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 80^th 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 (2^nd and 3^rd 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).

 

 

 

+

 

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.

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.

 

 

 

 

 

 

 

 

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

15 Heshvan 5756.

8 November 1995.