers under section 36 of the law to another person. The Defense Minister exercised this power and delegated his authority to exempt men of military service from regular service and to reduce or defer the service period for a long list of positions: Assistant to the Defense Minister, the Chief of the General Staff, Deputy Chief of General Staff [… ed.]. All these positions are specified in the notification of delegation of authority published in the Official Gazette No. 202 (Nov. 4, 1997).

8.    We can all agree that the basic duty of men of military age to serve in the military, in regular or reserve duty, must be prescribed by statute. The duty to serve in the military is like the obligation to pay taxes, and we would never agree, nor would it even occur to anyone, to impose it by force of administrative regulations, irrespective of how lofty the executive power creating the regulations may be (obviously this does not refer to emergency legislation). Thus, when it became clear that there was a lacuna respecting men of military age’s duty to serve, this is to say complete regular service for a period of 36 months, the Knesset responded immediately and amended the Defense Services Law [Consolidated Version] and specified in the Law itself that the period of service was 36 months. See Defense Services Law [Consolidated Version] (Temporary Provision), 1995; Bill for Defense Service Law (Amendment 6) 1994; Defense Services Law [Consolidated Version] (Temporary Provision) (Amendment) 1997; A Rubinstein, The Constitutional Law of the State of Israel [72] at 828-29.

Personally, I have found no operative distinction between the general obligation, in principle, to serve in the military and the general exemption, in principle, from service in the military. If the general obligation, in principle, to serve in the military can only be imposed by statute, then a general exemption, in principle, from military service must also find its place in legislation. An example of this is found in section 40 of the Defense Services Law [Consolidated Version] under which an exemption is granted to a woman of military age who declares in writing that reasons of religious conviction prevent her from serving in the military service and that she observes Jewish dietary laws at home and outside and does not travel on the Sabbath.  The same applies to the case at bar. The authority granted in section 36(1) of the Defense Services Law [Consolidated Version] "to exempt someone of military age from regular service, or to reduce the period of service," is no more than the authority to issue individual orders: to Rueben, to Simon, to Levi, to Yehuda. The Defense Minister was not endowed with the authority to issue a general exemption.

The Knesset signed a sovereign order establishing mandatory military service. In signing that order, in essence, the Knesset gave public notification that the cancellation of that order, either partially or completely, was exclusively within its authority. The one who prohibits is the one who can permit [in Jewish tradition – ed.].

9.    Even so, just as we cannot accept that the Knesset can establish a basic obligation of defense service whereas the Defense Minister – and not the Knesset – is endowed with the authority to abrogate that basic obligation either partially or otherwise, so too, for reasons of efficiency, it is inconceivable that the legislature be charged with issuing individual exemptions from military service. Consequently, the Knesset delegated the power to issue personal exemptions to the Defense Minister.  Then, with the Knesset's approval, the Defense Minister delegated this power to various position-holders. However, a normative exemption, an exemption from service to a very large section of the population, is a power that the Knesset reserved for itself. Any other interpretation given to the law will inevitably lead us to the conclusion that all the Defense Minister’s delegates also have the authority to grant a general exemption from military service. It is clear that the Defense Minister is not authorized to delegate normative power to various position-holders, and this interpretation of the law is unacceptable.

10.  The current Defense Minister, like all his predecessors in successive Israeli Governments since 1977, did not take care to ensure that he acted exclusively within the parameters of his statutorily-determined authority. Instead of granting exemptions to Rueben and Simon, to Levi and Yehuda, or having his agents do so, the Defense Minister took the normative step of granting a general exemption to Yeshiva students. The Defense Minister was not authorized to do so, and neither were the Defense Ministers who preceded him. His actions were ultra vires with respect to his legally conferred powers.

Just as the authority to issue general orders does not include the authority to issue individual orders, so too, the authority to issue individual orders does not include the authority to issue general orders.  In this context we wrote in LCrim. 1127/93 State of Israel v. Klein [53] at 510:

…the power to enact regulations must be distinguished from the power to issue individual orders. An agency’s power to enact regulations, as such, does not include the power to issue individual orders. This is certainly true in the reverse situation, to the extent that the power to issue individual orders does not encompass the power to enact regulations. By its very nature and essence, a regulation is a piece of [administrative – ed.] legislation with independent standing, and it is not equivalent to the sum total of individual orders that could have been legally issued during the same period of time. By its very nature, a statutory order carries more weight than any number of individual orders that may be issued from time to time. Consequently, it should be regarded as a single act, which cannot be divided into parts (i.e. individual orders). For the same reason, because the respective nature of the powers is inherently different, the power to issue statutory orders does not include the power to issue individual orders.

11.  To sum up this point: upon closer examination of the exemption/deferral arrangement currently open to Yeshiva students, there can be only one inescapable conclusion: Yeshiva students are granted an automatic exemption/deferral provided that they are full-time students (we are not concerned here with the faulty supervision over compliance with this condition, which is the necessary and sufficient condition for the exemption/deferral). These exemptions/deferrals have the Defense Minister’s blessing (supposedly) in accordance with section 36 of the Defense Services Law when, in fact, this statute does not endow him with the authority to grant the exemptions that he grants in practice. The Defense Minister has the authority to grant individual exemptions from service, but the situation at hand is one in which the Defense Minister is granting a general exemption to Yeshiva Students.  In doing so, the Defense Minister exceeds his authority and the exemptions/deferrals granted are void.

Just as the Defense Minister would not have the authority to exempt “agriculturists” from regular or reserve duty, so too he does not have the authority to create the exemption – deferral for Yeshiva students – that he purports to do. Furthermore, from the arrangement as presented to us, it is clear that the Defense Minister does not consider individual applications for an exemption-deferral. Instead, the arrangement operates autonomously, without the need for anyone’s assistance to implement it. In so doing, the Defense Minister greatly exceeds the authority with which he was endowed.

12.  My position is therefore that a "universal," normative exemption from military service must have a statutory basis, and the Defense Services Law [Consolidated Version] does not empower the Defense Minister to exempt Yeshiva students from military service exclusively by virtue of their being Yeshiva students.

Quantity and Quality

13.  My colleague, the President, states that quantity becomes quality, and the conclusion is therefore that since the last Ressler [1] case, we have progressed from the quantitative stage to the qualitative stage. Personally, the issue of quantity alone is sufficient for me – a small quantity, a medium quantity, and a large quantity. There are quantities that are de minimus and there are quantities that we cannot ignore. It is not the straw that breaks the camel’s back, but rather the burden already on his back prior to that straw being placed there. It would seem that the deferrals/exemptions granted to 17,000 Yeshiva students, as presented to the Court in the last Ressler [1] case, were already too much. However, even if this was not our view, this is definitely the case today with respect to the 29,000 Yeshiva students receiving exemptions/deferrals.

14.  Let me clarify and explain. I did not say, and I will not say, that studying in a Yeshiva is not an appropriate reason for receiving a service deferral.  This was the ruling in the last Ressler [1] case and I accept that view entirely. This would also be the law if it were decided to grant a service deferral in order to enable computer studies, the study of engineering or any other profession that was deemed important to the military and the State.  Both of these are problematic in the case at bar (both theoretically and substantively-legally). First, there is no limit on the number of deferrals granted, whether a priori or post factum. That is how the quantity grew to its current dimensions. Second, the deferrals became, and are in fact, exemptions.  Hence, for full-time Yeshiva students, a priori, the issue is not one of service deferral but rather of exemption from service. "Torah as a way of life" has come to mean and is coming to mean, de facto and ex ante, not just deferral of service but rather exemption from service. The routine has become ingrained, to the point where it has become an accepted way of life

It has reached the point where the exemption-deferral is regarded as an  inseparable, integral part of the life of the society and state, as if the burden of proof lay with those claiming that the Minister of Defense acted illegally, in an ultra vires manner. In our view, the reverse is true.

In the Future

15.  With respect to the future, administrative regulations cannot, in the normative sense, provide Yeshiva students with an exemption from military service. We all agree on this point.  Personally, I will not reach the issue (which we were not asked to decide) of whether legislation passed by the Knesset could exempt Yeshiva students from military service. There are those who would argue (and I will not elaborate) that even a Knesset statute would not be sufficient. It could further be argued that even a Basic Law would not be sufficient. There are limits to the Knesset’s legislative powers (see my comments in United Bank Hamizrachi  [16]). The saving of a life overrides the prohibition on doing work on the Sabbath. Tractate Shabbat [a]. Some say that even when it is uncertain whether a life is at stake, the prohibition is to be overridden. Jerusalem Talmud, Tractate Yoma [b]. We should remember that we are concerned with no less than saving lives.

Justice T. Strasberg-Cohen

I concur with the judgment of my colleague, President Barak, as well as with the comments of my colleague, Justice Cheshin.

Decision of the Court

The Court  ruled in accordance with the judgment of President Barak.

Decided today, December 9, 1998.

 

Ressler v. Minister of Defence

Case/docket number: 
HCJ 910/86
Date Decided: 
Sunday, June 12, 1988
Decision Type: 
Original
Abstract: 

The question raised by this petition to the High Court of Justice involves the legality of the long-standing arrangement whereby students of Yeshivot (Talmudical colleges) are granted deferment of their military service for so long as they continue their full-time studies. This arrangement was instituted as long ago as 1948, and has been reconfirmed by successive Ministers of Defence and governments of Israel ever since. It has been tile subject of a number of earlier petitions to the High Court questioning its legality, all of which were dismissed.

 

The petitioners submitted that they were entitled to bring the question before the Court as being personally involved, in view of the fact that their army reserve service is prolonged as a result of the extensive deferment, amounting to exemption, of Yeshivah students from military service and that the burden of reserve service for them and others in their position would be considerably alleviated if Yeshivah students were recruited into full-time military service.

 

The petitioners argued that the decision of the Minister of Defence purportedly on the basis of section 36 of the Defence Service Law [Consolidated Version], 1986, to defer the full-times military service of Yeshivah students, requires Knesset legislation to give in effect. They also submitted that the decision was ultra vires, was based on extraneous and discriminatory grounds and was totally unreasonable.

               

The High Court ruled as follows:

 

1. The legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced.

 

2.  While the classical rule was that it is not sufficient for a petitioner merely to show that a governmental authority is in breach of the law, without showing prejudice to his own interest, there have developed several important exceptions to this rule, which have the effect of liberalising the rules of locus standi and making them more flexible. Thus, wherever a petitioner can point to an issue of particular public importance or to a serious flaw in the functioning of a public authority, it would only be right for him to bring such a matter to the attention of the Court whose rule is to review the legality of the acts of public authorities. An even more liberal attitude would allow standing to a "public" petitioner in all cases, thus recognising the actio popularis.

 

3.  In the present case, the standing of the petitioners must be recognised both from the point of view of the "classical" approach which requires proof of an interest in the subject matter of the petition, and from that of the more liberal attitudes which either recognise exceptions to the rule requiring establishment of an interest of the past of the petitioner, or dispense with the requirement of "interest" altogether.

 

4. The question before the Court is a constitutional one of primary public importance relating to the rule of law, in respect of which the locus standi of the petitioners is impregnable.

 

5. (per former Deputy President Miriam Ben-Porat): Only where a public authority's action is blatantly unlawful or where an overwhelming important public issue is involved would it be permissible to depart from the basic principle requiring a petitioner to show that he has an interest in the subject matter of the petitioner.

 

6. The concept of locus standi should not be confused with that of justiciability. The former relates to the question how far the petitioner is the right person to bring the particular issue before the Court, whereas the latter relates to how far the issue is one suitable for judicial consideration.

 

7. Two forms of justiciability should be distinguished - normative and institutional justiciability. While normative justiciability answers the question whether there exist legal criteria capable of determining the dispute before the court, institutional justiciability answers the question whether the court is the appropriate organ for such determination, rather than any other organ such as the legislature or the executive.

 

8. All activities, including those of a political nature or matters of policy, are governed by legal norms of one kind or another. There is thus no such thing as a "legal vacuum". Legal norms may be permissive (e.g. "an individual may perform any act, unless it is specifically prohibited") or prohibitive ("governmental entities may not perform any act unless specifically permitted").

 

9. Lack of normative justiciability means in effect lack of cause of action. In most cases, a submission of lack of normative justiciability has to contend with the general legal norm which obliges governmental bodies to act reasonably, and such reasonableness is examined by legal criteria.

 

10. (per Barak J): The argument that, in view of the separation of powers an issue of a political nature must necessarily be determined by a political organ, and is therefore institutionally nonjusticiable, is an erroneous one. On the contrary, judicial review of government activity, even if it is of a political nature, ensures that separation of powers is safeguarded. Indeed, where a political or ideological issue is involved, the judge may not express his personal view, but such issue is still justiciable with regard to its legal aspect, and a court cannot refrain from dealing with it without harming public confidence in the rule of law. Thus, the whole doctrine of institutional and (non) justiciability is highly problematical an is only applicable in special instances where it can be shown that public confidence in the judiciary is more likely to be prejudiced than public confidence in the rule of law.

 

11. (per Shamgar, P.): It is not desirable that all issues concerning governmental activity be referred to the courts, thus depriving other authorities of their proper function. Separation of powers implies a proper balancing of functions between the three powers of government.

 

Justiciability must be examined by the double test of its normative and institutional aspects. The issue of institutional justiciability must be settled by the judge in accordance with his sense of expertise.

 

12. (per Ben-Porat, D.P.): The question of justiciability should be left open for further consideration: predominantly it is a matter of the limits of judicial restraint.

 

13. The question whether a governmental authority is competent to carry out a particular governmental function such as granting deferment to Yeshivah students is normatively justiciable, and is connected with the proper inter­pretation of s. 36 of the Defence Service Law [Consolidated Version].

 

14. In the present case, institutional non-justiciability is inapplicable. Basically, the question whether Yeshivah students should be drafted into the armed forces is a matter of public policy which should be determined by the political authorities. However, the question of the legality of deferment of those students' military service is a legal question which is for the courts to settle.

 

15. The Minister's power to defer military service can only be lawfully exercised on the basis of one of the grounds enumerated in section 36 of the Defence Service Law. In exercising his power, he may take into account considerations other than those relating purely to defence, such as requirements of education, the national economy, family or religious factors, all of which come under the general heading of "other reasons" in the said section.

 

l6.  The Minister must exercise his discretionary power to defer military service in a reasonable manner, allowing appropriate weight to the various relevant considerations. The Court will not substitute its own discretion for that of the Minister, but will confine judicial review to the question whether the Minister of Defence may take into consideration the factor of religion and whether in the circumstances the weight he attributed to that factor was reasonable. The Minister may take the religious factor into consideration, so long as it does not bring about substantial harm to security.

 

17. In Israel, a democratic and pluralistic society, there is no consensus on the issue of military service for Yeshivah students, and this strengthens the view that the Minister can legitimately take the religious factor into consideration when deciding on that issue.

 

18. The petitioners have failed to rebut the presumption of reasonableness of governmental action and so have failed to show that the Minister's action in continuing to allow deferment of Yeshivah students' military service was unreasonable. There is therefore no ground for intervention of the High Court of Justice in the Minister's decision.

 

19. However, the decision on deferment of Yeshivah students' military service ought to be reviewed from time to time in the light of current defence requirements; in the view of Shamgar, P., such review should take place annually.

 

20. (per Shamgar, P.): The fact that the Minister of Defence has acted in this matter consistently with his predecessors in office strengthens the reasonable­ness of his action.

 

Voting Justices: 
Primary Author
majority opinion
Author
concurrence
Author
concurrence
Full text of the opinion: 

H.C.J 910/86

 

1. Major (Res.) Yehuda Ressler, Advocate

2. Captain (Res.) Zeev Kosseen

3. Staff Sergeant (Res.) Rami Dekel

v.

Minister of Defence

 

In the Supreme Court sitting as the High Court of Justice

[June 12, 1988]

Before: Shamgar P., Ben-Porat Deputy President, and Barak J.

 

 

Editor's Summary

 

                The question raised by this petition to the High Court of Justice involves the legality of the long-standing arrangement whereby students of Yeshivot (Talmudical colleges) are granted deferment of their military service for so long as they continue their full-time studies. This arrangement was instituted as long ago as 1948, and has been reconfirmed by successive Ministers of Defence and governments of Israel ever since. It has been tile subject of a number of earlier petitions to the High Court questioning its legality, all of which were dismissed.

                The petitioners submitted that they were entitled to bring the question before the Court as being personally involved, in view of the fact that their army reserve service is prolonged as a result of the extensive deferment, amounting to exemption, of Yeshivah students from military service and that the burden of reserve service for them and others in their position would be considerably alleviated if Yeshivah students were recruited into full-time military service.

                The petitioners argued that the decision of the Minister of Defence purportedly on the basis of section 36 of the Defence Service Law [Consolidated Version], 1986, to defer the full-times military service of Yeshivah students, requires Knesset legislation to give in effect. They also submitted that the decision was ultra vires, was based on extraneous and discriminatory grounds and was totally unreasonable.

               

                The High Court ruled as follows:

 

1.       The legal standing of a petitioner before the High Court will be recognised if he can show that there is a reasonable prospect that an interest of his (not necessarily amounting to a right) which may be shared by a great number of others, has been prejudiced.

 

2.       While the classical rule was that it is not sufficient for a petitioner merely to show that a governmental authority is in breach of the law, without showing prejudice to his own interest, there have developed several important exceptions to this rule, which have the effect of liberalising the rules of locus standi and making them more flexible. Thus, wherever a petitioner can point to an issue of particular public importance or to a serious flaw in the functioning of a public authority, it would only be right for him to bring such a matter to the attention of the Court whose rule is to review the legality of the acts of public authorities. An even more liberal attitude would allow standing to a "public" petitioner in all cases, thus recognising the actio popularis.

 

3.       In the present case, the standing of the petitioners must be recognised both from the point of view of the "classical" approach which requires proof of an interest in the subject matter of the petition, and from that of the more liberal attitudes which either recognise exceptions to the rule requiring establishment of an interest of the past of the petitioner, or dispense with the requirement of "interest" altogether.

 

4.       The question before the Court is a constitutional one of primary public importance relating to the rule of law, in respect of which the locus standi of the petitioners is impregnable.

 

5.       (per former Deputy President Miriam Ben-Porat): Only where a public authority's action is blatantly unlawful or where an overwhelming important public issue is involved would it be permissible to depart from the basic principle requiring a petitioner to show that he has an interest in the subject matter of the petitioner.

 

6.       The concept of locus standi should not be confused with that of justiciability. The former relates to the question how far the petitioner is the right person to bring the particular issue before the Court, whereas the latter relates to how far the issue is one suitable for judicial consideration.

 

7.       Two forms of justiciability should be distinguished - normative and institutional justiciability. While normative justiciability answers the question whether there exist legal criteria capable of determining the dispute before the court, institutional justiciability answers the question whether the court is the appropriate organ for such determination, rather than any other organ such as the legislature or the executive.

 

8.       All activities, including those of a political nature or matters of policy, are governed by legal norms of one kind or another. There is thus no such thing as a "legal vacuum". Legal norms may be permissive (e.g. "an individual may perform any act, unless it is specifically prohibited") or prohibitive ("governmental entities may not perform any act unless specifically permitted").

 

9.       Lack of normative justiciability means in effect lack of cause of action. In most cases, a submission of lack of normative justiciability has to contend with the general legal norm which obliges governmental bodies to act reasonably, and such reasonableness is examined by legal criteria.

 

10.    (per Barak J): The argument that, in view of the separation of powers an issue of a political nature must necessarily be determined by a political organ, and is therefore institutionally nonjusticiable, is an erroneous one. On the contrary, judicial review of government activity, even if it is of a political nature, ensures that separation of powers is safeguarded. Indeed, where a political or ideological issue is involved, the judge may not express his personal view, but such issue is still justiciable with regard to its legal aspect, and a court cannot refrain from dealing with it without harming public confidence in the rule of law. Thus, the whole doctrine of institutional and (non) justiciability is highly problematical an is only applicable in special instances where it can be shown that public confidence in the judiciary is more likely to be prejudiced than public confidence in the rule of law.

 

11.    (per Shamgar, P.): It is not desirable that all issues concerning governmental activity be referred to the courts, thus depriving other authorities of their proper function. Separation of powers implies a proper balancing of functions between the three powers of government.

 

          Justiciability must be examined by the double test of its normative and institutional aspects. The issue of institutional justiciability must be settled by the judge in accordance with his sense of expertise.

 

12.    (per Ben-Porat, D.P.): The question of justiciability should be left open for further consideration: predominantly it is a matter of the limits of judicial restraint.

 

13.    The question whether a governmental authority is competent to carry out a particular governmental function such as granting deferment to Yeshivah students is normatively justiciable, and is connected with the proper inter­pretation of s. 36 of the Defence Service Law [Consolidated Version].

 

14.    In the present case, institutional non-justiciability is inapplicable. Basically, the question whether Yeshivah students should be drafted into the armed forces is a matter of public policy which should be determined by the political authorities. However, the question of the legality of deferment of those students' military service is a legal question which is for the courts to settle.

 

15.    The Minister's power to defer military service can only be lawfully exercised on the basis of one of the grounds enumerated in section 36 of the Defence Service Law. In exercising his power, he may take into account considerations other than those relating purely to defence, such as requirements of education, the national economy, family or religious factors, all of which come under the general heading of "other reasons" in the said section.

 

l6.      The Minister must exercise his discretionary power to defer military service in a reasonable manner, allowing appropriate weight to the various relevant considerations. The Court will not substitute its own discretion for that of the Minister, but will confine judicial review to the question whether the Minister of Defence may take into consideration the factor of religion and whether in the circumstances the weight he attributed to that factor was reasonable. The Minister may take the religious factor into consideration, so long as it does not bring about substantial harm to security.

 

17.    In Israel, a democratic and pluralistic society, there is no consensus on the issue of military service for Yeshivah students, and this strengthens the view that the Minister can legitimately take the religious factor into consideration when deciding on that issue.

 

18.    The petitioners have failed to rebut the presumption of reasonableness of governmental action and so have failed to show that the Minister's action in continuing to allow deferment of Yeshivah students' military service was unreasonable. There is therefore no ground for intervention of the High Court of Justice in the Minister's decision.

 

19.    However, the decision on deferment of Yeshivah students' military service ought to be reviewed from time to time in the light of current defence requirements; in the view of Shamgar, P., such review should take place annually.

 

20.    (per Shamgar, P.): The fact that the Minister of Defence has acted in this matter consistently with his predecessors in office strengthens the reasonable­ness of his action.

 

 

Israel Supreme Court Cases Cited:

[l]         H.C. 40/70 Becker v. Minister of Defence, 24(1) P.D. 238.

[2]        H.C. 448/81 Ressler v. Minister of Defence (Ariel Sharon), 36(1) P.D. 8l.

[3]        FH 2/82 Ressler v. Minister of Defence, 36(1) P.D. 708.

[4]        H.C. 179/82 Ressler v. Minister of Defence, 36(4) P.D. 421.

[5]   H.C. 731/86, Misc. App H.C. 91/87 Micro Daf v. Israel Electric Co. Ltd, 41(2) P.D. 449.

[6]        H.C. 287/69 Meron v. Minister of Labour, 24(1) P.D. 337.

[7]        H.C. 217/80 Segal v. Minister of the Interior, 34(4) P.D. 429.

[8]   H.C. 563, 566/75 Ressler v. Minister of Finance, Zivoni v. Chairman of Knesset Finance Committee, 30(2) P.D. 337.

 

[9]   H.C. 26/76, BarShalom v. Meir Zorea, Director of Israel Lands Administration, 31(1) P.D. 796.

[10]      H.C. 1/81 Shiran v. Broadcasting Authority, 35(3) P.D. 365.

[11]      H.C. 29/55 Dayan v. Minister for Religious Affairs, 9 P.D. 997.

[12] H.C. 428, 429, 431, 446, 463/86, Misc. App. H.C. 320/86 Barzilai v. Government of Israel, 40(3) P.D. 505.

[13]      H.C. 609/85 Sucker v. Mayer of Tel Aviv-Yafo, 40(1) P.D. 775.

[14]      H.C. 348/70 Kfir v. Ashkelon Religious Council, 2501 P.D. 685.

[15] H.C. 852, 869/85 Misc, App. H.C. 43, 486, 487, 502. 512-515, 518, 521, 523, 543/86; 1, 33/87 Aloni v. Minister of Justice, 41(2) P.D. 1.

[16]      H.C. 98/69 Bergmann v. Minister of Finance, 23(1) P.D. 693.

[17]      H.C. 148/73 Kaniel v. Minister of Justice, 27(1) P.D. 794.

[18]      H.C. 152/82 Alon v. Government of Israel, 36(4) P.D. 449.

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

[20] H.C. 511/80 Galia v. .Haifa District Planning and Building Commission 35(4) P.D. 477.

[21]      H.C. 306/81 Flatto Sharon v. Knesset House Committee, 35(4) P.D. 118.

[22]      H.C. 73/85 "Kach" Faction v. Speaker of the Knesset, 39(3) P.D.141.

[23]      H.C. 295/65 Oppenheimer v. Minister of the Interior and Health 20(1) P.D. 309.

[24] H.C. 606, 610/78 Oyab v. Minister of Defence; Nossoua v. Minister of Defence, 33(2) P.D. 113.

[25]      H.C. 65/51 Jabotinsky v. President of the State of Israel 5 P.D.801.

[26] H.C. 222/68, Motion 15/69, National Group, Registered Soc. v. Minister of Police, 24(2) P.D. 141.

[27]      H.C. 561/75 Ashkenazi v. Minister of Defence, 30(2) P.D. 309.

[28]      H.C. 802/79 Semara v. Commander of Judea and Samaria, 34(4) P.D. 1.

[29]      H.C. 186/65 Weiner v. Prime Minister, 19(2) P.D. 485.

[30]      H.C. 58/68 Shalit v. Minister of the Interior, 23(2) P.D. 477.

[31]      H.C. 89/83 Levi v. Chairman of Knesset Finance Committee, 38(2) P.D. 488.

[32] C.A. 591/73 Bashist v. Vinegrowers Soc. of Winecellars of Rishon LeZion and Zichron Yaakov Ltd., 28(1) P.D. 759.

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

[34]      H.C. 731/84 Kariv v. Knesset House Committee, 39(3) P.D. 337.

[35] H.C. 311/60 Y. Miller, Engineer (Agency & Import) Ltd., v. Minister of Transport 15 P.D. 1989.

[36]      H.C. 389/80 Golden Pages Ltd. v. Broadcasting Authority, 35(1) P.D. 421.

[37] F. H. 9/77 Israel Electric Co., Ltd. v. Ha'aretz Newspaper Publishing Co. Ltd. 32(3) P.D. 337.

[38]      H.C. 14/86 Laor v. Films and Theatre Censorship Board, 41(1) P.D. 421.

[39]      H.C. 10/48 Ziv v. Acting Commissioner for Tel Aviv Urban Area, 1 P.D. 85.

[40]      H.C. 73/53 "Kol Ha'am" Co. Ltd. v. Minister of Interior, 7 P.D. 871.

[41]      C.A. 461/62 Zim Israel Navigation Co. Ltd. v. Maziar, 17 P.D. 1319.

[42]      H.C. 112/77 Fogel v. Broadcasting Authority, 31(3) P.D. 657.

[43]      C.A. 243/83 Jerusalem Municipality v. Gordon, 39(1) P.D. 113.

[44] H.C. 302/72 Hilo v. Government of Israel, El Salimeh v. Government of Israel, 27(2) P.D. 169.

[45] H.C. 69, 493/81 Abu Ita v. Commander of Judea and Samaria Region, Kanzil v. Commissioner for Customs, Gaza Region H.Q., 27(2) P.D. 197.

[46] H.C. 393/82 Jama't Ascan, etc. Co-op Soc. reg. with Judea and Samaria Region H.Q. v. Commander of IDF Forces in Judea and Samaria Region, 37(4) P.D. 795.

[47] H.C. 263/85 (Misc. App. H.C. 222, 267/85) Awar v. Commander of Civil Administration Ramallah Sub-District, 40(2) P.D. 281.

[48] H.C. 629/82 Mustafa v. Military Commander of Judea and Samaria Region, 37(1) P.D. 158.

[49]      H.C. 652/81 M.K. Sarid v. Knesset Speaker Menahem Savidor, 36(2) P.D. 197.

[50]      H.C. 742/84 Kahana v. Knesset Speaker, 39(4) P.D. 85.

[51]      H.C. 669/85 24, 131/86 Kahana v. Knesset Speaker, 40(4) P.D. 393.

[52]      H.C. 109/70 Coptic Orthodox Motaran 25(1) P.D. 225.

[53]      H.C. 321/60 Lehem Hai Ltd. v. Minister of Trade and Industry, 15 P.D. 197.

[54]      H.C. 390/79 Davikat v. Government of Israel, 34(1) P.D. 1.

[55] H.C. 174/62 League of Prevention of Religious Coercion v.Jerusalem Municipal Council, 16 P.D. 2665.

[56]      H.C. 98, 105/54 Lazarovich v. Food Controller Jerusalem; Saad v. same, 10 P.D. 40.

[57]      H.C. 266/68 Petach Tikvah Municipality v. Minister of Agriculture, 22(2) P.D. 824.

[58]      H.C. 156/75 Daka v. Minister of Transport, 30(2) P.D. 94.

[59]      Cr. A. 54/81 Rosenne v. State oflsrael, 35(2) P.D. 821.

[60]      H.C. 297/82 Berger v. Minister of the Interior, 37(3) P.D. 29.

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

[62]      C.A. 365/54 Mann v. Ayun and cross appeal, 11 P.D. 1612.

[63]      H.C. 200/83 Watad v. Minister of Finance, 38(3) P.D. 113.

[64]      H.C. 72/62 Rufeisen v. Minister of the Interior, 16 P.D. 2428.

[65] Elections Appeal 2, 3/84 Neimann v. Chairman of Central Elections Committee for the 11th Knesset; Avneri v. same, 39(2) P.D. 225.

 

American Cases Cited:

[66]      Poe v. Ullman 367 U.S. 497 (1961)

[67]      Flast v. Cohen 392 U.S. 85 (1968)

[68]      Baker v. Carr 369 U.S. (1961)

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

[70]      Cohens v. Virginia 19 U.S. 120 (1821)

[71]      Goldwater v. Carter 444 U.S. 996 (1979)

 

English Cases Cited:

[72] Inland Revenue Commissioners v. National Federation of Self Employed and Small Businesses Ltd. [1982] A.C. 617.

[73]      Council of Civil Service Unions v. Minister for Civil Service [1985] A.C. 374.

 

Canadian Cases Cited:

[74]      Thorson v. Attorney General of Canada et al. (No. 2) (1974) 43 D.L.R. (3d) 1

[75]      Nova Scotia Board of Censors v. McNeil (1975) 55 D.L.R. (3d) 632.

[76]      Minister of Justice of Canada et al. v. Borowski (1982) 130 D.L.R.(3d) 588.

 

Sources of Jewish Law Cited:

[a]        Rabbi M.Z. Neriyah, Drafting of Yeshivah Students, Gvilim, 5728.

[b]        Rabbi Z.Y. Kook, Paths of lsrael, Collection of Articles, Menorah, 5727, 114-123.

[c]   Rabbi S.Y. Zevin, Drafting of Yeshiva Students, Collection of Articles, Menorah, 5727, 114-123.

[d]   Rabbi Y.M. Tikochinsky, Release of Yeshiva Students from Draft, Torah u-Medinah, No. 5-6, 5713-4 pp. 45-54.

 

Petition for Order Nisi.  The hearing took place on the supposition that an order nisi had been granted. Petition dismissed.

 

Y. Ressler - for the Petitioner;

N. Arad - for the Respondent.

 

 

JUDGMENT

 

            BARAK J: Is deferment of defence service for Yeshivah (Talmudical College) students lawful? This question - which has been presented in the past for consideration by this Court - once again stands before us for examination. Should we address the question itself, or should perhaps the petition be dismissed because of the petitioners' lack of standing, or because of its non-justiciability? And if we address the question itself - is the deferment of service lawful?

           

The Facts

            1. The question of deferment of defence service for Yeshivah students goes back to the beginning of the State. Already on March 9, 1948, a directive was issued by the Chief of Staff of the [pre-independence] Haganah (the C.N.D.), which stated that "it has been decided that the Yeshivah students, according to approved lists, are exempt from service in the army. Competent students will be given training in self-defense at their place of learning". It was stated that "this decision is effective for the Jewish year 5708, and at the end of the year the problem will be reexamined". In 1949, the Minister of Defence, David Ben-Gurion, notified the Minister of Religions that he had agreed to defer the enlistment of full-time Yeshivah students, for purposes of religious studies. In his diary, Mr. Ben-Gurion describes a meeting which took place (on January 9, 1950) with a delegation of heads of Yeshivot, who explained to him their fears that most Yeshivah students would discontinue their studies. The Minister of Defence granted the request for deferment, taking the view that it must be effected by means of an exemption granted by the Minister of Defence and not pursuant to Knesset legislation. In accordance with this approach, Mr. Ben-Gurion announced - in a letter to the Chief of Staff of January 2, 1951 - that "on the basis of section 12 of the Defence Service Law, I have exempted the Yeshivah students from the obligation of regular service, this exemption applying solely to Yeshivah students who are in fact involved in religious studies in Yeshivot, for so long as they are so occupied".

 

            2. An attempt to after the situation was made in 1954 by the Minister of Defence, Mr. Pinhas Lavon. Mr. Lavon issued a directive, pursuant to which Yeshivah students who had already spent 4 years at a Yeshivah would be drafted. This directive gave rise to an uproar, and the Prime Minister, Mr. Moshe Sharet, requested that its implementation be delayed until the matter could be looked into. It seems that the directive was cancelled pursuant to the establishment (on March 15, 1955) of a ministerial committee, whose function was to examine "the problems associated with the status of men of military age who study in Yeshivot, regarding enlistment in the army". We do not know what the ministerial committee decided. Whatever it was, in 1958 the Deputy Minister of Defence, Mr. Shimon Peres, "summed up", with the approval of the Minister of Defence Mr. David Ben-Gurion, the policy as to this matter, following a meeting with heads of Yeshivot. The summary stated that when a Yeshivot student's time to report for enlistment and medical examination arrived, he would receive a deferment if he expressed his desire to continue to study in the Yeshivot, and if not  - he would be drafted.

 

            3. In 1968, after the appointment of Mr. Moshe Dayan as Minister of Defence, the matter was examined anew. The Minister thought that in exercising his discretion in this matter, it would be proper that his policy be acceptable to the Government. A five-person ministerial committee appointed for this purpose (on October 13, 1968) decided to "accept the I.D.F. General Staff proposal regarding service of Yeshivah students in the I.D.F., without at this time instigating for reaching changes". Accordingly it was decided, inter alia, that "the arrangement whereby the enlistment of Yeshivah students who engage in religious study continuously from the age of 16 is deferred for so long as the student remains occupied full-time with religious studies, will remain in effect ".

           

            4. In 1975 the question of the extent of the topic was reexamined by the then Minister of Defence, Mr. Shimon Peres. Until that point the extent was determined by two criteria: a fixed number of existing Yeshivot and an annual quota of those who received draft deferments from the ranks of Yeshivah students at a rate of up to 800 men per year. The Minister of Defence agreed, after an investigation by the I.D.F. manpower division, not to be bound by a fixed number of existing Yeshivot, because their numbers had increased. However, it was decided to leave in place the maximum annual quota of "full-time" Yeshivah students, whose enlistment would be deferred pursuant to pre-existing criteria. In 1977 Minister of Defence Ezer Weizman determined, following a coalition agreement - that "Yeshivah high-school and vocational school as well as those who had recently became observant, would be granted admission to Yeshivot, and that the arrangement regarding the deferment of service for "full-time" Yeshivah students would apply to these groups as well. In 1981 the Minister of Defence Ariel Sharon re-itented this principle, and procedures for implementation of the rules in this matter were established, according to the recommendation of a special committee appointed by the Minister_ of Defence. The Minister of Defence, Mr. Yitzhak Rabin - the Respondent in the Petition before us - found it appropriate to continue the implementation of the policy outlined by the Ministers of Defence who preceded him. In his opinion, the situation did not justify a change in the policy formulated by the Government of Israel and by the previous Ministers of Defence.

           

            After submission of the Petition, the Minister of Defence brought the matter to the attention of the Government, in that he notified the Government that he was "acting on its behalf in maintaining the existing situation despite changes in the numerical data". The Prime Minister Mr. Yitzhak Shamir indicated that the Government had taken note of the Minister of Defence's announcement.

           

            5. The Knesset has addressed the question of deferment of defence service for Yeshivah students on numbers occasions. At least 30 questionnaires on this topic were referred by Knesset Members to Prime Ministers and Ministers of Defence. The questionnaires span the years (D.H. 30 (5721) 66; D.H. 41 (5725) 490; D.H. 51 (5728) 1027, 1111, 1315, 1318, 1820; D.H. 53 (5729) 484; D.H. .56 (5730) 1022; D.H. .58 (5730) 2162; D.H. 63 (5732) 1506; D.H. 65 (5733) 241, 769 ,773; D.H. 69 (5734) 1005; D.H. 70 (5734) 1268, 1271; D.H. 72 (5735) 3738; D.H. 90 (5741) 1443, and from the Tenth Knesset - second session, booklet 16 (5742) 1436, and from the Eleventh Knesset - second session (meetings 123 - 167) part 11 (5746) 989 and part 25 (5746) 2451. The question of deferment of defence service for Yeshivah students was also addressed in the Knesset Foreign Affairs and Defence Committee. On December 23, 1986 the Committee established a sub-committee to reexamine the exemption from enlistment granted to religious seminary students. The sub-committee held a number of meetings. On July 9, 1986 the Eighth Knesset deliberated proposals for the agenda regarding enlistment of religious seminary students. Each proposal was remitted to the Foreign Affairs and Defence Committee, and the sub-committee dealt with these proposals as well. The committee's deliberations have not yet been summarized.

 

            6. Under the current state of affairs, conscription into the defence service of a Yeshivah student, whose full-time occupation is religious studies, and who is exclusively involved in religious studies, is deferred. The student must study continuously from the age of 16 in a recognized Yeshivah. Deferment of defence service is granted after the student presents himself for enlistment, undergoes a medical examination and is found fit for service. Deferment of service is for one year only. The student must report again each year. A student who wishes to discontinue his studies or whose full-time occupation is no longer religious study, is drafted into service in the I.D.F. The length of service is determined according to the Yeshivah student's age at the time that he left the draft deferment arrangement, his physical fitness, and his family situation. According to army statistics for the 1986-1987 working year, the number of students in draft deferment arrangements for Yeshivah students was 17,017. Among the 1987 class of I.D.F. draftees, 1,674 Yeshivah students requested and received draft deferments.

           

The Legal Framework

 

            7. Upon establishment of the State, enlistment of religious seminary students into the defence service was deferred pursuant to the Defence Service Law, 5709-1949. Section 11 of the statute authorized the Minister of Defence to grant exemption from defence service, whereas section 12 of that Law authorized the Minister to grant exemption and deferment from defence service, as follows:

 

"If the Minister of Defence considers that reasons connected with the size of the Regular Forces or the Reserve Forces of the Defence Army of Israel or with the requirements of education, settlement or the national economy, or family reasons, or other similar reasons, so require, he may by order direct -

 

(a) that a person of military age shall be released from the obligation of regular service...

 

(b) that the regular service of a person of military age shall be postponed for a specific period upon his application...

 

(c) that a person...shall be released for a specific period or entirely, from the obligation of reserve service".

 

            The Defence Service Law (Amendment), 5719-1959, introduced a change in the legislative technique. The grounds for release and deferment became grounds for exemption or reduction, and the directive regarding service deferral referment to those grounds for purposes of deferment of service also. Section 12 was replaced by the following provision:

           

"The Minister of Defence may, if he thinks fit to do so for special reasons, defer, by order, on the application of a person of military age, for such period as he may fix, the reporting of such person of military age for registration, medical examination, regular service or reserve service or the continuance of his service as aforesaid if already begun; the deferment may be subject to conditions or unconditional, and the Minister of Defence may cancel the deferment if he is satisfied that any of the conditions attached to the deferment has not been fulfilled".

           

            The term "special reasons" is defined in section 11(ab) of the statute - which was applied, as stated, to exemption or reduction - as follows:

 

"The Minister of Defence may, by order, if he thinks fit to do so for reasons connected with the size of the regular or reserve forces of the Defence Army of Israel, or for reasons connected with the requirements of education, settlement or the national economy, or for family reasons, or for other similar reasons (all such reasons being hereinafter referred as: "special reasons") -

 

(1) exempt a person of military age from the duty of regular service, or reduce the period of the regular service of a person of military age;

 

(2) exempt, for a specific period or permanently, a person...from the duty of reserve service".

 

            In 5719, a consolidated version of the Defence Service Law was drawn up. Section 11 became section 28 and section 12 became section 29 of the Defence Service Law [Consolidated Version], 5719-1959.

           

            8. The Defence Service Law [Consolidated Version] was amended in 1971 by the Defence Service (Amendment No. 7), Law, 5731-1971. Sections 28 and 29 of the Law were replaced by new sections. After the amendment, section 28 of the Defence Service Law [Consolidated Version] applied both to exemptions from defence service and to reduction and deferment of defence service. The grounds for exemption, reduction and deferment were all transferred to this provision. Thus far the change is of a technical nature. At the same time, a substantive change was also made. The word "similar" was eliminated from the phrase "or other similar reasons". The text of section 28 is therefore as follows:

           

"The Minister of Defence may, by order, if he sees fit to do so for reasons connected with the size of the regular forces or reserve forces of the Defence Army of Israel or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons -

 

(l) exempt a person of military age from the duty of regular service or reduce the period of his service;

 

(2) exempt a person of military age from the duty of reserve service...

 

(3) on the application of a person of military age or a person designated for defence service, other than a person of military age, defer by order, for a period prescribed therein, the date of reporting prescribed for that person, under this Law or regulations thereunder, for registration, medical examination, defence service or, if he has already begun to serve in defence service, the continuance thereof".

 

            Pursuant to the Defence Service Law [Consolidated Version], 5746-1986 (hereinafter: the Law), this provision became section 36, and it forms the basis for examining the lawfulness of the Respondent's actions in the Petition before us.

           

Earlier Petitions

 

            9. The Petition before us is not the first brought before this Court regarding deferment of defence service for Yeshivah students. The first petition was considered approximately 18 years ago: H.C. 40/70 [l]. The Petition was dismissed without summoning counsel for the Attorney General. Justice Witkon based his decision on the Petitioner's lack of legal standing. He held, at page 247, that "the more that the topic of the complaint is of a public nature, is among the issues commanding attention in the political arena, and serves as a topic for deliberations in the Government and the Knesset, the more it is necessary strictly to enforce the requirement that the complainant should suffer actual harm in his private domain in order to be granted the right of standing before the court". In the Petition before him, the Petitioner did not succeed in indicating personal and substantial harm. The Petitioner's grievance is "a public collective grievance, and the Petitioner is no different from every other person from that group who deems the exemption of persons, who in his opinion are nothing but shirkers, to be invalid". The Court ought not to entertain a grievance of this nature. Justice Y. Cohen at page 249 agreed with Justice Witkon's opinion, and added that the Petition must also be dismissed on account of its general and vague nature, and because "if levels allegations without an adequate factual basis".

 

            10. More than ten years had passed since Becker's petition was dismissed (H.C. 40/70 [1]), when in the early 1980's a second petition was brought before this Court in which Mr. Ressler, who is Petitioner Number 1 before us, petitioned regarding the deferment of service of Yeshivah students (H.C. 448/81 [2]). The affidavits of two senior officers were attached to the petition, which stated that, if all Yeshivah students were drafted into the I.D.F., this source of manpower would add a regular division to the I.D.F. It would also significantly reduce the burden of reserve service on reserve soldiers in general, and on the petitioner in particular. The Supreme Court (Deputy President Y. Cohen and Justices D. Levin and Yehudah Cohen) dismissed the petition and declined to issue an order nisi, in reliance upon H.C. 40/70 [l]. The Deputy President, at page 86, indicated that, in his opinion, "the petitioners failed to establish a right of standing which justifies deliberations in this Court on a topic which on its face appears to be non-justiciable". The Court indicated that the conclusion regarding the reduction in the burden of reserve service is not based on significant data. It may be that the petitioner's belief on this matter is sincere, but it is inadequate to demonstrate that an actual interest of his has been harmed. In Justice Y. Cohen's opinion, id., "the task which the petitioners have taken upon themselves, of demonstrating that the enlistment of Yeshivah students will bring about a significant reduction in the burden of defence service currently imposed upon those serving in the army, is not attainable". The Deputy President was prepared to examine the question of petitioner's standing, taking the judicial attitude most favourable to the petitioner. In his opinion, (page 88), given according to this attitude, the petitioner did not have standing as to the Petition, because "it is concerned with an issue which is not suitable to be considered by a court. The question of whether or not to draft Yeshivah students is a question as to which the court does not have legal standards upon which a judicial determination can be based". In the Deputy President's opinion, id., "even if the petitioners had proved beyond a shadow of a doubt... that their reserve service would be shortened as a result of drafting Yeshivah students, I would not regard this as grounds for issuing an order nisi, because the question of whether or not to draft Yeshivah students is fundamentally a public issue, the solution of which must be left in the hands of the political bodies whose tasks include determination of this matter". In reaching that conclusion the Deputy President relied upon the provisions of section 28 of the Defence Service Law [Consolidated Version], 5719-1959, as amended. The Court indicates, ibid. [2], at page 85, that the amendment was intended 'to rule out any narrowing construction', and pursuant to it the Minister of Defence's authority is extremely wide. This section grants the Minister of Defence the broadest possible discretion. In summarizing his approach, Justice Y. Cohen indicates, id., at page 89, that "the inclination to drag this Court into a sensitive and stormy political debate, in which fierce differences of opinion exist among the public, is conspicuous in this Petition. The petitioners cannot succeed in this, whether because they do not have standing, or because the issue is non-justiciable , or because they have not disclosed grounds for this Court's interference with the discretion granted the Respondent by the Legislature".

 

            11. A request for a further hearing on the Supreme Court's decision in H.C. 448/ 81[2] was submitted (F.H. 3/82 [3]). President Landau, at page 708-709, held that in his opinion, "this time the right of standing was adequately proved", because the petitioner showed prima facie that enlistment of Yeshivah students would significantly ease the burden of reserve service imposed upon him, and thus proved prima facie harm to a personal interest sufficient to grant him a right of standing before the High Court of Justice. Despite this approach of his, President Landau dismissed the request for a further hearing. The reason for this was that the petition in H.C. 448/81 [2] was dismissed also because in the opinion of the Court at page 710, "religious reasons, inherent in the Yeshivah students' and teachers' involvement in religious studies, can constitute a reason which would entitle the Minister of Defence to release, according to his discretion, those for whom religious studies are their full-time occupation". President Landau noted, at page 710-71 l, that "there will be those who will disagree with this broad interpretation. However, as I have not found any request by the Petitioners to subject this reason to a further hearing, I need not go beyond the scope of this petition, as presented to me". In concluding his decision, President Landau noted, at page 711, that the topic has "very great public and ideological importance", and that the Court "is not designed to serve as an arena for public and ideological disputes". Nevertheless, the submission that deferment of the enlistment of Yeshivah students is a question which must be decided by legislation, and not by administrative decision of the Minister of Defense, is "a submission which in my opinion should have been heard" (Id., at page 712). The President noted that this submission was not included in the petition for a further hearing, and accordingly he did not have to entertain it.

 

            12. A few months later the Petitioner submitted a fresh petition (H.C. 179/82 [4]), which he based on the President's opinion in F.H. 2/82 [3]. The Court dismissed the Petition on account of the Petitioner's lack of standing. Justice Ben-Porat (with whom Justices D. Levin and Bach agreed) noted, at page 424, that "everyone agrees, that private parties should not be allowed to assert their grievances or plead the public cause in a public claim (actio popularis"). Everyone admits that the petitioner is motivated by the public aspect, and not because of personal harm. This reason. which was at the base of the dismissal of his Petition in H.C. 448/ 81 [2] - remains unaltered. Accordingly - "without stating our opinion on the questions as to which the honorable justices would differ (in H.C. 448/81 on the one hand and in the decision in F.H. 2/82 on the other)"- it was decided to dismiss the petition without issuing an order nisi ibid., at page 425).

           

The Petition and Submissions Thereunder

 

            13. The Petition before us, like its predecessors, is concerned with deferment of defence service for Yeshivah students. Taught by past experience, Petitioner Number 1 sought - together with the other Petitioners - to include in the Petition all the areas on which courts had commented in the past. According to the Petitioners' claim, they have standing under the law. They attached to their Petition the affidavit of Maj. Gen. (Res.) Dr. Emanuel Wald, who served as the head of the Long Range Manpower Planning Branch, staff Planning Division, in the Manpower Department of the General Staff. The affidavit states that -

 

"There is a direct link between the enlistment of Yeshivah students in regular service, and afterwards reserve service, and the length of time which the Petitioners will have to serve in reserve duty, each one in his particular role. In the event that service of Yeshivah students is no longer deferred, as requested in the petition, the period of time the petitioners serve will be shortened every year".

           

            On this factual basis, the Petitioners submit that they have successfully established their standing under the law. True, the Petitioners' interest is not specific to them alone, but according to case law this is immaterial, because, in the Petitioners' opinion, their standing should not be negated because they are defending an interest shared by themselves and many others. However, if these arguments are insufficient, in the Petitioners' opinion they have lawful standing to move the Court to rule on serious harm to the rule of law and the equality of all before the law. In the Petitioners' opinion, their Petition is "justiciable", despite its public nature. As to the substantive issue, the Petitioners make three submissions:  First that deferment of the enlistment of Yeshivah students cannot be effected by an act of the Executive, but rather must be effected - in view of the fundamental nature of the matter - by enactment a of Knesset; therefore, the Minister of Defence exceeded his authority in granting deferment to Yeshivah students. Second, the Minister of Defence's considerations are extraneous, discriminatory and unreasonable. The statute does not permit the Minister to defer the Yeshivah students' army service. The purpose of the statute is the promotion of security, not the advancement of study in Yeshivot. The "religious" factor is an extraneous, discriminatory and unreasonable consideration. Third, the Petitioners infer from the statements of the Respondent and the Ministers of Defence who preceded him that Ministers of Defence Sharon, Arens and Rabin believe that Yeshivah students' army service should not be deferred, but they think that it is not within their power to change this situation which was forced upon them. This approach of the Ministers of Defence is fundamentally wrong, since they do have that such power.

 

            14. Upon submission of the Petition it was put before a panel of three justices, and counsel for the Attorney General was summoned to the hearing. His position at this hearing was that the Petitioners have no standing. In the opinion of the Attorney General's representative -

           

"The effect of removing draft deferment arrangements for Yeshivah students on the length of service of those in the reserves in general, and of the Petitioners in particular, has always been and remains, a most complicated question, with numerous, intricate facets. Accordingly, the question of standing remains an obstacle before the Petitioners in this Petition as well, as in previous petitions.

 

            Counsel for the Attorney General likewise thought that the Petition must be dismissed for lack of justiciability.

           

"The subject of the Petition is subject to public debate, and it is proper for the Court to recoil from an issue which the political authorities must determine".

 

            15. At the outset of the hearing it became clear - in light of the position taken by the Attorney General's representative - that the Minister of Defence's considerations have not been presented to the Court. In the light of our comments in this regard, counsel for the State requested a stay so as to present a survey to the Court on the array of considerations which guide the Minister of Defence in exercising his discretion on deferment of service for Yeshivah students, including a survey of past development of the topic, its scope, and the relevant procedures and considerations, in light of which the policy on the issue placed the Court was formulated. We decided that the survey would be submitted in the form of an affidavit or affidavits. A survey of this nature, supported by two affidavits, was indeed submitted to us, and from it we learned the issue before us has been treated since the establishment of the State. We were likewise presented with the Minister of Defence's relevant considerations, which are:

           

"(1) Respect for the spiritual and historical obligation of students and teachers who are occupied full-time with religious study, to continuously uphold the principle of engaging in religious studies;

 

(2) The desire not to impair the said principle which is transcendant and holy to a segment of the population in Israel and in the Diaspora;

 

(3) The fact that the way of life of religious seminary students is extreme ultra-orthodox, and accordingly, induction into the army causes them serious problems in adapting to a society and culture which is foreign to them, and difficulties in strict observance of religious precepts. Thus, for example, they do not recognize the Chief Rabbinate of Israel's certification that food is kosher, while they themselves are divided as to recognition of a number of special kosher certifications by various rabbis, and other daily practices of theirs are likely to give rise to many difficulties in the I.D.F.'s preparations to integrate them into its ranks;

 

(4) The fact that the whole effectiveness of their service is subject to doubt, in light of the psychological difficulty they experience from the neglect of religious studies, and as a result of their education and special way of life.

 

(5) Recognition of the deep public sensitivity of a topic embroiled in ideological debate among the Israeli public, and of the need to settle the argument in a prudent fashion which will be acceptable nationwide".

 

            In the opinion of the Attorney General's representative, these considerations are lawful, are not extraneous, are reasonable and are not discriminatory. The Minister of Defence did not ignore the effects of deferring Yeshivah students' service upon the size of I.D.F. regular and reserve forces, and on preparations for the defence needs of the State of Israel, but he arrived at the decision that this type of candidates for service should not be drafted into the I.D.F.. In weighing all the various factors, the factors which justify the non-integration of Yeshivah students prevailed with the Minister of Defence. In the opinion of the Attorney General's representative, this Court may not replace the Minister of Defence's discretion with its own.

 

            16. On the basis of the Petition and the response to that, three questions are presented for our determination: First, do the Petitioners have standing under the law to move us to consider the Petition; Second, is the subject of the Petition justiciable; Third, is the Minister of Defence's decision lawful, that is to say, does the Minister have the power to defer the defence service of Yeshivah students, and if so - did he make lawful use of his power. We will address each question separately, beginning with the question of standing.

           

Legal Standing

 

A. The Point of Departure

 

            17. As we have seen, in the past petitions regarding the deferment of defence service of Yeshivah students were dismissed because of the rules relating to standing. Must the Petition before us also be dismissed because of these rules? In my opinion, the answer to this is in the negative. In my view, the Petitioners have standing under the law, and if their grievance is justiciable, it is appropriate that it be examined on its merits.

           

            For purposes of establishing this conclusion of mine, the state of our rules relating to standing should be addressed. The point of departure for this examination is in the provisions of section 15 (c) and (d) of the Basic Law: The Judicature. This section empowers the High Court of Justice to hear matters in which it deems it necessary to grant relief for the sake of justice and which are not within the jurisdiction of any other court (sub-section (c)). This section likewise empowers the High Court of Justice to issue orders against governmental authorities "to do or refrain from doing any act in the lawful exercise of their functions" (sub-section (d)). In these two provisions there is no reference to the question of "the administrative right" or "the administrative duty", and in any event, there is no reference to the question of the legal standing of the person seeking to claim a breach of a right or duty. The Legislature created a court with jurisdiction, while assuming that  - according to accepted English tradition - that in granting jurisdiction to address a particular issue, there is a type of delegation of power to create judicial rules regarding jurisdiction. I addressed this link between the adjudicator and the rule in one case, when I said (in H.C. 731/86, Misc. H.C. App. 91/87 [5], at page 458) as follows:

 

"This link between the rule and the adjudicator, between the law and the court, characterizes both Israeli law in general and administrative law in Israel in particular. The development of administrative law has been mainly a by-product of the jurisdiction of the High Court of Justice".

           

            Within the scope of this power, the High Court of Justice created sets of rules regarding the manner of its exercise of discretion. One of these sets of rules are those relating to standing, which are trues rules derived from case law. There is nothing in the Basic Law: The Judicature, which requires the adoption of one rule or another, or one approach or another in the rules relating to standing. Neither those who advocate a "strict" approach those who follows a "generous" approach base nor themselves upon the language of the Basic Law: Judicature. Unlike the United States, where the rules as to standing grew out of the interpretation of a provision in the Constitution, our rules developed without any statutory underpinnings. On the contrary: on its face, the language of the statute is broad, and it empowers the High Court of Justice to address, inter alia, every breach of the law by a governmental authority, whatever the petitioner's standing may be. Indeed, the rules as to standing were developed to place self-imposed limits on the High Court of Justice's exercise of jurisdiction. Modern courts in the Western world have imposed similar limits on themselves. (See A. Bleckmann, "The Aim of Judicial Protection: Protection of the Individual or Objective Control of the Executive Power? The Role of Locus Standi", Judicial Protection Against The Executive (Heidelberg - New York, vol. III, 1971) 19). As to this matter there is no substantive difference between the common law and civil law countries, and in the latter as well, rules as to standing prevail (see Harding, "Locus Standi in French Administrative Law" [1978] Pub. L. 144). In this spirit the High Court of Justice also developed rules as to standing, which come to place self-imposed limits on its discretion - although not on its jurisdiction - in granting relief to a petitioner who does not have standing under the law. The legal standing of the Petitioners must be examined in this context.

 

B. The Basis of The Problem

 

            18. The rules regarding standing in Israel are in a state of flux, which began some time ago. Already in H.C. 287/81 [6], at page 343, President Agranat noted that "an examination of the local case law reveals that, over the course of time, this Court's approach towards standing has undergone an evolution in the direction of liberality". This evolution continues to this day (see H.C. 217/80 [7]). It is not unique to Israeli law, but exists in other Western countries as well (See H.W. Wade, Administrative Law (Oxford, 5th ed. 1982) 578). Justice Witkon addressed this point when he noted that "in recent years there is a recognizable tendency around the world to facilitate access to the courts by every applicant". (H.C. 566, 563/75 [8], at page 346). This tendency in the modern world has been expressed both in judicial pronouncements, in scholars' essays, and in proposed legislative reforms. (See J.J. Tokar, "Administrative Law: Locus Standi in Judicial Review Proceedings", 14 Man. L.J. (1984) 209).

           

            19. What is at the root of this state of flux, and why have the rules as to standing not become settled? The answer to this question does not derive from the inability of judges and legal scholars to draft clear principles of standing. This possibility exists, and it has been proposed more than once in the literature (See K.C. Davis, Administrative Law Treatise (San Diego, 2d ed., vol. IV, 1983) 208). The answer to this question derives, in my opinion, from the uncertainty regarding the nature of the rules as to standing themselves. One cannot formulate said rules without first formulating a conception of their role in public law. To formulate a conception of the nature and role of these rules, it is necessary to take a position on the role of judicial review in the realm of public law. "Determination of policy with regard to standing is influenced by a fundamental, value-laden and substantive concept of the role of judicial review of governmental authorities" (Z. Segal, Right of Standing Before the Supreme Court Sitting as the High Court of Justice (Papyrus, 5746) 5). Indeed, rules as to standing differ, defending the appropriate model for judicial review is defence of individual rights, or preservation of the rule of law and the lawfulness of governmental functions.

 

            Furthermore, in order to formulate a conception of the role of judicial review, it is necessary to take a stance regarding the judicial role in society and the status of the judiciary among governmental authorities (see P. Cane, An Introduction to Administrative Law (1986) 27, 165). The judge whose judicial philosophy is based solely on the outlook that the role of the judge is to decide a dispute between holders of existing rights, is unlike the judge whose judicial philosophy is based upon the recognition that the role of the judge is to create rights and maintain the rule of law. Against this background, it is possible to explain the conflict between the position of Justice Witkon (in H.C. 40/70 [1], at page 247), that, "the more the subject of the complaint is of a public nature... the more is it necessary strictly to enforce the requirement that the complainant suffer substantive harm in his private domain", and that of Justice Berinson (in H.C. 26/76 [9], at page 802), that, "the more significant the issue from a public perspective, the more the Court's inclination to recognize the petitioner's right to bring the issue before it will be intensified, even though he is a rank-and-file citizen". True, the theory of standing developed "in an empirical manner" (Justice Witkon in H.C. 40/70 [1], at page 245), but behind the practice is the theory, and behind the theory stands a world outdoor as to the role of the judiciary in society. It therefore should not be surprising that different judges have taken different positions as to the rules of standing. By these positions they expressed the differences in their approaches to the role of judicial review in public law, and the role of the judge in a democratic society.

           

 C. "The Classical Approach"

 

            20. I have addressed the liberalization in the rules of standing during the past few decades. This liberalization did not intensify judicial differences, but rather narrowed them. It seems to me that there is agreement between judges as to the outer limits of the standing problem, whereas the argument focuses primarily on areas close to those limits. It seems to me that the following two propositions are accepted by the majority of justices in this Court who have considered the question of standing, and it reflects the "classical" judicial position: first, that in order to attain standing under the law, the petitioner need not point to a legal right of his own which was breached. President Agranat stressed this in H.C. 287/69 [6], at page 343, when he said: "the citizen who comes to complain about a public authority's decision or action need not show, as to this issue, that that decision or action impairs a right of his". Indeed, a petitioner need not be a "Hofheldian petitioner" to attain standing (H.C. 217/ 80 [7], at page 440). It is sufficient that the petitioner point to an interest of his which was harmed. Moreover, this interest need not be particular to the petitioner, and the lawful standing of a petitioner whose interest has been harmed will be recognized even when many others share this interest with him (see H.C. 217/80 [7]). Justice Ben-Porat emphasized this in H.C. 1/81 [10], at page 388, when she stated:

           

"To establish standing, it is in no way necessary that the alleged harm be confined to the petitioner alone, and not to a group of people among whom he is numbered".

 

            Finally, for purposes of laying the evidentiary foundation as to harm to his interest, the petitioner need not show absolutely that an interest of his was harmed; it is sufficient that he show a reasonable prospect that one of his interests will be impaired. We do not engage in prophecy, merely in the evaluation of prospects. Accordingly, the decisions of this Court have stressed that it is sufficient that the petitioner prove an "apprehension" of harm to one of his interests (Justice Silberg in H.C. 29/55 [ll], at page 1000), or that governmental action is "likely to cause harm" (President Agranat in H.C. 287/69 [6], at page 343), or that the petitioner is "likely to be harmed" (Justice Witkon in H.C. 26/76 [9], at page 806). The second proposition shared by most judges who have dealt with the rules as to standing, is that Israeli law does not recognize the standing of every citizen solely because he claims that the government violated the law. The actio popularis, as such, is not recognized in this country (Justice Agranat in H.C. 287/69 [6], at page 350; H.C. 217/80 [7], at page 443; President Shamgar in H.C. 463, 448, 446, 431, 429, 428/86, Misc. H.C. App. 320/86 [12], at page 559). "This does not embody a kind of general recognition of the existence of the public petition"; (Justice D. Levin in H.C. 609/85 [13], at page 783). Justice Ben-Porat stressed this in H.C. 179/ 82 [4], supra, at page 424, when she stated: "All agree that the individual should not be allowed to assert his grievance or plead the public's case in an actio popularis".

 

D. The Conventional "Exceptions"

 

            21. In light of the accepted parameters, the debate focuses upon identifying those extraordinary situations ("exceptions"), in which the standing of a petitioner who cannot point to an interest of his own which was harmed is recognized. As to this matter also, there is agreement among the majority of judges in a number of areas: first, a petitioner's standing will be recognized where the substantive claim he raises points to government corruption. Justice Landau stressed this in H.C. 348/70 [14], at page 692, stating:

           

"Therefore, it may be that in a serious case where the public interest appears to be decisive, as for example, where there is fear that those in charge of expenditure in a local authority are actually acting corrupt, the court will overcome its reluctance and will address the merits of a complaint brought before it by a taxpayer, in his capacity as such".

           

            Accordingly, if a public authority acted out of bias or in a situation introducing a conflict of interest, the standing of a disinterested petitioner would be recognized. Justice Elon emphasized this when he noted that the standing of a petitioner who asserts "an act of corruption by the governmental authority, such as a decision tainted by personal interests of the holder of a position in that authority, in cases of bribery and the like" will be recognized (H.C. 969,852/86, Misc. H.C. App. 543,523,521, 518, 515-12,507,502,487,486,483/86, 1,33/87 [15], at page 66); Second, this Court will recognize the standing of a petitioner who raises a "clear constitutional" problem (Justice Elon, id.). Within this scope are questions related to elections and party financing (H.C. 98/69 [16]; H.C. 148/73 [17]); the establishment of commissions of inquiry under the Commissions of Inquiry Law, 5729-1968 (H.C. 152/82 [18]); the President's power to pardon (H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12] supra), the Broadcasting Authority's duty to uphold the principles of free expression (H.C. 243/82 [19]), and other problems as well, which affect the "very essence of the democratic regime or the constitutional structure of our society" (Justice Elon in H.C. 852, 862/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87 [15], at page 68).

 

E. Liberalization of The "Exceptions"

 

            22. Indeed, the primary area of disagreement concerns the nature of the "exceptions", wherein the standing of the "public petitioner" will be recognized. In this context, three questions arise: First, is the "corruption" exception limited to the claim of corruption, or maybe it should be broadened it to include any allegation of a serious flaw in the administration's action; Secondly, is the "clear constitutional" exception confined solely to constitutional matters, or is there room to extend it to any matter of a public nature which has a direct impact on the rule of law; Thirdly, may additional exceptions be recognized, or are the exceptions limited to just two. In all of these questions, differences of opinion between the judges emerge. As for myself, I follow a "liberal" approach as to each of these questions. Accordingly, my opinion is that the first exception is not limited to government corruption alone, and there is room to broaden it to any case in which the petitioner points to a serious flaw in the administration's actions. Similarly, the second exception is in my opinion not limited solely to constitutional matters, but rather applies, in the words of my colleague President Shamgar, in H.C. 1/81 [10], at page 374, whenever "the issue raised in the petition is a subject of a public nature which has a direct affect on promotion of the rule of law, and on setting of limits, which ensure its maintenance in practice", and to all those "issues of an unusual legal nature, which affect the foundations of the rule of law" (H.C. 852, 869/ 86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 23).

 

            Finally, I believe that the exceptions to the general rule which does not recognize the "actio popularis" as such, are not limited to the two noted. We must not create rigid categories of exceptions. The area must remain flexible, by leaving the option of allowing additional circumstances in which the standing of a petitioner with no interest will be recognized. Thus, for example, there are cases, which, as a consequence of their very nature, no individual will have an interest in them according to the accepted criteria. At times, the standing of the "public petitioner" should be recognized in such cases (H.C. 217/80 [7], at page 443; H.C. 852, 869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87 [15], at page 28). The case law in Canada has consistently taking this view. (See: Thorson v. Attorney General of Canada et al(No. 2) (1974) [74]; Nova Scotia Board of Censors v. McNeil (1975) [75]. Thus, for example, it was held that a public petitioner should be recognized as to the allegation that certain exemptions from criminal liability for abortion, granted to the pregnant woman and the doctor, are contrary to the Constitution. The reason given, inter alia, is that there is no petitioner with an interest who can raise this claim before the court (Minister of Justice of Canada et al. v. Borowski (1982) [76]). Indeed, the borderlines between the exceptions themselves are in any case vague frequently several of them exist simultaneously, as was the case in H.C. 511/80 [20], in which President Shamgar noted, at page 481:

           

"The grave allegations regarding the extreme illegality of the act, which relate here to a clear public issue, justify allowing access to the petitioner and examining the substance of the allegations, which go, in many respects, to the root of the matter".

 

            Accordingly, I accept Dr. Segal's approach, that the "public petitioner" should be recognized "when he or she points out a matter of particular public importance, or what appears to be a to an apparently particularly serious flaw in the authority's action, or to the fact that the action assailed is of particular importance" (Segal, in his book supra, at page 235). Nonetheless, these should not be viewed as a closed list of "exceptions", but rather as mere signposts which reflect the proper borderline between the High Court of Justice engaging in judicial review and refraining therefrom. Indeed, the point of departure guiding me is the fundamental outlook - which Justice Berinson stressed nearly twenty years ago - that this Court is the citizen's safest and most objective refuge in his dispute with the government" (H.C. 287/69 [6] supra, at page 362), and that the role of the High Court of Justice is to ensure the realization of the principle of the rule of law. Closing this Court's doors before the petitioner without an interest, who sounds the alarm concerning an unlawful government action, does damage to the rule of law. Access to the courts is the cornerstone of the rule of law (see G.L. Peiris, "The Doctrine of Locus Standi in Commonwealth Administrative Law"[1983] Pub. L. 52, 89). Lord Diplock stressed this in the Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd. (1982) [72] case, at 644:

 

"It would, in my view, be a grave lacuna in our system of public law if a pressure group, like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped".

 

            23. Indeed, according to my outlook, courts in a democratic society should undertake the role of safeguarding the rule of law. This means, inter alia, that it must impose the law on governmental authorities, and ensure that the government acts in accordance with the law; this conception of the judicial role does not contradict the principle of the separation of powers and the role of the court within the confines of this principle. On the contrary: this approach is supported by the principle of the separation of powers and the rules thereof. In modern times, this principle means checks and balances between the various authorities (see President Shamgar's statement in H.C. 306/81 [21], at page 141, and also A. Witkon, Politics and Law (Hebrew University of Jerusalem, 5725) 71. I stressed this in one case when I stated:

 

"An enlightened democratic regime is a one characterized by separation of powers. This separation does not mean that each power operates on its own, without giving any consideration to the other powers. An outlook of this sort would deeply harm the foundations of democracy itself, because it results in a dictatorship by every authority within its own sphere. On the contrary: separation of powers means mutual balance and control between the different powers. Not walls between the authorities, but rather bridges that control and balance" (H.C. 73/85 [22], at page 158).

 

            These checks and balances mean, inter alia, that within the confines of a dispute before a court, the court must ensure that all government authorities - legislative, executive and judicial - operate within the confines of the law. In doing so, the court does not harm the principle of the separation of powers, but rather helps to realize it. Accordingly, I do not accept the following statement by Justice Elon, in support of his approach that, in general, where there is no interest, there is no standing:

           

"The benefits of opening the gates of this Court to this type of improvement of society are outweighed by its drawbacks, and this statement has reappeared more than once in the opinions of this Court and in the writings of scholars:

 

a. The court would be flooded with fundamental issues, and so will not be available to engage in its primary function, i.e. doing justice between litigants who claim that their rights have been prejudiced.

 

b. A likely resulting mishap would be that the principle of separation of powers will be adversely affected, by deflecting the court into dealing with questions of a public nature which should properly be decided in the legislature and the executive;

 

c. And finally - it would be a kind of perversion of the primary and fundamental role of the judiciary, which is to consider and decide contentious matters between two citizens or between a citizen and the government, where the two of them are 'litigants', and one is allegedly aggrieved by the other". (H.C. 869, 852/86, Misc. H.C. App. 483,486,487, 502,507,512-515, 518, 521,523,543/86, 1,33/87 [15], at page 66).

 

            In my opinion, the principle of separation of powers does not mean that a problem of a public nature is decided in the legislative and executive branches and not in the judiciary. The principle of separation of powers means that the legislative branch is entitled  - in the absence of constitutional limitations - to establish the legal framework regulating a public problem, and that the executive branch solves public problems within the legal framework established for it. However, once this framework is established, the court must determine - and this is its role in the system of powers in the state - whether the legal framework which was established is being complied with in practice. There is nothing in the separation of powers principle which permits one of the branches to act contrary to the law. There is also nothing in the separation of powers principle which requires that the judiciary refrain from dealing with actions of a public nature, to the extent that this involvement centers upon the constitutionality of an act. Lord Diplock addressed this issue in the Inland Revenue Commissioners [72] case, at 644:

 

"It is not, in my view, a sufficient answer to say that judicial review of the actions of officers or departments of central government is unnecessary because they are accountable to Parliament for the way in which they carry out their functions. They are accountable to Parliament for what they do so far as regards efficiency and policy, and of that Parliament is the only judge; they are responsible to a court of justice for the lawfulness of what they do, and of that the court is the only judge".

 

            Indeed, examination of the constitutionality of any act - whether of a public nature or not - is the role of the judiciary, and in this way it fulfils its role in the system of separated powers. In this context, I do not accept the approach - which Justice Elon also considered - that the primary and fundamental purpose of the judiciary is to decide disputes, at whose centre is an allegation of grievance, where one is person is aggrieved by another. This outlook has its source in private law, where a litigant is a person whose rights are denied. In private law itself there are exceptions to this approach (for example, a shareholder's standing to plead the company's case against a third party, by means of a derivative claim).

           

            This approach is not accepted at all in public law. The "classic" rules as to standing, which are based on the interest of the aggrieved party, do not require that the interest party should be able to point to a right of his which was violated before the court will become involved. The generally recognized exceptions are not based on allegations of his. Wade, supra, emphasizes this at 577-578, when he notes that the approach, according to which only a person whose right was violated is entitled to move the court, is not the proper approach in public law:

           

"In private law that principle can be applied with some strictness. But in public law it is inadequate, for it ignores the dimension of the interest. Where some particular person is the object of administrative action, that person is naturally entitled to dispute its legality and other persons are not. But public authorities have many powers and duties which affect the public generally rather than particular individuals. If a local authority grants planning permission improperly, or licenses indecent films for exhibition, it does a wrong to the public interest but no wrong to any one in particular. If no one has standing to call it to account, it can disregard the law with impunity. An efficient system of administrative law must find some answer to this problem, otherwise the rule of law breaks down....The law must somehow find a place for the disinterested citizen, in order to prevent illegalities in government which otherwise no one would be competent to challenge".

 

            But beyond this, I see nothing in the nature of the judicial role which necessitates holding that only the person whose right is violated is entitled to plead his case. The existence of a right before application to the court is not a basic condition of judicial action. Frequently the court creates, by its very ruling, the right itself. Judging is not merely declarative; it also involves creativity. Furthermore: There is no philosophical justification for limiting the judicial role to cases in which the litigant is aggrieved by another. The role of the court is to settle a dispute, that is, to decide an argument - and there is no justification for limiting the concept of dispute only to those disputes in which one side claims that is aggrieved by the other side. True, it is a well-known, fact that the court is an institution which decides disputes, does not act in the absence of a dispute, and is not entitled to create, of its own initiative, a dispute. However, where a dispute is before the court, there is no basis for limiting the judicial role to those disputes in which one side claims that he is aggrieved by the conduct of the other party. True, without a dispute there is no room for judicial determination - "It is clear that there can be no judicial proceeding except where there is a 'lis'" (Justice Witkon in H.C. 40/70 [1], at page 246). However, it does not follow from this that

           

"A particular person must come and assert his or her right or grievance. In this respect judicial proceedings differ from proceedings before the legislature or the executive. Without a complainant, there is no place for adjudication, and if a complainant who is nothing but the spokesman for the general public were sufficient, judicial proceedings would be likely to obscure make the borderlines unclear and be interpreted as a breach of the principle of the separation of powers" (id.).

 

            I do not accept this approach. True, without a dispute there can be no adjudication. However, this requirement does not take any position regarding the nature of the dispute, whether it is concerned with the rights of an individual, the interests of a group, or the general duties of the administration. Professor H. Klinghoffer addressed this point in his work, Administrative Law (Mifal HaShichput, 5717) 8-9:

           

"The essence of adjudication is the power to hear a dispute and decide it. Accordingly, all individual norms which constitute a decision in a dispute constitute adjudication in the functional sense. And what is a dispute? It is sufficient at this point if we say that the concept of a dispute between parties, lis inter partes, does not contain any a priori test as to the content of the dispute. The logic of the law does not require that certain issues be seen as potential subjects of a dispute, while others are excluded from the range of potential subjects of dispute. The issue is entirely dependent on its regulation by positive law. There is, a priori, no relevant test for justiciability in the functional sense. Adjudication takes place as to those issues which the positive law endows procedure with the form of a dispute".

 

            Indeed, adjudication is characterized by determination between claims, whatever content (see E.W. Patterson, Jurisprudence (Brooklyn, 1953) 564). Not infrequently, it is not the right which creates the dispute, but rather the dispute which creates the right. If a right is a desire or interest which is protected by law, then a judicial determination which affords the protection of the law, creates the right itself. Accordingly, the judicial nature of the function is not determined by the content of the dispute, but by its very existence. Judicial involvement in problems of a public nature, and even problems of a political nature, cannot "make the borderlines unclear and be interpreted as a breach of the separation of powers" principle (Justice Witkon in H.C. 40/70 [1], at page 246). Justice Witkon himself stressed this, in his article supra, at page 70:

 

"Those who view the involvement of the judiciary in political determinations as a form of usurpation of legislative and governmental powers must also re­member that the judicial function differs, in nature and character, from functions granted to the legislature and executive. It operates on a different plane - on the plane of supervision and review - which does not necessarily involve overstepping of bounds".

           

            True, "without a complainant there can be no dispute", but why must the complainant complain only as to a right of his which was violated, or an interest of his which was harmed; why should he not complain as to a law which has been violated? What is the moral basis for the approach that he who claims that his money was unlawfully stolen can apply to the court, but he who claims that the public's money was unlawfully stolen cannot do so? What is the fundamental argument which is based on legal theory and the separation of powers theory, that justifies this distinction? In my opinion, it has no basis. Indeed, my approach is that the requirement that a right or interest exist as a condition for standing under the law is a requirement without any philosophical basis, which is not rooted in the separation of powers, does not rest on moral grounds, and does harm to the rule of law.

           

The Solution: Pragmatic Balancing

 

            24. Insistence upon this perception of the court's role must, in principle, lead to a broad recognition of the public action, and not just in exceptional instances. Nonetheless, I stated that I do not accept this approach. Does my approach not encounter the same difficulty faced by those who maintain that the actio popularis should not be recognized, but are willing to do so in exceptional circumstances? Indeed, in terms of legal theory and the separation of powers theory, there is nothing to prevent "the public court" opening its doors to the public petitioner. The impediment to a "general open-door policy" does not derive from legal theory or the separation of powers, but rather is primarily based on considerations of judicial policy (see K.E. Scott, "Standing in the Supreme Court - A Functional Analysis" 86 Harv. L. Rev. (1973) 645). There is a fear that the court will be flooded with "public petitions"; precious judicial times will, as a result, be improperly allocated, and treatment of litigants who claim an impairment of their rights will be delayed; that at times a party without an interest in the outcome of the litigation will not supply the required factual foundation (see S.A. de Smith, Judicial Review of Administrative Action (London, 4th ed. by J.M. Evans, 1980) 410).

 

            These arguments and others are not of a theoretical dimension, but rather of a practical dimension, which varies from petition to petition. Some are well founded, some less so. Cumulatively they sometimes give rise to a practical problem. The solution to this problem is in the proper balance between the fundamental conception and the practical problems. "The exceptions", wherein the standing of the "public petitioner" is recognized, and the judicial principle that the approach must be empirical and not rigid, reflect this balance. Accordingly, the more serious the alleged defect in the authority's action, the more the dispute is of a public nature, and the fewer the number of people possessing a right and interest, the problem being of a general and public nature, the more the considerations in favour of recognizing the "public petitioner" prevail.

           

            As Justice Berinson noted in H.C. 26/76 [9], at page 802:

           

"Not rigid rules are required, but an empirical approach, yet flexible, not exacting or strict. It is no longer necessarily the test of a clear issue or direct or indirect personal involvement that is needed, but rather the genuineness of the application and its seriousness, its public importance and actual merit; and the more important the issue from a public perspective, the greater the court's tendency to recognize the petitioner's right to bring the application, even though he is an ordinary citizen".

           

            Accordingly, I believe that we should continue to follow the approach which does not recognize the standing of the "public petitioner", as such, and is not satisfied with the mere allegation that the law was violated. This is a necessary but not sufficient allegation. The petitioner must show "something more", in accordance with the "liberal" approach to the exceptions.

 

            25. I am aware that this flexible "liberal" approach gives rise to a number of difficulties: first, it creates uncertainty, because the courts must apply the "jurist's expert sense" to settle questions relating (see Justice Shamgar's statement in H.C. 1/81 [10], at page 373). As for me, I am not persuaded that this uncertainty is greater than the uncertainty involved in defining the concept of "interest". But be this what it may, it must be assumed that this uncertainty will surely lessen over time, as the borderline between those with standing and those without is defined more clearly. Moreover: I see no flaw in this lack of clarity. I regard, the rules as to standing as practical rules, intended to safeguard the efficiency of the court's activity, not rules which create a "vacuum", wherein, due to lack of standing, the government can ab initio act unlawfully.

           

            Government authorities must assume that every petitioner has standing and plan their actions lawfully. The court itself must, where it sees fit, bring up the rules as to standing as a means of safeguarding the efficiency of its activity. "The court is placed in charge of sifting and examining petitions, and it will decide in a proper case, in light of the nature of the issue and the petitioner's relationship to it, whether to issue an order nisi" (President Shamgar in H.C. 852,869/ 86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 28). Secondly, I understand that there are practical difficulties in distinguishing between those "public petitioners" who apply to the court for publicity purposes alone (whose petitions should be dismissed), and those petitioners who turn to the court out of a true desire to ensure the rule of law (whose petitions should at times be heard). There is therefore a fear that undeserving petitioners will be heard, and the court's time will thereby be wasted. Moreover: as a result of its desire to prevent "a fortified and impregnable wall which completely blocks access to the court to anyone, on the sole grounds that he is bringing a matter which is not his personal concern, although it is of general public interest" (in the words of Justice Berinson in H.C. 26/76 [9], supra, at page 803), the court is likely to find itself flooded with baseless petitions. The problem is indeed a real one, and methods of dealing with it must be found. As for me, it seems that the troublesome petitioner is not a serious problem. Scott, supra, referred to this at p. 674:

 

"The idle and whimsical plaintiff, a dilettante who litigates for a lark, is a specter which haunts the legal literature, not the courtroom".

 

            The problem of the flood of baseless petitions - both in the case before us and in other cases in which it is raised (see F.K.H. Maher and R.C. Evans, '"Hard' Cases, Floodgates and the New Rhetoric", 8 U. Tasmania L. Rev. (1985) 96) - also seems marginal to me, if only for the lack of empirical proof of any substance to this argument. Experience in other countries which were prepared to recognize the public petitioner within clear limits, does not show that they were inundated with petitions with those limits (see Segal, in his book, supra, at page 170). Davis reference to this, supra, at 227-228:

           

"A reason sometimes asserted against the central principle is that it opens the gates to floods of litigation. The fear has no foundation. New York and Massachusetts have often allowed 'any citizen' or 'any resident' to challenge legality of governmental action ...and the result has been trickles, not floods. The D.C. Circuit has pointed out that the dockets... have not increased appreciably as a result of new cases in which standing would previously have been denied' ...The various statues of the 1970's that allow standing for 'any interested person' or 'any person' have not resulted in an unusual amount of litigation".

 

            It seems to me that this has also been the experience of the High Court of Justice in Israel. The "liberalization" in the standing rules which has taken place in recent years has not brought about the flooding of the Supreme Court with the claims of "public petitioners". "Public petitions" continue to be few in number, and only isolated cases among these are brought by vetations petitioners. Nonetheless, it is baseless claims by such nuisance-petitioners ought to be prevental - even in the few cases where public petitioners apply to court. Like Justice Berinson, I am also certain "that we can cope with such people. There are people of this sort everywhere and at all times, and they are among us today, and we frequently have to contend with them, but we manage to set them aside" (H.C. 287/69 [6], at page 362).

 

 

            Courts have frequently had experience in determining whether a litigant is genuine in his application. A similar determination can be made as to the public petitioner. Legal costs constitute an appropriate means of deterrence. Indeed, that it is necessary to consider this practical problem, which disturbs many and prevents them from taking a liberal attitude to the question of the standing of the public petitioner. Nonetheless, this practical consideration should not determine the result. A court' s workload must not close the courthouse doors before petitioners who complain about a serious violation of the law on a public issue. Justice Berinson correctly noted in H.C. 26/76 [9] at page 803, that "upholding the rule of law and good government must not become a doormat or scapegoat because of the burden upon the court and the fear that it will press yet heavier if we broaden access there to as well as the basis for standing". Thirdly, I accept that difficulty exists in determining criteria for when the issue raised in a petition is of a public nature and when it is not, when the wrong in the administrative action is serious and when it is not. This difficulty in turn creates uncertainty, which will undoubtedly be dispelled over the course of time. For example, it is obvious that denial of a license for reasons of bias (such as bribery or conflict of interest) is a government action which presents a public problem and indicates a serious defect in governmental activity, on account of which a public petitioner should be recognized (P.P. Craig, Administrative Law (London, 1983) 459), but what is the rule if the license was not denied out of bias, but rather pursuant to an infringement of the license holder's right to a hearing? Is a public problem indicating a serious wrong present here as well? Would there be significance to the fact where the petitioner to show that the infringement of the right to a hearing is not an isolated occurrence, but rather a general policy? Indeed, the public character and serious defect tests are not simple or easy.

           

            I accept that the allegation that the law was violated and the rule of law harmed is not sufficient of itself to grant lawful standing. The allegation of harm to the rule of law is necessary, but not sufficient, to support the public petitioner's standing. The claim that in the petitioner's eyes, the matter is of a public nature is also insufficient. Justice Elon correctly noted that "it is not sufficient that the petitioner seeks in his petition to insist upon the rule of law, even if the issue is, in his fundamental opinion, substantive and foundamental (H.C.852,869/86, Misc. H.C. App. 483, 502, 507, 512-515, 518, 521, 523, 543/86, 1, 33/87[15], at page 66). Indeed, in addition to injury to the rule of law, it is necessary - by objective standards - to indicate additional facts, such as serious injury to administrative actions or a matter of public character or a matter which touches upon the principles of the rule of law, as to which there is no petitioner with an interest.

           

            As noted, this list itself is not closed, and obviously uncertainty is created both with regard to the content of the list and its limits. Nonetheless, this approach seems to me preferable to that which shuts the courthouse doors in such cases. Moreover, the "strict" approach also recognizes a number of "exceptions", and I see no difference, in terms of certainty, between the two. Take, for example, the "strict" approach, which is prepared to recognize an exception as to a petition which raises an issue of "clear constitutional" nature, or a petition which touches "the soul of the democratic regime or the constitutional structure" (Justice Elon, id., at page 66,68). Do these exceptions really generate certainty? What is a "clear constitutional" issue, and what is the difference between it and a constitutional issue which is not clear? And how is the "soul" of the regime determined? Indeed, in my opinion these tests are no more certain than the "liberal" tests which I champion, and I am not prepared to regard the uncertainty contained in the two types of tests as an argument in favour of the "strict" approach.

           

G. From The General To The Particular

 

            26. The petition before us must be examined against the backdrop of this system of rules as to standing. In my opinion, the petitioners' standing should be recognized, whether we follow the "classic" rules of standing, which require that the petitioner indicate some interest, the "exceptions", accepted by most of the Justices of this Court, or the "liberal" approach" which should be followed as to the standing issue. I will examine each of these possibilities separately.

 

(1) The Petitioners Have Standing Under The Classic Approach

           

            27. Do the petitioners have standing under the "classic" approach? Have the petitioners succeeded in pointing to an interest of theirs which was harmed by deferment of Yeshivah students' military service? As to this issue, the petitioners have in my opinion satisfied their obligation if they succeed in showing that, were the Yeshivah students to be enlisted, this would alleviate be burden of any reserve duty for the petitioners. True, this alleviation would not be specific to the petitioners alone, but we have already seen that uniqueness of interest is not essential for the attainment of standing under the law. Indeed, already in H.C. 40/70 [1], at page 247, Justice Witkon noted that "if I thought that a portion of his service could be attributed to the waiver of the Yeshivah students' service, I would say that he suffered substantial personal harm. From this we may conclude that it is a question of the factual basis presented by the Petitioners in their Petition as to this matter, the Petitioners attached to the petition, inter alia, the affidavits of Colonel E. Wald and of Colonel M. Bahat. Colonel Wald - who served, inter alia, as Chief of the Long-Term Personnel Planning Division, Assistant to the Chief of the Planning Division, and Assistant to the Deputy Chief of Staff and Chief of the Intelligence Division - analyzed the army's personnel requirements in his affidavit. In his opinion, deferment of the enlistment of 1500 religious seminary students precludes the formation of five tank battalions or two infantry battalions annually. As to our case, the affidavit indicates that deferment of the enlistment of Yeshivah students prolongs the annual reserve service of reserve soldiers. He states:

           

"I am convinced that there is a direct link between the enlistment of Yeshivah students for regular service, and afterwards in reserve service, and the length of time the petitioners will serve in the reserves, each man in his position. In the event that the enlistment of Yeshivah students is no longer deferred, as requested in the petition, the period of time the petitioners serve in the reserves each year will be shortened".

 

            Colonel Bahat - who served, inter alia, as Chief of the Personnel Planning Division in the Personnel Branch of General Headquarters, stated in his affidavit in H.C. 448/81 [2], an affidavit which was attached as an appendix to the petition before us:

           

"On the basis of personal knowledge and direct involvement with the system which determines the extent of reserve soldiers' employment in a working year, and the reserve burden on the individual soldier, I have not even a shadow of doubt that if every Yeshivah student of military age would be enlisted and integrated into service in I.D.F. units according to the same criteria as other men of military age who are enlisted, this would bring about a significant alleviation of the reserve service burden of reserve soldiers in general, and of the petitioners in particular, and there is not necessarily any significance to the task which the person in fact performs in the reserves".

 

The affidavit additionally states:

 

"The reserve service of the individual soldier is a composite of the joint security needs, the size of the regular army, the size of the reserve army, and the annual budget, and to the extent that the number of regular soldiers and/or reserve soldiers increases (in a particular budget), the burden on the individual who serves in the reserves will be reduced. There is no doubt that non-deferment of Yeshivah students' service, as explained above, will increase the I.D.F. personnel available, in the regular service and the reserve service".

 

            It seems to me that by these affidavits, Petitioners established a factual basis from which it is possible to conclude that if they succeed with their petition, and the enlistment of Yeshivah students is no longer deferred, it will illuminate their reserve service to a certain extent. Thereby they have acquired the right of standing under the classic approach (see M. Negbi, '"Locus Standi' in the Matter of Conscription of 'Yeshiva' Students", 2 Mishpatim (5730) 640) .

           

            This was President Landau's position in F.H. 2/82 [3], supra. In that petition (see paragraph 11, supra) Colonel Bahat's opinion details of which I discussed above was considered inter alia. On the basis of this opinion, Justice Landau determined that the petitioner in that case had prima facie established his right of standing under the law. President Landau states, id, at pages 709-710:

           

"As for me, I would say that this time the right of standing was properly proved, as distinguished from H.C. 40/70, in the affidavits of Mr. Baruch Bahat. ...In my opinion, the four petitioners, all of whom do reserve service, have thereby shown that apparently, the enlistment of religious seminary students, including the additional categories men of military age recently granted exemptions from service, would, it appears, significantly reduce the burden of reserve service imposed upon them, and they have thus prima facie proved harm to a personal interest of theirs, which is sufficient to grant them a right of standing in the High Court of Justice".

 

            I agree with this approach. It is true that in the end it may become clear that, even if the Yeshivah are enlisted, it will not lighten the petitioners' burden. Deputy President Y. Cohen correctly noted, in H.C. 448/81 [2], supra at page 86, that reality is complex, and it is difficult to prophesy as to this matter. "No one can foretell whether the enlistment of many thousands of religious seminary students, who would view their enlistment into the army as a blow to the foundations of their faith, according to which the study of Torah takes precedence over the obligation to serve in the army, will add to the I.D.F.'s fighting power, or, heaven forbid, will impair such power". Nonetheless, it is sufficient that the Petitioners have established a factual basis from which it can be infer to that, prima facie there is a reasonable chance of harm to an interest of theirs. For purposes of acquiring standing under the "classic" approach, the petitioner need not show certainty of harm to an interest of his. It is sufficient that he show that prima facie there is a reasonable chance of such harm. Dr. Segal considered this in his book, supra, at page 98:

 

"An element of harm is required for recognition of standing, but it is not necessary that the harm should have actually occurred. It is sufficient that the petitioner demonstrate facts that show that a govern­mental decision or action is likely to harm an interest of his. For purposes of recognizing standing, it is sufficient that the facts indicate an apprehension of harm, ...It is sufficient for purposes of recognizing standing that the petitioner demonstrate a reasonable, though not certain, possibility that the governmental action is likely to harm him, or affect his situation".

 

            In my opinion, the Petitioners have shown in the Petition before us that the deferment of Yeshivah students' enlistment has a reasonable possibility of harming an interest of theirs, and that cancellation of the deferral and enlistment of Yeshivah students has a reasonable possibility of benefiting the Petitioners. This is sufficient within the framework of the "classic" approach to the rules of standing.

           

(2) The Petitioners Have Standing Under The Usual "Exceptions"

 

            An exception to the interest rule is recognized where the petitioner raises a problem of clear constitutional character (see paragraph 21, supra), such as the constitutionality of elections and their financing, the President's power to pardon, and similar fundamental problems. In my opinion, the constitutionality of releasing from army enlistment an entire section of the population falls within this framework. The army is one of the central pillars of national existence. Enlistment in the army is a general phenomenon. Every citizen and permanent resident is entitled and obligated to serve in the army. The question of army service is therefore a fundamental question within the structure of our regime. The constitutionality of deferring service for an entire segment of the population appears to me to be a question of sufficient constitutional character for it to be included among the usual exceptions to the interest rule.

 

(3) The Petitioners Have Standing Under The "Liberali­zation" Of The Exceptions

 

            29. In my opinion, the Petitioners in the Petition before us have standing, even if we were to say that they have no interest, and even if we say that their petition does not fall within those instances in which a petitioner's standing has been recognized in the past by the majority of the Justices of this Court. The rationale for my approach derives from the fact that the petition before us raises a problem of a public nature, which has a direct effect on the rule of law, and if we do not recognize Petitioners' standing as to its subject matter, it will not be possible to examine its constitutionality in court, because no one has better standing than them. This Court has several times considered broadening the scope of this type of care (see H.C. 2243/82 [19]; H.C. 1/81 [l0]). President Shamgar discussed this in H.C. 428,429,446,463/86, Misc. H.C. App. 320/86 [12], at pages 558-559:

           

"Even if the argument that none of the petitioners have a real and direct personal interest in revoking the ……on of the amnestys is correct, the petition should not be dismissed in limine because, as this Court has already noted in the past, in specified circumstances, 'where the problem raised is of a constitutional nature' and also where 'the matter raised in the petition is of a public nature, which has a direct affect on the advancement of  the rule of law and the delineation of the policies which ensure its existence in practice', it is appropriate to take a more liberal approach and open the gates of this Court to the petitioner who draws attention to such a problem".

 

            And President Shamgar reiterated this approach in H.C. 852,869/86, Misc. H.C. App. 483,486,487,502,507,512-515, 518, 521,523/86, 1,33/87 [15], at page 23:

           

"The Court was correct to acknowledge, whether explicitly or by inference, the extension of the right of standing regarding issues of an exceptional legal substance, which relate to the principles of the rule of law, including problems which bear a relation to constitutional values. Special attention is paid in cases like these to the consequences of refusing to hear the petition, that is to say, as stated above, there is significance to the fact that there is no other petitioner who has a direct and substantial interest".

 

            These principles apply to our case as well. We are concerned with a constitutional problem of a public nature, which is directly related to the rule of law, and as to which no one has better standing than the Petitioners. The aggregation of these circumstances justifies recognition of Petitioners' right of standing. Having recognized the Petitioners' standing, the question of the justiciability of their petition arises. We now turn to this question.

           

Justiciability

 

A. The Parties' Claims

 

            30. The second argument by Counsel for the Respondent is that the subject matter of the petition is not justiciable, and accordingly the Court may not consider the Petition. According to her, the issue of enlistment deferment for Yeshivah students is among those topics which the Court prefers not to enter into and determine. This is a question over which the public is divided in its views, and should therefore, in her view, be settled by other authorities, in the manner accepted in a democratic society. The question of enlistment of Yeshivah students is a political question, and accordingly a change in such a rooted deeply situation requires a political decision, a judicial determination being inappropriate. A court's intervention in this question will fan the flames of public controversy, and accordingly judicial restraint is appropriate. In the opinion of counsel for the Respondent, the mutual relations and reciprocal respect between the governmental authorities indicate the need for the Court to leave the determination of this question in the hands of the other branches of government - the Government and the Knesset.

 

            31. In their response, Petitioners claim that the subject matter of the Petition is justiciable. True, the Petition contains public and political aspects, but this does not bar the hearing of a petition in the High Court of Justice. Even a subject of a clear public nature, from which the aura of politics emanates, and which is likely to give rise to a public outburst, is justiciable. Only thus is it possible to ensure that the executive branch observes the law. Such judicial supervision does not harm the separation of powers. On the contrary: it is in the very soul of every democratic regime.

           

B. Various Meanings Of The Concept Of Justiciability

 

            32. Contradictory arguments regarding justiciability raise anew the question of justiciability. Indeed, the problem of justiciability is a difficult one, which has occupied this Court's attention since its foundation. It has come up in the decisions of courts outside of Israel, and there as well it has been shown to be a question which is not capable of "scientific verification" (as put by Justice Frankfurter in the case of Poe v. Ullman, (1961) [66], at 508, cited with approved in H.C. 73/85 [22], at page 161. Justice Witkon conducted an in depth study of the question of justiciability in general, and the justiciability of political matters in particular, in his essay, supra, and see Adjudication also A. Witkon, Law and - Collection of Articles and Notes (Schocken, 5748, 1988) 55. At the end of his study he admits, with admirable candor, that "we set out in search of guidance, yet I fear that we are still in a state of confusion (Politics and Law, at page 69). It has been emphasized in case law - in Israel and beyond - that the concept of justiciability is unclear, "that its foundations cannot be defined in a precise manner" (H.C. 73/85 [22], at page 181); and likewise that it is "a concept of uncertain meaning and scope" (Flast v. Cohen (1968) [67], at 95). There are those who have gone so far as to describe it as "a monstrous creature", whose nature "I have never understood" (Justice Silberg in H.C. 295/65 [23], at page 328), while expressing doubt as to "whether a scholar will ever be found who will be able define exactly the meaning of this phrase" (id.). Indeed, the great experts in this area have stated that in their opinion, justiciability "has varying aspects and is among those questions to which no satisfactory answer can be given" (Witkon, Politics and Law, at page 69), and that it has apparently been decreed that the argument over it is to be "an eternal argument" (Justice Witkon in H.C. 606, 610/78 [24], at page 124).

 

            33. I have no intention to resolve Justice Silberg's doubts as to "whether a scholar will ever be found who will be able to define exactly the meaning of this phrase" (H.C. 295/65 [23], at page 328), nor to solve problems "which cannot be settled" (Witkon, Politics and Law, at page 69). Nonetheless, it seems to me that the source of many of the difficulties in understanding the concept of justiciability is the fact that that term carries several meanings (see G. Marshall, "Justiciability" in Oxford Essays in Jurisprudence (Oxford, ed. by A.G. Guest, 1961) 265. It therefore seems to me that the first task is to distinguish between the various meanings of this term, to the extent that they relate to our issue. Afterwards it will be necessary to examine each meaning of the term justiciability separately, against the background of modern developments in the area of public law. It should be stated at this point that this examination of the term justiciability is based on the view that, whatever be its content, it is not a term which relates to the jurisdiction of the court, but rather to the way in which judicial discretion is to exercised therein. In its early days, the Court took the position that lack of justiciability necessarily results in lack of jurisdiction: H.C. 65/51 [25]. Subsequently, this was shown to be erroneous, and it was emphasized that "there is a difference between jurisdiction and justiciability" (Justice Witkon in H.C. 222/68, Mot. 15/69 [26], at page 164), and that the issue of justiciability stands on its own, so that "it should not be confused with the issue of jurisdiction"(Deputy President Y. Kahan in H.C. 306/81 [21], at page 125). Similarly, standing must not be confused with justiciability.

           

            True, this Court's holdings have pointed more than once to the link between these two issues (H.C. 40/70 [1]; H.C. 448/81 [2]), but this connection must not result in the blurring of the distinction between the two issues. Indeed, "the right of standing and justiciability are two separate matters" (Deputy President Y. Kahan in H.C. 448/81 [2], at page 85). Right of standing concerns the petitioner's power to move the court to hear his petition; justiciability concerns the appropriateness of the petition for judicial consideration:

 

"We must distinguish between two separate issues: on the one hand, the question of the petitioner's right of standing, according to which it is determined whether the court will pay attention to the matters set forth by this particular petitioner as a person pleading his own case. On the other hand, the justiciability question is a separate and different problem, i.e. the question of whether the court will deal with the substance of the matter brought before it" (Justice Shamgar in H.C. 561/75 [27], at page 315).

 

            34. In principle, a distinction can be made between two different meanings of the term justiciability (see H.C. 802/79 [28]). The first can be called normative justiciability; the other may be called institutional justiciability. (Compare A. Bendor's excellent article, "Justiciability in the High Court of Justice", Mishpatim 17 1987-88) 592), which distinguishes between "material justiciability" and "organic justiciability"; see also D.J. Galligan, Discretionary Powers (Oxford, 1986) 241). Normative justiciability answers the question of whether legal standards exist for the determination of the dispute before the court. Institutional justiciability answers the question of whether the court is the appropriate institution to decide a dispute, or whether perhaps it is appropriate that the dispute be decided by a different institution, such as the legislative or executive branches. These two meanings of justiciability are distinct, so that they ought not, therefore, to be confused. Marshall, supra, addressed this at 266:

           

"Unfortunately, assertions that rules are not justiciable are as a matter of usage employed ambiguously both to indicate the absence in fact of a fixed procedure and to proclaim the unsuitability of a rule for application by that procedure".

 

            I shall now deal with each of the two types of non-justiciability and their place among the High Court of Justice's considerations. It goes without saying that this distinction is relevant to the use of the term justiciability in the High Court of Justice, regarding the hearing of petitions brought before it. This distinction may be irrelevant - and it will be necessary to examine the relevance of other distinctions - to the use of the term justiciability in other contexts. Indeed, the concept of justiciability is a broad concept, which has ramifications in various contexts (R.S. Summers, "Justiciability" 26 Modern L. Rev. (1963) 530). I am dealing here with the concept of justiciability solely within the context of administrative law and the discretion of the administrative court.

           

C. Normative Justiciability (Or Non-Justiciability)

 

            35. A dispute is justiciable in the normative sense if legal standards exist for its resolution. A dispute is not justiciable in the normative sense if legal standards do not exist for its determination. The question is not whether the dispute ought to be resolved by the law and in court, but rather whether it is feasible to decide it in that way. Normative justiciability therefore does not deal with what is desirable but with what is possible. Justice Brennan addressed this aspect of justiciability in the case of Baker v. Carr (1961) [68], at 217, stating, that a dispute is non-justiciable - or more correctly, raises a "political question", if regarding it there exists -

 

"a lack of judicially discoverable and manageable standards for solving it".

 

            Justice Sussman also assigned this meaning to the concept of justiciability, both in case law and beyond. In H.C. 186/65 [29], the petitioner requested that the German Ambassador to Israel be barred from entering Israel because of his service in the German army during the Second World War. The High Court of Justice dismissed the petition. In considering the actual question of diplomatic relations with Germany, Justice Sussman noted at page 487, that "the issue is not a legal issue but rather a clear political issue; it cannot be tested by legal standards". As to the confirmation or rejection of one ambassador or another, that, in Justice Sussman's opinion, is a matter of policy:

           

"It is not a legal issue which by its nature can be resolved in a court. The considerations are not legal, but pertain to foreign policy and the fitness of the candidate for the post, which this Court is neither authorized nor capable of deciding". (Id.)

 

            Justice Sussman reverted to the normative meaning of the concept of justiciability outside the courtroom, stating:

           

"A matter is said to be non-justiciable when the refrains court from deciding it because it cannot decide it according to legal standards" (Y. Sussman, "The Courts and The Legislature", Mishpatim 3 (5731) 213, 216 margin note E).

 

            Justice Landau addressed this aspect of the concept of justiciability in H.C. 58/ 68 [30]. Here the question arose, inter alia, as to the nature of the Jewish nation for purposes of the Population Registry Law, 5725-1965. In addressing this question, Justice Landau stated that in his opinion, the question is justiciable. Justice Landau said, at page 530:

           

"The subject of the nature of the Jewish nation is not in itself injusticiable, as shown by the decision of this Court in the Rufeisen case. We are required to abstain from adjudicating in this petition, not from lack of justiciability of the subject, but from our inability to produce a judicial answer to the problem from any of the legal sources from which we usually draw our inspiration".

 

            Justice Silberg reverted to the normative approach to the concept of justiciability in H.C. 222/86, Mot. 15/69 [26], at page 158. Where he said, with regard to the "non-justiciability" argument:

 

"In my ruling in the Oppenheimer case (H.C. 295/65, supra) I expressed my disapproval of the entire concept, and said that 'I do not understand the nature of this monstrous creature'. Five years have passed since then, and I have been able to reflect upon the 'nature' of that creature. I shall therefore not oppose in principle the very concept, but rather be satisfied with saying that in any event, it has no application to the case before us. Something can only be non-justiciable which, because extra-legal considerations, such as political, constitutional, foreign policy considerations and such, operate within it, it cannot be 'contained' in a legal framework, such as, for example, the American legal principle of 'equal protection' or 'due process'. But an issue cannot be non-justiciable which of itself is a legal matter, but in specified circumstances it is preferable for it to be dealt with by a non-judicial authority. The case before us is of the latter type, and accordingly I dismiss the plea".

 

            Deputy President Y. Kahan reviewed the same approach in H.C. 448/81 [2], at page 88, stating that a question is non-justiciable if it is -

 

"a question, regarding which the court does not have legal standards on which a judicial decision can be based".

 

            In contrast, it was held that a question is justiciable if it raises "a clear legal issue" (Justice Goldberg in H.C. 89/83 [31], at page 496), which can be resolved "according to ordinary legal principles, under which a statutory body's exercise of jurisdiction is assessed" (President Shamgar in H.C. 852,869/86, Misc. H.C. App. 483, 386, 387,502,512-515,518,521,523,543/86, 1,33/87 [15], at page 37). At times judges express the idea of normative non-justiciability not in terms of "the law", but rather in terms of "the court". They note that "we do not have before us an issue subject to judicial determination and decision" (President Smoira in H.C. 65/51 [25], at page 874), and that these are "such matters which due to their characteristics and nature, the court does not see itselffit to determine" (Justice Berinson in C.A. 591/73 [32], at page 762), or that these are subjects "which are not proper, according to their characteristics and nature, for judicial decision and determination" (Justice Shamgar in H.C. 561/75 [27], at page 315).

 

            36. The relevant point of departure for examination of normative justiciability (or non-justiciability) is the conception that the law is a system of prohibitions and consents. Every act is permitted or forbidden in the world of law. There is no act to which the law does not apply. Every act is contained within the world of law. Accordingly, I do not accept Justice Silberg's approach in H.C. 222/68, Mot. 15/69 [26], which recognizes the existence of actions which cannot be "contained" within the framework of the law. Indeed, every action can be "contained" within the framework of the law. The examples cited by Justice Silberg - the American principle of "equal protection" and "due process"- are appropriate examples of actions which the American Supreme Court has "contained" within the legal framework, and it makes daily use of them in critical examination of legislative and executive action. Indeed, every action can be "contained" within a legal norm, and there is no action regarding which there is no legal norm which "contains" it. There is no "legal vacuum", in which actions are undertaken without the law taking any position on them. The law spans all actions. Sometimes it prohibits, sometimes it permits, at times by creating a presumption of permission ("everything is permitted to the individual, unless forbidden"), or of prohibition ("everything is forbidden to the government, unless permitted). Even in places where there is a "lacuna" in the law, the law sets forth the means for filling the lacuna. According to this approach, there can be no situation in which there is no legal norm applicable to an action.

           

            As to this matter, it is immaterial what the action is, whether it is political or not, whether it is a policy matter or not. Every action  - including political or policy matters - is contained in the world of law, and a legal norm exists which takes a stand as to whether it is permitted or forbidden. The argument that "the issue is not a legal issue, but rather a clear political issue" confronts two concepts where there is no basis for such confrontation. The fact that a matter is "clearly political" cannot negate its existence as a "legal matter". Every matter is a "legal matter", in the sense that the law takes a position on whether it is permitted or forbidden. Take, for example, the governmental decision discussed in H.C. 186/65 [29] to establish diplomatic relations with West Germany. This is certainly a clear "political" decision. Nonetheless, the law takes a position on it as well. This is not an action outside the legal world. Thus, for example, the law takes a position as to the question of which organ is authorized to decide, on behalf of the state, on the establishment of diplomatic relations with West Germany. It is inconceivable to argue that this is a political, not a legal, matter. The question of authorization is a legal issue, which has political consequences, just as it is a political issue with legal consequences.

 

            Similarly, if that organ accepts a bribe, it is inconceivable to argue that the issue is political and not legal. The law takes a position on the action of accepting a bribe regardless of the political nature of the action. Accordingly, the political and legal planes are distinct from one another. They do not displace one another, not does one render the other superfluous. They operate in different areas. The very same action, perceived by one, is also perceived by the other. The "political" nature of the action does not negate its "legal" nature, nor does its "legal" nature negate its "political" nature. Naturally, at times the political nature of the acting authority and of the action undertaken have an impact on the content of the legal principles which regulate that action (see the opinion of Justice Elon in H.C. 620/85 [33]) and also Bendor, in his article supra, at page 629). Thus it was held that the participation of a particular party in a Knesset committee, at the time that it was considering an election appeal likely to affect the number of that party's seats, should not be invalidated for conflict of interest. The Court took into consideration the political nature of the Knesset and crafted the rules guiding its conduct in accordance with that nature (H.C. 731/84 [34]).

           

            Similarly, the political nature of the authority is likely to affect the range of factors which it may consider and the options available to it. "The realm of reasonableness... is an area whose measure is determined by taking into consideration the status of the governmental authority concerned and the nature of its powers") (President Shamgar in H.C. 428,429,431,446, 448, 463/86, Misc. H.C. App. 320/86 [12], at page 557), but this is far from saying that political matters are non-justiciable. It is true that the political matter is likely to affect the content of the legal aspect. Moreover, the political aspect is likely at times to bring about a situation where a particular rule of public law will not apply to specific actions having political consequences. In all of these situations, we are not contracted with a situation where no legal norms exist. On the contrary: in every one of these cases we are concerned with a situation in which a legal norm exists whose content does not prohibit, but rather permits, political action. The petition will not be dismissed in these cases because of a preliminary claim of normative non-justiciability, but rather on its merits, for lack of a cause of a dam.

 

            To be precise: I do not take the position that the political nature of the action always affects the content of the rules of law which regulate it. On the contrary: in the vast majority of cases, the political nature of the action does not affect its normative evaluation. Therefore, for example, we were of the opinion that the Knesset is also subject to rules of reasonableness and fairness when depriving Knessets member of their immunity (See H.C. 620/85 [33]). However, there may be exceptional cases. Thus, for example, it may well be out of place to apply the regular rules of the administrative discretion doctrine to the decision to make peace or to go to war. In such exceptional cases the petition will be dismissed, not because of a lack of a legal norm, but because of the lack of a prohibitive norm and the existence of a permissive norm, that is to say, lack of a cause of action. The action is not non-justiciable. The action is justiciable and lawful.

           

            37. Against the background of this theoretical observation regarding the "global" nature of legal thought, it is necessary to revert to and review the case law dealing with normative justiciability (or non-justiciability). Such review shows that the cases which examined this type of justiciability (or non-justiciability) did not stress the absence of a legal norm, but rather emphasized the absence of legal standards and legal criteria to decide the dispute. This position therefore raises the following question: What is the meaning of the view that there exists a legal norm applicable to the issue, but no legal standards within the framework of. such norm to ascertain what is prohibited or permitted thereby? Can a legal norm exist without legal standards? To answer this question, the meaning of the phrase "legal standards" or "legal criteria" must be examined. This phrase apparently means the circumstances and conditions for the application of the norm. When the norm is one of jurisdiction, the standards determine when jurisdiction exists and when it is denied. When the norm relates to taking a bribe, the standards determine when there is the taking of a bribe and when there is not. When the norm is that of reasonableness, the standards determine when an action is reasonable and when it is not. According to this view of the concept of legal norm and of the legal standards, it seems to me that it is quite impossible to refer to the existence of a legal norm, and at the same time, to the absence of legal standards. If the norm exists, it follows that legal standards also exist. If no legal standards exist, that means that the particular legal norm does not exist, and that a different norm applies. I do not see how it is possible to refer to the existence of a legal norm, and at the same time the absence of circumstances and conditions for its application. Of course, the content of the norm and the circumstances and terms of its application may be difficult to apprehend. Every legal norm requires interpretation; no such norm is immune from the process. Interpretation is likely to be complicated and difficult. But at the end of the interpretive process we have before us the legal norm, which by its very nature includes the standards for its application. A legal norm without standards for its application is like a man without a shadow, or a form without substance, Nothing like this exists in the world of law, which consists entirely of '"bodies" and "shadows", and forms which enclose substance.

 

            38. Take, for example, the question of establishing diplomatic relations with West Germany. It was held that this question cannot be "tested by legal standards" (H.C. 186/65 [29], at page 487). It would seem that no one would make this claim - and it was not raised in H.C. 186/ 65 [29] - regarding the question of what organ is empowered under Israeli constitutional law to decide as to the establishment of diplomatic relations. Similarly, I assume that the claim of non-justiciability would not be made if the question were the legality of accepting bribes in the establishment of diplomatic ties in the example I cited. But what is the rule if the argument is that it is not proper to enter into diplomatic relations with West Germany? Does this argument have a legal "framework" and legal standards? To answer this question it is necessary to examine, first and foremost, the nature of the legal norm applicable to the issue. The political plea of "improper" does not have to be translated into the legal norm which signifies means "improper". As we have seen, the political plane and the legal plane are distinct. Examination of the example I have cited reveals that the closest legal norm is that which states that every governmental decision - including that concerning diplomatic relations with West Germany - must be reasonable. The political claim that "it is improper to establish diplomatic ties with West Germany" is translated into the legal argument plea that "it is unreasonable to establish diplomatic ties with Western Germany".

 

            The question is therefore the following: If a general norm in fact exists which imposes on government the duty of reason­ableness, and if in fact this general norm applies also to the decision to establish diplomatic ties - could it be that there are no standards and criteria to assess the question of whether govern­mental conduct is reasonable or unreasonable? In my opinion, the existence of the reasonableness norm implies that standards to assess the reasonableness of an action exist. It cannot be that a norm exists prohibiting unreasonable action, but no standards to decide the question of whether or not an action is unreasonable. We are concerned with an interpretative activity requiring that normative content be given to the principle of reasonableness and that standards be established for its realization. The argument that after the interpretative act there are no standards to determine the reasonableness or unreasonableness of a particular action, resembles the argument that the norm of reasonableness does not apply to a particular action. In that case the argument that the action is illegal would be dismissed, not for lack of legal standards but because of the lack of a prohibiting norm, that is to say, because the action is legal.

           

            39. On the basis of this conception, it is possible to examine the plea of "non-justiciability" which was raised and admitted in H.C. 561/75 [27]. There the petitioner argued that the army was not employing a correct method of debriefing and deriving lessons in the aftermath of the Yom Kippur War. The Court held, at page 319, that "matters concerning the organization of the army, its structure and preparedness, equipping and operations - are not justiciable, since they are not appropriate matters for hearing and determination by courts of law... it is fundamentally unreasonable to expect a judicial authority to weigh and decide what is the most effective method, from a professional-military point of view, for deriving lessons from operational actions and replace the discretion of military authorities, who were trained and placed in command of such, with its own. Personally, I would have reached the same conclusion by a different route, which is as follows: The first question I would have posed is, what is the relevant legal norm for deciding petitioner's claim. To the best of my knowledge, there is no norm which states that an ineffective governmental action is illegal (see H.C. 311/ 60 [35]).

 

            Accordingly, if the sole plea is lack of effectiveness, as such, the petition must be dismissed for lack of a cause of action, because the petitioner did not indicate any norm according to which an ineffective military action is also illegal. However, it seems that the correct legal framework which can "contain" petitioner's plea is that the army is acting unreasonably. His legal argument is therefore that an army which does not conduct debriefing and does not derive lessons as he alleges, is an army which is acting unreasonably.

           

            The reasonableness test is a well-known and familiar one. Under it, the court does not replace the military authorities' exercise of discretion by its own. Under this test, the court asks whether a reasonable army would have taken the actions which the army took, or the actions which the petitioner requests the army to take. The burden is on the petitioner - in light of the presumption of lawfulness - to demonstrate that the army action is un­reasonable. If he does not bear this burden, the petition must be dismissed on its merits. On the other hand, if the petitioner succeeds in demonstrating that the army action is unreasonable, his petition must be allowed. The key question is therefore the following: Do legal standards and legal criteria exist, pursuant to which it is possible to decide whether the conduct of debriefing and the learning of lessons undertaken by the army are reasonable, or not? In my opinion, the answer to this question is in the affirmative. I see no difference between this question and any other question concerning the reasonableness of conduct by government (in public law) or by any person (in public and private law). Let us assume that a petitioner suffered a physical injury, and he files a tort claim against the State, alleging that the State was negligent in that it did not conduct debriefing and did not derive lessons, and that because of this he suffered a physical injury. Is it conceivable that this claim would be dismissed solely because it is "non-justiciable"?  In my opinion, it would be incumbent on the court to examine this claim substantively, under the reasonableness, negligence and causation standards. More than once, operative plans for the structure of means of combat have been examined under tort law. If legal standards exist within the framework of tort law, why should such standards not exist under administrative law, which seeks to grant a remedy prior to the affliction? To be more precise, I am not now examining the question of whether it is proper for a court to examine the question of whether the derivation of lessons and the conduct of debriefing are lawful. This question will be decided within the framework of institutional justiciability (or non-justiciability). I am currently examining normative justiciability (or non-justiciability). The question which I seek to deal with is whether a legal examination of the issue is impossible, because there are no legal standards for its examina­tion. In my opinion, once it is determined that the norm as to reasonableness applies to particular conduct, it is thereby auto­matically decided that there are legal standards to measure the reasonableness of that conduct. The argument that there are no legal standards to measure the reasonableness of particular conduct is equivalent to the argument that the norm as to reasonableness does not apply to that conduct, or that the claimant has not discharged the burden placed upon him to demonstrate that the conduct is unreasonable.

 

            40. Since most of the arguments as to normative non-justiciability must, in my opinion, deal with the legal norm which imposes the duty of proving reasonableness on the government, it is worthwhile examining this issue closely. Today everyone agrees that government must act reasonably (see H.C. 389/80 [36]). This means that government authorities must choose that course of action which a reasonable government authority would have chosen under the circumstances of the matter. Frequently a number of reasonable courses of action exist, and then it is incumbent on the authority to choose that course of action which seems best to it, from among the reasonable courses of action ("the scope of reasonableness"). The boundaries of the scope of reasonableness are determined pursuant to the proper balance between the various interests and values struggling for primacy, and in particular the individual's interest and values on the one side, and those of the public on the other. The relevant interests and values are determined according to the relevant material within which framework the action is examined, and on the basis of the fundamental principles of the system, its "credo" and the conception of the enlightened public within it, while the scope is determined according to the weight and balancing between these interests. The determination of the reasonableness of the action is therefore not technical but substantive; the question is not merely a matter for logic and rationality. The question is a matter of legal policy and the balance between competing values. Professor McCormick emphasized this, stating that:

 

"What justifies resort to the requirement of reason­ableness is the existence of a plurality of factors requiring to be evaluated in respect of their relevance or common focus of concern ...unreasonableness consists in ignoring some relevant factor or factors, in treating as relevant what ought to be ignored. Alternatively, it may involve some gross distortion of the relative values of different factors, even though different people can come to different evaluations each of which falls within the range of reasonable opinions in the matter in hand". (Mac Cormick, "On Reason­ableness", in Perelman and Vander Elst (ed), Les Notions a contenu variable en droit 131, 136 (1984).

 

            It seems to me that the determination of the various interests and values struggling for primacy is an activity has to be conducted by legal standards. The matter requires interpretation of the relevant norm, and ascertaining the interests and values falling within its Gambit. It is routinely undertaken when the court locates the interests and values - such as public order on the one side and free expression on the other - struggling for primacy. Indeed, the primary difficulty is, in my opinion, inherent in the need to give these values and interests "weight", and to balance them at the decisive point. Justice Shamgar correctly noted in F.H. 9/77 [37], at page 361, that "the process of weighing competing values in the balance indicates the point of departure for interpretation, but it cannot formulate the standards or weight to be attached to values, whereby the interpretative process is carried out". Could it be said that there may be situations with no legal standards or criteria for the assignment of "weight" and far effecting the "balancing" process? To be more precise:

 

"These phrases - balance, weight - are nothing but metaphors. Behind them stands the concept that not every principle is of identical importance in the eyes of society, and that in the absence of legislative guidance, the court must assess the relative social importance of the various principles. Determining the balance on the basis of weight means assigning social value to the relative importance of the various principles" (H.C.14/86 [38], at page 434).

 

            Could the court find itself in a situation where - in the absence of legislative guidance - it lacks legal standards for conducting "the balancing" and assigning "weight." To be more precise: The question is not whether it is undesirable that the court engage in the activities of weighing and balancing. This question will be considered later on within the framework of the claim of the institutional justiciability (or non-justiciability). The question is whether practically speaking, the court may be incapable of carrying out the process of the weighing and balancing.

           

            In my opinion, the answer to this is in the negative. In the absence of legislative guidance, the court must turn to the fundamental values of the nation, to its "credo"(as the Declaration of Independence was called in H.C. 10/48 [39], at page 89, by President Smoira), or to its "national way of life "(Justice Agranat in H.C. 73,87/53 [40], at page 884), and to "the sources of national consciousness of the people in whose midst the judges reside" (M. Landau, "Rule and Discretion in the Administration of Justice" Mishpatim Vol. I (5729) 292, 306. In doing so, the court will consider the outlooks "accepted by the enlightened public" (Justice Landau in C.A. 461/62 [41], at page 1335; H.C. 112/77 [42]). At times the judge will find that, for one reason or another, those sources do not afford sufficient guidance. In such situations it will be incumbent upon the judge to exercise his discretion (see H.L.A. Hart, The Concept of Law (Oxford, 1961) 128). This task is at times difficult. Justice Frankfurter addressed this when he stated:

 

"The core of the difficulty is that there is hardly a question of any real difficulty before the Court that does not entail more than one so-called principle....judges cannot leave such contradiction between two conflicting 'truths' as 'part of the mystery of things'. They have to adjudicate. If the conflict cannot be resolved, the task of the Court is to arrive at an accommodation of the contending claims. This is the core of the difficulties and misunderstandings about the judicial process. This, for any conscientious judge, is the agony of his duty". (F. Frankfurter, "The Judicial Process and the Supreme Court", Of Law and Men (ed. by P. Elman, 1956) 31, 43).

 

            The judge's choice in this situation is not arbitrary:

 

"The judge does not impose his subjective values on the society within which he acts. He must balance between the various interests, according to what seems to him to be the needs of the society within which he lives. 'He must exercise his discretion according to what seems to him, to the best of his objective knowledge, to reflect the needs of society. The question is not what does the judge want, but rather, what does society need'" (C.A.242/83 [43], at page 131).

 

            True, the exercise of judicial discretion in this situation is difficult, but despite the difficulty the judge must exercise it. The lack of sufficient guidance as to "the fundamental principles of the system" and the national "credo" is likely to influence the substance of the choice, but this does not make the choice impossible. In such a situation the judge must consider all values and interests, and he must give them the weight he thinks best reflects their meaning in his society. Justice Landau referred this in H.C. 58/68 [30], at 530, when he stated:

 

"I should like to make it clear that I am not basing my opinion on any lack of "justiciability" of the problem before us. For me that is largely a matter of semantic definition only. But to be precise, let me say that the subject of the nature of the Jewish nation is not in itself injusticiable, as shown by the decision of this court in the Rufeisen case. Abstention from adjudicating which is our duty in this petition does not stem from lack of justiciability of the subject, but from our inability to draw a judicial answer to the problem from any of the legal sources from which we usually obtain our inspiration.

 

As I have explained, the views common among the enlightened public are also a proper source of adjudication when no other source is available to us. The court has more than once drawn upon this source in decisions which have become milestones in the development of our case law and there will certainly be further opportunities for doing so in the future. But on the present occasion this source, too, fails us, in view of genuine differences of opinion which prevail among the public. Nevertheless there may be cases where a judge may perforce have to decide and to give his personal answer to a question of general outlook on life, although that question may be in dispute. But that is not the situation in the present case, because here we are required to pass judgement on the directives of the Minister of the Interior which were issued as an authorized administrative act, and whoever wishes to upset those directives must convince the court that they suffer from some invalidity. The petitioner has not discharged this burden".

           

            Accordingly, the fact that the "source" from which the viewpoints of the enlightened public was derived, were in the judge's opinion, disappointing, did not lead him to consider that there was a lack of legal standards to decide the question before him. It influenced the substantive resolution of the question, but did not prevent it being dealt with. This fact is particularly significant where the legal norm on which basis the dispute is decided is that of reasonableness. "The drying up" of the source regarding the "enlightened public's views" is likely to lead to the conclusion that the petitioner did not discharge the burden imposed on him to demonstrate that the governmental decision was unreasonable. But this drying up will never lead to the negation of the norm itself.

 

            41. Thus, my approach is that wherever there is a legal norm, there are legal standards which implement that norm. This simply means that when an issue lacks legal standards to determine it, the legal norm such as that which the petitioner argues for does not apply to the issue, and another norm applies instead. Hence it follows that the argument that the issue is not materially justiciable means no more than that the petitioner has not identified the legal norm which makes the governmental action a prohibited one. Accordingly, the claim of material non-justiciability is nothing but a claim of failure to state a cause of action. In allowing a plea of material non-justiciability, the court is not abstaining from addressing the lawfulness of the action. On the contrary: the court is taking a position as to its lawfulness and determining that it is lawful. Regarding this possibility Justice Witkon noted in H.C. 222/68, Mot. 15/69 [26], at page 166, that "this kind of 'non-justiciability', which does not preclude consideration of the question, and which may only become apparent as a result of such consideration the deliberation, is in reality no different from the usual reasoning in many cases, that the matter is submitted to the discretion of the administrative authority, which acted in a lawful and reasonable manner". In my opinion, lack of normative justiciability is nothing but the lack of a cause of action in law. Professor McCormick stressed this point, stating:

           

"To say that a 'case' before the court is nonjusticiable is to say that the plaintiff has no judicially enforceable right. To say that the plaintiff has no judicial right is to make a conclusive statement about the nature of the 'law' on which the plaintiff is relying; it is necessarily an exercise in interpretation and application of that law to say that the law applied by the court does not protect the plaintiff. Masking the holding in language that purports to decide only a 'preliminary' or 'threshold' issue hides a decision on the merits without elaborating the reasons behind the decision. Justiciability, like any other decision for or against a claimed 'right', is a label that expresses a decision on the conflicting interests of the parties and constraints that operate on each" (McCormick, "The Justiciability Myth and the Concept of Law", 14 Hastings Const. L.Q. (1987) 595).

 

            42. In my opinion, those cases in which the court dismissed petitions for material non-justiciability could have been dismissed on substantive grounds, for lack of a cause of action. Take, for example, H.C. 65/51 [25]. There the petition was dismissed because in the Court's opinion, the President's action under paragraph 9 of the Transition Law, 5709-1949, is non-justiciable. It is "outside the judicial realm", because "the matter before us is not one which is amenable to judicial determination and decision" (Id. at page 814). In my opinion, the President's action under paragraph 9 of the Transition Law is not "outside the judicial realm" but rather inside the judicial realm. Justice Witkon addressed this in Politics and Law, at page 8, when he presented the following question:

 

"What for example, would the situation be if a particular Knesset member had the power to form a government enjoying confidence of the majority of the Knesset, but the President steadfastly refused to assign the task to him? Would the court refuse to intervene there as well, even if that Knesset member applied to it and claimed his constitutional right?"

 

            My answer to this question is that, according to the legal situation pursuant to the Transition Law, the court would not refuse to intervene. In my opinion, paragraph 9 of the Transition Law creates a "legal realm" which by its terms sets forth what is permitted and forbidden, so that therefrom, legal standards for the. Presidents action are derived. If the President refuses to assign the task of forming the government to the only Knesset member who has the majority to do so, the President violates the provisions of the statute. His action is "justiciable". According to this very approach, the petition in H.C. 65/51 [25] could have been dismissed because the petitioner did not indicate any illegality in the President's action. Justice Witkon addressed this, when he presented the question (Politics and Law, at page 7):

 

"Would it not have been preferable to enter into the essence of the matter and dismiss the request as being unfounded. It seems to me that it would have been easy to do so, and it would not necessarily have set any precedent. It is clear that there would not have been any reason to require the President to assign the task of assembling the government to each of the 119 other Knesset members, one after the other, when he was aware, as a result of his consultations with the parties' representatives, that this action would be meaningless and pointless. There is no way out of this impasse other than to dissolve the Knesset and hold new elections".

 

            If it is "easy" to dismiss the petition on its merits, how can it be said that it is outside the judicial realm, and that "we do not have before us an issue subject to judicial determination and decision'? Indeed, I agree with Justice Witkon, that the petition could have been dismissed on its merits, and that the substance of the petition was, accordingly, justiciable.

           

            43. I reach a similar conclusion, and by a similar line of reasoning, in H.C. 186/65 [29]. As noted, the subject of this case was the establishment of diplomatic relations with West Germany and receiving its ambassador, who it was alleged took part in the Second World War. The Court, at page 487, dismissed the petition, holding that:

           

"This is not a legal issue which by its nature may be brought for adjudication by a court. The considerations are not legal ones, but rather considerations of foreign policy and of the fitness of the candidate for the post, which a court is neither empowered nor capable of deciding".

 

            In my view, the Court should have decide, first and foremost, the legal norm applicable to the matter. To the best of my understanding, the relevant norm is that which imposes upon the government the duty to act reasonably. Once the relevant norm was established, the Court had to assess whether the petitioner's claims indicate, at least prima facie, unreasonable conduct. I would answer this question in the negative and dismiss the petition for this reason. The Court's approach, according to which "the considerations are not legal ones, but rather considerations of foreign policy", does not confront the issue. True, the government's considerations are political ones, but this does not eliminate the need to examine whether a political consideration is lawful from a legal perspective. A political consideration is distinct from a legal one, but the political nature of the consideration does not obviate the need to examine its lawfulness. The Court is empowered and capable of examining the lawfulness of the decision, whatever its political nature may be.

           

            44. In H.C. 302,306/72 [44], the lawfulness of evacuating the petitioners from their homes in the Gaza Strip was examined. Justice Landau examined, inter alia, the substance of the army's actions, and found that there was no basis for interfering with the military government's discretion. Justice Witkon thought, inter alia, that the petition was non-justiciable. He declared, at page 182:

           

"In the instant case I thought, even before we entered into the of essence the matter that the non-justiciability was apparent on its face, and accordingly I saw no reason to allow counsel for the petitioner to examine the deparents on behalf of the respondent on their affidavits. This entire argument as to the extent of the distress and danger in the area concerned, and on the available and desirable preventative measures, has no place within the framework of a judicial determination. However, as stated, we read their affidavits and heard their arguments, and this was perhaps the right course, if only to mollify the petitioners and avoid the impression that we do not appreciate their situation... And having done this, we could have ignored the lack of justiciability this time as well, and decided the issue according to the usual criteria for such situations. Indeed, as my esteemed colleague Justice Landau explained in great detail, there was no deviation here from the power delegated to the respondents pursuant to the orders of the military commanders, and the considerations were genuine defence considerations... All the other issues, such as the selection of one system or program over others, are subject to the discretion of the respondents, who are conversant with this issue, so that their decision should not be interfered with".

 

            It seems that there is an inherent contradiction in this paragraph. If "this entire argument has no place within the framework of judicial determination", how is this matter examined "according to the usual criteria'? Indeed, Justice Witkon was correct in thinking that it is possible to examine the matter "according to the usual criteria". Such criteria include not only questions of jurisdiction, but also questions of reasonableness, including non-intervention in military discretion where a reason­able military authority would have been entitled to make the type of decision described in the petition. See Y.S. Zemach, "The Non-Justiciability of Military Measures" 9 Isr. L. Rev. 128 (1974)). At the same time, the Court was entitled and obligated to assess whether the military action was not unreasonable. Murphy J. pointed this out in his minority of inion in the case of Korematsu v. United States (1944) [69], at 234, when he stated that:

           

"It is essential that there be definite limits to military discretion... the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions'".

 

            Indeed, the the Supreme Court has held more than once that the army's security considerations, whether within the boundaries of Israel or in Judea, Samaria and Gaza, are subject to judicial review, and that this review does not extend only to the question of functional jurisdiction and the very existence of the security consideration, but rather extends to the all the grounds, including the question of the reasonableness of the security consideration (see H.C. 69,493/81 [45]; H.C. 393/82 [46]). Accordingly, this Court considered the reasonableness of the Military Governor's decision not to permit reunion of families, despite the fact that the decision on this matter was one relating to military policy and the Court dismissed the plea, justiciability lack of material (see: H.C. 263, 397/ 85 (Misc. H.C. 222,267/ 85 [47]), at page 284; H.C. 629/82 [48]). Accordingly, I would have examined H.C. 302,306/72 [44], as did Justice Landau, on the merits, and without entertaining the non-justiciability argument at all.

 

            45. In H.C. 561/75 [27 J - the case I mentioned (paragraph 39 supra) - I would have reached the same conclusion as the Court did in dismissing the petition, without resort to reasoning regarding non-justiciability. Like the Court in 561/75 [27], I also think that "it is entirely unreasonable for a judicial authority to weigh and decide what is the most effective method, from a professional-military point of view, for deriving lessons from operational acts and to replace the opinion of the military authorities, who were trained for, and put in command of, such action with its own" (Justice Shamgar, at page 319). The legal expression of this approach need not be the classification of the claim as non-justiciable. The proper expression is, in my opinion, the principle that the Court does not substitute its opinion for that of governmental authorities, where they are operating within the realm of their authority and are not exercising their discretion unlawfully. The petitioner did not point in the petition to a lack of reasonableness in the governmental actions, and accordingly his petition had to be dismissed on its merits. Justice Shamgar himself emphasized this, when he stated, at page 318:

           

"One should distinguish between the situation in which the military authority fails to operate in accordance with its legal duties or according to the order of a competent authority, or arbitrarily refuses to accept the recommendations of an authority lawfully appointed, and the situation where the military authorities acted within the scope of their authority, but the way they acted and their method meets with disapproval of a particular petitioner".

           

            Indeed, I also believe, that if a military authority fails to operate in accordance with its duties, its actions are "justiciable". Similarly, I also distinguish between this situation and the situation in which the military authority acts within the scope of its authority, "but the way they acted and their method meet with disapproval of a particular petitioner". In the latter case, we are not concerned with non-justiciability, but with lack of cause of action. The mere fact that a particular petitioner is dissatisfied with the army's actions does not mean that the action is unlawful. It is not sufficient for the petitioner to state that the governmental action is not to his liking, or that it is ineffective. He must indicate that it is unreasonable, that is, that the weight that the government gave to the relevant considerations and the balance made between them are inappropriate. The petitioner in H.C. 561/75 [27] did not do so, and for this reason I would also dismiss his petition. Like my colleague, President Shamgar, id., at page 319, I also think that "overstepping the limits between military, operational considerations and judicial consideration", should not be favoured, but it seems to me that where the court assesses the reasonableness of the military, operational consideration, it is not confusing military and judicial considerations. Justice Witkon, at page 321-322, explained his view that conduct of debriefing is not justiciable, as follows:

           

"The judiciary's non-intervention stems from the fact that the standards, order of priorities, and value system we accept and which permit us to review the actions of the civil government, do not necessarily fit the army's needs, which require, first and foremost, discipline and decisiveness".

           

            It seems to me that if this approach is correct, then the law applicable to the army must be adjusted to fit the army's needs. If this adjustment is made, the army action will be lawful, the petition will be justiciable, and it may be dismissed for lack of cause of action. If this adjustment is not made, and the army's actions do not conform with the law, the army's actions must be altered. The petition should not be dismissed for non-justiciability. Justice Witkon continues, at page 322, by stating:

 

"As we have heard, the I.D.F. ordinarily conducts debriefing, draws conclusions and applies lessons to the future, both from a personnel and from an operational perspective. This is among the army's tasks. The petitioner believes that in this case the army did not fulfill this task or did not properly fulfill it, did not conduct the proper debriefing and did not draw from them the required conclusions. Despite the temerity at the heart of the claim... it is his right to disagree with the military government, but ruling on this disagreement is not among the tasks of the judiciary. We do not have the tools for such, and taking upon ourselves this type of jurisdiction will not serve the purposes of the matter. It is as we stated: The subject is non-justiciable".

 

            In my opinion, the petitioner's right to disagree with the military government "is a right" only where the army has a "duty". A duty of this type exists, as to our matter, within the framework of the duty of reasonableness which is imposed on the army. Within this framework I believe "ruling on this disagreement is among the tasks of the judiciary", and in my opinion the Court has the tools to do so. The Court will hear about the actions that the army undertook with respect to the debriefing, as in fact happened in H.C. 561/75 [27], and will express its opinion as to whether by these actions the army fulfilled its duty to act reasonably. To this end, the Court will have to determine the relevant factors which must be taken into account, assign weight to these factors and balance them. I see there is no lack of tools for carrying out this task. It is no different from any other complicated determination regarding reasonableness or unreasonableness (negligence).

           

            46. It may be asked: Is the decision of a governmental authority justiciable in every instance? Are, for example, the decisions to go to war or to make peace "justiciable" decisions which may be "contained" within a legal norm and a judicial hearing? My answer is in the affirmative. Even in matters of war and peace it must be determined which organ is authorized to make the decision, and what kind of considerations does it take into account (for example, the prohibition of personal corruption). It can of course also be held - and this is an unresolved and difficult question - that the other of the rules of administrative discretion do not apply. In this latter case the petition will be dismissed not because of non-justiciability, but because of its lawfulness. In sum, the doctrine of normative justiciability (or non-justiciability) seems to me to be a doctrine with no independent existence. The argument that the issue is not normatively justiciable is merely amount to alleging that no prohibitive norm applies to the action, and that accordingly the action is permitted.

 

            My approach is based on the view that a legal norm applies to every governmental action, and that within the framework of the applicable norm it is always possible to formulate standards to ascertain the conditions and circumstances for action within the framework of the norm. This is certainly the case with regard to norms which determine jurisdiction and norms which determine the proper considerations in the exercise of jurisdiction. This is also the case where the operative norm is that which requires reasonable conduct by the government. Within the framework of this norm it is always possible to formulate passed standards for the examination of the reasonableness of conduct, and the authority's action will be examined on its merits pursuant to these standards, without any recourse at all to the claim of normative justiciability (or non-justiciability).

           

D. Institutional Justiciability (Or Non-Justiciability)

 

            47. A dispute is institutionally justiciable if it is appropriate for it to be determined by law before a court. A dispute is not institutionally justiciable if it is inappropriate fact to be determined according to legal standards before a court. Institutional justiciability is therefore concerned with the question of whether the law and the courts constitute the appropriate framework for the resolution of a dispute.

           

            The question is not whether it is possible to decide the dispute by law in court; the answer to this question is in the affirmative. The question is whether it is desirable to decide the dispute - which is normatively justiciable - according to legal standards in court. Justice Brennan addressed this aspect of justiciability - as well as normative justiciability - in the Baker case [68], at 217, when he stated, inter alia, that a dispute is non-justiciable where there is:

           

"...A textually demonstrable constitutional commit­ment of the issue to a coordinate political department; ...the impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrass­ment from multifarious pronouncements by various departments on one question".

           

            This statement of Justice Brennan has been quoted a number of times in the Supreme Court (see: H.C. 222/68, Mot. 15/69 [26], at page 165; H.C. 302,306/72 [44], at page 182; H.C. 306/81 [21], at page 133; H.C. 448/81 [2], at page 88; H.C. 652/81 [49], at page 203; H.C. 73/85 [22], at page 162), and it indicates an open ended list of considerations which the Court takes into account when it adopts a position on the question of whether it is proper for it to decide a dispute before it. In all of these cases the court asks itself whether it ought not to "abstain from fulfilling its normal judicial role" (Justice Agranat in H.C. 222/68, Mot. 15/69 [26], at page 215) and whether "the issues are suitable for judicial determination" (Justice Witkon in H.C. 302,306/72, at page 182). Thus, for example, it was held that the Court will not consider a petition alleging illegal action in the conduct of the internal affairs of the Knesset, unless the decision concerned is calculated to cause substantial harm to the fabric of parliamentary life and the foundations of the constitutional structure (H.C. 73/85 [22]; H.C. 742/84 [50]; H.C. 669/85, 24, 131/86 [51]; H.C. 620/85 [33]).

           

            48. An examination of the various issues (cited by Justice Brennan in the Baker case [68], which illustrate the principle of institutional non-justiciability, indicate that they are not at all simple. Take for example the first non-justiciable issue, i.e., that determination of the question realm of a political authority. As to this issue it is necessary to distinguish between the legal question of the jurisdiction of the political authority and whether this jurisdiction was lawfully exercised, and determination of the question of whether the political authority chose the appropriate solution from among a number of lawful solutions. Determination of the first question is generally committed to the court, within the context of its power and duty to determine the nature of the statute (see H.C. 73/85 [22], at page 162).

 

            When a particular provision empowers a governmental authority, it thereby empowers the court to interpret it, to determine its scope, and to decide whether it was lawfully exercised. Hence, submission of the decision on a particular act to a governmental authority does not mean that the issue of the lawfulness of that act was also committed to the government authority. On the contrary: "the final and decisive decision on the interpretation of a statute, like its validity at any given time, is in the hands of the courts, and, regarding issues presented for examination within the legal system, it is in the hands of the highest judicial forum" (Justice Shamgar in H.C. 306/81 [21], at page 141). Hence, legal determination of the lawfulness of an act committed to a governmental authority should not be seen as non-justiciable.

           

            49. The second issue cited by Justice Brennan is the non-justiciability of a dispute because it is impossible to decide it judicially without expressing lack of consideration due to coordinate branches of government. This issue is also an intricate one since wherever the court decides whether the governmental authority is acting lawfully or not, it is not thereby expressing any lack of consideration for that governmental authority:

           

"The role of the court is to interpret legislation, and not infrequently its interpretation will differ from that of same other state organ. It is inconceivable that preferring the judicial interpretation over the interpretation of the other organ (whether executive or legislative) constitutes a kind of disrespect to that organ. How can we intervene in executive actions if we take the position that we impair its honour when we interpret the law in a manner which is not in accordance with its opinion? ... There is no disrespect to other authorities when the authority fulfils its constitutional role and does what the law requires of it. When a court interprets legislation, it fulfills its role, and if its interpretation differs from that accepted by the other authorities, it points out their error, and in doing so it does not express any disrespect towards them whatsoever" (H.C. 73/85 [22], at page 163).

 

            The significant issue is not the respect due this authority or another, but rather respect for the law. As for me, I cannot see how insistence on a governmental authority respecting the law can harm that authority or mar the relations between it and other authorities.

           

            50. It is customarily assumed that the issues cited in the Baker case [68] are merely examples of a general approach, under which institutional non-justiciability should prevail in disputes of a "political" nature (see Y.S. Zemach, Political Questions in the Courts, (Detroit, 1976). The contention is that determination of political disputes must be made by political organs, and not by the judiciary. The involvement of the judiciary in these disputes impairs the principle of separation of powers, harms the democratic regime - in which political decisions are made by political authorities - and harms the court itself. These are weighty arguments. A judge's natural reaction is to distance himself from decisions which have a political aspect. Justice Witkon correctly noted that "recoiling from judicial involvement in sensitive political issues has gained currency in the legal consciousness and in public opinion" (A. Witkon, Politics and Law, at page 70). We shall briefly consider the foundations of this contention. It includes three aspects: those of the separation of powers, democracy, and public confidence in the judicial system. We shall begin with the first aspect.

           

            51. Can it not be argued that, by virtue of the separation of powers principle, a political question must be decided by a political organ and accordingly is not institutionally justiciable? In my opinion, this argument is fundamentally incorrect, according to both the classical and the modern view of the separation of powers. According to the classical view, separation of powers means that "legislation in the functional sense is identical with legislation in the organic sense, that adjudicating according to the functional test is identifical with adjudication according to the organic test, and that the administration in its functional sense is identical with administration in the organic sense" (Klinghoffer, in his book, supra, at page 23).

 

            Hence, the separation of powers principle in its classical sense is upheld, in practice, if the judiciary is engaged in the judicial function, whatever the content of the judicial determination. The same applies to the modern outlook on the separation of powers. According to this outlook, as we saw (see paragraph 23, supra), reciprocal relations exist between governmental authorities, and it is legitimate that a political decision of the political, governmental body, whether it be the Knesset or the Government, be subject to judicial review within the scope of these reciprocal relations . Indeed, the modern outlook does not separate between the powers, so that each power stands on its own. The modern approach creates a link and balance between the powers, so that the judiciary judicially and legally supervises the other authorities. It is only natural that the political branch takes into account political considerations, and it is also only natural that the judiciary examines whether this political consideration is lawful. Justice Shamgar emphasized the modern outlook on the separation of powers principle in H.C. 306/81 [21], at page 141, when he said:

           

"The separation of powers does not necessarily mean the creation of a barrier which absolutely precludes any link or contact between the authorities, rather, it is reflected primarily in the maintenance of a balance between the powers of the authorities, in theory and in practice, allowing for self-sufficiency through properly defined mutual review.

 

            Justice Shamgar also discussed this principle in H.C. 561/75 [27], at page 319, when he stated:

           

"Maintenance of effective review over each of the branches of government is the very foundation of every system of government based upon separation of powers, and is also that which ensures, inter alia, a proper balance between the powers, which is an essential component of democratic rule".

 

            President Shamgar expressed a similar approach in H.C. 852,869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523/86,1,33/87, at page 38:

           

"Everyone is obliged to respect the law, and judicial review extends to the lawfulness of every authority's actions. Separation of powers leads to their independence, but it does not of itself block the way for judicial review. This is the fundamental outlook of Israeli law, and there stems from it the rule of law, which rests, inter alia, upon the operation of paragraph 15 of the Basic Law: The Judicature, regarding the actions of the various branches of the Executive".

 

            Accordingly, nothing in the separation of powers principle justifies rejection of judicial review of governmental acts, whatever their character or content. On the contrary: the separation of powers principle justifies judicial review of government actions even if they are of a political nature, since it ensures that every authority acts lawfully within its own domain, everyby ensuring the separation of powers.

           

            52. A democratic regime is one which strikes the proper balance between majority rule and individual rights. The first principle (majority rule) ensures that the government acts in accordance with majority opinion, meaning, inter alia, that political decisions are made by the political organs chosen, directly or indirectly, by the people. The second principle (individual rights) ensures that the majority, by means of the political organs, does not infringe the fundamental rights of the individual. Judicial review, which ensures that the political bodies act within the scope of the authority granted to them by the democratic regime, is not contrary to this democratic conception. On the contrary, judicial review safeguards the proper realisation of the democratic formula. It ensures, on the one hand, that majority opinion finds its appropriate expression within the legal framework appointed for this purpose in the regime, whether it be the Constitution, statutes, regulations on orders, and does not go beyond such framework, and that governmental action is performed within the legal framework determined by the majority by voting in the legislative body; on the other hand, it ensures that the majority does not infringe individual rights, unless it has lawful authorization to do so. It follows that, no harm is caused to the democratic regime when judicial review denies the legality of actions by governmental bodies which take into account political considerations, if these bodies act unlawfully. To be more precise: the court does not review the internal logic and practical efficacy of the political consideration. The court examines the legality of such considerations. This examination in no way harms the democratic regime. There is nothing in the democratic regime which holds that the majority is entitled to act contrary to statutes, which it itself enacted, and that political decisions can violate the law. Even the most political definition must be based on a lawful decision. In a democratic regime there are no politics without law. There is therefore nothing in democratic principles that can justify institutional non-justiciability.

 

            53. We are left only with the contention that institutional non-justiciability as to political issues is justified because it protects the court from "the politicization of the judiciary" and from impairment of public confidence in judicial objectivity. I regard this argument as being to be most controversial. Even when the court deals with political issues, it does not examine them according to political standards, but merely examines the lawfulness of the political determination.

           

            As we saw (see paragraph 36 supra), the political and the legal realms are distinct from each other. The judiciary assesses the "legal aspect" of politics, not its advisability. Accordingly, when a judge assesses the legality of a political determination, he is not concerned - neither positively and nor negatively - with the merits of that determination. He does not make himself a part of it. He does not assess its internal logic, but examines only its legality according to legal standards. In doing so, he fulfils his classic role. I find it difficult to regard this as activity that ought to be avoided. Justice Landau discussed this in H.C. 295/65 [23], at page 334, stating:

 

"Parliamentary supervision over the acts and omissions of the Executive is one thing, and legal supervision by this Court is another. When the complaint is clearly legal, it is appropriate for it to be clarified before a court. Nonetheless, it is clear that the Court will only intervene when there is a legal basis for doing so".

 

            Justice Witkon reverted to a similar idea in H.C. 222/68, Mot. 15/69 [26], at page 165:

           

"This contention (that the question is political and so not suitable for judicial determination - A.B.) ignores the special task of the judiciary, which never takes the place of the administrative authority, but merely reviews its decision".

 

            Indeed, even when the subject of the decision is a politico-ideological problem, judicial review is always of a legal nature. The judge does not express his ideology, but rather his legal view of the legality of the ideology. This type of involvement in ideology is legitimate for the judiciary. Justice Witkon stressed this in H.C. 58/68 [30], at page 532, when he stated:

           

"The court must at times take up a position on ideological questions and not be apprehensive about its competence to do so or about the effect that this may have upon its prestige... It is no longer either realistic or even desirable to maintain that these questions fall outside the judicial sphere".

 

            In this context President Agranat's statement, id. at page 600, should be added, as follows:

           

"Strict justice does not require us to take up a position on the above ideological problem, since it is clear that there is no consensus of opinion in respect thereof among the enlightened section of the public and that any position we adopt would rest solely upon our own private views and personal predilections. After all, the principle of the rule of law means that a judge must as far as possible refrain from preferring his personal ideas of what justice demands for the solution of the dispute before him, since otherwise suspicion might arise that instead of being the interpreter of the law, he has adjudicated according to his own arbitrary whims.... If a problem of weltanschauung arises before him as to which the opinion of the enlightened public is fundamentally and uncompromisingly divided - the judge would do better -- and especially so if the differences arouse public agitation - to restrain himself from expressing his private view on the problem, provided he finds a judicial way of doing so".

 

            I agree with this statement. The judge must always restrain himself from expressing his personal opinion, but this statement does not mean that an ideological argument which has a legal aspect is not justiciable. As for me, I see no conflict between Justice Witkon's approach which states that "The court must at times take up a position on ideological questions" (H.C. 58/68 [30], at page 532), and President Agranat's approach that "the judge would do better...to restrain himself from expressing his private view on the problem" (id. at page 600). Indeed, the petition in H.C. 58/68 [30] was decided on its merits, and even the minority, which sought to dismiss the petition, did not base its approach on the claim of non-justiciability. Indeed, more than fearing that legal involvement in "political matters" will cause the "politicization of the judiciary", I fear that the court's abstention from "political matters" will harm the rule of law and undermine public confidence in the law. The following statement by Justice Landau in H.C. 295/65 [23], at page 334 is applicable to our matter:

           

"Regarding 'justiciability', I am of one mind with my esteemed colleague, the Deputy President. The issue which we were asked to decide falls within the bounds of paragraph 7(b)(2) of the Courts Law, 5717-1957.  The State Attorney proposed that we act with a measure of 'judicial restraint'. True, this is a fine quality, but I am not persuaded that it must intervene between what the law prescribes on this occasion and its application in practice. I do not believe that there is a risk herein of disrupting relations between the branches of Government, as argued by Mr. Bar-Neev; but there is  risk of impairing the citizen's confidence in the rule of law if we waive the power granted us. Proper balancing of governmental powers between the various branches requires that when the Knesset transfers important legislative powers to the executive, the power of reviewing secondary legislation should remain in the hands of the judiciary".

 

            This statement applies not only to the court's review of secondary legislation, but also to the review of every governmental act of the administration. Relieving the court of its power of review, solely because the dispute subject to review has a "political" aspect - even though it can be resolved according to legal standards - is likely to harm the rule of law and public confidence therein. The outcome of institutional non-justiciability - as with lack of standing - is the creation of an area in which there is law, but no judge. The real import of this outcome is that there is neither law nor judge. Such an outcome is problematic for the separation of powers, the democratic regime and the rule of law. But it is therefore only natural, President Agranat noted dismissing the claim of "non-justiciability" where a recent invasion of a holy place had occured: "The fundamental principle of the rule of law requires that the Court's hands not be tied, on the basis of the justiciability doctrine alone, from intervening for purposes of upholding public order" (H.C. 109/70 [52], at page 249). Indeed, "There are two prohibitions safeguarding exercise of powers, which we must be careful not to violate: on the one hand, that we not exceed the bounds of our authority, and on the other that we not hesitate to exercise it to its fullest extent" (Justice Witkon in H.C. 321/60 [53], at page 208). A similar idea was expressed back in 1821 by Justice Marshal in the case of Cohens v. Virginia (1821) [70], at 181:

           

"We have no more to decline the exercise of jurisdiction which is given to us than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty".

           

            I suspect that recognition of institutional non-justiciability transgresses these two "prohibitions", and harms our unwritten Constitution.

           

            54. An examination of the considerations at the base of the principle of institutional justiciability (or non-justiciability) reveals their inherent weakness. Indeed, in the United States the theory of institutional non-justiciability has been limited to judicial review of the constitutionality of a statute. In the United States, the institutional non-justiciability principle is not used with regard to the legality of the administration's actions within the scope of a valid statute. It would seem that the reason for this is that, if the political authorities are not satisfied with a judicial determination, they have the power to change the law, and thus bring about the political arrangement which seems proper to them. This is the situation in Israel today, and accordingly it is doubtful whether the "political question" issue should be learned from American case law, which is based upon a different constitutional background. Indeed, courts in Israel have sensed the weakness of the institutional non-justiciability doctrine. Hence the approach that this doctrine does not apply when the petitioner complains about an impairment of his right, such as the infringement of his right of property (H.C. 606,610/78 [24], at page 124; H.C. 390/79 [54], at page 14). On its face, this "exception" is surprising, because what is the significance of an injury in the private domain, if the judicial determination harms the separation of powers principle, the democratic regime, and public confidence in the judiciary? But this was not the approach of the courts. They felt that the role of the court is first and foremost to defend individual rights which have been violated, and that the countervailing considerations are not weighty prevent performance of this task. This is indeed enough to the proper attitude to fare. Yet, the role of the administrative court is just as much to protect the rule of law and the public confidence in the rule of law (see paragraph 21, supra). Indeed, examination of Supreme Court decisions reveals that the plea of institutional non-justiciability was allowed only in a few instances, and that in most cases where the Court relied on this plea, it was primarily based on normative non-justiciability or no distinction was made between the two types of justiciability. It seems that the leading cases of institutional non-justiciability are those related to judicial review of the legality of the administrative decisions of the Knesset and its organs, while at the same time it has been stressed that this doctrine "is not necessarily the doctrine of non-justiciability" (H.C. 73/85 [22], at page 162).

 

            55. And yet, despite this critique of the "institutional non-justiciability" doctrine, it is difficult to ignore the fact that the public is not likely to make a distinction between judicial review and political review, and is likely to identify judicial review of the political issue with the issue itself; it is likely to identify judicial determination that a governmental action is lawful with a judicial position that the governmental action is desirable; it is likely to maintain that a judicial determination that a governmental action is not lawful is equivalent to the judiciary's negative position towards the action itself; it is likely to find that the judicial determination that a governmental action is reasonable is equivalent to a judicial determination that that position is desirable; it is likely to equate the legal determination with a political viewpoint. The judge has more than once considered this concern (see, for example, H.C. 58/68 [30], at page 523, by Justice Landau). As Justice Landau noted in H.C. 390/79 [54], at page 4:

           

"This time we have proper sources for our holding and we need not interject into it our personal views as citizens of the State, and we are even forbidden from doing so when sitting in judgment. But the fear is still great that the Court will be seen as having forsaken its proper place and lowered itself into the arena of public debate, and that our decision will be received by a section of the public with acclaim and by the other part  with complete and emphatic rejection. In this sense I view myself herein as one whose duty it is to decide according to the law in every matter duly brought before the court. This actually imposes great pressure on me, being well aware at the outset that the general public will not pay attention to the legal reasoning, but solely to the final conclusion, and thus the true standing of the Court as an institution is likely to be harmed, beyond the controversies which divide the public. Yet there is no way out; this is our role and our duty as judges".

 

            And I made a similar point when I said in H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12], at page 585:

           

"The entire issue occupies an important position at the centre of our constitutional life. It is intertwined with questions regarding the rule of law and the law enforcement on questions regarding the President's power to pardon and its operation. We deal with all these matters from a legal viewpoint. The entire issue stirs up public opinion but this is not what what directs our course. We act according to constitutional standards, and according to fundamental legal principles which reflect the "credo" of our national life.  Passing moods do not guide our attitude but rather fundamental national conceptions of our existence as a democratic state... We know that the entire issue is subject to public debate, and that from the dynamic political perspective our decision is likely to serve as a factor in the conflict of political forces. We regret this, but we must fulfil our judicial function...".

 

            The key question is, what weight should we give this fear? In his article Politics and Law, Justice Witkon said, at page 69:

           

"It seems to me that the aversion to judicial consideration of political questions is, to a great extent, irrational in origin. In terms of pure logic, it is difficult to justify it".

 

            However, as we know, "the life of the law has not been logic; it has been experience" (O.W. Holmes, The Common Law (Boston, 1881) 1. The life of the law is logic and experience together. Hence the Court's readiness, in certain situations, to refrain from exercising its jurisdiction, thereby contravening one of the two "prohibitions" noted by Justice Witkon where there is a fear of "politicization of the judiciary", of confusion between the political and legal realms and of impairing the Court's prestige. As stated, this Court has so refrained an respect of review of the Knesset's administrative actions. Even here, a plea of "political dispute "was not sufficient to prevent the Court from exercising its power. The Court took into account the special status of the Knesset and weighed the "political" factor against the other factors related to the rule of law in the legislature. Certainly this is not the only type of case in which the Court will dismiss a petition for lack of institutional justiciability. The list of such cases is not closed. Judicial life experience and expert sense will guide the Court in its formulation of standards for fashioning these cases.

           

            56. What conclusion arises from our analysis of the issue of institutional justiciability (or non-justiciability)? In my opinion, it is that this doctrine is most problematic; that its legal foundations are shaky, that it is based to a great extent on irrational grounds; that it must be approached with caution; that only in special circumstances, in which the fear of harm to public confidence in the judges outweighs the fear of harm to public confidence in the law, should use of it be considered; that the list of such circumstances is not closed, and that it is determined, in the end, by the judicial life experience and according to the judge's expert sense.

           

E. From The General To The Particular

 

            57. As noted, the lack of justiciability (or non-justiciability) doctrine has no independent status of its own. There is always the law, and legal standards to consider. Indeed, a number of legal provisions - both statutory and case law - apply to the dispute before us, from which legal standards are derived for the determination of the dispute. The question of the power to grant deferment of defence service is related to the interpretation of section 36 of the Law. We are concerned with an ordinary interpretative problem, decided according to the accepted interpretative standards. (Compare the remarks of Justice Brennan in the case of Goldwater v. Carter (1979) [71], at page 1007, according to which the question of whether the President is empowered to declare war is also a justiciable question, because "The issue of decisionmaking authority must be resolved as a matter of constitutional law, not political discretion"). It is inconceivable that the question of whether a governmental authority is functionally empowered to undertake a governmental act or not should be normatively non-justiciable. This is a question for which there are always a legal norm and legal standards to decide it. Let us assume that section 36 of this Law did not exist at all, such that every deferment of service would have to be effected by an enactment of the Knesset. Would it occur to anyone that a petition which maintains that deferment of Yeshivah students' service is unlawful is "non-justiciable"?

 

            The question of the exercise of discretion in the deferment of Yeshivah seminary students' defence service is determined by the usual criteria of the theory of administrative discretion. As we shall see below, we must assess whether the Minister of Defence's considerations are relevant or extraneous, and whether his decision passes the reasonableness test. This test is conducted entirely pursuant to the usual legal standards, and no question arises as to lack of legal tools to conduct it. Thus, for example, the reasonableness question is determined according to accepted standards, which pose the question of whether a reasonable Minister of Defence would be entitled to reach the decision regarding deferment of service. As to this issue, it will be necessary to assess the weight to be given to the various factors, and this assessment will also be conducted according to accepted standards for judicial review of an administrative act.

           

            58. In my opinion, the theory of institutional non-justiciability does not apply to this petition. As we shall see, this petition should be determined entirely in accordance with legal standards. Is it conceivable to argue that public confidence in the judicial system would be impaired if the courts hold, for example, that the Minister of Defence is not empowered to grant deferment of defense service, and that the exemptions given up to now were in excess of his authority, and that as to this matter it is necessary to refer to the Legislature? In my opinion, the answer is that it is precisely if they refrain from ruling that the bounds of authority were overstepped, where there is a proper submission in this regard, that confidence in the courts would be impaired, and that confidence in the courts will be reinforce if they insist on the rule of law. And if this is the case regarding the holding that jurisdiction is lacking, then the same applies regarding the holding that jurisdiction exists. In both cases the court interprets the law, and this does not impair its status. The same applies to assessing the Minister of Defence's discretion. This assessment is carried out objectively, according to legal standards which have long been accepted. The determination that the Minister of Defence acted reasonably - as also the determination that he acted unreasonably - is reached pursuant to the usual legal tests.

 

            The Court does not express any personal ideological position. It takes no position in the public debate. It expresses no position on the question of whether Yeshivah students should or should not be drafted. All the Court examines is whether a reasonable Minister of Defence is entitled to decide that Yeshivah students' enlistment should be deferred. It is true that "the question of whether or not to draft Yeshivah students is basically a public issue, resolution of which must remain in the hands of the political bodies, whose tasks include deciding this issue" (Deputy President Kahan, in H.C. 448/81 [2], at page 88), but the question of whether or not it is legal to grant a deferment to Yeshivah students is a legal question which must remain in the hands of the legal bodies whose tasks include deciding this issue. The politicians will decide the political question, while the judges will decide the legal question, the politicians considering the political factors and the judges the legal ones. It is true that deferment of the service of Yeshivah students has "very great public and ideological signi­ficance" (President Landau in F.H. 2/82 [3 ], at page 711). Likewise, I agree that the Court "was not designed to serve as an arena for public, ideological confrontations" (Id.). However, the judicial determination in the Petition before us does not concern the ideological aspect, and the judge does not descend into the arena of the ideological debate.

 

            We are not deciding the question of whether it is proper to defer service for Yeshivah students or not. We are not taking any position at all on this question. We are merely deciding the question of whether the Minister of Defence has the power to defer Yeshivah students' service, whether he weighed the relevant considerations as to the matter, and whether his decision is a reasonable one. As to all of these, no ideological position is taken on the public question. Only a legal position is taken on the legal question. Accordingly, the determination that the Minister of Defence acted as a reasonable Minister of Defence would have been entitled to act in the matter of deferment of service does not mean that it is proper to defer Yeshivah students' service. Its sole import is that it is a factor which the Minister of Defence was entitled to weigh, and that the weight which he gave it is a such that the Minister of Defence was entitled to give it. True, it may be that the general public will find these distinctions difficult. I do not believe that this difficulty justifies our abstaining from a making a judicial determination. The public which finds it difficult to understand that dismissal of the Petition does not imply ideological agreement with the public issue is the same public that will find it difficult to understand that allowing the Petition is not an ideological rejection. Indeed, whether we address the Petition or abstain from doing so, the fear exists that we will be mis­understood, but as President Landau said, "this is our task and our duty as judges" (H.C. 390/79 [54], at page 4).

           

            In my opinion, the focal consideration which must guide us is the legal one. It harmonizes well with considerations of separation of powers and democracy, which require judicial review of the legality of the administration; it derives from the view that the court must insist upon observance of the rule of law in government. For these reasons it seems to me that the Petition before us is justiciable (normatively and institutionally).

           

Jurisdiction Of The Minister Of Defence

 

            59. Now that we have surveyed the preliminary issues and arrived at the heart of the matter, we must examine the first relevant question surrounding the power of the Minister of Defence to grant deferment from defence service to Yeshivah students. The Petitioner's submission is that deferment of defence service for Yeshivah students is a matter for primary legislation not for administrative decision. This submission "should properly have been heard" (in the words of President Landau in F.H. 2/81 [3], supra, at page 712), and it is accordingly proper to examine i1 substantively.

 

            60. The legal framework for the Minister of Defence's jurisdiction is set forth in section 36 of the statute. According to this provision, the Minister of Defence is entitled to defer by order the defence service of men of military age, "if he considers it proper to do so for reasons connected with the size of the regular forces or reserve forces of the Defence Army of Israel or for reasons connected with the requirements of education, security, settlement or the national economy or for family or other reasons". We find that the power to defer the defence service of men military age is given to the Minister of Defence. Nonetheless, this power is not general, but rather limited to certain "causes for deferment". Deferment of service on grounds not listed among those referred to, leads to deferment of service without legal authorization. Hence, we must examine whether the deferment of Yeshivah students' service fits into one of the grounds set forth in the statute. In my opinion, the answer to this is in the affirmative. The matter of the deferment of Yeshivah students' service fits partially into the "grounds for deferment" concerning "the size of the regular forces", and into the "ground for deferment concerning "the requirements of education". The matter of deferment of Yeshivah students' service fits completely into the "grounds for deferment" for "other reasons".

           

            61. The Minister of Defence is empowered to defer defence service for men of military age "for reasons related to the size of the regular forces" of the army. To the extent that the reason for deferment is related to the size of the regular forces, it falls within the power of the Minister of Defence. We are concerned here with the link between the reason for deferment (as a matter of discretion) and the grounds for deferment (as a matter of jurisdiction). As to this matter, we must turn to the Minister of Defence's affidavit, which indicates his considerations regarding this matter. As we saw (see paragraph 15, supra), the Minister of Defence lists the following among his considerations:

           

"(3) The fact that the way of life of Yeshivah students is ultra-orthodox, and accordingly, induction into the army causes them serious problems in adapting to a society and culture which is foreign to them, and difficulties in strict observance of religious precepts. Thus, for example, they do not recognize the Chief Rabbinate of Israel's certification that food is kosher, while they themselves are divided between recognition of a number of special kosher certifications by various rabbis, and other daily practices of theirs are likely to give rise to many difficulties in the I.D.F's preparations to integrate them into its system;

 

(4) The fact that the entire effectiveness of their service is subject to doubt, in light of the spiritual difficulty they experience from the neglect of religious studies, and owing to their special education and way of life.

 

            These two considerations concern "reasons related to the size of the regular forces". The significance of these factors is that the Yeshivah students' service is problematic in terms of the army's needs and requirements. Deputy President Y. Kahan addressed this problematic nature in H.C. 448/81 [2], supra, at page 86-87, stating:

           

"No one can foretell whether the enlistment of many thousands of religious seminary students, who will view their enlistment in the army as a blow to the foundations of their faith, according to which the study of Torah takes precedence over the obligation to serve in the army, will add to the I.D.F.'s fighting power, or, heaven forbid, harm such power. It is no way certain that this enlistment, even if it numerically increases the army's force, will not have far-reaching negative impacts upon the State's internal and external strength".

 

            This statement was made in connection with negation of the Petitioner's right of standing, but a reflects the Minister of Defence's considerations as to the substance of the matter. We find that the Minister of Defence is entitled to defer the enlistment of Yeshivah students to the extent that his considerations concern the quality of their service. Nonetheless, it seems that this factor was not dominant among the Minister's various considerations, and accordingly I would not base his authority to grant deferment of service to Yeshivah students on that alone.

 

            62. Another "ground for deferment" consists of "reasons connected with the requirements of education". This ground - as well as the grounds regarding the national economy and family reasons - is not limited solely to the education of the person as a better soldier. It extends across the State's "requirements of education". Within the scope of these considerations, the "requirements of education" of a particular segment of the population may also be taken into account. The Minister of Defence considered this "educational" factor, since among his other considerations (see paragraph 15, supra), the following are also included:

           

"(1) Respect for the spiritual and historical obligation of students and teachers who are occupied full-time with religious study, to continuously uphold the value of engaging in religious studies;

 

(2) The desire not to impair the stated principle which is transcendent and holy to a segment of the population in Israel and in the Diaspora."

 

            In my opinion, these considerations fall within the definition of "the requirements of education". We were told that within this framework, the service of artists and musicians is deferred. There is an "academic reserve", which defers the army service of university students. I do not see how the educational needs of Yeshivah students differs from those of artists and musicians. Of course, there is likely to be a difference as to the substance of the Minister's deliberations, and the weight which he gives to the different factors, but I do not believe that there is a difference between the two regarding the nature of his power. Nonetheless, it seems that the dominant consideration regarding the deferment of Yeshivah students' defence service is the religious factor, while its educational aspect solely supplements and explains that factor and accordingly I would not base the Minister's power on this reason alone.

 

            63. The third ground for deferment which concerns our matter is that which permits deferment of security service "for other reasons". As we saw (see paragraphs 7 and 8, supra), the original Defence Service Law authorized the Minister of Defence to grant deferment of defence service if he "considers that reasons connected with the size of the Regular Forces or the Reserve Forces of the Defence Army of Israel or with the requirements of education, settlement or the national economy, or family reasons, or other similar reasons, so require" (section 12). In the Defence Service (Amendment No. 7) Law this provision was amended, in the sense that the word "similar" was deleted. The reason given for this in the explanatory comments to the bill was "so as to eliminate any narrowing constructions". (Defence Service (Amendment no. 7) Bill, 5730-1970, at page 282). The said amendment was made after the Supreme Court's decision in H.C. 40/70 [1], and in view of the existence of the arrangement for deferral of Yeshivah students' service. In H.C. 448/81 [2], at page 85, Deputy President Y. Kahan emphasized this state of affairs, noting that "the amendment was made after the attempt to have this issue heard in this Court had failed". Nonetheless, neither in the explanatory comments to the bill, nor in the Knesset proceedings is there any hint that the proposed amendment was related to the question of the deferral of Yeshivah students' service. On the contrary: In the Knesset hearings on the Defence Service (Amendment no. 7) Law, the Minister of Defence noted that this is not an appropriate occasion to deal with the question of deferment of Yeshivah students' service, since this issue is totally unrelated to the bill (see D.H. 59 (5731) 98-99).

           

            64. The Minister of Defence is thus empowered, to defer defence service "for other reasons". This authorization does not allow the Minister to consider any factor which seems to him, subjectively, to be appropriate. I assume - according to the classic example - that had the Minister chosen to defer the defence service of all "redheads" or of everyone belonging to a particular political party, this would not fall within the definition of "other reasons". The test of their relevance is objective, and it is determined in accordance with the purpose of the law and its object. In my opinion, these "other reasons" may include religious reasons. The power of the Minister of Defence is not limited solely to factors concerning the extent of the regular forces themselves. As we have seen, his power extends also to reasons related to the requirements of education, settlement and national economy, or family reasons.

 

            All of these concern factors not necessarily related to the extent of the forces themselves, but, they also include non-security factors, which should properly be considered. There is therefore no reason to limit the "other reasons "to security reasons in particular. Indeed, legislative history and logic point to a contrary trend. Accordingly, the service of new immigrants or minorities may be deferred for "other reasons". Thus, for example, the enlistment of religious Druze who declare themselves to be religious is deferred pursuant to this provision. I see no reason why it is not possible to include within this framework the deferment of service of Yeshivah students for religious reasons. It is true that exemption of women from security service for "reasons of conscience or for reasons arising from the religious lifestyles of their family" is granted by virtue of the provisions of section 39(c) of the Law, but this does not mean that deferment of service for religious reasons is not included within the power to defer "for other reasons".

           

            It must be remembered that while deferment of Yeshivah students' service is a matter within the Minister of Defence's discretion, exemption of women from defence service for reasons of conscience or for reasons arising from the religious way of life of their family is an exemption prescribed by law. The military authorities' discretion is solely as to proof of the existence of the reasons of conscience or of a religious way of life, of the family and when these are recognized, the military authorities have no power to refuse to exempt a woman, because the exemption is given to her as a right by the statute itself. Indeed, when an administrative authority takes into account religious considerations when exercising its statutory authority, it does not exceed the bounds of its authority, so long as these considerations fall within the scope of the empowering statute. Thus, for example, the Minister of the Interior is entitled to take into account a religious concern as to daylight saving time (see H.C. 217/80 [7]); the Road Traffic Controller is entitled to take a religious consideration into account in closing streets to traffic on the Sabbath (see H.C. 174/62 [55]; the Food Controller is entitled to take the religious factor into account in ensuring the provision of food for Passover (H.C. 98,105/54 [56]). Similarly, I see no overstepping of the bounds of authority if, in exercising his authority to grant deferment of security service, the Minister of Defence takes religious factors into consideration. The need to ensure freedom of religion and the prevention of religious coercion do not prohibit consideration of the needs of a religious population. This need has existed since the establishment of the State, and it is natural to assume that within the broad confines of power granted to the Minister of Defence, allowed this factor can also be taken into account.

 

            65. The Petitioner's general submission as to this issue is that deferment of enlistment of Yeshivah students is a matter of substantive, public importance, which applies to all inhabitants of the State, and accordingly it is appropriate that the Knesset expressly consider it and enact legislation regarding it. This submission has two aspects: first, that the arrangements for exemption for religious reasons must be determined by principal legislation, not by secondary legislation; secondly, that the provision in the principal legislation ought to be express and not implied. As to the first aspect, I accept that the grant of power to defer security service itself must be ensured in principal legislation. As we perceived, in my opinion this is ensured by the provisions of section 36 of the Law. As to the second aspect, I do not think - on the formal level - that general authorization ("for other reasons") is insufficient, and that each and every reason for deferment of service must be listed expressly.

           

            Nonetheless, I accept - on the substantive level - that this state of affairs is not desirable. Indeed, pursuant to the principle of the rule of law it is proper that "primary arrangements" be determined in primary legislation, and expressly, and that the secondary legislator not be granted general authority to determine independently the primary arrangements (Y.H. Klinghoffer "The Rule of Law and Secondary Legislation" Hed Hamishpat 11 (5717) 202 and 12-13 (5717) 222 and 14 (5717) 254). Professor B. Bracha correctly notes, Administrative Law (Schocken, 5747) 95:

 

"Such a massive accumulation of legislative power in the hands of the administrative authorities harms the principle of the rule of law and constitutes a serious departure from the constitutional doctrine applicable in our day, of the separation of powers theory".

           

            Justices Sussman and Witkon stressed this in H.C. 266/68 [57], at page 831:

           

"Secondary legislation on a fundamental and highly significant matter, pursuant to an enabling statute, is likely to lead to a merely formal democratic regime. A true democratic-parliamentary regime requires that legislation be enacted by the legislature".

           

            I myself would add that where the Knesset believes that the secondary legislator should be granted authority to determine primary arrangements - and this is likely to be justified at times in a modern state - then in addition it should also presiste that validity of these arrangements is conditional upon approval by the Knesset (in plenary session or in committee). Accordingly, it seems to me that justice is on the Petitioner's side because it is desirable, pursuant to principles of "a true democratic-parliamentary regime", that the Knesset take an explicit stand on the question of deferment of enlistment of Yeshivah students, and not be satisfied with the general and sweeping empowerment of the Minister of Defence to grant service deferments "for other reasons". If for one reason or another the Knesset believes that it is more effective for the realization of security needs that primary arrangements on this matter be determined by the Minister of Defence, the validity of the general normative provisions should properly have been conditioned on approval by the Knesset or one of its committees. In the matter before us, the Legislature has not so acted, but has left the primary arrangements ("other reasons") solely in the hands of the Minister of Defence. Nonetheless, I do not believe that it can be said that the Knesset's abstaining from determining the primary arrangements, and from supervising the Minister of Defences' arrangements means that that general empowerment is invalid. The Knesset saw fit to grant the Minister of Defence a broad power to prescribe grounds for exemption and deferment "for other reasons", without reserving for itself the power of approval in this matter. We must respect this desire of the Knesset.

 

            The rule of law does not apply only to government, but also to the judges. The Legislature, having determined that "other reasons" may serve as grounds for deferment of security service, obviously thus empowered the Minister of Defence to determine what these other reasons are. In light of the provision's structure and legislative history, it is clear that "the other reasons" are not necessarily related to security reasons, and they extend to non-security reasons as well. These include, in my opinion, religious reasons also.

           

            We find that the Legislature expressly empowered the Executive to decide, according to its discretion, what "the other reasons" are which justify deferment of security service.

           

            66. We have seen that the religious factor falls within the other reasons which the Minister of Defence is entitled to consider. Accordingly, it seems that the following factor which the Minister of Defence considered, is a legitimate consideration:

           

"(5) Recognition of the deep public sensitivity of the topic embroiled in ideological debate among the Israeli public, and of the need for a delicate nationwide adjustment of disputes of this kind".

           

            This consideration is added to the other four taken into account by the Minister of Defence, and creates an aggregate of considerations which, of themselves, the Minister of Defence was empowered to consider. The question is, accordingly, if these considerations are reasonable under the circumstances. We now turn to examination of this question.

 

 Reasonableness Of The Minister Of Defence's Exercise Of Discretion

 

            67. The array of factors which the Minister of Defence considered falls within the confines of the relevant considerations which he was entitled to take into account. But did the Minister give the proper weight to these considerations? This question transfers the centre of gravity of the legal discussion from the question of authority to the question of reasonableness. The statute granted the Minister of Defence discretion as to deferment of service for security reasons. This discretion must be exercised in a reasonable manner. A reasonable exercise of discretion means, inter alia, allowing appropriate weight to the various factors (H.C. 389/ 83 [36], at page 445). President Shamgar stressed this in H.C. 156/75 [58], at page 105, stating:

           

"Situations may arise wherein ministerial authority does not consider any extraneous factors, and only relevant factors are taken into consideration, but such a disproportionate weight is attributed to the various relevant factors that the final conclusion becomes inherently untenable, and for this reason, completely unreasonable".

 

            Indeed, it is one thing to defer defence service of a particular category men of military age for one year or for a fixed period of studies, which in practice will cut minute in defence service (as is done, for example, with those in the academic reserve); it is another matter to defer defence service for an unlimited period of studies, which is likely, according to its natural progression, to lead in practice to an exemption from security service (as occurs with most Yeshivah students). Likewise, it is one matter to defer security service of 800 Yeshivah students (as was the case in 1975); it is another matter to defer the enlistment of 1,674 Yeshivah students (as was the case in 1987). Accordingly, the question is whether the Minister of Defence's discretion was exercised, under the circumstances, in a reasonable manner: the Petitioner's Submission is that the Minister of Defence's discretion was exercised in an "extremely unreasonable manner". In contrast, counsel for the Respondent argues that, in weighing the various considerations:

           

"The Minister of Defence did not ignore the consequences of deferment of Yeshiva students' service (including students, teachers, and those adopting a religious way of life) on the expect of the regular and reserve forces of the I.D.F. and on deployment of the State of Israel's security needs, yet he arrived at the decision not to draft into the I.D.F. this type of candidates for service. In the end, upon balancing all the various factors, those justifying long-standing arrangement for non-integration of Yeshivah students of the type described into I.D.F. service, prevailed in the end".

 

            Counsel for the Respondent adds that:

 

"The honorable Court will not substitute the Minister of Defence's exercise of discretion for its own. The Minister of Defence has considered all the reasonable possibilities according to their appropriate weight, and chosen from among them the way which seemed most reasonable and proper to him. The facts do not reveal grounds for intervention of this honorable Court in this exercise of discretion".

 

            68. The question of how to weigh the factors on which deferment of Yeshivah students' service is based is a difficult one. Deferment of Yeshivah students' service is itself a highly contro­versial matter in Israel. "Serious and real differences of opinion" exist as to it (in the words of Justice Elon in Cr. A. 54/81 [59], at page 832, regarding the enlistment of religious girls). There are those who think that:

           

"There is no significance to the land of Israel and to the State of Israel without young men who study Torah, who cling with all their heart and all their soul to their mission in their whole way of life. While it is the... I.D.F. that protects the body, the Yeshivot protect the soul. I.D.F. protects Jews while and the Yeshivot protect Judaism... Yeshivah students are volunteer pioneers who give up private material gain and devote themselves to the spiritual values that the soul of the nation is dependant upon" (Rabbi M. Z. Neriyah, "Yeshivah Students and Their Enlistment" (Gvilin, 5728) [A] - quotations from this article were annexed to the Respondents' Affidavit).

 

            In contrast, there are those who think otherwise:

 

"This is a strange partnership, I send the Yeshivah student to learn in my stead, and he sends me to be killed in his stead. It is revolting". (Brigadier General Nehemyah Dagan, I.D.F. Chief Education Officer, in an article annexed to the Petition).

 

            Within the religious camp itself, different and varied opinions on this issue exist (see, for example, Rabbi Z. Y. Kook, "Precepts relating to the Land of Israel" The Paths Of Israel (Collection of Articles, Menorah, 5727) 114-123 (B); Rabbi S. Y. Zevin, "Enlistment of Yeshivah Students" (Letter addressed to Rabbis and Heads of Yeshivot, 5708) [C] - which regate deferment of service for Yeshivah students; in contrast, see Rabbi Y. M. Tikutchinsky, "Exemption of Yeshivah Students From Enlistment" The Torah and The State, Issue E-F(5713-14) 45-54 [D] - which gives the Jewish law basis for releasing Yeshivah students). It is well known that religious young men have served in all of Israel's wars, have given their lives for the state, and indeed they continue to serve in all I.D.F. units (whether in special combined religious study and defence service programs, or outside them).

           

            Accordingly, we are concerned with an issue as to which there is no national consensus and which is subject to fierce debate. It seems to me that in the State of Israel, in which all the various currents of Judaism and Jews are interwoven, and in which a modern society has been built on the substructure of a prolonged history, each of the opposing factors is legitimate, such that a reasonable Minister of Defence is entitled to take it into consideration. Israeli society is a pluralistic one, which contains many and varied opinions as to various public and social issues. The question of deferment of Yeshivah students' service is one of those issues. Some take the view that the State cannot exist without deferment of their enlistment, whereas others take the position that the State cannot exist without their enlistment. There are those who see deferment of their enlistment as a noble act, and there are those who see it as a disgrace. There is no social consensus on the issue.

 

            Under these circumstances - and against the background of my attitude that the religious factor itself is a relevant consideration - I do not think that it can be said that the Minister of Defence's position is so unreasonable, to the point that no reasonable Minister of Defence in Israel is entitled to assume it. A democratic regime is based on tolerance for the opinions of one's fellow men. This at times even amounts of toleration for an intolerant opinion. In a pluralistic society, toleration is a uniting force, which makes co-existence possible. Accordingly, readiness to consider the various positions, with an effort to smooth the edges of the conflict, does not seem unreasonable to me under the circumstances of the matter. Consideration of it is demanded by the position of the "enlightened public".

 

            It should also be remembered, that alongside the religious-educational consideration is also the military consideration, according to which the service of Yeshivah students is likely to harm more than it helps. In taking all of these into account, against the background of the State's security needs, the Minister of Defence was entitled to reach the decision he came to. It falls within the confines of the "realm of reasonableness" of his discretion. To be precise: the Minister of Defence was also entitled to reach a different decision. He was entitled to think that too many men have been draft deferment, and that the policy should be changed on this issue. Indeed, the decision the Minister of Defence reached is not the only decision he could have reached as to the problem before us. It is one of the lawful decisions which the Respondent was entitled to reach.

           

            69. In balancing on the various considerations on which the Minister's exercise of discretion under section 36 of the statute is based, the overwhelming consideration must be end of security. To that end defence service itself was instituted, and some of the exemptions from defence service are formulated in this spirit as well. It is only natural that non-security considerations, such as those of education, family and the other reasons, are relatively insignificant, and that they should be taken into account only if they cause relatively slight harm to security. Accordingly there is ultimate significance to the number of Yeshivah students whose service is deferred. There is a limit which no reasonable Minister of Defence may cross. Quantity makes a qualitative difference. As to this matter, the Petitioners have not discharged the burden placed on them of showing that harm to security is more than slight.

 

            70. Up to this point I have examined the reasonableness of the Minister's decision. As I have determined that in my opinion the decieved is reasonable, our judicial review is concluded. As is known, under the prevailing rule, we do not substitute, in these types of matters, our discretion for that of the government:

           

"The question is not what would we, as Justices of the Supreme Court, would decide, were the power in our hands. The question we must decide is whether a reasonable... minister in the respondent's position would have been entitled to reach the conclusion which the respondent reached" (H.C. 297/82 [60], at page 42-43).

           

            Indeed, we are not asked to express our opinion, as ordinary citizens, on the question of whether it is proper to defer the defence service of Yeshivah students. This is a question on which we have our private views, to which we may not give any expression to in our judicial determination.

           

            Our judicial review centres on the question of whether a Minister of Defence may consider the religious factor, and if the weight given to this factor by the Minister of Defence is reasonable under the circumstances. The question is not as to the force of which factor is the most persuasive, but whether the factor considered is legitimate, such that a reasonable Minister of Defence would have been entitled to consider it and give it the weight given to it in practice. As to these questions, my answer is in the affirmative. Whatever opinion on the issue of deferment of enlistment of Yeshivah students - and this opinion is completely irrelevant - I accept that a reasonable Minister of Defence would be entitled to take this consideration into account, to give it the weight which the Respondent gave it, and to arrive at the arrangement which the Respondent arrived at. This approach fits in well with the separation of powers principle I have already discussed (see paragraph 51 , supra). The court engages in judicial review - which is one of its principal sometimes - this review is not an expression of a political viewpoint, but insistance on the lawfulness of the balancing process carried out by the political branch. Thus the democratic principle is expressed (paragraph 52 supra). This approach does not harbor any "politicization of the judiciary". It does not involve any descent into the arena of public debate. It does not involve subjectivisation of judicial discretion, but rather normal judicial activity, as practised by us over many years within the scope of judicial review over decisions of the executive.

 

            71. In the section on justiciability I noted that on the normative plane every action is "justiciable", since as regards to every act, the law takes a position as to whether it is lawful or not. I stressed that every legal problem naturally has legal tools for its solution. Take the question before us, which is concerned with the reasonableness of the Minister of Defence's decision.

           

            On the legal plane the question is whether the weighing by the Minister of Defence of the considerations supporting the deferment of Yeshivah students' security service as against those supporting non-deferment of enlistment, is reasonable. This weighing up is determined as we saw, pursuant to the purpose of the law and its object, as these are interpreted against the background of the fundamental principles of the system and the outlook of the enlightened public in Israel. As I noted, there is deep disagreement among the Israeli public on the question of the enlistment of Yeshivah students, and the enlightened public's opinion is itself divided.

           

            Under these circumstances, my opinion is that the Minister of Defence is entitled to take into consideration the religious factor (alongside educational and military considerations). The purpose and object of the statute prevents the Minister of Defence from giving this factor a weight which will ultimately cause substantial harm to the security of the State. But so long as the harm is not substantial, I believe that an Israeli Minister of Defence is entitled to consider this factor. Moreover, it is precisely the absence of a national consensus and disagreement within the "enlightened public" which reinforce the recognition that, in a democratic society built upon pluralism and tolerance, the Minister of Defence is entitled to consider this factor, so long as security is not harmed. In any event, there is no basis for our intervention in the Minister's decision, which falls within "the realm of reasonableness". This outcome can also be presented in terms of burden of proof. One can say that he who bears the burden of showing that the Respondent's decision is unreasonable has failed in his task, and the presumption of reasonableness which governmental action enjoys, has not been refuted.

 

            Dismissal of the Petition in this situation does not arise from material non-justiciability of the matter, but rather from the Petitioner's inability to show that the government acted unlawfully. These two factors are not the same. Thus, for example, if the number of those whose service is deferred because of Torah study were to increase, until it encompassed a much greater number of men of military age, such that security would be harmed, the moment will surely arrive when it will be said that the decision to defer enlistment is unreasonable and must be declared invalid. This could not happen if the viewpoint is that the issue is non-justiciable.

           

Additional Submissions

 

            72. In the course of the Petition, the Petitioner raised additional submissions, which I should like to refer to briefly. He claims that deferment of the enlistment of Yeshivah students is invalid because it is granted pursuant to a coalition agreement reached by the parties which constitute the Government.

           

            We cannot accept this submission. The coalition agreement is an accepted device in Israel. It constitutes a framework for political consensus between parties. It cannot, of itself, make an action lawful which is otherwise not lawful. One cannot agree in a coalition agreement to engage in actions which are forbidden under the law. Similarly, the fact that a particular action is included in a coalition agreement does not make that action unlawful, if, were it not for the agreement, the action would be lawful.

 

            Moreover: the coalition agreement is likely to impose a duty, under public law, to work towards its implementation. The rule is that a coalition agreement cannot limit statutory discretion (see H.C. 669/86, Misc. App. H.C. 451, 456/86 [61]). Accordingly, to succeed in his submission, the Petitioner would have to prove that the Minister of Defence acted as he did solely because of the coalition agreement, and were it not for the agreement, he would have acted differently. The Petitioner has not discharged this burden.

           

            73. The Petitioner attached to his affidavit a number of letters written by Ministers of Defence, including the Respondent, to a citizen by the name of Moshe Shapira, in which they expressed their positions regarding deferment of Yeshivah students' enlistment. Thus, for example, Minister of Defence Ariel Sharon wrote in 1982: "As Minister of Defence I am not happy at the fact that the enlistment of students of ultra-orthodox Yeshivah students, as opposed to students of Hesder Yeshivot (combined religious studies and defence service), is deferred... however there is a certain reality which was brought about upon the establishment of the State and it is not within my power to alter it". Similarly, the Minister of Defence Moshe Arens wrote in 1983: - "the decision to defer the enlistment of students occupied full-time with religious studies is anchored in government decisions and it is not within my power or my jurisdiction to change it".

 

            There is no doubt that the ministers erred as to everything related to the legal aspect. The power to grant deferment of defence service is exclusively that of the Minister of Defence. It is not the Government's power, although it could - with the consent of the Knesset - transfer the Minister of Defence's power to another minister (Section 30 of the Basic Law: The Government). It is within the Minister of Defence's power to alter such decision. Minister of Defence Yitzhak Rabin - the Respondent in the Petition before us - wrote to Mr. Moshe Shapira in 1985 as follows:

 

"My predecessor indicated not only the formal fact that it is not within his jurisdiction to change the decision, but added that it is also not within his power to change it. As Minister of Defence, I would be happy if all able citizens of the State would take part in the defence of the homeland. However, there is a reality, that under existing conditions, cannot be altered".

 

            One year after this letter, Mr. Rabin wrote that the decision of the Ministerial Committee regarding the enlistment of Yeshivah students "binds the defence system". As noted, it is the Minister of Defence that is empowered to decide the matter of deferment of the enlistment of Yeshivah students. In his affidavit of response, the Minister of Defence did not reiterate the submission that he is not entitled to decide the matter, but rather explained the motives that caused him to reach this decision. Regarding the letters referred to, the Respondent repeated his explanation - via his assistant Mr. Haim Yisraeli, as follows -

           

"The Minister of Defence Mr. Yitzhak Rabin, after weighing all relevant considerations regarding deferment of the enlistment of Yeshivah students... has arrived at the conclusion that the circumstances do not justify a change in the policy determined by Governments of Israel on the subject at issue, and accordingly by the Ministers of Defence who preceded him. In the same way, he is continuing his activity in other matters in accordance with the Government's policy. The passages that the Petitioner cites from the letters of three different Ministers of Defence, who served at various times, and who had differing political outlooks, merely strengthen the argument that the Ministers of Defence exercised their discretion, each in his day, taking into account general, national considerations, which are, as stated, reasonable, relevant and legitimate".

 

            We find that the Minister of Defence is aware that the power is his, and he believes that it is appropriate, in the existing reality, to make use of it as he does in practice. The fact that the Minister of Defence is not "happy" about this decision does not impair its lawfulness.

           

CONCLUSION

 

            74. I have therefore reached the conclusion that the Petitioner has lawful standing, that the issue which he raises is justiciable (materially and institutionally), but that the Petition must be dismissed on its merits because the Minister of Defence is authorized to grant deferment of defence service to Yeshivah students, and it was not proven that the exercise of his discretion is, under the circumstances, unreasonable. To be precise: I have not expressed my opinion at all as to whether deferment of Yeshivah students' service is proper. All that I have determined is that a reasonable Minister of Defence is entitled to consider this matter.

           

            One may ask: would it not have been wiser to adopt the approach taken in the past, pursuant to which the Petitions were dismissed in limine, without addressing them substantively, rather than substantively dismissing the Petition.

           

            My opinion is that the answer to this question is naturally in the negative, and this is for two reasons: first, that in most petitions, alongside the dismissal in limine there was also a discussion of the substance of the matter; second - and this is the primary reason in my opinion - the rule of law is strengthened if a court examines the lawfulness of the a governmental action on its merits, and reaches the conclusion that it is lawful. The rule of law is impaired if a court refuses to examine substantively the lawfulness of an action, since it may be unlawful, and it thus remains suspended "in limine". Failure to strike down such an action impairs the rule of law. Take the example before us. Recognizing the standing of the Petitioner, and the justiciability of the Petition, permitted substantive discussion of the topic. In the existing circumstances we decided that the Respondent's exercise of discretion is lawful. These circumstances may well change. A decision which is reasonable in a particular set of circumstances may be unreasonable in a different set of circumstances. Deferment of Yeshivah students' defence service is a decision which must be reverted to and examined from time to time, against the back­ground of changing security needs and with a practical and open-minded approach (See H.C. 297/82 [60]).

 

            The Minister of Defence's discretion is an ongoing one. With the dismissal of the submissions regarding lack of standing and justiciability the Minister's discretion is subject to re-examination, if the circumstances so justify. The lawfulness of the government will be ensured. The Court will fulfil its mission as guardian of the rule of law, the separation of powers, and democratic values. And could there be a better outcome than this?

 

            The result is that the Petition is dismissed. There is no order regarding costs.

           

            BEN-PORAT, FORMER DEPUTY PRESIDENT: I have studied closely the profound opinion of my esteemed colleague Justice Barak, and I can say at the outset that on the substantive issue (beginning with paragraph 61), I accept his position without reservation, along with the outcome, pursuant to which the Petition is dismissed. I might add as to the issue of reasonableness, that on examining whether the decision of the Minister of Defence I disregarded my personal stance, because (as explained below), this is not the determinative test.

           

            More involved and complicated is the question of the scope of the right of standing which should ideally be granted to those who apply to this Court, as well as the question of the justiciability of the various issues.

           

            My esteemed colleague correctly noted that the general rule, according to which a right of standing is not given to a "public plaintiff", should be preserved, while the instances in which this Court will be accessible to a plaintiff of this type should properly be exceptional. I also agree that there is no contradiction between maintenance of separation of the three powers and maintenance of judicial review to ensure that each power acts in accordance with the law. On the contrary, one can even say that these matters are quite compatible, and that review upholds the principle of separation in its proper form. If an authority acts out of bias, in excess of jurisdiction, from discrimination, arbitrariness or extreme unreasonableness, it must know that the Court is vigilant, and is empowered to prevent actions of this type. However, everyone agrees that the Court does not act in this manner on its own initiative, but rather that someone's petition must be before it. Normally the petitioner must be the injured party (or the party likely to be injured) by the authority's decision or action, but in exceptional cases a petition filed by someone who is not personally injured (or likely to be injured) will be heard.

 

            As my colleague noted - and I will not repeat the authorities he brought - it is sufficient that the petitioner was thereby hurt not directly, but rather as one of a group of people, and at times - when the subject action is particularly grave - as a member of the general public. The borderlines of the exceptions are quite blurred, and the considerations are likely to vary from case to case. In my opinion, so long as there is a specific injured party, who is likely, able, and even required - according to the dictates of common-sense - to be interested in attacking the authority's decision or action, I would hesitate greatly before recognizing the right of standing of any other person (who is not his '"long arm"). Nonetheless, in (for example) a case involving corruption on the part of an authority, or an act likely to seriously harm the state's image or a public interest, I would tend to recognize the right of standing, for the reason which I will clarify below, of even a petitioner who did so solely for publicity purposes. Despite all the differences between a regular trial in other courts and the nature of a petition to the High Court of Justice, it should be remembered that even if the defendant does not rely on a claim of illegality, the Court will initiate consideration of this question, on condition that it is manifestly clear or proven beyond any doubt, that the action at the center of the hearing (such as a contract entered into) is indeed stricken with illegality (see: C.A. 365,369/54 [62], at page 1615-1616, and the authorities cited therein). And if this is the case in a private matter, all the more so in a public matter affecting the actions of an authority. However, here, as there, an application must be made (a complaint or a petition, as the case may be), whose scope allows for this type of initiative.

 

            In general terms, I would therefore say that primarily, an exception may be made from the rule where the topic is of great public import, and there is no specific "injured party" (or specific person likely to be injured) who ought to be interested and who himself may attack the authority's action. This, for example, was the situation in the petitions filed at the time by many petitioners on the non-extradition of William Nakash (H.C. 852,869/86, Misc. H.C. App. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15]).

            When it is decided not to extradite a person, obviously that person will not consider attacking the decision (because if he wants to stand trial in the foreign country, there is nothing preventing him from doing so). This means that without granting access to a public "petitioner" or "plaintiff", the decision would not be subjected to examination at all. This, of course, is the rule in cases in which a particular citizen enjoys a benefit as a result of discrimination, or in exchange for bribery, or similar scenarios, in which no injured party will want to complain about such flagrant conduct, except for a citizen who cherishes ethical standards in government. This consideration, which in my opinion is self-understood, was aptly expressed in the words of Professor Wade, supra at 577-578, cited by my colleague, and I will repeat them for my part:

           

"In private law that principle can be applied with some strictness. But in public law it is inadequate, for it ignores the dimension of the interest. Where some particular person is the object of administrative action, that person is naturally entitled to dispute its legality and other persons are not. But public authorities have many powers and duties which affect the public generally rather than particular individuals. If a local authority grants planning permission improperly, or licenses indecent films for exhibition, it does a wrong to the public interest but no wrong to any one in particular. If no one has standing to call it to account, it can disregard the law with impunity. An efficient system of administrative law must find some answer to this problem, otherwise the rule of law breaks down".

 

            Incidentally, even where it is appropriate to provide wide access to the courts, a proliferation of petitioners should as far as possible be avoided. This topic addressed by President Shamgar in H.C. 852,869/86, Misc. App. H.C. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], and I have merely to support his position.

 

            Nonetheless, it is not desirable that the general rule become the exception, and vice versa. I would also hesitate to remove all the barriers, to permit an application every time a petitioner complains that the authority has engaged in an unlawful action. Justice Barak also agrees that the claim of illegality alone is insufficient for purposes of recognizing the "public plaintiff".

           

            However, I am in favour of further narrowing of the area of exceptions. In general I approve of Justice Berinson's approach, expressed in several of his decisions, according to which it is best to keep away from rigid rules, and to prefer flexibility, while weighing the seriousness and public importance of the problem, "and the more important the issue from a public perspective, the greater the court's tendency to recognize the right of the petitioner, even though he is a rank-and-file citizen, to bring it before the court" (from H.C. 26/76 [9], at page 802). However, reading the opinion of my esteemed colleague Justice Barak, or at least reading between the lines, a tendency towards excessive broadening of the area of exceptions emerges. For example, my colleague says in paragraph 23:

           

"True, 'where there is no complainant, contention ceases', but why must the complainant complain only as to a right of his which has been violated, or an interest of his which has been harmed; why could he not complain as to a law which has been contravened? What is the moral basis for the view that he who claims that his money was unlawfully stolen can apply to the court, but he who claims that the public's money was unlawfully stolen cannot do so? What is the fundamental argument based on legal theory and the separation of powers theory that justifies this distinction? In my opinion, it is unsupported. Indeed, my approach is that the requirement that a right or interest exist as a condition for standing under the law is a requirement without any philosophical basis, which is not based on the separation of powers, does not rest on moral grounds, and impairs the rule of law".

           

            I fear that this approach is too far-reaching. A person who claims that he was personally harmed - such as by denial of an exemption from taxes - and even in respect of a modest sum, is different from one who claims that another person received an unlawful exemption and thereby public funds were expropriated. The considerations, from a philosophical and even a moral (and not just pragmatic) perspective, are different in the two cases.

 

            The rationale guiding me is that it is not insignificant that paragraph 15(c) of the Basic Law: The Judicature states that this Court is empowered to hear "matters in which it deems it necessary to give relief for the sake of justice..." (emphasis added - M. B-P). Relief is given to a person who is injured (or likely to be injured), although if the government action is serious, or the public problem is of great importance, then, and only then, every individual from the public can be seen as "an injured party", and deserving of relief. In other words, because of the gravity of the action or the seriousness of the public problem, the petitioner, who in normal circumstances would be dismissed in limine as a "public plaintiff" also has protected interest.

           

            I am aware of the fact that my esteemed colleague dealt separately with the moral-philosophical side on the one hand and the practical and pragmatic side on the other, where the latter must be based upon a proper balancing of the various considerations; however, the balance I strive for is more in the direction of restricting access to the court, as explained.

           

            As for me, I also fear, more than my esteemed colleague, the tendency towards litigation is likely to lead to a flooding of the court with public claims, the handling of which is likely to waste precious time which will be irretrievably lost.

           

            And now for the case before us: In light of the affidavit attached to the petition in support of the claim that the deferment of the service of students whose full-time occupation is religious studies is likely to have an impact upon the length of each individual's military service, I am prepared to join in the conclusion that a "right of standing", in its narrow sense, was proven in the Petition before us (being an injury to a personal interest).

 

            I would reserve for further inquiry the demarcation of the limits of justiciability, although in general my opinion tends towards that of my esteemed colleague President Shamgar. In the end, I view this question as primarily involving self-restraint by the Court in appropriate situations. Weighing up the need for restraint therefore should properly be based upon the facts and circumstances of the petition which is to be considered, at times (for example, because of the urgency and essential nature of the issue) at the outset of the proceedings and at times at the end. In any event, suffice it to say that I see no justification for refraining from dealing with the petition before us. If, heaven forbid, the decision to defer military service for particular groups is impaired by arbitrariness, by discrimination between equals, by a consideration which is extremely unreasonable, or by bias, why should the question not be examined by this Court in terms of those aspects? The substantive issue of deferral of the time period for military service is not of a character which justifies deeming it non-justiciable, whether from the normative or the institutional perspectives.

           

            On the substance of the matter, as I stated at the outset, I agree with the reasoning of my colleague, Justice Barak, beginning with paragraph 61 of his opinion, and I see no need to repeat his reasoning. I will merely add that the point of view that people who are "occupied" full-time with religious studies have a unique status in certain situations, was found to be not unreasonable in another context (H.C. 200/83 [63]).

           

            As I emphasized therein, whatever my personal opinion, the determinative test is whether the decision of the authorized person or body is impaired by one of the defects which call for our intervention. This is an entirely different question from the question of the outlook of the judge on the bench. Indeed, if there were another group of people of a different religion, who were also exclusively involved with religious studies, then it would prima facie be discrimination unless they were also granted deferment similar to that granted to Yeshivah students (compare with the holding in H.C. 200/83, supra [63]). Likewise, it may well happen that in the future, the extent of deferments will become a serious consideration as to the reasonableness of the Minister of Defence' attitude, to the point of justifying this Court's intervention. I do not believe that that is the situation today.

 

            Accordingly, my opinion is also that the Petition must be dismissed.

           

PRESIDENT SHAMGAR: Introduction

 

            1. The legal significance of deferment of enlistment of a number of Yeshivah students has again arise in this Court, and this time has been substantively examined.

           

            2. (a) The central questions which I saw need to refer to in detail, are two-fold: first, the legal question of justiciability; second, the answer to the substantive question, which is: is deferment of service properly based upon the provisions of the law?

           

            (b) My conclusion is that the issue before us is justiciable, and that it should not be concluded that the authority was exercised unlawfully.

           

            Nonetheless, I will add and clarify below that my approach to demarcating the bounds of justiciability is somewhat different from that set forth by my esteemed colleague, Justice Barak.

           

            3. Moreover, it should not be inferred from my concurrence with the legal outcome that I agree with the arrangement of non-enlistment of a some Yeshivah students, as it is practiced today. What do I mean by this?

           

            It is true that it is assumed that the legal solution to a particular problem is rooted in legal norms and not in "the private views and personal predilections" of the judge, as stated by  President Agranat in H.C. 58/68 [30], at page 600). For this reason, the Court generally abstains from expressing an opinion regarding circumstances which it does not see fit to address substantively from a legal point of view; however, sometimes the Court is forced to relate to substantive problems because of the nature of the topic brought before it (compare H.C. 62/62 [64]). The legal circumstances therefore impose upon the judge the need to relate to problems upon which he does not usually express an opinion.

 

            Moreover, sometimes a problem lies on the borderline of the realm of reasonableness, and gives rise to serious doubts. In such circumstances it is not necessary - and at times not correct - for the judge to be satisfied with a declaration of the formal legal outcome, recognizing the reasonableness of the outcome under the legal tests applied by the Court, without expressing at the same time his evaluation as to the location of the existing solution within the realm of reasonableness.

           

            In my opinion, this is what has happened herein: the existing arrangement regarding the release from military service of some Yeshivah seminary students (in contrast with other Yeshivah students who have served and continue to serve in all of Israel's wars, alongside with other men of military age) is indeed lawful, but from the practical perspective, it is, in my opinion, unsatisfactory and difficult acquiesce in. It raises weighty questions in the field of both public and personal morality, questions which are left unresolved. This statement is also made here so that the legal outcome will not blur the value-judgment, national and human, which in my estimation is a source of concern for a significant portion of the public.

           

            To summarize this point: although from the legal point of view I see no place for this Court's intervention as requested in the Petition, I am not prepared to support the arrangement on as merits.

 

            From here I move to a legal analysis of the problem before us.

           

 Method Of Analysing The Problem

 

            4. I agree that there are three questions to address, generally, in the issue presented to the Court in this Petition.

           

            (A) The Petitioner's right of standing;

           

            (B) The justiciability of the topic, that is: to what extent are we speaking of an issue which by its nature is capable of judicial determination, or whether this is not an issue of the type determination of which is best left to the decision of other authorities, being either the legislature or the executive;

           

            (C) The legal arrangement, pursuant to which regular service certain Yeshivah students is deferred because they are occupied full-time with religious studies, such that they are, in practice, exempt from regular and reserve service.

 

            The three topics noted above are not presented here in the order of priority by which they ought to be decided under all circumstances, because the order of dealing with these topics, as to a particular issue, depends, of course, on its nature and details.

           

            5. (A) My esteemed colleague Justice Barak summarized the basic facts of this Petition in his decision, and I see no need to add anything further thereto. I likewise accept the description of the essence of the formal legal framework, being a summary of the relevant provisions of the Defence Service Law, as amended and consolidated.

           

            (B) As to the question of whether the Petitioners before us have right of standing, my esteemed colleague Justice Barak answered in the affirmative.

           

            In my opinion as well the Petitioners have right of standing. I will add nothing on this topic to my esteemed colleague's exhaustive discussion, because my opinion in this area corresponds to the approach indicated in his discussion, which has already been presented several times in the past, including in, inter alia, H.C. 852,869/86, H.C. 483, 486, 487, 502, 507, 512, 515, 518, 521, 523,543/86, 1,33/87 [15], at page 22); H.C. 1/81 [10], at page 372; H.C. 511/80 [20]; H.C. 428, 429, 431, 446, 448, 463/86, Misc. H.C. App. 320/86 [12].

 

            (C) As to the question of justiciability, I should observe here, in a nutshell, that my esteemed colleague demarcates lines distinguishing between the realms of normative and institutional justiciability. He thinks that the issue before us is justiciable from both of the two aforementioned perspectives. As to the dispute on its merits, he has arrived at the conclusion that the Minister of Defence's determination on the subject before us conforms with the law and that it does not exceed the realm of reasonableness, that is: the decision is within the confines of those which a reasonable Minister of Defence could have reached in the circumstances, and accordingly, there are no grounds for the intervention of the High Court of Justice, as requested in this Petition.

           

The Procedural Stage In Which The Justiciability Question Arises

 

            6. (A) The question of right of standing is the type of issue which is decided, usually, at the early stages of the proceedings; the question of justiciability can, in contrast, be decided by the court at any stage of the case, that is, even after clarification of the problem and following the hearing on its merits and particulars. In this regard I noted in H.C. 620/85 [33], at page 191, that when the High Court of Justice finds that it has jurisdiction to consider an issue, and that legal standards are available to decide it, it is nevertheless entitled to consider whether or not it is proper for it to intervene in the dispute brought before it, and even to abstain as a result thereof from judicial intervention. The conferred discretion on the court is, inter alia, a reflection of the need to create a balance between the various interests and functions of govern­mental authorities', including the interest in maintaining a separation which permits a different governmental body, which is in charge of such, to decide an issue of a predominantly political character. As mentioned, it is necessary in this context to note that, within the framework of a particular problem, there may be components or elements stemming from differing areas, some of a legal nature or having characteristics which permit judicial determination, and some clearly political. It was noted there that there are several topics having components in which the political element is combined with elements allowing for discretion and distinctions of a legal nature. I commented on this in H.C. 852,869/86, Misc. H.C. App.483, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at pages 29-30:

 

"...As far as I am concerned, I do not think that one can totally exclude the intrusion of political elements into litigation before the High Court of Justice. It is true that the standard applied by the Court is a legal one, but most of the constitutional issues also contain political elements, in the various senses of this concept, and the question is, in general, what is the dominant characteristic of the dispute. One cannot, therefore accept the proposal that the Court should withdraw from consideration of these topics because of some such incidental political characteristic. On the contrary, examination of an issue on a legal and normative basis can free the problem, not infrequently, from dependence on the concomitant political attaches, which are liable to cloud the true nature of the problem.

 

Fundamentally, even if a particular problem has political aspects, the standard applied by the court is a legal one, and whether the issue is appropriate for consideration before the courts is examined solely pursuant to such standard. Hence this Court considers whether there are legal grounds - from among those discussed in paragraph 15 of the Basic Law: The Judicature - so as to decide whether to allow access to a petitioner, and in light of this standard, the personal standing of a particular person as a Knesset member ought not to add or detract anything while the ancillary political characteristic of a particular dispute does not and need not alter in any way the justiciability of a problem, if it is indeed, predominantly, a legal problem" (emphasis added - M.S.).

 

            However, the contrary is also true, that is, it can happen that the political nature will dominate to the point that it will conceal or sit aside the legal significance of the problem. The legally significant elements (such as the question of jurisdiction) are, of course, always subject to judicial review; but if the entirety clearly and overtly points to a dispute of a predominantly political nature, the court will not inclined to deal with it (H.C. 58/68 [30], supra, at page 600).

           

            (B) I have noted that determination as to justiciability can be made at any stage of the proceedings. It should not be inferred from this that the issue cannot be decided at the outset of the proceedings. Deciding justiciability after thorough examination of the issue in dispute, is an option but not obligatory. There are circumstances in which a decision on justiciability will be required at the outset proceedings, and this is possible and subject to the court's discretion.

           

            (C) To summarize this point: When a problem combines within it both legal and political elements, the court will not refrain from considering it under its legal criteria, merely because political components are interwoven into the problem. But it is clear that it will not consider the latter.

           

            If the issue is primarily political, but secondarily, it has legal components, the court can do one of the following: It can hold that the legal characteristics are insignificant for purposes of deciding the substance of the problem, and dismiss the petition in all its aspects, or it can confine its examination to the legal aspects and leave the determination of the predominant issues to the body in charge thereof under the constitutional division of responsibility.

           

            (D) This is also why it was stated in H.C. 620/85 [33], supra, that the High Court of Justice will not be ready to exercise its powers as to every petition which raises a subject within its jurisdiction, even if the conditions of justiciability are present. This is also the import of the timing for application of the justiciability tests: when an issue is examined in terms of its justiciability after detailed consideration of it on the merits, attention is of course paid primarily to the circumstances of the specific issue before the court, and not only to the general categorization of that issue. As summarized, ibid., at page 191-192:

 

"The advantage of the proposition that an important constitutional issue is at the same time a justiciable issue - albeit subject to consideration as to whether to intervene therein under criteria of judicial discretion - lies in its flexibility and in postponing consideration of the justiciability question until after the hearing an the substantive issue. This topic has already been explained in H.C. 306/81, supra, at page 141-142, where it is stated, at page 141:

 

'On an important constitutional issue... it is preferable for procedural circumstances to be created which permitting consideration of the matter, so long as it is not manifestly clear that the topic is not subject to the jurisdiction of the court'.

 

The presumption underlying these statements is that, when a question is important, so long as it is not clear that the topic is not suited for judicial determination, the court examines the substantive issue of the petition; there are instances where only a detailed examination will lead to a conclusion regarding existence of jurisdiction or the propriety of the subject proceeding in question; however, the main part is that some of the tests which were set forth as standards for this Court's intervention in the Knesset's decisions require know­ledge of the nature and extent of the alleged harm. Everyone agrees that knowledge of this type is impossible prior to examination of the issue or its merits".

 

Justiciability

 

            7. (A) In all matters concerning to the theory of justiciability (H.C. 65/51 [25]; H.C. 186/65 [29]; H.C. 561/7 [27], at page 315), I accept the method of distinction which was thoroughly clarified in the judgment of my esteemed colleague Justice Barak, pursuant to which examination of the dispute proceeds on two separate planes, i.e., firstly, normative justiciability, and secondly, institutional justiciability.

 

            Normative justiciability answers the question of whether legal standards exist for determination of the dispute before the court.

           

            Institutional Justiciability answers the question of whether the court is the appropriate institution for deciding the dispute, or whether perhaps it is preferable that the dispute be decided by another institution, being either the Legislature, the Executive, or their emanations.

           

            A legal standard for determination means, in other words, that the action which is subject to the court's judicial review is examined in terms of its legality.

           

            In E.A. 2,3/ 84 [65], at page 251-252, it was stated in connection with the standards applied in examining a statutory authority's exercise of discretion:

           

"So far as concerns this court, the accepted view is that in reviewing the action of a statutory authority we examine, in general, whether the modes of deliberation were lawful, and whether the authority had before it material on which it could base its decision (H.C. 288/51, 33/52[18]; H.C. 554/81 [19], at 251).

 

This general observation may be broken down into elements. Lawful deliberation means, generally, that the principles of natural justice have not been violated; that the procedures prescribed by statute and applying to the authority, or set out in the regulations under which it functions, have been observed; that the decision was rendered by the competent person and that it was in conformity with the material jurisdiction of the decision-making authority; that the decision-making authority exercised its power in furtherance of its purpose; that no mistake of law occurred and that the decision was not tainted by fraud or influenced thereby; that the decision was made on the basis of supporting evidence, and, finally, that it was not contrary to law for some other reason. The exercise of a power in furtherance of that power's purpose means, in general, that no extraneous considerations were taken into account; that the authority did not overlook relevant information; that the power was exercised for the purpose for which it was granted; that the discretion was exercised by those empowered thereto, and that there is no room for concluding that the decision is marked by unreasonableness so extreme that no reasonable authority could have made it, or that the exercise of the power was simply arbitrary".

 

            In Britain it has even been proposed that the tests be summarized and concentrated under three primary headings, namely, unlawfulness, lack of reasonableness, and defects in the manner of exercising jurisdiction (of on for this matter Council of Civil Service Unions v. Minister for Civil Service (1985) [73]).

           

            The problem is that one can argue that no closed list can reflect the dynamic nature of the development of administrative law; moreover, in our opinion, unreasonableness is one of the aspects of the test of lawfulness.

           

            (B) In any event, legality is examined not just in its plain meaning, by answering the question of whether the law has conferred jurisdiction on the deciding authority, and whether exercise of jurisdiction falls squarely within bounds, and similar tests.

           

            My esteemed colleague correctly states that, as noted above, in accordance with the concepts developed by this Court (inter alia, following H.C. 156/75 [58 ], at page 105, opposite marginal letter E, and see also E.A. 2,3/84 [65], supra), the reasonableness of the act or omission is also one of the tests of legality. If the act or omission are tainted with extreme unreasonableness, i.e., if they exceed the bounds of reasonableness and it is not possible to classify them among any of the reasonable courses of action, then too it is an illegal action, and the same applies in the contrary situation, i.e., if the action is within the realm of reasonableness according to the court's holding, and it also does not stray from the formal rules of jurisdiction, then the act is legal, and the court will not interfere with it.

 

            8. As appears from the discussion by my esteemed colleague Justice Barak, there is no topic in our world as to which the questions of formal legality and of reasonableness could not be asked; i.e., there is no topic which is not justiciable, and any topic can be considered in court. As to this point, I would like to add qualifications and clarifications.

           

Separation Of Powers

 

            9. I do not disagree with the above-mentioned thesis: it is true that every topic can be examined pursuant to the aforementioned tests of legality, and, inter alia, its place within the realm of reasonableness; whether the topic is the development of a combat plane or the founding of an additional law or medical faculty, or even crucial foreign relations and security questions, an answer can always be sought to the question of whether a particular topic was decided by the authorized to do so by law, and whether the action was carried out within the bounds of the jurisdiction outlined in the statute.

           

            The problem is that, quite frequently, the question is not merely endorsement of the existence or non-existence of a legal test in the sense described above, but rather a question arises which essentially relates to taking a position on topics which require a material decision by those dealing with the matter. Together with the presentation of the question, accordingly, the fundamental problem of separation of areas of operation between the authorities arises as a derivative question.

           

            As I noted in H.C. 306/81 [21], I do not hold that the separation of powers is expressed by establishing an absolute barrier between each of the three powers. As was stated therein, at page 141:

           

"Separation between the powers does not necessarily mean the creation of a barrier which absolutely prohibits all connection and contact between the powers, but rather it is primarily reflected in the existence of a balance between the powers, in practice, which permits independence with defined, mutual supervision. Hence, it also requires a certain practical relationship, even if it is extremely limited, regarding the exercise of powers in areas where the judicial system is in charge".

 

            Separation of powers was created so as to bring about a balance between the powers, since it is only in this way, that is, by preventing an excessive concentration of power exclusively in the hands of one authority, that democracy is ensured and the freedom of the individual and of society is preserved. In other words, the systematic and conceptual distribution of powers between the authorities, through the imposition of constitutional principles of mutual checks and balances, and the establishment of links and bridges between the various authorities for that purpose, will create the basis of integrated components, embracing all the branches of government. Thus, the parallelogram of forces is created, which maintains and stabilizes the balance, and which is a condition for the maintenance of freedom and proper government in all its branches.

           

            If the theory which allows consideration by the courts of every issue by the constanting put into practice realized regularly, that is: If every topic - from the details of the budget to the construction of housing projects, planes and tanks - will be decided by the court according to formal tests of legality or according to the reasonableness tests regarding which the Court lays down the law, this could well create a concentration of power which will, in practice, nullify the other authorities ability to function.

           

            How are the bounds delineated, and how is the balance created? There is no mathematical formula for this, nor is it possible to set up unclear indicators. However, as I noted above, the test which can be utilized for this end is the test of the predominant nature of the topic. Sometimes such predominant nature leads to the conclusion that the topic ought to be decided by the judiciary, and sometimes that nature indicates that it ought necessarily to be submitted to the legislature and sometimes it can be learned from all the circumstances that, according to our conceptions, it is the issue should be left in the hands of the executive i.e. political power. Of course, sometimes part of the topic will be considered by one authority and the rest by another, each authority addressing that area submitted to its consideration.

 

            All the authorities act, of course, through mutual checks and balances, and therefore the court always has the jurisdiction to exercise its power if the problem brought before it law has legal overtures. It goes without saying that one of the points of difference between one authority and another is that the legislature and executive can take up the topic of their choice, whereas the judiciary only considers that which is brought before it by litigants.

           

            Judicial control always exists because it derives from the essence, role and mode of operation of the judiciary, and from the remedies within its jurisdiction. In the words of Wade, supra, at 605, which I am prepared to adopt:

           

"...Judicial control is a constitutional fundamental which even the sovereign parliament cannot abolish...".

 

            The way I would express this view is that judicial control will always prevail.

           

            Hence, moreover, the justiciability problem need not arise at all, as far as I am concerned, whenever the dispute affects the safeguarding of rights, political or otherwise. As stated by Justice Brennan in the Baker case [68], at 209:

           

"...the mere fact that the suit seeks protection of a political right does not mean it presents a political question".

 

Application Of The Justiciability Test In Practice

 

            10. There are cases where consideration of a particular issue according to legal standards alone will miss the point because it is likely to obscure the true nature of the problem under consideration. Frequently, it is not the legal norm which gives rise to the problem, and it has no decisive significance for the substance of the decision, but once the judicial determination is made, and it appears that the decision, which was subjected to judicial review, was made by the person entitled to do so, in good faith, without discrimination, and is within the realm of reasonableness, it may will be concluded that everything is in order, despite the fact that the decision on the merits is far from satisfactory: Is a decision regarding the production of a plane or questions of foreign policy settled by the answer to the questions examined by the judicial forum by the above-mentioned tests? The answer to this is in the negative. However, the trouble is that this is the misleading conclusion liable to be formed by legal discussion of a problem the basis of which is actually foreign to legal criteria. In such circumstances, the response is likely to be, frequently, what is called "question begging", i.e.: it will permit those who so wish to circumvent and avoid relevant consideration of the issue which is the cause of action of the petition. Accordingly, justiciability is always examined pursuant to the two-fold test, i.e., the question of institutional justiciability is combined with normative justiciability, and according to the former test, the court is required, in theory and in practice, to go back, stop and consider whether hearing of it is indeed proper and desirable for it to hear the issue as the most suitable body to do so. In other words, despite the fact that it is possible to apply legal standards in a formal sense, these should not be seen, in many areas, as an answer to the problem, because pursuant to its essence, nature and characteristics, additional answers are needed in realms that the Court does not refer to.

 

            This argument applies to an even greater extent to the examination of normative justiciability pursuant to the reasonableness tests. There is no issue the reasonableness of which cannot be assessed. However, the reasonableness test in the realm of normative justiciability emphasizes to a greater degree vigor, as stated, the importance of maintaining the additional, cumulative justiciability test, i.e., the institutional justiciability test, which may lead to the conclusion that it is not proper for the court to address the reasonableness of a particular issue, despite the fact that it can be grouped among the issues which can be examined according to normative justiciability tests. The institutional justiciability test allows for exercise of restraint in relations among governmental authorities, a restraint which allows for submission of political problems for determination by politicians. We have already cited H.C. 186/65 [29], supra, in which the entrance of the first German ambassador into Israel was considered. Justice Sussman (as he then was) said therein, at page 487:

 

"It is common knowledge that public opinion is divided on the question of whether or not it is desirable to acceal to the request of the West German Government and establish diplomatic relations with it. The Government made a decision on the issue, and moreover, brought the matter before the Knesset, and the Knesset supported the Government's decision. The issue was not legal one, but a clear political issue; it cannot be examined pursuant to legal standards. And the confirmation or invalidation of the ambassador of a foreign country is a political issue as well, which the Minister of Foreign Affairs or perhaps the entire Government must address. It is not a legal matter, which by its nature may be brought to a court for resolution. The considerations are not legal considerations, but rather considerations of foreign policy and of the fitness of the candidate for the task, which this Court is neither authorized nor capable of deciding" (emphasis added - M.S.).

 

            According to the normative justiciability test, it was possible for a court to determine whether the establishment of relations was the outcome of a decision by a person authorized to decide person. It was possible even to go on and litigate the question of whether the establishment of relations was a reasonable act or not, or according to the foundation of the legal standard, whether a reasonable government would have established such relations. However, there can be no question that the petition was not directed at the first formal legal issue mentioned above, and that the second criterion - concerning the reasonableness of establishing diplomatic relations with any state - is not of the type which a court ought to, or is able to deal with. A decision on the issue of formal jurisdiction, if it were to have been made by the Court, would, on its own, have been merely a kind of evasion of the topic; consideration of the reasonableness question would have forced on the judicial forum a topic which is entirely unsuitable for consideration by it. The question described above is suitable for political, historical, philosophical or even emotional consideration, but the criteria at the court's disposal in no way allow it to encompass these various aspects or be involved in them.

 

            There are those who propose replacing the justiciability tests by the standards used by the court to examine the exercise of authority which the substantive law has placed in the hands of a statutory authority. Thus it can be argued, according to this thesis, that where discretion is conferred on a particular authority, the court will examine whether the discretion was exercised according to the standards delineated in the law, and nothing else, but it will not replace the authority's exercise of discretion by its own; hence, there will be no room for intervention by the court, so that, the risk of the court dealing with topics which are not with its ambit would be eliminated, so to speak.

           

            The problem is, that this solution does not include by its terms the array of circumstances described above: exercise of discretion as to whether to establish, for example, diplomatic relations with a particular country does not, by its nature, have to be examined in court, in other words, it is not justiciable, because in the words of President Sussman, it is a clear political issue, and the limits on the court's intervention in an authority's discretion does not have to be the determinative factor for it not to intervene.

           

            The same applies to other examples cited in my esteemed colleague's opinion, and first and foremost is the question or whether to declare war or to make peace. To be precise, the problem is not always lack of norms in the personal inability of a judge to examine the norms; it would be the demarcation of the spheres of activity of various public bodies, which is one of the fundamentals of good government. Such demarcation seeks to avoid over-concentration of power, in which the court has resort to all matters - political and otherwise - and purports to adjudicate thereon.

           

            Hence, as stated, we arrive at the institutional justiciability test, since the normative test would embrace everything without exception, and it goes without saying that it would drag the court into making clear political decisions. The expert sense of the jurist (H.C. 65/51 [25], supra, at page 813) must protect the Court - and other governmental authorities - from an outcome of this nature.

           

            As a footnote, I should add that I did not illustrate my comments by reference to the facts of H.C. 65/51 [25], supra, since in my opinion the legal and constitutional issue considered in the aforementioned petition is the opposite of what is described above regarding the establishment of diplomatic relations. That is, it is doubtful whether in fact a non-justiciable political issue existed under the circumstances therein, since it concerned a constitutional process the origin and mode of operation of which are delineated in the statutory enactments; it could well be that it would have been justified in that case to dismiss the Petition because it was, in truth, merely a request to invalidate the exercise of discretion by a authority having proper justification, a request as to which that the Court did not see fit to intervene under the circumstances which existed at the time. This is also the opinion of Justice Witkon, see Politics and Law, and also, Law and Adjudication, at page 57.

           

            11.. What was exemplified above in connection with H.C. 186/65 [29] (establishment of diplomatic relations) is correct regarding questions of peace or war, acquisition of means of combat, methods of dealing with employment difficulties or with distressed enterprises, or establishing unified or separate methods of collection by the income tax authorities and the National Insurance Institute, and the list goes on.

 

            My esteemed colleague in this context also cited the statements made in H.C. 561/75 [27], supra. As I said therein, at page 319:

 

"Topics related to the organization, structure, preparations, arming and operations of the army are not justiciable because they are entirely unsuitable for consideration and determination by judicial bodies... It is entirely unreasonable for the judiciary to consider and determine what is the most effective method for deriving lessons from military operations, from a professional, military point of view, and substitute its opinion for that of the military authorities who were trained and placed in charge of such matters".

           

            My esteemed colleague's position is that instead of denying the inherent justiciability of the topic, one of the following courses should have been followed:

           

            (a) First, the relevant legal norm should have been identified. Since there is no norm which states that inefficient government action is unlawful, the petition should have been dismissed; alternatively -

           

            (b) The submission that the army acted unreasonably should have been dismissed. It is true that the Court does not replace the authority's opinion by its own; however it examines whether a reasonable army would have taken the steps which the I.D.F. took at that time. If the petitioner succeeds in showing that the army's action was unreasonable, then the petition should be granted. In other words, in his opinion there are legal standards pursuant to which it is possible to determine whether the army's actions as to debriefings and learning lessons in the wake of war are reasonable.

           

            Regretfully, I cannot accept the two courses outlined above.

           

            Dismissal of the Petition on the basis of the conclusion that there is no legal norm which invalidates an inefficient govern­mental action highlights, in my opinion, the irrelevance of justiciability as to a clearly military operational issue.

           

            The public examination of "whether a reasonable army would take the action which the army took or which the petition is asking the army to take" is in theory and in practice, with all due respect, outside the court's realm. The submission that the court in any event considers the reasonableness of army action whenever it is called upon to address tort claims arising from military activities is no answer to the question.

           

            The problem before us is in the realm of public law, and is concerned with the scope of authority which the High Court of Justice should take upon itself, and the subsequent consequences for democracy in its actions. Examination of a negligence claim in tort law in a concrete context, which in general is specific and narrow, does not place the Court in the position of determining questions of policy, just as deciding a concrete question of medical negligence does not transform the Court into the body which addresses and decides the general and broad topic of how to organize the State's medical system.

           

            I fear that it would not be possible to maintain proper governmental systems - including a court which functions as it should - if all the political problems will begin to make their way to the Court to be examined there according to legal standards.

           

            Indeed, I agree that where there is a legal norm there are also legal standards which implement that norm; however, the threshold question is whether the legal norm is relevant and applicable to a particular problem, and whether it should be learned from the context, the nature of the problem, the substance of the topic and the set of rules, pursuant to which the proper system of interrelations between the various governmental bodies are fashioned, that it is best that the Court refrain from dealing with a particular topic, in whole or in part (that is, except for those portions of the issue which may be decided according to legal tests), so as to submit it to the attention and determination of another governmental institution. Hence the significance of the institutional justiciability test, as noted above.

           

            12. The recognition of the limits of justiciability which may, in appropriate situations, lead the Court to refrain from dealing with a political, economic or other public problem, does not weaken the principle of judicial supervision and review but rather strengthens it, since it determines the proper limits of the principle. Public officials and bodies are subject to judicial supervision, and it goes without saying that the fact that a particular topic belongs to the public realm does not, in and of itself, make it non-justiciable; and it is section 15 of Basic Law: The Judicature which states this. Those who reject the thesis that every topic in the world is justiciable, do not thereby adopt the opposite conclusion, that the Court must, so to speak, narrow the scope of its supervision. Any topic as to which legal norms are applicable may serve as grounds for a request for an exercise of jurisdiction by a court. But if the legal normative issue is secondary, the court can deal with the legal portion of that issue and leave the political issue for determination by another authority. If the political nature of the problem is predominant (such as a question of establishing diplomatic relations or matters of war and peace), the court can transfer the entire topic for determination by the political body, without addressing marginal legal issues, where they are not relevant to the substantive decision.

 

            As noted, it is best to chart the limits so that the court will not find itself unintentionally granting a general stamp of approval to a political action, as a result of the fact that it is asked to examine the legal aspects of it alone.

           

            The Court ascertains whether the facts were assembled and examined, whether they were all taken into account, whether the decision was made with relation to the facts, whether extraneous factors and the like were taken into consideration (see H.C. 297/82 [60] and E. A. 2,3/84 [65], Supra). However, when the jurist's expert sense indicates that the topic, in whole or in part, is clearly political or of another nature which indicates that its determination should be submitted to another authority, then that part which has the aforestated characteristic (and if the legal aspect is insignificant, the entire topic) should properly be referred to whoever is placed in charge of it according to the division of spheres between the different authorities.

           

            The Court's power of supervision over matters as to which its review is expected will not be diminished in the least if it does not decide, for example, as to the reasonableness of establishing diplomatic ties between Israel and a particular state.

           

            In practice, there need not be any difficulty in identifying a particular topic according to its substance and content, and it may fairly be assumed that the Court will know how to treat the topics brought before it according to their nature, so as to choose which is suitable for judicial determination, and not be entangled in legal determinations that conceal problems the real and decisive nature of which are political.

 

Deferment Of Service

 

            13. I agree with my esteemed colleagues' opinion that the topic before us is justiciable, and that despite its accompanying political elements, this is a topic regarding which legal tests can be employed. I also accept that under the existing circumstances the system of deferment of military service, already in place for nearly forty years, should not be invalidated. However, this statement is insufficient because the exemption of thousands of young people from military service is not a topic which can be removed from the agenda. What do mean by this?

           

            As stated, there is no room for the conclusion that the Minister of Defence, who is currently acting consistently pursuant to a system which was handed on from one minister to another and from one government to another over a period of many years, as explained above, is acting with extreme unreasonableness which goes beyond the bounds of plausibility. The problem is that the issue must be examined not only as it appears on the surface, against the background of its development since the establishment of the State up to the present, but rather also according to its ongoing nature and the impact and consequences which accompany it, year in and year out, for the foreseeable future. This Means that what we now hold regarding the legal validity of the arrangement, when it is subjected to the relevant judicial review for the first time, does not exempt the Executive from the obligation of continuing to examine, and reexamine from time to time, the significance of granting an exemption to increasing numbers of men of military age. Already we are speaking of an exemption for approximately 17,000 men, if we include in this statistic all age groups of men of military age, that is, men between the ages 18 and 54. In the past year, 1,600 men of military age were added, and according to the data before us the number will grow annually in the coming years. Therefore, we are not speaking of fixed data, but rather of facts which change and are updated every year. This means that a duty is imposed on the authorized body to examine the data annually and state its opinion on the question of their connection with other background data.

 

            In this context I once again refer to a matter summarized in H.C. 297/82 [60], at page 49 as follows:

           

"The process of decision-making by one to whom power is delegated under the law should properly consist, in general, of a number of basic essential stages, which are the tangible expression of the legal exercise of authority while dealing with a defined topic, and they are: assembly and summary of data (including opposing expert opinions, if there are such), examination of the significance of the data (which includes, in the case of alternative theses, also examination of the advantages and disadvantages of the opposing theses), and finally, a summary of the reasoned decision. A process like this ensures that all the relevant factors are taken into consideration, that a fair examination of every submission will be conducted, and that a decision will be made which may be subjected to judicial and public review".

 

            And in H.C. 852,869/86, Misc. App. H.C. 483, 486, 487, 502, 507, 512-515, 518, 521, 523, 543/86, 1,33/87 [15], at page 50, we added:

           

"A decision must be, in each case, the result of a relevant, fair and systematic examination, and if, in light of the nature of the issue, repeated examinations are required, the new application should not be peremptorily dismissed without proper study, in exclusive reliance upon the fact that the empowered authority was granted discretion to decide the matter, or through adherence to the prior decision which may need to be revised".

 

            Does it appear from the material before us that all the data were collected, examined and considered according to their appropriate value and weight, without the decision being affected from the outset by the long-standing agreed on this issue, political arrangement? I fear that it there is no certainty and that the prior assumptions have rendered the decision obvious, without the data being examined and re-examined in a systematic manner, and without a prior inclination towards an agreed-upon solution.

 

            Thus it does not appear from the State Attorney's Response that the following questions, inter alia, have been considered:

           

            (A) What is the reasonable yearly quota for those granted draft deferment, consistent with safeguarding the security interest in military training of men of military age who are physically fit?

           

            (B) What is the numerical impact on the yearly draft cycle and on the length of military service in the regular army and in the reserves?

           

            In this context it is proposed that the impact of the increase in exemptions at the rate of ten-percent a year (1,674 last year, as against a total of 17,000 total whose draft has been deferred) should be examined, and that setting maximum quotas be considered.

           

            (C) Whether there are standards for the selection of candidates for deferment, in terms of fitness; that is, is grant of deferment entirely within the discretion of the man of military age who decides to give defence to religious study over military service?

           

            (D) What are the means of supervising the way the arrangement is operated?

           

            Of course, the above is not intended to exhaust the topics which should be examined and considered, but rather merely illustrate them; the essence of this discussion is that a phenomenon of the type we have dealt with herein requires a relevant, systematic, periodic examination, and that the competent authority must continuously follow the developments, their connection to other phenomena, and their accompanying significance, and, of course, to report on these matters to the appropriate Knesset committee.

           

Subject to these comments I have decided to adhere to the conclusion reached by my esteemed colleagues.

 

Decision as stated in the judgment of Barak, J.

 

Judgments given on June 12, 1988

Neiman v. Military Governor of the Occupied Area of Jerusalem

Case/docket number: 
HCJ 1/48
Date Decided: 
Wednesday, September 29, 1948
Decision Type: 
Original
Abstract: 

The Petitioner, while employed by the Army as a civilian employee, assaulted a soldier and committed other acts constituting criminal offences under both military and civil law. After he had ceased to be so employed, the Petitioner was charged before a military court. He sought an order restraining the military court from proceeding with the charges on the grounds that he was not at the relevant time a soldier within the meaning of the Army Code, or alternatively that he had ceased to be a soldier when charged and that a military court therefore had no jurisdiction in the matter.

               

Held, that the Petitioner had been a soldier within the meaning of the Army Code, 1948, when he committed the acts in respect of which he was charged, but that at the time such charges were filed he had ceased to be a soldier, and that a military court did not have jurisdiction to try such a person.

Voting Justices: 
Primary Author
majority opinion
majority opinion
majority opinion
Full text of the opinion: 

H.C.J 1/48

 

HERMAN NEIMAN

 v.  

1)    THE MILITARY GOVERNOR OF THE OCCUPIED AREA OF JERUSALEM

2)    THE CHIEF MILITARY PROSECUTOR

 

 

In the Supreme Court sitting as the High Court of Justice

[September 29, 1948]

Before: Smoira P., Olshan J. and Cheshin J.

 

 

            Military Court jurisdiction - Who is a soldier - Military offender no longer a soldier when charge filed.

           

                The Petitioner, while employed by the Army as a civilian employee, assaulted a soldier and committed other acts constituting criminal offences under both military and civil law. After he had ceased to be so employed, the Petitioner was charged before a military court. He sought an order restraining the military court from proceeding with the charges on the grounds that he was not at the relevant time a soldier within the meaning of the Army Code, 19481) or alternatively that he had ceased to be a soldier when charged and that a military court therefore had no jurisdiction in the matter.

               

                Held, that the Petitioner had been a soldier within the meaning of the Army Code, 1948, when he committed the acts in respect of which he was charged, but that at the time such charges were filed he had ceased to be a soldier, and that a military court did not have jurisdiction to try such a person.

           

Palestine Case referred to :

(1)        H.C. 143/44 -  Tatjana Spiwak (Bauer) v. Kvutzat Kfar Hamakabi.

                                    Tatjana Spiwak (Bauer) v. Captain Jacob Bauer and another; (1945) 2 A.L.R. 472.

 

English Case referred to:

(2) Dawkins v. Lord F. Paulet, (1869) L.R. 5 Q.B. 94.

 

Frank for the Petitioner;

Spaer for the first Respondent;

H. H. Cohn, State Attorney, for the second Respondent.

 

SMOIRA P., giving the judgment of the court :

 

            On September 16, 1948, an order nisi was issued by this court against the first respondent, the Military Governor of the occupied area of Jerusalem as the representative of the Minister of Defence of the State of Israel, and against the second respondent, the Chief Military Prosecutor, to show cause why they should not be restrained from placing the petitioner, Herman Neiman, on trial before a Military Court, and why they should not withdraw the charges that have been preferred against the petitioner in the Military Court of Jerusalem.

 

            The facts in the case before us are not in dispute.

           

            The petitioner is forty-six years of age and therefore not liable to conscription. He has never sworn allegiance to the Defence Army of Israel. He was employed in the Engineers Corps of the Army during the months of June and July, 1948. As from August 1, 1948, he was no longer employed in the Army. On September 5, 1948, the petitioner was summoned - with others - to appear on an indictment before the District Court of the Defence Army of Israel in Jerusalem. The indictment, which is dated August 18, 1948, contains six charges against the petitioner. As is stated in the indictment, a copy of which is annexed to the petition, these are not offences of a military nature, being offences under various sections of the Criminal Code Ordinance, 1936, such as assault, threat of violence, unlawful arrest, malicious injury, and abuse of office.

           

            According to the particulars of the first charge, the petitioner, on or about July 12, 1948, unlawfully assaulted Walter Yalski, who was then enlisted for part-time service in the Army. The remaining charges relate to acts which were done on the same day against the same person. The petitioner was charged before the Military Court pursuant to section 97 of the Army Code, 1948.1)

 

            The questions which arise in the case before us are questions of law alone, and the submissions of the petitioner and of the respondents are shortly as follows :

           

            The petitioner submits:

           

(1)   He has never been a soldier according to the Army Code, 1948.

 

(2)   Even if be had been a soldier, be ceased to be one on August 1, 1948, and he is not liable, therefore, to be tried by a Military Court.

 

            The first respondent submits that he ought not to be made a party to this petition at all.

 

            The second respondent submits:

 

(1)   The petitioner must submit to the jurisdiction of the Military Court since, on the day of the commission of the offences, he was a soldier acting within the framework of or as an agent of the army.

 

(2)   The High court of Justice cannot intervene in this matter because :

 

a)     No injustice has been caused to the petitioner;

b)    The interests of the public and of good government demand that the petitioner be brought before a Military Court and not before a Civil Court;

c)     The petitioner has an alternative remedy - to appear before a Military Court and argue before that court that it has no jurisdiction.

 

            We have heard many general submissions from both parties as to the relationship between the Civil and Military Courts, the advantages to be gained from appearing before the Military Courts on the one hand and, on the other, the rights of the citizen to be tried by ordinary courts. We have no intention, however, of deciding the matter on first impression.

           

            In our opinion the answer to the question raised by this petition is to be found in the basic provision contained in Article 38 of the Palestine Order in Council, 1922, as amended in 1935. We have no doubt that this provision, with which the Part on "Judiciary" in the Order in Council opens, is still in force today, by virtue of section 11 of the Law and Administration Ordinance, 1948. The text of Article 38 reads as follows:

           

"Subject to the provisions of this part of this Order or any Ordinance or rules, the Civil Courts hereinafter described and any other Courts or Tribunals constituted by or under any of the provisions of any Ordinance, shall exercise jurisdiction in all matters and over all persons in Palestine."

 

            The principle which flows from this provision is that the Civil Courts exercise jurisdiction over all the inhabitants of the State, and according to Proclamation I of the Defence Army of Israel Command in Jerusalem - which is deemed to be in force as from May 15, 1948 - the Law of the State of Israel is made to apply to the occupied area of Jerusalem (section 2 of the Proclamation). In order to exclude a resident from the jurisdiction of the Civil Courts and render him subject to special Courts, special legislation is required. Such special legislation is to be found in the Emergency (Army Code 1948) Regulations, 1948 (Official Gazette No. 20 Supplement 2). These regulations were made by the Minister of Defence by virtue of the powers conferred upon him by section 9 (a) of the Law and Administration Ordinance, 1948, and there is no appeal before us against the legality of these regulations. These regulations lay down, inter alia, the legal organisation of the army, its composition and its powers, the principles to be applied in regard to offences and punishment - of a special type for soldiers - and include, in section 97, a provision in regard to a soldier who commits an offence punishable by the general criminal law. It is under this provision that the petitioner is charged in the indictment before the Military Court.

 

            And this is the text of section 97:

           

"Any soldier who, within the framework of the army or by reason of his belonging to the army, has committed an offence punishable under the general criminal law which is in force or will be in force in the State from time to time, and whose belonging to the army, does not expressly relieve him from liability for such offence, may be tried for such o fence by a Military Court and shall be liable to the same punishment as that to which he would be liable in the general courts."

 

            The first question is whether the petitioner was a soldier at the time of the commission of the offences with which he is charged.

           

            The definition of "soldier" is found in section 2 of the Army Code, 1948, and is as follows: -

           

"'Soldier' means any man or woman who has been accepted into the army under army regulations from time to time, and also includes any person who has acted from time to time in the framework of the army, or its agent, and also includes any person who is under a duty to enlist in the army or in the services associated with the army, even if such person has not been accepted into the army as aforesaid."

 

            Mr. Haim Cohn, the State Attorney, who appeared on behalf of the second respondent, does not contend that the petitioner was accepted into the army under army regulations. Mr. Cohn also admitted before us that the petitioner is not subject to the duty of enlistment in the army or in the services associated with the army. His contention is that the petitioner acted on July 12, 1948, within the framework of the army and also as agent of the army. The words "from time to time" in the definition of the word "soldier" - Mr. Cohn argues - introduce an element of impermanence, and there is therefore no need for permanent service. The expression "framework of the army" is, says Mr. Cohn, an extremely wide one. The word "framework", he contends, must not be given an etymological but a colloquial interpretation. A person need not actually be in the army in order to be within its framework - any person who is in lawful association with the army is within its framework. The question is whether the association between the person and the army is one which introduces him or his activities into the framework of the army. The petitioner was a hired employee of the army, and his receipt of a salary does not exclude him from its framework, for the army is composed not only of active soldiers but also of other persons including those who work for a salary, such as army doctors and judges. The expression "agency of the army" is, so it is argued: even wider than "framework", since such agency does not even demand any lawful association between the person and the army. These are the submissions of counsel for the second respondent.

 

            As against these arguments Dr. Frank, counsel for the petitioner, has made the following submissions:

           

            The petitioner did not act within the framework of the army or as its agent. In interpreting the expression "soldier" in section 2 of the Army Code, Dr. Frank directed our attention to section 176, sub-sections 9 and 10 of the English Army Act of 1881, in terms of which persons who are not soldiers but who are employed by the army are subject to Military law only if they are on active service, an expression defined in section 189 of that statute. Dr. Frank intended to prove the extent to which the English legislature has restricted the category of those who are subject to military Law. The immediate answer to this argument is that proof of such a restricted interpretation cannot be furnished by the English Statute since we are bound by the definition of a "soldier" in the Army Code, 1948, and that definition contains no such restriction.

           

            An act done by a soldier within the framework of the army, Dr. Frank submits, is one that results from an order given by the State or by the army. A person who performs some activity in the army as a contractor for a wage and as an official on a salary is one who works under a contract and not on the basis of an order given or compulsion exercised by the State or the army. A person falls within the framework of the army, Dr. Frank submits, only when the army gives him orders as one of its members, and not when he works under a special contract for a salary. In any event, says Dr. Frank, if the regulation defining the expression "soldier" is not clear, there is a presumption that the civil courts have jurisdiction, and in a case of doubt the decision will be in favour of such jurisdiction.

           

            The distinction referred to, which Dr. Frank wishes to introduce in interpreting the expression "soldier", is worthy of consideration. We are of the opinion, however, that, on the contrary, the legislature wished to widen the limits of the expression "soldier" as far as possible by introducing into that definition, as a category, any person "who has acted from time to time in the framework of the army, or as its agent". We think that the legislature, in framing the definition as it did, succeeded in extending the limits of the expression "soldier", and we do not agree with the submission that the receipt of a wage excludes a person from the framework of the army.

           

            The definition of "soldier" in section 2 contains three categories:

           

(a)    the first category mentioned "any man or women who has been accepted into the army under army regulations from time to time" - refers to ordinary soldiers;

 

(b)   the third category "any person who is under a duty to enlist in the army or in the services associated with the army, even if such person has not been accepted into the army as aforesaid" - refers to those who in fact are not yet soldiers, but who are ordered to become and are about to become soldiers, and who are liable to be punished, for example, for offences such as feigning illness, or wilful maiming, under section 90 of the Army Code, 1948 :

 

(c)    The second category includes just those people who have not been accepted into the army under army regulations and who are not about to be accepted into the army because of their duty to enlist, but those who work from time to time in the framework of the army or as agents of the ar